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69 Cards in this Set
- Front
- Back
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Principal liable for agent's torts
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- Agency relationship
- Within scope of agency |
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Agency relationship
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- Assent (informal agreement)
- Benefit principal - Control by the principal (supervise) |
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Sub-agent and borrowed agent
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- No control for both
- No agreement for sub-agent |
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Independent contractor for tort liability (agency)
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- Principal is NL
- Exceptions: * Ultra-hazadous activity * Estoppel: hold-out as agent |
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Scope of agency
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- Balancing test
* Whether A intended to benefit P * Detour or frolic * Description of the agency |
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Principal's liability for intentional tort of agent
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- Not liable b/c not w/i scope
- Liable if: * Natural to use force (e.g. guard) * Authorization by P * A intended to benefit P |
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Principal's liability for agent's contract
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- Principal is L if authorized
* Acutal, express authorization * Actual, implied authorization * Apparent authority * Ratification - If P is L, A is NL personally - A is L for unauthorized K - 3P may elect either if A did not disclose: * Identity of P * Existence of agency |
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Actual and express authorization (agency)
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- No need to be written
- May be private - Land agency: requires writing - Authorization is narrowly construed - Revocation of authorization: * by either party * if principal is dead * if principal is incapacitated - Durable power of attorney: * Not terminate when principal is incapacitated * Unless otherwise provided in the power |
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Actual and implied authority in agency
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- Necessary to carry out agency objective
- Customary (e.g. lawyer) - Prior dealing |
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Apparent authority in agency
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- No actual authorization
- P did something to cloak authority - 3P reasonably relied - Reliance not reasonable if dealing with a partner of a partnership for first time |
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Agent's duty to principal
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- Obey instructions
- Duty of care - Duty of loyalty * No self-dealing * Not usurp principal opportunity * Not secret profit - Remedy: * Damage * Disgorge benefit |
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Ratification by principal (agency)
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- P must know the material aspect of act
- P must accept the benefits - P must ratify without change - If change, no ratification |
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Partnership (requirements)
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- 2 or more person
- Carrying out business for profit - No writing or registration necessary - Key: contribution & profit sharing - Partners have unlimited liability |
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Parnter's liability for partnership debts
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- Partner is each other's agent
- Partner L for: * Authorized contract * Tort w/i scope of partnership business - Estoppel: * L if stating partnership w/ another * even no actual partnership exists |
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Partner's liability for partnership terminates
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- All liability that arises until death and notice
- All acts to wind up existing business - All new business during wind-up until notice - No pre-existing debt prior to joining - Capital contribution upon joining - All liability after quitting until notice - Note: the above are time that liability arises - Notice requirement * Actual notice to known creditors * Publication notice to potential creditors |
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Partner's claim to partnership property interest
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- No right in specific partnership property
* Property under partnership's name * Requires authorization to dispose - Right to surplus and profit (transferrable) - Right to management control (can't transfer) - No right to salary except winding up |
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Partner's share in control, profit, and loss
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- Equal vote for management
- Without agreement: * Equal share of profit * Same share in loss as in profit |
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Partnership termination
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- Dissolves upon material change:
* Partner dead * Partner withdraws - Winding up: time from dissolve to termination - Termination: * Pay outside creditors * Pay inside creditors * Pay capital contributions * If anything left, pay surplus to partners |
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Limited Liability Partnership
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- Requires registration stating general partners
- Without registration: general partnership - Limited partner: limited liability; limited control - General partner: all liability; all control |
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Registered LLP
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- Only for professional partnership
- Requires registration stating profession - All partners: limited liability |
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Limited Liability Company (LLC)
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- Requires
* registration of articles of organization * publish summary for 6 weeks on 2 papers - Limited tax (through) - Members may manage through manager - Members have limited liability - Share transfer need unanimous consent - Terminate upon majority vote |
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Partners' duty to each other
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- Fiduciary duty
* No self dealing * No secret profit * No usurp of partnership opportunity - Action of accounting to: * claim damage * disgorge unjuct enrichment |
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Recognition of other state's judgments
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- Full faith and credit clause
* Court has jurisdiction * Judgment is final * Judgment is on merits - Final: not modifiable (future support) - Merit: * Default judgment * Consent judgment - No defense to full faith and credit: * Good: judgment is penal * Good: judgment has extrinsic fraud * Bad: mistakes of judge * Bad: inconsistent judgment * Bad: against public policy |
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Recognition of foreign country judgment
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- Based on principle of comity
- Fair procedure - Jurisdiction |
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Choice of laws
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- Constitutional standard
