Independent Legal Advice Research Articles

Medicolegal Sidebar: A Fast Route To A Criminal Indictment-Violating Fraud and Abuse Laws.

Medicolegal Sidebar: A Fast Route To A Criminal Indictment-Violating Fraud and Abuse Laws.

Thorne v Kennedy: A Thorn in the Side of ‘Binding Financial Agreements’?

A discussion of the High Court of Australia's recent decision in Thorne v Kennedy with reference to the three vitiating factors discussed by the High Court: duress, undue influence and unconscionable conduct. It is suggested that the High Court left unclear the status of lawful act duress, and the overlap between duress and actual undue influence remains unclear. Moreover, it is also unclear how equitable principles interact with the provisions of the Family Law Act. The significance of independent legal advice and a post-nuptial binding financial agreement in this case is also discussed.

Strategies and Practices for Overcoming Obstacles to the Effective Commercialization of Student Innovation on University Campuses

We synthesize knowledge about the policy and practices and infrastructure available for technology transfer of student inventions. Our joint consideration of intellectual property protection and business and legal support services has tried to overcome some of the traditional functional and knowledge silos. Looking forward, we recommend that independent and comprehensive measures be developed to assess the performance of each university with respect to its student commercialization policies and practices. Do comprehensive and student-centered IP policies make a difference in creating certainty for student innovators and confidence in the institutional infrastructure to support commercialization? Previous researchers have studied the connection between patents and on campus commercialization. Future research must differentiate student commercialization from faculty commercialization. Additionally, other indicators related specifically to student centered innovation in Canada must move beyond patents to include other forms of intellectual property, such as copyright and industrial designs. Further, given that universities are measured by learning outcomes, we recommend that universities include learning outcomes connected to experiential entrepreneurial opportunities. If a purpose is also to create an entrepreneurial culture, and students who are better able to identify and seize venture opportunities, then we must also consider indicators over time that reflect the true impact of developing a student-centered entrepreneurial culture. The university learning culture supported by strong student centered policies and practices will develop a more enduring entrepreneurial spirit in Canadian graduates. Finally, more work needs to be done in relation to measuring the effectiveness of various models for providing independent legal advice to student innovators with the view to ensuring that students are given timely, meaningful and cost-effective access to legal support so that their rights and interests are properly addressed.

The National Security Lawyer, in Crisis: When the 'Best View' of the Law May Not Be the Best View

The Department of Justice’s Office of Legal Counsel has committed to certain principles for the conduct of its legal advisory function, one of which is a commitment to providing the executive a “best view” of the law while nonetheless “facilitating” where possible the executive’s policy objectives. The standard is closely related to a conception of the Office’s standing, developed after Watergate in the Carter Administration, as a source of fully independent legal advice insulated to the maximum extent possible from political and policy pressure. This adherence to “best view” has been the source of considerable comment and criticism when the Office has appeared to depart from this standard in supplying the executive with legal positions that may qualify as “reasonable” or “plausible” but fall manifestly short of what scholars and other observers judged to be the best possible reading of the law. This Article questions the “best view” as a standard that should bind the OLC, or any other senior legal advisers, in advising the executive in a national security crisis. It challenges the best view theory both as an empirically unsustainable account of how lawyers in fact perform in a crisis setting, and as a theoretically unjustified constraint on the range of legal options that a president’s legal advisers should be expected to offer. Among the criticisms is the absence of a fully coherent conception of “best view,” and the risk that best view claims mask what are less legal, and more policy, disagreements. The Article sets out an alternative of legal positions grounded in reasonable, good faith readings of the law, subject to thoroughgoing transparency requirements. One consequence of this revised view of crisis lawyering is that it is no longer clear that OLC should have the primary if not decisive role in determining the lead advice that the executive should receive when confronting a critical national security challenge. An alternative decision-making model would assure that OLC views are considered but would allow for a crisis management structure with different leadership on legal issues, including but not limited to the Counsel to the President, and closer, more open dialogue between lawyers and policy makers. The Article insists that the key to the executive checking function is a detailed public accounting of the legal advisory structure established to support the president’s decision-making in crisis and of the substance of the Administration’s formal legal position. Apart from an assessment of the literature and expositions of “best view,” the Article draws on historical and contemporary sources that aid in a dispassionate analysis of the response of lawyers to policy and political pressure in crisis. One such source is the historical record of the functioning of the executive’s legal advisory process in two major national security crises: the bases-for-destroyers exchange with Great Britain intended to shore up that country’s defense against the German military onslaught, and the Cuban Missile Crisis of 1962. Primary source materials, including memoirs and documents authored by senior legal advisers, supply useful insight into the challenges of crisis lawyering. A second source are senior national security lawyers who have served in recent Administrations and who agreed to be interviewed for this Article about their personal experience with the conflicts between “best view” and the responsibility to advance where possible the executive’s policy objectives.

