Free Essay

Prof. Resp. Outline- Law

In: Other Topics

Submitted By dmsalton
Words 3118
Pages 13
PR Rules

1.0 TERMINOLOGY
(a) Belief actually supposed the fact in question to be true; may be inferred
(b) Confirmed in writing informed consent given in writing
(c) Firm/law firm
1.1COMPETENCE
• Legal knowledge, skill, preparation reasonably necessary for representation
• Relevant factors: o Compelexity and specialized nature of the matter o General experience of lawyere o Lawyer’s training and expeience in the field in question o Preparation and stude o Consult with lawyer of established competence
• No special training needed o Newly admitted atty can be competent
• Emergency situation o Assistance should be limited if atty does not have the skill ordinarily required o Limit to that reasonably necessary
• Reasonable preparation
• Inquiry into the analysis of the factual and legal components of the problem required
• Attention and preparation determined by what is at stake o See 1.2(c) to limit scope of representation
• If reaching out to other atty’s for assistance o Obtain informed consent of client- must reasonably believe the other atty’s skills will contribute to the competent/ethical representation o See 1.2, 1.4, 1.5(e), 1.6, 5.5 o Consult with client about scope of representation and allocation of responsibility
• Keep aware of changes in the law and its practice
1.2 SCOPE OF REPRESNETATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER
• Abide by clients decisions concerning objectives o Client has ultimate authority
• Consult with client as to means (see 1.4) which are to be pursued o Clients normally defer to the knowledge/skill of atty
• May take action which is impliedly authorized to carry out representation o May rely on advanced authorization
• Abide by client’s decisions whether to settle a matter o Informed consent
• Criminal case – abide by client’s decision at to plea, waive jury trial, whether client will testify (after consulaiton)
• Representation does not constitute endorsement of client’s views/activites
• Scope of representation may be limited by atty o Must give informed consent
• Shall not counsel client on conduct that is criminal or fraudulent o If action has already began, atty must avoid assisting client o Withdrawal may be insufficient at times (see 4.1) o If atty knows/reasonably should know the client expects assistance, atty should consult with client about limitation according to the Rules
1.3 DILLIGENCE
• Reasonable diligence and promptness
• Act with commitment and dedication
• Procrastination o Unreasonable delay o Reasonable request for a postponement (must not prejudice client)
• Carry out through conclusion of all matters (unless terminated, see 1.16)
• Consult with client about possibility of appeal before relinquishing responsibility of the matter (1.4(a)(2)) o Depends on scope of representation agreed upon (see 1.2)
1.4 COMMUNICAITON
• SHALL o Promptly inform in which informed consent is required (1.0(e)) o Reasonably consult about means by which client’s objectives are to be accomplished
♣ Circumstances will determine whether consultation must be made before action or after (i.e. exigency circumstance) o Keep client reasonably informed about status o Promptly comply with requests for info o Consult with client about relevant limitations of atty’s conduct o Explain a matter to extent reasonably necessary to allow client to make informed decisions
• Necessary for client to effectively participate o Client should have sufficient information to participate regarding objectives o Atty should explain general strategy o May be difficult if client is child or diminished capacity (see 1.14) or when client is org/group (see 1.13)
• Ideal to maintain regular communication with client
• Justified delay if client would likely act imprudently o Not to serve lawyer’s own interests
1.5 FEE
• SHALL not make an agreement for or collect an unreasonable fee or amount for expenses o Factors to consider
♣ Time/labor required
♣ Novelty/difficultly of question involved
♣ Skill requisite to perform
♣ Likelihood representation will preclude other represention
♣ Fee customarily charged
♣ Time limitations imposed by client
♣ Nature/length of professional relationship with client
♣ Experience, reputation, ability of atty
♣ Whether fee is fixed/contingent
• Scope of representation and basis for fee/expenses should be communicated to the client (preferably in writing) before or witin reasonable time after commencing the rep
• Fee may be contingent on the outcome of the matter o Shall be in writing, signed by the client
• SHALL not enter agreement/charge for o Contingent fees in Domestic relations or criminal matters
• Division of fees o Must be proportionate to services performed o Client must agree to arrangement, confirmed in writing o Total fee must be reasonable
1.6 CONFIDENTIALITY OF INFORMATION
• Atty SHALL not reveal info relating to representation UNLESS o May reveal if reasonably necessary to
♣ Prevent certain death/substantial bodily harm
♣ Prevent client from commiting crime/fraud that is reasonably certain to result in substantial injury to the financial interests/property of another and used atty’s services in furtherance
♣ To prevent/mitigate/rectify substantial injury to the financial interests/property of antother that is reasonably certain to result(ed) from the crime/fraud in which client used atty’s services
♣ Secure leagal advice about atty’s compliance with Rules
♣ To establish claim/defense in suit v. client (i.e. malpractice)
♣ To comply with other law/court order
♣ Due to change in employement (i.e. new firm)
• SHALL make reasonable efforts to prevent the inadvertent or unauthorized disclosure of info
• Relates to representation DURING representation
• Important because trust is a hallmark of the atty-client relationship o Want to encourage client to communicate fully and frankly
• Applies to all aspects of the representation, not just information communicated by client
• Act reasonably to prevent the discovery of such info by TP
• May use a hypothetical in seeking guidance as long as not possible to ascertain identity
• Implied authorization to make disclosures o Surrounding circumstances
• Limited exceptions o Overriding values of life and physical integrity o Present and substantial risk o Reasonably certain to occur
• Atty does not have to disclose info relating to crime/fraud which client is seeking representation
