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When is it Acceptable for a Doctor to Use Social Media?

Like individuals in all professions, many doctors are finding that social media is becoming a necessary aspect of both their personal and professional lives. For doctors, posting information about their patients (and their personal lives) can have obvious consequences and as a result, the North Carolina Medical Board (NCMB) has established a set of six guiding principles for licensed physicians to keep in mind when using social media.

Guidelines for North Carolina Doctors’ Use of Social Media

The North Carolina Medical Board’s position is clear: “Healthcare practitioners are held to a higher standard than others with respect to social media.” Noting that doctors’ ethical obligations “extend beyond the exam room,” the North Carolina Medical Board encourages licensed physicians to abide by the following principles when communicating with patients and posting information online:

NCMB Endorses Model Guidelines for the Use of Social Media

In addition to establishing these guiding principles, the North Carolina Medical Board has also endorsed the Model Guidelines for the Appropriate Use of Social Media and Social Networking in Medical Practice published by the Federation of State Medical Boards (the “Model Guidelines”).

The Model Guidelines generally focus on the same primary ethical considerations as the NCMB’s guiding principles, but go into more detail while providing some examples of unprofessional and unethical online behavior.

For doctors in North Carolina, using social media for marketing purposes, to maintain professional connections and stay in touch with friends and family all come with their own unique challenges. In today’s world, understanding the professional and ethical implications social media is critical to avoiding accidentally putting your license at risk.

Speak With a Raleigh Professional License Defense Attorney at Cheshire Parker Schneider & Bryan, PLLC

At Cheshire Parker Schneider & Bryan, PLLC, we provide experienced legal representation for medical license defense in North Carolina. If you have questions about your ethical and professional responsibilities or need to speak with a lawyer about a disciplinary matter, we invite you contact us for a confidential consultation. To schedule an appointment with one of our professional license defense lawyers, call (919) 833-3114 or contact us online today.

 

How Do You Appeal a Criminal Conviction in North Carolina?

If you were charged with a crime and convicted at trial, your case still may not be over. Under North Carolina law, there are a number of different grounds on which the criminally-convicted can seek to have their convictions overturned. Our attorneys have successfully represented numerous clients in criminal appeals; and, if you believe that you were wrongfully convicted, we encourage you to contact us for a free consultation about your case.

The North Carolina Criminal Appeals Process

The following are answers to some frequently-asked questions about appealing a criminal conviction in North Carolina. It is important to note that these answers are for convictions in state court only. If you were convicted in federal court, different rules will apply.

Q: What do I need to do to appeal my conviction?

A: In order to appeal a criminal conviction in North Carolina, the first step is to submit a notice of appeal. You can either submit a notice of appeal orally during your criminal case or by filing a written notice with the court and serving it on the district attorney.

Q: How long do I have to file a notice of appeal?

A: You must file a notice of appeal within 14 days of receiving your sentence from the judge. However, in certain scenarios it is possible to seek post-conviction relief much later after a conviction as well.

Q: What happens after I file a notice of appeal?

A: Once you file a notice of appeal, the court reporter will prepare a transcript of the trial court proceedings. He or she has 60 days to do so (except in capital cases, in which the court reporter must prepare the transcript within 120 days). Your appellate lawyer will receive a copy of the transcript, and then he or she will have 35 days (or 70 days in a capital case) to submit the “Record on Appeal” detailing all of the errors that prevented you from receiving a fair trial.

Your lawyer will also submit a written brief containing legal arguments that support the errors listed in the Record on Appeal, and the State’s attorney will file a brief arguing against the errors in response. In some cases, the attorneys will also present their arguments orally before the court.

Q: Which court hears criminal appeals in North Carolina?

A: The North Carolina Court of Appeals hears most appeals of state criminal convictions. The Supreme Court of North Carolina hears capital appeals.

Q: How long will it take to find out if my conviction will be overturned?

A: Criminal appeals in North Carolina can easily last several months, and some cases take years. Once the attorneys file their briefs (and present their oral arguments, if applicable), it generally takes around six months to receive a decision from the court. But, depending on the court’s caseload and a number of other factors, this time period could be significantly longer.

