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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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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