Fiduciary nature of banking

See - http://sc.judiciary.gov.ph/jurisprudence/2012/june2012/180974.htm#_ftnref29

"x x x.

On a final note, Republic Act No. 8971, or the General Banking Law of 2000, recognizes the vital role of banks in providing an environment conducive to the sustained development of the national economy and the fiduciary nature of banking; thus, the law requires banks to have high standards of integrity and performance. The fiduciary nature of banking requires banks to assume a degree of diligence higher than that of a good father of a family.[39] In the case at bar, petitioner itself was negligent in the conduct of its business when it extended unsecured loans to the debtors. Worse, it was in serious breach of its duty as the trustee of the MTI. It was not able to protect the interests of the parties and was even instrumental in violating the terms of the MTI, to the detriment of the parties thereto. Thus, petitioner has only itself to blame for being left with insufficient recourse against petitioner under the assailed MTI.


x x x."

LACHES not present

See -  http://sc.judiciary.gov.ph/jurisprudence/2012/june2012/180974.htm

"x x x .

We shall first discuss the issue of laches.

Laches is defined as the failure or neglect for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier; it is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it.[24]  

In the case at bar, the RTC in Civil Case No. 00-942 held that laches attached when respondents allowed eight (8) years to pass before questioning the mortgage, which was constituted in 1990.  Thus, the trial court said:

As it appears now, the mortgage on the land and building of Centro was first constituted in 1990 in favor of [the] Bank of the Philippine Islands. Individual plaintiffs stated that discovery of the mortgage was “sometime in 1998”, (par. 6, Affidavit of Chongking Kehyeng). He was in the Board of Directors of Centro and he holds office at the fourth floor of the building on the mortgaged property. There is evidence that the holding of meetings of the Board of Directors was irregular and purely “reportorial”.

Considering that as shown by planitiffs’ evidence, conduct of business in Centro was informal, vigilance over its property was required from all individual plaintiffs, particularly plaintiff Chongking Kehyeng who sits in the Board of Directors. Periodic inquiries and verification of documents pertaining to corporate properties should have been done and the existence of the mortgage was verifiable. A simple inquiry about the status of the title, information on the title number and actual verification with the Register of Deeds – a task which can be accomplished in an hour or two –will provide information about the existence of the mortgage. None of the individual plaintiffs did this.

The inaction of the plaintiffs for which no explanation was submitted resulted in the acquisition of rights by the defendant Bank adverse to them. Such neglect, taken in conjunction with the lapse of time of about eight (8) years operates as a bar.[25]

A perusal of the TCTs[26] of the subject properties would reveal that only the values of the mortgage securing the loans totalling ₱144 million were annotated, based on the MTIs executed on 21 March 1990, 31 March 1993 and 28 July 1994. As for the last annotation, it only stated that petitioner was the successor-trustee to all obligations due to the creditors. Respondents, in their Complaint, did not question these mortgages constituted by the MTIs executed on 21 March 1990, 31 March 1993 and 28 July 1994, respectively. What they questioned was the additional loans granted to San Carlos after the execution of the 27 September 1994 MTI and the foreclosure of the mortgage resulting from the nonpayment of San Carlos’ obligations. Thus, contrary to the finding of the trial court, only four years had lapsed from the execution of the 27 September 1994 MTI when respondents questioned the mortgage allegedly constituted to cover these loans.

Furthermore, as mentioned earlier, the TCTs were not accordingly annotated to cover these additional loans. Also, the mortgage of the property securing all the loans were not disclosed in Centro’s financial statements for the years 1991 to 1998.[27] Thus, absent any proof that the individual respondents were notified of the stockholders’ meeting on 12 August 1994 or that they were present during the meeting, these respondents could not have been informed of the alleged additional loans and the corresponding mortgage constituted over the properties.

It cannot therefore be said that laches had attached and that respondents were already barred from assailing the MTI in 1998. We now proceed to discuss the validity of the challenged MTI.

The 18 August 1994 Secretary’s Certificate issued by Maria Jacinta V. Go reads as follo

x x x."

Questions of fact are beyond the coverage of a petition for review oncertiorari.

See - http://sc.judiciary.gov.ph/jurisprudence/2012/june2012/198402.htm

"x x x.

