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The data controller in respect of our Services is NiceLabel / Euro Plus limited liability company (d.o.o.), the registered office of which is at Poslovna cona A 2, 4208 Šenčur, Slovenia (hereinafter: we). You can contact us by sending an email to privacy@nicelabel.com.
We are also the leading data controller regarding management and maintenance of shared CRM database in relation to the NiceLabel Group companies.
How do we collect and use (process) personal data about you?
We collect personal data about you when you provide it to us, such as through your use of Services or through your browser or device.
Where permitted or authorized by law, we may also receive information about you from other sources, if so allowed by law and if such is necessary for the provision of Services.
What type of personal data we collect or obtain about you?
information about your mobile device (such as your geographical location).
We may also obtain personal data about you from certain publicly accessible sources, including (but not limited to) online customer databases, business directories, media publications, social media, websites and other publicly accessible sources.
a.) Administering, running and improving our Services and our business, including personalizing our Services for you. This is necessary for our legitimate interest of better understanding our customers' and potential customers' preferences and tailoring our Services and general business to our customers’ needs and preferences.
b.) Communicating directly with you in relation to updates to our website, your purchase(s) of our Services, and in response to enquiries we receive from you and to send administrative information to you, for example, information regarding the website and changes to our terms, conditions, and policies. This will be necessary either to update you from time to time about changes to our website, to perform a contract which we have entered into with you (or to take steps, at your request, to enter into a contract with you) or for our legitimate interest of satisfying and confirming your requirements in order to provide you with our products or services and to answer questions we receive from you.
c.) Protecting our business and our business interests, including for the purposes of credit and background checks, fraud prevention and debt recovery. This is necessary for our legitimate interests of preventing criminal activity such as fraud or money laundering, for ensuring that our Services are not misused and protecting our business. We will only carry out such checks to the extent that we are permitted or authorized by law to do so.
d.) Communicating with our business advisors and legal representatives. This is necessary for our legitimate interests of obtaining legal or professional business advice, and we will only share your personal data where it is necessary to do so, to the minimum extent necessary and on an anonymized basis wherever possible.
e.) Sharing your personal data with affiliates and third - party business partners which are either related to or associated with us in relation to our provision of Services. List of our affiliates is here https://www.nicelabel.com/our-company, Third- party business partners include resellers, suppliers, independent contractors, email providers, web hosting providers, on line shop payment provider and other ITC services providers (collectively: Processing partners). This will be necessary either to perform a contract which we have entered into with you (or to take steps, at your request, to enter into a contract with you), for our legitimate interest of running and managing our business effectively, for compliance with a legal obligation to which we are subject, or for our own direct marketing purposes. Where we share your personal data, we will do so strictly on a need-to-know basis, subject to appropriate confidentiality restrictions, on an anonymized basis as far as possible and only to the extent strictly necessary for any of these purposes. We will not sell for profit purposes your data to any other 3rd party.
f.) Enforcing our legal rights and compliance. This is necessary for our legitimate interest of protecting our business and enforcing our contractual and other legal rights resolving disputes and making such disclosures as are required by law or which we consider, acting reasonably, are required by law. We may also need your personal data to comply with ongoing legal obligations, such as tax and accounting laws and regulations to which we are subject to.
g.) Ensuring physical, network and information security and integrity. This is necessary for our legitimate interest of ensuring that our IT systems and networks are secure and uncompromised, including, for example, backup and archiving, preventing malware, viruses, bugs or other harmful code, preventing unauthorized access to our systems, and any form of attack on, or damage to, our IT systems and networks.
h.) In connection with disclosure requests and in the case of a business or share sale or sale or purchase of a business and/or assets, whether actual or potential. This is necessary for our legitimate interests of selling and/or ensuring and promoting the success of our business.
i.) For statistical and research purposes. We will anonymize your data and use them for our legitimate interests of processing personal data for research purposes, including market research, better understanding our respective customers, and tailoring our respective products and services to their needs.
j.) Indicating possible criminal acts or threats to public security to a competent authority. This is necessary for our legitimate interest of promoting the success of our business, preventing crime, for compliance with a legal obligation to which we are subject, in the general public interest or for the legitimate interests of governmental bodies and competent authorities that prevent crime.
k.) Entering into and performing a contract with you or for measures preliminary to a contract. Where you wish to purchase products or services from us, we require your personal data in order to enter into and perform a contract with you. If you do not provide your personal data to us when it is required for such a purpose, we will not be able to enter into or perform a contract with you or to provide you with the products or services you have requested. We may also postpone or cancel any orders you place and enforce our legal rights against you (for example, where we have incurred costs or expenses in preparing or fulfilling any orders placed by you but are unable to deliver the order due to your failure to provide the necessary personal data).
a.) To provide you with offers relating to goods or services we offer from time to time and inform you on our research, development and achievements.
b.) Automated decision-making, including profiling. We may analyse your personal data to create a profile of your interests and preferences so that we can contact you with information relevant to you. We may make use of additional information about you when it is available from external sources to help us do this effectively. We may also use your personal data to detect and reduce fraud and credit risk. This is necessary for our legitimate interest of promoting the success of Services and business.
c.) Shared CRM database. We may process your personal data for registration, organisation, storage, elaboration, selection, extraction and all other relevant CRM management purposes.
Where we process your personal data on the basis of your consent, you can withdraw your consent to such processing at any time by emailing us at privacy@nicelabel.com. The effective date of such withdrawal shall be 8 business days from the date we have received your request.
You may opt-out of receiving marketing messages from us by sending an email to privacy@nicelabel.com or by unsubscribing through the unsubscribe or opt-out link in an email. We will try to comply with your request(s) as soon as reasonably practicable. Please note that if you opt-out of receiving marketing-related emails from us, we may still send you important administrative messages.
Your personal data is stored by the NiceLabel on our servers located in Slovenia and on servers of cloud providers located in the EU countries and in the USA.
whether we have any legal basis to continue to process your personal data, such as your consent.
using Transport Layer Security (TLS) software or other similar encryption technologies to encrypt any payment transactions you make on or via our website.
Transmission of information (including personal data) over the internet is not entirely secure, and if you submit any information to us over the internet (whether by email, via our website or any other means), you do so entirely at your own risk. We cannot be responsible for any costs, expenses, loss of profits, harm to reputation, damages, liabilities or any other form of loss or damage suffered by you as a result of your transmission of information to us by such means.
YouTube is used to help make our website appealing. This constitutes a legitimate interest pursuant to Art. 6 (1) (f) GDPR.
Our website uses the Google Maps map service via an API. It is operated by Google Inc., 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA.
NiceLabel uses Avangate B.V. (www.avangate.com) for processing of secured payments for purchases made on the website. The entire purchase process is managed by Avangate, who acts as NiceLabel’s authorized merchant and reseller. When you enter your credit card and billing information on the website, personal data is transferred securely to Avangate. By making a purchase on the website via Avangate, you authorize NiceLabel to use Avangate to process your transactions and to transfer personal data to them, but only to the extent needed to complete the transaction and manage your purchases.
No credit card information is ever stored on servers controlled by us. Avangate has our permission to store, on our behalf, the data pertaining to the executed transactions by customers of the website (including credit card information) with the goal of ensuring a secure method of payment and proof of purchase archive, allowing for the protection of our customers, and for follow-up as needed. This transactional data may be used for validation and registration purposes of our customers, and to trace any fraudulent activities if necessary.
If you select processing payment via Avangate, the payment data you provide will be supplied to Avangate based on Art. 6 (1) (a) (Consent) and Art. 6 (1) (b) GDPR (Processing for contract purposes). You have the option to revoke your consent at any time with future effect. It does not affect the processing of data previously collected.
Avangate participates in the United States - European Union Privacy Shield, which helps to protect personal data transferred from European Union to the United States, Please see Avangate Privacy Shield Policy at https://www.avangate.com/privacy-shield-policy.php.
We use the Net-Results Marketing Automation System ("Net-Results MAS") of Net-Results Marketing Automation, 1738 Wynkoop Street, Suite 201, Denver, CO 80202 ZDA ("Net-Results"). Net-Results MAS is a special software for capturing and analyzing the movement profiles of website visitors.
We also use Net-Results MAS to record user interactions and communicate with our users of the website andto provide customer support and conduct live chats within the support portion of our website.
The Net-Results MAS will save a cookie to your computers’ hard drive in order to track and monitor your engagement and usage of the website, but will not store, save or collect personal data. You can prevent the storage of cookies at any time by configuring your Internet browser,, however, we would like to point out that in this case you may not be able to fully utilize all the functions of this website.
Net-Results cookies are stored based on Art. 6 (1) (f) GDPR. We have a legitimate interest in analyzing user behavior to optimize both our website and advertising.
Google Analytics uses so-called “cookies”. The information generated by the cookie about your use of this website is usually transmitted to a Google server in the USA and stored there.
