Immigration Lawyers in NC

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					          THE NORTH CAROLINA STATE BAR




JOURNAL
FALL
2006




                 IN THIS ISSUE
       Immigration—A Broken System page 8
           Ideals and High Heels page 20
         Professionalism in Practice page 34
                     Immigration—A Broken System
BY C. LYNN CALDER, A                    LICE        S. GLOVER,          AND     JOHN L. PINNIX




L
                          ike it or not, every-


                          where you turn


                          these days you hear


                          talk of immigra-


tion. North Carolina has experienced some


of the highest growth in the nation in the

                                                        David Holloway/Getty Images
immigrant population over the past decade
                                                      Hundreds of thousands of immigrants demonstrate on May 1, 2006, in downtown Los Angeles, California.
                                                      The demonstration, called “The Great American Boycott 2006: A Day Without Immigrants” was organized
and the numbers continue to climb. North              by pro-immigrant organizations to pressure lawmakers to pass immigrant-friendly legislation that might open
                                                      the path to citizenship for millions of illegal immigrants in the United States.

Carolina attracts a variety of immigrants to the state because of several reasons.                           leader in international finance and banking
                                                                                                             and consequently, the area draws a number of
                                                                                                             foreign nationals for business purposes. The
                                                                                                             Triad is the unparalleled leader in the furni-
                                                                                                             ture industry and this industry attracts foreign
Agriculture                                           include chicken, hog, and turkey productions           labor as well as foreign purchasers.
    The farming and agriculture industry in           and operations. Many of these workers are
both the Eastern and Western parts of North           foreign nationals looking for job opportuni-           Research Institutions
Carolina draw a large number of migrant               ties and once they have found their way to                 North Carolina is a leader in higher edu-
laborers to the state each year. These industries     North Carolina, many set down roots in the             cation across the country. Within an hour’s
include both the old and established business-        state.                                                 drive, we have nearly half a dozen interna-
es of tobacco, apple, cucumber/pickle produc-                                                                tionally known institutions of higher learning.
tion as well as cotton, soybean, and peanut           International Business                                 To maintain the competitive edge, these
crops that require manual labor. The recent               The viability of the Research Triangle Park        schools court the best and the brightest from
growth in the wine industry and seafood pick-         international companies is unquestioned and            around the world and we are fortunate to have
ing and packaging businesses has created              this growth of international corporations in           a healthy number of international scholars as
increased job opportunities for manual labor-         our state has expanded to other areas of North         visiting professors and visiting students from
ers. Other established North Carolina busi-           Carolina       including     the     Charlotte         countries all over the world.
nesses which historically use foreign labor           Mecklenburg and Triad areas. Charlotte is a                As a consequence of these major sources of


8                                                                                                                                                    FALL 2006
immigration, many of these individuals end                  trary, 65,000 visa “cap” was not reached until      regional offices experiencing near gridlock.
up living in this state for many years and they             the mid-1990’s when Congress, facing a              On December 27, 2004, the DOL issued the
build their lives here. Often, they have fami-              shortage threatening to negatively impact a         final, long delayed, regulation for a new pro-
lies who eventually join them in the state and              booming economy, temporarily raised the visa        cedure: “Program Electronic Review
the state continues to see an increased need to             cap to 119,000 and later to 195,000 for fiscal      Management” (PERM), 20 CFR Parts 655
assist this population in better understanding              years 2001 - 2003. While creating limited           and 656. When it became effective on March
their rights and obligations while living in this           “carve-out” exceptions, recent Congresses per-      28, 2005, PERM became the exclusive
country, especially in light of the ever chang-             mitted the cap to revert to 65,000, despite the     method to process labor certifications.
ing immigration laws that have lasting effects              fact that the available visas are woefully inade-        PERM purports to streamline the labor
on this population.                                         quate. For instance, all of the new 65,000 H-       certification process though an “attestation,”
    Many practitioners are starting to see the              1B visas subject to the cap for fiscal year 2006    and possible audit, process. The “Promise of
effects of this diverse immigrant population in             (beginning October 1, 2005) were claimed by         PERM” was for unaudited cases to be
their practices. Tax attorneys have to consider             August 10, 2005.                                    processed in 45 to 60 days. PERM filings may
the consequences of taxes for foreign nation-                   Consequently, a public school needing a         be web-based or by mail; however, mailed
als; family lawyers must work with interna-                 math, science, or foreign language teacher          applications are discouraged since the DOL,
tional marriage, adoption, and divorce issues;              could apply for a foreign teacher on April 1,       itself, may make inaccurate entries that will
criminal attorneys need to consider the special             2006 (the earliest filing date permitted) for a     result in a denial. As of yet, there is no indica-
consequences of criminal judgments levied                   start date no earlier than October 1, 2006.         tion that there will be any amelioration for a
against foreign nationals; employment lawyers               Obviously, this creates an unacceptable             DOL error. After over a year, there is no certi-
must work with businesses and employees                     instructional dilemma. As the economy con-          tude in PERM processing and numerous
who are not US Citizens. These days, it is hard             tinues to recover, all signs indicate that the      issues are yet to be resolved. The anticipated
to think of any legal practice area that isn’t              allocation of H-1B visas will be exhausted ear-     45 to 60 day processing window for cases not
affected by the immigrant population.                       lier and earlier each year. The allocation for      subject to an audit has been illusory, with
Consequently, we hope to shed some light on                 the upcoming fiscal year was exhausted on           reports of unaudited PERM cases inexplicably
the broad topic of immigration and identify                 May 26.                                             being approved well after the “promised” 60
some of the aspects of the system that are                      A “carve-out” allocates 20,000 H-1Bs,           days.
“broken” for those who do not practice in the               which are exempt from the base 65,000 cap,               The final rule includes a procedure to con-
field of immigration and nationality law.                   to workers with a US masters degree, or high-       vert certain pending unadjudicated labor cer-
                                                            er. The 20,000 was exhausted for fiscal year        tification applications, allowing PERM pro-
Employment Based Immigration                                2006 on January 17, 2006.                           cessing. For numerous reasons that are outside
    While highly regulated, legal business                                                                      the scope of this article, the conversion process
immigration is replete with examples of why                 Permanent Resident Cases Requiring a                is not only flawed but fraught with perils that
and how the current immigration system is                   “Labor Certification”                               make conversion extremely ill advised in
broken. By way of illustration, we offer: (1) an                Workers who make long term career com-          almost every instance.
example of a major meltdown in one of the                   mitments to the United States are often as               The unadjudicated labor certifications,
key nonimmigrant worker classifications, and                desirous and anxious as their employers             which are believed, at one point, to have
(2) discusses how the principal process for                 regarding the securing of the personal and          exceeded 400,000, filed prior to PERM are
workers to acquire lawful permanent status is               professional stability afforded by lawful per-      being processed by two Backlog Elimination
broken. The immigration bar and the busi-                   manent resident status (which is evidenced by       Centers. Although the DOL has indicated
ness community know that given these limi-                  the so-called “greencard”). Over time, the cur-     that the backlog would be eliminated by the
tations and the substantial attendant costs,                rent system has become replete with bureau-         end of fiscal year 2007, observers feel that this
sponsorship of foreign employees is rarely                  cratic uncertainties and unconscionable delays      date now only reflects the end of funding and
resorted to except to address shortages in the              altogether outside the original intent of           is not otherwise realistic.
US work force with workers whose presence is                Congress, which was to permit workers to                 Another factor must be considered to
in the national interest. US employers are                  come to the US whose presence is in our             understand the “perfect storm” facing business
caught in a nearly impossible situation, which              national interest. Once again, the system is        based immigration. Once the labor certifica-
is not of their making. The abusers in most                 broken.                                             tion is issued, the employer may file a petition
segments of the business world are found                         Employer sponsored greencards are strict-      in behalf of the foreign worker. And at some
within a small, atypical minority. Yet                      ly regulated and limited by a quota system.         point, the worker may file an application for a
American business is a prime scapegoat in the               Most cases require a certification by the US        greencard based on the approved labor certifi-
current immigration debate.                                 Department of Labor (DOL) that, among               cation and the employer’s petition. Congress
                                                            other things, there is no US worker available       has established an annual quota limiting the
                          1
The Nonimmigrant H-1B Classification                        meeting the actual minimum requirements             number of greencards that may be issued to
   In 1990, Congress imposed limitations on                 (as determined by the DOL) for the position         foreign workers each year. If the quota is
the number of professionals eligible to enter               vis a vis education, training, and experience.      exceeded, a “line” is formed and the oldest
temporarily in the so-called H-1B (temporary                    Over the years, processing delays for labor     approved petition is eligible for the next avail-
worker) classification. This, admittedly arbi-              certifications increased nationwide with some       able greencard. A worker may only file for a


T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L                                                                                                       9
greencard when one is available under the          greencards for these categories were issued        America’s post World War II prosperity, will
quota. Even after filing, the quota may regress    between July 1 and September 30, 2005. It          understandably head the siren song of
and if that happens, the greencard cannot be       was understood that once the next federal          nations fortified with the playbook of that
issued until the quota advances and “catches       fiscal year began on October 1, 2005, pro-         other America that is rapidly slipping away.
up” and a greencard is once again available. A     cessing of greencards would resume. In             They will go to countries who have not, out
worker’s place in line for a case requiring a      September 2005, the Department of State            of caprice, pulled back the welcome mat.
labor certification is the date that the           announced availability of numbers permit-
approved “labor certification” for the particu-    ting October 1st resumption of the process-                 B
                                                                                                      Family-Based Immigration
lar job was originally filed with DOL.             ing of greencards; but determined that a               Like employment, family based immi-
    The current quota allocation was estab-        cut-off date for processing eligibility was        gration revolves around a quota system and
lished by Congress in 1990. For 15 years,          necessary since demand for greencards vast-        the system is replete with weakness and full
the quota did not adversely affect most            ly exceeded previous estimations. Initially, in    of holes that often prevent families from
employment-based cases. However, a                 order for a case to be concluded and a green-      residing together as a family unit for years.
tremendous number of cases were filed in           card issued in October 2005, most benefici-
recent years which were not promptly               aries in the EB-3 classification needed a pri-     Backlogged Quota System
processed by US Citizenship and                    ority date of, on or before, March 1, 2001.            Currently, only US citizens and Lawful
Immigration Service (formerly the                  Persons who are charged to China, India,           Permanent Residents (LPRs) of the United
Immigration and Naturalization Service).           and Mexico required even earlier priority          States may apply for residence status for
As progress was made in processing the large       dates: China, May 1, 2000; India, January          their family members. A Lawful Permanent
backlog of cases, quota limitations were           1, 1998; and Mexico, January 1, 2001.              Resident (“greencard” holder) may apply for
reached in several categories. This was exac-          Effective at the start of fiscal year 2006,    a spouse, minor children under the age of
erbated by the “use it or lose it” nature of the   cut-off dates were also established for per-       21, and unmarried sons and daughters over
process, to wit: if a category is allocated        sons charged to China and India in the             the age of 21. The backlog for these cate-
30,000 greencards per year and the service         Employment Based Second category (EB-              gories (2A and 2B) are often years long: for
processes only 25,000, the unused 5,000 are        2), the category for members of the profes-        most countries, the wait is approximately
lost rather than carried forward into the next     sions holding advanced degrees and for per-        five years long to bring in a spouse or minor
fiscal year. For a number of years, filings        sons of exceptional ability.                       child of an LPR and ten years long for
exceeded the quota, but the Service (and the           Persons with priority dates that are not       unmarried sons and daughters. For some
State Department for cases processed               current will remain in line and become eli-        countries, the wait is even longer: seven
abroad) did not process up to the available        gible for greencards once their place in line      years to bring in a spouse or minor child and
limit. It is estimated that since 1990,            is reached. Each month, the State                  15 years for unmarried sons or daughters.
approximately 140,000 immigrant visas              Department re-evaluates the availability of            US citizens are permitted to petition for
have been “lost” because of delays in pro-         greencards and updates cut-off dates. Before       their spouses, minor children, and parents
cessing. In 2005 Congress, faced with a            Congress enacted a substantial increase in         (these relatives are outside of the quota sys-
national healthcare shortage, ordered the          employment- based greencards in 1990,              tem) as well as married and unmarried sons
recapture of up to 50,000 of these lost            backlogs were fairly frequent and in some          and daughters, and brothers and sisters. The
greencards to be used for a limited category       categories, the “line” moved forward fairly        categories of sons and daughters as well as
of cases not requiring labor certifications.       quickly. Despite this history, the State           brothers and sisters are backlogged consider-
    During 2005, the State Department,             Department and knowledgeable observers             ably. For most countries, unmarried sons
which administers the quota, determined            believe that there will not likely be rapid for-   and daughters of US citizens must wait five
that there were no available visas for certain     ward movement of the line without                  years; married sons and daughters have an
categories requiring labor certifications          Congressional intervention.                        eight year wait; and brothers or sisters have
(there is both a worldwide quota and a pos-            Today, the employer who successfully           an 11 year wait. For some countries, the
sible further limitation imposed on nation-        negotiates the PERM labyrinth may still            waiting times are even longer: 14 years for
als of countries that contribute seven per-        wait a decade or longer for his valued             an unmarried son or daughter (Mexico) and
cent or more to the lawful US immigration).        employee to acquire a “greencard.” The             22 years for a brother or sister (Philippines).
Initially, quota limitations were placed on        “more fortunate” may be able to extend                 Even for those family members who are
certain cases involving nationals of China,        their non-immigrant stay and employment            outside of the quota system (spouses of US
India, and the Philippines. In March 2005          authorization during the process, but mere         citizens, for example) the actual processing
cut-offs were established for the “Other           maintenance of status, if possible, has a cost     times can be quite long. Over the past five
Worker Category” (for positions requiring          that goes beyond the monetary. Careers             years, the processing time for USCIS to
less than two years of vocational prepara-         stall, creativity suffers, families may be sepa-   adjudicate the petition of a spouse of a US
tion). Effective July 30, 2005, greencards         rated, the unnecessary anxiety is often            citizen has ranged from four to five months,
became unavailable for all nationalities in        almost unbearable.                                 to upwards of two and a half years—and
the unskilled, skilled, and professional               Realistic amelioration has yet to appear.      that is only for “phase one” of the process if
worker categories (“Other Worker” and EB-          Without it, many of the best and brightest,        the foreign national spouse resides outside
3) for the remainder of the fiscal year and no     whose like so materially contributed to            of the United States. The case must then be


10                                                                                                                                        FALL 2006
transferred from USCIS to the National                      denials based on incorrect information and         the US while a waiver of the three or ten year
Visa Center for processing (taking addition-                the time, money, and energy spent in an            bar is reviewed and adjudicated—often
al weeks or months) and then ultimately                     effort to resurrect these cases is astounding.     months and months.
transferred to the post abroad for final pro-                                                                      The hardship of this separation on the
cessing. Depending upon the country, the                    The Risk of Consular Processing                    family unit is obvious. Often, it is the foreign
various background checks and other layers                      In North Carolina, many foreign nationals      national spouse who is the main breadwinner
of paperwork and verification can tack on                   from Mexico, Central, and South American           in the family and he or she must leave a job
literally months more of waiting before the                 countries must depart the United States in         and remain outside the country for months
spouse or minor children of US citizens are                 order to apply for an immigrant visa based on      on end. Those individuals are not permitted
finally approved for an immigrant visa.                     marriage to a US citizen spouse. Instead of        to travel back and forth between the US and
                                                            being permitted to stay in the US to file the      their home country. Unless the family has
Unconscionable Processing Delays                            various petitions and applications for lawful      other sources of income, the US citizen
   Even for those US citizens or LRPs who                   permanent residency, they must “consular           spouse and children must find help else-
are fortunate enough to have their family                   process” at the consulate or embassy of their      where—residing with and relying upon fami-
members residing with them in the United                    home country.                                      ly or friends while the foreign national spouse
States, the processing delays are such that lit-                Rather than a mere inconvenience, con-         processes his or her case abroad. Even in situ-
erally years can pass before a final decision is            sular processing has become a nightmare of         ations where the family has decided to risk the
rendered on a case. Why? “Security                          sorts. In most cases, the foreign national who     separation in order to obtain lawful perma-
Clearance Checks.” What does this mean?                     must consular process is subject to either a       nent resident status, the process is quite risky.
Nobody knows—really.                                        three or a ten bar and in those cases, the indi-   Each case is reviewed separately and the stan-
   To its credit, USCIS has worked to                       vidual will be prevented from returning to the     dard for approval of these waivers is high: a
decrease the adjudication backlogs and in                   US for either three or ten years, depending        showing of extreme hardship to the US citizen
the Charlotte USCIS suboffice, the number                   upon the amount of time he or she has              or LPR spouse. Extreme hardship does not
of adjudicating officers has increased con-                 remained in the US unlawfully. This means          include factors such as living separate and
siderably. While the numbers have                           that the foreign national spouse must not only     apart from the family unit. Usually, the factors
increased, the efficiency has not kept pace.                depart the US to process the immigrant visa        necessary to prevail in these cases must go well
There are a surprising number of improper                   case, but usually he or she must remain outside    beyond separation and include factors such as:


