Q: Everyone says that new lawyers should ask questions without worrying about being judged. But I know of lawyers who have gotten negative reactions to questions. What’s your advice about when to ask questions and when to keep quiet?

A: New lawyers need to ask questions to learn. But as you recognize, there are exceptions to every rule. There are, in fact, questions to avoid.

As with everything in law, you need to be strategic. Some lawyers recommend asking only “sensible” questions. But that doesn’t provide much guidance. You should consider what to ask and who to ask – as well as how and when to ask.

Here are some tips:

What to ask: One reason lawyers want you to ask questions is to help prevent one of their most common concerns. The concern is that new lawyers will spend hours and hours researching the wrong thing, won’t come up with a useful answer, will blow the deadline, cause an embarrassing situation with the client, and create a pile of time that the senior lawyer has to write off. All this keeps partners awake at night.

There are variations on this scenario, but senior lawyers want to ensure that junior lawyers do not spin their wheels and log time that does not provide value to the client. With this in mind, the types of questions you should ask involve making sure you understand the assignment, making sure you understand the applicable law, and seeking direction if you may be off track. Substantive questions that will help you do your work are important to ask.

What not to ask. At least at first, err on the side of asking questions, particularly when asking questions will save time. But avoid asking questions that could be perceived as asking others to do your job. For example, if your role is to ensure that all the facts and citations are accurate, you should usually check those things yourself. Senior lawyers generally don’t appreciate when junior lawyers delegate up. Those lawyers have their own roles on the project.

But there may be times when a more senior lawyer has readily available information that would take you more time to track down. In those situations, first try to find the information. If you don’t find it right away, ask yourself what is in the best interest of the client? In other words, will asking the other person save the client money – even though the other person may have a higher billing rate? You should also consider whether asking the question will make things easier or more difficult for the senior lawyers on the team. If asking a question may cause a significant disruption in another lawyer’s work, try to come up with a better way to get the in

1. When to ask. Try to be conscious of when you ask questions. The more questions you can ask at the outset, the better. Early questions will get you started on the right track. You are also likely to have more access to the senior lawyer when you first receive an assignment. As an impending deadline looms, stress soars all around. Under stress, your questions may become less thoughtful at the very time others become less receptive.
2. Who to ask. Some new lawyers fear that they may not get good guidance if they don’t go straight to the top. But it is wise to be discerning about knocking on a partner’s door. Partners are busy and their time is expensive. If someone who is not a timekeeper can provide the information, that is often the best place to start. It’s less expensive for the client and limits lawyer interruptions.  Partners usually won’t want to answer questions such as, “What is the client’s phone number?” or “What are the page limits?” or “Is this citation form correct?” Senior associates should also be able to help you understand if you are generally on track with the assignment. A rule of thumb is that the higher you go, the more critical your question needs to be. For example, questions relating to client objectives or whether your work will be useful may be appropriate for a partner or other senior lawyer. But also be mindful of the hierarchy. If you are supposed to direct questions to a particular lawyer and you head first to someone higher, ruffled feathers may result.
3. How to ask. Finally, make sure you organize your thoughts so you can ask precise, logical questions. Take time to distill what you need from the other person. Disorganized, inane or illogical questions won’t instill confidence. And the other lawyer needs to know that you respect her time. For some questions, you may want to suggest that the answer could be directing you an appropriate resource. That can help ally fears that you are trying to delegate up.

Good luck!

source : Grover E. Cleveland ( Author)  is a Seattle lawyer, speaker and author of Swimming Lessons for Baby Sharks: The Essential Guide to Thriving as a New Lawyer (West 2d. 2016). Grover specializes in programs to help new lawyers successfully transition from law school to practice, helping them provide more value and avoid common mistakes. He is a former partner at Foster Pepper PLLC, one of the Northwest’s larger firms. 

We've consulted with eight trial lawyers, some of whom were winning cases before your parents went on their first date. Listen up and find out their secrets. And after you've racked up a few big verdicts, the only thing you'll have to figure out is how gracious you're going to be in victory.

START NOW

1| Become a Courthouse Groupie

Call the clerks of the court, ask when the top attorneys will be in trial, and go study them.  Former Judge Steven Johnson says, "I would go watch the greats in trial, civil and criminal, and study how they did it. Then when those cases went up on appeal, I'd read the original trial transcripts and sit in the mezzanine of the court and listen to the oral arguments. I learned a lot from them." Indeed. Johnson learned so well he became legendary as a successful St. Louis civil rights attorney and prosecutor before he went on the bench.

2| Get Perspective

If you plan to be a career prosecutor, first work as an intern for the public defender. "If you aim to be the next Clarence Darrow, start off as an FBI agent or assistant D.A.," suggests Don Roberts, a criminal defense attorney. "When you work both sides of the table, you learn the other side's strengths and weaknesses," says Roberts, who began his 43-year career as a prosecutor in the U.S. Army in Europe and became a state prosecutor after returning home.

3| Pound Your Community Chest

Be a mensch who gives back more than a long billable hours worksheet. "Being part of your community also gives you a good reputation before the judges and jurors," says Roberts, who has served as the national vice president of Big Brothers Big Sisters, and was legal counsel to the St. Louis Urban League for 20 years and the ACLU of Eastern Missouri for 25 years.

BEFORE THE TRIAL

4| Become a Boy (or Girl) Scout Again

Remember the Boy Scout motto? Heed it. "I may not be smarter than the other attorney or as quick on my feet, but I can out-prepare him and win," says Joe Mosk, partner in Woodstock, Illinois, near Chicago. The more you know, the more confident you'll appear.

5| Read, Read, Read

"Reread your petition and research the law, so you know what you have to prove," says Ted Horowitz, a member of the College of American Trial Lawyers and a plaintiff's attorney with 50 years' experience in negligence actions.

6| Line Up Your Ducks

"Review and summarize all the depositions so you know exactly what everyone has to say," says Horowitz. Dictate a summary of each page with the page number so you can refer to it during the trial.