- Test: government interest test (Babcock) - Traditional: vested right test - Defense: * Law is procedural (apply forum law) * Law is penal * Law is against public policy |
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Constitutional standard for choice of laws
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- Applicable provision
* Due process * Full faith and credit - Test: * Substantial contact with the state * Legitimate interest to apply the law - No compare of interest - Fail if only connection is: * move to state afterwards * the state is forum state |
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Governmental interest test (choice of law)
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- Babcock
* List facts * List state and laws * Consider policies of laws * Relate facts to policies * Balance which policy most important - Types: * No actual conflict: both parties' domicile * Actual conflict: forum law * Disinterested forum: forum law/better law * Non-provided for: forum law |
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Traditional vested right test (choice of law)
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- Territorial
- Where cause of action accrues * Place of accident * Place of execution - Replaced by government interest test |
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Tort choice of law
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- Babcock/Neumeier: distribution rules
* If both party same state: that state * If otherwise: forum law * [Each state protects own party] * [Non-provided for case] - Action rules: place of action |
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Contract choice of law
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- Any law chosen by parties to construe
- Law chosen regarding validity: * Not against public policy of state * No fraud, duress, coersion * Substantial connection with state * > $250,000: may choose NY * > $1mm: may choose NY; good forum - No law chosen: Babcock approach - Insurance policy: place written |
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Property choice of law
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- Situs of property for RE
- Place of property for personal property - Decedent domicile for intestate |
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Marriage choice of law
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- Marriage is valid if:
* At place of marriage, valid * If invalid due to technical: valid in NY - Divorce: P's domicile |
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Choice of law: procedural and substantive
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- Procedural:
* Statute of limitations * Burden of proof - Substantive * Statute of fraud * Comparative/contributory negligence * Direct suit statute: NY * contribution and indemnification * Parol evidence rule |
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Proof of foreign law
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- Judicial notice of other state law
- Foreign country law: * Prove like facts * If not proved: use NY law |
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NY jurisdiction for matrimonial actions
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- Subject matter: Supreme Court
- In res jurisdiction for marital status: * Either spouse domiciled in NY - Personal jurisdiction for monetary support: * P is domiciled in NY, and 1 of 4 * matrimonial domicile in NY * grounds of action arising in NY * under agreement executed in NY * under laws of NY - Only personal service if w/o court approval - Durational residency requirement for merit |
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Durational residency requirement for matrimonial actions
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- 0 residency:
* Both party domiciled in NY at filing * Grounds arising in NY - 1 year residency, 1 of 3: * Married in NY * Matrimonial domicile in NY * Grounds arising in NY - 2 year residency, no more requirement |
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Jurisdictional requirement to recognize out-state divorce
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- Subject matter jurisdiction of rendering court:
* One spouse must domicile in the state - Personal jurisdiction for status: * P must domicile in the state * D not estopped - Persons estopped may not challenge: * Rendering court had PJ over the person * The person meaningfully participated in action * The person in privity to P (i.e. children) * The person remarried in reliance on divorce - Support and alimony: PJ over D - Child custody: child's home state - Divisible divorce doctrine |
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Professional responsibility for matrimonial actions
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- No contingency fees
- No non-refundable retainer - Writing fee engagement letter * Signed by both lawyer and client * Right to elect for fee dispute arbitration * Periodical billing at 60 days * Inform rights/duties before fee agreement |
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PR: ways to discipline lawyers
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- Admonition
- Private or public censure - Suspension - Disbar - Discipline in one state: * Not automatically in another state * But recognize comity - Any state of admission may discipline - Principal place of practice rule - Principal effect rule |
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PR: temporary out-state practice
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- Association with local lawyer
- Admitted pro hac vice - Arbiration or mediation - Reasonably related to in-state practice - Multi-office firms: * Letterhead must show admitted state |
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PR: admission to bar
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- Requirement:
* ABA graduate * 1y school + 3y supervised study * MPRE + Bar exam - Non-exam requirement: * ABA law school graduate * Admitted to a state * State has reciprocal law with NY * Practiced in 5/7 years - Applicant has duty of full disclosure - Applicant has burden of proof - Non-applicant: * may pairse applicant * must report moral turpitude - Register every 2 years |
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PR: regulation of lawyers
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- Court of Appeals with its agencies
- Self-regulated * Must report violations * Must be available to testify - No duty: representing another lawyer |
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PR: client decisions
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- Commencement
- Jury or bench - Settlement - Appeal - Take stand in criminal case |
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PR: lawyer decisions
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- Reasonable adjournment
- Discovery strategy - Incapacitated client: * Dimished capacity * Risk of substantial harm * Client cannot adequately act |
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PR: must withdraw situations
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- Mentally/physically incompetent
- Know that service leads to crime - Client fires lawyer - Client is harassing others |
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PR: may withdraw situations
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- Claim is frivolous or meritless
- Reasonable belief of fraud/crime - Client defaults on fees - Non-cooperating co-counsel - Service likely leads to violation of RPC |
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PR: confidentiality
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- Must keep damaging information confidential