• Consider other laws and whether they require disclosure, will trump Rules
• When discussing case with other atty’s only disclose info that is reasonably necessary and consider whether informed consent is necessary before proceeding o May be used to detect/resolve conflicts of interest
• Always consider informed consent or persuade the client to take action to obviate the need for disclosure
• Act competently to safeguard information o See 1.1, 5.1, 5.3 o Reasonable efforts to prevent o To determine reasonableness
♣ Sensitivity of info
♣ Extent privacy is protected by law/confidentiality agreement
• Duty continues AFTER relationship has terminated o See 1.9
TN 1.6 CONFIDENTIALITY OF INFORMATION
• SHALL not reveal UNLESS o Informed consent o Impliedly authorized o OR
♣ Crime (client or another person)/fraud reasonably certain to result in substantial injury to person or financial interests (unless restricted by 3.3)
♣ Prevent/mitigate/rectify substantial injury to financial interests
♣ Secure legal advice
♣ v. client
• Reasonably believes disclosure is necessary o Prevent reasonably certain death or substantial bodily injury o Comply with court order o To comply with 3.3, 4.1 or other law
• Applies to government lawyers who may disagree with the policy goals of the representation
• Can disclose for purposes of education, if not to detriment of client
1.7 CONFLICT OF INTERESTS: CURRENT CLIENTS
• SHALL not represent if there is a concurrent conflict of interests o Representation of one client will be directly adverse to another client o Significant risk that the representation will be matteraily limited by responisbilities to another
• MAY represent a client if o Reasonably believes that he will be able to provide competent/diligent representation to each affected client o Representation is not prohibited by law o Rep does not inovolve client v. client o Each client gives informed consent in writing
• Resolution of a conflict o Clearly identify client(s) o Determine whether conflict of interest exists o Decide whether the representation may be undertaken despite the existence of a conflict o If so, consult with the clients affected and obtain informed consent in writing
• If conflict of interests exists before representation is undertaken, must decline o Adopt reasonable procedures to determine (i.e. conflict check system) o Ignorance of conflict is not an excuse
• If conflict arises AFTER o Ordinarily atty must withdraw, unless obtained informed consent o If unforeseeable developments- may withdraw and must take steps o minimize harm to clients
• How likely is it that a difference in interests will eventuate and if it does, whether it will materially interefere with the laywer’s independent professional judgment in considering alternatives.
• Informed consent required that each client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have an adverse effect on the interests of the client
• Commonly represented clients o Atty-client privilege does not attached o Equal duty of loyalty to each client o Obtain informed consent at outset and explain
• Representing Corps/Groups o Atty does not represent any constitutent of afflilated organization (i.e. parent or subsidiary)
• Prohibited from engaging in sexual relations with clients unless relationship predates the represesntaion
TN 1.7 CONFLICT OF INTEREST: CURRENT CLIENTS
• SHALL not represent one or more clients in the same criminal or juvenile delinquent matter UNLESS o Demonstrates good cause that no conflict of interest exists or is likely to exist o Affect clients give informed consent
• Sexual realtions are not prohibteed, but tread lightly
• Absent other law, a client may waive conflict of interests
• Multiple representation is appropriate where the objective of the various clients predominate over any inconsistent interests
1.8 CONFLICT OF INTEREST: CURENT CLIENTS: SPECIFIC RULES
• Business transactions with clients o Terms must be fair and reasonable o Fully disclosed in writing, reasonably understood by client o Advised in writing of seeking independent legal counsel o Client gives informed consent in writing and signed to the terms of transaction and the atty’s role
• Prior to conclusion of representation, atty cannot secure literary or media rights to the representation
• SHALL not provide financial assistance to a client EXCEPT o Advance court costs and expenses, and repayment is contingent on the outcome o Indigent client rep- may pay court costs and expenses
• SHALL not accept compensation for representation from someone other than the client UNLESS o Client gives informed consent o No interference with the atty’s independence of profession judgment of relationship with client o TP could have interests that differ from client
• If representing two or more cleints- atty shall not participate in making an aggregate settlement UNLESS each client gives informed consent in writing o Disclosure shall include the existence and nature of all the claims or pleases involveds and the participation of each person in the settlement o Atty must inform each client of all material terms of the settlement
• SHALL not o Make agreement limiting limiting liability unless client is independently represented in the agreement (i.e. agreement for malpractice) o Settle a malpractice claim without client being indep rep’s UNELSS that clien is advised in writing to seek counsel and given time for find counsel
• SHALL not acquire proprietay interests in the subject matte, EXCEPT atty may o Acquire a lien authorized by law to secure fees/expenses o Contract with client for reasonable contingent fee in civil case
• MAY accept gifts, if the transaction meets general standards of fairness o Cannot accept gifts that require preparing legal instruments (i.e. will) UNLESS atty is a relative of client
1.10 IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE
• When in a firm, no atty shall knowingly rep a client when any one atty would be prohibited from represnetaion UNLESS o Prohibition is based on personal intersts of the atty and no significant risk of materially limiting the representation o Prohibition is based on a former client and arises out of the atty’s association with a prior firm
♣ Atty must be timely screened from participation
♣ Written notice given to affected former client
♣ Certifications of compliance with Rules and screening provided to former client upon former client’s request
TN 1.10 IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE

1.13 ORGANIZATION AS CLIENT
• Represents the org acting through its duly authorized constituents
1.14 CLIENT WITH DIMINISHED CAPACITY
• SHALL as far as reasonably possible, maintain normal client-lawyer relationship
• Lawyer MAY take reasonably necessary protective action if reasonably believes o The client has diminished capacity o At risk of substantial physical, financial, or other harm o Cannot adequately act in own interests unless action is taken
• Information is protected by 1.6 o When taking protective action, impliedly authorized to reveal info reasonably necessary to protect cleint’s interest
• Relationship is based on assumption that client, when properly advised/assisted, is capable of making decisions about important matters
• Diminished capacity does no diminish that atty’s obligation to the client – attention and respect
• Non-exhuastive list of protective measures: o Consult with family o Power of attorney o Support groups o Professional services
• Still guided by the client’s objectives
• Balancing factors in determining diminished capacity o Cleint’s ability to articulate reasoning leading to a decision o Variability of state of mind o Ability to appreciate consquences of a decision o Substantive fairness of a decision o Consistence of a decision o Known long-term commitment and values of the client
• Advocate for the least restrictive action o i.e. guardian/conservator might not be the best solution in most cases
• Disclosure of client’s diminished capacity o Could adversely affect client’s interests o Unless authorized, may not disclosed o If necessary to disclose, consider whether TP will act adverslty to the client’s interets
1.16 DECLINING OR TERMINATING REPRESENTATION
• SHALL not represent a client and SHALL withdraw IF o Will result in a Rule violation o Lawyer’s ability to represent is impaired o Atty is discharged
• MAY witdraw if o Can do so without material adverse effect on client o Reasonably believes conduct is criminal/fraudulent o Atty’s services have been used to perpetrate a crime/fraud o Fundamental disagreement o Client fails to fulfill obligation o Unreasonable finiacial burden to atty o Other good cause
• MUST comply with applicable law when terminating the relationship
• SHALL take steps to protect clients interests when terminating
• Avoid need to withdraw from beginning – ensure no conflicts of interests
• If appointed, withdraw may require approval by appointing authority
5.1 RESPONSIBILITES OF PARTNERS, MANAGERS, AND SUPERVISORY ATTORNEYS
• SHALL o Make reasonable efforts to ensure atty’s conform to rules of conduct
• Direct Supervisory o Reasonable efforsts to ensure conformity to rules
• Responsible for another’s violation if: o Order or ratifies conduct o Partner/managerial authority and knows of the conduct at the time when it could be avoided/mitigated and fails to do so
• See 1.0(c)
• Reasonable efforts to establish internal policies and procedures o Measures may depend on structure and nature of firm practice
• See 8.4(c)
• Supervisors are required to intervene to prevent avoidable consequences of misconduct if knows the misconduct occurred
• Does not alter the personal duties of each lawyer
5.2 RESPONSIBILITES OF A SUBORDINATE LAWYER
• Subordinate atty does not violate rules if acts in accordance with supervisor’s reasonable resolution o Must determine whether reasonable or not o Did the subordinate KNOW of the violation, if not know violation
5.3 RESPONSIBILITES REGARDING NONLAWYER ASSISTANCE
• Firm shall make reasonable efforts to ensure that the person’s conduct is compatible with professional obligation
• Atty is responsible for the conduct of such person if o Atty orders or knows of the conduct and ratifies o Fails to make remedial action
7.1 INFORMATION ABOUT LEGAL SERVICES
• Atty should not make false/misleading communication about services
• Communication is false/misleading if it contains a material representation of fact or law or omits a fact necessary
• Governs adversitisements
• Truthful statements that a misleading are also prohibited
• Can’t use past victories to mislead clients to assume same results
8.1 BAR ADMISSION AND DISCIPLINARY MATTERS
• Applicant of lawyer in connection
• SHALL NOT o Knowingly make false statement of material fact o Fail to disclose a fact necessary or correct misapprehension
• Rule is subject to 5th amendment o Rely on such provision openly
• See rules 1.6 and 3.3
8.3 REPORTING PROFESSIONAL MISCONDUCT
• Atty who KNOWS another atty has violated rules and raises substantial question to that atty’s honesty, trustworthiness, fitness as a atty in other respects SHALL inform the appropriate authority
• Atty who KNOWS a judge vilated the judicial conduct rules and raises substantial question as the judge’s fitness for office SHALL inform authority
• Does not require disclosure of info otherwise protected by 1.6 or info obtained through lawyers assistance program
• An apparent isoloated violation may indicate a pattern of mmisconduct
• Substantial refers to seriousness of the possible offense NOT the quantum of evidence
• Does not apply to atty who is retained by an atty to represent
8.4 MISCONDUCT
• Misconduct o Violate/attempt to violate rules
♣ Knowingly assist or induce another to o Commit criminal acts that reflect adversely on honesty, trustworthiness, or fitness o Engage in dishonesty, fraud, deceit, or misrepresentation o Conduct that is prejudicial to the administration of justice
• Does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take
• Characteristics relevant to the law practice
Restatement §59 DEFINITION OF CONFIDENTIAL INFORMAITON
• Duty of loyalty is the predicate of the duty of condfidentiality
• Covers all info relating to representation, regardless of how communicated or acquired
• Info that becomes known by others, but NOT generally known o Generally known depends on circumstances relevant in obtaining info
Restatement §60 DUTY TO SAFEGUARD CONFIDENTIAL INFORMATION
• Applies DURING the representation
• May not disclose if reasonable prospect that doing so will adversely affect material interest or client has instructed atty as such o Material interest depends on circumstances o • Must take reasonable steps to protect from impermissible use or disclosure
• If info used for own self gain, must report profits to client
• Duty of confidentiality is defined in terms of risk of harm
Restatement §63 DISCLOSING INFO WHEN REQUIRED BY LAW
• May disclose if required by law AFTER atty takes reasonable steps to assert that info is privileged or otherwise protected by disclosure
Restatement §64 DISCLOSING INFO IN LAWYER’S SELF DEFENSE
• Reasonably believes reasonably necessary to defend against claim from client (i.e malpractice)
Restatement §66 DISCLOSING INFO TO PREVENT DEATH OR SERIOUS BODILY HARM
• Reasonably believes necessary to prevent reasonably certain death or serious bodily harm
• First MUST make good faith effort to dissuade client not to act o If already acted, advise client to warn victim to prevent and to inform client of option of disclosure and consequences thereof
• Atty not required to take action under this section…...