Q: What does it take to win a criminal appeal in North Carolina?

A: In order to have your conviction overturned, the appellate court must find that there was a “prejudicial” error that prevented you from receiving a fair trial. This means that there must have been an error that unfairly affected the outcome of your case. Not all errors will warrant having a conviction overturned.

Discuss Your Criminal Appeal With an Attorney at Cheshire Parker Schneider & Bryan, PLLC

If you would like more information about filing a criminal appeal in North Carolina, we would be happy to sit down with you to discuss your case. To speak with a Raleigh criminal appeal attorney at our office, call (919) 833-3114 or request an appointment online today.

 

Facing Discipline as a North Carolina Real Estate Agent or Broker

In North Carolina, all real estate agents and brokers must comply with both (i) the North Carolina Real Estate License Law and (ii) the North Carolina Real Estate Commission Rules. Failure to comply can have serious consequences, including facing discipline from the North Carolina Real Estate Commission.

Grounds for Discipline By the North Carolina Real Estate Commission

The following is a non-exhaustive list of possible grounds for agents and brokers to face discipline from the North Carolina Real Estate Commission:

1. Misrepresentations and Omissions

North Carolina Real Estate License Law (the “License Law”) prohibits agents and brokers from making misrepresentations about or omitting material facts. This includes both intentional and negligent misrepresentations and omissions regarding:

2. Making False Promises

In addition to prohibiting factual representations and omissions, the License Law also prohibits agents and brokers from making false promises “of a character likely to influence, persuade or induce” action by any party to a prospective transaction. Importantly, the License Law may consider a promise to be a “false promise” even if the agent or broker intended to honor it at the time it was made.

3. Conflicts of Interest

It should come as no surprise that conflicts of interest are a major point of concern in both commercial and residential real estate transactions. Some examples of prohibited conflicts include:

4. Improper Brokerage Commissions

The License Law prohibits brokers from paying commissions for: (i) acts or services that violate the License Law, and (ii) acts that require a real estate license when performed by an unlicensed individual.

5. Unworthiness and Incompetence

Agents and brokers can also face discipline for any acts that reflect unworthiness or incompetence in connection with a real estate transaction. This includes, but is not limited to, acts that violate the License Law. Some examples include:

6. Discriminatory Practices

The State Fair Housing Act prohibits discriminatory practices in housing and real estate-related transactions. Violations of the State Fair Housing Act are also deemed violations of the License Law.

7. Practice of Law

Finally, real estate agents and brokers must exercise caution not to engage in the unauthorized practice of law. Examples of prohibited conduct include:

For more information, the North Carolina Real Estate Commission has published a resource entitled License Law and Rule Comments that provides examples of agent and broker misconduct. You can also contact a Raleigh professional license defense attorney at Cheshire Parker Schneider & Bryan, PLLC for a confidential consultation.

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

If you are facing discipline from the North Carolina Real Estate Commission or have questions about your obligations as a real estate agent or broker in North Carolina, the attorneys at Cheshire Parker Schneider & Bryan, PLLC can help. To speak with a professional license defense attorney in confidence, call (919) 833-3114 or contact us online today.

 

Are You Facing a Federal Investigation? Why You Should Hire a Lawyer Before You Get Charged

If you are facing a federal investigation, you need to take action to protect yourself. Federal agencies have been stepping up their enforcement efforts in various areas – healthcare fraud and antitrust violations among them – and many innocent individuals and organizations are finding themselves the subjects or targets of federal grand jury investigations. Unfortunately, federal investigations can have substantial detrimental effects even when they don’t lead to prosecution; and, as the subject of an investigation, your top priority needs to be on your defense.

Moreover, federal charges are increasingly being brought against people who did not have any idea that they were committing a crime.  In other words, just because you know you are innocent does not mean that you will not end up charged, and potentially convicted.  Hiring an experienced federal criminal defense attorney as soon as you learn of an investigation is critical to minimize your risk of a life-altering federal indictment.

Why Hire an Attorney During Your Investigation?

The moment a federal investigation begins, your freedom and livelihood are in serious jeopardy.  By the time you learn of an investigation, federal agents have likely already determined in their minds that you are guilty.  The purpose of them contacting you is not to hear your side of the story; it is to obtain incriminating statements and information before you have a lawyer.

