THE NORTH CAROLINA STATE BAR

JOURNAL

IN THIS ISSUE

Against All Odds page 6Notaries Public—What’s the Big Deal? page 10

Our New President page 34

WINTER

2006

6 WINTER 2006

To Have and to HoldIf your client claims to have the win-

ning ticket, it never hurts to get a look atit. The reason: lottery officials tend todraw the purse strings tight when some-one can’t produce that piece of paper.

Take the case of Orrin J. Fowles, whoalleged he purchased a winning $117,037ticket for the Kansas Cash Lotto drawingon July 20, 1988. Mr. Fowles said hebought a $1 ticket at the Short StopConvenience Store in Clay where hisdaughter, Pennie Cranmer, was a clerk.Mr. Fowles asked Pennie to hold on to histicket because he was going out of town.Pennie said she wrote her father’s nameon the ticket and placed it in a basket

under thec o u n t e r .Somehow, theticket disappearedand was neverlocated. Lottery offi-cials confirmed that theonly winning ticket was pur-chased at the Clay store, and no oneelse ever stepped forward to claim theprize. Although Mr. Fowles and hisdaughter signed sworn affidavits aboutthe purchase, lottery officials refused topay.

Mr. Fowles sued. The outcome: on topof losing the ticket, Mr. Fowles also losthis legal challenge. In Fowles v. State of

Kansas, 254 Kan.557, 867 P.2d 357 (1994), the Kansascourt stated “that to be a ‘holder’ of a win-ning lottery ticket and to have a right tocollect the winnings, one must have pos-session of the ticket.”

Against All OddsB Y M I K E D A Y T O N

North Carolina finally has a lottery. Now’s your chance to hit it big—not by actually play-

ing the games, where your prospects of striking it rich are, statistically speaking, lower

than a possum’s belly. No, the real money is in the original “jackpot litigation”—those

lawsuits filed on behalf of the family members and disgruntled co-workers who claim

they’re entitled to a piece of the lottery pie. When those

clients walk through your office door, will you be ready?

These cases from other states offer a glimpse at your

chances of success.

THE NORTH CAROLINA STATE BAR JOURNAL 7

Wild “Wild Card”With thousands or millions of dollars

at stake, it’s no surprise that wannabe win-ners will test the outer limits of logic.Consider the Maine contestant, LarryMoody, who bought a scratch-off ticketcalled “Wild Card Cash.” Contestantsscratched off six hand-shaped areas on thegame card to reveal two boxes with num-bers or letters. If numbers or lettersmatched, the ticket was a winner. Thecard also contained a separate scratch-offbox labeled “wild card.” The card was awinner if the wild card number matchedany of the other boxes.

None of the box pairs on Moody’s cardmatched. Nor did Moody’s wild cardnumber—5—match numbers or lettersunder any of the hands. That did not stophim from pressing a lawsuit that claimedhe was a winner. In Moody v. State Liquor& Lottery Commission, 843 A.2d 43(2004), he argued that the common defi-nition of a wild card permitted him to dis-regard the wild card number actuallyprinted on his card and choose a numbermore to his liking—for instance, 4 or 6,which would turn him into a $20,000winner.

Not so fast, the Maine SupremeJudicial Court said, in shooting down thatargument as frivolous. “Moody’s interpre-tation would make every Wild Card Cashticket a winning ticket,” the court said.

Proof of Winning NumbersOccasionally, lottery fights hinge on

who actually owns the ticket. To prevail inthat dispute, sometimes you need look nofarther than your client’s ID card. In SauThi Ma v. Xuan T. Lien, 260 A.D.2d 258(1999), the parties both claimed to be thetrue owner of $3.6 million in lottery pro-ceeds. The deciding proof at trial camefrom an unlikely source—the winninglottery numbers were apparently derivedfrom the Medicaid card of the plaintiff ’smother, according to the opinion.

Seeing RedIn Georgia Lottery Corporation v.

Sumner, 529 S.E.2d 925 (2000), a scratchoff lottery ticket promised a perpetualpayday: “$50 A DAY FOR FIVEYEARS!” The winning card had a symbolthat contained a black circle with a whitecenter and a smaller black circle in its

middle. A player thought he’d wonbecause his ticket had a similar symbol.One big difference: his winning symbolwas red. When lottery officials refused topay, he sued for breach of contract. Theproblem: “The evidence in the recordshows clearly the red circle on Sumner’sticket that resembles the winning symbolwas a stray printing mark, known in thetrade as a ‘hickey,’” the court said. Underthat state’s rules, that made the ticket“irregular” and thus void.

A Dream Deferred? Clients who play the blame game in

their lottery lawsuits are likely to slip andfall flat on their faces, especially whenthey pin their woes on the conveniencestore that sold them the ticket. In Brownv. California State Lottery Commission,232 Cal.App.3d 1335 (1991), a lotteryplayer claimed he’d have won $7.25 mil-lion but for the fact that his local 7-Elevenretailer had a malfunctioning machinethat would not allow him to pick his own

8 WINTER 2006

numbers. The player said he did not havetime to go to a nearby store before thedrawing.

The California Court of Appeal had adecided lack of sympathy for the fellow’sbreach of contract claim, stating: “Had henot waited till the last possible instant tomake his down payment on a dream, [he]might have reaped more than just a crap-shoot in the courts.” Ouch!

The court also ruled the store owed nolegal duty to the plaintiff and said itwould not “hold any establishment toanswer for the procrastination of fortuneseekers.” According to the opinion, “Theodds of winning the lottery are extraordi-narily slight, to say the least; the chancesof picking the correct numbers are far lessthan one in a million…. No store wouldparticipate in the California Lottery if todo so opened the door to crushing liabili-ty every time a machine was inoperative,malfunctioned, or an employee was toobusy to attend to the needs of fortuneseekers.”

Late to the GameThe case of Driscoll v. State of New

Jersey, 627 A.2d 1167 (1993), arose whenthe New Jersey state lottery changed itsdrawing time for its “Pick Six” game from9:56 p.m. to 7:56 p.m. The switchoccurred on October 1, 1990.

The lottery commission notified thegeneral public by several means and sup-plied posters for display at each retailer.As bad luck would have it, a Rite-Aidpharmacy that Florence Driscoll patron-ized discarded its poster without ever dis-playing it.

Ms. Driscoll testified that she pur-chased her tickets at around 8:00 p.m. onOctober 1. She said she believed they werefor that evening’s game.

“As it turned out, one of the chancesthe plaintiff had purchased was for thecombination of numbers 6, 11, 13, 22,26, 45. These numbers were the winning

numbers for the October 1, 1990, draw-ing!” the opinion exclaimed.

When Ms. Driscoll went to validateher ticket, she learned it was dated for theOctober 4, 1990, drawing. She pressednegligence and breach of contract claimsagainst the state and also named theretailer for failing to put up the time-change poster. The Superior Court ofNew Jersey was not persuaded, findingMs. Driscoll had ample time and oppor-tunity to learn about the switched drawtime, stating this public policy, “Whereone willingly elects to participate in thelottery scheme, the burden must beplaced upon the fortune-seekers tobecome informed of the rules that governthe outcome of the game, including thetime and dates of the drawing, or sufferthe consequences for failing to keep himor herself apprised.”

The court added: “Recognizing aviable cause of action in this case wouldopen the door to deceptive practices byfortune-seekers hoping to beat the odds inthe lottery game.”

Winner Takes...Half?In Fullerton v. Department of Revenue

Services, 714 A.2d 1203 (1998), Jamesand Mary Fullerton purchased one of twowinning numbers for a December 21,1993, Lotto drawing in Connecticut. Thecash prize for that drawing was$5,618,438.86. Two winning tickets weresold, meaning each winning share wasvalued at $2,809,219.43, payable in 20annual installments of $94,809.97. Whenthe other winning ticket went unclaimed,the plaintiffs argued that portion shouldalso be paid to them. Their reasoning: inorder to be a winner, one must not onlyhold a winning ticket, but also present itto the claims center. The court sided withlottery officials and held that “winners areconclusively determined at the time of thedrawing, not at the time of the present-ment of the ticket.”

Pool PartiesDon’t forget a simple maxim from your

first year of law school: contracts can beoral. That legal concept carried the day inStepp v. Freeman, 694 N.E.2d 510 (1997),when 20 co-workers agreed to pool theirresources and purchase lottery tickets as agroup anytime the jackpot reached $8 mil-lion. Membership in the pool was limitedto 20 persons and had a waiting list. Therewas an understanding about how mucheach person would contribute, and thepool organizer allowed members to stay ineven when they occasionally neglected tomake their required $2.20 contributiontoward 40 tickets and four “kickers.”

A dispute arose when the pool organiz-er, Freeman, and one of its members,Stepp, had “a serious work-related disagree-ment” that included some name-calling,according to the Stepp opinion. After theargument, Freeman unilaterally bootedStepp out of the pool even though he’dbeen a member for five years.

Lady Luck showed up the very nextweek when the group hit the $8 millionjackpot. Although Stepp had not con-tributed toward the winning ticket, heargued he was entitled to a share of theloot, and he sued when the pool membersrefused to pay him. The Ohio Court ofAppeals ruled in his favor, finding animplied contract had been created. Thecourt said Freeman breached that contractwhen he failed to inform Stepp that thegroup was playing the lottery.

As you may have gathered, the oddsusually favor the house, even in lottery law-suits. So one final tip: if you decide to takeone of these cases, you may want to bill bythe hour, rather than on a contingencybasis.

Mike Dayton is editor of North CarolinaLawyers Weekly and South Carolina LawyersWeekly and co-author of a book on the historyof Wake County lawyers published in 2004.

The California Court of Appeal had a decided lack of sympathy for the fellow’s breach of con-tract claim, stating: “Had he not waited till the last possible instant to make his down payment on

a dream, [he] might have reaped more than just a crapshoot in the courts.” Ouch!

10 WINTER 2006

Recent enactments by the GeneralAssembly include Session Law 2005-391,creating a new Chapter 10B in theGeneral Statutes, and Session Law 2006-59, which further revises Chapter 10B.These laws serve to provide clear guid-ance to notaries regarding the standardsto which they must conform. Plus, thechanges still allow third parties to rely onnotarizations for conducting their busi-ness even in the event of a technicaldefect within a notarization.

Additionally, S.L. 2005-391 took the

Notaries Public—What’s the BigDeal?And the New Chapter 10B of the General Statutes

B Y H A L E Y H A Y N E S

If you had asked me before I

joined the NC Secretary of

State’s staff about the impor-

tance of notaries public to

society, I would have answered out of igno-

rance: “They serve to witness signatures—

what’s the big deal?” Now I know better.

Notaries public are state-appointed offi-

cials who play a vitally important role in

the deterrence of fraud by requiring that signers of legal documents be positively identi-

fied, as well as making sure the signer is signing knowingly and willingly. No technology

can take the place of an impartial and unbiased individual identifying another person. In

short, the notary is often the first, and sometimes best, line of defense against fraud in this

age of increasing identity theft.

THE NORTH CAROLINA STATE BAR JOURNAL 11

steps necessary to enable electronic nota-rization (hereinafter “e-notarization”)and electronic recording (hereinafter “e-recording”). As a result, North Carolinais positioned to be the first state to enjoywidespread adoption of both e-notariza-tion and e-recording, further enhancingour financial and business communities’competitive edge in the global economy.

Chapter 10B: The Creation At the direction of the General

Assembly, the Department of theSecretary of State (hereinafter, the“Department”) studied Chapter 10A inorder to modernize and to improve thelaws concerning Notaries Public.1

Additionally, the Department was direct-ed to study the appropriate method forauthorizing e-notarization.2 TheDepartment undertook the GeneralAssembly’s mandate in two parts. First,for the “regular” notary act, in February2005 the Department published for com-ment a re-draft of Chapter 10A basedupon our extensive experience in com-missioning and regulating approximately168,000 notaries. Secondly, for the e-notary and e-recording portion, Secretaryof State Elaine F. Marshall3 convened anadvisory council of stakeholders4 in orderto provide recommendations to her fortransmittal to the General Assemblyregarding the appropriate mechanism forenabling e-notarization and e-recording.5

After numerous meetings and vigor-ous public policy discussions, theAdvisory Council on Uniform RealProperty Electronic Recordation Act(hereinafter “URPERA”) and E-Notarization provided its recommenda-tions to Secretary Marshall.6

The Secretary reported to the GeneralAssembly at the beginning of the 2005Session.7 Throughout the 2005 Session,the North Carolina Bar Association’s RealProperty Section, the North CarolinaBankers’ Association, the North CarolinaLand Title Association, the NorthCarolina Register of Deeds’ Association,and the Department, as well as a numberof other organizations, continued towork on the mutually shared goal of pro-viding an improved regular notary actand enabling e-notarization and e-recording in North Carolina. It wasthrough the significant efforts by the

leadership of all of these organizations toreach a common agreement on the text ofthe entire bill that this goal became real-ity with the passage of Senate Bill 671.On August 24, 2005, the GeneralAssembly overwhelmingly approved thislegislation, creating the new Chapter10B, Notaries.

