The document compares legal ethics between the United States and European Union. It finds that while client confidentiality and loyalty are important in both systems, there are key differences in how lawyers are regulated. The US follows a common law approach with more formal ethical rules while EU countries follow civil law with more general standards. The EU also allows for more liberal practices like multijurisdictional partnerships and non-lawyer ownership of law firms through reforms like the UK Legal Services Act. In contrast, US state-based licensing restricts multistate and multidisciplinary practice.
ARBITRATION AGREEMENT FORMAT
FREE LEGAL AND ACCOUNTANT FORMATS
KANOON KE RAKHWALE INDIA
HIRE LAWYER ONLINE
LAW FIRMS IN DELHI
CA FIRM DELHI
VISIT : https://www.kanoonkerakhwale.com/
VISIT : https://hirelawyeronline.com/
The petitioner (an advocate) has initiated the PIL under Article 32 seeking to issue an appropriate writ/ order/ direction restraining permanently the Bar Council of Maharashtra and Goa (BCMG), Bombay Bar Association (BBA) and the Advocates Association of Western India (AAWI), coercing Justice A.M. Bhattacharjee, Chief Justice of Bombay High Court, to resign from the office as Judge.
He also sought an investigation by the CBI into the allegations made against the Justice A.M. Bhattacharjee and if the same are found true, to direct the, Speaker, Lok Sabha to initiate action for his removal under Article 124(4) and (5) read with Article 218 of the Constitution of India and Judges (Inquiry) Act,1968 .
A civil advocate in Indoremust charge a fee consistent with his standing at the bar and the nature of the case. The Constitution of India makes provision for the high courts to settle the table of fees payable to advocates practicing before them. An advocate must not stipulate a fee contingent on the results of litigation or agree to share the proceeds of litigation. This is because giving the lawyer an interest in the subject matter of the suit is against professional ethics and violative of public policy.
ARBITRATION AGREEMENT FORMAT
FREE LEGAL AND ACCOUNTANT FORMATS
KANOON KE RAKHWALE INDIA
HIRE LAWYER ONLINE
LAW FIRMS IN DELHI
CA FIRM DELHI
VISIT : https://www.kanoonkerakhwale.com/
VISIT : https://hirelawyeronline.com/
The petitioner (an advocate) has initiated the PIL under Article 32 seeking to issue an appropriate writ/ order/ direction restraining permanently the Bar Council of Maharashtra and Goa (BCMG), Bombay Bar Association (BBA) and the Advocates Association of Western India (AAWI), coercing Justice A.M. Bhattacharjee, Chief Justice of Bombay High Court, to resign from the office as Judge.
He also sought an investigation by the CBI into the allegations made against the Justice A.M. Bhattacharjee and if the same are found true, to direct the, Speaker, Lok Sabha to initiate action for his removal under Article 124(4) and (5) read with Article 218 of the Constitution of India and Judges (Inquiry) Act,1968 .
A civil advocate in Indoremust charge a fee consistent with his standing at the bar and the nature of the case. The Constitution of India makes provision for the high courts to settle the table of fees payable to advocates practicing before them. An advocate must not stipulate a fee contingent on the results of litigation or agree to share the proceeds of litigation. This is because giving the lawyer an interest in the subject matter of the suit is against professional ethics and violative of public policy.
Dalam perkembangan kebahasaan, kata ijarah itu
dipahami sebagai "akad" ( العقد ) yaitu akad (pemilikan) terhadap
berbagai manfaat dengan imbalan العقد على المنافع بعوض ) ) atau akad
pemilikan manfaat dengan imbalan, yakni kontrak kerja dan sewa menyewa.
Included topics:
- Betrothal
- Marriage
- Dissolution
- Ancillary claims
- Parent and children
- Adoption
- Legitimacy
- Inheritance
Not included:
- Introduction to the Administration of Islamic law in Malaysia
- Polygamous marriage
Anton Piller order
Assignment of Choses in Action
Effect of Section 6 Civil Law Act 1956 in respect to equity
Fusion of Law and Equity
Meaning of maxims and illustrations from cases
Perpetual injunction
Promissory Estoppel
Reception of Equity in Malaysia
Sunn Ang the accused was charged and convicted for the murder of his girl friend Jenny. A Singapore case related to the law of evidence. Circumstantial evidence, Relevancy, Continuity.
This presentation by Renato NAZZINI, Professor of Law & Director of Research in Construction Law, King's College London, was made during the discussion “Treatment of legally privileged information in competition proceedings” held at the 128th meeting of the OECD Working Party No. 3 on Co-operation and Enforcement on 26 November 2018. More papers and presentations on the topic can be found out at oe.cd/tlp.
Dalam perkembangan kebahasaan, kata ijarah itu
dipahami sebagai "akad" ( العقد ) yaitu akad (pemilikan) terhadap
berbagai manfaat dengan imbalan العقد على المنافع بعوض ) ) atau akad
pemilikan manfaat dengan imbalan, yakni kontrak kerja dan sewa menyewa.
Included topics:
- Betrothal
- Marriage
- Dissolution
- Ancillary claims
- Parent and children
- Adoption
- Legitimacy
- Inheritance
Not included:
- Introduction to the Administration of Islamic law in Malaysia
- Polygamous marriage
Anton Piller order
Assignment of Choses in Action
Effect of Section 6 Civil Law Act 1956 in respect to equity
Fusion of Law and Equity
Meaning of maxims and illustrations from cases
Perpetual injunction
Promissory Estoppel
Reception of Equity in Malaysia
Sunn Ang the accused was charged and convicted for the murder of his girl friend Jenny. A Singapore case related to the law of evidence. Circumstantial evidence, Relevancy, Continuity.
This presentation by Renato NAZZINI, Professor of Law & Director of Research in Construction Law, King's College London, was made during the discussion “Treatment of legally privileged information in competition proceedings” held at the 128th meeting of the OECD Working Party No. 3 on Co-operation and Enforcement on 26 November 2018. More papers and presentations on the topic can be found out at oe.cd/tlp.
1 UNIVERSITY OF PORTSMOUTH BUSINESS SCHOOL BUS.docxhoney725342
1
UNIVERSITY OF PORTSMOUTH BUSINESS SCHOOL
BUSINESS & EMPLOYMENT LAW
(U21764 & U24401)
Unit co-ordinator - HELEN BURTON
[email protected]
Anglesea 1.60
Lecture Notes
2017
2
3
Week Week
beginning
Lecture Seminar
1 25
September
Introduction to the unit
Classification & sources of law
What is law?
2 2 October Domestic legislation and
European law
Classification and sources of law
3 9 October Case law and judicial
precedent
How to read and understand
cases
Legislation and statutory
interpretation
4 16 October Introduction to contract law
Contract formation
Case law and judicial precedent
How to read and understand
cases
5 23 October Contractual terms Contract formation
6 30 October Controls on exemption
clauses and unfair terms
Contractual terms
7 6 November Misrepresentation Controls on exemption clauses
and unfair terms
8 13 November Discharging a contract
Remedies for breach of
contract
Misrepresentation
9 20 November Introduction to the law of tort Discharging a contract
Remedies for breach of contract
10 27 November Negligence Introduction to the law of tort
11 4 December Vicarious liability, defences
and remedies in tort
Negligence
12 11 December No lecture Work on Moodle to help with
coursework due 12th January
Business Law
Autumn Teaching Block 2017
4
5
CONTENT OF THIS LECTURE
· Introduction to the unit
· What is law?
