If the client does not make timely payment, the attorney may decline to perform further work for the client.. However, the attorney may contin-ue representation if he does not believe th
Trang 1If a case is simple, a person may wish to represent himself, or proceed PRO SE The courts usually discourage self-representation because legal prac-tice requires special skills, and an unschooled pro se party is usually at a disadvantage in court
Even attorneys are well advised to hire another attorney for personal legal problems
Advertising Many attorneys advertise their services Attor-neys must obey all applicable advertising laws and must follow rules of professional conduct related to advertising Under these rules they may not make false or misleading claims, create unjustified expectations, or compare the services
of another attorney unless the comparison can
be factually substantiated An attorney may not make in-person or live telephone solicitations unless the attorney is related to the person or has
a professional relationship with the person An attorney may not contact an individual after he
or she indicates a desire that the solicitations cease, and an attorney may not coerce or harass prospective clients Aside from these and similar restrictions, attorneys generally are free to use the various media to promote their services
Duties and Obligations
LEGAL REPRESENTATION places duties on both the client and the attorney The client should provide the attorney with all information relevant to the case and keep the attorney apprised of new information The client should be completely honest about the case with the attorney The client also should follow the attorney’s directives
The client has an obligation to pay the attorney for the representation If the client does not make timely payment, the attorney may decline to perform further work for the client An attorney also may discontinue representation if the client wants the attorney
to perform an unethical or illegal act, the client lies and refuses to correct the lie, the client makes representation unreasonably difficult, or the attorney discovers aCONFLICT OF INTEREST Generally, a conflict of interest is any circumstance that adversely affects a client, or limits the loyalty of the attorney to a client For example, assume that an attorney regularly represents a corporation A new client seeks the attorney’s representation in a suit against the same corporation Representing the new
client would be a conflict of interest Generally, the attorney would not be able to take the case
or continue representation after the conflict was discovered However, the attorney may
contin-ue representation if he does not believe that the conflict would adversely affect the relationship with the corporation, and if both the corpora-tion and the client agree to the attorney’s representation In practice, continued represen-tation where there is a conflict of interest is rare
If an attorney must withdraw from repre-sentation, he must act to protect the interests of the client This may involve helping the client find another attorney, postponing court dates, and surrendering papers and documents rele-vant to the case The attorney must return to the client any money owed to the client under the fee agreement
An attorney has many obligations to his or her client He must zealously defend the interests of the client and respond to the client’s concerns He must communicate with the client, keeping the client informed about the status of the case and explaining developments
so that the client can make informed tactical decisions He must abide by the client’s decisions regarding the objectives of the repre-sentation With few exceptions an attorney may not divulge client communications to outside parties without the client’s consent
Attorneys areOFFICERS OF THE COURT, and as such they must follow the law and obey ethical constraints They may not harass persons in the course of representation They may not assist a client who they know will not tell the truth about the case An attorney should not begin a romantic affair with the client during the course of legal representation In most states such behavior is an ethical violation No attorney in any state may perform legal services
in exchange for sexual relations
Fees Attorneys’ fees vary by attorney and by case An attorney may charge a client in several different ways The most common forms of billing include flat fees, hourly rates, contingent fees, and retainers
A flat fee is a dollar amount agreed to by the attorney and the client before the attorney begins work on the case The flat fee is favored
by many attorneys because it is a simple transaction and because the attorney is paid at
278 LEGAL REPRESENTATION
Trang 2the beginning of the representation The
attor-ney identifies the amount of work that the case
will require and calculates a reasonable fee
based on the time and effort involved If the
attorney spends less time on the matter than
anticipated, the attorney may keep the excess
payment, unless the attorney and client agree
otherwise Conversely, the attorney who charges
a flat fee may not later demand more money if
the case requires more time and effort than
originally anticipated
An hourly rate is a predetermined amount charged for each hour of the attorney’s work The attorney and client may agree that hourly fees are
