Business and Friendships. Different Things.

An Aphorism or Two. Dangers For Experts in Being “Helpful” for “Friends”

“The Lawyer who acts for himself has a fool for a client”. A well-known aphorism, among Lawyers.

Meaning, when you act professionally for your paying clients, you are being paid to review your client’s case unemotionally and, with clear-sighted detachment, interpret and apply the complicated provisions of the relevant statutes and case law to the particular problem.

But when you act for yourself, you are the last person in the world who can do that, so don’t even think about it.

There should be another aphorism – “the professional person who does a favour for his best mate won’t have a best mate for long.”

If my best mate has a restaurant I don’t expect to eat free food there. But, how often does a Lawyer get asked by a pal “Can you just have a quick look at ……. – this lease – this summons – this power of Attorney”?

A quick look? Just “scan through it, check it’s alright” That’s what they say. Not what they mean of course.

They mean, “Drop everything else”. They mean, “Consider my document/problem carefully and thoroughly and be aware that I shall rely entirely upon you having done so and never forgive you if you give me the wrong answer”.

And, they mean, – “Because I used the expression “have a quick look” I do not see any reason to pay you.”

Doctors will know exactly what I mean. Man at dinner party finds out you are a medic – “Could you just have a quick look at this mole”. Interpretation – “I think I have cancer but I can’t be bothered to take time off work to find out”.

Here is a recent case which may be worth bearing in the forefront of your mind if ever a relative, friend, neighbour or man at a dinner party or, for that matter, man at a bus stop asks you for your help as a personal favour.

It clearly underlines that when A, who is an expert, gives advice to B [who has requested that advice from A only because A is an expert] then B will not only not pay A, but will sue A if he loses money by taking the advice. And worse, B will win. And there goes a lovely friendship and (worse?) many thousands of pounds.

The Link is here.

So if you need an excuse, next time your old school friend asks you to “cast a quick eye” over his business tenancy agreement, tell him Chris says not to!

Or better tell him, “Make an appointment, come to my office, and we can agree a contract for my services on a proper professional basis.”

Otherwise you could be saying, like Bob, “All the friends I ever had are gone”. Link here

Please do contact me whenever you need Notarial certification or Legalisation for your Documents [but let’s keep it professional eh] – at http://www.atkinsonnotary.com – or phone me on 0113 816 0116 (internationally 0044 113 8160116)

English Notaries and Indian Legalisation. Small World. And a Good Decision.

English Notaries and Indian Legalisation. Small World. And a Good Decision.

There are only 800 or so Notaries in England and Wales and by and large, we talk to each other. [This is something that the 118,000 or so solicitors cannot do. There are simply too many of them.]

So whilst I do try to find news for my Blogs from my own researches it is also the case that a lot of new information simply pops into my computer in the form of emails from Notary colleagues.

Today, good news for those of my clients who need their documents prepared here in England for use in India, and I am grateful to Tony Martin who is a Notary in Lancashire and also an Attorney in New York USA, for letting me know it.

As readers of this Blog will know, for years India has been a signatory to the 1961 Hague Convention dealing with recognition of Foreign Documents. Ever since, there have been problems. See links to earlier blogs here and here .

In a nutshell, there is a hard core of lawyers and bureaucrats in India who will not accept that the law has changed and who continue to demand that documents, once notarised in England, shall be submitted to the Indian High Commission offices in London or Birmingham for a further stamp.

This is both pointless and unnecessary.

The Hague Convention rules demand that no such stamp should be obtained but instead, a stamp issued by the English Foreign and Commonwealth Office must be obtained.

Which is then duly ignored and rejected by those misinformed lawyers and bureaucrats.

As long ago as 2011 I posted this – link here – frustrated sounding message from the tax authorities in the Punjab, making this exact point.

At last, as Tony has informed me, the issue has now appeared before the Indian Court.

The link here is to a website which summarises the Indian Supreme Court decisions, and includes a nice picture of the Kerala High Court Building.

And this link here is to the actual text of the Court Decision of the Judge, The Honourable Mr. Justice A. Muhamed Mustaque. He says, clear as clear can be “the Indian Court and the Public Authorities are bound to recognise such certification of the notaries of the foreign country.”

He says, clear as clear can be, “The Apostille Convention replaced cumbersome formalities of requirement of diplomatic or consular legalisation for foreign public documents and legalisation process of authentication by issuance of Apostille Certificate. THEREFORE, FOREIGN PUBLIC DOCUMENTS DO NOT REQUIRE LEGALISATION IF IT BEARS APOSTILLE CERTIFICATION.”

