LSB Exam One (50-131)

Solely the client's right, only the client can waive the right at any time

Who can waive the privilege?

Both communications from the client and any advice or other response given by the attorney (whether oral or written), but it must occur under the existence of legal counsel being sought by the client

Who does the attorney-privilege protect?

The parties pay for their own attorney's fees (unless a statute is clearly on point, or defense was outrageously wrong)

Who typically pays their attorney fees?

The rich common law heritage of strong lawyers protecting their clients from everyone and everything The belief that attorney-client privilege is a fundamental counterweight to the government's powers in criminal cases, where the privilege is often most subject to countervailing claims, yet is most needed to uphold the individual's rights The judiciary's strong understanding of the context in which the attorney-client privilege arises

Why do other privileges tend to be less stronly protected than the attorney-client privilege?

Employees are entitled to a safe working environment

Why do we have OSHA and workers comp

This standard can be rather broad and vague Moreover, surveys by industry and by academics have proven unscientific, with documenting of actual behavior being quite expensive and difficult

Without specific examples or rules...

Rules of Professional Conduct

Written rules of conduct that are adopted by and binding upon members of a professional group for any such transaction

Civil Law, common law

___________ judges operate in inquisitorial enviornment while __________ judges work in an adversarial environment

1. Each person has an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for all 2. Social and economic inequalities are to meet two conditions (must be to the greatest expected benefit of the least advantaged and attached to offices and positions open to all under conditions of fair equality and opportunity

According to Rawl, therefore, the two basic principles of justice are:

Hollywood

Adds unnecessary noise to the legal system; people also misperceive the role of lawyers and have an inaccurate assessment of these professionals' predilections and capabilities

Constructive notice

Adequate for those with whom the agent did not have dealings; is good if in newpapers or trade journals, regardless of whether the no-past-dealings people read the notice

Can write off all reasonable and necessary business expenses Retains intellectual property rights Does not have required hours Has no income ceiling Can perform similar projects for other businesses or individual

Advantages of being IC

Can save money Great for fluctuating workloads, so can hire and let go workers as needed Eliminates time and cost of training because independent contractors should know what to do Fewer lawsuits because no employment rights Do not need to withhold income tax, social security, Medicare Do not have to file reports for state and federal unemployment

Advantages of hiring IC

American system

Adversarial, individualistic system, but better, more inclined to preserve freedom, than regimes where attorneys see themselves as part of the system. It is a matter of emphasis: liberty or order, individuality, or society

Fiduciary

Agent is this; these relationships are present in many types of relationships besides an agency, such as: parent for child, priest for member of congregation or lawyer for client

Attorneys-at-law

Agents who, because of their licence from the state, are able to represent the principal (the client) in legal proceedings

Traditional agency law

Allows principals to be responsible for actually and apparently authorized acts of an agent; thus, one would expect courts to apply these bases of principal liability and hold client principals responsible for the authorized acts of agent attorneys

It need not require special rules mandating better treatment of the client-principal than of other principals

Although the lawyer-client relationship is a unique agency relationship...

A number of countries do have forms of contingency fees in which plaintiffs only pay legal fees to their lawyer if the plaintiffs themselves win money

Although the vast majority of countries still do not permit contingency fees

Principal (P)

Any legal entity (a person) who authorizes an agent to act on his/her behalf Ex. CEO are agents for the corporation

Agent (A)

Any legal entity that has the capacity to act as a representative of the principal and is, in the present situation, authorized to bind the principal when it acts within the scope of his/her/its authority

Duties and liabilities to the person whose legal relations are affected or to third parties

Any person may ordinarily be empowered to act so as to affect the legal relations of another. The actor's capacity governs the extent to which, by so acting, the actor becomes subject to...

Attorney-client privilege

Arises when parties have professional relationships and a reasonable expectation of confidentiality; it is the best protected of all privileges, but there are limits on its scope Permits clients to keep confidential matters discussed by or with their attorneys, and it extends to agents of either the client or the lawyer who facilitate the communication

Norms for those who seek to retain lawyers

As a society, we should also have recognized...

Reconcile their differences because markets and economic prosperity do not exist independent of the law and the institutions of government but are intertwined with them

As financial markets outgrow national borders, economies based on different legal foundations must...

Define and enforce fiduciary duty principles

As law in a fast, changing world is playing catch-up, and the expected harms of certain behaviors are recognizable and can be contained through court decisions causing no significant externalities, courts sometimes have the right to...

This is the first and simplest lesson of the rest of your professional lives

As lawyers you are servants of truth...

Justice (does not mean lawyers should be whistleblowers)

As lawyers, you are soldiers of __________. This, is your profession, goal, subject, and specific virtue

Now only a few states ban it entirely

As legal costs have soared, a growing number of states have relaxed the centuries-old, common law ban on outsiders (non-parties, non-lawyers) investing in lawsuits (financing the costs in return for percentage of the winnings, if there is a victory)

Creation of agency

As with the creation of a contract, look to the parties' words and conduct to the overall circumstances

Commentators

Believe that attorney disciplinary systems will become more transparent, particular with respect to policy-making in the disciplinary process and enforcement

Utilitarians

Believe that we should judge institutions, ideas, and actions based upon their overall usefulness; we all look at the impact on all affected persons, not just individual decision makers

Historical school

Considers law as custom, tradition, what has gone before

Immanuel Kant

Contended that the ultimate principle of morality must be a law; something conceived so abstractly that it is capable of guiding us to the right action in application to every possible set of circumstances

Attorney

Deals with making or losing our money or gaining or losing our freedom; will always be precarious in public esteem Officers of the court; their functions are essential in our societal system, and their challenges are great