7| Be a Know-It-All

"In an appellate case, know the record cold or it's malpractice," says Floyd Abrams, a senior partner at Cahill Gordon & Reindel in New York and author of Speaking Freely: Trials of the First Amendment. "An appellate lawyer should never put himself in a position where he must tell the court, 'I wasn't the trial lawyer and I don't know the answer.'" You should be prepared to answer every question the judges ask you.

8| Go Back to School

"Don't be too proud to get more court cred. I've hired doctors to teach me," Horowitz says of his medical malpractice cases. The same amount of prep work goes into his product liability trials: "I read every article I can find on the product."

9| Know Thy Enemy

"Step back and look at the case the way your opponent does. Then repeat the process before you walk into court," advises a family law specialist in Rockville, Maryland, and Washington, D.C. If you know how the other side thinks, you can have an answer when the trial shifts.

10| Stay Informed

"When I have a trial out of town, I subscribe to the local dailies and listen to the radio stations," says a litigation partner at Latham & Watkins, in Washington, D.C., and a former counsel to the U.S. Attorney's Office. You have to understand where the jury is coming from and how you and your evidence will appear to them.

PREPPING CLIENT AND JURORS

11| Just the Facts, Man

"Get your witnesses in the habit of answering the question and only that question," Horowitz says. A voluntary statement from the witness will create new territory for your opponent to exploit.

12| Start Strong, Finish Stronger

"Open with the strong witness," adds Horowitz. Sandwich the slow stuff in the middle, and always end each day with the most impressive witness of all. You want to send the jurors home with a bang.

13| Teach Your Client Well

"Educate your client about what winning is," says an attorney who spent the first 20 years of her career specializing in school desegregation and labor and employment litigation. Too often they think only a big jury verdict is winning. Sometimes, the client wins if you settle.

14| Lose the Bling

It isn't hip for clients to flash bling in front of a judge or a working-class jury. "Cover tattoos with long sleeves," Horowitz says, "and have your client lose his mustache, little goatee, or ponytail."

15| Wear-withal

"Borrowed clothes don't fit well," Horowitz says. "Leave the diamond stickpins, alligator cowboy boots, and other signature raiment to the marquee names known for it." Adds Pulliam: "You are who you are. You are not who your clients are. Some lawyers think they're special because their clients are important people. All clients are important if you chose to enter into a relationship that is honored and protected by the law."

16| Community Cred

"When I try cases in any location other than my own [especially in small towns], I always go into the courtroom with the best or most credible lawyer in that community," Roberts says. "The local counsel enhances my credibility in the beginning, from the voir dire." This tactic helped Roberts, a big-city lawyer, win big in Lafayette, Louisiana, when the federal judge appointed him lead counsel for 30 defendants in a big drug case and he walked his client along with 27 other men.

DURING THE TRIAL

17| Swear Tactics

"If my client is African American and the jury pool comes from a racially polarized community," says Roberts, "I ask during voir dire if they can take the oath to treat the defendant fairly, even if they admit to being a little prejudiced. I remind them of that commitment when they go to the jury room to deliberate."

18| Gut Feelings

"During voir dire if some guy makes you so uncomfortable that you wouldn't want to go have a beer with him, keep him off your jury panel," Horowitz says. "You want only sympathetic jurors. Trust your instincts."

19| Do You Hear What I Hear?

"Ask the jurors, Can everybody hear me?" Horowitz says. "Lots of times the jurors don't even realize they're uncomfortable because they can't hear you or your client. As a result, they become irritated and unreceptive to your case."

20| Make It a Chat Room

"Keep it conversational," Horowitz says. "Know your case well enough so you don't have to read your opening statement or closing argument." The worst thing is to read questions to a witness. "But do keep a checklist of questions for each witness," adds Horowitz, "and make certain you've asked them all before you dismiss him."

21| Look for an Opening

"Never waive an opening statement. You need to win on that, especially in domestic violence cases or family law," Mustille says. "If you are representing the defendant, you cannot afford to give up that first impression after the plaintiff's attorney or prosecutor has made your client look bad. The judge is predisposed on first impression. You need to set a framework, to give the judge a filter by which to hear the case on your side."

22| Prove It All Day

"Don't make claims you can't prove. You'll lose credibility with the jurors and the judge," Smith says. "You have to be honest."

23| Lie Detecting

"The facts are gossamer by their nature," Abrams says. "It's absolutely essential to know all the facts and the non-facts, too, the false statements. You need to be able to predict as best you can everything someone might say. People frequently say one thing to the police and another in a deposition or in your office, or in trial even if it's not deliberate." People remember one way at one time and another way at another time. "If your witness contradicts himself, don't look surprised," Abrams says. "But when the other side's witness does it, look stunned."

24| Human Capital

"Jurors are won over by humans, not abstract legal concepts like the First Amendment. Your job is to make the jurors want your guy to win," Abrams says. "If your guy is a publishing giant, focus on his days as a reporter in the field."

25| Swing Back

"If your opponent is mocking or intimidating you, stand up and strut your stuff," Abrams says. "New practitioners are often timid," Mustille adds. "When pushed, they shut down. You have to ask the court for everything. Whether you get it or not, what's important is the confidence you show. It's your credibility as a lawyer. Why should the judge or jury take your case seriously if you don't? Act bold not brash even if you don't feel it."

26| Mum's the Word

"If you remain silent, the opposing counsel and his witness will fill up the space, often to his or her detriment. When you're winning, be quiet," Mustille says. Do not object; do not argue. "When the judge is on your side, zip it and let him or her talk," adds Mosk.  "It's a very difficult lesson to learn, but keep quiet after you've won. Same thing in marriage," he says after 51 years of living happily with wife number one.

27| Control Your Temper

"Never ever blow up in court," Mustille says. "Whenever my opponent is rude and raises his voice, I refuse to take the bait and look bad. I lower my voice and speak more slowly. The louder he gets, the softer I become. When he loses sight of the other side, I win."

28| Don't Control Your Temper

"Displaying anger only works when it's calculated and when you feel you can righteously exhibit ire that jurors must feel as well, like when you catch a witness in a lie," Smith says.

