Should 'do no harm' be added to lawyer ethics rules? Torture memo shows need for change, op-ed says

See - Should 'do no harm' be added to lawyer ethics rules? Torture memo shows need for change, op-ed says





"x x x.

Legal ethics rules should be changed to make clear that legal approval of torture and other unlawful abuses is not permitted, according to law professor’s op-ed.

Alexa Van Brunt, a Northwestern University law professor and a lawyer for its MacArthur Justice Center, alleges that government lawyers “flouted international law” by condoning harsh interrogation techniques for suspected terrorists.

In a Washington Post column, Brunt calls for “an enhanced ethical regime” in the legal profession, perhaps one that is modeled over the medical profession’s “do no harm” Hippocratic oath.

“In the legal context, this would require the creation of ethical principles that explicitly state that service to the client does not trump duty to the laws and Constitution, and that complicity in acts of torture and other such unlawful abuses would constitute a disciplinary offense—even if done on behalf of the president of the United States,” Brunt writes.

The Senate Intelligence Committee’s report on the CIA interrogation program does make clear that some interrogation techniques exceeded those approved by lawyers in the U.S. Justice Department, Brunt says. But waterboarding, sanctioned as lawful by government lawyers, is still torture, Brunt asserts.

“We as a profession must recognize that our current ethical rules are not enough, particularly for those lawyering at the margins,” Brunt writes. “A greater mandate is called for—whoever the client, first, do no harm.”

x x x."

Extended power of judicial review

See - Between independence and subservience





"x x x.

While intervening in the domain of the Executive and the Legislative branches with consequences akin to that of a bull charging into a china shop, the Court has been aggressively asserting its independence. It has criticized the DBM for limiting the increase in its budget for FY2015. It has refused to release details of the Judiciary Development Fund (JDF) to Congress, with one justice even asserting that Congress does not have the power to amend the law creating the fund. The Court has also refused to release the justices’ Statements of Assets Liabilities & Net Worth (SALNs) to the Bureau of Internal Revenue (BIR).

There are issues of democratic practice embedded in the SC’s power of judicial review which cannot remain within the necessarily secretive confines of court deliberation. The SC can rule that the Executive, together with the Legislative, or separately, are guilty of "grave abuse of discretion." What recourse is available to the Executive and Legislative branches when the SC is guilty of "grave abuse of discretion"? Under the Constitution, and Philippine jurisprudence, none.

Even only in the recent past, there have been SC decisions which have arguably breached the limits of "discretion." In 3 decisions involving the rights and power of former President Gloria Macapagal Arroyo, the SC either directly violated the law or stretched the limits of its power. These included allowing the appointment of Renato Corona as Chief Justice at a time when Arroyo was already explicitly prohibited from doing so; preventing the new administration from creating a Truth Commission; and most egregiously, a TRO on a GMA hold departure order which would have allowed Arroyo to leave the country and escape prosecution.

One key principle of democractic practice is "check and balance" between the 3 branches of government. It may be perfectly valid for the Supreme Court to have the power to "check" the other branches, but if neither the legislature nor the Executive has the power to "check" the Supreme Court, there is no "balance." The only powers available to the Executive and Legislative branches against the SC are "disruptive." Cutting the budget of the Supreme Court or worse, impeaching the justices, cannot be organized into the "normal course of [political] events." How did this come to pass?

The 1987 Constitution was written in the immediate aftermath of the Marcos dictatorship. It is only natural that the main thrust of the anti-dictatorship movement – preventing a dictatorship – was the main determinant. One provision, limiting the power of the president to declare martial law and the suspension of the writ of habeas corpus has found general acceptance. It is the other provision, giving the SC power to review acts of the legislature and the Executive, which has been problematical.

x x x."

Judicial restraint

See - Between independence and subservience





"x x x.

We cannot rely on the “self-restraint” of justices. Whether it was to provide legal cover for the Marcos dictatorship or to prevent GMA from being made accountable for her many crimes, the Court has ruled in service to partisan political interests. The whole point of “checks and balances” is to locate the boundaries of each branch’s action where the action of another branch begins. In the current set-up, there is no “check” on the action of the Court. “Balance” cannot be achieved without conflict.

Because the problems begin with legal construction in the 1987 Constitution, the Constitution at some point has to be amended, a task for lawyers. But legal theory has to begin with a few basic political facts:

• Court justices are not elected, once appointed they cannot be removed except through impeachment or retirement at age 70. They cannot, in other words, be made accountable for their decisions.
• The Court has limited resources for determining the facts of a case on appeal, it leaves that to lower courts. To rule on a government policy where the data requirements are a quantum leap from a case at court, the Court has to rely on the other branches.
• The Court cannot implement its decisions; it has to count on the Executive and Legislative branches.

These are the practical considerations behind the need for inter-branch cooperation even as there is "independence" and "separation of powers."

x x x."

Expanded rule-making power of the SC

See - Between independence and subservience





"x x x.

Still another area where the Court has expanded its powers is its assertion of its rule-making powers. This Court for the first time was given the power to promulgate rules concerning the protection and enforcement of constitutional rights. Given the extensiveness of the 1987 Constitution’s provisions on social and political rights, the scope for extending the Court’s power is almost limitless. This power was most extensively used during the Puno court.

