Legal Issues

INTERNATIONAL ARBITRATION
CASE SUMMARY

Introduction
The case was instituted by spouses George and Miriam Nicola and their company, George and Miriam Nicola Pty Limited before the Federal Court of Australia against Ideal Image Development Corporation Incorporated (Ideal) and its officer, John Pace, on the basis of Ideals breach of the Franchise Agreement entered into between the parties. They claim that Ideal did not perform its obligations to them as franchisees. Ideal sought an application to stay the proceedings in accordance with the arbitration clause of the Franchise Agreement and pursuant to Section 7(2) of the International Arbitration Act of 1974 governing the enforcement of foreign arbitration agreements. Ideal Image likewise based its application on clause 40 of the Franchise Agreement which states that the Franchise Agreement and the franchise right granted in the said Agreement shall be governed by and construed under the laws of the State of Florida, save to the extent that the same is governed by federal law. The spouses Nicola, on the other hand, opposed the application to stay the proceedings, raising the arguments that the matter complained of falls outside the ambit of the arbitration clause as the issues involve competition laws, the same is impressed with public interest and may not be the subject of arbitration, and the absence of mediation proceedings between the parties precludes the conduct of arbitration, among others.

The Court ruled in favor of staying the proceedings in view mainly of the arbitration clause and exclusive jurisdiction clauses of the Franchise Agreement. In holding that the certain matters complained of by the Nicolas are proper subjects of arbitration, the Court held that in the context of the reach of arbitration clauses, the phrase arising out of or relating to has been construed by the Florida Supreme Court to be broad terms encompassing virtually all of the disputes between the contracting parties. The Court, speaking through Justice Perram, further explained that

Little illumination is obtained by considering whether the claims relate to Ideals business as franchisor. The question, as a matter of the text of clause 31(a), is simply whether a particular claim relates to the franchisees operation of the franchised business. That question is not to be answered at a theoretical level - it is to be answered by looking at the claims which are, in fact, made and comparing them with the operation of the franchisees business to see if there is a rational nexus.

The Court then clarified that the said nexus is satisfied by the relationship between the parties as franchisor and franchisee. The Court held that the usage of said words in the clause of the Franchise Agreement operated essentially as if it referred to any claim arising out of the agreement. As the alleged non-performance of obligations as franchisor constitutes a claim which relates to the franchisees operation of the business, then clause 31 of the Franchise Agreement is controlling, and hence, the proceedings need to be held in abeyance for purposes of bringing the grievances involving the franchisors non-performance of its obligations to arbitration. The Court failed to see how the Nicolas can say that their claims are not related to their operation of the franchised business. A perusal of the complaints of the Nicolas would show that each of the claims relates to deficiencies in Ideals support for the Nicolas in their operation of the franchise. For instance, the spouses Nicola complained of deficiencies in the computer software provided to them by Ideal, and Ideals failure to effectively advertise the franchised business. The Court found it hard to understand how majority of the claims of the spouses Nicola are not related to the franchised business when the losses which they are claiming, in a real sense, are losses to the franchised business and it is thus difficult to understand how the said losses could be said not to relate to the operation of the franchised business. The Court ruled that although the said claims of the Nicolas do not arise out of the operation of the franchised business, the same relates to the operation of the business, in which case, the claims still fall within clause 31 of the Franchise Agreement.

It is noteworthy, however, that not all of the claims of the Nicolas were found by the court as proper subjects of arbitration. For instance, the claim as regards the termination restraints imposed by the Franchise Agreement was found by the court to be outside the coverage of the arbitration clause. The Court held that the only nexus between the post termination restraints imposed by the contract and the operation by the Nicolas of the franchised business is that the parties are the same and that they have in common their previous agreement. This being the case, the Court held that the said claim may not be arbitrated. In the same light, the Court likewise held that the claim of the Nicolas to set aside the Franchise Agreement is not capable of settlement within the meaning of Section 7(2)(a) of the IAA and hence, not subject to arbitration.

As regards the said claims of the Nicolas which do not relate to the franchisees operation of the franchise business, and are outside the coverage of the arbitration clause, the Court said that clause 40 of the Franchise Agreement shall govern, in which case, staying the proceedings is still in order regardless of the fact that the said matters are not proper subjects of arbitration. Clause 40 of the Franchise Agreement provides that

All claims which, as a matter of law or public policy cannot be submitted to arbitration in accordance with Paragraph 31 shall be brought within the State of Florida in the judicial district in which Ideal Image Development Corporation has its principal place of business ... Franchisee irrevocably submits to the jurisdiction of such courts and waives any objection Franchisee may have to either the jurisdiction or venue of such court.

According to the Court, the effect of clause 40 is to require all claims between the parties that are not subject to arbitration - in this case those parts of the claims relating to the setting aside of the agreement and the post termination restraint issues - to be determined by the courts of Florida, and thus, proceedings before the Federal Court of Australia must be stayed. As parties to the Franchise Agreement, spouses Nicola have consented to the exclusive jurisdiction of the court in Florida in relation to matters that do not fall within the arbitration clause of the Franchise Agreement, and thus, they are bound to respect the said jurisdiction. The Court explained further that the principles governing the grants of a stay of proceedings which are commenced in defiance of an exclusive jurisdiction clause are well established, and quoted Justice Brandon, to wit

(1) Where plaintiffs sue in England in breach of an agreement to refer disputes to a foreign court, and the defendants apply for a stay, the English court, assuming the claim to be otherwise within its jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not. (2) The discretion should be exercised by granting a stay unless strong cause for not doing so is shown. (3) The burden of proving such strong cause is on the plaintiffs. (4) In exercising its discretion the court should take into account all the circumstances of the particular case.

Based on the foregoing, the Court ordered that the proceedings should be held in abeyance in view of the deference due the courts in Florida. The Court likewise rejected any principle which would require the presentation of evidence showing that the courts of Florida are capable of exercising jurisdiction under the TPA. Following the aforementioned ruling of Justice Brandon, the Nicolas would need to establish by clear evidence that their claim was not recognizable before the courts of Florida. Unfortunately, for the spouses Nicola, that evidentiary onus has not been discharged, and hence, staying of the proceedings is in order.

The Court, in ruling in favor of the stay of the proceedings, likewise discussed the importance of public interest in determining whether the dispute between the parties may be the subject of arbitration. As an example, the Court stated that suits concerning competition law have frequently been cited as examples of claims unsuitable, by reason of public policy, for arbitration. The Court, citing Comandate Marine Corp vs. Pan Australia Shipping Pty Ltd, said that The types of disputes which national laws may see as not arbitrable and which were the subject of discussion leading up to both the New York Convention and the Model Law are disputes such as those concerning intellectual property, anti-trust and competition disputes, securities transactions and insolvency. The guidelines laid down in the said case likewise establish how the Federal Court is supportive of the arbitration process as a means of putting an end to international commercial disputes in an amicable and peaceful manner. The Court then discussed the claims of the Nicolas and whether the ruling in Comandate finds application. In their application, the competition laws identified by the Nicolas were laws prescribing industry standards and laws prescribing unconscionable or misleading conduct in trade and commerce, which the Court found to be anti-competition laws. The Court, however, failed to agree with the Nicolas that the same is impressed with public interest so as not to be subject to arbitration. The Court held that the issues lacked the element of broad public interest in the outcome to warrant the conclusion that only the local national courts should be involved in their resolution.

In view of the foregoing, the Court ruled that the claims of the Nicolas to set aside and vary the agreement, together with the matter involving the post termination restraints, must be heard in the court of Florida, but the balance should be arbitrated pursuant to clause 31(a). It follows, therefore, that the proceedings before the Federal Court of Australia need to be stayed to render effective the said ruling of the Court.

Background Information
On or about 1 September 2004, the Nicolas and Ideal entered into a Franchise Agreement whereby Ideal agreed to grant the Nicolas the exclusive right to conduct the franchised business under the name Ideal Image. The said Agreement concerned the operation of business involving technologically advanced lasers for hair and skin removal, and also for botox application and injection therapy in certain parts of Sydney. It was unfortunate, however, that the Nicolas were not happy with their relationship with Ideal as franchisees. They had grievances as regards the non-performance of Ideal of its obligations under the Franchise Agreement. According to the Nicolas, they were provided with inadequate or non-existent assistance Ideal did not own relevant intellectual property in Australia, and that they were informed that an Ideal franchise would have certain qualities which Ideal did not have. The spouses likewise claimed that Ideals failure to properly advertise the franchise had an impact on the smooth running of the business and, its profitability. They claimed entitlements to restitution of franchise fees paid to Ideal and for damages for breach of contract pursuant to section 52 of the Trade Practices Act of 1974 also, for unconscionable conduct contrary to section 51AC of the said Act and infringement of the Franchisors Code of Conduct which is contrary to the requirements of the Trade Practices Act. The spouses put forward their claim in view of the amount of money that they spent pursuant to the Franchise Agreement.  The Nicolas contend that they paid franchise fees, purchased laser machines and spent substantial money in such amount in excess of US402,900 for the commencement and operation of the franchised business. They also argued that they suffered substantial amount of losses in carrying on the business. Additionally, the Nicolas also sought relief in relation to certain restraints on their ability to compete imposed by the Franchise Agreement. The Nicolas likewise alleged that the consideration for the Franchise Agreement failed either in whole or in part as royalties paid by them were incorrectly calculated by reference to revenue from which GST had not yet been deducted.