T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L                                                                                                   11
poor treatment options for medical condi-         Sec. 101(a)(43), 8 U.S.C. Sec. 1101(a)(43),           inition), the criminal related grounds of inad-
tions; lost economic or educational opportu-      and the amendment of the definition of “con-          missibility may not. INA Sec. 212(a)(2)(A), 8
nities; family history; and obligations in the    viction” for immigration purposes, INA Sec.           U.S.C. Sec. 1182(a)(2)(A) provides that
US are among the factors the government           101(a)(48), 8 U.S.C. 1101(a)(48).                     admitting to committing acts constituting the
considers in determining whether to grant             The definition of aggravated felony may           essential elements of a crime involving moral
these waivers. The difficulty is that the only    include offenses which are neither “aggravated”       turpitude causes one to be inadmissible. The
way to apply for the waiver is to actually        nor “felonies” under state law. The provision         grounds of inadmissibility apply to foreign
depart the US and apply abroad, and there is      covers a range of offenses from (A) to (U) often      nationals who are in the United States apply-
no avenue for obtaining a decision on the         including numerous offenses under each sub-           ing for a new non-immigrant status or perma-
waiver before departing the US. This means        section. Whether an offense is deemed an              nent residence; these grounds also apply to for-
that in cases where the waiver is denied, the     aggravated felony may depend on the sentence          eign nationals entering the US, including law-
foreign national spouse must remain outside       imposed (whether suspended or not), amount            ful permanent residents who travel outside the
the US for up to ten years or longer, in some     of loss to the victim, or the federal definition.     US, even on a short trip.
cases.                                            The statute and interpreting Board of                     Although heightened enforcement and
                                                  Immigration Appeals and federal appellate             strict measures regarding foreign nationals
Immigration Enforcement Issues                    court decisions must be consulted to deter-           with criminal convictions may not be indica-
    While 9/11 created the impetus for pas-       mine the scope of the definition. Whether an          tive of a “broken” immigration system, the
sage of USA Patriot Act provisions expanding      offense is determined to be an aggravated             manner in which many of these provisions are
enforcement options available to immigration      felony directly affects whether the non-citizen       implemented do contribute to the impression
agents in the new Department of Homeland          defendant is eligible for admission into the          that the system does not work properly. For
Security, many enforcement-related measures       United States, relief from deportation, and nat-      example, under Attorney General John
actually were enacted by Congress in 1996 as      uralization. Further, aggravated felons may be        Ashcroft, the number of Board of
part of the Illegal Immigration Reform and        subject to expedited removal and often are sub-       Immigration Appeals members was reduced
Immigrant Responsibility Act (IIRAIRA).           ject to mandatory detention without opportu-          by almost half and procedures for the adjudi-
The most noticeable effects of 9/11 on immi-      nity for bond pending their removal hearings.         cation of appeals were drastically revised to
gration enforcement have been greater utiliza-    Foreign nationals convicted of aggravated             replace traditional three-member panel review
tion of statutory provisions previously avail-    felonies first carry out whatever state or federal    with summary disposition of cases, without
able; issuance of regulations expanding           sentence is required, then often face deporta-        written opinions, by single BIA Members.
enforcement options; and reducing opportu-        tion with no waiver available even if they have       Other post-9/11 regulations were issued
nities to defend against removal, some of         been lawful permanent residents for many              replacing the board’s de novo review of immi-
which have been ruled as improperly promul-       years and have US citizen spouses and children.       gration judge findings of facts with a “clearly
gated; an increased budget allowing for           They may never become a US citizen.                   erroneous” standard and greatly limiting
expanded enforcement measures; and the vir-           “Conviction” for immigration purposes             review of credibility determinations. The abu-
tual elimination of discretion in determining     includes, predictably, a formal judgment of           sive conduct by immigration judges and lack
whether or not to use available enforcement       guilt. However, conviction also may include           of meaningful review by the board has been so
options. Examples of new enforcement meas-        (a) a finding of guilt, a plea of guilty, a plea of   criticized by federal courts of appeals that in
ures which have taken place since 9/11            nolo contendere, or admission of sufficient           January 2006, Attorney General Alberto
include designation of state and local law        facts, along with (b) an order of some form of        Gonzales ordered a comprehensive review of
enforcement officers to perform immigration       punishment, penalty, or restraint. Conviction         the immigration court system. In enacting the
law enforcement functions; initiation of spe-     is interpreted broadly by immigration courts          REAL ID Act of 2005, Congress limited judi-
cial “operations” by Immigration and              and the Board of Immigration Appeals, and             cial review available in immigration cases by
Customs Enforcement (ICE) targeting partic-       includes PJC’s and deferred adjudication              courts of appeals and district court jurisdic-
ular immigrant populations; increase in the       where there is an admission, some sort of pun-        tion over most immigration-related habeas
number of border patrol agents; expansion of      ishment such as community service, rehabili-          corpus actions.
application of expedited removal; and the         tation class, or fine and dismissal. If there is          On a local level, with local law enforce-
opening of a new detention facility to detain     any admission and any form of penalty, “con-          ment more involved with investigation and
families pending their removal, along with        viction” is likely to be found. Furthermore,          enforcement of immigration laws, often with-
plans to construct more large, remotely locat-    expungement or later dismissal pursuant to a          out adequate training regarding the complex-
ed detention facilities.                          state rehabilitative statute does not eliminate       ities of immigration laws or dealing with non-
    IIRAIRA provisions significantly affected     the conviction for immigration purposes. The          English speakers, there have been numerous
the immigration consequences of criminal          only time that such a strategy may work is            allegations of racial profiling.
offenses, requiring that criminal attorneys       when a case is reopened and dismissed due to              Although analysis of all the specific issues
consider the citizenship/immigration status of    a violation of due process.                           involved in the current immigration reform
their clients. Two perhaps most often encoun-         Furthermore, although the criminal related        debate is beyond the scope of this article,
tered provisions are the expansion of the defi-   grounds of removal (deportation) under INA            review of the highlights of enforcement and
nition of “aggravated felony” under the           Sec. 237(a)(2), 8 U.S.C. Sec.1227(a)(2), gen-         due process related provisions passed by the
Immigration and Nationality Act (INA), INA        erally require a conviction (under the INA def-       US House and Senate shows that enforce-


12                                                                                                                                           FALL 2006
ment is seriously addressed by both Houses.                 201); expansion of alien smuggling offenses           strive for our historical competitive edge and
Much has been made about the exceedingly                    (Sec. 202); creation of a new federal crime           foreign nationals are an essential part of that
harsh provisions of the enforcement-only bill               of “unlawful presence” which would essen-             process. Unconscionable delays and excessive
passed by the House (H.R. 4437) last                        tially render every violation, however minor,         backlogs only discourage the best and the
December; and the Senate Bill (S. 2611, the                 technical, or non-intentional, a federal              brightest from joining our ranks and it pre-
Comprehensive Immigration Reform Act of                     crime (Sec. 203); expansion of local law              vents families from functioning together as a
2006) approved on May 25, 2006, which was                   enforcement agency authority to enforce               family unit. We can and must do better.
to hopefully provide relief to the 12 million               immigration laws (investigate, identify,
undocumented foreign nationals in the                       apprehend, arrest, detain, or transfer) (Sec.             C. Lynn Calder, a graduate of Campbell
United States and more reasonably address                   220, 221, 222, and 225); requirement of               University School of Law, practices in all areas of
enforcement concerns. While the Senate did                  detention of all non-citizens apprehended             immigration law with the Raleigh firm of Allen
indeed attempt to reform the broken legal                   along the border or at ports of entry until           and Pinnix, PA. Ms. Calder is a past chair of the
immigration system and approved compro-                     removal or final decision regarding admis-            Carolinas Chapter of the American Immigration
mise immigration reform legislation, numer-                 sion (no bond) (Sec. 401); expansion of               Lawyers Association and a trustee emeritus of the
ous enforcement measures are included in S.                 expedited removal provisions (Sec. 407);              American Immigration Law Foundation.
2611 as well.                                               elimination of judicial review of good moral          Currently, she serves on the national AILA
    In the interest of reform, the Senate bill              character findings in relation to a naturaliza-       Liaison Committee with US Immigration and
includes a long-term path to permanent resi-                tion application (Sec. 609); effective                Customs Enforcement and chairs the North
dence for many of the 12 million undocu-                    increase of the time good moral character             Carolina Bar Association Immigration Law
mented immigrants in the country, a new                     must be established for naturalization pur-           Committee. Ms. Calder regularly participates as
temporary worker program, increases in fam-                 poses from five years to a lifetime and               faculty for continuing legal education programs
ily and employment-based permanent visas,                   requires retroactive application of the term          and has taught Immigration Law at NC
reforms to the agricultural worker program                  “aggravated felony” to bar a person from a            Central University School of Law. Ms. Calder is
and high-skilled immigration programs, and                  finding of good moral character (Sec. 612);           the associate editor of AILA’s Immigration
relief for undocumented high school gradu-                  major revisions to employment eligibility             Litigation Toolbox (2005) and Ethics in a Brave
ates. The bill also includes some very harsh                verification, including creation of a new sys-        New World (AILA, 2004). She is a North
enforcement provisions and further erosion of               tem to verify employment authorization,               Carolina Board Certified Specialist in immigra-
due process protections for non-citizens.                   mandatory participation in the new pro-               tion law. Ms. Calder is included in Best Lawyers
Some of these enforcement provisions include                gram for all employers, and significant               for immigration law.
criminalizing unlawful entry into the US, fur-              increase of the civil penalties for hiring,               Alice S. Glover has a private immigration
ther encouragement of local law enforcement                 recruiting, and referral violations (Title            law practice, Alice S. Glover, PLLC, in Chapel
involvement in enforcing immigration laws,                  VII); unprecedented, single-judge judicial            Hill, NC, and she is Of Counsel to the Raleigh
criminalizing use of false or altered documents             review of orders of removal, so that review is        law firm, Allen and Pinnix, PA. She is an
to obtain jobs, and ineligibility for legal status          no longer available unless a single judge             adjunct law professor at North Carolina
in the future for working with someone else’s               determines that the petitioner has “made a            Central University School of Law having
name or social security number. The Senate                  substantial showing that the petition for             taught immigration law, legal writing, and
bill also overturns recent Supreme Court deci-              review is likely to be granted” (Section 805).        professional responsibility. Ms. Glover is a for-
sions prohibiting indefinite detention of                       The two bills will be considered together         mer law clerk to Judge Linda McGee and an
immigrants believed to be removable and fur-                in House/Senate conference where attempts             aide to US Senator Terry Sanford concentrat-
ther limits federal judicial review of immigra-             at compromise will be negotiated.                     ing in immigration and Department of State
tion laws. This bill again broadens the INA                                                                       constituent matters. She is a past chair of the
definition of “aggravated felonies” and pro-                Conclusion                                            Carolinas Chapter of the American
vides for mandatory detention of deportation                    The reality of today’s global society means       Immigration Lawyers Association and has lec-
of aggravated felons regardless of their present            that immigration is a fact of life. Congress          tured on various immigration topics for con-
immigration status or length of residence in                appears to be slowly coming around to recog-          tinuing legal education programs.
the country.                                                nizing this fact. As of the deadline for this arti-         John L. Pinnix is a past president of the
    H.R. 4437, on the other hand, has been                  cle, the US Senate had passed an immigration          American Immigration Lawyers Association and
highly publicized because of its enforcement                bill that was substantially different than the        a founding member of AILA’s Carolinas
only measures. The House has taken the                      punitive immigration bill passed in late 2005         Chapter. He attained BA and MA degrees at
position that legal immigration reform and                  by the House of Representatives. Neither is an        UNCG and his JD at the Wake Forest
enforcement do not go hand-in-hand and                      answer or fix to many of the problems out-            University School of Law. He has served as an
would not consider proposals related to legal               lined in this article and it remains to be seen       adjunct professor at North Carolina Central
immigration. Among other measures, provi-                   whether the two houses of Congress can work           University School of Law and as a senior lectur-
sions passed by the House include the fol-                  out a meaningful compromise.                          ing fellow at Duke University School of Law. He
lowing: another expansion of the definition                     We live beside, work with, employ, and            is a principal in the Raleigh law firm, Allen and
of aggravated felony related to smuggling                   socialize with foreign nationals from many            Pinnix, PA. and is a North Carolina Board
and illegal entry and reentry crimes (Sec.                  different continents. We must continue to             Certified Specialist in immigration law.


T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L                                                                                                        13
                    The Mecklenburg Bar Review—
                    Give Them an Audience and
                    “They Milk it So Hard it Moos”
BY CORBI ANDERSON




M
                                           eet the Mecklenburg


                                           Bar Revue: lawyers by


                                           day. . . singers, dancers,


                                           and lyricists by night . . .


and living proof that you can manage to “have a life” beyond the law.


The group includes a district court judge, a public defender, an


attorney at legal services, big-firm lawyers and small-firm


lawyers, trial lawyers and corporate lawyers, partners and associ-


ates, and one professional entertainer who is not a lawyer but is


married to one. They are a busy bunch. By one member’s count,


the parents among the group together have two dozen children

                                                                          Hemera/Images.com
under the age of 16.




14                                                                                  FALL 2006
    The current incarnation of the Bar                         Those overactive judges,                        Associates:
Review began in 1999, when Nancy Norelli                       overactive judges,                              I’m the only one here on this Saturday
began her term as president of the                             overactive judges, in OTHER states.             And the janitor’s now my best friend.
Mecklenburg County Bar. She made it her                                                                        And he knows it’s a brief that’s causing
mission to institute a team-building activity                   And, of course, they poke fun at them-         my grief
that would increase collegiality and profes-                selves as lawyers most of all:                     While some partner’s out washing his
sionalism. “We convened in January 2000 to                      Excerpt from “Dream Court Case” (a paro-       Benz.
begin writing a new musical revue to spoof                  dy of Bobby Darin’s “Dream Lover”)
ourselves, the judiciary, and current events,”                                                                 And my office, it looks like a garbage
says Norelli, now a Mecklenburg County                         Every night I hope and pray, a dream            dump.
District Judge.                                             court case will come my way                        My social life doesn’t exist.
    The Bar Revue performs parodies written                    Where there is clear liability, and I get       Still they keep coming by
by cast members Brian Kahn and Doug Sea.                    one-third contingency,                             With their files heaped high
Using well-known tunes from Broadway                           Because I want a case that’s good as gold,      And say “I’m sure you’ll find time for
musicals and the pop charts as their starting                  I want a dream court case so I’ll be rich       this.”
point, they write takeoffs on every imagina-                before I’m old.
ble aspect of our legal system. No group is                                                                    Cast member Randy Phillips, who
safe from the Bar Revue’s humor.                            How the Bar Revue Was Born                      describes himself as “one of the older active
    The performers take on clients:                             The Bar Revue, by other names, can trace    members” in Bar Revue, says the group
    Excerpt from “Hey Big Lender” (a parody of              its roots to 1989, when a group of              “morphed and reappeared every few years”
“Big Spender” from Sweet Charity)                           Mecklenburg County lawyers got together         until it reached its current incarnation.
                                                            to sing for Law Day. Nancy Walker is the        Others who joined in at various times
   The minute I came into town,                             only current member of Bar Revue who was        include Charles F. Bowman, Donald H.
   I could see you were a grand institution,                in that original group. She performed with      Caldwell, Nicole Brovet Cantu, Mark B.
   A real big lender!                                       her father, James E. (“Bill”) Walker, who       Edwards, Judge Shirley L. Fulton, Carolyn
   No conflicts I can find.                                 died in 1993. Her mother, she says, was their   G. Hisley, G. Martin Hunter, Tamara L.
   What do I have to do                                     biggest fan.                                    Kettner, Leigh Moran, Ron Norelli, R.
   to be your counsel assigned?                                 Former Mecklenburg County Bar               Anthony Orsbon, James Y. Preston, James
   So, let me get right to the point.                       President C. Sydnor Thompson recruited          M. Talley Jr., Christian R. Troy, Melvin L.
   Not just any bank can pay my kind of fee.                Keith Martin, producer and managing             Watt, Felicia A. Washington, Regina
   Hey, big lender, spend . . .                             director of the Charlotte Repertory             Wheeler, Samuel S. Williams, and P.
   your legal dime with me.                                 Theatre, to whip the group into shape.          Marshall Yoder. “We have a distinguished
                                                            Martin’s version of his recruitment: “I was     group of alumni,” Walker says.
    They take on judges:                                    dragged in kicking and screaming by
    Excerpt from “Overactive Judges” (a parody              Sydnor Thompson. He brought me in the           The Director’s Take on Bar Revue
of “Gary Indiana” from The Music Man)                       night before a performance for Law Day. I           Martin saw the group of singing and
                                                            got one rehearsal, so it was only triage at     dancing lawyers, in its various incarnations,
   Overactive judges, overactive judges,                    that point.”                                    through 15 years’ worth of performances
   they’re the ones who                                         The North Carolina Bar Association          before leaving it last year, when he moved to
   make the law up as they go along.                        asked the group to perform at its state con-    Virginia to become managing director of the
   Those overactive judges,                                 vention in 1991. At that point, Walker          Richmond Ballet. “I didn’t realize the only
   overactive judges,                                       says, the Mecklenburg County lawyers bor-       way to get out of this would be to move out
   they will not appreciate                                 rowed material from colleagues in the           of state,” he says.
   the topic of this song.                                  Chicago bar. As an old script reveals, the          Martin “was a patient and always fun
                                                            group then called itself the “Mecklenburg       director,” says Tommy Odom, who has per-
   If the Pledge of Allegiance                              Bar Flies.”                                     formed with Bar Revue since 1999. Judge
   mention of God offends you,                                  Then, as now, the group put the lawyer’s    Norelli describes Martin as “brilliant.” Cast
   have a court find                                        life—or lack of it—in the spotlight:            member Manley Roberts says Martin per-
   the Establishment Clause extends to                          Excerpt from “Write Me a Brief” (a parody   sonally recruited talent, choreographed
   your own daughter’s third grade class                    of Billy Joel’s “Piano Man”)                    numbers, ran lights and sound, and “turned
   and all of her friends, too . . .                                                                        a series of random songs into a real produc-
   ‘til the highest court                                      Partners:                                    tion.” Martin recruited the group’s current
   cuts your standing short.                                   Write me a brief, young associate.           musical director, LouAnn Vaughn, a profes-
                                                               Write me a brief tonight.                    sional singer, actress, and dancer in her own
   Overactive judges, overactive judges,                       For I’ve got two front seats for the         right. Like Martin, Vaughn is not a lawyer,
   disregarding precedent                                      Hornets game                                 but she notes that being married to one gives
   at quite alarming rates.                                    And you have from now till daylight.         her ample ammunition to use in Bar Revue.


T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L                                                                                             15
                                                                                                        Owens to the tune of “This Land Is Your
                                                                                                        Land.” The Bar Revue then brought that
                                                                                                        show home to Theatre Charlotte, donating
                                                                                                        the proceeds from their sold-out shows to the
                                                                                                        Mecklenburg Bar Foundation’s pro bono fund.
                                                                                                             The Bar Revue made the national scene
                                                                                                        when it was invited to perform in
                                                                                                        Washington, DC, for the American Bar
                                                                                                        Association’s Annual Meeting in August
                                                                                                        2002. The group sang and danced at a recep-
                                                                                                        tion at the Cosmos Club honoring North
                                                                                                                      .
                                                                                                        Carolina’s A.P Carlton as he became president
                                                                                                        of the ABA. For that performance, “100% of
                                                                                                        us delivered,” Judge Norelli says, “even
                                                                                                        though it meant an 800-mile round-trip trek
                                                                                                        via van for some, and a late night fly-in for
 Photo/Nancy Pierce                                                                                     one proud father on the evening of his son’s
                                                                                                        wedding.” The ABA’s Executive Director
LaVenettra Reaves, LouAnn Vaughn, and Lisa Flowers entice would-be bank clients with the Sweet
                                                                                                        called their performance the “best entertain-
Charity parody “Hey, Big Lender!”
                                                                                                        ment ever presented at an ABA convention.”
                                                                                                            In 2004, the Bar Revue performed for the
     Martin says the cast members “work            Show Business” from Annie Get Your Gun)              Mecklenburg County Bar’s first dinner hon-
very, very hard, and they play very, very                                                               oring federal judges. Then came the “2005
hard. They are not professionals, though              There’s no practice like law practice,            World Tour,” with three performances in less
some could hold their own on the profes-              a flawed act as we know.                          than a month—for Calvin Murphy’s induc-
sional stage. What others may lack in talent,         Fighting for your client can be thrilling,        tion as president of the State Bar on October
they more than make up for in enthusiasm.             standing up in court for equal rights,            20, for the Eastern District’s dinner honor-
They kid and prod each other.” In Bar                 answering a circuit judge’s grilling              ing its judges on November 10, and for the
Revue, Martin adds, “there are no prima               to see your billings go to new heights.           Mecklenburg County Bar’s dinner honoring
donnas, no egos. They are there because               No one partners like law partners,                state judges on November 17.
they want to be there. That makes all the             they keep you on your toes.                           During these performances, Judge
difference in the world to their commitment           Even with a turkey that just can’t be sold        Norelli says, “the audience was stunned by
to the project.”                                      your case dismissed, you’re out in the cold,      Calvin [Murphy] taking center stage with
     The men in Bar Revue “are never going            still you wouldn’t trade it for a sack of gold,   women fainting all about.” A vision in white
to become dancers,” Martin admits. He                 so Bar stand up and crow . . .                    polyester, Murphy performed a Barry White
recalls his first rehearsal with them: “I told        for that’s all for our show!                      parody written specially for him:
them, ‘Put your right foot out,’ and three out                                                              Excerpt from “Can’t Get Enough of the
of five put their left foot out. From that         Recent Gigs: From Wilmington to                      Law, Babe” (a parody of Barry White’s “Can’t
point on, I knew to put the ladies in front.”      Washington, DC                                       Get Enough of Your Love, Babe”)
     Martin speaks fondly of the group’s love         The Bar Revue has performed in
of being on stage. Usually, he explains, a         Asheville, Wilmington, Raleigh, Statesville,            My bar and I . . .
show gets tighter and thus shorter with every      and Washington, DC, in addition to its                  can’t get enough of the law, babe.
rehearsal, but with this group, “every time,       hometown of Charlotte. For the NCBA’s                   Oh, I don’t know, I don’t know why,
it’s longer and longer. You need a hook to get     centennial celebration at its June 2000 con-            I can’t get enough of the law, babe.
them off the stage. As individuals, they love      vention in Asheville, Judge Norelli suggested
to perform, especially in front of their peers.    a show “as a birthday present from the                  Oh, and when I read the blue book,
They make the most of every moment. They           Mecklenburg County Bar.” That perform-                  a tear comes to my eye.
milk it so hard, it moos.”                         ance won rave reviews, and the group,                   It’s like the more I learn,
     But the Bar Revue members love being          accompanied by cast members Odom and                    the more I want, and baby, that’s no lie.
lawyers as well as being performers, Martin        Ray Owens on guitar, sang well into the
says. “They love their chosen profession. We       morning, entertaining the crowd that lin-               Tell me, what can I say?
can poke fun at the law in Bar Revue, but we       gered after the show.                                   What am I gonna do?
can never ridicule it,” he says. One of the Bar       When Charlottean Norfleet Pruden was                 I read each case and every statute, too.
Revue’s favorite finales, There’s No Practice      inducted as president of the NCBA in June               I try to speak at every CLE.
Like Law Practice, bears this out.                 2002, the Bar Revue prepared a show in his              In the past five weeks,
     Excerpt from “There’s No Practice Like Law    honor. The show included an ode to Pruden,              I went to twenty-three.
Practice” (a parody of “There’s No Business Like   “This Man Is Our Man,” performed by                     Oh, all I know is every time I appear,