Google Analytics cookies are stored based on Art. 6 (1) (f) GDPR. We have a legitimate interest in analyzing user behavior to optimize both our website and advertising.
Website uses the WordPress Stats tool to perform statistical analyses of visitor traffic. This service is provided by Automattic Inc., 60 29th Street # 343, San Francisco, CA 94110-4929, USA.
The storage of “WordPress Stats” cookies is based on Art. 6 (1) (f) GDPR.
We have a legitimate interest in analyzing user behavior to optimize both our website and advertising.
Our websites use the features of Google Analytics Remarketing combined with the cross-device capabilities of Google AdWords and DoubleClick. This service is provided by Google Inc., 1600 Amphitheater Parkway,Mountain View, CA 94043, USA.
The aggregation of the data collected in your Google Account data is based solely on your consent, which you may give or withdraw from Google per Art. 6 (1) (a) GDPR. For data collection operations not merged into your Google Account (for example, because you do not have a Google Account or have objected to the merge), the collection of data is based on Art. 6 (1) (f) GDPR. We has a legitimate interest in analyzing anonymous user behavior for promotional purposes.
Our website uses Google AdWords. AdWords is an online advertising program from Google Inc., 1600 Amphitheater Parkway, Mountain View, CA 94043, United States (“Google”).
Conversion cookies are stored based on Art. 6 (1) (f) GDPR. The website operator has a legitimate interest in analyzing user behavior to optimize both our website and advertising.
This website uses Hotjar web analytics service to improve the user experience on our website (https://www.hotjar.com, 3 Lyons Range, 20 Bisazza Street, Sliema SLM 1640, Malta, Europe). Hotjar may record mouse clicks, mouse movements and scrolling activity where we use this information to improve user experience. Hotjar collects information regarding pages visited, actions which are taken, country, device used, operating system, and browser used. Hotjar does not collect personally identifiable information that you do not voluntarily enter in this website. Hotjar does not track your browsing habits across web sites which do not use Hotjar services. You can find out more about Hotjar data processing here: https://www.hotjar.com/privacy.
If you do not want to be tracked by Hotjar on websites, you can turn it off with a “do not track” header. Hotjar does not collect form submissions or any personal data. You can find information about this on the following website https://www.hotjar.com/opt-out.
Due to our legitimate interest in the analysis, optimization and economic operation of our online offer and for these purposes within the meaning of Art. 6 (1) f. of the GDPR we use the so-called "Facebook pixel" of the social network Facebook, which is operated by Facebook Inc., 1 Hacker Way, Menlo Park, CA 94025, USA, or if you are a resident of the EU, Facebook Ireland Ltd., 4 Grand Canal Square, Grand Canal Harbour, Dublin 2, Ireland ("Facebook").
Facebook is certified under the Privacy Shield Agreement and thereby offers a guarantee to comply with European data protection law.
With the help of the Facebook pixel, Facebook is on the one hand able to determine the visitors of our online offer as a target group for the presentation of advertisements (so-called "Facebook ads"). Accordingly, we use the Facebook pixel to display our Facebook ads only to Facebook users who have shown an interest in our website or who have specific characteristics (e. g. interests in certain topics or products determined by the websites visited) that we submit to Facebook (so-called "custom audiences"). With the help of the Facebook pixel, we also want to make sure that our Facebook ads are in line with the potential interest of users and do not have a nuisance effect. Using the Facebook pixel, we can also track the effectiveness of Facebook ads for statistical and market research purposes by seeing whether users have been redirected to our website after clicking on a Facebook ad (so-called "conversion tracking").
The Facebook pixel is directly integrated into our website by Facebook and can store a so-called cookie, i. e. a small file, on your device. If you then log in to Facebook or visit Facebook when you are logged in, your visit to our online offer will be noted in your profile. The data collected about you is anonymous for us, i. e. it does not allow us to draw conclusions about the identity of the users. However, the data is stored and processed by Facebook so that it can be linked to the respective user profile and used by Facebook as well as for its own market research and advertising purposes. If we transfer data to Facebook for comparison purposes, it is encrypted locally in the browser and only then sent to Facebook via a secure https connection. This is done with the sole purpose of matching the data encrypted by Facebook.
Furthermore, when using the Facebook pixel, we use the additional function "advanced matching", in which inventory data such as telephone numbers, e-mail addresses or users' Facebook IDs is transmitted to Facebook (encrypted), but solely to create target groups ("Custom Audiences"). Users agree our use of the "advanced matching" and the related processing of their data.
Based on our legitimate interests, we also use the "Custom Audiences from File" function of the social network Facebook, Inc. in which case inventory data (phone numbers, email addresses, Facebook IDs) will be uploaded to Facebook. The upload process is encrypted. The upload serves solely to identify recipients of our Facebook ads. We want to ensure that the ads are only displayed to users who are interested in our information and services. Users agree our use of the " Custom Audiences from File" function and the related processing of their data.
Facebook's processing of the data is governed by Facebooks Data Usage Policy. Accordingly, general instructions on how to display Facebook ads, in the Facebook Data Usage Policy: https://www.facebook.com/policy.php. For specific information and details about the Facebook pixel and how it works, please visit the Facebook Help Center: https://www.facebook.com/business/help/651294705016616.
You may object to the collection by the Facebook pixel and use of your data to display Facebook ads. To set what kind of ads you see on Facebook, you can go to the page set up by Facebook and follow the instructions on how to set up use-based advertising: https://www.facebook.com/settings?tab=ads. The settings are platform-independent, i. e. they are applied to all devices, such as desktop computers or mobile devices.
Each time you access one of our pages that contains LinkedIn's features, a connection is established to a LinkedIn server. LinkedIn is informed that you have visited our website with your IP address. With the help of the LinkedIn Insight Tag we are able to analyse the success of our campaigns within the LinkedIn platform or determine target groups for them based on the interaction of the users with our website. If you are registered with LinkedIn, it is possible for LinkedIn to associate your interaction with our online services with your user account.
You can permanently opt out on this link: https://www.linkedin.com/psettings/guest-controls/retargeting-opt-out.
LinkedIn advertising cookie is used on the basis of Art. 6 (1) (f) GDPR. We have a legitimate interest in analyzing user behavior to optimize our website and advertising.
where authorised by the Information Commissioner, contractual clauses between the data controller or processor and the data controller, processor or recipient of the personal data in the third country or international organisation.
The list of our 3rd party providers processing your data outside of the European Economic Area is here.
You have the following rights in relation to your personal data, which you can exercise by sending an email to privacy@nicelabel.com.
to withdraw your consent to our use of your personal data at any time where we rely on your consent to use or process that personal data. If you withdraw your consent, this will not affect the lawfulness of our use and processing of your personal data on the basis of your consent before the point in time when you withdraw your consent.
You also have the right to lodge a complaint with a supervisory authority, which, for the purposes of Slovenia, the Information Commissioner, the contact details of which are available here: https://www.ip-rs.si/kazalo-kontakt-iskalnik/kontakt/.
For further information about your rights in relation to your personal data, including certain limitations which apply to some of those rights, please see Articles 12 to 23 of the General Data Protection Regulation (GDPR), which is available here: https://ec.europa.eu/justice/data-protection/reform/files/regulation_oj_en.pdf.
to object to us processing your personal data for direct marketing purposes (including any automated evaluation we make about you or any of your characteristics as a person, to the extent that it is related to such direct marketing).
sending an email to privacy@nicelabel.com asking that we stop sending you marketing communications or by including the words "OPT OUT".
Whenever you object to direct marketing from us by a different communication method to that of the marketing communications you have received from us, you must provide us with your name and sufficient information to enable us to identify you in relation to the communications you have received (for example, if you have received text messages from us and you wish to unsubscribe by email, we may need you to provide us with your phone number in that email).
Where you wish to purchase goods or services from us, we require your personal data in order to enter into a contract with you. We may also require your personal data pursuant to a statutory obligation (in order to be able to send you an invoice for products and services you wish to order from us, for example).
If you do not provide your personal data, we will not be able to enter into a contract with you or to provide you with those products or services.
Where we intend to use your personal data for a new purpose other than the purpose(s) for which we originally collected it, we will provide you with information about that purpose and any other relevant information before we use your personal data for that new purpose and obtain your consent if required.
Please inform us of any changes to any information (including personal data) which we hold about you so we can keep the information we hold about you accurate and up-to-date.
We do not knowingly contact or collect personal data from children under the age of 13. The website is not intended to solicit information of any kind from children under the age of 13.
It is possible that we may receive information pertaining to children under the age of 13 by fraud or deception. If we are notified of this, as soon as we verify the information, we will immediately obtain the appropriate parental consent to use that information or, if we are unable to obtain such parental consent, we will delete the information from our servers. If you would like to notify us of our receipt of information about children under the age of 13, please do so by sending an email to privacy@nicelabel.com.

