Tues. AM Instruction Cover for Ques.

MINNESOTA

STATE BOARD OF LAW EXAMINERS

__________

FEBRUARY 22, 2000

TUESDAY MORNING SESSION

__________

Your answer should demonstrate your ability to analyze the facts in the question, to tell the difference between material facts and immaterial facts, and to discern the points of law and fact upon which the case turns. Your answer should show that you know and understand the pertinent principles and theories of law, their qualifications and limitations, and their relationships to each other.

Your answer should evidence your ability to apply the law to the given facts and to reason in a logical, lawyer-like manner from the premises you adopt to a sound conclusion. Do not merely show that you remember legal principles. Instead, try to demonstrate your proficiency in using and applying them.

If your answer contains only a statement of your conclusions, you will receive little credit. State fully the reasons that support your conclusions, and discuss all points thoroughly.

Your answer should be complete. You should not volunteer information or discuss legal doctrines that are not pertinent to the solution of the problem.

Unless a question expressly asks you to use Minnesota law, you should answer according to legal theories and principles of general application.

QUESTION #1

Builder agreed to build an office building for Owner. Builder and Owner entered into a written contract which they both signed. Among other provisions, the contract provided, "[t]his agreement states the complete and final version of our terms." The written contract also provided that, "[t]his agreement may not be modified except by written agreement, signed by Owner."

The written contract provided that Builder would be paid progress payments (based on progress in completing the project) according to a set schedule. In order for Builder to obtain a progress payment, the contract provided that Builder must prepare a statement of completed work and "obtain signed approval of the architect or agent" and then submit the signed statement to the Owner.

Builder sent Owner the first three statements of completed work after first obtaining the signature of Owner's construction manager. Owner sent payments for the work described in the statements.

When Builder sent Owner the next six statements of completed work, also signed by the Owner's construction manager, Owner did not respond. When Builder inquired why further payments had not been made, Owner explained that the statements of completed work needed the signature of the architect or an agent of the architect. The architect refused to sign the statements, complaining that Builder's work was substandard. Builder refused to perform further. Owner sued for breach of contract and Builder counter-claimed for the six progress payments.

At trial, Builder sought to introduce evidence of Owner's payment of the first three progress payments after submission of statements of completed work signed by Owner's construction manager. Owner moved to have this evidence excluded from the jury on the basis of the parol evidence rule and the contract clause prohibiting modifications except in a writing signed by Owner. Owner and Builder stipulated that Owner's construction manager is an authorized agent of Owner, but not of the architect.

What arguments can Builder make to have the disputed evidence go to the jury? Evaluate the strength of Builder's arguments on this point. Do not discuss other issues.

MINNESOTA BAR EXAMINATION

FEBRUARY 22, 2000

REPRESENTATIVE GOOD ANSWER

QUESTION 1

Builder will have to answer to two arguments to get the disputed evidence before the jury. The first issue is the parole evidence rule. This rule provides that when the parties reduce their agreement to a final, written form, evidence of other prior or contemporaneous statements is not permissible when such evidence contradicts a term in the writing.

First, the parole evidence rule clearly applies to this contract because the parties have a fully, integrated written contract. Not only do they have a written contract that they both signed, the contract provides that it is "complete and final." This is the quintessential fully integrated agreement.

So, does the disputed evidence contradict a term? Builder will agree that it does not because the phrase "architect or agent" is ambiguous. One exception to the parole evidence rule is when a writing contains an ambiguous term. In that case, extrinsic evidence may be admitted to explain the unclear term. Importantly, here the contract just says "architect or agent," and the parties agree that the construction manager is an agent of Owner, if not of the architect. This ambiguity should allow the evidence in. Much more fundamentally, Builder can argue that the disputed evidence doesn't come within the ambit of the parole evidence rule at all, because it is not evidence that precedes, or is contemporaneous with, the agreement. Rather, the evidence involves conduct after the agreement was signed. Hence, by its terms, the rule does not apply.

For these two independent reasons, Builder should definitely defeat any parole evidence rule objections. The one remaining question here is the proper role of the judge and jury in this situation. Generally speaking, the interpretation of an ambiguous contract is a question of law. Since the contract here, however, is ambiguous, Builder should be able to get this evidence before the jury. I discuss waiver of the condition precedent and another argument for Builder, below.

The second main issue is the provision in the contract that purports to be subsequent modifications to the agreement except by a writing signed by Owner.

First, Builder can argue (persuasively) that this isn't a modification at all. Rather, as noted above, it is a dispute over how to interpret the existing fully integrated agreement. For the reasons noted above, Builder should prevail on this argument.

Second, Builder can argue that, as a matter of law, such a provision will not be enforceable. While it may seem surprising, the majority rule is that parties to an agreement may not preclude themselves from entering into contractual relationships in the future. As a result, a provision such as this one is unenforceable, and an oral modification is permitted. Some states, such as New York, have abolished this rule and enforced provisions such as the instant one, but the majority rule is that an oral modification is permitted.

Assuming it's permitted, and assuming this is a modification, does there need to be consideration? While the parties are business people, it's not clear that this is the sale of goods governed by Article II of the UCC. True, Owner will end up with a building, but Builder is being hired for providing the service of building.

Under the UCC, a good faith modification of a contract does not require consideration. Under the common law, though, because Builder has a pre-existing duty to build, there is no consideration for the modification. This appears true. Hence, if Builder is to win here, Builder must win on the argument that this isn't a modification at all. Otherwise, there doesn't seem to be legally bargained - for consideration in the modification.

Next, Builder can argue that Owner waived a condition precedent. The contract appears to contain a condition - in order to obtain a progress payment, Builder must get approval. For 3 months, Builder obtained the signature of the construction manager only. At no time did Owner object thereto. Not only does this suggest that Builder's interpretation of the contract correct (that the manager is an "agent"), it also may constitute a waiver. Alternatively, Owner may be estopped from insisting on the signature of the architect. If so, the evidence could definitely get to the jury. One thing we don't know is where was the architect during the first 3 months? Did he or she implicitly approve? Or did the Owner only decide to insist on his or her opinion later? These would be relevant facts to know here.

