Pop quiz tuesday Flashcards
Lawyers may not
Mislead the court
Disclose cases
The system is not
a truth finding system
What is the model in other countries that look for the truth
Inquisitorial
What is a Fiduciary relationship
Lawyers duty of honesty and acting on whats best for the client
What is Pro-bono
a service lawyers are encouraged to provide for free to worthy causes and people.
Pro se
When u represent urself
What are things u can probably do w/o lawyer
-Simple divorce
-small claims court
-Adam reid getting hit by cars
-simple wills
What is in house counsel
they represent big corportaions w/ lots of money
What is public interest firms
firms w/ missions/cause
What is gov attorney
prosecutors, assistant attorney generals, government attorneys that provide civil advice (and may include public defenders at the local and federal level – but
criminal defense lawyers, even if paid by the government, have different obligations).
Public Prosecutors (or District Attorneys, and assistant attorney generals) are
Bound by proffessinoal code:
-prosecutors for both criminal and civil
-Duty is to do JUSTICE, not simple wina case
Public defenders
represent those charged with crimes (according to constitution every criminal case gets free legal represntaion)
All criminal defense attorneys must
zealously represent the defendant even if she knows he’s guilty
(duty is not to “do justice” but to the client. Duty is to represent client
even if the client has confessed to the lawyer.)
The legal proffesion is
self regulating
The rules of prof conduct are
are codified,
carrying the force of law,
binding on members of the bar.
A breach of the rules of prof conduct may lead to an attorney being
Disiplined
Disbarment
Suspension
Probation
Censure
What is the attorney client privilege
all communications, made to an attorney must remain confidential.
- Privilege does not apply to threat to do future harm;
- Privilege SURVIVES THE DEATH OF THE CLIENT –
- But note: it can be waived by client.
Alton Logan (60 Minutes).
The rest of the story…
A prosecutor is not the “attorney” for the victim of a crime; thus, if the victim discloses
something to the prosecutor that might bear on the innocence of the accused, the prosecutor must turn this information over to the attorney for the accused.
Duty of Confidentiality
protects ALL info that lawyers learn about client, during representation, even if not from client
Ineffective assistance of counsel in CRIMINAL CASES =
Specific acts or omissions that were outside the bounds of professionally competent
assistance (in other words, “negligent conduct”);
AND
B. Counsel’s errors actually prejudiced the defendant to the point where he was denied a
fair trial.
What is malpractice
when a civil litigants lawyer has committed significant errors
In the American system, the ordinary rule is that everyone pays for their own lawyer unless…
1.A statute (law) says that if the plaintiff wins, the defendant pays his lawyer’s fees.
2. A contract includes a clause that says, if there is a dispute, and litigation, the prevailing party’s fees are paid by the losing party.
Flat Rate
This is essentially an hourly rate, where the lawyer will be paid for each hour worked. This
may also be a “by the job” (e.g. a simple will).
Retainers
Simply $ the client pays the lawyer, who “holds” it in his/her account and only draws the
money out in proportion the time spent working on the case.
FEE SHIFTING
When the government creates a law that provides for the government to pay the plaintiff’s
attorney’s fees if the plaintiff wins the case. This encourages lawyers to take cases of poor
people b/c there is the possibility of a good pay day.
Class Action Cases
Lawyers are paid an amount of money SET by the court, from the proceeds of the settlement.
Some firms have carved out very lucrative/profitable practices once they get appointed lead
counsel in a class action case.
supremacy clause
provides that the Constitution,
laws, and treaties of the United States are “the supreme
Law of the Land.”
preemption
is when n When Congress chooses to act exclusively in a concurrent area.In this circumstance, a valid federal statute or regulation will take precedence over a conflicting state or local law or regulation on
the same general subject.
What is the bill of rights
the first ten amendments to the US Constitution, ratified in 1791 and guaranteeing such rights as the freedoms of speech, assembly, and worship.
1st amendment
freedom of speech, religion, right to petition
2nd amendment
bear arms
3rd amendment
prohibits soldiers lodging in any house w/o consent
4th amendment
prohibits unreasonable searches and seizure of ppl or property
Symbolic speech is
gestures, movements, articles of clothing, and other forms of expressive conduct—is also
given substantial protection by the courts.
Content-Neutral Laws are
. Laws that regulate the time,
manner, and place, but not the content, of speech receive
less scrutiny by the courts than do laws that restrict the
content of expression
what laws may restirict free speech?
Compelling gov interest:he government’s interest is balanced against
the individual’s constitutional right to free expression.. ex:school
Generally, a restriction on commercial speech will be
considered valid as long as it meets three criteria
- It must seek to implement a substantial government
interest. - It must directly advance that interest.
- It must go no further than necessary to accomplish
its objective.
Criminal negligence
the defendant takes an unjustified, substantial, and foreseeable risk that results in harm.