“Chief Justice Puno primarily deployed the rulemaking power to create the writ of amparo, principally to address extrajudicial killings as documented in the landmark decision Secretary of National Defense v. Manalo. The Puno Court also issued rules regarding the writs of habeas data and kalikasan, to protect the rights to informational privacy and to a healthful environment,” Tan said in his article. Even as it has established precedents, this power has not been asserted much since the retirement of Chief Justice Puno.

x x x."

Political question doctrine

See - Between independence and subservience





"x x x.

The whole point of the "political question" doctrine is that there are issues which are matters of policy, not law. But the "political question" doctrine has been in effect removed in the 1987 Constitution and in the practice of the court in the past quarter century. Without this doctrine, you remove "separation of powers," an indispensable part of democratic practice. You have an independent Supreme Court, but a dependent Executive and Legislative branch, whose actions are subject to the disapproval of the Court.

x x x."

'We Do Not Dispense Justice Via The Phone' | Litigation & Trial Lawyer Blog

See - 'We Do Not Dispense Justice Via The Phone' | Litigation & Trial Lawyer Blog





"x x x.

But litigation isn’t a duel, and it isn’t like a football game or a boxing match, you don’t really unambiguously win by scoring more touchdowns or knocking out your opponent. You don’t even really “win.” Rather, someone who has sworn an oath to be impartial is suppose to dispense justice from the bench or the jury box by independently coming to a conclusion about your client’s case. Spend your energy helping them do that, instead of trying to defeat the other side, with clear, concise writing and argument.x x x."

Changing how lawyers are educated | Opinion, News, The Philippine Star | philstar.com

See - Changing how lawyers are educated | Opinion, News, The Philippine Star | philstar.com





"x x x.

In all the discussions on the effect of ASEAN integration on business and agriculture, most people, including myself, have overlooked the effect of this integration on the professional services.

The Philippines  agreed to integrate, with other ASEAN countries, the following professions: Accountancy, Civil Engineering, Geodetic Engineering, Electrical Engineering, Mechanical Engineering, Metallurgical Engineering, Mining Engineering, Sanitary Engineering, Industrial Engineering, Landscape Architecture, Environmental (Urban ) Planning, Computer related professions, and Interior Designing. The Philippines also entered into mutual recognition agreements on medical and dental professions.

Supreme Court Justice Arturo D. Brion, a week ago, gave a speech before the officers and members of the Philippine Association of Law Schools. He brought up the intriguing question of whether the Congress or the Supreme Court “can by rule or decision, determine whether, to what extent, and under what terms foreign (ASEAN) lawyers can engage in the practice of the legal profession in the Philippines.”

His answer was: “It only remains for us  to determine, how, when and to what extent we shall open up the practice of the legal profession to foreign participation.” Brion’s most important query was whether the Philippine legal profession was prepared “to cooperate, collaborate, and compete with our  peers in the ASEAN region .”  He  stressed that the Philippine legal profession must be ready for a shift that will entail not only new knowledge and awareness, but also a new set of skills for the Philippine lawyer.”

In proposing areas for improvement and adjustment, Justice Brion focused on radical improvements in Legal Education. Even without the ASEAN integration, his analysis and recommendations, on the Philippine legal education, should be taken seriously as a major step for the improvement in the judicial system which we have long been advocating as necessary  to institutionalizing the rule of law in this country. Here two paragraphs, in his speech, that graphically describes the state of legal education in this country:

“ Numerically, perhaps, we may currently have enough law schools to fill our needs, In 2013, 120 law schools sent 5,292 bar examinees to the BAR examinations. Sad to state, many of these law schools performed dismally and cannot live up to the ideal standards we would wish to see in a regionally-open law practice environment. In 30 (or 25%) of these law schools not one Bar candidate passed..  in 67 (or 55.83% of these same law schools, 10% or less of their graduates passed, while in 93 (or 80,83%)  out of these 120 law schools, 20% or less of their graduates made it.

Opinion ( Article MRec ), pagematch: 1, sectionmatch: 1

In terms of the percentage of the Bar examinees who passed, from years 2000 to 2013, only 24.55% on the average passed, with a low of 17.76% in 2012 to a high of 32.89% in 2011. Thus on the average, 3 out of 4 Bar examinees failed. In 2013, only 22.18% passed the highest success rate then among law schools was a 78.89% passing rate, and only 2 other law schools had a passing rate of more than 70.%”

By any standards, even a non-lawyer can see that these are dismal results reflecting a deeply flawed legal education system. Justice Brion proposed five major changes in the system which hopefully will address these issues:

First , rethink law school accreditation standards including faculty and facilities. Also stricter performance standards beyond a passing record of one successful examinee for every three years. My own thinking is they should close those 93 law schools that had a passing average of less than 20% of their Bar examinees. But as Justice Brion said this requires the political will to close down law schools.