to be paid periodically, or in one lump sum at the end of the case The time that an attorney charges for legal work is called billable time, or billable hours Hourly rates vary according to the attorney’s expertise and experience Some critics have argued that hourly rates discourage quick work and expedited resolutions Before agreeing
to an hourly rate, prospective clients should ask
Hiring an Attorney
The first task in hiring an attorney is
to find one who can manage the
particular legal problem at issue All
attorneys are not equally skilled in every
area of the law Like many other
profes-sionals, attorneys tend to specialize in
certain areas of practice such as contracts,
patents, family matters, taxes, personal
injuries, criminal matters, and business
matters A person facing criminal charges,
for example, will want to contact an
attorney who specializes in criminal
defense work, not a patent attorney
Some attorneys are known for their
skill in certain types of cases within a
specialty For example, a criminal defense
attorney may be competent to handle any
criminal case, but may be especially
proficient in drunk driving cases or
homicide cases Attorneys who specialize
in certain types of cases often have
developed a network of helpful contacts
and have a great deal of experience with
the kinds of issues involved in these cases
Some attorneys are general
practi-tioners, proficient in a broad range of
legal topics These attorneys are generally
less expensive than specialists However,
if a general practitioner is not competent
in a particular area, she may need to put
more time and effort into the case than
would a specialist, and the client will
have to pay for this extra work
Many businesses specialize in
mak-ing attorney referrals at no charge to the
consumer They offer lists of attorneys categorized by area of expertise or type of client For example, some referral ser-vices list attorneys who specialize in representing persons of color, women,
or gay men and lesbians
After obtaining a list of qualified attorneys, the consumer should have an initial consultation with several attorneys
if possible Some attorneys offer such a consultation at no cost, whereas others may charge a nominal fee In either case the initial consultation does not obligate the consumer to hire that attorney or firm
At the initial consultation, the po-tential client should provide the attorney with as much information as possible about the case Relevant information may include pictures, witness statements, and other documents This information helps the attorney make an informed judgment about the case
The attorney generally does not give legal advice at the initial consultation
Instead, the attorney will ask questions to determine whether he is able to represent the consumer The attorney will not begin to work on the case until a fee arrangement has been reached with the consumer
In deciding whether to retain a particular attorney, the consumer should look at a number of issues If money is a consideration, the consumer should
weigh the attorney’s fee against the importance of the case For example, the consumer may be willing to spend more money on an attorney if facing criminal charges than if involved in a minor civil matter
If the consumer and the attorney will need to meet frequently during the representation, the consumer should consider the location of the attorney’s office and required travel time
Another consideration is personal chemistry Attorneys and clients do not have to be friends, but they should have some rapport so that they can work together If the consumer does not feel comfortable with an attorney, she should find another attorney
If time is a consideration, the consumer should ask how long the attorney expects the case to last Some attorneys work more quickly than others
A consumer should also consider the reputation of the attorney Attorneys usually are willing to provide a list of previous clients as references All states have a PROFESSIONAL RESPONSIBILITY board that oversees the conduct of attorneys in the state These boards may be able to give consumers information regarding ethical violations by attorneys The consumer also may want to ask if an attorney has malpractice insurance, which compen-sates clients who are victims of incompe-tent legal work
LEGAL REPRESENTATION 279
Trang 3for a written estimate of the number of billable hours that the attorney anticipates will be necessary to complete the matter
A CONTINGENT FEE is a percentage of the amount recovered by the client A contingent fee
is not paid by the client until the client wins money damages from a defendant Attorneys offer such a fee if the client stands a good chance
of winning a sizable cash settlement or judgment
Contingent fees cannot be used in divorce cases, CHILD CUSTODYcases, and criminal cases
Contingent fees are a gamble for the attorney If the client does not win the case or wins less money than anticipated, the attorney may work for no or little pay Common contingent fees range from 20 to 40 percent of the client’s recovery For PERSONAL INJURY and MEDICAL MALPRACTICEcases, laws in all states limit the percentage that an attorney may receive from a client’s recovery For other cases the percentage is negotiable between the client and attorney
A client may retain an attorney for a specific period of time rather than for a specific project