Finally, Builder could argue that the provision is unconscionable, because it requires Owner's signature, but not Builder's. Builder can then argue that this provision is severable from the rest of the contract. This is unlikely to succeed. Builder is a businessperson and the contract is certainly not one of adhesion - Builder could've bargained for a better modification clause. In addition, as noted, the modification still fails for lack of consideration.

Builder should prevail because the contract is ambiguous, permitting reference to the disputed evidence. As noted, it's not parole evidence at all. Therefore, Builder should succeed in getting this evidence before the jury.

QUESTION #2

Sarah and her husband, Tim, a professional race car driver, were walking down the street when a car driven by a drunk driver, swerved and veered onto the sidewalk striking Tim and severely injuring him. Sarah watched in horror as her husband was injured. Fortunately, Sarah was not struck by the car herself and suffered no physical injuries.

Tim was unable to race as a result of his injuries and sued the drunk driver. In court, the judge granted Tim $15 million as a compensatory award for his injuries, with the damage award being based on the lost earnings that Tim suffered as a result of having to terminate his career as a professional driver.

Tim also received an additional $5 million (for a total of $20 million) as a punitive award to punish the drunk driver and deter him from engaging in this activity in the future.

Tim paid his attorney a fee of $8 million out of his total award of $20 million. The attorney's fee was a contingency fee of 40% of the total amount Tim received (40% of $20 million is $8 million).

Sarah herself suffered severe emotional distress from having watched her husband being injured. She also sued the drunk driver for the pain and suffering she experienced from this emotional distress. She collected $1 million as compensation for these injuries. She received this amount as settlement of her lawsuit and not as a court ordered judgment, as was the case with Tim's awards.

Later in the same year, in an entirely different matter, Sarah's old sexual harassment lawsuit against her former employer was settled. Sarah received $2 million as compensation for emotional distress she had suffered at her former job due to her employer encouraging her fellow employees to humiliate her with inappropriate remarks and vulgar jokes.

Please discuss the federal income tax treatment to: (i) Tim from his receipt of the $15 million award; (ii) Tim from his receipt of the $5 million award; (iii) Tim from his payment of the $8 million attorney's fee (do not discuss the attorney's tax treatment, but only Tim's); (iv) Sarah from her receipt of the $1 million award; and (v) Sarah from her receipt of the $2 million award. Please confine yourself to discussing only the federal income tax treatment of these transactions. It is not necessary to compute the actual amount of tax owed.

MINNESOTA BAR EXAMINATION

FEBRUARY 22, 2000

REPRESENTATIVE GOOD ANSWER

QUESTION 2

Income is economic benefit to an individual which the taxpayer can dispose, commingle or use at his discretion. Unless there is an exception, all income is reportable. Individuals usually report income on the cash method basis. This means income is reported when it is received and deductions are taken when they are paid out.

Recovery of tort damages are taxable unless they are for physical injury. Punitive damages are taxable income regardless of being awarded for physical injury or otherwise.

The $15 MM awarded to Tim as compensatory damages is not taxable. Even though the award is for lost future earnings, the loss of earnings arises out of a physical injury caused by a tortious act.

Because Tim is a professional race car driver, these lost earnings may be a loss to his business as a race car driver. Lost earnings and profits to a business are reportable and taxable. However, the award is to Tim and any inference that may arise that this is a business loss would not be controlling.

The $5 MM award is for punitive damages, is reportable and taxable. As a cash method taxpayer, it is reportable in the year received and payment is made to him.

Income in this amount would also trigger the alternative minimum tax, potentially increasing his tax liability even more.

The $8 MM paid to counsel has two components. The 40% paid on the $15 MM compensatory award is a personal expense and is not deductible.

The 40% paid on the punitive award can be used as a deduction for determining adjusted gross income. This was a cost related to production of income and reduces the amount of adjusted gross income. It is deducted in the year it is paid out.

The facts indicate Sarah suffered pain and suffering from Tim's accident, even though there was no physical contact with her. This is an indication that Sarah suffered a physical injury, and therefore the $1 MM awarded to her would not be taxable.

The $2 MM awarded to Sarah for sexual harassment on the job is taxable in the year received. It is an award arising from an employment situation and there is no indication of physical injury, only emotional distress.

As husband and wife, Sarah and Tim could report this income on separate tax returns or on a joint return. Because of the amount involved, they will experience a partial phase out of itemized deductions and other potential tax deductions. Also there may be alternative minimum tax consequences which will have to be reviewed.

QUESTION #3

Testator died last year after a two-year battle with cancer. She was a domiciliary of State B. She left a wholly handwritten document labeled "My Last Will" which was signed and dated by Testator one year before her death in State A. State A permits holographic wills. This document, however, was not witnessed. This document states:

I give my gold bracelet to Sister.

I give my silver earrings to Niece.

I give $10,000 to Stepchild.

I give the residue of my estate to my friend, Friend.

Three months before she died, Testator sold her gold bracelet for $300 and used the proceeds to buy a lawnmower. Two months before she died she mailed a check to Stepchild for $7,000. On the back of this check she wrote: "Part 1." Stepchild cashed this check.

Testator's silver earrings were stolen by an unknown thief two days before she died in the hospital where she had been in a coma for the two weeks preceding her death. Following her death, her executor received a check in the amount of $200 from her casualty insurer in satisfaction of her estate's claim for that loss.

Testator was survived by Sister, Niece, Stepchild and Heir who would have been Testator's only heir if Testator had died intestate. Friend predeceased Testator, but Friend's daughter, Child, survived Testator. Stepchild had been raised by Testator as if he were a biological child of the Testator.

State B law provides that "except for wills executed outside of the state in accordance with the laws of the place of execution, no will may be probated in this state unless the same shall be witnessed by two disinterested witnesses."

Fully discuss what, if anything passes from the Testator's estate to Sister, Niece, Stepchild, Child and Heir? Explain.