Second, Brion says that a mandatory aspect of law school regulations is the requirement for teachers based on the awareness that teaching law and practicing law, although related, are distinct disciplines with their own respective qualifications. Teaching law should require more than just passing the Bar. Law schools also need a reasonable number of full time faculty members.

Third, there is a need to rationalize the law curriculum which has been in place for several decades. Legal competence in this globalized age requires a wider range of talents, among them legal research advocacy, counselling, problem solving, and decision making. Brion emphasizes legal education should teach students how to function as competent and responsible lawyers, not merely to qualify as lawyers under the Bar examinations.

Fourth, the time has come for radical changes in the BAR exam. He believes that the present system of examination – relevant to the practice needs and environment decades ago – is badly outdated because it is still largely knowledge based and does not properly test for skills and other competencies now demanded by current realities.

Fifth, he proposes that the present Legal Education Board should be transferred from the Department of Education to the Supreme Court in order to improve the interaction between legal education and bar admission regulations currently under the Supreme Court.

There are radical changes in most areas of education caused by the rapid changes in technology and the increasing globalization of knowledge and economies. Best practices and innovation have become common terms in business, government and education. In almost all professions like management, engineering, accounting, medicine, adapting to a rapidly changing world is becoming a fact of life.

 The Philippine legal profession must learn to accept that they cannot continue to operate in a cocoon of protectionism while the society around them is embracing change. For example, in all other professions – in terms of time – services are now rendered in a matter of weeks, days or even hours. But our lawyers and judiciary still think that they are immune to change and society will accept justice in terms of years or even decades.

Philippine justice, and the education of its lawyers, requires radical changes now and not in some distant future.

*      *      *

Email: elfrencruz@gmail.com

x x x."

Search and seizure; 4th amendment. - FindLaw | Cases and Codes

See - FindLaw | Cases and Codes





"x x x.

Following a suspicious vehicle, Sergeant Matt Darisse noticed that only one of the vehicle's brake lights was working and pulled the driver over. While issuing a warning ticket for the broken brake light, Darisse became suspicious of the actions of the two occupants and their answers to his questions. Petitioner Nicholas Brady Heien, the car's owner, gave Darisse consent to search the vehicle. Darisse found cocaine, and Heien was arrested and charged with attempted trafficking. The trial court denied Heien's motion to suppress the seized evidence on Fourth Amendment grounds, concluding that the vehicle's faulty brake light gave Darisse reasonable suspicion to initiate the stop. The North Carolina Court of Appeals reversed, holding that the relevant code provision, which requires that a car be "equipped with a stop lamp," N. C. Gen. Stat. Ann. §20-129(g), requires only a single lamp--which Heien's vehicle had--and therefore the justification for the stop was objectively unreasonable. Reversing in turn, the State Supreme Court held that, even assuming no violation of the state law had occurred, Darisse's mistaken understanding of the law was reasonable, and thus the stop was valid.

Held: Because Darisse's mistake of law was reasonable, there was reasonable suspicion justifying the stop under the Fourth Amendment. Pp. 4-13.

     (a) The Fourth Amendment requires government officials to act reasonably, not perfectly, and gives those officials "fair leeway for enforcing the law," Brinegar v. United States, 338 U. S. 160, 176. Searches and seizures based on mistakes of fact may be reasonable. See, e.g., Illinois v. Rodriguez, 497 U. S. 177, 183-186. The limiting factor is that "the mistakes must be those of reasonable men." Brinegar, supra, at 176. Mistakes of law are no less compatible with the concept of reasonable suspicion, which arises from an understanding of both the facts and the relevant law. Whether an officer is reasonably mistaken about the one or the other, the result is the same: the facts are outside the scope of the law. And neither the Fourth Amendment's text nor this Court's precedents offer any reason why that result should not be acceptable when reached by a reasonable mistake of law.

     More than two centuries ago, this Court held that reasonable mistakes of law, like those of fact, could justify a certificate of probable cause. United States v. Riddle, 5 Cranch 311, 313. That holding was reiterated in numerous 19th-century decisions. Although Riddle was not a Fourth Amendment case, it explained the concept of probable cause, which this Court has said carried the same "fixed and well known meaning" in the Fourth Amendment, Brinegar, supra, at 175, and n. 14, and no subsequent decision of this Court has undermined that understanding. The contrary conclusion would be hard to reconcile with the more recent precedent of Michigan v. DeFillippo, 443 U. S. 31, where the Court, addressing the validity of an arrest made under a criminal law later declared unconstitutional, held that the officers' reasonable assumption that the law was valid gave them "abundant probable cause" to make the arrest, id., at 37. Heien attempts to recastDeFillippo as a case solely about the exclusionary rule, not the Fourth Amendment itself, but DeFillippo's express holding is that the arrest was constitutionally valid because the officers had probable cause. See id., at 40. Heien misplaces his reliance on cases such as Davis v. United States, 564 U. S. ___, where any consideration of reasonableness was limited to the separate matter of remedy, not whether there was a Fourth Amendment violation in the first place.