16                                                                                                                                         FALL 2006
   I stand up, the judge walks in,                          guitarist” who plays “mostly chords to cheesy    time jobs—as the mother of four girls, ages
   I start to sweat,                                        ‘80s songs.” He grew up listening to Mark        16, 13, 11, and 2, and as the education law
   look what you got me doin’ . . .                         Russell and Weird Al Yankovic, and he holds      attorney for the Council for Children’s
                                                            them responsible for his penchant for parody.    Rights. “I generally don’t get as much sleep as
   My bar and I . . .                                           In addition to writing and performing in     most people,” she admits. “You must learn to
   Can’t get enough of the law, babe.                       the Bar Revue, Kahn is the star and driving      juggle.” Martin notes that “we’ve used three
                                                            force behind Charlotte SQUAWKS, a musical        of Lisa’s daughters as stand-ins during
   Cast member LaVenettra Reaves says pre-                  revue that parodies life in the Queen City.      rehearsals. We haven’t used the baby yet.”
tending to faint as Murphy made his appear-                 Martin, who also produced Charlotte              But Flowers has gone through rehearsals car-
ance has been one of her favorite Bar Revue                 SQUAWKS, says it’s easy to miss Kahn’s           rying one of her daughters. Flowers got an
moments. Murphy himself modestly says, “I                   propensity to “ham it up” when you first         undergraduate degree in dance and per-
can assure you it’s the first time a woman                  meet him. “He’s quiet, gentle, unassuming,”      formed and taught professionally before she
ever fainted over me.”                                      Martin says, “but put him on stage and you       went to law school. “I’m a frustrated dancer
                                                            start to smell bacon.”                           and performer from way back,” she explains.
The Men Behind the Music: Doug Sea                              Kahn’s sounding board for his parodies is    Bar Revue “is what keeps me sane. I can’t
and Brian Kahn                                              his wife, Raizel Arnholt Kahn, who has her       imagine living in Charlotte and working as a
    Owens describes the Kahn-Sea writing                    own litigation practice. She describes her       lawyer without that group. We enjoy per-
partnership for the Bar Revue as “a Lennon-                 husband as “the hardest working person I’ve      forming, and we enjoy each other’s company,
McCartney thing, or perhaps a Gilbert-and-                  ever met” but adds that “he never shows that     too. Even at crunch time, we manage to keep
Sullivan thing.”                                            he’s stressed, even when he has a million        a light heart.”
    Sea says he has always been “a bit of a                 things going on. He’s amazingly calm and             Phillips: “You Don’t Begrudge the Time”
punster.” He loves wordplay. He writes songs                even-tempered.” Judge Norelli adds: “He               “It is daunting juggling commitments,”
for friends’ birthdays and church follies, as               gets it done, with a big smile on his face. He   Randy Phillips concedes, but he quickly
well as for the Bar Revue. The key to the Bar               makes everyone else feel good.”                  adds, “you don’t begrudge the time” because
Revue parodies, he says, is finding a song                                                                   it is such fun. “There’s some value for your
that fits the idea. Sea and Kahn have had                   The Cast Members: How Do They Do                 practice” in being in Bar Revue, he says,
“some spirited debates over lyrics,” Sea says.              It? And Why?                                     from “the relationships you establish, and the
“He’s such a perfectionist, which I’ve come                    With day jobs that often extend into          broader perspective you gain on the profes-
to appreciate. We respect each other.” Sea                  night, how do these lawyers find time for Bar    sion.” Standing up in front of a crowd, espe-
also pays tribute to former member Lee                      Revue? Here’s what a few of the cast mem-        cially for a trial lawyer, is a great experience,
Spinks, who was “the driving force behind                   bers have to say:                                he adds. Recalling the Bar Revue’s perform-
the lyrics” when he and Kahn came along.                       Flowers: “We Manage to Keep a Light           ance for the Eastern District dinner in 2005,
    The audiences’ response to the Bar                      Heart”                                           he notes “that’s the only live appearance I’ve
Revue’s performances “means a lot to us,”                      Lisa Flowers has two demanding full-          had” before any of those judges.
Sea says. “It shows that lawyers and judges
really do want to laugh at themselves. We’ve                The men of the Bar Revue: They “Don't Know Much About Property,” but they do know “What A
spared no one. And they’ve all been good                    Wonderful Bar This Can Be.”
sports,” he says. “Lawyers are craving a fun
way to interact with each other,” and the Bar
Revue gives them that.
    Sea says his boss at Legal Services of
Southern Piedmont, where he is a senior
attorney, has supported his involvement in
Bar Revue. Sea believes his participation in
Bar Revue has helped make the Legal Services
program more visible within the Bar.
    The other half of this writing duo, Kahn,
was first tapped to write for Bar Revue dur-
ing law school, when he worked as a summer
clerk for a firm in Charlotte. He has per-
formed with the group ever since and has co-
written two of its major productions.
    Kahn learned to do musical arrangements
in undergraduate school, when he joined an
a capella group, Tar Heel Voices, at Chapel
Hill. He taught himself to play guitar using                 Photo/Nancy Pierce
the Internet and describes himself as “a poor


T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L                                                                                                 17
                                                                                                         as the group’s “clutch performer,” who “never
                                                                                                         fails on stage.” He also notes that “she has
                                                                                                         written some great songs.” Walker says the
                                                                                                         group’s performances in Charlotte are the
                                                                                                         most fun. “We get a little more nervous here,
                                                                                                         and we laugh a little more when we are in
                                                                                                         front of our peers.” It’s important to socialize
                                                                                                         with other lawyers and see them in a non-
                                                                                                         adversarial setting, Walker says. How does
                                                                                                         she find time for Bar Revue? “You just find
                                                                                                         the time to do what you enjoy.”
                                                                                                             Judge Norelli: “Pick Something You
                                                                                                         Think Should Happen”
                                                                                                             “Regardless of how crazy and busy your
                                                                                                         practicing life and home life become, you
                                                                                                         can make time for something you love,”
                                                                                                         Judge Nancy Norelli concludes. “Practicing
 Photo/Nancy Pierce
                                                                                                         law is so consuming, exhilarating, frustrat-
                                                                                                         ing, and aggravating that it’s often hard to
Hillary Clinton tries to convince husband Bill that it’s time to “Back The Wife” in the style of Bobby   save a few minutes for the things that can
Darrin’s “Mack the Knife.”                                                                               give us a chuckle or a sigh of satisfaction,”
                                                                                                         but these are the things that “may well last
    Higgins: “Bar Revue Lets Us Step Back            jazz piano with a group of friends. For years       for a lifetime,” she says. Her advice: “Slow
and Laugh”                                           he performed in an a capella jazz group. He         down. Enjoy those wonderful colleagues in
    Sally Higgins is a big believer in multi-        has also been involved in Chamber Music at          the Bar. Pick something you think should
tasking, and she has to be as the mother of          St. Peter’s. Roberts juggles all this while being   happen. Make it happen with other attor-
three daughters ages 11, 8, and 6, and a             married to a member of the Mecklenburg              neys. The enriched quality of your practice
lawyer with a full-time litigation practice.         County Board of Commissioners and raising           will even make some of your working days
She brings her knitting to the Bar Revue             two children, ages 9 and 6.                         easier.”
rehearsals, she admits, because “I’m not good            Owens: “Don’t Give Up Outside Interests
at sitting still.” Higgins says being in Bar         When You Pass the Bar Exam”                         Bar Revue Members
Revue is “worth the investment. Getting to               Ray Owens says the opportunity to play          Lisa C. Flowers, Council for Children’s
know the other people has been such a gift.”         music and have fellowship with his fellow           Rights
She enjoys the fact that members come from           Bar Revue members is “recharging” for him           Sara W. Higgins, Kennedy Covington
all types of law practice—criminal and civil,        professionally. “It’s a pause in what is other-     Lobdell & Hickman
public and private, and every subject area.          wise a demanding profession,” he says.              Brian A. Kahn, Helms Mulliss & Wicker
Without the Bar Revue, she says, she would           “Lawyers are some of the most talented peo-         Calvin E. Murphy, Murphy & Chapman
not have had the opportunity to get to know          ple I know when it comes to creativity and          The Hon. Nancy Black Norelli, District
lawyers from such different walks of life.           performing. Those are clearly parts of our          Court of North Carolina
“There’s so much stress and pressure in what         tradition as lawyers, whether transactional or      Thomas L. Odom Jr., The Odom Firm
we do, and Bar Revue lets us step back and           trial lawyers. It’s important for lawyers to        Raymond E. Owens Jr., Kennedy Covington
laugh at the profession that causes the stress,”     maintain their outside interests throughout         Lobdell & Hickman
Higgins says. “We laugh a lot—at every               their lives and not just give them up when          Randel E. Phillips, Moore & Van Allen
rehearsal and every performance.”                    they pass the bar exam.” Owens finds many           LaVenettra Walls Reaves, Mecklenburg
    Roberts: “If It’s Your Passion, You Have to      outlets for his interest in music. With             County Public Defender’s Office
Carve Out Time for It”                               Asheville lawyer Marc Rudow, he recently            Manley W. Roberts, Helms Mulliss &
    Manley Roberts finds Bar Revue “a per-           released a CD, Midnight on the Water, that          Wicker
fect antidote to what you do every day in the        features Irish music and traditional moun-          Douglas S. Sea, Legal Services of Southern
law. You’re under stress, worried about saying       tain music. The pair have performed togeth-         Piedmont, Inc.
the right thing. Here [in Bar Revue], you let        er (with Owens on guitar and Rudow on fid-          Nancy E. Walker, Whitesides & Walker
it all out, you say what you want to say, and        dle) since they were in law school at Chapel        LouAnn Vaughn, Musical Director
everybody takes it and laughs about it.”             Hill.
Roberts says he carves out time for Bar                   Walker: “You Just Find the Time to Do              Corby Anderson is a partner in the
Revue for his own mental health. “If it’s your       What You Enjoy”                                     Charlotte office of Helms Mulliss & Wicker,
passion, you have to carve out time for it.” In          Nancy Walker says her strong suit as a          PLLC. Her practice focuses on intellectual
addition to Bar Revue, Roberts is involved in        member of Bar Revue is that “I’m pretty             property and media law and commercial litiga-
the Oratorio Singers of Charlotte. He plays          unembarrassable.” Indeed, Sea refers to her         tion.


18                                                                                                                                            FALL 2006
                    Ideals and High Heels—
                    A Look at Wake Forest University’s
                    Elder Law Clinic
BY   KAT   E   MEWHINNEY




I
               would like to help my parents as they get older. I want to give


               back to the community. I am thinking of elder law as a pos-


               sible career path. I learn better by doing.




    Wake Forest’s law students give many          what they learned about
reasons for signing up to take the course         civil procedure rules, will
called The Elder Law Clinic. As their pro-        drafting doctrines, and
fessor, I have learned there is more to this      family law principles.
story. Why put in long hours at the clinic,       Only after the mid-point
meeting clients, juggling cases, and tackling     of law school are they
new legal issues?1                                permitted to actually rep-
    To quote one student, “I learned to wear      resent clients.2 Whether
heels in this course.” The students really like   students are headed for a
wearing those nice outfits and looking like       general civil practice that
young professionals! Even better, their class-    is seeing more “elder law”
mates ask them if they have that most valu-       cases3 or to a corporate
able of things: a job interview.                  setting that addresses the                                           Leigh Beisch/Images.com
    Changing from college garb to office          “mature market,” this
attire is just the superficial side of the many   clinical experience is a
changes going on in these soon-to-be              good strategic move on their part.4 Let’s first    the medical school, Dr. Richard Janeway,5
lawyers. Besides trying on that new persona       take a look at some basics about the pro-          to include an elder law program. With a gift
in a power suit, students want to help those      gram.                                              from R.J. Reynolds in honor of its retired
in need and to explore a rapidly growing                                                             CEO, J. Paul Sticht, such an innovative cen-
field of practice. As their mentor and pro-       Short History and the Structure                    ter was soon on the drawing board.6 Several
fessor, it is a genuine pleasure for me to            Around 1990, Wake Forest Law School            years later, the J. Paul Sticht Center on
teach them and watch them mature as attor-        Dean Robert K. Walsh learned that the uni-         Aging and Rehabilitation opened at the
neys.                                             versity’s medical center was planning a            Wake Forest University Baptist Medical
    Coming to The Elder Law Clinic well-          multi-disciplinary center on aging. Looking        Center.7
prepared by the school’s traditional faculty,     to increase the law school’s clinical offerings,       This partnership has evolved into an
the students are eager to put into practice       Dean Walsh collaborated with then dean of          exciting and mutually beneficial relation-


20                                                                                                                                     FALL 2006
ship. But more about that later.                            certified physician provides an overview of       wills, powers of attorney, consumer law
    Who gets legal assistance at The Elder                  mental capacity issues. This helps the law        advice, guardianship cases, and advice on
Law Clinic? Most clients are retired people                 students better handle guardianship cases         Medicaid coverage of nursing home care.
who live in the community, and all must be                  and matters in which competency is an                 Many cases arise from a person’s loss of
age 60 or older. The legal services are pro-                issue.                                            mental capacity. Perhaps a business persuad-
vided at no charge, pursuant to ABA accred-                     Under the leadership of the medical           ed an impaired elder to enter into an uncon-
itation rules for law school clinical pro-                  school’s Dean William Applegate, the teach-       scionable contract. A relative might be seek-
grams. These rules also bar students from                   ing partnership has continued to flourish.13      ing to be appointed guardian for a person
being paid when enrolled in a clinical pro-                 An experienced member of the medical              with advanced dementia, or a completely
gram.8 Clients must meet financial eligibili-               school faculty takes the law students             debilitating stroke, or accident. Financial
ty requirements9 and some types of cases are                through an intensive care unit. These practi-     exploitation is sometimes the issue.
not accepted, such as traffic, personal injury,             tioners are the best teachers to explain the          Here is just one example—call him Mr.
criminal, and business matters. Clients of                  realities of end-of-life care and the benefits    Smith. When this retired factory worker
The Elder Law Clinic are generally from                     and limitations of advance medical direc-         developed dementia, Mr. and Mrs. Smith
Forsyth County or nearby counties. They                     tives.14 Hospice and palliative care are dis-     and their adult children decided that the
apply for services by completing an applica-                cussed, including basic Medicare coverage         eldest daughter should help the parents. She
tion form that is available by calling the clin-            rules. Because elder law is by its nature a       took Mr. Smith to “her lawyer” to sign a
ic or found on its website.10                               multidisciplinary practice, students need to      power of attorney. Then, she took her father
    A part-time, one semester clinical experi-              have some understanding of these impor-           to change his bank accounts to “joint with
ence is intense. Each student meets his or                  tant areas of health law.                         right of survivorship (JWROS).”
her first client within a week of starting. To                  One final aspect of this medical-legal            As a result of the change on the accounts,
increase the student’s comfort level, the ini-              partnership is worth noting: this collabora-      when Mr. Smith passed away, this one
tial cases assigned are typically single issue              tion has allowed a coordinated response to        daughter got over $100,000—all that her
matters. One client wants a power of attor-                 proposed legislation affecting health care for    parents had accumulated. However, Mr.
ney and a living will. Another client has a                 the elderly. Several years ago, when a bill was   Smith had a will in which he left everything
creditor hassling him about past due pay-                   introduced into the General Assembly that         to his wife and, if she wasn’t living, in equal
ments. Cases are also assigned to match the                 would have made it a felony to “assist in sui-    shares to his seven children. This raised an
students’ interests. A student may even                     cide,” the Elder Law Clinic was able to serve     obvious question: when his daughter took
come with a passion for will drafting, having               as a catalyst to present a thoughtful             him to change the accounts, did Mr. Smith
enjoyed their “Dead People” classes with                    response.15 Concerns were raised by a wide        realize the import of the change to JWROS?
Professors Patricia Roberts or Don                          range of medical professionals that such a        Probably not. Law students Angela Cinski
Castleman.11 Within a few weeks, the stu-                   law would stifle good end-of-life palliative      and Walter “Trip” Baker, now both practi-
dent is juggling a variety of cases.                        care. Health care providers would be scared       tioners in this state, did a superb job repre-
    Each week, the class meets as a group at                off from providing adequate pain medica-          senting the widow in Forsyth County
the law school. This two hour class, general-               tion. Moreover, there was no evidence of          Superior Court. They drafted a complaint
ly taught by the clinical professor, covers                 any problem of “assisted suicide.” Working        alleging breach of fiduciary duty and asking
substantive law and lawyering skills.                       relationships that had been built between         the court to impose a constructive trust on
Interviewing techniques and ethical rules are               lawyers who care for the elderly and their        the funds. Preparing briefs, exhibits, and
emphasized. Substantive topics covered                      medical counterparts bore fruit. Many             witnesses for the trial was a demanding but
include guardianship law, estate planning                   prominent physicians and health care              wonderfully educational experience for both
issues for the small estate, and long term                  providers contacted their legislators to argue    students.
care insurance. Winston-Salem elder law                     against the bill. Ultimately, both the Elder          When the defendant filed bankruptcy, to
attorney Bailey Liipfert is a popular guest                 Law Section and the Health Law Sections of        try to discharge the state court judgment
lecturer, explaining long-term care planning                the North Carolina Bar Association                won by the students, another student—the
issues and the broad range of cases his firm                (NCBA) opposed the bill, and were soon            next semester—took over and successfully
handles in elder law and disability law.12                  joined by the NCBA Board of Governors.            argued that federal bankruptcy law barred
                                                            When lawyers and doctors are often at odds        the discharge of this type of debt. And that
Doctors and Lawyers—Working                                 over such issues as malpractice litigation,       student won, too.
Together?                                                   Wake Forest’s leadership in partnering with           Students often advise families who have a
   The Elder Law Clinic’s location in a                     the medical community stands out as a             relative in a nursing home. During the
vibrant teaching hospital, the Wake Forest                  hopeful exception.                                spring semester of 2006, second year stu-
University Baptist Medical Center, allows it                    But let us return to the law office set-      dent Suzanne Pomey helped a woman
to include experienced physicians in train-                 ting—the clinic where the students spend          whose husband had an accident and
ing the students. Legal issues often arise due              most of their time. Direct client representa-     requires nursing home care. The federal
to health problems, so students need some                   tion means a lot of interviews, fact gather-      Medicaid program is covering part of the
knowledge of the terminology of geriatrics,                 ing, advice letters, and figuring out what        cost, but most of the husband’s income was
psychiatry, and neurology. In class, a board-               laws apply. Students cut their teeth on basic     also having to go towards his care. This left


