2019 February California Bar Forum

[JakeTappers]

I think the PR question tangentially focused on retainers - at least I mentioned that, as it was a new firm, a new retainer should have been executed, and the client needed to understand that there was no fee splitting (or the portion of the bill owed to the former firm), but that the firm had reorganized and reformed into a new entity. I went on about the distinctions between retainers between the ABA and California; this was my 'make it fit' attempt because I knew those rules well.

I also said that there existed a conflict between the loyalties to the client and to the former member of the firm on the part of the current attorney, as evidenced by her decision to rehire a disbarred counsel, and provide her with what seemed to be supervisory authority and legal decision making over the former client. I also said that there could not be a blanket statement to ignore an existing court order, that the penalties for that failure could be criminal, and that one is effectively counseling a criminal act; on reflection, that was a stretch, because I should have said that perhaps the order to do a service (play a sport) was inappropriately entered because the court will not usually police injuctions of that type.....

I was rambling at that point bc I elected to do the PT before the PR essay, and left myself only 45 minutes on the PR.

If anything, I really learned that a few more minutes of thinking despite the time ticking away might have produced a better ansswer.

Sheesh. Good job. I mentioned fee splitting, stating that she cant split fees with the disbarred attorney which could be happening given that the structure of the firm was similar and in proximity to the old firm (plus the supervisory nature of her actions). And talked about referrals, since the word was used--even though it was seemingly not discussing an actual referral. And made slight mention of fees. But I didn't talk about retainers much at all (maybe just, needs to be in writing, etc., and not clear that it was). I did zero CA/ABA distinctions...I really couldn't think of any. Were there a ton?

Anyways, I did PT first too (and think it was absolutely the right way to go), but may have sacrificed 5 on the PR. I mentioned the servitude stuff as part of competence but really didn't think about the conflict.

[tarakou]

For PR, I referenced these two rules:
http://www.calbar.ca.gov/Portals/0/docu ... edline.pdf
http://www.calbar.ca.gov/Portals/0/docu ... edline.pdf

In short, if you hire an ineligible/disbarred attorney, you have to send notice to the state bar and to all of your clients if they perform more than just a "support" role. Also referenced the rule against threatening administrative/criminal proceedings to gain an advantage in a civil dispute.

[Cherry805]

I basically did the same, except that I didn't use headings to point out the different discussions(mandatory statute and
court discretion). From what I can remember, my formatting generally consisted of:

1.Forfeiture justified
Rule of Law
Case - Applicable law and facts
My very quick and brief analysis (relied on transcript to support my analysis) and conclusion.

Case 2- Same as above, used this case to extract factors.

This first section was longer than the second call of the question. Mainly because I
didn't quite figure out what examiners were looking for until half way through it.
Once it suddenly clicked, I tried to make it flow better.

2. Exoneration...
Same steps as above.

[Cherry805]

Did anyone discuss the duty of Candor?

Discussed the same rules you and others here have mentioned.
Such as unauthorized practice with non-lawyer, meritorious(frivolous claims),
duty of competence, supervision of subordinate, ??? can't remember what else

[Cherry805]

I didn't discuss conflict of interest, but did mention competence.

I'd be interested to hear what duties people talked about. I couldn't find a conflict of interest or loyalty (other than filing possibly baseless lawsuits that you are presumably billing for); but I wrote about fairness (threats/lawsuits), represented third parties, unauthorized practice of law/assistant (as well as supervision). But I couldn't think of ways to get fees/loyalty/conflicts, the other usual things in.

I felt the same way about fees/loyalty....
I read the fact pattern more than a couple times, kept thinking I was missing something.
At the end, I went with my gut feeling and decided not discuss them. I still feel I made the
right choice. Until May

[barexaminerssuck27]

AM I THE ONLY ONE WHO THOUGHT THIS WAS HARDER THAN JULY BAR EXAM????

[JDJM6215]

Good essays. I was so happy with the tort Q, RP was pretty straight forward. I did rather a lot of typing but ran out of time on the PR.

