The Bar Exam Blog Banner Kaplan Bar Review's Twitter Page Kaplan Bar Review's Facebook Page Kaplan Bar Review's Youtube Page Bar Exam Blog RSS Feed Kaplan Bar Review

Bar Points: California Bar Exam Essay Trainer

By on February 29, 2012 in Bar Exam Tips, The Bar Exam

How strong are your issue-spotting skills?  Try this essay question derived from the July 2004 California Bar Exam.  Read the question prompt then choose the best answer from the choices provided.  Tell us your answer in the comments, and we’ll post the explanation later today!

After working for ten years as a deputy district attorney, Lawyer decided to open her own law practice and represent plaintiffs in personal injury actions. In order to attract clients, Lawyer asked her friends and family to “pass the word around that I have opened a solo practice specializing in personal injury law.”

Lawyer’s brother, Bert, works as an emergency room admitting clerk at a local hospital. Whenever he admits patients who appear to be victims of another’s wrongdoing, Bert gives them Lawyer’s business card and suggests that they talk to her about filing a lawsuit. Each time Lawyer is retained by someone referred by Bert, Lawyer takes Bert out to lunch and gives him $500.

One such referral is Paul, who suffered head injuries when struck by a piece of heavy equipment on a construction site at Dinoworld, a local amusement park. Recently Lawyer filed a personal injury action on Paul’s behalf against Dinoworld. Dinoworld’s attorney immediately filed an answer to the complaint. Lawyer and Dinoworld’s attorney agreed to set the deposition of the Chief Financial Officer (CFO) of Dinoworld within the next ninety days.

Lawyer’s brother-in-law holds an annual pass to Dinoworld. Two weeks ago, he invited Lawyer to a special “passholders-only” event at Dinoworld, at which Dinoworld’s CFO led a tour and made a presentation. At the event, Lawyer declined to wear a nametag and avoided introducing herself. She asked CFO several questions about Dinoworld’s finances, and made some notes about his responses.

Which of the following is the best argument in support of the position that Lawyer breached an ethical duty by having her brother pass out business cards to patients on her behalf?

(A) A lawyer may never solicit employment directly from a potential client.

(B) A lawyer may only solicit a client where pecuniary gain is not the lawyer’s primary interest.

(C) A lawyer generally may not have another solicit, on the lawyer’s behalf, a potential client who has no prior or professional relationship with the lawyer.

(D) A lawyer is not permitted to solicit one who has been injured and thus in a particularly vulnerable position.

Get extra practice for the bar exam with our MBE Questions of the Day every Tuesday and Thursday at Facebook.com/KaplanPMBR.  And try our free MBE Flashcards for iPhone/iPod Touch!

 

About Kimber Russell

View all posts by Kimber Russell →

, , , , , , , , ,

  • http://twitter.com/KaplanPMBR Kaplan PMBR

    The correct answer is: (C) A lawyer generally may not have another solicit, on the lawyer’s behalf, a potential client who has no prior or professional relationship with the lawyer.

    Subject to limited exceptions, a lawyer may not solicit potential clients with whom the lawyer or law firm has no family or prior professional relationship. Note that this rule also precludes a lawyer from having someone else, such as the lawyer’s agent, solicit these potential clients. Here, since Lawyer had Bert solicit potential clients as they were being admitted into the emergency room of the hospital, Lawyer breached her ethical duty to refrain from soliciting clients with whom she has no prior personal or professional relationship. Therefore, this is indeed the best argument.

    (A) Incorrect. A lawyer may never solicit employment directly from a potential client.

    This answer choice is incorrect because it is overly broad. In certain cases, a law may indeed solicit employment directly from a potential client. For example, where the lawyer and the potential client have a prior personal or professional relationship, the lawyer is permitted to solicit that client, unless the client has expressed the desire not to be solicited.

    (B) Incorrect. A lawyer may only solicit a client where pecuniary gain is not the lawyer’s primary interest.

    This answer choice is incorrect for two reasons. First, while it is true that a lawyer may solicit a client where pecuniary gain is not the lawyer’s primary interest, this is not the only situation in which a lawyer may solicit a potential client. A lawyer may also solicit a potential client with whom the lawyer has a prior personal or professional relationship. Moreover, even if this statement were true, it would be inapplicable because there is nothing in the facts to indicate that Lawyer was not primarily seeking a pecuniary gain from having her brother solicit clients on her behalf.

    (D) Incorrect. A lawyer is not permitted to solicit one who has been injured and thus in a particularly vulnerable position.

    A lawyer may not solicit employment if doing so would involve coercion, duress, or harassment. While it is true that a person who has been injured may be in a position in which he would be more likely to experience coercion, duress or harassment, this is not necessarily true. Moreover, a lawyer may generally solicit a potential client if the two have a prior personal or professional relationship, even if this person is injured. So, for example, a lawyer may solicit representation of her sister after her sister has been injured in a car accident. Therefore, this is not the correct answer choice.

  • Dana

    should be D