T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L                                                                                                21
the wife with very little to live on. Under        ized checking system. Also, the important        and is a focus at Wake Forest University,
federal law, if the “community spouse” can         role of support staff to a successful practice   which has as its motto, “Pro Humanitate”
establish in court that she needs more             quickly becomes apparent to the law stu-         (for humanity).
income, more income can be allocated to            dents. They see the client coordinator, Jan          Collegiality among lawyers is another
her from the “institutionalized spouse.”           Scales, as she patiently handles and screens     professional ideal the students learn. As a
Suzanne gathered the facts, drafted the nec-       telephone calls, carefully reviews letters and   solo practitioner with ten new associates
essary pleadings, and obtained the court           documents for accuracy, and helps the pro-       every six months, I am especially thankful
order that her client needed.                      gram turn out the best possible legal work.      that my colleagues in the bar share their
    Community education is a part of the           Students are trained to keep thorough file       expertise.20 We also turn to the other fine
students’ experience. They each give a pro-        notes, from the initial interview, through       clinical law programs in this state. Just
gram, usually to a church or community             phone calls and client meetings, to the final    recently, for example, law student Kara
group of seniors. Topics range from advance        case disposition. They learn to follow proto-    Sullivan represented a grandmother who
medical directives to avoiding consumer            cols requiring the use of engagement letters     had adopted her minor grandchild. Due to
scams. Some years ago, for example, Jennifer       and letters terminating the representation.      an illness, the grandmother wanted to make
Patterson gave a talk to a group of retired        Clear and regular communication with the         arrangements for this child in case of death
Western Electric employees about the com-          client is emphasized.                            or disability. On this matter, the Elder Law
plex topic of Medicaid coverage of nursing                                                          Clinic was assisted by Duke Law School’s
home care.16 These programs give students          From High Heels to High Ideals                   AIDS Legal Project. Kara learned from the
a chance to think on their feet and to see             Besides teaching lawyering skills and        experts how to set up a “standby guardian-
how a presentation about the law can be a          legal principles, The Elder Law Clinic seeks     ship” for her client.21
useful client development tool.                    to impart to students a commitment to the            Wake Forest’s “pro humanitate” extends
    Each student in The Elder Law Clinic           ideal of compassion and community.               to lawyers, of course, and so The Elder Law
has at least one client who is home-bound or           Hopefully this ethic of service will grow    Clinic also provides resources in a variety of
living in a nursing home or assisted living        so that, as lawyers, they will carve out the     ways to the bar. Besides having a library
facility. The students also visit a respite care   time to help others. They might accept pro       available for lawyers, it maintains the most
program for people with dementia. The              bono referrals from legal services, join the     extensive collection in the state of Internet
legal lessons? They learn about “levels of         board of a non-profit group, or manage           resources for the older client.22 Links are
care” and the legal rights of the residents of     their law firm’s pro bono program.17 This        provided to state and federal regulations,
long term care facilities.                         generosity is modeled for them by the            ethics materials, recommended books, and
    Office management issues are another           North Carolina Bar Association, whose            legal organizations and advocacy groups.
part of the learning experience in The Elder       foundation has provided funding for a            Other resources include a PowerPoint pres-
Law Clinic. Students sign off on weekly            Client Needs Fund at the clinic for several      entation on how to select a long-term care
“conflicts” checks, as in any law firm, in case    years.18 The ideal of reaching out to others     insurance policy,23 a link on locating an
a conflict is not picked up by the computer-       is the first one articulated for attorneys19     elder law attorney in another state,24 and
                                                                                                    brochures developed by The Elder Law
Angela Kreinbrink (spring 2006 student) confers with geriatrician Mary Lyles, MD.                   Clinic, such as “Consumer Tips on Nursing
                                                                                                    Home Discharge.”25 Students participate in
                                                                                                    developing materials that may be of use to
                                                                                                    the bar, such as a resource list on “Estate
                                                                                                    Planning for Unmarried Couples”26 recent-
                                                                                                    ly added to the clinic’s website. They are
                                                                                                    encouraged to write articles for practition-
                                                                                                    ers.27
                                                                                                        Students in The Elder Law Clinic find,
                                                                                                    upon graduation, that they sometimes are
                                                                                                    teaching their elders in their firms. They also
                                                                                                    have become leaders in the bar, teaching
                                                                                                    overflow audiences at CLE programs on
                                                                                                    elder law, as have Tate Davis of Lewisville,
                                                                                                    Caroline Knox of Hendersonville, and
                                                                                                    Aimee Smith of Winston-Salem. And they
                                                                                                    share their expertise and time by participat-
                                                                                                    ing in the leadership of the rapidly growing
                                                                                                    Elder Law Section of the NCBA as have
                                                                                                    Christopher J. Leonard of Wilmington and
                                                                                                    Jennifer Barnhart Garner of Pinehurst,
                                                                                                    among others. Many of them, like Heather


22                                                                                                                                      FALL 2006
Johnson Bowen, share their expertise by
assisting hospice programs in community
education programs.
    Ethics are a fundamental lesson in The
Elder Law Clinic. It may surprise the reader
that the hardest topic is often “Who is the
client?” If the elderly client is accompanied
by his family, the student learns to direct his
or her attention to the client.28 In most
cases, the first and only face-to-face inter-
view is with the elderly client. In this meet-
ing, rapport is built and the student and
client can clarify the client’s goals and to
whom disclosures are made. Then, in an
engagement letter, the student confirms the
list of persons to whom disclosures can be
made. Students are trained to give the con-
fidences of an elderly client the same respect
as those of other clients.29
    In some cases, the clinic’s brochure
“Why Am I in the Lobby?” is given to the
elderly client’s family. It helps to gently edu-
cate the family about the issues of client                  Elizabeth Bernard (spring 2006 student) meets with a hospitalized client.
identification, conflicts of interest, compe-
tency, and confidentiality. This brochure has               their parent forced out of her home and into       the clinic. Like other busy practitioners, we
been adopted by the American Bar                            someplace “safe.” When a clinic student            do not spend enough time focusing on this
Association,30 the Canadian Bar Association                 serves as this client’s court-appointed            big picture in The Elder Law Clinic.36 Class
(in both French and English), and Solicitors                guardian ad litem in a guardianship case, the      discussions do not do justice to the enormi-
for the Elderly, a practitioners’ organization              clash of ideals can leave that student with his    ty of the ethical challenges faced by our
in the United Kingdom.                                      or her first gray hairs. Until recently, the       aging society. It is apparent our current
    The Elder Law Clinic also has served as a               duty to serve as a zealous advocate was not        approach to long term care is less than ideal,
resource to the State Bar when professional                 clearly set out in state law, though it was elo-   for example, unless one is wealthy. Middle
ethical issues arise regarding elderly clients.             quently presented by a national leader in the      class families are left with their heads spin-
The clinic provided input on ethics opin-                   field of elder law and disability rights, A.       ning and wallets empty when faced with
ions regarding the preparation of powers of                 Frank Johns of Greensboro.35                       expensive long term care.
attorney,31 the representation of impaired                      A young law student in The Elder Law               There is much to learn and much advo-
clients in guardianship cases,32 and the clar-              Clinic may find himself pondering some             cacy to be done. The law students learn pro-
ification of the attorney’s role when first                 difficult questions. Some of their clients are     fessional ethics and the ethic of service to
approached by the family member of an eld-                  dealing with major health problems, such as        others. Most importantly, their generation
erly person who may become a client.33 It                   a stroke or Alzheimer’s disease. Is this the       will decide what is the right thing to do for
has obtained an Ethics Advisory Opinion                     person’s sole responsibility, or should society    the growing numbers of older people.
clarifying that an attorney may breach con-                 step forward to help? How far should the               Wake Forest University’s commitment to
fidentiality to disclose a violation of elder               “ideal” of personal responsibility be taken?       helping others while teaching students is
abuse statutes.34                                           From the perspective of an advocate for            demonstrated in many arenas. In the 15
     The ideals studied in The Elder Law                    older people, it seems the pendulum may            years since it was created, The Elder Law
Clinic go even further than community                       have swung too far. Families provide most of       Clinic has come a long way.
service, professionalism, and professional                  the long term care in this country. Older
ethics. Students grapple with how best to                   people themselves and women in particular              Professor Mewhinney, who has been the
balance the elderly client’s goal of independ-              bear the heaviest load. They do this for no        managing attorney of the clinic since it was
ence—an ethical ideal expressed in the prin-                pay and often at a great sacrifice to their        started in 1991, is a former chair of the North
ciple of autonomy—with society’s interest                   health and economic security. Does our             Carolina Bar Association’s Elder Law Section.
in protecting vulnerable people from                        health care policy—those laws embodied in          She is a Certified Superior Court Mediator
exploitation, expressed in the ethical con-                 Medicare and Medicaid—treat equitably              and is certified as an elder law attorney by the
cept of beneficence. This dilemma is not a                  those with chronic illness?                        National Elder Law Foundation, a specialty
theoretical academic exercise in this course.                   The tension between ideals of independ-        recognized by the North Carolina State Bar
Consider the student who represents an                      ence and autonomy versus social responsi-          Board of Legal Specialization.
impaired elderly person whose family wants                  bility underlie many of the cases handled in           For elder law resources, see the website of


T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L                                                                                                  23
                                                                                                                               21. See G.S. 35A-1373.
                                                                                                                               22. http://www.law.wfu.edu/lawyerinfo.xml. Readers
                                                                                                                                interested in getting a twice-yearly newsletter mailed
                                                                                                                                to them should contact Jan Scales at
                                                                                                                                scalesjn@law.wfu.edu or by calling (336) 713-8630.
                                                                                                                               23. http://www.law.wfu.edu/legalinfo.xml, under
                                                                                                                                Long Term Care Insurance.
                                                                                                                               24. http://www.naela.com/
                                                                                                                               25. http://www.law.wfu.edu/Prebuilt/NHdischarge.
                                                                                                                                PDF
                                                                                                                               26. http://www.law.wfu.edu/x5468.xml. This resource
                                                                                                                                is both for gay and lesbian couples and for the increas-
                                                                                                                                ing number of older heterosexual couples who choose
                                                                                                                                not to marry.
                                                                                                                               27. Articles written by students for Elder Law, the
                                                                                                                                newsletter of the NCBA Elder Law Section: Susan J.
                                                                                                                                Ryan, “The Risks of the Easy Power of Attorney,”
                                                                                                                                Vol. 8, No. 4 (May 2004); Robert E. Rude, MD (Dr.
                                                                  although The Elder Law Clinic is open year-round.             Rude was a student in the clinic, after many years in
the Wake Forest University Law School’s Elder                     During months that the law school is not in session,          medical practice), “Physician Orders for Scope of
Law Clinic: www.law.wfu.edu/eclinic.                              the managing attorney and a paid summer clerk han-            Treatment (POST),” Vol 9, No. 2 (Dec. 2004).
                                                                  dle on-going cases.                                           - Articles written by students in collaboration with
Endnotes                                                        11. “Dead People” is the law student terminology for            Prof. Kate Mewhinney for that newsletter: “Three
                                                                  “Decedents’ Estates and Trusts.”                              Simple Steps Lawyers Can Take to Protect a Home:
1. A traditional law school class offers one credit per
   classroom hour. In The Elder Law Clinic, students get        12. Liipfert is a partner with the firm of Craige, Brawley,     Medicaid and the ‘Intent to Return Home’ Rule,”
   four credits, or 40% of the normal academic credit.            Liipfert and Walker, and is certified as an elder law         March 2003, John T. Griffin, reprinted in newsletters
   They put in a minimum of ten hours: eight hours in             attorney by the National Elder Law Foundation.                of Real Property Section (June 2003) and Estate
   the clinic and a two hour weekly class.                      13. The students have the option of attending a                 Planning Section (Nov. 2003); “Prosecuting and
                                                                  Memory Assessment Clinic or a Geriatric                       Preventing Financial Abuse Under Powers of
2. Students become “Certified” by the State Bar only
                                                                  Consultation Clinic, which address issues of demen-           Attorney,” Jan. 2002, Alex N. MacClenahan.
   upon approval by the law school dean, if under the
   supervision of a licensed attorney. Rules and                  tia, polypharmacy (drug interactions), depression,            - Using research by student Karen W. Neely, see: Kate
   Regulations of the NC State Bar, Subchapter C, Sec.            and ability to live alone. The medical center also has        Mewhinney, “Gifts with Powers of Attorney—Are
   0200, Rules Governing the Practical Training of Law            provided opportunities for the law students such as           We Giving the Public What it Wants?” 35 Wake Forest
   Students.                                                      participating in the medical center’s ethics commit-          Jurist Magazine (Summer 2005) 14-17; reprinted in
                                                                  tee, observing the administration of electroconvul-           The NC State Bar Jl, Vol. X, No. 4, Winter 2005;
3. Elder law is a broad field and most attorneys handle
                                                                  sive therapy (ECT), and attending meetings of the             reprinted in Experience magazine, ABA Senior
   only several aspects of it. Historically, it came out of
                                                                  Institutional Review Board, a federally-mandated              Lawyers Division, Vol. 16, No. 3, Spring 2006.
   the estate planning and probate field, and now
                                                                  approval mechanism for all human research proj-             28. Often, but not always, the client chooses to include
   includes issues of long-term care planning, health
                                                                  ects.                                                         the relative at the end of the interview. But the risks
   care decisions, elder abuse and breach of fiduciary
   duty litigation, age discrimination, public benefits,        14. For a thought-provoking article on this topic, see          of “undue influence” and unintended family domina-
   and disability law. Typical litigation also includes           Carl E. Schneider, “After Autonomy,” 41 Wake Forest           tion during the interview merit careful attention.
   guardianship, will contests, and nursing home neg-             L. Rev. 2, 411, 425-429 (Summer 2006). Regarding            29. For a comprehensive overview of ethical issues in
   ligence.                                                       the limited effect of the federal law aimed at increas-       elder law, the reader is referred to the NAELA Journal,
                                                                  ing the use of advance directives, see Edward J. Larson       Vol. 2, No. 1 (2006), which focuses on this topic. To
4. For some basic demographic information, see
                                                                  & Thomas A. Eaton, “The Limits of Advance                     obtain a copy, contact NAELA at (520) 881-4005,
   http://www.aging.unc.edu/infocenter/slides/index.ht
                                                                  Directives: A History and Assessment of the Patient           ext. 115 or email Jonathan Boyle at
   ml or http://www.census.gov/prod/2001pubs/
                                                                  Self-Determination Act”, 32 Wake Forest L. Rev. 249           jboyle@naela.com.
   c2kbr01-10.pdf
                                                                  (1997).                                                     30. The ABA brochure can be seen and ordered at
5. Janeway was dean of the School of Medicine from
                                                                15. Senate Bill 145 of the 2003-2004 Session.                   http://www.abanet.org/aging/lawyerrelationship.pdf.
   1971 to 1994.
                                                                16. Patterson is now a practitioner in Charlotte.             31. 2003 Formal Ethics Opinion 7.
6. The Elder Law Clinic was initially funded in part by
   the US Department of Education, in a program to              17. Many local lawyers, too numerous to name, have            32. 1998 Formal Ethics Opinion 16.
   teach law students and increase legal services to              generously assisted The Elder Law Clinic by taking          33. 2003 Formal Ethics Opinion 7, Inquiry #4.
   under-served communities. Since the mid-90’s, it has           referrals. Most recently, these include David Pishko,
                                                                  Clyde Cash, Edward Griggs, Susan Ryan, V. Tate              34. EA 2394, at http://www.law.wfu.edu/prebuilt/
   been funded primarily by the university, including                                                                           EA2394-Ethics&FinancialAbuse.pdf
   the School of Medicine. Foundations, law firms, and            Davis, Scott T. Horn, Aimee L. Smith, and Penni
   individual attorneys have made financial contribu-             Bradshaw. Tripp Greason, an attorney at Womble              35. Frank Johns was the first chair of the NC Bar
   tions to The Elder Law Clinic. For information on              Carlyle, coordinates that firm’s pro bono program and         Association’s Elder Law Section, which now has almost
   how to contribute, contact Margaret Lankford at                has been invaluable in arranging for assistance to eld-       500 members. He was also the president of the
   (336) 758-5431.                                                erly clients. The firm of Kilpatrick Stockton has done        National Academy of Elder Law Attorneys (NAELA),
                                                                  terrific work representing grandparents who have cus-         which has 5,000 members, and is a fellow of both
7. The elder law program was named The Legal Clinic                                                                             NAELA and the American College of Trust and Estate
                                                                  tody of minor grandchildren.
   for the Elderly for about the first ten years of its exis-                                                                   Counsel (ACTEC). N.C.G.S. Sec. 35A-1107(b) now
   tence.                                                       18. The fund covers expenses such as court costs, filing
                                                                  fees for powers of attorney, and litigation expenses.         requires that the guardian ad litem present the respon-
8. Many students also enroll in the law school’s                                                                                dent’s views to the court. Previously, guardians ad litem
   Litigation Clinic, directed by Clinical Professor Carol      19. NC Rules of Professional Conduct, Rule 0.1(A),              would generally present only their views on what was
   Anderson. In this program, they are placed in a vari-          provides that a lawyer is “a public citizen having spe-       in their client’s “best interests.”
   ety of settings, both civil and criminal.                      cial responsibility for the quality of justice.”
                                                                                                                              36. Fortunately, the law school faculty includes Professor
9. Currently, the income limit for a single person is           20. Some of the attorneys who have assisted, on a con-          Mark A. Hall, a national expert in health care law and
   $1,700/month and for a married couple it is $2,200.            sultative basis, included Gail Arneke, Robin Stinson,         public policy.
                                                                  Anna Caldwell, and Mark Addison.
10. Clients are only seen during the academic year,


24                                                                                                                                                                          FALL 2006
                     In Search of a “Pretty Pig”
BY JAMES EARLY JR.




 J
                  ason sought the golden fleece, Moses the Promised Land. My quest was to try


                  and find all of the best barbecue places in each of the 100 counties in North


                  Carolina, critique them, and write a book about my findings.




