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The Ethical Pitfalls of Office Sharing

From traditional office sharing to virtual offices to the recent rise of law firm incubator and residency programs, lawyers now have many options when it comes to cutting costs and sharing expenses without establishing a partnership. While these can be solid options for both newly-minted solos and experienced practitioners seeking to reduce their overhead, when it comes to sharing space, there are some important ethical considerations to keep in mind.

Among other ethical considerations, attorneys sharing office space in North Carolina should remember the following:

Misrepresenting a Partnership

Lawyers in an office sharing arrangement cannot misrepresent that they are partners or part of a single firm. Rule 7.5(e) of the North Carolina Rules of Professional Conduct states: “Lawyers may state or imply that they practice in a partnership or other professional organization only when that is the fact.” Comment 4 to Rule 7.5 provides further clarification specifically in the context of office sharing, stating:

“[L]awyers sharing office facilities, but who are not in fact associated with each other in a law firm, may not denominate themselves as, for example, “Smith and Jones,” for that title suggests that they are practicing law together in a firm.”

As a result, signage, letterhead, business cards, websites and retainer agreements should all be clear about the office sharing arrangement. These items should certainly avoid any misleading references; and, if warranted, they should perhaps even acknowledge the absence of a partnership with other lawyers in the shared space.

Protecting Client Confidentiality

Sharing an office requires special attention to client confidentiality. Both hardcopy and electronic files should be inaccessible to unaffiliated attorneys and staff members in the shared space. Likewise, lawyers must ensure that they do not inadvertently disclose their clients’ confidences through thin walls or open doors.

Avoiding Conflicts of Interests

Attorneys in office sharing arrangements must also be careful to avoid conflicts of interest. The Rules of Professional Conduct allow for unaffiliated attorneys in a shared office to represent clients with conflicting interests, so long as they “maintain separate telephones and have different secretaries.” CPR 274.

This means that unaffiliated attorneys with a shared secretary must: (i) conduct conflict checks, and (ii) adhere to the provisions of Rule 1.7 regarding adverse representation. As with the other pitfalls discussed above, failure to observe these requirements in a shared office could result in disciplinary action by the North Carolina State Bar.

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

Cheshire Parker Schneider & Bryan, PLLC represents North Carolina attorneys in disciplinary matters before the North Carolina State Bar. If you have questions about the ethics of office sharing or need to inquire about our services, please call (919) 833-3114 or submit our online contact form today.

 

The irrationality of life sentences and the need to reestablish parole

The New York Times has published a fascinating op-ed on the irrationality of life sentences. (Link)  The author, Jennifer Lackey, argues that such sentences prohibit future consideration of the most important information bearing upon the appropriateness of continued incarceration. 

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For natural life sentences say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal. Nothing. So no matter how much a juvenile is transformed behind bars, and no matter how unrecognizable an elderly prisoner is from his earlier self, this is utterly irrelevant to whether they should be incarcerated. Our absence of knowledge about the future, our ignorance of what is to come, our lack of a crystal ball, is in no way a barrier to determining now what someone’s life ought to be like decades from now.

Moreover, prisoners aren’t the only ones who can change: victims and their families can come to see the convicted as being worthy of forgiveness and a second chance, and public attitudes can evolve, moving away from a zealous “war on crime” approach to one that sees much criminal activity as the result of broader social problems that call for reform. Even if we set aside the other arguments against natural life sentences — economic, legal, moral and so on — the question I want to ask here is this: how is it rational to screen off the relevance of this information? How, that is, is it rational to say today that there can be no possible evidence in the future that could bear on the punishment that a decades­-from-­now prisoner deserves?

Notice that nothing in the epistemic argument here suggests that no prisoners should, in fact, spend the rest of their natural lives behind bars. Instead, the point is that rationality requires that we leave the epistemic door open to acquiring new information. Put bluntly, the argument says that it is irrational for the possibility of parole to be taken off the table at the outset of any sentence.

If Hume is right that “a wise man proportions his belief to the evidence,” then our beliefs about the punishment a person deserves at any given time need to be sensitive to the evidence available at that time. But if we screen off huge amounts of potentially relevant information decades before the beliefs about what a prisoner deserves are even formed, then it is impossible for them to be proportioned to the evidence.

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The same argument can be made for any lengthy fixed-length sentence. Thus, it is basically an argument for the reestablishment of the parole system. So-called “truth in sentencing” regimes, which ended parole while also increasing punishments for many crimes, have led to the outrageous mass incarceration of our population–with the U.S. having less than 5% of the world’s population but nearly 25% of the world’s prisoners. 