In return for regular payment, the attorney agrees to be on call to handle the day-to-day legal affairs of the client Most individuals do not have enough legal matters to keep an attorney on retainer
The term retainer also refers to an initial fee paid by the client Retainers often are used
by attorneys who charge an hourly rate, and some attorneys add an initial retainer to a contingent fee
Pro Bono Services The term PRO BONO means “for the good.” In practice pro bono describes legal work per-formed free of charge Pro bono work is not required of attorneys in most jurisdictions, but courts occasionally appoint attorneys to repre-sent an indigent client free of charge Under Rule 6.2 of the American Bar Association’s Model Rules of Professional Conduct, a lawyer may refuse an appointment, but only if: (1) the appointment would somehow violate another rule of conduct (such as conflicts of interest) or law; (2) the appointment would unreasonably burden the lawyer; or (3) the lawyer finds the appointment so repugnant that he would not be able to effectively represent the client Attorneys often perform pro bono work in order to contribute to their community and create goodwill for the firm
Public Legal Services Legal services organizations exist in all states to provide free or low-cost legal services to qualified persons Legal services offices are funded by a variety of sources, including private businesses, private individuals, the interests from lawyer trust accounts, and federal, state, and local governments Civil matters such as bankruptcies, divorces, and landlord-tenant disputes are handled by LEGAL AID agencies Criminal matters are handled by state public defenders
Private Legal Services Some organizations sell “legal insurance” for a fee Legal insurance is a form of prepaid legal service in which the consumer pays a premium
to cover future legal needs Such a service may
be offered through labor unions, employers, or other private businesses Most legal insurance policies do not cover all types of legal matters, and the policyholder may not be entitled to choose his lawyer The consumer should determine the scope and nature of the legal representation offered in legal insurance packages
Other Considerations
If a client does not believe he or she has received competent legal representation, the client has several options In a criminal case, if a convicted defendant believes he received incompetent representation, the defendant can address the issue on appeal, and the appellate court may reverse the verdict If a client believes that an attorney has committed misconduct, the client may contact the board of PROFESSIONAL RESPONSI-BILITYin the state in which the attorney practices
If an attorney is found to have violated the law or the applicable professional conduct code, the attorney is subject to discipline by the board Discipline can range from a reprimand to revocation of the attorney’s license
In some states if an attorney and client have
a dispute over fees, the attorney may place a lien
on the client’s money or PERSONAL PROPERTY There are two types of attorney liens: a retaining lien and a charging lien A retaining lien gives the attorney the right to retain money or property belonging to the client until the client pays the bill The attorney does not have to go
to court to do this, but the judge may order a hearing at the request of the client to determine
280 LEGAL REPRESENTATION
Trang 4whether the attorney has good reason to keep
the money or property
A charging lien gives an attorney the right to
be paid from the proceeds of a lawsuit For
example, if an attorney charges a client a
contingency fee and the attorney wins a large
monetary award for the client, the attorney is
entitled to a predetermined share of the award
Generally, the attorney may keep a certain
amount for services rendered even if he was
fired by the client However, if a court finds that
the client properly fired the attorney for
misconduct, the attorney may not be entitled
to any portion of the client’s award
FURTHER READINGS
Editors of Court TV and The American Lawyer 1995 The
Court TV Cradle-to-Grave Legal Survival Guide Boston:
Little, Brown.
“How to Hire an Attorney.” In Consumer Guidebook to Law
and Leading Attorneys Joseph P Mitzel, ed
Minnea-polis: American Research Corporation
Latto, Lawrence J 1998 “The Restatement of the Law
Governing Lawyers —A View from the Trenches.”
Hofstra Law Review 26.
McKay, John 2000 “Federally Funded Legal Services: a New
Vision of Equal Justice Under Law ” Tennessee Law
Review 68 (fall).
Morgan, Thomas D 2007 2008 Selected Standards on
Professional Responsibility Eagan, MN: West.
Morgan, Thomas D., and Ronald D Rotunda 2008 Morgan
and Rotunda’s Professional Responsibility, Problems and
Materials 10th ed St Paul, MN: Foundation.
Peters, Jean Koh 2007 Representing Children in Child
Protective Proceedings: Ethical and Practical Dimensions.
3d ed Albany, NY: Matthew Bender.
Watson, Sidney D., ed 2001 Representing the Poor and
Homeless: Innovations in Advocacy Washington, D.C.:
American Bar Association, Commission on
Homeless-ness & Poverty Available online at http://www.abanet.
org/homeless/RepresentingThePoorandHomeless.pdf;
website home page: http://www.abanet.org (accessed
August 6, 2009).
CROSS REFERENCES
Attorney-Client Privilege; Attorney Misconduct; Attorney ’s
Lien; Client Security Funds; Ethics, Legal; Legal Advertising;
Legal Malpractice; Practice of Law; Professional
Responsi-bility; Right to Counsel.