· Classification of law
· Sources of law
· Overview of the Courts System
Introduction to this unit
To help you throughout the year don’t forget these resources:
1 Two printed handouts:-
i. Lecture notes (you need to supplement these with your own notes, spaces have been
left for you to do so).
ii. Seminar questions.
2 University Library
3 Moodle
4 Lecturer and seminar tutors
5 Core text
6 Unit handbook, this is on Moodle and has lots of useful info about the unit, you will need to
refer to it throughout the year
Lectures only give an overview of a topic.
You need to read beyond your lecture notes!
LECTURE ONE
Introduction to the Unit
Classification and Sources of Law
6
Preparation for seminars
Seminars are most important and you should prepare for them properly and attend each week.
Evidence shows a clear link between those students who do not attend seminars and those who do
badly and fail coursework and exams
To ensure this does not happen to you make sure you:
Read the pages of the core text indicated on the seminar sheet before the seminar.
· Identify what words you will need to understand in order to answer the questions on the seminar
sheet.
· Prepare answers to the questions on the seminar sheets.
· After the class, engage in some further reading as listed on your seminar sheets.
· Ask your seminar tutor to go over any points you are not certain about, they
are ...
Essay Questions Exam #1 Due Sunday Oct 19th @ 10pm Emmanuel .docxbridgelandying
Essay Questions Exam #1
Due Sunday Oct 19th @ 10pm
Emmanuel
1. What are the differences between domestic law and international law? What are the sources for international law?
Domestic law is enforced by legit government. Codified by a legitimate government. Domestic law is dominated by dominated by culture. No true international law
International law – 1) a nation can consent to be bound by international law (agree to a treaty)
2)a convention (comes out of the UN) UN has to be signed by each country- international contract. 3) also consent by custom & practices.
2. What is "enfranchisement"? Discuss the amendments in the US Constitution that applies to
Enfranchisement- to admit to the privileges of a citizen and especially to the right of suffrage
Amendments
· 15th – blacks
· 19th –deals with women rights
· 23th –Washington D.C. can vote
· 24th – abolish property tax vote
· 26th – Lower voting age to 18 years
David Lopez
3. What is “ethics”? What is “morality”? What are the differences between ethics, morality and the law? Briefly discuss legal obligations, professional obligations and organizational obligations.
As mentioned in chapter 5, at the most basic level, ethics constitutes right or wrong behavior. It is a branch of philosophy focusing on morality and the way moral principles are derived and implemented. Ethics has to do with the fairness, justness, rightness, or wrongness of an action. Morals are influenced by culture or society, however they are principal’s set individually by person to person. Business ethics and business law are closely intertwined because ultimately the law rests on social beliefs about right and wrong behavior in the business world.
4. What is "pleadings"? Discuss the contents of a complaint.
The complaint and answer, taken together, are known as the pleadings.
-The facts showing that the court has subject- matter and personal jurisdiction
-The facts establishing the plaintiff’s basis for relief,
-The remedy the plaintiff is seeking.
5. Discuss at least four reasons why the court will apply equitable remedies. Note:UMIRU
Equitable remedies include specific performance, an injunction, and rescission. Specific performance involves ordering a party to perform an agreement as promised. An injunction is an order to a party to cease engaging in a specific activity or to undo some wrong or injury. Rescission is the cancellation of a contractual obligation.Todays courts will not grant equitable remedies unless the remedy at law (monetary damages )is inadequate.
6. Briefly discuss the major publication, practices and invention that had an influence on the US Constitution.
Ideas from many people and several existing documents, including the Articles of Confederation and Declaration of Independence had major influences on the publication for the constitution.
7. What is evidence law? What criteria must be met for evidence to be admissible.
The law of evidence provides principle ...
Chapter 1 – Business and Its Legal Environment1. Schools of Ju.docxcravennichole326
Chapter 1 – Business and Its Legal Environment
1. Schools of Jurisprudential Thought
A. The judge function is not to make the laws but to interpret and apply them. The court plays a significant role in defining what the law is. Judges have some flexibility in interpreting and applying the law, in which each judge’s unique personality, legal philosophy, set of values, and intellectual attributes necessarily frame the judicial decision-making process to some extent.B. The Natural Law School is the oldest and one of the most significant schools of legal though. It is a system of moral and ethical principles that are inherent in human nature and that people can discover through the use of their natural intelligence, or reason. According to Aristotle, natural law applies universally to all humankind.
C. The Positivist School is a school of thought that can be no higher law than a nation’s positive law or national law, the written law of a given society at a particular point in time. In contrast to natural law, positive law does not believe in “natural rights”, but rather human rights exist solely because of laws.
D. The Historical School emphasizes the evolutionary process of law and that looks to the past to discover what the principles of contemporary law should beE. Legal Realism is popular in the 1920s and 1930s that challenged many existing jurisprudential assumptions, particularly the assumption that subjective elements play no part in judicial reasoning. Legal realists generally advocated a less abstract and more realistic approach to the law, and the circumstances in which transactions take place.
2. Business Activities and the Legal Environment A. Laws and government regulations affect virtually all business activities and basic knowledge of the laws and regulations governing these activities is beneficial – if not essential. Therefore, a study of business law necessarily involves an ethical dimension.
B. There are many areas of the law that may affect a single business decision making. Compartmentalizing a law promotes conceptual clarity, but it does not indicate the extent to which a number of different laws may apply to just one transaction. If any dispute cannot be resolved amicably, then the laws and the rules concerning courts and court procedures can spell out the steps of the lawsuit.
C. Ethics and business decision making is an important part of business decision because ethics constitutes right or wrong behavior. Business decision makers need to consider not just whether decision is profitable and legal but also whether it is ethical.3. Sources of American LawA. There are two main sources of American Law -- primary sources that establish the law and the secondary sources that summarize and clarify the primary sources of law. Courts often refer to secondary sources of law for guidance in interpreting and applying the primary sources of law.
B. Constitutional Law is a law that is expressed in the U.S. Constitution a ...
Running head SENSORY INTEGRATION THERAPY SEN.docxjeanettehully
Running head: SENSORY INTEGRATION THERAPY
SENSORY INTEGRATION THERAPY
Sensory Integration Therapy
Name
School
Sensory Integration Therapy
Fully describe sensory integration treatment using information from at least one scholarly sources.
Pro and Con Statement
Identify one pro and one con statement regarding sensory integration treatment, and provide significant context around these statements, and cite information from at least one scholarly sources.
Evaluation of the Treatment
Evaluate sensory integration treatment using at least three of the BACB ethical code elements and justifies one's own opinion on the topic.
1 - 1.01 Reliance on Scientific Knowledge - Behavior analysts rely on professionally derived knowledge based on science and behavior analysis when making scientific or professional judgments in human service provision, or when engaging in scholarly or professional endeavors.
2 - 1.02 Boundaries of Competence (b-New Areas) - Behavior analysts provide services, teach, or conduct research in new areas (e.g., populations, techniques, behaviors) only a er rst undertaking appropriate study, training, supervision, and/or consultation from persons who are competent in those areas.
3 - 1.03 Maintaining Competence through Professional Development - Behavior analysts maintain knowledge of current scientific and professional information in their areas of practice and undertake ongoing efforts to maintain competence in the skills they use by reading the appropriate literature, attending conferences and conventions, participating in workshops, obtaining additional coursework, and/or obtaining and maintaining appropriate professional credentials.
Conclusion
Explain how to communicate the importance of using evidence-based strategies to colleagues and family members using language appropriate for the audience.
