Professional Responsibility Is More Than Just A Passing Grade On The California Bar Exam
Professional Responsibility is tested on every California Bar Exam. It is always tested as an essay. It is also frequently the subject matter of the Performance Exam. Thus, you are guaranteed to see Professional Responsibility as part of every Bar Exam at the point you actually sit for the test.
Knowing this, you have a golden opportunity now to enhance your knowledge of the subject and practice your exam skills in order to analyze, organize, and write a superior passing answer.
The Bar Examiners want to wean out bar candidates who lack the requisite ethics to be a lawyer. This is the reason they test Professional Responsibility so often.
Whether their goal is actually accomplished as a Bar Exam exercise is debatable. Nonetheless, knowing the Bar Examiners have a special affinity for the subject, you must be proficient in this area.
To best prepare, make sure you have full command of the Professional Responsibility rules. Then, review prior Professional Responsibility Bar Exam questions and model answers. They are a tremendous resource to prepare for the essay. Take the exams under simulated Bar Exam conditions and then compare your answer with published sample answers.
Most states, including California, post past Bar exams with answers on their websites, so there should be no problem accessing them in order to practice. If you find you are struggling to master the substantive law or exam approach in this subject, private Bar Exam tutoring, like that offered by Fleming’s Fundamentals of Law, is an excellent resource because you are provided with specific direction to achieve your desired goal to understand the substantive law and craft a passing answer.
For purposes of this article, I am going to discuss the Professional Responsibility exam tested on the February 2021 California Bar. It is an excellent example of how such an exam is written and how the issues are tested. I will go over a number of selected ethical issues in the exam because they are frequently tested and likely to come up on future Professional Responsibility Bar exams.
This Professional Responsibility exam required answering according to California and American Bar Association (“ABA”) authorities, which you should learn in law school and during the course of the bar review you select for Bar Exam preparation. Here is the actual exam.
February 2021 CA Professional Responsibility Bar Exam
Pete is one of Chiro’s chiropractic partners. Chiro sends Pete to Linda because Pete is seeking a divorce from his wife Alice.
Pete tells Linda he can never forgive Alice because she was unfaithful. Pete tells Linda that he’s having money problems and asks that she take the case on a contingency basis. Linda tells him she’ll consider it if he’ll have drinks with her. Pete feels he has little choice and goes out with her. Linda initiates a sexual relationship with Pete and agrees to take the case. Linda is increasingly distracted from Pete’s case by her desire to spend time with him, sometimes filing papers hurriedly and narrowly avoiding deadlines.
Tom, Alice’s divorce lawyer, calls Linda one day and says, “I know you’re having sex with Pete. Either you settle this case cheaply, or I’ll report you to the Bar.” Linda decides to beat Tom at his own game and, without telling him, calls the Bar herself and reports his threat.
- What ethical violations, if any, has Linda committed with respect to her:
- Financial arrangement with Chiro? Discuss.
- Partnership with Chiro? Discuss.
- Relationship with Pete? Discuss.
- Accepting Pete’s case on a contingency basis? Discuss.
- What ethical violations, if any, has Tom committed? Discuss. Answer according to California and ABA authorities.
February 2021 CA Professional Responsibility Bar Exam Analysis
Ethical Violations Linda Committed
As a general principle in organizing issues for purposes of writing, you must always write the issues in the order they are spotted in the exam. In this exam, they are sequenced 1 – 4, so your organization of the issues should conform to that sequence as follows.
- Referral Fees To A Non-Lawyer Prohibited
The first issue in the sequence goes to Linda, a lawyer, who agreed to a contingency fee agreement with a chiropractor. Lawyers are prohibited from referral agreements with non-attorneys unless it is a qualified reciprocal referral service.
A superior Bar Exam answer discusses that the contingency fee agreement was actually a referral fee because Linda would pay the chiropractor 5% of recovery from each referred case. This was an ethical violation because she engaged in a non-qualified referral arrangement with a non-lawyer.
The State Bar takes a very hard line on these types of violations. Here in California, The Los Angeles Daily Journal, a resource for lawyers, includes a “discipline report” which provides the reasons for suspensions and disbarments.
The number of published violations related to referral agreements with non-attorneys always amazes me, so this is not just the stuff of exams – it is the stuff of everyday practice.
Linda tried to classify the referral fee as a “gift.” Under the ABA rules, attorneys are not permitted to accept gifts whereas, under the California rules, gifts for past referrals are permitted as long as there is an understanding that the gift is not a consideration for future referrals and that the gift is fair.
When you have a rule split, you must provide a discussion of each rule. Linda engaged in an ethical violation because the “gift” was 5% of the recovery. Therefore, it was not a “gift” because there was a consideration.
- Lawyers Are Prohibited From Fee-Splitting With Non-Lawyers
A superior Bar Exam answer includes a discussion that Linda’s scheme was a form of fee-splitting, which is another ethical violation because the ABA and California rules prohibit fee-splitting with non-lawyers. Financial arrangements are the foundation of the representative relationship with a client.
The State Bar is very strict about finances, including requiring lawyers to have trust accounts to maintain client monies in a separate account. I know a number of attorneys who have received discipline regarding issues with their trust accounts as well as one who was sentenced to years in prison for embezzling $750,000.00 from his clients that was supposed to be in his trust account.