LEGAL REPRESENTATIVE
In its broadest sense, one who stands in place of,
and represents the interests of, another A person
who oversees the legal affairs of another Examples
include the executor or administrator of an estate
and a court appointed guardian of a minor or
incompetent person
This term is almost always held to be
synonymous with the term personal representative
In accident cases, the member of the family entitled to benefits under a wrongful death statute
LEGAL RESERVE Liquid assets that life insurance companies are required by statute to set aside and maintain to assure payment of claims and benefits In banking, that percentage of bank deposits that must by law
be maintained in cash or equally liquid assets to meet the demands of depositors
LEGAL RESIDENCE The place of domicile—the permanent dwelling—to which a person intends to return despite temporary abodes elsewhere or momentary absences
A person can have several transitory resi-dences, but is deemed to have only one LEGAL RESIDENCE
LEGAL RIGHT
An interest that the law protects; an enforceable claim; a privilege that is created or recognized by law, such as the constitutional right to freedom of speech
LEGAL SERVICES CORPORATION The Legal Services Corporation (LSC) is a private, nonprofit organization established by Congress
in 1974 to provide financial support for legal assistance in civil matters to people who are poor (Legal Services Corporation Act of 1974, 42 U.S
C.A § 2996 et seq.) The LSC receives funds from Congress and makes grants to local nonprofit programs run by boards of directors made up of local lawyers, community leaders, and client repre-sentatives LSC support is an essential part of LEGAL AIDfunding in the United States However, the organization has attracted opposition from fiscal conservatives who wish to abolish it
The federal government began to make direct grants to legal aid organizations in 1965, during President LYNDON B JOHNSON’s war on poverty Studies revealed that states were doing
an inadequate job of providing legal assistance to people who were poor, especially in the South, the Southwest, and much of the Midwest The Legal Services Corporation (LSC) was estab-lished in 1974, during the Nixon administration,
to establish a structure for distributing funds to qualified local providers of legal aid that was permanent and immune to political pressure
The LSC is governed by an 11-member board of directors, appointed by the PRESIDENT
LEGAL SERVICES CORPORATION 281
Trang 5OF THE UNITED STATESwith theADVICE AND CONSENT
of the Senate No more than six members may
be of one political party, and at least two members must be eligible clients Through its Office of Field Services and its regional offices, the LSC distributes grants to legal services programs operating in neighborhood offices in all 50 states, the DISTRICT OF COLUMBIA, Puerto Rico, the Virgin Islands, and Micronesia Less than 5 percent of its budget is spent on the administration costs for the home office; the rest goes to community programs
The LSC supports local legal aid programs through training, research, sharing of infor-mation, and technical assistance LSC funding goes to 137 independent nonprofit legal aid programs with 923 offices throughout the country It also funds 16 national support centers that provide specialized assistance to attorneys in representing their clients Most of these support centers specialize in substantive areas of the law, such as housing, administrative benefits, and health Others specialize in the unique legal problems of particular groups, such as Native Americans, migrant farm work-ers, immigrants, and older people Staff mem-bers of the support centers may become directly
involved in litigation on behalf of their clients The 2009 LSC budget was $350 million General research is conducted by the LSC Institute on Legal Assistance The institute is devoted to substantive study of the broad range of legal problems encountered by poor people that relate to the services provided by legal aid programs The research projects of the institute fall into five broad categories: problems posing the most serious consequences to people who are poor, such as income security and health benefit programs; gaps in substantive poverty law, such
as rural issues; studies of agencies that provide benefits to people who are poor, such asWELFARE agencies and public hospitals; projects to prevent legal controversies and to create new procedures for settling disputes; and ways to evaluate how special legal institutions such as housing and small-claims court affect people who are poor The institute also conducts seminars and holds meetings on these topics and others that deal with the effect of the law on poor people
The LSC has been under attack for many years by conservative politicians and other groups that allege that the legal aid programs it funds have engaged in political and lobbying activities, often at the expense of providing legal services needed by people who are poor Critics argue that the LSC has been the legal pillar of the welfare state, opposing efforts by conservatives to rein in government programs Congressional Republicans have sought either to drastically reduce funding of the LSC or to abolish the LSC altogether Such efforts have had an impact on the LSC Congress allocated $415 million for the program in 1995, compared with $350 million in
2009 The LSC budget would need to be raised
by 30 percent to achieve parity in real dollars with the 1995 budget
In 2006 the LSC approved a document entitled Strategic Directions 2006–20010 The report listed a series of strategic decisions that were needed to implement two goals: increasing public awareness of, and support for, civil legal services to low-income persons and enhancing the quality and compliance of legal services programs Strategies for achieving these goals include use of better communication, technology, and improved program oversight
FURTHER READINGS Heritage Foundation 1995 Why the Legal Services Corpora-tion Must Be Abolished, by Kenneth F Boehm and Peter
T Flaherty Backgrounder no 1057 October 18.