On the basis of the foregoing grievances of the Nicolas, they instituted an action before the Federal Court of Australia against Ideal. In response thereto, Ideal sought to stay the proceedings before the said Court in view of Clauses 31 and 40 of the Franchise Agreement. Clause 31 of the Franchise Agreement, or the arbitration clause, to wit

a) Except as provided in this Agreement, Ideal Image Development Corporation and Franchisee agree that any claim, controversy or dispute arising out of or relating to Franchisees operation of the Franchised business under this Agreement including, without limitation, those occurring subsequent to the termination or expiration of this Agreement, which cannot be amicably settled shall be referred to Arbitration in accordance with the Rules of the American Arbitration Association (AAA), as amended (and specifically including the optional rules). If such Rules are in any way contrary to or in conflict with this Agreement, the terms of this Agreement shall control. The Arbitrator shall apply the Federal Rules of Civil Procedure and the Federal Rules of Evidence to the extent possible while, in their discretion, still effecting the arbitration goal of streamlined administrative procedure. The parties hereto expressly agree that there will be no punitive damages awarded with respect to any Arbitration, regardless of each partys respective right to such damages under the choice of law provision herein. Only claims, controversies or disputes involving Franchisee and no claims for or on behalf of any other franchisee, franchisor or supplier may be brought by Franchisee hereunder. The law of the State of Florida shall govern the construction and interpretation of this Agreement in Arbitration.

b) The Arbitration proceedings shall be conducted before a single Arbitrator, selected in accordance with AAA Rules, and shall be a member of the bar of the State of Florida has been actively engaged in the practice of law for at least five (5) years. Prior to the commencement of hearings, the Arbitrator shall provide an oath of undertaking of impartiality.

c) Arbitration shall take place at Ideal Image Development Corporations principal place of business in Tampa, Florida. The award of the Arbitrator shall be final and judgment upon the award rendered in Arbitration may be entered in any Court having jurisdiction thereof. The costs and expenses of Arbitration, including compensation and expenses of the Arbitrators, shall be borne by the parties as the Arbitrator determines.

d) Any party to this Agreement may bring an action, including a summary or expedited proceeding to compel Arbitration of any such dispute or controversy, in a court of competent jurisdiction in the State of Florida and, further, may seek provisional or ancillary remedies including temporary or injunctive relief in connection with such dispute or controversy, without providing or posting any bond or security regardless of any legal requirements to do so, provided that the dispute or controversy is ultimately resolved through binding Arbitration conducted in accordance with the terms and conditions of this Agreement.

e) In proceeding with Arbitration and in making determinations hereunder, the Arbitrator shall not extend, modify or suspend any terms of this Agreement or the reasonable standards of business performance and operation established by Ideal Image Development Corporation in good faith. Notice of or request to or demand for arbitration shall not stay, postpone or rescind
the effectiveness of any termination of this Agreement.

It was advanced by Ideal that as the matters raised by the spouses Nicola as complaints necessarily relates to their performance of the franchised business, then the matter is a proper subject for arbitration, and that the Nicolas are bound to respect the provisions of the Franchise Agreement especially clause 31 which embodies the agreement of the parties to subject disputes to arbitration.

As regards matters that are not covered by clause 31, or those which are not proper subjects of arbitration, the application for the stay of the proceedings was based on clause 40 of the Franchise Agreement. Under the said clause of the Franchise Agreement between the Nicolas and Ideal,

Except to the extent governed by federal law, this Agreement and the franchise right granted herein shall be governed by and construed in accordance with the laws of the State of Florida. If, however, any provision, or portion hereof in any way contravenes the laws of any state or jurisdiction where this Agreement is to be performed, such provision, or portion thereof, shall be deemed to be modified to the extent necessary to conform to such laws, and still be consistent with the parties intent as evidenced herein. All claims which, as a matter of law or public policy cannot be submitted to arbitration in accordance with Paragraph 31 shall be brought within the State of Florida in the judicial district in which Ideal Image Development Corporation has its principal place of business provided, however, with respect to any action which includes injunctive relief, Ideal Image Development Corporation may bring such action in any court in any state which has jurisdiction. Franchisee irrevocably submits to the jurisdiction of such courts and waives any objection Franchisee may have to either the jurisdiction or venue of such court.

It was thus argued by Ideal that even if the matters in dispute fall outside the ambit of clause 31, the Federal Court of Australia will still have to stay the proceedings since under clause 40 of the Franchise Agreement, the parties agreed that disputes arising pursuant to the Franchise Agreement, but are not proper subjects of arbitration, shall be brought to courts of Florida.

Presentation of Arguments

George and Miriam Nicola

Matters complained of are outside the coverage of clause 31 of the Franchise Agreement

The spouses Nicola argued that the matters complained of are not covered by Clause 31 of the Franchise Agreement as said matters do not relate to the franchisees operation of the franchised business. According to the Nicolas, the suggested approach to interpreting the clause ignored the critical words the franchisees operation of the franchised business, leaving them merely as meaningless surplusage. The Nicolas added that it was Ideals misconduct which was the subject of their claim and not their own conduct. So viewed, that conduct could not be said to arise from the franchisees operation of the franchised business and could not, therefore, be within the terms of clause 31(a) of the Franchise Agreement. In view of the same, spouses Nicola posited that their grievances do not constitute matters which are cognizable by the arbitrator, and hence, there is no substantial ground for the Court to stay the proceedings. It was the view of the Nicolas that since their claim arises out of or relates to the operation of Ideals business as a franchisor, it cannot also relate to the operation of the franchisees business. The Court, however, did not accept this argument of the Nicolas as the same assumes that because the claim presented by the spouses arises out of or relates to the operation of Ideals business as a franchisor that it cannot at the same time relate to the operation of the franchisees business.

The Nicolas likewise argued that under Rule 43 of the rules of the American Arbitration Association (AAA), the relief that the arbitrator may award in arbitration is limited to those reliefs which fall within the ambit of the Franchise Agreement between the parties. Under clause 31 of the Franchise Agreement, the arbitrator is enjoined from extending, modifying or suspending the operation of the Franchise Agreement. Pursuant to the same, the Nicolas posited that since their claims for relief included claims for orders setting aside or varying the agreement, it followed that the arbitrator would not be able to deal with those parts of their claims. The Nicolas also submitted that their pleading attacked the arbitration clause itself pursuant to the TPA, and in view of the same, the issues raised may not be brought before arbitration proceedings.

Grievances involving competition laws are not proper subjects of arbitration

To further buttress their claim that their grievances are not proper subjects of arbitration, the Nicolas pointed out that parts of their case which depend upon issues of competition law are not suitable for arbitration and hence should not be the subject of a stay. The Nicolas supported the same by raising an established principle which renders disputes involving issues of public policy as matters that are not proper subjects of arbitration as said issues affect not only the parties to the case, but the public and the society as well. The competition laws identified by the Nicolas were laws prescribing industry standards and laws prescribing unconscionable or misleading conduct in trade and commerce. The Nicolas claim that since portions of their complaints are based on competition laws, the proceedings should not be stayed in view of the public interest involved in the resolution of the said issues raised by them.

The exclusive jurisdiction clause of the Franchise Agreement finds no application in the issues raised

As regards the grant of exclusive jurisdiction to the courts of Florida in respect of matters which are not brought before the arbitrator, the Nicolas argued that orthodox doctrine is that there is no common law basis for a stay of proceedings based on an exclusive jurisdiction clause. The Nicolas suggested that the Court should not stay their proceedings if there was a doubt that the courts of Florida could take cognizance of the issues. According to the spouses Nicola, if Ideal had failed to prove the contents of the law of Florida, then the law of Australia was to apply. The Nicolas also added that since there is no evidence about the law of Florida on this issue, and since it was less than self-evident that the courts of Florida did have jurisdiction under the TPA, the application for the stay of the proceedings should be refused.

It is the view of spouses Nicola that the clause on exclusive jurisdiction only finds application in cases involving matters which are not proper subjects of arbitration in view of some rule of law preventing arbitration or by some rule of public policy preventing arbitration. In this regard, the Nicolas asserted that since their claims are not capable of being subjects of arbitration proceedings in view of the fact that these claims falls outside the coverage of Clause 31 of the Franchise Agreement, Clause 40 on exclusive jurisdiction may not be applied, and there is no justification to stay the proceedings before the Federal Court of Australia. In refuting the claim of spouses Nicola, the Court found it more natural, and more consonant with the language of the clause to proceed upon the assumption that the claims referred to in clause 40 represent the universe of all claims with which the agreement could be concerned.

Mediation is a necessary precondition to the conduct of arbitration

The Nicolas also submitted that the matter could not be referred to arbitration absent any mediation conducted between the parties. The Nicolas posited that the conduct of a mediation proceeding between them and Ideal is a condition precedent before arbitration may proceed. They claim that the dispute should not be sent to arbitration unless there was first mediation between Ideal and the Nicolas as the arbitration clause of the Franchise Agreement required that the parties had been unable amicably to settle the dispute as condition precedent of its operation. As the parties have not yet been subjected to any conciliation or mediation proceedings, it was the stance of the Nicolas that the arbitration advanced by Ideal may not proceed.

Ideal Image Development Corporation Incorporated

Spouses Nicola are bound by their contract to arbitrate under Clause 31 of the Franchise Agreement

Ideal argued that since the grievances presented by the Nicolas are matters that relate to the franchisees operation of the franchised business, then said grievances are proper subjects of arbitration in accordance with Clause 31 of the Franchise Agreement. Ideal took the position that by consenting to clause 31 of the Agreement, the Nicolas are bound by their contract to arbitrate in the event of disputes which involve matters that fall within the scope of clause 31. As the acts complained of relates to the operation of the franchised business, then the dispute is subject to arbitration in accordance with the Franchise Agreement. To support its claim, Ideal also presented evidence from an expert about the laws of Florida in order to establish how clause 31 should be interpreted. Ideal presented Mr. Michael Gerard Murphy Esquire who is a lawyer in Florida. Mr. Murphy was asked to state what the law of Florida was in relation to the correct construction and interpretation of clause 31 of the Franchise Agreement. The Court found the expert testimony of Mr. Murphy useful in determining the sources of Florida law which may be used in understanding the arbitration clause of the Franchise Agreement.

Even if the complaints of the Nicolas are directly attributed to the acts of the franchisor, the same is still in relation to the business operations of the franchisees since everything which relates to the operation of the franchised business necessarily relates to the operation of the franchisees. In view of the same, the court proceedings need to be stayed and the dispute should be brought before the arbitrator.

Issues raised by the Nicolas are not tainted with public importance

As regards the contention of the Nicolas that their grievances are tainted with public importance and hence, should not be brought to arbitration, Ideal claimed that whilst there exists a principle that matters involving public interest are not proper subjects of arbitration, the said principle cannot be applied to the case at bar since the grievances raised by the Nicolas do not have that kind of quality. In relation thereto, the Court held that even if the Nicolas raised issues involving competition laws, the same is not sufficient to say that the matter affects public interest since the said issue so raised are not concerned with abuses or control of market power.