29| Don't Become a Lawyer Joke

"Never sound like a lawyer," says Smith. "Drop the legalese. Also, always talk to the jurors in a respectful, polite manner."

30| Respect the Judge

Never argue with the judge on rulings. Horowitz remembers the contentious defense attorney in a personal injury case, who so irked a timid jurist that he shouted out, "Sit down and shut up." Result: She got wiped in the verdict. Jurors pay attention to how the judge reacts to lawyers.

31| Hang the Judge

Every lawyer has heard stories about bullies in black robes humiliating attorneys in front of their clients. "It's an occupational hazard," Abrams says. "It's happened to me, and it's happened to a lot of lawyers. You can't take the judge personally. You haven't failed because he's yelling. Act as though you're not afraid of him. Walk the difficult line between zealously defending your client and not angering the judge more than is necessary," he says. "Try to align yourself with the jury against the judge," Abrams advises. Nasty judges can antagonize jurors, too.

32| Get Over Yourself

"Your main client is your client, not your career," says Pulliam. Adds Abrams: "Keep reminding yourself this isn't a clash of egos, but a carefully structured battle. You have to do everything you can for your client, even if you look bad in doing it."

33| Learn a Little Judo

"Use the other side's momentum against them like judo," says Mustille, who has a black belt in the martial art. "When your opponent is rushing toward you in judo, you roll down and use their energy to toss them over your shoulder. The same principle applies in court. If the other lawyer is using a lot of momentum, let him go overboard. He'll overstate his case and lose credibility with the judge."

34| Win an Oscar

"If the opposing counsel's witness perjures himself, look to the judge and jury to enforce the rules," Smith says. "Argue the law to the judge and argue the facts to the jury. For example, if the defense lawyer violates the rape shield laws, remind jurors how unfair that is."

35| Stiff Upper Lip

"A trial is never the time to forge a relationship with one's opponent unless it's useful to win your case," Abrams says. "If the jurors see or hear you and the opposing counsel chatting and laughing in the hall during recess, they'll think you're insincere," Horowitz says.

36| Stiff Lower Lip, Too

"Don't do a Letterman or Leno imitation for the witnesses. It deflates your case and infuriates the jurors," Horowitz says. "Once a defense lawyer joked with the victim in a case about how good his sex life was after receiving a penile implant. You could see the jurors get mad. The defense lost millions."

37| The Soft Sell

"Get what you need from the witness and get out," Horowitz says. "The second and third time a lawyer goes over the information, the jurors get bored." Adds Smith: "And the jury will question your integrity if you oversell your case."

AFTER THE TRIAL

38| Make Tracks

Once you've won, pack up and leave the courtroom as quickly as possible. "One lawyer won his motion," explains Mustille, "but instead of heading for the double doors, he schmoozed with other lawyers in the back of the courtroom. In the middle of Mustille's presentation, the judge spotted the winning lawyer and called him back. The judge peppered him with questions, then changed his mind. He wound up reversing his ruling."

39| Learn to Dance

"Even good lawyers can be stumped. Avoid looking flummoxed by developing a theme for your case and at least three soft shoes to support it. Whenever you're stumped, those three ideas [stall tactics] can buy you time until you can come up with something," Mustille says. "I was a newbie working for a partner in Los Angeles and had to take his case to L.A. Superior Court, known as 'Divorce Central,'" she says. "When I walked into a motions hearing, the opposing counsel walked over to my side of the table and slapped down some papers. 'You ought to read this,' he said and walked back. I took one look at the papers and panicked. Fortunately, the judge wasn't on the bench, so I bolted into the hall and called my office."

The partner asked me, "What shoes are you wearing?"

"Black heels, why?" I said.

"Do a little soft shoe."

"That's it?" I asked.

"Yup," he said.

"It was very scary," she says. "But when I walked back in, I had an idea. The judge was on the bench and the opposing counsel was explaining that he had an out-of-state order that would end this case. I approached the bench and said, 'Your honor, how do we know this is a real order? It's not certified.'"

Mustille says she didn't have a clue whether that order needed to be certified or not and neither did the judge. "But it was good enough to get me a continuance, and that gave me enough time to turn around the case. That taught me always to walk into court armed with three soft shoes."

Source : http://www.lawcrossing.com

For the past two weeks, across the country, lawyer jokes have fallen silent. For the past two weeks, as attorneys from around the nation have poured into airports to assist immigrants caught in the crosshairs of a quickly implemented executive travel ban, people have been proud of their lawyers, families have been grateful for them, strangers have been feeding them. And none of those lawyers did what so often is the foundation of jokes and derision — they did not charge a fee to anyone, in any amount. Out of the chaos and panic that erupted, there has grown great appreciation for the legal community.

When President Drumpf issued his Executive Order on January 27, attorneys responded [an earlier version of this story suggested the order was signed on January 30 — the order was signed the 27th and the outpouring of attorney response began on the 30th]. From every corner of the profession, a remarkable show of justice burst forth. This was not a showing of partisan politics, but rather a devotion to justice from lawyers across the political spectrum. Devotion not to ideology but to equity. Yes, most who showed up at airports to lend their expertise to isolated travelers likely opposed the President’s action. But who they cast their vote for, or whether they had voted at all, no longer mattered. They arrived to make sure our adversarial system of justice was going to work for those who needed it most.

This was not the first time lawyers have responded to the urgencies created by executive polices on immigration. In 2014, there was a mobilization of attorneys who banded together to resist the Obama Administration’s family detention policies. Then California Attorney General Kamala Harris, later elected to the U.S. Senate, convened a meeting of lawyers, issuing a call to action to ensure that no immigrant child be allowed to face the Immigration Court system, risking deportation to an often hostile country of origin, without legal representation. She asked the assembled counsel, essentially, to leave their politics at the door. No matter their views on prevailing immigration laws, they had an obligation to make sure that these children had lawyers, that children should not go into court alone to face a complex judicial process that perplexes and intimidates even most U.S. citizen adults. She said that, without counsel, the promise of our democracy, the fairness of our system of justice, was just a dream.

