The Chronicles of Law Profession

There are no accounts of when exactly the legal profession flourished. However, history says that long before the Common Era, people depended on individuals who were knowledgeable of their laws to defend their arguments in courts when they got into conflicts with others. These law experts and defenders are those who have emerged today as lawyers or attorneys.

When we speak of laws, it does not necessarily mean that we should only tackle those rules and regulations set by the authorities. Dealing with it implies understanding the concepts of justice, human rights and responsibilities to others and most especially the accepted rights and wrongs in the society. It is therefore more precise to think of law as the application of principles that are assumed just and appropriate in a specific dealing or situation.

Today, we may say that the legal professionals are segregated in their particular line of specialization since a single lawyer may not have the capacity to focus his attention in all the broad issues defining law practice. Some of the major areas of law are:

o International law

o Constitutional law

o Criminal law

o Cyber law

o Business law

o Labor law

o Family law

o Immigration law

o Intellectual Property law

o Military law

o Maritime law

o Statutory law

o Social Security law

o Tort law

o Taxation law

These laws are subdivided into even more specific terms to address a particular concern of an individual or entity. This listing also signifies the intricate and all-encompassing aspect of human laws that has been utilized to set a standard on how the citizens should act in a certain state or society.

Aside from this list, lawyers concentrate on their practice depending on their preferences and particular skills. For example, legal professionals who are quite at ease with articulating themselves in public and have that exemplary talent in thinking and responding to certain issues promptly and suitably are well fitted to be trial lawyers. Like any other legal field of specialization, this also involves lots of paper works, investigative tasks and strategic planning.

On the other hand, some lawyers focus their attention in assisting the injured victims of accidents, malpractice or negligence in filing their charges against the offenders. Hence, they provide their services to recover suitable damages from the defendants or the insurance companies.

Lawyers specializing in the criminal law are those who either prosecute or defend their clients in the courtroom. Yet, they handle cases that involve not just monetary considerations if proven guilty but also stricter penalties such as community service, imprisonment and even death sentence.

Nevertheless, lawyers are not tasked by the society to design, create and implement the laws. Their main obligation and duty is more on applying the laws – to ensure that the clients will be properly guided and represented on their particular legal concerns or cases. This will explain their vital role in upholding justice and fairness in the society.

Finally, the extensive studies and trainings that lawyers undergo before they actually exercise their profession make them worthy of such recognition. Besides, the fact that they were able to pass the strict standards of the government agencies and the American Bar Association in issuing professional licenses is enough to establish their credits to perform their jobs.

Private Law – Basics and Company Law

What is law?

Law can affect many aspects of our lives yet most people living in England and Wales have little understanding of the legal system that operates in these two countries. For many their main awareness comes from newspaper articles with headlines such as Murderer jailed for life, Burglar caught in the act, Young offender goes free. This type of headline appears so frequently that it is not surprising that, when law is mentioned, many people only think of the criminal law and the courts that deal with this type of case. In reality, the law covers an enormous range of situations and the legal system in England and Wales has a variety of courts and methods for dealing with different types of cases.

International & National Law

International law is concerned with disputes between nations; much of this law comes from treaties which have been agreed by the governments of the countries. National Law is the law which applies within a country: Each country will have its own national law and there are often wide differences between the laws of individual countries. This can be shown by the fact that Scotland has its own law and legal system which are quite separate from the law and legal system which operates in England and Wales. For examples, while serious criminal cases are tired my jury in both systems, the Scottish jury has 15 members and the decision can be made by a simple majority of 8-7. In contrast, the jury in England and Wales has 12 members, at least 10 of whom must agree on the decision.

Public and Private law

Within national law there is usually a clear distinction between public and private law. Public law involves the state of government in some way, while private law is concerned with disputes between private individuals or businesses. Both public and private law can be sub-divided into different categories.

Company Law

Company law is very important in the business world: It regulates how a company should be formed, sets out formal rules for running companies, and deals with the rights and duties of shareholders and directors. Employment law covers all aspects of employment from the original formation of a contract of employment to situations of redundancy or unfair dismissal. As well as these areas of private law, there are also laws relating to land, to copyright and patents, to marine law and many other topics, so it can be seen that civil law covers a wide variety of situations.

Employment

Like any business, staff are needed to keep the business alive. But what happens when this gets ugly and termination of contracts come into the picture? This is an area in law where alternative dispute resolution has long been used in the shape of ACAS (Advisory Conciliation and Arbitration Service). When any claim is filed at an employment tribunal, a copy of that claim is sent to ACAS who will then contact the two parties involved and offer to attempt to resolve the dispute without the need for the matter to go to a tribunal. ACAS has specially trained conciliation officers who have a great deal of experience of employment disputes.

Juvenile Crimes and the Criminal Justice System

Juvenile law is an area of criminal law that deals with persons not of age being held responsible for criminal acts. Family court deals with juvenile delinquency. Unlike the criminal justice system which punishes adult offenders, the primary goal of the juvenile justice system is seeking rehabilitation. While juveniles under the age of 16 may be accused of the same crimes as an adult, with few exceptions, these cases are handled in family court. The court will consider more than just the crime involved, but will look at a juvenile’s family circumstance and school records and take all these matters into consideration in formulating an appropriate disposition.

