Best Law Now

Washington D.C. in the House

After being told no for the last 200 years, the House of Representatives have okayed a bill that would allow a House of Representatives position to be created for the residents of the District of Columbia. This is a complete shock to some, who analyze the situation and state that technically the District of Columbia is not a state and has no right to a representative in the house.

Along with adding a member of the house for the D.C. area, Utah has been given a fourth seat. Now the bill is passed along to the Senate to have a final approval but with the District of Columbia not being a true state, many are expecting the bill to be squashed. Some may not have realized but 200 years ago it was determined that the District of Columbia would be banned from a seat in the House since it was not a state.

Utah was declined an additional seat in the house after falling shy of the required residents to acquire a fourth seat after the last census. However, since they are in the process of adding additional seats and Utah is so very close to the requirements it is expected that by the next election they should have the required number of residents to justify the additional seat.

This is a major milestone in the House of Representatives, which has sat at 435 seats since 1960; it has been over 45 years since additional seats were added to the house. Opponents of the new bill have all been quick to point out that while it’s wonderful that the House is looking to grow, the Constitution clearly states that the members of the House are chosen by the people of the states, which since the District of Columbia is not a state, causes a major snafu in the plans of the Democratic majority House.

The House is slated to keep the 437 seats even after the 2010 census, which is when Utah is slated to be expanding to a 4th district. While this is the first time this measure has actually passed the House, it is not the first time it has been discussed, nor debated. Back in 1978, it was mentioned that the District of Columbia should be given a vote in the House of Representatives; however, the amendment was discarded after it was unable to be ratified by a quorum three-fourth majority of the states.

Once again, the measure was attempted in 1993; however, this attempt was focused around moving the District of Columbia into statehood and transforming the District into a full-fledged state of the United States. This proposal was also rejected, so this is a major victory that has been attempted several times previously. Whether it will pass through the Senate, and ultimately receive legal effect, is still left to be determined.

Many have argued that the District should be allowed a seat in the House, since the residents of the District pay taxes and fight in the wars of this country just like residents of any other state. The debate and battle rages on, and it will be a rather interesting experience to see if the District is able to win their bid to a permanent seat in the House.

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Straight Marriages – Gay Unions

The debate of gay marriages has been a very hot political topic for many years and with being such a hot topic it is almost astounding the number of places that have come out publicly either for or against the topic. While there are few states who allow the idea of a gay or same-sex marriage there are those more liberal affording almost equal rights. Massachusetts is the only state currently in the United States that allows same-sex marriages. The state of Rhode Island is generous enough to recognize as legal marriage any same-sex marriage that is performed in Massachusetts, which is a major victory for many same-sex supporters.

The elections of recent years have seen this as a very hot topic button, and with the White House, stressing that marriage involves a man and a woman only, not same-sexes many states have been very reluctant to allow the same-sex marriages. However, a few states have come forward and allowed same-sex civil unions, which are very similar to a marriage.

These states are California, Hawaii, Maine, Connecticut, New Jersey, and Vermont. The District of Columbia also recognizes same-sex unions and soon the Governor of New Hampshire has stated publicly that he will sign a bill giving the ok to same-sex unions. This is a major victory for those who are supporting the movement.

While many states have not given the green light on the same-sex issue, there are states who are sitting around discussing the issues. Many couples who are fighting for their rights have argued that there is no difference in the way they run their households compared to their heterosexual counterparts. They have also stated that while they may be with a partner who is the same sex as them, they do still love their partner and should have the right to get married.

This has always been a hot topic, and likely will continue to be a hot topic for many years to come. With the issues raging within the states and at the national level it will likely be a very long time before the gay and lesbian rights groups are able to truly declare a victory for their cause. Nevertheless, there is some solace to be taken in the small victories as they occur, and another Governor of a state being willing to allow a civil union is at least a step in the direction towards a victory.

The fact remains that often the views of the individual states tend to reflect the views of the President. With a President in office who is a staunch opponent to the concept of same-sex marriage as well as civil unions it is unlikely to allow much room for many victories until a more accommodating, or rather liberal, President is in the White House.

