How to Conquer Professional Responsibility on the California Bar Exam
Professional Responsibility is one of the most daunting subjects on the California Bar Exam. Not only is it always tested in some form (on the essays or the performance test [PT] portion), but it sometimes shows up more than once on a given exam, it is often combined with other subjects, and you are expected to know both California and ABA ethics rules.
Here, we give you a few tips for conquering Professional Responsibility on the California Bar Exam.
Professional Responsibility on the California Bar Exam
1. Expect to see it tested!
If you go through an entire bar exam and do not see any Professional Responsibility issues, you probably missed it. You should expect to see it tested on the exam. (However, you should not spot issues where none exist. Some students seem to find ethical issues when they are not being tested!)
So, keep in mind that you will see Professional Responsibility on the California Bar Exam. It is just a matter of where.
2. Know the common crossover subjects.
Professional Responsibility on the California Bar Exam often appears with Business Associations (which you know as “Corporations”), but it can appear with other subjects. For example, it was tested with Evidence in February 2018; it was tested with Civil Procedure and Remedies in July 2009; and, it was tested with Community Property in July 2012. Don’t be surprised if you see it tested in one of these subjects!
It is very common for the State Bar of California to combine Professional Responsibility with another subject. Sometimes, Professional Responsibility will appear as a standalone essay question and be tested with another subject in addition to that question. So be on the lookout for ethical issues in your essay exam!
3. Be aware of the highly tested issues.
California tests certain issues over and over again. (We have a nice summary of these in our California Bar Exam One-Sheets.)
Some of the “favorite” California Bar Exam issues include:
- Fees: the ABA rules prohibit unreasonable fees whereas California prohibits unconscionable fees.
- Communications with a client: keep your client reasonably informed.
- Concurrent client conflicts: California recently revised its rule to be more in line with the ABA Model Rules of Professional Conduct, though it still retains differences! Sometimes it requires written disclosures and other times requires informed written consent. Under the general rule, a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists when (a) the representation of one client will be directly adverse to another client; or (b) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, a third person, or by a personal interest of the lawyer.
- Under the ABA rules, a lawyer may represent a client if: the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; the representation is not prohibited by law; the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and each affected client gives informed consent, confirmed in writing.
- California differs from the ABA rules:
- California requires a written disclosure to a client if (1) the lawyer knows that another lawyer in the lawyer’s firm has a relationship with or responsibility to a party or witness in the same matter; or (2) the lawyer knows or reasonably should know that another party’s lawyer is a relative of the lawyer, lives with the lawyer, is a client of the lawyer or another lawyer in the lawyer’s firm, or has an intimate personal relationship with the lawyer.
- California generally requires “informed written consent” whereby the disclosure of the conflict and the consent must be in writing (unless the conflict arises out of the situations represented above, in which it only requires a “written disclosure”).
- The duty of competence (this is frequently mentioned in essays even when it isn’t the primary issue)
- A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
- California rule: A lawyer is subject to discipline if the lawyer intentionally, recklessly, or repeatedly fails to perform legal services with competence
4. Be aware of the new California rules!
California recently revised its rules to be more in line with the ABA Model Rules of Professional Conduct. Many of the California distinctions remain but some have been abolished. For example, California now prohibits sexual relations with a client unless they pre-dated the attorney-client relationship. (E.g., see February 2016, July 2005, and July 2006.) California also prohibits contingent fees for domestic relations and criminal cases. And, as noted above, California revised its concurrent client conflicts rules.
We expect that some of these new California rules will be tested!
The best way to get good at Professional Responsibility issues is to practice essays. You will see how things are tested and get exposed to structuring a Professional Responsibility answer. One of the difficult things about Professional Responsibility essays is that there are often so many issues that can be raised that it is sometimes difficult to figure out exactly what to talk about. Practicing is the best way to perfect this skill!
Here are a few essay questions with student answers that we recommend you practice to get exposed to some highly tested topics in Professional Responsibility essay questions:
- July 2016 essay question and student answer (see essay question #6 on the exam)
- February 2016 essay question and student answer (see essay question #3 on the exam)
Good luck studying for the California Bar Exam!
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