First, the petition raises questions of fact which are beyond the coverage of a petition for review oncertiorari.  The settled rule is that only questions of law may be raised in a petition under Rule 45 of the Rules of Court.  It is not this Court’s function to analyze or weigh all over again evidence already considered in the proceedings below, our jurisdiction being limited to reviewing only errors of law that may have been committed by the lower court.  The resolution of factual issues is the function of the lower courts, whose findings on these matters are received with respect.  A question of law which we may pass upon must not involve an examination of the probative value of the evidence presented by the litigants.[12]  This is in accordance with Section 1, Rule 45 of the Rules of Court, as amended, which reads:

Section 1.  Filing of petition with Supreme Court. – A party desiring to appeal by certiorari from a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari.  The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law, which must be distinctly set forth.  The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency. (Emphasis supplied)

          Significantly, Section 5, Rule 45 provides that the failure of the petitioner to comply with the requirements on the contents of the petition shall be sufficient ground for the dismissal thereof.  While jurisprudence provides settled exceptions to these rules, the instant petition does not fall under any of these exceptions.

          On the same ground that petitions under Rule 45 must not involve questions of fact, the petitioners’ prayer for this Court to admit what they claimed to be newly discovered evidence is hereby denied.  The Supreme Court is not a trier of facts, and is not the proper forum for the ventilation and substantiation of factual issues.[13]  While the Rules of Court allows the introduction by parties of newly-discovered evidence, as in motions for new trial under Rule 37, these are not to be presented for the first time during an appeal.  In addition, the term “newly-discovered evidence” has a specific definition under the law. Under the Rules of Court, the requisites for newly discovered evidence are: (a) the evidence was discovered after trial; (b) such evidence could not have been discovered and produced at the trial with reasonable diligence; and (c) it is material, not merely cumulative, corroborative or impeaching, and is of such weight that, if admitted, will probably change the judgment.[14]

          The two documents which the petitioners seek to now present are not of this nature.  Undeniably, the CENRO Certification and cadastral map annexed to the petition could have been produced and presented by the petitioners during the proceedings before the court a quo.  Further to this, the petitioners’ purpose for submitting the said documents is only to prove that the disputed property is a foreshore land that should have been declared owned by the State.  Thus, even granting that the documents may be admitted at this stage, the certification and cadastral map fail to support the petitioners’ claim of ownership over the disputed property.  On the contrary, these documents only negate their claim of ownership and better right to possess the land because foreshore land is not subject to private ownership, but is part of the public domain.  In Republic of the Philippines v. CA,[15] we thus held:

            When the sea moved towards the estate and tide invaded it, the invaded property became foreshore land and passed to the realm of the public domain.  In fact, the Court in Government vs. Cabangis annulled the registration of land subject of cadastral proceedings when the parcel subsequently became foreshore land.  In another case, the Court voided the registration decree of a trial court and held that said court had no jurisdiction to award foreshore land to any private person or entity.  The subject land in this case, being foreshore land, should therefore be returned to the public domain.[16] (Citations omitted)

We note that not even herein petitioners, but the Republic of the Philippines, is the real party in interest that is allowed to pursue such claims against lands of the public domain.[17]

            All told, this Court finds no justification to depart from the factual findings of the trial and appellate courts.  The petitioners failed to present any cogent reason that would warrant a reversal of the decision and resolution assailed in this petition.

x x x."

Cleanse the Judiciary | Inquirer Opinion

Cleanse the Judiciary | Inquirer Opinion

"x x x.

Now that Rene Corona is removed from his office through a process meriting keen public attention and opinion, and celebrated by most Filipinos as one singular achievement that drew global approval, we have to remember that the majority of the Supreme Court still sits as before, less one member. We also have to remember that the judiciary, the very practice of the legal profession, is not any less suspect as pliant, if not supportive, to the exercise of corruption. The impeachment trial of Rene Corona revealed the partisanship of the Judiciary, and the silence of most lambs in the legal profession. Many justices, judges and lawyers, including court employees openly supported Corona. They should understand that the vast majority of Filipinos, not less than 70%, who condemned Corona from the very beginning, condemned them as well.

Where, then, will reform in the judiciary come from? Who will be the first brave ones? Who among the thousands of judges and lawyers will speak and reach out to their colleagues, to their companeros, to begin an earnest and transparent move to cleans, not so much their ranks, but their values?  Who will begin to preach that justice is more primal than law, that justice is, in fact, the only reason why there is a course and profession called law? Justice cannot be overtaken in value by legal form and language, only enhanced and strengthened by them. Justice must be a guarantee for all Filipinos, not a favor. Justice must be constant, never fickle.