After the dust settled from the 2005Session, concerns were raised about vari-ous unintended consequences from thenew Chapter 10B. Among those con-cerns were: whether the repeal of Chapter10A had any effect on the long-estab-lished common law concept of “substan-tial compliance”;8 whether the Chapter’snew acknowledgment forms, which wereintended to serve as “universal” forms,confused the issue of legal requirementsof a notary’s acknowledgment. To theircredit, the drafters of the acknowledg-ments went back to the drawing board tore-work the acknowledgement forms in afashion that would meet the intendedgoal of providing easily-used universalacknowledgment forms in NorthCarolina statutory law. The results oftheir efforts now exist in the recently-amended Chapter 10B,9 set to take effecton October 1, 2006. Legislative researchstaff were instrumental in teasing out andseparating within the notary law twoequally important concepts: (1) theauthority of the Secretary to effectivelyregulate the conduct of notaries public inorder to accomplish the underlying goalsof the notary laws,10 and (2) the abilityof third parties to rely on notarizations inthe event of technical defects in a nota-rization. An example of this differentia-tion within the law can be seen in

N.C.G.S. § 10B-37: “Seal Image” whichprovides that the failure of a notary’s sealto conform to statutory requirements is amatter for which a notary may be disci-plined but “failure of a notarial seal tocomply with the requirements of this sec-tion shall not affect the sufficiency, valid-ity, or enforceability of the notarial cer-tificate.”11

The Final ResultThe newly revised Chapter 10B now

contains the following: An extensive definition listing—

some revised and some new for clarifica-tion of the statutes;12

Additional requirements for quali-fication to become a notary, includingproof of legal residency in the UnitedStates, and the ability to speak, write,and read English;13

Clarification of grounds for deny-ing a notary commission;14

Clarification and enhancement ofeducational requirements for commis-sioning of non-attorneys, including sixhours of classroom instruction withinthree months preceding application,15

passage of a mandatory test with a scoreof 80% or better for initial and re-appointment applicants (exceptinglicensed members of the North CarolinaBar and certain other long-timenotaries16);

Maximum fee for performing anotarial act increased to $5.00 per signa-ture;17

Clarification of the proper proce-dure for acknowledging a person’s markand for acknowledging an instrument fora person who is unable to sign or make a

mark;18

Clarification of the requirementthat a notary sign by hand in ink (i.e. nofacsimile or signature stamps);19

Clarification of grounds or situa-tions in which a notary is prohibited fromnotarizing an instrument;20

Clarification and simplification ofvarious acknowledgment forms;21

Clarification of process for a notarychange of status (i.e. change of name,address, county, and resignation of com-mission);22

Enhancement of criminal penaltiesfor a variety of notarial offenses, includingmaking a person who knowingly solicits,coerces, or materially influences a notaryto perform official misconduct an aiderand abettor, therefore subject to the samelevel of punishment as the notary per-forming the misconduct;23

Clarification in statutory form thatthe “presumption of regularity” created bythe doctrine of substantial complianceshall apply to all notarial acts, absent evi-dence of fraud or knowing and deliberateviolation of Chapter 10B by the notary;24

Addition of a precautionary curativeprovision for all notarial acts performedbefore October 1, 2006.25

Practice TipsThere are a few items worth a special

mention to all notaries. The first is that,even though the non-exclusive statutoryforms provided in the amendedN.C.G.S. § 10B-41,26 42,27 42.1,28, and4329 are quite simple, those forms do notchange the notary’s role and duties whenperforming an official act. N.C.G.S. §10B-40 clearly states that, regardless ofwhether it is stated in the certificate, thenotary is certifying to all of the require-ments of an official act,30 including thefollowing by virtue of the now-amendedN.C.G.S. § 10B-40(a2),31 which reads asfollows:

(1) At the time the notarial act wasperformed and the notarial certificatewas signed by the notary, the notarywas lawfully commissioned, thenotary’s commission had neitherexpired nor been suspended, thenotarial act was performed within thegeographic limits of the notary’s com-mission, and the notarial act was per-formed in accordance with the provi-

sion of this Chapter.(2) If the notarial certificate is for anacknowledgment or the administrationof an oath or affirmation, the personwhose signature was notarized did notappear in the judgment of the notaryto be incompetent, lacking in under-standing of the nature and conse-quences of the transaction requiringthe notarial act, or acting involuntarily,under duress, or undue influence.(3) The notary was not prohibitedfrom acting under G.S. 10B 20(c).Therefore, it is important the notaries

remain mindful of their duties and rolesregardless of whether or not the certificatethey are using specifically recites therequired elements.

The second practice tip is that theforms for various certificates provided inSections 18, 19, 20, 21, and 22 of S.L.2006-59 are non-exclusive and are meantto supplement, not replace, those that arealready prescribed by other state laws.Section 18 of S.L. 2006-59 specificallystates that notarial certificates are suffi-cient and shall be accepted if they are sub-stantially in the form set out in Chapter10B32 or if they are substantially in a formotherwise prescribed by the laws of thisState.33

My final practice tip to allattorney/notaries out there: consider tak-ing a notary public course offered throughyour local community college. Due tolicensure by the NC State Bar, we areexempted from taking such a coursebefore becoming commissioned as anotary. However, taking one of theseclasses will serve to give you training in anarea of law that many of us only comeinto contact with incidentally or indirect-ly. We have had attorneys tell us that tak-ing the notary course was one of the mostuseful courses they had taken to improvetheir understanding of an everyday part oftheir practice.

E-NNotaries: The Next GenerationI would be remiss if I did not take this

opportunity to inform my colleaguesabout the exciting developments sur-rounding e-notarization in NorthCarolina. The Department is currentlyengaged in the rule-making process34 toenable e-notarization to move forward inthis state. Once the rules become effec-

tive35 (January 1, 2007, is the proposedeffective date), North Carolina will be thefirst state in the nation to have enabled amethod for a variety of e-notary solutionsto be approved and deployed. Because thislaw has been approached in terms of thestandards that should govern the technol-ogy, the standards themselves are technol-ogy neutral. The added benefit is that weare setting the baseline for what isrequired without prescribing any specifictechnologies, as other states have chosento do; therefore, future developments andimprovements in technology may beenabled without further rule-making orlegislative action.

You may be asking yourself what ismeant by “electronic notary”—does thischange a notary’s duties? Is personalappearance required in the e-notaryworld? The short answers are: no, theduties of a notary are the same, regardlessif they are working on paper with theirseal in hand or on a computer and access-ing their electronic seal and signature; andyes, personal appearance36 and all of theother bases for a notary acting in theirofficial capacity are still required when ane-notary performs an official electronicnotary act.

First, the basics: only already-commis-sioned notaries are eligible to become e-notaries;37 they must also complete threeadditional hours of training in notariallaws, procedures, technology, and ethicsand pass a test on these topics38 before theyare authorized to perform electronic nota-rizations. There are additional registrationrequirements along with a $50.00 registra-tion fee;39 the term of registration coin-cides with the regular notary commis-sion.40

Next, the concept: electronic notarieswill be using new tools (i.e. their electron-ic seal and signature) to perform theirduties in an electronic setting. TheDepartment is responsible for adoptingrules to “insure the integrity, security, andauthenticity of electronic notarizations.”41

The Department has proposed rules thatset standards by which technologies are tobe measured. If an e-notary solution meas-ures up to the standards set by the rules,then that solution becomes an authorizedmethod of performing e-notarizations.This allows notaries who wish to become e-notaries to do so easily and without having

12 WINTER 2006

THE NORTH CAROLINA STATE BAR JOURNAL 13

to learn the ins and outs of different tech-nologies in order to know which methodto choose. Instead, e-notaries will be ableto choose from the list of approved vendorswho have been found to have met the rules’standards in order to move into the elec-tronic arena.

A Final WordSecretary Marshall believes in giving the

public prompt and useful service, andeveryone in the Department strives to meetthat goal every day. If you have questionsabout this article or other matters relatingto notaries, please feel free to contact medirectly at (919)807-2005 or by e-mail:hmontgomery@sosnc.com. Director GayleHolder, former Harnett County Register ofDeeds, is also available for your questions.You may reach her at (919)807-2288 or atgholder@sosnc.com. Further detailedinformation about the e-notary programdevelopment can be obtained from OzieStallworth, E-Notary Analyst/Director, at(919)807-2295 or ostallworth@sosnc.com.

Haley Haynes currently serves as deputysecretary of state. She oversees several majordivisions of the Secretary of State’s Office,including its corporations, trademarks, notarypublic, and Uniform Commercial Code sec-tions. Haynes served as the department’s gen-eral counsel since 2002 before being promot-ed to deputy secretary in June 2004. Haynesworked as a private attorney in Ashevilleprior to joining the department. She is also aformer public defender in both Asheville andFayetteville.

Endnotes1. Section 6.2, Session Law 2004-161.

2. Id.

3. Secretary of State Elaine F. Marshall is presentlyserving her 3rd consecutive term as secretary ofstate, having first been elected in 1996 and re-elected in 2000 and 2004.

4. Represented on the Advisory Council were thefollowing organizations: NC State Bar, NCProperty Mappers Association, NC Land TitleAssociation, NC Association of the Register ofDeeds, NC Association of Assessing Officers, NCAssociation of County Commissioners, NC BarAssociation, NC Notary Association, NC Societyof Surveyors, NC Department of CulturalResources, NC Department of Transportation.

5. See Secretary of State Directive 2-04, TheSecretary of State’s Advisory Council on theUniform Real Property Electronic RecordationAct

6. See Report to the North Carolina Secretary ofState on North Carolina Electronic Recordationand Notarization by the Secretary of State’sAdvisory Council on the Uniform Real PropertyElectronic Recordation Act, February 10, 2005.

7. See Report on Modernization and Simplificationof Notary Public Laws and E-Notarization,March 16, 2005.

8. See Freeman v. Morrison, 214 N.C. 240 (1938),in which the NC Supreme Court established a“substantial compliance” standard for evaluatingwhether an acknowledgment complies with statu-tory requirements. In that case, the Court rea-soned that, absent evidence to the contrary, a“presumption of regularity” applied to the acts ofpublic officers, particularly judicial acts, and thencited a case stating that taking an acknowledge-ment qualified as a judicial or quasi-judicial act.The Court then cited several secondary authori-ties supporting its holding, including this quota-tion from American Jurisprudence, “Probably inall jurisdictions the courts strongly advocate aliberal interpretation of the statutes, in order thatacknowledgements may be upheld wherever therehas been a substantial compliance with the lawand no suspicion of fraud or unfairness attachesto the transaction.” As of the writing of this arti-cle, Freeman has not been overruled. Cases citingand approving the Freeman holding includeLawson v. Lawson, 321 N.C. 274 (1987),Contract Steel Sales, Inc. v. Freedom Const. Co.,321 N.C. 215 (1987), and Matter of Hess, 104N.C. App. 75 (1991).

9. See Sections 18-22, Session Law 2006-59.

10. See N.C.G.S. § 10B-2, which give six underly-ing purposes, including:

(1) To promote, serve, and protect the publicinterests.(2) To simplify, clarify, and modernize the lawgoverning notaries.(3) To prevent fraud and forgery.(4) To foster ethical conduct among notaries.(5) To enhance interstate recognition of notari-al acts.(6) To integrate procedures for traditional paperand electronic notarial acts.

11. See N.C.G.S. § 10B-37(f).

12. See N.C.G.S. § 10B-3.

13. See N.C.G.S. § 10B-5(b).

14. See N.C.G.S. § 10B-5(d)

15. See N.C.G.S. § 10B-8(a)

16. See N.C.G.S. § 10B-11(b)(3) as amended byS.L. 2006-59, providing that the testing require-ment does not apply to notaries who have beencontinuously commissioned since July 10, 1991,who have never been disciplined as a notary.

17. See N.C.G.S. § 10B-31.

18. See N.C.G.S. § 10B-20(d) & (e).

19. See N.C.G.S. § 10B-35 as amended by S.L.2006-59.

20. See N.C.G.S. § 10B-20(c) as amended by S.L.2006-59.

21. See N.C.G.S. § 10B-40, 41, 42, 42.1 & 43 asamended by S.L. 2006-59.

22. See N.C.G.S. § 10B-50 through 55.

23. See N.C.G.S. § 10B-60.

24. See N.C.G.S. § 10B-99(a) as enacted by S.L.2006-59.

25. See N.C.G.S. § 10B-99(b) as enacted by S.L.2006-59.

26. See Sec. 19 of S.L. 2006-59.

27. See Sec. 20 of S.L. 2006-59.

28. See Sec. 21 of S.L. 2006-59.

29. See Sec. 22 of S.L. 2006-59.

30. See Section 1 of S.L. 2006-59 as follows:N.C.G.S. § 10B-3(1) for acknowledgements,N.C.G.S. § 10B-3(2) for affirmations, N.C.G.S.§ 10B-3(14) for oaths, N.C.G.S. § 10B-3(28) forverifications or proofs.

31. See Section 18 of S.L. 2006-59.

32. See Section 18 of S.L. 2006-59, G.S. § 10B-40(b), (c), (c1) and (d).

33. Id.

34. The public comment period on the proposedrules for Chapter 10B ends October 31, 2006.

35. Go to http://www.oah.state.nc.us/rules/regis-ter/ register.html and click on Issue 5 of Volume21 for the full text of the rules in their proposedform for both regular and electronic notaries.

36. See N.C.G.S. § 10B-116.

37. See N.C.G.S. § 10B-105.

38. See N.C.G.S. § 10B-107.

39. See N.C.G.S. § 10B-106 and 108.

40. See N.C.G.S. § 10B-106(b).

41. See N.C.G.S. § 10B-126(d).

Below are the 2007 dates of the quarterly State Bar Council meetings.

January 16 - 19 Sheraton Capital Center, Raleigh

April 17 - 20 Sheraton Capital Center, Raleigh

July 10-13 Sheraton Atlantic Beach

October 16 -19 Sheraton Capital Center, Raleigh

(Election of officers October 18, 11:45 am)

2007 Meeting Schedule

14 WINTER 2006

They may be the first class to enter a newAmerican law school with a building capableof housing and supporting the school notonly in its first year of operation, but also forall three years of instruction. When JusticeSandra Day O’Connor dedicated Elon

University School of Law on September 19,she praised the school’s H. Michael WeaverBuilding, which also houses the NorthCarolina Business Court, telling the studentsthey could not imagine how fortunate theyare to be able to study in such a fine, techno-

logically advanced facility.Elon’s law library encompasses the bottom

two floors of the Weaver Building, where itprovides seating for over 300 patrons. Italready offers access to 150,000 volumes forits students, faculty, and the practicing bar.

Creating a National Model forLegal Education at Elon—andWhy

B Y L E A R Y D A V I S

There was a man from our town,And he was wondrous wise.He jumped into a bramble bushAnd scratched out both his eyes.

When he saw that he was blindWith all his might and main,He jumped back in the bramble bushAnd scratched them in again.

Karl Llewellyn, The Bramble Bush

On August

10, 2006,

in Greensboro, Elon University School of Law enrolled a charter class of 115 students. They came from 12

states and 49 different colleges and universities, including those from the Piedmont Triad, North Carolina’s

major state universities, and such other schools as Duke, Davidson, UVA, UCLA, Harvard, and Yale. Their median LSAT and GPA were

remarkable for the entering class of an unapproved law school.

Elon Law School Professor Don Peters teaches in one of the school's high-tech classrooms.

As impressive as Elon’s facilities and down-town Greensboro location are, it was primari-ly Elon’s faculty members and the education-al program they are constructing that attract-ed the school’s charter class. Elon’s School ofLaw is building on the strengths of its parentuniversity, designated America’s “hottest col-lege” for student engagement by Newsweek-Kaplan, in creating a national model forengaged learning in legal education.

The Bramble BushI want to use this article to describe dis-

tinctive aspects of that model, but first to tellwhy it is needed. Karl Llewellyn’s BrambleBush poem quoted above provides a goodplace to start. If I understand the poem cor-rectly, it is a metaphorical statement of the tra-ditional advice given first-year law students:“We don’t know exactly how one comes tothink like a lawyer, but… trust us. Work hard.You’ll feel blind. Keep working hard. Thenyou’ll see.”

One can argue that this advice has workedwell for better than a century, since the adventof the case method at Harvard. After all, we’regood lawyers, achieving at high levels, helpingclients solve problems and maximize opportu-nities in broad ranges of situations. Lawschool must work well.

But has it worked as well as it should?When we read state of the profession surveys,we sense that it might not have worked as wellas it could, and should, for the 20% or moreof lawyers who find themselves feeling neutralor dissatisfied about their careers. I suspect italso does not work as well as it could, andshould, for the rest of us, who express satisfac-tion with our careers.

None of us achieve our full potential. Whatif our three years of law school had provided uswith broader and more substantial founda-tions upon which to construct our careers? Atwhat higher levels of effectiveness might wehave constructed our law practices and ourlives? And if all, or even most, of us were func-tioning at those levels, how much better mightthe justice system and our families, firms, com-munities, nation, and world be?