THE EFFECT OF ‘FAIRNESS’ ON PRE-NUPTIAL AGREEMENTS

Until the seminal judgment of Radmacher v Granatino pre-nuptial or pre-marital agreements were given limited weight in English law. Prior to this decision there had been considerable debate about the status in law of all nuptial settlements both pre and post marriage. The key question for Radmacher was whether pre-nuptial settlements should attract equal weight as agreements drawn up during the course of a marriage. In MacLeod v MacLeod the Privy Council finally resolved the issue with regard to post-nuptial settlements holding that agreements drawn up post marriage would carry weight when the court decides a claim for financial relief under s.25 Matrimonial Causes Act 1973. The English courts, unlike other jurisdictions, have always been reluctant to uphold agreements, which purport to deprive the court of its jurisdiction in deciding financial provision. There was also an underlying presumption that parties to a marriage did not intend their agreements to form legally binding contracts and finding adequate consideration within such agreements was often difficult unless the agreement is incorporated in a deed. The effect of the Supreme Court’s decision in Radmacher was not to reverse this approach. Pre-nuptial agreements were not made binding on the court but rather the court is invited to give weight to all nuptial agreements subject to certain safeguards. The subsequent decision in Luckwell v Limatagives guidance as to when the court will be prepared to deviate from pre-marital agreements even when the parties have been given independent legal advice and both parties are fully aware of the possible effect of such an agreement.

‘Bridging the Academic/Vocational Divide: the Creation of a Law Clinic in an Academic Law School’

<p>In January 2009 I joined the Law School at the University of Hull. My main responsibility has been the establishment and development of a public serving Law Clinic providing free, confidential and independent legal advice to the local community. Clinic became operational from January 2010 and will be offered as an assessed module as part of the LLB degree, from September 2010.</p>

The misuse of drugs and the ACMD: an open letter to Professor Iversen

After discovering that the Advisory Council on the Misuse of Drugs, in their 38 years of public service, had not sought, nor been provided, independent legal advice regarding the breadth and scope of their statutory remit under the Misuse of Drugs Act 1971 (HM Government, 1971), Casey Hardison wrote the following letter to the Council chair addressing this failure.

‘Let's get it over with’: early findings on the factors affecting detainees’ access to custodial legal advice

This paper explores why detainees in police custody decline free and independent legal advice whilst they are in police custody. To do this, I draw on three kinds of data (participant observation, interviews and custody records) collected in a predominantly privatised police custody area in the South-East of England. Detainees’ decisions to decline legal advice were shaped by their perceptions of it (e.g., how long they would have to wait to consult with a solicitor). These perceptions were in turn affected by the practices of solicitors (e.g., only attending the police station immediately prior to detainees’ interviews) and the practices of police and private security staff (e.g., their use of informal conversations and negative stereotypes about solicitors). To conclude, I examine the implications of the research for detainees’ access to justice, inter-professional relationships and the privatisation of the police custody process.

Family members as gamete donors and surrogates

Family members as gamete donors and surrogates

The Aftermath of O'Brien: Carte Blanche for Banks, Cartes Jaunes for Solicitors?

The decisions of the House of Lords in Barclays Bank plc v. O'Brien [1994] 1 A.C. 180 and CIBC Mortgages plc v. Pitt [1994] 1 A.C. 200 sought to balance the legitimate commercial interests of banks and other lenders against the rights of spouses (usually, and hereafter for purposes of exposition, wives) or cohabitees in residential property, where the wife had been induced to accede to the transaction by the borrower's undue influence, duress or misrepresentation. This balance, necessary, in Lord Browne-Wilkinson's words, so that “a law designed to protect the vulnerable does not render the matrimonial home unacceptable as security to financial institutions”, was largely to be achieved by application of the doctrine of notice. A wife could therefore successfully resist attempts to recover possession where the bank had actual, constructive or imputed notice of her equity to set its charge aside. Constructive (and imputed) notice begs two questions: when will a bank be put upon enquiry, and what level of enquiry will be reasonable? O'Brien indicated that a bank should warn the wife, in a personal interview, of the amount of potential liability she was undertaking, of the risks involved, and of the desirability of obtaining her own independent legal advice. Experience since O'Brien has shown a reluctance by banks to conduct personal interviews, which would, they feel, carry greater risks. The practice adopted has been to refuse to complete the loan transaction until the wife has in fact obtained independent legal advice, proof thereof being made by the production of a certificate to that effect to the lender. The eight conjoined appeals in Royal Bank of Scotland v. Etridge (No. 2) [1998] 4 All E.R. 705 consider, at great length, the meaning and significance of “independent legal advice” in this context, and its consequential impact on the enforceability of security by a bank. Rather like O'Brien, Etridge seeks to provide clear guidelines and to facilitate a workable banking practice so that the likelihood of litigation against banks is substantially reduced. Where O'Brien failed, Etridge may well succeed. At its most basic level, it is good news for banks, and very bad news for solicitors.