     Heien contends that the rationale that permits reasonable errors of fact does not extend to reasonable errors of law, arguing that officers in the field deserve a margin of error when making factual assessments on the fly. An officer may, however, also be suddenly confronted with a situation requiring application of an unclear statute. This Court's holding does not discourage officers from learning the law. Because the Fourth Amendment tolerates only objectively reasonable mistakes, cf. Whren v. United States, 517 U. S. 806, 813, an officer can gain no advantage through poor study. Finally, while the maxim "Ignorance of the law is no excuse" correctly implies that the State cannot impose punishment based on a mistake of law, it does not mean a reasonable mistake of law cannot justify an investigatory stop. Pp. 4-12.

     (b) There is little difficulty in concluding that Officer Darisse's error of law was reasonable. The North Carolina vehicle code that requires "a stop lamp" also provides that the lamp "may be incorporated into a unit with one or more other rear lamps," N. C. Gen. Stat. Ann. §20-129(g), and that "all originally equipped rear lamps" must be "in good working order," §20-129(d). Although the State Court of Appeals held that "rear lamps" do not include brake lights, the word "other," coupled with the lack of state-court precedent interpreting the provision, made it objectively reasonable to think that a faulty brake light constituted a violation. Pp. 12-13.

367 N. C. 163, 749 S. E. 2d 278, affirmed.

     Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, Ginsburg, Breyer,Alito, and Kagan, JJ., joined. Kagan, J., filed a concurring opinion, in which Ginsburg, J., joined. Sotomayor, J., filed a dissenting opinion.

x x x."

Erap faces ouster as Manila mayor - The Manila Times OnlineThe Manila Times Online

See - Erap faces ouster as Manila mayor - The Manila Times OnlineThe Manila Times Online







"x x x.

SUPREME Court (SC) Associate Justice Marvic Leonen, the magistrate who was designated to write the decision on the disqualification case filed against Manila Mayor Joseph “Erap” Estrada, believes that the former president should be ousted from his post.

Leonen is convinced Estrada’s conviction for plunder made him ineligible to run for public office, according to a highly reliable source at the High Court.

In his draft ponencia, Leonen, the most junior member of the tribunal, maintained that even if Estrada was granted pardon by then-President Gloria Macapagal-Arroyo, he was barred from running for an elective post because the executive clemency that he received was not absolute.

Leonen, a constitutional law expert, had submitted his draft decision to the court en banc but some justices asked for more time to study the case. The tribunal will deliberate on the case on January 20, 2015.

The disqualification case against Estrada was filed by Alicia Risos-Vidal, the lawyer of former Manila Mayor Alfredo Lim, who also intervened in the case.

The Manila Times source said Leonen based his decision on his findings that the pardon granted by Arroyo to Estrada was conditional, not absolute.

The magistrate relied on the October 25, 2007 Executive Clemency that Estrada accepted and that stated that the former president “publicly committed to no longer seek any elective position or office.”

The source said the executive clemency granted by Arroyo only obliterated Estrada’s principal penalty and did not restore the former leader’s “political rights” thus he is barred from running for any public position.

Leonen cited the landmark case of Monsanto vs. Factoran, which also dealt with the pardon given to a convicted public official.

The provisions of Article 36 and 41 of the Revised Penal Code on pardon being bestowed by a sitting President to a convicted criminal was also discussed in Leonen’s draft ponencia.

Article 36 provides,“A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.”

Article 41 mandates that the penalties of reclusion perpetua and reclusion temporal “shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.”

The crime of plunder is punishable by reclusion perpetua.

In his draft decision, Leonen also discussed who should replace Estrada in case the SC ruled to oust him from office.

The magistrate opined that if the disqualification was the result of election offenses such as ballot switching, ballot snatching, vote buying and acts of terrorism, the successor shall be the vice mayor based on the law on succession under Section 44 of the Local Government Code.

If, however, the cause of the disqualification is based on the cancellation of the certificate of candidacy on the basis of eligibility of a candidate, the successor shall be the candidate who placed second during the elections in 2013.

The latest jurisprudence on such a case was in the Aratea vs Comelec and Antipolo where the second placer, Estela Deloso-Antipolo, was allowed by the SC to sit as mayor of San Antonio town in Zambales, not Vice Mayor Efren Aratea, because of the disqualification of Romeo Lonzanida, a convicted criminal.

Estrada was ousted from the presidency in 2001 over massive allegations of corruption. He was convicted for plunder by the Sandiganbayan Special Division on September 12, 2007. He ran for President during the May 2010 polls and placed second to then-senator Benigno Aquino 3rd.

Although a disqualification complaint was filed against Estrada by lawyer Evilio Pormento and Mary Lou Estrada, the High Court did not rule on the case because then-Chief Justice Renato Corona, the ponente of the case, said the complaint became moot and academic because of Estrada’s electoral defeat.

Estrada had asked the SC to dismiss the disqualification case, claiming that the pardon bestowed on him by Arroyo restored his civil and political rights.

The former President also stated that the High Court must affirm findings of the Commission on Elections on April 1, 2013 and April 23, 2013 that he is eligible and qualified to run as a mayor of Manila.

x x x."

Sixth Amendment’s Right to a Jury in Criminal Cases | David J. Shestokas

See -  Sixth Amendment’s Right to a Jury in Criminal Cases | David J. Shestokas





"x x x.

