CA Bar Exam Sample Question
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Sample July 2019 Ca Bar Exam Professional Responsibility Question
Fleming’s Fundamentals of Law is conducting a Final Review Seminar DVD presentation at California Southern Law School for the following subjects;
Larry is an associate lawyer at the ABC Firm (ABC). Larry has been defending Jones Manufacturing, Inc. (Jones) in a suit brought by Smith Tools, Inc. (Smith) for failure to properly manufacture tools ordered by Smith. XYZ Firm (XYZ) represents Smith. Larry has prepared Jones’ responses to Smith’s discovery requests. Peter is the partner supervising Larry at ABC in the Smith v. Jones case. Peter has instructed Larry to file a motion to compel discovery of documents that Smith claimed contains its trade secrets. Larry researched the matter and told Peter that he thought that the motion would be denied and may give rise to sanctions. Peter, who had more experience with trade secrets, told Larry to file the motion.
Larry also told Peter about a damaging document that Larry found in the Jones file that would be very helpful to Smith’s case. Larry knows that the document has not been produced in discovery. The document falls into a class of papers that have been requested by Smith. Larry knows of no basis to refuse the production of the document. Peter told Larry to interpose hearsay, trade secrets, and overbreadth objections and not to produce the document.
Larry recently received an attractive job offer from XYZ.
- May Larry ethically follow Peter’s instructions to file the motion? Discuss.
- What are Larry’s obligations in relation to the damaging document? Discuss.
- What ethical obligations must Larry respect with regard to XYZ’s job offer?
Answer according to California and ABA authorities.
FLEMING’S Sample Answer - Bar Exam Practice Test
1. May Larry ethically follow Peter’s instructions to file the motion?
Rule 5.2 Responsibilities of a Subordinate Lawyer
The main issue is how Larry (L) should respond to Peter’s (P) directions when Larry is a subordinate lawyer and Peter is a supervising lawyer. Under ABA Model Rule 5.2, a subordinate lawyer is bound by the Rules of Professional Responsibility (MR) notwithstanding that the subordinate acted at the direction of a supervising lawyer.
When lawyers in a supervisor-subordinate relationship encounter a matter involving professional judgment as to the lawyers’ ethical duties and can “reasonably” or “arguably” be answered only one way, the duty of both lawyers is clear and they must follow the ethical rules. Accordingly, the subordinate lawyer must comply with his or her obligations under the rules despite a supervisor’s direction to the opposite. If the question is “reasonably arguable” (under the MR) or “reasonable” (under the California Rules of Professional Conduct (CRPC)), the supervisory lawyer may assume responsibility for determining which of the alternatives to select, and the subordinate will not violate the rules by following the supervisory lawyer’s directions.
However, if the lawyer “knows” (under the MR) or “believes” (under the CRPC) that the supervisor’s proposed action would result in a violation of these rules, the subordinate is obligated to communicate his or her professional judgment regarding the matter to the supervisory lawyer under the California version of 5.2. The ABA MR 5.2 does not require the subordinate to communicate his or her professional judgment (or disagreement) to the supervisor so this is an important distinction between the MR and the CRPC.
Here, Larry (L) is questioning Peter’s (P) direction that Larry file a motion to compel in this situation. Larry is concerned that filing the motion to compel would be bringing a frivolous claim which could then violate the MR and RPC’s duty to avoid frivolous claims. Under MR and the RPC 3.1, Meritorious Claims and Contentions, an attorney must not bring a cause of action or claim that has no basis in law or fact, or where the attorney has no good faith argument for an extension of existing law or a change in existing law.
Here, Peter (P) is instructing Larry (L) to file a motion to compel discovery documents that Smith (S) claimed to contain trade secrets. Trade secrets are not typically discoverable. Larry is concerned that because he believes that the motion would more than likely be denied and that the motion is frivolous in nature. As such, filing such a motion might violate both the MR and the RPC if it is in fact frivolous.
However, the facts are clear that Larry only "thought" that the motion to compel would be denied. Larry having a “thought” about the motion versus “knowledge” or knowing with certainty that the motion would be denied suggests an important difference under both the MR and CA rules. If Larry is not certain that the motion is frivolous and there is a basis in law or fact to bring the motion, then Larry would not be violating the ethical rules.
Further, the facts indicate that Larry believed the motion "may give rise to sanctions," not that the motion absolutely would be denied or give rise to sanctions. Peter, as the senior lawyer, is much more experienced with trade secrets (and the fact pattern emphasizes this fact) and Peter as the supervising attorney directed Larry to file the motion to compel. Given Peter’s experience in this area of law and the fact that Larry ultimately believed there was a basis in law for the motion to compel, Larry likely did not violate any ethical rules under Rule 5.2.
