Intro study Guide 1 PDF

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The study guide for the exams, it outlines everything learned in the class....

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Taquana/ First Exam Review Review for paralegal studies -Unauthorized practice of law -attorney/ client confidentiality -conflict of interest -competence (very best at all times) - attorney/ client privilege Analytical skills- legal research (gather data, translating) Communication skills- being able to stay professional -facial expressions, tone of voice -listening -speaking (grammar) -writing (taking notes) Computer skills Basic ethic rules- don’t give out people's personal information Discovery demand - show evidence to other side Sole proprietorship- one owner Partnership- two or more people who share this business LLP ( limited liability partnership) -Limited for malpractice -criminal act PC ( professional corporation) -set up in terms of shares (shareholders) Government attorneys- public Private firms Not for profit- don’t make money, they are for a cause -money from contributions -government contracts -public money Conflict Check-Make sure you have no history of representing any of their family or people that they know of before taking on their case. Retainer agreement -policies regarding scheduling & contact & billing -fee structure : partners, associate attorneys, paralegals -money paid upfront by client at beginning -how far will the retainer take you Billing structure

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Lump sum(fixed fees) contingency(uncertain) “if” the client wins then…. “If” the client lose then... Hourly- partner, associate, paralegal each paid separately Agreed upon amount ex: will or deed

Scope of work -part of the retainer agreement -discourage people withdrawing their case (for divorces) -contingency fee is illegal for family courts in new york . -statute of limitation in the CPLR Responsibilities of both parties -can’t guarantee a win -client can’t withhold info from lawyer Professionalism -putting your job first -Awareness (who you are talking to, your surroundings)

Our/ First Exam Review What is a Paralegal? A paralegal is a person qualified by education, training, or work experience who is employed by a law office, corporation, governmental agency, or other entity and who performs specifically delegated substantive legal work, for which a lawyer is responsible. TasksInterviewing Letter Drafting Preparing Documents Filing Documents Scheduling Legal Research Skills*Analyticalinclude gathering and analyzing information relevant to legal matters. *Communication-

Listening Speaking (tone) Writing (tense- past,present,future) Facial/Hand expressions Reading Computer Skills OrganizationKeeping track of documents Make sure documents are out when clients are near *ProfessionalismPutting the job first Knowing your place (distance) (Go hand in hand) EthicsAttorney/Client Confidentiality Privilege Conflict of Interest Unauthorized Practice of Law Competence

Law Firms to Work inSole PracticeOne man owns everything, all profits go to him, just as well as all liabilities. PartnershipTwo or more people sharing all profits a losses Attorneys who work for firm share neither profits or loses Limited Liability Partnership (LLP) Limits the personal liabilities of each partner (partners are not held personally liable for the malpractice of other partners in the firm.-pg 71) Professional CorporationsOwned by shareholders, this is because they by the Corporation in stocks, more stocks. ContractingScope of work What do the clients expect us to do, specifically.

Conflict check Client and the people they are suing Retainer agreement The agreement specifies that the client is retaining (hiring) the attorney and/or firm to represent the client in a legal matter and states that the client agrees to the fee arrangements set forth in the agreement. (Pg 57) Types of fee agreements Fixed fees Lump sum All the money paid in one bulk, normally contract will say exact amount. Hourly fees Contingency fees A legal fee that consists of a specified percentage (such as 30 percent) of the amount the plaintiff recovers in a civil lawsuit. The fee is paid only if the plaintiff wins the lawsuit (recovers damages). (Pg 59) Illegal for family courts in NY Statute of LimitationsThe maximum time period within which the action can be brought to court or have any rights enforced. (No legal action can be brought after time is up). (Pg 54) Discovery- Both sides needs to show all their cards Formal investigation prior to trial. Opposing parties use various methods, such as interrogatories and depositions, to obtain information from each other and from witnesses to prepare for trial. (Book) Constitution- by the state and by the federal (supreme law of the land/super statute) Statues- cannot change Federal Legislators Congress House of Representatives State (subject to federal pre-empts) Senate and Assembly Regulation- can change Federal State Case law- “Judge made law”

injunction A court decree ordering a person to do or to refrain from doing a certain act.

