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Cheshire Parker Raleigh Family Law Attorneys named 2017 Top 100 North Carolina Super Lawyers and Rising Star

We are pleased to announce that Cheshire Parker Schneider & Bryan Raleigh NC Family Law Attorneys  John Parker, Kimberly Bryan and David Holm have been named 2017 North Carolina Super Lawyers.

Family Law Attorneys John Parker and Kimberly Bryan were also named 2017 Top 100 North Carolina Super Lawyers.

CPSB is pleased to announce that Family Law Attorney Amy Britt has been named 2017 North Carolina Rising Star, six years in a row.

Congratulations to this years recipients!

 

 

 

Defending Against Allegations of Unlawful Physician “Self-Referrals” and Anti-Kickback Violations

The Stark Law and Anti-Kickback Statute are federal laws that impose civil and criminal penalties for a wide range of practices in the context of providing Medicare and Medicaid-reimbursed health care services. While these statutes are extraordinarily complex, much of their focus is on prohibiting transactions that result in referral fees and other forms of compensation being paid out of federal health care benefit programs. This includes payments made in connection with “self-referrals,” where a physician refers a patient to a health care provider in which he or she owns a financial interest or maintains a financial relationship.

Federal law enforcement and health care agencies such as the Department of Justice (DOJ) and the Department of Health and Human Services’ Office of Inspector General (OIG) have taken a strong stance against Stark Law and Anti-Kickback Statute violations. With the potential for penalties including civil fines, loss of Medicare and Medicaid eligibility, and even federal imprisonment, any health care provider facing an investigation or audit under these statutes must take its situation very seriously. An investigation does not have to lead to a conviction, or even federal charges. Providers accused of paying or receiving unlawful compensation will often have several defenses available.

Safe Harbors and Exceptions in Stark Law and Anti-Kickback Statute Investigations

While the Stark Law and the Anti-Kickback Statute contain broad prohibitions, they both also include numerous safe harbors and exceptions that physicians and other providers can use to insulate themselves from liability. These provisions include (but are not limited to):

Raleigh Federal Criminal Defense Attorneys for Physicians and Health Care Providers

If your business or practice is facing a federal investigation or health care contractor audit, we can help. Our attorneys bring decades of experience to representing clients accused of federal health care law violations in North Carolina. To get started with a confidential initial consultation, please call (919) 833-3114 or submit our online contact form today.

 

Understanding the Legal Terminology in Your North Carolina DWI Case

If you have been arrested for driving while impaired (DWI), understanding your situation is important, and it can also be extremely complicated. In North Carolina, DWI cases are far more complex than most people realize, and both state law and the U.S. Constitution will play critical roles in establishing your defense.

To understand your rights, you first need to learn the basic terminology. Here is a summary of some of the key legal terms that will play a role in your DWI case:

Arraignment

After a DWI arrest in North Carolina, the first court date is called an arraignment. Arraignments happen quickly, usually within a few days of the arrest. At the arraignment, you will appear before a judge who will read the charges against you, and you will have the opportunity to state whether you intend to represent yourself, hire legal counsel or request a court-appointed attorney. You are also entitled to have legal representation at the arraignment, and hiring a lawyer at this early stage can help mitigate any potential consequences of your arrest.

Field Sobriety Tests

Field sobriety tests (FSTs) are physical examinations that police officers perform in order to attempt to discern whether a driver is intoxicated. There are three “standardized” tests that will most often be used: the horizontal gaze nystagmus (HGN) test, the one-leg stand test, and the walk-and-turn test. While you are not legally required to take the FSTs, if you do, your results can be used against you in your DWI case.

Implied Consent

Under North Carolina law, all drivers give their “implied consent” to submit to a breath or blood test when the police have reasonable grounds to believe that they have been driving under the influence of alcohol. If you violate the implied consent law (i.e. by refusing to take a Breathalyzer test):

Motion to Suppress

In many cases, the prosecution will attempt to introduce evidence that is legally inadmissible. There are several reasons why evidence may be inadmissible, including lack of relevance, undue prejudice and having been obtained in violation of Constitutional standards. When the prosecution attempts to introduce inadmissible evidence, your attorney can seek to keep it out of your case by filing a motion to suppress.