Further, Larry did ‘speak’ up and communicate his opinion to Peter about the motion’s likelihood of being denied by the court—so Larry also met the higher standard of the rule which requires communication in CA under Rule 5.2. On balance, a court is likely to find that the motion is not a frivolous claim in violation of Rule 3.2 because there was some basis in law for filing the motion to compel.
Because the motion was not frivolous, Larry did not violate any ethical rules by carrying out Peter’s demands with regard to filing the motion to compel—despite the fact that Larry disagreed with Peter’s strategy. Rule 5.2 under both the MR and the CRPC try to strike a balance between following the instructions of the supervising attorney while at the same time maintaining one’s independent professional judgment. If the minds of “reasonable” attorneys would differ as to whether the action ordered by the supervising attorney would constitute a violation of an ethical duty, then the subordinate attorney must abide by the supervising attorney's instructions—and would not be liable for an ethics violation. If no reasonable minds would differ as to the propriety of a course of action, however, or if the subordinate attorney knows that the supervising attorney’s request violates an ethical rule or duty, then the associate attorney must refuse to take the action.
Here, given that the decision to file the motion to compel had some basis in law (and therefore was “arguable”) in conjunction with Peter’s superior knowledge regarding trade secrets leads to the conclusion that Larry did not violate either Rule 3.2 or 5.2 of either the MR or CRPC.
Rule 8.3 Reporting Professional Misconduct
With regard to the motion, Larry (L) did not have an obligation to report Peter’s actions assuming that Peter (P) or Larry (L) went ahead and filed the motion. A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
Under the ABA Model Rules, an attorney has a duty to report any ethical violations that they know another attorney has committed. The CRPC is slightly different and does not have a corresponding requirement that a lawyer must report ethical violations of others, but the California rules do impose a duty on attorneys to self-report when the attorney knows that he or she has committed ethical violations.
Here, under the MR, it is unlikely that L violated MR 8.3 by failing to report P’s instructions concerning the motion to compel (which is not likely a frivolous claim) because L did not know for a certainty that the court would deny the motion. The facts above emphasized that L “thought” that the motion might be denied and “may” give rise to sanctions. L did not know with “certainty” and as such, L was not under a duty to report. Further, L did not have a duty to self-report under CRPC because he did not commit an ethical violation by filing the motion (because it was not frivolous). As such, L has not violated his duty to report ethical violations under 8.3 of the MR or under CRPC.
2. What are Larry’s obligations in relation to the damaging document?
Rule 1.6, Confidential Information of Clients
Under both the MR 1.6 and CA 1.6 (and also CA 3-100) an attorney must not disclose confidential information relating to the representation of a client unless authorized by the express written consent (informed written consent in CA, informed consent confirmed in writing under the MR), or unless impliedly authorized in order to carry out the representation.
Here, L has discovered a document that contains information relating to the representation of Jones. Such information is potentially harmful to L’s client, but beneficial to the opposition. Further, the information has likely been legitimately requested in discovery by the opposition—so there is a corresponding duty on both the client and the attorney to respond truthfully to such discovery requests and not to conceal evidence.
In addition, Rule 1.6 may permit L to provide the damaging document in discovery as the client’s consent was arguably “impliedly” authorized by the client in terms of the attorney carrying out the representation of the client, i.e., responding to discovery requests. The “implied” authorization in order to carry out the representation is one situation in which MR and CRPC 1.6 permit an attorney to reveal client information pursuant to a discovery request. Here, there is nothing in the facts to suggest that the client stated specifically that the attorneys should not disclose the document—so there’s no revocation of the client’s implied consent.
Therefore, it is quite possible L would not be violating his duty of confidentiality to his client by turning this document over in response to the discovery request—and in fact, L may have a corresponding duty of candor to the court (Rule 3.3) to comply with the discovery request.
However, this is easier said than done—particularly given that P, the supervising attorney, has instructed L to object to the discovery request. P has instructed L to raise hearsay and other objections to the discovery request that would essentially “hide” the document and/or prevent the opposition from getting the document. In that case, L would have knowledge that Peter’s request would be unethical so L could not carry out that request ethically under various ethical rules, namely Rule 1.3, the Duty of Diligence, in not concealing evidence, and under the subordinate lawyer duties of Rule 5.2 (see above) which would require L, as the subordinate lawyer, to communicate to P about his concerns (under the CRPC, specifically).
