Monday, December 25, 2006
Posted by Jeff Lipshaw
We have what in Massachusetts nee Freedonia is called an "accepted offer" on a house. I was going to post something on the classic libertarian-caveat emptor-full employment for lawyers-1700s vintage way it seemed to me residential real estate deals were closed in Massachusetts (at least if I believe my real estate agent, Max Remax). But then I thought, who am I to judge? To quote from Richard Ford's recent great addition to the Frank Bascombe trilogy, The Lay of the Land (no joke, this is at page 122 of the hardcover, and I think it is the answer to every dilemma in my life): "Perhaps you had to go to Harvard to understand this. I went to Michigan." (I should note this may also be the answer to my relationship with my wife who did go to Harvard.)
Instead it seemed to me an opportunity for a little MPRE training, on the Law of the Land (note the multi-leveled entendres here). (Disclaimer: the author is merely an MPRE trainee himself, as noted previously. He makes no representation or warranty that the following made-up examples do in fact represent how the NCBE would interpret the sample questions, although he has undertaken the exercise both in a serious and humorous vein.)
So here we go:
1. Jeff Lipshaw, a member in good standing of the bar in the states of Michigan and Indiana (also the 6th and 10th Circuit Courts of Appeal, the Eastern District of Michigan, and the United States Supreme Court), plans to take a job in Massachusetts, and goes about making an offer to purchase a home. His real estate agent, Max Remax, tells him that he will be getting a quitclaim deed, and that he, the buyer, is responsible for insuring the title. This is contrary to Lipshaw's experience in his home states, where seller is responsible for delivering a warranty deed, as well as a title policy under which the buyer is the beneficiary. Lipshaw is confused. Should he hire a Massachusetts lawyer?
(a) No, because he will likely be joining Max's synagogue and so he can trust Max.
(b) Yes, because he will likely be joining Max's synagogue and so he can't trust Max.
(c) Yes, because a lawyer who represents himself has a fool for a client.
(d) Yes, because he has recognized the limits of his competence.
Answer: d. Rule 1.1 of the MPRE states "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." The comment states: "In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question." Lipshaw recalls that, even in his licensed jurisdictions, he probably hacked up his own purchase agreements. Plus, it is obvious that the local customs are designed to ensure that one always refers the matter to a Massachusetts lawyer with established competence. Many MPRE examinees are fooled by (a) or (b). The main problem here is not professional responsibility, but the fact that a fellow temple member will know how much you paid for your house, for purposes of "fair share" dues and your Campaign contribution.
More sample MPRE questions after the fold.
2. Assume in the previous question that Lipshaw decides to go it alone and not to retain a Massachusetts lawyer. May he do so?
(a) Yes, because his wife would kill him if he screwed it up.
(b) No, because all of the lawyers in Massachusetts are tapped out from making political contributions to either Ted Kennedy or Mitt Romney.
(c) Yes, because he has not opened an office in Massachusetts or otherwise held himself out as licensed to practice in Massachusetts.
(d) No, because he is not licensed to practice in Massachusetts, and there is no exception for a pro hac vice appearance merely to mess up your own home purchase.
Answer: (c). This is an example of the bar examiners messing with your head. Even though (c) is not a perfect answer, it is the best of this sorry lot. Rule 5.5(b) of the MPRE states:
A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
The trick here is that Lipshaw is acting pro se, and none of the exceptions for multi-jurisdictional practice really apply, because this does not relate to another matter pending in a jurisdiction in which Lipshaw is licensed, nor does there appear to be a rule on acting pro se. Certainly a non-lawyer could do her own deal without a lawyer, even if that is ill-advised. Nevertheless, (c) is the best answer because the rule does not create a blanket prohibition against any unlicensed practice of law in the jurisdiction. Subpart (a) of Rule 5.5 says that a lawyer may not practice law in another jurisdiction in violation of the rules of that jurisdiction (or assist another in doing so). So we must still look for a rule that applies or does not apply. Because Lipshaw is not establishing an office or systematic and continuous presence in Massachusetts for the practice of law, nor is he holding himself out to the public, he will not be in violation of the rule. Nevertheless, he has been thoroughly freaked out by what Max Remax told him, and has called in his law school roommate who is a big cheese partner at a big time Boston law firm to help out, which would also cure any unauthorized practice issues under subpart (c).
EXAM TIP: Note this question gets at the heart of the oft-debated question whether one can pass the exam merely by answering the "second-most ethical" question (Wendel's book says no; Childress told me yes, but he may have been messing with me because he thinks I am an anal Type-A crazy person.) Answer (d) would likely snag the unprepared person who answers with the most ethical-sounding response.
3. Lipshaw sent his lovely and talented wife out to Boston, and for the fourth time in their marriage, she made a decision on a house without his seeing it live before they signed the offer document. When Lipshaw's law school roommate decides to help in the transaction, is there anything he should consider?
(a) No, because this is an example of a '90s kind of guy swallowing his testosterone-induced control mania in the interest of marital harmony.
(b) No, because big time Boston law firms can do small time residential real estate transactions in their sleep, with one hand tied behind their back.
(c) Yes, because Lipshaw snored back in the squalid room in Crothers Hall at Stanford.
(d) Yes, because it may be that Lipshaw is a client with diminished capacity.
Answer: (d). This is another question in which the examinee needs to use the process of elimination to reach the best, not the perfect, answer. Answer (a) can be eliminated because empirical legal scholars have demonstrated that there is no correlation between testosterone levels and marital harmony. Answer (c) can be eliminated because Lipshaw denies having snored. Answer (b) is tempting because most partners in big time Boston law firms could have been law professors if they had wanted.
But the correct answer is (d). Rule 1.14(a) states: "When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client." Lipshaw's actions may indicate diminished capacity, but not presumptively so. Accordingly, law school roomie may continue with a normal lawyer-client relationship. If, however, Lipshaw is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in his own interest, roomie is authorized under subpart (b) to "take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian."
Disclaimer: if you haven't already figured it out, the citations to the MPRE are accurate, and the answers may even be instructive as a learning device, but this is PARODY.