HB2 will be the subject of the Constitutional Rights & Responsibilities Section’s upcoming annual CLE on Thursday, Feb. 9 at the Bar Center in Cary. During the section’s most recent council meeting, Eric Doggett, co-chair of our CLE committee, gave a brief summary and circulated a copy of the CLE program, which will focus on Session Law 2016-3 (House Bill2) Public Facilities Privacy and Security Act. This program will include the following topics: an HB2 overview; HB2 and the Constitution; HB2 and employment law; and panel discussions addressing the interplay between local and state authority and the status of pending court proceedings challenging HB2. This CLE program will help to better understand the details of this law and its potential implications. This program will be presented on please mark your calendars and plan to attend to earn CLE credit and learn about this timely statewide topic.
The council meeting on Nov. 17, 2016, at the Bar Center also included a great beginning with remarks from four students from The Cary Academy: Grace Jin, a senior; three juniors, Danielle Carr, Max Nunez and Margaret Velto; and their history and government teacher Maret Jones. It continued with an explanation from them as to how they related their classroom study of the U.S. Constitution to current events. As you might imagine, the discussion that ensued was very informative and entertaining. One particular classroom project conducted by these students was the convening of a mock constitutional convention in which they went over the Constitution line by line in an effort to determine if and how it could be amended to better address our changing times. Not surprisingly, these students concluded that the Constitution was very well written, and that underscores how it has withstood the test of time. Also, when asked by the council, the students responded that they would make very few changes to this venerable document. On behalf of the council I presented each student a certificate of appreciation, a reprint of the U.S. Constitution and a copy of the book “Constitutional Law for Kids” by Ursula Furi-Perry, published by the American Bar Association and provided by the NCBA’s Law Related Education Department.
Committee updates included Colin Shive’s report for our blog, The Constitutionalist. He informed the council that the Sept. 2, 2016 blog post contained an article entitled, “Economic Liberty Challenges In the 21st Century” by Drew Erteschik and J. M. Durnovich. Blog Chair Colin Shive further reported that there would be forthcoming articles for our blog from students from Elon University School of Law.
How many times a day do you think about going paperless? What about email security or digital backups? Do you spend time wondering about document automation or online legal research? Have you been thinking about upgrading your virtual law practice management tools or client communication software?
If you’ve thought about any of those questions, or if you’re just starting to think about how technology can make your practice more efficient, you’ll find something to love at the ABA Techshow 2017. And as an NCBA Member, you’re entitled to a discount! Just use code: EP1720.
ABA Techshow is the premier conference for legal technology innovators and lawyers who want to better their practices through technology. As always Techshow will happen in March in Chicago. I know. It’s not as easy as a conference at Wrightsville Beach, but it’s a great opportunity to make your practice more efficient, more responsive, and ultimately, more profitable. But I get that a multi-day trip can be intimidating, especially if you’ve never attended the conference before. So here are my top five tips for getting ready.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2017-02-06 16:06:492017-02-06 16:06:49Five Tips for Making the Most Of ABA Techshow 2017
On January 25, 2017, the 4th Circuit U.S. Court of Appeals issued two game-changing companion decisions impacting the test for determining joint and several liability under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§201, et seq., for joint employers.
Salinas, et al. v. Commercial Interiors, Inc., et al., No. 15-1915
In Salinas, the plaintiffs were employees of J.I. General Contractors, Inc. (“J.I.”), a drywall installation contractor. Plaintiff sued J.I. and Commercial Interiors, Inc. – a company offering general contracting and interior finishing services, including drywall installation – in this putative collective action as joint employers, alleging violations of the FLSA and Maryland law. The U.S. District Court of Maryland granted summary judgment to Commercial, holding that it did not jointly employ plaintiffs because J.I. and Commercial Interiors were in a traditional contractor-subcontractor relationship not intended to evade compliance with the FLSA.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2017-02-06 09:54:112017-02-06 09:54:11Fourth Circuit Announces New Standard Assessing Joint and Several Liability for Joint Employers
Can a company disguise its control over a workforce through a myriad of affiliate companies? Apparently not. DIRECTV recently learned the hard way that its “web of agreements” revealed a joint employer relationship with its affiliates. These entities directly hired the field technicians responsible for installing and servicing DIRECTV’s satellites. The 4th Circuit panel, which included Judges Wynn, Floyd, and Harris, recently clarified in Marlon Hall v. DIRECTV, LLC, No. 15-1858 (argued Oct. 27, 2016). The proper test to determine if an employer could be held jointly and severally liable in a FLSA action as a joint employer.