Whilst this decision is not made in the most senior Court of India and is therefore not strictly binding upon all the other Courts, it is clearly the right decision and it would now be a brave bureaucrat or lawyer in India who will reject the authority of the Apostille in further cases. If such a rejection is appealed against, they will expect to lose and to incur the personal risk of paying the Court costs.

And the small world reference? This is a Notary colleague who writes from London “The Indian Judge was my senior at Law School and is a dear friend of mine”. [Kevin Bacon would be proud].

All together now join in the song – link here.

Please do contact me whenever you need Notarial certification or Legalisation for your Indian Documents [or for anywhere] – at http://www.atkinsonnotary.com – or phone me on 0113 816 0116 (internationally 0044 113 8160116)

Criminal Records Disclosures. FAIL!

Criminal Records Disclosures. FAIL!

Last week I wrote my Blog about the way Criminal Records are presently disclosed, or not. Arbitrary and Unlawful, that’s how, according to the Judges. Link Here

As a background, the Judges explained “The uncontroversial object of the legislation, primary and subordinate, is to facilitate employment of former offenders, while affording protection to the vulnerable and recognition of the special requirements of certain sensitive professions, employments and activities.

Turns out, that an additional consequence of the creation of this unlawful and arbitrary system intended to avoid “unfairness” to the guilty, guess what, the innocent are getting legged over.

Was the poet Burns contemplating the Rehabilitation of Offenders Act 1974? He wrote “The best laid schemes o’ Mice an’ Men, Gang aft agley, An’ lea’e us nought but grief an’ pain, For promis’d joy!” and in this instance he was not wrong.

This week I have heard from a person who has no criminal record at all. English born and educated, he is a highly qualified Teacher who has worked for many years in a foreign Country and now returned.

He writes:-
“I’ve had two frustrating experiences with the labyrinthine workings of the CRB/Disclosure and Barring Service, and I haven’t even got any convictions for anything to declare….

“In 2005 I did a MA in Education with a Faculty of Education in the South of England, and completed a special course in Access to Education for young people and adults with a particular handicap. I spent about six months researching and sorting out a placement at a specialist facility in the Midlands where I was to live on campus and teach my subject up to GCSE level. I’d also planned to do a MA thesis on the strength of some research I was going to complete when teaching there.

“The Admin office at my university applied for the CRB form (Enhanced Disclosure) for me; I received the appropriate certificate of ‘no convictions’, told the school that I had received it, and was instructed to bring it along the week before the placement was to start “just so they’d seen it.”

“So far so apparently OK. I spent a very fruitful day at the special school prior to starting teaching, and while I was organising my timetable, collecting materials etc , their office checked my I/D and documents.

“Towards the end of the day however it came to light that the office at the Faculty of Education had not done their job properly – they hadn’t ticked a box referring to ‘working with vulnerable children in residential settings’ when applying for my records check.

“So the whole thing fell through as my CRB check wasn’t ‘complete’.

“The university apologised right, left and centre – they contacted the CRB main office to ask for the form to be re-processed, but the CRB people wouldn’t prioritise my case as they had thousands of other cases in a log-jam.

“The Dean of the Faculty of Education sent me a grovelling apology – but I had to re-organise my placement elsewhere for 6 months later, and I never did complete the particular research I wanted to do…

“and then…
“In 2014 I was approached by a local school and asked if I could possibly give language support to a child in a Primary School in a local town whose first language was German. The school was very keen to employ me as they hadn’t been able to find anyone with suitable qualifications or experience who had also taught native speakers of German.

“The child who needed some support had been born in Germany when the parents were living there, but had recently moved permanently to the UK as the parents had split up. The pupil mixed languages up, mixed spellings up, had problems adjusting from one language to the other when reading….

“The school called me in and asked me to do an assessment of the child – I then produced a draft support plan to be discussed with parents and teachers. I provided references from the UK and from an International school overseas, and the school was very keen for me to start straight away.

“I already had a current DBS form from the charity organisation I was teaching with, but the local authority insisted I needed a new one which they had to apply for.

“I filled in the form, but as within the last 5 years I’d lived outside the UK, the issuing authority asked me to get a certificate of ‘Good Conduct’ from the country I’d been teaching in when employed in an international school.

“I contacted the Embassy where I’d been living, who informed me that the Police would not entertain such a request as it would be deemed trivial. The only way that the process could be completed would be if the local authority asked the British Embassy in London to contact the Embassy overseas to ask the Police of that country for a full criminal records check – but I was warned that the Police would only ‘consider’ such a request as I was no longer resident there. Such a procedure would probably take a couple of months…. so, again, the whole thing fell through.”