Spouses Nicola are bound by their agreement to be subject to the jurisdiction of the courts of Florida

Ideal also posited that even if the present proceedings were not required to be submitted to arbitration, the Nicolas had agreed by Clause 40 that any dispute that could not be referred to arbitration was required to be resolved by the court of Florida. As a party to the Franchise Agreement, the spouses Nicola are bound by its provision which mandates that matters falling outside of the arbitration clause of the Franchise Agreement shall fall under the exclusive jurisdiction of the courts of Florida. It is the stance of Ideal that to the extent that proceedings were not able to be arbitrated pursuant to clause 31 then the parties had agreed to the exclusive jurisdiction of the courts of Florida, with the result that the proceedings should be stayed in any event. According to Ideal, as the spouses Nicola are bound by clause 40 of the Franchise Agreement, they have committed themselves to the jurisdiction of the Florida courts and thus, their institution of the proceedings before the Federal Court of Australia is an abuse of process which ought, as a matter of discretion, to be stayed.

Spouses Nicola have already waived their right to avail of mediation prior to the conduct of arbitration

In respect of the issue on mediation, Ideal admitted that mediation between the parties is a condition precedent before the commencement of arbitration proceedings to thresh out the dispute. It is admitted that conciliation is a precondition for the conduct of arbitration to exhaust all chances of amicable settlement between the parties. It argued, however, that the Nicolas were already deemed to have waived their right to mediation as they already instituted their action before the courts prior to mediation.

Conclusion
The case of Nicola vs. Ideal Image Development Corporation Incorporated is significant in light of guidelines set by the Court in respect of international arbitration. Justice Perram, through the said case, clarified that in interpreting arbitration clauses referring to matters which may be proper subjects of arbitration, the use of the words arising out of and relating to the business of the franchisee indicates only that there needs to be some rational connection or nexus between the claim and the business in question. In line with the same, the Court added that the need for said nexus is satisfied by the relationship between the contracting parties. Hence, in interpreting arbitration clauses in contracts, the ruling of the Court renders assistance in interpreting the use of the foregoing, and more importantly, in determining which subjects may properly be brought by the parties to arbitration.

It is likewise worthy to point out that the Court made clear pronouncements as regards arbitration clauses and exclusive jurisdiction clauses in contracts. As most contracts involve the performance of duties and obligations in different regions and jurisdictions, this ruling of the Court will help the parties in the proper administration and enforcement of contracts entered into. In this case, the Court highlighted the fact that arbitration clauses should be observed by the parties to the contract as they have consented to the same when they executed the contract.   In line with the ruling of the Court, when the parties to the contract agree, in addition to resort to arbitration, on the exclusivity of venue in case of dispute between the said parties, the said clause on exclusive jurisdiction shall govern in respect of matters that do not fall under the arbitration clause of the contract. The Court added that in the presence of exclusive jurisdiction clauses in contracts, strong cause needs to be shown by the party opposing the stay of the proceedings. As the parties freely entered into the contract, they are bound by the provisions of the contract, including the provision on the exclusivity of the venue. The ruling of the Court does not only provide guidelines to be followed in respect of parties to contracts but to judicial bodies that may be faced with disputes similar to the one presented in the case of Nicola vs. Ideal Image. In this regard, proper deference will be accorded to the body before which the dispute must be brought and the importance of international arbitration as a tool for amicably settling disputes will be recognized.

The State of New York currently carries a law on its books prohibiting adultery and criminalizing the act.  Married couples living within the confines of New York are subject to this law whether they are aware of its existence or not.  This law gives rise to many questions in reference to why the law is there and what purpose it serves the general public.  Clearly there are moral and cultural aspects upon which the law was formed.

The present question pertains to whether or not it is now an outdated laws accidentally left on the books from decades past.
   
Adultery should be classified as a crime due to the physical, mental, and legal consequences that are incurred as a result of idiocy.  The State of New York stipulates in Article 25.17 that adultery is a class B misdemeanor and is punishable by imprisonment of up to six months.  The law explicates the following
a person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse (New York State Law, 2010).

Marriage is a legal contract between a man and woman stipulating that certain benefits are to be shared only within the confines of matrimony.  To evade from this theory demoralizes the institution of marriage and makes vivacity of marriage redundant.
   
The criminal act of adultery should remain a criminal act.  The act of adultery only serves as a platform for future criminal behaviors.  For instance, there have been instances reported in the media concerning one spouse catching the other spouse cheating.  As a result, the cheating spouse has been murdered, which is later determined to have been deemed a crime of passion, or second degree murder.  Adultery destroys families and has a bad effect on any children of the marriage.  Children who have been subjected to a cheating parent often grow up with trust issues, intimacy issues, and the inability to engage in a productive and healthy relationship.  It should also be added that the criminalizing of adultery stands to keep prostitution illegal.  Prostitution may be the oldest profession, but it is by far the most immoral.  Society has evolved in the way of making an honest living, and prostitution has no place in American society.
   
The state has a responsibility to establish the necessary boundaries by which members of the community live.  The state bears the duty of keeping acts such as adultery illegal in order to serve and protect the people from their own self-destructive behaviors.  Adultery protects those within a marriage from social disease (Pittman, 1989).  Diseases like HIV and AIDS can easily be contracted but may not be detectable for up to ten years.  Other social diseases like Gonorrhea, Syphilis, and Chlamydia are on the rise and have devastating consequences if not properly treated.  The law upholding adultery as a crime protects children who are not old enough to consent to a sexual act.  Finally, this law protects the contract of marriage by forcing a spouse to seek legal remedy in the form of dissolution of marriage in order to pursue sexual interests elsewhere.
   
There are four aspects related to the crime and problem of adultery.  These aspects are moral, legal, religious, and culture.  The moral focus of adultery is based on fidelity and trust (Pittman, 1989).  Trust is something that cannot be easily replaced, especially within a marriage.  Adultery shakes the foundation of a marriage due to the loss of physical and mental respect from the cheating spouse.  Some marriages simply cannot endure the extreme violation of this trust.  From a legal standpoint, adultery is a breach of contract.  The cheating spouse has proven that they do not possess the fortitude to uphold the law.  There is legal remedy for the injured spouse in the form of divorce.  On the other hand, the cheating spouse may also find legal recourse for divorce citing that their infidelity was the result of their spouse withholding sex or not meeting ones sexual needs.  Some states provide sexual discord as grounds for divorce.  Lastly, the legal aspect surrounding adultery serves to discourage prostitution or any participation in.  In New York, marriage is legal permission to have sex with ones spouse, but no other.
   
The aspects of religion and culture are intertwined.  From the Christian standpoint, adultery is a sin against God.  Repentance and penance must be served as a means of being forgiven, depending on the church one goes to.  Adultery teaches spiritual forgiveness.  It tests the spiritual faith and virtue of not only the spouses but of the marriage itself.  Sex is viewed as a sacred act for the sole purpose of having kids, as this is Gods plan, but adultery is a sin from that doctrine.  In the Muslim culture, if a woman is caught cheating on her husband, she is to be publically stoned to death.  The criminalizing of adultery deters individuals from other cultures from committing acts of violence here in the United States.  It encourages the person to pursue the matter in a legal court of law rather than taking the law into their own hands.  If a man is caught cheating, he is celebrated.  Different cultures have different views concerning the act of adultery.  Some cultures support the lifestyle of having more than one wife, although the practice is illegal in the United States.  These aspects have a direct effect upon the person who has been cheated on and a lasting effect on the spouse who is cheating.
   
The legal age to consent to have sex in New York is seventeen years of age.  It is odd that one must be eighteen in order to vote in an election, and they must be twenty-one in order to purchase alcohol but they can have sex at seventeen.  It is painfully obvious that this law is either not known about or simply is being ignored.  Being single and a parent has become the  norm.  Teenage mothers are seen everyday walking the streets, pushing baby strollers, standing in welfare lines, and dropping out of school.  Instead of enjoying the fruits of their labor many parents, now grandparents are raising their grandchildren due to the lack of maturity from their own children.  It is disrespectful to the grandparents and neglectful to the children involved when the natural parents simply refuse to take care of their responsibilities.  Children are having sex at younger ages all the time.  Oral sex is now just something to do on a date much like going to the movies was years ago (Gruen  Panichas, 1997).  In the life of teenagers in this day and time, sex is just a recreational activity without emotional attachment or any real meaning beyond the physical act.
   
The age of legal consent needs to be raised in New York to eighteen, but not without the adding of certain attached rules.  Individuals under the age of eighteen caught having sex should be subject to criminal penalties within the family court system.  Court ordered counseling, health testing, and fines should be imposed on those who violate the new law.  Offenders of the new law should also be held in a juvenile detention facility for a period not exceeding six-months for new offenses.  It is sick at how Americas youth have no respect or regard for the law and what it stands for (Gruen  Panichas, 1997).  If a female becomes knocked up while under the age of eighteen, then she should be denied access to any state welfare other than for that of her child.  Unless a doctor decides that she is unable to participate, pregnant females should be made to attend school and assigned a truancy officer to enforce the rule.  Sexual misconduct is ruining the upcoming generation.  It is time the State of New York take action in order to protect itself from any further immoral decay.
   
The subjects of adultery and underage sexual activity are hot topics in the State of New York.  Many legal, cultural, religious, and moral aspects have astounding influences on the reasons behind the laws as they are written.  While some argue the point of the state not having any legal right to determine who has sex with whom, the fact remains on the contrary.  The state does have a legally bound right to protect and serve all citizens within its geographical boundaries.  It would be a pleasantry to see the adultery law put into action more frequently in New York, as it would serve as a deterrence to those who anticipate cheating on their spouse.  The devastating effects imposed on a spouse who has been cheated on are damning.  Families suffer tremendous pain and anguish and some never fully heal from the emotional trauma.  There is much to be considered in the way of adultery.  Six months in jail is a minimal punishment considering the lifetime worth of damage that stands to be done at the hands of the cheating spouse.  New York should be applauded for its efforts to bring morality back into the lives of its married citizens.

Search warrant exceptions are specific situations where a police authority can obtain an item or evidence which is believed to be associated with unlawful or criminal activity without initially acquiring a search warrant. The importance of these exceptions is easy to understand. Threat to life and property increases as time delays. If an officer decides to obtain a warrant before hand, such decisions can lead to destruction of evidence, escape of criminals and death. Search warrant exceptions are provided to be a backbone of the law for fully ensuring justice to all citizens. There are several areas covered by these exceptions and they are the following exigent situation, stop and frisk, search incident to arrest, custodial, plain view, vehicle, border, open fields, abandoned property, consent, administrative, probation search, and protective sweep.  We will be dealing with plain view warrant exceptions.