Legal Services Corporation
ELIGIBLE CASES CLOSED, BY TYPE, IN 2007
SOURCE: Legal Services Corporation, Fact Book 2007, June 2008.
Consumer 11.5%
Education 0.7%
Employment 2.3%
Health 3.3%
Family 37.6%
Juvenile 0.9%
Income maintenance 11.4%
Housing 25.2%
Individual rights
1.5%
Other 5.6%
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
282 LEGAL SERVICES CORPORATION
Trang 6Legal Services Corporation Available online at www.lsc.gov
(accessed July 20, 2009).
Vivero, Maurico 2002 “From ‘Renegade’ Agency to
Institutional Justice: The Transformation of Legal
Services Corporation ” Fordham Urban Law Journal.
1323.
CROSS REFERENCES
Equal Protection; Legal Aid
LEGAL SPECIALIZATION
State-regulated legal certification programs
allow attorneys to be recognized as
“board-certified” experts in their practice areas The
certification process is overseen either by state
bar associations or state supreme courts and is
designed to prevent the public from being
misled by unscrupulous attorneys who claim
they are specialists without having BONA FIDE
credentials to back up the claim As of 2007,
18 states had adopted legal certification programs
LEGAL SPECIALIZATION certification had been
debated for decades, but the argument heated
up in the 1970s and early 1980s, when federal
and state courts struck down rules that
prohibited attorneys from advertising in the
media and in telephone books As phone
companies began to sell advertising in different
fields of law, national bodies such as the
National Board of Trial Advocacy (NBTA)
began certifying specialists in civil and criminal
litigation, and lawyers continued to become
more specialized in their practices By the late
1980s, certified legal specialist programs had
gained momentum The AMERICAN BAR
ASSOCIA-TION (ABA) set up a Standing Committee on
Specialization and, in 1993, adopted a set of
voluntary standards In addition, the ABA
agreed to accredit private national certification
programs that met the ABA standards By 2007,
more than 25,000 U.S lawyers had been
accredited as legal specialists
Certification rules vary from state to state,
but each lawyer must fulfill four major
requirements to be deemed a certified specialist
He or she must provide evidence of substantial
involvement in the specialty area and references
from lawyers and judges He or she must have
completed 36 credit hours of specialty
CONTINU-ING LEGAL EDUCATION (CLE) in the three years
preceding the application He or she must have
been admitted to practice and be a member in
good standing in one or more states Finally,
he or she must be recertified at least every five
years and be subject to revocation of the
certification for failure to meet the program’s requirements
State legal certification boards accredit independent agencies to perform the actual testing and certification This process minimizes the costs incurred by the certification boards and places the cost of the programs on the lawyers who wish to be certified and who must pay application fees to the independent agen-cies National organizations that are authorized
to certify specialists include the NBTA, the American Board of Certification, and the National ELDER LAW Foundation In addition, many state bar associations are authorized to certify specialists Eleven certification programs have been accredited The specialties include civil trial practice;CRIMINAL LAW;FAMILY LAWtrial advocacy; business and consumer BANKRUPTCY; creditor’s rights; legal, medical, and accounting professional liability; elder law; and estate planning law
FURTHER READINGS American Bar Association Standing Committee on Special-ization Available online at www.abanet.org/legalservices/
specialization/home.html (accessed November 21, 2009.)
Hobson, Wayne K 1986 The American Legal Profession and the Organizational Society, 1890–1930 New York:
Garland.