Similar Documents

Premium Essay

Criminal Law Outline

...sense that it must be a conscious exercise of the will. Rationale: An involuntary act will not be deterred by punishment. Not voluntary // not liable: Conduct that is not the product of the actor’s determination. E.g. A shoves B into C w/ result that C falls to death. Reflexive or convulsive acts Acts performed while the D was either unconscious or asleep UNLESS the D knew that he might fall asleep or become unconscious and engaged in the dangerous behavior. MARTIN V. STATE: Police arrested drunk Martin at home and brought him to highway – convicted of being drunk on highway Criminal liability must be based on conduct which includes a voluntary act or omission to act which was physically possible to be performed. Rationale: Law rests on premise that wrongful act must be chosen Volition separates an act from a bodily movement. My arm went up v. I raised my arm – you will your body to move PEOPLE V. DECINA: Epileptic suffered a seizure while driving; struck and killed 4 children. Opened up time frame = Decina’s voluntary act was getting in the car when he knew he was prone to seizing. Sometimes it is necessary to look at the attendant circumstances STEVE V. BAKER: Driving 65mph, cruise control, enters 30mph, but cruise control gets stuck. Here – open up time frame = voluntary act was turning on cruise control Speeding is strict liability – you are in violation of the traffic ordinances whether you mean to or not. STATE V. UTTER: “Conditioned......