My thoughts? This was very hard compared to July's, and I almost passed that one, 1434 prior to the reread, which screwed me out of a bunch of points and averaged me to fail by 33 points. I studied hard and felt prepared. Adaptibar total was over 3000 but the MBE sucked. I used every minute and I was so brain dead last night. I just don't know if I did enough but feel pretty good today that it is behind me. Since I do not know how I did, I'm taking a short break, one month off. Then I'm going to practice essays and MPQs starting April so that if I'm not successful this time I'll be prepared for July.

Congrats! Same on studying. Did you do anything other than negligence/strict liability/nied possibility/defenses on negligence?

Not much, I briefly mentioned FP and IIED as unreasonable bc no intent which led me into the NIED. I also mentioned no defense under rescuer and mentioned D was not a good Samaritan LOL (probably wasted my time there). I spent last part of Q on damages, oop compensatory (mentioned punitive but said unreasonable bc no malice). With it being a race horse, my focus on the standards of care on professional and landowner duties, and focus for defenses of assumption of the risk and comparative fault.

[Houstonttt]

AM I THE ONLY ONE WHO THOUGHT THIS WAS HARDER THAN JULY BAR EXAM????

WAY HARDER!!

[maga]

AM I THE ONLY ONE WHO THOUGHT THIS WAS HARDER THAN JULY BAR EXAM????

WAY HARDER!!

I think the first question, acting sort of as a "first impression" gives the impression the essay portion was harder than it is. PR, Evidence, RP questions were relatively easier than the july 2018 essay questions. The CP this time was weirdly hard/confusing than last time for sure.

[califormiagirl10]

Hey guys.. This is killing me, for the the torts question what were the issues? Did I need to do two negligence and strict liability analysis?

[JDJM6215]

AM I THE ONLY ONE WHO THOUGHT THIS WAS HARDER THAN JULY BAR EXAM????

WAY HARDER!!

I think the first question, acting sort of as a "first impression" gives the impression the essay portion was harder than it is. PR, Evidence, RP questions were relatively easier than the july 2018 essay questions. The CP this time was weirdly hard/confusing than last time for sure.

I thought it was about the same as the feb 2018, july 2018 was easier. confused with CP I thought conservator had the right to make the codicil as the facts stated it was the wishes of the father, everyone here, so far states the opposite. I always thought that a spouse could will away his CP too. I said the son could take father's half in the property he tried to JT, I found the JT invalid but thought it was proof of his intent to leave prop to his son but could only give half to son since it was CP, wife automatically would retain her half on his death, so didn't put any omitted child discussion mostly because I forgot, but I know the OC rule states that if another declaration to gift property, then OC would not take.

[ovcovc]

My PT organization is more like:

FACTS
ARGUMENT
1. Forfeiture is appropriate because it is not mandated by the statute
2. Exoneration is not justified because Defendant willfully disappeared, Surety failed to attempt to locate Defendant, and the non-appearance was prejudicial to the State
- trial court has discretion
- state the factors and analyze each
CONCLUSION

I messed up essay 1 though...I guess not enough coffee in the morning, and I ended up not recognizing that the joint tenancy was invalid even though I correctly characterized the condo as QCP. This also led to the non-discussion of the omitted child issue.

Oh wow The omitted child issue didn’t even cross my mind. fml.

I caught it and blabbered a bit but to be fair i don't think its a huge issue. The kid was omitted from the will but was preexisting and otherwise taken care of, at least to some degree. I said that and about not falling under the parent exception and then basically was just like he still gets just the residuary trust, basically.

