Concept of Breach of Trust

Enactments, laws and acts that are passed by legislative bodies, deal with specific domains of laws, for example, the Contract act deals with legally enforceable contracts, or the Bill of Rights deals with fundamental rights of the citizens of the United States. Unlike the contract law or the Bill of Rights, there is no specific enactment that deals with the breach of trust.

Breach of trust is an intentional or unintentional negligence of duty, abuse of position or fraud of legally bestowed trust, by a person or persons or a body corporate. There are three likely parties who can come into the picture. A trustee, a testator and beneficiary who are all tied to each other by a relationship that is known as a ‘fiduciary’ relationship.

In such a scenario, the trustee is a guardian, regent, consultant or any person who is authorized by law to be a trustee. A beneficiary is a person whose interest is safeguarded by the trustee. A testator is a person who requests the trustee to perform a selected function. The term testator is usually used in cases where a person appoints some other person, in his/her will, as a trustee for his/her beneficiary (legal heir).

If you look around, you will notice that there are several different fiduciary relations that come into existence every second. For example, when you go to a physician to get examined, a fiduciary relation is established, and if the physician finds that you are suffering from any symptoms, then he/she is obliged to disclose the facts immediately. In case of non disclosure, a breach of trust is said to have occurred.

Unintentional Breach of Trust

The hurdle that any court of law might face is that whether the breach was intentional or unintentional, and whether the fiduciary relationship was of a legally enforceable nature or not. In most cases, where the breach occurs, as a result of carelessness and innocent mistakes, the court of law does not declare harsh punishments.

A legal guardian forgetting to pick his beneficiary from school is an unintentional breach. A credit card advertisement not disclosing some essential facts can also be an unintentional breach which may invite a compensation suit. In common parlance, a breach that involves monetary interest invites a lawsuit settlement.

Breach of Trust with Fraudulent Intent

A breach with fraudulent intent is immediately recognized by the court, as it is characterized by intentional non-disclosure. According to the penal code, such an abuse of position for fraudulent and criminal purposes, is dealt with harsh punishments. Non-disclosure by a company’s promoter, insider trading, forgery, personal and non-permitted use of given trust, and corruption in governmental or non-governmental organizations is termed to be a breach with fraudulent intent. Such breach is dealt in accordance with criminal proceedings doctrine.

Breach of trust in itself is quite a generic and larger study, and will have to consider many legal codes and enactments to have an in-depth and accurate insight of the concept.

Probation Rules

In legal terminology, probation is the sentence imposed by the court of law on a person found guilty of certain charges. It is basically a sentence whereby the convict is put ‘on probation’ immediately, instead of serving time in jail, or after spending a brief time in jail. Thus the convict gets to spend a brief period of his term outside the jail, but under the supervision of the law enforcing authority. It is mandatory for the convict to abide by the rules of probation constituted by the authorities of the said jurisdiction.

Probation Rules and Regulations

Though the rules of probation may differ from one jurisdiction to another, most of these rules stress on the fact that the said person is under probation/parole, and hence, he will be under the supervision of the authorities for a certain period. These rules and regulations may also state that the person should restrain from doing certain activities during this period. Violation of these rules may call for further legal action, so anyone on probation should avail legal advice to make this period easy for himself. Some of the basic conditions of probation are discussed below.

– The convict should report to his/her probation officer or court as stipulated in the probation rules.
– He shouldn’t leave the area of jurisdiction without taking permission, in writing, from the probation officer or the person in charge.
– He should promptly notify the concerned authorities if his address, contact number, or any other personal information has changed.
– He shouldn’t get involved with other individuals accused of felony or any other misdemeanor.
– He should not possess or purchase any weapon which can be harmful for him or other people around.
– He should not possess any contraband items, including drugs and alcohol, which may eventually land him up in jail.
– He should pay all the fees regularly as stipulated in the rules. These may include fees such as probation supervision fees, home arrest fees, court fees, etc.
– He should be present when required for any sort of drug or alcohol testing. Only those substances that are recommended by the doctor will be allowed.
– He should consult the authorities when using any medication or opting for any medical procedure on the behest of the doctor.
– Other than drug and alcohol testing, the convict should also make himself available whenever summoned for a routine health check up.
– He shouldn’t choose to become an informer for the law enforcing authorities without getting a written permission from the court probation officer.
– A person on probation shouldn’t take up any job, wherein he is required to look after children or elderly people.

