Advocate-General’s Basic Principles for Governance
By administrator | April 17, 2009
ADVOCATE-GENERAL’S
BASIC PRINCIPLES FOR GOVERNANCE
§ I. Transparency
Section 1.01 Availability of information
Provider is responsible for disclosing all relevant information in a manner that makes such information readily available. The formats and methods of communication should match what can be deemed appropriate under the circumstances.
Section 1.02 Stated objectives, none hidden
Provider should clearly state and explain any and all of its objectives. Any persons being directly affected have, and the general public may have, a legitimate interest in obtaining such knowledge, which is a prerequisite for a fair an accurate assessment of the fairness and reasonableness of: (i) such objectives; (ii) the correlation between the measures in question and their underlying objectives.
Section 1.03 Overstatement of certain elements
Provider’s presentations of its stated objectives for the measures should be balanced, and overstatement or unwarranted emphasis upon certain elements is to be avoided.
Section 1.04 Behavior indicative of corruption
Under no circumstances should the outcome of a decision, application, or the like be conditional upon rendering of payment, performance of any act, or any omission that are not clearly displayed.
Section 1.05 Who is responsible
Provider should clearly state the name of at least one person who is responsible for implementation of the measures.
Section 1.06 What are the implications
It is to be expected that measures are introduced as a result of careful deliberation taking into consideration the full consequences. Provider should clearly state all the implications, whether positive or negative, associated with the measure.
Section 1.07 Review mechanisms
In many cases, ensuring compliance with subjective and objective standards for good governance cannot be left entirely to the person or persons responsible for their implementation. Structural separation may be required to ensure fairness. Provider should clearly explain whether it has in place any review mechanisms such as compliance officers or review boards, and should provide contact information relating thereto.
Section 1.08 Remedies
Provider should clearly state any remedies available to Client, such as the right to file a complaint, seek redress or monetary compensation. Furthermore, a sufficient amount of guidance should be offered so as to allow Client to exercise such remedies freely, including – but not limited to – eligibility requirements. Complaints or claims should be handled professionally, in a timely manner, and free of charge.
Section 1.09 Free from error
To be reliable and useful as a legal instrument, measures should be free from errors such as spelling and typing errors, inaccurate cross-references, translations of poor quality and dubious validity, or grammatical errors.
Section 1.10 Free from ambiguity
To be reliable and useful as a legal instrument, the measures should be written clearly and articulately so as to avoid any ambiguity about their proper meaning. Where the outcome depends, wholly or in part, on personal judgment or other elements of a discretionary nature, Provider should furnish an amount of information sufficient to enable Client to ascertain whether such decisions are reasonable, consistent, not arbitrary, and not open-ended.
Section 1.11 Up-to-date
To be reliable and useful as a legal instrument, measures should be up-to-date so as to avoid any misunderstandings or misleading information. To ensure this, Provider should diligently ascertain whether the measures adequately reflect any changes made elsewhere within its organization.
Section 1.12 Comprehensible
To be reliable and useful as a legal instrument, measures should be reasonably easy to understand so as to avoid any misunderstandings, confusion, or misleading information.
Section 1.13 Adequacy of references
To be reliable and useful as a legal instrument, measures should be accompanied by references to any laws, administrative measures, internal policies, and other materials of direct relevance.
Section 1.14 Adequacy of information
Provider should furnish an amount of information adequate to enable Client to understand its rights and obligations, including – but not limited to – written records and/or oral presentations pertaining to all key elements involved. Whenever possible, such presentations should be made in Client’s language-of-choice. Whenever warranted, Provider should encourage Client to seek independent professional advice prior to making any commitments. Misrepresentations – whether oral or written, explicit or implied – are to be avoided under all circumstances.
§ II. Non-discrimination
Section 2.01 Conflicts of interest
Persons or institutions with a conflict of interest are generally unable to render sound judgment or make decisions that meet basic requirements for good governance. Conflicts of interest, whether apparent or evident, are therefore to be avoided. A person or institution must disclose any real or potential conflict of interest in a timely manner.
Section 2.02 Preferential treatment
Provider has an obligation and a responsibility to apply its measures in an equitable fashion. Undisclosed preferential treatment, as well as preferential treatment based upon criteria that are non-transparent, constitutes discrimination and is to be avoided under all circumstances.
Preferential treatment may be justified in a narrow set of circumstances, provided that: (i) the criteria for differentiating are clearly and comprehensively explained; (ii) preferential treatment is applied diligently to ensure that it does not go further than what is required and warranted to fulfill the stated criteria; (iii) such preferential treatment does not violate basic norms of fairness and decency.
§ III. Consistency
Section 3.01 Subjective consistency
Provider should exercise due diligence to ensure consistency between its measures and its own stated policy and other internal regulations, prior as well as current. Any derogation should be clearly identified and explained.
Section 3.02 Objective consistency
Provider should exercise due diligence to avoid adopting measures that are inconsistent with broadly accepted policy objectives and regulatory standards. Any derogation should be clearly identified and explained.
Section 3.03 Consistent administration
Provider should adopt administrative procedures to ensure that all like situations are handled equally as far as time, cost, quality etc.. Where this is not possible due to foreseeable or unforeseeable circumstances of an exceptional nature, Provider should clearly state the nature of the problem as well as its plans for solving it.
§ IV. Proportionality
Section 4.01 Subjective proportionality
Provider must clearly state its reasons for imposing any obligations or restrictions upon Client. Provider must also ensure that any restrictive measures are no more burdensome than what is required to meet its stated objectives. Furthermore, Provider must ensure that any restrictive measures fulfill only their stated objectives.
Section 4.02 Objective proportionality
Provider should exercise due diligence to ensure that the obligations or restrictions imposed on Client are no more burdensome than broadly accepted policy objectives and regulatory standards would permit. Any derogation should be clearly identified and explained.