MINNESOTA BAR EXAMINATION

FEBRUARY 22, 2000

REPRESENTATIVE GOOD ANSWER

QUESTION 3

Testator wrote a holographic will. A holographic will is one that is entirely handwritten by the decedent and signed (and dated) by them. That is what Testator did and the will would meet the requirements of a holographic will. Testator died in State A which permits holographic wills. But Testator was domiciled in State B. As such, State B's laws would apply to the probate of her will.

State B requires that a will have two disinterested witnesses. Testator's will did not. But State B also allows the probate of a will executed outside the State provided they met the laws of the state of execution. Testator executed her will in State A. It met the requirements of State A. Therefore State B will probate the holographic will as a valid will. The following devises will be provided under this will.

Sister - Testator left a specific devise of "my gold bracelet" to Sister. This was a specific devise as Testator specified "my" gold bracelet. She did not leave just any gold bracelet, but this specific one. Unfortunately the bracelet was sold. Sister will receive nothing. When a specific devise fails because the item is no longer there, it is treated as if the testator revoked the gift. It is assumed the testator knew what they have left in their will and chose to change the terms. If Testator had wanted the Sister to have the value of the gold bracelet, she would have left it as a general devise. But it is a specific devise that fails. Sister gets nothing.

Niece - Niece was to receive "my silver earrings." Again this is another specific devise. Unfortunately the earrings are gone also, they were stolen. But the earrings are not gone through any act of the Testator. The Testator had no intention of denying her niece this gift. But there is an insurance check for the earrings. The Niece should receive the $200 reimbursement to the estate for the loss. Although this was a specific devise that failed, it was by no act of the Testator. Since there was insurance to cover it, that money should go to the gift recipient rather than the estate. Niece gets $200.

Stepchild - Stepchild was to be given $10,000. Stepchild can inherit from stepparents the same as natural children. This is true even if a formal adoption did not occur. Regardless, Testator can leave devises to whomever she wants. Stepchild received $7,000 from Testator prior to Testators death. The law assumes that gift from a Testator to a will beneficiary are advances on the devise of the will. They are to be subtracted from the value of the will devise to them. The value of stepchild's gift under the will should be reduced by the value of the advanced payment of $7,000. This also was clearly Testator's intent. The notation of "Part 1" on the check, might indicate the first part of a larger pay out. Probably the devised $10,000. But the notation was not necessary. Stepchild will receive his devise less the $7,000. Stepchild receives $3,000. This $3,000 is a general devise. The will did not specify where the money was to come from. As a general devise it can be satisfied out of any estate assets. If there is sufficient cash, the $3,000 will come from there. If there is not sufficient cash, assets in the residue will be sold or liquidated to achieve the difference.

Child - Child is the child of Friend. Friend is dead and Child is her only heir. Unfortunately Friend predeceased Testator and did not inherit from Testator. Because of that, child will not get anything.

When a beneficiary predeceases a Testator, the gift lapses and falls to the residue. In this case it is the residue. Many times gifts such as this can be saved by anti-lapse statutes. The Uniform Probate Code (UPC) has a provision that if a bequest would lapse due to the beneficiary predeceasing the Testator, the devise will be saved if the beneficiary is the grandparent of the Testator or the grandparent's lineal descendant. If this occurs, the bequest passes to the beneficiary's natural heirs. But this is not a case of the beneficiary being a lineal descendant to Testator's grandparents. The devise is to a friend. Therefore the anti-lapse statute does not apply. The gift fails and Child does not receive anything under this will.

Heir - Heir is Testator's only heir if Testator had died intestate. Any assets in the estate that are not probated under the will are treated as intestate property. Therefore, anything not specifically gifted under the will, or explained above will be given to Heir.

An argument could be made that since Heir was not mentioned in the will he (she) should not receive anything. Testator excluded him. But that is not how the law interprets it. The law does not exclude natural heirs unless the Testator makes a specific statement in the will naming the party to be excluded and the reason why. Without this expressed statement, the fact that Heir was not mentioned is not a bar to inheritance. Heir receives the residue from the estate.

QUESTION #4

Walter and his friend Tiny decided to rob Bartender who worked at a bar near Tiny's house. They thought that Bartender would be likely to carry cash on his person when he left the bar at closing because of tips he earned.

One evening Bartender left work, was walking by Tiny's house, and Walter called out to Bartender, asking if he could help save his puppy that had fallen into a heating vent. After luring Bartender into Tiny's house, Walter wrestled him to the floor. Tiny took Bartender's cash, while Walter obtained two belts and tied Bartender's feet and hands. After tying Bartender, Walter and Tiny stuffed a cloth into Bartender's mouth and then carried Bartender to a room in the basement.

In the basement, Walter and Tiny took an electrical cord and wrapped it around Bartender's neck. Together they pulled up on the ends of the electrical cord. After two or three minutes, Walter released the cord and told Tiny that he "couldn't do this." Then Walter left the basement and returned upstairs. Bartender was alive at this time. According to Walter, Tiny remained in the basement, Tiny placed a metal bar on Bartender's neck, stomped on the metal bar and then hit Bartender on the head with it. Tiny then came upstairs and told Walter what he had done, and that Bartender was dead. Walter and Tiny divided Bartender's money between them.

Several days later, a police officer walking her routine beat through the neighborhood, noticed a rare species of rose on a trellis attached to the house just over the basement window. The officer entered the yard to get a closer look at the rose bushes. As she approached the area of the basement window, the sun was shining brightly and the officer could see what appeared to be a body lying on the basement floor.

The police officer then went to the door and knocked. Walter and Tiny both came to the door. The police officer asked Walter and Tiny to go to the police station to be interviewed. At the station, a sergeant who was in charge of the investigation put the men into separate rooms and interviewed Walter without first giving him a Miranda warning. Walter gave a statement, but made no incriminating statements regarding the murder.