The most common charges filed against juveniles are robbery, assaults, drug abuse, vandalism, burglary, petit larceny. Penalties for juvenile crimes can result in incarceration at a juvenile detention facility, a rehabilitation facility, probation, community service or an adjournment on contemplation of dismissal. If the defendant rejects a disposition, he certainly has the option of a trial. In the family court, there are no juries. The judge decides innocence or guilt and then rules accordingly.

A child who is charged with committing a crime, with habitual truancy or with incorrigibility comes within the jurisdiction of the juvenile delinquency court. The purpose of the Juvenile Delinquency Court is to protect the child, give guidance, punish children who commit delinquent acts and to protect the community.

The legal process begins after the initial arrest of the individual. Arresting officers may allow the child to go home to the parent, refer the child to a community agency or require the child to return to the Police Department or Probation Department. On many occasions, they give the parent and child a notice to appear in court or detain the child in Juvenile Hall or “In Custody.” Under certain circumstances these will vary, depending on the probation officer. During this time, based on the severity of the situation, parents seek professional legal assistance of an attorney who has experience with these legal matters.

Whether your child is facing a misdemeanor or felony charge, it is imperative to retain an attorney who is experienced with juvenile offenses and who will protect the legal rights of your child and explain your rights as a parent. After all, your child’s future is on the line. A competent attorney can guide you through the criminal justice system and actively deal with the situation.

A Short Guide to Finding a Great Attorney

If you’ve found yourself in the difficult and scary position of being accused of a crime and getting ready to face a trial, then you’ve certainly thought about getting excellent legal representation for yourself. This is the very best thing you can do to defend yourself when you have a side of the story to tell. Know that there are experts out there who specialize in cases just like yours and who can make the trial process as easy as possible while lessening the nerve-wracking portion as much as possible.

The first thing to do is find an attorney, right? An easy thing to say, but not so easy to do. That is, not until now. With the Internet at our fingertips, it’s never been easier to find someone and narrow the selections down to just what you need. If you’re dealing with an assault charge, for example, you’d want to search the Internet for lawyers with these types of cases under their belts. Go online to a search engine such as Google and search by type of attorney along with your location to focus your results. If you are in the San Diego area, for example, you can type in “criminal defense San Diego” or “criminal law attorney San Diego” to narrow your results. If you find someone you’d like to contact, the advantage of the Internet over the regular printed Yellow Pages is that you can visit the attorneys’ web sites and also map their locations by distance form your zip code.

Once you’ve found several attorneys who appear to specialize in your particular type of case, the next step is to find out what other clients of theirs are saying. Look them up online by their area of expertise, location, and name in order to see what others are saying about them. Former clients of theirs who have had either good or bad experiences have likely posted some sort of information online in the form of a blog post or forum comment that you can review. If you can take a broad look at the pros and cons of this person and weigh them out, you’ve become a more informed person and that’s a good thing.

Another highly recommended step to take is to contact the attorney’s Bar Association and ask them for detailed information about their track record in court. Knowing more than what they’ve posted on their web site and what others are saying about them gives a more complete picture of their capacity and competence as a legal counselor. The Bar Association will be able to confirm their specialty area of practice as well as what they have reported about cases won and lost. Hire a winner by doing a complete search and going through all of the steps necessary to confirm what kind of an attorney they are.

Criminal Background Check – Facts to Help You Keep Your Family and Business Safe

Criminal background check is a means by which facts can be brought to the forefront about people and their past dealings. It presents detail-by-detail report of all you need to know about people you meet and people you intend to meet. There are so many reasons you want to perform a criminal background check on an individual. Most companies carry out serious findings on employees before offering them employment. Apart from this, families also use this method to know more about the past life of a maid they wish to hire.

As many as the states that make up the United States of America is, every one of them have different laws guiding them. Some states simply do not allow the public access to some very important details, while some do. A criminal background lookup allows you to have access to details that ordinarily would not have been possible to get when you do it alone. They have a large database comprising of such information as: divorce and marriage records; telephone numbers (both land lines and mobile); past and pending court cases; parole; bankruptcy records; mortgage loan default records just to mention, but a few.

If you hope to hire a driver for instance, you need to know how good he is in driving, details of how, long he has been driving, accident records and the likes of it. All these are just some few details you can get when you try do your findings online.

The first step to a successful finding is to use a free online search engine like yahoo and Google to do an initial check. All it takes is to enter the name of the individual into the search engine and be ushered into brief, but useful details about the person that will lead you to do a proper background check. These details may show information like: address; names; age and even telephone numbers of the person.

This is not the end because it only helps you to do a proper check when you go for an online service that helps you add other essential details. The best websites do not allow users have access to their services for free, but at least it does not cost a lot and yet you get to have some smiles on your face.

Understanding Elder Law: How Attorneys Can Help

If you’re a senior citizen today, you know how complex things can get when you run into a legal problem. You may need help understanding the complexities of the social security system or you may have run into age discrimination because you’re over 65. Whatever the reason, you can find expert advice by consulting a specialist in laws affecting the elderly.

The term “elder law” was first coined in the late 90’s to describe any form of law pertaining to senior citizens and their legal issues. This may include health care, competency, age discrimination, estate planning, social security, survivors’ benefits and many other topics that directly affect anyone who is past retirement age. If you are over 65 and have questions about any of these issues, be sure you consult with an attorney experienced in elder law. Chicago has an increasingly grey population, with over 280,000 adults over the age of 65 within the city limits.