Section 4.03 Compensation or other relief
With respect to restrictive measures, Provider should make available to Client adequate compensation and/or other forms of relief to offset any burden. Where relief is warranted, Provider should take reasonable steps to ensure that the remedies are made readily available to Client, that no undue burdens are imposed upon Client to seek such remedies, and that Client receives in a timely manner a sufficient amount of information concerning all important aspects including – but not limited to – eligibility requirements, deadlines, and monetary limitations.
Section 4.04 Application of restrictive measures
Whenever possible, restrictive measures should be preceded by fair notice and be implemented gradually during a reasonable introduction period.
Section 4.05 Disproportionate or undisclosed side effects
Provider should exercise due diligence to avoid any undisclosed side effects. Where side effects are unavoidable, these should be clearly identified and explained, and every reasonable effort should be made to minimize them.
Section 4.06 Warnings, notices, disclaimers
Provider must clearly display warnings, notices, and disclaimers as appropriate. Provider should not, however, use such measures indiscriminately. Such measures should be used conservatively, not to unduly limit Provider’s responsibilities and obligations towards Client or to impose undue burdens upon Client.
§ V. Efficiency and effectiveness
Section 5.01 Suitability and adequacy (subjective)
Provider should adopt only measures that are suited and adequate to fulfill their stated objectives. Such measures should be implemented with a view to efficiency and effectiveness.
Section 5.02 Suitability and adequacy (objective)
Provider should design its measures to comply with and be compatible with broadly accepted policy objectives and regulatory standards. Any derogation should be clearly identified and explained.
Section 5.03 Not unenforceable, ambiguous, or open-ended
Provider should carefully design its measures to ensure their enforceability. Conversely, Provider should avoid adopting any measures that are legally unenforceable, ambiguous, or open-ended.
§ VI. Miscellaneous
Section 6.01 Best practices
Provider should consistently fulfill its obligations and responsibilities in a timely and courteous manner, and comply with any applicable codes of conduct. If meeting its obligations becomes impossible due to exceptional circumstances, Provider should clearly state so and offer compensation or other remedies, as may be appropriate.
Section 6.02 Mitigating circumstances
Provider may be excused from non-fulfillment of certain requirements and from non-compliance with certain standards where this is a direct consequence of unavoidable circumstances or obligations imposed upon Provider by others, notably an official act of government.
Section 6.03 Aggravating factors
Certain forms of conduct may be considered an aggravating factor, such as: (i) repeated non-fulfillment of obligations and responsibilities; (ii) evasive behavior such as failure to respond or prolonged response time; (iii) willful concealment or misrepresentation of material facts; (iv) unethical conduct.
Section 6.04 Benefits of compliance
Compliance with these guidelines seek to prevent public and private service providers from: (i) imposing any undue burden upon their clients, (ii) engaging in manipulation, willful concealment, deception, or activity indicative of corruption; (iii) being viewed as inconsistent, sloppy, unprepared, not resourceful, or unprofessional; (iv) being viewed as engaging in willful depravation of their Clients’ rights, bias, or other forms of discrimination; (v) being viewed as behaving antisocially.
Compliance with these guidelines may thus protect a service provider’s public image as a reputable organization, preserve a healthy relationship with its clients, and reduce its exposure to lawsuits and other formal complaints.
No opinion by the Advocate-General is final, as we may at any time revisit an issue and amend or update our prior findings.
(c) Copyright 2005-2009 by Morten Rand. All rights reserved.
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Advocate-General’s Basic Principles for Justice
By administrator | April 17, 2009
ADVOCATE-GENERAL’S
BASIC PRINCIPLES FOR JUSTICE
§ I. The rule of law
These basic principles are aimed at societies that are genuinely committed to the rule of law as a core component of their chosen governance structure. Such a commitment entails that all matters of a legal nature are to be resolved solely on their merits in accordance with applicable laws and regulations, excluding all subjective factors such as favoritism, financial or societal status from playing any role whatsoever.
The rule of law entails equality before the law and entitlement to equal protection of the law, cf. Article 7 of the Universal Declaration on Human Rights. Physical and legal persons should have unimpeded access to courts, tribunals, or other legal or administrative authorities capable of resolving legal disputes in a timely and predictable manner. Decisions by the judiciary should be subject to appellate review, and decisions by administrative authorities should be subject to administrative and/or judicial review.
Contracts must be enforceable and property rights be upheld. In criminal proceedings, the government has an obligation to ensure prosecutorial independence, impartiality, and competence, cf. the Guidelines on the Role of Prosecutors. Furthermore, the government must ensure that no one is arrested or detained arbitrarily and that anyone charged with a crime is afforded the rights and protections espoused by the Universal Declaration of Human Rights, Articles 9-11, including the right to a fair and public trial and the right to be presumed innocent until proven guilty.
Anyone has the right to call upon the assistance of a lawyer. In criminal justice matters, the government has an obligation to inform anyone who is arrested, detained, or charged with a crime of his right to seek legal counsel of his choice. Under the circumstances, such persons have the right to receive such services without payment. The government must ensure that lawyers are able to defend their client’s interests effectively and without improper interference, cf. the Basic Principles on the Role of Lawyers.
§ II. Separation of powers
In practice, the rule of law is achievable only where the government has been divided into three distinct branches: The legislature, the executive branch, and the judiciary. Under such a system, the legislature is the branch of government primarily responsible for making laws, the executive is the branch of government primarily responsible for enforcing them, and the judiciary is the branch of government primarily responsible for interpreting them.
To perform their respective roles effectively, each of these three branches of government must remain independent. This, in turn, requires them to coexist in a constructive relationship based upon mutual respect for their respective roles and the limitations of their respective powers.
§ III. Independence of the judiciary
- The judiciary shall enjoy a level of independence no less than that articulated in the Basic Principles on the Independence of the Judiciary, including:
- A legal framework designed to guarantee its independence;
- freedom from undue influence or interference by any governmental and other institutions;
- jurisdiction over all issues of a judicial nature;
- the exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law;
- adequate resources to properly perform its functions.
