Tag Archives: NC Lawyers

Closing the loop on legal aid, not in a good way

The budget finally adopted by North Carolina’s General Assembly entirely eliminates funding for the State’s legal aid agencies ($1.7 million).

Until now, that amount had been generated by taking $1.50 from every court fee and distributing it to Legal Aid of North Carolina, Legal Services of Southern Piedmont and Pisgah Legal Services, which provide legal services to poor people in North Carolina.

The point has been made here that as many as a third of North Carolina citizens qualify for legal aid. Sixty percent of Legal Aid of North Carolina’s clients earn less than $15,000 a year.

Those people, like the rest of us, must have access to the legal system, even if they can’t afford it, where

  • They are victims of domestic violence
  • They don’t get child support
  • They need to create guardianships for their grandchildren
  • They get ripped off by scammers of the elderly
  • They get fouled up applying for legislated benefits, including veterans benefits

and in a great range of other cases.

This is not a partisan issue.

21st Century society is complex. It cannot move without legal process. Everyone must use the system. And everybody needs access to legal services when they do.

Legal aid helps people get a hearing. It does not engage in politics. It does not pursue social change. And it does not target interest groups.

We all need the legal system to work at a minimal level for everybody who’s involved with it. Otherwise, over time bigger problems will develop.

For the General Assembly to stop a small portion of court fees from going to fund legal aid is bad for everyone, not just poor people.

The legislature made a mistake.

 

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“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.

 

 

Holiday special: low rates for legal research and document review if you act now!

Xmas still life - red balls, tinsel with blurred red Christmas lights bokeh background

Holiday prices on selected services. Order now!

Did MidLaw recently say that “non-lawyer competitors are thriving based on the proposition that much that law firms do is not the practice of law”?

Well, you can get holiday pricing with that.

MidLaw received an email message that same day (subject: “Christmas Blast”) from somebody in India who offered an “end of the year special.” Special low rates, good only until December 31, for

  • Legal research
  • Summarizing medical records, depositions and trial transcripts
  • Indexing, proofreading & cite-checking of legal documents
  • Preparing case chronologies
  • Review of legal documents
  • Preparation of discovery requests & responses
  • Contract review and abstraction
  • Drafting of summons & complaints
  • Doing redactions, and applying bate-stamps on legal documents
  • Data entry, form fill-ups, template based drafting
  • Making entries on accounting systems.

I am serious. This offer came from a firm that is “not a law firm and neither provides legal advice nor practices law.”

Cut-rate legal research and document review. But you must act now!

How beautiful on the mountains are the feet of those who bring good news.

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

cat-in-tieThe 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.

 

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

Kemp Plummer Battle

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 19th Century.

Impressive AG with the best roots: northeastern NC near Tarboro, then Greensboro

Loretta LynchUS Attorney General Loretta Lynch was on the Sunday AM news shows this morning to talk about the Orlando killings. She is very impressive.

Fascinates me to know that her father is from Oak City. She was born in Greensboro.

No real significance to that, I suppose, but still …. More on the theme of notable lawyers from around here. Keeping the compendium complete.

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.Rabbit

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”.]

Henry Frye’s portrait at Supreme Court alongside Thomas Ruffin’s

HenryFrye

Brooks Pierce photograph of Henry Frye

Henry Frye’s portrait was unveiled at the North Carolina Supreme Court last Tuesday afternoon. It will be hung in the courtroom, as portraits of every other North Carolina Chief Justice have been since Chief Justice Ruffin’s was put up in 1858.

Chief Justice Thomas Ruffin was among the most distinguished North Carolinians of his day. He was a jurist of the first rank. Authorities such as Chief Justice William Howard Taft and Justice Felix Frankfurter ranked him as a pioneer in adapting the English common law to the quasi-frontier conditions in the United States.His decisions were followed more than any others by the southern and western courts. Roscoe Pound rated him one of the ten foremost jurists in the United States.

Mathew Brady photograph of Thomas Ruffin

Mathew Brady photograph of Thomas Ruffin

Today though, Justice Ruffin is most often remembered for his opinion in State v. Mann (1829), on the incidents of slavery. In short, he concluded that a slaveholder was not liable for abusing an enslaved person and was within his rights to beat a slave savagely without cause. Contemporary scholars have concluded that Ruffin, himself a slaveholder and at one time a slave trader, was actively seeking to protect the institution of slavery in State v. Mann and other opinions, and was, in his personal life, a cruel slave master.

Justice Ruffin’s is the earliest portrait in the courtroom. Justice Frye’s will become the latest.

Speakers last Tuesday (Chief Justice Martin, Governor Hunt, US Court of Appeals Judge Wynn, and Brooks Pierce partner, Jim Williams), celebrated Chief Justice Frye as one of the most distinguished North Carolinians of his day, and also a first rank jurist.