References
1 – Scholarly source
2 – Scholarly source
3 – Scholarly source
Topic 11: International Law and Ethics
11.1Learning Objectives
Learning Objectives
1. Summarize the fundamental principles which govern international law.
2. Describe different arrangements of international laws which affect international trade and relationships.
3. Illustrate the basic organization of the United Nations and explain the UN’s purpose.
4. Describe the political organization of the European Union.
5. Compare the purposes and organization of the three main world banking institutions.
6. Identify different methods or tools by which international disputes are typically resolved.
7. Describe the regulations imposed by the Foreign Corrupt Practices Act.
8. Compare different standpoints on businesses’ obligation to fulfill social responsibility requirements.
9. Summarize the basic tenets of the foundational ethical philosophies that are commonly applied to business practices.
10. List and describe the five areas which govern the consensus view of good corporate citizenship.11.2General ...
1Chapter 2 LEGAL RIGHTS AND RESPONSIBILITIES(Laws Governi.docxhyacinthshackley2629
1
Chapter 2: LEGAL RIGHTS AND RESPONSIBILITIES
(Laws Governing the Workplace)
2
Paradoxes about working for the public sector and legal rights
· How and when do we give up personal rights in public employment?
· Must balance three elements
· Employee rights
· Employer needs
· Policy dictates (governmental needs)
In this chapter on Legal Rights and Responsibilities, we are essentially covering laws governing the workplace, of course focusing on the public sector arena. The introduction points out the particularly important paradoxes of living in a democracy in which we value our personal rights, and yet we must yield up or narrow many of those rights in employment situations. This paradox is founded on the underlying principle that public law is trying to balance three elements: the needs of employers, the needs of employees, and the interests of government in pursuing public policy. The entire chapter looks at how these three elements—employees, employers, and policy dictates—are balanced in a wide variety of areas. On one hand, the balancing that is achieved is a magnificent monument to rationality at its best, because the legal system does an extraordinary job of ensuring fairness for employees, employers, and the implementation of policy. It also allows for varying the balance to suit different issues, to evolve over time, and to consider fact-specific situations. Yet on the other hand, public law can be frustrating too, because the balancing act does vary from area to area, does vary constantly over time, and predictability in fact-specific situations is sometimes in doubt until situations are legally challenged and litigated. Thus, public law can be very challenging and frustrating for public managers. As the book points out, managers must embrace the law to avoid the law. This chapter is the primary means that the MPA program uses to ensure that managers are both informed and relatively comfortable dealing with this challenging aspect of management.
3
Not all employment requirements stem directly from laws…
Many issues are not covered by laws, but rather by collective bargaining rules and agency guidelines which are nearly as firm
An interesting note is that much of what constrains employers is not in the law itself, but in civil service rules and tenure systems. Such rules are considered to be freely adopted by governments or individual agencies, and in most cases either have the weight of law, or at least a very strong legal weight in litigation and provide a weapon that can be used when individuals and unions seek protection of employee rights. Thus many of the generalizations in the chapter are based on common practices articulated in rules, rather than specific laws themselves. A prime example of this is in discipline, where civil service systems constrain agencies to act through specific procedures which must be followed scrupulously. Governments set up the legal framework, it is further articulated in collective barg.
Commercial law, also known as business law or corporate law, is the body of law that applies to the rights, relations, and conduct of persons and businesses engaged in commerce, merchandising, trade, and sales.[1] It is often considered to be a branch of civil law and deals with issues of both private law and public law.
Commercial law includes within its compass such titles as principal and agent; carriage by land and sea; merchant shipping; guarantee; marine, fire, life, and accident insurance; bills of exchange, negotiable instruments, contracts and partnership.[2] It can also be understood to regulate corporate contracts, hiring practices, and the manufacture and sales of consumer goods. Many countries have adopted civil codes that contain comprehensive statements of their commercial law.In the United States, commercial law is the province of both the United States Congress, under its power to regulate interstate commerce, and the states, under their police power. Efforts have been made to create a unified body of commercial law in the United States; the most successful of these attempts has resulted in the general adoption of the Uniform Commercial Code, which has been adopted in all 50 states (with some modification by state legislatures), the District of Columbia, and the U.S. territories.
Instructor Notes.htmlTo assist you in completing consulting asTatianaMajor22
Instructor Notes.html
To assist you in completing consulting assignments for TLG, it is important to review some basic concepts relevant to the legal system and constitutional law.
First, review the concept of federalism, the court system, and common law v. civil law, and the nature of law and the legal process.
Some important points are:
(1) the primary purpose of the law is to establish a set of rules and guidelines for society to promote order and to create parameters for acceptable and prohibited behavior;
(2) laws are inevitably subject to interpretation and reinterpretation by courts;
(3) laws must be reasonably specific, and yet sufficiently general, with inherent flexibility, to withstand the rigors of interpretation and the "test of time";
(4) laws that strike a balance as described in (3) above, usually endure as relevant, applicable rules, even with societal changes and reinterpretations;example: the U.S. Constitution has withstood the test of time, partly because of an inherent balance of specificity, generality, and flexibility
(5) laws are promulgated and interpreted by human beings, and thus, are imperfect;
(6) some laws have a worthy purpose, but are difficult to adequately enforce i.e. speed limit laws;
(7) all laws are not necessarily ethical; some conduct can be legal, but considered unethical;
(8) U.S. law has a very dominant protective purpose – protecting all citizens, as well as providing special protections for certain groups of people, in certain circumstances, i.e., minors;
(9) fairness to all is a primary goal of the law, but what is fair to one group may be unfair to another group; what is fair in one situation may be unfair in another situation - every right granted to an individual or group, to some extent, impinges on the rights of another individual or group;
(10) legislatures enacting laws, and courts interpreting laws, must weigh and balance the right(s) granted v. the rights restricted by a specific law to determine if the law is justifiable and fair - this weighing and balancing involves determining if there a compelling public interest or purpose for the law that justifies granting certain rights while restricting other rights;example: highway speed limit laws protect everyone (drivers, passengers, and pedestrians), but also restrict the freedom of drivers to drive at a speed of their choice - on balance, the restriction is easily justified as there is an important purpose in protecting drivers, passengers, and pedestrians example: laws that prohibit alcohol consumption/purchase by minors grant rights to those 21 years and older, and restrict rights of those under 21 years - on balance, society, legislatures, and courts have determined this law is justified as Society has a strong public interest in protecting minors who may not have reached a level of maturity and judgment to handle the right to choose to consume/purchase alcohol
(11) the familiar symbol for law and the legal system is the ...
Lord Sumption indexes relevance or Otherwise of
Limit
Knowledge of Which is Precondition re: and Requisite for
Management
Management according to Law
Legal Concourse
Legitimate Conduct
Current or Future - Past or Present
determinable by and with reference to
Currency - Communication - Currency of Communication and Communication of Currents - as may or may not be evidenced by or deployed - deployable or otherwise according to Marine Law - Maritime Regard and Observance of Seabord - basis of which indicates and is indicative of
Thalassocracy - Evidencing The Precedent of Trafalgar and the License of Those Who Provision and In regard of Whose
SEAT - Tenure - Tenet and Capacity - (The 4 Agreements)
Provision is Made - See: Legacy of Royal Exchange (Sir John Gresham) Gresham Institute and Gresham's LAW.
This country’s planted thick with laws from coast to coast . . . a.docxjuliennehar
This country’s planted thick with laws from coast to coast . . . and if you cut them down... d’you really think you could stand upright in the winds that would blow then?