The Growth of Elder Law: Chicago Is Graying

Chicago’s elderly population is growing quickly, just like it is growing throughout the United States. Nearly 12% of the population is over age 65, and by 2050, there will be over 36 million senior citizens in the United States. It’s this astronomical growth that has contributed to the need for experienced estate attorneys and senior citizen focused litigation attorneys. Whether you are interested in setting up an estate in order to leave something for your children after your death or you suspect you have been discriminated against because of your age, you should consult with an elder law litigation attorney. He or she can guide you through every phase of planning or legal action necessary.

The aging of America has contributed to the growth of this legal niche. With more and more people living longer lives, there has been an increase in problems with obtaining social security benefits, processing Medicare claims, and even a rise in the number of senior citizens who are taken advantage of by rip-off artists. The right litigation attorney, Chicago based or otherwise, can help you preserve your dignity while fighting back against individuals or groups who may have taken advantage of you. Estate attorneys can help you plan for the future in order to ensure you have the funds available for enjoying life today while having a cushion for tomorrow.

The Complexity Of Elder Law: Chicago Attorneys Wear Many Hats

Law firms didn’t always distinguish between other, more general areas of law and elder law. Chicago attorneys were some of the earliest to establish practices addressing the needs of the elderly.

It’s unusual for a specific niche in the legal profession to be defined more by the type of client than by the type of law being practiced. For instance, some attorneys specialize in criminal law, others in tax law or family law. Elder law is different because the attorney isn’t focusing on any one type of law; instead he is focusing on one type of client – the senior citizen.

If you are interested in learning more about elder law, Chicago law firms can help. You don’t necessarily need a litigation attorney; Chicago has many attorneys who handle everything from drawing up a will to helping clients preserve their assets or choose an appropriate individual for power of attorney. If you’re over 65, you’ll discover that working with an elder law specialist is reassuring and efficient. You won’t have to switch from attorney to attorney as your legal needs change because your lawyer can be your estate attorney, litigation attorney, and family court attorney.

It’s this unique diversity of knowledge that makes an elder law expert the ideal attorney for any of your legal needs after age 65.

What Mortgage Law is All About

Mortgage is the security of the loan to finance the purchase of a property with specified interest rates. Mortgage is the lender’s security for debt. This is the most common method of financing property transactions. The mortgager is the borrower in the mortgage and he transfers the interest. On the other hand, the mortgagee is the investor or a financial institution that provides loan or other interests in exchange of the security interest. As per the residential mortgage law, if the borrower fails to pay, the mortgagee has the right to sell the property to pay off the loan.

Generally the mortgage is paid in installments where the borrower needs to pay the interest as well as the principle amount that was borrowed by the mortgagor. If the mortgagor fails to make payments, then this can result in the foreclosure of the mortgage. As per the acceleration clause in the mortgage, the borrower has to pay off the loan immediately. Foreclosure permits the mortgagee to state that the debt is due. Acceleration clause is applicable in residential and commercial properties. This law can also be imposed if the borrower tries to sell or transfer the property to someone else. In order to avoid foreclosure, the borrower can clear the due payments and the cost incurred for the missed payments.

According to the state law and the terms and conditions of the mortgage agreement, the foreclosure process is carried on. The mortgagee can negotiate with the mortgagors to adjust the terms of the mortgage. There are two kinds of foreclosures that are judicial foreclosures, which require a court order, and nonjudicial foreclosures, which can be settled outside the court. If power of sale clause is there in the mortgage, nonjudicial foreclosures can be used.

Advent of Foreign Law Firms in India

The opening of a legal firm by a Nigerian in Delhi has not only lawyers up in arms against the unauthorized practice but has also revived the decade-and-a-half-old debate over the more important question – should foreign lawyers be allowed entry into India?

It is often asserted that India has the potential to become one of the world’s great legal centers in the 21st century, alongside London and New York. It has innate advantages in its common law traditions and English language capability. But until very recently India had not recognized the role that advisory legal services have to play in attracting foreign investment and developing a broader-based services economy.

India being a signatory to the General Agreement on Trade in Services (GATS) which is an organ of the World Trade Organization (WTO) is under an obligation to open up the service sector to Member Nations.

“Services” would include any service in any sector except services supplied in the exercise of governmental authorities as defined in GATS. “A service supplied in the exercise of governmental authorities” is also defined to mean any service that is supplied neither on a commercial basis nor in competition with one or more service suppliers.

Legal profession is also taken to be one of the services which is included in GATS. With the liberalization and globalization policy followed in India, multinationals and foreign corporations are increasingly entering India. Foreign financial institutions and business concerns are also entering India in a fairly large number. Their business transactions in India are obviously governed by the Indian law and the foreign law firms (FLF’s) and foreign legal consultants (FLC’s) being not fully conversant with the Indian legislation require the assistance of lawyers enrolled and practicing in India. This has led to the idea of entry of foreign legal consultants and liberalization of legal practices in India in keeping with the guidelines evolved by the International Bar Association (IBA) and the GATS. If this idea is to be put into practice, the Advocates Act, 1961 which governs legal practice in India needs to be amended.

