Select Topics in American Law - II
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What is the first topic to address in each evidence essay?
evidence which has any tendency in reason to make a material fact more or less likely
What are objections to the form of the question (and answer) and what are their definitions?
- leading question (question which suggests the answer)
- compound question
- calls for a narrative (uncommon)
- assumes facts not in evidence
- nonresponsive answer (subject to motion to strike)
When should FRE 403/EC 352 be addressed?
At the end of a discussion of a piece of evidence, only if it is otherwise admissible
out of court statement offered to prove the truth of the matter asserted.
When should exceptions/exclusions to hearsay be addressed?
Only when it is first determined that the statement is being used to prove the truth of the matter asserted
What are the Federal hearsay exclusions (what is defined as non-hearsay by the FRE)?
- admissions of party opponent
- prior inconsistent statements
- prior consistent statements
- prior identification (must have been made in court to use substantively under FRE)
How are statements of party opponents classified in CA?
as exceptions (they are hearsay, but can still be used)
What are the FRE and CA Ev rules for vicarious admissions?
- FRE: while employee is employed, concerns a matter within the employee's scope of employment
- EC: employer's liability is based solely on employee's liability, statement would be considered an admission of the employee
How may prior inconsistent statements be used under CA law?
substantively and for impeachment, whether or not they were given in a prior proceeding, but only once a witness testifies
present sense impressions
only applicable under the FRE; explains event while it occurs or immediately thereafter
applicable only in CA; explains, qualifies, or makes understandable the conduct of a declarant, was made while the declarant was engaged in the conduct (only their own conduct)
Statements for the purpose of diagnosis or treatment
FRE only; describes pain, cause of pain, medical history, past and present symptoms for the purpose of diagnosis or treatment, even if in preparation for trial
State of mind
CA only; declarant's then-existing state of mind, including physical sensation
Which hearsay exceptions DON'T require unavailability?
present-sense impression (Fed only), excited utterances (CA - spontaneous statements), statements of then existing mental/emotional/physical condition, past recorded recollection, business records, official records, (CA only - judgment of conviction)
Which exceptions DO require unavailability?
former testimony, dying declarations, statements against interest
What is character evidence?
evidence of an individual's character trait which is used to suggest action in conformity therewith
When is character evidence admissible in civil cases?
Only when character itself is at issue - i.e. defamation, or prior sexual assaults (in civil sexual assault cases)
When does character evidence of the defendant in a criminal case become admissible?
Only if the defendant first offers it (with certain exceptions)
In a Federal case, when may the prosecution be the first to introduce evidence of the victim's character for peacefulness?
In a homicide case where the defense is self-defense
In a Federal case, when may the prosecution introduce evidence of of the defendant's character?
When the defendant introduces evidence of the victim's same character trait.
In CA, when may the prosecution introduce evidence of the defendant's character?
Only when the defendant first introduces evidence of the victim's character for violence, and then they may only introduce evidence of the defendant's character for violence
When may the prosecution in CA introduce good character evidence of a victim?
When the defendant introduces bad character evidence of the victim.
When may specific acts evidence be introduced?
on cross-examination to impeach a witness's credibility, specific acts may be inquired about to test their knowledge of the defendant
When is evidence of habit and custom evidence admissible?
when the individual always responds to a certain fact situation in a certain way
What kind of evidence is excluded from civil cases on policy grounds?
Offers to compromise, subsequent remedial measures, humanitarian offers or offers to pay for medical treatment, liability insurance, pleas (criminal cases)
How can a witness (other than a character witness) be impeached?
prior inconsistent statements, prior bad acts or convictions
When can prior bad acts or crimes be admitted in Federal cases as impeachment evidence?
when the prior bad act involves untruthfulness (no extrinsic acts);any felonies within the past 10 years; misdemeanors involving dishonesty
when may prior bad acts/crimes be used to impeach in CA?
In criminal cases only - crimes of moral turpitude; In Civil cases - only felonies
What must a lay opinion be based on?
reasonable perception - the senses
What are the requirements for an expert witness?
- qualification in subject matter
- have proper factual basis for testimony
- testimony must be of help to fact-finder
- methodology must be generally accepted in the relevant scientific community
What issues, and in what order must be addressed in regard to writings?
- 1) authentication (it is what it purports to be)
- 2) best evidence rule/secondary evidence rule (if the content of the writing is in issue, the original or a copy must be produced)
- 3) hearsay
What documents are self-authenticating?
notarized deeds, official records, trade labels, newspapers
Who can authenticate a voice on the telephone?
Any person who has sufficient familiarity with the speaker's voice; making a call to a person at a specific number AND then have that person self-identify
MAKE FLASHCARD FOR SECONDARY EVIDENCE RULE
AFTER READING UP ON IT
Can a waiver of a privilege be unintentional?
No - it must be intentional
When can a fact be judicially noticed?
- 1) if it is not subject to reasonable dispute AND
- 2) it is either
- a) generally known within the court's jurisdiction OR
- b) capable of accurate and ready determination by resort to unquestioned accurate sources
- THEN the fact is conclusively established
In what order should an agency issue be dealt with?
- Is there a principal-agent relationship?
- What type of relationship is it?
- What are the duties and liabilities under the type of relationship?
when the principal manifests an intent that the agent act on his behalf
What are the elements of agency?
- (agent not otherwise disqualified)
What are the capacity requirements to enter into an agency relationship?
- Principal - contractual capacity
- Agent - minimal mental capacity (can be minor or incompetent)
What kind of consent is required for agency?
What does control determine within an agency relationship?
The degree of control over the agent determines whether he is an employee or an independent contractor
What is a principal liable for in tort if the agent is an independent contractor?
- negligence - IF:
- 1) indep. contractor is engaged in inherently dangerous activities
- 2) duty is nondelegable
When is an employer liable for an employee's intentional tort?
- 1) force is authorized as part of employment
- 2) friction is generated by the employment
- 3) employee is furthering the business of the employer
In what type of situation is a person disqualified from serving as another's agent?
When he is already acting as an agent for the other party to a transaction.
What types of authority can an agent possess?