(continued on next page)

Leaving Walter alone for a few minutes, the sergeant left the room and went to where Tiny was being held. The sergeant gave Tiny a Miranda warning in which Tiny was told:

"Anything you say can be used against you in court. You have the right to talk to a lawyer before we question you, and to have him with you during questioning. You have the right to the advice of and presence of a lawyer even if you cannot afford one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court."

Tiny waived his rights and confessed that he and Walter were involved in the murder. Based upon this conversation, the sergeant arrested Tiny. Then the sergeant returned to Walter, told him he was under arrest for Bartender's murder, and administered a Miranda warning. Walter then confessed to his involvement in the incident.

At trial, the doctor who conducted the autopsy, testified that Bartender died from multiple causes:

Blunt force trauma to the head;

A broken bone in his neck which could have been caused by excess trauma such a strangulation or pressure to the neck;

Asphyxia which could have been caused independently by the presence of gags in his mouth.

Walter later changed his plea to "not guilty" and went to trial on murder charges.

What pretrial matter(s) might Walter raise?

What specific charge(s) of homicide might Walter face?

What defense(s) might Walter raise?

MINNESOTA BAR EXAMINATION

FEBRUARY 22, 2000

REPRESENTATIVE GOOD ANSWER

QUESTION 4

Pre-trial matters which Walter might raise - Walter could make a motion to suppress the evidence (i.e. the body of Bartender) on the grounds that it was the fruit of an unlawful search or seizure under the 4^th amendment. In order to assert his right under this amendment, Walter (W) must show that he was subjected to a search by a government agent and that he had a reasonable expectation of privacy. The police officer who noticed the body in the basement was a government agent. W was in Tiny's house, so he probably has no expectation of privacy there unless he was an overnight guest. W will argue that the police officer was not lawfully on the property of Tiny when she noticed the body. He is correct that she as trespassing (going onto Tiny's property without his permission) in order to get a better look at his roses. If a police officer is lawfully on the premises, she can seize anything in plain view which is immediately apparent to be the fruit or instrumentality of crime or other contraband. He will argue that she was not lawfully on the premises, thus the evidence which gave her probable cause to take W and Tiny to the police station should be suppressed.

W can also argue that when he was taken to the police station he was in custody and not free to leave. In this situation, a defendant must be given Miranda Warnings prior to any interrogation. He did not receive his warnings in violation of the 5^th amendment and the initial statement he gave should be suppressed. The statement he gave later after receiving Miranda warnings would be admissible provided his confession was voluntary and intelligent.

Specific charges of homicide - W and Tiny entered into a conspiracy to rob Bartender when they agreed together to commit the crime and took an overt step in furtherance of the crime. In fact, they succeeded in robbing Bartender (B). They took cash from the person of B with the use of force (W wrestled him to the floor and tied him up). Then they carried B to the basement and tied a cord around his neck. Here, W is probably guilty of kidnapping since B was moved and confined against his will. Both robbery and kidnapping are inherently dangerous felonies and thus a killing which occurs in the course of committing such a felony would be considered felony murder. As co-conspirators, W and Tiny are liable for all acts committed in furtherance of the conspiracy and which were foreseeable.

It is also arguable that W could be charged with intent to commit serious bodily injury murder because his acts and those of Tiny, his co-conspirator, were clearly intended to cause serious bodily injury. Stuffing a cloth in his mouth and tying a cord around his neck is clearly meant to cause serious injury. Tiny's acts, if attributable to W, might even be considered "depraved heart" murder, evidencing a reckless disregard for a substantial risk to human life.

W's Defenses - W will argue that Tiny's acts actually caused B's death and that he is not liable for B's murder because he left the basement. He could argue that the object of the conspiracy (robbery) had been completed and thus Tiny's violence to B in the basement was not in furtherance of the conspiracy and were not foreseeable. B was already restrained. W will probably have a good defense here, although the evidence showed that death could have come from suffocating from the gags which W did help to put in B's mouth. W could argue that he withdrew from the conspiracy when he said "I can't do this," but this would not be a good defense. The conspiracy was already completed when they got B's money upstairs. To withdraw, you must verify all co-conspirators and try to thwart the commission of the crime.

MINNESOTA

STATE BOARD OF LAW EXAMINERS

__________

FEBRUARY 22, 2000

TUESDAY AFTERNOON SESSION

__________

If your answer contains only a statement of your conclusions, you will receive little credit. State fully the reasons that support your conclusions, and discuss all points thoroughly.

Your answer should be complete. You should not volunteer information or discuss legal doctrines that are not pertinent to the solution of the problem.

Unless a question expressly asks you to use Minnesota law, you should answer according to legal theories and principles of general application.

QUESTION #5

You are a law clerk to a judge assigned to hear a disciplinary matter brought by the State Disciplinary Counsel's Office (SDCO) alleging that Attorney A has violated Rule 1.8 of the Rules of Professional Conduct by having entered into a prohibited transaction - a book contract - with a client. Rule 8(d) provides that "[p]rior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation."

The complaint alleges that:

Attorney A represented Criminal Defendant, who was charged with first-degree murder in the death of Criminal Defendant's wife.

During the course of the representation, Attorney A entered into a book contract with BBB Publishers to produce a book regarding the case.

Attorney A accepted a $50,000 advance cash payment on the contract while still actively representing Criminal Defendant.

The rules of evidence apply to this non-jury hearing. The following summarizes the anticipated testimony of witnesses:

Attorney A represented Criminal Defendant in the murder case. Attorney A will testify that:

Immediately after Criminal Defendant's arraignment on January 13, 1998, Agent, an agent for BBB Publishers, approached Attorney A and said BBB Publishers was interested in purchasing the story of his representation of Criminal Defendant.

Attorney A said he might be interested at a later date, but forcefully declined to make any agreement with Agent or with BBB Publishing at that time.

A $50,000 cash deposit to Attorney A's checking account that was made on January 30, 1998, constituted a fee from a former client whose name Attorney A will not divulge because of attorney/client confidentiality.

Attorney A and Criminal Defendant discussed the possibility of pleading to a lesser charge, but it was Criminal Defendant's decision to go to trial and seek an acquittal.