A MAn for All SeASonS, Act I
Consider . . . 1.1
John Yates, a commercial fisherman, caught undersized red grouper in federal waters in the Gulf of Mexico. To prevent federal authorities from confirming that he had harvested undersized fish, Yates ordered a crew member to toss the suspect fish into the sea. Yates was charged with, and convicted of, violating 18 U.S.C. § 1519,
“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation . . . or
any case filed . . . or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”
Mr. Yates says that the statute applies to financial records and not fish. The statute was passed after Enron collapsed and its financial records and audit papers had been shredded to deter such actions by businesses. Who decides whether the law applies to hurling fish overboard? What should the court decide?
1-1
Definition of Law
Philosophers and scholars throughout history have offered definitions of law. Aristotle, the early Greek philosopher, wrote that “the law is reason unaffected by desire” and “law is a form of order, and good law must necessarily mean good order.” Oliver Wendell Holmes Jr., a U.S. Supreme Court justice of the early twentieth century, said, “[L]aw embodies the story of a nation’s development through many centuries.” Sir William Blackstone, the English philosopher and legal scholar, observed that law was “that rule of action which is prescribed by some superior and which the inferior is bound to obey.” Black’s Law Dictionary defines law as “a body of rules of action or conduct prescribed by the controlling authority, and having legal binding force.”1 Law has been defined at least once by every philosopher, statesman, and police officer.
Law is simply the body of rules governing individuals and their relationships. Most of these rules become law through a recognized governmental authority. Laws give us basic freedoms, rights, and protections. Law also offers a model of conduct for members of society in their business and personal lives and gives them certainty of expectation. Plans, businesses, contracts, and property ownership are based on the expectation that the law will provide consistent protection of rights. Without such constancy in legal boundaries, society would be a mass of chaos and confusion.
1-2
Classifications of Law
1-2a public versus private Law
Public law includes those laws enacted by some authorized governmental body. State and federal constitutions and statutes are all examples of public laws, as are the state incorporation and partnership procedures, county taxation statutes, and lo ...
15INTRODUCTION TO AMERICAN LEGAL SYSTEMINTRODUCTION.docxdrennanmicah
15
INTRODUCTION TO AMERICAN LEGAL
SYSTEM
INTRODUCTION
You likely have a basic understanding of how our legal system works from
current events reported in the news, and perhaps even from a civics course you
took in high school or college. At the risk of revisiting material with which
you are already familiar, this chapter begins by summarizing some core points
about our legal system that will serve as a foundation for your work as a lawyer.
The importance of this background information will become clearer to you as
the chapter and exercises unfold, when you will be asked to apply your knowl-
edge of our legal system to better understand its specifi c relevance to you as a
lawyer.
A. Two Basic Court Systems
Before you begin reading about the sources of law in our court system, you
might fi nd it helpful to have some context that directly applies to your life as a
law student. Consider for a moment your decision to attend orientation classes
at your new law school. The fi rst decision you had to make when you arrived
for orientation (assuming this was your fi rst visit to your new law school)
was to make sure you found the right building in your university. Knowing
that you were to appear for an orientation meeting in Room 201, for example,
wouldn’t help you at all if you ended up in the school of arts and sciences
instead of the law school building. The law school and school of arts and sci-
ences are two very different schools in two very different buildings — while
classes are taught in each building and some of the room numbers might be
the same, the classes themselves are different and are centered around two
different disciplines.
I
2
16 Legal Reasoning, Writing, and Other Lawyering Skills Ch. 2
Similarly, as a law student and ultimately as a lawyer, you will likewise need
to identify “where you are” in terms of the legal issues you will be researching
and evaluating. There are two basic court systems in our country — federal and
state. The federal court system has its own set of laws and courts, and each state
also has its own unique set of laws and courts. Like your law school and the
school of arts and sciences, both federal and state legal systems operate simul-
taneously and pretty much independently.
When a client asks you for legal advice, one of the fi rst things you will need
to do is fi gure out which court system and set of laws controls your client’s
actions. Some conduct is governed solely by the state court legal system, while
other conduct is governed solely by the federal court legal system. And there are
also some instances in which both federal and state laws apply. So, for example,
if your client lived in Chicago, Illinois and had a legal issue that arose there, you
would fi rst need to consider whether federal laws or Illinois state laws governed
the client’s conduct — or both. Assuming the legal matter happened to involve
litigation, that information would also denote the typ.
This Presentation is all about business law, it's characteristics, types and so on. The difference between law and ethics are also given. Significance and Principles of business law is also described in brief.
Show Me Your License and Registration: Reasons to be Concerned About In-House...RonaldJLevine
Show Me Your License and Registration: Reasons to be Concerned About In-House Bar Admissions
Greater New York Chapter of Association of Corporate Counsel’s Annual Ethics CLE Program
Synopsis On Annual General Meeting/Extra Ordinary General Meeting With Ordinary And Special Businesses And Ordinary And Special Resolutions with Companies (Postal Ballot) Regulations, 2018
Matthew Professional CV experienced Government LiaisonMattGardner52
As an experienced Government Liaison, I have demonstrated expertise in Corporate Governance. My skill set includes senior-level management in Contract Management, Legal Support, and Diplomatic Relations. I have also gained proficiency as a Corporate Liaison, utilizing my strong background in accounting, finance, and legal, with a Bachelor's degree (B.A.) from California State University. My Administrative Skills further strengthen my ability to contribute to the growth and success of any organization.
In 2020, the Ministry of Home Affairs established a committee led by Prof. (Dr.) Ranbir Singh, former Vice Chancellor of National Law University (NLU), Delhi. This committee was tasked with reviewing the three codes of criminal law. The primary objective of the committee was to propose comprehensive reforms to the country’s criminal laws in a manner that is both principled and effective.
The committee’s focus was on ensuring the safety and security of individuals, communities, and the nation as a whole. Throughout its deliberations, the committee aimed to uphold constitutional values such as justice, dignity, and the intrinsic value of each individual. Their goal was to recommend amendments to the criminal laws that align with these values and priorities.
Subsequently, in February, the committee successfully submitted its recommendations regarding amendments to the criminal law. These recommendations are intended to serve as a foundation for enhancing the current legal framework, promoting safety and security, and upholding the constitutional principles of justice, dignity, and the inherent worth of every individual.
Guide on the use of Artificial Intelligence-based tools by lawyers and law fi...Massimo Talia
This guide aims to provide information on how lawyers will be able to use the opportunities provided by AI tools and how such tools could help the business processes of small firms. Its objective is to provide lawyers with some background to understand what they can and cannot realistically expect from these products. This guide aims to give a reference point for small law practices in the EU
against which they can evaluate those classes of AI applications that are probably the most relevant for them.
Car Accident Injury Do I Have a Case....Knowyourright
Every year, thousands of Minnesotans are injured in car accidents. These injuries can be severe – even life-changing. Under Minnesota law, you can pursue compensation through a personal injury lawsuit.
Defending Weapons Offence Charges: Role of Mississauga Criminal Defence LawyersHarpreetSaini48
Discover how Mississauga criminal defence lawyers defend clients facing weapon offence charges with expert legal guidance and courtroom representation.
To know more visit: https://www.saini-law.com/
1. Comparative Legal Ethics:
The United States and the European Union
Azish Filabi, CEO, Ethical Systems
Gregory D. Green, Associate, Epstein Becker & Green, P.C.
Kenneth G. Standard, General Counsel Emeritus/Of Counsel, Epstein Becker & Green, P.C.
2. 2
Overview
Common v. Civil Law Systems
Confidentiality of client communications, loyalty, and professional judgment are some of
the most recognized mainstays of a lawyer’s code of conduct in both the United States and the
European Union. That said, there are similarities and differences regarding the ethical regulation
of lawyers in both common and civil law systems. To achieve an understanding of the
similarities and dissimilarities between these two systems, this paper will focus on the legal
systems in the United States and a select number of countries in Western Europe.
