Paralegal Flashcards
Paralegal CANNOT
give legal advice, set fees, represent clients in court, or engage in other categories of activities that constitute the practice of law.
Cannot act as capper or runner ?
To use title Paralegal
must work under attorney supervision
meet an education requirement
comply with a mandatory continuing legal education (MCLE) obligation
Four categories of non-attorneys in CA who can provide law-related services directly to public without attorney supervision and can charge fees for such services:
Legal Document Assistants (LDA)
Unlawful Detainer Assistants (UDA)
Immigration Consultants (IC)
Bankruptcy Petition Preparers (BPP)
Legal Document Assistants (LDA)
charge fees for providing designated self-help service without attorney supervision, directly to public, have to provide $25,000 bond to cover claims such as incompetence
Unlawful Detainer Assistants (UDA)
provide “assistance and advice” to members of public involved in unlawful detainer cases such as tenants facing evictions or landlords seeking evictions without attorney supervision (Unlawful detainer refers to a court action against an individual who retains possession of real property unjustifiably even though his or her original possession was lawful.)
Immigration Consultants (IC)
provide “nonlegal assistance or advice on immigration matter” to members of public without attorney supervision. IC can complete immigration forms for client - so long as not advice is provided on what answers should be used on forms. Must obtain $50,000 bond to cover claims by clients who allege fraud or other unlawful act
Bankruptcy Petition Preparers (BPP)
position regulated by federal law. Charge fees for preparing bankruptcy petition or any other bankruptcy document that a debt will file in federal court without attorney supervision.
Contract
intends to formalize an agreement between two or more parties, in relation to a particular subject.
Elements of a Contract
"Meeting of the Minds" (Mutual Consent) Offer and Acceptance Mutual Consideration (The mutual exchange of something of value) Performance or Delivery Good Faith No Violation of Public Policy
Contract as a Document
The term “contract” often refers to a written agreement, typically including some or all of the following elements:
• introductory material (sometimes known as “recitals” or “whereas provisions”)
• definitions of key terms
• a statement of the purpose or purposes of the agreement
• the obligations of each party (and conditions that may trigger obligations)
• assurances as to various aspects of agreement (sometimes phrased as warranties, representations, or covenants)
• boilerplate provisions (see examples of these in Nolo’s article Common Boilerplate Provisions in Contracts)
• a signature block, and
• exhibits or attachments.
Contract Requirements
- Consideration. As Cole Porter wrote in the song, True Love, “You give to me and I give to you.” That sums up consideration. Each party has to promise or provide something of value to the other. Without this exchange, there is no contract. (Learn more in Nolo’s article Consideration: Every Contract Needs It.)
- Offer and acceptance. There must be a clear or definite offer to contract (“Do you want to buy this?”) and an unqualified acceptance (“Yes!”).
- Legal purpose. The purpose of the agreement must not violate the law. For example, you won’t be able to enforce a loan agreement that charges interest in excess of what is allowed by usury laws or a service agreement to hire someone to rob a bank or kill your mother-in-law.
- Capable parties. To be “capable” of making a contract, the parties must understand what they’re doing. For example, there is a presumption that minors and insane people usually don’t know what they’re doing and, for that reason, contracts they enter into won’t be enforced under certain circumstances. (Learn more in Nolo’s article Who Lacks the Capacity to Contract?)
- Mutual assent. This is also sometimes referred to as a “meeting of the minds.” The contracting parties must intend to be bound by their agreement and must agree on the essential terms.
Tort
A civil wrong which can be redressed by awarding damages
Types of damages injured party may recover in Tort
loss of earnings capacity, pain and suffering, and reasonable medical expenses. They include both present and future expected losses.
Three categories of torts
intentional torts (e.g., intentionally hitting a person); negligent torts (e.g., causing an accident by failing to obey traffic rules); and strict liability torts(e.g., liability for making and selling defective products - See Products Liability). Intentional torts are those wrongs which the defendant knew or should have known would occur through their actions or inactions. Negligent torts occur when the defendant’s actions were unreasonably unsafe. Strict liability wrongs do not depend on the degree of carefulness by the defendant, but are established when a particular action causes damage.
Proximate cause
Proximate cause exists where the plaintiff is injured as the result of negligent conduct, and plaintiff’s injury must have been a natural and probable result of the negligent conduct. In order for a defendant to be liable, the plaintiff must establish both negligence and proximate cause.