Search warrant exceptions are based on probable cause and it is important that all police authorities understand the very basis of the exception. It is also important that the public is aware of these exceptions in order to facilitate better understanding of the law. Below is a real life scenario of a plain viewvehicle search warrant exception

In the evening of January 2009, three police officers were patrolling around the plaza of Los Angeles. As they were patrolling, one officer noticed five guys huddling around near a dark corner with what appears to be pot session. These guys were also noticed to have some sort of long weapon which was identified to be a rifle. The three police officers decided to go near them and ask a few questions. While moving in, one of the five guys noticed the police vehicle going near them and suddenly went on to hid something in their car. The police officers quickly moved in and the five guys were standing awkwardly. The officers asked a few questions and then inquired if they can take a look inside the car. Feeling relaxed, one of the guys agreed and told the police officers to take a quick look in the car. Upon looking, they saw nothing in the front seat but the officer smelled some marijuana coming off from the backseat. They moved in to search a bit more and later discovered 3 kilos of marijuana tucked in the back seat. They arrested the five guys and brought them to the station. (LA Times, 2009)

A quick analysis of the scenario will lead us to the fact that what the officers did was under the search warrant exception. Had they chosen to get hold of a warrant to search the vehicle first and left, then the guys would have escaped with the kilos of marijuana. It was also good that one of the guys gave out a verbal consent regarding the search inside the car. With regards to the rifle spotted, it was found hidden on the side of the dark corner where they found the five guys. This is a basic scenario of search warrant exception that took place last year. There a lot of similar cases with this one. Here is a short list of real cases that are similar with our scenario and some exceptions as well

Applying the rationale of plain view to discoveries made through the other senses, the Supreme Court has ruled that where the contraband or evidentiary nature of an item is immediately recognizable by officers during lawful activities, the item may be seized, even though not in plain view at that moment. Examples plain feel of rocks of cocaine during lawful pat-down of clothing (Minnesota v. Dickerson) plain smell of marijuana odor emanating from a package (U.S. v. Place) plain shape of a gun case (Henry v. U.S.) and plain hearing of incriminating conversations (Hoffa v. U.S.).

Date In addressing this scenario it is interesting to note that a patent was requested for the new technology versus a license, grant, or fellowship to continue experimental research in genetics. A patent is simply used to protect first rights to a new design or invention (USPTO.gov, 2010). The true intent of the doctor would be in question at this point. However, the case also points out that the doctor plans to continue research regardless of obtaining a patent license or not. Which also is an intriguing response since it shows the spirit of a true research scientist in this case in the field of medical science.

Discussion Questions
Why is the doctors activity a deviant act
A deviant act is defined as straying or moving away from what is considered normal in a society (Keel, 2007). Is this a deviant act I would not hasten to agree. All engineers, scientists, and inventors initially are attempting to invent, design, produce something new that did not before exists. Their main objective is to push beyond the boundaries of existing parameters in the area they are pursuing. That is the purpose of obtaining a patent, to protect that new technology, invention, or design. If they did not continue their research, nothing would ever be invented or available to patent. However, being this is the medical field and the use of technology to create a new living organism. There is a slight marrying of two otherwise non-threatening fields. It appears the true question here is who has the authority to regulate the type of research a doctor does in the field of genetics Another question is can technology be used to create life If these are the real questions then a number of deviant and moral theories come into play.

Returning to this scenario however, legally the request of this doctor to use advanced technologies would not be a problem until the doctor decides to involve humans or animals in testing her research. Authorization to conduct research in genetics is under the oversight of the Institutional  Review Board for Health Sciences Research (IRB-HSR, 2008). If this doctor has applied IRB approval then her research would not be considered deviant behavior up to the time of testing. At this point it may be necessary to gain more approvals from the IRB. Therefore this would not be a deviant act prior to this next step since it is simply research using advanced technology. At the point of testing on living beings, it may be considered a deviant act if such steps are considered outside the norm based on IRB guidelines.

Is the doctors research an abuse of technologyReturning to the opening statements, the combining of advanced technology and genetics could be overstepping the boundaries of morality, ethics, and even security of personal information. Depending on the types of organisms being developed or tested upon, there could be considerations as to the rights of these organisms to live, as in the case of them being human embryos taken from donors. To answer the question using new technology is not considered abuse unless it goes into a deviant status or moves away from the norms of society. As in affecting the life of a living being. At this point the technology could become a co-conspirator.

Does such research have any victims
In the scenario there are no victims in conducting the research by using the technology.
The question of victim would be addressed once the doctor has achieved her objective and created an organism. It could then be argued that the organism is a victim of her research. The technology could be considered a co-conspirator if it results in a crime. A crime is any offense of a public law.

When the doctor starts the testing on living beings, again they could be considered victims as the effects of introducing genetic changes could cause adverse reactions that are beyond the doctors control to reverse. At this point the IRB would most likely step in to monitor the research and ensure proper consent and licensing channels are being followed (IRB-HSR, 2008).

Some of the general guidelines and protocol expected for a doctor in researching genetics
especially when it comes to genetic testing on a human subject to avoid victimization
are as follows (IRB-HSR, 2008). The genetic laboratory analysis on the subjects being
studied must be reported. Also a description of each test and its purpose. The expected
information to be gained from testing.  The types of organisms are being designed and
why. When testing, determining if this genetic data be tied to the subject.

What are the known consequences that may affect the insurability, employment or social
status of the subject. Personal security and identity disclosures will need to be addressed.

How will this information be transferred to the test subjects genetic makeup. What types
of information will be shared with the test subject. If adverse reactions occur, who is
liable, what recourse or rights does the test subject have for example. What type of
consents must be signed off by the test subject. Who owns the genetic product once
introduced to the subject is it still the property of the doctor or does the genetic product
now belong to the test host. Lastly, disclosure of the resulting research and areas of
confidentiality (IRB-HSR, 2008).

These are just some of the required legalities for the IRB to approve such research as
prescribed by this doctor in ensuring compliance against a violation or victimization while conducting genetic research and testing.

Digital evidence is any evidential data or information stored or conveyed in a digital format that can be presented in a court of law (Casey 2004). The utilization of this kind of evidence has been on the increase because courts have permitted the utilization of electronic-mails, digital photos, Automatic Teller Machines transactions, computer documents, short messages services, computer files, browsers, databases, data stored on memories, printouts, or any other digital information. This has also been made necessary by developments in technology which has also caused an increase in technology-related crimes. A large number of devices can be used to hold large amount of information. This kind of information is available in a number of storage media. These storage media include hard-disks, memory cards, and other secondary storage media (Kenneally  Brown 2005).

The current situation in digital evidence

Computer and information technology law
IT law is a collection of latest legal ratifications presently available in many nations which regulates the processing and disseminating of information in the digital environment. These legal enactments are crucial in this era where the use of information technology is on the increase (Carrier 2005). Data and information transfer has become a daily process as the current period is an information era. It is hard to govern processing, transfer and use of information without some form of regulation. In fact, the advent of advanced digital technologies has brought up an evolution of very sophisticated criminal activities that were never heard of in the past. The legal enactments have been necessitated by the need to control the different aspects relating to computer programs, security of the software, availability and management of information, internet use, e-business and privacy among other aspects (Casey 2009). The legislations have acquired the term paper laws for paperless environment. Criminal cases cannot be handled without proper evidence. In the past, there were many ways of gathering evidence in a crime investigation. The conventional methods for gathering information are not applicable in a digital environment. As changes in the information technology continue to explode, a new method of evidence collection and presentation known as the digital evidence has come up. The laws that have been mentioned can only operate where there is evidence. The problem is that there are various issues surrounding this area in the contemporary world. This area has been facing a lot of challenges and problems in providing digital information as evidence (Bainbridge 2007).

Like in most countries, English law has also evolved to cover technological changes. The Regulation of Inventory Powers Act of 2000 is such regulation that was passed in the UK to handle technological developments. It relates mostly to crimes related to the internet and encryption. This law manages the way in which public organisations can carry out surveillance and have admission to private digital communications. The law allows mass surveillance of communications and provides protection of information. In dealing with digital evidence, the law hinders the subsistence of interception warrants and any information gathered with them from being presented in a court of law (Bainbridge 2007).

Digital evidence has been applied in many countries in court cases. In most of the countries where this kind of evidence has been in use, it has been used under the existing state procedures of evidence. This has created a discrepancy in application the fact is that the conventional evidence is far too different from the digital evidence. Courts have realized that digital evidence is by far different from conventional evidence. The digital evidence differs from conventional evidence in a variety of ways. The first difference is the volume. Digital evidence has proven to be more voluminous than conventional evidence due to the fact that a lot of information can be stored and transmitted in a very small space. Computer memory is able to carry a lot of data than it is possible to be presented physically (Casey 2004). Another difference is that digital evidence is easy to modify. Adding or removing information from a computer memory is so easy and difficult to realize without appropriate measures. The other difference is that duplication of information in a computer memory is very easy. This can be carried out without noticing unlike in conventional evidence. It is more difficult to destroy digital evidence. This is because with appropriate software, data or parts of data deleted or destroyed can be recovered. The last difference is that digital evidence is more expressive and easy to retrieve. This therefore necessitates the need for different rules and procedures for handling digital evidence. These kinds of procedures and regulations have not been present in most countries, and in the countries that have them, they are not carefully followed. Some courts have devised their own procedures for treating digital evidence differently from conventional evidence. They do this for the sake of authenticity, hearsay, privilege and the best evidence rule. For example, in the United States, stringent fresh regulations were passed with the Federal Rules of Civil Procedure, which necessitated the conservation and revelation of digitally kept evidence (Kenneally  Brown 2005).

The nature of digital devices makes them more vulnerable to destruction and corruption. In order to deal with the increase in technologically-related crimes, there has been an increase in digital evidence. This has consequently necessitated the use of devices that are physically smaller and have greater storage capacity. This has made the components for such devices to be smaller but more delicate (Byers  Shahmehri 2009). The delicate nature has also been contributed by the need to manufacture these components very fast to handle the demand. Storage of data in these devices in an unsuitable environment has been found to cause corruption and even loss of data. This has brought the problem of loss of evidence, presentation of incomplete evidence and delay in cases as more evidence is gathered. In situations where there is no backup or trailing information, court cases have been dismissed due to lack of evidence. Using a digital device to get information keeps the memory active and constantly changing. This can cause inconsistencies in the hash values of subsequent acquisitions by the same memory. The problem is further complicated by the use of unique cables and drivers to establish connections. More than one acquisition has also been seen to produce different hash values. This can be attributed to an internal clock that constantly change timestamps or other unique information that is in flux (Casey 2004).      