Words: 9944 - Pages: 40

Premium Essay

Torts Outline Ralph Brill - Chicago-Kent College of Law

...Torts Outline- Brill Fall 2001 Overview: *What is a tort? A civil wrong other than a breach of contract for which the law provides a remedy. *Purposes of Tort law: Deter wrongful Encourage socially responsible behavior Restore injured parties to their original condition Peaceful means Intentional Torts I. Intent a. Definition—(1) voluntary acts for the purpose of causing [the essential element of the tort] OR (2) voluntary acts with knowledge to a substantial certainty that [the essential element of the tort] will result. i. For battery, the defendant must have acted with the intent to cause a harmful or offensive touching to plaintiff or some logical extension of plaintiff's person. ii. For assault, the defendant must have intended to cause the plaintiff a reasonable belief that plaintiff was about to immediately suffer a battery. iii. For false imprisonment, the defendant must have intended to confine the plaintiff within some boundaries, from which plaintiff could not reasonably escape. iv. For trespass, defendant intentionally crossed the boundaries of plaintiff's land. v. For trespass to chattels and conversion, the intent factor was identical; the two torts overlap. Thus, for both of these torts, the defendant had to intend to assert dominion or control over plaintiff's chattel. The completed tort would be trespass to chattels if the exercise of dominion or control resulted in harm to the chattel or if it caused the interference with......

Words: 12012 - Pages: 49

Free Essay

Admin Law Outline

...554 | Rulemaking = making little laws. Same effect as anything congress passes. Adjudication = making an order Introduction to Administrative Law - F&S pp. 1-22 The Administrative Procedure Act - Act, Chart and Sample Rule The Grouper Handout and the APA §553 §553 doesn’t say where the rule comes from (i.e. employee of the U.S. or anything), but does say publish in the federal register. §553(b) §553(b)(1) - time/place/etc/nature. The grouper rule - March 4, 1992, to the mailroom, by mail = time, place, nature. Does this constitute a “hearing”? Its called a paper hearing and satisfies §553. §553(b)(2) - authority. Grouper - Magnuson Fishery . . Act. Note, they cite to their own rule; generally an agency must follow its own rules (notice exceptions). 553(c) - interested persons must have an opportunity to participate, (concise general statement) §553(d) - publish 30 days before effective date Page 180-88 of Schecter says something about rule making; how is it different than §553? A. The Problems of Locating Administrative Agencies in the Executive Branch: Departments: Head: Cabinet Officer Serve: At Convenience of President Appoint: Advice and Consent Meyers : The president can fire Independent Agency: Remove for Cause Taking Care Clause - he shall take care that the laws be faithfully executed, and shall commission all the......

Words: 9822 - Pages: 40

Premium Essay

Prof. Han

...a kind of Voelkerwanderung, we begin to suspect that something is being left out. ) If we look into the ways in which the student can recover the dogfish (or the sonnet), we will see that they have in common the stratagem of avoiding the educator's direct presentation of the object as a lesson to be learned and restoring access to sonnet and dogfish as beings to be known, resserting the sovereignty of knower over known. In truth, the biography of scientists and poets is usually the story of the discovery of the indirect approach, the circumvention of the educator's presentation-the young man who was sent to the Technikum and on his way fell into the habit of loitering in book stores and reading poetry; or the young man dutifully attending law school who on the way became curious about the comings and goings of ants. One remembers the scene in The Heart Is a Lonely Hunter where the girl hides in the bushes to hear the Capehart in the big house play Beethoven. Perhaps she was the lucky one after all. Think of the unhappy souls inside, who see the record, worry about scratches, and most of all worry about whether they are ge ting it, whether they are bona fide music lovers. What is the best way to hear Beethoven: sitting in a proper silence around the Cape- hart or eavesdropping from an azalea bush? (However it may come about, we notice two traits of the second situation: ( I) an openness of the thing before oneinstead of being an exercise to be learned according to an approved......