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As the holiday season approaches, drivers should plan to expect checkpoints. Checkpoints are increasingly common features of law enforcement strategy and are governed by particular rules.
The general rule is that checkpoints may not be established for general crime enforcement. That’s because the Fourth Amendment requires individualized and particularized suspicion. Just because you are a member of a class of people – a racial or ethnic group, or a group engaged in some legal activity such as driving – does not allow the police to simply stop and inquire, except under very narrow and specific circumstances.
The Supreme Court has held that checkpoints may only exist if they satisfy a specific programmatic purpose – City of Indianapolis v. Edmond, 531 US 32 (2000). Again: general crime enforcement is prohibited.
So, for instance, the Supreme Court of the United States has allowed brief, suspicionless seizures at fixed checkpoints designed to intercept illegal aliens, U.S. v. Martinez-Fuerte, 428 US 543 (1976), for sobriety checkpoints to stop people who may be driving while impaired, Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990), to verify drivers’ licenses and vehicle registrations, Delaware v. Prouse, 440 U.S. 648 (1979), and to ask motorists for information about a recent hit-and-run accident. Illinois v. Lidster, 540 U.S. 419 (2004).
That’s all federal case law regarding checkpoints, including DWI-related checkpoints.
State law, of course, must respect federal constitutional guarantees given the incorporation of the Fourth Amendment through the Fourteenth Amendment against the states.
In State v. Rose, the North Carolina Court of Appeals decided whether sheriffs deputies in Onslow County had conducted a constitutional checkpoint in which a defendant was ultimately charged with felony possession with intent to sell and deliver marijuana. State v. Rose 612 SE 2d 336 (2005).
The defendant’s attorney usually receives a checkpoint plan or checkpoint program, a written document often “okayed” by a senior member of the department that purportedly spells out the specific programmatic purpose of the checkpoint. Both the state and federal supreme courts have held that a trial court must make an inquiry of the real purpose behind the checkpoint, and cannot simply rely on the State’s claim that the checkpoint served a valid purpose.
In addition, both courts have held that checkpoints cannot simply be validated because they are pursuing a programmatic purpose that is valid – for instance, DUI enforcement. In other words, if one of the many things you’re doing is DWI enforcement, the court has held that that legitimate purpose does not off-set the fact that you’ve established an illegal checkpoint.
In addition to a checkpoint being for a valid programmatic purpose, the Court must conduct a second inquiry as to the reasonableness with which the checkpoint is conducted.
In judging reasonableness, courts must look to “(1) the gravity of the public concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty.'” Lidster, 540 U.S. at 427 (quoting Brown, 443 U.S. at 51 (1979).
And here’s the crucial test from State v. Rose: “As Chief Justice Burger wrote in Brown—a decision reaffirmed and applied by the Supreme Court in 2004 in Lidster—a checkpoint “must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Brown, 443 U.S. at 51. There must be orderly procedures to limit the “unfettered discretion of officers in the field” in order to avoid the “arbitrary invasion” of motorists’ privacy interests. Id. The Supreme Court has stressed that “standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.” Prouse, 440 U.S. at 661.
It’s important to note that the inquiry about whether a checkpoint is valid or constitutional is separate and distinct about whether the individual officer behaved in an appropriate manner.
If the checkpoint is invalid, then the seizure is invalid.
In a typical DWI scenario, a defendant challenges the checkpoint, arguing that the checkpoint plan does not embody explicit, neutral limitations on the condcut of the individual officers. The prosecutor argues in rebuttal that, essentially, the illegal conduct – perhaps the impaired driving – was detected by an officer who did not behave beyond the scope of the limitations.
Frankly, the prosecutor’s response does not answer the state or federal appellate courts’ concerns. Appellate courts are concerned about checkpoints themselves that go beyond the narrow, limited criteria established in Prouse, City of Indianapolis, and Sitz.
If the checkpoint plan allows discretion to the officers, then the checkpoint plan is invalid and the checkpoint itself is unconstitutional.
If the checkpoint plan limits discretion, but officers act beyond the scope of the checkpoint plan, then the checkpoint itself is unconstitutional.
But a checkpoint is never valid if the checkpoint plan is overly broad… the defect in the checkpoint plan invalidates the entire operation, even if officers themselves behave in a restrained way.

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One of the predominant topics in any discussion about administrative law is standard of review. The standard of review is at the heart of judicial review proceedings. What I find much more interesting is standard of proof. The vast majority of administrative law decisions never go to judicial review, or even to an administrative appeal tribunal. The decision at first instance is often the final decision. From that perspective, the standard of proof is a far more important concept.
For administrative tribunals, the default is the civil standard of proof on the balance of probabilities, subject to any express statutory provision to the contrary: Stetler v. Agriculture, Food and Rural Affairs Appeal, 2005 CanLII 24217 (ON CA). There are numerous statutes providing various administrative bodies with a higher or lower standard of proof.
For example, in nearly all common law provinces, workers’ compensation cases are subject to a standard of proof that is modified by statute or regulation. In situations where the evidence on an issue is evenly weighted, the decision maker must come to a conclusion that favours the worker. The BC version of this provision was the subject of a recent Slaw article. Another example is the “reasonably satisfied” standard set out in the Canada Pension Plan, R.S.C., 1985, c. C-8. In fact, a single statute can set out different standards of proof that might apply depending on the level of adjudication within the administrative body and the legal issue to be decided, such as the Immigration and Refugee Protection Act,S.C. 2001, c. 27. As well, a line of authorities suggests that there is a higher standard of proof in establishing a prima facie case of discrimination in human rights tribunal hearings: SMS Equipment Inc v Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162 at para. 54.
The existence of an intermediate statutory standard was at the core of the recent case of Jacobs v. Ottawa (Police Service), 2016 ONCA 345 (CanLII), leave to appeal denied 2017 CanLII 444 (SCC). Jacobs dealt with s. 84(1) of the Police Services Act, R.S.O. 1990, c. P.15, which sets out the evidentiary standard that applies to a finding of misconduct. The Divisional Court found that s. 84(1) was simply an expression of the civil standard.
While the Court of Appeal acknowledged the Supreme Court of Canada’s pronouncement in F.H. v. McDougall, 2008 SCC 53 that there is only one standard of proof in civil proceedings, it confirmed that the civil standard could be modified by statute and that the Police Services Act had, in fact, modified the applicable standard in that case.
What is the Civil Standard, Exactly?
It is one thing to identify the standard of proof, it is another thing to define and apply it, especially if it is an intermediate statutory standard. While it is relatively simple to describe the civil standard as a probability of 50% plus one, and easy to apply in cases that do not involve much factual grey area, it is not so easy to apply in those where the probabilities are nearly equally divided.
It is interesting to note that there was little differentiation between the standard of proof in criminal and civil proceedings until the 19th century. The modern civil standard dates back to Doe dem. Devine v. Wilson (1855), 10 Moo. P.C.C. 502 and Cooper v. Slade, (1858), 6 H.L. Cas. 746. In the development of the standard, the difficulty arose in applying the civil standard to cases with quasi-criminal elements (defence allegations of fraud or crime on the plaintiff’s part), family law proceedings in the time before no-fault divorce, or matters of equity decided in the common law courts.
Various common-law world cases grappled with this matter: Briginshaw v. Briginshaw (1938), 60 C.L.R. 336 (Aust.H.C.); London Life Insurance Co. v. Trustee of the Property of Lang Shirt Co. Ltd.,  S.C.R. 117, Bater v. Bater,  2 All E.R. 458 (C.A.), Hanes v. Wawanesa Mutual Insurance Co.,  S.C.R. 154, and Continental Insurance Co. v. Dalton Cartage Co.,  1 S.C.R. 164, to name a few. Even R. v. Oakes, (1986), 26 D.L.R. 200 (S.C.C.), best known as the criminal law case that it is, weighed in on the matter of the civil standard, echoing Lord Denning’s pronouncement in Bater that there may be degrees of probability within the civil standard.
In McDougall, the Supreme Court tried to put an end to the decades of debate as to the nature of the civil standard in Canada – whether it was “flexible” or if there were “degrees of probability” within the standard. At para. 49, Rothstein J unequivocally stated that “there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred”.
At its simplest, as noted by Rothstein J., the balance of probabilities is a binary test: either something is or it is not. However, Rothstein J. cautioned, at para. 40, that a trier of fact must be mindful of “inherent probabilities or improbabilities or the seriousness of the allegations or consequences”, adding that this does not change the standard of proof. Further, at para. 46, he said that “evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test”.
To me, this is somewhat contrary to the court’s attempt to end the discussion once and for all. With the civil standard, something, no matter how small, must tip the scale. It is the determination of what tips the scale in which the difficulty lies. I would not be the first to suggest that being mindful of the seriousness of an allegation or a consequence of an outcome cannot but affect the standard that is applied. As well, the concept of “inherent probabilities or improbabilities” is vague and undefined, relying on what was then a very recent case from the UK, In re B, 2008 UKHL 35. That case provides little clarity as to the meaning of the term. In fact, it almost reads like a restatement of the concept of res ipsa loquitur, which had been done away with in Fontaine v. British Columbia (Official Administrator), 1998 CanLII 814 (SCC).
