2019 February California Bar Forum

[NYlawgrad2011]

Anti-Lucas would not be applicable because that only applies at divorce / dissolution and the essay dealt with death. There did not seem to be any facts to support discussion of Lucas re the CA condo.

[Cherry805]

That is correct. I used it as a launching pad to discuss title presumptions; general presumptions, taking assets in joint title(at death=Lucas applies,
at divorce=In Cali. presumed cp) absent joint and equal title= source rule. I spent most of my time discussing tracing and taking assets in separate title followed up with rules on equal management and control. While trying to insert will and trusts. I can't even remember if I slapped it down on the first or second question. This was the obvious curve ball of the exam.

[JDJM6215]

For those who just sat for the February Bar exam, I was there and it was my 6th time. For those who are thinking about taking the test in July and have not taken it yet or have delayed the retake.

Start studying now is my best advise.

I do not know if I passed or failed (we don't find out until May 17th). I am already studying and suggest that anyone who thinks they may have not succeeded, what do you have to lose starting to study now? I do know, when we do find out, that time is pretty short to get enough studying to pass the July exam.

If I could I'd post pictures of all my letters showing my final scores you would see how close I've come.

My history in a nutshell, I'm 57 on Friday, I wanted to be a lawyer my whole life. I had my children early, all are raised now, and I went to an online law school while working as a legal assistant in 2011. I graduated from Concord Law School in Feb 2015, and took the bar. First score - miserably low, failed by 227 points, second attempt, J15, 213, Third, J16, 152 but I only had two months to prepare and realized I would have to postpone until my life had less obligations. Fourth, F18 (studied for five months), 122, Fifth (waited until May to start my studying) J18, 33 points from passing after the second read average (after first read I was 6 points from passing). I started studying in Sept casually and really made a good effort at studying harder than ever, Dec, Jan and Feb are blurs right now. However, I'm waiting impatiently for May's results (sixth), but my contingency plan, I started studying on Monday for July.

This test is hard, incredibly hard, but even for someone like me. I'm a very poor test taker, even in college I only receive one A, in law school I was able to maintain a C average. My LSAT was embarrassing after studying a whole year prior to taking it and I took that twice too, only improved my score small scale, not enough to get into law school. After my first year at CLS, I had to sit for the FYLSE, yup, failed on first attempt, passed the second but just barely.

Please, do not listen to those that say, well, you just not smart enough, are maybe you wouldn't make a good lawyer. None of that is true, this test is about knowledge and if you have it you will pass. So, the failed results, WILL not make me quit trying, I will be a fabulous lawyer and will make CA proud when I am one. I've even had people say to me, you'll never get clients or "I would not hire a lawyer who took the test 7 times." BS, I read an article back in the early 80's about the test when I was thinking about going to law school then, I decided family first, then go back. Here I am. It was hard back then, it is hard now. If you want it, you invested time at law school, then do not quit.

My hope for all those here is to know that even if you start now, you may make July your last time.

Therefore, only do 10 mpq's a day, one essay a day and on the weekends, do a PT from the GA bar to start. Take time to review the answers. Write out rule statements, listen to lectures in bed, at lunch, figure out what you don't know and learn it. Memorization is a key factor. We only need to know 6000 rules by the end of July but we need to pull those rules up and type them at a brisk pace so that we have time to properly analyze (that's what the graders want). Lastly, stress and anxiety at the test is a big factor, strength and health are also factors. That is what I know.

So, do not think you can't, think that you got a chance and can prevail, CA needs good lawyers and I've met wonderful applicants who will make a difference here.

Sorry for the spelling and grammatical errors, but I'm off this site and suggest you too should move on. The CA July blog now is where I will post from now on and I posted this there too. Back to studying!

[rcharter1978]

For those who just sat for the February Bar exam, I was there and it was my 6th time. For those who are thinking about taking the test in July and have not taken it yet or have delayed the retake.

Start studying now is my best advise.

I do not know if I passed or failed (we don't find out until May 17th). I am already studying and suggest that anyone who thinks they may have not succeeded, what do you have to lose starting to study now? I do know, when we do find out, that time is pretty short to get enough studying to pass the July exam.

If I could I'd post pictures of all my letters showing my final scores you would see how close I've come.

My history in a nutshell, I'm 57 on Friday, I wanted to be a lawyer my whole life. I had my children early, all are raised now, and I went to an online law school while working as a legal assistant in 2011. I graduated from Concord Law School in Feb 2015, and took the bar. First score - miserably low, failed by 227 points, second attempt, J15, 213, Third, J16, 152 but I only had two months to prepare and realized I would have to postpone until my life had less obligations. Fourth, F18 (studied for five months), 122, Fifth (waited until May to start my studying) J18, 33 points from passing after the second read average (after first read I was 6 points from passing). I started studying in Sept casually and really made a good effort at studying harder than ever, Dec, Jan and Feb are blurs right now. However, I'm waiting impatiently for May's results (sixth), but my contingency plan, I started studying on Monday for July.

This test is hard, incredibly hard, but even for someone like me. I'm a very poor test taker, even in college I only receive one A, in law school I was able to maintain a C average. My LSAT was embarrassing after studying a whole year prior to taking it and I took that twice too, only improved my score small scale, not enough to get into law school. After my first year at CLS, I had to sit for the FYLSE, yup, failed on first attempt, passed the second but just barely.