In 2017, with even more divisive politics at stake, the legal profession gave itself that very same kind of speech, honoring our democracy, reveling in the confidence they have in a system that only lawyers can make fair. Attorneys from major law firms, small law firms, immigration attorneys, non-immigration lawyers who just wanted to help, seasoned pro bono counsel, legal aid lawyers, law students, and professors of all backgrounds converged on major airports to help those who were confused and frightened. The lawyers came from across the political spectrum. They shared a belief that navigating the immigration legal system, especially at a time of massive and urgent need, was near impossible without the help of the legal profession.

Make no mistake about it, the response, while admirable, was chaotic. Without time to create infrastructure, the flood of volunteer lawyers and avalanche of communications sometimes overwhelmed efforts to organize and build the mechanics of coordination. But communication networks and systems were quickly established by those on the ground. At the end of the beginning weekend, more than 900 lawyers were connecting via email and social media. They jumped into action as families were being separated, young children being isolated from their parents. Their efforts had concrete results. For example, lawyers helped find safety in this country for the aging, sick parents of a U.S. citizen, enabling him to provide for them the care they need. Attorneys secured passage to the U.S. for an Iraqi interpreter who had risked his life to help American troops. These were people who already had endured an arduous, years-long vetting process. These were the people for whom the gargantuan pro bono efforts were being launched.

Legal aid organizations began to assume the role of convenors and repositories of assignments and collaboration. Immigration lawyers were thrust into mentorship roles, litigators became problem solvers, corporate attorneys became avid learners. Lawyers flocked to airports, though some were asked to leave because too many volunteers had overwhelmed the sites. Many arranged to have equipment delivered, food provided, and technology set up. Committees were formed to deal with the press, government officials, and airlines.

Some attorneys began to file habeas petitions. Others engaged in legal research, interviewed and provided support to family members, or worked together on legal issues and policies. Translators were summoned, conflict checks were performed, everyone moving rapidly, sometimes appearing to be moving randomly, battling the volume and the urgency. A volunteer manual was quickly drafted, teams of firms worked on coordinated issues, and intake forms were created and distributed. Information and advice was exchanged by the minute, with everyone working toward the common goal of providing access to justice for those most in need.

That first weekend was an exercise in chaos and Constitution. While protests erupted at airports, lawyers worked feverishly to help vulnerable clients in ways that only lawyers can do. Knowing that their purpose was justice, and that the processes depended on fairness, hundreds of lawyers worked impossible hours throughout the weekend. They knew that amid the cacophony they had to make the system work. No detained immigrant would be left alone, for our democracy does not work when the vulnerable are unaided and alone.

As arriving immigrants were slowly released from detention, tears flowed, cheers erupted, and the lawyers kept at it, continually learning how to deal with the next moment of urgency. Lawyers who spoke Arabic, lawyers who were angry, lawyers who were apolitical, lawyers who were Muslims, Jews, African Americans, Latinos, Republicans and Democrats lived a lawyer’s highest calling. They were serving those in need, serving an overloaded system, and making sure the tools of democracy were available and working. And as the emergency waned, ever so slightly, and the wheels of just turned as they should, not a single lawyer joke was to be heard.

David A. Lash serves as Managing Counsel for Pro Bono and Public Interest Services at O’Melveny & Myers LLP. He can be reached at dlash@omm.com. The opinions expressed are his alone.

A 1987 report of the law commission had drawn a blueprint of the manpower required in the judiciary. At that time, the strength of the judiciary was 7,675 judges, or 10.5 judges per million people. The judge-population ratio (sanctioned strength) has since increased to 17 judges per million but the vacancies have surpassed the 5,000 mark and so have the backlogs.

The current sanctioned strength of the subordinate judiciary is 20,214 judges while that of the 24 high courts is 1,056 and the pendency of cases has remained abnormally high at 3.10 crore.

On the sanctioned strength, there are 4,600 vacancies of judges in the subordinate judiciary which is more than 23% of the strength. The situation in the high courts is worse with almost 44% (462) judges' posts vacant. The Supreme Court too has six vacancies on a sanctioned strength of 31.

The appointments have been held up following a standoff between the apex court collegium and the government over the finalization of the memorandum of procedure for selection of judges.

To address backlogs in justice delivery, the 120th report of the law panel had proposed to increase the strength to 50 judges per million people — less than the US where the judge-population ratio then was 107. In case of UK it was 51, for Canada it was 75 and Australia 42.

The 50 judges-per-million view was supported by the commission in its 245th report submitted to the government in 2014, an exercise carried out after three decades of the first manpower assessment without any substantial follow up action. The 20th law commission study found at the current rate of disposal, HCs require an additional 56 judges to break even and an additional 942 judges to clear the backlog. This estimation was based on the sanctioned strength of the HCs at 895.

"Bihar, for example, requires an additional 1,624 judges to clear backlog in three years," the 20th law panel observed.

The problem of backlogs is compounded by the fact that in some states courts are unable to keep pace with new filings. As data shows, even where the courts are breaking even, the system is severely backlogged and requires urgent intervention.

Given the large number of judges required to clear pendency and the time to complete selection and training processes, the law commission recommended that the recruitment of new judges should focus, as a matter of priority, on the number of judges required to break even, and to dispose of the backlog in a three-year time frame.

Simplification of court procedures is another problem area. Different HCs have different procedures and rules. There is no uniformity, despite the fact that the government has repeatedly written to the chief justices to develop common court procedures.

Source: TOI

In a bid to check generation of black money, a steep penalty awaits those accepting cash in excess of Rs3 lakh, beginning April 1, to settle any transaction. 

A ban on cash transaction of more than Rs3 lakh has been proposed in the Budget for 2017-18.In an interview to PTI, Revenue Secretary Hasmukh Adhia said the penalty for doing cash transaction will be steep and the receiver will have to pay an amount equivalent to the cash received.

“Supposing you do a transaction of Rs4 lakh in cash, then the penalty would be Rs4 lakh. If you do a transaction of Rs50 lakh, penalty would be Rs50 lakh,” he said, adding that the penalty will be levied on the receiver.