We are going to need lawyers who func-tion at those levels in the future. Thoselawyers will need to be capable of makingmore high quality events happen for moreclients in less time if they are to meet thedemand for legal services in the United Statesand to respond to international competitionin a global marketplace (see sidebar). They

must be problem solvers who know more,think better, are more skilled, understand anduse technology better, possess greater globaland multi-cultural awareness, and build andparticipate on better teams.

Problems with Legal EducationElon’s model of engaged learning for legal

education is designed to produce thoselawyers. In the process of doing so it alsoaddresses two significant and relatively recentproblems with legal education. The first isthat many law students disengage from theirstudies in their second and third years of lawschool. The second is that legal education isperceived by some to have become “soft,”which is said to be not a good thing in prepar-ing people for a “hard” profession; it is not agood thing if the soft substitutes for ratherthan supplements the hard. Hard analytical

knowledge and skill are essential to lawyercompetence.

But the problem is more complex thanthat. While knowledge and skill are necessaryfor lawyer competence, they are not sufficient.Whenever lawyers are asked to think of thebest lawyer they know and to list the attrib-utes of that lawyer, most of the attributes theylist are soft attributes like self-knowledge,empathy, integrity, persistence, and goodcommunication skills. It is these personalattributes that provide the catalysts that allowlawyers to translate knowledge and skill intocompetent representation, and the absence ofwhich can preclude competence.

“Soft” is probably not a good word todescribe attributes and education that equipone to develop the self-management strategiesand strategies for dealing with others thatmake lawyers successful. As Center for

THE NORTH CAROLINA STATE BAR JOURNAL 15

State and National DemandFrom 1970 to 2000, the number of lawyers in the United States increased from

326,000 to 1,086,000, more than tripling while total population increased by only 37%.Despite this growth, the United States soon might not have enough lawyers to meet thedomestic demand for legal services unless we change the way we practice law. To maintainour current ratio of lawyers to our projected population, we will need 1,591,000 lawyersby 2030. Because we will have 400,000 lawyers retiring in the next 10 to 15 years, it mightbe difficult to maintain that ratio.

A better indicator of the need for lawyers is the ratio of lawyers to projected grossdomestic product. To maintain our current ratio of about $9.5 million per lawyer, wewould need a total of around 2.5 million lawyers by 2030. It is debatable that having thatmany lawyers in the United States would be a good thing. A good thing or not, it isunlikely to happen. In the absence of a large increase in law school enrollments and grad-uations, lawyer population is projected to grow at less that one-third the rate of the econ-omy. These pressures may be felt most keenly in North Carolina, which has fewer lawyersper capita than any other state in the nation except South Carolina, and which trails onlyNevada and Delaware in gross state product per lawyer. US clients may have to look over-seas to find lawyers to help them facilitate their business transactions.

International CompetitionRegardless of whether we experience a shortage of lawyers nationally, we could still find

ourselves competing more with lawyers from other countries. Legal research is alreadybeing outsourced to India, another common law country that has all of our research toolsavailable online.

Japan, which historically produced a percentage of law graduates per capita compara-ble to that in the US, then utilized an artificially low bar passage rate to funnel most ofthose graduates to government or business, has recently expanded graduate legal studiesdramatically in order to compete better in a global economy. A national commission fileda report at the beginning of this century calling for the establishment of graduate JD pro-grams like those in the US, while continuing its traditional undergraduate law programs.Since 2003 it has opened 67 graduate law schools patterned after those in the US.

Australia has also added JD programs to better equip their undergraduate LL.B. recip-ients for law practice, so that they may enter the profession at levels more comparable tothose of US law graduates.

Creative Leadership (CCL) President JohnAlexander has said, “The soft stuff is the hardstuff.” The complaint of those who say thatsoft legal education does not prepare gradu-ates for a hard profession is not that lawschools teach interpersonal skills, but thatthey do so at the expense of legal education’straditional rigor.

Elon’s ModelElon’s educational program is both harder

and softer than the traditional law school pro-gram. It is building on and supplementing,rather than departing from, the traditionalstrengths of legal education. It is keeping thehard, the rigor, and making it more effectiveby providing the constant, constructive feed-back of leadership education and law practicewhile keeping its students engaged through-out all three years of law school.

Think about how we learn in law practice.Jeff Kinsler, who’s leaving the deanship atAppalachian Law School to join Elon’s facultyin January, graduated first in his class at lawschool, but says he never learned to write untilhe started practicing law. That was because, asan associate in law practice, when he wroteand turned in a pleading or memorandum,his senior partner marked it up and had himdo it again until it was perfect, certainly theequivalent of an A answer in law school. Ifthat is what is required in law practice, whereat its best we give new lawyers the feedbackthey need to produce perfect work products,why not in law school?

The major reason is that for the purpose ofgiving and receiving feedback the associate-partner ratio in law firms is far superior to thestudent-faculty ratio in law schools. The sec-ond reason is that keeping law studentsengaged and giving this kind of constant, con-structive feedback is hard work: the soft stuffis the hard stuff.

With the help of a host of Triad lawyers,Elon is attempting this hard work, which gen-erates an educational program with ten keydifferences from other law schools.

1. Importing the best of leadership edu-cation into legal education. Most lawyeringskills and leadership skills are the same skills,employed to focus resources to create desir-able opportunities and outcomes. The mostimportant foundational attributes for compe-tence as lawyers and leaders are knowledge ofself, others, and the environments in whichthey operate. Elon’s first-year students had anextended orientation that included not only

an introduction to law school and to legalmethod, but also leadership modules thattaught them things about themselves and oth-ers that will make them better law studentsand lawyers. Assessments for developmentinstruments used in CCL’s programs wereparticularly helpful in this regard.

2. Bringing new skills to the faculty. Mostlaw school faculties do not possess an idealskills mix to prepare their students to enterlaw practice. Perhaps one reason law schoolshave not expanded their approaches is thatthey lack the expertise to do so. Elon hasdecided to bring new skills to the faculty,employing legal education’s first executivecoach in residence. Bonnie McAlister, whohas taught at CCL and Davidson College,coaches students and faculty in leadership andcommunication skills. Marty Peters, chair ofthe Association of American Law SchoolsAcademic Support Section, serves as an aca-demic coach, and Jim Exum, former ChiefJustice of the North Carolina Supreme Court,is Elon’s first distinguished jurist in residence.

Elon is also developing new skills for exist-ing faculty. To create shared knowledge aboutleadership development and assessment fordevelopment, and to improve their own skills,all faculty members attend CCL’s LeadershipDevelopment Program (LDP) before assum-ing their duties at Elon. The faculty alsodevotes substantial time to improving itsteaching and to research concerning teaching,learning and the acquisition of competence.Visiting Professor of Law Steve Friedland andPeter Felten, Director of Elon’s Center for theAdvancement of Teaching and Learning, arenational experts who are leading this effort inthe school of law.

3. Providing constant, constructive feed-back. Elon endeavors to provide its studentsmore feedback than other law schools. To gaina realistic picture of how they might performas lawyers, students should receive feedbackon all aspects of their performance, not justhow well they do in ordering informationwithin a three-hour time frame in answeringlaw school examination questions. While per-haps not keeping them out of the BrambleBush, feedback at Elon lets students knowthey might go blind, why they’re going blind,where the thorns are, and how to form theneuronal pathways that will allow them to seesooner. With respect to feedback that will pre-pare them for their fall semester exams, they’vehad a mid-term exam in Civil Procedure inOctober, and they will have had a series of

practice exams in their other courses to pre-pare them for finals in December. Whilemany schools have practice exams, few pro-vide feedback to the extent Elon gives its stu-dents before their final exams.

4. Using final examinations as assessmentfor development instruments and rewrites toattain mastery of material. Elon has a three-week winter term in January, which studentswill use to rewrite any December final examanswer that did not reach an A level, just asJeff Kinsler and we had to rewrite our work inpractice. They will have to attain that A levelon their rewrites to demonstrate mastery ofthe course material and to advance to thespring semester.

Using examinations as assessment fordevelopment purposes is not really as novel asit sounds. Think about your final exams inhigh school and college. Most of us neverreviewed our final exams unless we thoughtthe teacher might have made a mistake ingrading them. But mid-term exams were dif-ferent, if we knew that material on those testswas going to be examined again on the finalexam. Almost all of us would look at thosetests to refresh our recollection about what weknew and to learn what we did not know.

Well, for a lawyer, the real final exam is lawpractice, which makes a law school course’sfinal exam like a mid-term. While Elon stu-dents will not have to rewrite answers that failto reach the A level in subsequent semestersthe first-year winter term experience willequip them to self-evaluate subsequent exams.For exams in the second through fifth semes-ters, they will be asked to review their examsand write brief analyses of what they knewand did not know, why they knew and didnot know different aspects of the course, andwhat their plans are for learning what they didnot know before they start practicing law.

5. Involving the bar in creating aPreceptor Program. Elon’s is an intense edu-cational program, and to help Elon’s studentsdeal with its intensity, 53 practicing lawyershave volunteered to create what is believed tobe the first law school Preceptors Program.Each preceptor is assigned two or three stu-dents. Every other week these preceptorsobserve their students in class and give themfeedback on their preparation and perform-ance.

The Preceptor Program is undoubtedlyElon’s most important innovation. That thismany lawyers would not only be willing tospend this much time with Elon’s students,

16 WINTER 2006

but also to spend another six hours in precep-tor training, and that dozens of other lawyershave volunteered to invite Elon law studentsinto their offices to observe interviews, nego-tiations, mediations, and depositions, is sym-bolic of the ideals of our profession.

There’s nothing quite as wonderful for lawstudents than being around real lawyers in alaw school setting. Every Thursday afternoonat 4 o’clock Elon has a tea for its students andfaculty and the bar. Elon will endeavor to pro-vide free CLE to the bar before one of theThursday teas each month.

6. Adopting graduate school gradingstandards. Most law schools have adopted defacto graduate school grades, giving almost allA’s and B’s to their students, but they have notadopted the rigor of graduate school gradingthat requires a B average to receive a graduatedegree. Some students at these schools aremisled into believing they are performing sat-isfactorily because they are receiving C’s, onlyto learn of the profession’s expectations whenthey fail the bar exam. Once they understandwhat is expected of them, they study harderthan they did in law school and pass the barexam. Requiring B’s as the measure of satis-factory work should preserve rigor and dis-courage disengagement at any point in lawschool, and Elon has adopted that graduateschool grading standard.

The Second and Third Years of LawSchool at Elon

The second and third years are also a bitdifferent at Elon. Four initiatives are worthyof mention.

1. Structuring the curriculum to main-tain student engagement and enhance com-petence. Elon has analyzed the elements ofknowledge and skill, doctrinal and general,technical and interpersonal, that lawyers needto function competently in their roles as ana-lysts, advocates, and counselors. Its upper levelcurriculum will be structured to require thateach student acquire a foundation that willequip that student to master whatever field orfields of law the student selects as a life’s work.Each student will be required to select at leastone of four upper level concentrations: busi-ness, litigation, public interest, or generalpractice. Each concentration containsrequired courses and electives that will keepstudents engaged throughout their three yearsat Elon.

2. Requiring international awareness.Elon is structuring a required second year

course that will orientstudents to globallegal, social, and eco-nomic environmentswhile providingoverviews of compara-tive, public, and pri-vate international law.The winter term dur-ing the second andthird years may be uti-lized for foreign traveland study.

3. Providing a cap-stone leadership expe-rience in the thirdyear. Elon’s law schoolis located at the centerof a diverse urban net-work of state and fed-eral courthouses andgovernment offices,businesses, and non-profits that provideunusual opportunitiesfor civic engagementand public service.Before they graduate,Elon law students willbe required to plan,implement, evaluate, and report on a cap-stone leadership experience of their owndesign, where they have attempted to makesomething happen to improve the law school,the legal order, or some other aspect of theworld.

4. Being committed to the optimumdevelopment of each and every law student.The single best predictor of success in lawpractice is one’s attitude toward one’s studiesin law school, not one’s class rank.Nevertheless, law schools sometimes commu-nicate to the bottom three-fourths of the stu-dent body, perhaps the bottom 90% at someschools, that they are not valued intellectuallyby many of their faculty members. Threeyears ago I communicated that thought to adistinguished judge, the recent recipient of hisschool’s distinguished alumnus award, after hehad appeared on a panel at a national meetingof legal educators. His face lit up as if he hadbeen waiting 30 years to hear that admissionfrom someone in the academy. He replied,“Leary, I worked hard all three years of lawschool, but I never got out of the bottom halfof my class. I knew I was going to be a goodlawyer, but I had to do it all by myself.” No

one who pays tuition to join the professionshould have to feel that way, and Elon’s teamof faculty, coaches, and preceptors are dedicat-ed to the proposition that no one will feel thatway at Elon.

Legal education and the legal professionface interesting times in the next quarter-cen-tury. Elon’s model of engaged learning shouldposition it to lead constructive change in theprofession and in legal education.

Elon’s faculty knows that they cannotestablish a national model of engaged learn-ing. However, they believe that they, plus thelawyers of North Carolina, those who serve aspreceptors and those who support Elon’s workin other ways, can establish this much neededmodel.

Come to Greensboro for a Thursday tea,look over Elon’s H. Michael Weaver Building,and let’s talk about it.

Leary Davis is dean and professor of law atthe new Elon University School of Law. He wasalso founding dean of Campbell UniversitySchool of Law, and before that practiced law inWake County. He holds law degrees from WakeForest and Columbia.

THE NORTH CAROLINA STATE BAR JOURNAL 17

18 WINTER 2006

When asked about this politician, theold farmer said that he is just like a “postturtle.” I asked him to explain to me whathe meant. This is what he said, “Whenyou’re driving down a country road andyou come across a fence post with a turtlebalanced on top, that’s a ‘post turtle.’”The old man saw a puzzled look on myface, so he continued to explain abouthow the Washington politician was like a“post turtle,” “You know, he didn’t getthere by himself, he doesn’t belong there,he doesn’t know what to do while he’s upthere, and you just want to help thedummy get down.”

Thank you also for inviting me to bewith you today. I am always happy to bein the Queen City. My grandfather usedto own a laundry just down the street andwas treasurer of Meyers Park PresbyterianChurch for 40 years, I went to college atDavidson, and my daughter currentlylives here, so I feel connected to Charlottein many ways.

Speaking of my grandfather, those whohave heard me speak know I always beginmy speeches with an old Scottish prayermy grandfather taught me. It goes likethis: “Lord, make them like me and ifthey don’t please afflict them in some way

so that when they leave I will know whothey are.”

I am delighted to be with you tonightto celebrate and recognize public serviceby legal professionals. I want to particu-larly hold up and congratulate thoseamong us who serve the public throughelective office. I want you to know that Ithink I can speak for all of us here tonightin saying that we appreciate your willing-ness to go through what it takes to getelected and to put up with what you musttolerate once you are in office. It is notuncommon for you to be attacked and vil-ified by opponents. I can only urge you toremember the words of Dr. FrankGraham, former president of theUniversity of North Carolina and a mem-ber of the US Senate, who said whenattacked in his race for the Senate, “I shallnot bend to the power of those who makethe attack, but seek sympathetically tounderstand them.”

