February 1995 Question Question 2 [Real Property]
In 1990 Albert owned Blueacre, a vacant 40-acre tract of land worth about $70,000. In January 1991 he borrowed $35,000 from Clara and gave his note secured by a mortgage on Blueacre. The note called for a single payment, including interest, on January 1, 1999. Clara promptly recorded the mortgage. In June 1997, in exchange for $500, Albert granted an easement in Blueacre to his neighbor Donald. The easement was for a road 40 feet wide along the northem boundary of Blueacre to allow Donald more convenient access to his adjoining land. Donald immediately constructed a 20-foot wide road along the northern boundary of Blueacre, but he never recorded the document granting the easement. In June 1993 Albert borrowed $10,000 from Eve. He gave Eve a note, due June 1, 1 996, secured by a second mortgage on Blueacre. Eve promptly recorded the mortgage. Albert failed to pay Clara's note when it came due. Clara filed a suit to collect the debt and foreclose her mortgage. She did not give notice to or join either Donald or Eve. Albert defaulted and Clara obtained a judgment on the note and an order authorizing the foreclosure sale of Blueacre. On June 1, 1994 the property was sold to Clara at the foreclosure sale for the amount of her judgment. On July 1, 1994, Clara sold Blueacre to Pat for $80,000. She gave Pat a standard form warranty deed.
1 . What rights, if any, does Donald have regarding the easement? Discuss.
2. What rights, if any, does Eve have against Pat and against Clara? Discuss.
3. What rights, if any, does Pat have against Clara? Discuss.
February 1995 Question 4 [Professional Responsibility]
May has represented the International Bakers Union (IBU) as its attorney for several years. Last Year, while IBU was on strike against Bakery, a car belonging to the owner of Bakery was firebombed outside his home. Walter, the vice president of IBU, and Frank, an apprentice member of the union, were charged with arson to property, a felony carrying a penalty of up to three years in prison.
IBU retained May to represent Walter and Frank in the criminal case. Shortly after entering her appearance, May was approached by Pete, the prosecutor, who told her that an unidentified member of IBU's Executive Board would testify that Walter and other members of IBU leadership planned the firebombing and got Frank to go along only after they threatened to revoke his apprentice union card. Pete said that if Frank would testify for the prosecution against Walter, Pete would allow Frank to plead guilty to a misdemeanor and would recommend that he be placed on probation. May immediately refused, telling Pete that she knows he is just a "union buster," and that IBU's interests would suffer if she agreed to his proposal.
The case proceeded to trial, and the Secretary of IBU testified for the prosecution as Pete had indicated. Both Walter and Frank were convicted. The judge denied May's pleas that her clients be placed on probation and sentenced each defendant to three years in prison.
What standards of professional responsibility, if any, has May violated? Discuss.
Question 5 [Criminal Procedure]
Late at night Officer Jones observed a red sports car with one headlight out, a violation of a traffic law. Jones stopped the car, approached the driver to issue a citation and, following standard police procedure, asked the driver for his license and registration. The license identified the driver as Dan Deft. As Deft handed the license and registration to Jones, Deft said that he "could make life very unpleasant" for Jones if she "messed" with him.
As Jones was writing a citation, she heard a police all points bulletin to be on the alert for a red sports car driven by a male, about 5'8" tall, 150 pounds, clean-shaven, with dark hair, and wearing glasses, dark pants with a pink puff-sleeved shirt unbuttoned down to the navel. This person was wanted for robbery of Smith, whose purse had just been taken. Deft was actually 5'9" tall, 160 pounds, clean-shaven, with dark hair, and wore glasses, blue trousers and a rose-colored, puff-sleeved shirt buttoned up to the neck.
Jones placed Deft under arrest for robbery and read him Miranda warnings. Deft invoked his rights to remain silent and to counsel. Jones turned Deft over to other police officers who had arrived at the scene. She then searched Deft's car and discovered a purse under the seat.
One hour after Deft was arrested, Smith identified Deft as the robber in a one-on-one confrontation at the police station. She said that she was positive in her identification. She also identified the purse found in Deft's car as hers. Deft was again given Miranda warnings. This time he waived his rights and confessed to the robbery. Deft was then formally charged with robbery and is awaiting trial.
How should the court rule on Deft's pretrial motions, all based on the United States Constitution, to exclude the following evidence at trial:
a. His statement to Officer Jones at the scene of the arrest, a motion based on asserted violations of his rights under the Fourth, Fifth and Sixth Amendments? Discuss.
b. T he purse seized from Deft's car, a motion based upon asserted violations of his rights under the Fourth Amendment? Discuss.
c. The identification of Deft by Smith at the police station, a motion based on asserted violations of Deft's rights under the Sixth Amendment and Due Process Clause of the Fourteenth Amendment? Discuss.
d. His confession at the police station, a motion based on asserted violations of Deft's rights under the Fifth Amendment? Discuss.
e. If Deft's confession is ruled inadmissible at trial because of a violation of the Fifth Amendment, and he testifies at trial, will the Fifth Amendment violation preclude use of the confession to impeach the testimony that Deft gave on either direct or cross-examination? Discuss.