How, then, will the people, beginning with the poor and the lowly, the weak and the marginalized, believe that they, too, are entitled to justice as much as their richer or more powerful counterparts in Philippine society? P-Noy cannot make this happen—only Justices, judges and lawyers can. P-Noy can crack the whip, but justice is not his alone to dispense, not in a democracy. Justice is a collective value and its primacy in our society must be a collective decision. And the judiciary is tasked most of all to lead the charge, so to speak.

The next Chief Justice need not be the wisest among legal minds, not even the most incorruptible, but the one who will set reform in the Judiciary as his or her most urgent crusade. It can only be the relentless pursuit of reform from within that can slowly build a new hope in people, build a new faith that justice, indeed, is the right of all Filipinos.

Let not change in the judiciary be triggered by force or intimidation, even if such comes from the people themselves. It is not hate that drives Filipinos to seek change, it is pure aspiration. Let hope, then, stoked by sincere efforts for reform from the inside, lead us all in a journey to our promised land where justice is the first of all guarantees.

x x x."

SC rules Pres. Aquino can appoint next chief justice » Nation » News | Philippine News | philstar.com

SC rules Noy can appoint next chief justice » Nation » News | Philippine News | philstar.com

"x x x.

MANILA, Philippines - The Supreme Court (SC) ruled Thursday that President Benigno Aquino III has the authority to appoint the next chief justice and that the most senior justice of the high court can sit as chairman of the Judicial and Bar Council (JBC) in case of vacancy.

In a seven-page resolution, the SC en banc denied a petition seeking to stop the JBC from convening since there is vacuum in the position of chief justice who shall sit as chairperson of the JBC.

It dismissed the petition of taxpayer Famela Dulay for lack of merit and legal standing to pursue the case for she is not directly an affected party.

The SC said that the President can appoint the next chief justice following the letters of the 1987 Constitution, particularly Section 9 of Article VIII.

"...the phrase 'Member of the Supreme Court' was repeatedly used to refer not only to the Associate Justices of the Supreme Court but includes the Chief Justice. Thus, in Section 9 of the same Article VIII on the appointment of Justices and Judges, the phrase 'Members of the Supreme Court' clearly refers to the fifteen justices of the Court -- one Chief Justice and fourteen Associate Justices -- who are within the appointing power of the President," the SC resolution said.

The SC cited the case of Vargas v. Rilloraza which was decided under an older Constitution of the Philippines which states that "there can be no doubt that the Chief Justice and the Associate Justices required xxxxx to compose the Supreme Court are the regular members of the Court."

It also dismissed the argument that the JBC can only be chaired by the incumbent chief justice and no one else.

"We likewise do not agree with petitioner that the JBC can only be headed by the incumbent chief justice and no other. The petitioner, in effect, argues that the JBC cannot perform its task without an incumbent chief justice. To follow this logic would lead to an eventuality where a vacancy in the Judiciary will not be filled if a vacancy occurs in the JBC. We can likewise infer from this argument that if the Office of the Chief Justice is vacated, the same will not be filled because there will be no incumbent Chief Justice to act as Chairman of the JBC," the SC said.

It said that the principal function of the JBC is to recommend appointees to the Judiciary and "it cannot, therefore, be compromised only because the constitutionally-named Chairman could not sit in the JBC."

"Although it would be preferable if the membership of the JBC is complete, the JBC can still operate to perform its mandated task of submitting the list of nominees to the President even if the constitutionally named ex-officio Chairman does not sit in the JBC. This intention is evident from the exchanges among the Commissioners during the deliberations of the Constitutional 

Commission of 1986," the SC said.

It said that they must not be deprived of their representation since the most senior justice of the High Court, who is not an applicant for the Chief Justice post can preside over the JBC proceedings.

"Considering, however, that complete membership in the JBC is preferable and pursuant to its supervisory power over the JBC, this court should not be deprived of representation. The most senior justice of this Court who is not an applicant for the position of chief justice should participate in the deliberations for the selection of nominees for the said vacant post and preside over the proceedings in the absence of the said constitutionally named Ex-Officio Chairman," the SC added.

x x x."

On De Lima as new CJ - Emil Jurado

Two years, <br />no change


"x x x.

I must give credit to Secretary of Justice Leila de Lima for her unabashed sense of self-importance in accepting her nomination as Supreme Court chief justice.

De Lima knows she will not be accepted by insiders of the Supreme Court for defying a temporary restraining order on a watch-list order she had issued to prevent former President Gloria Macapagal Arroyo from leaving the country.

Still, de Lima claims she is fit to lead the Judiciary, which is supposed to be an independent branch of government.

