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VA July Bar Exam 2024 Study Cards > February 2024 > Flashcards

February 2024 Flashcards

1
Q

Domestic Relations

Arrearages

A

Arreaages will be assessed for Court Ordered rewards, or for contractual obligations, or as parties have agreed and reduced in writing, when the payor has not paid accordingly

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2
Q

Domestic relations.

Spousal Support

A

The factors in the VA Code Section 20-107.1. One of these factors is significant hardship and may be changed upon a showing of a material change in circumstances.

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3
Q

Domestic Relations

Child Support

A

Chidl support may be modified based on the best interest of the child and upon a showing of material change in circumstance.s. Such as the need for braces and education costs.

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4
Q

Domestic Relations

Contempt of Court

A

Contempt of Court is appropriate to enforce a direct court order. It allows for fines and incarceration as the court deems appropriate when a wilful disregard has been shown for the authority of the court. It is generally a punitive measure. the court considers the perpectives of both sides.

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5
Q

Real Property

The Doctrine of Mutual Mistake

A

A court may give relief where there has been an innocent omission or insertion of a material stripulation, contrary to the intent of both parties.

In advertent oversight.

Under this doctrine, a previous contract is extingushed by an instrument of higher dignity - the deed. This only applies to the subject matter specifically covered by the deed. A closing statement does not extinguish a purchase contract.

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6
Q

Real Property

For a Valid Deed

A

It must meet certain formalities.

Be delivered by the grantor

be accepted by the grantee

Delivery can be by various methods, including manual delivery.

Failure to record does not invalidate a deed. Once delivery occurs title passes to the grantee

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7
Q

Real Property

A lawfully adopted zoning ordinance isn’t a “________” on the land

A

encumbrance, Tenancy, or lien on the land.

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8
Q

Real Property

English Covenants of Title or words of similar import in a deed.

A

This simply means that the deed is conveyed in fee simple.

  • The Covenant of right to encumbrances of tenancies
  • The covenant of quiet possession
  • The covenant of free from encumbrances
  • The covenant of further assurances
  • the covenant of no act to encumber
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9
Q

Real Property

Covenant of Quiet Possession

free from any encumbrances

A

a promise that the grantee will hold the land free from any interruption, claim, or demand by anybody.

and that the grantor will indemify and save grantees harmless against any and every charge or encumbrance.

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10
Q

Real Property

Judgment Liens

A

as long as the judgment is unenforced, no actual damages are incurred by the buyer unless he discharges the lien or suffers damages as a result of the judgment creditor’s enforcement of the lien.

liability only if suffers from actual damages.

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11
Q

UCC - Commerical Paper - Negotiable Instruments - Secured Transactions

A principal is (________) on an instrument signed by an agent or agents. If the agent is ().

If the agent is authorized, the principal is liable whether the agent signed his name, the principal’s name or a combination.

A

Liable

Authorized.

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12
Q

Commerical Paper

What is an Accomodation Party

A

It is a type of surety or one who guarantees the debt of another.

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13
Q

In order to be an accomodation Party?

A

A perosn cannot have received a direct benefit from the instrument.

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14
Q

Commerical Paper

A co-signer is “________” to be an Accomodation Party

A

ASSUMED

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15
Q

commerical paper and secured transaction

A acommodation party is “________” on the instrument in whatever capacity he has signed.

A

Liable

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16
Q

commerical paper and secured transactions

What is an Accomodation Party

A

An accomodation party is a type of surety, or one sho guarantees the debt of another. In order to be an accomodation party, a person cannot have recieved a direct benefit from the instrument. Further a co-signer is assumed to be an accomodation party.
An accomodation party is liable on the instrument in whatever capacity he has signed. Expressed language is need to limit capacity

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17
Q

commerical paper and secured transaction

A surety is entitled to what?

A

A surety, who makes payment on a loan on the behlaf of a principal is entitled to all the rights and remedies of a creditor.

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18
Q

commerical paper and Secured Transactions

What is an Alteration

A

This is an unauthorized change that purports to modify the obligation of the party. An alteration can modify a complete instrument or an incomplete instrument.

