Bill before Congress now to make lynchings a federal crime started in Tarboro 120 years ago

George Henry White

There’s a bill before Congress now that would, for the first time in American history, make lynching a federal hate-crime. The bill has passed the House by a vote of 410 to 4. In the Senate, ninety-nine senators favor it, but a senator from Kentucky is blocking unanimous consent for immediate enactment. It’s an emotional issue at the center of national affairs in a time of crisis. 

If the bill is enacted, it would be the first federal anti-lynching law. But it is not the first anti-lynching bill. 

The first anti-lynching bill was introduced in Congress on January 20,1900, by Representative George Henry White of Tarboro, North Carolina. 

White’s home is just a few blocks off Main Street at about St. Patrick and Granville Streets. You could say that’s where today’s anti-lynching legislation began.

You could say it started on Granville Street.

 

Landmark court opinion defining rights of enslaved people arose in Edgecombe County

In 1834, on a plantation in Edgecombe County, a slave named Will refused to share a hoe he had made with his own hands, an act of defiance that got him shot in the back by his white overseer. As he lay wounded, Will reached up and fatally slashed his attacker on the hip and the arm, earning himself a trip to the gallows.

Josh Shaffer, The News & Observer, June 8, 2017

The upshot was a landmark decision of the North Carolina Supreme Court that was a major step forward in the ongoing definition of the status and rights of enslaved people.

Will was sentenced to death in the Edgecombe County Superior Court, Judge Donnell presiding, but plantation owner James S. Battle became convinced that Will had acted in self-defense and so he hired Bartholomew F. Moore to represent Will on appeal. In an opinion written by Justice William Gaston, the Supreme Court reversed Will’s conviction — holding that, if a free man was entitled to the defense of self-defense or to a lesser charge of manslaughter, then the same analysis should apply to an enslaved person. This was a step forward. It moved away from Justice Thomas Ruffin‘s earlier opinion in State v. Mann, in which Ruffin seated his reasoning on the nature of slavery, while Justice Gaston, four years later, focused on Will’s humanity, not his legal status as property.

Will’s case is recognized as a landmark. And so, on June 10, 2017, a historical marker is erected where his case began, at 275 New Hope Church Road in Battleboro, North Carolina.

A note of concern about pending proposals to cut funding for major NC legal institutions

MidLaw has learned with concern that the General Assembly is considering cutting the North Carolina State Bar’s revenues to a fraction of their current level and also reducing the appropriation for the UNC Law School dramatically.

MidLaw believes these proposals would be harmful, not only to two key legal institutions but, in the long run, also to the administration of justice in North Carolina and to our economy generally.

If North Carolina is to succeed in national and global economic competition – which is what we must do to create jobs here – then North Carolina’s businesses and its justice system must be served by well-prepared lawyers operating in an effective system. Commerce will not come right if our justice system is not up to par.

The legal profession and broader legal industry are currently undergoing dramatic changes. These include the rise of national and global law firms, competition from Internet and off-shore services providers, and disruptive new technologies. Potentially all of these may be good things, but North Carolina must keep up no matter how things go. We must provide a credible local justice system to support a growing economy. This requires well-trained lawyers, a highly functioning oversight agency, and well-resourced courts and processes.

Proposals to cut State Bar revenues and take funds away from the Law School risk long-term damage to our ability to compete and build North Carolina’s economy.

“Who daddied this thing?” — NC’s system for oversight of legal services, where it came from, why, how & quo vadis?

Big questions are in play just now about the practice of law.  What is law practice? Who can do it? How should it be regulated?

Increasingly urgently, how can legal services be delivered to low wealth populations, to people who find themselves embroiled in legal processes about fundamental life issues and who cannot afford lawyers? How are they to resolve issues of child custody, divorce, spousal abuse, veterans rights and health care?

Across the country, lawyers essentially regulate themselves. The agencies that oversee legal services are composed of lawyers elected by lawyers. Some suggest that this creates built-in resistance to change.

Where did this system come from?

The system we have now was established in the 1930s. At the time, everyone generally agreed that persons who deliver legal services ought to have some verified level of knowledge about the law and should be subject to some oversight. A primary goal was to create an orderly system to facilitate national commerce. But the work required to set up and run the system looked so boring that nobody wanted to do it except the lawyers themselves.

In Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy, Gillian Hadfield writes:

No one … was much interested in thinking about such dry and arcane subjects as the uniformity of standards in commercial paper or the problems created by different standards for pleading a complaint. Nor did many care about the educational requirements for those who desire to earn a living from thinking about such things. No one other than lawyers, and elite lawyers at that, was eager to wade into these waters in the early twentieth century.

So, the American Bar Association and state bar associations took the lead. They established the system we have now: of bar examinations, law school accreditation, policing of unauthorized practice, and disciplinary standards.

The system they created has worked marvelously. The American justice system is a distinctive American resource that underpins a complex, creative economy and has fostered vast prosperity, quite apart from its core political function as mediator between government prerogatives and individual rights.

North Carolina was part and parcel of the national process. Former State Bar president, John McMillan has written a superb article that tells the story. The Long Road to Founding the North Carolina State Bar. 

After its leaders attended ABA meetings, the North Carolina Bar Association brought a proposal to the General Assembly that mirrored what was being done in other states. It would create the State Bar in which membership by lawyers and annual dues to operate the agency are mandatory. The State Bar would oversee legal services delivery. In words drawn from the Bar Association’s records of 1932 but that ring true today, John McMillan recounts that J.W. Pless Jr. warned that the Bar Association should not expect easy passage at the General Assembly. He said, “We don’t know what success we will have with the legislature. We have never had much.”

Pless was right. Lawyers in the General Assembly immediately suspected the Bar Association of elitism. Its proposal was “hotly contested,” “spirited,” and personal. John McMillan points to an exchange between a legislator and the spokesman for the Bar Association that was reported at the time by The Raleigh News and Observer:

“Who daddied this thing?” demanded the Senator.

“The North Carolina Bar Association at its meeting last year in Asheville,” replied Mr. Bailey.

“I’ll tell you that it passed by a very small majority and over protest,” asserted Senator Kirkpatrick.

“That is not true,” said Mr. Bailey.

“You aren’t calling me what I ain’t, are you?” queried the senator, his face turning crimson.

“I may call you what you are,” Mr. Bailey shot back.

The two were declared out of order.

Upon learning that lawyers would be required to pay State Bar dues of $4 a year, another legislator pronounced that “anything you want me to join that costs over $1, I don’t want it unless I can eat it or wear it.” Dues were cut to $3 a year.

Opponents suspected elitism from the start:

Mr. Grant … charged that the bill was concocted at the Asheville convention last summer and that the convention was attended only by railroad lawyers who rode there on passes while the poor lawyers were unable to stir from home.

But the bill passed and the State Bar was created.

Today, North Carolina, led by Chief Justice Mark Martin, is a national leader in scrutinizing the system and studying the future of legal services. Many of the old questions are back. Perhaps some of the old spirits are back, too.

A theme that’s surely back is the importance to North Carolina’s economy of keeping the State’s legal services delivery processes efficient and aligned with the national system.

 

 

ABA studies the future; Axiom opens an office: hires lawyers in Charlotte

The American Bar Association recently released its Report on the Future of Legal Services in the United States. Not long afterward, the ABA House of Delegates refused to approve outside investment in law firms. The ABA Commission on the Future of Legal Services contemplates state-by-state examinations of the issue, to be followed by local decisions state by state.

Last week, Axiom, a provider of “legal solutions” and “leader in the business of law,” announced opening an office in Charlotte.

Axiom is not a law firm. It is a business. It employs lawyers. It delivers legal services. It is an “alternative to the traditional law firm” — “more flexible, elastic, and commercially-minded”.

Axiom has begun hiring lawyers for Charlotte. It is hiring “elite talent that wants to practice in the Axiom mode.” And “looking at every practice area.”

So, there’s them that studies and them that does.

 

An Eastern planter and a Piedmont abolitionist — William Horn Battle hanging out with Richard Mendenhall – Wait! What?

Richard Mendenhall

William Horn Battle

OK – now I am fascinated.