Once the bill passes all of the channels, it can go into effect as early as next year for the New Hampshire residence who have long been awaiting this victory. With each state that gives this right to its residents, it opens the doors to more states to start becoming more tolerant of all their inhabitants. Finally, this is paving the way for America to join the bulk of Europe in recognizing the legal inequalities between straight and gay couples nationwide.

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Types of Prepaid Legal Services

Over 100 million Americans are signed up for pre-paid legal services. Also
called legal insurance, these plans are similar to those provided by Health
Maintenance Organizations (HMOs) and cover the legal needs of the member,
spouse and any dependent children.

In a prepaid legal service plan, the customer pays a fixed monthly
subscription fee of up to $25 for the services of pre-selected lawyers.
The most basic plans provide advice and consultation by telephone. Plan
members receive a few hours of free office consultation with their assigned
attorney. They may also include review and advice on simple legal documents,
preparation, drafting or an update of a simple will. Phone calls and letters
can be written on behalf of members, a service helpful for credit problems
and consumer protection.
More comprehensive plans cover clients personal legal needs ranging from
services that require more time and effort on the part of your attorney,
such as contracts, wills and deeds, to legal representation in negotiations
and courts cases related to family matters, bankruptcy and real estate
issues.

Reducing Legal Malpractice Exposure

Many legal malpractice claims share common allegations/themes that can be avoided if law firms have the proper risk management measures in place. Implementation and maintained use of some very rudimentary systems and procedures can reduce the likelihood of being sued, or in the event you are sued, can bolster your defense. Below are some basic tips law firms can utilize to help reduce their legal malpractice exposure.

Engagement Letters – Legal malpractice claims often hinge on whether or not the claimant can establish that they were a client of the attorney (or at least owed a duty of care in 3rd party claims) and that the attorney agreed to handle the matter in question. A written engagement letter prepared for each client or potential client can serve to establish the facts of the lawyer-client agreement. Ideally an engagement letter would include the following:

Name of client
Scope of services (and in certain circumstances specifying what services are not being performed/included is also appropriate)
Fee amount and billing schedule, including payment expectations
Identification of any potential conflicts of interest
Name and contact information of primary attorney handling the matter including outline of firms communication guidelines (i.e. timeframes for responses to phone calls, faxes, letters, etc.)
Clients obligations to the attorney and/or firm
Dispute resolution method and initiation procedure

Non-Engagement/Declination Letters – These are often the difference in getting a meritless claim dismissed. As important as engagement letters are, non-engagement/declination letters are equally important. Written documentation to the former potential client advising that you will not be representing them is critical in establishing that no professional relationship existed. Non-Engagement/Declination letters should include the following:

Name of potential client
Date the attorney and/or firm met with potential client to discuss representation
Details of the potential case which were discussed
Statement clearly advising the potential client of the attorneys/firms decision not to accept the case

Disengagement Letters – Various circumstances may arise that prompt a severing of the professional relationship between a lawyer and client. This often occurs before the matter for which the attorney was hired has reached a final resolution. In such circumstances it is crucial the disengagement be documented in a letter to the client. If the client subsequently hires new counsel who makes an error, the disengagement letter may be the best defense to establish who the responsible attorney was at the time the error occurred. Disengagement letters should include the following:

Name of client
Date the attorney and/or firm are terminating their representation of the client
Statement clearly advising the client of the attorneys/firms reason for disengagement (i.e. case concluded, client request, non-payment of fees, etc)
Successor counsel: if known include their name, if not include a statement advising client to seek new counsel

Professional Liability Insurance – Consistent use of the letters described above may help you reduce the possibility of being named in a malpractice suit, however they wont eliminate the possibility of claims. Lawyers professional liability insurance wont eliminate claims either, but it can serve to minimize the impact a malpractice claim might have on your firm.

When deciding whether or not to carry professional liability insurance, consider the following:

Frequency of client claims and malpractice law suits are on the rise. The National Law Journal has reported that an attorney can now expect to be sued at least once during their career.

Defending a malpractice claim is expensive. History tells us that approximately 35% of loss payments in professional liability claims are due to litigation expenses, so even if you prevail with your defense it will be costly.