Rule 1.3, Duty of Diligence
L has duties as an attorney under Rule 1.3 of both the MR and CRPC, to provide reasonably diligent and prompt representation. Under the CRPC, an attorney must be committed and dedicated to his or her client's cause. However, this duty does not require an attorney to press for every available advantage. And an attorney must not use offensive or overly aggressive tactics to accomplish the attorney’s goals in an effort to zealously advocate for his or her client.
Here, L may need to balance the need to protect his client's interests against L’s duty not to conceal evidence, and L’s duty of candor to the court (and truthfulness to the opposing party) in disclosing this information pursuant to the opposition’s discovery requests. L must be dedicated to protecting his client's interests. However, this duty must be balanced with the duty of candor to the tribunal and also the duty of fairness/truthfulness to opposing counsel.
Rule 3.4, Fairness to Opposing Party and Counsel
Under Rule 3.4 of both the MR and CRPC, a lawyer shall not unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.
Here, L has discovered a damaging document in the Jones file. L knows that the document has not been produced in discovery, but L also knows that it falls into the class of papers that have been requested by Smith, and L believes there is no real basis for refusing to produce the document. P has instructed L not to disclose the document and instead, to object to its discovery because it is “hearsay,” “trade secrets” and the document request is “overbroad.”
L’s concern is that by complying with P’s directions and failing to disclose the document, L is intentionally and knowingly obstructing Smith's access to evidence in violation of Rule 3.4. Although L could argue that P told him to do this and that as a subordinate attorney he had to “trust” P’s superior knowledge and judgment (Rule 5.2, see above) the facts also state that L "knows of no basis to refuse the production of the document."
Here, under Rule 5.2, there does not appear to be a “reasonable” or “arguable” basis for refusing to produce the document and as such, the decision whether or not the document should be produced according to the discovery request is not “arguable.” Rule 5.2 would not likely provide L with a safe harbor if L acted in accordance with P’s directions. In fact, under CRPC 5.2, L would be required to “speak up” and communicate to P and tell P that L has serious concerns about the ethical propriety of raising frivolous objections to the discovery request. Notably, the facts are silent on whether L communicated his concerns to P which L was required to do under CRPC 5.2. In addition, L should have at least conducted some independent research on whether the objections were legally sustainable or not. L may be in violation of CRPC 5.2 by failing to speak up to P.
If L silently goes along with P’s directions and objects to the discovery request under “hearsay,” “trade secrets” or that the request was “overbroad,” and L conceals this evidence, then L has violated Rule 3.4 by obstructing Smith's access to the evidence.
L has also likely violated CRPC 5.2 by failing to speak up to P—also because L knew the discovery objections were frivolous. L can only avoid liability for violating an ethical duty if there is a basis in law or fact on which reasonable lawyers might differ. If reasonable attorneys would not differ in their assessment of whether an attorney was required to produce the document, then L would violate the ethical rules by objecting to the discovery request and withholding evidence that L knew was relevant.
Following Peter’s instructions in this instance would constitute L making a frivolous claim or defense, and, therefore, would cause L to violate both the MR and CRPC.
For this reason, L must either turn over the document or refuse to offer those objections.
Rule 3.3, Duty of Candor
Under Rule 3.3 of both the CA RPC and MR, an attorney owes a duty of candor to the court and must not knowingly make a false statement of law or fact to the court. If such a false statement is made and the attorney learns of it, an attorney must promptly correct such false statements.
Here, if L files these objections, or raises them in opposition to a motion to compel, then it is possible that he is violating his duty of candor to the court. Although discovery is not literally “in front of the court,” the parties have entered their appearances in the case and an attorney is certifying the veracity of his or her client’s responses to discovery by signing the discovery responses.
If the harmful document does not legitimately contain hearsay, trade secrets, or if the request for the document was not overbroad, then L may run afoul of Rule 3.3 as well. Making those objections would be making false statements of law and fact, and L will have violated his duty of candor to the court. For this reason, L should exercise great caution in ensuring that he does not violate his duty of candor.
3. What ethical obligations must Larry respect with regard to XYZ’s job offer?
L's ethical obligations with regard to XYZ's job offer involve the conflict of interest rules and also an attorney’s corresponding duties of loyalty confidentiality under both the MR and the CRPC. The conflict of interest rules govern an attorney’s relationship with current, past (and also prospective) clients. Broadly speaking, an attorney owes all clients, past and present, a duty of loyalty and a duty of confidentiality. There are separate conflict of interest rules that govern each of these client relationships.