As a result, it is important to speak with a defense attorney as soon as you find out (or even if you suspect) that you are the subject of a federal investigation. An experienced federal criminal defense attorney may be able to do a number of different things to help protect you. These include:

1. Avoiding Unnecessary Disclosures

During the investigation, federal agents will likely seek to obtain a statement from you and to collect documents to use to convict you of a federal crime.  The purpose of these inquiries is rarely to hear your side of the story.  So you should not give the government any information that you are not legally required to disclose, certainly not before developing a comprehensive strategy for responding to the inquiry with the help of an experienced federal defense lawyer.  Such a lawyer will be able to help you avoid accidentally and unnecessarily disclosing information that will be used to try to put you in prison, take your assets, and end your career.

2. Avoiding Criminal Charges

If there is a good explanation for the issue under investigation, the time to present that explanation is not the moment agents show up at your door.  Agents do not want to hear why you are not guilty.  Their job is to build a case against you, a case that will end in you being convicted of a federal crime.

In order words, agents are not the right audience for your side of the story.  An experienced federal criminal defense lawyer will talk with the federal prosecutor about the investigation and then develop a strategy for presenting your side of the story to the decision maker—the prosecutor.

Agents respect people who know and exercise their rights.  They hope that people will not hire a lawyer because it makes the job of convicting them difficult.  But they will not believe you are guilty simply because you exercise your right to counsel.  Do not fall into the trap of thinking that you have to speak to a federal agent or you will look guilty—in all likelihood, they already believe you are guilty or they would not be at your door.

The best chance of avoiding criminal charges is to treat the investigation as a serious matter.  Politely decline to speak to an investigator without a lawyer, ask the agent for his or her card, and tell her that you will have your lawyer contact them immediately.  Doing so shows the agent that you understand the seriousness of the situation and maximizes your chances of avoiding prosecution.

3. Developing a Comprehensive Defense Strategy

By the time you find out that you are a target of a federal grand jury investigation, the government has likely already put a substantial amount of work into your case – and this means that you are already at a distinct disadvantage. If you don’t hire an attorney until you get charged, you will be giving up the opportunity to begin building your defense, gathering necessary evidence, and negotiating with prosecutors before your case makes its way to the federal court system.

This early work can make all the difference. Rather than reacting to the moves of others, by involving an experienced federal criminal defense attorney early on, you can take the initiative and increase your chances of proving your innocence.

4. Mitigating Criminal Penalties

If criminal charges are unavoidable, your defense attorney can begin working on your defense during the investigation.

With the punishment for many serious federal offenses involving hundreds of thousands or even millions of dollars in fines, long-term imprisonment, mandatory forfeiture of assets and other harsh penalties, you need to do everything possible to mitigate the consequences of a conviction.

While the first and second lines of defense will be to avoid a charge and to prove your innocence, if the facts are on the government’s side, your defense may need to focus on limiting your sentence. In certain circumstances, it may also be possible to have your case moved to state court in order to avoid the harsh federal sentencing guidelines. In any event, the sooner you engage an attorney to represent you, the better your chances of minimizing the negative consequences of a federal criminal investigation.

Contact the Raleigh Federal Criminal Defense Attorneys at Cheshire Parker Schneider & Bryan, PLLC Today

The federal defense attorneys at Cheshire Parker Schneider & Bryan, PLLC have decades of experience representing high-profile clients in federal investigations. If you are facing a federal investigation, call (919) 833-3114 or contact us online to speak with an attorney in confidence today.

 

Ethics and Social Media: Case Research and E-Discovery

Although social media is now approaching its teenage years (Myspace, the first widely-used social media platform, was founded in August 2003), legal ethics in the use of social media is in some ways still very much in its infancy. Despite the fact that social media now plays at least some role in litigation with increasing frequency, many questions regarding ethics and the use of social media remain unanswered.

Social Media in Litigation

Some of the biggest questions at the intersection of social media and litigation involve issues relating case research and e-discovery. Gradually, bar associations across the country are beginning to provide guidance on these issues. Of course, it is important to acknowledge that these bar associations’ opinions do not necessarily reflect those of others, and that questions of ethics often require assessment on a case-by-case basis.