I am flabbergasted when I think about the fact that she consulted the appointing power, President Noynoy Aquino, before she accepted her nomination.  Why would she do that? Is that her version of independence and probity?

But as I said, there should be no surprises under President Aquino.

***

x x x."

Piece-meal justice

Piece-meal justice


"x x x.

Thou shalt not ration justice,” is a commandment, “if we are to keep democracy,” United States federaljudge Learned Hand wrote before his death in 1961.

Here, “21 percent of trials take two to five years to finish, and 13 percent take more than five years,” Acting Supreme Court Chief Justice Antonio Carpio told a Central Luzon convention of the Integrated Bar. “There has to be a sea change… Judicial reform is simply too important to fail.”

Carpio pitched his address to an audience beyond the Integrated Bar of the Philippines: a nation scrambling to close the gap left by impeachment of its 23rd chief justice. The Senate fired Renato Corona by a 20-to-3 vote. It nailed the “capo” for stashing unreported dollars while fiddling with the Statement of Assets Liabilities and Net Worth.

The unsaid context were decisions by the Corona court that rationed justice. Crammed with justices handpicked by president Gloria Macapagal-Arroyo, the Corona majority served as bouncers for GMA’s interests, claim critics. Theyinclude President Benigno Aquino III. .

The Arroyo majority stitched a legal fig leaf for the “midnight appointment”of Corona, papered over Rep. Dato Arroyo’s gerrymandering in Camarines, then rammed through a temporary restraining order that would  have allowed Arroyo to flee. Now in hospital detenton, GMA denies charges of plunder and election sabotage.

Serial skewed decisions by the Arroyo justices eroded the Court’s moral high ground. Among others, these included repeated flip-flopping of 16 towns into cities to paralysis on the Philippine Airlines flight attendants and stewards case. It murmured “Amen”as Eduardo Cojuangco pocketed P16.2 million in San Miguel Corp. shares, funded by coco farmers levies. “The biggest joke to hit the century,” snapped then justice Conchita Carpio-Morales.

Carpio’s program jumpstarts the stalled Judiciary Reform program initiated by Chief Justice Hilario Davide. These include (a) case decongestion, (b) integrity and independence of judges, (c) compensation of judges, court administration, and training (d) Transparency and accountability. “Clean-house” measures, instituted the day after impeachment, underpin this road map for the future.

“Sunlight is the best disinfectant,” counseled Justice William O. Douglas, who served longest (almost 37 years) in the US Supreme Court. On his first day as acting chief justice, Carpio prodded once reluctant justices to direct judges: Disclose SALNs “as mandated by the Constitution and the law.”

It helped that Carpio opened his SALN long before the Corona conviction. “The Supreme Court has done this as part of the lessons learned from the recent impeachment tria,” he said. “Leaders of the judiciary must lead by example.”

Post on the Court’s website what were once kept hush-hush, Carpio directed. At the click of a computer mouse, you can surf today what former senator Rene Saguisag and researchers were repeatedly denied access to: reports on the Judiciary Development Fund and Special Allowance for Judges, plus those by the Commission on Audit.

“This is really a no-brainer since all these are public documents,” Carpio explained. “This is part of the new transparency and accountability policy.”

x x x."

Estafa

We are sharing the jurisprudence part of a pleading our law office filed in an Estafa case for legal research purposes of our readers.


"x x x.

  

OPPOSITION

(In Re: MOTION FOR RECONSIDERATION,

Dated June 18, 2012, Filed by the Accused/Respondent x x x.)

            THE COMPLAINANT x x x  , by counsel, respectfully states, by way of OPPOSITION to the MOTION FOR RECONSIDERATION of respondent x x x:

1.     The accused had been ARRAIGNED by RTC Branch 204 Muntinlupa City on June 27, 2012 in the presence of the Public Prosecutor assigned thereat. This fact can be easily confirmed by this Honorable Office with the said Public Prosecutor assigned at the said Branch and with the said Court itself.

The arraignment of the accused renders MOOT AND ACADEMIC her pending motion for reconsideration with this Honorable Office. It must therefore be DENIED.

X x x.

4.        In the case of LIBERATA AMBITO,  BASILIO AMBITO, and CRISANTO AMBITO vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, G.R. No. 127327, February 13, 2009, it was held that in the prosecution for Estafa under Article 315, paragraph 2(a) of the RPC,[1] it is indispensable that the element of deceit, consisting in the false statement or fraudulent representation of the accused, be made prior to, or at least simultaneously with, the delivery of the thing by the complainant; and that false pretense or fraudulent act must be committed prior to or simultaneously with the commission of the fraud, it being essential that such false statement or representation constitutes the very cause or the only motive which induces the offended party to part with his money.