Background
The Plaintiffs in Hall claimed to be employees, not independent contractors, installing satellite television. Both the panel and the lower court agreed with this assessment. Plaintiffs were hired by affiliate companies based on DIRECTV’s requirements and background checks. Per the employee agreements, Plaintiffs’ work schedules were controlled by DIRECTV and they had to wear the company’s uniform. Further, DIRECTV was their primary, if not only, client.
Consequently, the Plaintiffs in Hall each brought a claim under FLSA against DIRECTV. Two of the plaintiffs, however, also brought an action against DirectSat as an affiliate and joint employer. These cases were transferred to and consolidated in the U.S. District Court for the District of Maryland. The district court dismissed the claims pursuant to a 12(b)(6) Motion holding that Plaintiffs failed to adequately allege that DIRECTV and DirectSat were joint employers. The Fourth Circuit panel reversed and remanded on substantive and procedural grounds. Read more
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2017-02-06 09:53:222017-02-06 09:53:225 FLSA Practice Pointers From Marlon Hall v. DIRECTV, LLC
Section 212(3) of the Code provides in pertinent part: “In case of an individual, there shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in connection with the determination, collection, or refund of any tax.”
The reach of the above provision is very broad. The deduction is available whether the taxing authority is the United States, a state, a municipality or a foreign country. “Any tax” is all encompassing and includes income, estate, gift, excise, property, sales and use, and any other taxes. As stated in Treas. Reg. § 1.212(l): “Thus, expenses paid or incurred by a taxpayer for tax counsel or expenses paid or incurred in connection with the preparation of his tax returns or in connection with any proceedings involved in determining the extent of tax liability or in contesting his tax liability are deductible.” Such expenses or professional fees include, among others, the preparation costs of a request for a private letter ruling or appraisal fees to determine the amount of a casualty loss deduction or a charitable contribution deduction. Thus, it does not have to be a contested tax situation to qualify – the expense only needs to arise “in connection with the determination of any tax.” See Carpenter v. United States, 338 F.2d 366 (Ct. Cl. 1964) (where taxpayer incurred legal expenses in ascertaining that substantial support payments to his former wife constituted taxable alimony to her and therefore were deductible by him). Also, it does not matter whether the taxpayer is successful in contesting the purported tax liability; he can lose the controversy with the taxing authority and still deduct the related expenses.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2017-02-03 11:40:282017-02-03 11:40:28Your Client Lost His Case To the IRS: Are His Accountant and Attorney Fees Deductible?
In the wake of the 2016 presidential election, the healthcare industry is coping with the uncertainty of a new administration, especially in light of the President’s repeated pledges to repeal and replace the Patient Protection and Affordable Care Act (“PPACA” or “Obamacare”). A repeal could affect every corner of healthcare in the United States, and those implications will become clearer in the coming months. This article anticipates what form a repeal might take, and some implications for ACOs and Medicaid providers in particular.
Partial vs. Full Repeal
Regardless of campaign rhetoric, a sudden, outright repeal of PPACA is unlikely. Without a 60-vote supermajority in the Senate, a full repeal bill could be blocked by filibuster.1 Moreover, simply repealing the law midway through the 2017 coverage period without a transition period or provision for a delayed effective date would create chaos and potentially strip millions of ACA plan members of coverage overnight, while reviving insurers’ ability to decline to insure those with pre-existing conditions or other risk factors. It would also potentially deny Medicaid coverage to millions in states where Medicaid was expanded since 2014. In fact, President Trump said in his first post-election interview that, while he prioritized moving quickly on Obamacare, he would consider leaving some parts of the law intact and that he liked certain provisions of the law.2
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2017-02-02 16:38:212017-02-02 16:38:21Life After Obamacare?