McDougall was not the S.C.C.’s first attempt to abolish the concept of a flexible civil standard or the idea that it had degrees of probability. In Dalton at p. 171, Laskin C.J. clearly rejected the idea of a flexible civil standard in Canadian law. Despite the definitive nature of the Chief Justice Laskin’s pronouncement, subsequent case law (including Oakes) revived the concepts of flexibility and degrees of probability. In fact, Dalton was often cited as an authority approving of the flexible civil standard, which should not be surprising given some internal logical inconsistencies in the case and Laskin C.J.’s reliance on Bater.
Without expressly citing them, this passage from Mowatt is definitely a throw-back to cases like Bater and Hanes, albeit doggedly holding onto the ratio of McDougall that there is but one inflexible standard of proof at common law for civil matters (absent, of course, any statute to the contrary). It might be said that this goes to the weight and persuasiveness of any piece of evidence rather than the standard of proof. However, this may be a different way of saying the same thing.
It’s All Semantics, Isn’t It?
The imprecision of words (usually the deceptively simple ones) may help keep philosophers and lawyers gainfully employed. Discussions of standard of proof are littered with synonyms, such as “cogent”, “degrees”, “probabilities”, “convincing”, and “reasonable”. These are likely all ways of saying the same thing.
Does this make the whole issue merely one of semantics? Lord Denning suggested as much in Bater: “[t]he difference of opinion which has been evoked about the standard of proof in these cases may well turn out to be more a matter of words than anything else.” In Standards of Proof (1955) 33 Can. Bar. Rev. 665, Professor Fridman argued that it is not possible to precisely and definitively express a standard of proof, no matter how technically language might be used. Rather, all that could be said is that a decision maker must be satisfied of the truth of a particular fact.
Turning back to those matters for which a statute alters the standard of proof, the line of authorities discussing the flexibility of the civil standard or an intermediate standard of proof is important. They can providence to practitioners in administrative proceedings where the standard of proof has been altered by statute. Perhaps the best strategy is to avoid the semantics of the standard of proof and focus one’s advocacy on a persuasive analysis of the available evidence.

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Where a district court in the Territory of Utah refuses to issue a writ of habeas corpus involving the question of personal freedom, an appeal lies to this Court from its order and judgment of refusal.
The offense of cohabiting with more than one woman, created by § 3 of the Act of Congress of March 22, 1852, c. 47, 22 Stat. 31, is a continuous offense, and not one consisting of an isolated act.
(1) There was but one entire offense for the continuous time.
(2) The trial court had no jurisdiction to inflict a punishment in respect of more than one of the convictions.
(3) As the want of jurisdiction appeared on the face of the proceedings, the defendant could be released from imprisonment on a habeas corpus.
(4) The order and judgment of the court below must be reversed and the case be remanded to that court with a direction to grant the writ of habeas corpus prayed for.
This was an appeal from an order of court refusing an application for a writ of habeas corpus. The case is stated in the opinion of the Court.
and on conviction thereof shall be punished by a fine of not more than three hundred dollars or by imprisonment for not more than six months, or by both said punishments, in the discretion of the court."
"at the County of Box Elder, in the said district, territory aforesaid, and within the jurisdiction of this court, and on divers other days and times thereafter, and continuously between said 1st day of January, A.D. 1883, and the 31st day of December, A.D. 1883, did then and there unlawfully live and cohabit with more than one woman, to-wit, with Adeline Snow, Sarah Snow, Harriet Snow, Eleanor Snow, Mary H. Snow, Phoebe W. Snow, and Minnie Jensen Snow, and during all the period aforesaid at the county aforesaid, he, the said Lorenzo Snow, did unlawfully claim, live, and cohabit with all of said women as his wives."
"and on divers other days and times thereafter, and continuously between said 1st day of January, A.D. 1885, and the 1st day of December, A.D. 1885, did then and there unlawfully live and cohabit with more than one woman, to-wit, with"
"and on divers other days and times thereafter, and continuously between said first day of January, A.D. 1884, and the thirty-first day of December, A.D. 1884, did then and there unlawfully live and cohabit with more than on woman, to-wit, with"
claim, live, and cohabit with all of said women as his wives."
At the time of filing each indictment, it was properly endorsed "a true bill, etc., and with the names of the witnesses." The same sixteen witnesses were examined before the grand jury, "on one oath and one examination, as to the alleged offense during the entire time mentioned in all of said three indictments, and" they were found "upon the testimony of witnesses given on an examination covering the whole time specified in said three indictments." On the 11th of December, 1885, the defendant was arraigned on each of the three indictments, and interposed a demurrer to each, which being overruled, he pleaded not guilty to each.
Indictment No. 742 was first tried, covering the period from and including January 1, 1885, to December 1, 1885. On the 31st of December, 1885, a verdict of guilty was rendered, and the court fixed the 16th of January, 1886, as the time for passing sentence.
Indictment No. 743 was next tried, covering the period from and including January 1, 1884, to December 31, 1884. The defendant orally put in an additional plea in bar, setting up his prior conviction on Indictment No. 742, and that the offense charged in all of the indictments was one continuous offense, and the same offense, and not divisible. On an oral demurrer to this plea, the demurrer was sustained. On the trial by the jury, a verdict of guilty was rendered on the 5th of January, 1886, and the court fixed the 16th of January, 1886, as the time for passing sentence.
Indictment No. 741 was next tried, covering the period from and including January 1, 1883, to December 31, 1883. The defendant orally put in an additional plea in bar, setting up his prior convictions on indictments Nos. 742 and 743, and that the offense charged in all of the indictments was one continuous offense, and the same offense, and not divisible. On an oral demurrer to this plea, the demurrer was sustained. On the trial by the jury, a verdict of guilty was rendered on the 5th of January, 1886, and the court fixed the 16th of January, 1886, as the time for passing sentence.
"[Title of Court and Cause]"
"The defendant, and his counsel, F. S. Richards and C. C. Richards, Esq'rs (of counsel), came into court. The defendant was duly informed of the nature of the indictments found against him on the 5th day of December, 1885, by the grand jury of this court, for the crime of unlawful cohabitation, committed as stated in said indictments, and during the time, as follows, viz., Indictment No. 741, between the 1st day of January, A.D. 1883, and the 31st day of December, A.D. 1883; Indictment No. 742, between the 1st day of January, A.D. 1885, and the 1st day of December, A.D. 1885; Indictment No. 743, between the 1st day of January, A.D. 1884, and the 31st day of December, A.D. 1884; of his arraignment and plea of not guilty as charged in said three indictments, on the 16th day of December, A.D. 1885; of his trial and the verdicts of the juries; Indictment No. 742, 'Guilty as charged in the indictment,' on December 31, 1885; Indictment No. 743, 'Guilty as charged in the indictment,' on January 5, 1886; Indictment No. 741, 'Guilty as charged in the indictment,' on January 5, 1886."
"The said defendant was then asked if he had any legal cause to show why judgment should not be pronounced against him, to which he replied that he had none, and no sufficient cause being shown or appearing to the court, thereupon the court renders its judgment that whereas said Lorenzo Snow having been duly convicted in this Court of the crime of unlawful cohabitation, it is ordered, adjudged, and decreed that said Lorenzo Snow be imprisoned in the penitentiary of the Territory of Utah for a period of six months, and that he do forfeit and pay to the United States a fine of three hundred dollars, and the costs of this prosecution, and that he do stand committed into the custody of the U.S. marshal for said territory until such fine and costs be paid in full. (As to Indictment No. 741.) "
"And it is further ordered, adjudged, and decreed that at the expiration of the sentence and judgment rendered on said Indictment No. 741, said Lorenzo Snow be imprisoned in the penitentiary of Utah Territory for a period of six months, and that he do forfeit and pay to the United States the sum of three hundred dollars, and the costs of this prosecution, and that he do stand committed into the custody of the U.S. marshal for said territory until such fine and costs be paid in full. (As to Indictment No. 742.)"
"And it is further ordered, adjudged, and decreed that at the expiration of the sentence and judgment as last above rendered on said Indictment No. 742, said Lorenzo Snow be imprisoned in the penitentiary of Utah Territory for a period of six months, and that he do forfeit and pay to the United States the sum of three hundred dollars, and the costs of this prosecution, and that he do stand committed into the custody of the U.S. marshal for said territory until such fine and costs be paid in full. (As to Indictment No. 743.)"