Rule 1.7, Concurrent Conflict of Interest; and Rule 1.9, Former Clients
Under Rule 1.7, when there is a substantial risk that the attorney's representation will be materially limited due to their own interests, or the competing interests of current clients, then there is a conflict of interest and the attorney cannot proceed with the representation unless the attorney obtains the informed consent of the client, confirmed in writing.
Under MR and CRPC 1.9, a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing (in CA, “written informed consent”). Further, a lawyer cannot take on a representation of a client adverse to a former client in a substantially related matter if the lawyer learned confidential information about the client (and the CRPC references CA Bus. & Prof. Code, §6068—and its confidentiality protections as well).
Both Rule 1.7 and Rule 1.9 are based on the duties of loyalty and confidentiality—with the duty to former clients resting primarily on the duty of confidentiality.
Here, L has been in the process of representing Jones in a suit between Jones and Smith. L is now entertaining an offer to join XYZ, the firm that is currently representing Smith in the same suit against Jones. Regardless of whether L takes on the case (if he goes to work for XYZ) or just works at the new firm and does not work on the case, L is under an absolute duty not to use or disclose any information relating to his representation of Jones. Most likely, if L accepted the offer and went to the new firm, L would minimally need to be “screened” from any access to the case files of XYZ (and in California, it is still questionable whether screening is actually sufficient to satisfy Rule 1.9).
It is important to note the distinction between “informed written consent” in CA and “informed consent confirmed in writing” under the MR. While informed consent confirmed in writing only requires an attorney to give full disclosure orally before the client provides written notice of consent, informed written consent (CA) requires that the disclosure of the conflict is also in writing and that the client's consent is in writing, as well.
Rule 1.10, Imputation of Conflict of Interest, and Screening.
There is also the issue of a lateral attorney moving to a new law firm where the attorney has learned confidential information about a client that could be used adversely against the former client at the new firm. Under both the MR 1.9 and CRPC Rule 1.9, where an attorney has worked on the same or substantially similar matter for one client, and then moves to a new firm that is working on the same or substantially similar matter for the adverse party of that representation, a conflict of interest exists.
Under Rule 1.10, that conflict of interest is imputed onto the other attorneys in the firm, and the firm must not take on the case, regardless of who works on it, unless (1) the former client gives informed written consent (under CA) or informed consent confirmed in writing (under the ABA MR), or (2) the new attorney is properly screened.
As mentioned above, it may be possible for XYZ (not L specifically) to continue working on the case against L’s former client if L is screened from any access to the case at the new firm and agrees not to discuss the case with anyone at the firm.
Screening—which is a way to contain the imputed conflict of interest under Rule 1.10 (which would occur when L joined XYZ), requires that the new attorney with the conflict does not work on the case in any way, does not have access to the case files nor discuss the case with any of the parties working on the case, and is not apportioned any fee for that case. Additionally, the firm must provide notice of the decision to screen and the screening procedures put in place to the former client, and must certify compliance with those screening procedures if requested by the former client.
Here, if L wants to take the job at XYZ, he should let them know that this is a likely consequence of taking the new work. The firm will either need to inform Jones of the new conflict or implement appropriate screening procedures. However, as discussed in more detail below, this will not necessarily work under the CRPC.
Under the CRPC, a new lawyer's conflict is imputed to the entire firm, and the entire firm may not take on or continue a case, even with appropriate screening procedures or informed written consent, if the new and conflicted attorney worked substantially and personally on the same matter for the other client.
Here, it could be argued that L worked personally and substantially on the Jones v. Smith case. Although just an associate, L had met with defendant Jones and prepared Jones's responses to Smith's discovery requests. L has consulted significantly with P, the partner, on issues involving sensitive materials. It is therefore likely that L's conflict will be imputed to XYZ, and he should inform XYZ that this could cause problems with their representation. The best course of action for L would be to seek a delay in hiring until after the conclusion of the case.
Duty of Confidentiality
Rule 1.6. see rule above
The duty of confidentiality applies to past clients as well as present ones. Therefore, L will have a continuing duty to maintain the confidentiality of any information L learned in the prior representation regarding Jones, even if L is able to take on the new work at XYZ.
Conclusion. In sum, although L likely did not violate the ethical rules regarding the motion to compel, L may have violated the ethical rules concerning the damaging document and the failure to produce the document. Further, L may have difficulty obtaining the informed consent of his former client, Jones, which may make it difficult for him to accept the offer at XYZ—given that California has mixed decisions regarding whether it accepts screening to remedy a 1.9 and 1.10 conflict of interest.