Plea Agreement

While some DWI cases go all the way through trial, prosecutors and defense attorneys commonly negotiate plea agreements out of court. If a plea agreement is the best option in your case, your attorney will help you understand the consequences of both accepting the plea and going to court so that you can make an informed decision.

Probable Cause

Probable cause is the legal standard that applies to DWI arrests. Under the Fourth Amendment to the U.S. Constitution, the police cannot make an arrest in the absence of probable cause. Lack of probable cause is justification to have any evidence obtained after your arrest excluded from your case.

Reasonable Suspicion

Reasonable suspicion is the legal standard that applies to traffic stops (note that being stopped does not equate to being arrested). Similar to lack of probable cause, lack of reasonable suspicion can be grounds to file a motion to have any subsequently-obtained evidence suppressed at trial.

Speak with a Raleigh DWI Lawyer in Confidence

The criminal defense attorneys at Cheshire Parker Schneider & Bryan, PLLC provide aggressive legal representation for individuals facing DWI charges in North Carolina. To speak with an attorney about your case in confidence, call (919) 833-3114 or request a consultation online today.

 

Ethical Considerations for Virtual Law Offices (VLOs) in North Carolina

Whether your goal is to save on expenses or maintain as much personal freedom as possible (or, as is perhaps most common, a combination of both), operating a virtual law office (VLO) has grown into a viable option within the legal profession. These days, more lawyers are spending the majority of their time working from home, having less direct contact with clients, and relying heavily – if not exclusively – on the Internet in all aspects of their practice.

While virtual law offices are subject to the same ethical requirements as more-traditional law firms, practicing in a VLO raises some unique ethical considerations as well. For example:

1. VLOs and UPL

Thanks to the Internet, a home-based solo practitioner can reach a worldwide audience with the click of a button. While this can be a good thing for demonstrating your competence and capabilities (i.e. through blog articles, third-party publications and other forms of content marketing), it also raises some potential concerns about the unauthorized practice of law (UPL).

With regard to issues of UPL, North Carolina’s Rules of Professional Conduct (the “Rules”) not only address attorneys licensed in the state, but also those licensed in other jurisdictions who are targeting in-state residents and businesses. Other states have similar rules as well. As a result, the North Carolina State Bar advised in a 2006 Formal Ethics Opinion that, “a prudent lawyer may want to research other jurisdictions’ restrictions on advertising and cross-border practice to ensure compliance before aggressively marketing and providing legal services via the internet.”

2. Convenience vs. Competence and Conflict Avoidance

Another potential concern for virtual lawyers touches on one of the most-basic rules of ethical practice: providing competent representation to the client. When communications take place over email, in chats and text messages, and through standardized questionnaires and forms, it is possible for both the lawyer’s and the client’s (or prospective client’s) intent to get lost in translation. While operating a virtual practice gives lawyers the freedom to be available 24/7 (or not), it also raises the risk that the quality of the representation will be inherently impaired.

The same issues also raise potential concerns regarding conflict checks. Identifying potential conflicts often requires an in-depth discussion so that the lawyer can gain a clear understanding of the prospect’s business or personal circumstances. In many cases, prospective clients will need to be educated on the issue of conflicts in general as well. Without adequate communication, lawyers may find it difficult to be confident that they are complying with the Rules’ conflict-of-interest requirements.

3. Electronic Records and Confidentiality

While there are now numerous service providers that offer online document storage specifically designed for VLOs and other law firms, the recent Yahoo data breach and other high-profile cases show that data security remains a significant concern. Internet-based law firms must not only make sure that their file storage systems meet the necessary standards, but that their email applications and other communication tools sufficiently protect their clients’ confidential information.

Contact Cheshire Parker Schneider & Bryan, PLLC

Cheshire Parker Schneider & Bryan, PLLC is a law firm with offices in Raleigh, NC that represents attorneys in matters involving ethical issues and professional license defense. If you have questions about establishing a virtual law office, or if you are facing an ethical issue in your practice, call (919) 833-3114 or contact us online for a confidential consultation.

