While the internet has increased the availability of forms and instruction and “virtual” lawyers, there are certain times and places where only an actual lawyer will do.  There could be many an article written about the errors or omissions in documents drafted through forms off the internet by individuals or principals in a corporation, because they do not have the requisite degree of legal skill and knowledge that a lawyer practicing in a specific area possesses.  Starting a corporation or limited liability company or other formal business entity (“corporation”) needs to involve research, consulting, and formally organizing with the secretary of state and the drafting of an important document needs an understanding of the basic elements, options and possible outcomes when enforcing the rights provided in the document.

But, this article is about times when there is a requirement for a lawyer, not just the need for a lawyer.  This article highlights the rule that corporations are required to have a licensed lawyer when bringing or defending lawsuits.  A corporation is a legal entity that is separate and distinct from its owners, whether there is a single shareholder or member or multiple shareholders or members.  Corporations enjoy many of the rights and responsibilities that individuals possess, as they can enter contracts, loan and borrow money, own assets, pay taxes, hire people and sue or be sued.  But, unlike individuals, a corporation cannot “appear” in a lawsuit to enforce or protect its rights without a lawyer.  It is well known that individuals can appear pro se, derived from Latin and meaning “for oneself” or “on behalf of themselves”.  Putting aside the advisability of representing oneself, the law allows an individual to argue on one’s own behalf as the plaintiff or defendant in civil cases.

But when it comes to corporations, there is a well-established rule in North Carolina courts that prohibits a non-lawyer from representing a corporation in the court system.  This includes any pleading or personal appearance before a civil court of a Division of Motor Vehicles hearing (absent small claims court).  In Lexis-Nexis, Division of Reed Elsevier, Inc. v. Travishan Corp., 155 N.C. App. 205, 573 S.E.2d 547 (2002), the court held that, in North Carolina, a corporation must be represented by a duly admitted and licensed attorney-at-law and cannot represent itself in a legal proceeding.  This means any appearance, such as filing an extension of time, filing an answer or pleading, or appearing in court for a motion or trial.

The courts are aware of and routinely enforce this requirement and any corporation that ignores the requirement will likely find themselves on the wrong end of a default, or sanction motion, or botched appeal from small claims court.  The most gentile of lawyers will point out this necessity, but the worst of lawyers will exploit it to their client’s advantage.  So, if you find your corporation in a position to have to sue or if you have been sued, find a lawyer with experience in civil litigation to enforce your rights or protect your investment.

Miller Monroe Holton & Plyler represents a wide range of businesses, investors, shareholders, and individuals – from large national corporations to small local businesses. Our commercial litigation practice is focused on honest, aggressive representation with a cost-effective client-focused approach. Our lawyers have the business experience necessary to guide you through a complex and sometimes daunting litigation process.

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All too often, our commercial litigators sit down with a potential client to learn of allegations of fraud against a business partner, employee, or fiduciary.  While an actual fraud claim is obvious in these instances, a constructive fraud claim can be much more powerful.  A constructive fraud claim is based on the exploitation of a position of trust rather than a specific misrepresentation.

The clearest benefit of proving constructive fraud is the time period in which the claim must be filed.  A fraud claim has a 3-year statute of limitations, meaning that a claimant can only recover for damages resulting from fraudulent conduct that occurred in the 3-year period starting when the claimant knew or should have known about the conduct.  On the other hand, there is a 10-year statute of limitations on constructive fraud claims.  This can be critical in cases of employee or partner embezzlement where the instances of fraud can span several years.

Another benefit of a constructive fraud claim relates to a shift in the burden of proof, which can make or break a case.  When a person who stands in a confidential or fiduciary role obtains a personal benefit from that relationship, there is a legal presumption that a constructive fraud occurred.  This means that a defendant must present sufficient evidence to overcome a legal presumption of wrongdoing in order to avoid liability.

To show constructive fraud, a claimant must present evidence that (1) a confidential or fiduciary relationship existed which (2) led up to and surrounded the consummation of a transaction in which the defendant is alleged to have taken advantage of his position of trust to the detriment of plaintiff.  The key issue in these cases is often whether the fraudulent actor stood in a confidential or fiduciary relationship with the claimant.  While potential clients often assume that they stand in a fiduciary relationship with their business partners or family members, this is not always the case.  The particular roles and responsibilities, ownership stakes, and other factors must be carefully considered.

A constructive fraud claim can be very powerful, but requires a litigator who understands how to plead these claims, discover facts and documents to support these claims, and how to present this evidence to a judge or jury.  The attorneys at Miller Monroe Holton & Plyler have substantial experience litigating constructive fraud and other complicated commercial claims.  We have the expertise needed to effectively prosecute these claims.  If you or someone you know has been damaged by the conduct of a business partner, fiduciary, or someone in a position of trust, call Miller Monroe Holton & Plyler today.

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