Section 3.01 The legal framework
The legal framework designed to guarantee the independence of the judiciary needs to be comprehensive, up-to-date, and unambiguous. Courts should be allowed to establish their own rules and procedures, albeit subject to certain guidelines to prevent undue influence or favoritism from within. Cases should be assigned randomly or in some other fair and transparent manner. The rules concerning appointment and promotion of judges also need to be fair and transparent. Any judge must be protected against removal from office except as a result of serious misconduct or inability to fulfill his duties, and then only by a decision issued by a panel of judges in accordance with principles of due process. Dispute settlement mechanisms, review mechanisms, and enforcement mechanisms are required to ensure effectiveness even under difficult circumstances such as political and constitutional crises.
Section 3.02 Freedom from undue influence or interference
Keeping the judiciary free from undue influence or interference by any governmental or other institutions requires a combination of commitment, transparency, and accountability. The commitment not to unduly influence or interfere with the judiciary should be made public and be legally binding. Under no circumstances should the executive or legislature seek to unduly influence the outcome of a particular case that is pending before a court or may come before a court in the foreseeable future. It may be appropriate for the other branches of government to criticize the judiciary and its decisions from time to time, but they must endeavor to do so with respect and always in a format whereby the critique becomes a matter of public record. The judiciary has a particular duty to disclose any attempted undue influence or interference, so that corrective action can be taken and those responsible be held accountable.
Section 3.03 Complete jurisdiction
Giving the judiciary branch jurisdiction over all issues of a juridical nature entails that any affected persons should ultimately have recourse to the court system, even where the executive branch has mechanisms in place to allow for administrative review of its decisions.
Section 3.04 Ultimate authority
Granting the judiciary the exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law is an inescapable consequence of the separation of powers doctrine. Conversely, the judiciary should exercise its authority with objectivity and reasonable discretion, and must never seek to inappropriately expand its powers.
Section 3.05 Adequate resources
Failure to give the judiciary adequate resources to properly perform its functions occurs in too many jurisdictions around the world. Courts are often understaffed, caseloads too burdensome, salaries too low, and office equipment outdated, all of which cause case backlogs and an environment conducive to corruption. Allocation of scarce resources has a significant potential for leading to undue influence, wherefore the courts themselves should have the final say in the matter. As a further bulwark against undue influence and corruption, any special privileges are to be avoided whenever possible, especially those that are unsecured or that are allocated in accordance with non-transparent criteria.
§ IV. Rights and responsibilities of the judge
- To serve in the public interest, a judge must pledge to remain independent, impartial, professional, and accountable. In every respect and at all times, he must be held to the highest professional standards including, inter alia, any relevant rules and principles espoused in the following instruments:
- Basic Principles on the Independence of the Judiciary;
- Bangalore Principles of Judicial Conduct;
- Advocate-General’s Basic Principles for Governance;
- Any applicable professional codes of conduct.
Section 4.01 Independence
While serving, a judge must remain independent of any political interests, leaving himself free to pursue the search for justice without any prejudice or bias. A judge must remain deeply, unconditionally, and irrevocably committed to solid academic and intellectual principles for analysis, reasoning, and rational thought. A judge must adhere to established principles for legal interpretation, aiming to take into account all relevant legal principles, rules, and cases. His published opinions and decisions must be reasoned and comply with applicable standards.
A judge must immediately notify the appropriate authority of any attempted bribery, extortion, undue influence, or other interference with discharge of his official duties. Such notice must be given in writing or, if an oral presentation is made, be accompanied by a transcript to be provided as soon as possible. The appropriate authority must promptly investigate any complaint and take further action as may be appropriate to protect the judge and to preserve the integrity of the office.
Section 4.02 Terms of employment
As a safeguard against undue influence or interference, a judge should enjoy tenure for life or employment for a fixed, non-renewable period on conditions similar to those offered to his colleagues in comparable circumstances.
A judge must be given a fair salary reflecting his professional background, qualifications, and current position. Any tests or exams must be standardized, and all judges at the same level of the hierarchy and with similar seniority should receive similar compensation packages in principle. Under particular circumstances, incentives and rewards may be offered in accordance with published guidelines. The salaries and any other benefits given to a judge shall be a matter of public record.
Section 4.03 Appropriate conduct
While a measure of individualism inside and outside the courtroom may be permissible, judges should always conduct themselves in a manner that is respectful of the court as an institution. Judges must adhere to any codes of conduct applicable within their jurisdiction.
Judges should enjoy immunity against criminal or civil liability stemming from regular discharge of their official duties. However, each of the following forms of behavior potentially constitute serious misconduct that may be grounds for removal from office or other reprisals: Lack of independence, lack of impartiality, lack of integrity, impropriety, inequality, incompetence or lack of diligence, unethical conduct.
No opinion by the Advocate-General is final, as we may at any time revisit an issue and amend or update our prior findings.
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Website review criteria
By administrator | April 6, 2009
I. Accessibility
The advocate should be mindful of the various “points of entry” into the website. The value of a website is diminished if it cannot be found with relative ease. Potential clients spend considerable time online searching for lawyers to suit their needs, and many – albeit not all – are sophisticated in their ability to locate what they want. However, the average user has limited time and patience. Ultimately, it is up to the lawyer to ensure that he can be found by prospective clients, and in so doing he would need to use his imagination as to potential points of entry, including:
- Generalized search engines that cater broadly to all users (such as Google, Yahoo, Infoseek);
- Specialized search engines that deal exclusively with law-related information;
- 3rd party portals and directories (such as FindLaw.com and those maintained by bar associations);
- Own portals and directories such as those maintained by lawyers’ networks;
- Direct page rendering in which the client knows the URL, wholly or in part, of the law firm and seeks to visit the site by entering this address directly;
- Links from other sites;
- Links contained in emails, articles, advertisements, and other sources of communication.
The lawyer who wishes to optimize his website should, at a minimum, keep all of these points of entry in mind and consider what additional resources may be required to make good use of most or all of them.