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19
Q

A Fraudulent Alteration

A

It discharges the duty of the obligor

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20
Q

A nonfraudulent Alteration

A

The obligor would remain liable, but only on the original terms of the obligation.

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21
Q

Commerical Paper

the hierarchy of terms is viewed as handwritten, typewritten, printed, and words prevails over numbers?

A

In general, words prevail over numbers.

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22
Q

Commerical Paper

what is an Alteration

A

An unauthorized change that purports to modify the obligations of the party.

It can modify a complete or uncomplete instrument.

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23
Q

What can an Alteration do?

A

it can modify a complete or uncomplete instrument.

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24
Q

commerical paper

Fraudulent Alteration

A

A fraudulent alteration would discharge the liabilty of the obligor

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25
Q

commerical paper

Nonfraudulent alteration

A

the obligor would still be liable for the original amount.

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26
Q

Commerical Paper

What does Ratification by Conduct Do?

A

In situations like forgeries on instruments, it makes it impossible for the maker to deny the forgery.

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27
Q

commerical paper

A duty for reasonable care to report a forged signature within () years of the creation of the instrument

A

One Year

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28
Q

commerical paper

When does a security interest become enforceable?

A

When the interest attaches to the collateral.

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29
Q

Commerical Paper

When does Attachment occur?

A

when there has been value from the creditor, the debtor pledges rights to the collateral, the necessary terms are indicated in a security agreement and such agrement satisfies the statute of frauds.

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30
Q

commerical party

who is a surety

A

Someone who makes payment on a loan on the behalf of a principal

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31
Q

commerical paper

What is the Surety entitled to

A

They are entitled to all the rights and remedies afforded to creditors.

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32
Q

commerical paper

When is an Accomodation Party is liable for an insrument?

A
  • If the person entitled to enforce the instrument has reduced his claim to judgment against the other party and execution is returned unsatisfied.
  • The other party has become insolvent
  • The other party cannot be served with process
  • it appears useless to proceed against the other party
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33
Q

Commerical Paper

What is a Surety entitled to?

A

They are entitled to all rights and remedies of a creditor.

Because Freddy made payment of the loan to Global Bank as a surety, Freddy would be entitled to all of the rights and remedies as Global Bank, the creditor , would be entitled to.

34
Q

Evidence

How to authenticate copies of original documents?

A

In order for the copy to be admissible, the best evidence rule would require evidence that the original document was destroyed or unavailable

That the copy was made in the regular course of business and that the person preoffering was the custodian of record and had custody of the original.

For instance, the copy was made in the regular course of business, that it was copied in the regular course of business, that the person offering was the custodian of record. And that there is a certificate that he retained the original.

35
Q

Evidence

Judicial Notice of factual matters

A

The court may take judicial notice of a factual matter not subject to reasonable dispute in that it is either common knowledge or capable of accurate and ready determination by resources to sources whose accuracy can’t be reasonably questioned

Examples governor signatures. or judicial signatures. Not signatures of people if it isn’t common knowlege.

36
Q

evidence

Judicial Notice of Law

A

Judges can take judical notice of the law of other states, whether specially pleaded or not. And that in doing so, the court may consult the appropriate document or publication.

37
Q

Evidence

The introduction of summaries in the content of voluminous writings

A

This is allowed when the contents of voluminous writings cannot be adequately examined in court.

But the summary must be made avaliable to the other parties for examination at a reasonable time and place. The court may order that it be produced in court.

38
Q

Local Government Law.

What is required for a claim of neglience against a county, town, or city? to prevent the claim from being barred.

A

Every negligence claim would be barred unless the claimaint or his agent has filed a written statement of the nature, time, and place of the claim. within six months of the incident in question.

AKA, written notice statement

39
Q

Local Government Law

Why are VA municipalities protected in its Governmental Functions?

A

They are protected by sovereign immunity. A municipality is immune from negligence while acting in this function.

40
Q

Local Government Law

What are Governmental Functions

A

Exercises of the municpality’s discretion, Activities taken for the common good or in the interest of public health or safety and exercises of powers delegated or imposed upon the municipality .

