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mrd367713

7-13

QuestionAnswer
Lawyers entering non-compete agreements. Law may NOT enter into a non-compete agmt or provision with his current partners or associates. EXCEPT an agmt concerning benefits or retirement OR in a sale of law practice.
What are permissible types of temporary multi-jurisdictional practice allowed in other states by NY lawyers? ASSOCIATE w/ active local lawyer, PRO HAC VICE, MEDIATION/ARBITRATION, anything REASONABLY RELATED to lawyer's home-state prac; multistate firms (letterhead indicates states of admission)
What decisions strictly belong to the client? COMMENCE an action, SETTLEMENT, APPEAL, choosing JURY/BENCH trial, TESTIFYING in criminal case.
What decisions belong to attorney? DISCOVERY methods to use, granting ADJOURNMENT that do not prejudice rights of a party.
Lawyer knows representation will result in violation of rules of law. Permissive or mandatory withdrawal? MANDATORY (if rep "is likely", then it's permissive)
Lawyer's representation is likely to result in violation of an RPC. Permissive or mandatory withdrawal? PERMISSIVE (if the lawyer KNOWS RPC violation will result, it's mandatory)
Lawyer's inability to work with co-counsel. Permissive or mandatory withdrawal? PERMISSIVE, if it indicates best interests of client are served by withdrawal.
Lawyer suffers physical or mental disability. Permissive or mandatory withdrawal? MANDATORY
Lawyer persists in course of action involving the lawyer's svcs that the lawyer thinks is criminal or fraudulent PERMISSIVE, if L "reasonably believes" service is criminal or fradulent
Client's claim or defense is frivolous PERMISSIVE
Contingent fees Prohibited in CRIMINAL cases and DOMESTIC RELATIONS matters. Dom rem construed broadly, and prohibits contingency fees for the recovery of post-judgment alimony, child support, or other financial orders.
RPC definition of "domestic relations matters" Any action involving divorce, separation, annulment, custody, visitation, maintenance, child support or alimony. Includes preliminary hearings, enforcement or judgment-modification hearings, and appeals.
Rules UNIQUE to "domestic relations" matters. STATEMENT of client's RIGHTS AND RESPONSIBILITIES at the initial conference and prior to signing of a written retainer agreement; NO CONTINGENCY arrangements, including for collection of post-judgment alimony or child support; NO SEXUAL RELATIONS; SEC INT
Conflict-based ineffective assistance of counsel claims [NYMC-RPC 1] Two inquiries: 1)Ct must assess whether there was a POTENTIAL CONFLICT in a D's representation. 2)D "must show that the CONDUCT of his defense was IN FACT AFFECTED by the operation of the conflict..., or that the conflict OPERATED on the representation."
Advocate-witness rule Lawyer must not advocate before a ct if L is LIKELY to be a witness on a SIGNIFICANT ISSUE of fact. UNLESS testimony relates solely to UNCONTESTED matter, to NATURE+VALUE of svcs rendered in matter, or to matter of FORMALITY(eg, witnessing sig on will)
Taking security interest in domestic relations matters L may take obtain a security interest to secure his fee IF: 1)retainer provides that SI can be sought; 2)NOTICE provided to other spouse;3)Ct approval. BUT L can't FORECLOSE on mortg on consenting spouse's PRIMARY marital residence while still titleholder
Solicitation of clients Lawyers are NOT permitted to solicit clients through in-person, telephone, real time, or interactive computer-accessed communication, UNLESS the client is a CLOSE FRIEND, RELATIVE, OR CURRENT or FORMER CLIENT. [Agents also prohibited]
Referral fees Prohibited by RPC. Division of fees w/ outside attny permitted under certain circumstances.
Rules re contingency fees when allowed Must be IN WRITING and must EXPLAIN the method by which fee is to be determined. After rep is over, L must provide client w/ written closing statement stating outcome of the matter and computing the fee. Statement must be filed w/ App Div.
Written Ltrs of Engagement Fee arrangement must be in WRITING if fees projected to be >= $3k. But writing not required if services are of the same gen kind previously provided to client.
Key for purpose of classifying tangible colateral under Art 9? It is a SUBJECTIVE test: PRIMARY use in the hands of the debtor.
How to attach a security interest under Art 9? VCR: Value, Contract, Rights.
How to perfect a security interest under Art 9? SC taking possession; Automatic perfection in PMSIs in CONSUMER goods; FILING
What must UCC-1 filing contain? D's name+address; S's name+address; DESCRIPTION of the collateral.
Where is the financing statement filed? With the Secretary of State, in the state where DEBTOR is located. Individual debtor's are located in the state of prin residence. Registered orgs are located in the state under whose laws it is organized. EXCEPTION: timber, minerals, and fixtures
When is the given writing a NEGOTIABLE INSTRUMENT as opposed to a mere contract? WOSSUPP: writing, order(payable to), signed, sum certain, unconditional promise (+no additional promises), payble ON DEMAND, payble IN CURRENCY
In a comm paper fact pattern, on what theories might D get sued? Contract or Signature Liability; Warranty or Transfer Liability
How is a neg inst DULY NEGOTIATED? "duly negotiated" means the transfer was proper. If the instrument was properly transferred, the transferee is a holder and may be eligible to be HDC.
How does a transferee qualify as a holder in due course (HIDC)? For value, in good faith, and w/o notice that it is overdue or has been dishonored r is subject to any defense or claim.
What are claims and personal defenses and what are real defenses? HDC takes free of claims and personal defenses. HDC is subject to real defenses.
Art 3's bright-line rule When a negotiable instrument is DULY NEGOTIATED to a HDC, the HDC takes the instrument free of all claims to it, free of PERSONAL DEFENSES and subject only to REAL DEFENSES.
Benefits of HDC status? A holder in due course (and subsequent transferees who take "shelter" in that status) takes the instrument free from claims, free from personal defenses and subject only to real defenses.
Created by: mdiaz367