Teleological approach

Decisions are based on the consequences of the action

True

Even if a lawyer states that his/her fee is contingent upon winning, the client may still be responsible for the expenses that the lawyer incurred. Who is responsible for these expenses (photocopying, travel costs, filing fees, expert witness fees, etc.) is covered in the written fee agreement

Contractual clauses

Even if a supposed agent turns out to have no authority, these asserting such authority (in contracts between agent and third party) may help claims of apparent authority or a claim of fraud against agent

Ratification

Even though the agent does not have actual authority to buy a product, the principal has accepted the purchase after-the-fact

Demonstrate proficiency in the law on a written bar examination and to pass a character and fitness exam by appearing before a judge or attorney working for the state supreme court

Every state bar requires law licence applicants to

Obedience

Expected from employee-agents than from IC-agents; duty to not exceed actual authority

Put in writing and explained in-depth

Fee arrangement should be:

1. Set fee (sometimes arising through a competitive bid process) 2. The contingency fee (alleged a reason for American litigiousness) 3. Still the most common fee, one based on an hourly rate

Fee arrangements for attorneys include:

Set fee

Fees per a particular service (per "job"); increasingly popular with large corporations where specifications are set forth and legal service providers make bids A type of cost-management procedure; clients can comparison-shop for standard types of legal work

Anglo-American law

Fiduciary duty is the core legal concept to address conflicts among directors/managers and shareholder in this law; concept is developed and constantly refined by courts in process of adjudication

Comparison to economics' thrift-paradox

For people to advance economically, they may have to behave differently than others

Serbin v. Walt Disney World

Found in favor of Walt Disney World Serbin attended a convention at Disney World, where he, his wife and two minor sons were arrested for allegedly passing a counterfeit $20 bill

Inquisitorial approach

Found in most Civil Law nations; features an inquiry into the facts by the judge or magistrate

Restatement of Law of Agency

Fundamental to understanding an employer's or other principal's liability for its employees' or agents' acts Key concept is AWCSE - Acting Within Course and Scope of Employment

United States' Declaration of Independence, The French Declaration of the Rights of Man and of the Citizen, The United Nation's Universal Declaration of Human Rights

Given the intersection between natural rights and Natural Law, three of the most significant documents evincing Natural law concepts are:

Divine Law

God had established the divine law; this law could be discovered by reason and to disobey it was morally wrong (propounded by John Locke)

Matthew Hale

Graduated from Southern Illinois University law school and passed his bar exam, but he did not pass the character/fitness exam Then, one of his former church members went on a shooting spree that targeted minorities. He mourned the shooter as a martyr. Thus, he was denied by the committee because of his racial beliefs. He tried to argue free speech rights, which became moot when he was convicted of three counts of obstruction of justice and one count of soliciting the murder of a federal judge. He is serving a 40 year sentence in Colorado

Self-representation

Handling a matter pro se - for oneself; someone's ability to proceed without an attorney in bringing or defending a lawsuit varies depending on the court and the positions of the parties

Positivism

Has had prominent proponents, including legal theorists; what the State has posited (stated); it is the command of a governing authority

Civil law

Has its origins in Roman law, with many developments and elaborations; depends almost entirely upon systemized statutes

Adversarial lawyers

Have a personal stake in the case, more so than controlling, neutral, inquisitorial magistrates; strongly committed to get the facts, at least the ones that favor their positions Strong advocates for individual rights

Common law judges

Have more of a role developing the law; have less of a role finding and developing the facts in a case

American courts

Have reversed criminal convictions because the trial judge engaged in prolonged questioning of witnesses; this may indicate skepticism about that witness's testimony Such behavior may thus deny the accused his Constitutional right to a fair trial before an unbiased court and an unprejudiced jury

United States v. Frederick

Held that legal matters are limited to a lawyer's legal representation function for that particular client

Swidler & Berlin v. US

Held that the attorney-client privilege continues even after a client has died

Gamesmanship theory

Hire the best lawyer and whoever fights the best - you may win even though your case is not that good

Independent contractor

Hired to achieve a purpose, to do a job, to undertake a contractually defined result

Public policy - hirer cannot subcontract away responsibility involving inherently dangerous activities Negligent hiring - hirer's own negligence in hiring the independent contractor

Hirers are not liable for his independent contractor's actions. These exceptions are:

-We build the law in increments, based upon experience -To understand law, one must understand history -A society's laws naturally derive from that society's past -In developing laws, we do not write on a blank slate. We must deal with, work through, what was done already by prior courts, legislators, and the people generally

Historical school concepts

If the agent gives the principal a full and timely disclosure of possible outcomes

How can an agent avoid a breach of duty?

Shield or sword, but not both (ex. an attorney may refuse to disclose or testify about confidential information given to the attorney by a client. This means the client cannot prevent the use of confidential information in a fee dispute between the client and attorney)

How can clients may use the right of confidentiality?

The verdict must be the result of the evidence adduced on the witness stand

How can the court ensure impartiality?

Real compensation (money)

How can you make a case worthwhile?

The company should give actual notice to the former employee's customers (if a customer reasonably believes the former employee still works for the company, then the company could be stuck as responsible for the former employee's actions NOTICE must be given

How do you prevent lingering authority?

Witness - body language could tell the jury and judge whether he is telling the truth or not Lawyer - persuade jury with eye contact and voice intonation and facial gestures Judge - turning their back, shaking their heads, pounding fists, falling asleep

How does studying body language apply to the system?

We count all members of the state bar

How does the US count lawyers?

Right to control test

How much control the employer has over the individual and the details of the work to be performed

Hale opposed Bill of Rights as applied to the states through the 13th, 14th, and 15th amendments (he cannot uphold constitution) Hale failed to disclose his felony conviction (application requirement)

However, the reason Hale was denied the license to practice law was:

Bind the principal

If an agent should take it upon himself/herself to deviate from his/her realm of expertise (purpose of his/her agency for the principal), his/her resulting actions ordinarily cannot...