41
Q

Local Government

What are Proprietary Functions

A

these are functions primarily for the municipality. They are routine acts.

42
Q

How to avoid a claim for negligence against a city, town, or county from getting barred

A

The claimant or his agent needs to file a written statement of the nature of the claim, which includes the time, and place at which the injury occurred, within six months of the injury.

This can be done by agent.

43
Q

Local Governmental Law.

Is a VA Municipality immune for negligence for their Governmental or Proprietary functions?

A

They are immune for negligence in their Governmental Functions.

Governmental Functions are things like designing roads or snow clearing. Proprietary functions are things like repairs

44
Q

Local Government Law.

What to do to prevent a negligence claim against a City, town, county from being barred?

A

The claimaint or his agent must file a written notice that notes the time, place, and matter of the claim within six months after the incident.

45
Q

local government

Install a new water line is an example of governmental or proprietary function?

A

Governmenal Function is protected by sovereign immunity
Installing a water line is for the public benefit.

The planning, design and initial placement of a city water system is considered governmental.

But repair and ongoing operation of such utilities are not governmental function by proprietary function.

Not protected by sovereign immunity.

46
Q

Local Government

Is the city immune from liability for failing to use reasonable care to install lights, a barrricade and other safety devices, and in designing and constructing the road way?

Governmental or Proprietary?

A

The Court view such actions as governmental meaning that the City is immune unless it is an act of gross negligence.

47
Q

Local Government

When are county employees share the same immunity (only can be liable for gross negligence) as the county, town, city?

A

There are four factors,

The nature of the function that the employee performs,

the extent of the government’s interest and involvement in the function.

the degree of control and direction exercised over the employee by the Government.

Whether the act in question involved the exercise of discretion and judgment.

For Example, A school buss driver.

  • Driving children is a function that the government usually provides.
  • the government is interested in the transportation of children from its schools to home.

The Driver is hired by the county and controls what he does.
The act does involve the exercise of discretion and judgment.

48
Q

Criminal Procedure

What does the Fourth Amendment protect against?

A

It protects against unreasonable search and seizures

49
Q

Criminal Procedure

Usually, entry into a dwelling without a search warrant is what?

A

presumptively unreasonable.

50
Q

Criminal Procedure

If there is no search warrant, could the police search the premises if they have probable cause, there are concerns for officer safety and exigent circumstances?

A

Yes, all of these factors are exceptions to the search warrant requirement.

51
Q

search of the vehicle will be proper in what situation?

A

to perserve evidence of a crime.

52
Q

criminal procedure

What evidence can support a conviction of possession of cocaine with theintent to distribute?

A

Direct possession of narcotics and by constructive possession.

53
Q

Criminal Procedure

What is needed to prove constructive possession?

A

proof of knowledge of the illegal nature of the substance and dominion and control of the substance.

Example, the person owns the property or car where the substance is fown. The smell of the drugs and the gun.

54
Q

Wills and Estates

What is an Life Estate?

A

A conveyance of real property where the specified life tenant is entitled to possession of the proepryt during their life time, and uon the life tenant’s death , the property transfers outright to another party. The remaindermen.

55
Q

Will and EState

What is required to create a life estate?

A

No specific words are required. Can be created by implication as well as explicit words, provided that the will shows the necessary intent.

56
Q

Will and Estate

a testator’s inent to convey property must be what?

A

It must be plainly manifested in the will.

57
Q

Will and Estate

Extrinsic Evidence may be considered only if the language in the will is ?

A

Ambiguous that is there is more then one interpretation.

58
Q

Estates

What is a life tenant to a life estate responsible for?

A

They are responsible for ordinary expenses and taxes during their life time and they cannot committ waste.

59
Q

Estate

the rights of those with Remainder in fee simple absolute

A

They don’t have the right to possess or receive profits from the land during the life tenancy.

60
Q

The rights of a life estate

A

A life tenant has the right of possession and to the full enjoyment of the property and all the profits.

61
Q

Voluntary or affirmative Waste is what?