Lawyers in the United States practice common law approaches while those in the
European Union embrace the civil law system. On the one hand, common law codes for
regulating lawyers have a more formal and legalistic style expressed as rules rather than
standards. On the other hand, the civil law approach is remarkably different. The civil law codes
and norms are framed in more general terms with updated legal codes that specify the applicable
procedure for lawyer regulation, including provisions emphasizing the collegiality of the Bar and
duties lawyers owe to each other.1
The United States Common law approach derives its ethical codes from judicial decision
making because
[t]he nature of litigation in the United States is such that courts are called upon to
interpret the rules of professional ethics much more than in the civil law system, giving
rise to an extensive gloss on their meaning and application. Such rules thus ‘directly enter
1
Maya Bolocan, Professional Legal Ethics: A Comparative Perspective, CEELI Concept Paper Series, July 8, 2012,
p.9
3. 3
the judicial arena where litigants can debate their application and meaning; trial courts
can interpret them . . . and scholarly authors can comment upon the court’s interpretation.
. . 2
In contrast, for example, with respect to the rules of evidence, “a judge [in the civil law system]
exercises much greater control over the taking of evidence than in the United States.3
In the
European Union, unlike in the United States, a lawyer plays a more reduced role with issues
pertaining to the code of lawyer conduct.4
In the Unites States, lawyers appear before a judge to
protest against another lawyer when he or she contravenes ethical rules of conduct. Contrarily, an
issue regarding a lawyer’s conduct in a civil law system is generally resolved before the local bar
associations, charged with investigating and prosecuting lawyer’s misconduct. Lawyers are
active players in the United States in so far as they may make a motion before a judge to
disqualify another lawyer from a judicial proceeding in connection with an ethical code
violation. For example, in National Medical Enterprises, Inc. v. Godbey, the Texas Supreme
Court disqualified a law firm based on the fact that one of its attorneys had obtained confidential
information from the opposing party under a prior joint defense agreement in a substantially
related matter.5
The Court reasoned that the lawyer “simply could not honor his obligations
under the joint defense agreement and, at the same time, prosecute the pending claims” against a
participant in the prior joint defense arrangement.6
2
Id. at 10.
3
Id.
4
Id.
5
Nat’l Med. Enters. V. Godbey, 924 S.W.2d 127, 129-131 (Tex. 1996). The lawyer’s conflict was imputed to his
firm despite efforts to screen the confidential information from other lawyers at the firm.
6
Id. at 129.
4. 4
Another salient distinction between common and civil law countries regarding conflict of
interest is that
the approach taken by the United States and European civil law countries to conflicts of
interest is remarkably different. In the United States, codes permit a client to waive most
conflicts, provided that the client is fully informed and voluntarily assents. By contrast,
civil law codes generally do not contain waiver provisions. Consequently, if a lawyer
does not perceive a conflict, there is no need to withdraw from a representation. In other
words, lawyers in civil law systems tend to view conflicts as ‘a matter of [personal]
ethics, not law. Conflicts are a matter of your relationship with your client.’7
Moreover, the civil law system of the European Union supports what is termed, “professional
independence and autonomy”8
from the client, whereas the common law system of the United
States requires a total commitment from the lawyer to his client.9
Lawyer Regulation in the United States and the European Union
The European Union’s embrace of liberal lawyer regulation has led to the growth of
multijurisdictional practice (“MJP”). MJP is described as “the legal work of a lawyer in a
jurisdiction in which the lawyer is not admitted to practice law.” Moreover, member states of the
European Union have eliminated prohibitions on alternative legal practice structures (“ALPS”),
7
Id. at 11.
8
Id.
9
Id.
5. 5
resulting in a trend among countries worldwide to begin permitting ALPS, such as firms with
non-lawyers who may own, manage, or work for the practice.10
This liberation across the European Union member states has significantly impacted the
European legal market. For example, some law firms have been transformed into multi-
disciplinary practices or full services practices where clients may be provided a one-stop shop to
cater to all their needs, be it legal, consulting, financial or other services. This one-stop shop
model has led to the need for greater specialization in certain areas of the law.11
For example,
there is a need for attorneys who solely practice in specific areas such as tax law, mergers and
acquisitions and, corporate finance law, among others. These practices are said to promote
freedom of initiative and competition and may benefit clients in terms of time, cost, and
efficiency.12
Comparatively, the United States’ legal system presents quite a contrast. Lawyers in the
United States are constrained by individual state focused licensing and regulation. Lawyers must
be admitted to a specific state in order to practice in that state. They may be able to appear before
the court in a state in which they are not licensed through a pro hac vice admission or on other
court order. These are the only ways through which a lawyer may engage in MJP in the United
States. ALPS are restricted in the United States based on the Model Rules of Professional
Conduct. Enacted in most states, the rules preclude nonlawyers from creating, owning or
managing law firms, either alone or in partnership with lawyers (an exception, the District of
10
Ramon Mullerat, The Multidisciplinary Practice of Law in Europe, 50 J. LEGAL EDUC. 481, 481 (2000).
11
Id.
12
Id.
6. 6
Columbia allows minority-nonlawyer ownership of law firms) and multidisciplinary practices
combining legal services with non-legal services are restricted.13
The Lisbon Treaty on European Union governs the European Union member states.14
The relevant provision for lawyers relates to the free movement of services.15
This freedom
forms the basis for European Union lawyer regulation, whereby an admitted lawyer may
presumptively practice anywhere in the European Union, with limited restrictions imposed by
where the lawyer is admitted to practice.16
This allows lawyers to practice across European
jurisdictions, unlike in the United States, where lawyers are restricted to state practice because of
state focused licensing and regulation.
The treaty grants professionals the right to establish a permanent practice throughout the
European Union by requiring member states to allow foreigners to set up business or
professional entities, or pursue self-employment.17
It also authorizes legislation for the mutual
recognition of qualifications and for harmonization of business regulations.18
The European Court of Justice, in the case, Van Binsbergen, established three guiding
principles that form the basis for the regulation of lawyers within the European Union. This
13
ABA Model Rules of Professional Conduct (2002), Rule 5.4, 5.5.
14
Consolidated Version of the Treaty on the Functioning of the European Union, 2012 O.J. C 326/47 (providing the
basis of EU law)
15
Roger J. Goebel, Lawyers in the European Community: Progress towards Community-Wide Rights of Practice, 15
FORDHAM INT’L L.J. 556, 566 (1992) (explaining that the freedom to provide services applies to intermittent
practice, while the freedom of establishment protects a lawyer's right to practice in a new residence).
16
Roger J. Goebel, The Liberalization of Interstate Practice in the European Union: Lessons for the United States?
34 INT’L LAW. 307, 339 (2000) (stating that there are very few limitations to MJP in the European Union).
17
Melissa Pender, Contents: European Union Law Issue: Multijurisdictional Practice and Alternative Legal
Practice Structures: Learning from EU Liberalization to Implement Appropriate Legal Regulatory Reforms in the
United States, 37 FORDHAM INT’L L.J. 1575, 1584
18
Id.