I.A. Accessibility, search engines
Legal Examiner will test whether the website can readily be found by using major generalized search engines. In so doing, we will look primarily at page rankings and the quality of information that the search engines generate. Where a web site does not appear in the top 10 results of Google, for example, this is rated as a concern. Where it does not appear in the top 20 results, this is rated as an error. The reason is that prospective clients who have heard about a company will expect that they can locate it by using major search engines, and the average user will not search beyond the first one or two pages of the search engine. Furthermore, given that the typical law firm has a distinct name or brand, it should represent no major difficulty for the firm to achieve good rankings with relatively little cost and effort.
Legal Examiner will further test whether a company website is readily available from various specialized search engines.
I.B. Accessibility, directories
Legal Examiner will test whether the website is readily available from various portals and directories maintained by third parties as well as those maintained by a legal network or the like to which Examinee belongs.
I.C. Accessibility, website
This part of our survey focuses upon the user experience once the visitor has arrived at Examinee’s website. To avoid frustrating or confusing users, it is essential that key information about the firm is made readily available, meaning that it should neither require too many clicks nor too much time to obtain it.
Even where the information is accessible within one or two clicks, usage time will be a concern in case it is difficult for the average visitor to quickly determine which links lead to what information, as this may require the user to reluctantly “try out” several different links before arriving at the desired destination.
A further concern is the situation where certain information that the average user would have expected to find is simply not there.
Legal Examiner will thus examine whether relevant key information is readily available, both in terms of its presence somewhere on the site and in terms of its accessibility measured in clicks and usage time.
1.1. Legal facts
Given that lawyers are a regulated profession and that most legal service providers have a fiduciary responsibility towards their clients, it is to be expected that certain legally relevant facts are given on the company website.
1.1.1. Structure, clicks
Legal Examiner will check whether relevant key information regarding the Examinee’s legal status (i.e. partnership, sole proprietorship, corporation etc.) is clearly displayed on the website and the number of clicks required to access it.
1.1.2. Structure, time
Legal Examiner will check whether relevant key information regarding the Examinee’s legal status (i.e. partnership, sole proprietorship, corporation etc.) is clearly displayed on the website and the amount of usage time required to access it.
1.1.3. Memberships, clicks
Legal Examiner will check whether Examinee clearly states on its website any organizations it belongs to and the number of clicks required to access this information.
1.1.4. Memberships, time
Legal Examiner will check whether Examinee clearly states on its website any organizations it belongs to and the usage time required to access this information.
1.1.5. Privacy policy, clicks
Legal Examiner will check whether Examinee has on its website a privacy policy stating clearly and adequately whether it collects personal data from its visitors, what information it collects, and how it uses such information. We will test the number of clicks needed to reach such information.
1.1.6. Privacy policy, time
Legal Examiner will check whether Examinee has on its website a privacy policy stating clearly and adequately whether it collects personal data from its visitors, what information it collects, and how it uses such information. We will test the usage time needed to reach such information.
1.1.7. Usage rules, clicks
Legal Examiner will check whether Examinee has on its website a set of usage rules stating clearly and adequately the terms and conditions that apply for using the website, as well as the number of clicks needed to reach such information.
1.1.8. Usage rules, time
Legal Examiner will check whether Examinee has on its website a set of usage rules stating clearly and adequately the terms and conditions that apply for using the website, as well as the usage time needed to reach such information.
1.2. Organization
It is to be expected that a law-related website will provide a certain amount of information to enable visitors to generate an overview of the firm’s size, location, and how to contact the firm or any of its individual members.
1.2.1. Number of members, clicks
Legal Examiner will check whether Examinee has stated on its website how many lawyers, paralegals, and other legally trained personnel it has, as well as the number of clicks needed to reach such information.
1.2.2. Number of members, time
Legal Examiner will check whether Examinee has stated on its website how many lawyers, paralegals, and other legally trained personnel it has, as well as the usage time needed to reach such information.
1.2.3. Contact members, clicks
Legal Examiner will check whether Examinee has on its website adequate contact information for individual members, as well as the number of clicks needed to reach such information.
1.2.4. Contact members, time
Legal Examiner will check whether Examinee has on its website adequate contact information for individual members, as well as the usage time needed to reach such information.
1.2.5 Contact administrator, clicks
Legal Examiner will check whether Examinee has on its website adequate contact information for the system administrator, as well as the number of clicks needed to reach such information.
1.2.6 Contact administrator, time
Legal Examiner will check whether Examinee has on its website adequate contact information for the system administrator, as well as the usage time needed to reach such information.
1.3. Content area
1.3.1. Contents overview
Legal Examiner will check whether Examinee has on its website an overview of all or most of the content it offers online, as well as the number of clicks and usage time needed to reach such information.
1.3.2. Articles, papers etc.
Legal Examiner will check whether Examinee offers content on its website, as well as the number of clicks and usage time needed to reach such information.
2. Links
2.1. Descriptiveness of links
Legal Examiner will check whether the links on Examinee’s website are descriptive in the sense that they are suited to direct visitors to the desired target. Links are considered descriptive if the average user, without guessing or thinking particularly hard, can guess roughly what sort of information clicking on a link will lead to. Conversely, links are considered non-descriptive in case the user must either guess what information a link actually leads to or the link, albeit seemingly clear, does in fact lead to a different type of information than the average user could reasonably have expected.
2.2. Broken links, incoming
Broken incoming links are defined as link, situated on a 3rd party website, that purportedly points to Examinee’s website but that in fact, when the user clicks on it, either leads to a non-operational URL (blind link) or to a site other than the Examinee’s website.
Legal Examiner will look around the Internet for any broken incoming links based upon the fundamental belief that broken incoming links are both a waste of business opportunities and potentially harmful to Examinee’s online reputation. Whether or not Examinee has any influence on the 3rd party site, many users will associate Examinee with the 3rd party site, and therefore it is in Examinee’s best interest to have such broken links repaired or removed whenever possible. Broken incoming links represent a particularly troubling phenomenon in case the 3rd party website operator deliberately exploits Examinee’s name or brand to redirect users to websites hosting malware or for similar fraudulent purposes.