- 1) express - agreement of parties
- 2) implied - (nature of position implies authority, either by custom and usage, acquiescence, or emergency or necessity)
- 3) apparent - principal makes representations to third parties
- 4) ratification of principal - principal knowingly agrees to be bound by unauthorized acts of agent
What duties does an agent owe a principal?
- undivided loyalty
- strict obedience
- reasonable care
What are a principal's remedies if an agent breaches a duty?
- accounting for secret profits
- withholding of compensation
What duties does a principal owe an agent?
- duty to reasonably compensate
- contract duties
- cooperation in carrying out purpose of agency
What are an agent's remedies if the principal breaches any of the duties?
- damages for breach of contract
- agent's lien
How may a principal-agent relationship be terminated?
- 1) lapse of time
- 2) happening of an event
- 3) change of circumstances
- 4) breach of fiduciary duty
- 5) unliateral act
- 6) operation of law (ex. on death of principal - with or without notice)
When does an agent's actual authority terminate?
When an agent knows or should have known of the termination.
If a principal gives an agent a writing manifesting authority which is meant to be shown to third parties, the agent's apparent authority does not terminate as to third parties
who see and rely on such a writing
Which agencies cannot be unilaterally terminated by the principal?
- 1) agency coupled with interest
- 2) power given as a security
When is a principal not liable to a third party in contract?
- 1) undisclosed principal whose agent acts for an improper purpose
- 2) disclosed principal whose agent acts for improper purpose and third party knows agent is acting for improper purpose
What are some special situations in which a principal is liable for an agent's actions to a third party in contract?
- 1) partially disclosed principal
- 2) an agent has a secret limiting instruction and acts beyond that instruction
- 3) disclosed principal whose agent acts for an improper purpose but the third party has no notice of improper purpose
What A/P liability attaches in a partnership?
- Partners are liable for the acts and omissions of other partners acting in the ordinary course of business.
- Liable to third parties who reasonably believe the partner is acting for the partnership (contract actions)
To what extent are partners liable for the acts/omissions of the other partners?
- 1) general - joint and several
- 2) limited - limited to capital contribution and profits minus losses
When is a corporation liable for the actions of its agent?
When the agent acts with authority.
What is the basic requirement for formation of a partnership?
agreement among two or more persons to carry on as business owners a business for profit (no express intent to form partnership necessary)
What are some indicators of partnerships if there is not an express agreement to form a partnership?
- 1) common ownership of property
- 2) designation of the entity as a partnership
- 3) higher degree of activity (ex. purchase and management of property)
What formalities do limited and limited liability partnerships require?
Usually a filing of certificate of formation with the state.
How are decisions made in a general partnership?
- 1) all partners have equal management and control unless otherwise by agreement
- 2) disputes in the ordinary course of business are resolved by a majority vote of the partners
- 3) actions which contravene the partnership agreement must be unanimously approved by all partners
Are incoming partners liable for liabilities incurred before they became partners?
When can partners be bound by acts of other partners after dissolution of a partnership?
When the injured party does not have notice of the dissolution
What duty do partners owe each other and what is the remedy for breach?
- Duty of loyalty
- 1) account for profits
- 2) refrain from dealing adversely to partnership
- 3) refrain from competing with partnership
- Remedy: accounting for lost profits
Who has the authority to bind a limited partnership?
The general partner
What role to limited partners play in a limited partnership?
- contribution of capital
- vote on major issues
How does dissociation from a partnership occur?
- Voluntary withdrawal
- death or incompetency
- breach of an express term of the partnership agreement (wrongful dissociation)
Is a wrongfully dissociating partner liable to the other partners?
Yes, for any damages caused by the dissociation
How can dissolution be avoided if there is a dissociation of a partnership?
The remaining partners buy out the dissociated partner's interest
If a partnership does not have a definite term, it is _________.
When can a partnership be wound up?
- if at least half of the partners consent to wind up
- If the term expires
how is a de jure corporation formed?
By filing the articles of incorporation with the Secretary of State
What may a corporation's purpose be?
any lawful purpose
What is an action outside of a corporation's purpose, and what are the potential liabilities for those actions?
- Ultra vires
- 1) shareholder can sue to enjoin the action
- 2) corporation can sue directors and officers for damages arising from the act
- 3) state may seek dissolution of the corporation
What is a de facto corporation?
- Colorable compliance with incorporation statute
- In good faith (members don't know formation was defective)
- Action in accordance with existence of corporation
When is corporation by estoppel applied?
A party who treated an entity like a corporation is estopped from claiming that it was not a valid corporation.
What are the three main justifications for piercing the corporate veil- plus a fourth less common one?
- 1) corporation is the alter-ego of individuals (failure to observe corporate formalities)
- 2) inadequate capitalization at the time of formation
- 3) avoidance of existing obligations or fraud on creditors
- 4) deep rock - shareholder's debt claims may be subordinated to third party creditors' claims
Who is a promoter?
One who acts on behalf of a corporation that is not yet formed
What are the two types of securities?
- Equity securities - stock (a form of ownership)
- Debt securities - bond (not ownership, but secured by corporate assets), debenture (not ownership, unsecured)
What is a subscription?
A contract that a promoter enters into with prospective shareholders
What duty does a promoter owe to the corporation and the shareholders?
fair disclosure and good faith (of any interests or other material facts about the transaction)
Who is liable for preincorporation contracts?
The promoter, and the promoter remains liable even after the corporation is formed unless there is a novation, otherwise, the corporation is not bound by the promoter's actions
What powers do shareholders of a corporation have?
- 1) election of directors
- 2) amend articles and bylaws
- 3) approve fundamental corporate changes
How may shareholders vote?
- 1) in person
- 2) by proxy
- (NOT absentee)
Are proxys revocable?
Yes, unless expressly irrevocable and coupled with an interest
How long may any proxy (revocable or irrevocable) last?
May a corporation restrict the transfer of shares, if so, why?
Yes, for any reasonable purpose
When is a transferee bound by a transfer restriction on stock?
- 1) when the transferee has knowledge
- 2) when the restriction is conspicuously noted on the stock certificate
What two types of suits may a shareholder bring?
What is the general basis for a direct shareholder suit?
breach of duty by directors, officers, or majority shareholders
What are the specific bases for a direct shareholder suit based on majority shareholder's breach of duty?