7. 7
regulation stems from the Lisbon Treaty. First, each member state has the right to restrict the
activities of professionals but only where such regulation is justified by the general good, such as
rules relating to organization, qualifications, professional ethics, supervision and liability.19
Second, the rules must be non-discriminatory with regard to national origin and residence.20
Third, an individual may challenge an infringing national rule by relying on the Treaty of
Lisbon, as a right.21
Following the guidelines set forth in Van Binsbergen, a more comprehensive
directive on lawyers’ rights emerged from the Lawyers’ Establishment Directive. This directive
provides guidance on how a lawyer, within the European Union, may practice law outside the
jurisdiction in which he is admitted. A European Union lawyer may practice outside of his or her
home state either by: 1) temporarily engaging in practice in a state where he is not admitted; or
2) applying for admission to the state where he is not admitted after practicing in such state for
three years, subject to local review and rules.22
The United States’ Constitution, unlike the European Union’s Lisbon Treaty emphasizes
state autonomy. Rules regarding the conduct of lawyers in the United States are largely created
by states, with guidance from the Model Rules on Professional Conduct. That said, lawyers in
the United states may practice across state lines on a limited basis – either on a motion before the
courts, which allows the lawyer to temporarily gain bar admission outside his Bar State without
19
Van Binsbergen, [1974] E.C.R. 1300, P 12.
20
Van Binsbergen, [1974] E.C.R. 1300, PP 18-27.
21
Van Binsbergen, [1974] E.C.R. 1300, P 27.
22
Pender, supra note 17, at 1591.
8. 8
taking another exam; or 2) Pro Hac Vice Admission23
, which harmonizes state processes
regarding out of state lawyers engaged in litigation.
A court may, in its discretion, and consistent with the standing rules of that court, admit
a foreign lawyer to practice before it pro hac vice under such terms and limitations as that court
sees fit. Typically, the foreign lawyer would be required to associate for the duration of that
admission with an attorney regularly admitted to the practice of law in that court.24
A foreign (non U.S.) lawyer who wishes to be admitted to the practice of law in the
United States would generally have to sit for the bar, the same as any other attorney, and may
also have to meet additional requirements (since his or her foreign law school or other training
might not comport with the requirements required by the state in question).
More important, there is no general or national license to practice law in the United
States. Rather, attorneys are admitted to the practice of law in each individual state. After being
admitted to a particular state, the foreign attorney then has the right to practice law in that state
and that state alone. Further steps (beyond state admission) must be followed to gain permission
to appear as an attorney in the federal courts, before the Supreme Court, before the Internal
Revenue Service, and in various other contexts within the United States.
23
An “out-of-state” lawyer is a person not admitted to practice law in this state but who is admitted in another state
or territory of the United States or of the District of Columbia and not disbarred or suspended from practice in any
jurisdiction. An out-of-state lawyer is “eligible” for admission pro hac vice if that lawyer:
a. lawfully practices solely on behalf of the lawyer’s employer and its commonly owned organizational
affiliates, regardless of where such lawyer may reside or work; or
b. neither resides nor is regularly employed at an office in this state; or
c. resides in this state but (i) lawfully practices from offices in one or more other states and (ii) practices no
more than temporarily in this state, whether pursuant to admission pro hac vice or in other lawful ways.
ABA Model Rule on Pro Hac Vice Admission, dated August 2002.
24
Id. A foreign lawyer is a person admitted in a non-United States jurisdiction and who is a member of a recognized
legal profession in that jurisdiction, the members of which are admitted to practice as lawyers or counselors at law
or the equivalent and are subject to effective regulation and discipline by a duly constituted professional body or a
public authority, and who is not disbarred, suspended or the equivalent thereof from practice in any jurisdiction.
9. 9
Law Firm Structures
The main distinction between organization and structure of the legal profession in the
United States and European countries is that the United States has a unitary system while it is
divided by function in most European countries. In European civil law countries
functions typically associated with the practice of law in the European Union . . . are
generally divided among at least three different categories of legal [professionals]: 1)
those . . . who may represent clients in court (e.g., advocates in France . . . and
rechtsanwalts in Germany); 2) those who advise on and document the transfer of real and
personal property (e.g., notaries in France, Italy and Spain); and those who counsel
clients on business transactions (e.g., the former avouees and conseil juridique in
France.25
Because law firms in the European Union are free from restrictions on their practices, law
firm structures are far more liberal in their formation than in the United States. For example, in
Italy, several areas of legal regulation have been liberalized, leading to the formation of
multidisciplinary partnerships.26
With new national regulations regarding business structures in
the legal profession, individual European member states allow non-lawyers to partner with
lawyers or to participate in ownership and management of law firms.
The member state reform that has attracted the most attention is the United
Kingdom’s decision to embrace ALPS, after conducting research on consumer
preferences and needs. The United Kingdom’s 2007 Legal Services Act
25
Mary C. Daly, The Dichotomy Between Standards and Rules: A New Way of Understanding the Differences in
Perceptions of Lawyer Code of Conduct by U.S. And Foreign Lawyers, in 32 VANDERBILT JOURNAL OF
TRANSNATIONAL LAW 1117, 1148-49 (Oct. 1999).
26
The Bersani Decree-Law of 4 July 2006 (transposed into law on 4 August 2006) (liberalizing professional
regulation in Italy).
10. 10
implemented many significant changes, placing regulatory control of the
profession in the Legal Services Board and the Office for Legal Complaints, and
declaring that a majority of members of both entities must be non-lawyers.
Furthermore, the Act permits the Board to consider new business models, based
on the view that the market will benefit from legal advice offered with other
business services.27
Based on this manifestation, several types of law firms, with non-lawyers joining the
partnership, have emerged in the United Kingdom. These alternative legal practice
structures include: “legal firms owned by passive investors, firms that issue stock to non-
lawyers to raise capital, multidisciplinary practices, and firms owned, in part, by non-
lawyers but limited to providing legal services.”28
The United States presents a sharp contrast with law firm structures compared to
the European Union. All fifty states in the United States prohibit lawyers from sharing
fees with non-lawyers.29
However, due to technological advancements in legal practice,
some lawyers in the United States have circumvented the rules against multidisplinary
practices or alternative legal practice structures by being innovative. While maintaining
the core values of professional ethics, such innovations have led to the emergence of non-
traditional legal service providers. For example, online legal services are regarded as non-
traditional legal providers. These non-traditional legal service providers aim to “offer
27
Pender, supra note 17, at 1607.
28
Id. at 1608.
29
Id.
11. 11
consumers easy access to basic legal forms and legal services.”30
For example, clients
may now log into legal services websites such as Rocket Lawyer, Legal Zoom, and Avvo
and use the platform for legal services.31
For instance, one may access the service online
to create a testamentary will. Another non-traditional legal service now occurs in general
merchandise retail stores such as Walmart where small “law stores” within the retail store
provide “fast, face to face legal services in convenient Walmart locations.”32
Accordingly, these small law stores offer “free first in-person meeting with an attorney
with extended hours and prices far lower than [one] you would find at a law firm.”33
Paramount to these non-traditional legal services in the United States are the
ethical concern and regulation of these non-traditional practices. These legal services may
employ non-lawyers who are not subject to the Rules of Professional Conduct, thereby
creating an immediate problem as to what rules would apply to them.34
Also, the form of
30
. Christina Couto, Future of the Legal profession: As field evolves, New York attorneys chart new territory,
NYSBA, September/October 2016, Vol. 58. No. 5
31
Id.
32
Id.
33
Id.
34
ABA Model Rule 5.3 outlined the responsibilities regarding nonlawyer assistance:
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable
managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect
measures giving reasonable assurance that the person’s conduct is compatible with the professional
obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure
that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of
Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved;
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the
person is employed, or has direct supervisory authority over the person, and knows of the conduct
at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial
action.
12. 12
lawyer advertising may not align with the Advertising and Solicitation rules and
guidelines in the Rules of Professional Conduct. For example, Avvo’s legal services
website advertises that you can “get the legal help you need at a fixed price,” and “every
five seconds someone gets free legal advice from Avvo.”35
This kind of advertising may
be unethical and essentially, goes against the grain of the Model Rules of Professional
Conduct.