Please, do not listen to those that say, well, you just not smart enough, are maybe you wouldn't make a good lawyer. None of that is true, this test is about knowledge and if you have it you will pass. So, the failed results, WILL not make me quit trying, I will be a fabulous lawyer and will make CA proud when I am one. I've even had people say to me, you'll never get clients or "I would not hire a lawyer who took the test 7 times." BS, I read an article back in the early 80's about the test when I was thinking about going to law school then, I decided family first, then go back. Here I am. It was hard back then, it is hard now. If you want it, you invested time at law school, then do not quit.

My hope for all those here is to know that even if you start now, you may make July your last time.

Therefore, only do 10 mpq's a day, one essay a day and on the weekends, do a PT from the GA bar to start. Take time to review the answers. Write out rule statements, listen to lectures in bed, at lunch, figure out what you don't know and learn it. Memorization is a key factor. We only need to know 6000 rules by the end of July but we need to pull those rules up and type them at a brisk pace so that we have time to properly analyze (that's what the graders want). Lastly, stress and anxiety at the test is a big factor, strength and health are also factors. That is what I know.

So, do not think you can't, think that you got a chance and can prevail, CA needs good lawyers and I've met wonderful applicants who will make a difference here.

Sorry for the spelling and grammatical errors, but I'm off this site and suggest you too should move on. The CA July blog now is where I will post from now on and I posted this there too. Back to studying!

I don't know if you'll see this, but I really admire your positive attitude. However, have you ever thought about maybe trying to pass another, more reasonable bar examination in an adjoining state? Or any other state?

I don't say this because you're not smart enough to pass the CA bar, but if you're not a great test taker it means you may get too far in your own head. And I cannot even begin to imagine how much it would fuck with anyone's head to not pass this examination after taking it five times.

I passed the second time and that one failure really shook me and gave me a lot of doubt. If I didn't pass five times I'd probably be a basket case. I had prepared myself for a second failure, but I was set that if I couldnt pass after a third try I was just going to take it in an easier jurisdiction just to get a win under my belt.

I think at some point you just gotta get a win under your belt for the sake of sanity and confidence. Consider it, if you read this. You can still do federal work, and you could sit for the CA bar again.

[maureenwct]

Kudos to the 57 year old who has taken the exam 6 times. I am 55, and this was my first. I am admitted in another State, where I have practiced for 25+ years.

My overall impression of this exam is that the recall of rules must be rapid; I knew them, but in the heat of writing so much, often missed elements and left the scope of analysis thin because I felt that I had to move on to the next issue, and the next and the next. Hence, I don't think I passed, and do think I will be a re-taker in July. Then, for sure, I will have a better strategy for this test - which is to type faster, and analyze more, even where I am uncertain of the rule.

Good luck to all.

[AgapeEsquire]

QCP - "all property wherever situated." Correct

Don't take your off the ball here. The state X house and the California condo are equal in that they were purchased near or around the same time using his funds while domiciled in state X. I don't care to use the word "confuse" but the examiners obviously intentionally ensured that one home be in California in order to make sure we understand quasi-community property. "Wherever situated?" Right?

The fact that the condo was located in California has no bearing on whether it is considered community property or quasi community property. As indicated by other posters, the properties will only be considered community property at the husband's death or divorce - even though they have since moved to retire in California. At that point any property newly-acquired between the spouses outside of any inheritance will then be considered community property because they are married and domiciled in the state of California.

The California condo was freely alienable although they were domiciled in California because it was the husband's property and not yet community property because he had not died or divorced. The Joint tenancy transfer it was valid.

The codicil was invalid, and at the husband's death the state x home had become community property. Because of the valid will wife takes the state X home all for herself. There was a great opportunity to discuss choice-of-law over the will, then another to discuss gifts and transmutation so that the examiners would know that it was not an issue.

If this is all correct, wouldn’t the joint tenancy still fail? Because they did acquire the rights at the same time, one of the four unities. I didn’t go into this because I wrongly assumed that wife had interest in it but, at least at common law I thought you needed a straw man if you were going to do it this way.

Either way, I think I got choice of law mostly correct, will and codicil right, QCP re the house correct, and mostly got the trust creditors correct. But with this, and no discussion of prenup or transmutations for points, I’m guessing another 55. Huge blow.

How can the conveyance of the CA condo from Hank to Hank / son be legit? The CA Condo was CP because it was acquired during marriage. Even though they were living in State X when it was acquired, the condo was in CA at the time. The condo is real CP and real CP cannot be conveyed / gifted / sold without the consent of the other spouse? The wife could set aside the conveyance at any point in time because the husband and son would not be a Bona Fide Purchaser. If they were BFPs, she would have a 1 year SOL.

Any non-real CP can be conveyed but only to the extent of the spouse's 1/2 CP interest in the asset. Real property is the exception and the other spouse's consent is required.

The son could not have any interest in the CA Condo. When Hank died, his interest in the CA condo went to the wife.

The Hank to Hank/son is legit via a simple conveyance of the deed as JT w/ROS. Hank is able to do it because he owned it outright. His purchase of the condo while married and living in State X makes it his Condo alone regardless of it being located in a CA or any state that recognizes CP laws. "All property WHEREVER situated..." The condo is CA doesn't change anything unless they were married and living in CA. If that were the case, any property would then be CP even if it were located outside of CA.