The other issue surrounding the use of digital evidence is the increasing rate of digital crimes. Technology is developing from all directions. As the investigators and courts are coming up with new methods and procedures for handling digital crime, perpetrators are coming up with new ways of carrying out their criminal activities (Weber 2010). Criminals are utilizing information technology to ease the progress of their crimes and avoid being caught. Many of the criminals who use technology are very knowledgeable in digital applications and can do so much to avoid being apprehended. This has caused problems to courts, judges, investigators, forensic experts and security experts. Organized crimes around the world are being committed through the use of technology (Byers  Shahmehri 2009). The criminals use technology to keep records and tracks of communication and to commit offences. Criminals have even accessed court systems to alter their records and watch internal interactions. There are other technology-related criminal activities targeting hospital systems, office systems, and domestic appliances. This is made easier by the fact that most of these systems are networked. There are network based crimes that target infrastructure. The most targeted infrastructure is power, communication networks, financial and emergency services. These issues are becoming a great concern as terrorist activities become more technologically skilled. The involvement of technology in crime has resulted in a lot of digital evidence that is causing a problem to handle for the legal experts. They are doing so much to handle the evidence but it is so vast that it becomes a problem (Casey 2004).

Ways of improving the law governing this area
The law is in place in but it is not as effective as it ought to be. There a set of guidelines and regulations put in place for those handling digital evidence. The laws that are in place may not be adequate to handle this contemporary phenomenon (Jones 2009). This is why it is necessary for legal bodies to come up with fresh regulations to handle this area. Technology is not constant and therefore the legislations established should also be constantly revised to accommodate changes in technology. Legal experts handling digital evidence should not only be trained but also be taught the need to observe and adhere to digital evidence guidelines. This is to make sure that they do not present flawed or incomplete evidence. Other guidelines, principles and procedures that govern data collection, processing, retrieval and access should all be incorporated into the legislation (Jerrard and Small 2002).

As people acknowledge the fact that proper amendments are necessary to the computer law, it is important to note that proper information is necessary for the amendments to be applicable. Digital evidence is a relatively new area in law and should therefore be well researched (Weber 2010). With empirical data, it will be possible for lawmakers to properly amend the available legislations so as to accommodate the changes in technology. Law amendments without proper understanding of the subject will not provide effective ways of handling crimes related to technology. Before making amendments to the law, it is important to go through the existing laws related to the subject so as to find out where it is failing and therefore improve. To be more effective all the aspects of the law from gathering of digital evidence to decisions in courts of law, should be evaluated afresh and necessary improvements carried out (Jerrard and Small 2002).

Procedures and principles to assist in digital evidence
Digital evidence requires more care and sophisticated procedures in handling so that it can be used as proper evidence in a court of law. Any person handling the evidence must make sure that it has not been tampered with. There must be auditable track in relation to storage and investigation of the device in use (Jones 2009). The key points for ensuring this is done are the person collecting the data should ensure that the evidence gathered does not affect the integrity of the evidence there should be proper training for any person gathering or handling digital evidence and there should be proper documentation, preservation and retrieval of digital information. As it is discussed earlier, perpetrators of technology-related crimes are greatly skilled individuals. To be able to counter their operations, the involved legal experts should be equally or even more skilled than the criminals. Hiring more experts and developing more sophisticated systems will also help in handling technologically-associated crimes (Kenneally  Brown 2005).

To ensure data integrity, it is important to have chain of custody associated with the information. This is a trail documented in paper giving details on the whereabouts of all sources of evidence. Another kind of information that can be useful is records of people who have access to the information and the actions carried out with the information (Pan  Batten 2009). This helps in the integrity of information as a proof to the evidence and also to get back to the source in case something happens to the evidence already gathered. The chain of custody together with the review of the media allows the evidence to be used in proving the case. It is also used to prove that the evidence has not been tampered with. While examining the evidence, it is important to connect the evidence to an appropriate system by use of write protection device. This ensures that the original device cannot be accessed or altered (Kenneally  Brown 2005).  

Organizations should be in a position to assist legal enforcement experts in handling technology-related criminal activities. They should install devices that can collect digital evidence in their organizations. They should also acquire measures that can as much as possible help in reducing opportunities for perpetrators. There are crimes that individuals and organizations can help in avoiding (Pan  Batten 2009). Data security should for example be addressed at the organizational level. Surveillance cameras and other evidence collection procedures can be so helpful in investigations. Digital evidence like any other information in a computer-based media is volatile. It is therefore important to take a forensic image of the storage media. This image should have the complete byte-by-byte copy of the data and the storage space. It will also have the current and deleted data which is available on the device (Kenneally  Brown 2005).
   
Cryptographic hash functions give forensic investigators the capacity to validate the authenticity of the data retrieved from digital devices. The use of the cryptography hash function results in a hash value, that is, affixed-size bit string, often used to recognized files illustrating if the data has been modified or not. The two most common cryptographic hash functions are MD5, SHA and HAVAL. The alterations in data that can be hard to prove are for example changing a read message to mark unread. Most forensic experts employ MD5 hash in proving that one piece of information is matching another. It is also used to prove that data has not been tampered with since it was originally obtained. This area has not received adequate research and thus it should be carried out to find the real adaptability of the procedure to digital (Byers  Shahmehri 2009).

A lot of expertise is needed in digital evidence. This is not only due to the vastness and complexity of the data involved, but also the complexity in technology required to retrieve and process the data.  For this reason, forensic experts should be prepared to handle the information and prove its authenticity. They also need to be equipped with knowledge, not only in the handling existing tools but also any incoming technology. They need to acknowledge that technology is changing and prepare themselves for any new situation that they may encounter (Kenneally  Brown 2005).

The legal experts handling digital evidence need to have data recovery software in order to retrieve any information that might have been deleted or tampered with. Data that has been deleted can be recovered by investigation experts using readily available tools. They are able to do so by acquiring and analyzing the full contents of the memory. Deleted data can have very important information in an investigation. Some devices are capable of storing location-based information. Investigators can retrieve this information to determine the geographical location of the device at a particular time.  There are cases where the clock on a device is incorrect this is solved by timestamps on the device that might be correct as they are generated by system on the core network (Casey 2009).

Conclusion
Due to the increase in technology, the use of digital evidence has also increased. There are also very many issues and challenges surrounding this area. A lot or research should be carried out to find out new opportunities that can be applied in this legal field to improve efficiency and effectiveness. With changes in technology, governments around the world should ensure that they have improved their legal systems to take into account these changes. There are some countries also where the legal system has not been changed to adapt to the technological developments. Such countries still use the guidelines that are used with the conventional evidence. There should also be invention of technology-based systems that will make it possible for digital evidence to be used in the courts.

Digital forensics involves acquiring, preserving, examining, analyzing, and presentation of computer-based evidence. The role of computers in investigations has been expended beyond conventional computer-based investigations. This has been made possible by interconnected computing, wireless communications and portable devices. Currently almost every crime is concerned with some sort of digital evidence. The book describes original studies and applications in digital forensics.

Family and Medical Leave Act (FMLA) of 1993 is a labor law that places a responsibility on large employers to provide their employees with a job-protected unpaid leave. This kind of unpaid leave is granted to the employee by the employer in a case where the employee suffers from a serious illness and is therefore not able to perform his or her duties. Job-protected and unpaid leave is also granted to an employee by the employer in a case where the employee needs to care for a sick family member. The family member can be a child, spouse or parent. Another case where the employer is required by FMLA to grant a job-protected unpaid leave to his or her employee is when the employee is going to care for a new born son or daughter. In case of a new child as a result of adoption or foster care, the employer is still required by this act to grant the employee a job-protected unpaid leave (Department of Labor, Employment Standards Administration, Wage and Hour Division, 2007).

For an employee to qualify for the benefits described by this act, he or she must be employed by an employer with 50 or more employees in his or her business who must be working within a radius of 75 miles. The employer can also be a public agency in which case the 50 employees threshold is not necessary. The other requirement is that the employee should have worked for the employer for 12 months or more and within the last 12 months the employee must have worked for at least 1250 hours. The act grants an employee the job-protected unpaid leave for a maximum of 12 weeks within a year.

According to the act the employer has a responsibility of restoring the employee to the same job position that he or she held before the leave upon returning to work. In case for some reason the previous job position is not available, the employee is entitled to a substantially equal job position in terms of responsibility, pay and other benefits.

This act protects the employees benefits while on job-protected unpaid leave. According to the act the employee should be granted all the benefits which were entitled to him or her before going on the unpaid leave. The act protects the employees rights from any interference or denial by the employer. The employee is also protected from retaliation by the employer because of exercising his or her rights under this act (Department of Labor, Employment Standards Administration, Wage and Hour Division, 2007).

Occupational Safety and Health Act (OSHA) of 1970
Occupational Safety and Health Act (OSHA) of 1970 is an act which places responsibility upon employers to provide their employees with a working environment that is free from recognized hazards. These recognized hazards include exposure to toxic chemicals, mechanical dangers, excessive noise, stress caused by excessive heat or cold and unsanitary conditions (Occupational Safety and Health Administration, 2006).

The act protects the employee from being discriminated or discharged because of exercising his or her rights under this act. This act protects the employees from unsafe and unhealthy working conditions so as to protect the human resource exploitation. The act requires the employer to keep a record of every non-consumer chemical product used in the workplace in order to protect hisher employees. To further protect the employees, the employer is required to provide in the workplace detailed technical bulletins so that the employees can read ways and methods they can use to avoid chemical hazards.

The act places responsibility upon the employer to protect the employee from a recognized hazard which is described in the act as one that the employer knew or should have known. Such hazards should be obvious or recognized within the industry that the employee is working in. The employer is responsible for protecting his or her employees from a correctable hazard.

In addition, the act places a responsibility upon the employer to comply with all the workplace safety and health standards. It is the responsibility of the employer to make sure that he or she is familiar with the health and safety standard applicable in their establishment. The employer is required by the act to maintain conditions that are reasonably necessary to protect their employees. In this connection, the employer is required to adopt practices that are appropriate for the protection of their employees. The employer should always ensure that his or her employees have and use protective gears and equipments whenever there is a need to do so for the safety and health of the employees. The employer has a responsibility to communicate with his or her employees about a hazard in their workplace.

