Showing posts with label Attorney fees. Show all posts
Showing posts with label Attorney fees. Show all posts

Saturday, September 25

Rule of law

implementation Rule of law,
The rule of law is a legal maxim according to which no one is immune to the law.
While the rule of law has been described as "an exceedingly elusive notion" giving rise to a "rampant divergence of understandings", a dichotomy can be identified between two principal conceptions of the rule of law: a formalist or "thin" and a substantive or "thick" definition of the rule of law. Formalist definitions of the rule of law do not make a judgement about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law.


Although credit for coining of the expression "the rule of law" in modern times is usually given to A. V. Dicey, development of the legal concept can be traced through history as far back as Ancient Greece.
The rule of law is an ancient ideal, and was discussed by Ancient Greek philosophers such as Plato and
Aristotle around 350 BCE. Plato wrote:
Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.
Likewise, Aristotle endorsed the rule of law, writing that "law should govern", and those in power should be "servants of the laws." The ancient concept of rule of law is to be distinguished from rule by law, according to political science professor Li Shuguang: "The difference....is that under the rule of law the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law can serve as a mere tool for a government that suppresses in a legalistic fashion."
An allusion to the rule of law applying to the Median kingdom is found in the Book of Daniel, where it is stated that not even that king can arbitrarily alter a law he has previously enacted: "The thing stands fast, according to the law of the Medes and Persians, which cannot be revoked."
The supremacy of law is by no means an exclusively western notion: in the Chinese philosophical school of Legalism in the 3rd century BCE, Han Fei Zi articulated three principles of governance, the first being Fa (Chinese: 法; pinyin: fǎ; literally "law or principle"), which states that laws, rather than rulers, run the state, and further that laws be written and public.


Middle ages
In Islamic jurisprudence rule of law was formulated before the twelfth century, so that no official could claim to be above the law, not even the caliph. However, this was not a reference to secular law, but to Islamic religious law in the form of Sharia law.
In 1215 AD, a similar development occurred in England: King John placed himself and England's future sovereigns and magistrates at least partially within the rule of law, by signing Magna Carta.



Modern times
Two of the first modern authors to give the principle theoretical foundations were Samuel Rutherford in Lex, Rex (1644) and John Locke in his Second Treatise of Government (1690). Later, the principle was further entrenched by Montesquieu in The Spirit of the Laws (1748).
In 1776, the notion that no one is above the law was popular during the founding of the United States, for example Thomas Paine wrote in his pamphlet Common Sense that "in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other." In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish "a government of laws and not of men."



Categorization of differing interpretations

Different people have different interpretations about exactly what "rule of law" means. According to political theorist Judith N. Shklar, "the phrase 'the Rule of Law' has become meaningless thanks to ideological abuse and general over-use", but nevertheless this phrase has in the past had specific and important meanings. Among modern legal theorists, most views on this subject fall into three general categories: the formal approach, the substantive approach, and the functional approach.
The "formal" interpretation is more widespread than the "substantive" interpretation, and formalists hold that the law must be prospective, well-known, and have characteristics of generality, equality, and certainty. Other than that, the formal view contains no requirements as to the content of the law. This formal approach allows laws that protect democracy and individual rights, but recognizes the existence of "rule of law" in countries that do not necessarily have such laws protecting democracy or individual rights. The substantive interpretation holds that the rule of law intrinsically protects some or all individual rights.
In addition to the formal and substantive interpretations of the term "rule of law", another leading interpretation is the functional definition, which is consistent with the traditional English meaning that contrasts the "rule of law" with the "rule of man." According to the functional view, a society in which government officers have a great deal of discretion has a low degree of "rule of law", whereas a society in which government officers have little discretion has a high degree of "rule of law". The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable.

Status in various jurisdictions

The rule of law has been considered as one of the key dimensions that determines the quality and good governance of a country. Research, like the Worldwide Governance Indicators, defines the rule of law as: "the extent to which agents have confidence and abide by the rules of society, and in particular the quality of contract enforcement, the police and the courts, as well as the likelihood of crime or violence." Based on this definition the Worldwide Governance Indicators project has developed aggregate measurements for the rule of law in more than 200 countries, as seen in the map below.