So there it is – we have a complicated Criminal Records Disclosure system and it turns out, it fails all of the following

• Those with Criminal records
• Those without Criminal Records
• Children who need special teachers
• Teachers.

Hey Ho.

If systems are too complicated for anyone actually to make them work, what good are systems? Any conclusions from all this? [Don’t let a monkey fly your spaceship?]

On which slim pretext, Here’s a song from Amy.

Please do contact me whenever you need Notarial certification or Legalisation for your CRB Disclosures or any foreign documentation – at http://www.atkinsonnotary.com – or phone me on 0113 816 0116 (internationally 0044 113 8160116)

Present System of Criminal Record Disclosure in England “Arbitrary and Unlawful”.

Present System of Criminal Record Disclosure in England “Arbitrary and Unlawful”.

“Arbitrary and Unlawful”?

I have referred before to the truth of the legal maxim “Hard cases make Bad Law”. It refers to the natural wish of the Judge in any particular case to come to a decision which is “fair”, and the way in which this can sometimes appear to turn the law upon its head.
In criminal cases this is not usually a problem. If a crime is committed there will be a conviction, so everyone knows what the law is. Then, if the circumstances call for it, the sentence can be lenient.

But in commercial, employment and contract law things are not so easy. If a landlord is seeking to evict his impoverished tenant, who is perhaps a war hero down on his luck who is unable to pay his rent, it will make a mockery of the law if a Judge allows the lease to continue free of charge, just because he feels sorry about the case. Landlords would, ever afterwards, refuse to let their properties to war-heroes.

Now the problem seems to be appearing again in relation to employment law. The question is, what criminal convictions should be revealed in the Criminal Records Disclosure scheme in accordance with the terms of the Police Act 1997 link here

The purpose of the Act is to enable prospective employers of, for example, primary school teachers, to see whether there is any historical reason in the form of criminal convictions, why a particular job appointment working with children would be unwise, or Cashiers, who have been dishonest in the past.

In the reported case of R (P&A) – Link here  in their wisdom the Judges have decided that the present law as it is applied [past offences however minor are to be disclosed if there is more than one] is “arbitrary” and therefore unlawful by the standards imposed by Article 8 of the relevant European Convention.

The example in one cited instance in the case is of a man aged now 51 who aged 17 stole a coat and who then aged 18 took a motor cycle and rode it uninsured. He has no further convictions.

Under the law as it stands, this person’s criminal record is to be disclosed on a Criminal Records Check – such as would be required on a relevant change of job -because he has more than one minor incident recorded against him.

It seem to me that in wishing to protect a man of over 50 from the impediment of his own criminal record incurred as a feckless youth, the Judges have not been particularly helpful to anyone. A Hard case, resulting in Bad Law?

The Judges noted that the man’s family are at present unaware of his “murky past” and that being employed now as a Finance Director, disclosure may jeopardize his future career.

Yes, the Judges heard that a hypothetical second man of 50, with one offence only, as opposed to two of them, when a teenager, would not have to disclose it. And that is the case even if that single office might have been a much more serious example of dishonesty than the theft of a coat from a market stall.

It seems to me to be very telling that in this case one Judge referred to the basis of the scheme being a decision by Parliament that “it was preferable to make the prospective employer or other registered person the judge of the relevance of the disclosure to his decision. Rely on him (they say) to sift the wheat from the chaff“

But, the Judges wonder, will he do so? In these days of keen competition and defensive decision-making will the candidate with the clean record not be placed ahead of the other, however apparently irrelevant his offence and even if otherwise evenly matched or indeed better qualified?

So the Judges are standing up for the reformed individual, on the basis that Employers and HR departments are all too likely to cover their own backs and always chose the perhaps second rate applicant who is “clean as a whistle”

Is that what Judges are supposed to do?

It would be so much simpler, if disclosure of Criminal Records meant what the phrase means. But the Judges it seems to me are putting the law into this position, by which disclosure of practically every “border-line” criminal record will in future be at risk of expensive and time consuming argument, caused by their wish to be fair.

As noted in the case, Individual consideration of almost 4 million cases a year would, it is argued, be impracticable.” Hmmm, you think?

So where does that leave us if we want to CHECK THE RECORD? Link here, Fall fans https://www.youtube.com/watch?v=wygQmJ59E4Q

As always, whenever you require any help with Notarisations and foreign legal documents, please do not hesitate to contact me or Louise Morley here at AtkinsonNotary [0113 816 0116 or notary@atkinsonnotary.com] where we shall be more than happy to assist further.