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98 Cards in this Set

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IMPUTED DQ
No lawyer may represent a client when any one of them practicing alone would be prohibited from doing so unless:

the prohibition is based on a personal interest of the prohibited lawyer, or

the matter does not involve a proceeding before a tribunal in which the personally disqualified lawyer had a substantial role;

the personally disqualified lawyer is timely screened and will receive no fee; and

Written notice is promptly given to any affected former client to ascertain compliance.
WHAT IS IMPUTED DQ
Imputed disqualification generally occurs when an entire firm is barred from representing a client because one or more of its lawyers is personally disqualified from representing that client because of a conflict of interest.

A disqualification may be waived by the affected client.
GOVERNMENT EMPLOYEE
A lawyer must not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives informed, written consent.
FIRM IMPUTED FOR GOVERNMENT EMPLOYEE
No lawyer in a firm with which that lawyer is associated may knowingly represent or continue representation in a matter in which the lawyer participated personally and substantially as a public officer or employee, unless:

The personally disqualified lawyer is timely screened and will receive no fee;

and Written notice is promptly given to any affected former client to ascertain compliance.
FREEDOM OF RELIGION
Congress shall make not law respecting an establishment of religion or prohibiting the free exercise thereof.
FREE EXERCISE CLAUSE
The Free Exercise clause prohibits the government from punishing, denying benefits to or imposing burdens on someone on the basis of the person’s religious beliefs.
ESTABLISHMENT CLAUSE
The Establishment clause prohibits laws respecting the establishment of religion.

A law giving preference to some religious sect(s) is invalid unless it is narrowly tailored to promote a compelling interest. (Strict scrutiny).
NEUTRAL LAW OF GENERAL APPLICABILITY
A law is valid if it has a secular purpose,

the primary effect neither advances nor inhibits religion;

it does not produce excessive entanglement with religion.
FOURTEENTH AMENDMENT – VOLUNTARINESS
For confessions to be admissible, the Due Process Clause of the Fourteenth Amendment requires that they be voluntary.

Voluntariness is assessed by looking at the totality of the circumstances, including the suspect’s age, education, and mental and physical condition.
ARRESTS
An arrest occurs when the police take a person into custody against their will for purposes of criminal prosecution or interrogation.
HOME ARRESTS
Police generally need not obtain a warrant before arresting a person in a public place.

Police must have an arrest warrant to effect a non-emergency arrest of an individual in her own home.

An unlawful arrest, by itself, has no impact on a subsequent criminal prosecution.

Evidence that is fruit of an unlawful arrest may not be used against the defendant.
MARKETABLE TITLE
There is an implied warranty of marketable title in contracts for the sale of real estate.

The seller implies that the title is free and clear of defects.

Title acquired by adverse possession is unmarketable.
REMEDY IF TITLE IS UNMARKETABLE
Buyer must notify the seller of the specific defects and give reasonable time to cure the defects, even if this requires an extension of the due date.

If the seller fails to cure, the buyer may rescind the contract, sue for damages, get specific performance or require the seller to quiet title.
MERGER
If the buyer permits the closing to occur, the contract merges and the implied warranty of marketability disappears.

The seller is only liable if he committed fraud.
GENERAL WARRANTY DEED
A general warranty deed is one in which the grantor covenants against title defects created by both himself and all prior titleholders.
SPECIAL WARRANTY DEED
The special warranty deed usually contains the six title covenants found in the general warranty deed, but applies them only to defects caused by the acts or omissions of the grantor.
STATUTORY SPECIAL WARRANTY DEED
In Arizona, if the words "grant" or "convey" are used in a deed, the deed is deemed to warrant that the grantor has not conveyed any conflicting interest to any person and that the estate is free from encumbrances.

Buyer has a right to avoid the sale until she is assured it is not encumbered.
QUITCLAIM DEED
A quitclaim deed is a release of whatever interest, if any, the grantor has in the property.
PRESENT COVENANTS
Seisin, Right to Convey, Against Encumbrances
COVENANT OF Title and Possession
Seisin
COVENANT OF Power and Authority
Right to Convey
COVENANT OF Not Burdened
Against Encumbrances
FUTURE COVENANTS
Quiet Enjoyment, Warranty, Further Assurances
COVENANT OF No Disturbances
Quiet Enjoyment
COVENANT OF Will Defend
Warranty
COVENANT OF Will Do Whatever
Further Assurances
BREACH OF PRESENT COVENANTS
The covenants of Seisin and Right to Convey are breached at the time of conveyance if the grantor is not the owner.