Agent alone is liable

If it clear to the third party that the agent lacks authority...

Contract law

If one's actions are on behalf of something that is not a legal entity, then one might be held responsible personally in _________ __________ as well

Actual performance by someone else is not something for which a principal can be held responsible

If performance cannot be delegated to someone else, then...

Zone of control

If the agent was in the ________ ___ __________, then the principal is accountable for the tortious actions of the agent

Then agent is not liable for breach of contract (only principal is responsible)

If the fact that the agent is acting on behalf of the principal has been disclosed to the other side, and if the agent has authority to act on behalf of principal in this particular matter

The law abhors a vacuum and holds the would-be agent (the one extending the hand) personally liable on the contract

If the tort is extended on behalf of someone else, then the other person (principal) is the only one responsible for the contract if it is breached. What if there is no principal?

Conditional fee arrangement

In England and Wales, ordinarily the loser pays the winning side's attorney fees and that still applies to cases where a losing plaintiff had something similar to a contingency fee arrangement "No win, no fee"; for a winning plaintiff with this arrangement, the lawyers bills the loser not just for his regular fees, but also charges the loser a "successful fee" Legal fees are not only conditional, but the amount paid is in effect a percentage-of-recovery payment to the victorious plaintiff's attorneys

Criminal, civil

In _________ cases, a defendant is appointed an attorney when the defendant cannot afford counsel In __________ cases, there is no such appointment to litigant who cannot afford counsel

Protect the licent principal from liability that might otherwise occur as a result of the agency relationship

In situations such as cases, settlements, and the attorney-client privilege, the courts deviate from traditional law to...

Yes

In some situations, there can be more than two people (not just attorney and his client) and still have an attorney-client privilege?

Early statement approach

In the first 60 days after a lawyer has been hired, no contingency fee should be charged (just a hourly rate worth). After 60 days' lapse, a customary contingency fee could be charge instead of the hourly rate This approach would induce many defendants to settle early, when parties might be more receptive and their lawyers could not yet take as large a chunk of recovery

Reform proposals

Include limits on the amount of contingency fees, at least considering the hours worked; some lawyers do that on their own

Legal advice (however, some sites may have misleading information

Increasingly, people use the Internet to obtain...

Self-employed

Independent contractors who may or may not be agents depending on hiring arrangement Seen a dispirited, atomized victims, beyond the help of unions or governments on one hand, but liberating on the other

Gig economy workers

Independent contractors, not employees, are not entitled to: 1. Minimum wages or overtime under the Fair Labor Standards Act 2. Organize unions under the National Labor Relations Act

Golden Rule

Individual scope Ex. If I think homosexuality is a sin and I condemn, then I must accept I am immoral or abandon my previous belief

Lingering authority

Involves an actual agency transformed into an apparent agency; to arise, the actual agency would be gone, but the agency would reasonably "linger" in the minds of third persons

Deontological (duty-based ethics)

Kant's moral theory is __________: actions are morally right in virtue of their motives, which must derive more from duty than from inclination; teaches that some acts are right or wrong because of the sorts of things they are, and people have a duty to act accordingly (regardless of the good or bad consequences that may be produced)

Reverence

Kant: Duty is the necessity to act of out ________ for the law

The greatest good for the greatest number

Key utilitarian concept

Charles Fried

Labeled the lawyer a "limited purpose friend" of his client "A lawyer is a friend in regard to the legal system... like a friend (the lawyer) acts in your interests, not his own; or rather he adopts your interests as his own

Positivism

Law distinct from moral after-the-fact evaluations; law is simply what has been decreed by those with authority to make law; lack should not be mucked up with moralism or with absolute terms; quite distinct from natural law

Pro bono (pro bono publico)

Lawyer receives no pay from the client; "for the public good" Clients may be individuals who cannot afford to hire a lawyer, or they may be nonprofit organizations in need of counseling or other legal assistance

Guild member, counselor, advocate, officer of the court

Lawyer's four key roles

Law firms, corporations, government, academia

Lawyer's principal areas of employment

Counselor

Lawyers advise and practice "preventative law": trying to keep, or get, a client out of trouble

Collect a fee

Lawyers can talk about their service contracts generally, in order to...

Charges, fees

Lawyers have an ethical duty, often also found explicitly in court rules, to disclose fully, at the start of the attorney-client relationship, the basis for their ____________ and ___________

Guild member

Lawyers have duties related to their position as a part of a profession; they have duties to each of their professional colleagues to uphold the profession Induced many lawyers to review carefully the behavior of their fellow professionals

Officer of the court

Lawyers must obey court rules, be truthful in court, and generally serve the needs of justice.

Feign work or inflate hours

Lawyers usually do these because they are paid hourly

False, many of us, in an individual setting, want something different than what we say we want for soceity as a whole

Lawyers' ethics and behaviors occur in a vacuum

Advocates, counselors, guild members, officers of the court

Lawyers' roles

In the US, the people select the rules by which theya re governed That judicial review reinforces rather than undermines representative democracy That ours is the government of laws

Legal realism called into question three basic, cherished rules:

Doctor/patient confidentiality

Less extensive than attorney/client confidentiality; discussions with physician are privileged except for any information that is related to a claim made in court

Respondeat Superior

Let the superior respond; belief that if a person tries to increase his wealth through the work of slaves, he should be responsible for slaves' actions, for the harm their work may have caused

1. Parties peripheral to the attorney-client relationship are not protected 2. Information irrelevant to the attorney's legal responsibilities is not protected 3. Client cannot use privilege to prevent his present or former lawyers from introducing evidence necessary to prove the client owes a legal fee 4. Communication regarding future illegal acts is excluded

Limits to attorney client privilege

Judges and lawyers

May adopt more than one theory, and many do not think too much about jurisprudence; still may be Renaissance men and women: artists and poets, not just technicians

Truth and justice

May go in one direction while the courtroom proceeds, amid adversarial trickery, in the other direction

Retainer

May merely assure a client that if work is needed, the firm or lawyer will be available. They may be used to neutralize an attorney, leave him unavailable to work for the opposition

Shiho-shohshi

Meaning administrator of justice and writer; prepare and file with governmental legal affairs bureaus certain documents or registrations; since 2005, it has also been able to represent clients at summary lower court, arbitration or mediation proceedings

A higher law (certain fundamental otions are so correct, so universally true that it does not metter what the posited law is)

Natural law involves: The moral, the just...