LEGAL TENDER All U.S coins and currencies—regardless of when coined or issued—including (in terms of the Federal Reserve System) Federal Reserve notes and circulating notes of Federal Reserve banks and national banking associations that are used for all debts, public and private, public charges, taxes, duties, and dues
LEGAL TITLE Ownership of property that is cognizable or enforceable in a court of law, or one that is complete and perfect in terms of the apparent right
of ownership and possession, but that, unlike equitable title, carries no beneficial interest in the property
LEGALESE Slang; technical jargon used by attorneys that is often beyond the comprehension of the nonlawyer
States enact “plain English” laws that require the translation of legalese into everyday
LEGALESE 283
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Hugh Swinton Legare was a lawyer, a legal scholar, and an attorney general of the United States under PresidentJOHN TYLER
Born January 2, 1797, in Charleston, South Carolina, to a wealthy French Huguenot father, both Legare and his sister, Mary, enjoyed a privileged upbringing and social advantages But the family’s money and influence could not cure the boy’s severe physical deformity Prevented from strenuous physical activity, Legare turned
his attention to scholarly pursuits, at which he excelled
Legare studied at Moses Waddel’s Academy and the College of South Carolina and graduated
in 1814 He worked toward degrees in law and languages in the United States (1814–17) and in Scotland (1818–19) Legare’s interest
in Roman and CIVIL LAW was developed at Edinburgh University under the tutelage of Professor Dugald Stewart Stewart, a disciple
of legal philosopher Friedrich von Savigny, praised the systematic character of ROMAN LAW, and argued that Anglo-American COMMON LAW could be made more precise and scientific by the application of the principles of deductive reasoning Legare embraced the notion that law—like geometry—could be treated as a deductive science, and it became a lifelong interest
Legare wrote extensively on law, legal philosophy, and classical literature throughout his life As a young man, he partnered with botanist Steven Elliot, Sr., and other prominent Charleston intellectuals to establish a quarterly magazine that was devoted to all disciplines of scholarly writing According to its masthead, the Southern Review proposed “to offer to our fellow citizens one Journal in which they may read without finding themselves the objects of perpetual sarcasm.” Legare was a principal contributor until the death of his partner and the demands of his political career caused the magazine to fold
Legare entered politics shortly after his return to the United States in 1819 He settled
on St John’s Island, off the South Carolina coast, with the intention of developing a cotton plantation, but his physical limitations soon forced a change of plans Within a year, he was
Hugh S Legare.
LIBRARY OF CONGRESS.
◆
◆
◆
◆
❖
1775–83
American Revolution
1789 U.S.
Constitution ratified
1797 Born, Charleston, S.C.
1814 Graduated from the College of South Carolina 1818–19 Studied law in Scotland
1828–32 Co-founded and edited Southern Review
1830 Appointed state attorney general
1832 South Carolina passed Ordinance of Nullification against tariff act; appointed U.S chargé d'affaires to Brussels
1820–22 and 1824–30 Served in South Carolina state legislature
1841 Appointed attorney general of the United States 1837–39
Served in U.S House
1843 Died, Boston, Mass.
1833 Congress passed compromise tariff;
South Carolina repealed its act
OUR COUNTRY
EXHIBITS THE LAST
SPECIMEN OF THAT
FORM OF
GOVERNMENT,WHICH
HAS DONE SO MUCH
FOR THE DIGNITY AND
HAPPINESS OF MAN
—H UGH S WINTON
L EGARE
284 LEGARE, HUGH SWINTON
Trang 8elected to represent St John’s Island in the
South Carolina state legislature
In 1822 Legare gave up his plantation and
moved back to his family home in Charleston
He practiced law and campaigned for re-election
to the state legislature—this time as a
representa-tive from Charleston He was elected in 1824 and
served until 1830, when he was named state
attorney general
During Legare’s tenure as state attorney
general, the nullification crisis in South Carolina
came to a head (Nullification is a doctrine
that asserts the right of a state to prevent within
its borders the enforcement of an act of the
federal government that is not authorized by
the U.S Constitution as interpreted by the
highest legislative authority of the state.)
Con-vinced that the 1828 and 1832 federal tariff
laws favored Northern industry and threatened
SouthernSLAVERY, the South Carolina legislature
declared them to be unconstitutional and
threatened to secede from the Union if the
federal government moved to enforce them
Legare opposed the nullification group, spoke on
behalf of the Union, and cautioned the federal
government against any exercise of authority
that might “tip the political balance … toward
the nullifiers” and stir the citizens to secession
For his efforts he was rewarded with a diplomatic
post in Brussels Legare was named U.S chargé
d’affaires in 1832
After fulfilling his obligations in Brussels
and enjoying an extended tour of Europe,
Legare returned to the United States in the fall
of 1836 On his return, he was elected as a
Union Democrat to represent South Carolina in
the U.S Congress He was defeated in the 1838
election because his view of fiscal policy did not
coincide with that of his constituents
Following his defeat, Legare returned to
Charleston and, for the first time in his career,
concentrated on thePRACTICE OF LAW He tried a
number of important cases and made his mark
in the South Carolina and federal courts U.S
Supreme Court justice JOSEPH STORY said, “His
argumentation was marked by the closest logic;
at the same time he had a presence in speaking
I have never seen excelled.”