(continued on next page)

The SDCO will call Agent, who is expected to testify that:

Agent told Attorney A after the January 13, 1998, arraignment that BBB Publishing, her former employer, would pay him $1 million for the story of Criminal Defendant's representation.

Attorney A told Agent to talk to him later. One week later, she phoned Attorney A and repeated the offer. Attorney A replied that he would accept but did not want a written contract and wanted an immediate advance payment in cash.

Agent made a cash deposit to Attorney A's account sometime after January 21, 1998.

Criminal Defendant will testify that:

Criminal Defendant talked to Attorney A in early February 1998, about pleading guilty to a lesser charge of manslaughter instead of contesting the murder charge. He told Attorney A he would rather take the maximum sentence on manslaughter than risk a life imprisonment sentence on a murder conviction.

Attorney A insisted on going to trial.

Criminal Defendant felt that Attorney A's insistence on going to trial might be motivated in part by his desire to try a high-profile case, but Criminal Defendant acquiesced because he trusted Attorney A.

Criminal Defendant was found guilty of murder and sentenced to life imprisonment.

Laura Librarian will testify that:

She is the librarian at the prison in which Criminal Defendant is serving his sentence and she has observed Criminal Defendant doing extensive research in the law library on the grounds for obtaining a new trial.

In June of 1999, shortly before Attorney A's disciplinary hearing, Criminal Defendant asked for volume 15 of the F.3d series and she gave it to him. [It is stipulated that 15 F.3d contains an 8th Circuit decision ordering habeas corpus relief for a defendant whose attorney had signed a book contract about the defendant's case while representing defendant in the case.]

Anticipate the evidentiary issues that may arise during the hearing. Analyze and discuss each, offering your opinion as to the admissibility of the testimony.

MINNESOTA BAR EXAMINATION

FEBRUARY 22, 2000

REPRESENTATIVE GOOD ANSWER

QUESTION 5

The threshold inquiry for admissibility of evidence is whether the evidence is relevant. Evidence is relevant if it tends to make a material fact more or less likely. Here Attorney A is charged with entering into a book deal based on his client's case, prior to the conclusion of trial. Thus, any evidence tending to make this fact more or less likely is considered relevant and will be admissible.

Attorney A's testimony.

The first two facts presented in A's testimony raise hearsay issues. Hearsay is an out of court statement offered for its truth. Hearsay will not be admitted unless there is an exception. Here, Attorney A wants to testify that Agent approached him and offered him a deal for a book. Attorney A also wants to testify that he refused the deal. This testimony is hearsay, that is, Attorney A wants the out of court statements admitted to prove the contents of the statements are true. Attorney A may argue that these statements are non-hearsay because they are legally operative words. "Legally operative words" such as "I accept" in contract formation have independent legal significance and are thus considered non-hearsay. Most likely, the court would reject this argument and find that the statements are hearsay and therefore inadmissible.

Attorney A also refuses to divulge the name of the client who allegedly gave him $50,000 claiming attorney/client privilege. The attorney/client privilege protects those communications between an attorney and his client made in furtherance or related to representation. Here, a client's name is not protected as it falls outside this privilege. Moreover the attorney/client (hereinafter A-C) privilege will not operate to defraud a third person or advance an illegal purpose. If the court construes Attorney A's refusal to divulge his client's name as adversely affecting criminal defendant or furthering an illegal purpose then Attorney A. I would have to divulge his client's name.

Attorney A also wants to testify about communications between him and criminal defendant. As stated earlier, normally these communications would be privileged under the A-C privilege. An attorney's work product, including his mental impressions and trial strategies are privileged except when they are placed at issue, such as in a malpractice case or as in the present case. Thus, Attorney A's statements to criminal defendant would probably be admissible. Moreover, the facts state that criminal defendant also wants to testify regarding these communications. This would be viewed as criminal defendant waiving his privilege of A-C confidentiality and therefore both Attorney A and criminal defendant could testify regarding communications that took place during criminal defendant's representation.

Agent's Testimony.

Agent's testimony also raises hearsay issues. Agent wants to testify that she made an offer to Attorney A for criminal defendant's story. This appears to be hearsay because it is an out of court statement offered for its truth. However, the court may again consider this non-hearsay since the words constitute an offer, i.e. the words have independent legal significance. This evidence may also be admitted to show Attorney A's motive in trying the case.

Agent also wants to testify that Attorney A later accepted the deal and said, "he would accept but did not want a written contract and wanted an advancement in cash." This statement falls within the non-hearsay category as an admission by a party-opponent offered against the party who made it. Thus, it is admissible.

Agency also wants to testify that she deposited cash into attorney's account one week later. Agent has first hand knowledge of her own actions, and thus is competent to testify on this matter. This information also is relevant to prove attorney's intent or motive in trying the case.

Criminal Defendant's testimony.

As stated earlier, any communications between criminal defendant and Attorney A would normally be privileged. However, criminal defendant has waived this privilege and placed Attorney A's performance at issue. Thus, the communications come in.

Criminal defendant cannot speculate as to Attorney A's thoughts regarding going to trial, but may testify that he trusted Attorney A.

*Criminal defendant's statements regarding he did not want to go to trial, but Attorney A said he did, may be admitted to impeach Attorney A's testimony as a prior inconsistent statement. Likewise Attorney A's testimony could be used to impeach criminal defendant. The felony conviction is public record and will be admitted because it is relevant to the current matter.**

Librarian's testimony regarding Criminal Defendant's legal research may be admitted to show possible motive or bias for criminal defendant's testimony, as it is relevant and based on first hand knowledge. Evidence that tends to show a witness' bias or motive in testifying is admissible.

*If criminal defendant states that attorney said he "(Attorney) wanted to go to trial," this may be used to impeach attorney if attorney testifies otherwise. A prior inconsistent statement may be used to impeach a declarant and is therefore not hearsay.