Words: 7039 - Pages: 29

Premium Essay

Prof. Knowledge

...Gen/200 Nickole Mingo 07/2/2010 Debra Wenzel analogy I decided to write on “The American Correctional Association (ACA)” I chose this organization because I was a member when I was a correctional officer. This organization helps officers deal with everyday life behind bars. It teaches us how and what steps to take when dealing with inmates and other correctional officers. As an officer of the criminal justice system we are held to certain standards amongst the community and profession. Like any other position in this field we must deal with certain individuals that by law was convicted of some serious crimes. Being a correctional officer, we are not there to be judge, jury and executioner of the person that was convicted. Our job is to enforce certain rules and regulations while they are incarcerated. Another part of our job is to provide a safe and secure place for both inmates and there visitors. If an inmate breaks the rules set forth by the Department of Corrections, that inmate will be subjected to either additional time in prison for his offense, sent to another jail and/or solitary confinement. This organization is the American Correctional Association (ACA). The ACA is an organization that it’s members are dedicated to serving in the prison system, provide a expert union for all individuals and groups, both public and private that share a universal goal of humanizing the justice system. It is the umbrella organization for all areas......

Words: 1134 - Pages: 5

Premium Essay

Outline and Assess the View That the Law Operates to Serve the Ruling Class

...Outline and assess the view that the law operates to serve the ruling class As crime is subjective concept we must look at the explanations of crime and how it occurs, this assumption clearly suggests that social class plays a large role in explanations of crime. We must consider how social class affects us as a society and thus how it is reflected in the laws set for our society to conform to. The idea of the law serving the ruling class is clearly a Marxist perspective however other sociologists do appreciate this assumption particularly Integrationists and Left Realists. In order to assess the view accurately other factors must be considered for example how the law operates to serve different genders, ages and ethnicities as well as social classes. Firstly Marxists would argue that the ruling class are protected by the law and therefore are less likely to be punished for a crime. Snider found that the state is hesitant to pass laws that regulate large capitalist concerns for example: laws on health and safety or monoplies, as it can scare off investors and damge profitability for the state’s economy. This suggests that the law serves the ruling class as it protects them from being punished as laws aren’t in place to prevent corporate crimes ( such as tax evasion)and prosecute the criminals. Futhermore we can suggest that this happens due to those who make the laws being part of the ruling class; politicians are predominantly wealthy middle class individuals and......

Words: 1078 - Pages: 5

Premium Essay

Corporation (Fisch) Outline Penn Law

...) INTRODUCTORY PRINCIPLES 2 A.) Efficiency and Other Concepts 2 B.) Agency and Partnership Law 2 II.) INTRODUCTION TO THE CORPORATE FORM 16 A.) Formation and Structure 16 B.) Debt, Equity, and Valuation 22 III.) CONTROL OF CORPORATE DECISIONS 32 A.) The Role of the Shareholder 32 B.) Management Obligations 50 1.) Duty of Care 51 2.) Duty of Loyalty 56 3.) Duty of Fairness: Parent-Subsidiary Relationships 63 4.) Duty of Good Faith 64 5.) Management Obligations Under Federal Securities Laws 67 C.) Shareholder Litigation 76 IV.) Structural Changes 85 A.) Transactions in Control 85 B.) Mergers and Acquisitions 86 1.) Mergers 87 2.) Sale of Assets 93 3.) Asset Purchase or Tender Offer 94 C.) Public Control Contests 96 1.) The Poison Pill 100 2.) Enhanced Review When Business is Up for Sale 103 3.) Proxy Contests for Corporate Control 106 4.) Protecting the Deal: Shareholder Lockup Agreements 109 I.) INTRODUCTORY PRINCIPLES • Definitions o Corporate Law: The allocation of rights and power within a corporation; the internal body of law ▪ Addresses the creation of economic wealth through the facilitation of voluntary, ongoing collective action ▪ Flexible- expectation that market discipline will weed out what is not working ▪ Principle aim- reduce agency costs of all sorts o Securities Law: Regulates capital markets that corporations use to obtain funding o Firm: A form......

Words: 62796 - Pages: 252

Premium Essay

Law Outline

...MANAGEMNT YEAR 1 SEM II HBC 2112 BUSINESS LAW 1 HPS 2204 BUSINESS LAW 1 Lecturer: Jean Mzera Uzel 0721586918 EMAIL Jeanmzera@yahoo.com Introduction This unit is designed for business students to give them a focus in law in the society and business environment. It deals with a panorama of the most important activities in the business law which will enable them to understand and function effectively in today’s business environment. Course target The target group for this unit is the undergraduate students pursuing the business studies as a course. Course delivery This course will be administered using lectures and group discussions. The students’ participation in group assignments will contribute to their final course grade. Learning outcomes By the end of this unit, it is expected that the students will be able to: * Identify the entities involved in business law * Know the criteria that company managers can use to make business law decisions. * Appreciate the sources of law in Kenya and constitution making * Appreciate the law of persons, law of contract, law of tort, law of agency and negotiable instruments and their respective applications in the business environment. COURSE PLAN week | course topic | key coverage | mode of presentation | Evaluation orExercise | One | Nature and functions of law in society and business environment | 1. Classification of law 2. Sources of law in Kenya * Constitution * Statute law * Delegated legislation *......