In Article III, the unamended Constitution provided for jury trials in criminal cases[1] as follows:

“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”

Right to a Criminal Jury Trial Protected Twice in the Constitution

The idea of a jury trial in criminal cases was so important that this provision was thought insufficient by opponents of the Constitution’s ratification.[2]  When the Bill of Rights was ratified in 1791, the Sixth Amendment included:

“In all criminal prosecutions, the accused shall enjoy the right to a … trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law…”

The Fundamental Nature of Juries

The idea of the jury is perhaps the most fundamental idea in the Bill of Rights. The right of jury trial in criminal cases was the only right guaranteed in in all state constitutions adopted between 1776 and 1787. While the unamended Constitution did not contain a general Bill of Rights, as mentioned above Article III specifically secured the right of juries in criminal trials. Once adopted the Bill of Rights included three amendments relating to juries.[3]  Thomas Jefferson expressed the critical importance of juries as a limit on government in that trials by jury were “trials by the people themselves.”[4]

How Juries Came to Assume Such Import to the Founders 

King Henry II’s Assize of Clarendon in 1166 provided that twelve community members would decide whether a person would be charged with a crime[5] and imposed a duty on the citizenry to attend and judge at the trial.  These provisions had little to do with protecting the rights of the accused, and more with establishing thepolitical legitimacy[6] of the government by providing a veneer of community involvement.

Henry II established a rudimentary “jury” that found its way to British North America.  The role of the jury acquired a decidedly American flavor in 1733 with the trial of John Peter Zenger.  Zenger was a printer, charged with seditious libel[7] for publishing criticism of the royal governor.  Zenger had clearly broken the law as it stood in 1733, but his lawyer, Andrew Hamilton[8] argued that the law was unfair and Zenger should be found not guilty.  In less than ten minutes, the colonial jury did find Zenger not guilty.[9]

Over time, American juries began to regularly protect defendants from English laws that colonists thought unfair or unjust.  The English response was to have more and more cases removed from jury decisions and make provisions for trials of crimes in America to take place in England.  The English response to the growing power of American juries was the source of the jury grievance in the Declaration of Independence.

In America, the jury’s purpose had changed from serving the king’s needs to protecting citizens from oppressive government.  This uniquely American limit on government was something the Founders deemed critical to securing the blessings of liberty for themselves and their posterity.

There is no greater exercise of government power than the prosecution of criminal charges.  The Founders saw it so crucial to put a jury of citizens between the government and a person accused of a crime that such a limit is twice in the Constitution, in Article III and in the Sixth Amendment.

x x x."

- See more at: http://www.shestokas.com/constitution-educational-series/sixth-amendments-right-to-a-jury-in-criminal-cases/#sthash.nX3ibMIT.dpuf

Top 10 highest-priced law firms: Does more expensive always mean better? - exploreB2B

See - Top 10 highest-priced law firms: Does more expensive always mean better? - exploreB2B





"x x x.

 With some lawyers charging close to $2,000 an hour are they always worth the money, sometimes worth the money or can the exorbitant expense overshadow the potential benefit?

For the average Joe who is searching for an attorney the cost of representation, depending on the type of case, can seem daunting and quite possibly out of reach without a serious and debilitating financial stretch.

Hourly rates will vary by discipline and location with certain types of cases and attorney’s requiring a retainer be paid upfront while others are paid on a contingency basis. This is where the attorney only makes money if he wins a monetary recovery for the client.

That said are the hourly rates being charged by some of the top law firms always going to be worth paying if you can afford it, or at times could they be overkill based on a clients needs in a specific case? The answer of course is yes and yes!

In some instances, such as a serious criminal case or a complex corporate negotiation, it may be smart to hire a well-connected attorney with long experience and a solid reputation who will hopefully get the best result justifying the high cost (i.e. O.J. Simpson). But at the same time an attorney in a small or solo practice may have the same experience, reputation and contacts as his BigLaw counterparts while charging much lower hourly fees.

How to proceed is a difficult question to answer particularly when all law firm clients are naturally looking for the best result. It needs to be remembered, however, that the highest cost does not always mean you’re getting the undeniable best, but could mean that one firm has higher overhead than another and therefore needs to charge higher rates.

Let’s compare two firms, one in New York City and one on Long Island as an example. A large white-shoe law firm in Manhattan with hundreds of partners and associates may have three floors in an ‘A’ building, handle every segment of the law and have huge monthly expenses while servicing a blue-chip clientele on retainer.

The hourly rates they charge need to be commensurate with, and in some way compensate them for, all of that overhead in addition to the pay scale for the partners and support staff.

By comparison an attorney on Long Island in private practice or at a small law firm may also have many years of great experience, specialize in only one or two disciplines and doesn’t handle a Fortune 500 clientele.

The Long Island office will likely be operating with much lower overhead than its BigLaw NYC counterpart and therefore may bill at an hourly rate possibly 1/4 that of the NYC firm while providing equal, if not better and more robust, representation.

Additionally, with the smaller practice the client may likely be dealing more directly with the attorney they chose to hire as opposed to support staff.