In Memories of an Old-Time Tar Heel, Kemp Plummer Battle recalls a trip that he and his father, William Horn Battle, made to Asheville in the summer of 1848. Kemp was sixteen years old. On the way, they stopped at Jamestown where they spent an evening with Richard Mendenhall, “an old acquaintance of my father.”

Here is part of Kemp Battle’s account:

Near Greensborough we met an old acquaintance of my father, a refined and educated Quaker named Richard Mendenhall. On parting, he said courteously, “Come and see me, Kemp, and I will entertain thee for thy father’s sake until I know thee and can entertain thee for thy own.” I afterwards found this was a quotation from Swift’s Tale of a Tub.

While Mr. Mendenhall did not keep a hotel, he was willing to furnish meals to travelers at his house in Jamestown (pronounced “Jimston”). My father and I had dinner with him. Some friends had told me that he was fond of testing their knowledge of history. I determined to put a bluff on him. He began by asking me what was a giaour, the title of one of Byron’s poems. I happened to know that it was a name given by the Turks to disbelievers in Islamism. I answered his question and at once plied him with counter historical questions so fast that he refrained from catechising me further.

A nice story. Old-time Tar Heels, indeed. You can visit the Mendenhall home in Jamestown today and see where they were.

But how did William Horn Battle come to be acquainted with Richard Mendenhall? They were an unlikely pair.

William Horn Battle was born and raised in Battleboro (then) in Edgecombe County, a town founded by his grandfather. His family were farmers and slaveholders and founders of one of the oldest cotton mills in the state, which operated with slave labor. Battle himself was a lawyer, banker, judge and North Carolina Supreme Court Justice. He is acknowledged as the founder of the UNC Law School. Conservative at his core, William Horn Battle was the very embodiment of the antebellum establishment. He prominently opposed licensing women to practice law.  Son, Kemp, among other roles, was president of the Chatham Railroad Company, Treasurer of the State, and president of the University of North Carolina.

Richard Mendenhall was born and raised in Jamestown in Guilford County, a town founded by his father and named for his grandfather who settled it. Mendenhall operated what is now preserved as the Mendenhall Plantation. He was a tanner, merchant, and educator. He was also an abolitionist and a founder and president of the Manumission Society of North Carolina. He led in transporting African Americans to Liberia and Haiti. He is said to have been a principal in the Underground Railroad. His younger brother, George C. Mendenhall, was a prominent lawyer, legislator, and UNC trustee. George was a large slaveholder, who formed companies of slaves that operated variously as builders, caterers, farm laborers, etc. Under Richard’s influence, George and his wife transported their slaves to freedom in the Midwest, thereby stimulating celebrated litigation. As a lawyer, George defended abolitionists and free blacks. Richard Mendenhall’s sons were a lawyer, bankers, investors in cotton mills, and leaders in building the North Carolina Railroad.  His son, Nereus Mendenhall, served as president and kept Guilford College open through the Civil War and afterward. Guilford College, when led by Mendenhall, has been characterized  as an “island of moderation, surrounded by a sea of fundamentalism.”

Both the Battles and the Mendenhalls were Whigs and unionists. But, when war came the Battles were ardent supporters of the Confederacy. The Mendenhalls, Quakers, stood aside from the war. Some were imprisoned and abused for refusing to fight. Nereus Mendenhall interceded with Jefferson Davis to arrange legal protections for Quakers and other pacifists.

So William Horn Battle and Richard Mendenhall seem unlikely dinner companions. An eastern planter and a Piedmont abolitionist. Each might rather have regarded the other as a Carolina giaour, than as a dinner-table discussant of literature and history. (Sixteen-year-old Kemp Battle later became professor of history at UNC.)

MidLaw’s theory is that Battle and Mendenhall may have become acquainted in Raleigh, perhaps in connection with Richard’s service in the General Assembly (if he did serve, as MidLaw believes he did).

Or, it may have been that William Horn Battle and Richard Mendenhall were simply a pair of civil, cultivated people, North Carolina leaders, from different backgrounds and with different points of view in what was becoming an increasingly divided society. Old-time Tar Heels.