- oppression (freezing out minority)
- selling to looters (b/c there is a duty to do reasonable investigation before sale)
- selling a corporate office via selling at a premium for private gain
What are the bases for a derivative suit?
breach of fiduciary duties (loyalty, care)
What are the prerequisites for a derivative suit
- 1) standing
- 2) demand
- 3) corporation is the named defendant
the corporation must be ____ to pay dividends
What is required for voting to occur?
Quorum: majority of eligible voters
How may an action by the board or the shareholders be approved?
By a majority of the eligible voters present.
What are the two broad duties of directors?
- Duty of care
- Duty of loyalty
Duty of care
- 1) good faith
- 2) care that an ordinarily prudent person in like position would exercise under the circumstances
- 3)in a manner the director reasonably believes is in the corporation's best interests
- IF all three met, then the business judgement rule applies to protect their decision
Duty of loyalty
- 1) conflict of interest (if the director or a person they are related to has a beneficial interest in a transaction to which the corporation is a party and the transaction needs board approval)
- 2) usurpation of corporate opportunity (corporation has an interest or business expectancy that the director takes for himself)
- 3) insider trading
What are three defenses to a conflict of interest transaction?
- 1) it was approved by a majority of disinterested directors
- 2) it was approved by a majority of disinterested shareholders
- 3) the transaction was fair to the corporation
two types of violations under Rule 10b-5
- 1) fraud in the purchase or sale of securities (interstate commerce; material fraud; intent to deceive, manipulate or defraud; in connection with purchase of security)
- 2) insider trading (knowledge of nonpublic information, buy or sells stock, breaches duty of trust and confidence owed to the issuer) - tippers, tippees, and missappropriators can be held liable
section 16(b) action
Any profit realized by a shareholder of more than 10% of the stock both after and before sale and purchase, within a period of less than six months, must disgorge the profit
Sarbanes-Oxley Act of 2002
What are the potential justicability issues?
When is a case ripe?
the plaintiff has been harmed or there is an immediate or imminent threat of harm - do not address if there is actual harm
When is a case moot and what are the exceptions to mootness?
it is moot if the relief requested has been obtained or is no longer a realistic solution; the exception is the "capable of repetition yet evading review" cases such as pregnancy, elections, and divorce. (only address mootness if one of these issues is involved)
When is individual standing present?
- (always for a criminal defendant), but for a plaintiff:
- 1) specific, individualized injury
- 2) causation (gov't action caused injury)
- 3) redressable by court action/order
When is third-party standing present?
- 1) plaintiff himself has suffered injury
- 2) third parties find it difficult to assert their own rights
- 3) a special relationship exists between the parties
- 4) the injury adversely affects the relationship
When is organizational standing present?
- 1) injury in fact to individual members that would give them as individuals standing (analyze individual standing first)
- 2) injury is related to the organization's purpose
- 3) neither the nature of the claim nor the relief requires the participation of the individual members
Who and what does the 11th Amendment protect against?
State (not local) government entities or officers against civil suits for damages, injunctive or delcaratory relief (if the state is named as a party), retroactive damages against individual officers where the damages will be paid from the state treasury, actions against state government for violating state law.
When is the commerce clause implicated?
When Congress passes a statute and you need to determine whether it is within Congress' power to do so.
What is Congress permitted to regulate under the commerce clause?
What constitutes interstate commerce or the regulation of interstate commerce?
- 1) channels of interstate commerce (roads, waterways, air, etc.)
- 2) instrumentalities of interstate commerce (trucks, boats, airplanes, telephones, the internet)
- 3) activities that have a substantial effect on interstate commerce (economic activity that, in aggregate has a substantial effect)
What actions are prohibited under the 10th Amendment?
- Coercion (taking away a large portion of a state's funding)
- Commandeering (requiring enforcement without funding)
What two clauses are implicated if a fact pattern mentions a state or local economic regulation?
Dormant Commerce Clause and Privileges and Immunities Clause
When does a state or local regulation/law violate the dormant commerce clause?
- 1) discriminates aganist out of state commerce to benefit local commerce, or
- 2) it unduly burdens out of state commerce, balancing the legitimate local benefits against the incidental burden on interstate commerce
What are the two exceptions to the dormant commerce clause?
- 1) state as market participant
- 2) furthers important state non-economic interest
What are the characteristics/limitations of Congress' taxing power?
- 1) it is plenary (it can tax any activity that it can regulate)
- 2) Congress may tax for any revenue raising purpose
What are the limitations on state and local governments under the Contracts clause?
- 1) state may not substantially impair the obligations under already-existing contracts unless it serves an important legitimate state interest and the statute is narrowly tailored to promote that interest.
- 2) Generally, contracts in which the state is a party are looked at with more scrutiny
What are the constitutional requirements for a law?
- Bicameralism (the law must pass through both houses of Congress)
- Presentment (it must be presented to the President for veto or approval)
any state law in conflict with federal law on point is void
What are the two ways in which a federal law can preempt a state law?
- 1) express preemption (conflict between text of federal and state laws)
- 2) implied preemption (federal government occupies the field of regulation)
- a) law is comprehensive in scope OR
- b) agency is created to administer the law
The president has the power to ________ _______ officers.
What test determines whether the President is acting within his domestic powers?
- The Youngstown Sheet and Tube test:
- 1) express or implied authority of Congress -> actions are valid
- 2) Congress is silent -> actions are valid if he does not take over the powers of any other branch or if he doesn't prevent any other branch from carrying out its duties
- 3) actions are against the express will of Congress -> actions are invalid
Does the president need Congress' authority to act militarily?
No, but the president doesn't have the authority to declare war
What is prevented under the Fifth Amendment (non-criminal)?
Taking of private property for public use without just compensation
What are the two types of takings, and the four sub-types of the second type?
- Use restriction:
- 1) denial of all economic use --> taking
- 2) temporary denial of use --> weigh length of denial, planner's good faith, economic effect of delay, and owner's reasonable expectations
- 3) reduction in value --> may be partial taking if the regulation unjustly reduces the value, considering a) the public benefit, b) the reduction in value, and c) the owner's reasonable expectations
- 4) conditioning permits on granting public access or giving up part of land --> taking unless the condition relates to a legitimate government interest and the adverse impact of the building is roughly proportional to the loss caused to the property owner by the forced transfer
What are the two basic requirements for procedural due process?