Legal “practice” is not defined in the Advocates Act but a reading of Sections 30 and 33 indicates that practice is limited to appearance before any court, tribunal or authority. It does not include legal advice, documentation, alternative methods of resolving disputes and such other services. Section 24 (i)(a) of the Act provides that a person shall be qualified to be admitted as an Advocate on the State Roll if he is a citizen of India provided that subject to this Act a national of any other country may be admitted as an Advocate on the State Roll if the citizens of India duly qualified are permitted to practice law in that other country.

Section 47 of the Act provides that where a country specified by the Central Govt. in this behalf by a notification in the Official Gazette prevents the citizens of India from practicing the profession of law subjects them to unfair discrimination in that country, no subject of any such country shall be entitled to practice that profession of law in India.

The basic principles set out by IBA on the question of validity of FLC’s are fairness, uniform and non-discriminatory treatment, clarity and transparency, professional responsibility, reality and flexibility. The guidelines laid down by the IBA are as follows:

“Legal consultant means a person qualified to practice law in a country (home country) and who desires to be licensed to practice law as a legal consultant without being examined by a body or an authority to regulate the legal profession in a country (host country) other than a home country, such a person has to apply to the host authority for a license by following the procedure for obtaining a license subject to the reasonable conditions imposed by the host authority on the issue of licenses. This license requires renewal. A legal consultant has to submit an undertaking alongwith his application not to accept, hold, transfer, deal with a client found or assigned unless the legal consultant does so in a manner authorized by the host authority to agree and abide by the code of ethics applicable to host jurisdiction besides to abide by all the rules and regulations of both the home and host jurisdiction.

It is open to the host authority to impose the requirement of reciprocity and to impose reasonable restrictions on the practice of FLC’s in the host country, that the FLC’s may not appear as an attorney or plead in any court or tribunal in the host country and the FLC’s may not prepare any documents or instruments whose preparation or performance of other services, is specifically reserved by the host authority for performance by its local members.

Many experts have given their views on entry of FLF’s and FLC’s in India pursuant to GATS. They are not opposed to the idea but it is suggested by them that some restrictions, adequate safeguards and qualifications should be provided for besides reciprocity.

The restrictions, if any, will have to be reasonable. Obtaining Indian law degree and practicing Indian law for a period to be stipulated for entry may be the only reasonable restrictions. Canadian model of University training, examination and articleship administered through a joint committee accreditation may be a viable solution. To follow the principle of non-discrimination, it may not be possible to impose any onerous restriction limiting the clientele, the nature of legal work, the fees to be marked, the form of fees (Rupees or foreign currency) etc. So far as reciprocity is concerned level playing field and uniform code of conduct will have to be worked out. Many western nations allow their lawyers to advertise whereas in India the lawyers are not allowed to do so. In California the FLF’s were only permitted to deal in laws not specific to California. Even in countries like Singapore, Hong-Kong and Japan the FLC’s are restricted to servicing only foreign firms. The treatment meted out to FLC’s and FLF’s in other countries and the rules, regulations made to govern their practice in the foreign country should be thoroughly scrutinized before allowing the entry in India.

Even if reciprocity were allowed, no Indian firm would go abroad to conduct legal business not because it has no talent, competency or efficiency but economically it would not be a viable proposition. The Indian lawyers have no resources to set up an establishment in a foreign country nor will the Indian Government render any assistance to them to promote their business in a foreign country. Even the large population of non-resident Indians would not desire to patronize the Indian lawyers even though they may be experts in their own field because the resident lawyers having full knowledge of the law of the country would be available to them at reasonable price because for the legal experts from India apart from the fees charged for the legal consultancy/service they may have to spend on their traveling expense also. The legal service by calling Indian experts would be very expensive for the non-resident Indians and they may not get full effective service since the Indian legal consultants may not be very conversant with the laws applicable there. It is only if any Indian party is concerned in a dispute and the question relates also to Indian law that Indian legal Consultant would be invited to a foreign country and not otherwise. Such occasions will be rare. The picture is different in case of foreign firms who do business across national borders, due to globalization. They demand foreign lawyers since they like to rely on the services of professionals in their own country who are already familiar with the firm’s business. If the foreign firms carrying on business in India require advice here on home country law, that can be made available to them by the Indian law firms or the Indian legal consultants. They can also prepare the legal documentation or provide the advisory service for corporate restructuring, mergers, acquisitions, intellectual property rights or financial instruments required by the foreign firms. These aspects will have to be seriously considered while considering the principle of reciprocity. Reciprocity should therefore be clearly defined and must be effective. It should be ensured that the rules and/or regulations laid down should be strictly complied with otherwise as is the experience, the rules remain on paper and what is practiced is totally different. The authorities either do not pay any heed to the violations or they overlook or ignore it as in the case of the Foreign law firms in India in the Enron deal, the permissions for such law firms to set up liaison offices came from the RBI which reports directly to the Finance Ministry. When these law firms violated the very conditions of being liaison offices the RBI overlooked or ignored it.