So, if someone buys an expensive watch for cash, it is the shopkeeper who will have to pay the tax, he said, adding that the provision is to deter people from doing large cash transactions.Demonetisation brought to account the stock of black money and now the government wants to stop future generation of the same.

 The government, he said, will track all large cash transactions, and also curb the avenues of conspicuous consumption through cash.People with large sum of unaccounted money usually spend it on holidaying or buying luxury items like cars, watches and jewellery. The new cash curbs will mean that such spending avenues are curtailed, disincentivising people from generating black money.Mr. Adhia said that the previously notified rule of quoting PAN for any cash transaction above Rs2 lakh stays. 

Finance Minister Arun Jaitley had in his Budget for 2017-18 proposed to insert Section 269ST in the Income-Tax Act to state that “no person shall receive an amount of Rs3 lakh or more by way of cash in aggregate from a person in a day; in respect of a single transaction; or in respect of transactions relating to one event or occasion from a person.”However, the restrictions will not apply to the government, any banking company, post office savings bank or co-operative bank. 

Mr. Adhia said the Budget proposes to levy penalty on a person who receives Rs3 lakh and above.

A panel of Chief Ministers headed by Andhra Pradesh Chief Minister Chandrababu Naidu had in its interim report just days before the Budget recommended a cap on cash transactions beyond a threshold and a tax on payments of over Rs50,000 as a way of discouraging people from using physical currency.

Introduction

After Demonetization move numerous raids by authorities leading to seizures of thousands of crores in illegal wealth, the Income-Tax department has launched a new crackdown and this time it is on benami properties – something that many had feared would happen once the worst effects of the note ban have blown over. The Narendra Modi led NDA government has been targeting black money holders and their properties in order to eradicate corruption. 

Buying property in your parent’s name may lend you seven years in jail. According to the Benami Transactions (Prohibition) Amendment Act 2016, which came into force on November 1, last year unless you are a joint holder in the property with your mother, father, or sibling you could go to jail for indulging in benami transactions. 

‘Benami’ is a Hindi word meaning “nameless” or “without name”. This Act uses the word ‘benami’ to define a transaction in which the actual beneficiary is not the one in whose name the property is purchased – who is basically an identity cloak – the “benamidar”.

The actual beneficiary is the person financing the deal. Mostly, who usually keeps the property papers and also retains the power of attorney to sell the asset. 

What really is Benami Property? 

Assume if a person wants to buy a property, which might be a plot of land or an apartment, a bungalow or a commercial space. Then that person who pays the actual price of the property should ideally become the owner of the property. But the story is little twisted, in many cases. For a property, how big or how small, should be registered in the name of the buyer. In many cases, people pay the price of the property but choose to register the property in the name of a third person. This means the property is in the name of someone and some other person is paying the price for it. That kind of property which is brought under the name of third person is termed as benami property. Mostly, the benami properties are brought in the name of closed relatives like brother, sister, uncle, etc. So under the new bill, this practice will come to a halt and only property can be brought in self’s name. 

Benami Transactions (Prohibition) Act of 1988 and the Benami Property Bill of 2015 

In India, the fight against the illegal or benami properties started back in the year 1988. In that year, an act named BTA was passed to make the transaction of properties and register them to other’s name. This step was taken to eradicate the menace of black money which has crippled the Indian economy for years and is a major blot in the country’s future. Now After the Modi government came to power, Finance Minister Arun Jaitley introduced the amended bill – with 71 sections – in the Lok Sabha.

The Central Board for Direct Taxes (CBDT) has now notified that the provisions of the Benami Act would come into effect from November 1, 2016, and that it has been renamed as the Prohibition of Benami Property  Transactions Act, 2016 (PBPT Act).“The PBPT Act defines benami transactions, prohibits them and further provides that violation of the PBPT Act is punishable with imprisonment and fine,” the CBDT notification issued on December 2 said. “The PBPT Act prohibits recovery of the property held benami from benamidar by the real owner. Properties held benami are liable for confiscation by the Government without payment of compensation.” 

Criteria for a property to be considered as benami 

Benami property bill of 2015 specify, there are several criteria out of which if one is satisfied, that property will be deemed as benami and strict action will be taken as per sections of law. The criteria for a property to become benami are as follows: 

• The purchased property has been registered under the name of a fictitious person who does not exist in reality, i.e. the property is brought in a false name.  example, Mr. A is the buyer of a property and pays full price of the property. But the registered and ownership recorded with the govt. is under the name of Mr. B. And the matter of fact is Mr. B does not exist in reality and is a false identity. Then that property will be considered as a benami property. 

• The property belongs to a person and is under his/her possession, but the actual price of the property is being paid by third person. For example. Mr. A has brought a piece of land. Mr. A has paid the price of that land as well as all other costs of registering the land. But while registration, the ownership of the property has been given to Mr. B. The owner i.e. Mr. B may be a friend or relative to Mr. A and knows the whole scenario. Then also the piece of land will be considered as benami property and Mr. B will be a benamidar which means owner of a benami property. 

• The owner of the purchased property is unaware of the fact that the property belongs to him/her i.e. a property is brought under a person’s name without his/her consent. Suppose a person buys a apartment in the name of his/her uncle. But his uncle is unaware of the fact that the apartment is registered under his name. This means the entire transaction of property has been done without the consent of the owner. Then, that apartment will be marked as a benami property. 

• The buyer of the property who made the fictitious payment or is untraceable but the property is registered in someone’s name. This is another case where suppose a property is registered under your name but the person who has made the property transaction is fictitious or is untraceable. Then you are just a benamidar and are in possession of a benami property. 

Exceptions & Exclusions where the property will be not considered benami under the Benami Property Bill, 2015 

The Govt. of India has set some guidelines under which a property will be termed as benami. But there are also certain exclusion and exceptions scenarios when the property will not consider as benami and will be perfectly legal to posses. Below are some conditions which will not make a property benami and will be accepted under law: 

• Property which is brought under the name of a husband or person’s wife will not be a benami property. This means assume a person pays for the property but is making his wife, the registered owner of the property. Then the property will be absolutely legal. Same is the case for women buying properties in name of their husbands. 