**Felony convictions, as long as they are less than 10 years old may be admitted.

QUESTION #6

In 1996, Congress enacted a statute requiring all motor vehicles engaged in or affecting interstate commerce to be equipped with a particular type of exhaust system (called a Clean Pipe) that would reduce the polluting effect of motor vehicles.

In 1997, Alice Alberts was arrested and subsequently convicted in federal court for driving on a two-lane dirt road between two small towns in the State of Adams in an old automobile not equipped with a Clean Pipe in compliance with the 1996 statute.

In 1998, the State of Adams enacted a statute requiring that all motor vehicles driven in the state be equipped with a different type of exhaust system called the Scrub Pipe. The Scrub Pipe was different from the device required by the federal government but was also designed to reduce pollution from motor vehicles.

In 1999, Barton drove his own tractor-trailer on a cross-country trip, hauling goods from New York to California. While in the State of Adams, Barton was arrested and subsequently convicted for driving a motor vehicle not equipped with a Scrub Pipe in compliance with 1998 state statute. Barton argued that his arrest under the state statute was inconsistent with the federal constitution and the federal statute.

Also in 1999, Charles Carter, a federal post office employee who drove a mail truck entirely within the State of Adams, was arrested and subsequently convicted in state court for violating the state's 1998 statute because the mail truck he drove was not equipped with the Scrub Pipe.

The United States Supreme Court ultimately reviewed the convictions of Alberts, Barton and Carter. What results and why? With respect to Barton and Carter, would your answers be different had the 1996 federal statute been repealed prior to their arrests in 1999?

MINNESOTA BAR EXAMINATION

FEBRUARY 22, 2000

REPRESENTATIVE GOOD ANSWER

QUESTION 6

Alberts was convicted on the Federal 1996 law that required all cars (vehicles) affecting interstate commerce be equipped with a "Clean Pipe" for the exhaust system. The Federal government, Congress, had the authority to regulate interstate commerce via the United States (US) constitution. This is a very broad power and anything that tends to relate to interstate commerce is a valid law as long as it is rationally related to an important government (Gov't.) interest. The 1996 legislation was aimed at reducing the pollution. This is an important government interest. Is it rationally related to that interest?

The law does appear to be rational; they require a pipe that is aimed at reducing pollution. However, Alberts may argue that the punishment, arrest and conviction, was not rational, and that a stiff fine is a better punishment. Although this may be true, if pollution is a problem, the gov't. has an interest to reduce the pollution.

I forgot to mention above whether A's arrest by the federal law, was this within the commerce clause, i.e.: Within the federal gov'ts. power? As stated above, the Congress has broad discretion with regulating under the commerce clause. However, A was driving between 2 small towns within State A (s), A did not cross between state lines, affecting interstate commerce; i.e. that A's vehicle was not engaged in affecting interstate commerce.

The gov't. can argue that this was interstate commerce because all roads within every state, and all cars have some impact at some time, therefore A's car did impact interstate commerce in some way (even if small way).

However, I think this is a weak argument because A's vehicle was being driven within the state, and was not engaged in affecting interstate commerce. Additionally, a small dirt road has little impact on interstate commerce. The dirt roads are primarily for small communities, especially ones where there are few out of state visitors. Therefore, A's conviction should be overturned.

B's and C's convictions.

B's and C's convictions were in 1999 and were for violation of the state law requiring that all cars driven in S have the "Scrub Pipe." This law is expressly different than the federal law. Where a federal law and a state law are in direct conflict, the federal law applies because of the Supremacy Clause of the U.S. Constitution. This provides that the laws of the federal gov't. are superior to those of the states if there is a conflict. This is true in the case at hand. The federal law requires a Clean Pipe and State law requires a Scrub Pipe. Applying the Supremacy Clause, the State law is invalid. If there is no direct conflict, a state law is OK if it does not conflict with the intent of Congress with respect to the federal law. In this case at hand, there is a direct conflict, so the State law is invalid.

Because B and C were convicted under an invalid state law, their convictions should be overturned.

The answer (analysis, not results) would be different with respect to B's and C's convictions if the federal law had been repealed before their arrests in 1999. If the law had been repealed, then the state law would not have been invalid, and the Supremacy Clause would not have invalidated the state law. Although I think the end results would be the same (that B's and C's convictions should be overturned), the analysis would be different.

Analysis if the law had been repealed:

A state may not make a law that negatively impacts interstate commerce. Here, S wants all vehicles in its state to have a certain kind of exhaust pipe (Scrub Pipe) for all vehicles driven in the state. This puts an undue burden on interstate commerce. Vehicles, such as the one B was driving, would have to re-route through a different state, or change the vehicle's exhaust system every time it went through S. This is especially true if there are other viable pollution reducing pipes available and are OK to use within other states.

Because Barton was driving across many states, he it involved in interstate commerce, and so this statute directly affects B. This is the type of thing that the Constitution is trying to prevent by prohibiting states to unduly burden interstate commerce. B's conviction should be overturned.

C was not driving across state lines, but he was a federal employee. The state may not impose its laws against the federal government. It can't impose its laws against individual government workers, ex: a state may not assess tax on a federal agency, but it may tax the income its employees earn. In the case at hand, the mail truck is federal property. S may not impose its pipe restrictions on property of the federal government. In addition, the mail carrying business has a direct impact on interstate commerce. So C's conviction should be overturned for this reason (unduly burdening interstate commerce) as well as the limitations states have in applying their laws to the federal gov't.

QUESTION #7

Liz Lawyer was driving to work one morning when she witnessed a car accident. A car drove left of center and crashed into a parked car. Liz immediately stopped, walked to the driver's side of the car that had struck the parked car and asked the driver - whose name was Dan - if he was ok. Dan said he was ok.

As Dan got out of the car, Liz smelled alcohol on his breath, and noticed that he was staggering a bit. Liz and Dan both saw a police car pulling off the road behind her car. Then Liz said, "Smells like you have a criminal problem here. I can help you if you want - I'm a lawyer." She gave Dan her card. As the police officer approached, Dan said, "I want you to represent me if I get arrested here - I only had a couple of beers." Liz said she was leaving but told Dan to come to her office as soon as possible.