- 1) notice
- 2) opportunity to be heard by a neutral decision maker
when does procedural due process apply?
When the government deprives an individual of life, liberty, or property.
If some kind of process is afforded before a deprivation occurs, what test is used to determine whether that process is adequate?
- 1) what is the importance of the individual interest at stake
- 2) the value of the specific safeguards to the interest
- 3) the governmental interest in fiscal and administrative efficiency
What is the first element of any analysis of deprivation of Constitutional Rights under the 1st or 14th amendment?
Whehter ther was government action
What are the four types of state action?
- 1) law, ordinance, or regulation
- 2) action by government actor
- 3) private actor engaged in a traditional exclusive public function
- 4) private action with significant state involvement, encouragement, or facilitation
When is equal protection implicated?
when one group of people or one person are/is treated differently than otherwise similarly situated individuals.
What are the four steps to an equal protection analysis?
- 1) Prove intent to discriminate (facial, purpose, or application - effect is not enough)
- 2) what group is being discriminated against
- 3) What test/scrutiny applies to the particular group (strict/intermediate/rational basis)
- 4) apply the appropriate test
What are the elements of the three types of scrutiny?
- Strict: compelling government interest furthered by a law that is necessary to acheive that interest
- Intermediate: important government interest that the law is substantially related to
- Rational basis: is the law rationally related to a legitimate government interest
When is substantive due process implicated?
When a liberty interest of the people is infringed on.
What does a substantive due process analysis involve?
Depending on the type of interest at stake, apply the appropriate test.
What test applies to a law which regulates conduct that can be construed as symbolic speech?
- 1) is the regulation within the power of the constitution
- 2) does the regulation further an important government interest?
- 3) is the government interest unrelatedto the supression of speech
- 4) is the incidental burden on speech no greater than necessary
How is a regulation of speech itself analyzed?
- 1) content-based: strict scrutiny
- 2) content neutral: intermediate scrutiny
What are two ways in which any statute regulating speech can be found to be unconstitutional?
vagueness or overbreadth
What are the types of forums, and how may speech be regulated in each?
- traditional public forum/designated public forum: reasonable time/place/manner restrictions allowed if 1) content neutral, 2)it is narrowly-tailored to serve a significant government interest, and 3) it leaves open alternate channels
- limited public forum/non-public forum: restrictions must be 1) viewpoint neutral, and 2) reasonably related to a legitimate government purpose (rational basis) (includes prisoner's speech)
What regulations are permitted of commercial speech?
- 1) government may ban speech that is concerning unlawful activity
- 2) it must serve a substantial government interest
- 3) it must directly advance that government interest
- 4) it must be narrowly tailored to advance that interest
What types of speech are unprotected?
fighting words, defamation, obscenity
- 1) appeals to prurient interest
- 2) portrays sex in a patently offensive manner
- 3) does not have serious literary, artistic, political, or scientific value
What is a prior restraint?
a restraint on a specific speech, ususally involving a licensing system or an injunction
When is a prior restraint justified?
- 1) The prior rstraint avoids a special societal harm
- 2) the standards are narowly drawn, reasonable, and definite, so to include only prohibitable speech
- 3) government promptly seeks an injunction
- 4) prompt and final determination of teh validity of the restraint (speedy appeal)
When are restrictions on the free exercise of religion permitted?
- When they pass strict scrutiny
- When they are general conduct restrictions imposed on all persons for a secular purpose and are reasonably related to achieving that purpose
If a government program tends to have a sect preference, what test determines its validity?
- 1) does the restriction/program have a secular purpose?
- 2) does it have the primary effect of neither inhibiting nor advancing religion?
- 3) does it produce excessive entanglement in religion?
Duty of truthful advertising and avoidance of solicitation (ABA and CA requirement)
Advertising is ok as long as it isn't untruthful, false, or misleading
Duty of truthful advertising (CA only)
- 1) guarantee or warranty of the outcome of the case
- 2) promise of quick cash or a quick settlement
- 3) an impersonation of a lawyer or client without disclosing that it is an impersonation
- 4) a dramatization of an accident or another event without disclosing that it is a dramatization
- 5) a contingent fee offer that does not warn that costs are still owed if the suit is lost
When are lawyer communications presumed to be false?
- 1) when delivered to a potential client who is in the hospital or who is suffering from physical or mental stress
- 2) mailings seeking paid work not labeled as advertising
- 3) communications containing testimonials or endorsements that don't indicate those endorsements or testimonials aren't promises of outcomes
What is a soliciation?
direct personal contact intended to gain business
When is solicitation permitted?
when the potential client is a a former or current client, or someone else with whom the lawyer has a personal, professional, or family relationship
Are targeted direct mailings permissible?
Yes, as long as the lawyer does not specifically know that the potential client does not wish to be contacted
What are a lawyer's duties regarding fees and disclosure?
If a lawyer doesn't regularly represent a client, the fee must be communicated (preferrably in writing) before or within a reasonable time after commencing representation
When is a lawyer allowed to advance money to a client?
ABA: a lawyer may not provide financial assistance to a client in connection with litigation, but may: advance court costs and the expenses of litigation and it may be contingent on the outcome of the case, OR may pay court costs and expenses of litigation for an indigent client
CA rules regarding financial assistance to clients:
- 1) No financial assistance may be given to clients
- 2) a lawyer may not buy a client by promising to pay personal or business debts
- 3) a lawyer may lend money to a client for any purpose as long as the client makes a written promise to repay
What is the requirement for the amount of a lawyer's fee?
It must be reasonable
What constraints are placed on a contingent fee?
- 1) The method of calculation must be disclosed in writing
- 2) it must disclose if client must still pay costs if they lose
When are contingent fees prohibited?
- ABA: in domestic relations matters and in criminal cases
- CA: criminal cases and to enter into a fee agreement which encourages divorce
When may a lawyer split a fee with another lawyer?
- 1) with client's consent
- 2) does not increase overall fee
- 3) fee is proportional to work done (not a CA requirement)
When is a lawyer permitted to continue representing a client when there is a conflict?