Chapter 4: National Bar Association Law: a body of rules of conduct established and enforced by the government Primary Sources of American Law: 1. Case Law 2. The U.S Constitution and various state constitutions 3. Statutes- including laws passed by Congress, State legislatures, and local governing bodies 4. Regulations created by administrative agencies, such as the U.S Food and Drug Administration (FDA) 5. Treaties w/ other nations Stare Decisis- “to stand by things decided” The practice of deciding new cases with reference to former decisions -helps court be more efficient -law more stable and predictable Binding Authority: any source of law that a court must follow when deciding a case Includes constitutions, statutes and regulations that govern the issue being decided, as well as court decisions that are controlling precedents within the jurisdiction Precedents: something that can be used as a reference to another case Case of first impression: cases with no precedents Public policy- a governmental policy based on widely based on societal views Remedy: the means by which a right is enforced or the violation of a right is prevented or compensated for Remedies in Equity: based on rules of fairness, justice and honesty Remedy at law: remedy available in a court of law. Money damages and items of value are awarded as a remedy of law Constitutional Law: law based on the U.S Constitution and the constitutions of the states Supremacy clause: the constitution, laws and treaties of the United States are the “supreme laws of the land” Bill of Rights- the first ten amendments of the US Constitution

1. 2. 3. 4. 5.

Freedom of religion, speech, press and right to assemble Right to bear arms Prohibits the lodging of soldiers without the owner’s consent Prohibits unreasonable search and seizure of people and property Guarantees the rights to indictment by grand jury and due process of law and prohibits compulsory self- incrimination and double jeopardy 6. Guarantees the accused the right to a speedy and public trial by an impartial jury/the right to counsel/ cross-examine witnesses against them 7. Right to a trial by jury in a civil case 8. Prohibits excessive bail and fines as well as cruel and unusual punishment 9. People have rights besides those specified in the constitution 10. Those powers neither delegates to the federal government nor denied to the states are reserved for the states Statutes- laws enacted by legislative bodies at any level of government -passed by congress Statutory law- the body of written laws enacted by the legislature If a state statute conflict with a federal law, it will be stricken as unconstitutional b/c federal law preempts state law

Chapter 5…. Jurisdiction- the authority of a court to hear and decide a specific case Long arm statute- permits a state to obtain jurisdiction over nonresidents. Original court- the power of a court to take a case, try it and decide it Trial court- A court in which cases begin and in which questions of fact are examined Appellate jurisdiction- the power of a court to hear and decide an appeal; the authority of a court to review cases that have already been tried in a lower court and to make decisions about them without holding a trial Appellate court- a court that reviews decisions made by lower courts, such as trial courts; a court of appeals Diversity of citizenship- a basis for federal district court jurisdiction over a lawsuit between 1.) citizens of different states 2.) a foreign country and citizens of a state or states 3.) citizens of a state and citizens of a foreign country The amount in controversy must be more than $75k for a federal court to exercise jurisdiction

Concurrent jurisdiction- exercises when two different courts have the power to hear a case Exclusive jurisdiction- case can only be heard in a particular court ex) Federal court

Our/ First Exam Review Midterm Study Guide 1. Chapter 1: 1. a. A legal assistant or p  aralegal, is a person qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work. i. Para “next to” b. Associations and Organizations i. The American Bar Association (ABA): Voluntary national association of attorneys. Plays an active role in developing educational and ethical standards for attorneys and in pursuing improvements in the administration of justice ii. National Association of Legal Assistants (NALA): Formed in 1975. Actively involved in paralegal professional development iii. National Federation of Paralegal Associations (NFPA): Formed in 1974. Actively involved in paralegal professional development iv. American Association for Paralegal Education (AAfPE): Founded in 1981. National organization of paralegal educators (pg 3) c. Paralegal Tasks: i. Conduct client interviews and maintain contact with clients ii. Locate and interview witnesses iii. Conduct legal investigations iv. Track important deadlines v. Organize and maintain client files vi. Conduct legal research vii. Draft legal documents viii. Coordinate litigation proceedings 1. Litigation: The proce ss of working a lawsuit through the court system ix. Attend legal proceedings x. Use computers and technology d. Curriculumi. “WHAT” Substantive  law: all laws that define, describe, regulate, and create legal rights and obligations. ACTUAL RULES 1. ex- law prohibiting employment discrimination on the basis of age

ii. “HOW TO” Procedural law: Establishes the methods of enforcing the rights established by substantive law.

e.