I was asked to speak tonight about thestatus and needs of our judiciary. Before Iget to that topic, I want to commend eachof you for your dedication to public serv-ice and service to your profession. I amcertain you have all committed manyhours to serving your community andyour fellow residents and you do so inexceptional ways. You make a differencein individual lives, but also in the life ofyour community. You have seized uponwhat I think is one of our basic humanresponsibilities—to serve our fellow manand woman and make the places we livebetter. It is also folks like you, who com-mit themselves to serving others, whomake the great experiment in democracywork. And, as Winston Churchill said,“Democracy is the worst form of govern-

Our Judiciary Under Attack—ACall to Service

B Y T H O M A S W . R O S S

Thank you for your kind introduction! I

appreciate Ron mentioning some of my

awards. I used to say when asked about the

awards that I have received that I was like a

“turtle on a fence post”—I didn’t get there by myself. But, that was before I was talking to this

old farmer about a particular politician in Washington—I’ll let you fill in the name of anyone

you want.

The following remarks were made by Thomas Ross on April 20, 2006, at the quarterly meet-ing of the State Bar Council.

THE NORTH CAROLINA STATE BAR JOURNAL 19

ment except for all the rest.”As people and lawyers committed to

service, whether in government, the non-profit sector, community organizations,or your profession; however, I would liketo ask even more of you. I ask you tostand up for democracy and for our formof government which I feel is under sig-nificant stress. Allow me to explain.

We would all agree, I think, that therule of law not only provides order to gov-ernment, but is a tool for positive socialchange. As lawyers, you and I have theopportunity to help people, to changepeople’s lives, to help our nation live up toits promise of justice for all. I believe that,among the three branches of government,the judicial branch is the one which mustmaintain greatest credibility, and whichmust provide the people with the greatestsense of security that they are truly equalunder the law. This has been part of ourcollective psyche since the very begin-nings of this nation. It is the judiciary thatprotects our rights—particularly therights of the minority. The majority needsthe judiciary less. After all, it has protec-tion of the elected legislative and execu-tive branches. The minority depends onthe judiciary and this is even more of areason we need to protect the independ-ence of the judiciary—so the courts candecide the issues that are not necessarilysupported by the majority and, thus, maybe unpopular. The rule of law dependsupon the respect the public has for theintegrity with which our laws are inter-preted. The credibility of the courts iswhat allows the rule of law to continueand anarchy to be avoided. As GeorgeWashington wrote during his first term inoffice, “The administration of justice isthe firmest pillar of government.”

Friends, I believe our democracy is atrisk. I am not trying to sound alarmist.But the fact of the matter is that one ofour branches of government is underattack, both directly and indirectly, and

the very separation of powers that haskept our democracy alive and vigorous isin jeopardy.

First, allow me to discuss briefly thedirect attacks. I gave a speech at Law Dayhere in Charlotte last year. I quoted atlength direct attacks on the independenceof the courts from many politicians inboth parties. I won’t take time to repeatthose words tonight. We all have heardthem and know the judiciary is, at times,being used as a whipping boy by publicofficials and opinion leaders who believethat the way to move their agenda forwardis to chastise, threaten, and bulldoze thiscountry’s system of justice.

The point is, however, that the con-stant, degrading, and sometimes personalattacks on judges and the judiciary bypolitical and other leaders are slowly erod-ing the credibility of the judiciary and willultimately, I fear, undermine the rule oflaw. We cannot let the desire of a few toobtain their own desired short-term out-comes destroy the fabric of our constitu-tionally created institutions.

As lawyers, as people who believe inthe system of justice, you and I have anobligation to speak out against thesewords and this conduct and to constantlyeducate the public and politicians aboutthe value and importance of an independ-ent judiciary that can impartially resolvedisputes based on the law and facts andnot under threat, duress, or coercion.

Quoting the 1935 case of Humphrey’sExecutor v. United States, Judge Birch ofthe Eleventh Circuit in his opinion in theTerry Schaivo case said, “the Constitutionmandates that each of the three generaldepartments of government must remainentirely free from the control or coerciveinfluence, direct or indirect, of either ofthe others.”

The rhetoric of those who want to con-trol the third branch of government toadvance their own agenda is not the onlydanger to judicial independence. Let me

quickly mention a few more. Judicial selection and campaign

financing are still problems in our state.Judges must not only be impartial andfair, they need to appear to be impartialand fair.

Campaign contributions are a prob-lem. There is no way around it. A systemthat requires judges to raise money, mostof which comes from those who have aninterest in the cases that come before thejudge, puts great pressure on the ability ofjudges to be impartial and, I believe,makes it nearly impossible for them to beseen by the public as always impartial.

Fortunately, North Carolina has enact-ed public financing for appellate electionsand this change appears to have beensomewhat successful last year. It is, in myview, a positive step for good governmentin North Carolina.

Also, as someone who ran statewide ina partisan election and in a district-widepartisan election for Superior CourtJudge, I can say I think we have made avery positive step in the right direction byenacting non-partisan elections for alljudges in this state. I think this system isan improvement and is generally workingwell at the trial court level. We have fewercontested elections and the amount ofmoney invested in those elections is onthe decline.

I am not sure the non-partisan systemis working as well at the appellate level,but I think it is still better than what wehad before. Over time, I hope candidateswill not run on party labels, but insteadwill focus on their qualifications. I com-mend Judge Howard Manning for takingthis principled stand in the last election.

I remain convinced that elections arenot the best way to select and retainjudges. Judicial independence requires, inmy view, that we appoint judges. Withthat change, I think we should institute asystem of review and retention that isbased on the quality of a judge’s work, his

This problem ... is exacerbated by legislators who get angry with the courts over particular decisionsand use this as an excuse for not properly funding the courts. Whatever the cause, court funding inNorth Carolina is reaching crisis dimensions and the credibility of the courts is suffering as a result.

20 WINTER 2006

or her work ethic, demeanor, and prompt-ness because it is important that there bea means of holding judges accountable.

Lack of diversity on the bench alsoputs judicial independence at risk.

Many of you have heard me talk aboutthis issue before. Why do I think it is soimportant? It is because of the way grow-ing numbers of Americans see our justicesystem. Increasingly, there are large seg-ments of our society that no longerbelieve the courts are fair to everyone.There is a belief by many of our citizens,both among whites and people of color,that justice is available only to whites andto the wealthy.

Many citizens do not feel the poor geta fair shake and they believe the systemdiscriminates against people based oninappropriate factors, including race andethnicity. These are concerns we don’t liketo hear about. These are things that areuncomfortable to talk about, particularlyfor those of us who are white and well offeconomically. Some believe these are onlyproblems of perception and have no basisin fact. I, however, believe they are real.

Our state and nation are becomingincreasingly diverse. Our populationlooks much different than it did ten yearsago and it will be even more diverse inanother ten years. If we want our justicesystem to enjoy the confidence of thisdiverse population, the system must pro-vide the real opportunity for all people tosee themselves in the mirror when theylook at the judiciary. No longer can weafford to have only a small percentage ofour judges made up of people of color andwomen. The judiciary must reflect thepopulace it serves. As President FranklinD. Roosevelt said, “Among American cit-izens there shall be no forgotten men (andI am sure he would include women) andno forgotten races.”

The final issue that I believe directlyimpacts judicial independence is fundingfor the courts. I’m sure you would expecta former director of the AdministrativeOffice of the Courts for the state to raisethis issue, particularly when there are leg-islators around. My experience in Raleighonly strengthened the views I held previ-ously and continue to hold. If you don’tprovide the courts with adequateresources so they can do their job withoutundue delay, the public will lose confi-

dence in the system. We have seen thishappen when business litigants hire a “pri-vate judge” so they can get their case dis-posed of without waiting several years.Most people who come into the systemdon’t have that option. If folks see a sys-tem that is way behind, if they hear lawenforcement officers say we don’t arrestfolks for many misdemeanors because weknow the courts are too busy to fool withthem, and if these people can’t get theservice they need from the Clerk’s Office,they lose confidence in the system. Andwhen that happens the credibility soessential to maintaining the rule of lawtakes a hit.

This problem has been caused in partby recent budget problems, but it is a longterm, chronic problem. It is exacerbatedby legislators who get angry with thecourts over particular decisions and usethis as an excuse for not properly fundingthe courts. Whatever the cause, courtfunding in North Carolina is reaching cri-sis dimensions and the credibility of thecourts is suffering as a result.

So, back to what I ask of you regardingthese issues.

I ask you to support efforts to move toan appointment system for selectingappellate judges. This is a change longoverdue which, in my view, has growingsupport and more likelihood of successthan at any time in recent history.

You can continue to support the pub-lic financing system in North Carolina bychecking off the box on your own taxreturns that allocates $3 to the pubicfinancing fund and urging your clients todo the same. It may be too late for most ofyou this year, but some, like me, had toget an extension and may still have thechance. But, we can all remember tocheck off next year.

You can support and encourage peopleof color and women in the profession toseek positions on the bench. It may meansome of us white guys have to be willingto step aside for the good of the system welove. This may be a personal sacrifice, butit is, in my opinion, right and better forthe common good if we are to build adiverse judiciary that reflects the society itserves. I commend Judge Bill Reingold inWinston-Salem who recently changed hismind and decided not to run for theSupreme Court against Justice Patricia

Timmons-Goodson because he believes indiversity on the bench.

You can support increases in courtfunding. Speak out about how the under-funded system causes delays and backlogsthat are hurting your clients, your com-munity, and your practice.

Work with the business community tohelp them understand the need for astrong, well-funded, independent judici-ary. Encourage legislators to do what isneeded and what is right by the thirdbranch.

Finally, you must speak out! As MartinLuther King said, “Our lives begin to endthe day we become silent about thingsthat matter.” If lawyers don’t care enoughabout the rule of law and an independentjudiciary to protect and defend it, whowill? It is your responsibility and mine tostep up to the plate and offer a strongdefense of our justice system and the needto protect its independence.

Speaking up on these issues is, in myview, part of your public service.

Many of you are familiar with MarianWright Edelman, the first AfricanAmerican woman accepted to the StateBar in Mississippi and now the director ofthe Children’s Legal Defense Fund. Whenit comes to public service, she offers thesewords: “Service is the rent we pay forbeing. It is the very purpose of life, andnot something you do in your sparetime.” I think she hit the nail on the head.

Let’s keep paying our rent every day. Thank you for allowing me to speak

with you tonight and please rememberthat Scottish prayer when you leave.

Thank you!

Thomas Ross is the executive director ofthe Z. Smith Reynolds Foundation inWinston-Salem, North Carolina. He hasbeen with the foundation since 2001.Previously, he was the director of the NCAdministrative Office of the Courts; a NCSuperior Court Judge; chair of the NCSentencing and Policy AdvisoryCommission; administrative assistant to for-mer Congressman Robin Britt (D-NC); apartner in a Greensboro law firm; andassistant professor at the Institute ofGovernment. He earned a BA fromDavidson College in 1972 and his JD withhonors from UNC-CH School of Law, in1975; National Judicial College, 1985.

22 WINTER 2006

I am a three term elected district attorney,and past-president of the North CarolinaConference of District Attorneys. I waspleased that Mr. Klinkosum and Mr. Bannon,unlike many who discourse about NorthCarolina prosecutors’ evidence disclosure obli-gations, avoided the incorrect and unfoundedblanket assertion that North Carolina prose-cutors who do not disclose certain evidenceunder the Brady cases are automatically engag-ing in prosecutorial impropriety or “prosecu-torial misconduct.” This is a dangerously irre-sponsible assertion many seemingly seriousdefense attorneys cavalierly toss out withoutmuch apparent thought.

The authors, however, have apparentlymade the same substantial error in their analy-sis and description of the Brady requirementsof disclosure, that the vast majority of defenseattorneys who write on the subject make. All

impeachment evidenceis simply not requiredto be disclosed. Giglio v.US1 and subsequentcases are crystal clear instating that only materi-al evidence (whether impeachment evidenceor other) is required to be disclosed. Giglioand Napue v. Illinois2 hold, as the authors stat-ed: “that when the reliability of a given witnessmay be determinative of guilt or innocence...”the evidence affecting credibility of the wit-ness must be disclosed per Brady, as “exculpa-tory.”

Clearly none of the cases have changed theinitial “materiality” requirement established inthe 1963 decision of Brady v. Maryland:3

We now hold that the suppression by pros-ecution of evidence favorable to an accusedupon request violates due process where

evidence is material either to guilt or topunishment, irrespective of the good faithor bad faith of the prosecution. [emphasisadded]This is a critically important point and dis-

tinction because it can lead to the above-men-tioned unfounded accusation of prosecutorialmisconduct when not properly understood.

Under the cases involving the Brady dis-closure requirements, as evolved throughtoday, prosecutors must determine if evidenceis first “favorable.” Next, is that favorable evi-dence “material”? All favorable evidence is notnecessarily material. Only evidence favorable

Disclosure under Brady v.Maryland—A Prosecutor’s View

B Y J E F F H U N T

Like many, I carry around each respective issue

of the North Carolina State Bar Journal until

I have time to sit down and read it. I have just

completed the article written by attorney

Mike Klinkosum of the capital defender office and criminal defense

lawyer Brad Bannon entitled “Brady v. Maryland and its Legacy—

Forging a Path for Disclosure” in the Summer 2006 Journal.

SIS/Bruno Budrovic

and material is required to be disclosed underthe due process analysis established in thesecases. This is true whether it is impeachmentevidence or other evidence.

Under the cases, only impeachment evi-dence which relates to a witness whose testi-mony “may be determinative of guilt or inno-cence” is required to be disclosed by prosecu-tors. This is simply another way of stating thatthe evidence (impeachment or other) must bematerial and favorable to the defendant beforeits non-disclosure constitutionally violatesthat defendant’s due process.

The significance of this is simply that,under the Brady line of cases, in deciding whatis required to be disclosed, the prosecutormust apply his/her good faith discretion bydetermining the favorability and materialityof the evidence. It is misleading at best toclaim: “Impeachment Material is ExculpatoryEvidence” (one of the section headings of theSummer 2006 Journal article) and thereforenecessarily must be disclosed. Only materialand favorable evidence can be exculpatory andtherefore, must be disclosed.

The problem is that these kinds of mis-leading descriptions of the Brady require-ments lead the public often to erroneouslyconclude that, even when a prosecutor applieshis/her good faith discretion and determinescertain evidence is not subject to disclosurebecause it is not material and favorable, theprosecutor has engaged in “prosecutorial mis-conduct” per se. The unique responsibilities ofthe prosecution in searching for the entiretruth on the one hand, while acting as theprosecuting advocate on the other, are diffi-cult enough without having the “misconduct”label hung around his/her neck for the simpleexercise of good faith discretion required to beapplied by the Brady line of cases.

Justice Souter in the Kyles v. Whitley4 opin-ion gets very close to the crux of the entirematter with a few succinct statements.