    In preparation to write this book, I traveled   producing good barbecue take pride in the
extensively in all 100 counties of this great       fact that their place has been in business for
state, drove more than 18,000 miles, talked to      40, 50, or 60 years and that it was founded by
more than 1,500 people, and critiqued 228           their grandparents or parents and is now car-
barbecue places in six months. This journey         ried on by the third or fourth generation.
took me from the outer banks to the border of       Such places with their retro 50’s décor seem to                                          Jim Early
Tennessee. I tried to learn as much as I could      take us back to a kinder, gentler time.
about raising hogs, methods of cooking bar-                 BARBECUE IS A BONDING
becue, various kinds of sauces and dips, and        AGENT. Perhaps more than any other casual                I am a trial lawyer who speaks nationally
the history of the people who raise the hogs,       dining food, barbecue brings together people         on quality of life, stress management, and the
cook the barbecue, and those privileged to          of different races, creeds, religions, and socioe-   tenants of less is often more. Therefore, I had
enjoy it.                                           conomic levels. Pull into the parking area of        to find a window that would permit me to do
    After completing my journey, I concluded        any good barbecue place and you will see lux-        the field research for this project without
that:                                               ury motorcars, SUVs, pickup trucks, motor-           stringing it out too long, and to continue to
        BARBECUE IS COLOR BLIND.                    cycles, and junkers that barely made it to the       serve my clients and keep my speaking
Native Americans shared their method of             lot. Professionals, educators, athletes, skilled     engagements. Careful review indicated this
cooking meat slowly over live coals with white      and unskilled workers, unemployed, and               was most doable May through October. In
settlers who later shared these skills with         winos come together to share what may be             May 2001, I commenced a regime of practic-
blacks who developed and refined these skills       their only common interest—good barbecue.            ing law 40 hours in four days. This usually
in their roles as cooks and barbecue journey-                BARBECUE IS UNIVERSAL.                      entailed 14-15 hours a day at the office. On
men. The blacks shared some of their cooking        Barbecue is found in some form in each of our        Thursday night I would bail out and drive to
skills and secret recipes with whites. Today,       United States and it is generally found in some      the area I intended to work Friday, Saturday,
whites and blacks share their wonderful slow        form in every country on the planet. People          and Sunday, if possible. I would arrive at some
roasted product with every nationality that         like the taste of slow roasted meat. The animal      small town and find a room around midnight.
makes up this wonderful melting pot we call         or critter (or the parts thereof) that produce       If I could not find a room, I slept in my Blazer
America.                                            this treat may not have made our A list, but         and washed up at a truck stop. At 5:00 a.m. I
       BARBECUE IS TRADITION. Those                 for a certain group of people in a particular        was up talking to anyone I could find at busi-
dedicated souls who spend 14-16 hours a day         place, it was good barbecue.                         nesses, truck stops, restaurants, etc. about bar-


26                                                                                                                                             FALL 2006
becue. The question I posed was, “If your best
friend was celebrating a birthday today and
wanted to eat barbecue, where in this county
would you take them as a treat?” When I had
a list of names, I commenced my daily search.
As soon as the kitchen staff was in the closest
restaurant, so was I. When they were cutting
out the lights at the last place I could find that
day, I trundled off to yet another small-town
motel and repeated this scenario on Saturday.
Sunday morning I slept in and returned home
to do about five hours of dictation of my notes
on Sunday afternoon. Sunday night I crashed.
I repeated this scenario every week for over six
months.
     In an effort to be ethical and fair about cri-
tiquing each place, I decided not to eat any
meals, snacks, or beverages while on the road.
This enabled me to stay constantly hungry
and wanting to eat at every place I stopped. I
generally could critique three to four places a
day. I would order a sample of the barbecue in
all the ways that it was served—chopped,
coarse chopped, and sliced—along with a
tablespoon of slaw, one hushpuppy, and a
milkshake cup with water and slices of lemon.
I would cleanse my palette with the lemon
water before attempting to taste the barbecue.
I would then take a bite, taste it like a wine,
and write what I experienced. This was fol-
lowed by more lemon water and repeated with
the other styles of barbecue. I tasted the sauces
individually with a spoon in the same fashion.
I then added sauces on the meat. I tasted the
slaw and ate half a hushpuppy. I did not try
the side dishes. I ate Altoids between each bar-
becue place to again freshen my palate.
     I was able to stay perpetually hungry all
day since I never ate more than several spoon-
fuls of food and half a hushpuppy at any one
place. I did not feel it was fair to the next place
I would visit if I had curbed my hunger by eat-
ing at the previous place. I also tried to prevent
saturating my palate with the barbecue or
sauce flavors of the previous place that would
impede me from having a fresh taste for the
next offering.                                              have written this book, they ask the question,       to make its own sauce or dip; and (3) the bar-
     I actually lost 15 pounds during the six               “Which is the best in the state?” There is no        becue, the sauces, the slaw, and hushpuppies
plus months I did field work for the book. I                correct (politically or otherwise) answer to this    (to my taste) had to be GOOD! I made the
guess between eating healthy and heart wise                 question. There are a number of good barbe-          assumption that if they could cook good bar-
four days a week, I inadvertently backed into               cue places across this state. There are barbecue     becue, come up with their own sauce or dip,
a mini Adkins diet during my field work. My                 places in some areas that are equally as good as     and fix good slaw and hushpuppies, they
blood pressure (generally 150) dropped to                   barbecue places in other areas of the state, but     could probably come up with good side dish-
132 from the time I had it checked before                   their style of cooking and sauces are differ-        es and desserts as well. People come to barbe-
starting this project until completing it six               ent—good nonetheless. To be included in my           cue places to eat barbecue, they do not
months later.                                               book, a barbecue place had to meet three cri-
     Inevitably when people find out that I                 teria: (1) it had to cook its own pork; (2) it had   CONTINUED ON PAGE 29


T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L                                                                                                  27
                     The Fun Tribe—aka The North
                     Carolina Barbecue Society
BY JAMES EARLY JR.




N
                                       orth Carolina is not


                                       only First in Flight,


                                       but also the “Cradle of


                                       ‘Cue.” We have long


claimed the former, but have been remiss in establishing


the latter. It is time we step up as a state and rightfully


claim what many of us have known for a long time—that


North Carolina originated barbecue (it’s a noun), we produce the BEST, and we are the “Barbecue Capital of the World.”



    A number of states and some cities have         largest pork producing counties in the world.     that played the River Run Film Festival to
their own barbecue society. Kansas City has         North Carolina is synonymous with great bas-      wide acclaim and is currently playing at vari-
had the Kansas City Barbeque Society (KCBS)         ketball and great barbecue. Millions of words     ous film festivals nationwide.
for 20 years. It is well known, well run, and has   are written about our basketball, but few writ-       NCBS, a non-profit corporation, will sup-
6,000 members and chapters in all 50 states         ers truly understand our uniqueness in the        port and promote ALL North Carolina barbe-
and a number of foreign countries. North            world of barbecue.                                cue events statewide and assist (if asked) in any
Carolina has never had a barbecue society and           The North Carolina Barbecue Society           way that is appropriate in keeping with its
we should have had the first. Barbecue started      (NCBS) will have its own bi-monthly newspa-       charter purposes. Its goal is to preserve our bar-
on our eastern shores, it did not start in Kansas   per, The Squealer, that will be the voice and     becue heritage and to promote North Carolina
City, Texas, Memphis, Chicago or any other          carry the news of the Tar Heel barbecue world.    as the “Barbecue Capital of the World.”
place claiming to be a barbecue Mecca.              We will sponsor educational programs at all           We need to preserve our barbecue culture
    North Carolina needs a good strong barbe-       school levels regarding North Carolina and its    and our barbecue heritage. To that end, NCBS
cue society to promote our agriculture—             barbecue heritage. We will participate in films   will produce videos of the present living pit
nationally and internationally. We are the sec-     and documentaries regarding North Carolina’s      masters as they work their magic at the pits
ond largest pork producing entity on the plan-      culture and barbecue history. I have already      and capture their wonderful stories, experi-
et. Sampson and Duplin Counties are the two         assisted in a film called “Barbecue is a Noun”    ences, and grilling methodology, so it will not


28                                                                                                                                           FALL 2006
be lost with the passage of time. I have also               operated by women.                                        North Carolina needs the North Carolina
arranged with my friends who are barbecue                       In our effort to preserve our state’s heritage,   Barbecue Society and NCBS needs the help of
icons, nationally and internationally, to assist            culture, traditions, and those things that set us     men and women with vision, high energy lev-
with these videos and add their knowledge,                  apart from other states, we would link up with        els, a penchant for thinking outside the box,
character, and color to this project. With the              the Slow movement that is already well estab-         and a passion to promote this great state. We
assistance of others, I have selected 25 of the             lished in Europe and in the US. The Slow              need the help of state agencies who are in a
best barbecue places that are still cooking with            movement is designed to preserve the tradi-           position to assist with this project as well as
wood or charcoal to be designated as Historic               tional ways of doing things such as making            various chambers of commerce across this state
Barbecue Pits. These 25 barbecue places would               wines, cheeses, etc. that have historical signifi-    and those service organizations that could pro-
be part of a Historic Barbecue Trail across                 cance to particular areas. Barbecue is a signifi-     vide “worker bees” necessary to bring NCBS
North Carolina and become part of our tourist               cant part of our culture. Very few places are still   and all it would represent to the people of
industry. The North Carolina Barbecue                       cooking with wood or charcoal over open pits.         North Carolina and our visitors from out-of-
Society Historic Barbecue Trail is now being                The stories, the methodology of cooking, and          state.
considered by several state agencies to be                  the folklore retained by the present living pit           Membership in NCBS is only $35.00 per
included on their websites as well as that of               masters will be gone if not preserved in some         year. Membership would entitle one to a mem-
NCBS.                                                       fashion for future generations to enjoy. Most         bership card, certificate, window decal, and bi-
    We hope to have minorities again involved               of these men are in their 60’s and have been          monthly issues of The Squealer, the voice of
in North Carolina barbecue. Fifty to 60 years               applying their trade for 25-30 years. In all like-    NCBS. Other benefits would be preferred sta-
ago, all of the barbecue places or joints were              lihood, at their deaths, many if not most will        tus for grilling/cooking classes, BBQ judge
mom and pop operations with the kids assist-                be replaced with electric or gas cookers. We          training, etc. along with direct input to the
ing after school. About half or more of these               need to preserve this body of knowledge and           NCBS Board as to where members would like
mom and pop operations were owned and                       we need to train young pit masters to carry on        their society to go and how they would like for
operated by minorities. Minorities have played              this tradition.                                       it to get there. Lawyers have always had a sense
a significant role in the development of North                  It is the goal of NCBS to promote events          of history and have taken the lead in move-
Carolina’s agriculture products—in particular               like the Tar Heel Barbecue Classic. The Classic       ments that mattered. If only one-third of the
barbecue. When I did the field research for my              would start as a two-day event for the public         North Carolina State Bar members were to join
book The Best Tar Heel Barbecue Manteo to                   and hopefully become a three, four, or five day       NCBS we would be the size of the largest bar-
Murphy, I went to all 100 counties in an effort             event much akin to Memphis in May and be              becue society our first year.
to find the best barbecue in all the counties in            held in conjunction with hot air balloon festi-           Please contact NCBS at (336) 768-2547 or
the state. I critiqued 228 barbecue places in my            vals, World War II war bird fly-ins, music festi-     Jim@jimearly.com for a membership applica-
efforts and found only six minority owned and               vals, rodeos, horse shows, sports events, etc. In     tion. We need some of your time, energy, and
operated barbecue places on my journey.                     addition to promoting existing barbecue festi-        funds to further the goals of NCBS (aka “The
There may have been others, but I did not                   vals, NCBS would also promote the best beach          Fun Tribe”) to wit: to cook and eat barbecue as
hear of them or find them. Almost all of the pit            party on the east coast on an annual basis. This      often as possible, preferably in the company of
masters that I met were minorities, but the                 event would take place in early fall. It would be     good friends, and to promote the Old North
businesses were not owned by minorities and                 called the Lost Barbecue Party and produced at        State as the “Cradle of ‘Cue.”
only a few of the businesses were owned and                 or near Manteo on the outer banks.                        Keep the fires burning!




Pretty Pig (cont.)                                          as good as every other barbecue place                 this adventure shine for me was the people.
                                                            included in the book. Every barbecue place            The outpouring of friendship that I experi-
come because of banana pudding. If a place                  included in the book is, however, the best            enced, the warmth, the fellowship, and the
has good sides and desserts, that’s a plus but              (to my taste) I was able to find in that par-         laughter will be with me all my days. The
that’s not what brings ‘em in and brings ‘em                ticular area.                                         book can be purchased at Border’s
back.                                                           I hope each reader of my book can vicar-          Bookstores or ordered online at
    For me, barbecue generally falls into two               iously experience my journey as I attempted           www.jimearly.com. Monies from this book
categories—good and not so good. Good on                    to ferret out the best barbecue places in the         are shared with Special Olympics North
a scale from 1-10 can range from 5-10. A                    Tar Heel State. Did I find them all? No! And          Carolina.
number of the places that I critiqued (to my                if I failed to find a “treasure” that you know
taste) would fall in the 5-6 range, meaning                 about, please share that information.                     Jim Early is a practicing lawyer, interna-
GOOD. Some of the places I critiqued (to                        The journey that produced The Best Tar            tional hunting and fishing tour guide, profes-
my taste) would fall in the 7-8 range, mean-                Heel Barbecue Manteo to Murphy carried all            sional seminar speaker, and author of several
ing BETTER. A few (to my taste) would fall                  of my senses to new heights and fed my soul           books and numerous articles on Southern cook-
in the 9-10 range, meaning BEST. Every                      as well. Beyond the good food and beauty of           ing and barbecue. Jim is the father of three
barbecue place included in the book is not                  rural North Carolina, the thing that made             children and calls Winston-Salem home.


T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L                                                                                                     29
                    Military Law in Afghanistan
BY GRIER MARTIN




T
                                 he week after the attacks of September 11, 2001, I, like thousands of other reservists, volunteered for active


                                 duty. In March of 2002, I reported to Fort Bragg, NC, to serve in the XVIII Airborne Corps Office of the


                                 Staff      Judge


                                 Advocate


(OSJA). The OSJA is, more or less, the law


firm for the XVIII Airborne Corps, a large


organization consisting, in part, of the 82nd


Airborne Division, the 101st Airborne


Division, the 3d Infantry Division, and the
                                                       Visiting the base at Kandahar to pay a courtesy call on the law offices of JAG Jeff Winslow.

10th Mountain Division. Like a civilian law firm, the OSJA is divided up into several practice areas. I was assigned to the Legal Assistance


section, tasked to provide legal advice to soldiers on issues ranging from domestic law to estate planning.



    Legal Assistance is generally the first stop    one would interrupt my work and ask if I           Fayetteville most nights. With the entire office
for new judge advocates fresh out of law            wanted to join them in jumping out of an air-      conducting physical training at “0-dark-30”
school. At the time I was there, it was also        plane.1 A few mornings a month we loaded           every morning, I needed to be nearby. As a
where mobilized reservists, regardless of expe-     weighted rucksacks on our backs and set out        result, I quickly bonded with other orphaned
rience, were frequently sent to be sized up         on a 6-12 mile march. These events, I think,       reservists who were further away from their
before moving onto other practice areas. For        are unique to the practice of law at Fort Bragg.   families.
the most part, my practice was similar to that          Though Fort Bragg was only about a one             I can’t help but compare these uncertain
of a small town civilian lawyer (except no bill-    and a half hour drive from my home in              days so soon after 9/11 to what military life
able hours). Every few days, however, some-         Raleigh, I stayed in a hotel room in               must have been like after Pearl Harbor. We


30                                                                                                                                          FALL 2006
didn’t know if more attacks were coming and                 breakfast and dinner and skipped lunch. The        legal assistance for soldiers. Foreign claims
what lay ahead for us. Many of us had been                  quality of breakfast and dinner was truly          involves administration of the process estab-
uprooted from our homes and found solace in                 amazing considering that we were on the            lished to compensate Afghans for damage
the incredible sense of purpose we all shared.              other side of the world in a combat zone.          caused by American forces. This was the job
In spite of the loneliness and uncertainty, we              Eggs, toast, sausage, bacon, milk and cereal for   to which I was assigned. In addition, we had
all felt that we were part of something mean-               breakfast and even an occasional steak and         a non-commissioned officer in charge
ingful. Certainly, when early morning PT was                shrimp dinner were all testament to the            (NCOIC), a sergeant, and an enlisted soldier,
interrupted each day to salute the raising of               American military’s logistical ability.            each of whom were part paralegal, part legal
the American flag, we all knew we were exact-                   Part of our orientation involved briefings     secretary, part office administrator, and all sol-
ly where we needed to be.                                   by the personnel we were replacing. Anytime        dier.
    In May 2002, XVIII Airborne Corps                       a force is relieving another, the Army is very         The main OSJA office was located in a
assumed responsibility for the war in                       concerned about continuity: will the replace-      building that had been part of the old Soviet
Afghanistan and sent a large force over,                    ments get the benefit of the experience of their   base. It had been restored to a comfortable but
including a group from the OSJA. We soon                    predecessors so that nothing is lost in the        Spartan condition with electricity and heat.
learned that this group would be replaced in                handoff? In the civilian practice of law, this     The chief of operational law and the fiscal law
November. That’s how I found myself on a                    would be equivalent to working on a large          attorney were located in the Joint Operations
darkened Air Force jet making a swift spiral                case with the same team of lawyers for six         Center (JOC), closest to the action. The JOC
descent into Bagram Airfield, Afghanistan.                  months, and then, in the middle of trial, hav-     was where the war was run on a day-to-day
Upon exiting the aircraft after midnight, I                 ing to turn the case over to another group of      basis and was the largest tent I have seen that
found myself on a plain nearly a mile high                  lawyers with no experience in the case.            didn’t contain elephants, trapeze, and clowns.
beneath a beautiful clear starry sky uncorrupt-             Fortunately, the staff judge advocate was stay-        My paralegal and I set up shop in a build-
ed by smog or city lights.                                  ing on for another six months, so continuity       ing that had also been part of the old Soviet air
    The next morning I awoke to find myself                 concerns were not as great as they might have      base. Perhaps because of its resemblance to
in a vast parched plain surrounded on all sides             been The staff judge advocate (SJA) is the         one of Tom Bodett’s nondescript inns, the
by mammoth, distant mountains. Drought                      head lawyer for an Army unit. In our case the      structure had been christened “Motel 6”.
and deforestation has made Afghanistan a                    SJA was Colonel David Hayden, now retired          Motel 6 had electricity, phone service, and
very dusty country, ensuring that I would not               from the Army and practicing in the US             sporadic internet access, but like all buildings
be breathing any fresh mountain air. Though                 Attorney’s Office for the Eastern District of      on post, had no plumbing, Believe it or not, I
Bagram is nearly a mile high, the temperature               North Carolina in Raleigh.                         was able to use Lexis in the middle of a com-
did not seem to vary from central North                         One by one, the departing personnel            bat zone at a speed not too different from that
Carolina. The drought was continuing, but                   briefed us replacements on their jobs. We          of the dial-up access of my early days in civil-
was interrupted by the occasional downpour                  learned that the deputy staff judge advocate, a    ian practice.
and dusting of snow. I would be amazed at                   lieutenant colonel, made the office run                Most of my practice revolved around for-
how little rain it takes to turn dust into                  smooth according to the SJA’s instructions.        eign claims. Under federal statutes, the mili-
impenetrable mud.                                           He also handled a variety of legal issues. The     tary has the ability to compensate foreign
    After recovering from a nasty case of jetlag,           chief of operational law, a major, had primary     nationals whose person or property has been
my teammates and I spent the next week set-                 responsibility for legal issues arising in the     damaged by US forces. The system is not
tling in. By wartime standards, our accom-                  actual conduct of the war, such as what is a       fault-based, so I was not required to find
modations were not bad at all. I shared a large             legal target and what methods of attack can be     wrongdoing by our forces. The system is, in
tent with around five other officers. Though                used. Both international and United States         part, intended to be a goodwill tool to soften
not luxurious, the tent did have wood floors,               law govern this area. Subordinate to the chief     the impact of our forces. My job was to inves-
sporadic heat, some electricity, and cots.                  of operational law were three operational law      tigate claims filed by Afghans and, if I found
While the nearby portajohns were far better                 attorneys, all captains. Each of the three had     the claims meritorious, to make payment.
than the slit trenches other soldiers in other              additional responsibility for separate practice    Much of the work was done in the vicinity of
parts of Afghanistan were using, I can’t say                areas. One dealt with criminal law issues and      Bagram. But, as the only person with author-
they really were as cozy as the tents. We even              a variety of administrative law issues. Another    ity to adjudicate claims in a country roughly
had shower tents a short walk away, though                  dealt with fiscal law, a burgeoning area of        the size of Texas, there was more than a bit of
hot water was sporadic. I’m certain the world               practice in the military. This practice area       travel involved.
record for the shortest shower was set and bro-             deals with issues concerning what the Army             Within two weeks of arrival, I set out on
ken several times that December in Bagram                   can spend the taxpayers’ dollars on. Congress      my first claims investigation. Traveling by hel-
during a hot water outage! Most important                   has placed many limits on how the military         icopter, we headed to a remote region of the
for any soldier’s morale, however, is food. Our             can spend appropriated funds and a complex         country. Since helicopter travel was at a pre-
arrival was fortuitously timed, because the                 web of other restrictions governs how a com-       mium, we combined our mission with an
food service had received a major upgrade two               mander can spend money. Commanders take            Army doctor to provide humanitarian med-
weeks before our arrival. We were fed two hot               these rules very seriously and the fiscal lawyer   ical care to Afghans in the village. Also accom-
meals a day, with a packaged MRE (Meal,                     was thus in high demand. The third area han-       panying us was a security team of cavalry
Ready to Eat) for lunch. I usually loaded up at             dled by a captain included foreign claims and      troopers from the 82d Airborne Division.