A

When a person actively takes measures that degrade the property’s value, quality or character.

62
Q

What is a the proper remedy to Voluntary waste

A

An injunction to stay waste.

63
Q

When is a bequest through an unattested document valid?

A

if it meets the requirements to be incorporated into a will by reference.

64
Q

Will

What are the requirements for bequest through an unattested document to be valid.

A

If a will refers to a written statement or list to dispose of items of tangible personal property not otherwise specifically bequeathed,

the statement or list shall be given effect to the extent that it describes the items of tangible personal property and their intended recipients with reaonable certainty and is signed by the testator although it does not satisfy the requirements of a will.

65
Q

The written statement in the bequest

A

One that is in existence at the time of the testator’s death, prepared before or after the execution of the will, altered by the testator at any time, a writing that has no significance apart from tis effect on the disposition made by the will

Need to be signed by the testator.

66
Q

Torts

What is a invitee

A

An invitee is someone who is invited on the land by the invitation of the landowner for business or if the land is open to the general public.

67
Q

Torts

The duties to an Invitee by a landowner.

A

the duty owed to an invitee for dangerous conditions on the premises are to

To use ordinary care to keep the premises in a reasonably safe condition for the invitee’s use that is consist with the invitation

To use ordinary care to warn the invitee of any known unsafe conditions.

Their is no duty by the landowner to the invitee to warn of unsafe conditions that are open and obvious to a reasonable person exercising ordinary care for his own safety

68
Q

How can a invitee defendant prove that the Landlord violated his duty towards him?

A

By showing that the Defendant had actual and constructive knowledge of a unsafe condition on the property that wasn’t open and notorious and the Defendant failed to warn the defendant.

69
Q

torts

Duty of care to a unknown trespasser

A

This is limited, there is no duty of care with regard to dangerous conditions on the premises though the landowner must refrain from inflicting intentional or willful harm.

70
Q

Torts

Duty of care to known trespassers

A

A duty to warn of unsafe and dangerous artifical conditions on the property that are known to the land possessor.

71
Q

VA Civil Procedure

When is a contribution claim allowed

A

Contribution among tortfeasors is allowed under the VA code when negligence is the cause of the harm without involving moral turpitude.

But the party whom contribution is sought must be liable to the plaintiff. Meaning that the injured party could have recovered against the contribution defendant.

72
Q

Torts

Statute of repose in relation to the Contribution Claim.

A

This states that no action to recover for any injury arising out of defective and unsafe conditions of an imporvement to real property, nor any action for contribution for damages substained as a result of such injury shall be brought against any person performing or funrishing the design or construction of such improvement of real property more then five years after the performance or funrishing of such services and construction.

AKA, you can’t bring a contribution claim against a potential defendant who designed or repaired the real property in question after five years of providing such service.

73
Q

Professional Responsibility

Is there a conflict of interest in a situation where a attorney obtains information from a third party not related to his representation as an attorney.

A

No, there is no conflict of interest. If the third party isn’t a former client and no peresonal interest that migh materially limit his obligations to his client.

74
Q

Can Lawyer give legal advice to unrepresented persons?

A

(a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
(b) A lawyer shall not give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interest of the client.

75
Q

A lawyer can’t embarress, delay, or burden a third person or use methods of obtaining evidence that violate the legal right of such persons.

If a lawyer obtains information relating to the representation of a lawyer’ client and knows that the document is privileged, he shall terminate review and promptly notify the sender and abide by the senders instructions to return or destroy the document.

A

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information is privileged and was inadvertently sent shall immediately terminate review or use of the document or electronically stored information, promptly notify the sender, and abide by the sender’s instructions to return or destroy the document or electronically stored information.

76
Q

VA Rule 8.4 C

A

RULE 8.4 Misconduct

It is professional misconduct for a lawyer to:

violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

commit a criminal or deliberately wrongful act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice law;

**engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer’s fitness to practice law;
**
state or imply an ability to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official; or

knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law;

or
enter into an agreement with a client or former client limiting or purporting to limit the right of the client or former client to file or pursue any complaint before a lawyer regulatory or disciplinary authority.