Independent Contracting

Non-employment arrangement arrangement

Self-regulation

Notion that members of a profession know best about how to develop and apply appropriate standards for that profession and about how to evaluate the conduct of a member of the profession; hope it is not so parochial, so protective of members that the incompetent or malfeasance professional's colleagues fail to "go after" him

Powers-of-attorney

Often granted from aged or infirm persons who need some assistance

Anarchy/totalitarianism

Often prone to anti-libertarian, undemocratic principles

Legal realism

One must understand the connection between people and the law; we have to account for the way people really are; the way they act and react Consider how human behavior affects the creation and implementation of the law; they may focus on social power and welfare, the characteristics of individual judges, practical approaches to creating durable results, and an empirical approach

John Rawls

One of the most important jurists of the 20th century; had some duty-based ideas and a moral, natural law focus Put forth a natural law idea concerning "original position"

Lie on the bar application Lawyers must not only be competent (graduate from an accredited law school and pass the bar exam), but also be of good character

One of the worst things a person can do; that can come back to haunt the lawyer even years later; it is far worse than losing cases, charging a lot of money to clients or other problems with one's legal practice

Categorical imperative

One should act in such a way that one could make this act be a universal law (an unconditional moral law that applies to all rational beings and is independent of any personal motive or desire) Demands performance of an action for its own sake; must be known as priori (based on theoretical deduction rather than empirical observation)

Contingency fee

Only charged if the case is won; the amount then charged is a percentage of the plaintiff's monetary recovery; many states have limits on what the attorney can receive Good practice is for lawyers to charge the client this fee only on that portion of the ultimate monetary recovery which is above the amount the defendant offered he plaintiff before the lawyer got involved

Trial lawyers

Only these lawyers who represent clients in court are counted as lawyers

Hickman v. Taylor

Opposing counsel must demonstrate necessity, justification, or undue prejudice for access to counsel's written statements, private memoranda, and personal recollections.

Government

Ordinarily is not liable when a governmental agency either misstates his authority or mischaracterizes the law

Control group

Originally, courts use this to determine the scope of the attorney-client privilege; protected two ties of management (top management and staff that advised top management)

Trammel v. US

Overturned Hawkins case; the privilege against adverse spousal testimony now vests in the witness spouse alone, and that the witness may be neither compelled to testify nor foreclosed from testifying

Implied authority

Owner is liable for bill pertaining to business/organization's purpose, even if the owner did not purchase service or product (worker did)

The agent will not be compensated, he/she will be required to return profits he derived from the disloyal acts, and he may be fired

Penalties that a hirer may impose per its contract with what turns out to be a disloyal agent:

Moral notions (it is moral to obey the law)

People believe that there is value in obeying the law. They have put implied ________ __________ into posiitve law

Employer

Person, or group of persons, who owns and manages the enterprise; can hire and fire employees, assign tasks to employees and supervise performance, and decide how the profits and losses of the businesses are to be distributed

Tortfeasor

Regardless of whether there is or is not an agency (whether the tortfeasor is/was an agent), who is always liable?

Pro se

Representing oneself. Serving as one's own lawyer Many do this because they think they cannot afford a lawyer

Professional

Requires both competence and integrity

Care

Requires people to behave reasonably; the agent should not sub-agent any personal duties without principal's approval

1. The zone of risk test 2. Authorization by the employer 3. An employee's commonly performed act 4. Serving the employer's interests 5. Not so much serving the employee's private interests 6. Employer-furnished means or instrumentality by which the injury was inflicted

Restatement (Second) of Agency lists six general issues that courts should consider when deciding whether a particular act occurred within the course and scope of employment:

John Austin

Said that positive law consists of three parts: 1. A rule 2. From a political superior to a political inferior 3. With sanctions imposed if the rule is broken

Jurisprudence

Science of philosophy of law; includes subjects such as philosophy, economics, psychology, religion, and sociology

False

Self-love can be universal

Close cases

Simply having a better lawyer could make the difference, so the adversarial system may exacerbate the potential for unfair results due to inequality of resources and/or experience

Attorney-at-fact

Someone (usually a close friend or relative) who the principal trusts to be able to handle certain functions on behalf of the principal

Functional law and economics

Stands as a bridge between the strictly positivist and normative approaches to law and economics; recognizes the possibility for both market and legal failure

Board certification of lawyers

State bar process of bestowing a law specialty credential based on post-law school work experience and further course work, generally with some testing; increasingly used in the US to market the expertise of some lawyers in numerous fields Even after obtained, it normally requires an ongoing involvement in the specialty area

Gamesmanship

Stretching the rules to gain an unfair advantage; surveys show the vast majority of people think criminal defense attorneys should not use so-called technicalities to help acquit a client if the client is guilty

Justice William O. Douglas

Suggested that the courts adopt a rule that allowed environmental issues to be litigated before courts in the name of an inanimate object to be defaced by roads and bulldozers Believed environmental objects should be able to sue for their own preservation

Masters of law

Supplemental degree, after the juris doctorate; designed to expose foreign legal graduates to the American legal system

Law of contracts

Supplements the professional conduct standards by applying a presumption of undue influence to any contract between attorney and client other than the initial fee arrangement

Hypothetical Reasonable Person

The "reasonable" person standard

Montesquieu

The Spirit of the Laws; contended that laws underlie all human, natural, and divine Conceded that laws governing human nature are complex and often difficult to discern; believed that empirical investigative methods could help us discover and know those laws

Hawkins v. US

The US Supreme Court had reaffirmed common law doctrine and held that for federal cases the testimony of one spouse against the other is barred unless both spouses consent

Expensive

The adversarial method is also considered much more ___________ to operate in comparison to the inquisitorial system

Legal games

The adversarial system often seems to revolve around not justice, but _______ ________ (manipulation); the role is crucial

Personal matters (therefore, while some functions are inherently human and personal for which you cannot hire someone else's performance, one generally can contract out business duties

The agent has power to do most legal tasks as an agent, but an agent cannot do purely...