Case Research

Some bar associations have affirmatively recognized that it is ethically permissible for a lawyer to use information that is publicly-available on social media for purposes of performing case research. If a litigant or witness has a public Facebook profile or Twitter feed, anything they post for all the world to see is fair game. Fundamentally, this makes sense: If anyone can access and use it, why should lawyers involved in litigation be prohibited from doing so?

On the other hand, bar associations have also stated that using deceptive means to gain access to non-public social media profiles violates lawyers’ ethical standards. For example, asking a third party to access an opposing party’s private social media content would likely be considered both deceptive and in violation of Rule 4.1 of the North Carolina Rules of Professional Conduct (“In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.”), since the comments to Rule 4.1 note that omitting a material fact can be “the equivalent of [an] affirmative false statement[].”

With respect to communicating with a represented party, bar associations have stated that the rules that apply to social media are the same as those that apply offline.

E-Discovery

In e-discovery, lawyers face many ethical issues in relation to social media as well. Many of these issues are similar to those that come up with other forms of electronically-stored information (ESI), which itself presents an entire world of ethical issues. As individuals – let alone large corporations – generate untold amounts of potentially-discoverable ESI on a daily basis, lawyers must be careful to avoid issues with regard to things like:

As social media continues to become more engrained in individuals’ personal lives and in businesses’ operations, it is becoming increasingly critical for lawyers to have a firm grasp on the ethical issues involved.

Cheshire Parker Schneider & Bryan, PLLC | Raleigh Professional License Defense Attorneys

Cheshire Parker Schneider & Bryan, PLLC provides representation for lawyers facing disciplinary action from the North Carolina State Bar. If you have run into ethical issues involving the use of social media, you can call (919) 833-3114 or contact us online for a confidential consultation.

 

Can Field Sobriety Test Results Be Used Against You?

When a police officer pulls someone over on suspicion of driving while impaired (DWI) in North Carolina, he or she will typically ask the suspect to perform a number of different field sobriety tests (FSTs). The police use these FSTs to look for signs of impairment in order to justify an arrest. You are not required to submit to FSTs in North Carolina. But, if you do, the results will only be used against you.

Types of Field Sobriety Tests Used in North Carolina

In the 1970s, the National Highway Traffic Safety Administration (NHTSA), a division of the U.S. Department of Transportation, began developing a series of three standardized field sobriety tests for assessing whether an individual’s driving abilities may be impaired. These tests have since been scientifically validated for evaluating alcohol impairment, and today they are used by law enforcement offices in North Carolina and nationwide. The NHTSA’s standardized FSTs are:

However, while these are the ­only scientifically-validated FSTs, police officers continue to use a number of other non-scientific tests as well.

So, What Can the Police Use Against Me?

The police and prosecutors can potentially use your performance on any field sobriety test in order to seek a conviction for DWI. With the NHTSA’s standardized FSTs, the police can testify as to certain specific indicators of impairment:

Horizontal Gaze Nystagmus Test

With the HGN test, the arresting officer may testify as to six signs of impairment (three in each eye):

The One-Leg Stand Test

The one-leg stand test involves counting out loud while standing on one foot and focuses on four signs of impairment:

The Walk-and-Turn Test

The indicators of impairment on the walk-and-turn test are:

With each standardized FST, if the police officer observes a certain number of signs, this can be used as evidence of impairment. With the HGN test, the arresting officer must observe four of the six signs. With the one-leg stand and walk-and-turn tests, any two signs are sufficient to justify an arrest for DWI.

While only the NHTSA’s tests have been proven to be scientific, officers may attempt to testify about other methods they used to assess your level of impairment as well. In any event, there are numerous potential defenses to poor performance on an FST – from improper test administration to poor weather conditions. An experienced defense lawyer will be able to spot the issues that can be used to help fight your DWI.