"The said defendant, Lorenzo Snow, is remanded into the custody of the United States Marshal for Utah Territory, to be by him delivered into the custody of the warden or other proper officer in charge of said penitentiary, and said warden or other proper officer of said penitentiary is hereby commanded to receive of and from the said United States marshal, him, the said Lorenzo Snow, convicted and sentenced as aforesaid, and him, the said Lorenzo Snow, keep and imprison in said penitentiary for the periods as in this judgment ordered and specified."
being the record of said matters in the District Court of the First Judicial District of the Territory of Utah,"
"upon more than one of the indictments or records referred to in its said judgment, for the reason that the offense therein set out is the same as that contained and set out in each of the other said indictments and records, and the maximum punishment which the court had authority to impose was six months' imprisonment and a fine of three hundred dollars;"
and "that by his said imprisonment, your petitioner is being punished twice for one and the same offense." The prayer is for a writ of habeas corpus to the end that the petitioner may be discharged from custody.
"The petition of Lorenzo Snow for a writ of habeas corpus having been presented to the court, with the exhibits attached as a part thereof, and the court having fully considered the application and petition and the exhibits attached, finds that the facts alleged and shown by the petition and exhibits are insufficient to authorize the issuance of the writ, and the court being of the opinion, from the allegations and facts stated in the petition and exhibits, that, if the writ be granted and a hearing given, the petitioner could not be discharged from custody, it is ordered and adjudged by the court that the said application for a writ of habeas corpus be, and the same is hereby, refused, to which ruling and refusal applicant, by his counsel, excepts."
From this order and judgment, the petitioner has appealed to this Court.
as set forth in its order and judgment refusing to issue the writ, was, so far as an appeal is concerned, equivalent to a refusal to discharge the petitioner on a hearing on the return to a writ, and that under § 1909 of the Revised Statutes an appeal lies to this Court from that order and judgment. It is contended for the United States that as the court which tried the indictments had jurisdiction over the offenses charged in them, it had jurisdiction to determine the questions raised by the demurrers to the oral pleas in bar in the cases secondly and thirdly tried; that it tried those questions; that those questions are the same which are raised in the present proceeding; that they cannot be reviewed on habeas corpus by any court, and that they could only be reexamined here on a writ of error, if one were authorized. For these propositions the case of Ex Parte Bigelow, 113 U. S. 328, is cited. But for the reasons hereafter stated, we are of opinion that the decision in that case does not apply to the present one.
not a separate judgment in each case, but only one judgment in form was rendered for all the cases. The judgment says on its face that the proper officer of the penitentiary is to imprison the defendant therein "for the periods as in this judgment ordered and specified" -- that is, for three successive periods of six months each, the first period to apply to the indictment thirdly tried, the second period to apply to the indictment first tried, and to begin when the sentence and judgment on the indictment thirdly tried should expire, and the third period to apply to the indictment secondly tried, and to begin when the sentence and judgment on the indictment secondly tried should expire. No case is cited where what has been done in the present case has been held to be lawful. But the uniform current of authority is to the contrary, both in England and in the United States.
"That no tradesman or other person shall do or exercise any worldly labor, business, or work of their ordinary calling on the Lord's day, works of necessity and charity only excepted."
three last convictions. How, then, can there be a doubt but that the plaintiff might take this objection at the trial?"
"But what could the justification have been in this case if any had been attempted to be set up? It could only have been this: that because the plaintiff had been convicted of one offense on that day, therefore the justice had convicted him in three other offenses for the same act. By law, that is no justification. It is illegal on the face of it, and therefore, as was very rightly admitted by the counsel for the defendant in the argument, if put upon the record by way of plea, would have been bad, and on demurrer must have been so adjudged. Most clearly, then, it was open to the plaintiff, upon the general issue, to take advantage of it at the trial. The question does not turn upon niceties, upon a computation how many hours distant the several bakings happened, or upon the fact of which conviction was prior in point of time, or that for uncertainty in that respect they should all four be held bad. But it goes upon the ground that the offense itself can be committed only once in the same day."
from imprisonment under the illegal judgment. These considerations distinguish the case from that of Ex Parte Bigelow, ubi supra, and bring it within the principle of such cases as Ex Parte Milligan, 4 Wall. 2, 71 U. S. 131; Ex Parte Lange, 18 Wall. 163, 85 U. S. 178, and Ex Parte Wilson, 114 U. S. 417.
A distinction is laid down in adjudged cases and in text writers between an offense continuous in its character, like the one at bar, and a case where the statute is aimed at an offense that can be committed uno ictu. The subject is discussed in 1 Wharton's Criminal Law, 9th ed., §§ 27, 931, and the cases on the subject are cited.
The principle which governs the present case has been recognized and approved in many cases in the United States. Washburn v. McInroy (1810), 7 Johns. 134; Mayor v. Ordrenan (1815), 12 Johns. 122; Tiffany v. Driggs (1816), 13 Johns. 253; State v. Commissioners (1818), 2 Murph. 371; United States v. McCormick (1830), 4 Cranch.C.C. 104; State v. Nutt (1856), 28 Vt. 598; State v. Lindley (1860), 14 Ind. 430; Sturgis v. Spofford (1871), 45 N.Y. 446; Fisher v. New York Central & Hudson River Railroad (1871), 46 N.Y. 644; State v. Egglesht (1875), 41 Ia. 574; United States v. New York Guaranty & Indemnity Co. (1875), 8 Benedict 269; United States v. Erie Railway Co. (1877), 9 Benedict 67, 68.
The case of Commonwealth v. Connors, 116 Mass. 35, gives no support to the view that a grand jury may divide a single continuous offense running through a past period of time into such parts as it may please, and call each part a separate offense. On the contrary, in Commonwealth v. Robinson, 126 Mass. 259, it is said that the offense of keeping a tenement for the illegal sale of intoxicating liquors on a day named and on divers other days and times between that day and a subsequent day is but one offense, even though the tenement is kept during every hour of the time between those two days, such offense being continuous in its character.
the writ of habeas corpus prayed for and to take such proceedings thereon as may be in conformity with law and not inconsistent with the opinion of this Court.


This matter is before the court on Plaintiff's Motion for Attorney Fees Under the Equal Access to Justice Act (EAJA) (28 U.S.C. § 2412). (Doc. 17) (Pl. Mot.). Plaintiff seeks $6, 753.95 in attorney fees. Id. The Acting Commissioner (hereinafter Commissioner) admits that a fee award is proper but argues that the amount requested is unreasonable because the time claimed includes time not properly chargeable. She suggests that no more than $5, 500.00 would be a reasonable fee. (Comm'r Response 5). The matter is fully briefed and ripe for decision.
Plaintiff's counsel has established by affidavits attached to his motion that: (1) he represents Plaintiff in this matter, (2) the fee cap under EAJA, adjusted for cost of living increases, is $192.68 per hour for 2016 and $196.79 for 2017 and 2018, and (3) he expended three and eight-tenths hours in representing Plaintiff in 2016 and thirty and six-tenths hours representing Plaintiff in 2017 and 2018. (Pl. Mot. & Attach 1).
The Commissioner does not dispute the fee cap adjustment, and the court finds that $192.68 and $196.79 are reasonable rates under the EAJA during the applicable periods. The Commissioner argues that Plaintiff's counsel wrongly seeks fees for clerical work or administrative work performed by counsel at the same rate as legal work and that he has complicated the problem by his use of block billing-lumping multiple tasks into a single entry of time, which although not per se prohibited may prevent the court from identifying the reasonable time spent on compensable tasks. (Comm'r Response 4) (citing Cadena v. Pacesetter Corp., 224 F.3d 1203, 1215 (10th Cir. 2000)).
The court has a duty to evaluate the reasonableness of any fee request. Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). The EAJA, 28 U.S.C. § 2412, applies in Social Security cases. Section 2412(d)(1)(A) of the Act requires that a court award a fee to a prevailing plaintiff unless the court finds that the position of the United States was substantially justified. Estate of Smith v. O'Halloran, 930 F.2d 1496, 1501 (10th Cir. 1991). The test for substantial justification is one of reasonableness in law and fact. Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995). The Commissioner bears the burden to show substantial justification for her position. Id.; Estate of Smith, 930 F.2d at 1501. The maximum fee of $125 provided in § 2412(d)(2)(A), if awarded, may be adjusted for increases in the cost of living. Harris v. R.R. Ret. Bd., 990 F.2d 519, 521 (10th Cir. 1993); 28 U.S.C. § 2412(d)(2)(A)(ii).
The court agrees with the Commissioner that “Ramos[ v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983)] admonishes attorneys who wish to recover attorneys' fees not to utilize the practice of block billing, because block billing does not precisely delineate ‘how ... hours were allotted to specific tasks.'” Cadena, 224 F.3d at 1215 (quoting Ramos, 713 F.2d at 553). However, as the court found in Cadena, Plaintiff here has provided billing records sufficient to allow “the court to determine the time allotted by h[is] attorneys to specific tasks and the reasonableness of that time.” Cadena, 224 F.3d at 1215. Plaintiff is correct that it is appropriate for an attorney to supervise and follow up on subordinates, to confer with clients regarding decisions in and the progress of the case, and to calendar issues as reminders of further action needed or documentation of actions taken. The court finds that $6, 753.95 is a reasonable attorney fee in this case.