One of the greatest honors in my professional career was serving on the N.C. Commission on the Administration of Law and Justice. As a member of the commission, I was assigned to the Committee on Criminal Investigation and Adjudication. Two of the topics we focused on were pretrial justice and criminal case management.
Although various methods of pretrial release exist in North Carolina, a secured bond is the most common form of release for a person charged with a criminal offense. Few defendants can afford to post the bail amount in full. Some defendants utilize bail bondsmen, who charge a percentage of the total bond amount in exchange for obtaining the defendant’s pretrial release. Unfortunately, many defendants cannot afford either option and are forced to remain in jail. Most such defendants are also unable to retain counsel and are instead represented by court-appointed counsel, such as a public defender.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2017-02-02 13:45:482017-02-02 13:45:48Pretrial Justice and Criminal Case Management Reform
As of Feb. 1, attorneys have 28 days to get their North Carolina State Bar Mandatory Continuing Legal Education (MCLE) in for 2016.
As attorneys know, they must complete 12 hours of CLE credit each year. Two of these hours must be ethics/professional responsibility credit and at least once every three calendar years, each attorney must complete one hour of substance abuse/mental health credit.
We all know how busy things get for attorneys and how the year can easily slip away, then before you know it, the grace period is almost over and you still don’t have your CLE hours completed. For that reason, the NCBA CLE department makes sure that its February schedule is as jam-packed as possible in order to give everyone ample opportunity to get their hours completed. It is our mission to get everyone across that finish line.
Here are some numbers to highlight what February looks like at the Bar Center and around the state:
16 live programs this month in three locations — Cary, Greensboro and Pinehurst;
12 webcasts members can participate in from the comfort of their own home or office;
66 video replays happening in 17 cities all across the state including Cary, Winston-Salem, Concord, Pinehurst, New Bern, Boone, Wilson, Wilmington, Asheville, Greensboro, Fayetteville, Hickory, Lumberton, Roanoke Rapids, Charlotte, Manteo and Shelby;
40 phone/audio streaming options, five webinar options and over 800 on-demand programs to view from your computer or mobile device;
Two Marathon Days (Feb. 25 and 28) when you can earn up to 18 hours of MCLE credit including seven hours of ethics/professional responsibility and four hours of substance abuse/mental health hours.
By the time this month comes to an end, not only will we have all lawyers caught up on their MCLE credit hours, we will also be celebrating another successful February in the books.
https://www.ncbarblog.com/wp-content/uploads/2017/01/giphy.gif375500NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2017-01-31 09:50:542017-01-31 09:50:54Tick-tock: February Means Attorneys Have 28 Days To Meet CLE Deadline
On Dec. 2, 2016, the North Carolina Commission on the Administration of Law and Justice, which was the result of work by Chief Justice Martin, met for the final time. The commission worked through five committees, including the Criminal Investigation and Adjudication Committee. The Criminal Investigation and Adjudication Committee worked on several subjects, including the age of juvenile jurisdiction, pre-trial release, case management and indigent defense. The work on indigent defense was done through a subcommittee, which included members with a wide range of experience, including two Chief Public Defenders, an elected District Attorney, a Sheriff, Magistrate, as well as District and Superior Court judges. Professor Jessica Smith, from the School of Government, served as the reporter, and was instrumental in the production of the final report.