Cheshire Parker Schneider & Bryan, PLLC | Raleigh DUI Lawyers

At Cheshire Parker Schneider & Bryan, PLLC, we have years of experience defending against DWI charges in the Raleigh area, and attorney Collin Cook has been recognized as one of the top DWI lawyers in North Carolina by National Advocacy for DUI Defense. To discuss your case in confidence, call (919) 833-3114 or contact us online today.

 

Ethics and Social Media: Can I Connect With a Judge on LinkedIn?

According to the American Bar Association, more than 90 percent of all attorneys have a LinkedIn profile. Attorneys are using LinkedIn for a number of different purposes – primarily for networking, but for sharing information, finding information, finding jobs and even investigating cases as well.

Of course, each of these uses raises its own ethical questions. In an ethics opinion from last year, the North Carolina State Bar (NCSB) addressed one of these questions in particular: Can an attorney connect with a judge on LinkedIn?

Can I Accept a Judge’s Invitation to Connect on LinkedIn?

The North Carolina State Bar says yes, in appropriate circumstances: “In certain scenarios, a lawyer may accept a judge’s dinner invitation. Similarly, in certain scenarios, a lawyer may accept a LinkedIn invitation to connect from a judge.”

Citing Rules 3.5 and 8.4 of the North Carolina Rules of Professional Conduct, the NCSB notes that circumstances where lawyers’ ethical duties may make it impermissible to accept a judge’s LinkedIn invitation include:

So, what if you feel like you should decline a judge’s invitation? Are you required to simply ignore it?

No. The NCSB states that, “[t]he lawyer may communicate to the judge the reason the lawyer did not accept the judge’s invitation,” and that this communication, standing alone, “is not a prohibited ex parte communication.”

Note also that Rule 8.4(f) prohibits lawyers from “knowingly assist[ing]” judges in violating the rules of judicial conduct. As a result, if the judge who sends a lawyer an invitation is prohibited from doing so, the lawyer must decline the invitation even if accepting it would otherwise be permissible.

Can I Send a LinkedIn Invitation to a Judge?

Potentially, yes. The ethics opinion states that attorneys should consider the same factors in both accepting judges’ invitations and sending invitations to members of the judiciary.

What About Endorsements and Recommendations?

While the ethics opinion states that lawyers may provide endorsements and written recommendations for judges to display on their profile pages, lawyers may not publish judges’ accolades on LinkedIn in any form. Citing Rule 8.4(e), the NCSB states that displaying a judge’s endorsement or recommendation “would create the appearance of judicial impartiality and the lawyer must decline.”

What About Other Social Media Platforms?

The NCSB closes the ethics opinion with a statement that the opinion applies equally to all social media platforms that “allow[] public display of connections, endorsement, or recommendations between lawyers and judges.” This would appear to cover most – if not all – platforms, including Facebook, Google+ and Twitter.

Raleigh Professional License Defense Attorneys | Cheshire Parker Schneider & Bryan, PLLC

The attorneys at Cheshire Parker Schneider & Bryan, PLLC have more than three decades’ worth of experience representing other lawyers in ethics and other disciplinary matters. If you are looking for confidential advice or need representation for a disciplinary action, call (919) 833-3114 or contact us online today.

 

Have You Been Charged with Mail or Wire Fraud?

If you are facing criminal charges for securities fraud, mortgage fraud, healthcare fraud, government contract fraud or any other fraud-related federal offense, you may be facing charges for mail or wire fraud as well. The federal mail and wire fraud statutes are extremely broad, and in today’s world allow prosecutors to bring charges under almost any circumstances involving another federal fraud crime.

Understanding Mail and Wire Fraud

Mail and wire fraud are similar offenses that each carry a maximum penalty of up to a $1 million fine and 30 years of federal imprisonment. The mail fraud statute makes it a federal crime to use the U.S. Postal Service or any other interstate delivery service (such as UPS or FedEx) in any way in connection with any aspect of an attempted crime involving fraud, counterfeiting or false pretenses. As a result, prosecutors can bring mail fraud charges against individuals who:

Note that it is possible to be convicted of mail fraud even if you never commit the underlying crime. In other words, if you receive counterfeiting supplies in the mail but you never actually counterfeit anything, you can still be convicted of mail fraud.