Thus, due to QCP - the condo was not CP until Hank either divorced or died. When he died, it would have become CP; unfortunately, it had already been conveyed as JT w/ ROS. If it were a TIC with son then W would have had rights to the condo.

W had no rights / no need for transmutation or much of a gift argument because she didn't have any rights in the condo until death or divorce whilst living in CA. Those arguments would have been necessary in regards to any property then purchased by either W or H while living in CA with CP funds.

[thizzinmybrainsout]

JT w/ RIGHT OF SURVIVORSHIP


People seem to be overlooking this and getting ahead of themselves in their analysis

[NYlawgrad2011]

The CA condo was acquired during marriage. Hank bought the CA condo with his salary and put it in his name alone, but the condo is QCP because QCP funds were used. Taking title in his name alone does not change the characterization of the asset - the source and trace rules apply instead and the CA condo can be traced back to his salary during marriage, and his salary is CP.

Real CP cannot be conveyed without the consent of the other spouse. The only way Hank could convey the CA condo is if: (1) W consented; or, (2) the CA condo was characterized as SP either because SP funds were used to purchase it, or because Hank received it as inheritance, neither of which is true.

But since the CA condo was purchased during the marriage, even while living in state X, it does not make the CA condo his SP.

On divorce, QCP is treated the same as CP. At death, the law of the state where the property is located controls. But since the condo was conveyed during the lifetime, the death rules of QCP do not apply. The CA condo was their marital home that Wanda and Hank were living in. It does not make sense that Hank could divest Wanda of the marital home during marriage by conveying it to himself and his son. That is contrary to CP principles.

I understand that he conveyed the CA condo as JT with right of survivorship - that is just the type of conveyance made, but that does not resolve the issue of whether he had the right in the first place to convey the CA condo without W's consent.

I do not see how Wanda would have rights to the CA condo if Hank conveyed it as TIC. If Hank conveyed the CA condo as TIC to himself and his son, then on Hank's death, his interest would pass to his heirs, so his son would own it outright and Wanda would have no interest.

[yespasscbx]

The CA condo was acquired during marriage. Hank bought the CA condo with his salary and put it in his name alone, but the condo is QCP because QCP funds were used. Taking title in his name alone does not change the characterization of the asset - the source and trace rules apply instead and the CA condo can be traced back to his salary during marriage, and his salary is CP.

Real CP cannot be conveyed without the consent of the other spouse. The only way Hank could convey the CA condo is if: (1) W consented; or, (2) the CA condo was characterized as SP either because SP funds were used to purchase it, or because Hank received it as inheritance, neither of which is true.

But since the CA condo was purchased during the marriage, even while living in state X, it does not make the CA condo his SP.

On divorce, QCP is treated the same as CP. At death, the law of the state where the property is located controls. But since the condo was conveyed during the lifetime, the death rules of QCP do not apply. The CA condo was their marital home that Wanda and Hank were living in. It does not make sense that Hank could divest Wanda of the marital home during marriage by conveying it to himself and his son. That is contrary to CP principles.

Feel like I'm reading my own answer for this essay question

[barexaminerssuck27]

The CA condo was acquired during marriage. Hank bought the CA condo with his salary and put it in his name alone, but the condo is QCP because QCP funds were used. Taking title in his name alone does not change the characterization of the asset - the source and trace rules apply instead and the CA condo can be traced back to his salary during marriage, and his salary is CP.

Real CP cannot be conveyed without the consent of the other spouse. The only way Hank could convey the CA condo is if: (1) W consented; or, (2) the CA condo was characterized as SP either because SP funds were used to purchase it, or because Hank received it as inheritance, neither of which is true.

But since the CA condo was purchased during the marriage, even while living in state X, it does not make the CA condo his SP.

On divorce, QCP is treated the same as CP. At death, the law of the state where the property is located controls. But since the condo was conveyed during the lifetime, the death rules of QCP do not apply. The CA condo was their marital home that Wanda and Hank were living in. It does not make sense that Hank could divest Wanda of the marital home during marriage by conveying it to himself and his son. That is contrary to CP principles.

I understand that he conveyed the CA condo as JT with right of survivorship - that is just the type of conveyance made, but that does not resolve the issue of whether he had the right in the first place to convey the CA condo without W's consent.

I do not see how Wanda would have rights to the CA condo if Hank conveyed it as TIC. If Hank conveyed the CA condo as TIC to himself and his son, then on Hank's death, his interest would pass to his heirs, so his son would own it outright and Wanda would have no interest.

SPOT ON ANALYSIS

[throwawayy]

The back and forth on this question has been killing me so I wanted to provide my thoughts after doing some research. Please let me know if anyone disagrees or has found reliable sources stating anything different. Also may have recalled some facts inaccurately so apologies in advance.