The bottom-line?

More expensive is not always better, location is not always the ultimate determinant of the quality of work product and that a referral from a trusted advisor is often more valuable than a reputation that could possibly be more smoke and mirrors than reality.

And as always, to use a phrase that has been used here many times in the past, caveat emptor or ‘let the buyer beware!’

All of that said, these are the Top 10 law firms by highest partner billing rate from National Law Journal!

Written by Michael Haltman, President of Hallmark Abstract Service, New York.

x x x."

NY court rules: Chimps don't have same rights as humans | Inquirer News

See - NY court rules: Chimps don't have same rights as humans | Inquirer News





"x x x.

ALBANY, New York–A chimpanzee is not entitled to the rights of a human and does not have to be freed by its owner, a New York appeals court ruled Thursday.

The three-judge Appellate Division panel was unanimous in denying “legal personhood” to Tommy, which lives alone in a cage.

A trial-level court had previously denied the Nonhuman Rights Project’s effort to have Tommy released. The group’s lawyer, Steven Wise, told the appeals court in October that the chimp’s living conditions are akin to a person in unlawful solitary confinement.

Wise argued that animals with human qualities, such as chimps, deserve basic rights, including freedom from imprisonment. He has also sought the release of three other chimps in New York and said he plans similar cases in other states.

But the mid-level appeals court said there is no precedent for treating animals as persons and no legal basis.

“So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties,” the judges wrote. “Needless to say, unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions.”

That, they ruled, makes it “inappropriate” to grant the rights of a human to the animal.

The Nonhuman Rights Project said it will appeal to the state’s top court, citing other New York appeals court rulings it says are at odds with Thursday’s decision.

Tommy’s owner, Patrick Lavery, said Thursday he was pleased and expected the ruling.

Tommy, believed to be about 40 years old, is a former entertainment chimp who was placed with Lavery about 10 years ago. Lavery said Tommy is cared for under strict state and federal license rules and inspections.

The court noted there have been no claims that Tommy has been mistreated or any of those rules have been violated.

x x x."

Read more: http://newsinfo.inquirer.net/656919/ny-court-rules-chimps-dont-have-same-rights-as-humans#ixzz3LlcP13N4
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The Largest Free Collection of Law Reviews on the Web — Robert Ambrogi's LawSites

See - The Largest Free Collection of Law Reviews on the Web — Robert Ambrogi's LawSites

NOVEMBER 24, 2014

The Largest Free Collection of Law Reviews on the Web

by Robert Ambrogi

Click - http://www.lawsitesblog.com/2014/11/largest-free-collection-law-reviews-web.html?utm_content=bufferc2a46&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer

OSBA | Police and privacy: Is a warrant required to search your cellphone?

See - OSBA | Police and privacy: Is a warrant required to search your cellphone?





"x x x.

Warrantless searches are permitted in some instances

Generally, the Fourth Amendment requires police to first obtain a warrant before searching a person or their belongings. However, there are several instances where warrants are not required. In 1973, the Supreme Court held that police officers did not need a warrant to look inside objects found on someone’s person during arrest if the object had unidentified contents, such as a pack of cigarettes, a wallet, or a purse that might contain a weapon.⁴ Warrantless searches can also be imposed on the contents of a vehicle when its driver is being arrested, on students when they desire to engage in sports, band, chorus, or academic competitions, and on students and their belongings when on public school grounds if there is “reasonable suspicion” that the student has violated the law or a school rule. These kinds of warrantless searches are permitted to protect the public and police officers from physical harm and to prevent the destruction of evidence.

Digital is different

According to the Supreme Court, the “digital data stored on cell phones does not present either [a] risk” of imminent physical danger or evidence destruction.⁵ Since the data on a cellphone cannot itself be used as a weapon and the extent to which the cellphone data could possibly warn officers of impending physical danger to themselves or the public is limited, searching the cellphone data under the guise of officer safety was not a concept that the Court wanted to embrace. Further, there are several simple and cost savvy ways for officers to protect against the destruction of digital evidence that may be stored in a cellphone.

When conducting any search, the counterbalancing consideration to protection and enforcement of the law is the level of intrusion that searching a person or their belongings imposes. The “degree to which [searching a person or their objects] intrudes upon an individual’s privacy” must be reasonable in light of “the degree to which [the search] is needed for the promotion of legitimate governmental interests.”⁶In their June 25, 2014, opinion, all nine Justices joined forces to deem police searches of cellphone data overly intrusive. Per the Court, “Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.”⁷ “Cellphones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s person,” Chief Justice Roberts writes for the Court.⁸ “Notably, modern cell phones have an immense storage capacity.”⁹ Cellphones like Riley’s and Wurie’s “are based on technology nearly inconceivable just a few decades ago,” when the Court issued its 1973 opinion permitting warrantless searches of arrestees.¹⁰ In sum, digital is different. The Court notes, however, that police can still rely on the exigency exception to the Fourth Amendment to search digital data on cellphones without a warrant.¹¹An exigent circumstance would be akin to disarming a ticking time bomb or locating an abducted child. Absent these extremely rare circumstances, the officer must secure a warrant to search the phone’s contents. And, of course, “law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden between the phone and its case.”¹² Furthermore, to prevent data wiping or encryption, the Court instructs law enforcement officers to simply turn off the phone, remove its battery, or place it in a cheap “sandwich bag made of aluminum foil.”¹³

