Gale Encyclopedia Of American Law 3Rd Edition Volume 6 P30 pps

Self-Representation
If a case is simple, a person may wish to represent
himself, or proceed PRO SE. The courts usually
discourage self-representation because legal prac-
tice requires special skills, and an unschooled
pro se party is usually at a disadvantage in court.
Even attorneys are well advised to hire another
attorney for personal le gal problems.
Advertising
Many attorneys advertise their services. Attor-
neys must obey all applicable advertising laws
and must follow rules of professional conduct
related to advertising. Under these rules they
may not make false or misleading claims, create
unjustified expectations, or compare the services
of another attorney unless the comparison can
be factually substantiated. An attorney may not
make in-person or live telephone solicitations
unless the attorney is related to the person or has
a professional relationship with the person. An
attorney may not contact an individual after he
or she indicates a desire that the solicitations
cease, and an attorney may not coerce or harass
prospective clients. Aside from these and similar
restrictions, attorneys generally are free to use
the various media to promote their services.
Duties and Obligations
LEGAL REPRESENTATION places duties on both the
client and the attorney. The client should provide
the attorney with all information relevant to the
case and keep the attorney apprised of new

information. The client should be completely
honest about the case with the attorney. The
client also should follow the attorney’sdirectives.
The client has an obligation to pay the
attorney for the representation. If the client
does not make timely payment, the attorney
may decline to perform further work for the
client. An attorney also may discontinue
representation if the client wants the attorney
to perform an unethical or illegal act, the client
lies and refuses to correct the lie, the client
makes representation unreasonably difficult, or
the attorney discovers a
CONFLICT OF INTEREST.
Generally, a conflict of interest is any
circumstance that adversely affects a client, or
limits the loyalty of the attorney to a client. For
example, assume that an attorney regularly
represents a corporation. A new client seeks
the attorney’s representation in a suit against
the same corporation. Representing the new
client would be a conflict of interest. Generally,
the attorney would not be able to take the case
or continue representation after the conflict was
discovered. However, the attorney may contin-
ue representati on if he does not believe that the
conflict would adversely affect the relationship
with the corporation, and if both the corpora-
tion and the client agree to the attorney’s
representation. In practice, continued represen-

tation where there is a conflict of interest is rare.
If an attorney must withdraw from repre-
sentation, he must act to protect the interests of
the client. This may involve helping the client
find another attorney, postponing court dates,
and surrendering papers and documents rele-
vant to the case. The attorney must return to the
client any money owed to the client under the
fee agreement.
An attorney has many obligations to his or
her client. He must zealously defend the
interests of the client and respond to the client’s
concerns. He must communicate with the
client, keeping the client informed about the
status of the case and explaining developments
so that the client can make informed tactical
decisions. He must abide by the client’s
decisions regarding the objectives of the repre-
sentation. With few exceptions an attorney may
not divulge client communications to outside
parties without the client’s consent.
Attorneys are
OFFICERS OF THE COURT, and as
such they must follow the law and obey ethical
constraints. They may not harass persons in
the course of representation. They may not
assist a client who they know will not tell the
truth about the case. An attorney should not
begin a romantic affair with the client during
the course of legal representation. In most states

such behavior is an ethical violation. No
attorney in any state may perform legal services
in exchange for sexual relations.
Fees
Attorneys’ fees vary by attorney and by case. An
attorney may charge a client in several different
ways. The most common forms of billing
include flat fees, hourly rates, contingent fees,
and retainers.
A flat fee is a dollar amount agreed to by the
attorney and the client before the attorney
begins work on the case. The flat fee is favored
by many attorneys because it is a simple
transaction and because the attorney is paid at
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
278 LEGAL REPRESENTATION
the beginning of the representation. The attor-
ney identifies the amount of work that the case
will require and calculates a reasonable fee
based on the time and effort involved. If the
attorney spends less time on the matter than
anticipated, the attorney may keep the excess
payment, unless the attorney and client agree
otherwise. Conversely, the attorney who charges
a flat fee may not later demand more money if
the case requires more time and effort than
originally anticipated.
An hourly rate is a predetermined amount
charged for each hour of the attorney’swork.The
attorney and client may agree that hourly fees are

to be paid periodically, or in one lump sum at
the end of the case. The time that an attorney
charges for legal work is called billable time, or
billable hours. Hourly rates vary according to the
attorney’s expertise and experience. Some critics
have argued that hourly rates discourage quick
work and expedited resolutions. Before agreeing
to an hourly rate, prospective clients should ask
Hiring an Attorney
T
he first task in hiring an attorney is
to find one who can manage the
particular legal problem at issue. All
attorneys are not equally skilled in every
area of the law. Like many other profes-
sionals, attorneys tend to specialize in
certain areas of practice such as contracts,
patents, family matters, taxes, personal
injuries, criminal matters, and business
matters. A person facing criminal charges,
for example, will want to contact an
attorney who specializes in criminal
defense work, not a patent attorney.
Some attorneys are known for their
skill in certain types of cases within a
specialty. For example, a criminal defense
attorney may be competent to handle any
criminal case, but may be especially
proficient in drunk driving cases or
homicide cases. Attorneys who specialize