The court notes one issue regarding award of statutory fees of which the parties need reminding. It does not appear that the parties made a good faith attempt to reach agreement on fees before raising the issue to the court. “A request for attorney's fees should not result in a second major litigation.” Hensley, 461 U.S. at 437. Therefore, the district has enacted D. Kan. Rule 54.2 which requires opposing counsel to consult to reach an agreement regarding fees. The rule is designed “to save the parties time and money in litigating unnecessary issues.” Lintz v. American Gen. Fin., Inc., 87 F.Supp.2d 1161, 1165 (D. Kan. 2000).
In his motion, Plaintiff states that he contacted the Commissioner “about this anticipated filing, ” but that he had no response from defense counsel or the Social Security Administration. (Pl. Mot. 1). This statement is insufficient to meet the requirements of the local rule which states that the party seeking statutory fees “must promptly initiate consultation, ” and, where the parties do not agree on fees, must file a statement of consultation setting “forth the date of consultation, the names of those who participated, and the specific results achieved.” D. Kan. R. 54.2. It is Plaintiff's responsibility as the party seeking fees to comply with the requirements of the local rule. However, it is also the Commissioner's responsibility to participate in good faith in the process, and it looks like neither party did any more than pay lip service to the rule. The court expects more. The rule contemplates that the moving party may file his motion for fees, and may then take up to an additional 30 days before either the parties file a stipulation and request for order, or the moving party files a statement of consultation and a “memorandum setting forth the factual basis for each criterion that the court is asked to consider in making an award.” Id. at (b), (c). If the moving party promptly initiates consultation, there should be no reason good faith consultation will not be had before the statement, memorandum, and supporting documents must be filed.


E. "Health care information" means information that directly identifies the individual and that relates to an individual's physical, mental or behavioral condition, personal or family medical history or medical treatment or the health care provided to that individual. "Health care information" does not include information that protects the anonymity of the individual by means of encryption or encoding of individual identifiers or information pertaining to or derived from federally sponsored, authorized or regulated research governed by 21 Code of Federal Regulations, Parts 50 and 56 and 45 Code of Federal Regulations, Part 46, to the extent that such information is used in a manner that protects the identification of individuals. The Board of Directors of the Maine Health Data Organization shall adopt rules to define health care information that directly identifies an individual. Rules adopted pursuant to this paragraph are routine technical rules as defined in Title 5, chapter 375, subchapter II-A.
2. Confidentiality of health information; disclosure. An individual's health care information is confidential and may not be disclosed other than to the individual by the health care practitioner or facility except as provided in subsection 3, 3-A, 3-B, 6 or 11. Nothing in this section prohibits a health care practitioner or health care facility from adhering to applicable ethical or professional standards provided that these standards do not decrease the protection of confidentiality granted by this section.
3-A. Oral authorization to disclose. When it is not practical to obtain written authorization under subsection 3 from an individual or person acting pursuant to subsection 3-B or when a person chooses to give oral authorization to disclose, a health care practitioner or facility may disclose health care information pursuant to oral authorization. A health care practitioner or facility shall record with the individual's health care information receipt of oral authorization to disclose, including the name of the authorizing person, the date, the information and purposes for which disclosure is authorized and the identity or description of the 3rd party to whom the information is to be disclosed.
4. Duration of authorization to disclose. An authorization to disclose may not extend longer than 30 months, except that the duration of an authorization for the purposes of insurance coverage under Title 24, 24-A or 39-A is governed by the provisions of Title 24, 24-A or 39-A, respectively.
5. Revocation of authorization to disclose. A person who may authorize disclosure may revoke authorization to disclose at any time, subject to the rights of any person who acted in reliance on the authorization prior to receiving notice of revocation. A written revocation of authorization must be signed and dated. If the revocation is in electronic form, a unique identifier of the individual and the date the individual authenticated the electronic authorization must be stated in place of the individual's signature and date of signature. A health care practitioner or facility shall record receipt of oral revocation of authorization, including the name of the person revoking authorization and the date. A revocation of authorization must be retained with the authorization and the individual's health care information.
A. To another health care practitioner or facility for diagnosis, treatment or care of individuals or to complete the responsibilities of a health care practitioner or facility that provided diagnosis, treatment or care of individuals, as provided in this paragraph.
(1) For a disclosure within the office, practice or organizational affiliate of the health care practitioner or facility, no authorization is required.
(e) A physician specializing in psychiatry licensed under the provisions of Title 32, chapter 36 or 48.
This subparagraph does not prohibit the disclosure of health care information between a licensed pharmacist and a health care practitioner or facility providing mental health services for the purpose of dispensing medication to an individual.
This subparagraph does not prohibit the disclosure without authorization of health care information covered under this section to a state-designated statewide health information exchange that satisfies the requirement in subsection 18, paragraph C of providing a general opt-out provision to an individual at all times and that provides and maintains an individual protection mechanism by which an individual may choose to opt in to allow the state-designated statewide health information exchange to disclose that individual's health care information covered under Title 34-B, section 1207.
7. Confidentiality policies. A health care practitioner, facility or state-designated statewide health information exchange shall develop and implement policies, standards and procedures to protect the confidentiality, security and integrity of health care information to ensure that information is not negligently, inappropriately or unlawfully disclosed. The policies of health care facilities must provide that an individual being admitted for inpatient care be given notice of the right of the individual to control the disclosure of health care information. The policies must provide that routine admission forms include clear written notice of the individual's ability to direct that that individual's name be removed from the directory listing of persons cared for at the facility and notice that removal may result in the inability of the facility to direct visitors and telephone calls to the individual.
8. Prohibited disclosure. A health care practitioner, facility or state-designated statewide health information exchange may not disclose health care information for the purpose of marketing or sales without written or oral authorization for the disclosure.
10. Requirements for disclosures. Except as otherwise provided by law, disclosures of health care information pursuant to this section are subject to the professional judgment of the health care practitioner and to the following requirements.
11. Health care information subject to other laws, rules and regulations. Health care information that is subject to the provisions of 42 United States Code, Section 290dd-2 (Supplement 1998); chapters 710-B and 711; Title 5, section 200-E; Title 5, chapter 501; Title 24 or 24-A; Title 34-B, section 1207; Title 39-A; or other provisions of state or federal law, rule or regulation is governed solely by those provisions.
12. Minors. If a minor has consented to health care in accordance with the laws of this State, authorization to disclose health care information pursuant to this section must be given by the minor unless otherwise provided by law.
13. Enforcement. This section may be enforced within 2 years of the date a disclosure in violation of this section was or should reasonably have been discovered.
14. Waiver prohibited. Any agreement to waive the provisions of this section is against public policy and void.
15. Immunity. A cause of action in the nature of defamation, invasion of privacy or negligence does not arise against any person for disclosing health care information in accordance with this section. This section provides no immunity for disclosing information with malice or willful intent to injure any person.
16. Application. This section applies to all requests, directives and authorizations to disclose health care information executed on or after February 1, 2000. An authorization to disclose health care information executed prior to February 1, 2000 that does not meet the standards of this section is deemed to comply with the requirements of this section until the next health care encounter between the individual and the health care practitioner or facility.
18. Participation in a state-designated statewide health information exchange. The following provisions apply to participation in a state-designated statewide health information exchange.
(4) A declaration that a health care practitioner, health care facility or other entity may not deny a patient health care treatment based solely on the provider's or patient's decision not to participate in a state-designated statewide health information exchange.
F. A state-designated statewide health information exchange shall process the request of a patient who has decided not to participate in the state-designated statewide health information exchange within 2 business days of receiving the patient's decision to decline, unless additional time is needed to verify the identity of the patient. A signed authorization from the patient is required before a patient is newly entered or reentered into the system if the patient chooses to begin participation at a later date.
20. Exemption from freedom of access laws. Except as provided in this section, the names and other identifying information of individuals in a state-designated statewide health information exchange are confidential and are exempt from the provisions of Title 1, chapter 13.