Some are of the view that instead of being perceived as a threat to lawyers, this should be seen as a move to raising standards within the profession but with reciprocal arrangements. The legal profession as it was practiced years before by the legal stalwarts did have a very high standard. However, today that standard of profession is nowhere to be seen or experienced. Legal profession has also become totally commercialized with no human or moral values. The standard has gone down considerably. However, the fees charged have tremendously increased, disproportionately to the service rendered to the clients. No effort is being made in any corner to set the wrong or malpractices which have crept in in the legal profession. On this background, what would be the “raised standards”? If at all the standards are raised, would the entire class of legal practitioners in India benefit or will it be only a small section of the legal practitioners who would be able to take advantage of the new situation? In that case, can this move be said to be in the interest of the legal practitioners? The situation so far as the FLC’s are concerned would be completely different since all the FLC’s who aspire to come to India will get equal treatment whereas the Indian legal practitioners would be deprived of equality in profession. Besides the FLC’s will have foreign clients and even though they are allowed to practice in India with a reasonable restriction of obtaining law degree in India, for some time definitely they will need Indian lawyers to get their work done. With the resources at their end and with the higher exchange rate in currency, they will be able to hire and retain young lawyers with substantial pay packages, though as compared to their fees in their country it would be much lower, with the result that good reputed Attorney’s/Solicitor’s Firms in India would lose their good hands and their work may suffer. Law Firms in U.S.A have funds equal to the annual budget of the State of Maharashtra. With such resources, in a short time, such FLF’s would do away with the existing law firms in India. On this background would our law firms withstand the competition and the quality of service, is an important question to be examined.

The U.S and some other advanced countries have large law firms operating on International scales which are primarily business organizations designed to promote commercial interest of their giant client corporations. The size, power, influence and economical standards of these large international law firms would definitely affect the legal system of our country adversely. We cannot match howsoever far we may stretch it, their size, power and most importantly economical standard. There is a limitation here on the number of partners in an Attorney’s/Solicitor’s firm. The number is restricted to 20 under the Partnership Act, which restriction is non-existent in a foreign law firm. To bring uniformity this limitation will have to be removed allowing for more partners, increasing of funding and manpower.

Moreover the FLF’s have “single window services” meaning services which not only include legal but also accountancy, management, financial and other advice to their clients. The multidisciplinary partnerships will cater to the needs of the clients in the above-mentioned different fields. Such partnerships may endanger the ethics of the legal profession as confidential information may be passed out within the partnership to the non-lawyer professionals. This would prejudicially affect not only the clients but also the lawyers since the independence of the lawyers would be compromised. Once the FLF’s and FLC’s are allowed entry into India the Bar Council of India will have to make rules and regulations also for such multidisciplinary partnerships or single window services. The multidisciplinary partnerships may look attractive but the crucial question is whether the quality of services and accountability of systems can be maintained? The code of ethics needs review to bring international legal practice under its purview.

The Foreign law firms may seek license for full and regular legal practice like that of Indian lawyers or they may come for a limited practice of consultancy for foreign partners on home country laws. Accordingly the rules and regulations will have to be framed to meet both these situations. The FLF’s who intend to come for regular legal practice may have to be subjected to immigration and citizenship laws. Those who seek limited practice may enter into partnerships with the home country law firms without any scrutiny from the organized legal profession. It is therefore necessary that a transparent, fair and accountable system be evolved to regulate and control the internationalization of legal practice.

With the globalization and liberalization policy not only foreign businessmen have come to India for investment but even the foreign goods and products such as agricultural products and other goods have entered the Indian market. The Indian goods and products have to face a tough competition with these foreign products which are cheaper though may not be better in quality. The result is that the Indian agriculturists and merchants are seriously prejudiced in their business. We also have the example of Enron which was in news where the Indian law was modified without probably realizing the adverse effect it would have on the electrical companies in the State. The agreements signed with Enron do not appear to be in the interest of the State or the Nation. However, such matters are thought of only later and not when the actual action is taken. With the present experience, it is felt that we should not be carried away with the idea of raising our standards or of being on par with the other developed countries where the guideline of reciprocity may be followed and the FLC’s and FLF’s would be allowed to enter the country. We have to be very alert and watchful and think well in advance to do away with any lacunas or loopholes in the rules and regulations that may be introduced to safeguard the interest of the lawyers in our country.
One more point which may need consideration is about the countries who would be interested in India. Would these countries be the members of the World Trade Organization or would even the non-member countries be allowed to enter India? If the entry is restricted to only the members of the WTO and if any non-member country desires to enter India, would the entry be denied merely on the ground that it is not the member of the WTO or whether the non-member would be allowed entry to show our fairness and equality of treatment? Thus many countries may be interested in coming to India due to the liberalization; globalization and privatization policy followed in India but the chances of the Indian firms going out of India to enter any foreign country would be remote. The principle of reciprocity may be introduced on paper but may not be effectively followed.

It may be mentioned here that the “Lawyer’s Collective” has filed a public interest litigation before the Mumbai High Court questioning the phrase “practice the profession of law” under section 29 of the Advocates Act. The respondents in their petition include some of the FLF’s which had set up their own liaison offices in India. It is needless to point out that all the above points may be discussed and examined in the above petition, the result of which is awaited.