5.        In PEOPLE OF THE PHILIPPINES vs. VIRGINIA BABY P. MONTANER, G.R. No.  184053, August 31, 2011, the accused was convicted for the crime of Estafa as defined and penalized under paragraph 2(d), Article 315 of the Revised Penal Code. The Information alleged that on or about May 17, 1996 in the Municipality of San Pedro, Province of Laguna and within the jurisdiction of this Honorable Court accused Virginia (Baby) P. Montaner did then and there willfully, unlawfully and feloniously defraud one Reynaldo Solis in the following manner: said accused by means of false pretenses and fraudulent acts that her checks are fully funded draw, make and issue in favor of one Reynaldo Solis ten (10) Prudential Bank Checks, all having a total value of FIFTY THOUSAND PESOS (P50,000.00) and all aforesaid checks were postdated June 17, 1996 in exchange for cash knowing fully well that she has no funds in the drawee bank and when the said checks were presented for payment the same were dishonored by the drawee bank on reax x x of “ACCOUNT CLOSED” and despite demand accused failed and refused to pay the value thereof to the damage and prejudice of Reynaldo Solis in the aforementioned total amount of P50,000.00. In the said case, the prosecution sufficiently established appellant’s guilt beyond reax x xable doubt for estafa under paragraph 2(d), Article 315 of the Revised Penal Code.  According to Solis’s clear and categorical testimony, appellant issued to him the 10 postdated Prudential Bank checks, each in the amount of P5, 000.00 or a total of P50, 000.00, in his house in exchange for their cash equivalent.  From the circumstances, the Court held that it was evident that Solis would not have given P50, 000.00 cash to appellant had it not been for her issuance of the 10 Prudential Bank checks.  These postdated checks were undoubtedly issued by appellant to induce Solis to part with his cash.  However, when Solis attempted to encash them, they were all dishonored by the bank because the account was already closed. Solis wrote appellant a demand letter dated October 13, 1996 which was received by appellant’s husband to inform appellant that her postdated checks had bounced and that she must settle her obligation or else face legal action from Solis.  Appellant did not comply with the demand nor did she deposit the amount necessary to cover the checks within three days from receipt of notice.  This gave rise to a prima facie evidence of deceit, which is an element of the crime of estafa, constituting false pretense or fraudulent act as stated in the second sentence of paragraph 2(d), Article 315 of the Revised Penal Code.

6.        In the case of BETTY GABIONZA AND ISABELITA TAN, PETITIONERS, VS. COURT OF APPEALS, LUKE ROXAS AND EVELYN NOLASCO, RESPONDENTS, [G.R. No. 161057, September 12, 2008], it was held that “to be clear, it is possible to hold the borrower in a money market placement liable for estafa if the creditor was induced to extend a loan upon the false or fraudulent misrepresentations of the borrower”; that “such estafa is one by means of deceit”; that “the borrower would not be generally liable for estafa through misappropriation if he or she fails to repay the loan, since the liability in such instance is ordinarily civil in nature”, except when deceit is present, of course. Thus:

“x x x.

This analysis is highly myopic and ignorant of the bigger picture. It is one thing for a corporation to issue checks to satisfy isolated individual obligations, and another for a corporation to execute an elaborate scheme where it would comport itself to the public as a pseudo-investment house and issue postdated checks instead of stocks or traditional securities to evidence the investments of its patrons. The Revised Securities Act was geared towards maintaining the stability of the national investment market against activities such as

those apparently engaged in by ASBHI. As the DOJ Resolution noted, ASBHI adopted this scheme in an attempt to circumvent the Revised Securities Act, which requires a prior license to sell or deal in securities. After all, if ASBHI's activities were actually regulated by the SEC, it is hardly likely that the design it chose to employ would have been permitted at all.

x x x.

It is ineluctable that the DOJ Resolution established a prima facie case for violation of Article 315 (2)(a) of the Revised Penal Code and Sections 4 in relation to 56 of the Revised Securities Act. X x x

X x x.”

WHEREFORE, premises considered, it is respectfully prayed that motion for reconsideration of the respondent/accused be DENIED for lack of merit.

            Las Pinas City, July 2, 2012.

LASERNA CUEVA-MERCADER

LAW OFFICES

Counsel for the Complainant

Unit 15, Star Arcade. C.V. Starr Ave.