The Elements of Apparent Authority

The apparent principal has by its acts or omissions created, or allowed others to create, a third person's reasonable belief that someone is the apparent principal's agent The third person relies on the apparent agency. The third person cannot rely on the presumed agency to an extreme - there may be some duty to verify the agency.

Apparent authority

The authority an agent is believed by third parties to have because of the behavior of the principal.

Express authority

The authority of an agent, stated in the document or agreement creating the agency

Egalitarianism

The belief that all people should have equal political, economic, social, and civil rights

Negative utility

The broad definition of utility may encompass fairness. Alleged unfairness (in receiving a smaller portion of the money) might be viewed as ________ __________

A formulation by which we can apply our human reason to determine the right, the rational thing to do (our duty)

The categorical imperative (devised by Kant) provides...

Critical legal studies

The deconstruction of law used to discover its subjective meaning and biased intent

The doctor joins with the patient and society in a common effort to fight pain and suffering and delay death The educator joins with students to defeat ignorance The minister joins the flock to subdue evil and corruption (to try to ascertain God's will)

The effects of the adversarial system may especially impact the reputation of lawyers as a group. Compare the American lawyer's role and function against the other three "ancient professions": medicine, education, and the ministry

Profit; utility

The goal of a firm is to maximize _____________ while the goal of an individual is to maximize ____________

Law and order

The governing authority - law is our state

Summum bonum

The highest good; everyone should strive for

Symbolism

The law is vested with all sorts of _____________

1. Whether a business that is not an individual can be principal 2. How such a business' lack or loss of capacity affects persons who interact with it

The law of business formats governs:

Procrastination

The lawyer is trying to have fewer hours of work until necessary; the idea is to handle tasks only when necessary, but the risk is that a lawyer postpone work until it is very close to deadlines for cases that the lawyer erroneously thought would settle, for document drafts of a deal the lawyer wrongly believed would not take place, or other such situations

Press the good side of his/her client's position to the extreme and omit the wards (it is the rare who likes the opposing side's attorney)

The lawyer only joins a client against another party. He is principally an advocate whose general position is to...

Servanthood

The most controlled form of employment

Only interesting cases get picked out for reality courtroom shows. In so-called documentaries based on real events, if information is tedious and does not develop the plot, it is left out. If a program can be both accurate and entertaining, then most producers will do both. However, if one conflicts with the other, than entertainment triumphs.

The portrayal of lawyers in entertainment programs often misrepresents lawyers. Why?

Unauthorized practice of law

The practice of law by a person, typically a nonlawyer, who has not been licensed or admitted to the practice of law in a given jurisdiction.

Reimburse and indemnify the agent for the agent's authorized actions (every agent has a corresponding right against his/her principal to be reimbursed for all expenses and to be indemnified against all losses and liabilities incurred in the execution of his/her authority

The principal has a duty to

Authority granted to agent

The principal's liability to the agent depends upon the nature of...

Marital privilege

The privilege of married persons not to be compelled to testify against each other; not as well protected

1. Annually providing at least 20 hours of pro bono legal service to the poor 2. Making an annual contribution of at least $350 to a legal aid organization

The professional responsibility to provide at least 20 hours of pro bono legal service to the poor may be discharged by:

Economics realities test

The purpose of determining if a person is an employee by considering such things as the extent of the alleged employer's ability to control, hire, fire, and discipline the person

The problem of ethics in law and the legal system is the problems of lawyers and clients

The relationship between a lawyer's ethics and a client's expectations and ethics

Ethical egoism

The theory that one should simply maximize one's own benefit

Reasonable; responsible

The third party's belief must be ________________ and the supposed principal must somehow be __________________ for letting the third party come to that belief

Inquisitorial (predominant in most countries adhering to the Civil Law tradition) and adversarial (predominant in common law nations)

The world's two systems for determining the facts in legal disputes

Taxes Labor laws, OSHA, ADA, ADEA (employee rights laws) Tort law liability under doctrine of respondeat superior

There are all sorts of incentives to claim that hired persons are not employees, but are independent contractors. The hiring party's claim that the persons it has hired are independent contractors is often made to avoid:

1. Lawyer and client 2. Psychotherapist and patient -When should a mental health care professional divulge a patient's threatening statements to the police and/or the patient's perspective victim? How imminent is the threat? 3. Sexual assault counselor and victim 4. Domestic violence advocate and victim 5. Husband + wife 6. Communications to clergy 7. Accountant and client 8. Trade secrets

There are many statutory confidentiality privileges:

Business transactions between lawyers and clients

These transactions are subject to special rules because of the fiduciary nature of the attorney-client relationship and the supposed dominant powers of persuasion of attorneys

Partially disclosed

Third party knows he is dealing with an agent, but doesn't know principal's identity

Loyalty, obedience, care

Three duties encompassed within the agency relationship

A wrong, damages, deep pockets (suit is not a success)