Under the act, the employers have a responsibility to report to OSHA the death of an employee within eight hours if the employee dies from an incident related to his or her job. In case three or more employees are hospitalized because of an illness or injury that is related to the employers work, the employer is required to report it to OSHA. In case the employee suffers from a fatal heart attack while on the job, the employer should also report such an incident (Occupational Safety and Health Administration, 2006).

Section I
Konswe Andrelecht a resident Breihner center 2, Amsterdam, Netherlands, hereinafter referred to as the seller, and Phil Mathews a resident of  Peoria Park District,  Prospect Road, Peoria, Illinois state, hereinafter refer to as the buyer herein on the twelfth day of February two thousand and ten, enter in to an agreement subject to the following terms

Section II choice of law
This agreement is drawn in accordance with the United Nations convention on contracts for the international sale of goods (CISG), which shall have an overriding application over any of the individual laws in the resident countries of the parties.

Section III Sale of goods
The seller agrees to sell to the buyer the following equipment hereinafter referred to as goods on or before tenth day of March two thousand and ten

A 40 MW, 60 R.P.M diesel generator with the following dimensions length 50 feet, width 20 feet and height 30 feet. The seller agrees to deliver equipment that is new with no previous owner, and in addition to that, the seller commits to provide a one year warranty subject to specific terms that will be signed separately from this contract.

Section IV consideration
The buyer agrees to pay a sum of   882352 (eight hundred and eighty two thousand, three hundred and fifty two Euros). The buyer commits to deliver the said sum to the seller in the currency form of Euros without any considerations for fluctuations in exchange rates between the dollar and the Euro or any other currency that the buyer may have access to, or an interest in.

Section V Delivery location
The seller commits to deliver the goods at Illinois international Port, Chicago, USA. Delivery of goods to this port will be the sole responsibility of the seller.

Section VI identification of goods
The said goods shall only be approved after both buyer and seller (or their authorized agents) have inspected and appended their signatures to the delivery note. Should the delivered goods fail to meet the specifications, then the contract becomes null and void, and the seller will retain total ownership of the goods without any obligations whatsoever to the buyer.

Section VII Documentation
Prior to paying for the goods, the buyer must check the documentation accompanying the goods. The buyer has a right to reject the goods if the seller (or agent) fails to produce a certificate of origin, an ownership transfer document and a warranty. The buyer will also be required to have a bankers draft that will symbolize meeting of financial obligations regarding the sale. The buyer has the obligation of obtaining any documentation necessary for the importation of goods to the US.

Section VIII Shipping andor transportation
It is agreed that the quoted price will be inclusive of shipping and transportation costs. The costs include transportation from the sellers premises to the nearest or convenient port, and then the shipping costs from the port of origin to the Illinois international Port. Once the goods are in the Illinois international port, the buyer takes the responsibility of delivering the goods to his premises or to a location of his choice. Both parties have discretion in deciding the shipping and transportation methods to use in reaching their destination.

Section IX Customs procedures
The seller has the responsibility of clearing the goods through customs procedures from the port of origin to the Illinois international Port, but the responsibility of clearing the goods from the Illinois international port will be the obligation of the buyer.

Section X Insurance
The seller will provide the insurance cover for the goods from the origin up to the Illinois international port. The insurance cover will cover the goods up to the point the ownership transfer is signed between the seller and the buyer or their authorized agents.

Section X Risk of loss
The seller bears the responsibility of loss or damage of any kind or extent for the goods for as long as the goods have not been accepted by the seller. In case of any form of loss or damage to the goods, provisions of section VI apply.

Section XI Freedom from encumbrance
The seller provides an assurance that the goods are free from any encumbrance, security interest or lien at the time of delivery.

Section XII Warranty of title
The seller warrants that at the time of signing the agreement, he has full rights to sell the goods.

The agreement has been signed and produced in duplicate, so that the buyer and the seller both have a copy of the contract.

The right to counsel basically means the unhampered function of the counsel in assisting people accused of crimes in defending the legal action filed against them. Right to counsel is important because in general, defendants do not have adequate knowledge and skill to the complex discipline of law. Because of the multifaceted and adversary nature of criminal proceedings, it is only fair that defendants must at all times be provided with the expert assistance of a counsel in order to guarantee fair trial. Accordingly, if defendants cannot afford to pay the services of a lawyer, the government must all the same pay for these legal expenses or appoint one for them. Therefore, the right to counsel is, in essence, a fundamental element of the right to a fair trial in view of the fact that in order for a trial to be fair, greatest legal assistance to the defendants must be provided.

The Sixth Amendment of the U.S. Constitution
The Sixth Amendment of the Bill of Rights of the United States Constitution lays down a number of rights related with the criminal prosecutions in federal courts. These rights are applied by the Supreme Court to the states through the Fourteenth Amendments Due Process Clause. For that reason, it is important that the assistance of a counsel must be in concurrence with the practice of the adversary fact-finding process embodied in the Sixth and Fourteenth Amendments. To give a better idea, the protections provided by the Sixth Amendment are as follows  

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation to be confronted with the witnesses against him to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Because of the straightforward language used in the Sixth Amendment, courts have provided conflicting, often narrow interpretations on the application of each of the guarantee of the amendment throughout the years. In fact, both the Congress that proposed the Sixth Amendment and the state that ratified it did not present any suggestion of the factual understanding with regard to the language employed in the amendment, particularly on the right to counsel clause. As a result, the earlier application of the right to counsel was only confined to guaranteeing a person who is able to afford and wishing to have a counsel would not be denied that right. It was only during the 1930s that the Supreme Court attempted to significantly expand the scope of right to counsel clause of the amendment (Find Law, 2010).

Scope
Basically, the rule in criminal justice system is that in all trial-like confrontations, the presence of the defendant is mandatorily required by the court. In these cases, the presence of the defendants counsel from which the defendant draws assistance and advice is likewise indispensable. Therefore, although the Sixth Amendment does not directly mandate the presence of the defendants counsel during criminal proceedings, it is important to take note that every time the physical presence of the defendant is required by the court, the presence of the counsel is likewise automatically demanded. The proceeding paragraphs provide a brief but very informative overview of the development of the defendants right to counsel in the United States.

Development of the Guarantee of Right to Counsel
Judicial proceeding is commenced from the moment a person is arrested, prosecuted on warrant in front of a judge, and committed to custody. Time and again, Courts have declared that the Sixth Amendments right to counsel is consequently attached from the time judicial proceeding is initiated. The right to counsel is an element of the right to a fair trial, and therefore, if the defendant cannot afford the services of a lawyer, the government must make sure that the defendant is provided with one. However, this present position of the criminal justice system has not traditionally been the situation in the United States.

The Supreme Courts expansion of the guarantee of the right to counsel clause only began in the landmark case of Powel v. Alabama (1932). In this particular case, the Supreme Court set aside the convictions of eight African-American teenagers sentenced to death in a hurriedly accomplished trial without the assistance of counsel. According to Justice Sutherland, due process constantly entails the observance of certain basic personal rights related with a hearing, and the right to the assistance of counsel is without doubt of this basic nature (Powel v. Alabama, 1932). Therefore, every accused person must be provided with the guiding hand of the counsel at every stage of the criminal proceeding. Without such assistance, the accused faces the possibility of conviction in view of the obvious fact that defendants are generally not acquainted with the proper procedure to ascertain their innocence.

Furthermore, the Court held that even the educated and intelligent individuals have generally small and every so often no knowledge in the science of law. People accused of a crime normally lack the adequate knowledge and skill to prepare their defense, even though they have a perfect one. Left without the assistance of a counsel, they cannot proficiently establish whether or not the evidences available and presented are helpful or detrimental to their respective case. Moreover, they may even be put on trial without proper charges and convicted upon irrelevant, inadmissible, or otherwise incompetent evidences. Therefore, the right to be heard will only provide insignificant support to an accused if it does not take in the latters right to be heard by counsel.

Mandatory Appointment of Counsel to Indigent Defendants
The next expansion of the right to counsel came in the case Johnson v. Zerbst (1938) wherein the Supreme Court declared an unconditional rule necessitating the appointment of counsel for federal criminal defendants who could not pay for the services of a lawyer. According to Justice Black, the benefit of counsel is essential to the upholding of basic human rights of life and liberty. A person whose liberty or life is endangered by a felony charged has a constitutional right to a counsel. Therefore, in all criminal proceedings, the Sixth Amendment denies from the federal courts the authority and power to take away the life or liberty of an accused without the assistance of counsel unless the latter waives such benefit. Moreover, the court declared that any waiver of the right to counsel of the defendant must be done through his or her intelligent choice and not deduced from his or her silence. For that reason, these elements must be established by the court before ensuing the hearing of a case without counsel (Johnson v. Zerbst, 1938).

Application of the Guarantee to Both Federal and State Courts
In the case of Betts v. Brady and Progeny (1942), the issue raised was whether or not state courts should be provided with the comparable application of the right to counsel in federal courts in all their criminal proceedings. Through Justice Roberts, the Court observed that the application of the Sixth Amendment would force only the federal courts and not the state courts of the assistance of a counsel to guarantee seeing that the Due Process Clause of the Fourteenth Amendment in state courts creates an impression more fluid and less rigid than those guarantees represented in the Bill of Rights. Unfortunately, the Court concluded that the appointment of counsel is not a basic right indispensable to a fair trial and as such, the guarantee is not the general rule in state courts. In a dissent argued by Justice Black, the Fourteenth Amendment made the Sixth Amendment germane to the states the requirement of the appointment of counsel. The constraints laid by the Sixth Amendment upon the federal courts convey a rule so essential and fundamental to a fair trial that the Fourteenth Amendment purposely made it mandatory upon the States (Betts v. Brady and Progeny, 1942).

In Gideon v. Wainwright (1963), however, the court overruled the earlier decision in Betts v. Brady and declared that because of the adversary nature of the criminal justice system, any defendant who is too poor to hire the services of a counsel cannot be guaranteed of a fair trial. Accordingly, the Court held that the benefit of counsel is extremely essential that the Fourteenth Amendment does make the right constitutionally applicable in all state courtsthat both Sixth and Fourteenth Amendments ensure that every person is entitled to the assistance of a lawyer during or after the time that legal proceedings have been commenced against him or her, whether arraignment, information, indictment, preliminary hearing, or formal charge (Gideon v. Wainwright, 1963). Therefore, the guarantee of the right to counsel by this time applies to all defendants in federal and state courts whether charged with serious crimes, misdemeanors or charged with felonies, as well as in juvenile proceedings. What is more, the Court held that unless there is a valid waiver of the right to counsel, every defendant may not be sent to prison if no counsel was provided for his or her defense.

