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MGMT 200 > Pop quiz tuesday > Flashcards

Pop quiz tuesday Flashcards

1
Q

Lawyers may not

A

Mislead the court
Disclose cases

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2
Q

The system is not

A

a truth finding system

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3
Q

What is the model in other countries that look for the truth

A

Inquisitorial

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4
Q

What is a Fiduciary relationship

A

Lawyers duty of honesty and acting on whats best for the client

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5
Q

What is Pro-bono

A

a service lawyers are encouraged to provide for free to worthy causes and people.

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6
Q

Pro se

A

When u represent urself

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7
Q

What are things u can probably do w/o lawyer

A

-Simple divorce
-small claims court
-Adam reid getting hit by cars
-simple wills

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8
Q

What is in house counsel

A

they represent big corportaions w/ lots of money

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9
Q

What is public interest firms

A

firms w/ missions/cause

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10
Q

What is gov attorney

A

prosecutors, assistant attorney generals, government attorneys that provide civil advice (and may include public defenders at the local and federal level – but
criminal defense lawyers, even if paid by the government, have different obligations).

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11
Q

Public Prosecutors (or District Attorneys, and assistant attorney generals) are

A

Bound by proffessinoal code:
-prosecutors for both criminal and civil
-Duty is to do JUSTICE, not simple wina case

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12
Q

Public defenders

A

represent those charged with crimes (according to constitution every criminal case gets free legal represntaion)

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13
Q

All criminal defense attorneys must

A

zealously represent the defendant even if she knows he’s guilty
(duty is not to “do justice” but to the client. Duty is to represent client
even if the client has confessed to the lawyer.)

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14
Q

The legal proffesion is

A

self regulating

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15
Q

The rules of prof conduct are

A

are codified,
carrying the force of law,
binding on members of the bar.

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16
Q

A breach of the rules of prof conduct may lead to an attorney being

A

Disiplined
Disbarment
Suspension
Probation
Censure

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17
Q

What is the attorney client privilege

A

all communications, made to an attorney must remain confidential.
- Privilege does not apply to threat to do future harm;
- Privilege SURVIVES THE DEATH OF THE CLIENT –
- But note: it can be waived by client.
Alton Logan (60 Minutes).
The rest of the story…

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18
Q

A prosecutor is not the “attorney” for the victim of a crime; thus, if the victim discloses
something to the prosecutor that might bear on the innocence of the accused, the prosecutor must turn this information over to the attorney for the accused.

A
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19
Q

Duty of Confidentiality

A

protects ALL info that lawyers learn about client, during representation, even if not from client

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20
Q

Ineffective assistance of counsel in CRIMINAL CASES =

A

Specific acts or omissions that were outside the bounds of professionally competent
assistance (in other words, “negligent conduct”);
AND
B. Counsel’s errors actually prejudiced the defendant to the point where he was denied a
fair trial.

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21
Q

What is malpractice

A

when a civil litigants lawyer has committed significant errors

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22
Q

In the American system, the ordinary rule is that everyone pays for their own lawyer unless…

A

1.A statute (law) says that if the plaintiff wins, the defendant pays his lawyer’s fees.
2. A contract includes a clause that says, if there is a dispute, and litigation, the prevailing party’s fees are paid by the losing party.

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23
Q

Flat Rate

A

This is essentially an hourly rate, where the lawyer will be paid for each hour worked. This
may also be a “by the job” (e.g. a simple will).

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24
Q

Retainers

A

Simply $ the client pays the lawyer, who “holds” it in his/her account and only draws the
money out in proportion the time spent working on the case.

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25
Q

FEE SHIFTING

A

When the government creates a law that provides for the government to pay the plaintiff’s
attorney’s fees if the plaintiff wins the case. This encourages lawyers to take cases of poor
people b/c there is the possibility of a good pay day.

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26
Q

Class Action Cases

A

Lawyers are paid an amount of money SET by the court, from the proceeds of the settlement.
Some firms have carved out very lucrative/profitable practices once they get appointed lead
counsel in a class action case.

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27
Q

supremacy clause

A

provides that the Constitution,
laws, and treaties of the United States are “the supreme
Law of the Land.”

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28
Q

preemption

A

is when n When Congress chooses to act exclusively in a concurrent area.In this circumstance, a valid federal statute or regulation will take precedence over a conflicting state or local law or regulation on
the same general subject.

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29
Q

What is the bill of rights

A

the first ten amendments to the US Constitution, ratified in 1791 and guaranteeing such rights as the freedoms of speech, assembly, and worship.

30
Q

1st amendment

A

freedom of speech, religion, right to petition

31
Q

2nd amendment

A

bear arms

32
Q

3rd amendment

A

prohibits soldiers lodging in any house w/o consent

33
Q

4th amendment

A

prohibits unreasonable searches and seizure of ppl or property

34
Q

Symbolic speech is

A

gestures, movements, articles of clothing, and other forms of expressive conduct—is also
given substantial protection by the courts.

35
Q

Content-Neutral Laws are

A

. Laws that regulate the time,
manner, and place, but not the content, of speech receive
less scrutiny by the courts than do laws that restrict the
content of expression

36
Q

what laws may restirict free speech?