2.3. Broken links, outgoing
Examinee is responsible for the safety and operational quality of any outgoing links on its site, defined as hyperlinks that directs users from Examinee’s website to a 3rd party website. Links that either lead to a non-operational URL or to a site other than the purported website constitute a serious error, as they frustrate the user and make Examinee appear unprofessional. Links that, whether intentionally or not, direct the visitor from Examines’ website to a non-reputable website constitute a serious error as well. While legally significant, the existence of a disclaimer such as “we do not take responsibility for linked sites” make no difference for our rating in these situations.
2.4. Number of links in menus
The number, placement, design, and operational function of menus on Examinee’s website should be reasonable to avoid information overload, confusion, and difficulties in navigating the website. In designing its website, Examinee should always keep in mind that the average user is unfamiliar with the site’s contents and therefore more prone to getting confused.
2.5. Number of links in text
The number, placement, design, and operational function of links inside text areas on Examinee’s website should be kept reasonable to avoid information overload, confusion, and difficulties in navigating the website. In designing its website, Examinee should always keep in mind that the average user is unfamiliar with the site’s contents and therefore more prone to getting confused.
3. Pages
3.1. Page load times
Website pages that are too slow to load will frustrate most users, and some will undoubtedly leave Examinee’s website and go elsewhere. In our view, pages that do not load fairly quickly – say, within 5 seconds in standards compliant browsers – constitute an error in our view, both from a user’s perspective and as a loss of business opportunities for Examinee.
Legal Examiner will test the load times for Examinee’s website and present a detailed graphical presentation for the various elements of the site. This should enable Examinee to both get an exact picture of load times for its website and knowledge about exactly what elements, if any, that lead the website to load more slowly than it ought to.
3.2. Look and feel
The look and feel of a website determine its attractiveness to users, both from an aesthetic and a utility perspective. A visually inviting website may contain elements that make it less useful, and vice versa. Legal examiner will review Examinee’s website as far as the three core components:
3.2.1. Text size and fonts
3.2.2. Graphics
3.2.3. Style
4. Interactive content
Interactive content represents an opportunity for lawyers to enhance their website, but also a major challenge from a technical perspective. Many users have not set up their computers to play audio and video, for instance. Therefore too much emphasis on such elements may make important information inaccessible to many users while frustrating others, leading to a negative user experience and potentially a loss of business opportunities for Examinee. Certain interactive components are disliked by many users, including so-called “pop up ads” and certain forms for animated advertisements.
Legal Examiner will review the amount, placement, design, and operational quality of interactive content on Examinee’s website, including:
4.1. Audio and video
4.2. Other (e.g. banner ads)
II. Image
Examinee’s website constitute an integral part of its overall image. Therefore, the site should emphasize the values, work areas, and achievements that Examinee considers most important. To be effective, the site should present these elements in a manner that is clear and adequate.
5.1. Values
Legal Examiner will ascertain whether Examinee’s website contains any description of its fundamental values such as work ethics, as well as the quality of any such contents.
5.2. Work areas
Legal Examiner will ascertain whether Examinee’s website contains an adequate description of its practice areas including any areas of expertise.
5.3. Achievements
Legal Examiner will ascertain whether Examinee’s website contains any description of its achievements, including any client references, exams, and prior cases. The quality of any such contents will be reviewed.
5.4. Effectiveness
Legal Examiner will seek to determine what Examinee’s fundamental vision for the website appears to be, namely what image it apparently seeks to portray. We will then compare this apparent vision with the actual website, which will enable us to see whether the site communicates these visions to the visitors effectively.
III. Content
6. Descriptive content
A law-related website is likely to contain a certain amount of content regarding the firm, including its physical attributes (location, size, structure etc.), who works there, its history, and more. Legal Examiner will review the quality of such information as far as:
6.1 Relevance
6.2. Up-to-date
6.3 Error free
6.4. Adequacy
6.5. Transparency
6.6. Consistency
7. Legal content
The website represent a significant opportunity for Examinee to provide legal content such as articles, speeches, and case materials to its visitors. If done well, such contents will be appreciated by visitors, which in turn may help attract new visitors and ensure the loyalty of existing ones. Perhaps even more importantly, the contents will demonstrate to existing and prospective clients that the lawyer has a certain level of experience and a grasp of certain subject matters. Legal Examiner will review the quality of such information as far as:
7.1. Relevance
7.2. Up-to-date
7.3. Error free
7.4. Adequacy
7.5. Transparency
7.6. Consistency
8. Related content (linking)
Legal Examiner will ascertain whether Examinee facilitates access to additional information for its visitors by linking to external sites (e.g. law libraries, courts, or legal associations) To the extent that this is the case, we will review the quality of such related content. Our evaluation is based upon the premise that such external content reflects back on Examinee’s own image, whether positively or negatively.
IV. Legal and regulatory
Legal Examiner will seek to establish whether Examinee is in compliance with any laws, regulations, professional guidelines, and other norms that may apply to operation of the website, including:
9.1. Online advertising guidelines
9.2. Data collection
9.3 Intellectual property rights
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Lawyers online
By administrator | April 6, 2009
Requirements versus preferences
“Requirements” are defined as preconditions that must be fulfilled. Accordingly, non-fulfillment of a requirement would lead to a negative rating immediately. The service provider would be well-advised to address such concerns immediately, and should bring this to our attention so as to enable us to revisit the issue. Examples of requirements applicable to online legal service providers:
- All pages of the website, including images and text, must load in any standards compliant browser. In the absence hereof, some users will be turned away, whereas others will experience unreasonable frustration;
- The website must adhere to applicable legal and professional standards. For example, where legislation requires a published privacy policy, the advocate’s non-fulfillment cannot be tolerated.