 

Potential Defenses in Qui Tam Litigation

For companies facing qui tam lawsuits in North Carolina, building a sound defense strategy is critical to minimizing the potential for government intervention and financial liability. Qui tam cases involve lawsuits filed by private citizens (called “relators”) on behalf of the government; and, once a suit has been filed, the government has a responsibility to investigate and make a determination as to whether to get involved. By taking an aggressive approach to qui tam defense, companies can often influence this determination, and ideally convince both the government and the relator that further litigation is unwarranted.

Qui Tam Defense: Pre- and Post-Intervention Strategies

While it only takes a basic allegation of fraud under the federal False Claims Act for a relator to initiate a qui tam lawsuit, far more is required – both substantively and procedurally – for the lawsuit to move past the initial pleading stages and ultimately lead to a finding of liability. Proving liability under the False Claims Act is a difficult task, and companies accused of government contract fraud, Medicare fraud and other violations will often have numerous defenses available.

Some of the more-common defenses in qui tam litigation under the False Claims Act include:

1. Procedural Deficiencies

As with all types of federal litigation, relators in qui tam actions must comply (and often strictly comply) with the Federal Rules of Civil Procedure (FRCP). Relators should not be given a “pass” on technical and procedural deficiencies, and challenging these deficiencies at the outset of the litigation can often – at the very least – slow down the process and begin raising questions about the relator’s case for the government’s attorneys.

2. Failure to File an Adequate Disclosure Statement

Along with the Complaint (the document filed in federal court to initiate the qui tam lawsuit), the relator must also submit a disclosure statement to the Department of Justice. This statement must include, “substantially all material evidence and information the [relator] possesses.” While the disclosure statement is not initially made available to the defendant, issues later discovered may provide grounds to seek dismissal of the case.

3. Insufficient Allegations to Support Liability

In order to establish liability under the False Claims Act, the relator’s allegations and evidence must support a finding of a certain level of intent. Generally speaking, submitting an inaccurate invoice or claim for payment to the government does not, standing alone, rise to the level of federal fraud.

In order to succeed in qui tam litigation, the relator and the government must typically be able to prove, at a minimum, that the defendant should have known about the false claim. As a result, even in cases involving legitimate allegations of false claims, defendants will often be able to present countervailing evidence to avoid False Claims Act liability.

Contact Cheshire Parker Schneider & Bryan, PLLC in Raleigh, NC

The federal criminal defense attorneys at Cheshire Parker Schneider & Bryan, PLLC provide experienced and strategic legal representation for companies facing qui tam lawsuits in North Carolina. To speak with one of our attorneys about your case, please call (919) 833-3114 or contact us online today.

 

Confidentiality and Client Records: Understanding CPAs’ Ethical Obligations

All certified public accountants (CPAs) in North Carolina are subject to Subchapter 08N of the North Carolina Administrative Code, which is entitled “Professional Ethics and Conduct.” This subchapter establishes the rules that govern all CPAs and accounting practices in the state, including those relating to confidentiality and client records.

While there are several provisions of Subchapter o8N that either directly or indirectly address confidentiality and client records, the two primary sections devoted to these topics are:

Confidentiality

Under 21 NCAC 08N .0205, CPAs in North Carolina owe a strict duty of confidentiality to their clients:

“A CPA shall not disclose any confidential information obtained in the course of . . . a professional engagement except with the consent of the . . . client.”

While there are a number of exceptions to this rule, they are all narrowly limited, and they only apply in certain discrete circumstances where disclosure is required by law or rule. For example, disclosure of confidential client information is allowed without consent if required by court order or subpoena, or if requested in connection with an enforcement action by the State Board of Certified Public Accountant Examiners (the “State Board”).

Retention of Client Records

Under 21 NCAC 08N .0305, North Carolina CPAs owe a number of duties with regard to the retention and return of client records. Generally speaking, a CPA must return a client’s records “in his or her possession . . . after a demand is made for their return.” The rule further makes clear that “records shall be returned upon demand,” unless a reasonable delay is necessary to retrieve a closed file or extract work papers that are subject to retention under the rule.

