Full Review major concepts Flashcards
Prohibited objectives of representation CA Law
May not bring action/defense without PC and for purpose of harassing or maliciously injuring or being claim not warranted under existing law with our good faith argument for modification extension or reversal of law
Duty to Reject
Must reject rep if it would violate rule of ethics or law or physical or mental ability impairs rep. Should not take if can’t prepare promptly competently diligent and to completion
Limiting client objectives
Permissible if reasonable and informed consent
When client is disabled
Can take reasonable protective action
Can reveal confident info to extent necessary to protect
Can take emergency action as long as reasonably belief unrepped
Must withdraw from rep
Violate ethics or law
CA knows or reasonably should know violate ethics rules (not law)
Mental or phys health materially impairs - CA substantially impairs
Knows or should know bad faith claim
CA Fee splitting
Must be written agreement
Client consents in writing full disclosure
Fees not increased
Referral fees
MPRE no
CA - may gift gratuity to person making recommendation if no one consideration of promise or agreement for future referrals. Referrals to other lawyers ok if they meet fee splitting rules
No L/C privilege CA
- Estate dispute if dead CL
- Information to prevent criminal act with death or substantial harm
Answer
When no Duty of Confidentiality
Client gives informed consent
Necessary for rep
Substantial bodily harm CA only if criminal must attempt to dissuade and inform of ability
RB to prevent fraud RB certain to cause financial injury when used L service NOT IN CA
L/C dispute
RULE FOR ALL CONFLICTS
Must not rep if risk of materially limited UNLESS
- RB he will be able to provide competent and diligent rep
- Not prohibited by law
- Not assertion of claim by one client against another in same litigation or proceeding and
- Affected client gives informed consent confirmed in writing or written consent
Opposing lawyer related/ sex
MPRE - may not represent unless each gives informed consent. Not imputed
CA- not permitted when KSK relative on other side or lives/relationship unless written disclosure to client
No sex after rep, cannot waive. If org can’t bone someone with authority
Business transaction with clien
Cannot do business or acquire adverse interest unless
- Fully disclosed in writing
- Fair to client
- Client understands
- Advised to seek independent counsel and has time
- Client consent in writing after disclosure and lawyers terms
Conflict with firms when L switches
MR. not imputed if
Screened
No fee
Certification of compliance at reasonable intervals
CA
L cannot substantially participate in prior representation
Screened and no fee
Written notice to former client
Old Firm
No restriction on old Ls clients unless
Other conflict stuff
Former Gov L in private practice
Of participated substantially and personally, only with informed consent in writing - cannot use confidential info
Dilligence
Not bound to press for all advantages
Control worklod
Pursue to completion
CA- not reckless repeated gross neg fails to act with reasonable dilligence
Malpractice
Negligence
Breach of duty
Cause
Actual damages
May not limit recovery unless CL independent rep
May not settled unrepped unless told to get counsel
Prosecutor duties
No prosecution without PC
Advise right to counsel
Not seek PT rights waiver
Disclose exculpatory evidence
Disclose new evidence if credible and material
If in JDX give to D and open investigation
Must reverse if clear and convincing
No extrajudicial statements or letting others make
Advertisin
No false or misleading statement
Advertiser must be identified, include name and address MR1- just contact info
Solicitation- targeted CA - no real time communication unless lawyer or other relationship
Targeted mailings - must label as advertisement
Partner/associate liability
Reasonable efforts to ensure compliance
P liable for associate if ratifying bad conduct
Subordinate lawyer - does not violate if acting in accordance with supervised resolution of arguable question of professional duty
Employing disbarred lawyer
May not render advise Make appearances Negotiation for client Handle funds Other law
May do legal prep, speak to clients with regard to updates and billing
Go with lawyer to dep for clerical assistance
Must notify bar
Sale of practice
MR Cease practice Notice to clients, transfer 90 days Sold to lawyers Fee not increased
CA same as above but can still practice busy must sell whole firm
Principal fraudulent concealment
3rd party not liable to principal if excluded by contract or existence fraudulently concealed
Principal liable if detrimental change in position by 3rd party due to agent with actual authority, principal knew of conduct and did not take steps to notify 3rd party
Supreme Court abstention
State issue resolved by state court eliminates need for federal issue
Complex state statute scheme of great importance
Enjoining criminal punishment
Double proceedings
Exceptions to diversity
Probate and marital law
Interpleader - only two claimants need to be diverse
Class action if more than 5 million
Accident if 75 people or more die
- A d resides in at least one other state
- Two d’s in different states or
- Substantial act in two different states
Court will realign if necessary
Citizenship of minors
Legal rep is citizen of where person repping is.