As a point of interest, although not a fee-splitting issue with non-lawyers, there is a case right now in California involving a disgraced and recently disbarred attorney that illustrates the severity of misusing client funds. Attorney Thomas Girardi is being prosecuted for misappropriating millions of dollars of his clients’ settlement dollars to fund his lavish lifestyle. This disturbing case illustrates that misuse of clients’ trust funds is not just the stuff of exams – it is the stuff of everyday practice.
- Solicitation Prohibited
The ABA and California rules prohibit solicitation when it is in person, via telephone, and internet chat in nature. Linda engaged in another ethical violation because she requested that the chiropractor refer patients to her based on taking a percentage of the recovery, which was solicitation.
For those who are injured and do not have the financial ability to pay, a lawyer can easily be a target. Therefore, the Bar wants to ensure that they are well-protected. As the rules apply to all potential clients, lawyers must be very careful regarding their communications not to solicit clients.
- Lawyers Prohibited From Forming Law Partnerships With Non-Lawyers
Under the ABA and California rules, lawyers are not permitted to enter into partnerships with non-lawyers. Linda entered into a partnership with the chiropractor, which was another violation because he was a non-lawyer.
This is an area of law that is in flux, which is why it is beneficial to take a Bar review course to prepare for the Bar Exam because the laws can change. Here is an example. The California Bar has been reviewing a rule where non-lawyers could own part of a law firm. Personally, I disagree with this change because a non-lawyer is never going to have the same mindset and accountability as a licensed attorney.
- Lawyers Prohibited From Sexual Relationships With Client Unless It Existed Prior To The Representation
The ABA and California rules prohibit sexual relationships with clients unless such a relationship existed prior to the attorney-client relationship. California also has an exception that applies to lawyers and their spouses. Linda was in violation of the rules because the sexual relationship commenced prior to the attorney-client relationship. This rule is to ensure that a lawyer does not wield power over a client. The Bar Exam answer also needed to include that Linda had a duty to decline the representation because of the sexual relationship.
- Lawyers Owe A Duty Of Loyalty To Clients
Lawyers owe a number of duties to their clients, including a duty of loyalty to act in the best interests of their clients and exercise independent, professional judgment. Linda was not performing her responsibilities as a lawyer as required by the rules because she was sometimes hurriedly filing papers and narrowly avoiding deadlines.
It is not unusual for busy lawyers to push deadlines. However, papers must be filed on time and drafted to the best of the drafting attorney’s ability. Recently, I was having technical difficulties when filing a petition for review with the California Supreme Court. I filed it five minutes prior to the deadline. It was too close for comfort, but I made the deadline and did not subject my client to the petition being rejected or myself to discipline. Had I been late, I would have violated the rule and been subject to discipline.
Start Of The Attorney-Client Relationship
A confusing rule is that the attorney-client relationship commences when the client reasonably believes that it has started. It has been found that it can commence during an initial meeting.
This is a good place to argue both ways as it is factually driven. Pete will argue that it commenced when he started providing Linda with personal facts regarding his marriage. Linda will argue that it commenced after the sexual relationship began in an attempt to maintain compliance with the rules. Whatever you conclude, you must support it with a reasoned analysis of the law to the facts.
Ethical Violations Tom Committed
- Duty Not To Threaten
In California, lawyers have a duty not to threaten criminal or civil actions to gain an advantage in a case. Because he was trying to gain an advantage for his client, Tom, the opposing counsel in the divorce, threatened to report Linda regarding her sexual relationship with Pete.
This is an area of law frequently violated, not just on Bar Exams, but in real-life practice. I recently had two lawyers in separate matters teeter close to this line. On both occasions, I reminded them of the rules.
If it is a criminal offense, the lawyer can have his/her client file a police report or contact the district attorney’s office. The client can move forward with a criminal action as opposed to threatening it. Modernly, the rule is the same regarding civil matters. Therefore, all of my letters end with the statement that my “client will seek all her rights and remedies under the law.”
- Duty To Report
Under the ABA, lawyers have a duty to report the misconduct of other lawyers when it pertains to matters of clear and weighty importance, like truthfulness or honesty, that would impact a lawyer’s ability to practice law. In California, lawyers only have a duty to self-report ethical violations. Pursuant to the ABA, it was arguable whether or not Linda’s sexual relationship with Pete was of weighty importance to be reported by Tom. In California, only Linda had a duty to report.
In California, if there is any question in this regard, the State Bar has an ethics hotline where lawyers can speak to a paralegal regarding ethical conundrums.
Summary - Navigating Challenging Ethical Issues
When writing an essay answer for Professional Responsibility on the Bar Exam, it is important to apply what you learned in law school and Bar Review about the subject because it is the one time that you will write about the lawyer’s responsibilities.
If you are having issues with the subject, I recommend Fleming’s Fundamentals of Law Bar Exam tutoring because you will write practice exams and receive direct feedback from a licensed lawyer. One of Fleming’s co-founders, Attorney Susan P. Sneidmiller, is a former Special Deputy Trial Counsel at the CA State Bar who brings special expertise to the subject.
Professional Responsibility is tested on nearly every Bar Exam throughout the nation. Thus, you want to achieve your goal to fully understand this essential area of law and develop the test-taking skill to write a superior passing test answer.
Not only will this approach allow you to achieve a high score on any law school or Bar Exam test, but it will also set you up to spot and avoid all the ethical challenges you will face in the practice of law.