…The Constitution is not violated everytime the government fails or chooses not todisclose evidence that might prove helpfulto the defense [citation omitted]. We havenever held that the Constitution demandsan open file policy (however such a policymight work out in practice), and the rulein Bagley (and hence in Brady) requires lessof the prosecution than the ABAStandards for Criminal Justice, which callgenerally for all prosecutorial disclosures ofany evidence tending to exculpate or miti-gate. [emphasis added]

In describing this required application ofgood faith discretion by prosecutors seekingto apply the dictates of the Brady line of casesso as not to violate the defendant’s dueprocess, Justice Souter added:

This means naturally, that a prosecutoranxious about tacking too close to thewind will disclose…[citation omitted](The prudent prosecutor will resolvedoubtful questions in favor of disclosure.)This is as it should be. Such disclosure willserve to justify trust in the prosecutor as therepresentative…of a sovereignty…whoseinterest… in a criminal prosecution is notthat it shall win a case, but that justice shallbe done. [emphasis added] The good faith non-disclosure of evidence

(impeachment or other) by the prosecutor forreasons of immateriality or unfavorability tothe defendant cannot, and should never bereferred to as prosecutorial misconduct.Likewise, absolute statements that the Bradyline of cases require disclosure because, forexample, “Impeachment Material isExculpatory Evidence,” without mention ofthe sometimes confusing “materiality” and“favorability” analysis required of the prosecu-tor under the Brady line of cases should beavoided.

In 2004 representatives of the NorthCarolina Conference of District Attorneys,Attorney General’s Office, North CarolinaAcademy of Trial Lawyers, and the IndigentDefense Services Agency hammered out anew criminal discovery bill which essentiallyenacted a statutory “open file” discovery lawfor North Carolina. While it needs some “finetuning” (protections from disclosure of cer-tain confidential informants and identifica-tion information of certain victims need to beenacted), the law for practical purposesrelieves the prosecution from a large part ofthe torturous above-referenced analysis andthe “…tacking too close to the wind…” men-tal process foisted upon prosecutors by theBrady line of cases which Justice Souter soaptly described.

To be certain, the prosecutors must in allcases apply the Brady line of cases along withthe new North Carolina discovery statutebecause in the rarest of cases the Brady line ofcases might require the disclosure of some-thing which the new discovery statute mightmiss. However, in practical terms, it is difficultto imagine what might fall into this category.

In the future, prosecutors will find severalthings to be true:

1. The Brady line of cases when, closelyexamined, will be found to require disclosureof almost everything now required by the newNorth Carolina discovery statute.

2. The new discovery statute in our statevirtually relieves prosecutors of having tobecome enmeshed in the nearly super-humandetermination of what can and cannot bewithheld from disclosure under the Bradyanalysis.

3. The state will save virtually millions oftax dollars by vastly reducing the number ofappellate cases reversed because a well-mean-ing prosecutor failed to disclose certain evi-dence (impeachment or other) which he/shedetermined to be unfavorable or immaterialor both; but which a panel of judges or jus-tices later determined was required under dueprocess to be disclosed.

4. Far fewer prosecutors will be called totestify about their disclosure/non-disclosureanalyses years afterward at motion for appro-priate relief hearings.

5. The new discovery statute will virtuallydissolve even the slightest argument thatmight have been assembled to justify a deathpenalty moratorium. Under the new discov-ery statute we have simply moved the “openfile” complete disclosure requirements whichalready existed after the defendant’s conviction(e.g., motion for appropriate relief practice inNorth Carolina) to a point in time prior to thetrial. This in turn eradicates an entire line of“fairness” complaints once marched out insupport of efforts to appeal or succeed at themotion for appropriate relief level.

Thanks to attorneys Klinkosum andBannon for their well-drafted article withthese gentle caveats.

Jeff Hunt is in his third term as district attor-ney of the 29th Prosecutorial District, andrecently won re-election. Hunt was president ofthe NC Conference of District Attorneys the yearthe discovery bill was passed, and was thereforechairman of the negotiating team who ham-mered out the precise language.

Endnotes1. Giglio v. US, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed.

2d 104 (1972)

2. Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L.Ed. 2d 1217 (1959)

3. Brady v. Maryland, 373 U. S. 83, 83 S. Ct. 1194, 10 L.Ed. 2 d 215 (1963)

4. Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L.Ed. 2d 490 (1995)

THE NORTH CAROLINA STATE BAR JOURNAL 23

24 WINTER 2006

Q: Please talk about John Hart.I was raised in Salisbury, received my sec-

ondary education at Woodberry Forest, myundergraduate degree from Davidson, andmy law degree from Franklin Pierce LawSchool in New Hampshire. I have a mastersdegree in accounting and have worked as anattorney, accountant, and stockbroker. Part ofmy youth was spent working on (and flying)helicopters in Alaska, tending bar in aLondon pub, and living for eight months inFrance. I think I liked the pub work the best.

I am happily married and we have twodaughters. Without the strong support offamily, friends, and even some strangers, Iwould not have had the wherewithal to pur-sue the dream of writing full time. I considermyself blessed to have had such good fortune.Q: Why a murder mystery for your firstnovel and rural North Carolina as your set-ting? Also, do I detect some Faulkner-typecharacters running through your book?

The King of Lies is much more than a mur-der mystery, although the murder of the pro-tagonist’s father is the major plot point of thebook. Rather, the growth of Jackson

Workman Pickens, known as “Work”to all, from a courthouse drunk to aman of conscious reflection, was my aim.The protagonist suffers from the same ills asmuch of society and a lot of the book is aboutfinding the strength to recognize what hetruly values and then leveraging that aware-ness to pull himself up by his bootstraps. Itried to ground it in what criminal defenselawyers see every day, the theater of the real.Chronic defendants, jaded lawyers andbailiffs, all of whom pretty much know whois guilty and who is innocent. Small townscan be the home of the rich, the want-to-berich, and the poor. Work learns that his priv-ileged upbringing means nothing when thetables turn and “society” passes judgment.Being cast out hurts, but it also opens newwindows of perspective. In the end, that’swhat saves him.Q: You have not mentioned redemption buthave hinted at the same.

We see Work in many states: as an unsuc-cessful, hard-drinking lawyer, a defendant inthe murder of his father, the big brother of adisillusioned sister, and a mentally clean and

sober man. Along theway, he leaves his wife, finds adultery sur-rounding him, and learns some hard truthsabout murder, friendship, family, and evenhimself. There is so much more to tell butthen, I might ruin the book for future read-ers.Q: Just how hard was it to get published?

WHEW! I found out early on that youjust cannot call up Random House orDoubleday or St. Martin’s press and tell themthat you are an unknown/inexperiencedwriter and that you have a book for them toread. The laughter can be heard around theworld. You must find an agent with a passionfor your work. He must have ample experi-ence and the good will of editors at majorhouses. No editor will look at your work if heor she doesn’t respect the agent. The editor, inthe end, must share the same passion, seesomething in your work that makes it standout from the other hundred manuscriptscrossing his desk that week. In the end, every-one has a stake in the book’s success: author,

An Interview with John HartB Y J O H N E . G E H R I N G

My interview with John Hart took place on the

Olde Beau Golf Course in Alleghany County.

We agreed to play until we had finished 18

holes or lost 18 balls, whichever first occurred.

Since this interview, I have been humming the tune “to dream the impossible dream”

repeatedly. John Hart has a dream, and the dream is coming to fruition.

THE NORTH CAROLINA STATE BAR JOURNAL 25

agent, and editor. The process can take a longtime, and be very frustrating. Rejection is abig part of it.Q: It seems that you are now off and run-ning! Can you tell the readers how manybooks have been printed? Also, how did youobtain the front page endorsement from PatConroy?

The first printing was 75,000 books. It isnow in its fifth printing. Rights have beensold in about 15 countries, with translationsinto 12 foreign languages. None of the for-eign publishers have released the book yet.However, it is also a featured selection of theMystery Guild, The Book-of-the-MonthClub, The Literary Guild, and theDoubleday Book Club. They print their ownbooks, and I have no idea how many they’veput out there. Movie rights have beenacquired and hopefully you will see The Kingof Lies on the big screen.

I met Pat Conroy at an author’s event inCharleston. A mutual friend introduced us. Itold him that he was an idol of mine and thatI would be honored if he would read mynovel. He read the book and consented towrite the “blurb” on the front cover. Gettingto know him has been one of the highlightsof this entire process.Q: Speaking of the front cover, is the build-ing pictured thereon a Southern mansion ora courthouse?

I’ll let you and my readers figure that out.What the Southern mansion and what thecourthouse represent play a large part of thestory. Your imagination will take you in dif-ferent directions as you read The King of Lies.Q: What is next for John Hart?

I am working on my next novel whichwill be released in the fall of 2007. The pro-tagonist will not be a lawyer. This story focus-es on the other side of the spectrum, namelya young man hounded out of town five yearsearlier after narrowly beating a murdercharge. Now he’s back, and no one knowswhere he’s been or why he’s come home.Suffice it to say, bodies start piling up.

Also, I am working to improve my golf,especially on mountain courses. And, I stillhave some of my 18 golf balls left!

John Gehring graduated from theUniversity of North Carolina with undergrad-uate and law degrees. His postgraduate workwas done at the Hague Academy ofInternational Law and the University ofAmsterdam, both located in the Netherlands.

He practices law in Walnut Cove, NorthCarolina, and specializes in criminal defense.

His international law training fell by the way-side.

The King of Lies. By John Hart. St.Martin’s. 310 pages. $22.95.

It’s been a busy spring, so busy thatwhen I finally grab a few moments witha novel at the end of the day, I usuallynod off before I can find the passage Iwas reading when the book slipped outof my hand the night before. With mostbooks, I long for a list of characters anda plot summary to refresh my memory; acomputerized “search” function wouldreally help. It can take a long time to fin-ish a novel when you have to read pagesover and over again.

So I am offering a high tribute to JohnHart, North Carolina’s latest literary sensa-tion, when I say that I read his novel TheKing of Lies in a couple of nights, sitting uplater than I should, turning just one morepage. And then one more. No backtrack-ing; no repeats.

What an impressive first novel this is;heck, it would be impressive if it wereHart’s fourth effort, or his 22nd. No won-der the publisher is giving it a big debut,and early reviews are glowing.

The King of Lies is one of those finebooks that is both a grippingmystery/thriller and a fully fleshed,thoughtful work of literature. Set inSalisbury, it has the added bonus of beingin the best traditions of Southern fiction—family ties and secrets, violence simmeringbarely beneath the surface, lush descrip-tions, a strong sense of place. The prose islush and poetic without being overdone orself-indulgent.

This is the story of Jackson WorkmanPickens, known to most people somewhatironically (he concedes) as “Work.” Whenwe first meet Work, we learn that he’s theson of a powerful, ruthless, and rich small-town lawyer. Work has limped along in hisfather’s footsteps, taking up his professionbut without the same enthusiasm orresults.

His disenchantment with the legal pro-fession is far from Work’s only problem.

His marriage to a socialite is in a slow,painful, downhill slide. The unsuitablewoman he didn’t marry is still the one heloves.

Their father’s overbearing cruelties havebadly, maybe permanently, damagedWork’s only sister. And one shatteringnight a year earlier, their mother died in afall, and their father disappeared.

Now, with the discovery of his body,their father’s disappearance has become amurder case. And before long, Work findshimself high on the list of suspects. Heknows he didn’t kill his father, but he’s hes-itant to try to clear himself by finding outwho did. He’s afraid that his fragile sistermight finally have been pushed too far.

It doesn’t take much poking around inthe past to crack the thin veneer of polite,upper-crust Southern society and exposesome gritty secrets.

In less skilled hands, this story mightbecome melodramatic. But John Hartkeeps his plot and his prose under the kindof taut control that evokes the image of askilled rider and a spirited racehorse.

Hart’s characters are complex andachingly human. As the book progresses,Work learns a great deal about the past andhis family. Even more important, though,is the understanding he gains about him-self. The more Work confronts his ownfailings, the more honestly he looks atwhere he’s been and where he wants to go,the more the reader identifies with andcares about him. Here is a man forcedfrom his quiet desperation, a man at a cru-cial turning point.

Don’t miss this book. The only prob-lem with taking The King of Lies on vaca-tion is that you’ll finish it too soon. If youstart reading it on the beach, you’d betterload up on the sunscreen.

© 2006 Winston-Salem Journal.Reprinted with permission, all rightsreserved.

Linda Brinson is the Book Page Editor forthe Winston-Salem Journal.

Southern Mystery is Good Enough to be Called “Literature”B Y L I N D A B R I N S O N

26 WINTER 2006

The LAP and AddictionTreatment—Dogma vs. Science

B Y A L A N V . P U G H

“The worst of madness is a saint run mad.”-Alexander Pope

The New York Court ofAppeals, after a lengthy reviewof the texts and teachings ofthe “12 step” program of

Alcoholics Anonymous (AA) in Griffin v.Coughlin, 649 NYS 2d 903 (N.Y. 1996),cert. denied, 117 S. Ct. 681 (1997), con-cluded:

The foregoing demonstrates beyond per-adventure that doctrinally and as actuallypracticed in the 12-step methodology,adherence to the AA fellowship entailsengagement in religious activity and reli-gious proselytization. Followers are urgedto accept the existence of God as SupremeBeing, Creator, Father of Light and Spiritof the Universe. In “working” the 12steps, participants become activelyinvolved in seeking God through prayer,confessing wrongs, and asking for removalof shortcomings. These expressions andpractices constitute as a matter of law,exercise for Establishment Clause purpos-es,...AA books are overwhelmingly reli-gious and literally urge performance ofquite traditional devotional exercises inworking the 12 steps.Other appellate courts have concurred.

(See Kerr v Farrey, 95 F,3d 472 (7thCir.,1997), and Warner v. Orange County,115 F. 3d 1968 (2nd Cir., 1997) Also see TheRequisition of God by the State, 47 Duke LawJournal 785 (Feb. 1998). Yet as recently as theFall 2006 edition of this Journal, the directorof our Lawyers Assistance Program (LAP)flatly stated; “in fact and in theory AA is nota religion and promotes no religion.” He thenwent on to assert as an established fact thatchemical addiction is a disease.

