Should Indian Lawyers be Allowed to Work on Contingency Basis – Sample Draft Contingency Fee Agreement Format

The Bar Council of India prohibits advocates from charging fees to their clients contingent on the results of litigation or pay a percentage or share of the claims awarded by the Court. Bar Council of India Rules: Part VI, Chapter II, Section II, Rule 20 which reads as under:

“20. An advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof.” (Rules can be read here.)

Many have the misconception that the reason why lawyers do not work on a contingency basis is

Law Students Today, Leaders Tomorrow...

Barack Obama studied at Harvard Law School
He was the first black President, not only of USA,
but also of the Harvard Law Review

First published on LegallyIndia

The only difference between politics in a college campus and politics in the outside world is that the college politics is much more interesting and maybe a bit more subtle. However, those students that are actually involved in college activities take it as seriously, as if the nation’s fate depended on it. But what gives them that passion? Is it love for the college? No, that’s not it. It’s a matter of standing by your principles.

Now, students of engineering or medical or any business course are not really into college activities either because they are felt to be unproductive, useless from a career point of view and rather time consuming. But it is in law colleges that we truly see

Why SOPA and PIPA got shelved - and why Megaupload shut down

The Stop Online Piracy Act (SOPA) is a United States bill introduced by U.S. Representative Lamar S. Smith (R-TX) to expand the ability of U.S. law enforcement to fight online trafficking in copyrighted intellectual property and counterfeit goods. The PROTECT IP Act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, or PIPA) is a proposed law with the stated goal of giving the US government and copyright holders additional tools to curb access to "rogue websites dedicated to infringing or counterfeit goods", especially those registered outside the US.

These bills have been criticized on several grounds:

Unconstitutional: Both bills contain provisions for ex parte proceedings—proceedings at which only one side (the prosecutor or even a private plaintiff) need to present evidence and the operator of the allegedly infringing site need not be present nor even made aware that the action was pending against his or her 'property.' The bill, if passed would allow individuals to create a blacklist to censor sites when no court has found that they have infringed copyright or any other law. All that one has to do is send a notice This not only violates basic principles of due process of law by depriving persons of property without a fair hearing and a reasonable opportunity to be heard, it also constitutes an unconstitutional abridgement of the freedom of speech.

Vague drafting: Furthermore, both bills are vague as to what constitutes an infringing site. The bills targeted even domestic websites that merely ‘facilitate’ or ‘enable’ infringement. Thus, the bills would also target considerable protected speech on legitimate sites such as YouTube, Twitter, and Facebook. Due to poor drafting such innocent websites will also fall be victimized.

Technical: All domain name servers world-wide should contain identical lists; with the changes proposed, servers inside the United States would have records different from their global counterparts, making URLs less universal.

On January 19, 2012, Megaupload, a website providing file sharing services, was shut down by the US Department of Justice and the Federal Bureau of Investigation which proves that SOPA and PIPA are unnecessary. Following the shutdown of Megaupload, there was a huge attack on the internet, the Department of Justice website was shut down only 70 minutes after the start of the attack. The attack disabled a number of websites, including those belonging to the Justice Department, the FBI, Universal Music Group, the Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA), and Broadcast Music, Inc. Some commentators argued that the denial of service attack risked damaging the anti-SOPA case. However, the shut down of Megaupload proved that current laws are sufficient and that SOPA and PIPA are unnecessary. Looks like Napster re-visited, doesn't it?.

After several online protests such as the English Wikipedia blackout and after several senators who sponsored PIPA, including Roy Blunt, John Boozman, Chuck Grassley, Orrin Hatch, and Marco Rubio, announced that they would withdraw their support for the bill; on January 20 Senate Majority Leader Reid announced that a vote on PIPA would be postponed.


(Also see the Napster Case on Copyright infringement)

Law of Torts (Nothing to do with food)

Tort is basically a word for “wrong” in French. It is a wrong involving a breach of a civil duty towards the public. The 2 elements of a tort are (i) the act, i.e. the physical element which usually compromises of Defamation, Injury Nuisance, Fraud, Trespassing, Misuse of Personal Information, etc and (ii) The mind, i.e. the mental element which is generally an ill intention or negligence.

Retort: In litigation, it is always necessary to put yourself in the shoes of the defending counsel. In a case of torts the defendant’s pleas usually involve inter alia contributory negligence, consent, plaintiff’s default, necessity & private defense, inevitable accident (Act of God), authorization & limitation. Therefore, one must anticipate all these pleas and be prepared with arguments that eliminate all the above pleas.

Remedies: 

1) Damages: Damages are granted in an attempt to put the aggrieved under the same financial position as he would be if the tort had not taken place. It is hard to compute this amount as one has to take into account not only the aggrieved party’s current status but future rises and falls as well. Damages are a ‘matter of right in tort law’. Unliquidated damages are important in cases of tort law. If there is no action for damages then it is not a tort. Types of approaches which the courts employ while granting damages are:-

(a)Aggravated and exemplary damages: Generally granted when the tort is outrageous in nature. Sometimes the judges sympathize with the defendant but since he is at fault and if the damage done is small only nominal damages need to be given. The reason for this is that the Court does not want to legalize the defendant’s actions by letting him go scot-free. This way, the court has favoured the aggrieved, but has also shown it’s own intentions. This approach has been approved by the Supreme Court of India as well.

(b) Parasitic de-impairment: Here, damages are not granted only for losses occurred directly by the tort. For example, if a woman burns her face while working in a plant, she can along with other damages also claim additional damages claiming that because of her current condition her relation with her husband has been forever effected.