Three key elements to winning a lawsuit (or settlement) and obtaining a recovery

1. Employer hires and trains employees and should be expected to take care that good people are employed and that they receive appropriate training 2. The employer obtains the benefits of the employees' labor, which helps the employer to earn revenues and so the employer should pay the cost when one or more employees commit a tort 3. The employer is almost always the party with deeper pockets than employee

Three reasons given for why the employer is held vicariously liable for employee's' torts

The avocat (who can practice before the higher courts and give legal advice) The notaire (who can handle real property transactions and estates and can prepare some legal documents) Juriste (legal counselor who can give advice and prepare legal documents)

Three types of lawyers in Quebec and France

The client was engaged in or was planning criminal or fraudulaent activity when the attorney-client communications took place The communications were intended by the client to facilitate or conceal the criminal or fraudulent activity

To be excluded from attorney-client privilege, the client must show:

Original position

Viewpoint from which we judge the law; risk-averse persons would want strong legal protection for persons at disadvantaged positions: the better-situated persons need less protection

War crimes

Violations of the law governing the conduct of warfare, such as by mistreating prisoners of war or unnecessarily targeting civilians

Jimmy Carter

Voiced criticism of the legal profession, stating a very high proportion of America's lawyers are working for a small percentage of citizens Lawyers were offended, but where lawyers work tends to reflect which people and institutions (possible clients) have the money and the need for legal services

Acting with authority and the supposed principal helped create that belief

We hold a supposed principal accountable if the victim reasonably thought an agent was...

Honesty and perception

We should hire lawyers for their ___________ and ______________

Solicitors (prepare legal documents, give legal advice, and represent clients in some of the lesser court) and barristers (only lawyers who can practice before higher courts and administrative agencies)

What are lawyers called in Great Britain and most of Canada?

They may be useful for giving consumers much-needed information about their rights, but potential problems remain inasmuch as lawyers are involved

What does ABA say about websites?

Emphasis of power (individual notions of justice)

What does positivism risk?

Require lawyers to report on corporate clients' activities; under current ethics laws, lawyers would not be obligated to blow the whistle on their business clients

What have people wanted to modify about the attorney-client privilege?

Law is the most useful course in business school Knowing about the role of lawyers may be the most practical "take-away" a layperson gets from almost any course on law

What have studies indicated about law and the role of lawyers?

Law is what the judge says law is

What is law under legal realism?

As sides clash, the truth will arise

What is the idea behind the adversarial system?

Family law and criminal law

What types of law are contingency fees not allowed, even in the United States?

False, everyone stands up for the law (the judge as a symbol of the law - we do that no matter what we think of the judge personally)

When Bailiff calls out All Rise, everyone stands up for the judge

The person enterring the contract is personally liable

When a person enters into a contract and represents that he is acting as an agent for a principal (when there is in fact no such principal)...

Express Ratification

When a principal clearly accepts responsibility for an agency relationship

If, when the agent takes action, the individual could have taken those actions personally

When can an individual be a principal?

Only when acting on behalf of the client

When can the lawyer waive the privilege?

If the agent lacks authority to make a contract with the third party

When is the agent liable to the third party?

Maintain certains standards, but it is easier for them to maintain certain standards if their clients agree (if the client understands that he should NOT ask or expect the lawyer to do anything unethical or to do "whatever it takes")

When we criticize professional, it's a two way street. We expect professionals to...

Agency

Where a person represents another person; authorized acts of the representative are the acts of the one he represents Paramount topic in the law of partnerships and corporations Similar, but not identical, to contract law; consent is required for it to be created and for it to remain in existence (consideration may be unnecessary)

Fisher v. Lowe

A Michigan case denying a man's suit against a careless driver on behalf of a "beautiful oak tree" harmed by the driver

"The life of the law has not been logic; it has been experience"

A famous statement about the law and how we must understand the past in order to understand our society, to know the law:

Identify issues and to know how to find legal answers; lawyers have duties of competence, loyalty, and integrity

A lawyer is trained not to memorize law, but to...

Proficient and principled (professional)

A lawyer's job is not to be popular, but to be...

Privilege

A license to practice law is not a constitutional right, but a ____________ that should be granted solely to those possessing the highest ethical standards

Businessperson

A person who operates within some moral boundaries in addition to legal ones

Laypersons

A person without professional or specialized knowledge in a particular subject Ex. What to war, attractiveness can have an effect on trial outcomes

Monitor communicates (both conversations and mail) between people in federal custody and their lawyers if the US Attorney General deems it "reasonably necessary in order to deter future acts of violence or terrorism"

A post-September 11, 2001 rule promulgated in October 2001 gives government authorities the right to...

Disclosed principal

A principal whose identity is known to a third party at the time the agent makes a contract with the third party.

Undisclosed principal

A principal whose identity is unknown by a third person, and the third person has no knowledge that the agent is acting for a principal at the time the agent and the third person form a contract.

That the principal has the right and duty to control the agent and that the principal is often better able to absorb losses than is the agent

A principal's liability for an agent's actions is based on two assumptions:

Lawyer

A professional whose goals beyond just making money (upholding the rule of law); first priority is to the client

Legal tradition

A set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, ad about the way law is or should be made, applied, studied, perfected, and taught. It puts a legal system into a cultural perspective.

Theory of the Good

A theory of what kinds of states of affairs are intrinsically good; Immanuel Kant; lies in the intention or the will

Undisclosed agency

A type of agency relationship in which a third party is completely unaware that an agency relationship exists and believes that the agent is acting on her own behalf in entering a contract.

Maxim

Absolute moral statement: Kant stated that these had to be universalizable (ability to use a this everywhere, and by everyone, so that it is never broken

Corporate authority

-Described under the laws in which a corporation is chartered. -Described in a corporation's articles of incorporation.