A defendant can be negligent even if she or he was not
actually aware of the risk but should have been aware of it
Strict liability
crimes
are offenses that do not require a wrongful mental
state to establish criminal liability
Strict liability
crimes are offenses that do not require a wrongful mental state to establish criminal liability
overcriminalization argues
when intent is removed ppl are likely to commit crimes unknowingly
responsible corporate
officer doctrine states
a court may impose criminal liability on a
corporate officer who participated in, directed, or merely
knew about a given criminal violation.
Larceny
taking and carrying away of someone else’s personal property with the intent to permanently deprive the owner of possession
Public Order Crime
AKA victimless crimes
outlawed activities
that are considered contrary to public values and morals.
Organized Crime
groups operating illegitimately to provide illegal goods
and services, such as narcotics.
substantial-capacity test set forth in the Model Penal Code:
A person is not responsible for criminal conduct such conduct as a result of mental disease or defect he or she lacks substantial capacity either to appreciate the wrongfulness conduct or
to conform thier conduct to the requirements of
the law.
Duress is
when the wrongful threat of one person
induces another person to perform an act that he or she would not otherwise have performed.
Entrapment is
designed to prevent police officers or other government agents from tricking ppl into committing a crime.
to obtain a search warrant:
enforcement officers must convince a judge that they have
reasonable grounds, or probable cause, to believe a search
will reveal a specific illegality
exclusionary rule
any evidence obtained in violation of the constitutional rights
spelled out in the Fourth, Fifth, and Sixth Amendments
generally is not admissible at trial.
The Miranda Rule is
individuals who are arrested must be informed of
certain constitutional rights 6th and 5th
What is a contract
an agreement that can
be enforced in court
unilateral contract
formed not
at the moment when promises are exchanged but at the
moment when the contract is performed
Bilateral contract
promise for a promise
formal contracts
are contracts
that require a special form or method of creation (formation) to be enforceable
informal contract
No special form is required
(except for certain types of contracts that must be in writing), as the contracts are usually based on their substance
rather than their form
express
contract
the terms of the agreement are fully and explicitly stated in words, oral or written
Implied contract
A contract that is implied from the conduct of the
parties
executed contract
A contract that has
been fully performed on both sides
executory contract
A contract that has not been fully performed by
the parties
valid contract has the elements necessary to entitle at least one of the parties to enforce it in court. What are the elements?
- agreement
- supported by legally sufficient consideration
3.made by parties w/ legal capacity - legal purpose.
Voidable contract
a valid contract but one that can be avoided at the option of one or both of the parties
unenforceable contract
is one that cannot be enforced because of certain legal defenses against it.
Void Contracts
no contract at all.
The terms void and contract are contradictory. None of the parties have any legal obligations if a contract is void. A contract can be void because one of the parties was determined by a court to be mentally incompetent
Quasi contracts
contracts implied in law, are not
actual contracts. Rather, they are fictional contracts that
courts can impose on the parties “as if” the parties had
entered into an actual contract.
Contracts can be enforced by a court, the breach of which gives may give rise to money
damages.
The non-performing party is:
1.required to pay money
2. but in some situations money damages are inadequate: give prosied act or stop doing somehting
Public Policy:
You can’t make a contract to do something against the law (or to ignore the
law).
Contracts can include their own rules for enforcement:
binding arbitration, attorney fees, choice of law provisions (which State’s contract law controls), and choice of physical forum.
There are 6 parts of a valid contract *:
- Capacity (also called “Competent Parties”)
- Offer + Acceptance
(Also called “Mutual Agreement”) - Genuine Assent (also called “Consent”)
- Consideration
- In form prescribed by law
(#5 and #6 are often combined.) - Legal formation and execution
A contract is Voidable at the discretion of that person, or that person’s guardian, etc.
A. Minors
- Competent party has duty of “restitution” to minor, e.g. putting
the minor back in the same position as before the contract;
108 - Minor also has duty to return property, etc., even if it has
depreciated; - Minor also may have to make restitution, to make the other
party “whole”. - Minor – once 18 – may ratify the contract by NOT disavowing it,
and accepting its terms and consequences.
EXCEPT: Minor may not disavow contracts for “Necessities of Life”, e.g.
medical, educational loans, military contracts, food, shelter, etc.
A contract is Voidable at the discretion of that person, or that person’s guardian, etc.
B. Mentally incompetent
Test: “objective cognitive understanding” test” – the person’s mental
incapacity must render that person incapable of understanding or
comprehending the nature of the transaction.
Mere stupidity does not count.
A contract is Voidable at the discretion of that person, or that person’s guardian, etc.
C. Drunk/High
but only if you are so drunk that you are “incapable of
understanding the nature of the transaction at the time.” Think…..
drunk.
The party NOT drunk must be returned to the status quo ante.