United States


2005 map of Worldwide Governance Indicators, which attempts to measure the extent to which agents have confidence in and abide by the rules of society. Colors range from dark green (90th-100th percentile) to light green (75th-90th percentile), yellow (50th-75th percentile), orange (25th-50th percentile), pink (10th-25th percentile) and red (0th-10th percentile). Percentile rank indicates the percentage of countries worldwide that rate below the selected country.
All government officers of the United States, including the President, the Justices of the Supreme Court, and all members of Congress, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader. At the same time, the federal government does have considerable discretion: the legislative branch is free to decide what statutes it will write, as long as it stays within its enumerated powers and respects the constitutionally protected rights of individuals. Likewise, the judicial branch has a degree of judicial discretion, and the executive branch also has various discretionary powers including prosecutorial discretion.
Scholars continue to debate whether the U.S. Constitution adopted a particular interpretation of the "rule of law," and if so, which one. For example, Law Professor John Harrison asserts that the word "law" in the Constitution is simply defined as that which is legally binding, rather than being "defined by formal or substantive criteria," and therefore judges do not have discretion to decide that laws fail to satisfy such unwritten and vague criteria. Law Professor Frederick Mark Gedicks disagrees, writing that Cicero, Augustine, Thomas Aquinas, and the framers of the U.S. Constitution believed that an unjust law was not really a law at all.
James Wilson said during the Philadelphia Convention in 1787 that, "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect." George Mason agreed that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as judges to give it a free course."



Asia
Many Asian cultures traditionally view good governance as rule by leaders who are benevolent and virtuous, and therefore rule of law is a governmental principle that many Asians hesitate to embrace. One study indicates that throughout East Asia, only South Korea, Japan, Taiwan and Hong Kong have societies that are robustly committed to a law-bound state. According to Awzar Thi, a member of the Asian Human Rights Commission, the rule of law in Thailand, Cambodia, and most of Asia is weak or nonexistent:
Apart from a number of states and territories, across the continent there is a huge gulf between the rule of law rhetoric and reality. In Thailand, the police force is an organized crime gang. In Cambodia, judges are proxies for the ruling political party….That a judge may harbor political prejudice or apply the law unevenly are the smallest worries for an ordinary criminal defendant in Asia. More likely ones are: Will the police fabricate the evidence? Will the prosecutor bother to show up? Will the judge fall asleep? Will I be poisoned in prison? Will my case be completed within a decade?
In countries such as China and Vietnam, the transition to a market economy has been a major factor in a move toward the rule of law, because a rule of law is important to foreign investors and to economic development. It remains unclear whether the rule of law in countries like China and Vietnam will be limited to commercial matters or will spill into other areas as well, and if so whether that spillover will enhance prospects for related values such as democracy and human rights.. The rule of law in China has been widely discussed and debated by both legal scholars and politicians in China.
In India, the longest constitutional text in the history of the world has governed that country since 1950. Although the Constitution of India may have been intended to provide details that would limit the opportunity for judicial discretion, the more text there is in a constitution the greater opportunity the judiciary may have to exercise judicial review. According to Indian journalist Harish Khare, "The rule of law or rather the Constitution  in danger of being supplanted by the rule of judges."
Japan had centuries of tradition prior to World War II during which there were laws, but they were not a central organizing principle for society, and they did not constrain the powers of government. As the twenty-first century began, the percentage of people who were lawyers and judges in Japan remained very low relative to western Europe and the United States, and legislation in Japan tended to be terse and general, leaving much discretion in the hands of bureaucrats.


Organizations and scholarly works

Many organizations and scholars have advocated for the rule of law, and have taken positions regarding which interpretation of that concept they prefer.


International Commission of Jurists
In 1959, an international gathering of over 185 judges, lawyers, and law professors from 53 countries, meeting in New Delhi and speaking as the International Commission of Jurists, made a declaration as to the fundamental principle of the rule of law. This was the Declaration of Delhi. They declared that the rule of law implies certain rights and freedoms, that it implies an independent judiciary, and that it implies social, economic and cultural conditions conducive to human dignity. The Declaration of Delhi did not, however, suggest that the rule of law requires legislative power to be subject to judicial review.