(c) Special damages: These are harder to compute. Here, damages are granted for all other losses that may be suffered in the future e.g. Loss of future earnings

(d) Contemptuous & nominal damages: The court sometimes grants the aggrieved ‘the smallest coin of the realm’ i.e. a purely nominal sum such as Rs. 1.

2) Injunction: Injunction is a court order that requires a party to do or refrain from doing specific acts. Injunctions are ‘a matter of discretion’ in tort law. Provisions for permanent injunction are found in Sections 38-42 of the Specific Relief Act in India. It is granted to prevent a party from following a wrongful course or conduct. Example:

·         Interference with possession and business

·         Enforcement of bank guarantees.

·         Legal recovery of taxes

·         In case of private reputation v./s. freedom of press

_______________________________________________________

Also see the article Tortious Liability in the Case of Misuse of Personal Information Keywords:Aggravated and exemplary damages, basics of tort law, injunction torts, law of torts in India, reputation freedom of press, specific relief act, tort law, torts food, defamation, Misuse of Personal Information in torts, law memes

Jail Visits- How to apply for a bail - Bail Application Format

Many law colleges arrange Jail Visits for students, where students can interact with inmates and prepare various types of bail applications for them.

If a college is arranging for a jail visit in India, the students are allowed to prepare four Types of Bail Applications:

1. Cash bail: When a bail has been set and the inmate is ready to pay the amount
2. Cash reduction: When the bail amount cannot be paid and the inmate wishes that the amount be reduced.
3. Deportation: When the inmate has entered the country illegally and does not possess a passport, the deportation application is made in order for her/his transfer.
4. Personal bond: Also known as "release on recognizance bond," is a promise to appear in court on all future court dates related to an inmate’s case as well as a promise of good behavior if the court allows you to remain free. However, the inmate must deposit a certain amount as surety which will be forfeited in the case of default of the two conditions. In order to apply for a personal bond the inmate must be a resident of the same city as the jail.

Requirements: The most important detail that is required is the U.T. No. (Under trail number) which can be found on the U.T. card carried by any inmate who is still under trial. With that number the inmate’s other details such as name, age, date of arrest, police station in which complaint was made, section under which the inmate is charged, etc. can be found in the records maintained in the jail’s judicial department. However the detailed facts of the case should be taken from the inmate personally. If it is the inmates first offence then mention that in the application for bail, it gives him/her an added advantage.

For students: The first thing you need to ask is whether the inmate already has a lawyer, if yes, then move to the next inmate.

Secondly, you can only apply for petty offences e.g. theft, violation of laws in the R.P. Act.

Third, identify what it is that the inmate wants. Many students do not understand which type of bail application is to be filed among the four.

Secondly, only ask the inmate necessary questions. Don't get personal. Always maintain a certain level of professionalism. And try not to get fascinated by their amazing stories.

Abu Salem meme: Before and After
Arthur Road Jail meme: Building muscles since 1926

How to apply for bail: Most law students do not know how to apply for a bail in India. Some colleges only give out the format of application for bail (which is almost same in all states of India). There are hardly any sites online where you an find the bail application format. Sample formats of a cash bail application and personal bond application can be found below:

Sample Cash Bail Application Format: 

IN THE COURT OF THE ______EXERCISING THE POWERS OF __________ AT __________

Application No.:______ of 20__

Applicant/Suspect 

Versus

Respondents 

Application for _____(Name + Under trial Number)___ on charges ______

MAY IT PLEASE YOUR WORSHIP:-

1. That the applicants/suspects have been kept in police custody since ______ by the SHO of Police Station: ______ on the suspicion of likely to commit a cognizable offence under Sections of IPC. 

2. That the applicants submit that they are innocent and have neither any intention of committing any such offence nor have ever committed any such offence. The applicants have been falsely implicated in the said case by some person with vested interest to harass the applicant.

 
3. That by keeping the applicants/suspects under custody and arrested the applicants have been deprived of their valuable fundamental right of liberty by abuse of legal provisions and process of law by the complainant. 

4. That the applicants are willing to furnish surety and bail bonds to the satisfaction of this Ld. Court in case they are ordered to be released on bail. The applicants are also willing to join the investigations and bind himself by the terms and conditions laid down by the law or by this Ld. court. It is further submitted that the applicant is not at all required for the investigations and the investigations are over. However, if the applicant is required for investigation, the applicant/suspect undertakes to be present as and when required in accordance with the law. 

5. That neither any recovery is to be effected from the applicant nor the applicant is in a position to temper with the prosecution evidence. The applicant will associate with the investigation when ever required to do so.

It is, therefore, most respectfully prayed that:- 

(a) that the I may be ordered to be released on bail and this application for bail may kindly be allowed; 

(b) that till the decision of this application interim bail may be granted to the me; 

(c) Such other orders be also passed in my favour as deemed fit and proper in the facts and circumstances of the case and in the interest of justice. 

(City)

Dated this ___ day of ____20__                                                       

                

                                                                                       

_______________________

  (Applicant)

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Sample Personal Bond Application Format: 

FORM NO. 13

Bond for Good Behaviour 

 WHERES I, _______ .(name, inhabitant of (place) _______ have been called upon to enter, into a bond to be of good behaviour to Government and all the citizens of India for the term of _______.(state the period) or until the completion of the inquiry in the matter of __ pending in the court of _______ . I hereby bind myself to be of good behaviour to Government and all the citizens of India during the said term or until the completion of' the said inquiry; and, in case of my making default therein, I hereby, myself to forfeit to Government the sum of rupees _____. 

(City)

Dated this ___ day of ____20__ 

_______________________

(Applicant)

[Now you know how to apply for a bail in India. Go bail your friends out now!]

-Vikrant Shetty


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