The covenant against encumbrances is breached and a cause of action arises at the time of the conveyance if the property is encumbered.
BREACH OF FUTURE COVENANTS
Any disturbance of possession suffices to constitute a breach at the time of conveyance.
NO IMPLIED WARRANTIES OR COVENANTS
In the absence of a statute to the contrary, there are no implied warranties or covenants of title in a deed.
ESTOPPEL BY DEED
If the grantor purports to convey an interest in property that she does not then own, her subsequent acquisition of title will inure to the benefit of the grantee.

The original grantee may accept title to the land or sue for damages for breach of covenants for title.
LAND SALE CONTRACTS
To be enforceable, a land sale contract must be in writing and signed by the party to be charged.

It must contain he essential terms to conform to the SOF, meaning that it must contain a description of the property, identify the parties, price and manner of payment.
PART PERFORMANCE
A land sale contract that does not conform to the SOF may be valid if the purchaser has taken possession of the land and made substantial improvements or made all or part payment of the purchase price.
GENERAL POWERS AND AUTHORITY TO ACT
A director is generally responsible for the management of the business and the affairs of the corporation.

The board of directors may delegate management functions to executive committees or officers.
FIDUCIARY DUTIES
The director’s management duties are typical fiduciary duties, including the duty of care, the duty of loyalty and the duty to protect the interests of other intracorporate parties.
CORPORATE OPPORTUNITY DOCTRINE
These duties prohibit him from diverting a business opportunity to himself without first giving the corporation an opportunity to act.
BUSINESS JUDGMENT RULE
A director is required to discharge his duties in good faith, with the care that an ordinary prudent person in like position would exercise and in a manner the directors reasonably believe to be in the best interests of the corporation.
DIRECTOR REMOVAL
Directors may be removed with or without cause by the shareholders, unless the articles provide that it must be for cause.
QUORUM
A quorum is the majority of the fixed number of directors if the corporation has a fixed board size.

If a quorum is present, an vote of the majority of directors present will succeed.
OFFICERS ACTUAL AND APPARENT AUTHORITY
An officer’s actual authority includes the authority expressly granted it but also any authority that may be implied by the express grant. When a corporation “holds out” an officer as possessing certain authority, thereby inducing others to reasonably believe, the officer has apparent authority and will bind the corporation even though actual authority has not been granted.
FUNDAMENTAL CORPORATE CHANGE
The basic procedure for adopting requires a majority vote of the board of directors recommending the change;

notice of the proposed change sent to all shareholders;

a meeting to hold a vote of the shareholders in between 10 and 60 days,

and the approval of a majority of all votes entitled to be cast.
TRUSTS
A trust is a fiduciary relationship in which the trustee holds legal title to specific property to manage, invest, safeguard, and administer for the benefit of the designated beneficiaries who holds equitable title.
EXPRESS TRUST
Arises from the expressed intention of the owner of the property to create the relationship with respect to certain property.
DECLARATION OF TRUST
The owner of property may subject himself to equitable duties to deal with property on behalf of another by an oral or written declaration that he holds the legal title for the benefit of another. No delivery is required.
INTER VIVOS TRANSFER IN TRUST
Trust property must be placed out of the control of the settler. It must be transferred to another to hold for the beneficiary. Unless the settler intends to and does dispose of the legal and beneficial interests in specific property, no trust is created.
REVOCABLE INTER VIVOS TRUST
Under a revocable inter vivos trust an interest passes to the beneficiary during the settlor’s life; it becomes possessory on the settlor’s death.
TESTAMENTARY TRUST
A testamentary trust is created by will executed with the formalities required under the Statute of Wills and does not take effect until the settler dies.

The trust must be identified in the testator’s will; and the terms of the trust must be set forth in a writing other than the will.
CHARITABLE TRUSTS
A charitable trust has a charitable purpose, in other words, something that benefits the community in general.

A charitable trust need not have definite beneficiaries.

A charitable trust is not subject to the Rule Against Perpetuities.

Courts may modify a charitable trust to further trust purposes in the face of changed circumstances under the doctrine of Cy Pres.
CONSTRUCTIVE TRUSTS
To avoid unfair results, courts sometimes will apply a “constructive trust” to prevent the donee from holding in her own behalf by moving legal title from a person who has title but should not, to someone who should.
RESULTING TRUSTS
To prevent the “trustee” from becoming unjustly enriched by keeping the property, a court may impose a “resulting trust” under which the trustee holds the property for the benefit of the estate.
HONORARY TRUSTS
An honorary trust is a trust that is not for a charitable purpose and has no private beneficiaries.