Liz continued to her office. When she arrived, her secretary told her that Mr. Smith, a troublesome criminal defense client, had called again and had left two messages for Liz to call. The secretary also showed Liz a letter from Mr. Smith that was received in the morning mail. His requests were always the same - he wanted to know the status of his case. Liz instructed her secretary to send Mr. Smith the form letter that stated nothing was happening and that Liz would be in touch with him when something did happen. The letter closed with a paragraph that said, "Please do not call the office unless you have something new to report."

Later that morning, Dan arrived at the office. Dan told Liz that he had been cited for driving under the influence (DUI) and that he wanted her to represent him. Liz told Dan that she knew the judge who would be assigned to the matter and knew that the judge frequently went easy on DUI defendants because (according to the rumors around the courthouse) the judge was a big drinker himself. Liz also confided to Dan that she and the judge were old friends and that, in Liz's opinion, the judge usually took it easy on her clients. Liz said she would be in touch with Dan when she received a court notice.

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Later in the morning, Ocie, a long time client who was elderly and had become a dear friend to Liz, appeared unexpectedly at Liz' office. Ocie was very upset because somebody ran into her car that morning. The car was heavily damaged, and now she had no way to get her little dog back from the veterinarian's office. Liz took notes while Ocie talked, and soon realized that the damage was caused by Dan's accident. Liz told Ocie that she was too busy to represent her but said Liz' husband (who was also an attorney in another firm in town) would represent her. Liz gave Ocie her husband's law firm phone number and told her to call him the next day.

Liz later went to lunch with her husband and told him all about seeing the accident, meeting with Dan about the criminal case and then Ocie coming into the office for help.

In the afternoon, Ocie came back to Liz' office and said she did not know how she was going to get around unless she could get the car repaired immediately. Liz then gave Ocie a check for $500 from Liz' husband's account, saying this is to help get the car repaired. The money was given with the understanding that Ocie would have to repay the money after Liz' husband won or settled the car accident case.

When Ocie left, Liz told her secretary about the entire matter, saying what a coincidence it all was. She asked the secretary to prepare a file on the Ocie matter and transcribe Liz' notes.

Analyze and discuss Liz's professional responsibility concerns.

MINNESOTA BAR EXAMINATION

FEBRUARY 22, 2000

REPRESENTATIVE GOOD ANSWER

QUESTION 7

Liz has a long list of professional responsibility (PR) concerns.

Her first problem was when she gave her business card to Dan. She knew at that time Dan might have a legal problem and she directly solicited him to gain his business. This is a violation of the Rule of Professional Responsibility. Lawyers are allowed to advertise and join legal referral groups, but they are not allowed to directly solicit business either personally or through an agent.

Liz has another potential violation in her interaction (or lack of) with Mr. Smith. Smith wants to know the status of his criminal case. A lawyer is obligated to keep a client informed of the case's progress and to respond promptly to their inquiries. Liz has not responded to his requests for an update, she had a form letter sent. And she specifically sent a letter telling Mr. Smith not to call her. This is a violation of her duty to her client.

Liz's next problem occurred in her conversation with Dan. Liz made some unethical comments about the judge being a drinker and therefore not impartial in DUI cases. It is a violation to represent the Court as not impartial. It is also a violation for a lawyer to claim they get favorable treatment for their clients from a judge. Liz did both.

Liz then spoke with a long time client, Ocie. During their conversation, Liz realized she was already representing Dan, who hit Ocie's car. Liz had a clear conflict of interest. A lawyer may not accept a case from a client whose interests are adverse to another client. Liz already has Ocie as a client. The minute she realized it was Ocie's car Dan hit, she knew there would be a conflict of interest.

Liz knows there is a conflict, but she does not reveal it. That is Liz's first violation. A lawyer is required to reveal to a client any possible conflicts of interest. Instead Liz lies to Ocie. That is another ethical violation. A lawyer is required to be truthful to a client. Liz refers Ocie to her husband. While it is true Liz's husband is with another firm and technically there is no direct conflict, there probably still is an ethical problem. Liz referred Ocie to her husband. So indirectly, Liz has ties to the case and a financial stake in it through the marital relationship.

What Liz should have done is immediately informed Ocie that Liz was a witness to the case. That alone would bar Liz from representing Ocie in this matter. But worse than that, Liz should have informed Ocie she was representing Dan. Liz should not discuss the case any further with Ocie. Plus Liz should notify Dan immediately that she will have to withdraw her representation of Dan. Since Dan's interests could be potentially opposed to a current client (if a civil suit arises) Liz cannot continue her representation of Dan. Liz failed to do all these things.

Liz then told her husband about the case. Liz is currently representing Dan. She is breaching his confidence and the attorney/client relationship by revealing confidential client information. Worse yet, she is probably revealing it to opposing counsel in the soon to be filed civil case. A clear ethical violation.

Ocie returns to Liz's office in need of money. Liz give Ocie $500. This is an ethical violation. Attorneys are not allowed to advance client's money or provide loans to client for anything, but court expenses. This loan is an ethical violation as it was for something other than court expenses. What made this loan even more questionable is Liz took the money from her husband's account. As a wife, Liz may have authority to write checks on her husband's account. If not, we may have criminal problems beyond the ethical ones. Liz's statements to Ocie, and the Loan, force Ocie to use her husband for representation. It also is a problem of using personal funds for professional clients. There is also a question of how this will relate to fees for the husband. But that is another issue that does not need to be discussed here.

The final issue is Liz's conversation with her secretary. In order to function, it is necessary for the staff of a law office to be exposed to confidential facts. An attorney is responsible for assuming their staff also respects client confidences. An attorney should reveal no more information to a staff member than is necessary for the efficient operation of the office on the client's behalf. Liz may reveal confidences to her secretary, but she may have gone too far by telling the whole tale or more than was necessary.