Wives are Told: Don't Blame the Bank, Sue Your Solicitor: Royal Bank of Scotland v. Etridge (No. 2) and other appeals [1998] 4 All E.R. 705

This case note considers the Court of Appeal decision in Royal Bank of Scotland v. Etridge (No. 2) and other appeals [1998] 4 All E.R. 705. It concerns the familiar scenario of a wife jointly mortgaging (or providing a guarantee for a mortgage of) the family home in order to secure financial support for a business run by her husband. The House of Lords decision in Barclays Bank v O'Brien [1994] A.C. 180 has given rise to a range of litigation in this area, and the spotlight has now moved from the banks to an examination of the quality of advice given by solicitors. The banks have heeded the warnings in O'Brien and now insist that wives are told to obtain independent legal advice. It will be seen that, following Etridge, if the bank tells the solicitor to give the wife legal advice upon undertaking the transaction, that will be sufficient to protect the bank, notwithstanding that the advice was either inadequate or even not actually given. The onus to ensure that proper advice is given is shifted squarely on to the solicitor. The note concludes that the decision is indicative of the shift of judicial opinion against wives seeking to avoid charges over matrimonial homes and in favour of banks.

R v Crown Court at Southwark, ex parte Bowles

The benefits of accountants seeking prompt independent legal advice to protect both themselves and their clients during criminal investigations has been reinforced by the recent House of Lords case of R ? Crown Court at Southwark, ex parte Bowles.

Barclays Bank plc v O'Brien and another [1993] 4 All ER 417, BVerfG, 19.10.1993

Barclays Bank plc v O'Brien (Case 1) provided an opportunity for the House of Lords to settle an issue which had arisen on a number of previous occasions in the Court of Appeal. The question was whether a bank is entitled to enforce against a wife an obligation to secure a debt owed by her husband to the bank where the wife has been induced to stand as a surety for her husband's debt by the undue influence or misrepresentation of the husband. The House of Lords concluded that a creditor would be fixed with constructive notice of the undue influence or misrepresentation of a cohabitee (and therefore could not enforce their security as against the other cohabitee) unless it had taken reasonable steps to satisfy itself that the surety entered into the obligation freely and in the knowledge of the true facts. Such steps would include warning the surety at a meeting not attended by the principal debtor of the potential liability and of the risks involved and advising the surety to take independent legal advice. Cases 2 and 3 both arose in the German courts and led to a consolidated hearing before the German Federal Constitutional Court. Case 2: An estate agent sought to double his overdraft limit to 100,000 DM. To assist him his daughter, who had temporary employment as a factory worker, signed a contract of guarantee. The significance of this document was played down by the bank. The father entered into new business deals and suffered heavy losses. The bank then tried to assert the guarantee against the daughter. The daughter resisted the claim. Case 3: A wife signed a contract of guarantee (of 30,000 DM) to assist her husband in obtaining a loan. When there was a delay in payments on the loan, the bank called on the guarantee. In response to these two cases the Federal Constitutional Court handed down a potentially far reaching decision on the role of fundamental rights in the interpretation of general clauses in the law. In particular the right to the protection of a person's private sphere must be taken into account in interpreting the obligation of good faith in contractual relations where there is disparity of bargaining power between the parties (i.e. the guarantor and the bank), and in particular where there is no shared economic interest between guarantor and guarantee. The four case notes on this theme are preceded by a more detailed consideration of the reasoning in Barclays Bank v O'Brien. The first two case notes (Van Roeyen and Ferrari) consider the way that this case might have been approached by the Dutch and Italian courts respectively. The third case note (Inzitari) discusses the German cases and the issues that they would raise for the Italian courts, while the fourth note (Geelhand) examines the general problem of guarantees given by family members and friends under Belgian law.