The 51-page report provides an in-depth discussion of the many challenges that any indigent defense system faces. The report also makes specific recommendations for improving North Carolina’s indigent defense system, some of which can be implemented without legislative action, and some of which will require legislation. These recommendations are a long-term blueprint for strengthening indigent defense. All of the recommendations are geared toward achieving a criminal justice system in which the quality of justice does not depend on the wealth of the defendant. The report emphasizes the importance of providing effective assistance of counsel to all who find themselves in the criminal justice system, observing that the cost of not providing effective representation includes not only wrongful convictions, but also excessive pre-trial detention, increased pressure on innocent persons to plead guilty, excessive sentences, and the dramatic collateral consequences that often accompany a criminal conviction. Indeed, the opening paragraph of the report states:
As the United States Supreme Court recently declared: “No one doubts the fundamental character of a criminal defendant’s Sixth Amendment right to the ‘Assistance of Counsel.’ ” This right is so critical that the high Court has deemed its wrongful deprivation to constitute “structural” error, affecting the very “framework within which the trial proceeds.” For indigent defendants, this fundamental right to effective assistance of counsel must be provided at state expense. When the system fails to provide this right, it denies indigent defendants justice. That denial has very real consequences for defendants, including excessive pretrial detention, increased pressure on innocent persons to plead guilty, wrongful convictions, and excessive sentences
There is no doubt that indigent defense throughout much of the United States is in a state of crisis, and that North Carolina is beginning to see the impact of lessened resources for indigent defense. The eroding quality of indigent defense is an issue that concerns not only the usual liberal supporters of providing adequate counsel for those too poor to hire a lawyer, but also conservatives, such as Charles Koch, chairman and CEO of Koch Industries. The bi-partisan recognition of the importance of a healthy indigent defense system should provide hope that positive change is possible.
The following is a quick look at some recent opinions from our neck of the woods:
First, in McAdams v. N.C. Dep’t. of Com., No. COA16-196 (N.C. App. December 6, 2016) (https://appellate.nccourts.org/opinions/?c=2&pdf=34582), the Court of Appeals of North Carolina upheld the trial court’s 12(b)(6) dismissal of the plaintiff’s wrongful discharge and whistle blower claims.
In Brown & Pipkins, LLC v. Service Employees International Union, Local 32BJ, No. 15-1931 (4th Cir. Jan. 23, 2017) (http://www.ca4.uscourts.gov/Opinions/Published/151931.P.pdf), the Fourth Circuit affirmed the district court’s confirmation of four labor arbitration awards, relying primarily on its review of a labor-arbitration decision under a CBA, and holding that the Union waived its claim for attorneys’ fees by not complying with Federal Rule of Civil Procedure 54.
Finally, in The Goodyear Tire & Rubber Co. v. Comm’r of Lab. of State of N.C., No. COA16-520 (N.C. App. Jan. 17, 2017) (https://appellate.nccourts.org/opinions/?c=2&pdf=34823), the Court of Appeals of North Carolina affirmed a lower court ruling—and NCOSHA order—finding that the company violated 29 C.F.R. § 1910.23(c)(1) by failing to install certain elevated railings surrounding its tire presses.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2017-01-26 11:26:572017-01-26 11:26:57Recent North Carolina and Fourth Circuit Opinions
The Chair’s Comments
Constitutional Rights & Responsibilities SectionHB2 will be the subject of the Constitutional Rights & Responsibilities Section’s upcoming annual CLE on Thursday, Feb. 9 at the Bar Center in Cary. During the section’s most recent council meeting, Eric Doggett, co-chair of our CLE committee, gave a brief summary and circulated a copy of the CLE program, which will focus on Session Law 2016-3 (House Bill2) Public Facilities Privacy and Security Act. This program will include the following topics: an HB2 overview; HB2 and the Constitution; HB2 and employment law; and panel discussions addressing the interplay between local and state authority and the status of pending court proceedings challenging HB2. This CLE program will help to better understand the details of this law and its potential implications. This program will be presented on please mark your calendars and plan to attend to earn CLE credit and learn about this timely statewide topic.
The council meeting on Nov. 17, 2016, at the Bar Center also included a great beginning with remarks from four students from The Cary Academy: Grace Jin, a senior; three juniors, Danielle Carr, Max Nunez and Margaret Velto; and their history and government teacher Maret Jones. It continued with an explanation from them as to how they related their classroom study of the U.S. Constitution to current events. As you might imagine, the discussion that ensued was very informative and entertaining. One particular classroom project conducted by these students was the convening of a mock constitutional convention in which they went over the Constitution line by line in an effort to determine if and how it could be amended to better address our changing times. Not surprisingly, these students concluded that the Constitution was very well written, and that underscores how it has withstood the test of time. Also, when asked by the council, the students responded that they would make very few changes to this venerable document. On behalf of the council I presented each student a certificate of appreciation, a reprint of the U.S. Constitution and a copy of the book “Constitutional Law for Kids” by Ursula Furi-Perry, published by the American Bar Association and provided by the NCBA’s Law Related Education Department.