in certain types of cases often have
developed a network of helpful contacts
and have a great deal of experience with
the kinds of issues involved in these cases.
Some attorneys are general practi-
tioners, proficient in a broad range of
legal topics. These attorneys are generally
less expensive than specialists. However,
if a general practitioner is not competent
in a particular area, she may need to put
more time and effort into the case than
would a specialist, and the client will
have to pay for this extra work.
Many businesses specialize in mak-
ing attorney referrals at no charge to the
consumer. They offer lists of attorneys
categorized by area of expertise or type of
client. For example, some referral ser-
vices list attorneys who specialize in
representing persons of color, women,
or gay men and lesbians.
After obtaining a list of qualified
attorneys, the consumer should have an
initial consultation with several attorneys
if possible. Some attorneys offer such a
consultation at no cost, whereas others
may charge a nominal fee. In either case
the initial consultation does not obligate
the consumer to hire that attorney or
firm.

At the initial consultation, the po-
tential client should provide the attorney
with as much information as possible
about the case. Relevant information
may include pictures, witness statements,
and other documents. This information
helps the attorney make an informed
judgment about the case.
The attorney generally does not give
legal advice at the initial consultation.
Instead, the attorney will ask questions to
determine whether he is able to represent
the consumer. The attorney will not
begin to work on the case until a fee
arrangement has been reached with the
consumer.
In deciding whether to retain a
particular attorney, the consumer should
look at a number of issues. If money is a
consideration, the consumer should
weigh the attorney’s fee against the
importance of the case. For example,
the consumer may be willing to spend
more money on an attorney if facing
criminal charges than if involved in a
minor civil matter.
If the consumer and the attorney will
need to meet frequently during the
representation, the consumer should
consider the location of the attorney’s

office and required travel time.
Another consideration is personal
chemistry. Attorneys and clients do not
have to be friends, but they should have
some rapport so that they can work
together. If the consumer does not feel
comfortable with an attorney, she should
find another attorney.
If time is a consideration, the
consumer should ask how long the
attorney expects the case to last. Some
attorneys work more quickly than others.
A consumer should also consider the
reputation of the attorney. Attorneys
usually are willing to provide a list of
previous clients as references. All states
have a
PROFESSIONAL RESPONSIBILITY board
that oversees the conduct of attorneys in
the state. These boards may be able to give
consumers information regarding ethical
violations by attorneys. The consumer
also may want to ask if an attorney has
malpractice insurance, which compen-
sates clients who are victims of incompe-
tent legal work.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
LEGAL REPRESENTATION 279
for a written estimate of the number of billable
hours that the attorney anticipates will be

necessary to complete the matter.
A
CONTINGENT FEE is a percentage of the
amount recovered by the client. A contingent fee
is not paid by the client until the client wins
money damages from a defendant. Attorneys
offer such a fee if the client stands a good chance
of winning a sizable cash settlement or judgment.
Contingent fees cannot be used in divorce cases,
CHILD CUSTODY cases, and criminal cases.
Contingent fees are a gamble for the
attorney. If the client does not win the case or
wins less money than anticipated, the attorney
may work for no or little pay. Common
contingent fees range from 20 to 40 percent of
the client’s recovery. For
PERSONAL INJURY and
MEDICAL MALPRACTICE cases, laws in all states limit
the percentage that an attorney may receive
from a client’s recovery. For other cases the
percentage is negotiable between the client and
attorney.
A client may retain an attorney for a specific
period of time rather than for a specific project.
In return for regular payment, the attorney
agrees to be on call to handle the day-to-day
legal affairs of the client. Most individuals do
not have enough legal matters to keep an
attorney on retainer.
The term retainer also refers to an initial

fee paid by the client. Retainers often are used
by attorneys who charge an hourly rate, and
some attorneys add an initial retainer to a
contingent fee.
Pro Bono Services
The term PRO BONO means “for the good.” In
practice pro bono describes legal work per-
formed free of charge. Pro bono work is not
required of attorneys in most jurisdictions, but
courts occasionally appoint attorneys to repre-
sent an indigent client free of charge. Under
Rule 6.2 of the American Bar Association’s
Model Rules of Professional Conduct, a lawyer
may refuse an appointment, but only if: (1) the
appointment would somehow violate another
rule of conduct (such as conflicts of interest) or
law; (2) the appointment would unreasonably
burden the lawyer; or (3) the lawyer finds the
appointment so repugnant that he would not be
able to effectively represent the client. Attorneys
often perform pro bono work in order to
contribute to their community and create
goodwill for the firm.
Public Legal Services
Legal services organizations exist in all states to
provide free or low-cost legal services to
qualified persons. Legal services offices are
funded by a variety of sources, including private
businesses, private individuals, the interests
from lawyer trust accounts, and federal, state,