It is honorary because the trustee has the choice of honoring the trust or of returning the money to the estate.

In Arizona, an honorary trust may be performed for no longer than 21 years, regardless of whether the trust contemplates a longer duration.
PET TRUSTS
A pet trust is an honorary trust for the care of a pet. Such a trust terminates when no living animal is covered by the trust.
DISCRETIONARY TRUSTS
Trusts that authorize the trustee to pay the beneficiaries such amount of income or principal as the trustee in its absolute discretion shall deem advisable.
SUPPORT TRUSTS
Trusts that attempt to control the trustee’s discretion by limiting distributions to those “necessary for the comfortable support of the beneficiary.”
SPENDTHRIFT CLAUSE
Spendthrift clauses prohibit a beneficiary from transferring his trust interest and protect that interest from creditors’ claims.

Creditors must wait until the trustee pays the beneficiary and then try to catch the money there.
SPENDTHRIFT NOT ALLOWED
If all the income is payable to the settler and the trustee has discretion to pay the entire principal to the settler at one time and if alive, the settler will receive all the principal at the termination of the trust, the courts will invalidate the trust and let creditors make claims.
CREDITOR’S CLAIMS
Unless a document or statute provides otherwise, creditors can satisfy their claims by reaching a trust beneficiary’s interest.
SPECIFIC DEVISE
A specific devise is a gift of a named or identified piece of propert, real or personal, that the testator leaves to a devisee.

Specific devises that are a poart of the testator's estate at the time of death pass to the devisee with any encumberqances on the property unless the testator's intent is otherwise.
GENERAL DEVISE
A general devise is a general amount of money the testator leaves to a devisee without mentioning specifics as to its source.
SATISFACTION OF A DEVISE
When a testator, while living, gives a devisee some or all of a gift left to him under the will, the inter vivos gift may reduce or satisfy the legacy under the will.
120 HOUR RULE
Arizona follows the 120-hour rule that provides that a will beneficiary must survive the testator by 120 hours, or the beneficiary will be treated as if she predeceased the testator.

The gift will lapse, unless saved by the anti-lapse statute.
ANTI-LAPSE
The anti-lapse statute applies where the beneficiary is a close relative (grandparent or lineal descendent) or a step-child of the testator, who leaves issue that survives the tetstaor.

If the statute applies, the gift will not lapse but will pass to the descendants of the beneficiary.
HOSTILE
The possession must be without permission. A statement of intent to give an easment in the future without delivery of a deed does not grant permission.
EXPRESS EASEMENT
Any easement for more than one year must be in writing and signed by the holder of the servient tenenment, as required by the SOF.

An express grant of an easement must comply with all the formalities of a deed.
TERMINATION OF AN EASEMENT
An easement may be created to last in perpetuity or for a limited period of time.
LICENSES
A licesnes is not an interest in land. It is merely a privilege to come onto the land, revocable at the will of the licensor.

Estoppel theory may apply to limit termination.
LAWYER AS WITNESS
A lawyer may not represent a client in litigation where the lawyer is likely to be a necessary witness.

This is a conflict of interest
CONFLICT OF INTEREST
A lawyer must be careful not to enter into a relationship where there is a potential conflict of interest that is likely to adversely affect the lawyer's ability to excercise independent and professional judgment.
CONFLICT OF INTEREST WAIVER
A conflict can be waived if thelawyer reasonably believes representation will not be adversely affected and the client gives informed consent in a signed writing.
DUTY TO REJECT REPRESENTATION
A lawyer has a duty to reject representation if the lawyer's representation will result in a violation of a rule or crime.
CONFIDENTIALITY AND ETHICS ADVICE
A lawyer may reveal confidential information to another lawyer to seek ethical advice.
EQUITABLE DEVIATION
A court may, excercising its equitable power, authorize equitable deviation from administrative trusts when necessary.

This is the resolution when a trust purpose can still be carried out.
WAIVER OF CONTRACT DEFENSE
A court may deem performance under an agreement as a waiver of the right to object to formation based on a defense.
SERVICE CONTRACT DAMAGES
A non-breaching party is entitled to be put in the same position as performance would have done plus consequential and icidental damages less mitigation damages.
MOTION FOR A NEW TRIAL
A motion for a new trial must be made within 15 days after judgment.