Your personal assets may be at risk without appropriate professional liability insurance in place.

Many clients, especially larger companies, are now requiring proof of professional liability insurance before they will enter into an engagement.

Many, if not most, referral services require the attorney or firm have professional liability insurance in place before they will begin referring cases.

Some states and jurisdictions now require that you disclose to clients whether or not professional liability insurance is in place.

If you are a small or mid-sized law firm that has experienced difficulty finding lawyers professional liability insurance due to paid claims or disciplinary actions, DefenseProSM Lawyers Professional Liability may be able to help. Administered by Lockton Risk Services, a subsidiary of Kansas City-based Lockton Companies, the largest independently-owned commercial insurance broker in the United States, DefenseProSM is specifically designed to meet the professional liability needs of distressed law firms. For more information, visit the DefenseProSM website at http://www.defenseproliability.com.

DISCLAIMER: The information in this article is provided for general discussion purposes only, and does not constitute legal advice. For specific advice contact your own legal, financial, insurance and/or other advisor.

Tougher Bankruptcy Laws Take Effect October 2005

In just a few short weeks, President Bushs Bankruptcy Abuse Prevention and Consumer Protection Act will take effect. In a nutshell, the new law, which goes into effect on October 17, 2005, makes it more difficult to cancel your debts under Chapter 7 Bankruptcy protection. Instead, consumers will find themselves having to file for Chapter 13 Bankruptcy protection and paying back their creditors over a five year period.

Heres a look into some of the major changes that will affect consumers choosing to file for bankruptcy after the new law goes into effect -

Qualifying – Chapter 7 or Chapter 13?

To be able to qualify for protection under Chapter 7 bankruptcy, consumers will have to face a means test. The means test determines if your household falls above or below the median income in the state where you reside. Those whose total is greater than the state median income will not qualify to cancel debts under Chapter 7 protection and will alternately have to file under Chapter 13 and pay back your creditors.

The major intent of bankruptcy reform is to require people, who can afford to make some payments towards their debt, to make these payments, while still affording them the right to have the rest of their debt erased.

The amount you have to pay back under Chapter 13 protection will be greater because instead of a 3-year pay back period, that time frame is now extended to five years – to ensure your creditors get paid.

Credit Counseling

Anyone filing for bankruptcy under the new law will be required to go through mandatory credit counseling. Be careful before choosing a credit counselor as this field is filled with people looking to line their pockets while emptying yours.

To find a trustworthy counselor, check to see if there are any complaints against them or their organization filed with your local Better Business Bureau. Secondly, find out if they are certified by the National Foundation of Credit Counselors or the Association of Independent Consumer Credit Counseling Agencies. Finally, find out if they have not-for-profit status. Personally I recommend Consumer Credit Counseling Services as they meet all three of the above criteria. They can be reached at 1-800-888-2227 and can connect you with a local office.

The Cost Factor

Filing for Chapter 7 protection under the old laws normally cost under $1,000. You should expect to pay more under the new laws as filing fees have been increased by $60. Additionally, your attorney will be required to double check all your financial information which will take more of his or her time. Also there is greater liability imposed on the lawyer which may cause their liability insurance to increase, which gets passed on to their clients in the form of higher fees. Under the new law, many are expecting fees to increase between 25-50%.

Why Were the Laws Changed?

The bottom line is that major commercial creditors lobbied hard for reform. Companies like CitiBank, MBNA, and other credit card issuers actively contributed proposed amendments along with generous financial support to reforming the bankruptcy laws – and in their favor, according to many consumer protection groups.

The INS, Role, and Responsibilities

In the days following the 9/11 attacks there have been many changes in the organization and how the government handles the flow of people coming into the country. The INS was first started as the organization that was responsible for handing the people who were applying for citizenship and residency. INS stands for Immigration and Naturalization Service, the organization charged with respecting the safety of the USA.

The INS is now responsible for many tasks that it never had before, including inspecting travelers who are entering and exiting the United States gates through more than 300 points of entry nationwide. Whether you are coming or going from the United States, you are likely to be passing through an INS worker who is responsible for helping make sure anyone who is wanted by the law is not able to gain entry to the country. Although largely a precaution, it is thought that this will be most helpful in preventing possible threats to national security.