- 1) if the lawyer reasonably believes that he can competently and diligently represent the client (not required in CA)
- 2) the representation is not prohibited by law
- 3) the client's claims do not involve the direct assertion of a claim by one client against another
- 4) the lawyer obtains both clients' written, informed consent (CA - only written disclosure is required)
- (CA - conflict rules apply to both potential and actual conflicts)
concurrent conflict of interest
- When the representation of a client will be directly adverse to the interest of another client OR
- There is a significant risk that the representation will be materially limited by the personal interests of the lawyer or the interests of another client
What are some exceptions to the imputed conflict rule?
- 1) special rules apply to former and current government lawyers (screening required if the government lawyer participated personally and substantially or acquired confidential government information)
- 2) conflicts caused by purely personal interest of the conflicted lawyer
- 3) conflicts caused by the conflicted lawyer's close family relationship with another lawuer who is representing a different client in the matter
- 4) conflicts caused by the conflicted lawyer's sexual relationship with the client
What are the three elements of the screening procedure?
- 1) dq'd lawyer is screened from any participation in the matter
- 2) the dq'd lawyer doesn't share in the fee
- 3) The government agency is notified of the screening
What are the rules regarding financial conflicts of interest between lawyer and client?
- Withdrawal is required if the clients' written consent is not secured via this method:
- 1) transaction and terms are fair and reasonable to client
- 2) full disclosure of terms to client in an understandable written manner
- 3) client informed about seeking independent counsel (CA - must be in writing)
- 4) client understands the lawyer's role in the transaction
What rules must attorneys follow regarding gifts?
- 1) they may not solicit a substantial gift from a client
- 2) an attorney may not draft an instrument giving a substantial gift to the lawyer or a relation of the lawyer (except when the lawyer is related to the client) (CA - the lawyer may not induce the gift, but may prepare the instrument - but there is still a rebuttable presumption of undue influence)
Rules regarding media rights
- ABA: lawyer may not acquire before the conclusion of the action
- CA: acquisition is ok if the client understands the conflict and consents
Sexual relations with clients
- ABA: banned if there wasn't a pre-existing sexual relationship
- CA: consensual relations are OK if none of the following apply:
- 1) demanding sex for professional services
- 2) inducing the client via coercion or undue influence
- 3) if the relationship would cause incompetent representation
What portion of client funds may a lawyer retain?
- Those that undisputably belong to the lawyer
- Those that are disputed (but those must be kept in a client trust account)
What is required to fulfill the duty of competence?
knowledge, skill, preparation, and thoroughness necessary to undertake effective representation of the client (CA - if a lawyer intentionally, recklessly, or repeatedly renders legal services incompetently)
What does the duty of care involve?
to pursue a matter diligently and with the skill and attention that one would give to one's own personal matters
What does the duty of communication require?
- That the lawyer keep the client reasonably informed about the status of a matter and promptly comply with reasonable requests for information so that the client can make informed decisions regarding the representation.
- (CA - lawyers must disclose in writing if they don't have professional liability insurance if the representation will take more than 4 hours)
What are the two elements of the duty of confidentiality?
- Attorney-client privilege
- Duty to keep client confidences secret
Who does the attorney-client privilege extend to ? what is the time limit of the privilege?
- Those persons necessary to ensuring proper representation of the client
- time: survives the termination of the relationship and the death of the client (in CA)
What are the exceptions to the attorney-client privilege?
- crime-fraud exception
- malpractice suit
- civil litigation betwen two former joint clients
What are the exceptions to the duty to keep client confidentiality?
- 1) consent
- 2) implied authority
- 3) disclosure to prevent serious bodily harm (in CA only to prevent a criminal act that will cause death or serious bodily harm)
- 4) disclosure to prevent or recitfy substantial financial loss (not in CA)
- 5) disclosure required by court orders
- 6) disclosure necessary to protect lawyer from civil or criminal liability
When must a lawyer disclose information under SOX? (ABA only)
If the lawyer is aware of credible evidence that her client is aterially violating a federal or state securities law
Who must/may a lawyer disclose to under SOX?
- CLO (must)
- BoD (must if CLO doesn't respond)
- Audit committee (must if BoD or CLO doesn't respond)
- SEC (may, if all the internal officers don't respond)
What is the unauthorized practice of law?
- When a non-lawyer engages in an activity that requires the professional judgment of a lawyer
- (also, a lawyer may not share fees with a non-lawyer, including referral fees)
What are a lawyer's duties regarding evidence and presentation of a case?
- 1) dont' obstruct the other party's access to evidence
- 2) don't spoliate
- Dont' fasify evidence
- don't knowingly disobey court's orders/rules
- dont' make frivolous objections or discovery requests
- don't allude to any matter in a trial that is not admissible
- Don't make assertions about personal beleifs about the merits of a case
- Dont' deceive the court or opposing counsel
- Dont' improperly contact an opposing party
- (CA - lawyer may not threaten administrative or criminal proceedings to gain the upper hand in a civil suit)
must a lawyer allow a criminal defendant to testify falsely?
Yes, but the lawyer may ask a question that calls for a narrative (CA), and ask for permission to withdraw, disclosing confidential information if necessary (CA doesn't allow disclosure of client confidences)
Which corporate players is a lawyer prohibited from directly contacting?
- one who supervisises or regularly consults with the organizatin's lawyer
- one who has the authority to bind the organization in relation to the matter
- one whose conduct can be imputed to the organization
What are the nine affirmative duties of a prosecutor?
- 1) have PC for each case
- 2) make sure the the accused knows he can have counsel and is given the opportunity to do so
- 3) dont' try to get a waiver of improtant pretrial rights from an unrepresented defendant
- 4) make timely disclosure of exculpatory evidence
- 5) exercise reasonable care in preventing law enforcement and investigators from making extrajudicial statements the prosecutor can't make
- 6) refrain from sub'ing an attorney to give evidence about a client unless there is no other feasible alternative
- 7) dont' make extrajudicial statements that will prejudice the case
- 8) disclose any newly discovered material and exculpatory evidence
- 9) remedy past false convictions
What duties to lawyers owe to the public?
don't commit any crime or fraud
When is withdrawal mandatory?