77
Q

Management of Client’s funds

A

The fee must be reasonable. the payment of flat fee should be held in a trust account until the legal work was complete.

funds can be withdrawn from the trust account, so long as Alex kep records as to how much he was withdrawing for paument of his actual services as he comopleted the work.

78
Q

Virginia Rules of Professonal conduct

VSB RULE 1.5

A

1.5 Fees
A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
the fee customarily charged in the locality for similar legal services;
the amount involved and the results obtained;
the time limitations imposed by the client or by the circumstances;
the nature and length of the professional relationship with the client;
the experience, reputation, and ability of the lawyer or lawyers performing the services; and
whether the fee is fixed or contingent.
The lawyer’s fee shall be adequately explained to the client. When the lawyer has not regularly represented the client, the amount, basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.
A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall state in writing the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee:
in a domestic relations matter, except in rare instances; or
for representing a defendant in a criminal case.
A division of a fee between lawyers who are not in the same firm may be made only if:
the client is advised of and consents to the participation of all the lawyers involved;
the terms of the division of the fee are disclosed to the client and the client consents thereto;
the total fee is reasonable; and
the division of fees and the client’s consent is obtained in advance of the rendering of legal services, preferably in writing.
Paragraph (e) does not prohibit or regulate the division of fees between attorneys who were previously associated in a law firm or between any successive attorneys in the same matter. In any such instance, the total fee must be reasonable.

79
Q

VA Rules of Professional Conduct

A

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional Conduct or other law;
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
(1) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is illegal or unjust;
(2) the client has used the lawyer’s services to perpetrate a crime or fraud;
(3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;
(4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(6) other good cause for withdrawal exists.
**(c) In any court proceeding, counsel of record shall not withdraw except by leave of court after compliance with notice requirements pursuant to applicable Rules of Court. in any other matter, a lawyer shall continue representation notwithstanding good cause for terminating the representation, when ordered to do so by a tribunal.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, refunding any advance payment of fee that has not been earned and handling records as indicated in **paragraph (e).
(e) All original, client-furnished documents and any originals of legal instruments or official documents which are in the lawyer’s possession (wills, corporate minutes, etc.) are the property of the client and, therefore, upon termination of the representation, those items shall be returned within a reasonable time to the client or the client’s new counsel upon request, whether or not the client has paid the fees and costs owed the lawyer. If the lawyer wants to keep a copy of such original documents, the lawyer must incur the cost of duplication. Also upon termination, the client, upon request, must also be provided within a reasonable time copies of the following documents from the lawyer’s file, whether or not the client has paid the fees and costs owed the lawyer: lawyer/client and lawyer/third-party communications; the lawyer’s copies of client-furnished documents (unless the originals have been returned to the client pursuant to this paragraph); transcripts, pleadings and discovery responses; working and final drafts of legal instruments, official documents, investigative reports, legal memoranda, and other attorney work product documents prepared or collected for the client in the course of the representation; research materials; and bills previously submitted to the client. Although the lawyer may bill and seek to collect from the client the costs associated with making a copy of these materials, the lawyer may not use the client’s refusal to pay for such materials as a basis to refuse the client’s request. The lawyer, however, is not required under this Rule to provide the client copies of billing records and documents intended only for internal use, such as memoranda prepared by the lawyer discussing conflicts of interest, staffing considerations, or difficulties arising from the lawyer-client relationship. The lawyer has met his or her obligation under this paragraph by furnishing these items one time at client request upon termination; provision of multiple copies is not required. The lawyer has not met his or her obligation under this paragraph by the mere provision of copies of documents on an item-by-item basis during the course of the representation.

80
Q

VA Rules of Professional Conduct 8.1

A

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal or deliberately wrongful act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice law;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer’s fitness to practice law;
(d) state or imply an ability to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official;
(e) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
(f) enter into an agreement with a client or former client limiting or purporting to limit the right of the client or former client to file or pursue any complaint before a lawyer regulatory or disciplinary authority.

VA July Bar Exam 2024 Study Cards (23 decks)

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