T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L                                                                                                    31
Our goal was to land in the village where the      er a higher offer. After rejection and protesta-      municate to him the American tort system
alleged damage occurred, investigate, and          tions on his part, the cycle would repeat until       challenged my ability to understand the true
quickly depart.                                    an agreement was reached. My skills acquired          nature of law in a way it never had been before.
    After several attempts at finding level        in settling these claims served me well at the        While the growing trend of teaching the nuts
ground, the chopper landed in a valley whose       bazaar held on post where I was able to suc-          and bolts of the practice of law is necessary, it
walls seemed to be not much wider than the         cessfully bargain for some lovely carpets. After      is important to continue to teach the broad
span of our rotor blades. When the wind from       concluding the investigation, we headed back          themes of the law. No amount of clinical work
our departing taxi died down, we consulted         to the landing zone to meet the returning hel-        or trial advocacy class could have prepared me
our maps and GPS and discovered that we’d          icopter. Other than a few tense moments, the          for this kind of work.
been deposited in the wrong village, a few         return trip passed easily.                                While most of my practice involved for-
miles from the correct target. With the heli-          At any given moment, a soldier will either        eign claims, I did spend much of my time
copters too far gone to retrieve us, another       think he has the best job in the Army or the          helping soldiers with their legal problems.
plan was necessary. We decided to leave the        worst. I am convinced that the foreign claims         Even when not deployed, the youth and tran-
doctor and half the security team near the         job was the best. Because of the requirements         sience of military personnel ensures their need
landing zone. The rest of us would head out        of the job, I was able to get off post more than      of frequent legal advice. Near any post in the
on foot for the correct village. The terrain was   other judge advocates. While they were more           US, a host of predators seek to lure soldiers
rocky and mountainous, and we were at a            connected to the immediate conduct of the             into consumer scams, payday lending, and
much higher altitude than the nearly mile-         war, I was able to see much more of the coun-         used car lemons. Further, military life is tough
high Bagram. After two weeks in country, the       try, interact more with the people, and learn         on families, resulting in a tremendous
experts say one should be about 80% accli-         more about the culture. I found Afghans to be         demand for domestic law advice. When sol-
mated to the altitude. In this difficult land-     welcoming hosts to guests, avid bargainers,           diers go off to war, these problems often are
scape, the remaining 20% would have come           and cautious optimists about the future of            exacerbated, and the lack of good communi-
in very handy. But, the early morning ruck         their country.                                        cation makes resolution of these issues even
marches and PT at Bragg paid off, and we               Unfortunately, claims occasionally involved       harder. While I was not able to completely
made the trip without incident.                    Afghan fatalities. These cases required careful       solve many of the soldiers’ problems, I was at
    Upon arrival at the correct village, I had a   coordination with Afghan authorities. In part,        least able to mitigate some of the war’s effects.
chance to catch my breath and reflect on the       this coordination was necessary because the               One area where I was able to make a dif-
surroundings. The village, nestled in a narrow     rules governing claims payments partially             ference was in helping non-citizen soldiers
valley, was merely a collection of primitive       incorporate the law of the nation where the           prepare citizenship application packets. After
wood and stone huts with no electricity,           claim arises. Thus, in one case of several            9/11, President Bush signed an executive
plumbing, heat, or any of the infrastructure       deaths, I had to learn what I could about the         order eliminating the waiting period for any
we take for granted in the US. While much of       Afghan concept of negligence. I traveled to           active duty military personnel applying for
Afghanistan has, as they say, been “bombed         Kabul to meet with an Afghan general who, as          citizenship. This action opened the doors for
back to the Stone Age” during its many wars,       best we could tell, was a senior military lawyer.     thousands of service members to immediately
this part of the country had barely left that      He spoke no English and my Dari was limited           apply. Many immigrants applying for citizen-
era. Primitive subsistence farming was the         to “yes,” “no,” and “please,” so we spoke             ship in the United States are stymied by the
only occupation, one that the ongoing              through an Afghan interpreter who was a               bureaucracy they face. The communication
drought had rendered difficult.                    medical doctor by training. Trying to grasp           difficulties in Afghanistan made the process
    Working through an interpreter, I was able     another culture’s idea of an abstract legal con-      even more difficult, but we made do with the
to get a rough idea of what had happened to        cept would be a challenge if both parties speak       resources at hand. We cut deals with the
bring us here. US forces had found a cache of      the same language and share a similar legal tra-      Public Affairs detachment to take digital pic-
Taliban weapons in a cave adjacent to the vil-     dition as, say, America and Britain do. It’s a bit    tures of the applicants and persuaded the
lage and blown them up. The resulting explo-       tougher where there is a language barrier and         Military Police to get the required finger-
sion damaged the roofs and windows of some         some differences exist in legal tradition, as         prints. No one, native born or naturalized,
of the huts. Causation seemed clear, but the       between America and France. Here, however,            deserves citizenship more than this group
tough part was measuring the damages. Going        there was no common language and no com-              serving America at war. Playing just a small
to a local Home Depot to price shop windows        mon legal tradition. And, we were trying to           part in helping them get their citizenship was
was not an option. In the end, I found resolv-     communicate though an interpreter who was             one of the highlights of my legal career.
ing a claim, like everything in Afghanistan,       unfamiliar with legal terminology in Dari,                The operational law work, though not the
boils down to negotiation. I initially believed    much less English. After considerable interac-        largest part of my practice, was perhaps the
my job was to serve as a finder of fact, deter-    tion, it became clear that in Afghanistan a           most interesting work. Operational law is a
mining damages as accurately as possible and       strict liability standard applies in far more areas   field unique to military lawyering. Military
then offering that amount to the injured party.    than it does in America. After a few hours of         justice is, for the most part, similar to civilian
I quickly learned, however, that I needed to       conversation, I silently thanked my law school        criminal justice. My experience with foreign
start with a lowball offer, act offended when it   torts professors and returned to Bagram. Truly,       claims showed me that it was, in many
was rejected, then make small talk until I         trying to understand what the Afghan lawyer           respects, similar to insurance law and tort law
deemed the injured party was ready to consid-      was trying to tell me while struggling to com-        in the civilian world. Moreover, fiscal law has


32                                                                                                                                              FALL 2006
many analogues in civilian governmental law.
Only in the military practice of law, however,
will an attorney have the opportunity to
advise a client on how to legally use a weapon
to launch an attack on other human beings.
Obviously, the responsibility to deliver accu-
rate advice in this area must be taken serious-
ly. Advice that is too permissive could result in
unneeded suffering and can damage the cred-
ibility of US forces. Advice that is too restric-
tive can unnecessarily handicap our troops
and result in casualties amongst our forces.
    The law governing this area is often vague.
For example, it is illegal to use weapons “cal-
culated to cause unnecessary suffering.”2
What suffering is necessary and what is not
necessary? Why is any suffering necessary? Or,
in a war where it is legal to use bombs whose
concussive force kills people, why should it be
illegal to use other methods to kill? These             On a claims investigation, having just returned after hiking a few miles in the mountains from the
questions aside, an operational law attorney            village where Martin led the investigation. They were awaiting pickup by a helicopter.
may be called upon to opine, on short notice,
on issues such as this. I know of no parallel in            ture. Rumors even abounded that we would           Afghanistan is in the state it is in today.
civilian practice and nothing as thrilling.                 be held over in Afghanistan in order to facili-    Geographic, economic, diplomatic, and eth-
    While the period of large-scale engage-                 tate the other war in Iraq. But, once we finally   nic forces have ravaged the country for cen-
ments had ended months before, there was,                   became confident that we would be leaving          turies. Yet the rule of law, had it existed, could
and is,3 clearly still a war. Though there were             soon, we struggled to keep focused on our jobs     have contained all these forces. We in America
to be no more Tora Boras and Anacondas,                     and not on the calendar. We resisted the temp-     should never take for granted how little sepa-
American and Coalition forces were constant-                tation to keep checking the flight schedule and    rates us from a chaotic nation like
ly in action around the country. While on                   number of open spaces on each planned flight.      Afghanistan. We in the American legal profes-
post in Bagram, we felt relatively safe. In the             So we packed our bags and waited for space to      sion must take seriously our role in preserving
civil war between the Taliban and the                       open up. Finally, I was awakened in the mid-       and nurturing our system of laws.
Northern Alliance, Bagram had been on the                   dle of the night and told to be ready to board
front lines. But, the populace was generally                the plane home in 20 minutes. Trying not to            Grier Martin is a member of the North
favorably disposed to Americans. The Pashtun                wake my tent mates, I struggled to get dressed     Carolina House of Representatives. A major in
dominated areas in the rest of the country, on              and pack the last few necessary items. After       the Army Reserve, he is currently assigned to the
the other hand, were less friendly. There were              hauling my bags to the flight line, I boarded      Office of the Staff Judge Advocate, US Army
some bad apples about in our area, however,                 the plane and departed Afghanistan.                Special Forces Command (Airborne) at Fort
and we occasionally came under rocket and                       A recent Time magazine cover story called      Bragg, NC. He is a graduate of Davidson
mortar attack at Bagram. When traveling off                 Afghanistan “The Other War.” With the              College (BA), the University of North Carolina
post, we were always aware of the threat of                 nation focused and divided on the conflict in      School of Law (JD, served as note editor, North
ambush or improvised explosive devices                      Iraq, many of us Afghanistan veterans perhaps      Carolina Law Review), and the Judge Advocate
(IEDs). These IEDs were not the threat in                   have a small chip on our shoulder about “our”      General’s School (LLM).
Afghanistan that they have become in Iraq,                  war being relegated to the back pages of the
but attacks did occur and we were ever alert to             newspaper. At the same time, we have the           Endnotes
the possibility. Several casualties occurred dur-           advantage of having served in a conflict that      1. For information on a combat jump made into Panama
ing my tenure and the saddest moments of                    seems to have the support of a greater per-           by an Army judge advocate, see Frederic Borch’s Judge
                                                                                                                  Advocates in Combat. Borch, a retired judge advocate,
my tour came each time we lined the main                    centage of the American people than does the          was until recently the clerk of court for the Eastern
road to honor the procession carrying the                   war in Iraq. We had no worries about people           District of North Carolina.
bodies to the Air Force plane waiting to take               back home supporting us, and that may be a         2. Annex to Hague Convention No. IV, 18 October
them home to America.                                       decent trade off for serving in the “other” war.      1907, embodying the Regulations Respecting the Laws
    There is an amazing ailment that afflicts                   Beside the obvious lessons on negotiation         and Customs of War on Land, art. 23, para. (e).
every soldier as he nears the end of his tour               and the clear demonstration of the impor-          3. When measured as a percentage of casualties per per-
                                                                                                                  sonnel serving, Afghanistan was even more deadly in
overseas. School teachers would recognize it as             tance of accurate, timely legal advice under          2005 than Iraq. Afghan Insurgency Still A Potent Force,
an adult version of the antsiness children get as           pressure, I learned some broader lessons on           United States Institute of Peace, available at
summer vacation approaches. In our group,                   the practice of law from my service in                www.usip.org/pubs/usipeace_briefings/2006/0223_af
we did not know the exact date of our depar-                Afghanistan. There are many reasons why               ghan.html.



T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L                                                                                                            33
                     Professionalism in Practice
B Y N A N C Y E . F O LT Z




O
                                      ur local bar association in Gaston County, consisting of                1. Give your fellow lawyers a break.
                                                                                                              Rules, rules, rules. We live and die by rules,
                                                                                                          stacks and books of them. Rules of Civil
                                      approximately 150 lawyers, held a seminar on March                  Procedure, Rules of Court, ethical rules, local
                                                                                                          rules. Rules which may have nothing to do
                                                                                                          with the merits of a particular case, or with get-
                                      17, 2006, on professionalism. I was asked to speak to               ting it resolved. Rules with which you can beat
                                                                                                          your unsuspecting opponent over the head and
                                                                                                          make his life miserable. Rules, which if insisted
                                      provide “a female perspective,” and I agreed to do so as            upon and adhered to without discretion, may
                                                                                                          delay your case and cost your client more
                                                                                                          money. Give your fellow lawyers a break on all
long as I didn’t have to prepare a manuscript, was allowed to tell war stories, and didn’t                of these rules if the circumstances warrant. I
                                                                                                          have learned that you can concede a lot of issues
                                                                                                          to your fellow lawyers without damaging your
have to be politically correct.                                                                           client’s position. On the contrary, when lawyers
                                                                                                          cooperate, clients win.
                                                                                                              An example comes to mind: I once got into
    I prepared my notes for my 20 minute talk       Perhaps I should call them “suggestions”              a vehement argument with a Gaston County
by reflecting upon my 25 plus years of prac-        instead of rules, since the idea of rules with        lawyer, Bob Forbes, about his request for a con-
ticing law, and the lessons that I have learned     regard to professionalism seems to defeat the         tinuance of a district court automobile accident
about professionalism from older and wiser          whole purpose. Professionalism is like obscen-        trial. The case had been on the calendar several
members of the bar who trained me when I            ity: I can’t define it but I know it when I see it.   other times, and continued for one reason or
knew nothing except what I had read in              And I don’t profess to actually live up to my         another. My client, the defendant, who lived
books. I particularly remembered the influ-         rules all of the time. They are goals that I try      several hours from Gaston County, was grum-
ence of the partners in the first firm where I      to keep in mind as I go about my lawyer life.         bling about the delays. So when the case came
worked when I graduated from Wake Forest                At our seminar, I also told the assembled         on the calendar again, and Bob asked for a con-
University Law School in 1980: Jim Craighill,       lawyers that I didn’t purport to present a            tinuance, I objected. As I recall, I didn’t think
John Rendleman (both now deceased), John            female perspective. Although I am a female, I         Bob had a good enough excuse. The presiding
Ingle, and Bob Blythe of Mecklenburg                can only present my own perspective. I have           judge heard our arguments, and I remember
County. They were gentlemen and profes-             never been a fan of placing lawyers into these        being very self righteous in arguing my client’s
sionals of the first degree and spent untold        categories which, it seems to me, separate us         position. The continuance was allowed, as I
amounts of time teaching me how to be a             from each other. Male/female, black/white,            had suspected it would be. But I had damaged
lawyer. I also thought a lot about the many         gay/straight, plaintiffs’ lawyers/defense lawyers,    my relationship with Bob temporarily, for no
mistakes that I have made over the years, and       lawyers in private practice or lawyers who            compelling reason. The case was finally tried,
the regrets that I have about some of my            work for government in some form, we are all          and I’ve never heard from that client again.
behavior toward other lawyers and their             lawyers. We share the same stresses and con-          Bob, on the other hand, is someone I see every
clients. I repeat my mistakes from time to          cerns. One of the nicest compliments I have           week, have had many cases with, and I value his
time, or think up entirely new mistakes, but I      ever received from a fellow lawyer was when he        friendship. It didn’t help my client’s case at all to
keep encouraging myself to live up to some          called me “one of the guys.” Gaston County is         make a fuss about a continuance.
ideal that is more than the minimum required        not exactly a bastion of feminism and liberal-              All of us need continuances from time to
by the ethics police.                               ism, so that was a nice way to be accepted.           time for reasons that may not be very good. I
    The result of my reflection is the following,       And now for the Rules. These are not in           remember the very wonderful Max Childers,
informal Ten Rules of Professionalism.              any particular order of importance.                   who died in 2004 at the age of 83, requesting a