Window into NC lawyers in the 19th Century, Kemp P. Battle’s memories

Kemp Plummer Battle

At the second-hand bookstore in the Raleigh-Durham airport the other day, I came across a copy of Memories of an Old-Time Tar Heel, the compendium of Kemp Plummer Battle’s memories and anecdotes. Himself a lawyer (also a railroad president, university president, Edgecombe County farmer, and more), so were his father, William Horn Battle, and others in his family.

So Battle’s memories include many a lawyer story. Those stories are windows into the North Carolina Bar in the mid-nineteenth century. Below is a good one that shows lawyers and also Battle’s densely-packed style.

Judge Thomas Ruffin, the younger, had probably the ability of his father. In his younger days, he was not a hard student of legal principles, although he gave his whole mind to the trial of his cases. Indeed, so eager was he for victory that there were accusations of sharp practice. But I personally had no evidence of this. On the contrary, when thrown intimately with him for a day or two once, I was struck by his high-toned principles. I remarked to one of the best of men, his law partner Judge Dillard, “Ruffin is a lawyer who can be relied on for utter fairness.” Dillard smilingly said, “He is a rascal like the rest of us.” He meant only that in the hot excitement of trials he might take positions which non-lawyers might think not strictly fair. But it should be remembered that lawyers giving their minds to the cause of their clients, studying mainly the arguments for their side, necessarily become biased. It is impossible for them to act as impartial judges. This is illustrated by what Judge James C. MacRae told me about a trial over which he presided. A certain lawyer made a speech advocating a construction of the law which did not meet the judge’s approval and he said, “Surely you do not claim that to the be the law?” “Well, Judge, I can’t say that I do, but I did not know how it would strike your Honor.”

Come to think of it, this practice may have survived the 19^th Century.

Tarboro-grown lawyer now prominent NC leader, delivering access to justice

And now it’s time for a word from our sponsor.

Our sponsor (indirectly anyway) is the North Carolina legal system.

Unhappily, it has come upon some hard times in recent years.

As recently noted, our economy and society have become extraordinarily more complex as compared with the days when tobacco was king and music had a back beat you could not lose. In today’s more complex world, vastly more people need legal services than ever before. And many fewer can afford lawyers than before.

This falls most heavily on the poor, of whom North Carolina has many. Twenty-three percent of North Carolinians cannot afford lawyers when they need’em. Eighty percent of the legal needs of poor people are not met.

That’s bad news. The results clog the courts system, burden the State and slow our economy.

The good news is that a Tarboro native and lawyer is at the forefront of bringing legal services to people who can’t afford them. She is a leader at the State and national levels — and she is widely recognized for her exceptional abilities and good works.

Celia Pistolis, formerly of Baker Street.

In her role as Director of Advocacy at Legal Aid of North Carolina, Celia supervises one of the largest staffs of lawyers in the State and manages what is surely the largest network of law offices. In her role as chair of the North Carolina Equal Justice Alliance, Celia also leads the principal association of all the major providers of legal services to poor people in North Carolina.

Celia was honored in 2012 by UNC Law School, which granted her a Distinguished Alumni Award, putting her in company with some of the most accomplished lawyers in North Carolina and beyond. The North Carolina Bar Association awarded her the Outstanding Legal Services Attorney Award as far back as 2002. And the Z. Smith Reynolds Foundation selected her to receive a special sabbatical award in 2011 in recognition of her service.

Celia is an important leader doing badly needed work. She is in the middle of a distinguished career. A great Tarboro lawyer.

So, MidLaw’s sponsor, the North Carolina legal system, has great needs and Tarboro-born-and-raised lawyer Celia Pistolis is a key leader in meeting those needs. She is getting results.  In 2012, the total impact of legal aid in North Carolina was $48,775,276.

There’s a lot more to be done. Federal and state funding have steadily been cut. Private resources are needed. It’d be a good thing to give Celia’s organization a few bucks.

The Lawyers Weekly Interview, Part II: details never before revealed about life & career of MidLaw scrivener

The last post before this one set out the first part of the North Carolina Lawyers Weekly’s article and interview with MidLaw’s scrivener. Heath Hamacher wrote the Lawyers Weekly piece, and edited the interview “for length and clarity.” Below is Part II, the rest of the interview, which mostly addresses personal biographical details.

