Juris Doctor (JD) Business Associations and Professional Responsibility Syllabus

What is a limited liability partnership (LLP) and what liability shield does it provide?

A general partnership that files a statement of qualification to become an LLP; partners are not personally liable for the partnership's obligations (whether arising in tort or contract) beyond their investment, though they remain liable for their own wrongful acts.

Compare an LP and an LLP in terms of partner liability.

In an LP, the general partner has unlimited liability while limited partners are shielded. In an LLP, all partners receive a liability shield for partnership obligations while retaining management rights, with no required class of fully-liable general partner.

What events cause dissociation of a partner under RUPA?

A partner's notice of withdrawal, an event specified in the agreement, expulsion, bankruptcy, death or incapacity, or appointment of a receiver; dissociation does not necessarily cause dissolution.

Distinguish dissociation from dissolution of a partnership.

Dissociation is a single partner ceasing to be associated with the business; dissolution is the commencement of the winding-up process that ends the partnership entity. A partner can dissociate without triggering dissolution if the business continues.

What is the order of distribution of partnership assets upon winding up?

First pay creditors (including partners who are creditors), then settle partners' accounts: each partner's account is credited with contributions and profits and charged with losses; the resulting balance is paid out to each partner.

What is the difference between winding up and termination of a partnership?

Winding up is the process of liquidating assets, paying creditors, and distributing remaining property; termination is the point at which the winding up is complete and the partnership ceases to exist.

During winding up, what authority do partners retain to bind the partnership?

Partners retain authority to do acts appropriate for winding up (completing existing business, collecting and distributing assets) and can bind the partnership to third parties who lack notice of dissolution; they cannot undertake new business.

What steps are required to validly form a corporation?

File articles of incorporation with the state naming the corporation, registered agent/office, number of authorized shares, and incorporator(s); after filing, hold an organizational meeting to adopt bylaws and appoint directors/officers. The corporation exists upon filing (conclusive proof of formation).

What is a de facto corporation and the corporation by estoppel doctrine?

De facto corporation: despite a defective incorporation, an entity is treated as a corporation if there was a good-faith attempt to comply with a valid statute and the parties acted as a corporation. Corporation by estoppel: a party who dealt with the business as a corporation is estopped from denying its corporate status to reach owners personally.

What is 'piercing the corporate veil' and when do courts apply it?

Disregarding the corporate entity to hold shareholders personally liable, typically when shareholders abuse the corporate form—e.g., commingling assets/undercapitalization (alter ego), or using the corporation to perpetrate fraud or injustice.

What is a promoter's liability for pre-incorporation contracts?

A promoter is personally liable on pre-incorporation contracts and remains liable even after incorporation unless there is a novation; the corporation becomes liable only if it adopts the contract.

What is the business judgment rule?

A rebuttable presumption that directors acted on an informed basis, in good faith, and in the honest belief the action was in the corporation's best interests; courts will not second-guess such decisions absent fraud, illegality, conflict of interest, or gross negligence.

What are the principal fiduciary duties of corporate directors and officers?

The duty of care (act with the care of an ordinarily prudent person, make informed decisions) and the duty of loyalty (act in the corporation's best interests, avoiding self-dealing and usurping corporate opportunities).

How can a director defend a self-dealing (interested) transaction?

By showing the transaction was fair to the corporation, or that it was approved after full disclosure by a majority of disinterested directors or by disinterested shareholders. The conflict alone does not void the deal if one of these safe harbors is met.

What is the corporate opportunity doctrine?

Under the duty of loyalty, a director or officer may not take for themselves a business opportunity that the corporation has an interest or expectancy in, or that is closely related to its business, without first offering it to the corporation.

What rights does a shareholder have to inspect corporate books and records?

A shareholder may inspect books and records for a proper purpose (one reasonably related to their interest as a shareholder), upon written demand stating the purpose, typically with five days' notice.

What is the difference between a direct and a derivative shareholder suit?

A direct suit enforces the shareholder's own rights (e.g., voting, dividends). A derivative suit enforces a right belonging to the corporation against wrongdoing insiders; recovery generally goes to the corporation and requires a pre-suit demand (or excuse) and contemporaneous ownership.

What does Section 10(b) and Rule 10b-5 prohibit?

Fraud in connection with the purchase or sale of any security: misstatements or omissions of material fact, made with scienter, in connection with a securities transaction, with reliance, causation, and damages; it also covers insider trading.

What is insider trading under Rule 10b-5 and the tipper/tippee liability test?

Trading on material non-public information in breach of a duty. A tipper is liable if they disclose for personal benefit; a tippee is liable if they knew or should have known the tipper breached a duty for personal gain (Dirks). The misappropriation theory also reaches outsiders who breach a duty to the information's source.

What does Section 16(b) of the 1934 Act require?

Disgorgement of 'short-swing' profits—any profit by a corporate insider (director, officer, or >10% shareholder of a reporting company) from buying and selling (or selling and buying) the company's equity securities within a six-month period, regardless of intent.

What is a limited liability company (LLC) and how is it formed?

A hybrid entity that combines the limited liability of a corporation with the pass-through taxation and flexibility of a partnership; it is formed by filing articles of organization with the state, and its operations are typically governed by an operating agreement.

What is the difference between a member-managed and a manager-managed LLC?

In a member-managed LLC, all members participate in management and can bind the LLC. In a manager-managed LLC, designated managers run the business and have agency authority, while non-manager members are passive and generally cannot bind the LLC.

