Ga. Lawyers Indicted for Advising N.C. College
Atlanta attorneys, firm accused of unauthorized practice of law

Jonathan Ringel
Fulton County Daily Report
04-08-2004

Cleveland County District Attorney William C. Young said the misdemeanor charges could result in probated sentences for Hallman and Buttermore and an order that the firm return fees paid by Gardner-Webb University, a 3,500-student Baptist school in Boiling Springs, N.C. 

While a bitter internal dispute at the university seems to have prompted the charges, the action raises the question of how far law firms can go in serving clients in states where they are not members of the bar. 

The firm in 2002 conducted an investigation that largely cleared M. Christopher White, Gardner-Webb's president, of wrongdoing for ordering that a basketball player's grade point average be recalculated in a way that made the student eligible for the season. The firm's report, however, led the school's board of trustees to reassign two faculty members who had been critical of White's actions -- moves that led several faculty members to resign in protest. White later resigned. 

The National Collegiate Athletic Association last month cited White's grade change order, among other things, in its decision to put Gardner-Webb on a three-year probation. 

In response to calls to Hallman and Buttermore, the firm issued a statement to the Daily Report declaring that its lawyers conducted interviews and provided a report to the board of trustees at the school -- but did not practice law. 

"It is difficult for us to understand what is motivating these actions against us," the statement read. "If former university employees, or those unhappy with the steps taken by the Board of Trustees, are disgruntled and seeking some form of retribution against this firm, their ire is misguided." 

THE CHIEF ACCUSER 

Decker Hallman's chief accuser is O. Max Gardner III, 58, a former Gardner-Webb trustee and a bankruptcy attorney in Shelby, N.C. His brother, John M. Gardner, a former trial judge, was one of the faculty members who left in protest after the board reassigned White's critics. Both are grandsons of the school's namesakes, former North Carolina Gov. O. Max Gardner and his wife, Fay Webb Gardner. 

In telephone interviews this week, Max Gardner said he "was not impressed at all" by the Decker Hallman report. 

He said he filed a complaint against the firm with the North Carolina State Bar and copied it to the district attorney because he objected to the lawyers' "aggressive tactics" against critics of the trustees and White. He also said it is a lawyer's duty to report the unauthorized practice of law. 

Hallman, 58, is a graduate of the University of Georgia School of Law and is a former regional counsel of the U.S. Department of Energy. He is a member of the State Bar of Georgia, but not of North Carolina. Buttermore, 59, is a graduate of Vanderbilt University School of Law, a former dean of student life at Georgia State University, and a member of the Tennessee and Georgia bars, but not North Carolina. 

Gardner cited letters sent by Decker Hallman lawyers to critics of White and the trustees that he said show the lawyers' unauthorized practice of law in North Carolina. 

The firm became a villain to some by representing the trustees who had retained White and reassigned the faculty critics. 

Philip C. Williams, one of the faculty members who was reassigned after the firm presented its report, wrote in a response published on the Web, "It is clear the attorneys were biased" against White's critics. 

The lawyers' letters defending their report and their representation ultimately became evidence that Gardner used against the firm. One letter by Hallman tells a critic that, "As attorneys for the University, we have a duty to respond to the University's concerns. ... We represent the University. ... We stand by our legal advice given to the Trustees." 

Gardner acknowledged that a lawyer's national business opens up a gray area when he has clients in a state where he doesn't have a license. But referring to the letters cited in his complaint, he said, "That's definitely practicing law." 

LETTER OF CAUTION SENT 

The North Carolina State Bar's Authorized Practice Committee appeared to agree. On July 31, it issued a "Letter of Caution" to Thomas J. Dimmock, a Raleigh, N.C., lawyer who represented Hallman, Buttermore and the firm before the committee. 

The letter said the firm's report to the university went beyond an investigation into the alleged NCAA and school violations and "also outlined and advised the Board concerning the University's potential legal liabilities." 

The caution letter cited other letters and communications in which Hallman or Buttermore provided legal assessments for the trustees. 

"It is the unauthorized practice of law for any persons other than licensed members of the North Carolina State Bar to practice law in the State of North Carolina," the letter said. "The practice of law includes preparation of legal documents, engaging in legal advice or counsel, acting as attorney, or furnishing the services as an attorney. N.C. Gen. Stat. § 84-2.1 & 4. 

"Your clients held themselves out as attorneys for the University, both to the Board of Trustees and to outside parties," the letter continued. "The Committee concluded that the conduct of your clients constituted the unauthorized practice of law in violation of these statutes." 

PUNISHING OUT-OF-STATE LAWYERS 

Legal ethics experts said that it's not uncommon for laypeople pretending to be lawyers to suffer criminal penalties for practicing law without a license. But they said it's rare for members of the bar in one state to get in trouble -- not to mention be indicted -- for working in another state. 

Litigators usually get temporary permission to practice law in another state from judges handling a particular case. And in legal proceedings that take place out of court, the issue does not come up very often, the experts added, noting that definitions about what "practicing law" means can be vague. 

"I think a lot of it goes on, and no one does anything about it," said Paul Haskell, who teaches professional responsibility at the University of North Carolina School of Law. 

But given the North Carolina Bar's letter of caution regarding Decker Hallman, Haskell added, "They got them dead to rights." 

Perhaps. But the North Carolina State Bar's "Lawyer Handbook" offers a vague definition of a letter of caution. It states that the committee has the power to issue a letter of caution "in cases wherein probable cause is not established but the activities of the respondent are deemed to be inappropriate ... ." 

D. Erik Albright of Smith Moore, which is now representing Decker Hallman, declined comment, except to refer to the firm's statement. 

That statement denied the lawyers practiced law in North Carolina, stating that the trustees "had separate local counsel available and present at the time of all meetings to advise it on legal issues in North Carolina law." 

The university's local counsel, Fred A. Flowers of Shelby, N.C.'s Flowers, Martin, Moore & Ditz, could not be reached to discuss the case. David A. Johnson, deputy counsel to the North Carolina Bar, said the authorized practice committee sends about 100 caution letters a year -- but only about 10 go to out-of-state lawyers for allegedly practicing in North Carolina. 

He summarizes a letter of caution like this: "Basically it says, don't do it again." 

The indictments were handed down by the Cleveland County grand jury on March 15, but the next move is hard to predict as neither Young, the district attorney, nor Albright, the firm's defense attorney, will discuss the case. 

IN TROUBLE IN GEORGIA? 

Hallman and Buttermore's fate in Georgia is unclear as well. Paula J. Frederick, the Georgia Bar's deputy general counsel, said Georgia lawyers who get in trouble in other jurisdictions can be investigated by this state's bar. 

"Sometimes they do, and sometimes they don't," said Frederick of the bar's investigative panel. She said sometimes the panel decides that the lawyers have been "punished enough" in the other jurisdiction. 

She acknowledged that the definition of "practicing law" can be tricky, noting that the Georgia Supreme Court is weighing whether to adopt an American Bar Association recommendation. It would absolve out-of-state lawyers who do temporary work in another state as long as they don't set up a permanent practice in the other state. 

Steven J. Kaczkowski, the Georgia Bar counsel who handles unauthorized practice of law issues, said the question is controlled by O.C.G.A. § 15-19-50, which states that practicing law includes "the giving of any legal advice." 

Given that definition, Kaczkowski said, "Every case is different."