The Indian legal profession has, in recent years, undergone a significant change, emerging as highly competitive and ready to move along with the ongoing wave of globalization. The interest of foreign law firms to open shop in India therefore is hardly surprising, since India offers a full range of legal services, of comparable quality, at literally a fraction of the price that would otherwise have to be paid. The rather conservative and if one may use the word, “protectionist” stand of the Bar Council of India on the matter has, however, prohibited foreign law firms from operating in India. A number of the more established ones, perhaps unable to resist the immense potential of the Indian legal markets, and in anticipation of the “globalization of legal services” under the aegis of the WTO, are slowly (and quite discreetly) establishing their presence in India, this in a considerable number of cases taking the form of their entering into associations with Indian firms, and in the process, literally operating in India indirectly, despite the prohibitions against the same. An issue that has therefore started to attract the attention of not simply Indian lawyers, but also law school grads, is the likely consequences of the entry of foreign firms in India. Shall this help an already growing Indian legal market, or shall it only mean a job loss for Indian law grads?

The fact remains that India is in the process of globalizing its economy. In the process, the legal market opening up to competition from the international legal market is rather inevitable. Instead of deliberating about the advantages and disadvantages of the legal markets being opened up to foreign firms, it is perhaps more sensible to accept that the entry of foreign firms in India is only a matter of time. However, this should not mean that their operations should nor be regulated, since otherwise they may just push out the Indian firms. For law school grads, their presence in India could well translate into an increasing range of job opportunities, apart from their presence in India significantly influencing the way in which the Indian legal market evolves in the 21st century.

Online Incorporation and LLC Formation Services – Advantages and Disadvantages, Pros and Cons

Online incorporation services tout easy, fast, and cheap online incorporation and limited liability company (LLC) formation services. Examples include LegalZoom.com, MyCorporation.com, and IncorporateTime.com. Storefront and virtual paralegal services such as We the People and those found in the legal services section of your local craigslist also offer similar services. Their web sites and radio and TV sales pitches indicate that forming a corporation or LLC is as quick, easy, and inexpensive as filling out an online questionnaire and paying a fee of $100-150 for the completion of the paperwork and the filing of the documents with the secretary of state (plus the filing fees charged by the state). This article reviews the advantages and disadvantages of these services overall – for specific reviews of a particular provider, you should look elsewhere (and preferably to those with direct experience using the service, as well as at least a year of business operations thereafter).

No legal advice

In the fine print, many document preparation services state they are not law firms, cannot provide legal advice, and recommend that you consult an attorney for legal advice. Here’s a word for word example from one web site: “This site is not a substitute for legal counsel…. You should consult legal counsel to determine applicable law for your situation.” And from another: “[Our document preparation service] is not a substitute for an attorney or law firm.” Only licensed attorneys can practice law and provide legal advice to clients, so these firms are wisely protecting themselves by making it clear that they are not in the business of providing legal advice; they are in the business of preparing whatever forms or filing you tell them to. Thus, the computer programmer’s old adage, Garbage In, Garbage Out, applies. If you tell them to form a Nevada LLC, when you really need a California S corporation, they will in all likelihood produce a technically sufficient LLC, but it won’t meet your actual business legal needs. Likewise, if you choose not to elect S-corporation status, and end up paying higher taxes as a C-corporation, this is not their fault; they are counting on you to know what you need, or to have consulted a lawyer and/or tax accountant before coming to them.

Many incorporation services would apparently seem to remedy this situation with lengthy FAQs and learning centers, but, frankly, a few minutes or even a few hours of research is not a substitute for a lawyer’s college degree, three years of law school, and additional on-the-job training and annual continuing legal education. Any paralegal or incorporation service whose employees do provide legal advice is engaged in the unethical practice of law without a license, a crime in most jurisdictions, and their legal advice, for more reasons than one, should be taken with a grain of salt. Better yet, terminate your relationship with any such person immediately.

The other ‘remedy’ is to portray incorporation as a one size fits all, cookie cutter purchase, rather than explaining the reality that can be summed up the quote sometimes heard in law school, “The general rule applies to no one in particular.” In other words, your circumstances and needs are not those of your friends, neighbors, or other online entity formation customers.

Other Legal Issues

Attorneys will focus not just on forming an entity you have ordered them to, but in taking a step back, assessing your overall business plan and goals, and making sure the legal structure takes into account your particular circumstances, rather than assuming you and your business are exactly the same as the next guy and his business. They will also at least point out, and suggest options for best addressing, legal issues that arise tangentially to forming a corporation or LLC. Such issues that the average incorporation service customer may be blissfully unaware of include securities laws compliance, promissory notes, trademark and service mark issues, and employee and independent contractor law. (Tax issues are also inherent in incorporating, so working with a CPA or accountant is something I always recommend to clients before and after incorporating.) Agreements typical of new corporations or existing business which are growing and have decided to incorporate include employment agreements, independent contractor agreements, supplier agreements, web site terms of use and privacy policies, and shareholder buy-sell agreements. All of these should be customized to your needs, not fill in the blank forms, just as corporate bylaws and LLC operating agreements should be customized, not one size fits all.