Capital Cases
After a while, the Court in Hamilton v. Alabama (1941) declared that in all capital cases the benefit of counsel is considered a constitutional requirement and therefore mandatory so that both the public and defendants need not raise any questions regarding any prejudices or conditions ensuing from lack of counsel. The rule was intended to give some assurance to the defendants in capital cases that their trials would not be deprived of the fundamental fairness as a consequence of their failure to appoint a counsel. In the given case, the court identified three prejudicial factors that made it to conclude that in all capital cases the condition of appointment of counsel is indeed very necessary (Hamilton v. Alabama, 1961). These factors were
The individual characteristics of the defendant could likely cause difficulties on his or her attempt to achieve a sufficient defense

The technical difficulty of the capital penalty charges or of potential arguments to the charges and
Proceedings that would unexpectedly take place during the trial raising problems of injustice (Hamilton v. Alabama, 1961).

Other Landmark Cases on Right to Counsel
The right to counsel basically denotes that the government must not hinder with representation, either through the imposition of limitations upon retained or appointed counsel or through the method of appointment that would hamper the counsels ability to reasonably provide a defense. Therefore, from the moment adversary proceedings have been initiated by the government against a defendant, the criminal justice system must see to it that he or she is provided with unconstrained legal assistance. Moreover, the defendants must be guaranteed with such assistance through the counsel of choice. The proceeding paragraphs demonstrate some of the most relevant decisions concerning the scope of a defendants right to counsel

The Court held in Geders v. United States (1976) that the order of a trial judge preventing the defendant from seeking advice from his counsel throughout a 17-hour overnight break between his direct and cross-examination, in order to avert coaching or formulating of testimony, was invalid as it denied the defendant of his Constitutional right to assistance of counsel.

In Chandler v. Fretag (1954), the denial of the court of the defendants appeal for a continuance in order to confer with an attorney was held as an infraction of formers due process rights under the Fourteenth Amendment.

In McKaskle v. Wiggins (1984), although the Court has acknowledged the defendants right to self-representation and maintain definite control over the case, the participation of a standby counsel should never be denied particularly in serving the necessary function of assisting the defendant in adhering to regular courtroom protocols and procedures.

In some states, the right to counsel is extended to all issues where a persons liberty interest is endangered. Accordingly, irrespective of whether the proceeding is viewed as administrative, criminal, or civil, as long as the defendant faces a possibility of loss of liberty, then he or she is entitled to the assistance of a counsel (Anne Pasqua, et al. v. Hon. Gerald J. Council, et al., 2006).

Miranda Rights
In 1966, the landmark case of Miranda v. Arizona was decided by the United States Supreme Court, which ushered a period of court-enforced controls on the governments authority to interrogate the people they bring into custody. Although this celebrated decision has basically focused on a suspects protection against self-incrimination under the Fifth Amendment, it likewise placed some comparable importance to the right to counsel. Accordingly, because of the latter prohibition imposed in the Miranda decision, the government today is prohibited from continuing any interrogation of witnesses or suspect from the moment the right to counsel is invoked by latter (Find Law, 2009b).

The Court held that entitlement to have counsel present during a custodial questioning is essential to protect the suspects benefit against self-incrimination under the Fifth Amendment. For that reason, a person detained for interrogation must be notified in an uncomplicated manner that he or she has the right to have a lawyer with him or her throughout interrogation and to consult with such lawyer. The Supreme Court went one step further in the Miranda v. Arizona case by declaring that defendant must be informed that if he or she cannot afford the services of a lawyer the government is prepared to appoint one to represent him or her. In view of that, the right to counsel guarantee of the Miranda warning generally reads as You have the right to have an attorney present now and during any future questioning. If you cannot afford an attorney, one will be appointed to you free of charge if you wish (Find Law, 2009b).

Situations When Miranda Warnings are Required
The fundamental rule laid down by the Miranda case is that whenever a person is divested by the government of his or her freedom of action in any considerable manner, and the government would like to question him or her and utilize the ensuing answers as evidence at any proceedings, the government, through the police officer, must read to the person his or her Miranda rights. Because of such ruling, the right to counsel is now being required from the moment the government initiates an interview to a suspect or witness, whether the interrogation takes place at the scene of a crime or in a jail, in the middle of an open field, or on a busy downtown street. Hence, if a person is not in police custody, no Miranda warning is necessary and anything the person declares can be used against the latter by the government if he or she is later incriminated with a crime. All the same, even if not in custody, but if the questions asked to a person relates to particular crime or would make the person a potential suspect the police must still inform the person of the Miranda warnings (Find Law, 2009b).

The most obvious example of being in custody is when a police officer declares to the person that he or she is under arrest. However, a person may still be in custody even if the officer did not declare that the former is under arrest. Throughout the years, the justice system has not followed absolute rules on classifying when a person is in custody or not. What the law generally considers is that a person is considered in custody when he or she has been arrested or otherwise significantly denied of his or her freedom of movement. The test used by the courts in recent years is whether or not a reasonable individual in the similar situation as that of the defendant would have been deprived of his or her freedom to leave at the scene (Find Law, 2009b).

Miranda Rights does not Safeguard the Accused from Arrest
In essence, any person suspected to have committed a crime can be arrested without being advised of his or her Miranda rights. The Miranda rights do not safeguard people from being arrested. What the Miranda rights uphold is keeping suspects from committing unintentional incrimination against themselves throughout the police interrogations. The Miranda warning itself is therefore not a constitutionally guarded right, but merely a mode to shield suspects against self-incrimination by providing them with counsel and other rights. Accordingly, if an arrested suspect demands the services of a counsel, then the interrogating officer has no choice but to discontinue any inquisitive conduct until an attorney of the suspect is present. Failing to follow this particular rule may cause the statements of the suspect inadmissible in any court proceedings.

Information Obtainable Without Miranda Warning
There is a number of certain personal information wherein police officers are allowed to inquire on a suspects or witnesses without necessarily reading to them their Miranda rights. These rights are limited to the persons name, date of birth, address, Social Security number, and other questions essential to establishing the identity of the person questioned. Likewise, a person can also be given drug and alcohol tests as well as taking other evidentiary materials relating to the person, such as vocal samples, handwriting samples, DNA samples and blood samples, without reading to them the Miranda warnings. Nevertheless, the person providing the aforesaid identification and evidentiary materials may decline or should not be forced to answer any incriminating questions asked by the police during any of the aforementioned process.

Police Interrogations
The numerous cases filed against violations of the Miranda warnings only prove that throughout the years many police officers have indeed been deceiving or attempting to deceive suspects to talk by not reading their Miranda rights. These police interrogations may be through clear-cut questioning, such as asking a suspect if he or she committed the crime, or may be less obvious, such as remarks made by the police that would probably draw out incriminating information from the suspect. This is one of the reasons why it is very important to demand the presence of a lawyer during custodial investigation.

Before or during police interrogations, a person is already guaranteed with the constitutional right to counsel. Accordingly, if a police officer is asking a person linking the latter to a particular crime, then such person can demand the assistance of a lawyer and may not be compelled to answer any of the questions related to the crime. This is still the case even if the person has not been informed by the police officer of his or her Miranda warnings. Moreover, even if there has been a formal charge against a suspect or the police placed him or her in a lineup, the aforesaid suspect must likewise be immediately provided with a lawyer (Find Law, 2009a).

Failure to Provide Warning to Right to Counsel
In the Miranda case, the United States Supreme Court highlighted that the right to a counsel during interrogation is the cornerstone of the safeguard against self-incrimination. Accordingly, the court declared that individuals under custodial interrogation by the government should be immediately informed of their right to counsel and that a counsel will be assigned for them if they cannot afford one (Find Law, 2009b). The Constitution does not demand a word for word presentation of the Miranda warnings as it is sufficient that the reading procedure effectively safeguards the person against forced self-incrimination. Moreover, the court held that if the interrogation was made without the assistance of a counsel even after the suspect was informed of such right, the government must show evidence that the suspect intelligently and knowingly relinquished the right to counsel (Find Law, 2009b).

Therefore, if government failed to provide a warning to the persons right to counsel during interrogations, or if the government cannot demonstrate that a valid waiver was given, then the answers will be inadmissible at trial. Any court that strips a defendant of his or her right to counsel under situations that do not validate a finding of a valid waiver should be declared to have infringed the fundamental right to due process and to counsel of the aforesaid defendant. Such infringement should result in a reversal of the order of the court that relied on such testimony extracted without the assistance of a counsel.

Fruit of the Poisonous Tree
The Fruit of Poisonous Tree doctrine is originally established in the case Silverthorne Lumber Co. v. U.S. (1920). The doctrine denotes the inadmissibility of testimonials, evidences, etc. gathered by the government through the employment of illegitimate methods (Silverthorne Lumber Co. v. U.S, 1920).  It simply means that when the tree or the method used is poisonous, its fruit, or the evidence gathered, is likewise poisonous. Therefore, if the police discover significant information on account of an interrogation that infringes the Miranda rule, then that information is automatically not acceptable at trial (Find Law, 2009b). One ambiguity in this doctrine, however, is when the suspects break the sequence of evidence themselves by coming forward with new evidence such as impulsive admission regarding a crime. Accordingly, any information that are voluntarily disclosed by a person to a police officer after the latter has properly informed the person of his or her right to counsel are thus admissible at trial (Find Law, 2009b).

Competency Concerns
The right to counsel of the defendant is basically his or her right to the valuable assistance of counsel. The Sixth Amendments right to counsel encompasses the right of the defendant to retain counsel of his or her preference as well as to be represented in the fullest extent by such counsel. In case the defendant cannot pay for the services of a lawyer, the Court must provide one immediately from the start of case. By doing so, the defendant will be afforded with an effective assistance during the preparation, and at the hearing of his or her case, as well as for the counsel  to take part fairly and fully in the adversary fact-finding process of the case and to put together an effective closing argument. In other words, a defendant must be provided with unrestricted and reasonable opportunity to consult and employ with counsel, otherwise, the right to be heard by counsel would be of little significance.