The United States Supreme Court hastwice been confronted by cases in which alco-hol dependency as a disease was presented inmitigation, avoidance, or defense by litigants.Justice Marshall in declining to overturn lawspenalizing public drunkenness, found inPowell v. Texas, 392 U.S. 514 (1968), that:

Furthermore, the inescapable fact is thatthere is no agreement among members ofthe medical profession about what itmeans to say that “alcoholism” is a “dis-ease.” One of the principal works in thisfield states that the major difficulty inarticulating a “disease concept of alco-holism” is that “alcoholism has too manydefinitions and disease has practicallynone.”...Debate rages within the medicalprofession as to whether “alcoholism” is aseparate “disease” in any meaningful bio-chemical, physiological, or psychologicalsense, or whether it represents one pecu-liar manifestation in some individuals ofunderlying psychiatric disorders.Likewise writing for the majority in

Traynor v. Turnage, 485 U.S. 535 (1987),Justice White in refusing to overturn theVeterans Administration’s characterization ofalcoholism as a willful act, stated at pp. 550,552:

We are unable to conclude that Congressfailed to act in accordance with §504 inthis instance given what the District ofColumbia Circuit accurately character-ized as a substantial body of medical liter-ature that even contest the propositionthat alcoholism is a disease, much less thatit is a disease for which the victim bears noresponsibility...It is not our role to resolvethis medical issue, on which the authori-ties remain sharply divided.The LAP Director’s article further states

that, “AA is by far the most effective program

in helping those suffering from alcohol addic-tion stay sober.” Yet, Dr.William R. Miller,distinguished professor of Psychology andPsychiatry at the University of New Mexicofound in his Handbook of AlcoholismTreatment Approaches (Hester & Miller,2003), from an examination and comparisonof 381 research studies of 48 treatmentmodalities, that AA ranked 38th in effective-ness. In commenting on AA using its profes-sional moniker, “12-Step Facilitation,” whichhe described as “treatment-as-usual,” Dr.Miller wrote at p. 41:

The generic “Minnesota model” programthat continues to dominate US addictionstreatment is broadly characterized by amilieu advocating a 12-step philosophy,typically augmented with group psy-chotherapy, educational lectures andfilms, AA meetings, and relatively unspec-ified general alcohol counseling often of acontroversial nature. To fill in the com-plete set of treatment methods with theleast evidence of effectiveness, one needadd only videotape self-confrontation anda host of failed medications. The negativecorrelation between scientific evidenceand treatment-as-usual remains striking,and could hardly be larger if one inten-tionally constructed treatment programsfrom those approaches with the least evi-dence of efficacy.The LAP advocates abstinence as the only

stable outcome of an addiction treatmentprogram, but as Dr. Stanton Peele has point-ed out in his book, The Truth About Addictionand Recovery (Fireside, 1991), numerousresearch studies demonstrate that moderationis statistically a far more likely outcome forthose diagnosed as alcohol dependent thanabstinence.

What is going on here? The director and

THE NORTH CAROLINA STATE BAR JOURNAL 27

the people who run the Lawyers AssistanceProgram are good, well motivated individualscharged with the admirable goal of helpingattorneys overcome their addictions andassisting them with mental health issues likedepression.

Why do they seem to advocate absolutistpositions about which the experts in the fielddisagree?

Part of the answer lies in the practice andhistory of AA and the 12 steps, and the factthat many people employed in the addictiontreatment industry, and involved in our LAP,overcame their own addictions while practic-ing and participating in 12-step programs,primarily AA.

The 12 steps and the program ofAlcoholics Anonymous was developed andset out by William (Bill) Wilson, an alcoholdependent stockbroker, in a book publishedin 1939 entitled Alcoholics Anonymous (AAWorld Services). Mr. Wilson was a memberof an evangelical Protestant sect known as theOxford Group when he had his “white light”experience that spontaneously ended hisdrinking. Drawing heavily on the five steps topurity advocated by Oxford Group mem-bers, he developed 12 steps to form the basisof a recovery program he outlined in his “BigBook” (as it is called in AA circles). This workis widely available in libraries and bookstores,and has sold millions of copies over the years.

Even a cursory review of the “Big Book”will show that the capitalized word “God”appears on over 100 pages, and that althoughalcohol is mentioned in only one of 12 steps,God is mentioned in five of the steps. Itteaches acts and spiritual exercises quitefamiliar to most Christians including: recog-nition of the Deity (Step 2.); submission ofself-will to God (Step 3.); examination ofmoral faults (Step 4.); confession (Step 5.);absolution (Step 7.); atonement (Step 9.);prayer and mediation (Step 11.); and evan-gelism (Step 12.). It is really a quite conven-tional, albeit dated, faith based self-helpbook. The LAP in its “contracts” requires thatlawyers obtain a copy of “the Big Book,”study it, and attend numerous 12-step meet-ings.

What becomes apparent is that the realmessage of the “Big Book” is much morethan a program to stop drinking, it is nothingless than a program to live by, to practice theprinciples laid down as Mr. Wilson says, “inall our affairs” (Step 12). Adopting a beliefsystem grounded in the AA philosophy is

powerful psychological medicine indeed. It isa way of life. It is a manner of living and amatter of faith for those who stopped theiraddictive behavior after being introduced toits precepts. This is particularly true for themany reformed drinkers who are nowemployed in the 15 billion dollar-a-yearaddiction treatment industry in the UnitedStates. (Given our more severe problems it isironic that the US is the only developedcountry in the world that uses 12-step facili-tation as its primary modality of chemicaldependency treatment.)

It is not an uncommon or surprising phe-nomenon for a practice, custom, or belief topersist and be zealously defended in the faceof research and evidence to the contrary.Many of us have had the experience of cross-examining otherwise honest people whounder oath will deny matters that are objec-tively true, or who will assert the truth ofthings objectively false or questionable, if theanswer touches on their deeply held beliefs,their core self-image, or seriously affects theirway of making a living.

This may be the key to the reason for theadamant position of the director in hisJournal article. While there is no medical orscientific evidence that substance abuse is anincurable disease, is progressive, requires life-time abstinence, or is most successfully arrest-ed by 12-step facilitation, these very notionsare held as fact by 12-step advocates. For aparticipant to question these propositions inthe context of a 12 step recovery program isusually taken by treatment “professionals” tobe evidence of something called “diseasedthinking,” of “self will run riot,” or variously“denial,” “grandiosity,” “narcissism,” or the“ego-self” ( which the LAP has evidentlybanned as an approved “Higher Power”), andother psychological concepts engrafted orjerry-rigged onto the folk wisdom of AA inorder to browbeat the questioning dissidentinto submission. Acceptance of the explana-tion of the 12-step theory requires no lessthan the suspension of rational analysis.Questioning is met by a phalanx of pithy oneliners. “Your best thinking got you here.”“You can’t be too dumb to get the program,but you can be too smart.” “Take the cottonout of your ears and put it in your mouth.”“We will gladly refund your misery.” etc.There is even the concept of the “dry drunk”which was put forward by the director in anarticle in The Campbell Law Review. This isthe bizarre notion that one can be abstinent

from alcohol, but is not “sober” if one is notworking a good 12-step program.

Ordinarily all this would be an interestingobject lesson on the power of myth, but untilthis year, the LAP Committee had theauthority under certain circumstances to con-vey to the grievance committee informationobtained through its authority to investigateanonymous complaints of substance abuse;to require an attorney under penalty of con-tempt to submit to a substance abuse evalua-tion; to initiate a grievance against an attor-ney; and to petition a Superior Court Judgeto suspend an attorney’s license.

Fortunately the council has approved theelimination of Rule .0614 which previouslyauthorized the LAP to file grievances in whatit called the “force-to-treatment” rule. Thisdeletion of Rule .0614 puts real meaning intothe LAP’s assurances of confidentiality. Theremoval of this authority is a real substantivereform which will strengthen the LAP andenable it to have more credibility withlawyers, which is the key to its effectiveness.

The LAP Committee in an effort to pro-tect the State Bar as a state agency frompotential liability under the establishmentclause has now adopted supplemental ruleswhich say on paper that the LAP will not rec-ommend a treatment option with an“arguably-religious aspect without mentioningthat secular treatment options may also beavailable.” In what manner and with whatconviction this will be conveyed, given thebeliefs of the LAP Director, remains to beseen. A drug dependent attorney is not inmuch of a position to provide a credibleinformed consent at the outset of his or hersearch for help. If the LAP does not accept atleast the possibility of pluralism on the sub-ject of the nature and treatment of addiction,then lawyers who need professional help willcontinue by and large to be served up ersatzreligion with a passing nod to the establish-ment clause. A more hopeful sign is therecognition by the LAP that “ultimately apatient must believe in what his or her treat-ment or aftercare is about or this treatmentwill not work.”

The fact remains however that the pro-gram’s PAL’s logo remains the triangleenclosed in a circle, the international “recov-ery, unity, service” symbol of AlcoholicsAnonymous, and despite receipt of informa-tion relative to the appellate decisions, andthe other data set out in this article, theNCLAP website’s mantra on disease, addic-

28 WINTER 2006

tion, and treatment has not been modified inthree years. The site is replete with what arequite frankly some very peculiar apologeticson 12-steppism, and how that philosophycan be used to deal with addictions of allkinds including alcohol, drugs, nicotine,compulsive gambling, sex, spending, etc.Evidently all one needs to do is to take the“first step,” (We admitted we were powerlessover ___________,) and fill in the blank.Hopefully these “steps” are not applied by theLAP to mental health issues like depressionwhere admonitions that one is “powerless”and should suppress emotions like “anger”can be clinically harmful. There is even a “4thStep” form on the site where you can catalogyour sins to assist you in taking the “fearlessand searching moral inventory” required inStep 4.

So what needs to be done to help lawyersdeal with and overcome substance abuse andat the same time protect the public? First,don’t panic and throw up your hands.Statistically, natural remission without treat-ment for whatever reason is the most com-mon outcome of substance abuse, particular-ly for well educated, middle class people.Second, lawyers needing or seeking helpshould be told the full story about the various

approaches to addiction treatment and thedisagreement within the scientific, medical,and psychological professions on the subjectof addiction and abuse, and then allowed andencouraged to make a true informed consentto one of the variety of methods available todeal with the problem. (A brief interventioninvolving a couple of sessions and follow upwith a medical doctor explaining the conse-quences of continued abuse has been shownto be among the most effective approaches.)Third, treatment programs should be tailoredto the individual lawyer, not forcibly imposedthrough a one-size-fits-all mandate. The oneconstant in all modalities consistently shownto be effective is therapist empathy. Dr. Millerdescribes empathy as “skillful, active listeningas opposed to a ‘listen-to-me’ authoritarianapproach.” Fourth, the State Bar has alreadytaken steps to make the LAP a truly confi-dential diversion program which removes thecudgel from 12-step advocates, and establish-es a firewall between the LAP and the griev-ance committee which is porous from com-mittee to program, but impermeable fromprogram to committee. If investigationreveals a substantive basis that an attorney hasan addiction, and since most all treatmentapproaches require a period of abstinence, the

public can be protected by insisting the attor-ney submit to regular and random urinescreens. Attorneys must submit to randomaudits of their trust accounts. The principle isno different and would be just as effective inthis context without tramping on the FirstAmendment or Section 13 of the NorthCarolina Declaration of Rights.

The State Bar and its LAP has the oppor-tunity to significantly improve the ability toassist lawyers suffering from substance abuse,while protecting their First Amendmentrights and their right to make an informedconsent as to their treatment. I am confidentthat provided with enough credible informa-tion, a willingness to hear from a broad rangeof experts in the field, together with inputfrom the membership, that the council willtake advantage of this opportunity. While theissues discussed here might not affect you as abar member directly, the fact remains thatapproximately $350,000.00 of your manda-tory dues are appropriated annually by thecouncil to fund the LAP. Since the State Baris a state agency and bar employees are stateemployees, this is legally equivalent to taxmoney. You are required to attend LAP

C O N T I N U E D O N P A G E 6 4

30 WINTER 2006

Some people said Jessie Capewellhad gotten where she was in lifebecause of who she knew. At leastit appeared that way. Her boss, the

district attorney of Keokuk County, SawyerCapewell, was her doting father-in-law. Jessie’smentor just happened to be the daughterlessfirst lady of North Carolina. There were all theobvious signs she received preferential treat-ment. Sawyer steered the best cases her wayand she was never burdened with the usualstint in juvenile or traffic court where otherADA’s languished during their early careers.Jessie regularly prosecuted felonies to the frus-tration of her older and more experienced col-leagues. Adding to their frustration was hernear perfect conviction record.

In law school she had gained the adorationof the first lady, Claire Morrow, by winningseveral oratorical competitions and earningthe only “A” Morrow gave out in her first yearlegal writing seminar. Two years of femalebonding ensued as the pair embarked onMoot Court Competitions across the country,picking up trophies and downing a few frozenmargaritas along the way. Morrow arranged aseries of choice internships for Jessie begin-ning with a split summer between southeast-ern powerhouses, Teague & Lynch andBrown & Davies. Claire’s influence culminat-ed with a clerkship at the Fourth CircuitCourt of Appeals, despite Jessie’s sub pargrades. Jessie repaid the favor by organizing awell attended golf tournament which raisedthousands of dollars for the governor’s electioncampaign.

Connections like these could take a younglawyer places. She could have gone anywhere,but the gravitational pull of her home towndrew Jessie back to the small coastal commu-

nity of Cantril, North Carolina. To be sure,Jessie was ambitious, all of her hard work anddiligent social climbing had not been in vain.Her aspiration was to become a judge, to be apowerful somebody in the place that madeher feel lowly since birth. And the sooner shebecame a judge, the better. Her desire wasborn from a promise she made to her ailingfather many years back. It was a promise shewas determined to keep.

Circumstances were ripe in KeokukCounty for the governor to appoint a newjudge to the district. Political pressure to fillJudge Hokely’s seat with a jurist from his ownparty was mounting, though the old man pro-claimed he would not step down until he wascarried out of the courtroom on a stretcher.His stance angered Jessie and the other mem-bers of the local bar who hovered over his seatlike vultures. If only he would step down,Jessie knew she would be a shoe in. Time wasrunning out for her and it was unlikely shewould ever have such connections to the gov-ernor’s mansion again.

The judicial appointment weighed onJessie’s mind, but she tried not to let it distracther from her caseload. After all, loosing someeasy drug cases would not bode well in herquest to become judge.

“Mr. Masser, like I said, all the state is will-ing to do is reduce the charge to felony pos-session,” Jessie said with a stack of manila filesbouncing on her hip and a patent leatherattaché swinging from her grip. She strutteddown the hall of the courthouse, her conser-vative black pumps clicking against the hardwood like the hooves of a show pony.

Jim Masser struggled with a response, buthe was winded just trying to keep up with herrapid gait.

“My client had only 1.6 ounces on him,that’s just one tenth away from making thisthing a misdemeanor,” his tan blazer billow-ing open as he tried to keep up.

“Well, that’s his bad luck. I think you’reforgetting some evidence tended to show hemeant to share with his buddies. Felony pos-session is on the table until Monday after-noon. Just let me know,” she said unrelentingin her stride.

Jessie used her quick pace to intimidate, itwas a little trick she had picked up. Jessiecould walk faster in pumps down halls and upstairs than any other attorney. Half of thoseold guys still smoked and nearly all of themsported middle aged guts. It left her in theposition of barking out plea offers over hershoulder, while opposing counsel panted likewhipped dogs. They were too proud to askher to slow down.

“Look, he’s never been convicted of any-thing remotely violent,” Jim Masser groveled,“He’s had a rough life Ms. Capewell.”

Masser had to stop and take a breather.Jessie took mercy and swiveled around on hertwo inch heels to examine his haphazarddress. Masser’s furrowed brow sprouted mois-ture. His suit was mismatched with too small

The Enigma in the CourthouseStairs

B Y C A N D A C E A L L R E D

F I C T I O N W R I T I N G C O M P E T I T I O N - T H I R D P R I Z E

The Results Are In!

In 2006 the Publications Committeeof the State Bar sponsored its FourthAnnual Fiction Writing Competition.Eight submissions were received andjudged by a panel of five committeemembers. A submission that earnedthird prize is published in this edition ofthe Journal. The second and first placestories will appear in the next two edi-tions of the Journal, respectively.