Lack of Follow-Through

A good business attorney will also assist you in following through in the formation of your corporation or LLC. By this I mean making sure the meeting minutes are appropriately customized to your needs and the corp. or LLC’s formation documents are actually completed, signed, shares are actually issued to shareholders, and appropriate federal, state, and local filings are made. After having reviewed numerous incorporation service companies, usually a year or more later after problems have arisen, but also often times in the course of transactions such as sale of the business or part of it to a new shareholder, member, or partner, I have yet to see a company that was correctly set up. I can say the same of do-it-yourself incorporations, where the owner(s) didn’t hire anyone and did it themselves. In most cases, the articles of incorporation (for LLCs, the articles of organization) have been completed and filed in an adequate, if not optimal, manner, and the bylaws or operating agreement is likewise present. However, such documents are generally never executed – they just sit on the shelf in a binder, as they have since they were mailed out by the incorporation service, and thus without any force or effect whatsoever. Frequently, they contain numerous blanks that the owner was supposed to fill in, but didn’t because they didn’t know how to, or just never got around to it.

These defects are not the fault of the incorporation service per se, but they are indicative of the different level of service provided by such companies, in comparison to an attorney. Such lack of completion can and does lead to problem later, however, because the company’s limited liability status and good standing with the state can be jeopardized by missing or incomplete corporate documents, or by failure to create annual minuets and file initial and annual state level filings. Difficulties also occur when disputes among partners or co-owners later arise, and upon review of the bylaws or operating agreement, the parties find that the documents were never signed (and thus may not control), that they lack buyout procedures, or that they are vague or silent on how to handle disputes. It goes without saying that most of these disputes are much more costly to resolve later, once the proverbial horse of improper documentation and agreements has left the barn.

Hidden fees

The main benefit of incorporation services is costs savings; they charge less than attorneys do. However, the actual fees charged by incorporation services often ends up being as much as two or three times higher as they low rates they advertise, once such “add-ons” (which in many cases are needed to achieve your legal aims) as name reservations, corporate minute books, expedited or rush service, EIN numbers, S-corp election, first meeting minutes, and initial statement of information, sales tax reseller’s permit, business license, or other state or federal filings are made. So be sure to check what a complete package costs in making comparison amongst various providers and versus law firm fees. Some services I’ve seen on craigslist.org offer rates so low, they do not even account for the minimum level of costs that must be expended to properly set up a company! (E.g., $125 including costs for a California incorporation – the government fees alone are at least this high, let alone any third party service fee.) In many but not all instances, law firms offering flat fee incorporations do not have hidden fees.

In any case, the important consideration here is that incorporation service prices cannot and do not include legal advice on the incorporation process or related legal issues, hand-holding, referrals to other professionals such as accountants and insurance agents, or follow-through to ensure that the business entity is actually implemented correctly. Upon seeing all the work that goes into an incorporation or LLC organization, the most common remark from my clients is not, ‘That was easy; I should have used an incorporation service, saved your legal fees, and done it myself.’ Rather, it is, ‘I can’t believe some people try to do all this themselves!’ You should keep in mind the difference in the level or services provided when evaluating price, be on the lookout for hidden or additional fees beyond the base rate, and realize that if you are choose to select an attorney over an incorporation service, you are paying not only for that attorney’s time and end work product, but also his education, experience, skill, and legal advice and counsel for your business.

Relationship with a lawyer

In deciding to go it alone, you should keep in mind that sooner or later, if your business grows, you will need a business attorney. It may be more prudent to establish that relationship now via an incorporation and set yourself up for future growth and success, rather than wait until a legal emergency arises, only to find you don’t know any attorneys, or that the attorney you do retain finds that there are numerous steps you could have taken in the past to avoid current fees, taxes, problems, and disputes.

The fact that these problems don’t become apparent until months or years after the company’s formation (especially if professionals such as attorneys and accountants are never hired and thereby given the opportunity to review the company and spot issues) means that many customers of incorporation services are initially well pleased with the service they have received. If you don’t know what you didn’t get, you have no reason to be unhappy about; instead focusing on the money saved now.

In my experience, rarely does money saved on legal services now pay off in long-term savings. More often, it’s the old, pay now, or pay (more) later situation. Some errors, such as choice of entity decisions that were not tax favorable, cannot be undone, they can only be changed going forward. Likewise, after a shareholder or partnership dispute has arisen, it’s usually too late for proper buy-sell provisions in the bylaws or operating agreement, a separate buy sell agreement, or an arbitration clause. If you don’t have enough money to afford an attorney at the outset, perhaps you and your partners should consider committing additional funds to the enterprise, utilizing loans or credit cards to access additional funds, or wait until more financing can be accumulated or obtained, before proceeding in a less than optimal way. Most entrepreneurs are convinced of the future growth and profit prospects of their companies; thus, it is surprising they often don’t follow in the footsteps of other successful enterprises and allocate appropriate funds for legal services. The adage, “Failing to plan is planning to fail” applies here.

A good business attorney will also be able to provide referrals to reliable accountants, insurance agents, and others services new businesses are likely to need.

Volume business

Incorporating services are sometimes called incorporation mills. By their very nature, they are in a volume business; they cannot charge low prices and provide personalized attention or service. In general, they make their profits by selling a non-customized or a minimally customized product over and over to as many customers as possible. Law firms, on the other hand, provide customized legal advice and services to each client on an individual basis. Law firms can handle unusual capital, profit, loss, or other allocation issues that fully and correctly utilize corporations and LLCs, and advise when such use is appropriate and when it is not. Incorporation mills will, for the most part, sell you whatever you ask for; it’s your responsibility to determine whether you are ordering the right product from them.

