Feb2011事業組織＋専門家責任（カリフォルニア州司法試験）

カリフォルニア州司法試験を受験するに際し、過去問を検討したので共有いたします。問題文の和訳は参考程度です。

Feb2011事業組織＋専門家責任

Bob owns 51 percent of the shares of Corp., a California corporation. Cate owns 30 percent. Others own the remaining shares. ボブは、カリフォルニア州の会社であるCorp.の株式の51％を所有し、Cateは30％を所有し、残りの株式は他の人が所有している。
Bob and Cate have entered into a shareholder agreement stating they would vote their shares together on all matters, and that, if they fail to agree, Dave will arbitrate their dispute and Dave’s decision will be binding. Bob and Cate also executed perpetual irrevocable proxies granting Dave the power to vote their shares in accordance with the terms of the shareholder agreement. Attorney Al handled Corp.’s incorporation and drafted the shareholder agreement and the proxies. ボブとケイトは、すべての事項について自分たちの株式を一緒に投票すること、もし合意できない場合はデイブが紛争を仲裁し、デイブの決定が拘束力を持つことを明記した株主同意書を締結した。また、ボブとケイトは、株主契約の条項に従って、デイブに自分たちの株式を投票する権限を与える永久取消不能委任状を締結した。アル弁護士は、会社の設立を担当し、株主契約書と委任状を作成した。
Bob and Cate have been able to elect the entire board of directors every year. The board currently consists of Bob, Cate, and Bob’s wife, Wanda. Bob and Wanda decided, as directors, to sell substantially all of Corp.’s assets to Bob’s sister, Sally. Cate thinks the price is too low. Bob claims he no longer regards their shareholder agreement as binding. He has gone to Al for advice in the matter, and Al has agreed to provide it. ボブとケイトは、毎年、取締役会の全員を選出することができた。現在の取締役会は、ボブ、ケイト、そしてボブの妻であるワンダで構成されている。ボブとワンダは、取締役として、Corp.の実質的な全資産をボブの妹であるサリーに売却することを決定した。ケイトはその価格が低すぎると考えている。Bobは、もはや株主間の契約に拘束力はないと主張している。Bobは、株主間の契約にはもう拘束力がないと主張し、Alに助言を求め、Alはそれに応じたという。
At the shareholders’ meeting at which the matter is to be put to a vote, Bob announces he is voting his shares in favor of the sale. Dave says that since Bob and Cate disagree, he is voting the shares against the sale. 株主総会で、ボブは売却に賛成することを表明する。Daveは、BobとCateの意見が一致しないので、売却に反対の株式を投票すると言う
1. Is the shareholder agreement between Bob and Cate enforceable? Discuss. ボブとケイトの間の株主同意書は法的効力？
2. Are the perpetual proxies executed by Bob and Cate enforceable? Discuss. ボブとケイトが実行した永久委任状には強制力
3. Would any sale of Corp.’s assets to Sally be voidable? Discuss. サリーへの会社の資産の売却は無効となるか。
4. What ethical violations, if any, has Al committed? Discuss. Answer according to California and ABA authorities. アルはどのような倫理違反を犯したか。カリフォルニア州とABAに基づいて

答案構成

I. Shareholder agreement between Bob (B) and Cate (C)

Voting Agreement: 

SHs may enter into a binding voting agreement, which provides for the manner where they will vote. Under such an agreement, Sis retain ownership of their stock, and the contract may be enforced. It does not need to be filed with the corporation and there is no time limit. 

Here, Al (A) drafted the agreement, so we can assume based upon the facts given that it was properly drafted an is a valid contract.

II. Perpetual proxies executed by B and C

Proxy: 

A shareholder may vote in person or by proxy. A proxy vote must be executed in writing and delivered to the corporation or its agent. A proxy is valid for 11 months unless otherwise specified. A proxy is revocable unless it expressly provides that it is irrevocable. Any act by the shareholder that is inconsistent with a proxy, such as attending a shareholder meeting and voting the shares, revokes the proxy. 

Here, B and C executed perpetual irrevocable proxies granting D the power to vote their shares in accordance with the terms of the shareholder agreement. A drafted the proxies, and they were executed, but it is unclear whether was delivered to Corp. A proxy is valid for 11 months, but i can be longer, as it was in this case, if specified otherwise.

III. Sale of corporate assets to Sally (S)

Fundamental Corporate Change: 

A transfer involving all, or substantially all, of the corporation’s assets outside the usual and regular course of business is a fundamental corporate change for the transferor corporation. To be a valid transfer of corporation’s assets, the board of directors and SHs must approve, and the required documents must be filed with the state.

Board of Director’s Approval: For the board of directors’ acts at a meeting to be valid, a quorum of directors must be present at the meeting. A majority of all directors in office constitutes a quorum. Typically, the assent of a majority of the directors present the time the vote takes place is necessary for board approval. 

Here, the board consists of B, C, and W. 

SH Approval: SHs approval for fundamental corporate changes like an asset transfer require a majority vote, but the shareholders’ meeting at which the vote is taken is subject to a quorum requirement, which is usually a majority of shares entitled to vote. 