and local governments. Civil matters such as
bankruptcies, divor ces, and landlord-tenant
disputes are handled by
LEGAL AID agencies.
Criminal matters are handled by state public
defenders.
Private Legal Services
Some organizations sell “legal insurance” for a
fee. Legal insurance is a form of prepaid legal
service in which the consumer pays a premium
to cover future legal needs. Such a service may
be offered through labor unions, employers, or
other private businesses. Most legal insurance
policies do not cover all types of legal matters,
and the policyholde r may not be entitled to
choose his lawyer. The consumer should
determine the scope and nature of the legal
representation offered in legal insurance
packages.
Other Considerations
If a client does not believe he or she has received
competent legal representation, the client has
several options. In a criminal case, if a convicted
defendant believes he received incompetent
representation, the defendant can address the
issue on appeal, and the appellate court may
reverse th e verdict. If a client believes that an
attorney has committed misconduct, the client
may contact the board of
PROFESSIONAL RESPONSI-

BILITY
in the state in which the attorney practices.
If an attorney is found to have violated the law or
the applicable professional conduct code, the
attorney is subject to discipline by the board.
Discipline can range from a reprimand to
revocation of the attorney’slicense.
In some states if an attorney and client have
a dispute over fees, the attorney may place a lien
on the client’s money or
PERSONAL PROPERTY.
There are two types of attorney liens: a retaining
lien and a charging lien. A retaining lien gives
the attorney the right to retain money or
property belonging to the client until the client
pays the bill. The attorney does not have to go
to court to do this, but the judge may order a
hearing at the request of the client to determine
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
280 LEGAL REPRESENTATION
whether the attorney has good reason to keep
the money or property.
A charging lien gives an attorney the right to
be paid from the proceeds of a lawsuit. For
example, if an attorney charges a client a
contingency fee and the attorney wins a large
monetary award for the client, the attorney is
entitled to a predetermined share of the award.
Generally, the attorney may keep a certain
amount for services rendered even if he was

fired by the client. However, if a court finds that
the client properly fired the attorney for
misconduct, the attorney may not be entitled
to any portion of the client’s award.
FURTHER READINGS
Editors of Court TV and The American Lawyer. 1995. The
Court TV Cradle-to-Grave Legal Survival Guide. Boston:
Little, Brown.
“How to Hire an Attorney.” In Consumer Guidebook to Law
and Leading Attorneys Joseph P. Mitzel, ed. Minnea-
polis: American Research Corporation
Latto, Lawrence J. 1998. “The Restatement of the Law
Governing Lawyers—A View from the Trenches.”
Hofstra Law Review 26.
McKay, John. 2000. “Federally Funded Legal Services: a New
Vision of Equal Justice Under Law.” Tennessee Law
Review 68 (fall).
Morgan, Thomas D. 2007. 2008 Selected Standards on
Professional Responsibility. Eagan, MN: West.
Morgan, Thomas D., and Ronald D. Rotunda. 2008. Morgan
and Rotunda’s Professional Responsibility, Problems and
Materials. 10th ed. St. Paul, MN: Foundation.
Peters, Jean Koh. 2007. Representing Children in Child
Protective Proceedings: Ethical and Practical Dimensions.
3d ed. Albany, NY: Matthew Bender.
Watson, Sidney D., ed. 2001. Representing the Poor and
Homeless: Innovations in Advocacy. Washington, D.C.:
American Bar Association, Commission on Homeless-
ness & Poverty. Available online at net.
org/homeless/RepresentingTh ePoorandHomeless.pdf;

website home pa ge: net .org (accessed
August 6 , 2009).
CROSS REFERENCES
Attorney-Client Privilege; Attorney Misconduct; Attorney’s
Lien; Client Security Funds; Ethics, Leg al; Legal Advertising;
Legal Malpractice; Practice of Law; Professional Responsi-
bility; Right to Counsel.
LEGAL REPRESENTATIVE
In its broadest sense, one who stands in place of,
and represents the interests of, another. A person
who overs ees the legal affairs of another. Examples
include the executor or administrator of an estate
and a court appointed guardian of a minor or
incompetent person.
This term is almost always held to be
synonymous with the term personal representative.
In accident cases, the member of the family
entitled to benefits under a wrongful death statute.
LEGAL RESERVE
Liquid assets that life insurance companies are
required by statute to set aside and maintain to
assure payment of claims and benefits. In banking,
that percentage of bank deposits that must by law
be maintained in cash or equally liquid assets to
meet the demands of depositors.
LEGAL RESIDENCE
The place of domicile—the permanent dwelling—to
which a person intends to return despite temporary
abodes elsewhere or momentary absences.
A person can have several transitory resi-