RR 1997, c. 2, §44 (COR). 1997, c. 793, §A8 (NEW). 1997, c. 793, §A10 (AFF). 1999, c. 3, §§1,2 (AMD). 1999, c. 3, §§3,5 (AFF). 1999, c. 512, §A5 (AMD). 1999, c. 512, §A6, 7 (AFF). 1999, c. 790, §§A58,60 (AFF). RR 2001, c. 1, §26 (COR). 2001, c. 346, §1 (AMD). 2009, c. 211, Pt. B, §17 (AMD). 2009, c. 292, §3 (AMD). 2009, c. 292, §6 (AFF). 2009, c. 387, §§1, 2 (AMD). 2011, c. 347, §§6-8 (AMD). 2011, c. 373, §§1-4 (AMD). 2011, c. 572, §1 (AMD). 2011, c. 691, Pt. A, §20 (AMD). 2013, c. 289, §§1, 2 (AMD). 2013, c. 326, §1 (AMD). 2013, c. 528, §1 (AMD). 2013, c. 528, §12 (AFF). RR 2015, c. 1, §17 (COR). 2015, c. 218, §1 (AMD). 2015, c. 370, §§4, 5 (AMD). 2017, c. 203, §§2-4 (AMD). 2017, c. 402, Pt. C, §44 (AMD). 2017, c. 402, Pt. F, §1 (AFF). 2017, c. 407, Pt. A, §72 (AMD).


Do not fund your enemy's army. Do not ever pay these ordered amounts. It is a civil debt and they can go through normal collection processes. Even if you are held in contempt, which should not happen, you can not be jailed for this type of debt, like you can before child support due to this being treated differently than a civil debt by law.
Divorce is the #3 reason for bankruptcy due to the insane orders of courts that look only at the mothers financial to make determinations and often leave fathers unable to support themselves. With 40% of take-home pay (average with 2 children) going to the wife TAX FREE a man earning $50,000 per year takes home $357/month. Not even enough to rent an apartment, never mind a car, food and other living expenses.
Normal civil debt requires a "meeting of the minds", contract or agreement. None exists so collection is VERY difficult.
NEVER PAY YOUR SPOUSE'S LEGAL BILLS!
Every war is a war of attrition and funding your enemy is just plain stupid!!
Lawyers are mercenaries! No cash no service!
Each person pays his own attorney fees.
As a general rule, a litigant must bear his own expenses including attorney fees, except where a statute permits the award of costs, a valid contract or stipulation provides for costs, or rules concerning damages permit recovery.
2. Attorney's fees. Aurora urges that the award of attorney's fees by the second judge in the amount of $2,000 must be vacated as there is no statutory basis for the award and no contractual provision for fees in the parties' separation agreement.
"As a general rule in Massachusetts, a litigant must bear his own expenses including attorney's fees, except where a statute permits the award of costs, a valid contract [or] stipulation provides for costs, or rules concerning damages permit[ ] recovery." Judge Rotenberg Educ. Center, Inc. v. Commissioner of Dept. of Mental Retardation (No. 1), 424 Mass. 430, 468 (1997); Krock v. Krock, 46 Mass.App.Ct. 528, 531 n. 2 (1999). See Police Commr. of Boston v. Gows, 429 Mass. 14, 17 (1999) ("Massachusetts generally follows the 'American Rule' and denies recovery of attorney's fees absent a contract or statute to the contrary.") Additional exceptions to the general rule have been created, where, for example, an insured under a homeowner's policy has successfully established an insurer's duty to defend, Preferred Mut. Ins. Co. v.. Gamache, 426 Mass. 93, 95-97 (1997), or a party has been forced to litigate to obtain what previously had been awarded by a court even though the opposing party's conduct did not constitute contempt. Police Commr. of Boston v. Gows, 429 Mass. at 17-19. See the case summaries in Krock v. Krock, 46 Mass.App.Ct. at 531-532 n 2.
 We have recognized the explicit language of G. L. c. 186, § 14, which provides for payment of attorney's fees, and this language is not limited to attorney's fees for trial proceedings. See Darmetko v. Boston Hous. Auth., 378 Mass. 758, 765 (1979). Similarly, we approved the award of attorney's fees under G. L. c. 186, § 18, where the statutory language is equally clear and not limited to attorney's fees for trial proceedings. See Ianello v. Court Management Corp., 400 Mass. 321, 325 (1987). The language of G. L. c. 93A, § 9 (4), leaves no doubt as to the right to recover attorney's fees without any suggestion that fees for the appeal are excluded. See Kohl v. Silver Lake Motors, Inc., 369 Mass. 795, 801 (1976). The statutory provisions for a "reasonable attorney's fee" would ring hollow if it did not necessarily include a fee for the appeal. The right to appellate attorney's fees under these statutes is beyond dispute.
 2. Procedure for the award of attorney's fees for appellate work. A more difficult question is whether the rule which we announced in Mellor v. Berman, 390 Mass. 275, 284 (1983), to the effect that "either appellate costs nor attorney's fees for the appeal can be imposed by a trial court absent authorization by an appellate court or by virtue of a rule or statute," applies to attorney's fees for appellate work under the statutes in the present case. We have treated as discretionary in the appellate court the award of attorney's fees on appeal where a statute provides for the payment of reasonable attorney's fees. Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270, 272 (1985). Although, in Mellor, the court was deciding the issue under G. L. c. 186, § 15B, a statute which does not figure in the present case, the rule has been extended to the award of appellate attorney's fees under the statutes in the present case. See Patry v. Liberty Mobilehome Sales, Inc., supra.
 We are asked to abandon the Mellor rule in favor of a practice which would permit a trial Judge to award attorney's fees for appellate services without any authorization from an appellate court. Despite the force and diversity of the arguments for abandonment of the Mellor rule, we conclude that the rule is sound.
 An appellate court is in a far better position to evaluate the worth of the appellate work than the trial Judge. The Justice of the appellate court who writes the opinion for the court develops nothing short of an intimacy with the record on appeal and the briefs. An appellate Justice on the quorum or panel which hears and decides the appeal develops a knowledge of the case and the value of the work of the attorney who seeks compensation. A trial Judge simply cannot bring to bear this familiarity with the appellate work.
 3. The procedure under Mellor v. Berman. If Mellor has left the bar unclear as to the procedural requirements of an award of legal fees for appellate work, we set them forth.
 A party who seeks an award of appellate attorney's fees should request them in his brief. If such party does not prevail, he is not entitled to fees, though no harm accrues from the request. If such party prevails, he may then submit his petition for fees together with the necessary back-up material and details as to hours spent, precise nature of the work, and fees requested. The other party should be given a reasonable time to respond. The appellate Justice who considers the petition may request more data and may set down the matter for hearing with notice to the other party. This procedure places no greater burden on the parties than the procedure requested before the trial Judge.
What the probate judges do and what is legal are almost certainly two different things. They will intimidate you to do their will without regard for the real law, knowing the 95% of people will not understand it is illegal or appeal. I was found in contempt for not paying the mortgage when I did not have the money and wife was living in my house protected by my prenup - TOTALLY ILLEGAL by case law and prenup contract!!!!
He sentenced me to 30 days and never enforced, though wife moved out and kind of acquiesced making the order moot after the pretrial on the prenup where they admitted the prenup was valid (except for a small illegal carve out her attorney try to get). But the contempt finding still hangs there.
It is your responsibility to fight these. As a civil debt with no contract collection is difficult and I have heard most attorneys don't even try to collect these.
My appeals forced judge to take me more seriously - though this pisses them off a bit too. He now has 3 different appeals hanging over him from me, so if I file civil rights suit against him there is a clear history and pattern of judicial abuse there (if I fight and win, which is very likely). If no appeal you are accepting his/her ruling. I asked for a finding of facts on this, as you always should, and this was granted but never done by judge. As I understand it most judges will not enforce the sentence while under appeal. He is getting more and more irritated as I learn more and more and he knows I know he is doing illegal things. I count about 22 illegal things my judge has done now - averaging about 4 per hour in front of him or on illegal act each 15 minutes. He is just no realizing that I know these things are illegal and most people don't. Knowledge is power!! He will have to be more careful moving forward as I hint that a record of real abuse and prejudice is being built here.
You can also motion for a Stay of this sentence at both the probate and appeals court level (must do in that order) giving you 2 bites at the apple to hold it off during a LONG appeal process. By the time the appeal is done the order and sentence may be moot anyway or it may be dropped due to the expense and other progress.
LESSON I LEARNED: You should always appeal such an order (notice of appeal to reserve that right is just a letter within 30 days saying you will appeal X) and fight both the order itself and the contempt (2 chances to win). Most of us are so poor after this process it is easy to make the case you can not afford to pay it anyway. Case law says you can not be found in contempt unless it is PROVEN that you have the ability to pay on the day of the contempt hearing. They would have to bring in a 3rd party financial statement showing you had all that cash hidden somewhere. So in other words if you can not afford to pay it then you should be able to get out of it easy. The lawyer will forget it long before you recover financially from your divorce. BTW I think that pension money does not count so if the money is in a 401K, Roth IRA or other retirement fund I THINK you can still have lots of assets. So if this is coming put all your funds into retirement accounts. (not sure about Coverdell, but since you can put $250,000 in these if this is exempted too then you have lots of place to put funds that cannot be taken for these legal fees. Not paying legal fees is the best way to get the divorce resolved more quickly - it is amazing how these will go on and on for rich folk and poor folk get this resolved without any real legal costs!
Subject: Re: anyone know if Plaintiff attorney bill protected like child support?