Here, B is present at the meeting, and D as the proxy holder for C is voting against the sale. B owns 51% of the shares of Corp., and C owns 30%. Since 51% is the majority of votes entitled to vote, B can vote his shares in favor of the sale as the controlling shareholder. Since he is not selling his shares, but rather the assets of Corp., his fiducially duty to minority shareholders as a majority shareholder is not triggered. Although both the board of directors and the shareholder approved the asset transfer, its validity is still subject to the fiduciary duties of the directors.

Duty of Care: 

Directors have a duty to act with the care of an ordinarily prudent person in a like position and similar circumstances. As an objective standard, the director is presumed to have the knowledge and skills of an ordinarily prudent person. In deciding how to act, the director is also required to use any additional knowledge or special skills that he possesses. 

Here, C’s opinion in conjunction with the fact that B sold the assets to his sister lends credence to the argument that the price was too low. B should have investigated the worth of Corp.’s assets, presented this information to the board and shareholders, and then mad an informed decision.

Business Judgment Rule: 

Directors may be protected under the BJR. Courts will not second guess a business judgment if, at the time it was made, it was reasonably informed, and made in good faith. Directors will still be liable for decisions which are grossly negligent or reckless. 

Here, B can argue that he was doing in the best interest of Corp., but B did not show objectivity because he arguably had a material interest in the sale sin it was to his sister. Even if he did not personally profit from the transaction, his sister would be gaining ownership of substantially all of Corp.’s assets, and this would likely cloud his judgment when making a decision in the best interests Corp.

Duty of Loyalty: 

Ds are fiduciaries of Corp, duty of loyalty, Ds must act in the corporation’s best interests and must not engage in self-dealing. 

Here, B placed his own interests above that of Corp.’s when he tried to sell of most of its assets at a low price to his sister. As discussed above, B should have asked for a fair price for the sale of Corp.’s assets. In addition, no reason was given for why B was even selling all of the assets to S. Without further information it is fair to assume that this sale (even at a fair price) may have not been in the best interest of the corporation. We do not know whether S had any prior background in running Corp., or what her intentions were regarding Corp. once she gained ownership.

Self-Dealing: 

A director who engages in a conflict-of-interest transaction with his own corporation, also known as self-dealing, has violated his duty of loyalty. A conflict-of-interest transaction is any transaction between a director and his corporation that would normally require approval of the board of directors and that is of such financial significance to the director that it would reasonably be expected to influence the director’s vote on the transaction. In addition, a director must not profit at the corporation’s expense. Here, as discussed above, B is engaging in self-dealing by selling Corp.’s assets at a low price to his sister. This is of great financial significance to B because it is his sister, so she may be offering him an incentive to influence his decision the sale price.

Safe Harbor: Disinterested Directors approval: A self-dealing transaction may enjoy protection if a majority of disinterested directors approve it after disclosure of all material facts is made to them.

IV. Ethical violations of Al (A)

Duty of Loyalty: 

Lawyers owe clients a basic duty of loyalty and must avoid conflict of interests. 

Here, A owes a duty of loyalty to B, C and Corp. Under the Model Rules, a lawyer must not represent a client if doing would be directly adverse to the interests of another current client or if there is a significant risk that the representation of the client will be materially limited by the lawyer’s responsibilities to the current client, unless: (i) the lawyer reasonably believes that she will be able to provide competent and diligent representation to each affected client; (ii) the representation is not prohibited by law; (iii) the representation does not involve the assertion of a claim by one client against another client; and (iv) each affected client gives informed consent, confirmed in writing (CA: informed written consent).

Duty of Confidentiality: 【利益相反のときお約束で書いておく】

Under the Model Rules, a lawyer is prohibited from disclosing information relating to the representation of a client, unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or other specific exceptions apply. 

Here, A should advise both parties to obtain separate legal counsel instead of continuing to represent them, because doing so, he may disclose confidential information receive by C in representing B.

Duty of Competence: 

Under the Model Rules, a lawyer is obligated to provide competent representation to a client and must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. The CA RPC requires that a lawyer not intentionally, recklessly, or repeatedly fail to perform legal services with competence. 

Here, it is not clear if the proxies were drafted correctly. Therefore, A may have breached his duty of competence. 

コメント

これは難しめ問題です。論点多いし、会社と法曹倫理混ぜるなんてどうせ２月の試験だろう？って思ったらその通りです。

株主間契約と委任状の点については、LLMでビジネスアソシエーションとか会社法とか取っていれば知っているはずの論点ですが、そうでない場合、もしかしたら知らないかもしれません。その場合には常識的なルール、例えば、株主間契約は普通に使われているから、普通に強制可能ってしてOKだろうが、委任状はさすがに書面が必要っぽいからルールに書いておくかぁ、とか、そういった考えで流せばなんとかなると思います。

会社法の他の論点は、Aランク論点だと思うので、落とさないようにしたいところです。時間との兼ね合いで、ルールを短くしたほうがいいかもしれません。時間がなければ、ルールより当てはめ！最悪、イシューのあとは、ルールを飛ばして、当てはめでOK

融合問題の時の法曹倫理は、細かい付随論点は無理だと思いますので、Duty of Loyaltyだけしか記載していない場合でも、別に落ちるような答案にはならないと思います。

ただ、別の過去問で、 似たような事案でDuty of LoyaltyだけではなくDuty of Confidentialityを検討するという問題があったので、Duty of Confidentialityは思いつく受験生は一定数いたのではないか、と思いました。

この過去問は時間内に書き上げるのが非常に難しい問題だったと思います。