Advocate

Attorneys must zealously represent the client; fueled by clients' desires or needs as the lawyers perceive those needs

Lingering authority

Authority that arises where actual authority has been terminated, but third parties are led by the principal's negligence to believe it still exists.

Implied authority

Authority that is not expressed or written into the contract, but which the agent is assumed to have in order to transact the business of insurance for the principal.

American lawyers

Because of their society and due to their legal culture and norms, they were and are more inclined to preserve freedom as the latter believe they are simply part of the system

American litigators; British solicitors

Bengoshi are more like __________________ or trial lawyers Shiho-shoshi are a bit more like _______________

A corporation reduces the possible penalty in the event of a corporate crime

By instituting a code of conduct and a compliance program that reduces the likelihood of criminal conduct...

ABA Model Rule of Ethics 6.1

Calls for lawyers to contribute at least 50 hours of pro bono service annually; some state bar associations recommend fewer hours

Government

Cannot be an "apparent" principal; it is better for one person to suffer due to a government error than the entire country being bound by the mistake

Inform the client about what can and cannot be done; a moral duty to be informed and to behave fairly (to themselves and to society)

Client expectations must be tempered; lawyers certainly have a role in trying to _____________________ and these clients have a duty to _______________________

Dishonesty, criminal activity, academic misconduct, financial irresponsibility

Committee looks for problems such as

Apparent authority

Communication or signal directly from the principal to a third part that arises out of actions or the conduct of the principal which causes a third party to reasonably believe that the agent has the authority to make contracts for the principal

Natural law

Declare that there is something beyond positive law; controversial because proponents believe that this absolute law may have to overturn positive law The theory that law arises from certain values or judgments that never change. These values or judgments come from an absolute source - God, reason, nature - but humans can understand these values/judgments Ex. There is but one law for all, namely, that law which governs all law, the law of our Creator, the law of humanity, justice, equity - the law of nature and of nations

Bengoshi

Defense persons; prepare the paperwork and delivery arguments or testimony while representing

Common law

Developed through court cases; involves the use of stare decisis when a case is from the same jurisdiction and is a precedent Principles do not change as much as do the facts

Must pay self-employment tax on earnings at a right higher than the employee part of FICA and Medicare May have to pay more for health, life, disability, and retirement benefits because an employer is not subsidizing those benefits May have startup costs Has no guaranteed salary May have higher office and equipment expenses since employers usually cover these for employees

Disadvantages of being IC

Less control over workers Workers may come and go more frequently, which can be disruptive Not covered by workers' compensation, so an injury can be costly for the business Greater risk of government audits to make sure independent contractors really are not employees

Disadvantages of hiring an IC

Civil law jurisdiction

Either lack the procedural rules that would enable parties to being cases (conflicts among director/managers and shareholders) to courts or have not Developed a sufficient body of case law to determine the contents and meaning of this concept

Positive school; normative school

Emphasizes the inherent efficiency of legal rules; views law as a solution to market failure and legal failure

Custom and tradition

Empiric evidence (what do people do) - we must understand human behavior to understand the law

Federal Crop Ins. Corp v. Merrill

Employee of the federal agency accepted a wheat farmer's crop for coverage under the federal regulations. The employee did not know that the farmer's acreage was not eligible. When the crop was destroyed and the farmer was denied insurance, he complained. Supreme Court held that the agency was not bund; innocent ignorance of the regulations could not enlarge the administrative agency's congressional granted powers

Battery

Employers cannot commit this in any circumstance towards employees; employer can hire employees for refusing to comply with safety guidelines, not not commit this

Training of lawyers

Involves law schools and bar exams; successful completion of both, as required by the state to which the applicant seeks entry, is required for someone to become an attorney in the US Schooling and testing often is not mandatory elsewhere. In a large majority of other countries there is no more law school training for American lawyers. There is more post-bachelor's degree law training in the US: while US law schools are all graduate school programs, other nations often tend to have their professional schooling as part of the undergraduate experience Board certification of legal specialties is increasingly used in the US whereas it is found less in other countries

Pathological behavior

Is not unique to lawyers; clients' expectations may be partly to blame for the wrongful behavior of their overarching lawyers As the marketplace may not reflect ethical duties, we must have rules for lawyer-to-client business transactions, especially contracts

No, but it is permitted if the attorney does report it

Is the attorney required to report his client for any crime the client committed?

Avocati and procuratori

Italy's two types of lawyers

Law and economics school

Its emphasis is on economic efficiency and market analysis; concerns how the law does incorporate or should incorporate economic efficiency, market analysis, and other economic matters Holds that lawmakers should apply and follow economic principles whenever practical, that one can almost always reduce a case or law to economic analysis Had enormous influence in antitrust law, much influence for some aspects or tort law and administrative law, and some influence in many other topcics

Bengoshi and shiho-shohshi

Japan's two types of lawyers, who act on behalf of the clients

Estoppel

Meant to shut down arguments which came from "both ends of the person's mouth"; prevents the denial of an agency's existence if the plaintiff reasonably relied on there being an agency relationship between the agent and agency

Economists

Might say that to allocate the lawmaking and law enforcement function to courts in those circumstances is not simply a common law tradition, but is optimal

1. Not everyone who poops on you is your enemy 2. Not everyone who gets you out of the manure is your friend 3. And when you're in deep shit, it is best to keep your mouth shut!