Judges have argued for an ability to review sentences; the US Supreme Court has declared mandatory life sentences for juveniles unconstitutional and made that ruling retroactive; and the president has begun to pardon many people serving lengthy federal sentences. But, at its core, the problem is the lack of a review of the appropriateness of continued imprisionment for those serving lengthy sentences as a matter of course. 

If we want a punishments to be proportional and individually tailored, we must recognize the potential for prisoner rehabilitation. Otherwise, a few poor souls may be treated appropriately, but the vast majority of reformed prisoners will continue to serve unnecessary time–costing taxpayers billions in wasteful spending and undermining the dignity of those who have worked hard to reform themselves. In the end, truth in sentences and the end of the parole system has been a failed experiment. We should recognize that failure and reinstitute parole. 

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Elliot Abrams is a Raleigh criminal defense attorney. He can be reached at (919) 833-3114, or through the contact form here.   

 

Former DOJ Lawyer faces professional discipline for whistleblowing 

Eleven years after informing a reporter at the New York Times about possibly illegal spying by the NSA on American citizens–reporting that ultimately won the NY Times a Pulitzer–the whistleblower has been accused of ethical violations by the DC Office of Disciplinary Counsel. 

He faces two charges. 

First, he is accused of failing to report possibly illegal activity to superiors at DOJ. 

Second, he is accused of disclosing confidential information about his “client,” DOJ. 

The charging papers are available here

Typically, state bars have been reticent to get involved in misconduct by DOJ lawyers, so this will be an interesting case for professional license defense lawyers to follow. The conduct complained of here was not prosecutorial misconduct–such as the withholding and manipulation of evidence in the prosecution of Senator Ted Stevens, which the DC Office of Disciplinary Counsel let DOJ handle internally. So it interesting that the same office is now, eleven years later, getting involved here. 

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The North Carolina professional license defense lawyers at CHESHIRE PARKER handle all types of professional disciplinary matters. If you are facing an ethics violation or other professional grievance, contact us today. 

 

Lawyers’ Professional Responsibility Following Third-Party Theft From a Trust Account

In a recent Formal Ethics Opinion, the North Carolina State Bar (NCSB) opined on a lawyer’s professional responsibility when a third party unaffiliated with the lawyer’s firm steals funds from the firm’s trust account.

While taking care to note that the opinion in no way reflected upon any consequences in terms of legal liability, the NCSB noted that lawyers should not be held professionally responsible for third-party theft where the theft is not facilitated by a violation of the Rules of Professional Conduct (the Rules).  However, lawyers must always be able to demonstrate that they have managed their trust accounts and supervised their non-lawyer personnel in accordance with the Rules of Professional conduct.

Do the Rules of Professional Conduct Require Lawyers to Replace Stolen Funds?

The first inquiry the NCSB addressed in 2015 Formal Ethics Opinion 6 was whether a lawyer is required to replace stolen trust funds under the following circumstances:

Ultimately, while the lawyer would be obligated to conduct a prompt investigation and take steps to prevent future thefts, he or she would not be required to replace the stolen funds. Given the facts as described, the lawyer would have satisfied his or her fiduciary responsibilities.

The NCSB also addressed the similar scenario of a thief hacking the firm’s computer system in order to steal trust account funds. In this situation, it also found that the lawyer should avoid liability for the stolen funds – provided that the lawyer had met her or her obligations regarding security under Rule 1.15.

However, under different circumstances (for example, if the theft was proximately caused by a violation of the Rules relating to non-lawyer supervision or trust account management) the NCSB noted that the lawyer could be obligated to replace the stolen funds.

What Are the Lawyer’s Responsibilities Regarding Outstanding Checks?

As a related issue, the NCSB also addressed the lawyer’s professional responsibility under the original fact pattern with respect to outstanding checks. It proposed two different scenarios:

In both situations, the NSCB felt that the lawyer’s responsibilities to his or her clients would be the same: The lawyer must ensure that one client’s funds are not used to satisfy another client’s obligations. This would require (i) issuing stop-payment notices to the bank holding the account, and (ii) demanding that the bank be held liable in the event that it honored a fraudulent check. Of course, the lawyer should abstain from issuing any additional checks until the issue is resolved.

With respect to the payees, the NCSB simply instructed that the lawyer should provide notice of the problem.