The role of the defense attorney is of fundamental importance in almost every stage of the judicial proceeding. The specific role of an attorney, however, generally varies depending on the case and the nature of the charges. The absence of a definite standard for measuring the competency of defense counsel has become the source of enormous confusion within state and federal courts. The confusion is basically manifested by the assortment of tests being employed by the courts nowadays. All the same, in harmony with the explanations on the preceding paragraphs, the foremost responsibilities of a defense lawyer may be summarized as follows

Counseling the defendant of his or her rights as well as clarifying to the latter what to anticipate at various stages of the proceedings

Discussing a plea bargain with the government on behalf of the defendant
Making sure that the constitutional rights of the defendant are not infringed during court proceedings and through law enforcement conduct and

Presenting legal defenses, objecting to improper evidence and questions, cross-examining witnesses, as well as investigating evidence and facts of the case (Find Law, 2009c).

Based on the foregoing responsibilities, a counsel clearly plays an important role in the adversarial system and in producing just results regarding the case. Accordingly, the presence of a lawyer at the trial together with the accused is not sufficient to assure the constitutional requirement to the right to counsel. All defendants need the knowledge and skill of counsels in order to effectively reject the attempts of the State to execute or imprison them. A defendant is therefore not only entitled to right to counsel, but most importantly entitled to the effective assistance of counsel.

Ineffective Assistance
It is worth mentioning that a defendant must sufficiently discuss with his or her counsel competently and honestly, all the facts indispensable to solve the case. Following the effort by the defendant however, if the assistance offered by the retained counsel is still manifestly ineffective, then such incompetence will be viewed under the Sixth Amendment as denial in trial against the defendant. The judge must therefore not only abstain from generating circumstances of ineffective assistance, but is also duty-bound under particular conditions to make inquiries whether the counsel of the defendant may render or is already rendering ineffective assistance. It is important is that the defendant is at all times not deprived of the assistance of an effective counsel.

Accordingly, the Court expressed a three component test for ineffective assistance of counsel in all criminal trial proceedings
There exists an attorney-client relationship
Deficient performance of the attorney and
Consequential injustice to the defense is so severe as to bring the result of the trial into question (Find Law, 2010a).

In cases where the competency of counsel is questioned, Courts have held that the requirement of the assistance of counsel under the Sixth Amendment is already satisfied if a reasonably adequate counsel has represented the defendant, and this presumption of competency is further satisfied when the counsel appears for the defendant. Therefore, the uncertain tactical choices carried out by a counsel do not automatically cause a conviction to be disposed of due to incompetency. In order to ascertain injustice that resulted from the incompetency of an attorney, the defendant must demonstrate that there is a reasonable possibility that the outcome of the case would have been different if not for the unprofessional inaccuracies of the counsel.

It is important to note that in order for a claim of counsel incompetency to be successful, the aforesaid three elements must be present. Without all of these elements, it cannot be declared that the conviction of a particular defendant is due to the incompetency of the counsel who caused the decision to be undependable. This test was eventually refined by the Court in Lockhart v. Fretwell (1993) by declaring that not only would a different trial outcome be possible as a consequence of attorney direction, but that the trial outcome which did take place was essentially unreliable or unfair (Lockhart v. Fretwell, 1993).

Grounds for Claim of Ineffective Assistance
Incompetency happens when a lawyer negligently and ineffectively handles a case that causes considerable harm to the defendants case. The standard of competency does not differentiate counsels appointed by the government or those privately hired by the defendants. Below are some of the most common grounds for claim of counsels ineffective assistance

Deficient and inadequate representation that results to the denial of the Sixth Amendment rights
Absence of the counsel through critical stages of the proceedings
Failure of the counsel to maintain sufficient communication with the defendant
Failure of the counsel to be diligent, prompt, and competent
Failure of the counsel to negotiate favorable results during the plea bargaining
Failure of the counsel to support the defendants premise of the case
Failure of the counsel to file well-timed motions
Failure of the counsel to subject prosecutions case to consequential adversarial testing
Failure of the counsel to investigate mitigating circumstances and evidence, which are necessary for sentencing
Performance of the counsel prejudiced defendant and was deficient and
Counsel offered appalling proposal, or had conflict of interest (Liberty International, n.d.).

If the defendant claims that his or her counsel is rendering ineffective services at any stage of the criminal proceeding, then a motion for mistrial or motion to dismiss should be filed immediately. These motions are important since during the appeal, any of the foregoing ineffectiveness of a counsel will result in waivers of such acts, which normally prejudices the defendant (Liberty International, n.d.). All the same, the defendant must present evidences of the prejudices to prove the counsels ineffectiveness. Moreover, the defendant must demonstrate that the counsels ineffectiveness has undermined the accurate implementation of the adversarial process. Finally, the court must take into consideration the totality of circumstances that resulted in an unfair trial or unreliable trial (Liberty International, n.d.).

Objective Standard of Reasonableness
The counsel is viewed at all times to make reasonable tactical decisions so that a constitutionally valuable assistance in the form of enthusiastic support of the defendants case is achieved. Likewise, a counsel is viewed to be duty bound to make reasonable investigation, as well as make rational decision. Failure to hold on to these standards exposes the counsel to disciplinary complaints or action. Nonetheless, judges charged with evaluating claims of ineffective assistance should avoid examining the counsel in retrospection and be highly deferential to actions of the counsel.

As explained on the preceding paragraph, as of the moment, there is no definite standard for measuring the competency of defense counsel. However, in many jurisdictions, the performance of a counsel is generally gauged through the objective standard of reasonableness test. The test revolves around the inquiry on whether or not the assistance of the counsel was reasonable considering all the prevailing norms of practice and circumstances as reflected by legal profession standards (Liberty International, n.d.). Accordingly, this test is based on a minimum standard that justifies the presumption that a counsel is indeed competently serving his function in the adversary system.

Conflicts in Representation
Basic is the rule that lawyers are obligated to meticulously stay away from representing conflicting interests. In fact, in several jurisdictions, lawyers are demanded to prevent themselves from being placed in a situation where they may show to be representing conflicting interests. As a result, on the occasion that the counsel is representing at least two defendants, the lawyer may claim to the trial judge in a timely manner that the potential conflicts of interests among or between the clients have made him or her incapable of delivering efficient legal assistance. However, the failure of the judge who is aware or should have been aware of the conflicting interest of the counsel to question as to whether or not such conflict was unfavorable is not a ground for the outright reversal of the case. Throughout the years, the United States Supreme Court has expanded and elaborated the conflict of interest principle through different cases under the following rules
The right to counsel of the Sixth Amendment pertains to defendants who are served by appointed counsel and to defendants who retain private counsel

Judges are not automatically obliged to commence an investigation into the accuracy of the multiple representation claimed in view of the fundamental rule that conflict of interest does not exist in the absence of special circumstances raised by the counsel or defendant and

In order to ascertain a violation, the defendant must prove that an actual conflict of interest has negatively affected the performance of his or her lawyer (Find Law, 2010).

Therefore, in a situation where a lawyer may not be able to faithfully discharge the responsibility of absolute loyalty to a client as a result of simultaneous responsibility of loyalty to another client, then it may be said that the lawyer is under conflicting interest (Flamm, n.d.). However, before a judge allows a conflict of interest request of a counsel, the former must first carefully scrutinize the counsels assertions, and unless the judge believes that the risk is not just isolated, he must not allow the appointment of a separate counsel. Some of the conflicts of interests that judges usually examine include adverse representation and multiple representations.

Adverse representation, also known as direct adversity conflict, is a type of conflict wherein lawyers represent one client in a way that is unfavorable to the interest of another existing client, but normally in a distinct matter (Flamm, n.d.).

Multiple representations, also known as concurrent or dual representations, is another type of conflict wherein a lawyers concurrently represent at least two clients with regard to the similar issue, and the interests of each of the client are or may eventually become conflicting (Flamm, n.d.).

Conflicts may sometimes arise when lawyers act in dual roles, as where lawyers concurrently serve as both legislator and a private counsel. It may also take place in a scenario where a counsel represents an organization and serves on its board of trustees or directors. In addition, conflict concerns may take place in parallel representation, as where a lawyer undertakes to represent simultaneously two or more plaintiffs in different cases against a single defendant who has inadequate assets out of which to assure an unfavorable judgment.

Conflicts Between Counsel and Client
Lawyers should likewise not allow their personal interests affect their exercise of independent judgment on behalf of an existing client. Should lawyers fall short of honoring this warning, the court may disallow them to handle the clients case or order other restrictions. One of the most common conflicts that occur between clients and lawyers is when a lawyer acquires proprietary interests in the case he or she is litigating (Flamm, n.d.). Therefore, the acquisition of a counsel of even reasonably little interests in litigation may give rise to his or her disqualification and in some cases, even the counsels law firm. Likewise, disqualification may occasionally be ordered in a circumstance where counsel enters into a media rights agreement with a criminal defendant.

In some cases, however, a lawyer may be authorized by court to represent a client even though he or she has a pecuniary interest in the case litigated. Nevertheless, to prevent conflicting interests and being disqualified, it is incumbent upon the counsel to divulge the nature of his or her interest completely as well as the potential unfavorable consequence on the client. Apart from this, the lawyer must get a hold of the educated consent of the client to continue to represent the latter, regardless of the conflicting interest.

Conclusion
The right to counsel is in essence a fundamental element of the right to a fair trial in view of the fact that in order for a trial to be reasonable, utmost legal assistance to the defendants must be provided. As such, the presence of the defendants counsel from which the defendant draws assistance and advice is indispensable. Although the Sixth Amendment does not directly mandate the presence of the defendants counsel during criminal proceedings, it is important to take note that every time the physical presence of the defendant is required by the court, the presence of the counsel is likewise automatically required. However, this present position of the criminal justice system has not traditionally been the situation in the United States, as the expansion of the guarantee of the right to counsel clause only began in the landmark during the 1930s.

Eventually, in the landmark case of Miranda v. Arizona, the United States Supreme Court ushered a period of court-enforced controls on the governments authority to interrogate the people they bring into custody. Following this case, courts have declared that the Sixth Amendments right to counsel is consequently attached from the time custodial investigation is initiated. For that reason, the government must see to it that the defendant is always provided with a competent counsel through unrestricted legal assistance, and interest that is consistent with the client.