February 1995 Question 6 [Wills]
Gloria, a widow, signed a typewritten will in the presence of Tom and Larry, who, being present at the same time, witnessed Gloria’s signing, understood the document was Gloria’s will, and signed the will as witnesses. The will contained the following provisions:
1. $10,000 to my friend, Tom.
2. My residence to my only daughter, Dora, provided she survives me by thirty days.
3. All my Mega Corp stock to my friend, Max, requesting that he distribute it as indicated in a letter to be found with this will.
4. The residue of my estate to my only son, Seth.
Subsequently, Gloria and Dora were involved in an automobile collision. Dora was killed instantly, and Gloria died one day later in the hospital.
Gloria’s will is found in her safe deposit box together with a typewritten, signed, but unwitnessed letter requesting Max to distribute the Mega Corp stock to Ben, a needy cousin whom Gloria had assisted financially in the past. Max truthfully testifies that the letter was prepared after the will was executed and that he orally agreed with Gloria to distribute the stock as requested in the letter.
Dora is survived by her husband, Hank, and her daughter, Gail. In addition to Hank and Gail, Tom, Max, Ben and Seth all survived Gloria. Gloria’s net estate consists of her residence, Mega Corp stock, and $100,000 in cash.
What portion of Gloria’s estate, if any, should be distributed to each of Tom, Hank, Gail, Max, Ben and Seth? Discuss.
Assume that the applicable statutory law is the same as that of California.
July 1995, Question 2 [Constitutional Law]
Because teenage pregnancies have increased the number of school dropouts, the Board of Educationof City (Board) adopted an "Alternative Education Program" (AEP) for unmarried students underage eighteen who become pregnant. All such students must participate. AEP offers a special coreeducational curriculum supplemented with personal counseling and instruction on prenatal andinfant care designed to alleviate the educational, emotional, social and health problems confrontingunmarried teenage mothers. Once placed in AEP, the student remains a participant through the termof her pregnancy and until the end of the school year in which her pregnancy terminates.Pam, an unmarried sixteen year old eleventh grader at City High School, is pregnant. She wants toremain in her regular classes at City High School but has been assigned to AEP. She has sued theBoard in federal district court for declaratory and injunctive relief, seeking return to her originalclasses. Pam's complaint alleges that being assigned to AEP violates her right to equal protectionof the law guaranteed by the United States Constitution and penalizes her for exercising afundamental right protected by the substantive due process provision of the Constitution.Shortly after Pam's suit was filed, the school year ended and during the summer Pam suffered amiscarriage. The Board has transferred Pam back to her regular high school classes and has movedto dismiss her complaint on the grounds that : (1) the action is moot; and (2) the complaint fails tostate a claim for relief under the Constitution.How should the court rule on the issues raised by the Board's motion? Discuss.
July 1995, Question 3 [Torts]
Booker is the owner of The Bookstore. Walker, a clerical worker in a nearby office, came into The Bookstore every day at lunchtime to browse. Booker became annoyed because Walker read books and magazines but never bought anything.
Finally, Booker told Walker that he would call the police if Walker came into the store again.
Walker returned the next day, and Booker called the police. Booker made a citizen's arrest of Walker for violation of the local vagrancy ordinance that made it a misdemeanor to "loiter in an annoying fashion in any place open to the public."
Walker objected loudly to the arrest, yelling, "You can't arrest me, I didn't take anything .. "
Reporter overheard Walker's remarks. Reporter worked for The News, the local newspaper, and recognized Walker because one year earlier Walker had led a movement to remove certain books from the local high school library. Reporter thought that the police were arresting Walker for shoplifting and rushed back to the paper to file a story on the arrest.
The next day, The News reported that Walker had been arrested for shoplifting, in a story headlined: "Book Burner Arrested for Book Theft."
Walker was charged with vagrancy. The charge was dismissed on the ground that the vagrancy ordinance had long been construed to require actual disturbance of the peace, and in this case there was no actual disturbance.
1. What claims, if any, does Walker have against Booker? Discuss.
2. What claims, if any, does Walker have against The News? Discuss.
July 1995, Question 3 [Contracts] [Professional Responsibility]
In 1991, Lab entered into a written, signed contract with Disposal Specialists Co. (Disco) providing for disposal of Lab's hazardous waste products for 5 years at a cost to Lab of $40,000 per year. Paragraph 8(d) provides: "Disco agrees to remove the specified waste products from the Lab site within 48 hours of being notified that Lab's waste containment vessel is 80% filled."