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

The attorneys at Cheshire Parker Schneider & Bryan, PLLC have decades of experience in professional responsibility matters in North Carolina. If you are facing disciplinary action, put our experience on your side. For more information about our experience and what we can do to help, call (919) 833-3114 or contact us online today.

 

MLK first used term “I have a dream” during a speech in Rocky Mount, North Carolina

A N.C. State Professor has launched a site, http://kingsfirstdream.com/, that contains a newly discovered audio recording of a speech by King in Rocky Mount, NC, in which he used the refrain “I have a dream.”

Here is the UNC School of Government’s take:

<< Monday was Martin Luther King Jr. Day and Americans across the nation observed the national holiday and celebrated Dr. King’s contribution to the Civil Rights Movement. ABC 11 reports here that N.C. State professor Jason Miller launched a website that contains a restored recording of a November 1962 speech that King delivered in Rocky Mount. The website explains that King first delivered the famous “I have a dream” refrain during the Rocky Mount speech. The tape recording of the speech was stored for nearly 50 years before being discovered in a library in 2013. The analog tape was digitally restored and the nearly hour-long speech is now available for listening on the website. >>

 

Understanding Your Right to Remain Silent

You know it from television, if nothing else: As a criminal suspect, you have the right to remain silent. Whether or not you know it by name, you are probably also familiar with what is known as the Miranda warning, which is the statement police read to suspects in their custody along the lines of, “You have the right to remain silent. Anything you say can and will be used against you in a court of law . . . .”

But, do you know how these important Constitutional principles protect you? Do you know what it means if the police fail to read you the Miranda warning? Understanding your rights and hiring a criminal defense lawyer who knows how to use them to protect you could mean the difference between walking free and facing a guilty verdict at trial.

The Protection Against Self-Incrimination

The right to remain silent in criminal cases comes from the Fifth Amendment to the U.S. Constitution. The Fifth Amendment protects all citizens against self-incrimination, and as a criminal suspect, the government cannot compel you to make statements that implicate your involvement in a crime.

In order to make sure criminal suspects understand this right, in a 1966 case known as Miranda v. Arizona, the U.S. Supreme Court held that prosecutors and law enforcement officers must employ safeguards “effective to secure the privilege against self-incrimination.” More specifically, the Supreme Court instructed the police to warn suspects of both (i) their right to remain silent, and (ii) their right to have an attorney present during interrogations. This is where we got the “Miranda warning” that we have today.

Understanding When Your Rights Apply

Importantly, while the Fifth Amendment’s protections apply at all times, the police are only required to read the Miranda warning to suspects who are in custody. If you are not in custody, the police do not have to read you your rights, but you also do not have to say anything that could be used against you regardless of where you are. As a result, if you have been pulled over, if you are facing a search warrant, or if the police simply stop you to ask some questions, you can (and often should) stay silent in order to protect yourself.

What if the police interrogate you without giving you the Miranda warning? If the police interrogate you in custody without reading your rights, then any self-incriminating statements you make may be inadmissible in court. Any evidence the government obtains acting on your statements could be inadmissible as well.

However, if you are not read your rights and you volunteer information while in custody—as opposed to in response to interrogation—your voluntary statements are likely admissible against you.

These are important protections and understanding when they apply, when they do not apply, and how to enforce them will be critical to asserting the strongest possible defense.

The safest bet when the police are asking you questions, regardless of where you are, is to politely decline to answer questions and demand an opportunity to call a criminal defense lawyer.

Learn More about Your Rights – Contact Cheshire Parker Schneider & Bryan, PLLC, a Raleigh Criminal Defense Law Firm

The defense attorneys at the law firm of Cheshire Parker Schneider & Bryan, PLLC provide experienced representation for criminal suspects in the Raleigh, NC area. If you have been arrested or are under investigation for any state or federal crime, we invite you to contact us immediately to discuss your case.

 

CPSB Raleigh Criminal Defense Attorneys named NC Super Lawyers 2016

We are honored that Raleigh NC Criminal Defense Attorneys Joe Cheshire and Brad Bannon have again been named Super Lawyers by SuperLawyers.com.

We are also proud to announce that, for the third year in a row,  Joe Cheshire has been named Top Lawyer in North Carolina by Superlawyers.com.

Super Lawyers selects attorneys using a patented multiphase selection process.  Peer nominations and evaluations are combined with independent research.  Each candidate is evaluated on 12 indicators of peer recognition and professional achievement.  Selections are made on an annual, state-by-state basis. 

Congratulations Joe and Brad!  If you need representation, contact one of our award-winning Raleigh criminal defense lawyers today.