CA Condo
(1) CA Condo is QCP - As discussed by others above, H's earnings (CP) were used to purchase the condo so the condo would have constituted CP if it had been purchased while H&W were domiciled in CA. Looks like no applicable exceptions under the CA Probate Code apply.
(2) JT with ROS is valid - The general rule is that QCP is treated like the owner-spouse's SP during the owner-spouse's life and is treated like CP upon the owner-spouse's death. So H was free to create the JT. Someone mentioned a potential "straw man" issue above, but I think the modern rule no longer requires that arrangement to create a valid JT to oneself and another individual (probably still was worth mentioning).
(3) W still has the right to compel half be returned to decedent spouse's estate due to the following exception - If owner-spouse transfers QCP to 3P during his life, surviving spouse may compel a reconveyance of half of decedent’s estate if (i) decedent made inter vivos transfer while domiciled in CA during his life and (ii) transfer was made to someone other than surviving spouse without written joinder or consent of surviving spouse AND transfer was a suspect conveyance (i.e. decedent spouse retained a right of survivorship).
(4) Will was valid so W gets other half of property - Believe the potential validity issue was that there was only one witness to the will, but since the will was valid in the prior state, CA will still recognize the validity of the will (which I believe just granted H's estate to W).
(5) Conclusion - S and W each get one-half interest in the property.

State X House
(1) State X House is SP - Like others above, I thought there had to be some sort of distinction between the CA Condo and State X House but unfortunately didn't know about this wrinkle on exam day. In a divorce scenario, the CA Family Code applies which includes all real property in its QCP definition. In a death scenario, however, it looks like the CA Probate Code applies which does not include out-of-state real property in its QCP definition.
(2) Codicil may be valid (i.e. can argue both ways) - It looks like conservatees don't outright lose the right to make new wills or amend existing wills due to the creation of a conservatorship; however, the obvious issue that arises is whether a conservatee was mentally competent to permit the conservator to make such a change. Seems like a lot of you feel the codicil is invalid and would love to hear your reasoning why, but I think there is at least a colorable argument that the conservator has the right to make the codicil since the facts indicated it was in line with the wishes of H, unless he was incompetent when those wishes were made to the conservator.
(3) Conclusion - If the codicil is valid, Friend and W each get one-half interest in the property (believe the codicil granted just half of the property to the Friend but might not be remembering correctly). If the codicil is invalid, W gets full property due to the valid will.

[AgapeEsquire]

The CA condo was acquired during marriage. Hank bought the CA condo with his salary and put it in his name alone, but the condo is QCP because QCP funds were used. Taking title in his name alone does not change the characterization of the asset - the source and trace rules apply instead and the CA condo can be traced back to his salary during marriage, and his salary is CP.

*******The analysis above is true for community property law, not QCP. QCP is only considered on two events (1) death or (2) divorce. When you have a scenario such as the one we are discussing then you have quasi community property issues. Hanks funds in state x while married were his sep prop / non communal.***********
---------------------------------------------------
Real CP cannot be conveyed without the consent of the other spouse. The only way Hank could convey the CA condo is if: (1) W consented; or, (2) the CA condo was characterized as SP either because SP funds were used to purchase it, or because Hank received it as inheritance, neither of which is true.

*******Again, the analysis above is true for community property law, not QCP. Hanks SP funds were used to purchase the CA condo because why living in state x, a non community property state, he used his sp funds to purchase the condo***********
---------------------------------------------------

But since the CA condo was purchased during the marriage, even while living in state X, it does not make the CA condo his SP.

*******Oh, but it does. Why wouldn't it? Living in a non-community property State such a state X, while using what are considered separate property funds to purchase real estate in or out of State X would make the property the separate property of the purchasing spouse. There is no need to consider quasi community property or community property at this stage.***********
---------------------------------------------------

On divorce, QCP is treated the same as CP. At death, the law of the state where the property is located controls. But since the condo was conveyed during the lifetime, the death rules of QCP do not apply. The CA condo was their marital home that Wanda and Hank were living in. It does not make sense that Hank could divest Wanda of the marital home during marriage by conveying it to himself and his son. That is contrary to CP principles.

******* yes, on the death or divorce quasi Community is treated as community. The law of the state where the property is located sounds like you may be introducing Erie Doctrine into a community property quasi community property analysis, perhaps choice-of-law under Wills. That statement does not pan out under just a bit of research. Hank cannot divest Wanda of anything she never had an interest in. It would be contrary to CP principles if it were CP to begin with. Moving and living in California in a condo located in California while married screams of CP but it is not because it was purchased during the marriage while living in another state that does not recognize community property law. It is unfortunate that quasi community property principles cannot be used because the condo was transferred prior to death or divorce.**********
---------------------------------------------------

I understand that he conveyed the CA condo as JT with right of survivorship - that is just the type of conveyance made, but that does not resolve the issue of whether he had the right in the first place to convey the CA condo without W's consent.

******* Wanda's consent was not needed because it was not community property. She had no interest. From the get-go***********


--------------------------------------------------- do not see how Wanda would have rights to the CA condo if Hank conveyed it as TIC. If Hank conveyed the CA condo as TIC to himself and his son, then on Hank's death, his interest would pass to his heirs, so his son would own it outright and Wanda would have no interest.

******* Wanda would have had an interest if it were transferred as tenants-in-common because of the will. It was valid. Because Hank said anything he owned at that time, and he would have owned his half interest of the condo as a tenant in common with his son.**********
---------------------------------------------------

[Cherry805]

For the last essay, P.R.
Did anyone discuss attorney calling opposing party without representation?
I've seen it mentioned by others, but I didn't feel like the facts were pushing
me to discuss that issue.