At 4:30 p.m. on Friday, May 26, 1995 Lab notified Disco that the waste containment vessel was 90% full and that it was important that it be emptied. The Disco manager responded that the waste could not be picked up until the following Tuesday because the Memorial Day holiday was to be observed on Monday, May 29. Disco emptied the container on early Tuesday morning, but Lab's work was interrupted because, until then, the container was completely full. As a result, Lab incurred losses of $9,000.
On June 10, 1995, Lab informed Disco that it was terminating the contract because of the delayed pickup. In reply, Disco's manager asserted that the 48 hour deadline did not apply over holiday weekends and that he had mentioned this during the 1991 contract negotiations. In fact, Disco has gone beyond the 48 hour period on at least four holiday weekends during the last 3 years without complaint from Lab, and, twice, the Lab waste manager has approved a holiday weekend pickup that was 96 hours after notice. Disco's manager threatened to sue if Lab tried to terminate the contract.
The Lab waste manager tells Lab's attorney that Disco has committed criminal violations of environmental laws in its waste disposal operations and that he expects the attorney to use this information to convince Disco to agree to cancel the contract.
1. Is Lab entitled to terminate the contract with Disco? Discuss.
2. What ethical issues arise from Lab's request that its attorney use the information regarding Disco's violations of environmental regulations to encourage Disco not to press its contract claim? Discuss.
July 1995 Question 5 [Business Associations]
Dan is the president of Exco, a closely held corporation. He is also a member of its board of directors and a 10% shareholder of the corporation. For the past five years, Exco has averaged annual net pre-tax earnings of 50% of its gross sales. During this period, Exco has not paid a dividend or made any other distribution to its shareholders. This was planned so that Exco will have substantial retained earnings to enhance the chances of its sale to another company.
With the approval of his fellow directors, Dan has just started negotiations with officers of Morcorp to sell Exco to Morcorp. Dan wants to complete arrangements for the sale of Exco to Morcorp on an expedited basis within the next 45 days, because he believes that a brief, present high demand for Exco's products will increase Exco's sale price. He has neither submitted the plan to Exco's shareholders for approval, nor has he obtained a review of the proposed terms of sale by outside consultants.
After the negotiations started, Dan was interviewed by a reporter for The Stock Market Times, a financial newspaper with nationwide circulation, about persistent rumors that Exco is for sale at a price which exceeds the book value of its stock. Dan is accurately quoted in The Stock Market Times as saying "There are no pending discussions regarding the sale or merger of Exco."
Polly owns 5% of Exco's shares. Polly is concerned that she has received no dividends on her Exco stock despite Exco's recent earnings. Polly has commenced a lawsuit against Dan and the other Exco board members seeking a decree compelling the defendants to declare and Exco to pay a dividend on its stock. In response to Polly's suit, Dan and the other directors voted to have Exco indemnify them for costs of defense. While her suit is pending, Polly has learned of the recent negotiations for sale of Exco to Morcorp. She has amended her complaint to enjoin the sale and obtain damages from Dan and the other directors for alleged breaches of fiduciary duty in the negotiations for an expedited sale and for Dan's false assertion reported in The Stock Market Times that Exco was not for sale.
1. How should Polly's attempt to compel payment of a dividend be decided? Discuss.
2. Can Exco lawfully provide indemnity to Dan and the other Exco directors for their legal costs incurred in defending Polly's suit? Discuss.
3. Are Dan and the other Exco directors liable to Polly because of Dan's statement quoted in The Stock Market Times and if so, to what relief is Polly entitled? Discuss.
4. What responsibilities do Dan and the other Exco directors have in seeking to effect the expedited sale of Exco to Morcorp, and have they fulfilled those responsibilities? Discuss.
July 1995 Question X [Remedies]
A woman who identified herself as Smith brought an auto into Carson's AutoRepair Shop (CARS) for repairs. CARS completed the repairs for $5000, which is a fair price for the work done and the parts and materials supplied. The day the repair work was completed, police informed CARS that the auto had been stolen by Smith and that Brown was the owner. Police took possession of the auto and returned it to Brown. CARS has not been paid and Smith has disappeared. Brown did not have insurance on the auto. A week after recovering the auto,Brown sold it and transferred title to Jones for $8000, the fair market value of the auto in its repaired condition. Brown deposited the $8000 in his bank account,bringing the balance in the account to $22,000. a week after making the deposit,Brown withdrew $20,000 and lost all of it gambling. One day later, Brown won $1000 in the state lottery and deposited that amount into his bank account. no other changes in the account have taken place.What remedies, if any, does CARS have:1.Against Brown? Discuss.2.Against Jones? Discuss.