Other than this, certain rights provided by the Constitution may be waived for a person serving probation period. For instance, waiving off the Fourth Amendment rights to search and seizure would mean that the probation officer may search you in person or any of your assets, including your home and vehicle, and seize them if required.

One should also take a note of the fact that not all these rules are applicable for all the crimes. Some of these rules may differ based on what charges the convict is facing. For instance, a person charged with any sex-related offense may not be allowed to take up a job wherein he comes in contact with members of opposite sex and children, or he may not even be allowed to possess any pornographic material.

Other than the rules and regulations mentioned above, one more stipulation which will be added to the conditions―irrespective of the area of jurisdiction―is the stipulation stating that the conditions mentioned in the document would be subject to modification, if required, upon the approval of department of probation and/or court of law.

How to File a Restraining Order

Gillian, a 27 year old software professional had been noticing for a few days on her way back home after work, that someone was stalking her and it was not a very pleasant feeling. Although she never had a confrontation from the stalker, the chances of that were on the anvil anytime. She held her cool for a few days by changing her route, having someone accompany her and things like that, but nothing worked. And the worst part was, she knew the stalker and he was from the neighborhood. Finally, she consulted one of her friends who was an attorney for legal advice and filed a restraining order against the stalker.

That was just a case to prove the point of when to file for an order of protection and in what circumstances. Here is the detailed process for filing explained.

Filing a Restraining Order

– If you are in potential and immediate danger, call the emergency (911). even in the situation where you are threatened, abused, and/or the matter has ended, call and tell the police that you want to press charges. If at all the case is immediately prosecuted, the court will issue an order of protection immediately.
– Get the family to a safe place and ask for help. People are mostly helpful in such matters and they would assist you in filing a restraining order.
– Approaching the police station would be of help, as the officers there would definitely give more detailed information on how to press charges.
– Call up the local family court (in case of domestic violence) and ask how to file an order of protection. Then, you would need to go to the court and get the requisite documents.
– Next, you would need to fill out the papers properly and carefully. Inclusion of social security numbers, birth dates, date of the incident/incidences of abuse or stalking, witnesses’ names, and if at all there are any evidences, like photographs.
In the context of a woman being a victim of domestic violence and she has children, the woman can get a restraining order for them as well. If instructed so, sign the papers before a notary. An order of protection against domestic violence can only be obtained during a divorce.

This was mainly in connection with domestic abuse. In case it is something different, you have an option of filing a harassment restraining order.

Filing a Harassment Restraining Order

– Ensure whether you are being harassed in legal terms and if the situation is so critical. An order of restraint can be easily overturned in case you do not have a cause good enough to file the order in the first place.
– Consult a law enforcement officer or an attorney before you file a restraining order about your jurisdiction. The procedure would slightly vary depending upon the area, but there would be forms specifically meant for order of protection. They would have to be filed with a city or county clerk.
– Initially, it would be a Temporary Restraining Order (TRO), having a validity between 5-15 days of filing the order.
– Once the court reviews the order, you can decide if you want to file for a permanent restraining order (PRO). If you want to file for a PRO, it is better to hire an attorney.
– One of the most important things to remember is to avoid and refuse any contact with the restrained party. If you are skeptical about the fact that you need protection, you would jeopardize your wish to turn your TRO into PRO.
– The laws vary depending upon the country you are in, so you would need to be careful about that as well.

Restraining order could prove to be extremely crucial when it comes to your own safety. So if you are facing something like Gillian, and you are sure about that, then do not think twice about putting an order of restraint on the person. Ultimately, your safety is what matters, and being able to live without fear is one of the most important and fundamental rights in the constitution of any country.