[Althink]

For the last essay, P.R.
Did anyone discuss attorney calling opposing party without representation?
I've seen it mentioned by others, but I didn't feel like the facts were pushing
me to discuss that issue.

I did address this as a Duty of Fairness (Duty to Opposing Party) issue. An attorney should not communicate with opposing party without consent of party's attorney or the court.

I am really concerned about the first question. I completely bombed it and didn't think CA CP was applicable, so now I am afraid that I failed this essay, as that was a HUGE issue and possibly the entire exam now (I took the Attorney's exam). There was just so much to write and I couldn't type fast enough in an hour and analyze the way I wanted to. This is my second time taking the Attorney's exam (I made all 55s on the essays and 65 on the PT)....the first time I handwrote it. Typing is so much better-not sure how I could've wrote everything I needed to if I handwrote for Feb '19, but the more I find out the issues that I missed, the more depressed I become. Sigh....

[masonjarrr]

For the last essay, P.R.
Did anyone discuss attorney calling opposing party without representation?
I've seen it mentioned by others, but I didn't feel like the facts were pushing
me to discuss that issue.

I did. Facts didnt present it exactly as there was no mention of the fact that he had an attorney but it’s a whole corporation and deposing/contacting the president? Of a corp would require contacting the attorney first. Not the biggest issue obviously. Kind of an”if...then” issue

I missed the apparently big one about reporting to committee about hiring a disbarred attorney. Did the rest though i think.

On another note, for the PT, i didn’t include an authorities paragraph before argument. I’m a little concerned about that.

My format after the intro page,

-Introductory paragraph making the demand
-argument section
-conclusion

Let’s say i did a decent job on argument. How bad is it that i missed the authorities paragraph?

[barexaminerssuck27]

Do you guys think our essay are getting graded right now?

[Cherry805]

For the last essay, P.R.
Did anyone discuss attorney calling opposing party without representation?
I've seen it mentioned by others, but I didn't feel like the facts were pushing
me to discuss that issue.

I did. Facts didnt present it exactly as there was no mention of the fact that he had an attorney but it’s a whole corporation and deposing/contacting the president? Of a corp would require contacting the attorney first. Not the biggest issue obviously. Kind of an”if...then” issue

I missed the apparently big one about reporting to committee about hiring a disbarred attorney. Did the rest though i think.

On another note, for the PT, i didn’t include an authorities paragraph before argument. I’m a little concerned about that.

My format after the intro page,

-Introductory paragraph making the demand
-argument section
-conclusion

Let’s say i did a decent job on argument. How bad is it that i missed the authorities paragraph?

LOL, I wouldn't worry too much about which issue had more weight. None of us truly know. In my opinion, I don't think
the issue about reporting disbarred attorney was major. In fact, I didn't mention it either, so you are not alone.
I thought examiners were looking for the other implications when working with a non-lawyer, like fee-splitting and the
unauthorized practice of law with a non-lawyer. But that is just my humble opinion. This is not my first shot at the bar,
my strength is writing but my mbe score is what has kept me from passing. One thing I noticed in my writing, specifically
in P.R., is that examiners don't seem to look for how many issues you can spot. They prefer you hone in on the real issues and analyze
the heck out of them. My first P.R. essay had lots of issues, all relevant, but not a lot of analyzing. My second essay had a lot less issues but lots of analyzing and my score improved by 10 points.

In regards to PT, it all depends! If your arguments are solid than your authorities paragraph shouldn't be a huge problem. The first P.T. I wrote at the bar had two paragraphs of argument with maybe a line or two comparing one of the cases in the library and I got a 65. The second P.T. I wrote had an authorities paragraph followed by an argument and I got a 65 too. Just like essays, I think examiners prefer a strong analysis that shows you understand the main issues and can support by your use of the facts.

I woke up the next morning this time around thinking, crap, my headings!
Instead of a long heading, ...justified because...bla bla,I used short headings, ....bail will be justified.
I went back to my other 2 PT's and I actually used long headings in one and short headings on the other.
We just won't know until May.

[masonjarrr]

For the last essay, P.R.
Did anyone discuss attorney calling opposing party without representation?
I've seen it mentioned by others, but I didn't feel like the facts were pushing
me to discuss that issue.

I did. Facts didnt present it exactly as there was no mention of the fact that he had an attorney but it’s a whole corporation and deposing/contacting the president? Of a corp would require contacting the attorney first. Not the biggest issue obviously. Kind of an”if...then” issue

I missed the apparently big one about reporting to committee about hiring a disbarred attorney. Did the rest though i think.

On another note, for the PT, i didn’t include an authorities paragraph before argument. I’m a little concerned about that.

My format after the intro page,

-Introductory paragraph making the demand
-argument section
-conclusion

Let’s say i did a decent job on argument. How bad is it that i missed the authorities paragraph?

LOL, I wouldn't worry too much about which issue had more weight. None of us truly know. In my opinion, I don't think
the issue about reporting disbarred attorney was major. In fact, I didn't mention it either, so you are not alone.
I thought examiners were looking for the other implications when working with a non-lawyer, like fee-splitting and the
unauthorized practice of law with a non-lawyer. But that is just my humble opinion. This is not my first shot at the bar,
my strength is writing but my mbe score is what has kept me from passing. One thing I noticed in my writing, specifically
in P.R., is that examiners don't seem to look for how many issues you can spot. They prefer you hone in on the real issues and analyze
the heck out of them. My first P.R. essay had lots of issues, all relevant, but not a lot of analyzing. My second essay had a lot less issues but lots of analyzing and my score improved by 10 points.