A

Compelling gov interest:he government’s interest is balanced against
the individual’s constitutional right to free expression.. ex:school

37
Q

Generally, a restriction on commercial speech will be
considered valid as long as it meets three criteria

A
  1. It must seek to implement a substantial government
    interest.
  2. It must directly advance that interest.
  3. It must go no further than necessary to accomplish
    its objective.
38
Q

Criminal negligence

A

the defendant takes an unjustified, substantial, and foreseeable risk that results in harm.
A defendant can be negligent even if she or he was not
actually aware of the risk but should have been aware of it

39
Q

Strict liability
crimes

A

are offenses that do not require a wrongful mental
state to establish criminal liability

40
Q

Strict liability

A

crimes are offenses that do not require a wrongful mental state to establish criminal liability

41
Q

overcriminalization argues

A

when intent is removed ppl are likely to commit crimes unknowingly

42
Q

responsible corporate
officer doctrine states

A

a court may impose criminal liability on a
corporate officer who participated in, directed, or merely
knew about a given criminal violation.

43
Q

Larceny

A

taking and carrying away of someone else’s personal property with the intent to permanently deprive the owner of possession

44
Q

Public Order Crime
AKA victimless crimes

A

outlawed activities
that are considered contrary to public values and morals.

45
Q

Organized Crime

A

groups operating illegitimately to provide illegal goods
and services, such as narcotics.

46
Q

substantial-capacity test set forth in the Model Penal Code:

A

A person is not responsible for criminal conduct such conduct as a result of mental disease or defect he or she lacks substantial capacity either to appreciate the wrongfulness conduct or
to conform thier conduct to the requirements of
the law.

47
Q

Duress is

A

when the wrongful threat of one person
induces another person to perform an act that he or she would not otherwise have performed.

48
Q

Entrapment is

A

designed to prevent police officers or other government agents from tricking ppl into committing a crime.

49
Q

to obtain a search warrant:

A

enforcement officers must convince a judge that they have
reasonable grounds, or probable cause, to believe a search
will reveal a specific illegality

50
Q

exclusionary rule

A

any evidence obtained in violation of the constitutional rights
spelled out in the Fourth, Fifth, and Sixth Amendments
generally is not admissible at trial.

51
Q

The Miranda Rule is

A

individuals who are arrested must be informed of
certain constitutional rights 6th and 5th

52
Q

What is a contract

A

an agreement that can
be enforced in court

53
Q

unilateral contract

A

formed not
at the moment when promises are exchanged but at the
moment when the contract is performed

54
Q

Bilateral contract

A

promise for a promise

55
Q

formal contracts

A

are contracts
that require a special form or method of creation (formation) to be enforceable

56
Q

informal contract

A

No special form is required
(except for certain types of contracts that must be in writing), as the contracts are usually based on their substance
rather than their form

57
Q

express
contract

A

the terms of the agreement are fully and explicitly stated in words, oral or written

58
Q

Implied contract

A

A contract that is implied from the conduct of the
parties

59
Q

executed contract

A

A contract that has
been fully performed on both sides

60
Q

executory contract

A

A contract that has not been fully performed by
the parties

61
Q

valid contract has the elements necessary to entitle at least one of the parties to enforce it in court. What are the elements?

A
  1. agreement
  2. supported by legally sufficient consideration
    3.made by parties w/ legal capacity
  3. legal purpose.
62
Q

Voidable contract

A

a valid contract but one that can be avoided at the option of one or both of the parties

63
Q

unenforceable contract

A

is one that cannot be enforced because of certain legal defenses against it.

64
Q

Void Contracts

A

no contract at all.
The terms void and contract are contradictory. None of the parties have any legal obligations if a contract is void. A contract can be void because one of the parties was determined by a court to be mentally incompetent

65
Q

Quasi contracts

A

contracts implied in law, are not
actual contracts. Rather, they are fictional contracts that
courts can impose on the parties “as if” the parties had
entered into an actual contract.

66
Q

Contracts can be enforced by a court, the breach of which gives may give rise to money
damages.

The non-performing party is:

A

1.required to pay money
2. but in some situations money damages are inadequate: give prosied act or stop doing somehting

67
Q

Public Policy:

A

You can’t make a contract to do something against the law (or to ignore the
law).

68
Q

Contracts can include their own rules for enforcement:

A

binding arbitration, attorney fees, choice of law provisions (which State’s contract law controls), and choice of physical forum.

69
Q

There are 6 parts of a valid contract *:

A
  1. Capacity (also called “Competent Parties”)
  2. Offer + Acceptance
    (Also called “Mutual Agreement”)
  3. Genuine Assent (also called “Consent”)
  4. Consideration
  5. In form prescribed by law
    (#5 and #6 are often combined.)
  6. Legal formation and execution
70
Q

A contract is Voidable at the discretion of that person, or that person’s guardian, etc.
A. Minors

A
  1. Competent party has duty of “restitution” to minor, e.g. putting
    the minor back in the same position as before the contract;
    108
  2. Minor also has duty to return property, etc., even if it has
    depreciated;
  3. Minor also may have to make restitution, to make the other
    party “whole”.
  4. Minor – once 18 – may ratify the contract by NOT disavowing it,
    and accepting its terms and consequences.
    EXCEPT: Minor may not disavow contracts for “Necessities of Life”, e.g.
    medical, educational loans, military contracts, food, shelter, etc.
71
Q

A contract is Voidable at the discretion of that person, or that person’s guardian, etc.
B. Mentally incompetent

A

Test: “objective cognitive understanding” test” – the person’s mental
incapacity must render that person incapable of understanding or
comprehending the nature of the transaction.
Mere stupidity does not count.

72
Q

A contract is Voidable at the discretion of that person, or that person’s guardian, etc.
C. Drunk/High

A

but only if you are so drunk that you are “incapable of
understanding the nature of the transaction at the time.” Think…..
drunk.
The party NOT drunk must be returned to the status quo ante.

MGMT 200 (10 decks)

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