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MCLE Test and Answer Sheet

Test No.63: Ruling on the Rules (June 1998 LA Lawyer)

Instructions for Obtaining MCLE Credits
The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of 1 hour.

1.Study the CLE article in this issue.

2.Answer the test questions by marking the appropriate boxes. Each question has only one answer. Photocopies of this answer sheet may be submitted; however, this form should not be enlarged or reduced.

3.Mail the answer sheet and the $15 testing fee ($20 for non-LACBA members) to:
Los Angeles Lawyer
P.O. Box 55020
Los Angeles, CA 90055 
Make checks payable to Los Angeles Lawyer.

4.You can also fill in the test form and submit it directly to LACBA by clicking "Submit." To submit your test answers online you will need to pay by credit card. After submitting your answers you will be presented with a screen requesting payment information. This information will be submitted in a secure mode which will allow you to safely transmit your credit card number over the Internet. If you prefer not to pay by credit card, please print this answer sheet and submit your responses by regular mail.

5.Within six weeks, Los Angeles Lawyer will return your test with the correct answers, a rationale for the correct answers, and a certificate verifying the CLE credit you earned through this self-assessment activity.

6.For future reference, please retain the CLE test materials returned to you.
Test Sheet 
Mark your answers to the test by clicking next to your choice.  All questions must be answered.  Each question has only one answer. This test is worth 1 hour of credit.*

1. A lawyer will not be disciplined for failing to send a client copies of significant documents.

2. In a shareholder derivative action against a closely held corporation and its majority shareholders, the minority shareholder brings a disqualification motion against the corporation's counsel, who represents both the corporation and the majority shareholders. Based upon current case law, the court will:
A. Disqualify the lawyer from representing the corporation but not from representing the majority shareholders.
B. Disqualify the lawyer from representing the majority shareholders but not the corporation.
C. Disqualify the lawyer from representing both the corporation and the majority shareholders.
D. Not disqualify the lawyer from representing either the corporation or the majority shareholders.  

3. In a patent infringement action, Corporation A seeks to disqualify Lawyer B and her law firm on the ground that B previously was employed in another law firm when that law firm prosecuted A's patent, which was at issue in the litigation. While at the other law firm, B never worked on either the patent or any of A's legal matters and received no confidential information about A pertinent to the current infringement action. Based upon current case law, the court will: 
A. Disqualify the lawyer only but not the law firm.
B. Disqualify the law firm.
C. Disqualify both the lawyer and the law firm.
D. Not disqualify either the lawyer or the law firm.  

4. A struggling start-up company is saved by a loan arranged by a lawyer, to whom a grateful board of directors votes 3 percent of its future stock offering. However, the company never delivers the stock certificates to the lawyer, and after the company becomes a wild success and makes $100 million, it is acquired by another company and the lawyer is replaced by another law firm. The lawyer sues the company for the value of the stock, wins a jury verdict, and the company appeals. The court of appeal reverses, holding that the receipt of stock was a business transaction or adverse financial acquisition and unless the lawyer complied with Rule 3-300 of the Rules of Professional Conduct, the award of stock certificates is unenforceable. Has the court of appeal ruled correctly?

5. ABC law firm represents a wholly owned independent subsidiary at the same time it sues the subsidiary's parent on behalf of another client. The parent corporation moves to disqualify ABC on the ground that in representing the subsidiary, ABC also represents the parent. Based upon current case law, the court will:
A. Disqualify ABC because in representing the subsidiary, it owes a duty of loyalty to the parent.
B. Disqualify ABC because in representing the subsidiary, ABC has an attorney-client relationship with the parent.
C. Not disqualify ABC unless the parent is the alter ego of the subsidiary.
D. Not disqualify ABC unless the parent and the subsidiary have a unity of interests.  