- representation will result in a violation of the RPC or other law
- laywer's physical or mental condition renders the lawyer incompetent as a lawyer
- The lawyer is discharged
When is withdrawal permitted, but not required?
- no material adverse effect on the client's interests (not CA)
- client persists in a course of action utilizing the lawyer's services to further crime or fraud (based on the lawyer's reasonable belief)
- Clent has used the lawyer's services to perpetrate a crime or fraud (not in CA)
- Client insists on taking a course of actio the lawyer considers repugnant or with which the lawyer has a fundamental disagreement
- Client fails to pay the laywer
- Representation will cause a unreasonable financial burden on the lawyer (not in CA)
- Oter good cause
What are the elements of a validly executed will?
- 1) signed by the testator or someone at the testator's direction
- 2) witnesses: witness testator's signature or acknowledgement, two witnesses must be present at the same time
- 3) IF witness requirement is not strictly complied with, then C&C evidence of the testator's intent that the document constitute his will can substitute for the witness requirement
Requirements for holographic instrument (either will or codicil)
- - signature and all material provisions must be in testator's handwriting (no witnesses)
- - holographic will can incorporate printed boilerplate language
What are the four areas in which capacity can be disputed?
undue influence, insane delusion, fraud, mistake
In what situations can undue influence be alleged?
- 1) interested witnesses --> presumption
- 2) confidential relationship --> presumption
- 3) no presumption, but otherwise proven
When is undue influence presumed from influenced witnesses, and what is the result if the presumption isn't overcome?
- When a witness receives more under the will than they would under intestacy.
- The gift lapses if the presumption isn't overcome.
What are the three elements of the presumption of undue influence in a confidential relationship?
- 1) beneficiary is in a confidential relationship
- 2) participates in some way in procuring a gift
- 3) gift is an unnatural bequest
If facts indicate undue influence, but there is no presumption, what four elements must be met to prove UI?
- 1) testator was susceptible to undue influence
- 2) beneficiary had the opportunity to exercise UI
- 3) the beneficiary had the disposition to influence the testator
- 4) gift is an unnatural bequest
In what order should undue influence be addressed?
First, the presumption, then the four-element test.
"but for" the insane delusion, the testator would not have made the bequest.
two types of fraud
- 1) Fraud in the execution: ex. testator thinks he is signing a contract, but it's actually a will
- 2) Fraud in the inducement: testator is misled into executing the instrument or a gift by false representations concerning facts that influence his motivation.
relief may only be had if the mistaken fact and the disposition the testator would have made but for the mistake are apparent on the face of the will
What are the three methods by which a will may be revoked?
- 1) by subsequent instrument
- 2) physical act
- 3) operation of law (divorce or termination of domestic partnership)
When is revival used?
When will 2 revokes will #1, then will 2 is revoked by physical act. Then Will 1 is revived if testator makes clear in contemporaneous or subsequent circumstances that testator intends will 1 to govern.
When does DRR apply?
A will may be unrevoked if the testator revoked the will under the mistaken belief that an alternate disposition would govern, and if the original will is more consistent with the testator's intent.
- 1) admissible to probate by itself
- 2) revokes only the part of the will that it purports to modify
- 3) republishes the will
All documents present with the will at the time the will was executed will be integrated if the testator intended those documents to constitute the will. Integration can be determined by continuity in language, initials on each page, or something attaching all of the pages together. (can be proven by extrinsic evidence)
Incorporation by reference
- 1) writing in existence at the time the will was executed
- 2) described with sufficient particularity
- 3) testator indicates in the will the intent to incorporate the terms of the writing
Acts of independent significance
A court may resolve ambiguities in a will by referring to certain documents or acts outside of the will that were effectuated during the testator's lifetime, as long as the act or event has some purpose/motive other than testamentary disposition.
a unique item of property from the testator's estate
gift of general economic benefit
Are stocks specific or general legacies?
- Specific: "my" stock
- General: the stock, X, Inc. stock.
Can a beneficiary take the increase/accretion from an asset
Is extrinsic evidence admissible to resolve an ambiguity in a will?
Ademption by extinction
when a specific devise is not owned by the testator at death.
ademption by satisfaction
when the testator gives the devisee the gift during life
When does lapse occur?
When a beneficiary under a will or a trust is not living at the testator/settlor's death.
Where do lapsed gifts fall?
The residue, or intestacy
When does anti-lapse apply?
- 1) if the deceased beneficiary is kindred of the testator/settlor or his spouse
- 2) the beneficiary left issue
How does separate property pass via intestacy?
- If only surviving spouse = 100% to spouse
- If one surviving spouse and one child = 50/50
- If more than one child = Spouse takes 1/3, and the children get 2/3
how does CA distribute intestate property?
per capita by right of representation (modified per stirpes) - start the division at the first generation where there are survivors
When and what can a pretermitted spouse take?
- A pretermitted spouse can take an intestate share of the separate property unless:
- 1) the omission was intentional as shown in the will
- 2) the spouse is provided for outside of the will
- 3) the spouse signed a valid prenuptial waiver
When and what can pretermitted children take?
- A pretermitted child can take an intestate share unless:
- 1) the omission was intentional as shown in the will
- 2) The child was provided for outside of the will
- 3) testator had other children and left his estate to the parent of the child
What are the seven elements of a valid trust?
- 1) settlor/trustor
- 2) delivery
- 3) trustee
- 4) intent
- 5) res
- 6) beneficiaries
- 7) valid trust purpose
What is a secret trust, and how is it handled?
A secret trust appears to be an absolute gift on the face of the will, but a constructive trust will be imposed to prevent unjust enrichment if the existence of the trust can be proven by clear and convincing evidence.
What is a semi-secret trust and how is it handled?
When a trust is created by a will, but the beneficiary is unclear. The gift is not enforced, but fails and falls to the residue.
When does a charitable trust violate the RAP?
If it involves a shifting executory interest between non-charitable and charitable purposes. (shifting from one charity to another doesn't violate the rule.)
if the testator's original charity is no longer available, the court may determine whether the testator's intent was specific to that charity or a general charitable purpose, and may direct the funds to another similar charity
What happens when a beneficiary is dead?