dences, but is deemed to have only one
LEGAL
RESIDENCE
.
LEGAL RIGHT
An interest that the law protects; an enforceable
claim; a privilege that is created or recognized by
law, such as the constitutional right to freedom of
speech.
LEGAL SERVICES CORPORATION
The Legal Services Corporation (LSC) is a private,
nonprofit organization established by Congress
in 1974 to provide financial support for legal
assistance in civil matters to people who are poor
(Legal Services Corporation Act of 1974, 42 U.S.
C.A. § 2996 et seq.). The LSC receives funds from
Congress and makes grants to local nonprofit
programs run by boards of directors made up of
local lawyers, community leaders, and client repre-
sentatives. LSC support is an essential part of
LEGAL A I D fu nding in the United States. However,
the organization has attracted opposition from
fiscal conservatives who wish to abolish it.
The federal government began to make
direct grants to legal aid organizations in 1965,
during President
LYNDON B. JOHNSON’swaron
poverty. Studies revealed that states were doing
an inadequate job of providing legal assistance to
people who were poor, especially in the South,

the Southwest, and much of the Midwest. The
Legal Services Corporation (LSC) was estab-
lished in 1974, during the Nixon administration,
to establish a structure for distributing funds to
qualified local providers of legal aid that was
permanent and immune to political pressure.
The LSC is governed by an 11-member
board of directors, appointed by the
PRESIDENT
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
LEGAL SERVICES CORPORATION 281
OF THE UNITED STATES with the ADVICE AND CONSENT
of the Senate. No more than six members may
be of one political party, and at least two
members must be eligible clients. Through its
Office of Field Services and its regional offices,
the LSC distributes grants to legal services
programs operating in neighborho od offices in
all 50 states, the
DISTRICT OF COLUMBIA, Puerto
Rico, the Virgin Islands, and Micronesia. Less
than 5 percent of its budget is spent on the
administration costs for the home office; the
rest goes to community programs.
The LSC supports local legal aid programs
through training, research, sharing of infor-
mation, and technical assistance. LSC funding
goes to 137 independent nonprofit legal aid
programs with 923 offices throughout the
country. It also funds 16 national support

centers that provide specialized assistance to
attorneys in representing their clients. Most of
these support centers specialize in substantive
areas of the law, such as housing, administrative
benefits, and health. Others specialize in the
unique legal problems of particular groups,
such as Native Americans, migrant farm work-
ers, immigrants, and older people. Staff mem-
bers of the support centers may become directly
involved in litigation on behalf of their clients.
The 2009 LSC budget was $350 million.
General research is conducted by the LSC
Institute on Legal Assistance. The institute is
devoted to substantive study of the broad range of
legal problems encountered by poor people that
relate to the services provided by legal aid
programs. The research projects of the institute
fall into five broad categories: problems posing
the most serious consequences to people who are
poor, such as income security and health benefit
programs; gaps in substantive poverty law, such
as rural issues; studies of agencies that provide
benefits to people who are poor, such as
WELFARE
agencies and public hospitals; projects to prevent
legal controversies and to create new procedures
for settling disputes; and ways to evaluate how
special legal institutions such as housing and
small-claims court affect people who are poor.
The institute also conducts seminars and holds

meetings on these topics and others that deal with
the effect of the law on poor people.
The LSC has been under attack for many
years by conservative politicians and other
groups that allege that the legal aid programs it
funds have engaged in political and lobbying
activities, often at the expense of providing legal
services needed by people who are poor. Critics
argue that the LSC has been the legal pillar of the
welfare state, opposing efforts by conservatives to
rein in government programs. Congressional
Republicans have sought either to drastically
reduce funding of the LSC or to abolish the LSC
altogether. Such efforts have had an impact on
the LSC. Congress allocated $415 million for the
program in 1995, compared with $350 million in
2009. The LSC budget would need to be raised
by 30 percent to achieve parity in real dollars
with the 1995 budget.
In 2006 the LSC approved a document
entitled Strategic Directions 2006–20010. The
report listed a series of strategic decisions that
were needed to implement two goals: increasing
public awaren ess of, and support for, civil legal
services to low-income persons and enhancing
the quality and compliance of legal services
programs. Strategies for achieving these goals
include use of better communication, technology,
and improved program oversight.
FURTHER READINGS

Heritage Foundation. 1995. Why the Legal Services Corpora-
tion Must Be Abolished, by Kenneth F. Boehm and Peter
T. Flaherty. Backgrounder no. 1057. October 18.
Legal Services Corporation
ELIGIBLE CASES CLOSED, BY TYPE, IN 2007
SOURCE: Le
g
al Services Corporation, Fact Book 2007, June 2008.
Consumer
11.5%
Education 0.7%
Employment
2.3%
Health
3.3%
Family
37.6%
Juvenile
0.9%
Income
maintenance
11.4%
Housing
25.2%
Individual rights
1.5%
Other
5.6%
ILLUSTRATION BY GGS
CREATIVE RESOURCES.

REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
282 LEGAL SERVICES CORPORATION
Legal Services Corporation. Available online at www.lsc.gov
(accessed July 20, 2009).
Vivero, Maurico. 2002. “From ‘Renegade’ Agency to
Institutional Justice: The Transformation of Legal
Services Corporation.” Fordham Urban Law Journal.
1323.
CROSS REFERENCES
Equal Protection; Legal Aid
LEGAL SPECIALIZATION
State-regulated legal certification programs
allow attorneys to be recognized as “board-
certified” experts in their practice areas. The
certification process is overseen either by state
bar associations or state supreme courts and is
designed to prevent the public from being
misled by unscrupulous attorneys who claim
they are specialists without having
BONA FIDE
credentials to back up the claim. As of 2007,
18 states had adopted legal certification programs.
LEGAL SPECIALIZATION certification had been
debated for decades, but the argument heated
up in the 1970s and early 1980s, when federal

and state courts struck down rules that
prohibited attorneys from advertising in the
media and in telep hone books. As phone
companies began to sell advertising in different
fields of law, national bodies such as the
National Board of Trial Advocacy (NBTA)
began certifying specialists in civil and criminal
litigation, and lawyers continued to become
more specialized in their practices. By the late
1980s, certified legal specialist programs had
gained momentum. The
AMERICAN BAR ASSOCIA-
TION
(ABA) set up a Standing Committee on
Specialization and, in 1993, adopted a set of
voluntary standards. In addition, the ABA
agreed to accredit private national certification
programs that met the ABA standards. By 2007,
more than 25,000 U.S. lawyers had been
accredited as legal specialists.
Certification rules vary from state to state,
but each lawyer must fulfill four major
requirements to be deemed a certified specialist.
He or she must provide evidence of substantial
involvement in the specialty area and references
from lawyers and judges. He or she must have
completed 36 credit hours of specialty
CONTINU-
ING LEGAL EDUCATION
(CLE) in the three years

preceding the application. He or she must have
been admitted to practice and be a member in
good standing in one or more states. Finally,
he or she must be recertified at least every five
years and be subject to revocation of the
certification for failure to meet the program’s
requirements.
State legal certification boards accredit
independent agencies to perform the actual
testing and certification. This process minimizes
the costs incurred by the certification boards
and places the cost of the programs on the
lawyers who wish to be certified and who must
pay application fees to the independent agen-
cies. National organizations that are authorized
to certify specialists include the NBTA, the
American Board of Certification, and the
National
ELDER LAW Foundation. In addition,
many state bar associations are authorized to
certify specialists. Eleven certification programs
have been accredited. The specialties include
civil trial practice;
CRIMINAL LAW; FAMILY LAW trial
advocacy; business and consumer
BANKRUPTCY;
creditor’s rights; legal, medical, and accounting
professional liability; elder law; and estate
planning law.
FURTHER READINGS

American Bar Association. Standing Committee on Special-
ization. Available online at www.abanet.org/legalservices/
specializatio n/hom e.ht ml (acc ess ed Nov embe r 21,
2009.)
Hobson, Wayne K. 1986. The American Legal Profession and
the Organizational Society, 1890–1930. New York:
Garland.
LEGAL TENDER
All U.S. coins and currencies—regardless of when
coined or issued—including (in terms of the
Federal Reserve System) Federal Reserve notes and
circulating notes of Federal Reserve banks and
national banking associations that are used for all
debts, public and private, public charges, taxes,
duties, and dues.
LEGAL TITLE
Ownership of property that is cognizable or
enforceable in a court of law, or one that is
complete and perfect in terms of the apparent right
of ownership and possession, but that, unlike
equitable title, carries no beneficial interest in the
property.
LEGALESE
Slang; technical jargon used by attorneys that is
often beyond the comprehension of the nonlawyer.
States enact “plain English” laws that
require the translation of legalese into everyday
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
LEGALESE 283
language to permit consumers to understand