Legare also returned to writing, authoring
articles on Demosthenes, Athenian democracy,
and Roman law During the presidential
campaign of 1840, Legare affiliated with the
WHIG PARTY, and he began a series of articles in
support of WILLIAM HARRISON, and later Tyler, which appeared in the New York Review
In appreciation for his support, President Tyler named Legare to be attorney general of the United States in 1841 Because of his foreign-service experience in Belgium and his thorough knowledge of both civil and INTERNA-TIONAL LAW, Legare was a highly regarded member of the cabinet As attorney general, Legare replaced DANIEL WEBSTERon the Ashbur-ton Treaty Commission He is credited with contributing important portions of the treaty that pertained to the right of search
When Webster resigned as SECRETARY OF STATEin May 1843, Legare assumed a number of his duties and was named secretaryAD INTERIM
A month later, on June 20, 1843, Legare died suddenly while accompanying President Tyler
to the dedication of the monument at Bunker Hill, in Boston
FURTHER READINGS Cain, Marvin R 1978 “Return to Republicanism: A Reappraisal of Hugh Swinton Legare and the Tyler Presidency ” South Carolina History Magazine 79.
Catalogue of the Library of the Honorable Hugh Legare 1843.
Washington, D.C In the Caroliniana Collection, Univ.
of South Carolina.
Catalogue of the Rare and Valuable Private Library of the Late Honorable H.S Legare 1848 Washington, D.C In the Caroliniana Collection, Univ of South Carolina.
Welsh, John R 1971 “An Early Pioneer: Legare’s ‘Southern Review ’.” The Southern Literary Journal 3, no 2 (spring).
Wilson, James Grant, and John Fiske, eds 1888–1889.
Appleton’s Cyclopaedia of American Biography New York: Appleton.
LEGATEE
A person who receives personal property through a will
The term legatee is often used to denote those who inherit under a will without any distinction between real property andPERSONAL PROPERTY, but technically, a devisee inherits real property under a will
LEGATION The persons commissioned by one government to exercise diplomatic functions at the court of another, including the minister, secretaries, attachés, and interpreters, are collectively called the legation of their government The word also denotes the official residence of a foreign minister
LEGATION 285
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1114 and 1118 containing Anglo-Saxon and Norman law It is an invaluable source of knowledge of the period preceding the full development of the Norman law
LEGISLATE
To enact laws or pass resolutions by the lawmak-ing process, in contrast to law that is derived from principles espoused by courts in decisions
LEGISLATION Lawmaking; the preparation and enactment of laws by a legislative body
Legislative bodies exist to enact legislation
The legislative process is a series of steps that a legislative body takes to evaluate, amend, and vote on proposed legislation The U.S Con-gress, state legislatures, county boards, and city councils engage in the legislative process Most legislation is enacted by Congress and state legislatures Implementation of legislation is left
to other entities, both public and private, such
as law enforcement agencies, the courts, com-munity leaders, and government agencies
Legislative Bills Legislation begins with the submission of a bill
to the legislature for consideration A bill is a draft, or tentative version, of what might become part of the written law A bill that is enacted is called an act or statute The selection
of appropriate and clear language for the proposed piece of legislation is critical Legisla-tors need to understand what is intended by the bill and who will be affected by it
A bill is amended to accommodate interested and affected groups and to eliminate technical defects More legislative attention is generally devoted to decisions on amendments than to disputes over whether a bill will be passed
An able legislator or supporter of a piece of legislation constantly seeks ways to silence opposition or convert opponents into suppor-ters Many important provisions that finally become law are adjusted by amendments in order to accommodate conflicting viewpoints
Sources of Legislation Ideas for legislation come from many sources
Legislators who have experience and knowledge
in a particular field introduce bills that they think will improve or correct that field They often copy existing legislation because an idea that works well in one jurisdiction can be useful
in another For example, in the 1970s, legisla-tion that created“no-fault” divorces was copied from state to state
Legislators receive proposals from the National Conference of Commissioners on Uniform State Laws, a coalition of over three hundred lawyers, judges, and law professors, who are appointed by the states Conference members draft proposals of uniform andMODEL ACTS Such acts attempt to establish uniformity in