“Preferences” are defined as priorities that should be fulfilled in order to provide a good experience for the user as well as an effective use of the provider’s website and related activities. Non-fulfillment of a preference may or may not lead to a negative rating immediately; however, it is likely to lead to a negative rating eventually after the service provider has been notified and been encouraged to remedy the situation, yet failed to do so. Examples of preferences applicable to online legal service providers:
- Interactive content such as audio and video should be in a broadly supported format, so as to make it available to the largest possible amount of users. Furthermore, such content should be optimized to load quickly, thereby avoiding bottlenecks;
- A firm’s presentation of its goals and philosophy should be clear and unambiguous so as to avoid causing misunderstandings. (Were such statements to be directly misleading, it would be considered not breach of a preference but non-fulfillment of a requirement, namely that of transparency and integrity).
The distinction between requirements and preferences is not always self-evident. In case of doubt, we have tended to view the issue from a user’s perspective; thus the subtitle “a user survey.” It is the practical implication that a concern will tend to be classified as a requirement, not merely a preference, if the imperfection either: is of significance to a substantial percentage of the actual or likely future users of the website, or; even though it affects only relatively few users, the imperfection is likely to result in substantial inconvenience for those affected by it.
In general, lack of time, technical expertise or financial resources will not qualify as exculpatory or mitigating factors. A service provider is expected to know its business. However, it will be taken into account whether or not the service provider could reasonably be expected to have avoided the problem and whether the provider, once the situation has been explained, has exercised every reasonable effort to remedy the situation quickly. On balance, we will endeavor in this survey to avoid being too lenient towards the advocate while also resisting any temptation to “cry wolf” over minor issues.
Table 1 – Typical Requirements
| Description | Category | Score |
| Browser friendly, speed | Technical | |
| Browser friendly, consistency | Technical | |
| No dead links | Technical | |
| Substantially free from error | Content | |
| Substantially free from ambiguity | Content | |
| Free from misrepresentation | Content | |
| Substantially free from misrepresentation | Image | |
| Non-violation of intellectual property | Legal | |
Table 2 – Typical Preferences
| Description | Category | Score |
| Informative | Content | |
| Not confusing | Content | |
| Audio-video works well (if applicable) | Technical | |
| Consistent with firm’s style | Image | |
| Content rich | Content | |
| High quality content | Content | |
| Consistency across the site | Layout / content | |
| Consistency over time | Layout / content | |
Priorities for Advocates
While many requirements and preferences are applicable to online services providers generally, our further studies of the profession have identified a number of concerns that are unique to online legal service providers. In some cases, this means that requirements and preferences that apply to service providers generally should be further refined and more clearly defined before it can be understood what they mean to legal service providers. In other cases, additional requirements and preferences can be identified that apply exclusively or primarily to legal service providers.
Our understanding of what constitutes a successful or at least satisfactory online presence for a legal service provider is based upon our careful review of over 100 law firms, private practitioners, legal portals, legal associations, and various other legal and law-related service providers over a period of time. These examinees are individually listed in Table 3 and referred to extensively throughout this study.
To get an adequate understanding of what constitutes an advocate’s online presence, we focused not exclusively upon websites but also upon electronic newsletters, online advertisements, email services related to the website, and more. Exactly what material was reviewed is indicated in Table 3. In each and every case, we have endeavored to contact the service provider in question prior to release of this survey, affording them the opportunity to submit additional materials or information for our review.
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Note from the publisher
By administrator | April 6, 2009
Welcome to Legal Examiner! This blog is our most frequently updated interface. Here you will find reviews (whether complete or in progress), fresh research results and findings, along with reviews and analysis provided by our examiners.
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Advocates on the Internet
By administrator | March 27, 2009
Quality parameters:
Technical
Browsability
Email communications
Appearence
Accessibility
Descriptive content
Legal content
Related content
Legal and regulatory
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Judicial Reform
By administrator | August 27, 2008
Preface
The Tottori tribunal consists of 11 judges, each with their own courtroom to administrate, but also serving collectively as a group. Each is independent, but the agenda is set by the first judge, and then subsequently the judges will contribute relevant aspects of their own, until finally matters are wrapped up by the 11th judge.
This essay was inspired by the developments in Pakistan in late 2007 when the military regime confronted the judiciary and the press in what appears to be an unprecedented clash between an authoritative government and the remnants of democratic society. While looking on in awe and wonder, the judges did take a few notes and give some thought to some of the paradoxes manifest in the unfolding drama.
Ikeda Shigeno and a few of his honorable colleagues on the Tottori Tribunal requested that Mr. Ikeda Harumichi, who sits in the first, kindly open a formal inquiry into the legal and ethical aspects associated with press freedom, with emphasis on what role the judiciary may play in safeguarding the press against oppression during politically difficult times. Judge Harumichi chose to frame the issue somewhat more broadly, he selected Judicial Reform, and what follows is the Tribunal’s thoughts and observations on the matter.
In the First - Ikeda Harumichi
Rather than merely describing the state of affairs and pointing out any shortcomings, we should like to examine the issue of judicial reform – including identification of where this is warranted, how to implement it, and what the stakes are. This would include examples of where reforms have been tried or recommended. At the awareness level, special attention should be given to internationally applicable standards and to national models. This examination would cover all jurisdictions in principle.
The desirable state of affairs
Before we dwell into the intellectually stimulating area of what has been found to be undesirable and what to do about this, it would be economic to try to define what is the desirable state of affairs in the abstract. The law is our servant, the judicial institutions likewise - available and accessible and predictable and reliable when we need them. To provide us with justice, the laws have been designed with the common good in mind, and it is in that spirit they are interpreted by our courts. There is no room for bias, enmity or deception in such a system. Here, laws and legal arguments and courts cannot be used as a thin veil behind which to hide the system’s desire to suppress its enemies and dominate the citizenry.
What is then the desirable state of affairs in the concrete? This will depend on the concrete circumstances, naturally, and may well to a degree be a matter of taste and something for each jurisdiction to decide for itself. Certainly, there are common characteristics as well: Proportionality, transparency, efficiency and ffectiveness, accessibility, impartiality and objectivity, consistency and predictability.