LW:   Tell me a little about your upbringing and how you came to get into the practice of law.

MIDLAW:   I was born and raised in Tarboro and Edgecombe County, North Carolina, which I later learned is the center of the universe. My father was in the horse-and-mule business until that played out and his work subsided into farming. What I learned about farming caused me to develop an interest in other ways of earning a living.

I got onto the path that led me to law practice late one evening many years ago when, in the course of a gentlemen’s card game, one of the players remarked that anyone who signed up to take the law boards the next day would be released from duty and provided with transportation to either Long Binh or Saigon where the tests would be administered.

I signed up for a day off, and one thing led to another.

 

LW:   Tell me about your practice area and exactly what you do as an attorney.

MIDLAW:   I started in a very general business law practice, focused mainly on litigation; then I followed opportunities that led to me becoming the general counsel of the North Carolina Savings and Loan League and later the North Carolina Bankers Association, and to representing financial services companies.

The time came about 15 years ago when my partners, Jim Williams and Dan McGinn, came and asked me to consider becoming the managing partner of our firm. I thought about that and agreed to do it if the partners approved, but on two conditions; namely: (i) that I could not both serve clients and also be managing partner at the same time, and (ii) that I would not be required ever to fill out a time sheet again. (I was bluffing about the second one, but it worked.)

At midnight this past December 31, Reid Phillips became our managing partner and now I am sort of rebuilding what I do. Something will come up.

 

LW:   Where did the idea of doing a blog come from? Its subject matter is pretty eclectic. Do you just write whatever’s on your mind?

MIDLAW:   Before there were blogs, I wrote a regular series of posts for the North Carolina Bankers Association’s website; before that, I wrote legal memoranda which the S&L League published. I started doing the blog because I wanted to understand what blogs are and how they might be used by law firms. Something I published on the blog (about hummus) got written up in the Greensboro newspaper, and all of a sudden I was in the blog business.

The blog is focused on a few topics: (i) mid-size law firms and law practice management; (ii) 19th Century NC lawyers (mostly from Edgecombe and Guilford Counties) and some things about Tarboro generally; (iii) legal services delivery (I am on the IOLTA board); (iv) the importance of liberal arts education; and (v) something we call the MidLaw Diet, which is about hummus mostly.

I certainly do not write about whatever is on my mind. I might get sued.

 

LW:   Tell me about your family. Are you married? To whom? How long? How many children and their ages.

MIDLAW:   I am well and truly married to Sally Patton Winslow, as I have been ever since 1980. We are the parents of Margaret Winslow who is 32 years old and lives in Greensboro, where she is Director of Strategic Initiatives at Elon Law School; and of Ted Winslow who is 27 years old and who teaches languages and literature and lives in Castellón de la Plana, Spain.

 

LW:   What do you do when you manage to find some free time? Any hobbies besides blogging?

MIDLAW:   We have this great place in the woods in southwest Virginia, where I engage in sedentary pursuits and limited physical activities, and where I like to go whenever I can. Also, I am very involved as a trustee of a Quaker boarding school in Pennsylvania (Westtown School) and of Guilford College in Greensboro. Hobbies might include reading or something. Maybe cooking.

NC Lawyers Weekly interview of MidLaw scrivener, Part I

MidLaw’s mild mannered scrivener was interviewed by the North Carolina Lawyers Weekly last week. This was in the broader context of the recent announcement that scrivener is stepping down as managing partner of the venerable Brooks Pierce McLendon Humphrey & Leonard, after 15 years in that role.

The interview was in the vein of, “Over the course of your long career, Elder Winslow, you must have seen many changes in the practice of law. Is that not so?”

And that set the tone for the responses.

Heath Hamacher fashioned a fine article out of his questions and my answers. It’s in the current issue of Lawyers Weekly. Sort of an old-guy-speaks piece.

MidLaw is setting out the original questions and answers. in two installments. The questions below address changes in the legal profession. A later installment will be biographical ones.

LW:   What problems exist today that did not exist when you began practicing law?

MIDLAW:   Since I began practicing law, American society and the world economy have grown and expanded and become exponentially more complex. At this moment, we are in a time of huge social and economic change. All that growth and complexity and change depend critically on the law and legal system evolving to match it. Needs for legal services have grown wildly.

