Professional Responsibility on the California Bar Exam — How to Spot it in a Criminal Law Question

Professional Responsibility on the California bar exam — how to spot it in a Criminal Law Question

Professional Responsibility has been tested on the essay portion of 14 of the previous 15 California Bar Exams. Therefore, when reviewing the California subjects, it is imperative to prioritize Professional Responsibility. Always read the instructions to see whether you must include both the American Bar Association (ABA) and California distinctions in your answer. It is important to memorize an attorney’s general duties towards his or her client, third parties, and the court.

Professional Responsibility on the California Bar Exam in the Criminal Law Context:

If you see a Professional Responsibility Question in the question regarding Criminal Law on the California bar exam, there are several issues to keep in mind while issue spotting.

1. Is the lawyer a prosecutor?  

If the lawyer is a prosecutor, consider that a prosecutor needs probable cause in order to prosecute, has a duty to protect the accused’s rights (e.g., by making a reasonable effort to assure that the accused has been advised of the right to obtain counsel and has been given a reasonable opportunity to obtain counsel), and must reveal exculpatory evidence to the defense in a timely manner. For more detailed information refer to Rule 3.8 of the ABA’s Model Rules of Professional Conduct.

2. Did the lawyer make a public statement about the trial?

If the lawyer made a public statement about the trial, check to see whether the lawyer reasonably knew that the statement in question would have a substantial likelihood of materially prejudicing the case. This standard applies in both civil and criminal cases, but is more likely to be tested in the criminal context. If the lawyer should have reasonably known, then he or she has likely committed an ethical violation. However, a lawyer may reveal matters in the public record or routine booking information. Also, a lawyer can inform the public of an ongoing investigation and may ask for the public’s help.

In a criminal case, the lawyer is permitted to reveal additional information, including the identity, residence and occupation of the accused; information that is necessary to assist in apprehending the accused; the time and place of the arrest; and the identity of the arresting officers or agencies.

For more detailed information refer to Rule 3.6 of the ABA’s Model Rules of Professional Conduct.

3. Did the lawyer present the facts and evidence truthfully? 

A lawyer has a duty to not facilitate client perjury. Similarly, a lawyer has a duty to not assist a witness in providing false testimony. In a criminal case, if a lawyer reasonably believes that the testimony will be false, the lawyer may refuse to offer it as evidence, unless his or her client’s testimony is at issue. If a client seeks to provide false testimony, a lawyer has a duty to advise his or her client to testify truthfully or to not take the stand. If this fails to resolve the problem, the lawyer may try to withdraw. However, if a lawyer is unable to withdraw, the ABA Rules of Professional Conduct and the California Rules of Professional Conduct handle this situation differently. The ABA rules dictate that the lawyer should take remedial measures, including by disclosing this information to the tribunal. In California, the lawyer can allow the client to testify in narrative fashion but cannot further the deception.

For more detailed information refer to Rule 3.3 of the ABA’s Model Rules of Professional Conduct. The California approach is outlined in People v. Johnson, 62 Cal.App.4th 608, 627 (1998).

These are just some of the ways that you will see Professional Responsibility tested on the California bar exam.

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