Paralegal

Skills:

i. Analytical abilities Taking the fact and extracting legality Legal research ii. Communication 1. Speaking 2. Professionalism a. Must be responsible and reliable in order to earn respect and trust of the attorneys. You must put aside any personal bias or emotions that interfere with your representation of a client. 3. Listening a. With all your senses 4. Writing iii. Good computer skills iv. Organizational skills v. Ability to keep information confidential f. Where Paralegals Work: i. Small firms1. Advantages: if its’s a general law practice…gaining experience; you will learn in what areas you like to work in more, whether it be family cases or personal-injury cases. More personal and less formal environment. Variety of tasks and greater flexibility. Convenient location, no expensive wardrobe and free parking. 2. Disadvantages: less support staff to assist them. Substantial amount of secretarial or clerical work. Slightly lower salaries than larger firms. Fewer employee benefits, such as pension plans and healthcare benefits. ii. Large firms1. Advantages: greater opportunities for promotions and career advancements, higher salaries, better benefit packages, more support staff for paralegals, and more sophisticated technology 2. Disadvantages: too formal, too bougie, eh. iii. GovernmentPg 40-41

1. 2.

1. What types of educational programs and trainings are available to paralegals? Must a person meet specific educational requirements to work as a paralegal? 2. List and describe the skills that are useful in paralegal practice.

2. a.

Chapter 2: Structure of law firms: i. Sole proprietorship the owner is the business. Anyone who does business without creating a formal business entity has a sole proprietorship ii. Personal liability- An individual’s personal responsibility for debts or obligations. The owners of sole proprietorships and partnerships are personally liable for the debts and obligations incurred by their businesses. If their firms go bankrupt or cannot meet debts, the owners will be personally responsible for the debts iii. Partnership- an association of two or more persons to carry on, as co-owners, a business for profit. iv. Partner-a person who operates a business with one or more other persons. Each partner is a co-owner of the business firm. v. Managing partner- the partner in a law firm who makes decisions relating to the firm’s policies and procedures and who generally oversees the business operations of the firm. vi. Associate attorney- An attorney working for a law firm who is not a partner and does not have an ownership interest in the firm. vii. Staff attorney- An attorney hired by a law firm as an employee. A staff attorney has no ownership rights in the firm and will not be invited to become partners in the firm viii. Law clerk- a law student working as an apprentice with a law firm to gain practical experience ix. Limited liability partnership (LLP) A business organization form designed for professionals who normally do business as partners in a partnership The LLP limits the personal liability of partners x. Professional corporation: A corporation formed by licensed professionals, such as lawyers or physicians. The liability of shareholders is often limited to the amount of their investments 1. Shareholder- one who purchases corporate stock or shares and who thus becomes an owner of the corporation b. Retainer Agreement: A signed document stating that the attorney or the law firm has been hired by the client to provide certain legal services and that the client agrees to pay for those services. Details in the retainer agreement include fees and scope of the work. i. Fees 1. Fixed fees “Lump sum:” A fee paid to the attorney by their client for a specific service. a. Simple divorce filings b. Real estate closings c. Wills

2.