Our system for delivery of legal services has not kept pace.  North Carolina’s court system is underfunded. People with average to low wealth have limited access to legal services. And, our traditional system of “full service” law firms in the partnership form, responds very imperfectly to the needs before us.

LW:   What will it take to fix these problems?

MIDLAW:   We need to reinvent our system for delivering legal services, which we are well along the way to doing. We are behind the curve, but we are catching up.

New institutions, alternative services providers and new practice settings are developing almost daily. And, many organizations now have sophisticated legal departments that have evolved into really impressive contexts for professional practice.

At the core of this, we need to rethink law firms in fundamental ways – both to ensure that firms respond better to clients’ needs, and also to be sure that law firms continue to be fun and fulfilling settings for practitioners. And some firms are going there.

North Carolina probably needs to reinvent the courts system from top to bottom. Anyway, the courts need more resources.

Low wealth people must get better access to legal services. Our society is so complex. The most mundane aspects of life are bound by laws and rules. But as many as half our citizens can’t afford the expense of untangling legal snarls when they occur, or planning to avoid them. I think this is going to require radical new ways of delivering legal services. And, again, more money.

LW:   What is your biggest concern right now regarding the practice of law and what needs to be improved?

MIDLAW:   My biggest concern right now is the plight of new lawyers. So many new graduates don’t find jobs. Whether they get jobs or not, our traditional systems for bringing new lawyers into the practice and enculturating them into the community of lawyers, aren’t working the way they used to. The profession is segmenting. Lawyers have less and less in common, and less basis for trusting each other. That is clogging the system, and it makes the practice of law less gratifying for lawyers.

LW:   The practice of law has clearly changed since you began practicing. Have you seen positive changes? If so, what are they?

MIDLAW:   In your earlier questions, you asked me about problems so I gave you problems. But please understand: I believe that positive changes abound. Our law firm had a planning retreat last weekend; and our partner, Jim Williams, who is far, far older than I am, said the same thing. He said, “Now is the best time there has ever been to practice law.” He is absolutely right.

Let me list some positive changes (there are so many):

1. The bar is much more sophisticated than in the past, and are therefore able to be of immediate assistance to clients who need top-notch, sophisticated solutions.
2. Access to the law and legal resources for lawyers is improved infinitely. Virtually all lawyers have access to virtually all the law virtually all the time – much of it at vastly reduced expense.
3. Resources for continuing education and professional improvement have gone from essentially none (I remember the NC Bar Association’s first CLE courses), to constant and limitless. That has made a big difference in the quality of the law practice.
4. All of the alternative dispute resolution processes – mediation, arbitration, etc. – have been great improvements over what we did before, settling on the courthouse steps, etc.
5. Non-legal resources for lawyers have come into being. Lawyers may have been among the last professions to regularly access to things like self-improvement and quality-of-life resources and training; psychological, wellness and substance abuse counselling and help; and life transition services.
6. Our tools of the trade are miracles: word processing, scanning, emailing and cell phones. Once, there was carbon paper and whiteout. Once, law firms in New York would charter airplanes to deliver papers to us to get them filed on time.
7. We are in a time when the world needs lawyers more than ever before. What we do matters.
8. Millennials sound to me like they may have values and attributes that suit them better to be lawyers than any generation since the 19th Century.

LW:   You said that North Carolina is one of the finest places in the world and needs well-educated lawyers to lead and make it the best. Tell me about that.

MIDLAW:   North Carolina has always been a tapestry of small towns with distinctive, vibrant and interesting local cultures. Local people lead and define their local communities. Lawyers are key contributors to the infrastructure of communities. They are well educated critical thinkers; their training is values-based; and they are uniquely able to articulate community mores. Of course, lawyers are critical to commerce and to the system of justice; and lawyers are connectors. The good ones are peacemakers.

[To be continued in a future post. Return next week to MidLaw & Divers Items, to learn fascinating details of the scrivener’s personal life elicited by Lawyers Weekly reporter Heath Hamacher. Or, as Lawyers Weekly may prefer, get the current issue of that organ to see the entire interview, “edited for length and clarity”.]