Committee updates included Colin Shive’s report for our blog, The Constitutionalist. He informed the council that the Sept. 2, 2016 blog post contained an article entitled, “Economic Liberty Challenges In the 21st Century” by Drew Erteschik and J. M. Durnovich. Blog Chair Colin Shive further reported that there would be forthcoming articles for our blog from students from Elon University School of Law.
Read more
Five Tips for Making the Most Of ABA Techshow 2017
Featured PostsHow many times a day do you think about going paperless? What about email security or digital backups? Do you spend time wondering about document automation or online legal research? Have you been thinking about upgrading your virtual law practice management tools or client communication software?
If you’ve thought about any of those questions, or if you’re just starting to think about how technology can make your practice more efficient, you’ll find something to love at the ABA Techshow 2017. And as an NCBA Member, you’re entitled to a discount! Just use code: EP1720.
ABA Techshow is the premier conference for legal technology innovators and lawyers who want to better their practices through technology. As always Techshow will happen in March in Chicago. I know. It’s not as easy as a conference at Wrightsville Beach, but it’s a great opportunity to make your practice more efficient, more responsive, and ultimately, more profitable. But I get that a multi-day trip can be intimidating, especially if you’ve never attended the conference before. So here are my top five tips for getting ready.
Read more
Fourth Circuit Announces New Standard Assessing Joint and Several Liability for Joint Employers
Labor & Employment LawOn January 25, 2017, the 4th Circuit U.S. Court of Appeals issued two game-changing companion decisions impacting the test for determining joint and several liability under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§201, et seq., for joint employers.
Salinas, et al. v. Commercial Interiors, Inc., et al., No. 15-1915
In Salinas, the plaintiffs were employees of J.I. General Contractors, Inc. (“J.I.”), a drywall installation contractor. Plaintiff sued J.I. and Commercial Interiors, Inc. – a company offering general contracting and interior finishing services, including drywall installation – in this putative collective action as joint employers, alleging violations of the FLSA and Maryland law. The U.S. District Court of Maryland granted summary judgment to Commercial, holding that it did not jointly employ plaintiffs because J.I. and Commercial Interiors were in a traditional contractor-subcontractor relationship not intended to evade compliance with the FLSA.
Read more
5 FLSA Practice Pointers From Marlon Hall v. DIRECTV, LLC
Labor & Employment LawBy Anitra K. Brown
Can a company disguise its control over a workforce through a myriad of affiliate companies? Apparently not. DIRECTV recently learned the hard way that its “web of agreements” revealed a joint employer relationship with its affiliates. These entities directly hired the field technicians responsible for installing and servicing DIRECTV’s satellites. The 4th Circuit panel, which included Judges Wynn, Floyd, and Harris, recently clarified in Marlon Hall v. DIRECTV, LLC, No. 15-1858 (argued Oct. 27, 2016). The proper test to determine if an employer could be held jointly and severally liable in a FLSA action as a joint employer.
Background
The Plaintiffs in Hall claimed to be employees, not independent contractors, installing satellite television. Both the panel and the lower court agreed with this assessment. Plaintiffs were hired by affiliate companies based on DIRECTV’s requirements and background checks. Per the employee agreements, Plaintiffs’ work schedules were controlled by DIRECTV and they had to wear the company’s uniform. Further, DIRECTV was their primary, if not only, client.
Consequently, the Plaintiffs in Hall each brought a claim under FLSA against DIRECTV. Two of the plaintiffs, however, also brought an action against DirectSat as an affiliate and joint employer. These cases were transferred to and consolidated in the U.S. District Court for the District of Maryland. The district court dismissed the claims pursuant to a 12(b)(6) Motion holding that Plaintiffs failed to adequately allege that DIRECTV and DirectSat were joint employers. The Fourth Circuit panel reversed and remanded on substantive and procedural grounds.
Read more
Your Client Lost His Case To the IRS: Are His Accountant and Attorney Fees Deductible?
Tax Section, UncategorizedSection 212(3) of the Code provides in pertinent part: “In case of an individual, there shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in connection with the determination, collection, or refund of any tax.”