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Are Your Clients Confused? 5 Things Lawyers Can Explain Better - Strategist

See - Are Your Clients Confused? 5 Things Lawyers Can Explain Better - Strategist





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While this list is by no means exhaustive, here are five things you should explain to clients to avoid potential confusion:

1. Explain How a Retainer Works.

Your ad might say that you work on retainer, and a client might nod his or her head to indicate he or she understands. But you'd be surprised at how many clients don't understand what this means. In order to prevent the client from getting upset in the future, explain your fee agreement, what a retainer is, and how it works. And brother (or sister), if you don't put fee agreements in writing, you've got bigger problems than this list can help with.

2. Explain What's Billable.

No, clients don't read the fee agreement and they don't understand what's billable. They need to be told that every time they call you, or you call them, that costs them money. Basically, nothing is free. Also explain the difference between attorneys' fees/costs and court costs, and how the client will be billed for each.

If you charge for an initial consultation, you absolutely have to make that clear. Don't rely on your website or something silly like that as putting the client on notice; if the client isn't actually informed about the fee agreement, that can be a pretty effective basis for a state bar complaint.

3. Explain When You're Available.

You're an attorney, not an answering service. Manage client expectations early and often by letting the client know that, no, you won't respond to a text in the middle of the night. Calls will be returned within a reasonable amount of time, so don't run to the state bar if your call isn't returned in a few hours. Maybe also explain why -- i.e., you have other clients. (This is also the time to point out that litigation takes time, so don't expect a quick turnaround.)

4. Explain the Fee Structure.

Think this list is heavy on fees? Good, because fees are among the top complaints clients have about lawyers. Explain what you charge for each thing, and then when the client asks, "Why are you so expensive?" you can politely remind him or her that you have multiple years of education and experience behind you, that's why.

5. Explain What Appropriate Court Attire Is.

No, clients don't necessarily know how to dress for court. And if witnesses or family members will be present in court, they too absolutely need to be told how to dress. (Think I'm kidding? Courtrooms in Alameda County, California, have signs on the doors telling visitors what they can't wear in the courtroom; this includes pajamas, sweatpants, and revealing tops. So no, clients don't automatically know how to dress.). x x x."

Catholic school wins versus BIR's Henares

See - Catholic school wins versus BIR's Henares





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The joint resolution was prompted by a clarification sought by St Paul College-Makati and a motion for reconsideration filed by the BIR assailing the ruling of the court last July that found RMO 20-2013 as violative of the Constitution.

Last year, the BIR issued RMO 20-2013 requiring non-stock, non-profit corporations and associations to secure tax exemption certifications from the BIR regional district offices where these are registered. The RMO covered educational institutions. (READ: Why the BIR is running after schools)

The memorandum was meant to enhance monitoring and plug loopholes in the tax system. Institutions that failed to apply and secure the tax exemption certificate would be stripped of their tax immunity.

While other schools decided to comply with the BIR order, St. Paul College-Makati refused to take it sitting down.

Challenging the BIR memorandum, the school argued the order was abusive and automatically strips other institutions of their tax-exempt status. De Leon initially issued a temporary restraining order and later a preliminary injunction on the challenged BIR memorandum. (READ:Catholic school wins Round 1 vs BIR’s Henares

Two days after the TRO was issued, the BIR issued Revenue Memorandum Circular 8-2014 which mandated banks to require corporations and institutions to present “valid, current and subsisting tax exemption certificate or ruling.” Failure on the part of these institutions to submit the tax exemption certificate would mean they are to be subjected to withholding taxes from interest in their deposits.

In July 2014, the court injunction became permanent after De Leon ruled that the BIR memorandum is contrary to Article XIV Section 4 of the Constitution. Article 14, Sec. 4(3) says, “all revenues, assets on non-stock, non-profit educational institutions used actually, directly and exclusively for educational purposes shall be exempt from taxes and duties.” The exemption is in recognition of the “complementary roles of public and private institutions in the educational system.”

Diminution of privilege

De Leon agreed with St Paul College-Makati that RMO 20-2013 is “unconstitutional as it imposes a prerequisite to the enjoyment by non-stock, non-profit educational institutions of the privilege of tax exemption…”

By imposing the prerequisites, and if not complied with by non-stock, non profit educational institutions, it will serve as a diminution of the constitutional privilege, which even the Congress cannot diminish by legislation, and thus more so by the Commissioner of the Internal Revenue who merely exercises quasi-legislative functions,” De Leon said.

Even as it won the case, St Paul College-Makati sought a clarification whether the ruling applies to other issuances by the BIR that appeared to implement the contested memorandum, particularly Revenue Memorandum Circular 8-2014.

This was opposed by the BIR, arguing that the school is, in effect, seeking an amendment of its petition. The BIR also filed a motion for reconsideration on the court’s adverse ruling.

But the judge could not be swayed.