With regard to work papers, CPAs in North Carolina have a general obligation to retain them for at least five years (or longer if required by law). All retained records remain subject to the confidentiality obligations in 21 NCAC 08N .0205. However, if certain work papers “contain data that should be reflected in the client’s books and records but . . . have not been duplicated therein,” then those work papers must be provided to the client upon request as well. As examples of work papers to which clients may be entitled, 21 NCAC 08N .0305 lists:

Speak with a Raleigh Professional License Defense Attorney in Confidence

If you are facing licensing action due to an alleged breach of confidentiality or failure to appropriately dispose of client records, the professional license defense attorneys at Cheshire Parker Schneider & Bryan, PLLC can defend you in your State Board proceeding. To discuss your situation in confidence, call our Raleigh, NC law offices at (919) 833-3114 or request a consultation online today.

 

Qui Tam Defense: What To Expect During Your Whistleblower Case

Under the federal False Claims Act, there are two primary ways that the Department of Justice (DOJ) can initiate a civil claim for reimbursement and other penalties. The first is through a government-initiated investigation. The Federal Bureau of Investigation (FBI), the Department of Health and Human Services (DHHS) and numerous other agencies investigate individuals and businesses for submitting false and fraudulent claims to the government; and, based upon the evidence uncovered during these investigations, the DOJ can either file a civil lawsuit under the False Claims Act or press criminal charges.

The second way that individuals and businesses can face liability under the False Claims Act is through a citizen-initiated action pursuant the law’s whistleblower provisions. This is known as a “qui tam” lawsuit, and it has both important similarities and differences to government-initiated enforcement litigation.

Overview of the Qui Tam Litigation Process

The following is an overview of the primary steps involved in a qui tam case under the federal False Claims Act:

The civil penalties in qui tam cases under the False Claims Act can be severe. The maximum penalties under the law include payment of three times the government’s losses (“treble” damages) plus fines of up to $11,000 per false claim. What constitutes an individual “false claim” is construed narrowly, and defendants in qui tam actions can often face hundreds of thousands – if not millions – of dollars in civil liability.

Schedule a Confidential Consultation at Cheshire Parker Schneider & Bryan, PLLC

If you or your company has been named in a qui tam lawsuit, it is critical that you hire an attorney to intervene in the government’s investigation as soon as possible. To schedule an initial consultation with the Raleigh federal criminal defense attorneys at Cheshire Parker Schneider & Bryan, PLLC, call (919) 833-3114 or contact us online today.

 

A Look at the Rule Changes Currently Pending with the North Carolina Medical Board

The NC Rules Review Commission of the North Carolina Medical Board (NCMB) regularly considers and approves changes to the rules that govern the practice of medicine in North Carolina. You can follow the latest developments and review drafts of proposed and final rule changes through the NCMB’s Rule Change Tracker.

Here are some highlights from the NC Rules Review Commission’s most recent activity:

Effective July 1, 2017: Mandatory CME on Controlled Substance Prescriptions

Beginning July 1, 2017, all licensed practitioners and physician assistants who prescribe controlled substances will be required to complete annual continuing medical education (CME) on, “controlled substance prescribing practices, recognizing signs of the abuse or misuse of controlled substances, and controlled substance prescribing for chronic pain management.” Physicians must complete at least three hours of controlled substance CME (from the already-required 60 hours of Category 1 CME); and, for physician assistants, at least two of their mandatory 50 hours of CME must be devoted to the controlled substance-related topics listed above. The revisions affect Rules 21 NCAC 32R .0101 and 21 NCAC 32S .0216.

Physicians holding a residency training license are excluded from the new requirements.

Proposed: Mandatory CME on Controlled Substances Prescriptions for Nurse Practitioners

The NCMB has also proposed a change to Rule 21 NCAC 32M .0107 that would require nurse practitioners who prescribe controlled substances to complete at least one hour of continuing education annually that specifically addresses controlled substance prescription practices and abuse. As currently drafted, the rule change would become effective upon approval.

Proposed: Changes to Prescription Refill Rules for Controlled Substances

Also pending is a change to Rule 21 NCAC 32M .0109 that would change current practices concerning prescription refills. Under the current rule, refills can be issued for a period of up to one year, with the exception that dosage units for controlled substances on Schedules II, IIN, III, IIIN, IV and V are limited to a 30-day supply. The proposed change eliminates both of these qualifications, and simply states that refills for all controlled substances are subject to the Controlled Substance Law and Regulation.