THE NORTH CAROLINA STATE BAR JOURNAL 31

pants a lighter shade of Khaki than his blazer.The short sleeved dress shirt sticking to historso crumpled in the humidity. Jessie’s outfitremained crisp despite the sweltering Augustheat and the fact that she was wearing pantyhose. Her mother told her that ladies alwayswore nylons, and no matter what the temper-ature, Jessie subscribed to that mantra.

“Then I am very sorry for him. But I won’thesitate to try this case,” she added raising awell groomed eyebrow.

“I’m going to speak with Tom Capewellabout this,” he said in anger. He didn’t reallythink anything would come of it, but he feltcompelled to say something nasty. His clienthad been found with two separate baggies,and he knew Jessie could make a sale or deliv-ery charge stick. Even though he had tentimes the experience of Jessie, experience wasno match for her relentless youthful stamina.She prepared longer, harder, and more dili-gently than any other attorney he had evercome across, and she lacked the bureaucraticcomplacency of other ADA’s. Damn Tom forassigning her to this case!

“Do what you must,” it was more impor-tant that Masser respect her than be herfriend.

“Ms. Capewell! Ms. Capewell!” Jessieturned to the excited voice. MarjorieFreeman, a summer intern at the DA’s officewas running towards Jessie.

“What is it?” she asked bewilderedly,though not too concerned. Marjorie was anexcitable young girl.

“There’s an important phone call for you.It’s… Claire Morrow.”

Finally, Jessie thought, this was the phonecall she had been waiting for, maybe the gov-ernor was going to force Judge Hokely’s hand.Jessie shoved the files she had been carryinginto Marjorie’s chest and trotted down the hallwith Marjorie following after.

“Like the Claire Morrow of Teague &Lynch, like Claire Morrow the governor’swife?” asked Marjorie.

“Yes, the famous Claire Morrow,” Jessiesaid feeling a bit charitable at the sight of herdoting intern. “Maybe I could introduce youwhen she comes to Cantril.” And she wouldcome to Cantril, for Jessie’s swearing in, ofcourse.

“Omigod, that would be awesome!”Marjorie said darting ahead of Jessie andopening the office door for her.

Jessie shooed her out of the room—thiswould be a private call. She took a deep breath

and picked up the receiver.“Professor Morrow, how are you?” her

glossed lips parted with a knowing smile.“Jessie, dear, are you going to call me that

forever?” She laughed. “It’s Claire, just plainClaire, how many times to I have to tell you?”Though she knew Jessie would never call herby her first name, and she really didn’t wanther to, both women were too fond of deco-rum.

“How are your boys?” The conversationshould begin with pleasantries—Claire wouldget to the point soon enough, best not toappear too needy Jessie thought.

“Stephen is actually out your way, he’s sail-ing up the coast on a schooner with somefriends. And Joseph, like most 14 year olds hasdiscovered girls. The governor’s up to his eye-balls in commitments for campaign season.So, I guess you must know why I am calling,”she said, her voice trailing off in a sing-songymanner.

Jessie could hardly contain herself andbegan twirling a tight clasped pony tailaround her thin finger.

“It’s always nice to hear from you ProfessorMorrow, is there any way I can be of assistanceto the governor?” she inquired coyly.

“Thank goodness, I knew you wouldn’tmake me beg. With fundraising season under-way, we hope you could organize that won-derful golf tournament again. This year we’dlove to have a reception at your father-in-law’sriver house. How does that sound dear?” Jessiefelt somewhat dejected, but she knew in poli-tics a price must be paid for favors.

“The Capewell family would love to help.Actually, Luke and I are living at the riverhouse now. My in-laws moved into a condolast year by the coast. They thought we’d beable to better care for the place.”

Jessie’s eyes drifted to the glossy photo-graph on her desk, the one Claire had givenher. It was of the two of them slouched likedressed up rag dolls on the grand staircase ofthe governor’s mansion. The picture wastaken after the Governor’s Ball three years ear-lier. Claire was so well preserved for her age, itappeared the two were blond sisters, thoughJessie was 20 years her junior.

A short pause hung in the air as Jessie wait-ed for a response. None came, so Jessie tookher shot.

“Has the governor given any thought toJudge Hokely situation? Things have sort ofdeteriorated, he rambles on so. In traffic courtthe other day, he gave a sermon that went on

for over an hour. Something about when hewas at Okinawa, blah, blah, blah…”

“Yes, several attorneys from the area havecalled to air their concerns,” Claire offered.

“His wife told one of the clerks that JudgeHokely had never even served in the SouthPacific. Besides, even as old as he is, he’s tooyoung to be a WWII vet. He’s losing his mindfor sure. I don’t mean any disrespect, the man’sa legend around here, but we can’t get throughthe calendar with these outbursts and his threehour lunches,” Jessie lamented.

“That’s a shame, he used to be so on top ofthings,” Claire sighed.

“It’s more than just a shame. JudgeHokely’s antics are gaining notoriety, and notin a good way. Yet he insists he’ll run foranother term. Times are different now, whatwas once considered charming or idiosyncrat-ic behavior is hindering the court. JudgeHokely is a dinosaur and bad for the party. Heis leaving the door wide open for those withdifferent political affiliations to launch suc-cessful campaigns. But if someone from theparty were already on the bench...”

“You’re right and the governor realizesthese things, but he can’t very well force some-one to step down.”

“The governor is the most powerful politi-cian in the state, surely there are ways to applypressure,” Jessie argued knowing how muchboth the Morrows enjoyed being reminded ofhow powerful they were.

“Now Jessie dear, you know the governordoesn’t operate that way.” Jessie’s throat tight-ened, she thought to herself that’s exactly theway the governor operates.

“I know you want to be a judge,” Clairesoftened her tone, knowing her wordswounded the ambitious protégé, “and no onewould like seeing a young woman put on thebench more than me. But you’re only 30 yearsold, you have some time. Look, why don’t youcome to Raleigh and let me set you up insomething here. Do you know what a fabu-lous lobbyist you would be? You would makethe biggest splash up here in Raleigh, earn tentimes what you’re making in... wherever it isyou are exactly. The governor even has con-nections in Washington, DC. You could gothere. Dear, why are you wasting your talentin that little town you seem to be stuck in?”Claire stopped with the niceties and startedgetting frank.

“But I want this. I want,” she took abreath, her eyes welling up, “to be a judge inKeokuk County. Like you said, I’ve sacrificed

a lot to be here.” Jessie rarely let her emotionsget the best of her, but this was the best shotshe had. Claire was wrong, time was limitedfor Jessie.

“My advice is to think about the alterna-tives I’m offering. Your talents would be bet-ter spent elsewhere. Judge Hokely was electedto his post, we have to respect that. No onecan force him down. Only the hand of Godcan pull that man off the bench.”

* * *

It wasn’t often Jessie left work early, so itshocked her husband when she came burstingthrough the door at three p.m. with tracks ofmascara running down her cheeks.

“Jessie, baby, what in the world?” he wasnaturally distressed at seeing his usuallyimpeccable wife strung out. She held up herpalm to him to prevent him from comingnearer.

“I don’t want to talk, just meet me out onthe dock with a highball, a stiff highball.”Luke Capewell wasn’t good for a lot of things,but he made a superb highball. Of course hewas already home on a Friday afternoon,readying his fishing boat for the weekend.Competitive fishing was the other thing hewas good at, though his chosen profession waspart-time dentist.

As ordered, Luke rushed out in his deckshoes and golf shirt to his ruined wife. Hebelieved the situation warranted a pitcher ofhighballs.

“Sugar, now I know you didn’t lose a case,”he said divvying out liquid into a plastic cup.Jessie was perched on the edge of a whiteAdirondack chair staring intensely into theriver.

“No, it’s nothing like that. Claire Morrowcalled today to ask about hosting the golftournament again. I thought the governorwanted to appoint me to Judge Hokely’s seat,but she said the governor is not going to forcehim to step down,” Jessie gulped a healthydose of cocktail. “The old loon was boastingin court the other day, he would stay untilthey carried him out on a stretcher.”

“Jess, I can’t believe you’re all worked upabout that. It will happen, sugar, soon enoughyou’ll do it. You’re only 30 for crying out loud.Besides…this will give you more time to con-centrate on a baby,” he said tenderly rubbingher tensed thigh.

“Oh please, if I devote half the time tochild rearing as the other judges do to golf our

kids will be fine. The problem with this placeis that everyone’s scared to death a womanmight get a little power,” Jessie sounded bitterbut, Keokuk County was one of the few juris-dictions in the state that had never elected afemale judge or district attorney to office.

Luke hugged Jessie from behind pepperingthe back of her neck with little kisses.

“It’s so nice out. How about I whip us upa plate of shrimp scampi and some of thoselittle red potatoes you like. We could take din-ner out on the boat with another pitcher ofthese,” he offered holding up a half emptyglass.

“Whatever, but just so you know, that’snot going to fix things. Should I ask your dadto call Governor Morrow? No, wait, that’s tooobvious. I’ll enlist Judge Buckman, he’s gotsome pull in the party doesn’t he?” she saidlooking up, but Luke had already retreated tothe kitchen.

Jessie pulled out her cell phone. It was timefor the most dreaded part of her day.

“Hey Momma, it’s me. How’s Daddy?”she asked. Jessie would have liked to stop byon her way home, but since things had gottenreally bad, her dad refused to see her. He wastoo proud to let his children see the sicklyskeletal frame that remained of their father’sonce robust body.

“Not too good. The Hospice nurse cameby to give him some pain killers. Maybe youshould come in the morning….” Her moth-er’s voice cracked under the strain of tears.“Look sweetie, I better go, I hear him cough-ing.”

“OK Momma, I’ll see you in the morning.Take…” but her mother had already hung upbefore she could finish, “…care of yourself.”

Jessie balled up her fists and stared defiant-ly at the river. Undoubtedly, the cancer was aresult of the sawdust he breathed year in andyear out as a laborer in the local paper mill.The oppressive Weiner Paper Mill made mil-lionaires of a few local townspeople, includingher husband’s ancestors, while keeping every-one else in dead-end jobs. Not to mention,the mill made the county filthy with its rawrepulsive smell.

“Jessie, you be sure and get your educa-tion, so you don’t end up like your dad,” hetold her the night before his first surgery.

“Yes sir. I’m going to be an attorney,” she’dsaid proudly.

“But why stop there? You should go all theway and be a judge. There’s no higher callingin this world greater than being a judge.

Everyone respects a judge from the lowliestmill worker to the richest man in town.They’re all at the mercy of a judge. That’s mydream, to see my baby Jessie in a black robeone day pounding her gavel,” he grinned.

“If that’s your dream, then it’s my dreamtoo,” she’d told him combing sweaty tendrilsout of his eyes.

“Promise you’ll do it, that you’ll get youreducation and be a judge one day,” he plead-ed.

“I promise.”Jessie’s father survived his first bout with

cancer. She was thankful for the good timesthat followed He’d been able to attend gradu-ations and give Jessie away on her weddingday. He boasted to everyone that would listen,his little girl was going to be a judge. Evenwhen people scoffed at his overalls and hisgrimy working man’s hands, he’d kept faithful.The cancer came back last year and took avengeful turn on him. Jessie knew he did nothave much time left, if only she could beappointed judge before he passed on.

Luke emerged with two hot plates fragrantwith garlic and butter. They decided to dineon the dock instead of their boat. Jessie didnot feel much like eating, but she did notwant to appear ungrateful to her husband. Hehad been taking the brunt of some unde-served abuse lately. She sat with her tan legsswinging from the side of the dock, kickingup tiny splashes of water. The river grew dark-er as the sun disappeared, until, at length, itwas nearly black. Luke did not pressure her totalk, he knew from experience to just let Jessiebe lost in her own thoughts. Eventually she’dcome back to him.

* * *

Like other rural courthouses in NorthCarolina, Keokuk County had fallen into dis-repair. During summer months the buildinghummed like a bee hive because every lady inthe Clerk’s Office brought her own fan towork. For years rumors circulated that thebuilding would eventually be air conditioned.Unfortunately, the better part of the budgethad been spent on costly metal detectors. Thefire marshal warned that the antiquated elec-tric wiring system would not support aportable fan plugged into every available sock-et in the building, but the staff refused to heedthe warning.

Periodically the lights would flicker underthe strain and occasionally the wires would

32 WINTER 2006

THE NORTH CAROLINA STATE BAR JOURNAL 33

short. The courthouse might lose power for aminute or two, but eventually things wouldcome back up.

On one such morning, a few days after thedevastating phone call from Claire Morrow,Jessie found herself in district court. Normallyshe spent working hours prepping for felonytrials in Superior Court, but the district attor-ney asked her to straighten out the calendarmess in traffic court while her incompetentdistrict court counterpart ADA was on vaca-tion. As requested, Jessie and Marjorie arrivedearly and negotiated the entire criminal dock-et. By the time 9:15 rolled around only a fewstragglers remained. If only Judge Hokelywould favor the court with his appearance,the calendar could be cleared and everyonecould move on with the day.

“Where’s the judge?” Jessie inquired to aplump clerk who was nose deep in a trashyromance novel.

The clerk did not reply but pointedupward to Judge Hokely’s chambers. Nodoubt he was upstairs leisurely perusing thelocal paper or perhaps watching a morningchat show on television.

“Well can you get him and tell him we’reready?” she said pulling her lips taught acrossher teeth in a sort of condescending smile.

“I suppose I could,” the clerk said peeringover the top of her paperback. She proceededto rise from her chair slower than any humanbeing Jessie had ever seen.

“I don’t have all day. I’ll get him myself,”she said tearing off across the gallery.

* * *

As predicted, Jessie discovered JudgeHokely planted in front of his television withthe daily crossword puzzle resting on his lap.Jessie tapped on the judge’s open door.

“What is a six letter word for mystery,fourth letter is a ‘g’?” he asked without look-ing up.

“Judge Hokely, everyone is waiting foryou. Are you ready to come down?”

“Just a minute. I’ve only got a couplemore. Six letter word for mystery, do youknow what it is?” he said peering over hisglasses.

“Enigma, a six letter word for mystery is‘enigma.’ Now, let’s go Judge Hokely, we don’twant to keep people waiting,” Jessie said in away one might speak to a toddler. The lightsflickered on and off, but Jessie and the judgebarely acknowledged it.

“Enigma, I never would have gotten it,” hesaid rising from his chair. “You’re TomCapewell’s daughter-in-law, pity I don’t get tohave you in my courtroom. You’re clever aren’tyou, and purdy as a picture,” he said winkingat her.

“We really need to get downstairs. I’m try-ing to clear the calendar. Things are getting alittle backed up.” Jessie was relieved JudgeHokely had gotten up from his chair, but per-turbed by the “purdy” comment.

As the two approached the elevator, thepower went off, but did not flicker back onimmediately.

“We better take the stairs, judge. We don’twant to get stuck in the elevator if the powergoes out.”

Nothing in the world sounded better toJudge Hokely than being stranded all day inan elevator with an attractive young blond.While his mind drifted to that particular fan-tasy his eyes drifted to Jessie’s posterior. Theystopped at the landing and the lights flickeredoff again, this time they stayed off for amoment. The judge’s hand then drifted wherehis eyes had been, just briefly, a nice little pat.He had perfected the move over the years; justenough for him to get his jollies, but too littleof an indiscretion for anyone to articulate aviable complaint.

