Jeopardy 4

Criminal Law

100

Embezzlement 

(1) Fraudulent conversion

(2) Of property of another

(3) By a person in lawful possession of that property.

200

Kidnapping 

(1) intentional confinement of a person, (1) with either (a) movement of the victim against their will, or (b) concealment of the victim in a secret place. 

Aggravated Kidnapping: For ransom,Purpose of committing other crimes,For an offensive purpose (such as committing a sexual offense toward the victim), and child stealing (intent to keep or conceal the child from a parent or guardian).

300

Self Defense

Person may use deadly force if: (1) without fault, (2) confronted with unlawful force, (3) reasonably believes he is threatened with imminent death or great bodily harm

400

Accomplice Liability 

(1) D encourages or assists

(2) Another person who commits a crime

(3) With the intent to promote or facilitate the commission of the crime. (General agreement is not intent)

Defendant is guilty of all foreseeable acts of the other person engaged in the commission of the crime.

500

ALI/MPC Test 

Due to disease, D lacked substantial capacity to appreciate criminality of conduct or to conform conduct to law.

Criminal Procedure

100

Custodial Interrogation 

Custody: Reasonable person would feel freedom of movement has been deprived/restricted in a significant way

Interrogation: Any conduct where police knew/should have known that they might elicit an incriminating response from the suspect. (Undercover agents don’t count because there is no inherent coercion.)

200

Checkpoints 

Stop cars without individualized suspicion that the driver violated a law.

To be valid: (1) Stop car on a neutral basis/articulable standard, (2) Designed to serve purpose closely related to particular problem relating to automobiles and mobility.

300

Plain View 

(1) Lawful Vantage Point (allowed to be where you are when able to see item/person)

(2) Lawful Access to Evidence by the Police Officer (can be taken without further intrusion)

(3) Immediately apparent probable cause to the officer

400

6th Amendment Confrontation Clause (Co-Defendant Rules)

A co-defendant’s confession is admissible against the accused only if:

• (1) Statements concerning the accused are redacted or
• (2) Confessing co-defendant takes the stand and is subject to cross-examination about statement;
• (3) Confession of the non-testifying co-defendant is being used to rebut D’s claim that his confession was obtained coercively.

500

Informants (5th and 6th)

5th Amendment: Miranda warnings not needed where interrogation is by an informant who the D does not know is working for the police.

6th Amendment – (jailhouse informant) Informant deliberately elicits statements, If the defendant blurts information out – no violation. Violated by use of police informant where: (1) Informant speaks w/ the accused post-charge; (2) working for police; and (3) deliberately elicits incriminating statements.

Professional Responsibility

100

Contingent Fees

Must be in writing signed by client, and must state:

• (1) How the fee is to be calculated;
• (2) What expenses are to be deducted from the recovery;
• (3) Whether the contingency fee is on the gross or net recovery; and
• (4) What expenses client must pay, whether or not wins the case. Must warn client they must still pay.
• Prohibited in criminal cases, domestic relations cases, & fees contingent on securing a divorce settlement, amount of spousal support, or property settlement in lieu of support.

200

When there is a Concurrent Conflicts

• (1) Representation of client will be directly adverse to interests of another client; or
• (2) There is significant risk that rep. of client will be materially limited by lawyer's personal interests/interests of other client.

300

Agreements Limiting Malpractice 

If lawyer contemplates entering into a K limiting liability for past malpractice, the lawyer should either:

• (1) Withdraw, or
• (2) Advise client in writing to seek independent counsel and give client opportunity to do so,
• (3) Advise client that lawyer is not advising client as to settlement, and fully disclose in writing terms and effect of settlement K that limits the lawyer’s liability to client.
• ABA: If seeking to limit liability prospectively, through release, allows only if client is represented by ind. counsel
• CA: Attempting to prospectively limit liability is absolutely prohibited.

