The Appellate Pro Bono Program is available to pro bono lawyers in North Carolina, in collaboration with the North Carolina Court of Appeals, the North Carolina Bar Association Appellate Practice Section, and the North Carolina Pro Bono Resource Center. This program matches pro bono attorneys to pro se litigants in cases before the North Carolina Court of Appeals or the North Carolina Supreme Court.
Compiled by Jessica Junqueira
Robin Tatum has joined the firm’s Raleigh office as a partner. Tatum is a land use, zoning, and municipal attorney. She served as the city attorney of Raleigh from 2018 to 2023 and as the city attorney of Asheville from 2014 to 2020. During her role as city attorney, she was the municipal representative on a drafting committee of four people. Tatum and fellow committee members revised the General Statues relating to land use and zoning, and their revisions have been enacted as N.C. Gen. Stat. § 160-D. Tatum received a J.D., summa cum laude, from North Carolina Central University School of Law. She holds a master’s and B.S. from North Carolina State University.
Brian Bernhardt has been named as a partner with the firm. Bernhardt practices in the firm’s Charlotte office. He is a taxation and wealth planning attorney. Bernhardt has represented clients on tax matters and has appeared before the IRS, the Department of Justice Tax Division, the U.S. Tax Court, the U.S. Court of Federal Claims and multiple U.S. District Courts. He has extensive experience in appellate law and has argued cases before the Supreme Court of North Carolina and the North Carolina Court of Appeals. He holds a J.D., cum laude, from the University of Michigan Law School and an A.B. from Brown University.
Nichad Davis has joined the firm’s personal injury department. He is a personal injury and civil rights attorney. Davis received a J.D. from Campbell Law School. He was the recipient of the Janette Soles Nelson Public Service Scholarship. Before attending law school, Davis was an instructor with Teach for America for three years. He obtained a B.A. in psychology at the University of North Carolina at Charlotte and graduated with honors. As an undergraduate, he was the recipient of the Martin Luther King Service Award and the University Transition Opportunities Program Mentor of the Year Award.
The Juvenile Justice & Children’s Rights Section annual CLE will be by Live Webcast on the afternoon of June 1, 2023 (starting at 12:15 p.m.). The CLE will consist of 3.0 MCLE hours, which qualify for NC State Bar Criminal Law (Juvenile Delinquency Law) Specialization and NC State Bar Child Welfare Law Specialization. The JJCR Council has supplemented the registration fee so that the first ten registrants that are members of the JJCR Section will qualify for the special rate of $70. JJCR regular rate is $125. The rate for NCBA members is $135; the rate for non-members is $160.
The CLE’s three 1.0 hr presentations/speakers are:
(1) Juvenile Interrogation – Jacqui Green of the UNC School of Government;
(2) Ethical Considerations When Representing a Juvenile – Judge Stacey Bawtinhimer, NC Office of Administrative Hearings;
(3) Building Trauma Informed Juvenile Courts in North Carolina – Chief Judge J. H. Corpening II, NC District Court – Judicial District 5, New Hanover County.
Find more information on the program on the NCBA website and register today.
Understanding the role of a guardian (or even a durable power-of-attorney) over an incompetent ward is an invaluable tool for our family law clients. One could justify a whole CLE devoted to its usefulness in this context alone. Despite the value of a guardian’s role, the establishment of the guardianship relationship has its limits. This is the holding in a recent and seminal case from the North Carolina Court of Appeals, Dillree v. Dillree, 2022-NCCOA-835.
A guardian over an incompetent spouse can separate the ward from her spouse if the guardian determines it to be in the ward’s best interest (i.e., her safety is at risk, dementia requires placement in a care facility, and the like). However, a guardian cannot create a legal separation. Namely, a guardian cannot form the determination on the ward’s behalf that such separation from her spouse is done with the intent required to cease the matrimonial cohabitation. Such power would allow the guardian to, in effect, create the necessary intent to begin the one-year separation period for purposes of a divorce and to establish the concomitant rights that come with forming such intent (equitable distribution rights, most specifically). Allowing otherwise, the court holds, is a bridge too far. There are, however, other tools at the guardian’s disposal to help protect assets and matrimonial rights for their principal, specifically, constructive trusts, charging orders, and the like.
Casey Burke
Lynna Moen
By Casey Burke and Lynna Moen
There are many wonderful reasons why attorneys engage in pro bono work. A robust pro bono practice not only greatly benefits low-income clients and the legal services organizations that serve them, but it also benefits attorneys from the private bar who take on pro bono representation. Pro bono attorneys report high levels of satisfaction, knowing that they played a significant role in helping another person who needed an attorney. It is often one of the most personally and professionally fulfilling parts of an attorney’s practice.