Philamlife Village, Las Pinas City 1740

Tel. No. 8725443; Fax No. 8462539.

---

[1] Art. 315. Swindling (estafa). – Any perx x x who shall defraud another by any of the means mentioned herein below . . .

x x x

2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:

(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits.  

STARTING A LAW FIRM How Much it Really Costs to Start a Law Firm by SAM GLOVER on JUNE 22, 2012

See -  http://lawyerist.com/how-much-it-really-costs-to-start-a-law-firm/?utm_source=twitterfeed&utm_medium=facebook&utm_campaign=Feed%3A+solosmalltech+%28Lawyerist%29&utm_content=FaceBook


"x x x.

A few years ago, I wrote a post I titled Start a Solo Law Practice for Under $3,000. Boy, do I regret that title. Starting a law firm is a relatively inexpensive endeavor, but picking an arbitrary number and trying to stick to it is wrong-headed. I’ve met plenty of lawyers who have done just that, and many of them have struggled to keep their practices afloat — or failed — as a result.

Don’t let that happen to you.

It really doesn’t need to cost a lot to start a law firm. In theory, all you really need is access to a computer, a printer, and a law library. In reality, there are a few more things you’ll need. And if you don’t plan accordingly, you are going to run into expenses you didn’t expect, probably at the least-opportune moment.

When you set an unrealistic upper limit to your spending, though, you set yourself up for failure. This is especially true if, like many new lawyers, you are starting a law firm out of desperation, not because it is what you really want to do. When you are struggling to pay the bills every month, it becomes easier to rationalize bad decisions, like taking a red-flag client or dipping into your trust account to help you float some checks.

When it comes to outfitting a law practice, it doesn’t pay to pinch pennies. Figure out what you need, then figure out how to pay for it. If you can’t get what you need, don’t start a practice.

So what do you need?

The practical minimum

As a practical matter, you’ll need a bit more than I listed in my post. While it is theoretically possible to meet with clients at coffee shops, draft briefs on the display models at an Apple store, and do research at the law library, you won’t be doing your clients or yourself any favors.

Here’s what I consider the practical minimum:

Office & supplies

• Office
• Furniture
• Office supplies

A serious lawyer needs an office. You need a place to meet with clients, first of all, and the best place to meet with clients is your office. It really does make a difference, both to your clients and your productivity, to meet at your office instead of at a coffee shop. Sharing space with other lawyers can be a great way to have mentors on hand, or at least sounding boards. Officemates often make reliable referral sources, too. And an office is usually relatively free of distractions, at least compared to your couch or a coffee shop.

There are a lot of options, here, from a spare bedroom or basement corner to an office presence options to actually renting your own space. It’s okay to start out working from home, but unless you have a solid plan for running a virtual law practice, you should plan to rent a real office 6–12 months after you launch your practice.

While I strongly recommend getting an office, it is true that plenty of good, successful lawyers work from home. In order to decide what will work best for you, I suggest you spend some time meeting with lawyers who work at home, at an office, and everything in between.

With an office, you’ll obviously need some furniture. Don’t get crap. If I had to guess, I’d say 9 out of 10 solos have no design sense and no business shopping for their own furniture or decorating their own offices.

You don’t need to hire an interior designer — although it wouldn’t hurt — just find someone with decent style to help you pick out some professional-looking furniture and decorate your office. You don’t need to spend a fortune; just set a budget and get some furniture that makes you look good.

Finally, you will need some office supplies, like manila folders and paperclips. Buy what you need. (Oh, and if you litigate, track down some exhibit labels before you need them.)

Professional expenses

• Licensing
• Continuing legal education
• Malpractice insurance
• Memberships

Licensing is not optional. Neither is continuing legal education, whether or not your state requires it. Budget for these expenses.

Some lawyers decide to go without malpractice insurance. I don’t recommend it. It is a lot easier to sleep at night knowing that, if you do screw something up, you will be covered. Don’t simply get the cheapest insurance, either. If you can, ask around to find out whether the insurer can be trusted to actually help you when you need it.

When you settle on your practice area, if you haven’t already, you should budget for membership in an organization (or two) that serve your niche. You should also budget for at least one conference each year. Conferences are often valuable sources of substantive knowledge, strategy, and inspiration.

Hardware

• Computer
• Backup drive
• Document scanner
• Printer
• Phone

For your basic hardware and software needs, my New Solo Technology Shopping List: the Basics is a good starter guide, but I’ll reiterate here.