In his joint resolution, De Leon clarified that the court order refers to other issuances by the BIR “which tend to implement RMO-20-2103..for otherwise said decision would be useless and would be rendered nugatory.”

He also junked the BIR’s motion for reconsideration for lack of merit.

Sabino Padilla III, lawyer for St Paul College-Makati, said the court’s ruling applies to all non-stock, non profit educational institutions, contrary to the position being held by the BIR that it is only applicable to the territorial juridisction of the Makati RTC.

“The Supreme Court however has long declared and settled that following Section 5, Article VIII of the 1987 Constitution, a regional trial court has jurisdiction to resolve the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. Accordingly, there is no doubt that the decisions in Civil Case No. 13-1405 apply to the four corners of the country,“ Padilla said. –Rappler.com. 

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Trust Accounting Basics — Lawyerist

See - Trust Accounting Basics — Lawyerist





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Managing trust accounts — handling other people’s money — is one of the most sensitive things lawyers do, and one of the most common sources of ethical violations. You must know the rules.

Common Rules

Every state has its own set of rules, but the basics that are common to most.

Opening a trust account: Check your state rules for details on how a trust account must be held. It probably needs to be held in the state (no matter your physical location) and bear certain words in the title of the account (such as “attorney-client trust account”). Follow the rules to the letter.

Receiving retainers: When a client provides you with an up-front retainer before fees are earned, immediately deposit it in your trust account. You may not put money received for unearned fees in any other place, including your firm’s operating account.

Withdrawing funds: As soon as you earn fees, take them out of your trust account. Funds held in the trust account belong to the client. Once earned those funds as fees, they no longer belong to the client and should be withdrawn. This does not mean you have to withdraw fees on a daily basis, but you do need to send out regular bills, and you should be withdrawing earned fees from the trust account each period. This should really be done monthly.

Receiving fees already earned: If a client’s bill exceeds the amount held in trust and the client pays the balance after the fees have been earned, then the check should not go into your trust account.

Disputed fees: If you are holding money in trust and you think you have earned fees that should be paid from that money, but you know that the client disputes your bill,do not take the fees out of the trust account. Any disputed fees must remain in your trust account until the matter is resolved. However, if some portion of the money held in trust is undisputed, you should take that portion out.

Consider this situation:

You receive $10,000 from the client as a retainer. You work for the client and generate an invoice with a balance of $8,000. Before you take funds out of trust to pay this invoice, the client calls and says they think your bill is too high, and that they only owe you $7,000.

You should immediately withdraw the $7,000 as undisputedly earned, but leave the $2,000 not-yet earned and the $1,000 disputed amount in your trust account until the dispute is resolved.

But what do you do when you have earned a fee, withdrawn the funds from trust to pay it, and then the client disputes the fee? In California, there is no rule that says you must return the now-disputed funds to trust. However, a recent unpublished decision of the State Bar Court Review Department stated that the attorney should have returned the funds to trust when the dispute arose, even though the funds had been undisputed at the time they were withdrawn. Absent clarification or a clear rule by your state that such an obligation exists, if this situation arises you should contact your ethics regulator to ensure compliance with your applicable rules.

Refunds: If the client demands return of money held in trust and you have no claim to the funds for fees, immediately return it. In the example above, the $2,000 not-yet earned should be immediately refunded upon demand.

Segregation of funds: The general attorney trust account is for relatively-small amounts from many clients. Even though the money is in one bank account, it belongs exclusively to the client who deposited it. This means that you cannot commingle the funds of one client with the funds of another, even though they are residing in one account. If a client provides you with $1,000 to hold to pay costs and his costs add up to $1,200, you may not “borrow” $200 from another client’s funds in the trust account to pay the bill.

Holding large sums: If one client gives you a lot of money to hold in your trust account (consider “a lot” to be an amount well in excess of the advance fees of your other clients), look at your state rules for opening a separate account for that client. You may be able to open a completely separate account where the client receives the interest on the funds held.

Getting Educated

Make sure you are educated on your state’s rules. Check your state bar or local bar association for training on trust accounting for your area. Some states offer a trust accounting class that is usually required if you have been brought up on an ethics violation relating to handling client funds, but it is also valuable preemptive education.

Consequences are Severe

The consequences for mistakes in trust accounting are severe. Ethics regulators tend to think attorneys have acted with moral turpitude rather than ignorance or confusion when a trust accounting violation occurs. Some states have standards that a trust account balance dropping below the amount that should be held for clients is deemed misappropriation. It is an uphill battle to show a lack of intent to misappropriate client funds, and the attorney’s defense is basically a showing that they lack skills and organization to manage their clients’ funds — not something most of us want to try to prove!

So get educated, know your states rules, and keep up with any changes in those rules. Set up a system of trust accounting to ensure ongoing compliance and avoid ethics charges.

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Megan Zavieh is a state bar defense attorney and general ethics counselor admitted to practice in California, New York and New Jersey. She was recently named to the Executive Committee of the Solo and Small Firm Section of the California State Bar. She runs a virtual law practice at zaviehlaw.com and blogs at California State Bar Defense. x x x."

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