• Property brought under the ownership of daughter who is unmarried. Before marriage of your daughter, you can buy a property in her name. Buy after marriage, it will be against the Benami property bill and will be termed as benami property. 

• Property transferred with partly transfer procedure will be exception from being considered as benami property. Suppose if you own a property and are willing to change its ownership. You have started the necessary property transfer formalities legally, under the Property Transfer Act of 1882. Then your property will be legal and will not be benami. 

• General Power Of Attorney will be excluded from making benami property. GPA property means that property which has been given from one person to another under the rule of power of attorney. If there is a legal & legit paper work of the power of attorney procedure against a property, then it will be exempted from being considered as benami property. 

• Joint ownership of properties with valid legal documentation are also not benami. Properties can be jointly purchased and registered in multiple names. So the joint properties with proper payment and documentation will not become benami. You can own joint property with your son, wife, sibling, business partner, etc. 

• Some special provisions for the HUF families living in India related the benami property. A Property buyer who belongs to a HUF and is the leader or karta of the family can buy the property in the names of the family members. But there must be full legit documentation and the funds used to buy the property should be accounted at any point of time. Another important condition for the HUFs is that the karta must have the fiduciary capacity i.e. the power to handle the money matters of the HUF family. 

• If a property has been already declared under Income Declaration Scheme, 2016, the property will not be booked as a benami property. The central govt. issued a circular for declaring such properties and money which were not declared earlier. The govt. pressed some penalty on those benami properties & black money, imposed tax on it and made it legal. So properties which are already declared under the IDS will be exempted from being ceased by the govt. 

Beneficiary is not the owner 

For better understanding of benami properties and its logic, the example of beneficiary and owner is described here. You are paying the price of a property and are making your sister the registered owner. But your sister is not using the property or not getting any benefits from it. But, by taking this step, you are drawing benefits like saving on loan interest rates, saving taxes, getting rebate on stamp duty and registration charges of property, etc. Then you are the beneficiary of the property. So your sister will be a benamidar and your property will be deemed benami and is subjected to be ceased by the govt. in accordance to law. 

How will the govt. authorities examine whether the property is benami or not? 

The government authorities will scrutinize each and every property carefully to check the ownership details and the source of funds used to buy those properties in order to root out corruption. Firstly, the authorities will examine the source of funds used to buy the property. Then they will check whether there is valid and justified intent behind buying the property in the name of the registered owner. After that, the document verification will be done. This will also include the history of taxes paid to the government against the property. The tax evaders will be punished under proper sections of law. The entire investigation will make things crystal clear about the fact, who is the real owner of the property and who is getting benefits out of it.

There are several cases of benami properties which are under scrutiny where the value of property is less than Rs. 10 lakhs but there is a PAN registered with it. Generally, PAN is required only when the price of property is more than Rs. 10 lakhs. Those properties which have undeclared taxes and TDS not deducted will be easily marked by the government authorities and will be ceased. 

Team of authorities responsible for examining the property ownership 

Government sources said that the government will form teams of authorities which will conduct the property Investigations, raids and mark the benami properties. These teams will consist four government authorities each. The teams will have members like initiating officer, approving authority, adjudicating authority and administrator. The whole investigation of the benami properties will be done step by step from one authority to another. 

Legal actions to be taken against the benami property holders 

The government has issued some guidelines related to the legal actions which will be taken against all those benami property holders or better called benamidar. If the property declared as benami by the investigating team of government authorities, it will be confiscated by the central government .The accused may face rigorous imprisonment that may be of 1 year to up to 7 years. In addition to this, penalty of 25 per cent of the property value in the current market will also be charged from the benamidar. Also there is a legal provision for those who will not cooperate with the government authorities and will give false information. They may face imprisonment from 6 months to 5 years and also might be charged with 10 per cent of the property value in the current property market. Special fast track courts will be organized to the trail of the benamidar. 

Latest update: Benami Act comes into play

"After in-depth investigations, the I-T department has issued 87 notices under section 24 of the said Act (notice and attachment of property involved in benami transaction). A total of 42 properties, largely monies worth crores in bank accounts and an immovable property, of benamidars have been attached," officials said citing an analysis report, also accessed by PTI

 What is the way out?

The beneficiary will have to declare the Benami transactions before March 31, 2017. The money from these illegal transactions must be declared and deposited under the Prime Minister Garib Kalyan Yojana 2016.

Bar Council of India have sent letters to the Secretaries of State Bar Councils,  in another decision in regard to verification of newly passed LL.B candidates,  vide which it has been instructed to collect Rs.2500 for the verification of certificates that has to be provided at the time of submission of enrollment forms for registration for as an Advocate.

Hon'ble members have raised a very important question with regard to verification of newly passed out candidates and the pre-enrollment of their certificates from various Boards and Universities.

The last year has been good to me. I got clients off of YouTube, Facebook (I know because I get messages on my business Facebook Page when I’m running an ad campaign), and other non-traditional sources. Although I am sure others are better authorities on the topic, I want to share what I’ve learned this last year so that the readers of Above The Law have a competitive advantage over the rest.