- Must disclose: perjury on court - May disclose: * Required by law or court order * Substantial likelihood to death/serious injury * Authorized for client's benefit * Prevent crime * Obtaining ethical advice |
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PR: Curing incompetence
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- Associate with competent lawyer
- Research and become competent - Competence: * Mental/physical * Knowledge of substantive law * Time |
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PR: conflict of interest
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- Requires:
* Client's written informed consent * Not prohibited by law * Ability of competent representation - Conflict w/ former client: * In the same case * Has confidential info re same case - May not represent unless: * Confidential info publised * Client written informed consent - Conflict w/ current client: never good - Intentionally conflicting out lawyers: * Lawyer not conflicted out |
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PR: firm names
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- Trade name not allowed
- Dead person allowed if worked here - Suspended: may stay - Disbarred: may not stay - Full time public office: not stay - Domain name: allowed * Conspicuous firm name * Not using domain name in practice * Not misleading (imply results) |
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PR: Advertisement
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- Front page: "Attorney advertising"
- Principle address - Phone number - Allowed content: * Education * Time admitted * Admitted state and organization * Public office held * Concentrated in ... * Fluent language * Client name w/ consent * Bona fide professional rating * Fee arrangement (binding) * Acceptable credit arrangement - Allowed if can prove at publish: * Comparison with other firms * Expectation of outcome * Client endorsement (consent) * "past result don't guarantee outcome" - Retain record: * 1y for website * 3y for other |
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PR: solicitation
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- In person solicitation prohibited
- Exception: * Non-pecuniary * Non-real time * Relative * Close friends * Former client * Current client - No solicitation if known refusal - unsolicited advice provided: not engage - No solicitation if: * misleading * recipient refuse * require moving to another place * target physical/mentally unstable * coercion, harassment |
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PR: targeted mail
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- May target recipient
- "Attorney advertising" - Source of identity and address - "Do not sign" if retainer enclosed - For personal injury/wrongful death: - Not w/i 30d normally - Not w/i 15d if urgent filing needed - File with Grievance Committee |
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PR: specialty
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- May advertise specialty only if:
* Certifying org recognized by ABA/NY * Disclose certifying org * "certification not required" * Certified not necessarily better |
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PR: Dealing with Client
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- No sex after engagement
- May continue sex - No sex for domestic relations case - No imputation - May deal in ordinary course: * Bank clients * Dealer clients - May deal only if: * Written informing terms * Advising to seek other counsel * Terms are fair - May not lend to client - May advance filing fee - May pay filing fee for poor - No media right until case close |
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PR: Fee engagement
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- If > 3,000: required
- Exception: * Former client * Current client * Similar service - Writing: * Scope of services * Basis of fees * Calculations * Billing practices - Client may ratify: * Even if misconduct * Misconduct not inducing ratification * Must know client's right * Must in writing - No maximum/minimum fee - Max for medical malpractice - Min: after settling expense schedule |
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PR: client property / money
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- Property: warehouse or garage
- Money: * Client trust account in NY * Separate operating account * Prompt withdrawal after notice * Small account interest to IOTA * Overdrawn notice enabled * Cannot put in own money * Can pay for account maintenance |
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PR: communication with parties
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- No ex parte talk with juror
- De minimis ex parte with judge - May talk ex parte with witnesses - No talk with opponent directly |
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PR: representing organizations
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- Make sure representing org, not:
* Employees * Officers - Reporting requirement: * Goes up the ladder to board * Report outside involving securities * Minimize disclosure * Protecting client org |
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PR: zealous representation
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- Civil: no frivolous claims
- Crim: make prove every element |
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PR: vicarious liability
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- Junior associate:
* must abide by code * may follow order if arguable - Senior lawyer: * L if instructed junior lawyer/agent * Known and did not report |
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PR: adverse authority / facts
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- Adverse authority: must disclose
- Adverse facts: * no need to disclose * disclose if ex parte - Prosecutor: * disclose exculpatory evidence * only prosecute with probable cause |
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PR: fee sharing
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- No fee sharing with non-lawyer
- May share office with non-lawyer: * Clearly separate * No coercion to use the lawyer - With lawyer: * Total fee reasonable * Client consent * Per amount of service * Any % if jointly responsible - No referal fees to other lawyer |
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PR: Accepting/rejecting cases
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- May reject any case before engagement
- Should (not must) accept: * Oppressed * Defenseless * Fair share of pro bono work |
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PR: non-competition for lawyers
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- Not allowed
- Allowed for retirement benefit - Allowed for sale of practice |
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PR: Trial publicity
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- Only:
* Dry facts * Info necessary to arrest suspect * Informing danger * accusation w/ disclaimer - No publicity: * Guilty plea * Inadmissible evidence * Probable outcome * Character, reputation, etc * ID of witness |
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PR: Testify for client
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- Not allowed, except
* Formality * About legal service * Uncontested matter |
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PR: Contingency fee
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- Not allowed for crim
- Not allowed for domestic relations |
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PR: Fee arbitration
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- 1,000 - 50,000
- At client's election - Not for criminal case - Not for malpractice |