Some of these concepts are so basic that they have been with us always, so to speak. Seems that human civilization has always had a strong urge to justify its actions in such a manner that the punishment is seen to fit the crime (proportionality) and that the outcome of a trial is seen to be the more or less inevitable result of the judges having correctly applied the law upon a set of proven facts (impartiality and objectivity, consistency and predictability).
Other concepts are of the modern ages, where an increasingly sophisticated citizenry accustomed to a measure of democracy has come to expect ready access to the courts (accessibility), a clear set of guidelines and procedures understandable to the common person (transparency), and good use of available resources (efficiency and effectiveness).
What judicial reform may accomplish
The role of the judiciary and the laws they are designed to help uphold are too diverse to answer this question in a general way. As regards certain aspects of society, the benefits of judicial reform may be quite predictable, such as where the aim is to create secure property rights or to avoid lengthy periods of incarceration without formal charges or a trial. In the former example, society is likely to benefit economically, as it is well-documented that secure property rights is a prerequisite for strong foreign and domestic investment. In the second example, however, the direct benefits to society may vary a great deal depending on the scope and nature of such arbitrary detention: Is this to protect national security interests, to keep down political adversaries, or simply a result of a dysfunctional criminal justice system?
Although the perceived benefits of judicial reform may differ substantially all depending on the type of reform being contemplated and from whose perspective, it seems safe to say that judicial reform in many areas has the potential to transform society in profound and lasting ways. This is not necessarily obvious to the average observer, who will easily underestimate how pivotal a role the courts have in providing legitimacy throughout society. At a glance, the dictator would seem immune to any adverse decisions by the courts, who presumably would be powerless to implement their decisions; that is not the case in practice, however. Political history has shown that even the political strongman needs some power base, and the guise of legitimacy is often a precondition for securing such support over the long term. Thus, the autocratic ruler will likely make considerable effort to shape the judicature in such a manner that it can be controlled, albeit the courts will continue to radiate the glow of authority and integrity that presupposes independence. Two of the recent case studies have proven this point.
In Thailand, the revered king reportedly played a significant role in getting the Supreme Court to overturn the result of the election, which eventually was followed by a military coup leading to overthrow of the hitherto so powerful prime minister. Arguably, the prime minister had relied upon the courts to remain passive as a part of his legitimacy. Once the Supreme Court took the unprecedented step of nullifying the elections, the prime minister lost this legitimacy; at least in the eyes of the military, which stepped in purportedly to restore law and order.
In Pakistan, a military coup had led to suspension of the constitution and fundamental changes reverberating throughout society. However, the military establishment relied upon a domestic power base and international support for its continuous hold on power, which may help explain why certain democratic institutions were preserved and arguably even strengthened. All justices of the Supreme Court had been sworn to loyalty, yet the courts continued to provide the rulers with a semblance of legitimacy due to its ability to maintain certain professional standards and produce findings that provided some measure of justice in the eyes of regular citizens. However, once the court turned increasingly independent, assertive, and even defiant, the once so powerful president felt compelled to react in a manner, which ultimately proved to be his undoing. By repeatedly seeking to quell, then oust the Chief Justice, the military-led government lost its legitimacy, first in the eyes of the Pakistani elites, soon in the eyes of the broader population, and eventually in the eyes of its domestic and international power base as well. The increasingly isolated president was compelled to give up first his role as supreme commander of the armed forces, then the presidency as well, and the army had lost its hold on power to a new civilian-led administration.
As these two cases have demonstrated, no modern government seemingly can afford to
be indifferent towards the courts, as they need these to provide legitimacy that they may well prove unable to survive without.
How to achieve judicial reform
It would appear that in many cases where judicial reform is badly needed, the problems are systemic - i.e. not the result of random imperfection, ignorance or the like, but the outcome of deliberate government policies. An independent judiciary may well pose problems for a totalitarian government, which would much prefer to have compliant judges and courts at its disposal rather than seeing its policies being scrutinized and potentially annulled by a vigilant, independent judicature.
This is not an uplifting thought when one wants to propose judicial reform, but without such clarity any attempts are bound to fail.
A justice system is like a mirror image of society itself. Where the country is mired in corruption, the courts are likely corrupt. Where the political leadership plays by undemocratic rules, the courts are often subservient or easily intimidated. All the more reason to support the sound elements in such systems whenever possible.
Where malfunctioning of the justice system is systemic, an isolated attempt at judicial reform is unlikely to succeed. To be effective, such reform should be integrated with broader efforts aimed at improving governance. This is logical insofar as a functioning justice system is essential to the rule of law, which in turn constitutes a key element of good governance in a democratic society.
Precisely because a malfunctioning justice system is likely symptomatic of wider societal illnesses, work on preparing judicial reform may be viewed as a long-term investment in preparation of more enlightened forms of government.
Nothing should be taken at face value when dealing with oppressive regimes. For example, we have observed that governments may withhold resources from the judiciary in a deliberate effort to deprive it of the capacity to hear certain cases, and that legal measures aimed at facilitating orderly conduct of judicial affairs may be misused to rid oneself of undesirable judges. Put differently, rather than being signs of ineffectiveness, insufficient resources and an inadequate legal framework may be seen as instruments in suppressing an independent judiciary. In such instances, clearly, those wanting to improve upon the system must be prepared to deal with systemic factors at the power center.
Pouring additional resources into the state coffers to be dispersed to the courts will not help where the government is intent on withholding resources from the judiciary due to political considerations or self-interest.
Legal instruments and institutions purportedly designed to improve the judicature may become instruments in the hands of those seeking to suppress it. NGOs and others should keep this reality in mind when contemplating to assist certain countries with drafting and implementing judicial reform.
Even though comprehensive reform to our liking may be impossible for the time being due to political or other fundamental factors, this does not necessarily mean that any kind of reform in that jurisdiction is out of the question. Reform may be possible in areas of serious concern such as improvement of the criminal justice system. Also, it would seem that maintaining a critical tone in certain areas of the law does not necessarily preclude dialog and progress in others. Accordingly, those advocating comprehensive judicial reform may wish to focus on what is doable here and now, while also using their engagement within a jurisdiction to shed light on unresolved problems and to prepare the ground for additional reform further down the line.