What liability protection and tax treatment do LLC members enjoy?

Members are not personally liable for the LLC's debts and obligations (liability limited to their investment), and by default the LLC is taxed as a pass-through entity (income/loss flows to members), avoiding entity-level tax.

When is a lawyer-client relationship formed?

When a person reasonably relies on a lawyer to provide legal services and the lawyer knows or should know of that reliance and does not decline; a formal contract or fee is not required, and the relationship can be implied from conduct.

What are the rules governing attorney fees under the Model Rules?

Fees must be reasonable (considering time, skill, customary fees, results, etc.); contingent fees must be in writing but are prohibited in criminal and domestic relations matters; fee splitting between lawyers of different firms requires proportional work or joint responsibility, client consent, and a reasonable total fee.

What duties does a lawyer owe regarding client funds and property?

The lawyer must safeguard client property, keep client funds in a separate trust account (no commingling with the lawyer's own funds), maintain complete records, and promptly deliver funds/property the client is entitled to receive.

What is the scope of the duty of confidentiality under Model Rule 1.6, and how does it differ from the attorney-client privilege?

The ethical duty of confidentiality covers all information relating to the representation, whatever the source, and applies in all contexts. The attorney-client privilege is a narrower evidentiary rule protecting confidential communications between lawyer and client from compelled disclosure in legal proceedings.

What are the key exceptions allowing a lawyer to reveal confidential information?

To prevent reasonably certain death or substantial bodily harm; to prevent/rectify client crime or fraud causing substantial financial injury in which the lawyer's services were used; to secure legal advice about compliance; to establish a claim/defense in a dispute with the client; or to comply with law or court order.

How is a concurrent conflict of interest defined under Model Rule 1.7, and when may it be waived?

A concurrent conflict exists if representation of one client is directly adverse to another, or there is a significant risk that representation will be materially limited by responsibilities to another client, former client, third person, or the lawyer's own interests. It may be waived if the lawyer reasonably believes competent representation is possible, it is not prohibited by law, the clients are not opposing each other in the same litigation, and each gives informed written consent.

What is the duty to a former client under Model Rule 1.9 and the test for disqualifying conflicts?

A lawyer may not represent a new client whose interests are materially adverse to a former client in the same or a substantially related matter without the former client's informed written consent. Matters are 'substantially related' if they involve the same transaction or a substantial risk that confidential information from the prior representation would materially advance the new client's position.

What are a lawyer's duties of candor toward the tribunal under Model Rule 3.3?

A lawyer must not knowingly make a false statement of fact or law to a tribunal, must correct prior false statements, must disclose directly adverse controlling legal authority not disclosed by opposing counsel, and must take remedial measures (including disclosure) if the lawyer learns a client or witness has offered false evidence.

What may a lawyer do when a criminal defendant client insists on testifying falsely?

The lawyer should try to dissuade the client; if unsuccessful, the lawyer may seek to withdraw, and if that fails must take reasonable remedial measures, which may include disclosure to the tribunal, balancing the client's right to testify with the duty of candor (narrative approach is one historical option).

What are a lawyer's duties of truthfulness toward third persons and non-clients?

A lawyer must not knowingly make a false statement of material fact or law to a third person, and must not fail to disclose material facts when necessary to avoid assisting a client's crime or fraud (subject to confidentiality); the lawyer must also respect the rights of third persons.

What is the 'no-contact' rule regarding represented persons (Model Rule 4.2)?

A lawyer may not communicate about the subject of the representation with a person the lawyer knows is represented by another lawyer in the matter, without that lawyer's consent or legal authorization.

What conduct constitutes grounds for professional discipline under Model Rule 8.4?

Violating the Rules, committing a criminal act reflecting adversely on honesty/trustworthiness/fitness, engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, conduct prejudicial to the administration of justice, or stating an ability to improperly influence a government official.

What is a lawyer's duty to report professional misconduct (Model Rule 8.3)?

A lawyer who knows another lawyer has committed a violation raising a substantial question as to that lawyer's honesty, trustworthiness, or fitness must report it to the appropriate professional authority, except where the information is protected by confidentiality (Rule 1.6) or learned through an approved lawyers assistance program.

How do unauthorized practice of law and multijurisdictional practice rules operate (Model Rule 5.5)?

A lawyer may not practice in a jurisdiction where not admitted in violation of that jurisdiction's regulations, nor assist a nonlawyer in unauthorized practice; limited temporary multijurisdictional practice is permitted (e.g., association with local counsel, pro hac vice admission, or work reasonably related to the lawyer's home-state practice).

What are the rules on advertising and solicitation of clients?

Lawyer advertising is permitted if not false or misleading and must include the name/contact of a responsible lawyer; live in-person or real-time electronic solicitation for pecuniary gain is generally prohibited unless directed at other lawyers, family, close personal friends, or prior clients.

What are the imputation of conflicts and screening rules under Model Rule 1.10?

Generally, a conflict of one lawyer in a firm is imputed to all lawyers in the firm. Imputation can be avoided when the conflict is based on a personal interest with no significant risk to others, or, for a lawyer who moved firms, by timely screening the disqualified lawyer, providing written notice to the affected former client, and ensuring the screened lawyer receives no part of the fee.

What is the difference between a corporation's authorized, issued, and outstanding shares?

Authorized shares are the maximum number the articles permit the corporation to issue; issued shares are those actually sold/distributed; outstanding shares are issued shares currently held by shareholders (issued minus treasury/reacquired shares).