Hourly: Fees paid by the hour for services provided by the attorney

a. Criminal cases b. Family law cases c. Corporate cases and forms of litigation 3. Contingency fees: A legal fee that consists of a specific percentage of the amount the plaintiff recovers in a civil lawsuit. The fee is paid only if the plaintiff wins the lawsuit (recovered damages) i. It is illegal to use contingency fees for family cases b. Tort cases 4. Retainer: An advance payment made by a client to a law firm to cover part of the legal fees and/or costs that will be incurred on that client’s behalf. 5. Double billing: billing more than one client for the same billable time. Must be avoided. ii. Filing Procedures: 1. Client files- Confidentially is a major concern and a fundamental policy of every law firm. A breach of confidentiality by anyone in the law office can subject the firm to extensive legal liability. 2. Work product files- Law firms often keep copies of all research materials, support materials related to cases, and legal memoranda. 3. Form filesPg 72-73 1. What are the basic organizational structures of the law firms? 2. What is the difference between an associate and a partner? Who handles the administrative tasks of a law firm? Who supervises the work by a paralegal? 3. What kind of files do law firms maintain? What general procedures are typically followed in regard to client files? 4. How does a law firm arrange its fees with its clients? What ethical obligations do attorneys have with respect to legal fees? 5. How do lawyers and legal assistants keep track of their time? What is the difference between billable and nonball-able hours? What is a client trust account?

3. a.

Chapter 3 Sanctions for Violations

i. Attorneys who violate the rules governing professional conduct are subject to disciplinary proceedings brought by the state bar association, state supreme court or state legislature. ii. Formal sanctions-sanctions imposed for violations range from a reprimand to suspension to disbarment 1. Reprimand: Attorney is rebuked for misbehavior. Mildest sanction 2. Suspension: Prohibited from practicing law for a specific period of time or indefinitely 3. Disbarment: Attorney’s license to practice law is revoked iii. Civil Liability1. Malpractice: professional misconduct or negligence 2. Tort: A civil wrong not arising from a breach of contract; a violation of a legal duty that causes harm to another 3. Damages: money rewarded as a remedy for a civil wrong b. How the Duty of Competence Can be Breached: i. Inadequate research ii. Missed deadlines iii. Errors in documents iv. Attorney’s Duty to Supervise v. Inadequate 1. Improve communications with the attorney 2. Ask attorney for feedback 3. Ask attorney to review the documents you were in charge of c. Exceptions to the Confidentiality Rule: PG 84 i. Client gives informed consent to the disclosure ii. Impliedly authorized disclosures iii. Disclosures to prevent harm iv. Defending against a client’s legal action v. Disclosures to comply with court order or other law d. Violations of the Confidentiality Rule: You can decide never to discuss anything concerning your work or you can limit our discussion to issues and comments that will not reveal the identity of clients i. Conversations overheard by others- Avoid the possibility of unwittingly revealing confidential info to third parties. Never discuss confidential info in public spaces ii. Electronic communications and confidentiality- make sure conversations between you and a client will not be overheard iii. Don’t keep confidential documents lying around e. Attorney-Client Privilege: A rule of evidence requiring that confidential communications btw a client and their attorney be kept confidential unless the client consents to disclosure f. Conflicts check: A procedure for determining whether an agreement to represent a potential client will result in a conflict of interest g. The Unauthorized Practice of Law: prohibits a paralegal from engaging in any of the following activities

i. ii. iii. iv.

Establishing

attorney-client relationships legal fees Giving legal opinions or advice Representing a client before court, unless authorized to do so by the Setting

court PG 108-109!!!!!!!

4.

Chapter 4

Primary law Is binding law and has four types; *Common law Court/judge made law Binding within the jurisdiction of that court Covers anything not already stated in statutory law A body of law developed from custom or judicial decisions in English and U.S. courts and not by a legislature. US constitution + the ones of the state Supremacy Law Statutory law Laws passed by; Congress supreme power statutes subject to checks and balances The judicial branch interprets the law, executive branch helps enforce the law Public laws must pass both branches of congress and then be signed by the president to become US code State legislature Statues made here are enacted by the state, under power given by STATE constitution Subject to federal preempt Local government bodies Ordinance

Can't conflict with state or federal law Uniform laws Laws adopted by most states in order to reduce confusion as business operate from one state to another. (Uniform Commercial Code) Regulations Created by administrative agencies Secondary law Books, articles, basically reference material to the law Case Law Judge made law (interpretation of a statue) Stare decisis Case on all fours (if ther...