Liz also asked the secretary to prepare a file on the Ocie matter and conduct work on the case. In this matter Liz is not representing Ocie, but the opposing party. Liz should not be preparing a file on Ocie in this matter. And so Liz had no reason to reveal anything to the secretary about the case. Liz has probably violated her ethical duty of maintain client confidences and maintaining her attorney/client privilege.

QUESTION #8

Joan was driving her car on a clear day with her 5-year old son, Mike, as a passenger. Joan was running a little late for an appointment with her dentist so she picked up her cell phone to call. While she was on the phone, Mike unlatched his seatbelt and started to jump around on the seat. Joan momentarily took her other hand off the wheel in order to force Mike to sit down. As she did, the car came upon a pothole in the road. Joan was unable to avoid it. When the car's tires hit the pothole, Mike was thrown into the dashboard and knocked unconscious.

Joan drove Mike to a nearby hospital where he was treated by Noah, a third year medical student. Because Noah failed to order x-rays for Mike, a treatable broken bone in Mike's face healed improperly. As a result, a month later, Mike had to undergo surgery. During that surgery, Mike had an unforeseeable adverse reaction to the anesthesia and suffered permanent brain damage.

Just after the accident occurred, the legislature added the following provision to its Vehicle Code. "Driving While Using a Cell Phone: Except in the case of emergency, it shall be unlawful for any motorist to operate a motor vehicle upon the highways and roads of this state while using a hand-held cellular phone or other similar device."

Mike's father, as guardian ad litem for Mike, brought a civil action against Joan in the appropriate court. Discuss Mike's claim or claims and any defenses that Joan might present.

MINNESOTA BAR EXAMINATION

FEBRUARY 22, 2000

REPRESENTATIVE GOOD ANSWER

QUESTION 8

Mike's father may bring a claim for negligence (N) against Joan. To establish a prima facie case of N, Mike must establish the existence of: (1) a duty; (2) a breach; (3) causation; and (4) damages.

Duty.

The first issue in relation to the existence of a duty is whether the D owed the P a duty. Under Cardozo's view, a duty is owed to any foreseeable P who is in the zone of danger. Under the minority view, a duty is owed to all P's. The facts indicate that the P (Mike represented by his father) was the D's son who was riding in her car. Someone who is present in the car is foreseeably injured as a result of N driving. Thus, under Cardozo view, P is a foreseeable P. He also would be foreseeable under the minority view, as all P's are foreseeable. Thus, D owed P a duty.

Once it is established that a duty is owed, the next issue is whether the D met the standard of care: a D must act as a reasonable person under the same or similar circumstances would act. The facts indicate the D was on her cell phone while her son was misbehaving in the car. A reasonable person would not take his/her hand off the wheel, be on the cell phone, disciplining a child, and driving simultaneously. Thus, D did not act as a reasonable person would act.

Even if a jury believed that she was acting reasonably (for example, because she had to make the important phone call), P will argue that D didn't meet the standard of care because she was N per se. A person is N per se (and thus a breach from the reasonable person standard need not be proven) where there is a statute in effect that the D violates, and the P is the class of person and the accident was the type of accident the statute was designed to protect.

The facts are not clear as to the purpose/class the statute was designed to protect, but it can be inferred that it was to increase automobile safety for all drivers and passengers. Thus, because the call was not an emergency, (an exception under the statute), D was probably N per se.

Breach.

A breach occurs where the D either didn't act in conformity with the standard of care or was N per se for the previously discussed reasons, there probably was a breach of D's duty of care.

Causation.

The first issue is whether there was actual causation. This element has been established where the injury would not have occurred "but for" the breach, or where the breach was a substantial factor in causing the injury. The facts indicate that D hit a pothole while she was driving. It is not clear that she wouldn't have hit this pothole, thereby injuring P, even if she hadn't removed her hands from the steering wheel. Moreover, if there hadn't been a pothole, there wouldn't have been this accident. Thus, it cannot be said that the injury would not have occurred but for her distraction.

There is also actual causation where 2 or more factors were substantial factors in the injury that each may have independently caused the injury. Here again, the facts do not indicate that D wouldn't have hit the pothole even if not distracted, although a jury could find that she would have seen and avoided the pothole if she had not been so distracted. Assuming the jury would make such a finding, there would be actual causation.

The next issue is whether the breach was the proximate cause of the various injuries sustained. Where an injury is caused directly by the breach, there it proximate causation. Where the injury is indirect in that there is an intervening act (an act independent of the original breach), causation is cut off to the extent that the intervening act is superceding (which means that it is unforeseeable).

In relation to P's unconsciousness, this was a direct result of the original N because the facts indicate it occurred immediately when he was thrown against the dash after hitting the pothole. Thus, the N was the proximate cause of the injury.

In relation to the improper healing of the broken nose, this was the result of N on the part of the resident because s/he failed to order the proper test. Although such negligence is an intervening act, it is not a superceding act because the subsequent malpractice of a healthcare provider is always foreseeable. Thus, or original N is the proximate cause of the need to have the further surgery.

As to the permanent brain damage, the facts indicate that this adverse result was unforeseeable. However, such adverse results are always possible reactions to surgery, even though a specific result may not be foreseeable. Thus, this intervening act is also not superseding, and the permanent brain damage was also proximately cause by the original N.

Damages.

The facts indicate that P had a broken nose and permanent brain damage. Thus, there were damages because all 4 elements were established, P will have established a prime facie case of N.

Defenses.

Comparative N.

Assuming this is a comparative N jurisdiction, D can claim that P was comparatively N by jumping around while she was driving and on the phone. If she prevailed, her damages owed would be reduced by the percentage of fault attributed to P.

The same 4 elements apply in analyzing comparative N as just discussed. However, because P is a child, he is only held to a standard of care which is that of a child of similar age, maturity and experience. This is a very subjective standard that is difficult for an opposing party to show was breached. The facts indicate P unlatched the seatbelt and was jumping around, which is probably consistent with the behavior of 5-year-olds. Thus D's comparative N defense would probably prevail.