Words: 660 - Pages: 3

Free Essay

Patent Law Outline

...“Progress of science and useful arts” 1. Science is copyright, and useful arts is patents 2. In the days of the Constitution means “knowledge.” ii. Utilitarian clause – not based on the moral rights iii. Most protection is pretty much on federal level. iv. Certain States with particular businesses adopted their own laws, which Congress eventually incorporated into federal law (e.g. CA sound recording) b. Trademarks ( Commerce power – basis for federal system i. Prevents consumer confusion and protects information assets – tells people who is making the goods ii. Historically, there was only state TM law, but people starting producing things in different states causing consumer confusion iii. Most trademark cases are not federal courts c. 2 Issues i. First Amendment problems – copyrights infringe on freedom of speech 1. How can Congress balance the interests? 2. How far can states go in adopting common law or legislative solutions? ii. Federalism ( there are common law and state protections that interact with federal laws. Does this disrupt the federalist balance d. International Agreements ( i. TRIPS, WIPO, Madrid Protocol ii. What was once a national issue has become worldwide III. IP vs. Real Property a. Protection for Real Property – 5th Amendment i. Amend V says congress can’t deprive people of property ii. Real......

Words: 34600 - Pages: 139

Premium Essay

Con Law Outline

...CONSTITUTIONAL LAW 1 OUTLINE KEYED TO: SULLIVAN CASEBOOK 1. The Supreme Court's Authority and Role * Judicial Review * ROL→ Congress may neither restrict nor enlarge the Supreme Court’s original jurisdiction. * Marbury v. Madison * →Established Judicial Review. Court Held that a writ of mandamus to deliver a commission made by John Adams fell under the Sup. Court's appellate jurisdiction and therefore could not be brought in that court originally under Art. III b/c it is repugnant to the Constitution * →Supreme Court Authority to Review State Court Judgments * ROL→ The United States appellate power also extends to REVIEW state court judgments * →Judiciary Act of 1789, § 25: Provides for supreme court review of final decisions of the highest state courts rejecting claims based on federal law * Martin v. Hunter's Lessee * →A Virginia citizen willed his Virginia land to his nephew, P, a British subject and resident of England.  Virginia, according to state law, had the right to confiscate land owned by British subjects and did so.  Virginia granted this land to D, who then ejected P from the land.  But, the treaties of 1783 and 1794 with Great Britain had anti-confiscation laws saying that the states won’t take the land of British citizens. Supreme Court exerted its authority to review the Virginia court's judgment and held that Supremacy Clause declares that the......

Words: 12291 - Pages: 50

Premium Essay

Business Law Outline

...B-Law outline #3 Aaron Stewart Tort law * Intentional torts * Assault, battery, False Imprisonment Intentional Inflicktion of Emotional Distress, trespass to land, trespass to Chattels( personal Property), Conversion * Defenses to Intentional Torts * Self Defense, Defense to all others, Defense of Property, Recovery of Personal Property, Necessity, Consent * Assault * Assault occurs when one person intentionally causes another person to suffer a reasonable apprehension of imminent harmful of offensive bodily contact(Resonable-objective standard) * Elements of Assault (Manning v. Grimsley)(Wishnatsky v. Huey)(Howard v. Wilson) * Intent, Reasonable Apprehension, Imminent * Battery * Intentional Infliction of harmful or offensive bodily contact * Elements of battery (England v. S&M Foods) * Intent, Harmful or offensive, Bodily contact * False Imprisonment * Intentional infliction of a confinement * Elements of False Imprisonment (K-Mart v. Perdue)(Bank v. Fritsch)( Pope v. Rostraver Shop and Save) * Intent, confinement * Intentional Infliction of Emotional Distress * Intentional infliction, by extreme & outrageous conduct of service emotional Distress * Elements (Intent, Extreme & outrageous conduct, Severe Emotional Distress) * Transferred Intent Doctrine * The differnet person is the object of Intent if D had “intent” with respect to......