34                                                                                                                                                 FALL 2006
continuance at calendar call because he “just               excused our failure to get the result we wanted      except make sure they know you are not to
wasn’t ready to try the case.” That was good                in a case by blaming it on the actions of the        blame. Tell your clients that if they can’t live
enough for most of the judges who were calling              opposing lawyer, or the failings of a particular     with the uncertainty of a stranger’s decision,
the calendar.                                               judge. Sometimes such criticism is valid, many       they should make a greater effort to negotiate
    So, when your fellow lawyers need some-                 times it is not. Either way, don’t do it. Don’t do   a settlement of their legal issues. But don’t
thing from you in a case, which costs you and               it because no matter what, you do not know           downgrade the judge who has to make a deci-
your client little or nothing, give them a break.           the whole story as to why the opposing lawyer        sion and be the bad guy.
I guarantee you will need a break yourself                  did or said what he did, and you can’t read the          Finally, embarrassment. I happen to think
someday.                                                    judge’s mind.                                        that those of us who chose this profession in
    2. Be scrupulously trustworthy.                             I have found myself, on occasion, getting        the first place have a high tolerance for embar-
    When I first came to Gaston County to                   very smug when a client comes to see me after        rassment, since we are immediately subjected,
practice law in 1985, I was taken aside by                  being previously represented by another              from law school on, to failing in public.
Grady Stott and Lin Hollowell, the senior                   lawyer. Even though my experience has taught         Remember our professors with their Socratic
partners in my firm, and told discreetly which              me that clients who are unhappy with one             method? Remember your first hearing? First
lawyers in our small bar could be trusted, and              lawyer are likely to be unhappy with the sec-        jury argument? Did anyone reading this ever
which lawyers to watch out for. I thought at                ond one, I find myself, in my superior wis-          appear in front of Judge Frank Snepp? He was
the time, and still do, that it would be an                 dom, expounding upon the way that I would            so smart, and so intimidating, that the whole
absolute disgrace to be one of the lawyers that             have handled the legal matter differently if I       courtroom was embarrassed when he came
other lawyers thought could not be trusted.                 had been involved from the beginning. I              down on an lawyer.
    Being trustworthy, by my definition,                    would have done a better job, for less money,            Judges, please don’t embarrass us. We know
means more than just refraining from bold-                  and been nicer, more responsive, more effi-          as well as you when we are not fully prepared,
faced lying. It means that your word is good; if            cient, and gotten things done with less delay        and when we are stumbling. You don’t need to
you say something, you mean it and will fol-                than that sorry schmuck they hired in the first      remind us in front of our clients and other
low through. Your verbal agreement with                     place. Many times I find myself wishing the          lawyers. Call us to the bench if there is a point
another lawyer will be as good, even better,                sorry schmuck would take the case back,              you simply must make. And lawyers, don’t
than someone else’s written contract. If a mis-             because it turns out to be far more complicat-       embarrass each other. If you happen to be bet-
take is made and documents are signed which                 ed than I thought, with the expense being            ter prepared, and have a case that the other
do not reflect the true agreement of the parties            caused by my client’s unwillingness to concede       lawyer overlooked, be grateful, not self-satisfied.
and lawyers, you will aid in correcting the mis-            even the smallest of points, and my respon-          Don’t play games if you have the home court
take, even if it was in favor of your client                siveness and niceness diminishing with time as       advantage; don’t make fun of lawyers from out
    Don’t run to judges with ex parte orders                I’m called every day about the most trivial of       of town. Be especially gentle with young
when you know that another lawyer may have                  issues, only to have the client complain when        lawyers. They know not what they do.
been consulted in a case, even if he is not yet             my bill reflects the time spent on matters               4. Don’t downgrade or embarrass other
lawyer of record. Don’t ask a judge to sign an              which do not move the case forward.                  lawyer’s clients.
order which will embarrass that judge later. I’m                I don’t like it one bit when I hear that other       This is probably the most difficult rule for
told that our senior resident district court                lawyers have disparaged my handling of a case,       me to follow, in practice. Whereas I usually like
judge, Dennis Redwing, has a list for his secre-            especially when they don’t know the agonies I        other lawyers, and judges, and so find it comes
tary of lawyers whose orders he will sign, no               may have been through with the disgruntled           naturally to give them the benefit of the doubt
questions asked. He assumes that when he gets               client. So I know it is unprofessional when I do     in most cases, many times I do not like or
an order from a lawyer on the list, it reflects the         the same thing to other lawyers.                     respect the opposing client. The fact that I have
agreement of the parties or fairly represents the               As for judges, except in very rare cases, they   practiced mainly in domestic and family law for
ruling of the court and the wording has been                have their reasons for rulings that you can’t        the last ten or so years may explain that. But
approved by opposing counsel before the order               understand at the time. They are doing their         once again, I do not know the whole story of
even makes it to his desk. You want to be on                best. Many times an inexplicable decision has        the complicated relations that cause people to
that list.                                                  seemed reasonable, even wise, to me as time          separate, and it is not my job to disparage my
    If I had to rank my Rules of                            goes by. Bad mouthing judges demeans the             client’s worthless spouse or ex-spouse.
Professionalism, I think I would put this one               whole system in which we labor. Since we can’t           To illustrate this point, I recall a case I had
first: Be scrupulously trustworthy. Your reputa-            change the fact that judges are human, and           with lawyer Nick Street of Gastonia. I repre-
tion as a trustworthy lawyer can only be earned             therefore make mistakes, then don’t belabor          sented a young woman who had married a
by years of fair dealing with your peers, and it            that point with your clients. It doesn’t change      much older man. He had kicked her out, and
is almost impossible to salvage if it is compro-            anything, and it scares the hell out of them         she had no job, no money, and no means of
mised. NO CASE and NO CLIENT is                             that some of the most important decisions of         support. To top it all off, she was pregnant with
worth the loss of your credibility with your fel-           their lives are taken from them and placed in        his child. He was a wealthy, but uneducated
low lawyers and judges.                                     the hands of a capricious, moody, biased indi-       redneck, in my opinion. He had the audacity to
    3. Don’t downgrade or embarrass other                   vidual who happens to be a golfing buddy of          question her pregnancy, even though she
lawyers and judges.                                         the opposing lawyer. And you, their high             brought me the positive results of a pregnancy
    I’m sure that all of us, including me, have             priced advocate, can’t do anything about it          test, which I passed along to Nick. Every time


T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L                                                                                                       35
Nick made the point that my client could be          in Gaston County, free of charge. We’ve had                This should be an easy one. Hopefully you
faking, I blasted him. I believed my client, who     some lawyers here with very major personal             like lawyers or you would not have chosen to
seemed like a vulnerable, helpless victim. The       problems—our bar has actually sent a delega-           spend so much time with them. Some of you
case finally settled, with my client agreeing to     tion to talk and try to help. Some of these            are even married to them! Lawyers are general-
far less spousal support than I thought she was      offers of assistance have not been well received,      ly extroverts. Lawyers are smart: lawyers are
entitled to, which I attributed to the husband’s     but the point is, don’t sit back and do nothing        fun: lawyers have great war stories. Lawyers
intimidation of her. I thought he was despica-       when you see a fellow lawyer suffering.                generally have a good sense of humor; after all,
ble. Several months later, I happened to see my           I’m grateful to the lawyers who have han-         if the whole world is laughing at us, we may as
client walking down Main Street, and she             dled my kids’ traffic tickets, just because I          well join in.
looked remarkably thin for someone who               asked. Cecil Whitley in Salisbury, whom I’ve               I’ve been married to a chemical engineer,
should have been about seven months preg-            never met, took care of my son’s ticket for costs      and now to an endocrinologist. I can promise
nant. I immediately called Nick Street, who          only, just because I was a lawyer. I’m publicly        you that parties with lawyers are a lot more
told me (without being too smug) that my             thanking him here. I’m grateful to the lawyers         fun. Not once at a bar party have I seen an
client had used someone else’s urine for her         who sent flowers, cards, and food; took care of        lawyer diagram a filtration system on a cocktail
pregnancy test, and had never been pregnant.         my cases; and offered to sit with me after I had       napkin. Not once at a bar party have I over-
Far from being a helpless victim, she was a          major surgery last summer. I’m grateful to the         heard a discussion about the relative merits of
remarkable con artist. Nick’s client, the despi-     advice I received when I was going through a           various brands of insulin or thyroid hormone.
cable redneck, had been right all along.             divorce. This hasn’t happened yet, but I’m             I’ve never heard a chemical engineer or a doc-
Apparently he was not too upset about the set-       expecting my lawyer friends to come and get            tor joke. Lawyer jokes, on the other hand, are
tlement, because he was happy to be rid of the       me out of jail if I ever get put in there for con-     hilarious.
vixen, and wasn’t saddled with 18 years of child     tempt, with my big mouth.                                    I urge you to socialize with your fellow
support. I learned a valuable lesson.                     Take care of each other. As I said before, we     lawyers. Go to bar functions and participate in
    If we only represented responsible, fair         are all in this together.                              the activities of your local bar. Attend the
minded, sensible, even tempered people who                6. Help those who can’t afford your serv-         events to which you are invited. Acknowledge
met all of their obligations in a timely manner,     ices.                                                  significant events in the lives of your lawyer
most of us would have very little to do. As my            Volunteer, or pro bono, legal work is still not   friends: weddings, funerals, graduations, ill-
friend Mark Warshawsky told me when I                a requirement to maintain your license in              nesses, and so forth. Get to know something
pointed out that his client in yet another           North Carolina. But do it anyway, formally             about the family of your fellow lawyer.
domestic case was a sorry bastard: “Yes, but he’s    through the Legal Aid program, or informally.          Introduce yourself to the local lawyers when
my sorry bastard.” Good point, Mark.                 It’s the right thing to do.                            you are visiting court in an unfamiliar county.
    5. Help your fellow lawyers.                          You have a privilege license. Remind your-            It’s much easier to practice law in a civil
    Outside of the day-to-day grind of cases         self that being a practicing lawyer is truly a         manner with an lawyer who is on your court-
and hearings, help your fellow lawyers on a          privilege, and as we all know, with privilege          house baseball team, or with whom you had a
personal level. A little bit of professional cour-   comes responsibility. There are so many people         couple of beers on the golf course last week-
tesy goes a long way. Let out of town lawyers        who need our help, who can’t pay our fees. In          end. It’s more difficult to get upset with an
use your office for depositions, or your library     Gaston County, our Volunteer Lawyer                    lawyer who sent you a note when your daugh-
for research. Answer questions about local           Program focuses on helping people in family            ter graduated with honors. Lawyers are true
practices and procedure when a lawyer unfa-          law cases. That is where we see the greatest           and loyal friends, and will be there when you
miliar with them calls you. Share your forms         need. Our small bar has won numerous                   need them. Laugh with them, cry with them,
and experiences. Talk to law students and new        awards for the work, even on a national level.         and spend time with them.
lawyers. If one of them comes knocking on            We are proud of our volunteer work, even                   Into this category, I will also inject my
your door looking for a job, give them a few         though we grumble when locked into a cus-              opinion that we lawyers should honor those
minutes of your time, and a few leads.               tody trial—the type of trial most lawyers don’t        fallen comrades who have gone before us to a
    On an even more personal level, lend a           like when being paid to do it, let alone do it for     “higher court.” I’m talking about funerals and
sympathetic ear to those in this stressful pro-      free. Yet the rewards of helping others in diffi-      memorial services. Attend them to show your
fession who need someone to talk to confiden-        cult situations outweigh the costs.                    respect for your fellow lawyer, even if you did-
tially about marriage, kids, finances, substance          From my observation, North Carolina               n’t know him well. In Gaston County, when
abuse problems, or anything else that you            lawyers in general are meeting their responsi-         an lawyer dies, we hold a memorial service at
might be able to understand better than the          bilities to provide free or reduced cost legal         the courthouse to honor the life of the
average Joe. My friend Rachel Pickard has            work to deserving clients. I think the North           deceased. Our senior resident superior court
worked with PALS for years. The good that            Carolina State Bar, the North Carolina Bar             judge presides, and lawyers who knew the
she does goes undocumented. I know that she          Association, and the Legal Aid offices do an           deceased well speak, usually in a humorous
has been called out to counsel lawyers at times      outstanding job of coordinating the effort to          vein which might not have been appropriate
that were very inconvenient to her—nights            provide the services and recognizing the               for an actual funeral. The county lawyers and
and weekends. She maintains her sense of             lawyers who participate in the programs avail-         courthouse personnel are invited and a record
humor and is nonjudgmental. Mike Hodnett             able to the public. Keep up the good work.             is made of the proceedings. In my opinion,
has worked on domestic cases for lawyers here             7. Socialize with your fellow lawyers.            every lawyer in every county where this is done


36                                                                                                                                               FALL 2006
should be present at the memorial service.                  the pro se parties. Many of them have other              10. Give other lawyers the benefit of the
Whether you knew the deceased well is irrele-               courts where they need to be; making them           doubt.
vant. Honoring an lawyer at a memorial serv-                wait may delay other proceedings.                        If something can be taken two ways, inter-
ice or funeral shows your respect for his serv-                 Return phone calls from other lawyers           pret the actions and words of other lawyers in
ice, for his family, and for the legal profession.          before you return others. If a lawyer calls         the best light. Don’t go around with a chip on
    8. Show favoritism.                                     requesting that you be interrupted, take the        your shoulder assuming the worst of your fel-
    The word “favoritism” has gotten a bad rap              call. If an lawyers says an issue is urgent,        low lawyers, absent compelling evidence to the
in this politically correct world in which we               assume that it is. Keep other lawyers high up       contrary. Assume they are acting professional-
now live. I say unashamedly that we should                  on your list of priorities.                         ly, as well as ethically.
show favoritism to other lawyers. Don’t treat                   9. Don’t be a party to your client’s bad             Most people do not understand the type of
them like the rest of the world.                            behavior.                                           work we do. They do not understand how we
    However I say this, it seems to sound                       Your credibility as a trustworthy profes-       can be personal friends with colleagues with
wrong, so I’ll give a couple of examples:                   sional with your peers is a hard-earned, irre-      whom we are adversaries in the court system.
    I once found myself wandering dazedly                   placeable commodity which can easily be             Clients take what is happening to them in the
into the unfamiliar territory of traffic court,             damaged or destroyed by participating in or         legal system very personally, and they think we
where I have never practiced. I had been asked              abetting clients’ egregious behaviors. We all       should too. Many of my clients are bothered
by one of the senior partners at my firm to get             have to represent reprehensible characters from     by my friendship with the lawyer who is rep-
a case continued. Knowing nothing about traf-               time to time, but we have the choice of reining     resenting their adversary.
fic court, or criminal court, I nevertheless                them in and refusing to act as hired guns and            I tell them that I know the lawyers I can
assumed that I would be treated well and                    use the legal system to bully others or achieve     trust, after long experience, and that my abili-
helped along my way because, after all, the                 unfair results. Despite what a client is willing    ty to work with the other lawyer will actually
assistant DA’s were lawyers. I walked up to the             to pay, a true professional knows when to tell a    be helpful to their case. I tell them that rather
desk where the ADA was busy shuffling                       client to back off or to cease pursuing a result    than argue over every fact, every disclosure,
shucks, and looking harried. He looked to be                which is harmful. This is especially true in        every assertion, I will be giving the other
about 15 years younger than me. I introduced                family law cases. I see lawyers filing inflamma-    lawyer the benefit of the doubt where possible,
myself, told him I was a lawyer in Gastonia,                tory pleadings that allege in detail the flaws of   and not assume that I am being lied to or
and was here to request a continuance of the                one of the parents and further alienate the par-    deceived. I am not going to accuse another
case involving my firm’s client. I was told,                ties, making the case more difficult to settle.     lawyer of wrongdoing unless I have clear evi-
rather rudely, to take a seat and wait my turn              Long after the lawyers have finished their work     dence that wrongdoing has occurred.
like everyone else.                                         and gotten out of the case, these same parties           One of my favorite war stories illustrates this
    I was offended by this response to my                   have to parent children together. There is no       point: I was trying a case early in my career with
request for consideration by a fellow lawyer. I             need to damage the relationship any further         the legendary Pat Cooke, one of the greatest
think I deserved the courtesy of a polite reply,            than necessary. Don’t let your ego as a tough       trial lawyers Gaston County has ever seen. It
and unless there were compelling reasons oth-               guy lawyer damage the ability of parties to         was an automobile accident case, and it was not
erwise, I think the ADA should have helped                  work together to some extent. Don’t let the         going well for the defense, represented by me.
me and ceased shuffling papers for a moment                 lure of a bigger fee cause you to litigate issues   It seemed that every ruling, every witness, every
to respond to my request. Even if the response              that are better settled.                            nuance in the case was going Pat’s way. I felt like
was that I would have to wait for the judge and                 There are many actions you and your client      a young whippersnapper, which is exactly what
make my request for a continuance to him, I                 can “get away with” in a case. These actions are    I was, being patronized by a knowledgeable vet-
think that response should have been delivered              not illegal, and they are not unethical. But tak-   eran, which is exactly what Pat was. The judge
politely, with some indication whether it                   ing these actions may not further true justice      seemed to be on Pat’s side, too, and all of Pat’s
would be opposed by the DA or not. Of                       in the case, as much as hassle the other side.      objections were sustained. I swore he was
course, this same ADA was being rude to the                 I’ve had an lawyer file a contempt motion over      objecting sometimes just to rattle me, and in
ordinary citizens who came forward asking                   the most frivolous of disagreements, schedule a     that, he was successful. Finally, we got to the
questions, which is also unprofessional, but I              hearing and even schedule a deposition prior        jury arguments. Pat closed, in his usual elo-
did not expect to be treated as a common                    to the hearing, mainly because the supposedly       quent way, and it seemed the jury was eating
criminal.                                                   contemptuous party lived some distance away         out of his hand. The judge called a recess before
    Another example: I’ve many times been the               and could not afford the lawyer fees or time        the charge. On his way out, one of the jurors
only lawyer in a courtroom full of parties,                 out of work to respond. I’ve seen an lawyer         stopped at Pat’s table and leaned over to whis-
waiting for small claims cases or child support             subpoena an adverse party’s employer to court,      per something to him. I was incensed! Surely
enforcement cases to be heard. I think the                  force the employer to sit through an entire         Pat had done something improper, to encour-
magistrates or judges should call the cases with            morning of court proceedings, only to release       age this sort of familiarity from a juror. Perhaps
lawyers first, before the cases with unrepresent-           him from the subpoena because, in truth, the        he knew the man personally, and failed to dis-
ed parties. Most of the time, the lawyers who               real reason for his presence was simply to          close that fact in jury selection. Perhaps he had
are in court are being paid by someone to be                embarrass the hapless employee.                     been talking to him in the hallways. It had to be
there, and making us wait costs our clients                     Use some judgment, and if your client
money. Let the lawyers finish their work before             won’t follow your advice, get out of the case.      CONTINUED ON PAGE 59


T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L                                                                                                       37
                   F I C T I O N          W R I T I N G        C O M P E T I T I O N          -   H O N O R A B L E         M E N T I O N




                       Maggie
BY WILLIAM E. WHEELER




     T
                he reflection of the moonlight            place where time stood still and provided a
                against the white winterscape             welcome surcease from the throbbing com-             The Results Are In!
                outside the cabin window pro-             plexities of life. It was a soothing, mind-heal-
                vided a clear view of the mead-           ing pastille in any season and in any weather.          In 2006 the Publications Committee
ow. In summer it had been strewn with wild-                   Aaron recalled a wet and cold spring day         of the State Bar sponsored its Fourth
flowers, but now was covered with a soft blan-            during a weekend he and Maggie spent there           Annual Fiction Writing Competition.
ket which muffled the sounds of night. Even               the previous year. On that particular day they       Eight submissions were received and
at midnight through the gently falling flakes             had stood together late in the afternoon with        judged by a panel of five committee
he could make out the footprints of some                  their arms around one another looking at the         members. A submission that earned
small animal which had recently trekked                   rain through the same window, with its blue          honorable mention is published in this
across the snowy meadow in search of more                 calico curtains pulled aside, silently enjoying      edition of the Journal. The third, sec-
suitable accommodations. The night was cold               their isolated togetherness. He had thought of       ond, and first place stories will appear in
and quiet save for an occasional hiss or crack-           that day as a bit dreary. Maggie had remarked        the next three editions of the Journal,
le from the slow burning hickory wood in the              at the grace of the rain as it cascaded down the     respectively.
old stone fireplace which kept the one room               roof onto the ground and made its way across
cabin so warm and cozy. Aaron laid the small              the meadow to the creek below. She had
book of poetry he had been reading by the                 likened the polonaise of the raindrops on the      board was a color photograph of a cabin with
dimming fire light on the old desk beside                 window pane to tears of joy from the eyes of       a meadow in the foreground and a creek
him, opened to the entry curiously entitled               God. Part of her endearing charm was her           below. A sign to which the photo was
“Christmas Eve.”                                          unique ability to see something lovely and         attached advertised it as “One room rustic
    Everyone is sleeping. Nothing wakes. The              special in simple things. It always made Aaron     cabin on five acres with running water, etc.”
woods are motionless. The wind is down to a               feel good just to be near her.                     He was not quite sure whether the “running
whisper. Sleep hums like current—yes, audi-                   He couldn’t help but remember how the          water” denoted modern plumbing or the
bly— through the bright steel night.                      cabin had first come to his attention. It was a    creek which ran across the five acres. As he
    The evening star rises like a flaming wick.           hot July day two years before when he had          looked at the photograph he began to wonder
Hills fit into hills like lovers, their great dark        stopped at a country store nearby for a cold       who had lived there and what kind of people
straddling thighs clasping still greater darkness         soft drink. As he stood in the store enjoying      they were. The photograph was obviously
where they meet. A star breaks, arcs down the             the respite from the searing heat, he casually     taken in late spring or early summer. The
night—like God striking a match across the                inventoried the curious goods and food stuffs      leaves were still green on the trees, and wild-
cathedral ceiling.                                        found in such places: hoop cheese the color of     flowers could be seen in the meadow.
    Therefore I wish: see my lips move—making             sumac leaves in September; fried pies coated           Without really knowing why, Aaron
your name. It is so still, so still. I am sure that you   with sugar oozing their sweet cargo of apple       decided to ask the proprietor of the store
must hear me—                                             and spice; barrels of apples, not the polished     about the cabin and its owners. So as not to
    As he pondered the words of the poem                  ones found in city supermarkets, but dusky         seem an overly nosey foreigner, he first intro-
and drained the last of his glass of Scotch, the          red ones like those freshly plucked from an        duced himself. “My name is Aaron Coe,” he
susurrant sound of a sigh behind him caught               orchard; handmade dolls fashioned from             said as he extended his hand to the storekeep,
his ear. He turned in time to see Maggie                  socks adorned in gayly colored tiny country        and followed with “what can you tell me
adjusting herself in her sleep. She was barely            frocks. A cork board attached to the wall near     about this cabin?”
visible, sunk down in the big feather bed in              the door was festooned with all manner of              “Delmer Jones” was the merchant’s reply.
which they had slept and made love during                 advertisements by the local folk for the sale of   Probably because Delmer was alone and with-
the past several days and nights. The cabin,              used cars, tractors, farm implements, and          out anyone to talk to a good part of the day,
nestled peacefully in the mountain valley near            other items of local interest in that Blue Ridge   the inquiry brought a smile to the storekeep’s
the river, was a place apart from the world; a            Mountain community. In the center of the           face and a story about its previous occupants.