The reach of the above provision is very broad. The deduction is available whether the taxing authority is the United States, a state, a municipality or a foreign country. “Any tax” is all encompassing and includes income, estate, gift, excise, property, sales and use, and any other taxes. As stated in Treas. Reg. § 1.212(l): “Thus, expenses paid or incurred by a taxpayer for tax counsel or expenses paid or incurred in connection with the preparation of his tax returns or in connection with any proceedings involved in determining the extent of tax liability or in contesting his tax liability are deductible.” Such expenses or professional fees include, among others, the preparation costs of a request for a private letter ruling or appraisal fees to determine the amount of a casualty loss deduction or a charitable contribution deduction. Thus, it does not have to be a contested tax situation to qualify – the expense only needs to arise “in connection with the determination of any tax.” See Carpenter v. United States, 338 F.2d 366 (Ct. Cl. 1964) (where taxpayer incurred legal expenses in ascertaining that substantial support payments to his former wife constituted taxable alimony to her and therefore were deductible by him). Also, it does not matter whether the taxpayer is successful in contesting the purported tax liability; he can lose the controversy with the taxing authority and still deduct the related expenses.
Read more
Life After Obamacare?
Health Law Sectionand Natalma “Tami” McKnew
In the wake of the 2016 presidential election, the healthcare industry is coping with the uncertainty of a new administration, especially in light of the President’s repeated pledges to repeal and replace the Patient Protection and Affordable Care Act (“PPACA” or “Obamacare”). A repeal could affect every corner of healthcare in the United States, and those implications will become clearer in the coming months. This article anticipates what form a repeal might take, and some implications for ACOs and Medicaid providers in particular.
Partial vs. Full Repeal
Regardless of campaign rhetoric, a sudden, outright repeal of PPACA is unlikely. Without a 60-vote supermajority in the Senate, a full repeal bill could be blocked by filibuster.1 Moreover, simply repealing the law midway through the 2017 coverage period without a transition period or provision for a delayed effective date would create chaos and potentially strip millions of ACA plan members of coverage overnight, while reviving insurers’ ability to decline to insure those with pre-existing conditions or other risk factors. It would also potentially deny Medicaid coverage to millions in states where Medicaid was expanded since 2014. In fact, President Trump said in his first post-election interview that, while he prioritized moving quickly on Obamacare, he would consider leaving some parts of the law intact and that he liked certain provisions of the law.2
Read more
Pretrial Justice and Criminal Case Management Reform
Featured PostsOne of the greatest honors in my professional career was serving on the N.C. Commission on the Administration of Law and Justice. As a member of the commission, I was assigned to the Committee on Criminal Investigation and Adjudication. Two of the topics we focused on were pretrial justice and criminal case management.
Although various methods of pretrial release exist in North Carolina, a secured bond is the most common form of release for a person charged with a criminal offense. Few defendants can afford to post the bail amount in full. Some defendants utilize bail bondsmen, who charge a percentage of the total bond amount in exchange for obtaining the defendant’s pretrial release. Unfortunately, many defendants cannot afford either option and are forced to remain in jail. Most such defendants are also unable to retain counsel and are instead represented by court-appointed counsel, such as a public defender.
Read more
Tick-tock: February Means Attorneys Have 28 Days To Meet CLE Deadline
Featured Posts, UncategorizedReady or not, February is upon us.
As of Feb. 1, attorneys have 28 days to get their North Carolina State Bar Mandatory Continuing Legal Education (MCLE) in for 2016.
As attorneys know, they must complete 12 hours of CLE credit each year. Two of these hours must be ethics/professional responsibility credit and at least once every three calendar years, each attorney must complete one hour of substance abuse/mental health credit.
We all know how busy things get for attorneys and how the year can easily slip away, then before you know it, the grace period is almost over and you still don’t have your CLE hours completed. For that reason, the NCBA CLE department makes sure that its February schedule is as jam-packed as possible in order to give everyone ample opportunity to get their hours completed. It is our mission to get everyone across that finish line.