Get a good computer. It’s hard to go wrong with Apple, Lenovo, or Dell, for laptops or desktops. (For Lenovo and Dell, stick to the business lines, not the consumer lines.) Laptops are much more versatile, obviously, but the choice between laptop and desktop is down to personal choice and how you like to work. My top recommendation is a 13″ Macbook Air and an external monitor.

External hard drives make for easy (and cheap) backup. Get one. The Western Digital WD Elements drives are cheap and reliable. If you have a Mac, it’s hard to beat a Time Capsulefor wireless backup. Or you could get an ioSafe for near-indestructible backup.

A decade ago, you would get a copier. Now, you are much better off with a document scanner and printer. For a scanner, I still recommend the Fujitsu ScanSnap S1500. Nothing else comes close to its simple ease of use. For a printer, any workgroup laser printer will do. I generally stick with HP LaserJet printers, because they print well and last forever.

You have a lot of options for a phone these days. Many solos just use their mobile phone. That works, but I think it is a better idea to get a separate phone number for your firm. A separate number means you can easily direct it to a receptionist, if you ever need to, or sell it with your practice, if you want to.

To get a phone number, you can obviously go through the phone company, but Google Voice, Skype, Vonage, and Ring Central are all good, popular alternatives that offer increased functionality.

Software & services

• Email
• Calendar
• Document creation
• Remote backup service
• Accounting software
• Timekeeping and billing software
• Legal research
• Internet

For email and calendar, the Google Apps suite is still best, and for $50 per year, a bargain. If you want to use Microsoft Outlook, go ahead; Google Apps Sync plugs right in. Microsoft Office 365 also looks like a good option for Windows users.

While Microsoft Office remains the standard for creating and editing documents, there are other options, including Apple iWork, WordPerfect, LibreOffice, Google Drive, and Office 365. If you regularly need to share editable documents with others, then get Microsoft Office. Nothing else will be fully compatible, so you might as well get what nearly everyone uses. If you don’t anticipate sharing documents very often, get what you like.

Backing up to an external hard drive is not enough, especially if you are paperless to any degree. You should have at least two redundant backups in at least two different locations. If your office burns down (with your computer and backup drive in it), you will need a backup to your backup. Fortunately, remote backup is simple, secure, and cheap. Right now, you can’t beat CrashPlan for all three.

Neither accounting software nor timekeeping and billing software are strictly must-have. However, keeping your books on paper and doing your timekeeping and billing with spreadsheets is incredibly time-consuming, and often prone to error.

For accounting software, just get QuickBooks Pro. All bookkeepers and accountants are comfortable with QuickBooks, and it is solid software.

For timekeeping and billing, I haven’t found anything better than Freshbooks. It is easy to use, and nearly makes timekeeping and billing pleasant. Plus, it will grow (to a point) with your firm, if you do grow.

You don’t have to pay a lot for legal research. Most law libraries include Lexis or WestLaw access with membership. Many bar associations include Fastcase for free. There is alsoGoogle Scholar. What you need depends on your practice. If you do a lot of litigation in different practice areas, you probably want a premium service. If you have a narrow practice and you have good, frequently-updated treatises on hand, you might be fine with Google Scholar. Get what you think you need, here, but beward of the long-term contracts Lexis and WestLaw usually demand.

Finally, you obviously need an internet connection. Get a good, fast one, especially if any of your software is cloud-based.

Marketing

• Networking
• Website
• Advertising

Budget for marketing. At a minimum, plan to be social. Give yourself a breakfast/coffee/lunch/happy hour budget, and spend a lot of time doing those things with people (i.e., networking).

Get a website — a good one. Don’t worry about search engine optimization, apart from making sure your website shows up when you search for your name. It’s more important for your website to (1) be good-looking, (2) have your contact information, and (3) have a good picture of you on it. Like your office decor, don’t do this yourself. Hire someone competent.

Finally, you might want to jump-start your practice by advertising. If you do decide to advertise, Google AdWords is probably the most cost-effective way to do it. It is easy to get started with AdWords, and you can control your costs.

There are a lot of other things you can do to market your firm. Budget accordingly.

It is going to cost more than $3,000 to start a law practice

I haven’t added up everything I just listed, but I am confident that it adds up to more than $3,000. I’m equally confident that this is not all you will need (or want) as you get your practice off the ground.

In order to represent clients and run a business, you have to have some things, and those things cost money. The amount of money they cost is not important. If you need them, you need them. You just don’t get to decide that, hey, legal research is too expensive, so you aren’t going to do any. Or elect not to buy filing supplies because a stack of loose paper is cheaper.