Other tasks of the INS include handling the residence status of all who apply for residence and citizenship. They also handle and seek to regulate the status of all permanent and temporary immigration requests. The INS. also handles tourists, and students, as well as those coming for conventions, special classes, visiting family and all other business.

The INS has also been given the tasks of controlling all of the borders into the United States, especially the borders between Mexico and the United States and Canada and the United States. This is an extremely large task since the United States shares such large land borders with two other countries. This allows for an almost daily flow of people trying to enter the country illegally.

INS workers are also responsible for handling and removing all people who have no legal rights to be in this country. They are responsible for removing the parties in accordance with the laws, and by following all of the standards that are set in place for obtaining temporary status, or returning the person to the country where they came from.

In a report the INS released in 2001, there was 31,971 employees on staff. This resulted in a rate of 24,233 of these employees being classified as enforcement personal were used to enforce the laws, rulings and policies of this country. The INS today is a function of the Justice Department and serves mostly as an investigative unit, unlike many other departments, which serve as law enforcement units instead.

In recent years, the borders have had more illegal entry than previously, which has resulted in larger amounts of staff being added to help secure the borders and protect our country. Without being able to know who is entering our country, we are unable to truly protect our citizens and other people. Border patrol agents is the one largest area where the INS has seen growth in jobs available. Due to the increase of jobs in the border patrol, we are able to see much fewer illegal entries into the country.

As we progress into a country that is, more accommodating of people from various cultures it will be quite interesting to see how the INS is changed to adapt and become more friendly to the needs of all people, even those entering the country.

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Pre-paid legal services for small business

If you are operating your own business, you cannot afford to go it alone
when it comes to legal matters. The ever increasing complexities of law,
spiralling costs of lawsuits and the proliferation of government red tape
can land you in a lot of trouble.

The flip of the coin is hardly attractive either! Hiring a lawyer can
constitute a substantial financial investment many cash-strapped small
businesses and entrepreneurs cannot sustain. Lawyers charge a minimum of
$200 per hour when it comes to business law and it can get very
costly if you are involved in lengthy legal procedures, complicated
contracts or business transactions.

There may just be a glitter of hope in pre-paid legal plans. For a set
monthly price, some legal providers are now bundling a whole suite of
legal services especially tailored to the needs of small-businesses.
Whether you need phone consultation on the legal complexities of a lease
contract, or require legal representation during tax audits, a pre-paid
plan can help you manage legal costs. An array of services is included as
standard coverage at no cost to you in the plan, and any legal matters
not covered can be provided with a discount on fees.

Before you take the leap, you need to keep some caveats in mind.

You need to know more about the quality of service you are likely to get.
While lower fees do not necessarily infer lower quality of work, it is
always necessary to bear in mind that legal specialization plays a crucial
part and lawyers are not interchangeable. Ask for references from previous
clients or ask entrepreneurs whove used the services of the provider about
the quality of work they have received from them. Use your state bar
association, service organizations in your locale and your local Better
Business Bureau to research law firms and the background of the attorneys
in the network before selecting them. Things to look for are the number of
years they have been operating, complaints from previous customers, the
education background of attorneys, professional track record and so forth.
With the increasing amount of small businesses involved in litigation and
fee disputes with their legal providers, I iss important to give some
thought to alternative courses of actions when dealing with disputes. Ask
your prospective provider about the way in which they settle disputes or
complaints. Do they have an in-house procedure to deal with complaints,
appoint a senior attorney to deal with such things or do you simply have to

settle out of court?

The Fairness of Limited Liability

Limited liability is one of the most successful commercial creations of all time, almost singularly responsible for the growth and expansion of capitalism. Encouraging risk and promoting successful enterprise through both small and large businesses alike, limited liability has been the driving force behind economic success in the Western world and is one of the most celebrated legal creations of all time. But what is it about limited liability that makes it so successful? Indeed, is the structure of limited liability fair as regards creditors, who ultimately bear the brunt of this mechanism?