In regards to PT, it all depends! If your arguments are solid than your authorities paragraph shouldn't be a huge problem. The first P.T. I wrote at the bar had two paragraphs of argument with maybe a line or two comparing one of the cases in the library and I got a 65. The second P.T. I wrote had an authorities paragraph followed by an argument and I got a 65 too. Just like essays, I think examiners prefer a strong analysis that shows you understand the main issues and can support by your use of the facts.

I woke up the next morning this time around thinking, crap, my headings!
Instead of a long heading, ...justified because...bla bla,I used short headings, ....bail will be justified.
I went back to my other 2 PT's and I actually used long headings in one and short headings on the other.
We just won't know until May.

Phew, that's good to hear. I agree on the headings. I tried a little too hard on my headings and made them more complicated than they needed to be last time around. This time, short and simply English, nothing fancy!

[bbrown40]

Hey all,

So after reading through this thread, I decided to do a breakdown on what I did regarding the essays. Let me know what you think.

CP/Wills/Trusts

Preliminary Issue – discussed here bc I did not want it to be to choppy in analysis
a. Validity of will
b. Choice of law

First Asset
a. QCP discussion – however, during marriage – QCP is SP for management and control purposes. Therefore, the discussion regarding CP does not come about and therefore, arguments pertaining to management and control and breach of fiduciary duties (e.g., voiding transfer) are brought up and failed out.
b. No anti lucas issue bc at death – so title controls
c. Effect – valid conveyance in joint tenancy and son takes right of survivorship

Second Asset
a. See above for discussion regarding QCP discussion
b. Testamentary transfer of ½ interest is ok for decedent
i. Hinges on whether codicil is valid
ii. Evidence indicates a conservator was appointed – if valid – conservator can make codicils
1. Many argued this was an invalid codicil; however, there was evidence that the conservator (the son) transferred ½ (or full I don’t remember) to friend in line with fathers PAST wishes
2. Counter argument – noted if father present wishes attack on capacity – not much discussion as he was deemed incapacitated – it would fail
iii. Overall – argue valid codicil due to “PAST” wishes of father
1. If valid in full to friend – widow election
iv. If not valid = WIFE

Creditor Issue
a. Was a little confused on this portion
b. Just briefly stated a rule from spendthrifts which essentially stated some courts will not allow creditor to touch the assets in trust. Others will allow creditor to reach only the assets transferred to the beneficiaries.
i. Essentially protection for the assets in trust

Torts
1) Two negligence for each PL
a. Did several standard of care for each – landowner, reasonable person, also argument for negligence per se as there is surely a statute to not have chimpanzee in residential home.
2) Two SL for each PL
a. Wild animal – if he was a trespasser – then supra to prior negligence – otherwise SL
3) Negligent Infliction of Emotional Distress
a. On both - failed
4) Went through the Following Defenses – Supra for each
a. Assumption of risk
b. Contributory
c. Comparative
5) Battery
a. For wiping the solvent on her
b. Failed bc no intent to harm or offend
6) DID NOT BRING UP ANY OTHER INTENTIONAL TORTS AS CONSIDERED INAPPLICABLE

Real Property
1) General leasing issue
2) Term of years
3) Discussion regarding covenants dependent or independent
a. Implied warranty of habitability
b. Implied covenant of quiet enjoyment
c. Abandonment
d. Surrender
i. Treated as a possibly valid surrender bc do not need in writing if remaining portion of lease is less than one year – which it was here
4) Call also stated what counterclaims may be brought, so I discussed nuisance as well

Evidence/Civ Pro
1) generally what everyone else said
2) relevance, competency of witness, hearsay, admission, subsequent remedial measure, lay opinion, expert opinion
a. the hearsay was a little bit of a red hearing on some bc it was the declarant testifying, so as long as it is worded properly on the stand it may not be hearsay bc of personal knowledge
3) Subject Matter Jurisdiction
a. First discuss 12b and that can raise at any time
b. Then FQ/DJ

PR
1) This Essay I Brought Up Everything
a. Unauthorized Practice of Law
b. Hiring Disbarred Attorney - Only in CA – not aba – need written notice to state bar
c. Fee Splitting - Non – Lawyer
d. Ownership of Partnership w/ Non-Lawyer - Evidence stated they “shared a firm” and she “resigned." Resignation is not same as dissociation, so we can make the inference she is still owner of the firm
e. Fee Agreement - New client had no agreement. However, no writing required should have discussed w/ client scope and fee
f. Confidentiality
i. However, implicit consent for employee of firm, e.g., when she came back to firm
g. Competence
h. Threat of Civil Action - CA only bars and ABA does not discuss
i. Frivolous Actions
j. Loyalty - Brief issue regarding the fact that it seemed attorney had a vendetta and was acting against clients interests
k. Duty to Profession
l. Duty to Third Parties

[JDJM6215]

FYI

For those that have started studying for the July exam

Mark your calendars and purchase the new online study for the MBE's


http://www.ncbex.org/study-aids/

[JDJM6215]

FYI

For those that have started studying for the July exam

Mark your calendars and purchase the new online study for the MBE's


http://www.ncbex.org/study-aids/

The back and forth on this question has been killing me so I wanted to provide my thoughts after doing some research. Please let me know if anyone disagrees or has found reliable sources stating anything different. Also may have recalled some facts inaccurately so apologies in advance.