Wire fraud is similar, but where mail fraud covers physical delivery of objects or communications by mail or delivery service, wire fraud covers “wire, radio, or television communication.” Critically, this includes both Internet and phone communications.

Some examples of conduct that may constitute wire fraud include:

As with mail fraud, in order to be convicted of wire fraud you do not need to actually defraud anyone. In many cases, using a phone or the Internet to take steps toward committing another offense (even if you never carry out that offense) is enough to face the possibility of a federal conviction.

Facing Charges for Mail or Wire Fraud

Since mail and wire fraud do not require the commission of a substantive offense, and since it is possible to commit these crimes simply by receiving communications by mail, over the phone or online, many individuals are surprised to learn that they are facing the very real possibility of a conviction for a federal crime. If you have been charged with mail or wire fraud, you need to take your situation very seriously. Federal prosecutors often use these charges to help solidify their chances of obtaining a conviction.

Cheshire Parker Schneider & Bryan, PLLC | Raleigh Federal Criminal Defense Attorneys

There are potential defenses to mail and wire fraud, and to protect yourself it is important to speak with an attorney as soon as possible. At Cheshire Parker Schneider & Bryan, PLLC, we provide experienced representation for federal charges and investigations throughout the Raleigh, NC area. To speak with an experienced criminal defense attorney, call (919) 833-3114 or contact us online today.

 

“Fantastic Lies”

Through its acclaimed documentary series, “30 for 30,” ESPN is now airing “Fantastic Lies,” a full-length documentary film by award-winning filmmaker Marina Zenovich about the Duke Lacrosse case. The movie documents the path from false rape accusations in 2006 to the ultimate exoneration of the falsely accused in 2007–including the roles of CPSB criminal defense lawyers Joe Cheshire and Brad Bannon in achieving that goal.

Fantastic Lies

 

Defending Your North Carolina DWI

If you have been arrested for driving while impaired (DWI) in Raleigh, you need to take your situation seriously. Not only can a DWI conviction lead to thousands of dollars in costs and fines, along with possible jail time, but it can also affect your insurance rates, your academic eligibility and in some cases even your ability to land a job. To avoid the life-long consequences that can come with a conviction for DWI, it is imperative that you present the strongest possible defense in plea negotiations and at trial.

Potential Defenses to DWI in North Carolina

There are many possible defenses to DWI charges in North Carolina. Depending on the facts of your case and the circumstances surrounding your arrest, your defense lawyer may be able to argue one or more of the following:

Faulty Breathalyzer Test Results

Breathalyzers are designed to test blood alcohol content (BAC) based on breath samples from the deep lungs. As a result, police officers should wait at least 15 minutes from the time of arrest before administering breathalyzer tests. If you recently had alcohol in your mouth (including breach fresheners and mouthwash), the breathalyzer may read the alcohol content of the breath in your mouth rather than the breath in your lungs. This is not an accurate measure of BAC.

Faulty Field Sobriety Test Results

If a police officer suspects that you may be alcohol-impaired after pulling you over, he or she may ask you to complete a number of different field sobriety tests. However, the police cannot force you to take these tests. If you were forced to complete a field sobriety test, this may have been a violation of your rights.

In addition, only certain types of field sobriety tests have been proven to be scientifically reliable. These are the:

If your arresting officer failed to follow proper procedure with these tests, or if he or she used any other form of field sobriety test, the results may be invalid for proving that you are guilty of DWI.

Unlawful Search or Seizure

Search and seizure are complex areas of Constitutional law that provide crucial protections for criminal defendants – including individuals charged with DWI. If the police pulled you over without reasonable suspicion or arrested you without probable cause, these could be grounds to have your charges dismissed. To learn more, we invite you to contact us for a consultation.

These are just a few examples of the many possible defenses to DWI. Before making any decisions about your case, you should consult with an experienced criminal defense lawyer for a thorough evaluation of your defense options and legal rights.

Cheshire Parker Schneider & Bryan, PLLC | Raleigh DWI Lawyers

The criminal defense lawyers at Cheshire Parker Schneider & Bryan, PLLC provide experienced legal representation for individuals facing DWI charges in the Raleigh area. To schedule a consultation about your DWI defense, call (919) 833-3114 or contact us 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