a single legislative area For example, theUNIFORM PROBATE CODE is an attempt to standardize U.S probate law, and has been widely enacted The Council of State Governments, the American Law Institute, the AMERICAN BAR ASSOCIATION, and numerous other organizations all produce model acts for legislatures Even if a uniform or model act or a law used in a neighboring state is not totally applicable, it is easier to edit and revise it than to draft a new one Legislation is not motivated solely by existing ideas Modern legislation is often concerned with changing or protecting social and economic interests Interest groups usually become involved in the legislative process through lobbyists, who are persons they hire to act for them Often lobbyists work to protect the STATUS QUO by defensive lobbying, that is arguing against a piece of legislation Other times lobbyists propose a bill Whether opposing or proposing change, lobbyists typi-cally inform legislators about the expected effect that legislation will have on their particu-lar interest group Lobbyists also influence legislation through financial contributions to the political campaign committees of legislators Modern legislatures have a large staff that helps prepare legislation On occasion, studies are authorized when a problem is recognized and no solution is readily available Major legislation often starts with a blue-ribbon legislative commission, which might include citizen members and an independent staff from the academic community A handful of states have created permanent law revision commis-sions, which operate independently of the legislature
In addition, most states have independent offices that act as editors, putting legislative
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con-forms to current usage in the jurisdiction
Modern legislation has become increasingly
lengthy and complex, making it difficult for a
single legislator to craft a bill alone
Legislative Procedure
The procedure by which legislation is enacted
varies within the following general structure
A constitution is the basic charter for
governments in the U.S legal system
Constitu-tions typically specify that some kinds of
legis-lation, like a capital expenditure, require an
extraordinary vote, such as passage by
two-thirds rather than by a simple majority Three
separate readings, or announcements, of a bill
to the full house, are commonly required before
a vote can be taken Some constitutions require
a detailed reading each time, but legislatures
have found ways to circumvent this mandate
Constitutions often require an affirmative
vote by a majority of all the members of a
house, not merely those present, in order to
pass a bill They can also require that the names
of members voting aye and nay be recorded in
the journal of the legislative body Constitutions
can authorize the executive to veto legislation,
and establish a procedure for the legislature to
override a veto Sometimes a specific period of
time is prescribed for the legislative session or
term, and all work must be completed before
expiration of the session
It is common for a constitution to require
that a bill pertain to only one subject, which
must be expressed in the title of the bill For
example, An Act to Increase the State SALES TAX
from Six to Seven Percent is a proper title for a
bill that does exactly that and nothing else This
requirement efficiently packages legislative
work, significantly affecting procedure, order,
and efficiency It does not apply to the U.S
Congress, but often applies to state and local
legislatures
Each legislature adopts its own rules to detail
the organization and procedure of its body A
standard version of legislative rules is often
adopted to cover any situation not governed
by a specific rule Legislatures frequently need
to depart from regular procedure in order
to accomplish tasks Therefore, special rules
usually provide for the suspension of normal
procedure, when necessary A rules suspension
can be allowed only by a two-thirds vote
Some of the work of the legislature can be accomplished by resolution rather than by bill
A resolution is used to settle internal matters or
to make a public pronouncement without enacting a law Resolutions are used to adopt the rules of the house, to establish committees,
to initiate investigations, and to authorize and hire legislative employees Even more mundane daily work can be accomplished by a motion on the floor A motion lacks the formality of a resolution in that it cannot be formally announced and printed in the record
A resolution takes one of several forms A senate resolution or assembly resolution is adopted by only one house AJOINT RESOLUTION originates in one house and then is passed in the other house, having the full force of official legislative action This is the customary form for proposing state constitutional amendments and ratifying amendments to the U.S Constitution
ACONCURRENT RESOLUTION, like a joint resolution, originates in one house and is assented to by the other It lacks the legal effect of a normally adopted joint resolution, and is often used to express an opinion Petitions from state legis-latures to the president or to the U.S Congress are drawn as concurrent resolutions Commen-dations to persons who have performed socially significant deeds and to victorious athletic teams are typical concurrent resolutions
The Enactment of a Bill
A bill must follow certain customary steps through a legislature It is introduced by an elected member who acts as a sponsor The chief sponsor, who might or might not be the author of the bill, is the legislator who manages the bill as it progresses through the body and who explains it to other legislators The bill may also have cosponsors, who attach their names to the bill to add support
When the bill is introduced, it is referred to
a standing committee Whenever possible the bill’s sponsors and the legislative leadership attempt to steer the bill to a particular committee In most legislatures there is room for discretion in the reference of bills Major legislation might have to be referred to several committees, so the issue might be who receives
it first
Once the bill is referred, the committee must be convinced to place it on the agenda so that it can be considered and passed The
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