Minor is deemed citizen of parent state with custody
Destroying diversity
Cannot assign claims to destroy
May not create by failing to hound indispensable party
Voluntary citizenship ok if genuine intent to reside
Substitute for dead party- ok
Replace do to wrong name - not ok
Ct has discretion to demand if diversity destroyed
Supplemental JDX
Plaintiff can never exercise supplemental JDX
In personam JDX
Voluntary presence
Domicile
Consent
Due process- minimum contacts doesn’t offend fair play and substantial justice
Sufficient contact to foresee being taken to court there
Specific and general
Fair play substantial justice.
- State interest in adjudication
- Burden on D
- Efficient resolution
- Shares interest of states
Venue
Fed court
Where any D resides if all in same state or
Where substantial part of events occurred
Fall back is any state with PJ over any D
Venue CA
Transitory - where D resides, not not in CA any county
Contract- where executed or performed
PI where injury occurred
If multiple venues, proper where any D resides
Transfer ca. Occur if - fair trial impossible
Non-conveniens, no qualified jusge
Injunction requirements
Irreparable harm
Success on merits
Balance of equity
Public interest
Joinder
Any right to relief asserted joint several or in alternative and common question of law or fact
Cant join if it destroys diversity
Necessary party- complete relief cannot be afforded
May impair ability to protect interest
A sense leads to inconsistent obligations
Class action
Numerosity - joinder impractical
Ccommonality - law or fact
Typicality- claims typical of class
Adequacy- must fairly and accurately rep class
CA class action Ascertainable class Community of interest Common question of law fact predominate Benefit parties and adequately rep
General discover rules
FRE:
Initial - individuals with discoverable info including subjects; all docs to support claims; insurance; damages computation
14 days after discovery conference
Experts 90 days before unless to contradict, then in 30 days
CA: no mandatory
Balance all disco requests with right to privacy
Dep: 10 dep limit, can’t redepose, depose before discovery conference
CA: no dep limit but 20 day time limit, each dep limited to 7 hours unless stop, complex case, expert, business designation
JMOL and JNOV
FRE must be renewed
CA - doesn’t need to be renewed
New trial
Error at trial New evidence that was excusably overlooked Misconduct Against evidence False evidence Excessive or inadequate
Relief from judgment
No later than one year after judgment for
Mistake surprise or excusable begleb t
New evidence that could not be discovered
Fraud
No time limit: judgment void or based on other judgment
Appeals
30 days after entry of last remaining motion or judgment
Final judgment on merits
CA- one party can appeal if final without express findings
Interlocutors- immediate appeal if for an injunction, appointing receiver, admiralty or if district court certifies
CA immediate appeals Order after judgment Quash service or non conveniens New trial or denying JNOV Injunction s Sanctions over 5k
Res judicata claim preclusion
Valid final judgment on merits
Sufficiently identical claims
Sufficiently identical parties
Issue preclusion Same issue Actually litigated Final valid judgment Essential to judgment
Con law timeliness
Ripe or moot
Caps bale of repetition but evading review
D ceases
Collateral consequences
Class action
Commerce clause
Regulate channels instrumentalities, substantial effect
Substantial effect - rational basis for concluding total incidence substantially effects
Dormant commerce clause
Cannot discriminate against out of state commerce
- unless necessary to important state interests- local interest and no other means
Unduly burden interstate commerce
-balancing test of purpose of law vs less restrictive alternatives
Regulate outside activities
Can discriminate if market participant or traditional government function entities
Procedural due process
Notice opportunity key to be heard
Balance interest affected
Risk of erroneous
Deprivation
Government interest in additional process
Strict scrutiny
Fundamental right
Least restrictive means for compelling state interest
Burden on Givernment
Rational basis
Not fundamental right
Rationally related to legitimate government interest
Fundamental rights
Travel- some waiting periods ok for benefits but must be treated equally
Voting
Privacy- includes marriage, contraception, etc.
2nd amendment
Equal Peotection
Strict scrutiny - least restrictive means for compelling interest - fundamental right or suspect class
Intermediate scrutiny - substantially related to important interest
Rational basis - no higher standards
Showing discrimination - on its face is discriminatory
Applied in discriminatory way
Applied with discriminatory motive
Privileges and immunities
Applies only to citizens
Cant discriminate against out of state citizen regarding fundamental rights unless
No residents are part of the problem and no other means