Section 529 provides for the creation of qualified tuition programs, better known as 529 Plans. These programs are tax-advantaged investment vehicles through which parents can save for their family’s tuition needs. 529 Plans are required by Section 529(b)(1) to be established and maintained by a state or agency or instrumentality thereof or by eligible educational institutions. Most 529 Plans are established and maintained by a state. Many states have more than one 529 Plan. Some states provide state income tax deductions for residents who contribute funds to the state’s 529 Plan.
If the requirements of Section 529 are met, no distribution or earnings under a 529 Plan are included in the gross income of either the designated beneficiary or the contributor of the plan. Thus, 529 Plans are excellent vehicles for building tax-free educational savings. Contributions to a 529 Plan are treated as a completed gift to the beneficiary on that date of the gift. Moreover, Section 529(c)(2)(B) allows for front-loading of gifts to a 529 Plan of five years of annual exclusion gifts, which are treated as if made ratably over the five-year period commencing with the year of the gift. The current annual exclusion is $17,000 per person. That means an individual can gift up to $85,000 to a 529 Plan in year 1, and a married couple can gift up to $170,000 in year one. The goal of the provision is to allow greater than annual exclusion gifts up-front to provide adequate time for investments to grow tax-free prior to the student needing funds. Finally, 529 Plan assets are not included in the gross estate of an individual except where amounts are distributed on account of the death of a beneficiary or where a donor makes an up-front five-year gift and dies before the end of the five-year period. In such case, the gross estate of the donor includes the portion of the contributions allocable to periods after the death of the donor.
When originally enacted, Section 529 allowed for tax-free distributions only where such distributions were for a qualified higher education expense, which was limited to college or university-related expenses. However, the 2017 Tax Cuts and Jobs Act expanded qualified higher education expenses to include elementary and secondary school tuition. However, Section 529(e)(3) provides an annual $10,000 limit on distributions made for elementary and secondary school education tuition. Qualified higher education expense also includes distributions to make payments on educational loans. However, there is a $10,000 total limit on such distributions.
Often there is a need to change the designated beneficiary of a 529 Plan because either the original designated beneficiary completed her education, chose not to pursue qualifying education, or otherwise did not fully utilize the funds invested in the 529 Plan. Changing the designated beneficiary of a 529 Plan is not a taxable gift provided the new beneficiary is of the same or higher generation as the old beneficiary (as determined in accordance with Section 2651), and the new designated beneficiary is a member of the family of the previous beneficiary. Member of a family is defined broadly to include spouses, children, brothers and sisters, parents, nieces and nephews, uncles and aunts, in-laws, and first cousins.
John G. Hodnette is an attorney with Johnston, Allison & Hord in Charlotte.
If you’ve been following the emergence of per- and polyfluoroalkyl substances (PFAS) over the past six years, one may think that it would be impossible to limit your exposure to PFAS as we’ve learned about its ubiquitous nature in the environment, its inability to break down and tendency to bioaccumulate, as well as its presence in many everyday consumer products.
As an industry, we’ve primarily focused on drinking-water quality as a primary route of exposure. However, ongoing research relating to our nation’s game and fish tissue and biosolid application now has us questioning the safety of our food supply. Are these compounds being taken up by the root systems of plants and transferred to the cattle being fed those plants, or are they even being taken up by the plants and vegetables we consume directly? A few other potential PFAS exposure routes include food packaging, cosmetics, the clothes we wear and the products that we launder our clothes with.
By Frank Laney
Recently the Commission has been asked to look at certain aspects of waivers and immunity for mediators. In preliminary discussions with Tara, it occurred to us (Tara) that there is a hole in the best practice advice that the Commission as well as the trainers may have been giving over the years.
Commonly, mediators have been advised that if you are mediating a case that is not referred or ordered to mediation by a court, then take advantage of the many features of the court program by incorporating the rules into your agreement to mediate. While there are lots of valuable attributes to be found in the MSC and FFS Rules, one thing that is only in the statute is immunity for the mediator.
By the Communications Committee
Jennifer is a Certified Paralegal in North Carolina and South Carolina and has been a paralegal for 25 years. She also received her Advanced Certified Paralegal Certification in Trial Practice, Land Use, and Real Property through the National Association of Legal Assistants. Jennifer attended the University of North Carolina at Charlotte and received her Bachelor of Arts in Criminal Justice in 1998. She is a Manager of Legal Services with the Office of the City Attorney in Greensboro, North Carolina. She has worked there since 2010.
This Wednesday, May 3, the North Carolina Bar Association Health Law Section will be partnering with the North Carolina Bar Foundation and the Lupus Foundation of America, North Carolina Chapter, to host a Wills for Heroes event.
Wills for Heroes is a free legal clinic offered by the North Carolina Bar Foundation in which volunteer attorneys draft simple wills, health care powers of attorney, financial powers of attorney, and advance directives for first responders and their families, free of charge.
This particular Wills for Heroes event will take place virtually, between 8:30 a.m. and 1:30 p.m. on May 3, and will benefit Lupus survivors and their spouses from the Charlotte and Raleigh areas.
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