Professional Ethics
Lawyer Advertising – Solicitation
Advertising and solicitation among lawyers is one of the most contentious areas in legal
ethics. Scholars often assert that lawyer advertising and solicitation frequently leads to mistrust
and threatens to discredit the legal profession.36
In the United States, lawyers advertise their
services to obtain clients in various ways. The United States Supreme Court held that lawyers
have the right to First Amendment protections of commercial free speech and that the states may
not ban them from advertising.37
However, each state of the forty-three states that adopted the
ABA Model Rules of Professional Conduct provides the necessary guidelines to regulate lawyer
advertising and solicitation. The guidelines require lawyers to advertise their services in ways
that are not false or misleading. The ABA Model Rules in the United States lists four provisions
banning false or misleading representations:
35
Couto, supra note, 30.
36
Bolocan, supra note 1 at 11.
37
Bates v. State Bar Arizona, 433 U.S. 350 (1977).
13. 13
1) A communication is false or misleading if it “contains a material misrepresentation of
fact or law.”38
This standard prevents lawyers from misstating their credentials or any
aspect of their services.
2) A lawyer must not “omit a fact necessary to make the statement considered as a whole
not materially misleading.”39
3) Lawyers may not make a communication “likely to create an unjustified expectation
about results the lawyer can achieve.”40
4) Communications must not “compare the lawyer’s services with other lawyers’ services,
unless the comparison can be factually substantiated.”41
For example, lawyers should
avoid using terms such as, “highly qualified” or “best lawyers in town.”42
Another limitation on lawyer advertising and solicitation in the United States is the
prohibition on solicitation of a prospective client in-person or via telephone contact. On the one
hand, a lawyer may not contact a prospective client if the lawyer has no family or professional
relationship with that person and the contact is solely for the lawyer’s pecuniary gain.43
This
prohibition prevents “ambulance chasing.” On the other hand, direct mail is permissible in some
instances. Unlike “ambulance chasing,” direct mail gives the potential client the option to ignore
the mail.44
38
ABA MRPC, Rule 7.1(a).
39
Id.
40
ABA MRPC, Rule 7.1(b).
41
ABA MRPC, Rule 7.1(c).
42
See Virginia State Bar Ethics Opinion 1297 (1989).
43
ABA MRPC, Rule 7.3(a)
44
Under Model Rule 7.3(c) direct mail solicitations to potential clients known to be in need of legal services in a
14. 14
Lawyer advertising is strictly regulated in European countries, too. The Council of Bars
and Law Societies of Europe (“CCBE”) code employs a ‘conflict of law’ approach,’ which
specifies that a lawyer should not advertise where it is not permitted.45
The CCBE code’s
provision on advertising covers publicity by law firms, as well as individual lawyers, as opposed
to corporate publicity organized by bars and law societies for their members as a whole.46
Many
European Union countries have abandoned traditional rules on advertising, allowing for some
advertising, though not as liberally as in the United States. For example, in France, lawyer
advertising was strictly prohibited until 1991, when it was authorized by a decree.47
French
lawyer advertising is governed by local bar regulations. Similar to the United States, lawyer
advertising in France must be truthful and not misleading.48
In like manner, French lawyers must
not engage in the canvassing of clients unless it is requested by the clients.49
They may advertise
by the use of brochures, phone books, sponsorship of legal events, seminars and professional
shows.
In Italy, lawyer advertising is regarded as potentially harmful to the dignity of the Italian
legal profession. To safeguard the profession against such harm, Italian lawyers must ‘honestly’
and ‘truthfully’ advertise their services.50
Advertising is strictly limited to the use of brochures,
particular matter must be labeled as “Advertising Material” on the envelope and at the beginning and ending of any
recorded message.
45
CCBE Code, Article 2.6.
46
Explanatory Memorandum and Commentary to the CCBE Code, 2.6.
47
Decree n. 91, 1197 of November 21, 1991, Article 161.
48
National Council of Bars’ Code of Conduct (1999), Article 10.1
49
Id.
50
Codice Deontologico Forense (Ethical Code for Italian Lawyers, 1999), Article 17.
15. 15
letterhead, professional, telephone or other directories, and telematic networks (including those
with international circulation). Solicitation is prohibited – seen as being offensive to the dignity
of the profession.51
In Spain, the traditional restrictions on lawyer advertising have been substantially
relaxed. Permitted lawyer advertising must be truthful and respectful to the dignity of potential
clients.52
As in the United States, there must be no direct or indirect solicitation of accident
victims.53
Like Spain, Germany has broad rules for regulating lawyer advertising.
Formation of the Lawyer-Client Relationship
Generally, lawyer codes of conduct are built on the assumption that a client-lawyer
relationship exists, but do not mention how this occurs.54
For example, in the United States, the
ABA Model Rules require duties of competence, obedience, diligence, communication,
confidentiality and loyalty to clients. The CCBE code imposes similar duties to clients.55
A
lawyer-client relationship can be created either by private agreement between the parties or by
court appointment.
In the United States, courts are empowered to appoint an attorney in both criminal and
civil cases if the party is unable to afford to pay for private legal services.56
Lawyers are
51
Id.
52
Ethical Code for It Estatuto General de Abogacía Española (2001), Article 25 (1).
53
Id. (2) (e).
54
ABA MRPC, Rules 1.1-1.4, 1.6, and 1.7-1.13.
55
CCBE Code, General Principles and Relations with Clients.
56
Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221 (D. Neb. 1995).
16. 16
obligated to serve when they are appointed by the courts, unless there is a conflict of interest.57
The CCBE code requires similar compliance. For example, it is considered a violation of
disciplinary rules when an Italian lawyer refuses, without adequate justification, to act as
appointed counsel.58
Other than court appointment, a lawyer-client relationship is formed through contract
law. In the United States, this contract is formed when a prospective client or a client seeks legal
advice and the lawyer agrees to provide such legal advice. The client would then arrange for
payment for the advice received. In civil law countries, lawyer-client relationships are formed in
a way similar to those in the United States.
Important to the lawyer client relationship are the fiduciary responsibilities owed to the
client – competence and diligence. In the United States, the ABA Model Rules require competent
and diligent legal representation. Competence implies “the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation.”59
Diligence requires “promptness
in representing a client,”60
as well as commitment and dedication to the interests of the client,
and zeal in advocacy upon the client’s behalf.61
Similarly, the CCBE Code prohibits lawyers from undertaking a matter unless it can be
handled “promptly.”62
It further provides that lawyers should not accept cases that they know, or
57
ABA MRPC, Rule 6.2.
58
Ethical Code for Italian Lawyers (1999), Article 11 (II)
59
ABA MRPC, Rule 1.1.
60
Id., Rule 1.3.
61
Id., cmt 1.
62
CCBE Code, Article 3.1.3.
17. 17
ought to know, they are not competent to handle without co-operating with a lawyer who is
competent.63
Once a matter has been undertaken, lawyers must advise and represent clients
“promptly, conscientiously and diligently.”64
For example, the French Code provides that
lawyers owe to their clients “a duty of competence as well as of dedication, diligence and
care.”65
Professional Liability and Indemnity Insurance
“In the United States, the law of legal malpractice clarifies the contours of professional
duty and offers clients a monetary remedy when breach of such a duty causes clients harm. The
standard of care defines the necessary level of competence. Lawyers, like other professionals, are
required to exercise the skill and knowledge normally possessed by members of their
profession.”66
Damages are directly attributable to the lawyer if any harm results from the
lawyer’s omission or negligence during representation of the client.