400

Confidentiality in Organizations (ABA and CA)

ABA: Permits “report out”(reveal info of wrong in org where lawyer believes necessary/in best interests of org.) ABA Model Rules here supersede the duty of confidentiality.

CA does not permit such reporting out—the duty of confidentiality prevails.

500

Duty of Communication 

Must keep client reasonably informed about status, and promptly comply with reasonable requests for info.

Must explain matter to extent reasonably necessary for client to make informed decisions regarding the rep.

Must communicate all plea offers to criminal client, & all reasonable settlement offers to client in civil matter.

CALIFORNIA: Attny who know/should know, they don’t have prof. liability insurance must disclose in writing to any client.

Agency and Partnership

100

Apparent Authority 

Principal communicates by some statement/act to 3rd party of apparent authority of Agent to act on behalf of Principal w/ respect to 3rd party.

200

Principal's Duties to an Agent 

(1) Duty to reasonably compensate the agent, and

(2) Duty to reimburse for all expenses/losses reasonably incurred in discharging any authorized duties;

(3) Duties imposed by the contract; and

(4) Duty to cooperate in carrying out the purpose of the agency.

300

How are profits and losses allocated in a LLC

Profits and losses are allocated on the basis of contributions.

400

Duty of Loyalty to Partners and Partnership as a whole 

Requires a partner to act in good faith and to act fairly toward one another.

(1) Refrain from dealing with the PRT as or on behalf of a party adverse to the PRT;

(2) Refrain from competing with the PRT; and

(3) Account for profits, property, opportunities, or other benefits derived by the partner involving PRT.

Limited Partnership: Only GP has authority to bind the PRT and make mgmt decisions, and is liable for all partnership obligations.

500

Undisclosed Principal

• 3rd party believes A is the contracting party and has no knowledge of the existence of P.
• A is always liable to the 3rd party on K entered into by an authorized agent on behalf of an undisclosed principal.
• Undisclosed P not liable on K when A acts for improper purpose, or 3rd party’s purpose. Otherwise, UP also liable

Corporations

100

Business Judgement Rule

Directors who make business decisions that end up being poor/erroneous are protected when they are:

• (1) Informed
• (2) Decision was made in good faith
• (3) There were no conflicts of interest 
• (4) There was a rational basis for the decision

200

10b-5 Insider Trading (General Definition) 

Person Commits Insider Trading if:

• (1) Purchases or sells stock with knowledge of nonpublic information
• (2) W/o disclosing that info, and
• (3) Breaches duty of trust and confidence owed to the issuer, SHs of issuer or other source of info.

300

SH Dissolution 

SH may seek dissolution on the grounds that:

• (1) Directors are deadlocked and irreparable injury to the corp. is threatened;
• (2) Directors or SH have acted or will act fraudulently, illegally, or with oppression;
• (3) SH are deadlocked and failed to elect one or more directors for 2 consecutive annual meetings; or
• (4) Corp assets are being wasted/misapplied to noncorporate purposes. Corp. or other SH may elect to purchase the petitioning SH’s shares.

400

Derivative Suits Requirements

Usually brought against directors/officers for breach of their duties of loyalty/care.

Requires: (1) Standing (SH at time act/omission complained of/obtained shares by operation of law one who was); & (2) Written demand & Inaction for 90 days unless demand would be futile (all/majority of board in breach); (3) SH remains SH throughout the suit; (4) SH can fairly and adequately represent the interest of the corporation

500

16(b)

• Any profit realized by a SH, officer, or director of more than 10% of the stock, from any purchase/sale w/n period of less than 6 mo., must be disgorged to corp
• Purchases/sales made before becoming officer/director are excluded, those made within 6 mo. after ceasing to be officer/director are included.
• To apply to holders of more than 10% of the stock, they must own that amount at the time of each transaction
• Profit = diff. of transaction w/  highest sales price & transaction w/ lowest purchase price during the 6 mo. period.