1. If you have been out of law school for over two years, no one cares about what you did in school. Take if off your website bio. It hurts you more than it helps you. I understand that you are proud that you were on the moot court board or were the treasurer of your 1L class, but clients do not care about that at all. Unless you’re focusing your marketing efforts on representing current law students, no one cares about the moot court board. And if you are targeting clients who are six figures in debt and have a just-enough-to-be-dangerous knowledge of the law, you need to look for a new target. Keep that stuff on your résumé, because employers care about it, but clients do not. In fact, if you are two years out and you have so few professional accomplishments that you need to start talking about what groups you were in back in law school, your potential clients reading your site are going to wonder if you are the right choice. Two years is the outside amount of time you should keep it on your bio, but you should start thinking immediately after you start working about taking it off and replacing it with accomplishments.
2. Know your audience and target your audience. Put yourself in the role of your target audience. Are you a plaintiff’s employment lawyer? Pretend you are a person who has been discriminated against. What Google searches do you do? Probably not “wage and hour attorney California” or “labor and employment counselor at law.” That’s how lawyers talk. Who is your ideal client and what would they google to find you? Try “paycheck dispute lawyer” or something more simple like that. Now, what do they find when they get to your site? Is it more stuffy legal talk, or does it immediately answer a question they have, or show them where they can find the answer on your website? Assume that visitors to your site are going to spend about 30 seconds there, and if they can’t find what they are looking for, they will go onto one of the other 100 websites that showed up in the Google search results for lawyers with your specialty in your area. People coming to your website are going to have three main questions: (1) do you seem intelligent/capable, (2) can you help me with my specific problem (do you do my area of law and have you had any good results in the past), and (3) how much do you cost? That’s about it. So create your website so that it answers those questions and make those the focus. Do I have to read paragraph after paragraph in your About Me section about your dedication to excellence and the highest standard of client care to mine for the answers to those three questions? No one coming to your site cares about that fluff language. Get to the point. You have 30 seconds before you lose the site visitor.
3. Use pictures of yourself. I don’t know if you have ever sought out legal counsel. I have, before I was a lawyer, and the process was frightening. I’m reading online bios, I’m searching for top lawyers in various trade journal “top lawyer” lists, and I have no clue who is actually good. And it’s a huge decision. It’s not like choosing an Uber. You are choosing someone who is going to either do a great job for you or ruin your life or your business if they miss a deadline. It’s actually hard to trust someone with a decision like that if you can’t look at their face. Putting a picture on your website or social media makes you a person, a human being. People expect there to be pictures of you online nowadays. If there are no pictures of you online and you have an online presence, I’m going to think, “What is this person hiding?”

by : Jeff Bennion : is a solo practitioner at the Law Office of Jeff Bennion. He serves as a member of the Board of Directors of San Diego’s plaintiffs’ trial lawyers association, Consumer Attorneys of San Diego. He is also the Education Chair and Executive Committee member of the State Bar of California’s Law Practice Management and Technology section. He is a member of the Advisory Council and instructor at UCSD’s Litigation Technology Management program. His opinions are his own. Follow him on Twitter here or on Facebook here, or contact him by email at jeff@trial.technology.

Right to Information Act (RTI): Symbol of Hope for Common Man

In a revolutionary move, hailed as a legislation that has the power to transform the way the government functions under Indian Constitution, the RTI Act is a symbol of hope for a more transparent and more accountable government at highest level.

The Act can place the power of knowledge in the hands of Indian citizens if it is utilized in a proper manner. What it really means, to how you can file an RTI application – here is everything you need to know:

What is the RTI Act?

The Right to Information Act (RTI), 2005 is an Act of the Parliament of India “to provide for setting out the practical regime of right to information for citizens.” Simply put, it allows citizens of the country to request information from any public authority about its work, actions, etc and make our democracy work for the people in real sense. The Act is a big step towards making the citizens informed about the activities of the Government.

Why is RTI Matters?

For common man, the Right to Information Act is considered to be one of the strongest pieces of legislation and an Instrument for Stronger and Vibrant Democratic Process in India. It gives citizens the power to question public authorities and their activities, thereby not only promoting transparency, but demanding accountability as well. The Act is considered a landmark legislation in the fight against corruption.

The Act emanates from what the Indian Constitution guarantees itself. Under Article 19 (1) (a) the Constitution guarantees every citizen freedom of speech and expression with certain restrictions. Logically to allow the exercise of freedom of speech and expression effectively the country needs an informed civil society.

Reasons why the RTI is a powerful weapon for common citizens:

• Empowering the Common Citizen - The RTI, just by giving information, turns an Aam Aadmi into an activist — an activist, whose blood boils due to the corruption. Supreme Court observed that in a responsible government as ours, where all the agencies of public service must be responsible for their conduct, there can be only few confidential matters. The people of the country have a right to know the details about the functionaries’ function.

             Link: Supreme Court Judgment Copy

• Political Parties do not want to be accountable- According to the Central Information Commission’s ruling, political parties directly qualify as public organizations under the ambit of RTI, by virtue of substantial subsidization and government spending on them. While the end result of a political party is to cater to the needs of the public, it is only logical that the public has the every right to know about parties’ source of funding and choice of candidature. However, there have been efforts to amend the RTI to keep the Political Parties away from the reach of people.
• Brings down Corruption-  India at rank 76 out of 168 countries in its latest Corruption Perception Index. according to the 2015 CorruptionPerceptions Index reported by Transparency International. Since 1947, the country has lost a whopping $462 billion via illicit financial flows due to tax-evasion, crime and post-independence-corruption. Not surprisingly, even government policies don’t escape corruption. With RTI empowering citizens, even a villager in a nook of India, when endowed with the information, could pose a threat to illegal operations. Hence, the RTI, indirectly, shrinks the extent of corruption by having records of public organizations at the disposal of its citizens.
• Protecting Whistle-blowers-The success of RTI lies in ensuring that whistle-blowers are amply incentivized and secure from threats — something that’s evidently lacking; the statistics stand testimony to that.

Bodies covered under the RTI Act

Bodies which are covered by the Central Act are referred to as "Public Authorities". Section 2(h) of the Central Act clarifies the term "Public Authorities" mean:

• All Central, State and local level bodies which are set up under the Constitution or under any other State or Central statue. This means that it covers the President, the legislature and the judiciary and all related Ministries, departments and agencies.
• Anybody owned, controlled or substantially financed or any non-Government organization substantially financed directly or indirectly by Government. This means that even some private bodies which receive funding from the Government can be asked for information. 

Unfortunately, section 24(1) of the Central Act goes on to limit coverage by entirely excluding some bodies from the law such as security or intelligence agencies. Section 24 actually allows Governments to add bodies to the list of exempt agencies, so you should consider checking whether any such Rules have been made where you are considering making an application to a security or intelligence agency. 

At the State level, coverage is variable, with some laws covering more bodies than others. Most of the State Acts do not cover private bodies, so you may not be able to access information from a private telephone company or electricity body. 