In The European Union, the CCBE code requires all lawyers to be insured against claims
based on professional negligence, or to notify their clients if they are not able to obtain such
insurance. For instance, insurance is mandatory for lawyers who are admitted to the Paris Bar, as
it is required for lawyers in Germany, the Netherlands, Poland, and Romania.67
63
Id.
64
CCBE Code, Article 3.1.2.
65
National Council of Bars’ Code of Conduct (1999), Article 1.
66
Bolocan, supra note 1, at .27.
67
Id. at 27-28.
18. 18
The Attorney Client Privilege (Confidentiality)
A lawyer’s duty of confidentiality owed to clients is a hallmark of the client-lawyer
relationship, and is endorsed in the ethical standards regulating the legal profession both in the
United States and in European countries.68
Without this guarantee, there is a danger that a client would lack the trust which enables
him to make full and frank disclosure to his lawyers, and, in turn, the lawyers would lack
sufficient (and it may be important) information required to enable the lawyer to give full
and comprehensive advice to the client or represent him effectively. Without that trust,
the client would not have the assurance that he can be full and frank with his lawyer,
which is essential for providing full and accurate legal advice and support and is therefore
a crucial guarantee for the fair trial process.69
In contrast to the United States, where the lawyer’s duty of confidentiality prevents
disclosure of information relating to the client to other persons, the ethical and professional
codes of most European countries extend such duty to cover communications between lawyers.
For example, in France, professional secrecy encompasses not only written or verbal exchanges
between the lawyer and her client, but also those between lawyers:
The terms of the Penal Code are such that any “secret” communicated in confidence to a
lawyer in his professional capacity by any person is covered by the obligation of
professional secrecy. The obligation (and the corresponding rights) therefore extend, not
only to information communicated to a lawyer by his client, but also to information
68
Id. at 30.
69
Council of Bars and Law Societies of Europe, CCBE RECOMMENDATIONS: On the protection of client
confidentiality within the context of surveillance activities.
19. 19
communicated by the opposing party, by his lawyer or by a third party, provided that the
information constitutes a “secret” and has been communicated in confidence.70
In the United States, attorney client privilege includes any communication between client
and lawyer for the purposes of providing legal services within the course of the attorney’s
employment. This privilege however, is not protected if a third party who does not work for the
lawyer is present at the time of the communication. Communications that involve the
performance of non-legal functions by an attorney are also not protected. Additionally, the
privilege does not apply for the purposes of committing a crime or fraud.71
In the United States,
materials prepared in anticipation of litigation are not discoverable and are protected under the
work product doctrine immunity rule.72
Prepared materials may include written statements,
private memoranda and personal recollections recorded by the attorney. This immunity does not
apply to materials prepared in the ordinary course of business or when litigation is not
reasonably anticipated.
Exceptions to the duty of confidentiality include:
1. to prevent reasonably certain death or substantial bodily harm;
2. to secure legal advice about the lawyer’s compliance with these Rules;
3. to establish a claim or defense on behalf of the lawyer in a controversy between the
lawyer and the client, to establish a defense to a criminal charge or civil claim against the
70
www.iadclaw.org/assets/1/7/17.11_FRANCE.pdf.
71
The attorney-client privilege does not apply to a communication occurring when a client:
(a)consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or
aiding a third person to do so, or
(b) regardless of the client’s purpose at the time of consultation, uses the lawyer’s advice or other services to engage
in or assist a crime or fraud. See Restatement, Section 82.
72
Federal Rules of Civil Procedure, Rule 26.
20. 20
lawyer based upon conduct in which the client was involved, or to respond to allegations
in any proceeding concerning the lawyer’s representation of the client; or
4. to comply with other law or a court order.73
The European ethical professional codes are somewhat similar to those of the United
States, with some exceptions to the duty of confidentiality. For instance, in England,
confidentiality may be breached “when the client is seeking help in commission of a crime, when
the solicitor has been unknowingly used by the client in the commission of a crime or fraudulent
act, and when disclosure is necessary for the solicitor to establish a defense to a criminal
charge.”74
For barristers in England,
whether or not the relation of counsel and client continues a barrister must preserve the
confidentiality of the lay client’s affairs and must not without the prior consent of the lay
client or as permitted by law lend or reveal the contents of the papers in any instructions
to or communicate to any third person (other than another barrister, a pupil, in the case of
a Registered European Lawyer . . .) information which has been entrusted to him in
confidence or use such information to the lay client's detriment or to his own or another
client’s advantage.75
In Europe, the decision making power is vested in the lawyers while in the United States
it is vested in the client.
73
ABA MRPC, Rule 1.6 (b).
74
Bolocon, supra note 1 , at 35 citing Andrew Boon and Jennifer Levin, THE ETHICS AND CONDUCT OF
LAWYERS IN ENGLAND AND WALES 256-58
(1999).
75
Bar Standard Boards, Regulating Barristers – Conduct of work by practicing barristers,
https://www.barstandardsboard.org.uk/regulatory-requirements/the-old-code-of-conduct/the-old-code-of-
conduct/part-vii-conduct-of-work-by-practising-barristers/.
21. 21
Law Practice Topics presented in the Trans Pacific Partnership (“TPP”) Agreement
The Trans Pacific Partnership is a multinational trade agreement among twelve countries:
the US, Japan, Malaysia, Vietnam, Singapore, Brunei, Australia, New Zealand, Canada, Mexico,
Chile and Peru. The trade agreement “aims to deepen economic ties between these nations,
slashing tariffs and fostering trade to boost growth. Member countries are also hoping to foster a
closer relationship on economic policies and regulation.”76
The agreement intends to create a
single economic market, much like the European Union. Although the TPP has been signed by
these countries, the agreement must be ratified by at least six countries before it goes into effect.
The United States has indicated that there will be “no changes in US’s’ existing rules
concerning how and when foreign attorneys may practice law in a particular state.”77
To ensure
that no change occurs, there will an implementation of a backstop which will prevent “states
from making their rules any less accommodating toward practice by lawyers licensed in other
countries.”78
Countries may request “consultation” about a US state rule if they believe the rule
substantially impedes cross border supply of legal services.79
TPP created a private justice system, termed as the investor-state dispute settlement
(“ISDS”). The ISDS is an instrument of public international law that resolves investment
conflicts without creating state to state conflict, protects citizens abroad, and signals potential
76
TPP: What is it and why does it matter? (July 27, 2016) http://www.bbc.com/news/business-32498715.
77
Proposed Trans-Pacific Partnership Aims to Ease Bars on Cross-Border Legal Practice, ABA/BNA Manual on
Professional Conduct, Vol. 31, No. 2.3, 679.
78
Id.
79
Id.
22. 22
investors that the rule of law will be respected.80
“ISDS arbitration is needed because the
potential for bias can be high in situations where a foreign investor is seeking to redress injury in
a domestic court, especially against the government itself. While countries with weak legal
institutions are frequent respondents in ISDS cases, American investors have also faced cases of
bias or insufficient legal remedies in countries with well-developed legal institutions.”81
For
lawyers who serve as arbitrators in international trade disputes, the signatory country will
develop a code of conduct for “panelists” serving as arbitrators in order to safeguard the integrity
of the dispute settlement mechanism.82
80
Office of the Nited States Trade Reprsentative, Fact Sheet: Investor-State Dispute Settlement,
https://ustr.gov/about-us/policy-offices/press-office/fact-sheets/2015/march/investor-state-dispute-settlement-isds.
81
Id.
82
Proposed Trans-Pacific Partnership Aims to Ease Bars on Cross-Border Legal Practice, supra note 77, at 681.