38                                                                                                                                               FALL 2006
    They were an elderly couple who had                         “Nothing here,” Aaron thought to himself,           “I did indeed, Maggie,” he replied, and
come down from New York about 15 years                      “that wouldn’t respond well to a thorough           quickly added “What do you think?”
ago. “Mr. and Mrs. Benton were their                        cleaning, some new curtains and a few—very              “I don’t know,” she said; “let me have a
names,” said Delmer. “I think they had a                    few—modern appliances.”                             look around.”
place in Florida, but spent their summers in                    Three things immediately captured                   As he escorted her through the cabin they
that cabin. A real nice old couple. He was                  Aaron’s imagination: the smooth interior log        surveyed its prospects and possibilities, each
Walter and she was Maggie,” he continued.                   walls, the stone fireplace, and the creek below     making mental notes as they went.
    A shiver of irony ran up Aaron’s spine at               the meadow. The fireplace appeared to be                Raking a hand across a dusty windowsill
the disclosure of Mrs. Benton’s name. Their                 constructed of smooth round granite                 Maggie said, matter-of-factly, “Needs some
two children were grown and long gone—to                    stones—the type that might have been used as        work, doesn’t it?” Before Aaron could reply,
California, Delmer thought, or maybe it was                 ballast stones in sailing ships along the coast     she added, “Perhaps some blue calico curtains
Florida. She was an artist and he a writer.                 years ago. It had been well used for several        on the windows.”
They seemed very much in love and were                      years and a patina of soot on the inside gave it        Rather than enjoin her comments with
always very attentive to one another.                       a comforting appearance. The mantle above           his own, Aaron decided to see what conclu-
    Delmer pointed to a small painting of                   was made from a roughly hewn sturdy log—            sions and suggestions Maggie would make.
wildflowers consisting mostly of yellow gen-                oak he thought—that was considerably older          He could tell from the way she pursed her
tians and sweet william that hung on the wall               than the logs from which the cabin was built.       lips she was giving careful consideration to
of the store and proudly proclaimed it to be                The log walls inside the cabin had a polished       the entire matter. As she walked slowly about
one of hers. After Mr. Benton had died a few                look and feel, cool to the touch on the hot         the interior of the cabin, stopping to examine
years ago, Mrs. Benton had stayed on alone.                 summer day, and would no doubt absorb heat          a nook or cranny, brushing her fingers against
But last year her health had declined to the                from the fireplace and be correspondingly           a wall or a fireplace stone, he could tell she
point that her children insisted she move to a              warm in winter.                                     liked the place. She had that certain with-a-
retirement community near them—”in                              The creek below the meadow contained a          woman’s-touch-this-place-could-be-great
California,” Delmer thought, “but it might                  small waterfall about three feet high formed        look on her face. He could see the brightness
have been Florida,” he repeated. She reluc-                 by a shelf of rock across the creek. Below the      of possibility shining forth from her eyes.
tantly agreed to go, but had confided to                    fall, the creek expanded into a pool about ten          “It needs a name,” she suddenly said.
Delmer and other friends and neighbors in                   feet wide and two feet deep. The bottom of              “What needs a name?” Aaron responded.
the area that she didn’t want to leave the cabin            the pool was lined with small, smooth peb-              “This place,” said Maggie.
and the mountain valley she and her husband                 bles which would feel good to bare feet on a            “Okay,” he said, “what kind of name?”
had so enjoyed in their twilight years. The                 hot July day. The water ran clear, which the            “Something special, something fitting,
closer the time came for her to leave the more              realtor attributed to an underground spring         something...I don’t know, something that
her reluctance to go increased. She died in her             just above the pool. Aaron couldn’t resist cup-     means something,” she replied.
sleep the night before the day her children                 ping his hand and filling it with cool water            “How about ‘The Cabin’?” Aaron said
were to arrive to take her with them.                       for an impromptu sample from the creek. It          with a wry smile. “It’s honest, descriptive, and
    “The death certificate said ‘heart attack’,”            had a chlorine free, slightly coppery, rich taste   has eloquent simplicity.”
stated Delmer. “But,” he opined emphatically,               that reminded him of water from the well on             “NO!” she exclaimed in mock exaspera-
“as far as folks in this area are concerned, she            his grandfather’s farm from which he had            tion. “Have you no poetry in your soul?”
died of a broken heart.”                                    drunk when he was a small boy. With a smile,            “NO!” he said happily and grinned
    The elderly couple’s children had put the               he also remembered that his Maggie’s mouth          broadly.
cabin up for sale almost immediately after the              had the same rich honey-copper taste. The               “I know,” she exclaimed, “how about
funeral. “No takers so far,” said Delmer.                   instant he sipped the cool, clear water he          ‘Xanadu’?”
    Intrigued more by the story than the mod-               knew he would buy the place. It had very lit-           “Why ‘Xanadu?’” he asked.
est asking price, Aaron decided to have a look              tle practical purpose, but something inside             “You remember the Coleridge poem,”
at this place, the prospect of leaving which                him demanded he buy it. Within a week the           Maggie said pedantically:
caused the death of Maggie Benton, or so                    final purchase price had been negotiated, a             In Xanadu did Kubla Khan a stately pleas-
local opinion had it. The realtor was sum-                  deed transferred, and the transaction closed.       ure dome decree, where Alph the sacred river
moned and after a short drive they arrived. It                  The next order of business was to show it       runs through caverns measureless to man
was as advertised—rustic and a bit run down.                to Maggie. A few days later he called her and       down to a sunless sea. . . .
Aaron was surprised to find not only that the               told her he had something special to show               “It’s perfect,” she exalted. “We have a river
cabin had modern plumbing and running                       her. When the appointed day came, a picnic          which flows from underground caverns...”
water inside, but also was fully served by elec-            basket was packed, and they drove the two               “What we have,” he demurred, “is a creek
tric power. It was less dilapidated than                    hours from Greensboro to get there. As with         which comes from an underground spring.”
unkept—as though it had suffered more from                  other days spent with her it was possessed of           “Whatever,” Maggie replied, dismissing
a lack of love than upkeep. A quick survey of               a special quality he felt only when they were       his unimaginative precision with a wave of
the place revealed a solid log cabin of post-               together.                                           her hand.
depression era design and building materials,                   When she saw it, she smiled broadly and             “Besides,” Aaron rejoined, “I’m not sure I
aging but structurally sound.                               exclaimed, “You bought this didn’t you?”            want my...ah, our cabin in the vale to be


T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L                                                                                                    39
named by a besotted poet in a drug induced         After reaching into the emptiness with his          purpose, but it seems such a monumental
stupor. If we’re going to do that let’s at least   right hand and arm up to his elbow, she             waste for so many young men, on both sides,
call it something like... ‘Marguaritaville’.”      could see he had retrieved something from           to have to die or be hurt. May God bless us
    “Peasant,” said Maggie, spitting out the       the drawer space. It appeared to be an old          all this holy night.
word, “you have no joie de vivre.”                 envelope which had been stored in the draw-             I will use these remaining hours of false
    “That’s true,” Aaron said, “but I own the      er at one time and had probably been pushed         tranquility to think of you and the stolen
cabin.” “And another thing,” he interjected        out the back and became wedged between              hours we have shared. It seems so very long
while poking holes in the air at her, “I don’t     the drawer and its space preventing proper          since I have seen you, heard the laughter in
understand French.”                                movement in or out.                                 your voice, been embraced by the captivating
    At that, Maggie fixed him with an icy              The envelope was old and faded. It was          warmth of your smile, and felt the exquisite
stare, put her hands on her hips, squared her      addressed to “Maggie Benton, 5661 Elm               passion in the rhythm of your breathing as
shoulders and, after hesitating for an instant,    Street, Chestertown, NY” and was post               we made love. I long for you so.
spoke with a soft smile saying, “Well, do you      marked January 27, 1945. The return                     Come walk with me now along the banks
understand the phrase ‘cut off’?”                  address on the envelope read “Captain               of the stream where we held hands and
    Returning her stare, he said “You didn’t       Walter Benton, 506 Parachute Infantry               strolled among the emerging verdence of
explain it like that before. ‘Xanadu’ is a fine    Regiment, 101st Airborne Division, APO              spring; where we felt the wind in our hair
name. Should have thought of it myself.            Europe.”                                            and watched it as it whispered through the
Don’t know what could have come over me.”              With their attention on their find, Aaron       newborn leaves of the shimmering silver
    They both broke out in peals of laughter       and Maggie opened the yellowing envelope            maples; where we listened and pretended we
and seized each other in a tight embrace.          and began to examine its contents. It was a         heard that same wind call your name in its
    The front of the cabin faced south toward      letter written in pencil by a hand obviously        gentle gusts.
the meadow and creek below. Windows were           under stress.                                           Come sit with me awhile in the special
cut on either side of the door. Beneath one                                                            places we shared in summer: the pond by the
window on the south wall of the cabin sat an          12/24/44                                         glade where we picnicked on hotdogs and
old oak desk. It was more old than valuable,                                                           wine and laughed at the passersby and what
which probably accounted for the fact that it         My Dearest Maggie,                               they must have thought of us as we loved in
was not removed by the Benton’s children                                                               the warmth of the afternoon sun— us not
when the cabin was sold. It seemed curiously           I don’t know when or even if you will get       caring; the Inn where we stayed and you read
an integral part of the cabin. It also seemed to   this letter. Our situation is not good. We are      from your journal while I stroked your hair
have found its particular place because of the     holed up outside the small town of Bastogne         and we talked about all manner of things;
way the morning sun illuminated it through         in Belgium. The Germans have us surround-           the pool beneath the waterfall where we sat
the single window on the east side of the          ed and apparently outnumbered. The fight-           naked and bathed one another in the chilled
cabin—as if someone were expected to spend         ing has stopped for the night and the big           waters from the underground spring.
time there in the mornings, perhaps writing.       guns are quiet. It is Christmas Eve. Two days           Come join me in the autumn splendor of
    Aaron and Maggie eventually came to the        ago the German commander sent a messen-             our beloved Adirondack Mountains where
old desk as they examined the cabin’s interi-      ger with a surrender ultimatum. General             we hiked and you told me of the poetry you
or. Natural curiosity compelled them to open       McCaulliff sent a one word reply: “Nuts.”           had written born of a fading red maple leaf;
the drawers, all of which, save one, operated      Headquarters says we are to be prepared for         where we stood atop a stony precipice and
tolerably well. He had always regarded his         pitched battle at dawn.                             viewed the majesty of the mountain ridges
bent toward perfectionism as a flaw in his             Food and ammunition are in short sup-           far away and breathed the crisp, clean, and
character. On this particular occasion it          ply. The putrid stench of death mixed with          bright blue sky of September.
would not let him accept the single desk           the acrid odor of battle’s cruel afterbirth fills       And now remember with me the happy
drawer that would neither completely open          my nostrils and sickens my stomach. Many            and peaceful times we have spent in winter’s
nor close. After fiddling with it for better       of the men have worn-out boots and gloves;          white blanket, skiing and trudging through
than ten minutes, Aaron seized the knob and        frostbite has become epidemic in the hard           the snow by day and loving by night when
gave it an exasperated yank. Out came the          Flemish winter. The sweaty smell of fear per-       warm was made more warm by the cold out-
drawer, and over on his rear he fell.              meates the bitter cold air. My men have not         side, and you welcomed me into the warm
    Maggie nearly doubled over with laughter       been this apprehensive since that night in          soft vessel of your body by which we were
as much at the perplexed look on his face as       June when we leapt into the grim dark noth-         transported on the winds of our passion to a
at the unceremonious way he lay sprawled on        ingness of the Normandy sky.                        place and time that knew no limits, and
the floor of the cabin with the drawer in his          As for myself, I have resolved not to           where we luxuriated in the afterglow of our
lap. She stopped laughing long enough to           worry. I have made my peace with the Lord           mutual touch until we slept.
notice him cocking his head to one side as if      and will accept His will, whatever that may             I brace myself against the bitter cold of
to get a better view into the empty space          be. I continue to pray that on the morning          this snowy night only to realize that it can
from which the drawer had been so readily          and in the terrible hours to follow I will do       never equal the chill of loneliness I feel for
snatched. Without a word he moved to his           nothing to get someone injured or killed
knees and crawled on all fours to the desk.        unnecessarily. I know all this probably has a       CONTINUED ON PAGE 47


40                                                                                                                                         FALL 2006
to enjoy their work, to know that it is not                 think they should be certified specialists.             It is enriching to be motivated by the
simply a job. I believe that this is a profes-              It’s one way to tell the public, who often           image of yourself as a counselor of law,
sion and I came here to help. I learned this                worry about their lawyers, that we take this         meeting your responsibility to the people
well and I am comfortable with my work.                     very seriously and we are committed to this          who entrust themselves to your care. Board
Q: How do you see the future of special-                    work. Public defenders really know this              certification reinforces your role as such,
ization?                                                    area of the law.                                     not just someone who views this as a 9 to 5
   I would like to see more prosecutors and                 Q: What would you say to encourage                   day, but as a counselor of law and a profes-
more public defenders join the program. I                   other lawyers to pursue certification?               sional.




Maggie (cont.)                                              of mountain laurel that guarded one side.            and looked into her face. As he did Aaron
                                                            When it came into view, her eyes widened             noticed the drowsy green of Maggie’s eyes
you now. To say “I miss you” would be only                  and she uttered a lusty “all right!” Maggie          reflected golden shards of light from the
half truth. The frigid emptiness I know when                could be as gentle and tender and soft as the        dying embers of the fire. Silently he drank
we are apart goes far beyond missing you.                   down on a dove’s breast. However, she was            deeply of her dark Irish beauty.
The longing I feel for you at this moment can               not given to squealing with delight like some              “Do you remember the letter we found
only be comprehended and measured by the                    women. But then, women who squealed                  when I first bought the cabin?” he asked.
fulfillment and completeness I know when                    with delight probably wouldn’t have in these               “The one Mr. Benton wrote to his Maggie
we are together.                                            particular surroundings.                             on Christmas Eve during the war,” she
    If it is not permissible for us to see each                  Their picnic lunch was eaten and washed         acknowledged.
other again in this life, so be it. The love I feel         down with generous portions of the chardon-                “I was thinking about how cold and
for you is equally as strong as life itself and             nay they had brought. Afterward, they took           frightened and lonely he must have been that
therefore stronger than death. If I do not                  off their shoes and dangled their feet in the        night. The weather must have been a lot like
return, do not cry for me. Rather, remember                 cool water of the pool. Emboldened by their          tonight. Mr. Benton must have been afraid
the surpassing joy we have shared throughout                privacy, and a little too much wine, and             he would not survive, but seemed to be able
the years we have had. Remember also you                    encouraged by the Benton letter, they soon           to warm himself and find stillness and sanc-
are the seasons of my life: the verdence of                 removed the rest of their clothing and               tuary in his thoughts of her and them. It
spring, the warmth of summer, the color of                  repaired to the middle of the pool. The water        must have been a very special relationship,”
autumn, and the peace of winter. Were I to                  was quite chilly at first, especially to bare bot-   he added.
live a thousand years I would never have                    toms. But the heat of the summer day made                  “Must have been,” replied Maggie. “Sort
found a woman I wanted, needed, or cher-                    their ablution more than worth the initial           of like us,” she followed.
ished more than you.                                        shock. They spent the better part of an hour               “Yeah, I know,” he said, and smiled.
                                                            laughing and talking and washing each other                “Let’s go back to bed,” said Maggie in a
   I love you dearly.                                       in the refreshing creek water quite as con-          soft inviting voice.
   Merry Christmas,                                         tented as Adam and Eve might have been in                  Aaron and Maggie made love and after-
   Walter                                                   the Garden of Eden. With uninhibited inno-           ward held each other very close until they
                                                            cence they happily shared the simple pleasure        both fell asleep. Outside, the winter wind
    After reading it they both sat silently for a           of each other’s company and thoughts in the          howled and the snow fell deeper. But inside
while staring at the letter. Without speaking               bower of nature’s beauty. Such was the joy of        the cabin they were warm and secure even
they both knew that they had inadvertently                  their relationship; such was the source of their     though the flames in the old fireplace had
intruded into one of the most poignant                      love for one another.                                long since flickered their last. On the old oak
moments the late Mr. and Mrs. Benton had                         That had been two years ago. Aaron was          desk, the book of poetry remained open, . . .
ever shared. They were humbled and a bit                    still surprised that time had passed so quick-       a book of poetry entitled This is My Beloved,
embarrassed by having done so. Without say-                 ly. It seemed more like two months. A chill          . . . a book of poetry whose author was Walter
ing so, they both understood they would                     came over him as the wind blew outside and           Benton.
have to send the letter to the Benton’s chil-               a draft penetrated a small space beneath the
dren in California—or was it Florida.                       windowsill. But the chill was short-lived for           Bill Wheeler is a managing partner at the
    Finally, Aaron broke the solemnity of the               without a sound Maggie had risen from their          High Point law firm of Wyatt Early Harris
moment by rising to his feet and saying “I’m                bed and quietly found her way to his side in         Wheeler LLP, where he began practicing in
famished; let’s eat.”                                       the darkness. The touch of her warm body             1975 after passing the bar exam. He graduated
    Armed with their picnic basket and a bot-               next to his broke the chill like the first sunny     from UNC Chapel Hill (Phi Beta Kappa) in
tle of wine, they went outside and walked                   days of spring breaks winter’s icy grip.             1972 with a BA, and from Wake Forest Law
hand-in-hand across the meadow toward the                        “What’s on your mind, love?” she purred         School (associate editor of the Law Review) in
creek. Maggie didn’t notice the pool at first               sleepily.                                            1975 with a JD. He is currently pursuing a
because it was partially hidden by the phalanx                   He turned from the frigid expanse outside       masters degree in literature at UNCG.


T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L                                                                                                   47

				
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