If you believe that your application relates to more than one body, you should try to decide which body you think has the closest connection with the information you are seeking and then send your application to them. In any case, the relevant body should be under a duty to consult with any other relevant body to make sure that all the necessary information is collected. Notably, the Central Act actually includes a specific requirement that applications which are directed to the wrong body are transferred to the body which does hold the information. This recognises that the public should not be expected to chase lots of different bodies because this will be costly and complicated.

Method of filing an RTI application:

An RTI application can be filed in one of three ways: 

• Online: Visit rtionline.gov.in and login to file an RTI.
• Via post: send your application to the concerned department via speed post or registered post.
•  In person: Visit the Public Information Officer/ First Appellate Authority (FAA) of the concerned department and he/she will guide you further. 

For example, if you reside in Bangalore and have queries about the water supply in your area, you can approach the municipal body in charge of supplying water to your area (in this case, the Bangalore Water Supply and Sewerage Board), either through their website or at their office. 

How do I file an RTI application?

The procedure to file for an RTI is fairly simple. There are two types of Appeal which are as follows: 

Procedure for first appeal 

• Identify which department your query concerns and who the Public Information Officer/ First Appellate Authority (FAA) there is.

          For Central Public Authorities, check out this website. For State Public Information Officers, go here.

• Write a simple, to-the-point application form detailing your questions clearly. Also mention ‘Seeking information under the RTI Act, 2005’ in your subject line 

• Pay the fee of Rs. 10. Payment can be made via Demand Draft or Indian Postal Order or can even be submitted to the treasury. Proof of payment (such as challans and receipts) must be enclosed with the application. Online options for the payment are also available here. 

• Submit the application either via post, online or in person. 

Important Note :

Please take a photocopy of the application and keep one with you for future reference. Send your application by post or hand it in personally to the department concerned. Don’t forget to get an acknowledgement.

When can I expect a response to my RTI request?

By law, RTIs must be replied:

• First Appellate Authority (FAA) has to decide on the appeal within 30 days, from the date of receipt of first appeal. She/he can take a further 15 days (total 45 days), provided they give the reasons for the delay in writing.
• 48 hours for information concerning the life and liberty of a person
• 5 days shall be added to the above response time, in case the application for information is given to Assistant Public Information Officer.

RTI - Second Appeal 

However, if the appellate authority (FAA) fails to pass an order on the appeal, within the prescribed period, or if the petitioner is not satisfied with the order of the first appellate authority. They have the option of escalation to file a second appeal, with the Central Information Commission. The second appeal must be within ninety days from the date on which the decision should have been made by the first appellate authority, or was actually received by the appellant. 

The appeal made to the Central Information Commission (CIC) should contain the following information:

1. Name and address of the appellant.

2. Name and address of the Public Information Officer, whose decision is being appealed.

3. Particulars of the order including number, if any, against which the appeal is preferred.

4. Brief facts leading to the appeal.

5. If the appeal is preferred against deemed refusal, particulars of the application including number and date and name and address of the Public Information Officer, to whom the application was made and relief sought.

6. Grounds for the relief sought.

7. Any other information that you think will help the Commission in deciding the appeal.

The appeal made to the Informational Commission should be accompanied by the following

Documents: 

1. Self-attested copies of the order or documents against which appeal is made.

2. Copies of the documents relied upon by the appellant and referred to in the appeal.

3. An index of the documents referred to in the appeal.

Scams The RTI Act Helped Bust In past decade 

• The Adarsh Housing Society :

The Adarsh Housing Society, a 31-storey building, which came up in the prime real estate area of Colaba, Mumbai, was originally meant to provide residence for war widows ,veterans and heroes of the 1999 Kargil War, were used to house politicians, bureaucrats and their relatives.

Just after the RTI came into force, activists Simpreet Singh and Yogacharya Anand ji in 2008 exposed how politicians, bureaucrats and military officials had flouted rules to acquire flats below market rates, which culminated in the resignation of Maharashtra Chief Minister Ashok Chavan, whose own relatives were allottees in the building.

•  2G Scam :

In 2011, India's telecom scandal aka the 2G scam clinched the second spot in Time Magazine's "Top 10 Abuses of Power" list. Back then Telecom Minister A Raja undercharged mobile phone companies for frequency allocation licenses and caused a loss of Rs 1.76 lakh crore to the Indian government, an RTI application by Subhash Chandra Agrawal revealed that Raja had a "15-minute-long" meeting with then solicitor-general Goolam E Vahanvati in December 2007 after which a "brief note was prepared and handed over to the minister", but the minutes of the meeting were not recorded.

• Commonwealth Games Scam :

India was still reeling from the 2G Scam, when it was hit by the dubious dealings of Suresh Kalmadi, a lawmaker from Pune. The report said that an RTI application filed by non-profit Housing and Land Rights Network showed that the then Delhi government had diverted Rs 744 crore from social welfare projects for Dalits to the Commonwealth Games from 2005-06 to 2010-11. The diversion of Dalit funds during the CWG triggered further investigations. Using budget documents and RTI, the National Coalition For SCSP-TSP Legislation, an umbrella organisation of Dalit and Adivasi groups, figured out that a staggering 5,27,723.72 crores worth of funds had been denied to Dalits and Tribals from the seventh to twelfth five year plans (till 2014-15) in the Union Budget.

• Billionaire Anil Agarwal's University In Orissa :

In April 2006, Anil Agarwal, chairman of the Vedanta Group, set about acquiring land in Orissa to establish a Rs15,000 crore university on 15,000 acres of land, which was to rival universities like Stanford and Cambridge. The Naveen Patnaik government lost no time in granting 8,000 acres of land to the Anil Agarwal Foundation, and promised to acquire an additional 7,000 acres for the project along the Puri-Konark Marine Drive.

Challenging the acquisition in the Orissa High Court, land owners obtained a document under the RTI which showed that the government never given them an opportunity to be heard under an enquiry mandated under the Land Acquisition (Companies) Rules, 1963, before land is acquired.