United Nations
The Secretary-General of the United Nations defines the rule of law as:
a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.
The General Assembly has considered rule of law as an agenda item since 1992, with renewed interest since 2006 and has adopted resolutions at its last three sessions.The Security Council has held a number of thematic debates on the rule of law, and adopted resolutions emphasizing the importance of these issues in the context of women, peace and security, children in armed conflict,and the protection of civilians in armed conflict. The Peacebuilding Commission has also regularly addressed rule of law issues with respect to countries on its agenda.


International Bar Association
The Council of the International Bar Association passed a resolution in 2009 endorsing a substantive or "thick" definition of the rule of law:
An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable. The Rule of Law is the foundation of a civilised society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The IBA calls upon all countries to respect these fundamental principles. It also calls upon its members to speak out in support of the Rule of Law within their respective communities.



World Justice Project
The World Justice Project, an organization specializing in the promotion of rule of law, bases its definition upon 16 factors and 68 sub-factors, organized under the following set of four principles, or bands:
1. The government and its officials and agents are accountable under the law;
2. The laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property;
3. The process by which the laws are enacted, administered and enforced is accessible, fair and efficient;
4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
The World Justice Project used to be part of the American Bar Association but in 2009 became a free-standing non-profit, its main goal being to promote adherence to the rule of law throughout the world.


Joseph Raz
The influential political theorist Joseph Raz identified several principles that may be associated with the rule of law in some (but not all) societies. Raz's principles encompass the requirements of guiding the individual's behaviour and minimizing the danger that results from the exercise of discretionary power in an arbitrary fashion, and in this last respect he shares common ground with the constitutional theorists A. V. Dicey, Friedrich Hayek and E. P. Thompson. Some of Raz's principles are as follows:
That laws should be prospective rather than retroactive.
Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it.
There should be clear rules and procedures for making laws.
The independence of the judiciary has to be guaranteed.
The principles of natural justice should be observed, particularly those concerning the right to a fair hearing.
The courts should have the power of judicial review over the way in which the other principles are implemented.
The courts should be accessible; no man may be denied justice.
The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law.
According to Raz, the validity of these principles depends upon the particular circumstances of different societies, whereas the rule of law generally "is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man". Dicey emphasized three aspects of the rule of law: (1) no one can be punished or made to suffer except for a breach of law proved in an ordinary court; (2) no one is above the law and everyone is equal before the law regardless of social, economic, or political status; and (3) the rule of law includes the results of judicial decisions determining the rights of private persons.


Relation to economics

One important aspect of the rule-of-law initiatives is the study and analysis of the rule of law’s impact on economic development. The rule-of-law movement cannot be fully successful in transitional and developing countries without a answer to the question: does the rule of law matter for economic development or not? Constitutional economics is the study of the compatibility of economic and financial decisions within existing constitutional law frameworks, and such a framework includes government spending on the judiciary which in many transitional and developing countries is completely controlled by the executive. It is useful to distinguish between the two methods of corruption of the judiciary: corruption by the executive branch, in contrast to corruption by private actors.
The standards of constitutional economics can be used during annual budget process, and if that budget planning is transparent then the rule of law may benefit. The availability of an effective court system, to be used by the civil society in situations of unfair government spending and executive impoundment of previously authorized appropriations, is a key element for the success of the rule-of-law endeavor.
The Rule of Law is especially important as an influence on the economic development in developing and transitional countries. To date, the term “rule of law” has been used primarily in the English-speaking countries, and it is not yet fully clarified even with regard to such well-established democracies as, for instance, Sweden, Denmark, France, Germany, or Japan. A common language between lawyers of common law and civil law countries as well as between legal communities of developed and developing countries is critically important for research of links between the rule of law and real economy.



In schools

The rule of law is generally acknowledged to be a cornerstone of orderly, organized society, including within schools. The Sudbury School is an example of a school where laws are always promulgated in writing, and careful records are kept of the body of precedents surrounding each rule. There is no opening, however small, for arbitrary or capricious authority to step in.