The grounds for granting a new trial are error that makes the judgment unfair, new evidence, prejudicial misconduct or serious error in judgment by the jury.
COMBINED MOTIONS FOR JMOL AND NEW TRIAL
When motions for renewed JMOL and a new trial are combined, a judge must rule on both motions.
MOTION FOR JMOL AND RENEWED MOTION
The moving party must have moved for JMOL at the close of all evidence to preserve the right to have the court consider a renewed motion.

Motions for renewed JMOL must be made within fifteen days of the judgment.
GROUNDS FOR JMOL
The moving party must specify the judgment sought and the law and facts on which it is entitled to judgment.

A person is entitled to JMOL if the other party did not prove all essential elements and reasonable minds could differ.
MOTION FOR A NEW TRIAL
A motion for a new trial must be made within 15 days after judgment.

The grounds for granting a new trial are error that makes the judgment unfair, new evidence, prejudicial misconduct or serious error in judgment by the jury.
COMBINED MOTIONS FOR JMOL AND NEW TRIAL
When motions for renewed JMOL and a new trial are combined, a judge must rule on both motions.
MOTION FOR JMOL AND RENEWED MOTION
The moving party must have moved for JMOL at the close of all evidence to preserve the right to have the court consider a renewed motion.

Motions for renewed JMOL must be made within fifteen days of the judgment.
GROUNDS FOR JMOL
The moving party must specify the judgment sought and the law and facts on which it is entitled to judgment.

A person is entitled to JMOL if the other party did not prove all essential elements and reasonable minds could differ.
ACTUAL AUTHORITY
Actual authority may be either express or implied.
IMPLIED AUTHORITY
Implied authority exists by the virtue of the title held.
EXPRESS AUTHORITY
Express authority occurs when it is conferred on a person by the coporation's articles or bylaws or is given through an express corporate resolution.
APPARENT AUTHORITY
Apparent authority occurs when the corporation holds the officer out as having authority to act so others believe the authority exists.
BOARD MEETINGS
In Arizona, regular board meetings may be held without notice. However, special meetings require at lest two days notice. Further, if the directors cannot all meet together, they must participate through some means of communication by which all participating may simultaneously hear each other.
RATIFICATION
In order to ratify an unauthorized action, a quorum of the Board of Directors must meet and a majority of the directors present must vote in favor of the sale.
BAILEE-BAILOR
The duty imposed upon a bailee for the sole benefit of the baillee is a high degree of care with regard to the bailed chattel.

Ordinary wear and tear is excluded.
UNDISCLOSED PRINCIPAL
The agent for an undisclosed principal may be held to answer for the cost of repairs resulting from a third party relying on ostensible ownership.

Subsequent knowledge or notice of true ownership does not diminish the rights of the third parties against an agent of an undisclosed principal.
PRIOR BAD ACTS
Generally, if offered to show a propensity for committing such crimes, prior similar bad acts are inadmissable.
EXCITED UTTERANCE
An excited utterance is one which relates to a startling event. It must be made while the declarant was under stress of excitment and within a period of time in which there was no reasonable likelihood of reflection or fabrication.
EXPECTATION DAMAGES
Expectation damages compensate the injured party for the benefit he would have received had the contract not been breached, minus any amount he would have spent in performance of the contract.
CONSEQUENTIAL DAMAGES
Consequential (or special) damages arise from the special facts and circumstances of the case and are not deemed to be within the contemplation of the breaching party unless he was made aware of such specific facts and circumstances. A party seeking consequential damages must demonstrate that the damages were foreseeable at the time the contract was formed.
RELIANCE DAMAGES
Reliance damages compensate the injured party for expenses or loss incurred in reasonable reliance on the contract that was breached. Reliance damages are only awarded when expectation damages cannot be proven, and may not exceed the anticipated benefit of the bargain.
STIPULATED DAMAGES
At the time the contract is formed, the parties may agree to a fixed sum of money or a set formula for setting damages in the event of a breach. Stipulated damages will be enforced if they reflect an honest effort to anticipate the harm caused by a breach.
DEED FORMALITIES
A deed must be in writing, signed by the grantor, and reasonably identify the parties and the land.
DEFECTIVE DEEDS
A void deed will be set aside by the court even if the property has passed, but a voidable deed will be set aside only if the property has not passed to a bona fide purchaser.
VOID AND VOIDABLE DEEDS
Void deeds are forged, never delivered, , obtained by fraud in factum. Voidable deeds are those executed by minors or incapacitated persons, those obtained by fraud in the inducment, duress, undue influence, mistake or breach of fiduciary duty.