Here are some numbers to highlight what February looks like at the Bar Center and around the state:
By the time this month comes to an end, not only will we have all lawyers caught up on their MCLE credit hours, we will also be celebrating another successful February in the books.
Chief Justice’s Commission Issues Report With Blueprint For Improving Indigent Defense
Featured PostsOn Dec. 2, 2016, the North Carolina Commission on the Administration of Law and Justice, which was the result of work by Chief Justice Martin, met for the final time. The commission worked through five committees, including the Criminal Investigation and Adjudication Committee. The Criminal Investigation and Adjudication Committee worked on several subjects, including the age of juvenile jurisdiction, pre-trial release, case management and indigent defense. The work on indigent defense was done through a subcommittee, which included members with a wide range of experience, including two Chief Public Defenders, an elected District Attorney, a Sheriff, Magistrate, as well as District and Superior Court judges. Professor Jessica Smith, from the School of Government, served as the reporter, and was instrumental in the production of the final report.
The 51-page report provides an in-depth discussion of the many challenges that any indigent defense system faces. The report also makes specific recommendations for improving North Carolina’s indigent defense system, some of which can be implemented without legislative action, and some of which will require legislation. These recommendations are a long-term blueprint for strengthening indigent defense. All of the recommendations are geared toward achieving a criminal justice system in which the quality of justice does not depend on the wealth of the defendant. The report emphasizes the importance of providing effective assistance of counsel to all who find themselves in the criminal justice system, observing that the cost of not providing effective representation includes not only wrongful convictions, but also excessive pre-trial detention, increased pressure on innocent persons to plead guilty, excessive sentences, and the dramatic collateral consequences that often accompany a criminal conviction. Indeed, the opening paragraph of the report states:
As the United States Supreme Court recently declared: “No one doubts the fundamental character of a criminal defendant’s Sixth Amendment right to the ‘Assistance of Counsel.’ ” This right is so critical that the high Court has deemed its wrongful deprivation to constitute “structural” error, affecting the very “framework within which the trial proceeds.” For indigent defendants, this fundamental right to effective assistance of counsel must be provided at state expense. When the system fails to provide this right, it denies indigent defendants justice. That denial has very real consequences for defendants, including excessive pretrial detention, increased pressure on innocent persons to plead guilty, wrongful convictions, and excessive sentences
There is no doubt that indigent defense throughout much of the United States is in a state of crisis, and that North Carolina is beginning to see the impact of lessened resources for indigent defense. The eroding quality of indigent defense is an issue that concerns not only the usual liberal supporters of providing adequate counsel for those too poor to hire a lawyer, but also conservatives, such as Charles Koch, chairman and CEO of Koch Industries. The bi-partisan recognition of the importance of a healthy indigent defense system should provide hope that positive change is possible.
Read more
Recent North Carolina and Fourth Circuit Opinions
Labor & Employment LawThe following is a quick look at some recent opinions from our neck of the woods:
First, in McAdams v. N.C. Dep’t. of Com., No. COA16-196 (N.C. App. December 6, 2016) (https://appellate.nccourts.org/opinions/?c=2&pdf=34582), the Court of Appeals of North Carolina upheld the trial court’s 12(b)(6) dismissal of the plaintiff’s wrongful discharge and whistle blower claims.
In Brown & Pipkins, LLC v. Service Employees International Union, Local 32BJ, No. 15-1931 (4th Cir. Jan. 23, 2017) (http://www.ca4.uscourts.gov/Opinions/Published/151931.P.pdf), the Fourth Circuit affirmed the district court’s confirmation of four labor arbitration awards, relying primarily on its review of a labor-arbitration decision under a CBA, and holding that the Union waived its claim for attorneys’ fees by not complying with Federal Rule of Civil Procedure 54.
Finally, in The Goodyear Tire & Rubber Co. v. Comm’r of Lab. of State of N.C., No. COA16-520 (N.C. App. Jan. 17, 2017) (https://appellate.nccourts.org/opinions/?c=2&pdf=34823), the Court of Appeals of North Carolina affirmed a lower court ruling—and NCOSHA order—finding that the company violated 29 C.F.R. § 1910.23(c)(1) by failing to install certain elevated railings surrounding its tire presses.