Words: 461 - Pages: 2

Free Essay

Foundation Outline (Prof. William Ewald)

...  [Enter Document Title]  Foundations            of the U.S.               Legal System  Prof. William Ewald  Contributors  Wim De Vlieger Suvitcha Nativivat Alasdair Henderson Ana Carolina Kliemann Alexey Kruglyakov Rafael A. Rosillo Pasquale Siciliani Paul Lanois Gloria M. Gasso Kamel Ait El Hadj Yuanyuan Zheng Ana L. Marquez Pumthan Chaichantipyuth Wenzhen Dai Penn Law Summer 2006 I.  Introduction and Historical Background    A. What the course will cover?      This  is  not  an  introductory  course.    You  are  all  lawyers;  I  shall  assume  a  good  deal  of  professional  expertise,  and  that  many  of  you  already  have  a  body  of  knowledge  about  American  law.    The task: prepare you for the coming year, give you the basic grounding that you will need  for the courses you are going to start taking in September.  For this, you need two things:    ♥ A  great  deal  of  basic  factual  information  about  how  the  courts  and  the  legal  system  function, and about basic legal concepts (and legal vocabulary);     ♥ But  more  importantly:  background  information  about  some  of  the  critical  ways in which  the American legal system is unique, and differs from legal systems elsewhere in the  world.  This is hard: often you will find that your professors or fellow‐students will make  assumptions  or  presuppose  certain  ways  of  doing  things  that  aren’t  explained  in  class.   ......

Words: 43059 - Pages: 173

Premium Essay

Outline

...Keong Min Oh Conflict of Laws Prof. Perez Lilienthal v. Kaufman Majority First restatement Opinion: The First restatement is heavily focused on vested rights theory. The case at bar deals with the collection of unpaid two promissory notes. The right in this case was vested at particular forum where the place of making was. The contract to buy binoculars was executed and formed in California. “The defendant went to San Francisco to ask the plaintiff, a California resident, for money for the defendant’s venture. The money was loaned to defendant in San Francisco, and by the terms of the note, it was to be repaid to plaintiff in San Francisco.” Lilienthal v. Kaufman, P.2d 543 (Or. 1964). Since the defendant and plaintiff agreed for the contract to be formed was based in California, California law is to be applied in this case, thus allowing the plaintiff to recover. Dissent: Although vested rights theory allows the plaintiff to recover under California law, the first restatement of conflict of laws provides three escapes when the outcome is not preferred. The particular theory relevant in this case is “public policy” escape. Oregon’s public policy is shown on its legislative history. Oregon has a strong policy protecting innocent persons from fraud. The defendant in this case was a spendthrift who is placed under the guardianship. The defendant was aware of the fact that if his control of the funds was under the guardian’s authority. The defendant did not......

Words: 665 - Pages: 3

Free Essay

Prof

...of workers. 6) Frank’s attitude is wrong. Foreigner has only to implement all the ethically and legally right local customs. If they are wrong, in that case company should try to change local ways of doing business. Company should try to change the business environment more honest and fair. The company will expand with the country. 8) In the first circumstance, Frank should persuade the government officials to wait the staff engineers. He should not accept their pretenses and should complain to the officials about the situation. In the second circumstance, Frank should wait until they fully finish their transfer. 9) In the one hand it is beneficial for company. The company can gain its profit. But on the other hand, it is against the law, it is illegal. FCPA prohibits it to USA companies in the foreign countries as well. 10) Yes, it is example of SRC. It is obviously the USA market is not suitable for Latino market. So Frank makes the business decisions in Latino, by thinking how the others handle the situations. 11) I think that Bill will make the grade in Latino. But he will follow USA strategies of the company. At the same time, he will adapt these strategies to the local customs which ethically and legally are right. 12) The company’s overseas manager can be prepared by the previous company’s overseas manager or local professional managers. Manager can learn the experiences of the previous manager. At the same time, the company can find other retired local......

Words: 551 - Pages: 3

Premium Essay

Prof

...exchange and in gold and silver coin and bullion; • Collecting notes and drafts deposited; • Arranging credits for itself with banks in other towns, cities and countries; • Selling its drafts or cheques on other banks and banking correspondents; • Issuing letters of credit; • Lending money to its customers on the customers' notes, by way of overdraft (or) on bonds, shares and other securities. "A banker undertakes by the very carrying on of his business that he will honour any cheque drawn upon an account, provided that that account is in credit to the amount of the draft." In United Dominion Trust (1966), Justice Diplock noted (at page 986), that as of about 1915, the use of cheques became widespread and this altered the law of banks and banking and that the decisions in Re Shields Estate "adopted definitions of banking that may be too wide for the present day". Diplock, (1942) added that: "What I think is common to all modern definitions of banking and essential to the carrying on of the business of banking is that the banker should accept from his customers loans of money on deposit, that is to say, loans for an indefinite period on running account, repayable as to the whole. Consumer credit is available in a various forms and from a number of organizations. Most types of credit and hire agreements are regulated by the Consumer Credit Act 1974 and 2006 which gives a borrower some important rights. An agreement will be regulated if: it is for an......

Words: 11858 - Pages: 48

One Piece 200 | Once Upon A Time In China and America | 下載 APK