In my article, I acknowledged that $3,000 is a starting point. $5–15,000 is more realistic, but it will depend on location, practice area, and many other variables.

The bottom line is this: When you start a practice, you are going to spend a lot of money. Spending this money is not optional. You have to spend this money to do a good job, and if you don’t do a good job, you won’t make any money. So get what you need.

x x x."

JURIST - Paper Chase: UK court rules police cannot retain records of innocent people

JURIST - Paper Chase: UK court rules police cannot retain records of innocent people

"x x x.

[JURIST] The UK High Court of Justice[official website] on Thursday ruled[Judgment, PDF] that retaining photographs and other materials of an innocent suspect should be prohibited. The two-judge panel in London's High Court held that the current policy of the Metropolitan Police Service(MET) [official website] unjustifiably interfered [Guardianreport] with an individual's right to respect for his private life guaranteed under article 8(1) of the European Convention on Human Rights [text, PDF]. The decision came in the ruling of two consolidated cases of RMC and FJ whose identities were not revealed. RMC had been arrested for suspicion of assaulting a community officer who stopped her for cycling on the footpath. The Crown Prosecution Service [official website] however, never pressed charges against her even after obtaining fingerprints, DNA and photographs from her. After the incident, RMC asked the MET to destroy the materials, but it refused. The second case of FJ involved a rape allegedly committed by FJ. The same records were obtained from the 12-year-old boy, but he was released after a third party witness did not confirm an offense taken place. FJ's request to destroy the records was also denied. Lord Justice Richards, sitting at London's High Court with Justice Kenneth Parker, noted that the unlawful policy should be changed within months, not years, with the exception that retention of such materials should be allowed so long as they are "necessary and proportionate to the purpose it serves." The Equality and Human Rights Commission [advocacy website] which intervened in the test case welcomed Thursday's decision.

In 2010, the UK was found to be in violation [JURIST report] of Article 8 of the European Convention on Human Rights when they stopped two individuals under theTerrorism Act 2000 [text]. In 2008, the European Court of Human Rights (ECHR) [official website] found [JURIST report] that Finland violated the same article for failing to provide a legal framework to protect the applicant's rights when his privacy was invaded by a personal ad with sexual connotations that was posted on the Internet without his knowledge.

x x x."

JURIST - Paper Chase: UN official: US drone strikes are potential war crimes

JURIST - Paper Chase: UN official: US drone strikes are potential war crimes

"x x x.

[JURIST] The UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions [official profile] continued to criticize US drone strikes on Thursday, saying that in some cases the attacks may constitute war crimes. In addressing the20th Session [materials] of the UN Human Rights Council on Thursday, Christof Heyns said the drone strikes put innocent civilians at risk [UPI report] and set a dangerous international precedent. Heyns presented hisreport [text, PDF; JURIST report] to the council in Geneva on Tuesday, asking the US to clarify its policy of targeted killing of terrorism suspects through raids and unmanned drone strikes. He noted that the US government has failed in the past to provide a comprehensive explanation of its drone-attack policy, including a justification under international law, which generally requires that governments make an effort to arrest a suspect first. He also asked the US how it calculated the risk to civilians, noting that an estimated 20 percent of deaths from targeted killings in Pakistan were civilians. Later, Heyns told reporters outside the meeting that he did not believe [JURIST report] the US adequately addressed his key concerns. A representative of the American Civil Liberties Union[advocacy website] also addressed the council [press release] in regards to US drone strikes, urging the UN to question the legal basis for the attacks.
The legality of drone strikes has been a controversial issue in recent months. UN High Commissioner for Human Rights Navi Pillay declared on Friday that US drone strikes in Pakistan raise grave legal concerns [JURIST report] under international law. Pillay expressed particular concern that the drone strikes do not comport with the international law principles of proportionality and distinction. In October, JURIST contributing editor Jeffrey Addicott asserted[JURIST op-ed] that the CIA drone strike in September[JURIST report] that killed senior al Qaeda leader and US citizen Anwar al-Awlaqi was legal under the law of war. Prior to the drone strike that killed al-Awlaqi, the Obama administration issued a memorandum [JURIST report] justifying the legality of such an action. In August, JURIST guest columnist Laurie Blank argued [JURIST op-ed] that the US government's claim that drone strikes in Pakistan have caused zero civilian casualties belied serious concerns about American interpretation and adherence to the laws of war.

x  x x."