thei insurance policies, deeds, mortgages, leases,
credit card financing agreements, and other
legal documents.
v
LEGARE, HUGH SWINTON
Hugh Swinton Legare was a lawyer, a legal
scholar, and an attorney general of the United
States under President
JOHN TYLER.
Born January 2, 1797, in Charleston, South
Carolina, to a wealthy French Huguenot father,
both Legare and his sister, Mary, enjoyed a
privileged upbringing and social advantages. But
the family’s money and influence could not cure
the boy’s severe physical deformity. Prevented
from strenuous physical activity, Legare turned
his attention to scholarly pursuits, at which he
excelled.
Legare studied at Moses Waddel’s Academy
and the College of South Carolina and graduated
in 1814. He worked toward degrees in law
and languages in the United States (1814–17)
and in Scotland (1818–19). Legare’s interest
in Roman and
CIVIL LAW was developed at
Edinburgh University under the tutelage of
Professor Dugald Stewart. Stewart, a disciple
of legal philosopher Friedrich von Savigny,
praised the systematic character of
ROMAN LAW,

and argued that Anglo-American
COMMON LAW
could be made more precise and scientific by
the application of the principles of deductive
reasoning. Legare embraced the notion that
law—like geometry—could be treated as a
deductive science, and it became a lifelong
interest.
Legare wrote extensively on law, legal
philosophy, and classical literature throughout
his life. As a young man, he partnered with
botanist Steven Elliot, Sr., and other prominent
Charleston intellectuals to establish a quarterly
magazine that was devoted to all disciplines of
scholarly writing. According to its masthead, the
Southern Review proposed “to offer to our
fellow citizens one Journal in which they may
read without finding themselves the objec ts of
perpetual sarcasm.” Legare was a principal
contributor until the death of his partner and
the demands of his political career caused the
magazine to fold.
Legare entered politics shortly after his
return to the United States in 1819. He settled
on St. John’s Island, off the South Carolina
coast, with the intention of developing a cotton
plantation, but his physical limitations soon
forced a change of plans. Within a year, he was
Hugh S. Legare.
LIBRARY OF CONGRESS.

Hugh Swinton Legare 1797–1843
▼▼
▼▼
17751775
18501850
18251825
18001800
◆◆
◆◆◆◆
❖❖
1775–83
American Revolution
1789 U.S.
Constitution ratified
1797 Born,
Charleston, S.C.
1814 Graduated from the
College of South Carolina
1818–19 Studied law in Scotland
1828–32 Co-founded and edited Southern Review
1830 Appointed state attorney general
1832 South Carolina passed Ordinance of Nullification
against tariff act; appointed U.S. chargé d'affaires to
Brussels
1820–22 and
1824–30 Served in
South Carolina
state legislature
1841 Appointed attorney
general of the United States

1837–39
Served in
U.S. House
1843 Died,
Boston, Mass.
1833 Congress passed compromise tariff;
South Carolina repealed its act
OUR COUNTRY
EXHIBITS THE LAST
SPECIMEN OF THAT
FORM OF
GOVERNMENT
, WHICH
HAS DONE SO MUCH
FOR THE DIGNITY AND
HAPPINESS OF MAN
.
—HUGH SWINTON
LEGARE
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
284 LEGARE, HUGH SWINTON
elected to represen t St. John’s Island in the
South Carolina state legislature.
In 1822 Legare gave up his plantation and
moved back to his family home in Charleston.
He practiced law and campaigned for re-election
to the state legislature—this time as a representa-
tive from Charleston. He was elected in 1824 and
served until 1830, when he was named state
attorney ge neral.

During Legare’s tenure as state attorney
general, the nullification crisis in South Carolina
came to a head. (Nullification is a doctrine
that asserts the right of a state to prevent within
its borders the enforcement of an act of the
federal government that is not authorized by
the U.S. Constitution as interpreted by the
highest legislative authority of the state.) Con-
vinced that the 1828 and 1832 federal tariff
laws favored Northern industry and threatened
Southern
SLAVERY, the South Carolina legislature
declared them to be unconstitutional and
threatened to secede from the Union if the
federal government moved to enforce them.
Legare opposed the nullification group, spoke on
behalf of the Union, and cautioned the federal
government against any exercise of authority
that might “tip the political balance … toward
the nullifiers” and stir the citizens to secession.
For his efforts he was rewarded with a diplomatic
post in Brussels. Legare was named U.S. chargé
d’affaires in 1832.
After fulfilling his obligations in Brussels
and enjoying an extended tour of Europe,
Legare returned to the United States in the fall
of 1836. On his return, he was elected as a
Union Democrat to represent South Carolina in
the U.S. Congress. He was defeated in the 1838
election because his view of fiscal policy did not

coincide with that of his constituents.
Following his defeat, Legare returned to
Charleston and, for the first time in his career,
concentrated on the
PRACTICE OF LAW. He tried a
number of important cases and made his mark
in the South Carolina and federal courts. U.S.
Supreme Court justice
JOSEPH STORY said, “His
argumentation was marke d by the closest logic;
at the same time he had a presence in speaking
I have never seen excelled.”
Legare also returned to writing, authoring
articles on Demosthenes, Athenian democracy,
and Roman law. During the presidential
campaign of 1840, Legare affiliated with the
WHIG PARTY, and he began a series of articles in
support of
WILLIAM HARRISON, and later Tyler,
which appeared in the New York Review.
In appreciation for his support, President
Tyler named Legare to be attorney general of
the United States in 1841. Because of his
foreign-service experience in Belgium and his
thorough knowledge of both civil and
INTERNA-
TIONAL LAW
, Legare was a highly regarded
member of the cabinet. As attorney general,
Legare replaced