CA Condo
(1) CA Condo is QCP - As discussed by others above, H's earnings (CP) were used to purchase the condo so the condo would have constituted CP if it had been purchased while H&W were domiciled in CA. Looks like no applicable exceptions under the CA Probate Code apply.
(2) JT with ROS is valid - The general rule is that QCP is treated like the owner-spouse's SP during the owner-spouse's life and is treated like CP upon the owner-spouse's death. So H was free to create the JT. Someone mentioned a potential "straw man" issue above, but I think the modern rule no longer requires that arrangement to create a valid JT to oneself and another individual (probably still was worth mentioning).
(3) W still has the right to compel half be returned to decedent spouse's estate due to the following exception - If owner-spouse transfers QCP to 3P during his life, surviving spouse may compel a reconveyance of half of decedent’s estate if (i) decedent made inter vivos transfer while domiciled in CA during his life and (ii) transfer was made to someone other than surviving spouse without written joinder or consent of surviving spouse AND transfer was a suspect conveyance (i.e. decedent spouse retained a right of survivorship).
(4) Will was valid so W gets other half of property - Believe the potential validity issue was that there was only one witness to the will, but since the will was valid in the prior state, CA will still recognize the validity of the will (which I believe just granted H's estate to W).
(5) Conclusion - S and W each get one-half interest in the property.

State X House
(1) State X House is SP - Like others above, I thought there had to be some sort of distinction between the CA Condo and State X House but unfortunately didn't know about this wrinkle on exam day. In a divorce scenario, the CA Family Code applies which includes all real property in its QCP definition. In a death scenario, however, it looks like the CA Probate Code applies which does not include out-of-state real property in its QCP definition.
(2) Codicil may be valid (i.e. can argue both ways) - It looks like conservatees don't outright lose the right to make new wills or amend existing wills due to the creation of a conservatorship; however, the obvious issue that arises is whether a conservatee was mentally competent to permit the conservator to make such a change. Seems like a lot of you feel the codicil is invalid and would love to hear your reasoning why, but I think there is at least a colorable argument that the conservator has the right to make the codicil since the facts indicated it was in line with the wishes of H, unless he was incompetent when those wishes were made to the conservator.
(3) Conclusion - If the codicil is valid, Friend and W each get one-half interest in the property (believe the codicil granted just half of the property to the Friend but might not be remembering correctly). If the codicil is invalid, W gets full property due to the valid will.

Thank you, I answered the question a little simpler. I stated JT invalid only at Common Law mentioning the 4 unities, but then said in CA, H could do the JT with son, it was his SP when he acquired it, but at death, in CA, wife would be able to claim half with son because H can will away only half of QCP/CP, that is what the CA statute states. I know a lot of people mentioned consent, but that wasn't an issue, H had the property in his name when he acquired it, W just merely contests it in probate that it is CP/QCP plus she has the will that states all my property to my wife. But constitutionally, under case law, SP: H can will his half of QCP because it was his SP when he bought it, put it in his name in a noncommunity state.

I found the codicil valid too, under the probate code, conservator can create the codicil and the facts stated that it was H's wish to gift half to friend, so with a new testamentary instrument, the codicil limits W. Wife only entitled to half based on a valid because this did not revoke the will just changed the gift, which a party has a right to do. I mentioned H didn't have capacity, which is required for a codicil, but a conservator capacity will substitute, but the intent was key to the codicil being valid with other formalities met. I also mentioned that S, under omitted child, probate code states three rules to OC, OC does not take if gift to the parent to take care of child, intent not to gift expressly declared or another gift given to OC (layman terms). The fact that the JT would be considered act of independent significance, so OC exception met, plus the fact that a trust was set up for S to take after the life estate of W ends on the trust with S receiving the residual of the trust. It was pretty complicated question all around. Although I mentioned creditors have no right to reach the trust assets because it was set up and the 100k was removed from the probate proceedings, I did say that W's CP would be subject to the debt (all debts in marriage are community) as well as F and S because liabilities at death.

Was not sure how to split it up as a lien on the condo and house, but after thinking about, F and S take their shares with a lien, W also subject to the lien on her half of condo and house, but will the overage be just excused? I ran out of time anyways and the question was only can the creditors reach the 100k in trust, I said no as it was not part of H estate.

[lvogt0503]

Hey all,

So after reading through this thread, I decided to do a breakdown on what I did regarding the essays. Let me know what you think.