Prepaid Legal Services Scam

We never say no to an insurance policy, do we? The chances of your house getting burnt or you dying are quite rare, but despite being improbable, don’t you pay a hefty sum towards insurance premium? Then, why not towards prepaid legal service, you may ask. Statistically speaking, the number of times you are going to be sued in your lifetime is surely more than the number of times you’re going to die. So, isn’t a few hundred dollars towards prepaid legal services a good investment, if you’ll be covered against legal issues for the rest of your life? It certainly is, if only you were assured that the legal companies would actually do the work that you are paying them for.

Prepaid Legal Scams

– Scams in the legal issues have been taking place all over the United States with alarming regularity, so it is always good to be a bit cautious. While I’m not discarding the idea of prepaid legal services as an out-and-out sham, there are people out there who are giving this system a bad name.
– Scams may not be illegal, but they may be ripping you off by giving false promises of legal advice and services, but ditching you along the way.
– There have been many reports that suggest that the companies offering the prepaid legal services are not really delivering the goods.
– Scams occur, as the people pay these companies the required amount of money each month, and when the time comes to deliver the service, they become evasive or sometimes even send some non-qualified people along to help you.
– Most people, due to their own ignorance, end up paying a lot more as premiums as compared to what they would otherwise spend as lawyer fees.
– Attorney charges for routine work such as consultation and will preparation are negligible for which the price you end up paying as legal services charges are a lot more.
– At the same time, legal services that are otherwise more expensive, such as court hearings for imprisonment may not be covered in your prepaid plan.

Are you a Victim of a Services Scam?

– Many times, in a bid to appear legally above board, the companies running the scams overdo their part by boasting a ‘large network’ of legal aid providers.
– But, most of the time, no sources are cited out of this ‘large network’. Since they are after your money, they will keep deadlines for registration and fee payment.
– If they are unable to lure clients post the deadline period, they will offer substantial discounts.
– Often, there are ‘many lawyers’ working with them, but no profiles are displayed.
– Also, you may spot a fake testimonial when you see one. The internet is filled with such fake testimonials, and they are readily identifiable. But the most appalling mistakes of all are the spelling mistakes these ‘lawyers’ commit on their websites.
– While this idea was started by someone with a seriously noble thought of being able to serve the society, some miscreants have taken it forward and are fooling innocent people and playing with their hard-earned money.

Precautions

There are some precautions you can take to avoid being a part of these services scams. The first one is to ask yourself the question, ‘Do I really need it?’. How many times are you hauled into court anyway? What are the chances you are going to need expensive legal services? If the answer to the previous question was that you need legal services often, the next thing to think about is, ‘What cost would I incur, if I wasn’t covered?’. Before you subject yourself to a long-term payment agreement, do a bit of analysis. See the prices of legal services and compare them to the premium you are paying periodically. Should all the findings be in place in your opinion, make sure the company you are selecting has a good reputation and name. Make sure that the people who vouch for and work for the company exist.

After all, it is your hard-earned money and you should be able to take the best, most responsible decisions. Do not fall prey to a legal service scam; it’s no use crying over spilt milk.

How to Write an Appellate Brief

Statistics show that most of the court cases are won and lost, on the impression that a judge gets ongoing through the appellate. An appellate brief is a legal document presented before the appeals court, clearly stating all the details of a matter and why the stance of the lawyer is true.

The appellate attorney must put forth his side in such a way, that the judge is persuaded to rule in favor of attorney’s argument. Therefore, the question ‘how to write a legal brief’, should ideally be, ‘How to write a legal detail?’ The term appellate brief is ironic in the sense that, it is quite a lengthy document.

Tips to Write an Appellate Brief Effectively

If you are an appellate lawyer, shouldering the responsibility of writing an appellate, there are few details which you need to be particular about. It is both a responsible and a daunting task to write a winning legal argument. Whether the ruling court is a trial court, intermediate appellate court or a supreme court, the legal brief should reflect the genuineness of your cause.

