Chapter 12: How to Conquer Professional Responsibility on the California Bar Exam

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 exam (either on the essay portion or the performance test), it sometimes shows up more than once on a given exam and is often combined with other subjects.

Additionally, examinees are expected to know both the California ethics rules (found in the Rules of Professional Conduct of the State Bar and in the State Bar Act, which is found in the California Business and Professions Code) and the American Bar Association (ABA) Model Rules of Professional conduct (MRPC). (This guide will refer to the California ethics rules as the “California rules” and the ABA MRPC as the “ABA 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 Professional Responsibility tested! 

If you go through an entire California Bar Exam and do not see a single Professional Responsibility issue, you probably missed it. You should expect to see Professional Responsibility tested on the exam. However, be careful not to create Professional Responsibility issues where none exist!

2. Be aware of the subjects that are commonly combined with Professional Responsibility 

On the California Bar Exam, Professional Responsibility has been tested on its own, with another subject, and even on its own and with another subject. Professional Responsibility has been most frequently combined with Corporations (under the subject of Business Associations). Professional Responsibility has also been combined with Evidence, Contracts, Torts, Civil Procedure, Community Property, and Remedies.

So, be on the lookout for Professional Responsibility issues in your essays!

3. Be aware of the highly tested issues. 

The California Bar Exam tests certain issues repeatedly. (We have a nice summary of these in our California Bar Exam One-Sheets.)

Some of the most highly tested Professional Responsibility topics on the essay portion of the California Bar Exam include:

• Fees: The ABA rules prohibit lawyers from charging unreasonable fees. The California rules prohibit lawyers from charging fees that are unconscionably high.

• Concurrent client conflicts: Generally, 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 (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) 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 (4) each affected client gives informed consent, confirmed in writing (mnemonic = RICI).

• • Under the California rules (new as of 2018):
    • 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 case it only requires a “written disclosure”).
• The duty of competence: This issue is frequently mentioned in essays even when it is not the primary issue.
  • Under the ABA rules, a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

• • Under the California rules, 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 the sexual relationship predated the attorney-client relationship (e.g., see February 2016, July 2005, and July 2006 exams.) 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!

5. Practice! 

The best way to gain proficiency at Professional Responsibility essay questions is to practice writing answers to essay questions. You will see how Professional Responsibility issues are tested and how to structure 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 decide what to discuss. 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:

• February 2021 Professional Responsibility exam: this essay applies the ABA and California rules and covers payment for recommending a lawyer’s services, solicitation, sharing fees with a nonlawyer, forming a partnership with a nonlawyer, concurrent conflicts of interest, sexual relationship with client, duty of competence, diligence, fee agreements, duty to report another lawyer, and California rule concerning threats to an attorney (see essay question #4 on the exam).
• October 2020 Professional Responsibility essay: this essay applies the ABA and California rules and covers concurrent conflicts of interest, fairness to opposing counsel, decisions to be made by lawyer and client, the duty of competence, diligence, the duty of candor, and mandatory vs. permissive withdrawal (see essay question #1 on the exam).
• February 2020 Professional Responsibility essay: this essay applies the ABA and California rules and covers fee agreements, concurrent conflict of interests, the duty of loyalty to an organization, communication with unrepresented persons, and truthfulness in statements to others (see exam question #2 on the exam).
• July 2019 Professional Responsibility essay: this essay applies the ABA and California rules and covers responsibilities of partners and supervising attorneys and subordinate lawyers, the duty of competence, fairness to opposing counsel, the duty of confidentiality, the duty to report another lawyer, the duty of loyalty, and former client conflicts (see essay questions #4 on the exam).
• July 2017 Professional Responsibility essay (combined with Evidence): this essay applies the ABA and California rules and covers attorney-client privilege, the duty of confidentiality, and termination of the client-lawyer relationship (see essay question #2 on the exam).

Good luck studying for the California Bar Exam!

Go to the next topic, Chapter 13: Real Property.

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