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Time, Place, and Manner

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Enhanced Professional Responsibility Exam

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Conscience is the inner voice that warns us somebody may be looking.

- H.L. Mencken


The MPRE was last week and aside from writing the wrong date I think I did well. In fact, short of sixth grade algebra, this may have been the easiest test I’ve ever taken. Far easier than my Professional Responsibility class. So what is the point of this exam? Another standardized general intelligence test? The MPRE doesn’t make you more ethical. And to call this test redundant after taking PR would be an insult to my PR professor. So why not give the MPRE some value? Therefore I propose a change in the way the MPRE is engineered. I’d like to see fewer questions and to have those questions constructed in a way that actually forces the test-taker to ponder the ethical consequences of each scenario. As a token of good faith and reciprocity I’ll get the ball rolling with a few sample questions:


1. Attorney practices law in a state that has experienced a severe recession and where several banks have failed. The banks that remain open and healthy are hesitant to grant loans even to those with stellar credit ratings. Attorney decides that he will accept payments-in-kind from clients unable to fully pay his fees. Unable hires Attorney to settle a contract dispute for him and pays Attorney with 40mg of DMT—half after the initial consultation and half after the case is resolved. In the middle of settlement negotiations Attorney discovers that the DMT is actually cinnamon with food coloring. Attorney hasn’t had a good trip in months and decides to give Unable a chance to rectify his fraud. Attorney has notified Unable, not in writing, that he will stall the proceedings for a period of one week. If at the end of that week Unable has not paid up what he owes, Attorney will withdraw from the case.

Was Attorney’s conduct proper?

Does the analysis change if Attorney or Unable, or both, are natives of Brazil and a members of the União do Vegetal church?


2. Attorney’s advertisement in the local newspaper includes the following information, all of which is true:

I. Attorney, B.S., magna cum laude, State College; J.D., summa cum laude, Western Law School.

II. Offices are open Monday through Friday from 8:00 a.m. to happy hour, but you may feel free to call my secretary and ask which bar I’m at.

III. I know, and have evidence of, the true identity of D.B. Cooper, but will only release said information if Dan Harmon is reinstated as the executive producer of Community.

For which, if any, of these statements is Attorney subject to discipline?


3. Attorney is on retainer for the Montana crime family. Her practice is primarily in the areas of tax, wills, estates, trusts, and maritime law. While on vacation Attorney is approached by a representative of the Sosa crime family, a direct competitor to the Montana family. The Sosa representative asks Attorney to represent the Sosa family in matters of immigration. Attorney agrees, but stipulates that the representation will be limited in scope, and that she will never appear in court on behalf of the Sosa family. Attorney proceeds to open a Clients’ Trust Account for the Sosa family in Bank B. Meanwhile, Bank A notifies Attorney that the balance in her Clients’ Trust Account for the Montana family has fallen below the minimum. Attorney transfers funds from Bank B to Bank A to cover the minimum with the full intent of reimbursing the Bank B Account within 48 hours. Neither the Montana nor the Sosa families will suffer any detriment due to the transfer.

Is Attorney subject to discipline?


4. Attorney is Managing Partner at a law firm with 150 attorneys and which primarily handles matters of complex litigation for large institutional clients. The firm also handles a number of pro bono cases, focusing on 1983 and other civil rights claims. Managing Partner is currently overseeing two suits. The first is defense against a shareholder action relating to improper performance and retention bonuses for a financial firm that lost a significant amount of money due to the collapse of the housing market. The second matter is a pro bono case, in which Managing Partner is representing an African American woman and her two young children. This case involves the death of the woman's husband, who was shot and killed by a police officer while handcuffed, seated, and apparently posing no threat to himself or others. The entire incident was recorded on a cell phone's video camera. The officer was suspended without pay for two months, but later returned to active duty.

The firm is in a dire financial situation and is considering laying off a significant number of associates and support staff. Should the firm conduct such layoffs, Managing Partner will no longer have the resources to represent the woman in the suit over her husband's shooting, and Managing Partner and the firm will have to withdraw.

Which, if any, of the following courses of action is proper?

I. Instruct associates working on defending against the shareholder suit that they need to be billing at least 60 hours per week.

II. Assign additional research tasks to associates on the shareholder suit which Managing Partner knows to be dead ends and otherwise useless.

III. Make no changes to associate workload, but alter associate timesheets after they have been submitted to increase the number of hours billed.

IV. Reduce equity partner compensation by 5%.


And seriously, don’t worry about this test. Even if you fail, you can still practice in Washington, Wisconsin, Maryland, or Puerto Rico, none of which requires the MPRE.

[Read more from Shadow Hand]

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