DANIEL WEBSTER on the Ashbur-
ton Treaty Commission. He is credited with
contributing important portions of the treaty
that pertained to the right of search.
When Webster resigned as
SECRETARY OF
STATE
in May 1843, Legare assumed a number of
his duties and was named secretary
AD INTERIM.
A month later, on June 20, 1843, Legare died
suddenly while accompanying President Tyler
to the dedication of the monument at Bunker
Hill, in Boston.
FURTHER READINGS
Cain, Marvin R. 1978. “Return to Republicanism: A
Reappraisal of Hugh Swinton Legare and the Tyler
Presidency.” South Carolina History Magazine 79.
Catalogue of the Library of the Honorable Hugh Legare. 1843.
Washington, D.C. In the Caroliniana Collection, Univ.
of South Carolina.
Catalogue of the Rare and Valuable Private Library of the Late
Honorable H.S. Legare. 1848. Washington, D.C. In the
Caroliniana Collection, Univ. of South Carolina.
Welsh, John R. 1971. “An Early Pioneer: Legare’s ‘Southern
Review’.” The Southern Literary Journal 3, no. 2
(spring).
Wilson, James Grant, and John Fiske, eds. 1888–1889.
Appleton’s Cyclopaedia of American Biography. New
York: Appleton.

LEGATEE
A person who receives personal property through a
will.
The term legatee is often used to denote
those who inherit under a will without any
distinction between real property and
PERSONAL
PROPERTY
, but technically, a devisee inherits real
property under a will.
LEGATION
The persons commissioned by one government to
exercise diplomatic functions at the court of
another, including the minister, secretaries,
attachés, and interpreters, are collectively called
the leg ation of their government. The word also
denotes the official residence of a foreign minister.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
LEGATION 285
LEGES HENRICI
[Latin, Laws of Henry.] A book written between
1114 and 1118 containing Anglo-Saxon and
Norman law. It is an invaluable source of
knowledge of the period preceding the full
development of the Norman law.
LEGISLATE
To enact laws or pass resolutions by the lawmak-
ing process, in contrast to law that is derived from
principles espoused by courts in deci sions.
LEGISLATION

Lawmaking; the preparation and enactment of
laws by a legislative body.
Legislative bodies exist to enact legislation.
The legislative process is a series of steps that a
legislative body takes to evaluate, amend, and
vote on proposed legislation. The U.S. Con-
gress, state legislatures, county boards, and city
councils engage in the legislative process. Most
legislation is enacted by Congress and state
legislatures. Implementation of legislation is left
to other entities, both public and private, such
as law enforcement agencies, the courts, co m-
munity leaders, and government agencies.
Legislative Bills
Legislation begins with the submission of a bill
to the legislature for consideration. A bill is a
draft, or tentative version, of what might
become part of the written law. A bill that is
enacted is called an act or statute. The select ion
of appropriate and clear language for the
proposed piece of legislation is critical. Legisla-
tors need to understand what is intended by the
bill and who will be affected by it.
A bill is amended to accommodate interested
and affected groups and to eliminate technical
defects. More legislative attention is generally
devoted to decisions on amendments than to
disputes over whether a bill will be passed.
An able legislator or supporter of a piece of
legislation constantly seeks ways to silence

opposition or convert opponents into suppor-
ters. Many important provisions that finally
become law are adjusted by amendments in
order to accommodate conflicting viewpoints.
Sources of Legislation
Ideas for legislation come from many sources.
Legislators who have experience and knowledge
in a particular field introduce bills that they
think will improve or correct that field. They
often copy existing legislation because an idea
that works well in one jurisdiction can be useful
in another. For example, in the 1970s, legisla-
tion that created “no-fault” divorces was copied
from state to state.
Legislators receive proposals from the
National Conference of Commissioners on
Uniform State Laws, a coalition of over three
hundred lawyers, judges, and law professors,
who are appointed by the states. Conference
members draft proposals of uniform and
MODEL
ACTS
. Such acts attempt to establish uniformity in
a single legislative area. For example, the
UNIFORM
PROBATE CODE
is an attempt to standardize U.S.
probate law, and has been widely enacted.
The Council of State Governments, the
American Law Institute, the