 

 

Cheshire Parker Raleigh NC Family Law Attorneys named 2016 Super Lawyers and Rising Star

We are honored that Raleigh Family Law Attorneys John Parker, and Kimberly Bryan, have again been named Super Lawyers by Superlawyers.com.     We are proud that Kimberly Bryan has been named to the North Carolina Top 50 Women Super Lawyers two years in a row.  In addition, Raleigh Family Law Attorney Amy Britt was named 2016 North Carolina Rising Star.

Super Lawyers explains the selection process as follows:

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who attain a high degree of peer recognition and professional achievement.  The selection process includes independent research, peer nominations and peer evaluations. 

Rising Stars explains the selection process as follows:

The selection process for the Rising Stars list is the same as the Super Lawyers selection process, with one exception: to be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for 10 years or less.

Congratulations to this years recipientsFor more information regarding North Carolina’s laws and requirements, contact one of the Raleigh Family Law Attorneys at Cheshire Parker Schneider & Bryan for a consultation today.

 

 

 

 

Supreme Court grants review of Va. Governor’s conviction

As a follow up to this post, the Supreme Court has granted review of the question of the scope of the term “official act” in federal bribery law. This is an important question for white collar defense lawyers, particularly those who deal with allegations of public corruption.  This case and the Fourth Circuit’s ruling upholding it seriously blurred the line between typical political activity and illegal federal bribery, and reversing the conviction would go a long way toward giving fair notice to public officials regarding what conduct they can engage in without fear of a federal bribery or honest services wire fraud conviction.

Here’s a link to the the Hill discussing the case.

Here’s the order.

Here’s the petition seeking review at SCOTUS Blog.

 

Mayor’s Bribery Convictions Upheld, Asset Forfeiture Arguments Rejected

In 2014, a federal jury convicted the former mayor of New Orleans (2002-2010) of twenty federal white-collar felonies including bribery, honest service wire fraud, conspiracy to commit money laundering, and filing false tax returns.  (Here’s the opinion).  The mayor appealed his conviction for honest service wire fraud as well as the judge’s imposition of a money judgment for forfeiture.

The appeal of the honest service wire fraud conviction was a long shot.  He argued that the judge misstated the law when it instructed the jury that it could convict the mayor of honest service wire fraud for accepting a post-mayoralty employment contract in exchange for performing official act of supporting a city contract for the future employer even if the jury found that the mayor would have supported the contract even if he was not promised employment later.  The mayor argued that he could only be convicted of honest service wire fraud if the government proved that he was influenced in his official action by the promise of future employment.  But bribery is complete as soon as a person accepts a payment knowing that it is being given by the payor with the intent that the payment influence an official act–the act need never be completed.  Therefore, the Fifth Circuit rejected this argument.

The asset forfeiture portion of the appeal is more interesting.  The mayor argued that the judge erred by issuing a money judgment for forfeiture, instead of tying the forfeiture to certain assets that were obtained illegally.

The asset forfeiture laws operate through tainted property analysis.  A piece of property obtained through an illegal transaction is tainted property and is subject to forfeiture.  Any property later acquired with tainted property is also tainted and is similarly subject to forfeiture.  Moreover, if the government proves that the defendant placed certain property beyond the reach of the government, the government may be able to take other “substitute property” in criminal asset forfeiture proceedings.  However, each of these asset forfeiture analyses–directly tainted property, indirectly tainted property, and substitute asset theory–rely on some tracing of the illegally obtained property.  On the other hand, the government has begun arguing that all it must do is prove the amount of money or property that the defendant received illegally and ask for a “money judgment for forfeiture” in that amount.  Nothing in the asset forfeiture statutes authorizes this procedure.  But, unfortunately, courts have routinely accepted it.

The Fifth Circuit relied on prior cases to uphold the money judgment for forfeiture in this case.  However, it left the door open for later defendants to make the argument that money judgments for forfeiture are only appropriate where the government can prove that the property it seeks to forfeit is substitute property under 21 U.S.C. 853(p).  The circuits disagree on this point, and it is an issue that should be taken to the Supreme Court for resolution.

This case shows how complicated and confusing asset forfeiture law is, and illustrates why people facing public corruption and other economic or white-collar offenses must hire an experience asset forfeiture defense lawyer when facing investigation or criminal prosecution.  Our Raleigh asset forfeiture lawyers have developed substantial experience in this area of the law.  If you are facing prosecution, contact us 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