“Look, you dirty old man,” Jessie saidgrabbing the offending hand. “What do youthink you’re doing? Keep your hands to…..”

The judge was clearly startled—he hadnever gotten this reaction before. Then, in thedark, at the top of the staircase, it all cametogether for her. Jessie felt her own power, feltthe frailty of the old man teetering on thelanding. His bony wrists tensed in her grip, heopened his mouth like he might say some-thing, but no words came out. The injusticeof the speechless man standing in the way ofher dream was too much. Who was he todeny her the judgeship she and her sweetfather had dreamed of together?

Jessie winced and closed her eyes dreadingthe gruesome scene, but things weren’t as goryas she imagined. No spattering of blood andguts polluted the stairwell. The judge’s armsand legs weren’t twisted in any unnatural fash-ion, the way she feared his limbs might berearranged from the violent fall. Only his neckappeared crooked, as if it had collapsed ontohis left shoulder in a deep shrug. JudgeHokely had not even screamed, only a dullclunking sound was made as his head hit thefirst floor landing.

The lone haunting image that Jessie wouldcarry with her from that day forward was theterrified look in the judge’s opened eyes.Those eyes, frozen in their final frame, creat-ed the sorrowful and maddening expression ofa man who had been done in by his own sillyindiscretions.

* * *

In the end, the hens in the Clerk’s Officetook the brunt of the blame for JudgeHokely’s untimely demise, but most peopledismissed the incident as a freak accident.Even the judge’s family did not feel particu-larly bitter about the fall. His son remarked atthe funeral service, that it was somehow fit-ting the good Lord had taken his daddy inthe courthouse, the place the judge lovedmost. Jessie’s father-in-law used the incidentas leverage to get the legislature to approvemore funds for courthouse renovations. Bythe following August an HVAC system hadbeen installed, all in honor of the late JudgeHokely.

The morning of Jessie’s swearing in, herfamily assembled at the river house for a cel-ebratory brunch. As a little gift, ClaireMorrow had arranged to have the gatheringcatered by some fancy outfit from Raleigh sheemployed for her ladies’ luncheons. The ges-ture delighted her mother and father, whomustered enough strength to attend the fes-tivities for what was likely his final outing.

Getting up to leave, Jessie pulled on hernew robe and could not help noticing it fither perfectly; black was her color. Today shewould become a judge in front of her father.He would leave this world peacefully, satisfiedthat Jessie had made something of herself. Nolonger was she just the daughter of a downand out mill worker, she was arguably themost powerful woman in the county. Jessiesmiled at the determined face in the mirror.Maybe she wasn’t the smartest or most giftedattorney, maybe she was not as sophisticatedas the other girls in her law class, maybe shehad to play a little dirty, but those things did-n’t matter. She had succeeded on her own. Bythe time she reached the bench, she was adeptat shoving her way to the top.

Candace practices law in Chapel Hill in thearea of estate planning. She lives in Cary withher husband and they are expecting their firstbaby in March. She dreams about one day writ-ing and publishing a novel.

34 WINTER 2006

Q: What you can tell us about yourroots?

I was born in Lexington, NorthCarolina, but my family moved to Winston-Salem in 1958, where I grew up, graduatingfrom Reynolds High School in 1967. I wasthe middle of three children and grew up ina family where both parents worked longhours, which meant that you learned to beself-reliant. I mowed yards and did odd jobsfor neighbors in junior high school to earnspending money, and in high school I heldpart-time jobs to finance my social life andhave money for college.

Q: When and how did you decide tobecome a lawyer?

I attended East Carolina University andwas not considering becoming a lawyereven though that was the career my fatherthought I should pursue. I had a period ofactive military duty coming up after gradu-ation and had been accepted by DukeUniversity for graduate school for the fall of1972. During my active duty time, I cameto realize that a law degree could open a lotmore opportunities for the future and camehome one weekend to take the LSAT. Ihand carried my application to Chapel Hillin the spring of 1972, and shortly thereafterreceived notification that I was invited tojoin what would become the class of 1975.I would be less than candid if I did notadmit that I was not really committed tobeing a lawyer during my first two years oflaw school. It was not until I worked forRaleigh lawyer, William G. “Buck”Ransdell, during the summer after my sec-ond year that I really understood whatlawyers did and the difference they made. Iworked on an appeal of two death sentencesthat had been imposed on a man from thewestern part of the state and spent the sum-

mer researching and working on the brief.By the time I had finished, I was able to tellBuck that I believed that the client shouldand would get a new trial. The NorthCarolina Supreme Court granted the newtrial. I continued to work for Buck parttime during my third year of law school ona number of interesting cases involvingprominent individuals from Wake County.Besides possessing a keen intellect, Buckwas honest, professional, cared about hisclients, and was a zealous advocate on theirbehalf. He, as much as anyone, cementedmy desire to be a lawyer and provided theearly guidance that has benefitted methroughout the years.

Q: What is your practice like now andhow did it evolve?

My practice today is principally media-tion, arbitration, and general civil litigation.After law school, I worked for Ransdell &Ransdell for two years essentially supportingthe firm’s trial practice, but also handling anumber of matters on my own. I wanted toget more trial experience and though it washard to leave two lawyers who treated mevery well, I became an assistant district attor-ney in Wake County and prosecuted crimi-nal cases for the next three years. When I wasready to leave, an opportunity to do trialwork for a firm on the Outer Banks of NorthCarolina became available. I have been onthe Outer Banks since 1981, forming thefirm I presently practice with in 1984, andhave continuously practiced with the firmexcept for a period in 1991 and 1992 whenI served as a Superior Court Judge.

Q: If you had not chosen to become alawyer, what do you think you wouldhave done for a living?

Had I not become a lawyer, I unques-

tionably would have gone into the teachingfield. During my second year of undergrad-uate school, it became my goal to teach atthe college level. If not for the military dutytime, I likely would have continued on thatpath.

Q: How and why did you becomeinvolved in State Bar work?

A letter to the editor in our local news-paper criticizing attorneys and the legal sys-tem made me angry and I decided that Iwanted to be a State Bar Councilor so Icould help improve the image of the profes-sion. I have discovered what a big task this isand I hope to be able to use this year to con-tinue to work on how the public views us.

Q: What has your experience on thecouncil been like and how has it dif-fered from what you anticipated?

I really did not have more than a general

An Interview with Our NewPresident—Steven D. Michael

THE NORTH CAROLINA STATE BAR JOURNAL 35

idea of how the State Bar operated when Iarrived. When I attended my first quarterlymeeting, I was quickly impressed that thiswas a professional organization in allrespects, doing very serious business. Thelevel of professionalism, civility, and debatewas impressive. One of the officers told mygroup of new councilors that we wouldmake friends we would keep for life, andthat has been true. It is without a doubt oneof the most rewarding periods of time in mylife and has made me a better lawyer andperson.

Q: You live in a relatively small com-munity on the coast, near Virginia,that is far removed from Raleigh. Doesgeographic diversity on the councilreally matter?

While all lawyers share many commonconcerns, there has long been a perceptionin more rural parts of the state that the StateBar is controlled by the big firms and notconcerned about the problems of smalltown lawyers. That is simply not the caseand the councilors adequately represent allsegments of the legal community.Maintaining geographic diversity insuresthat all the lawyers of the state feel like theirviews are represented.

Q: In your opinion, does it make sensefor lawyers to be regulating them-selves? Is it good public policy? Do wedeserve the public’s trust?

I honestly believe that lawyers are theirown toughest critics and are the ones mostlikely to impose upon themselves rulesthat protect the public. It has been myown experience in my 11 years with theState Bar Council that the councilors areable to put aside their self interest and theinterest of lawyers when it conflicts withpublic interest. During the last few years,not only have we opened our disciplinaryprocess to public scrutiny, but we havealso made a tremendous amount of infor-mation concerning the activities of theState Bar and the disciplinary proceed-ings against lawyers easily available to thepublic, particularly on our website. Aslong as we continue to follow the princi-pal that our decisions must be in the pub-lic interest, then we earn and deserve thepublic’s trust.

Q: You’ve had a great deal of experi-

ence with the Bar’s disciplinary pro-gram. How do you think it’s working?Is there anything about it you’d like tosee changed?

It is no secret that my emphasis thisyear will be on the disciplinary process. Iam in the process of appointing aDisciplinary Advisory Committee to helpwith a smooth transition with our newchief counsel. I have no significant con-cerns about how our disciplinary processcurrently works and do not start with theidea that something is wrong. I want to seeif there are ways to improve the process,such as speeding it up without comprisingthe quality of work and decision making.It is my hope that the DisciplinaryAdvisory Committee and State Bar staffwill be able to come up with some benchmarks to use as goals for the disciplinaryprocess to move through. Every case is dif-ferent and should be treated accordingly.However, we need to ensure that we movematters quickly through the processbecause lawyers, clients, and the public allhave an interest in having the matter con-cluded in a timely fashion. I see no majorchanges being necessary, but simply looktowards a more formalized plan to aid theprocess.

Q: Do you think there ought to be a“statute” of limitations applicable togrievances?

In light of the Disciplinary HearingCommission’s decision in the Honeycuttand Brewer matter, which the State Barhas appealed, we have undertaken a studyof whether or not there ought to be a“statute” of limitations. There has been aproposal offered by a special sub-commit-tee, which in essence does away with ourcurrent statute of limitations. I personallyprefer to have a statute of limitations sim-ilar to the one that we currently have inforce. It makes sense that there has to be atime when grievances, other than felo-nious, criminal misconduct, are simplytoo old to be dealt with. I think TomLunsford’s humorous article in an earlierState Bar Journal (Summer 2006) clearlyillustrates the difficulty inherent in tryingto reconstruct events that are remote intime. We have tabled further discussion ofthe current proposal until we have a deci-sion by the North Carolina Court ofAppeals.

Q: The council is currently consideringwhether the State Bar ought to acceptresponsibility for providing and payingfor counsel for indigent lawyerscharged with disciplinary offenses oralleged to be incapacitated by somesort of emotional or mental disability.How do you feel about that?

I favor providing counsel for attorneysalleged to be disabled by some sort of emo-tional or mental disability and think ourrules currently allow the DHC HearingCommittee to do this if justice requires.However, indigent lawyers present a totallydifferent question. It is a difficult issuebecause of the serious consequences thatmay befall the attorney; however, I do notsupport the proposal. I cannot support theproposal. Using an extreme example, itwould be difficult for me to justify to thelawyers of North Carolina that we wouldtake a portion of their dues to provide a legaldefense in a disciplinary proceeding for anattorney who has embezzled his client’sfunds and spent them. We all already pay aClient Security Fund assessment that maycover the loss to the client occasioned by theattorney’s misconduct.

Q: Over the past several years, theState Bar has spent increasingamounts of its budget to enforce theprohibitions against unauthorizedpractice of law and to assist lawyerswho have become or are becomingimpaired by chemical dependencyand/or mental illness. Are these trendslikely to continue?

When I first came to the State BarCouncil 11 years ago, I was assigned towhat was then known as the UnauthorizedPractice of Law Committee and we did notseem to have a lot to do. I served on thecommittee for nine years and, during thoseyears, I watched the explosive growth ofcomplaints to the committee about indi-viduals and companies involved in theunauthorized practice of law and the harmthey cause to the public. There is no ques-tion that this will continue to be an area ofincreasing concern as we attempt to protectthe public from unlicensed and unregulat-ed vendors who do significant harm.Besides those who actually set up shop, theinternet provides an unlimited ability forindividuals from anywhere in the world tooffer services to North Carolina residents

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and this will likely continue to grow. It is unfortunate that the number of

lawyers with chemical dependency and/ormental illness also tends to increase withthe growth of the group of lawyers whichwe serve. Despite the large amount ofresources devoted to these issues by gov-ernment, private groups, and the State Bar,it seems likely that as our membershipgrows, these problems will grow propor-tionately. Our current program adminis-tered by Don Carroll does a terrific job;however, at some point we will have todecide how much more of the State Bar’slimited resources can be devoted to thisand may need to consider using alterna-tives and referrals outside the State Bar.

Q: You were a leading advocate for theimposition of a requirement thatlawyers appearing pro hac vice inNorth Carolina tribunals be registeredwith the State Bar. Why did you feelso strongly about that and do youthink the rule is going to be effective?

For years, lawyers from other stateshave been allowed to practice on a limitedbasis in the courts of North Carolina. Indoing so, they have agreed to be subject toand bound by our rules. Unfortunately, wehad no way of knowing who they were,where they had been admitted, and thematters in which they had been admitted.Since they are subject to our regulation, Ifelt that the State Bar should have a recordof these individuals in the event we had tohave some interaction with them. I thinkthat when we started the process, we hadguessed that there might be 200 pro hacvice admissions per year. There is a $25.00fee that is collected for each pro hac viceadmission and through the third quarterof this year, we have collected a little over$11,000.00 in fees, which translates toapproximately 450 pro hac vice admis-sions. It is obviously occurring in greaterfrequency than we anticipated. The formwhich has to be completed also contains agentle reminder for out-of-state attorneysworking in North Carolina that they needto check with their tax advisors as towhether or not they owe any income tax tothe state of North Carolina. I believe therule is effective as it appears compliance ishigh and we now have a record of the out-of-state attorneys subject to our regula-tion.

Q: What else would you like to accom-plish during your year as president?

I will use my year to support profes-sionalism and civility among the membersof our profession and to encourage lawyersto be active not only in the organized bars,but also in their communities. I will ask thedistrict bars and the Bar LeadershipInstitute of the North Carolina BarAssociation to consider the issue of ethnicand gender diversity, and to encourageyoung, talented, minority lawyers to getinvolved in the State Bar and the NorthCarolina Bar Association. I will also con-tinue to participate in the programs thatwe put on for the district bars to give locallawyers an opportunity to put faces withthe names of State Bar staff members sothat they will feel more comfortable in call-ing on them for advice. It is extremelyimportant for lawyers to understand thatthe State Bar staff is first and foremost hereto help them avoid problems.

Q: Tell us a little about your family.Loretta and I have been married for over

36 years and she is my biggest supporter andmy kindest critic. I think all of my fellowcouncilors and officers who have gotten to

know her understand what a capable andvaluable asset she is. We have two sons, bothof whom are married. My youngest son Joshand his wife Claire live in Durham, and Joshattends UNC. Our oldest son Kevin and hiswife Lora live in Summerfield, NorthCarolina, and have given us two grandchil-dren, Zack who is six and Brooke who isfour.

Q: What do you enjoy doing when youare not practicing law or working forthe State Bar?

First and foremost is the enjoyment I getfrom being with my family. We are a veryclose knit group and see each other often. Asany one of them will tell you, I am com-pletely taken with my grandchildren andenjoy spending as much time with them asI can. Outside of family, I enjoy traveling,amateur photography, and being the homeand office handyman.

Q: How would you like to be remem-bered by the next generation oflawyers?

I hope that they will know me wellenough to remember me as a friend and as agood lawyer with a sense of humor.

With his wife, Loretta, looking on, Steve Michael is sworn in as president of the State Bar by ChiefJustice Sarah Parker