AMERICAN BAR
ASSOCIATION
, and numerous othe r organizations
all produce model acts for legislatures. Even if a
uniformormodelactoralawusedina
neighboring state is not totally applicable, it is
easier to edit and revise it than to draft a new one.
Legislation is not motivated solely by
existing ideas. Modern legislation is often
concerned with changing or protecting social
and economic interests. Interest groups usually
become involved in the legislative process
through lobbyists, who are persons they
hire to act for them. Often lobbyists work to
protect the
STATUS QUO by defensive lobbying,
that is arguing against a piece of legislation.
Other times lobbyists propose a bill. Whether
opposing or proposing change, lobbyists typi-
cally inform legislators about the expected
effect that legislation will have on their particu-
lar interest group. Lobbyists also influence
legislation through financial contributions to
the political campaign committees of legislators.
Modern legislatures have a large staff that
helps prepare legislation. On occasion, studies
are authorized when a problem is recognized
and no solution is readily available. Major
legislation often starts with a blue-ribbon
legislative commission, which might include

citizen members and an independent staff from
the academic community. A handful of states
have created permanent law revision commis-
sions, which operate independen tly of the
legislature.
In addition, most states have independent
offices that act as editors, putting legislative
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
286 LEGES HENRICI
ideas into formal, statutory language that con-
forms to current usage in the jurisdiction.
Modern legislation has become increasingly
lengthy and complex, making it difficult for a
single legislator to craft a bill alone.
Legislative Procedure
The procedure by which legislation is enacted
varies within the following general structure.
A constitution is the basic charter for
governments in the U.S. legal system. Constitu-
tions typically specify that some kinds of legis-
lation, like a capital expenditure, require an
extraordinary vote, such as passage by two-
thirds rather than by a simple majority. Three
separate readings, or announcements, of a bill
to the full house, are commonly required before
a vote can be taken. Some constitutions require
a detailed reading each time, but legislatures
have found ways to circumvent this mandate.
Constitutions often require an affirmative
vote by a majorit y of all the members of a

house, not merely those present, in order to
pass a bill. They can also require that the names
of members voting aye and nay be recorded in
the journal of the legislative body. Constitutions
can author ize the executive to veto legislation,
and establish a procedure for the legislature to
override a veto. Sometimes a specific period of
time is prescribed for the legislative session or
term, and all work must be completed before
expiration of the session.
It is common for a constitution to require
that a bill pertain to only one subject, which
must be expressed in the title of the bill. For
example, An Act to Increase the State
SALES TAX
from Six to Seven Percent is a proper title for a
bill that does exactly that and nothing else. This
requirement efficiently packages legislative
work, significantly affecting procedure, order,
and efficiency. It does not apply to the U.S.
Congress, but often applies to state and local
legislatures.
Each legislature adopts its own rules to detail
the organization and procedure of its body. A
standard version of legislative rules is often
adopted to cover any situation not governed
by a specific rule. Legislatures frequently need
to depart from regular procedure in order
to accomplish tasks. Therefore, special rules
usually provide for the suspension of normal

procedure, when necessary. A rules suspension
can be allowed only by a two-thirds vote.
Some of the work of the legislature can be
accomplished by resolution rather than by bill.
A resolution is used to settle internal matters or
to make a public pronouncement without
enacting a law. Resolutions are used to adopt
the rules of the house, to establish committees,
to initiate investigations, and to authorize and
hire legislative employees. Even more mundane
daily work can be accomplished by a motion on
the floor. A motion lacks the formality of a
resolution in that it cannot be formally
announced and printed in the record.
A resolution takes one of several forms. A
senate resolution or assembly resolution is
adopted by on ly one house. A
JOINT RESOLUTION
originates in one house and then is passed in the
other house, having the full force of official
legislative action. This is the customary form for
proposing state constitutional amendments and
ratifying amendments to the U.S. Constitution.
A
CONCURRENT RESOLUTION, like a joint resolution,
originates in one house and is assented to by the
other. It lacks the legal effect of a normally
adopted joint resolution, and is often used to
express an opinion. Petitions from state legis-
latures to the president or to the U.S. Congress

are drawn as concurrent resolutions. Commen-
dations to persons who have performed socially
significant deeds and to victorious athletic
teams are typical concurrent resolutions.
The Enactment of a Bill
A bill must follow certain customary steps
through a legislature. It is introduced by an
elected member who acts as a sponsor. The
chief sponsor, who might or might not be the
author of the bill, is the legislator who manages
the bill as it progresses through the body and
who explai ns it to other legislators. The bill may
also have cosponsors, who attach their names to
the bill to add support.
When the bill is introduced, it is referred to
a standing committee. Whenever possible the
bill’s sponsors and the legislative leade rship
attempt to steer the bill to a particular
committee. In most legislatures there is room
for discretion in the reference of bills. Major
legislation might have to be referred to several
committees, so the issue might be who receives
it first.
Once the bill is referred, the committee
must be convinced to place it on the agenda so
that it can be considered and passed. The
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
LEGISLATION 287