The trust fails, and a resulting trust is created to put the trust property back into the settlor's estate.
What are the fiduciary duties of a trustee?
- Delegation - discretionary
- Duty of care (reasonable care, skill, and caution)
- Duty to diversify
- Duty of loyalty (must obtain court approval for self-dealing transactions)
- Duty to act impartially
- Principal and income allocation - follow the UPIA
what does the UPIA dictate in regard to principal and income allocation of trust income?
- captial gain or liquidated assets
- stock dividends
- insurance proceeds
- royalties, copyrights, lease payments, etc - 90%
- IncomeCash income
- business income insurance proceeds
- royalties, copyrights, lease payments, etc - 10%
What does the UPIA dictate in regard to principal and income allocation of expenses
- PrincipalPayments on principalestate taxes
- disbursements on environmental matters
- Ordinary expenses (repairs, interest, regular taxes, insurance premiums)
- Half/HalfTrustee's compensation
- custodial fees
- Accountings expenses
- judicial proceedings
Remedies for breach of fiduciary duties
- surcharge for loss
- replacement of trustee
First sentence in any community property essay
California is a community property state. All property acquired by persons during marriage (except by gift or inheritance) is presumed community property.
What is a putative spouse, and how is property acquired during a putative marriage classified?
A putative spouse is one who has a good-faith belief that she is lawfully married. Property acquired during a putative marriage is classified as Quasi-marital property and is treated as community property.
If spouses acquire property while domiciled in a non-community property state, then how is the property treated if death or divorce occurs in CA?
If the property would have been community property if the spouses were domiciled in CA at the time of acquisition, then it is classified as Quasi-community property and is treated as community property at divorce, death, or for the purpose of creditor's rights.
How are pensions, bonuses, and stock options treated?
- Pensions are subject to the time rule (divide number of years married while working by total number of years worked)
- Stock options are considered acquired at the time they are exercisable (not exercised)
- Bonuses are wages
How are personal injury damages treated?
- If the injury occurred during marriage --> CP
- If the injury occurred before or after marriage --> SP
- The award is usually given to the injured spouse on divorce and offset by other asset(s)
How is disability pay categorized?
- If the pay is given to compensate for wages lost during marriage --> CP
- If the pay is given to compensate for wages lost after marriage --> SP
How is a business categorized?
- If acquired during marriage --> CP
- If acquired before marriage, but increases in value during marriage, use Pereria or Van Camp
When should Perieria be used, and what is the formula?
- When the increase in value of a separate property business during marriage is due to the management efforts of the spouse.
- [Initial capital value of the business +
- (Initial capital of business * reasonable rate of return(10%) * years married)]
- = Separate property
- Value of the business at divorce – Separate
- property interest = Community property
When should Van Camp be used and what is the formula?
- When the nature of the business is the primary reason for the increase in value.
- ([Market salary of working spouse – family
- expenses] * years married) = Community Property
- Value of business at divorce – community
- property interest = separate property interest
What is business goodwill, and how is it treated?
- Business goodwill is the difference in the total value of a business and the total value of its assembled physical assets.
- It is treated as CP to the extent it is earned during marriage.
Is an educational degree CP?
If the community pays for one spouse's education, when can it be reimbursed?
- If the education substantially increases the educated spouse's earning capacity UNLESS:
- 1) the community has substantially benefited from the degree
- 2) the spouse's need for support is substantially decreased
- (reimbursement can either be reduced or taken away altogether)
What is required for a valid prenuptial agreement?
- 1) made in writing
- 2) NO CONSIDERATION
- 3) cannot promote divorce
- 4) must be voluntary
What must be proven to satisfy the voluntariness requirement of a prenuptial agreement?
- 1) party being enforced against was represented by indep. counsel or expressly waived the right
- 2) seven day waiting period
- 3) if unrepresented, the party was a) fully informed of the terms of the agreement in understandable language and the rights she is giving up and b) the agreement was not executed under fraud, duress, or undue influence
What is an alternate reason for setting aside a prenuptial agreement (besides involuntariness)?
unconscionability: when the party could not have had adequate knowledge of the other's wealth and didn't waive the right to disclosure
Are oral transmutations valid pre-1985?
What is required for a valid post-1985 transmutation?
An express declaration (in writing) that the character of the property is being changed
If property is acquired during marriage in joint form...
it is presumed to be CP
How are credit acquisitions characterized?
it depends upon what the lender relied on for collateral for the credit
If CP is paid on a SP asset, how is the character of the asset determined?
Amount community paid toward principal/original purchase price = community's percentage interest in the property
If CP is paid to improve SP, is the community repaid, and how?
- Straight reimbursement,
- unless one spouse improves their own SP, then the community gets the greater of straight reimbursement or increase in value.
- However, if one spouse uses CP to improve the other spouses SP, then a gift is presumed, and there is no reimbursement.
If real CP is sold without one spouse's consent, what happens?
- Non- BFP --> sale is void
- BFP --> sale is valid, but non consenting spouse may rescind within one year and must return the BFP's consideration
What property may a creditor reach?
Whatever property the debtor spouse had management and control over.
When is a contract debt incurred?
It is incurred at the time the contract is executed
When is a tort/criminal liability incurred?
At the time the action constituting the tort/crime occurs
With what property may a debt incurred before marriage be satisfied?
the debtor spouse's SP and CP
With what property may a debt incurred during marriage be satisfied?
CP and SP of the debtor spouse, but also the SP of the non-debtor spouse if the debt is for necessaries
When is there an order of satisfaction of debts?
- If a tort is committed for the benefit of the community, CP first, then SP
- If not for the benefit of the community, SP first, then CP
- NOT for contractual debts
In what areas does Federal law preempt state law?
- US savings bonds
- Homestead law
- armed forces life insurance benefits
- social security
- railroad retirement benefits
- VA disability
In what areas does Federal law not preempt state law?
- federal civil service retirement
- Foreign service retirement benefits
- ERISA pension benefits
What four types of causes of action can remedies be sought for?
Contracts, Torts, Property, and Unjust Enrichment
What types of legal remedies are available in contract disputes?
damages - compensatory and consequential
What kinds of equitable remedies are available in contract disputes?