So while still in a temporary order, the marital estate would have to file bankruptcy, not just one of the individuals?
Well now, that is interesting information that I didn't know. As a matter of fact, now that you mentioned that, I do recall something in the judgment that the judge ordered me to pay her attorney's fees amounting to something like $17,000.00. But I have not paid any of that myself. That was in N.Y. and I am in R.I.. Do you think that may play a role as to why I haven't been notified that I am in contempt?
In a contempt situation this is not true. So you were lucky, I wasn't and he might not be so. All they have to do is find him in contempt and order him to pay. I can show you a copy of such resulting in a deferred 7 day sentence if you don't believe me.
YOU DON'T HAVE TO WORRY ABOUT PLAINTIFF'S LAWYER'S BILL (UNLESS YOU'RE THE PLAINTIFF). HER ATTORNEY KNOWS THAT HE/SHE WILL NOT GET PAID (FROM YOU ANYWAY). THEY MAY BE SO BOLD AS TO SEND YOU A BILL OR EVEN SEND IT TO AN OFFICIAL BILL COLLECTING AGENCY, LIKE SOME OTHER ATTORNEY'S OFFICE. JUST IGNORE IT. THE SAME HAPPENED TO ME AND IF YOU ARE SO STUPID TO EVEN PAY A PORTION OF IT, THEN THEY'LL TREAT IT AS IF YOU MUST PAY IT. I IGNORED THE BILL AND I NEVER EVEN RECEIVED A SECOND BILL AND IT NEVER WENT TO A BILL COLLECTING AGENCY. THERE IS NOTHING THAT THEY CAN DO. PERIOD. YOU NEVER CONTRACTED THE PLAINTIFF'S ATTORNEY SO IT IS NOT YOUR RESPONSIBILITY.
File the lawyers invoice in the bankruptcy. Also send him a notice denying any liability for that debt. Just write DEBT DENIED on the bill and send a copy back.
Unless the Judges orders you to pay her fees, its not a legal debt. Even if the Judge orders it, you can "bankrupt it." or just ignore it. It is a civil debt and should be treated as such.
It is my practice to just ignore these bills and claims of debt. I have never had a lawyer try to collect a court ordered fee from me. They have better things to do with their time that will be MORE profitable. Should they ever decide to try to collect, I will run them through an unbelievable process taking hours and hours of billable time, and final result is they will still not collect. I would demand all their billings for all their clients for the last 5 years for a starter. I did this to Bank of America collectors last year and the lawyers retreated!!
I currently have over $20,000 in alleged attorney debts ordered by Judges over the last 10 years. I have never determined if I owe the lawyer or the EX from the order. It 's unclear who to pay. The Judge just orders you to pay it. There can be no contempt from an unclear order. The above advice is based on real experience.
Subject: anyone know if Plaintiff attorney bill protected like child support?
Anyone know if filing bankruptcy the plaintiff's lawyers invoice is treated like taxes due or child support?
Child support can NOT be bankrupted. Period. Neither can alimony, nor some other things, like taxes, and even student loans (the last one is usually not, although there are exceptions for this under proven "undue hardship").
1- Lewko doesn't say explicitly that one can bankrupt child support. But as it is a debt "Like any other debt", by implication, it would be subject to the Fair Debt Collection Practices Act, and other consumer credit laws because it has been declared to be a common, commercial debt (see below excerpts from Lewko).
Therefore, as such a debt, it maybe discharged in bankruptcy.
explicitly would be useful. Are there any case laws or statutes that explicitly state what categories of debt are dischargeable ?
2- That child support payment "enforced through civil remedies. "
hopefully this should reign in the judges from their excesses.
upbringing of the child. " Using this, a non-custodial parent could sue the custodial parent for accountability.
Lewko case regards child support as ' a "thing" in commerce.
106 F.3d at 1033. '.
another civil court, is a debt that may be enforced through civil remedies.
Sage, 92 F.3d at 106).
commercial channels. See also Mussari, 95 F.3d at 790. "
laws' i cannot locate it.
opinions. The First Circuit explained the situation.
UNITED STATES, Appellee, v. RICHARD C. LEWKO, Defendant, Appellant.
Everything else in the email (below) stands.
credit act, would be dischargeable in bankruptcy.
So, which one is right ? Has anyone got a straight answer / case laws?
to a custodial Dad right now in MI. Mom's arrears are approx.
they want? Did you know you could do this?? Welcome to reality!
shouldsupport their children. Good Lord, where is the justice?
Maybe I'm misunderstanding the laws?


In the recent case of Dion v. Batten, No. COA16-63, 2016 WL 4088417 (N.C. App. Aug. 2, 2016), the North Carolina Court of Appeals held for the first time that an underinsured motorist (UIM) carrier has standing to seek a determination of the amount of the workers’ comp lien. This decision could have a significant impact on the amount of the UIM carrier’s liability in certain cases.
The basic facts in Dion were that the plaintiff/employee received $528,665.61 in workers’ comp benefits as a result of the accident. The liability carrier tendered its policy limit of $30,000, and the primary UIM carrier tendered its limit of $70,000 ($100,000 – $30,000). This resulted in a total initial payout of $100,000, which was split equally between the plaintiff/employee, the plaintiff/employee’s attorney and the workers’ comp carrier. The workers’ comp lien remained intact and was not waived or reduced.
The plaintiff/employee then demanded arbitration with two additional UIM carriers. The UIM carriers disputed that all of the plaintiff/employee’s alleged injuries were related to the accident. The arbitration panel ultimately agreed and awarded plaintiff/employee $285,000. The trial court entered judgment on the arbitration award, which included an award of interest in the amount of $74,291.50 and costs in the amount of $160.00.
After judgment was entered by the trial court, one of the UIM carriers filed a motion for a hearing under N.C.G.S. § 97-10.2(j) and asked the court to determine the amount of the workers’ comp lien. The plaintiff/employee, the employer, and the workers’ comp carrier opposed the motion and argued that UIM carriers do not have standing to seek a determination of the amount of the workers’ comp lien under N.C.G.S. § 97-10.2(j) because that statute is available only to employers and employees, not UIM carriers. The court rejected this argument and held that UIM carriers do have standing to pursue a determination under the plain language of 97-10.2(j).
With regard to the amount of the workers’ comp lien, the workers’ comp carrier argued that its lien was $528,665.61, the total amount of comp benefits it had paid to the plaintiff/employee. The court disagreed and held that the workers’ comp lien could not exceed the third party (i.e., UIM) recovery. The court further held that court costs, attorneys’ fees and interest are not subject to the workers’ comp lien. The lien was ultimately determined by the court to be $190,000. The court arrived at that figure by subtracting the plaintiff/employee’s attorneys’ fees ($95,000), interest ($74,291.50) and court costs ($160.00) from the total judgment obtained by the plaintiff/employee ($359,451.50).
The amount of the lien proved to be very significant from the UIM carriers’ standpoint because it ultimately meant they had no UIM liability at all. This is because, under Austin v. Midgett, 166 N.C. App. 740, 603 S.E.2d 855 (2004) and Walker v. Penn Nat’l, 168 N.C. App. 555, 608 S.E.2d 107 (2005), the UIM carrier is entitled to an offset equal to the difference between the amount of workers’ comp benefits that were paid to the plaintiff and the amount which must be reimbursed to the workers’ comp carrier by virtue of its lien. Under Austin and Walker, the UIM carrier’s liability is calculated by subtracting the amount of workers’ comp benefits from the total value of the plaintiff’s loss, then adding the amount of the worker’s comp lien, then subtracting the amount received from the liability carrier. When this calculation was performed in Dion, the result was a negative number which, according to the UIM carriers, meant they owed nothing.
The UIM carriers took the position that they had no UIM liability since the above calculation resulted in a negative number. In my opinion, there are some compelling arguments to the contrary, but those arguments were not made because the plaintiff/employee, the employer and the workers’ comp carrier conceded that a determination that the workers’ comp lien was $190,000 “effectively release[d] [the UIM carriers] from liability.” Significantly, the Court of Appeals did not address this issue. Therefore, Dion has no precedential value as to the effect of the amount of the workers’ comp lien on the amount of UIM liability.
For UIM carriers, the real significance of Dion is that it confirms what many have believed for quite some time – that N.C.G.S. § 97-10.2(j) provides a mechanism for UIM carriers to seek a judicial determination of the amount of the workers’ comp lien. The facts in Dion may be somewhat unique, and a judicial determination of the lien amount will not benefit UIM carriers in every case. UIM carriers will need to perform the appropriate calculations in each case to determine whether a motion to have the lien determined is worth pursuing.
Jennifer Welch is Co-Chair of the Insurance Law practice group at Cranfill Sumner & Hartzog LLP. Since joining the firm in 2003, she has developed a statewide civil litigation practice representing businesses of all sizes, insurance carriers and individuals.