Henry Frye is North Carolina’s first African American Chief Justice. He was the first African American member elected to the North Carolina General Assembly in the 20th Century. He is a champion of voting rights for African Americans and disenfranchised people; and Tuesday’s speakers universally affirmed that, in his person, Henry Frye is a gentle man.

Esse quam videri. Ruffin and Frye.

 

Supreme Court of North Carolina

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Another dark side of law practice, but a core of great price

When they enter law school, law students experience depression and substance abuse in about the same proportions as everybody else (about 8% of the population). But, by the time they graduate, 40% of law students are clinically depressed. (This percentage drops in subsequent years, but remains a multiple of rates for the general population.)albatross

Professor Brian Clarke brought this news to Brooks Pierce last week. The assertion that law school generates depression at such high levels is both hard to believe, and almost impossible not to respond to with a sardonic quip about law schools.

EXCEPT, Professor Clarke supports his claim with data. Clarke, Brian S., Coming Out in the Classroom: Law Professors, Law Students and Depression (August 1, 2014). Journal of Legal Education, Forthcoming. Available at SSRN.  AND, depression and substance abuse are perhaps beyond the purview of quips and sarcasm.

Professor Clarke’s presentation at Brooks Pierce, “The Dark Side of the Practice of Law, a Mental Health Program for Lawyers,” was sponsored by the North Carolina Lawyer Assistance Program. It was engaging and useful and about as upbeat as the dark side can be.

Clarke’s news comes even as advice to stay away from law school is redoubling (“most law students are in for disappointment when they graduate”).

This winter of our profession’s discontent.

And yet it is hard – no, impossible – not to admire the courage and grit and service of lawyers like Brian Clarke and Louis Allen and Kathy Klotzberger and John Sarratt and many others associated with the Lawyer Assistance Program. They are pearls of great price.

Partisan election of judges has led to assassination plots, cannibals & pirates in NC courts

We have gotten past the elections now, if not their consequences. So this may be a good time for me to say that I believe judges should be selected on the basis of merit and competence rather than elected, reflecting membership in a political party or adherence to a political ideology.

Albion Tourgee

Albion Tourgee

The vast preponderance of decisions that judges make – about contracts, torts, crimes, etc. – have nothing at all to do with politics. Justice flows from judges who are independent, unbiased, able and wise – and appear to be so.

I like seeing judges come from all quarters and without labels. And, on the other hand, I am able to identify idiots in every political party. (In fact, this is a talent of mine, and I can do it on very short notice.)

Several years ago, I visited my thoughts about this on the Greensboro Bar Association, in the context of 19th Century Greensboro lawyer and judge Albion Winegar Tourgée and the judicial partisanship in his day. What I said follows, changed only a little.

Judge Tourgée, was the carpetbagger, radical and crusader for racial justice who moved to Greensboro immediately after the Civil War. Ultimately, Greensboro citizens ostracized, threatened and drove him from town. For a time though, Tourgée, the Republican Party and their allies enjoyed political sway here, and during that period Tourgée was elected to the bench.

Judge Tourgée was roundly despised by his political opponents. In the extremely partisan election campaign for his seat, one newspaper characterized Tourgée as “a shallow-brained revengeful yankee.” Another opined that he was “the meanest looking man it has ever been our misfortune to meet.” Not content with that general observation, it went on to say

The pirate; the cutthroat; the despicable, mean, cowardly, crawling, sneaking villain have been portrayed by nature … in every lineament of his countenance. The mark of infamy is stamped indelibly on his brow in the shape of a large protuberance that strikes the beholder with ineffable disgust.

Still others saw in him “a cannibal, a gorilla, the wandering Jew, a Ku Klux or Anti-Christ” and charged (falsely) that he had served time in a penitentiary.

And yet, he was elected to the bench.

Tourgée’s opponents did not desist in their opposition to him after the election. To the contrary, a plot was hatched to assassinate him in his Guilford County courtroom as he presided over criminal proceedings against members of the KKK. The plot was not consummated, but surely a planned assassination betokens an extreme of partisanship.

Despite all the invective, even Tourgée’s opponents at the bar credited him as an able, fair and, most amazingly of all, an impartial judge.

Interestingly, in Tourgée’s time politicians divided up along generally the same lines as they do today; except, in Tourgée’s time it was the Republicans and their Whiggish allies who advocated for an activist government, loose interpretation of the Constitution and levying taxes as needed to support their activist program. Democrats on the other hand, decried government participation in commerce, supported strict constructionism and abominated taxes.

Clearly, deeper wisdom has since come to both parties and they have re-wrought their ideologies accordingly. But it makes you wonder about the merits of partisanship as a guide to enduring truth.

Now, I am not suggesting that partisan judicial elections lead to assassination plots or pirates on the bench. But … that is exactly what did happen once upon a time in old Guilford County.

Just saying . . .