Specific performance, recission, reformation, and declaratory relief
What legal remedies are available in a tort action?
Compensatory, consequential, punitive
What kind of equitable remedies are available in tort actions?
TRO, Preliminary injunction, permanent injunction
What kinds of remedies are available for property disputes?
Usually the same as in tort cases if the action is a nuisance or trespass, the same as contract cases if it has to do with a breach of warranty, etc., but also waste
What kinds of actions result in unjust enrichment, and what remedies are usually available?
Fraud, continuing trespass, wills issues; legal remedies: replevin and ejectment; equitable remedies: constructive trust, resulting trust, equitable lien
What elements must be proven for contract compensatory damages?
- Causal (but for)
- Foreseeable (as of the time of the contract)
- Certain (reasonably calculable and not speculative)
- Unavoidable (plaintiff has duty to reasonably mitigate)
What are benefit of the bargain damages, what are the elements, and how are they calculated?
- applies only to UCC contracts
- when one party backs out of the contract and the other party is forced to cover
- Four elements do not need to be proven (they are implied)
- are the market price for cover goods minus the contract price
When does a UCC contract damages question require a discussion of the four damage elements?
When the plaintiff seeks consequential damages.
When are reliance damages available?
When the plaintiff has paid out-of-pocket and are only available if the benefit of the bargain damages are too speculative
When are liquidated damages upheld?
If damages are difficult to ascertain and the amount stipulated to is a reasonable forecast of the damages. (common in real property purchase contracts)
When is a plaintiff entitled to specific performance of a contract?
- 1) the contract is valid and enforceable, and the object of the contract is definite and certain
- 2) the non-breaching party has met all conditions required or is excused
- 3) the legal remedy is inadequate
- 4) the remedy is feasible
When is rescission an appropriate remedy?
when the grounds for rescission existed at the time of the making of the contract - usually either mistake or misrepresentation
When is mutual mistake grounds for rescission?
all parties are mistaken as to a material fact that goes to the basis for the bargain (the nature or subject matter, not the quality)
When is unilateral mistake grounds for rescission?
- 1) mistake as to material fact that goes to the basis for the bargain
- 2) non-mistaken party knows or should know of the mistake
- 3) the hardship to the mistaken party outweighs the detriment to the non-mistaken party
What are the elements of misrepresentation, and what remedies are available?
- elements: 1) false representation or omission of material fact, 2) misrepresentation can be intentional, negligent, or innocent, 3) plaintiff reasonably relied on the misrepresentation to his detriment
- Damages: money damages for fraudulent or negligent misrepresentation; rescission for any type of misrepresentation
What are the grounds for reformation of a contract?
- 1) valid contract in the first place
- 2)mistake of fact (mutual or unilateral) - usually regarding scrivner's errors, but also regarding the legal meaning of terns and fraud
What are the four types of tort damages?
General damages (foreseeable from the injury); consequential damages, special damages (that could not have been foreseen from the mere occurrence of the tort), sometimes punitive damages
What are the four elements of tort damages?
- 1) causal
- 2) foreseeable
- 3) certain
- 4) unavoidable
When can punitive damages be awarded in tort?
when the conduct is willful and wanton amounting to fraud (intentionally depriving a person of property or legal rights or otherwise causing injury), oppression (despicable conduct subjecting another to cruel and unjust hardship in conscious disregard of that person's rights), or malice (conduct intended to cause injury or that which is in willful and wanton disregard of the rights or safety of others)
What limits punitive damages?
Due process - the damages must not be grossly excessive (usually not more than a 1:10 ratio)
When may a permanent injunction be granted in tort?
- 1) plaintiff wins trial on the merits
- 2) legal remedy inadequate
- 3) feasible to enforce
- 4) balance of hardships in plaintiff's favor
When may a provisional injunction be granted (preliminary injunction and TRO)?
- 1) reasonable likelihood of success on the merits
- 2) irreparable harm if the injunction not granted
- 3) balancing of hardships in plaintiff's favor
- 4) TRO only: immediate harm if TRO not granted
When are legal remedies likely inadequate?
money damages inadequate, damages too speculative, potential of multiplicity of suits, irreparable injury, threat of prospective tort
What is the chief property remedy dealt with on the bar exam?
What are the types of waste, and what are their remedies?
- Voluntary: deliberate destructive acts; injunctive relief, damages measured by the diminution in value, the cost of repairs, or both. (sometimes treble/triple damages)
- Permissive: acts of omission or neglect; cost of repairs
- Ameliorative: acts which increase the property's value; cost of restoration to original state or injunction
When a contract isn't valid, but one party receives a benefit; usually just tries to make plaintiff whole
Purpose of replevin
To recover personal property wrongfully detained
What must a plaintiff show to have the right of replevin?
- the right to possession of title
- UCC: if the good is Id'd in the contract and the plaintiff is unable to cover
Is replevin available against a subsequent BFP?
What is a provisional remedy in replevin actions?
claim and delivery
What is ejectment?
a legal remedy to return possession of real property to the rightful owner against one who is wrongfully in possession of the property
When is a constructive trust imposed?
When retention of the property by the defendant would constitute unjust enrichment (not available if property was simply improved with the plaintiff's money)
When is an equitable lien available?
When a wrongdoer improves property with another's funds or commingles funds.
How is an equitable lien calculated?
it is exercised on the lowest intermediate balance of the commingled funds
When is a resulting trust created?
When the beneficiary is dead or when the person taking title did not provide the purchase money.
What is a resulting trustee's duty?
To convey the property to the plaintiff.
What are the two possible remedies for misappropriation of money?
- damages for conversion - only if the money is identifiable
- restitution in quasi-contract (constructive trust or equitable lien)
What remedies are available for the misappropriation of personal property?
- Legal: damages (for conversion or trespass to chattels) or replevin
- equitable: constructive trust, equitable lien, mandatory injunction
What are the equitable defenses to remedies?
- Laches (unreasonable delay and prejudice)
- Unclean hands (the plaintiff is guilty of wrongful conduct in the same transaction)
- No injunction against breach of contract (except in regard to a unique good)
- No injunction against criminal prosecution
- No injunction against crimes
What would you like to do?
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