In conflict with natural law

Upholding the rule of law can sometimes require the punishment of those who commit offenses that are justifiable under natural law but not statutory law. Heidi M. Hurd raises the example of a battered woman who rightly believes that there is a strong probability that her husband will eventually attempt to kill her and her children unless she preemptively kills him. If the law does not permit the acquittal of those who claim self-defense in the absence of an imminent threat of harm, then the woman must be punished, or "what will become of the rule of law? For law seemingly ceases to be law if judges are entitled to rethink its wisdom in every case to which it applies and to disregard it whenever it is inferior to the rule that they would fashion."






(source:wikipedia)

Attorney fees

Attorney fees discount,
Attorney fees (note that the use of the word 'attorney' connotes lawyers broadly: solicitors and barristers) are the costs of legal representation that an attorney's client or a party to a lawsuit incurs. Attorney's fees are assessed in a number of ways, usually set by contract in advance of the representation, including by billable hours, flat fees, or contingent fees. Attorneys who voluntarily accept work on behalf of indigent clients often work pro bono.
An upfront fee paid to a lawyer is called a retainer. Money within the retainer is often used to "buy" a certain amount of work. Some contracts provide that when the money from the retainer is gone, the fee is renegotiated.
In some jurisdictions, in a civil case, a lawyer for the plaintiff can take a case on a contingent fee basis. A contingent fee is a percentage of the monetary judgment or settlement. The contingent fee may be split among several firms who have contractual arrangements amongst themselves for referrals or other assistance. Where a plaintiff loses, the attorney may not receive any money for his or her work. Many countries prohibit contingent fees as entirely unethical. Most jurisdictions in the United States prohibit working for a contingent fee in family law or criminal cases.
In the United States, state laws or bar regulations, many of which are based on Rule 1.5 of the American Bar Association's Rules of Professional Conduct, govern the terms under which lawyers can accept fees. Many complaints to ethics boards regarding attorneys revolve around excessive attorney's fees.
Amount of fees

The examples and perspective in this section may not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page. (September 2007)
The range of fees charged by lawyers varies widely from one city to the next. Most large law firms in the United States bill between $200 and $1,000 per hour for their lawyers' time, though fees charged by smaller firms are much lower. The rate varies tremendously by location as well as the specific area of law practiced. Typically insurance defense firms have lower hourly rates than non-insurance firms, but are compensated by having steady, regular paying work provided. Locations like Salt Lake City will average $150 per hour for an associate's time on a basic case, but will increase for larger firms.
Many surveys of hourly rates are done. The American Intellectual Property Law Association ("AIPLA") commissions a survey of its members every 2 years and it publishes these in what it calls a "Report of the Economic Survey". The latest one is dated June 2007. Rates are collected for 14 geographic areas and by associate or partner. See www.aipla.org for more information, although the Surveys are not made available online, but must be purchased. Many courts have followed the rates shown by these AIPLA surveys and they are highly-regarded for Intellectual Property litigation.
The State Bar of Oregon and the Colorado State Bar also have published an Economic Survey of rates for various areas of Oregon and Colorado and these are available online.
Perhaps the most widely followed set of rates are what is called the Laffey Matrix that is available from the United States Attorney's Office for the District of Columbia. These have been available since 1982 and are updated each year. The hourly rates are shown by years of experience. For June 1, 2006 to May 31, 2007 the rates are as follows: 20+ years of experience, $425 per hour; 11–19 years, $375; 8–10 years, $305; 4–7 years, $245; 1–3 years, $205; and Paralegals/law clerks $120 . The Laffey Matrix appears to be growing in acceptance by many courts throughout the United States, but the matrix must be adjusted to account for higher or lower costs for legal services in other areas.
Hourly rates are increasing almost every year and some lawyers charge substantially higher than the rates shown by the Laffey Matrix. The first American attorney to regularly charge a four-digit hourly fee ($1000 and higher) was Benjamin Civiletti in late 2005.
With the recession of 2008-2010, corporate clients began driving attorneys increasingly toward alternative fee arrangements, or AFAs. AFAs can include flat fees (per matter), fixed fees (for a "book" of matters), success bonuses, and other options beyond straight hourly billing.,


Loser attorney pays,

Most countries operate under a "loser pays" system, sometimes called the English rule. Under the English rule, the losing party pays the successful party’s attorney fees, as well as other court costs. The United States is a notable exception, operating under the American rule, whereby each party bears its own legal expenses. Some tort reform advocates propose adopting a "loser pays" rule in the United States. For example, a judge may say: "I am ruling for the plaintiff on the amount of $(amount of money) plus all court costs and attorney fees."