CP/Wills/Trusts

Preliminary Issue – discussed here bc I did not want it to be to choppy in analysis
a. Validity of will
b. Choice of law

First Asset
a. QCP discussion – however, during marriage – QCP is SP for management and control purposes. Therefore, the discussion regarding CP does not come about and therefore, arguments pertaining to management and control and breach of fiduciary duties (e.g., voiding transfer) are brought up and failed out.
b. No anti lucas issue bc at death – so title controls
c. Effect – valid conveyance in joint tenancy and son takes right of survivorship

Second Asset
a. See above for discussion regarding QCP discussion
b. Testamentary transfer of ½ interest is ok for decedent
i. Hinges on whether codicil is valid
ii. Evidence indicates a conservator was appointed – if valid – conservator can make codicils
1. Many argued this was an invalid codicil; however, there was evidence that the conservator (the son) transferred ½ (or full I don’t remember) to friend in line with fathers PAST wishes
2. Counter argument – noted if father present wishes attack on capacity – not much discussion as he was deemed incapacitated – it would fail
iii. Overall – argue valid codicil due to “PAST” wishes of father
1. If valid in full to friend – widow election
iv. If not valid = WIFE

Creditor Issue
a. Was a little confused on this portion
b. Just briefly stated a rule from spendthrifts which essentially stated some courts will not allow creditor to touch the assets in trust. Others will allow creditor to reach only the assets transferred to the beneficiaries.
i. Essentially protection for the assets in trust

Torts
1) Two negligence for each PL
a. Did several standard of care for each – landowner, reasonable person, also argument for negligence per se as there is surely a statute to not have chimpanzee in residential home.
2) Two SL for each PL
a. Wild animal – if he was a trespasser – then supra to prior negligence – otherwise SL
3) Negligent Infliction of Emotional Distress
a. On both - failed
4) Went through the Following Defenses – Supra for each
a. Assumption of risk
b. Contributory
c. Comparative
5) Battery
a. For wiping the solvent on her
b. Failed bc no intent to harm or offend
6) DID NOT BRING UP ANY OTHER INTENTIONAL TORTS AS CONSIDERED INAPPLICABLE

Real Property
1) General leasing issue
2) Term of years
3) Discussion regarding covenants dependent or independent
a. Implied warranty of habitability
b. Implied covenant of quiet enjoyment
c. Abandonment
d. Surrender
i. Treated as a possibly valid surrender bc do not need in writing if remaining portion of lease is less than one year – which it was here
4) Call also stated what counterclaims may be brought, so I discussed nuisance as well

Evidence/Civ Pro
1) generally what everyone else said
2) relevance, competency of witness, hearsay, admission, subsequent remedial measure, lay opinion, expert opinion
a. the hearsay was a little bit of a red hearing on some bc it was the declarant testifying, so as long as it is worded properly on the stand it may not be hearsay bc of personal knowledge
3) Subject Matter Jurisdiction
a. First discuss 12b and that can raise at any time
b. Then FQ/DJ

PR
1) This Essay I Brought Up Everything
a. Unauthorized Practice of Law
b. Hiring Disbarred Attorney - Only in CA – not aba – need written notice to state bar
c. Fee Splitting - Non – Lawyer
d. Ownership of Partnership w/ Non-Lawyer - Evidence stated they “shared a firm” and she “resigned." Resignation is not same as dissociation, so we can make the inference she is still owner of the firm
e. Fee Agreement - New client had no agreement. However, no writing required should have discussed w/ client scope and fee
f. Confidentiality
i. However, implicit consent for employee of firm, e.g., when she came back to firm
g. Competence
h. Threat of Civil Action - CA only bars and ABA does not discuss
i. Frivolous Actions
j. Loyalty - Brief issue regarding the fact that it seemed attorney had a vendetta and was acting against clients interests
k. Duty to Profession
l. Duty to Third Parties

This is essentially what I wrote, so my fingers are crossed this is right! I will say you covered a couple more things than I did, such as NIED in the tort question and fee agreement in PR (I just didn't feel they were necessary, just my opinion). With that being said, if that gives you a 90 and me a 65... I am A-OK with that! Best of luck!

[storrez0724]

Most of you seem to be forgetting that it states the father's best friend was the only witness to the subsequent will and codicil. Which would mean what, it would have to be invalid, on the basis of it failing strict formalities for a will or codicil in California or if it was performed in State X, one would discuss that it would be assumed that State X Will law does not create the power to execute a valid will with only one INTERESTED witness.

For the sake of simplicity, you would take what it told you in the question, that State X only required one witness for a valid will, however, that witness was interested and if using common sense, you would apply the same logic as CA will law that creates a presumption of undue influence if the interested witness is not accompanied by an uninterested witness. In this case, on the basis of State X law, that would have required the best friend of the father to have another witness observe the son creating the codicil. Maybe the son did have the power to create this.

HOWEVER, most of you are missing the bigger picture. The codicil was only witnessed by the person who was given the interest in the land, meaning that he was an interested witness and it's invalid if it was performed in CA, both for only having one witness and because of the presumption created by an interested witness. It would also fail as a holographic will or codicil because not all the material provisions were handwritten and we cannot assume that from the facts. If you stated the will or codicil was executed in State X, then you would have to make the assumption that State X would not allow for the creation of a valid will or codicil with only one interested witness. The only witness to that subsequent codicil was the father's best friend and he was interested and you would have to make a jump by stating that State X law, although it allows for the creation of a will or codicil with one witness, would not allow for that creation with only one INTERESTED witness, thus the codicil is invalid under either CA or State X law.

[mr_pobuho]

Essay Questions (Feb 2019):
http://www.calbar.ca.gov/Portals/0/docu ... ions.R.pdf

[jptx]

Essay Questions (Feb 2019):
http://www.calbar.ca.gov/Portals/0/docu ... ions.R.pdf

Argh! These were incredibly difficult with numerous nuances. Definitely not "gatekeeper" questions.