– The first and foremost concern of the lawyer, in the process of writing a brief should be, thoroughness with the case. It is a very crucial input for writing an impeccable appellate brief. The lawyer should be well-versed with the matter, specially if the case has come up after a judgment from the lower courts. A forceful argument mostly depends on your knowledge of the subject.
– Mark out all the important issues or certain sensitive points in the argument, that need extreme focus. Make it a habit to research extensively for all the legal concerns. There are many sites and written material available, which can be ultimate guide for writing about a particular part in your argument. Follow interesting cases and refer some outstanding works, to broaden your own view and hence put in a compelling composition.
– While mentioning the minute aspects and making a deep study for the same, always ensure that you do not stray from the legal barriers. The most reliable argument is simply setting the facts straight and simple.

There was an interesting ruling, in one of the American court cases, where both the parties involved in the dispute were quite strong and committed to their side of the argument. The attorney for one side presented the arguments in a very intelligent and effective format, arguing about the validation of his claims. The other side, took an unconventional approach. The lawyer simply put forth all the legal rules and regulations concerned with the issue, elaborately. It was only in the concluding part, that he mentioned how his claims were right in accordance with the detailed provisions of law, as stated earlier. Although, the previous side has forceful arguments in their brief, the latter side won the case, on a simple and clear presentation. The judge made a decision considering all the legal framework laid for the issue and the latter side presented its appellate, carefully in accordance with those clauses, mentioning them in detail.

The conclusion is, that no matter how clever arguments you put forth, it is equally, rather more important to simply adhere to the legalities binding the issue. This is one of the most workable strategies to write a winning appellate brief. However, this may not be the ultimate plan, to work in your favor.

The same approach may not prove effective in other cases. A lawyer who is able to read the situation and the circumstances, which are unique for each case, and interpret the rules guiding them in his client’s favor can write a good appellate. Therefore, writing a good appellate depends on how well you understand the issue, as well as its legal implications.

Make sure you have read and reread the entire appellate to rectify any errors, and have put forth all the points effectively. Also, get proofreading done from trusted assistants or seniors, and hope your work makes for a winning legal brief.

What is Rule 49-O?

Democracy itself, is defined as a form of government in which the power of a country is held by the people under a free electoral system. Political rights are also a part of human rights. So, every citizen has a right to vote for a candidate, who he/she trusts capable of understanding public issues and making decisions for the betterment of the public. However, there could also be a scenario where a voter thinks that none of the competing candidates are eligible to get his/her vote.

In such a situation, the voter is free to register for Rule 49-O and express his/her decision. The presiding officer in an election would register the voter’s decision, and the latter has to sign or give a thumb impression against the remark. Also, it has been mentioned that the negative/neutral vote would be considered at the time of counting of votes. However, the major flaw in this process is the violation of secret voting, since the voter has to inform the presiding officer about his/her decision, which is noted down by the officer. To overcome this, the Supreme Court of India recently directed the Election Commission of India to provide a ‘None of the Above’ (NOTA) button in the Electronic Voting Machines (EVM). The order was passed on September 28, 2013, and would be implemented from the Assembly Elections of 2013 and General Elections to be held in 2014, onwards. This button would help voters who do not want to vote for any of the candidates in the fray to register their opinion without disclosing their identity, which was the case in any earlier election process.

Rule 49-O: Text
49-O. Elector deciding not to vote. – If an elector, after his electoral roll number has been duly entered in the register of voters in Form-17A and has put his signature or thumb impression thereon as required under sub-rule (1) of rule 49L, decided not to record his vote, a remark to this effect will be made against the said entry in Form 17A by the presiding officer and the signature or thumb impression of the elector shall be obtained against such remark.

However, it should be noted that, even if the number of votes cast for NOTA exceeds the number of votes gained by any candidate, a candidate securing number of votes second to the NOTA would still be declared as the winner according to the ‘first-past-the-post’ (FPTP) system adapted by India to elect candidates in an election.