Awards of attorney fees in the United States

A number of federal laws provide for an award of attorney fees for a prevailing plaintiff, such as:
Class actions
Civil rights violations, see Civil Rights Attorney's Fees Award Act of 1976
Freedom of Information Act violations
Copyright and patent cases
Antitrust actions
Lemon law cases
Suits against the federal government where the position of the government was not "substantially justified"
Note that these "fee shifting" awards are a characteristic of the law enforced and do not necessarily depend upon the court in which they were brought; state courts can and do sometimes hear lawsuits brought under federal law. So if, for example, a person brings a civil rights action in state court and wins, he may be entitled to an award of attorney fees.
Most states have statutes under which attorneys' fees may be awarded to a prevailing plaintiff, such as an action on a contract where the contract contains a provision allowing recovery, or an action brought under consumer protection laws. Both plaintiffs and defendants are sometimes awarded attorneys fees in divorce and child custody actions, although this is an unusual circumstance, since such awards are made under the court's power to divide property or award alimony and child support. A majority of states allow generally for an award to any party in a lawsuit, if another party has forced him to expend money on attorneys fees to defend against a claim utterly or substantially lacking any possible merit (frequently called "abusive litigation").
For example, in the State of Georgia, a trial court must award attorneys fees if a party has brought a claim "with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position." O.C.G.A. § 9-15-14(a). A trial court may, but is not required to, award attorney's fees if a party has made a claim "that lacked substantial justification or . . . was interposed for delay or harassment, or if [the opposing party] unnecessarily expanded the proceeding by other improper conduct . . . ." O.C.G.A. § 9-15-14(b).
There are many ways of calculating prevailing-party attorney fees. Most courts recognize that actual costs may be disproportionate and inequitable. Thus, many jurisdictions rely on other calculations. Many courts or laws invoke a lodestar' calculation: reasonably expected billable hours multiplied by a reasonable hourly rate, sometimes multiplied by a factor reflecting the risk or complexity of the case. Courts in class actions frequently award fees proportionate to the damages recovered. The Class Action Fairness Act of 2005, which, among other provisions, regulates the fees that can be awarded in a class action, was passed in response to concerns that courts were not adequately overseeing the award of such fees.
Some statutes permit awards of attorney fees to prevailing defendants in extraordinary circumstances, such as proving that the litigation was frivolous, in the sense of it being objectively baseless and brought in bad faith.


Tort reform and attorney fees

Some tort reform proposals in the United States seek to further regulate attorney fees. In 2004, Florida passed a constitutional amendment limiting contingent fees in medical malpractice cases. Some object to these laws as an unfair restriction on freedom of contract.





(source:wikipedia)

Legal advice


Legal advice facts,


In the common law, legal advice is the giving of a formal opinion regarding the substance or procedure of the law by an officer of the court (such as solicitor or barrister), ordinarily in exchange for financial or other tangible compensation. Advice given without remuneration is normally referred to as being pro bono publico (in the public good), or colloquially, pro bono.
Legal advice is distinguished from legal information which is the reiteration of legal fact. Legal information can be conveyed by a parking meter, sign or by other forms of notice such as a warning by a law enforcement officer. Printed legal materials, such as directions and how-to manuals, are generally not considered legal advice. Accordingly, directions on how to fill in a motion form and other court documents do not constitute legal advice. On the other hand, application of legal rules and principles to a specific set of facts is almost always held to constitute legal advice by the courts.,
Online Legal Advice,

With the advent of the internet, many services have been established to provide individuals the power to conduct their own legal research or prepare their own legal documents.
In addition, some companies have taken it a step further by offering answers to legal questions directly through their web services.








(source:wikipedia)