They hadn't tested CP 4 times in a row ever, so I really did not study for it AT ALL. Thinking back now, the condo was QCP, obviously, but who gets it? Doesn't W take the entirety? Same with the house in State X (unless the codicil was valid)?

jaketappers i think you were right about these in your first post
in the end, wife gets everything
the kid has a future interest under the trust
bill gets nothing
creditors get nothing

EXCEPT in my version this result was reached because condo is CP, not QCP
There had to be a difference between the house in State X and the condo, and I figured it was because condo was in california. I wasnt even sure.
But IF the condo was QCP, the above result would not be reached. QCP = SP in life, CP at death. If condo was QCP then conveyance woudl be valid and Sid would take as a surviving JT.
The reason he does not take is that Hank had no right to make the conveyance, because it was CP. Already during his life. (NOT QCP).

State X house, however, is pure QCP. He would have had power to convey it in life, although he didn't. He also had power to will a half of it as his at-death CP share (QCP treated as CP at death), but he didnt and Sid's attempt fails because conservator, although he can technically sometimes execute a codicil, can't invent new beneficiaries. That's like the opposite of conserving)

+Why don't ya'll stop with the omitted kid, only a kid born afterwards is omitted and this was a pre-existing kid. You can disinherit whomever you want, if you do it knowingly.

I really wish the above analysis were correct.. then I could sleep easier because that’s how I approached it. But on reflection I think property purchased in CA while living in a non-community property state is QCP, not CP

This is actually very blurry. I have spent considerable time trying to establish it afterwards and still can't. It's been treated differently over the years and there is back and forth on this, and the fact that these situations are considerably rare doen't help.

I understand statute somewhere says "wherever situated" . But my instinct just says that property in CA would merge into CP when they move to CA. I also think that IN PRACTICE good luck conveying without wife's consent in these circumstances.

Notwithstanding any merits reasoning, I also think there has to be a reason the fact pattern included two properties and not one. These properties have to have been in different status.

[ovcovc]

For PR, I referenced these two rules:
http://www.calbar.ca.gov/Portals/0/docu ... edline.pdf
http://www.calbar.ca.gov/Portals/0/docu ... edline.pdf

In short, if you hire an ineligible/disbarred attorney, you have to send notice to the state bar and to all of your clients if they perform more than just a "support" role. Also referenced the rule against threatening administrative/criminal proceedings to gain an advantage in a civil dispute.

Me too. My problem is these were pretty much the only points I focused on, as well as on whether she is in support riole. I thought she can ONLY be in support role and there has to be notice?

I think the notify rule is from the new CA revision that went into effect November, that is why they put it in? dont think it was there before.

I also wrote about the whatever they actually filed, tortious interference, whether it had merits or was vexacious whatever.

But I did not find any other issues ((((

I did not think there was fee splitting, where is it? The disbarred one is not an attorney and this is the same firm.

[ovcovc]

You know, I was really adamant that I was going to take every fact and consider “why” and that is a perfect example. Had to be a difference between condo and house. And you’re right, I think: “In the divorce context, quasi-community property includes all real estate wherever it is located. In the death context, quasi-community property real estate includes only real estate within California.”

So, def missed that. Probably a 55 coming my way. Fuckkkkkkkkkkk

No-no! I am the first advocate that there musty have been a difference between the properties.

But I think the difference is at-life, not at-death.

ALL QCP is treated as CP at death. When the acquiring spouse dies, QCP is 50 percent his to devise and 50 percent belongs to the surviving spouse. Which didnt matter here as to state X house as we agree codicil was invalid, void, whatever. And wife stands as the will beneficiary anyhow.

The issue was an at-life transfer. QCP is treated as SP at life. So he could convey.

No one doubts he could convey the State X house but he did not.

Whether he could convey the condo at all without wife's consent is the issue. I am somehow convinced that THAT was the difference. That CA house became CP when they moved to CA and was non coneyable. That is because CA has a reach ove this house. It is here. And so are theyr. And it was purchased during marriage. I since spent time trying to look into this and it is actually not clear at all. There seems to aso have been back and forth on this. And this is not a usual situation, spouses purchasing a CA property and then moving here.

But unless this was the difference there is no reason for there to have been two properties.