The NCMB’s Disciplinary Authority

It is critical that medical practitioners in North Carolina stay up-to-date on the NCMB’s rule changes. Failure to adhere to the revised rules, even if the failure represents an adherence to previous standards, can lead to professional discipline – up to and including license revocation. While a single, minor rule violation is unlikely to have such dire consequences, multiple violations can lead to enhanced discipline, and violations such as prescription errors resulting from a lack of CME can have severe professional implications as well.

Speak with a Raleigh Professional License Defense Attorney

If you are facing disciplinary action by the NCMB and would like to speak with an attorney about protecting your professional license, contact the Raleigh, NC law offices of Cheshire Parker Schneider & Bryan, PLLC. To schedule a confidential initial consultation with one of our professional license defense attorneys, call (919) 833-3114 or request an appointment online today.

 

Campaign Donation Investigations Likely

Election season has just ended, so investigations into campaign donations are likely to begin.  Politically-active people and companies should be aware that these investigations often result in serious federal criminal charges.

Elections laws are complex, and even perfectly legal conduct can carry the appearance of corruption, particularly when people with business interests donate money to politicians.

Therefore, if you are approached or contacted an investigator about your campaign donations, assume that you are suspected of a serious crime and contact an experienced election law & campaign finance criminal defense lawyer immediately.  Making an unrepresented statement could ruin your future and your livelihood.

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At Cheshire Parker, we have decades of experience representing individuals under investigation for suspected political crimes.  If you have questions or concerns about your donations or other election-related activity, contact us today.

 

 

A Look at Police Mistakes That May Provide a Defense to DWI

Just like individuals who have been arrested for DWI can make mistakes that will harm their defense, arresting officers can make mistakes that will harm the State’s chances of a successful prosecution. In fact, even in cases where individuals who have been arrested have been drinking and driving, police mistakes will often provide defenses that can be used to avoid conviction at trial.

The following are four common examples of police mistakes that can provide defenses to DWI charges in North Carolina:

1. Lack of Reasonable Suspicion to Pull You Over

All police officers are subject to a number of Constitutional standards. One of these standards is that they cannot initiate a traffic stop unless they have reasonable suspicion that someone in the vehicle has been involved in the commission of a crime. If you were pulled over without reasonable suspicion, any evidence that the police obtained as a result of your traffic stop may be inadmissible at trial. Without evidence, the prosecutor’s office will be unable to build a case against you.

Keep in mind, however, that the reasonable suspicion does not have to relate to your drunk driving. If the arresting officer had reason to believe that you committed a different offense and then only discovered that you were intoxicated after pulling you over, you can still be prosecuted for DWI even though the officer lacked reasonable suspicion to stop you for driving while intoxicated.

2. Lack of Probable Cause to Make an Arrest

The Constitution also protects U.S. citizens from being arrested without probable cause. Probable cause is a higher standard than reasonable suspicion, so the police can lack probable cause to make an arrest even after a valid traffic stop. If a reasonable person would not have believed that you were driving while intoxicated, your arrest may have been invalid, and any evidence obtained following your arrest may be inadmissible to prove that you are guilty of DWI.

3. Improper Administration of Field Sobriety Tests (FSTs)

One way that the police can establish probable cause is by administering field sobriety tests (FSTs) after they pull you over. However, only certain FSTs have been scientifically proven to be reliable, and they are only reliable when they are administered appropriately. If the arresting officer used an unreliable test or did not follow the necessary procedures, his or her failure to do so may provide a defense to your DWI.

4. Improper Administration of Breath Test

The same also holds true for breath tests (breathalyzers). There are a number of factors that can contribute to faulty breath test results, and failure to calibrate testing equipment and other issues can taint breath test results as well. If police mistakes resulted in an inaccurate measurement of your blood alcohol content (BAC), the prosecution should not be able to use the tainted results at trial.

Arrested for DWI in Raleigh, NC? Speak with a Lawyer Today

In order to assert these defenses, you will need an experienced Raleigh DWI lawyer on your side. At Cheshire Parker Schneider & Bryan, PLLC, we bring decades of experience to defending clients against drunk driving charges in Raleigh, NC. To learn more about what we can do to protect you, call (919) 833-3114 or request a consultation online today.

 


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Cheshire Parker Schneider & Bryan, PLLC 133 Fayetteville Street Suite 500 Raleigh, NC 27601 | Phone: (919) 833-3114 Fax: (919) 832-0739