Limited liability in general means a sacrifice of privacy in return for the benefit of limited personal liability. In layman’s terms, this means that the company promoter is not personally liable for any of the company’s debts, thus encouraging risk and promoting enterprise. For most small businesses, it is a lifeline, and without it the economy would level out and stifle with fewer new start-ups each year. At the back end, however, these businesses leave behind a trail of debts that ultimately result in financial loss for lenders and those that operate on credit terms. This raises the general question of whether limited liability as a creation is fair for the creditors it so apparently prejudices?

Limited liability has given life to companies across the world, by providing the reassurances necessary to entrepreneurs to take the risk, safe in the knowledge that personally speaking they should come out unscathed. From this, more companies have grown and flourished, which has led to more jobs and better state welfare for virtually all capitalist economies. The strength of this function has gone a long way towards building the great superpowers, and is seriously underestimated as a legal construct.

Limited liability leaves a gap in the pockets of those companies that lend money or offer their customers credit terms during the course of their business. As a consequence of the promoter’s ability to walk away with his hands clean, many businesses find the squeeze of bad debts too severe, and end up having to take on credit of their own to meet the shortcomings. In theory, limited liability leaves creditors in a weak situation, with relatively limited powers to regain the full amount of any monies due.

In reality, limited liability doesn’t operate in that way. Of course, many businesses go under every year as their owners walk free of encumbrance, but generally speaking the economic world does not work between insolvent companies. However, the flexibility allowed by limited liability has meant debt in a sense has become effective currency, and has helped businesses to survive during tough times, and to seek the financial help necessary without the appropriate risk.

Limited liability might be seen as slightly unfair at the razor’s edge, but it works all round to ensure that everyone has access to credit and the benefits of limitation of damages when it is necessary. Ultimately, it promotes a more competitive, lower-risk environment within which business can flourish and economies can grow and multiply, providing jobs and economic strength to nations embracing its basic form. As legal fictions go, the limited company has undoubtedly prove itself to be one of the most popular ever created, and its growth looks set to continue as it is developed and refined across the world.

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Pre-paid legal plans? You can get them for free!

They say the best things in life are free. In the case of pre-paid legal
plans, this may just hold true.

Pre-paid legal plans offer a range of legal services on-call for a fixed
monthly charge of up to $25 per month. With such a low monthly payment,
most people are only too happy to get a legal coverage they wouldnt have
otherwise dreamt of in the stultifying, money-grabbing world of lawyers…
But did you know, you could get all of that coverage free of charge?

In a bid to cut on administration costs, employers, labor unions and
universities are now providing legal services at discounted or no cost
altogether to their members. Employers are increasingly sponsoring legal
plans to their employees as a fringe benefit, as part of their Employee
Assistance Program (EAP). Labor unions fund plans offered as member
benefit, or under a collective bargaining scheme, in which case new members
are eligible to huge discounts. Universities are equally as involved with
legal plans offered to students and staff.

The access legal plan

Pre-paid legal plans come in a variety of types depending on the scope of
legal coverage they provide.

The most basic pre-paid plan is designed to make the simple legal services
readily available to the general public at low cost. These plans typically
cost between $10 and $30 per month, billed in advance.
You get unrestricted toll-free number telephone access to a lawyer for
legal advice and consultation. You can also make brief office consultations
to talk to your lawyer about any legal problems you may be encountering.
Your lawyer can also write to letters or make phone calls on your behalf.
This can help resolve many problems before they escalate further.
Other services provided are not overly time-consuming: the drafting of your
will to distribute your property after your death, review of your trust and
any other simple legal document.

If you require any other service beyond the scope of a basic plan, then you
can either pay discounts on regular lawyer fees or pay a premium to upgrade
to a more comprehensive plan.

« Older Entries Newer Entries »

Best Law Now

Washington D.C. in the House

Straight Marriages – Gay Unions

Types of Prepaid Legal Services

Reducing Legal Malpractice Exposure

Tougher Bankruptcy Laws Take Effect October 2005

The INS, Role, and Responsibilities

Pre-paid legal services for small business

The Fairness of Limited Liability

Pre-paid legal plans? You can get them for free!

The access legal plan

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