In conclusion, judicial reform is possible in practice only to the extent that the establishment in a given country is prepared to accept it. As a possible alternative to patiently advocating and supporting reform, targeted public awareness campaigns and other forms of international engagement may play a role in making it more difficult for a corrupt or oppressive government to determine the final outcome of a given case or complex of cases. The ensuing uncertainty resulting from such obstruction may, in turn, pave the road for subsequent reform, but also does carry risks of serious repercussions.
We have observed that judicial independence and integrity is rarely an all-or-nothing proposition. For example, in certain jurisdictions corruption has been known to be particularly rampant at the lower level courts. Also, where the judges at the higher levels are subject to widespread intimidation of various kinds, their responses seemingly do not follow a predictable pattern. Some justices have steadfastly refused to budge, others have become compliant, whereas yet others have recused themselves with reference to undue interference from the government. Doubtlessly, international support and engagement can encourage judges with a strong moral character to make the right choice.
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Circumstances warranting proceedings
By administrator | August 13, 2008
Re.: Who brought the matter to the Court’s attention?
The Court of Ethics acts ex officio, but may also act due to a referral from the Advocate-general, who in turn may rely upon consultations with other permanent institutions within Virtual Law Center.
Re.: What about the case merits attention?
Relevant subject matter, i.e. pertaining to “fairness and ethically acceptable conduct in matters of fundamental, lasting importance.”
Re.: Does the case meet the threshold?
In case of the Lost Tribesmen, the implications are that the criteria for resettlement and refugee v. fugitive status are of fundamental importance beyond their situation.
In case of Agnon, the argument may be harder to make, although one can certainly argue (i) that Megatron’s survival is at stake, (ii) issues concerning transparency are at stake. Here, the AG might be very interested due to the BPG, but he needs to weigh the evidence carefully prior to referring the case to the Court, which will eventually look even harder at the evidence.
Note, furthermore, that the COE is not primarily concerned with finding what is fair or ethically acceptable in various situations, but in contributing to the definition of these concepts. Accordingly, the case should conceptually contain certain novel elements from the Court’s perspective.
Re.: How are the proceedings to be carried out?
This is up to the COE’s discretion, although the Court may hear the AG and other interested parties concerning procedural matters.
Re.: What is the available body of evidence?
The COE has limited resources for collecting evidence, and largely relies upon the AG and other interested parties to provide such materials. However, the Court has been known to disregard evidence pertaining to matters it considers to be of peripheral importance, which in turn would motivate the AG to select carefully in prioritizing among all available materials.
Re.: Does the AG provide an opinion?
This will be the situation where the referral comes from the AG (which may have received referrals from other parts of VLC).
It will also be the situation where the COE asks the AG for guidance to “Adhere to established principles for legal interpretation, aiming to take into account all relevant legal principles, rules, and cases.”
Re.: Does the AG and/or other permanent institutions provide supplemental material?
The AG, QORI, and/or LAC may be involved when the COE decides to “seek expertise externally so as to widen its horizon and achieve sufficient factual knowledge.” This may be through furnish documentation provided by these institutions and/or materials garnered from other sources.
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Advocate-General’s functions
By administrator | August 13, 2008
Proceedings
The advocate-general is an advisor to the Court of Ethics and its outlets, which presumably means that AG’s core activity would evolve around specific cases. Depending on jurisdiction, the AG may also serve as a prosecutor, which often is not applicable here. In our context, it would mean that the AG may play an active role in what cases should be brought, but will in any event be prepared to step in once a case is opened. The AG’s opinions are unbinding, albeit often followed.
So for the AG to even write an opinion, it would seem that several caveats would apply:
- circumstances warrant an actual case, see COE Constitution
- formal proceedings have been initiated
We can then ask ourselves:
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Who brought the matter to the Court’s attention?
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What about the case merits attention?
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Does the case meet the threshold?
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How are proceedings to be carried out?
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What is the available body of evidence?
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Does the AG provide an opinion?
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Does the AG and/or other permanent institutions provide supplemental material?
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What is the outcome?
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How is the outcome to be implemented?
Presumably, the above would be equally applicable in a “real” and in a virtual setting. For example, in a real case, defined as a case where the examinee (and others) are actual entities, the AG may refer the matter to the COE for consideration or may decide to “prosecute” the matter themselves – albeit with respect for precedent. In a virtual case, similar mechanisms apply, except it is perhaps more likely that the initiative would not come from the AG but from other dynamics of the case.
As far as advocate-particulars, it would seem that these could serve as the advocate-general’s extended arm in virtual cases – like associate advocates-general – by helping the AG prepare a case, then present it to the relevant court or tribunal.
No proceedings
Where a scenario does not fit the criteria established above for proceedings, it is nonetheless likely that the AG (in coordination with other elements within VLC) will have a case file, and this could result in other measures – such as the AG acting ex officio without filing charges.
The AG, assisted or supplemented by other institutions within VLC, serves as a promulgator of guidelines and policy instruments, codex and more.
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Legal Observatory feeds
By administrator | August 12, 2008
As a matter of policy and technical practicality, Legal Observatory will receive only Dispatches, i.e. packaged content to which it subscribes from a variety of service providers. LO’s information infrastructure (satellite antenna etc.) is incapable of receiving other content.
A Dispatch is an encoded message that: (A) can be authenticated; and (B) includes the heading and/or ending “Dispatch.” A dispatch may contain documentation in any formats, which are then regarded as an integral part of the dispatch without further form requirements. Any message that does not meet all of these criteria is referred to as a “signal.”
LO will endeavor to subscribe to contents from a wide range of sources, and its content providers are expected to monitor broadly and include information from diverse sources in their feeds. LO will subscribe only to contents that fulfill certain criteria as regards quality, relevance, reliability, et cetera.
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