But aren’t you, as a California incorporation lawyer, biased?

That’s certainly a legitimate question, and I obviously have a strong opinion on the matters discussed. It’s up to you to take to heart or disregard the opinions and advice in this article, but I would answer it this way: Because I am a business attorney, I have seen the result of using these services in a way most lay people would not, and as a result cannot recommend that most people use an incorporation service. And although incorporation legal services is part of my business law practice, I would encourage most readers to use an attorney of their choosing, in their state – it need not be me and obviously I don’t benefit from you using another attorney any more than I benefit from you using an incorporation service. In fact, incorporation services are probably in the long run good for my practice; they provide a steady stream of repair work and dispute resolution for me, that typically cost $1000s more than my flat fee incorporation services.

Summary and Conclusion

In short, comparing incorporation services to a business lawyer is an apples to oranges comparison. One option provides more services and costs more; one provides less and costs less. Neither is a “rip-off” or the definitive solution for everyone. You are more likely to get things right by choosing either than choosing neither and going it alone. The lawyer is licensed by the state to provide legal advice, is subject to numerous ethical rules, forms an attorney-client relationship with his clients, and keeps up to date on changes in the law through mandatory continuing legal education. The incorporation service simply executes on your instructions, no advice, no hand-holding, no legal review of your situation or legal needs. If your instructions do not comport with what’s best for your situation, then your result will be less than optimal.

There may be a small group of people who know what they need, and how to do it, but just lack the time, and who are thus well served by incorporation services. (Ironically, most of these people probably realize the value of an attorney’s input and would generally hire one to take care of their legal needs, while spending their own time on what they do best, improving their business. This explains why I have business entity formation clients who are attorneys and law firms!). Or who have been advised by their accountant to form a particular type of simple entity (simple being defined as an entity to be formed in their home state jurisdiction and with only one owner). But, in my opinion, the vast majority of potential incorporation service customers would be better served by investing an additional $500 or so to have their entity selected, formed, and set up correctly, with all of their questions answered along the way, with due attention to related legal issues, and to establish a relationship with an attorney for ongoing or future legal services.

Jonas M. Grant is a Los Angeles, California business attorney and the owner of his own law practice, the Law Office of Jonas M. Grant, P.C. He obtained his law degree from Indiana University School of Law – Bloomington; his MBA in finance from Indiana University’s Kelley Graduate School of Business; and his BA from Northwestern University, Evanston, Illinois.

The Drunk Drivers DUI Attorney Guide

If you have been charged with a DUI offense, then you need to read this article before you go to court. If you are thinking of representing yourself, stop and think again. DUI defense is not a “do it yourself” project. Instead, you need to find a lawyer that specializes in DUI defense.

Sure, a DUI attorney costs more, but you are also getting more expertise and competence in this area; and, he will expect to be paid for his efforts. So, take some time and read this short guide to selecting a DUI attorney. You might just save yourself a lot of time and money.

DUI Is A Serious Criminal Offense

DWI is a serious offense even though it is a misdemeanor. Every time an innocent person is killed by a drunk driver the media sensationalizes the event. As a result, juries have become much less tolerant or drunk drivers and are more likely to give the offender a heavier sentence. I do not know whether or not you are guilty of the offense as charged.

Assuming you are, then we both know that you already made one serious mistake in judgment. Do not make another mistake by attempting to represent yourself. Going to court by yourself is a ridiculous move that will only cost you lots of time and money. Worse, it could cost you your job, freedom, family or loved ones. Under the best outcome, the fines, fees and costs assessed by the court can cripple you financially. Do not be the fool that represents himself. Get a DUI attorney you can trust.

DUI Attorneys Are Criminal Specialists

All DUI lawyers practice criminal law, but not all criminal attorneys can try a DUI case. DWI attorneys engage in a specialized practice. You are not in a position to trust your defense to just any criminal attorney. Instead, try to find an attorney that has a DUI specialization or certification, if your state bar has such as designation.

If not, try to determine if your prospective lawyer is familiar with those issues that are peculiar to DUI defense. Some of these issues include the use of an intoxilyzer, diabetes and hypoglycemia, horizontal gaze and nystagmus, and other such tests. You will pay more for a DUI attorney with this sort of specialized knowledge, but are you really in a position to mount a defense “on the cheap?”

Paying Your DUI Attorney

An attorney that specializes in DUI defense is going to charge a higher fee than a general practitioner or criminal attorney. They have specialized knowledge that you need and they know that their services command a higher rate of compensation. Do not hesitate to discuss the matter of attorney’s fees early in the conversation with your attorney. You will probably be quoted one of two types of fee arrangements. Either the attorney will agree to take the case for a flat fee or an hourly rate.

In either case, you will be required to post a retainer (or down payment) for your lawyer’s services. The balance of the fee is due before trial and you will owe it regardless of the outcome.

Drunk Drivers Have No Business Representing Themselves

DWI litigation is complex. You probably understand that when it comes to a DWI, your defense is not “do it yourself” project. Instead, you need to find a competent DUI attorney that is going to make the state prove their case. He will have the knowledge and expertise to challenge the evidence and raise all likely and legitimate defenses.

Yes, he will charge more. But, when you are charged with a serious criminal offense, you cannot afford to be cheap