Moral of the story of the little lone loon flying south

Regina v. Dudley and Stephens

Most famous necessity case; set a limit on the defense of necessity--you can't take another person's life and plead necessity A man has no right to declare temptation to be an excuse, though he might himself have yielded to it The appeals court upheld the convictions and death sentence

Very poorly (what we feel on a macro level may not match our behavior on a micro level)

Most people view Congress as __________, but representatives tend to be reelected easily

Tax

Most popular of these specialized LL.M.s that may actually help graduates' job prospects

"My Declaration of Commitment to Clients"

Pledges to every client: 1. Courtesy, respect, competence, independent professional judgment and diligence in accordance with the highest standards of the profession 2. Reasonable fees 3. Prompt return of telephone calls 4. Copies of important papers and otherwise keeping clients informed 5. Respecting a client's case objectives, as permitted by law and the rules of professional conduct, including whether to settle 6. Working with others to make the legal system more accessible and responsive 7. Preserving confidential information disclosed during the lawyer-client relationship 8. Maintaining the highest degree of ethical conduct in accordance with the Model Rules of Professional Conduct

Breaches of fiduciary duty

Pose harms typically limited to the principal

1. Judicial bias - affecting fact investigations 2. Judicial laziness - affecting the fact determinations 3. Judicial overload - inadequate time and other resources (and income and career advancement generally does not depend on success for either side 4. Judicial incompetence - affects not just reversible legal findings, but the very hard to overcome or recreate establishment of the factual premises for a case

Potential disadvantages of inquisitorial system

Actual notice

Preferred method for people who actually dealt with the Agent. That is because such notice provides direct notice to everyone with whom an agent dealt. Principal should give notice.

Adversarial approach

Prevalent in most Common Law nations, including countries in Asia and Africa such as Israel and South Africa; predominant in the US Judges ordinarily develop law more than they develop facts

Master/servant relationship

Principal-agent relationship in which principal exercises great degree of control over agent "Do what I say when I say it"

Torts

Private wrongs arising from intentional acts, negligence, or strict liability without fault; a damages award may be granted to the injured party When when a business is not liable in these cases, an individual is ALWAYS responsible for these

They allow lower- and middle-class people to bring suit and to have more knowledgeable person, the lawyer, bear the risk

Pro to contingency pay

Loyalty

Probably the most important, fundamental duty of agents; involves protection of confidential information, noncompetition, and refusal and/or disclosure of gifts or favors received within one's role as agent

Are not simply the problems of lawyers but also their clients

Problems of ethics in law and the legal system

An accepted body of knowledge, a system for certifying that individuals have mastered that body of knowledge before they are permitted to practice, a commitment to the public good, and an enforceable code of ethics

Professions have at least four key elements; are oriented toward practice and focused on client needs

Attorney Work-Product Doctrine

Protects clients from having to make what they tell their attorney in court

Federal Rules of Evidence

Provide for court appointment of neutral experts In many state courts, an emphasis on problem solving has led to specialized courts with many of the characteristics of inquisitorial bodies (results have been mainly positive, but this "therapeutic" approach is certainly controversial)

Theories of Economics

Put forth the notion of a mythical, economically efficient person - people as "profit maximizers" (more concern with economic "efficiency" and utility

Continuing process

Qualifying for professional service is a _______________________, even after one is admitted and licensed

Implied ratification

Ratification that occurs when the principal, by his or her silence or failure to repudiate the agent's act, acquiesces in it.

1. Communication between an attorney and a corporation is protected only when the client is seeking or receiving legal advice, not business advice (should request legal advice in writing and assign communications with an attorney to a specific employee) 2. Corporations should make sure that senior management directs all communication between employees and corporate counsel and that the employees know they must keep all communications confidential 3. Corporations should deal directly with counsel and maintain confidential files and documentation 4. When a corporation gives a governmental agency access to its communications or files, the corporation should negotiate a written agreement of confidentiality with the agency or an agreement that the agency will not take physical possession of the documents

To keep communications within the boundary of attorney-client privilege, the Supreme Court's decision in the Upjohn case suggests that attorney and corporations follow the following guidelines

Juris doctorate

To practice law in the US and almost all other countries, only this or its equivalent in that country is required

Players Therefore, one should consider people's conditioning, training, background; how the law is actually applied and enforced

To understand and predict the law, Legal Realists believe that one must look to the ___________, not just the rules themselves

A client hold the privilege; also, there must be a professional relationship and a reasonable expectation of confidentiality (there is no protection for statements made in the presence of, or letters sent to, persons other than or in addition to the attorney and client. These statements are unprotected)

To whom does the privilege extend?

False, it can only be waived under rare circumstances, but some argued that it should be waived sometimes when the testimony is needed for law enforcement

True or false: the attorney-client privilege ends if the client dies

That they encourage too many lawsuits and that sometimes lawyers charge even when they were taking no real risks

Two biggest criticisms of contingency fees:

It tends to focus on educating students for a job - being a judge - that most people will never have and that it deals too little with recent legal developments In fact, most major German firms prefer that their lawyers have an additional law degree from a US law school

Two criticisms of German law training

Clackamas Gastroenterology Associates, PC v. Wells

US Supreme Court considered whether the director-shareholder physicians in a professional corporation would be counted as "employees" of that professional corporation Business with over 15 full-time workers may still not be covered by the ADA because the workers who are shareholder-directors or partner are treated as employers and thus not counted as employees

Upjohn Co. v. United States

US Supreme Court recognized the weakness of the control test group The Court developed a test, deemed the Upjohn Test, to determine if the attorney-client privilege applies for a corporate client There is more protection for lower level employees communicating with the corporate attorney than under the control group

California Dental Association v. Federal Trade Commission

US Supreme Court unanimously held that the Federal Trade Commission can regulate some nonprofit professional groups to protect competition

Communication between employees, at the direction of corporate superiors, for the purpose of obtaining legal advice from counsel, communications concerned matters within the scope of the employees' corporate duties, communications were treated and kept confidential, communications were to counsel, information was not available from upper echelon management, employees knew that they were being questioned so that the company could obtain legal advice

Under the Upjohn test, the following communications are protected by the attorney-client privilege:

Bar regulations

Vary from state to state, so a lawyer in Florida giving information over the Web to a consumer in Wyoming may unwittingly violate that state's rules on marketing and advertising