[JakeTappers]

Shit. So he had 100% ability to transfer the state x house? See, I just figured QCP was treated as CP. Never realized that it wasn’t until divorce that that was the case (only did about 5 practice essays but none of them had that issue). I guess it doesn’t matter as much here since he only attempted to convey the CA condo but troubling omission.

[tarakou]

For PR, I referenced these two rules:
http://www.calbar.ca.gov/Portals/0/docu ... edline.pdf
http://www.calbar.ca.gov/Portals/0/docu ... edline.pdf

In short, if you hire an ineligible/disbarred attorney, you have to send notice to the state bar and to all of your clients if they perform more than just a "support" role. Also referenced the rule against threatening administrative/criminal proceedings to gain an advantage in a civil dispute.

Me too. My problem is these were pretty much the only points I focused on, as well as on whether she is in support riole. I thought she can ONLY be in support role and there has to be notice?

I think the notify rule is from the new CA revision that went into effect November, that is why they put it in? dont think it was there before.

I also wrote about the whatever they actually filed, tortious interference, whether it had merits or was vexacious whatever.

But I did not find any other issues ((((

I did not think there was fee splitting, where is it? The disbarred one is not an attorney and this is the same firm.

So with the “support” role rule, it basically says if they perform only a support role (like a courier or mail clerk) then you don’t have to give notice. If they act like a law clerk or a secretary (i.e. draft legal documents), then you have to comply with the notice rules.

I focused on those two rules primarily as well, but threw in unauthorized practice of law and no filing of frivolous suits. Also talked about duty to communicate—she should have talked to her client about the legal strategy before jumping the gun and filing stuff.

[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.

[JakeTappers]

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.

[AgapeEsquire]

Not so fast...

Sounds like you've raised valid issues surrounding the facts along with good solid arguments - that doesn't always translate to a 55. Maybe higher, and much higher depending on the scale. They want to see you analyze.

It was an intimidating first essay; especially, for many out-of-state takers from places/schools that do not know or had to study CP on their own. Couple that with CA wills and then trusts. What a cluster!! I can imagine the essay question may have drained quite a bit of helium from everyone going in on a high. I'm good with all of it, but I have to admit - as I kept reading my eyes grew wider and wider. Quite a few major/minor issues.

[Neveragain]

Did the PT task memo ask for a separate Statement of Facts?

[NYlawgrad2011]

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.

[JakeTappers]

Ok tell me what I missed. Sure it’s a lot.

First: community property, quasi community property, doesn’t matter that his money and his name only. Condo is cp. only has 50 percent interest. Cant create joint tenancy. Wife takes it all.

First will is value due to COL, likely. Stan is sort of omitted child (talk about condo and trust). Codicil is invalid due to capacity maybe? Bill doesn’t take.

Trust seems valid even though revocable. Creditors Can’t get by CP still liable, etc.

Second: strict liability for wild animals or propensity, premises liability, negligence as to both ps, not nied argument I guess, not battery or assault, assumption of risk and contributory risk analysis?

Third: Quiet enjoyment/habitability/constructive eviction and damages re: rent and finding new tenant?

Four: basically just hearsay, relevance, remedial, expert/opinion, and a really straight forward diversity?

Five: idk? All the normal stuff?

When trying to go to sleep, I realized that the gardener's testimony about what she said to the neighbor was probably present sense impression (at least "it looks old and has cracks" or whatever) and I'm not sure I included it. Any other exceptions/exemptions?

[JakeTappers]

Did the PT task memo ask for a separate Statement of Facts?

I don't think so, it just didn't not ask for a facts section. Most people who have commented say they put one in but can't say whether that was required or not.

[DZNZ]

Did anybody discuss Lucas or Anti Lucas gifts and Transmutation issues in the first essay ??

[Cherry805]

I honestly can't remember anymore if I did mention transmutation or not.
I know the thought crossed my mind, but can't remember if I actually analyzed it.
I do remember discussing Equal Management and Control for substantial gift or conveyance
of real property and Lucas vs. Anti-lucas.