6. Lawyer D appears before the State Bar Court in disbarment proceedings charged with:
1) Billing a client at a rate higher than the agreed rate without notice to or new agreement with the client.
2) Billing a client before work was performed without notice to or agreement of the client.
3) Billing 100 hours of time on several client files within a 24-hour period. The court will find D liable for:
A. An act of dishonesty or moral turpitude pursuant to Business and Professions Code Section 6106.
B. An unconscionable and illegal fee pursuant to Rule 4-200 of the Rules of Professional Conduct.
C. Both of the above.
D. None of the above.  

7. Developer D and Homeowner H enter into an agreement in which D will repair some of the defects in H's home, and H executes a release. Two years later, after the repairs do not permanently correct the defects in H's home, H sues D for fraud, claiming that D knew from the outset that the agreed repairs would be inadequate to correct the design defects in the home. D alleges that the litigation defense is a complete defense to the fraud action since D's representations prior to the release were in contemplation of litigation. Under current law, is the litigation privilege available?
A. Yes, because H executed a release.
B. Yes, because the agreement was entered into by D to avoid litigation.
C. No, because litigation was not threatened or imminent at the time of the agreement.
D. No, because the litigation privilege does not apply to a fraud action.  

8. In a child custody case, a court-appointed psychologist investigates charges concerning the background of the mother's boyfriend, with whom the children are likely to continue spending substantial time. The boyfriend thereafter sues the psychologist for libel and slander for repeating the charges to others during the course of the investigation. Will the appellate court affirm the trial court's ruling that the litigation privilege attaches and is a complete defense?

9. Any litigant filing any type of lien may assert the litigation privilege as a complete defense to any subsequent tort action, except malicious prosecution, based upon the filing of the lien.

10. Lawyer E inadvertently receives confidential psychiatric reports concerning a witness in her case. E sends the records to her expert and uses the records to cross-examine the witness. Thereafter, the witness sues E for invasion of privacy, and E asserts the litigation privilege. Consistent with current case law, the court will rule:
A. For E, because the litigation privilege provides a complete defense since the lawyer was just being a good advocate.
B. For E, since the litigation privilege attaches to the defense of every tort except malicious prosecution, including privacy torts.
C. Against E, because the litigation privilege does not attach to an invasion of the right of privacy.
D. Against E, but only because E did not follow court procedures for determining whether she could obtain access to the records.  

11. Defamatory statements are made by Lawyer F about Lawyer G at a press conference announcing a settlement of a civil claim. G sues F, and F claims the litigation privilege. Should the court rule that the litigation privilege attaches? 
A. Yes, because the litigation privilege attaches as a complete defense to defamation actions.
B. Yes, because the litigation privilege attaches to press conferences.
C. No, because statements to the press that bear no logical legal relationship to litigation or do not further the purposes of litigation are not within the scope of the litigation privilege.
D. No, unless the lawyer complied with the trial publicity rule in the Rules of Professional Conduct.  

12. Prior to 1997, California courts expanded the litigation privilege to include which of the following communications: 
A. Complaints by citizens to public officials charged with investigating alleged wrongdoing.
B. Communications made prior to litigation concerning the recording with a county clerk of documents connected with the filing of a related lawsuit.
C. Prelitigation demand letters as a precondition to filing a lawsuit.
D. All of the above.  

13. A client issues a news release revealing some of its lawyer's advice concerning issues in litigation. The opposing party seeks disclosure of all communications between the client and the lawyer. The court should:
A. Deny the motion because there was only a partial waiver of the attorney-client privilege.
B. Deny the motion because the attorney-client privilege has not been waived.
C. Grant the motion only as to the attorney-client communications directly related to the press release.
D. Grant the motion broadly or narrowly depending upon how the client intended to use the communications referred to in the release.  

14. In deciding how to apply the crime-fraud exception, courts should consider: 
A. The intent of the lawyers.
B. The intent of the clients.
C. Only the attorney-client communications that occurred before the alleged tort was committed.
D. B and C.  

15. In a sexual harassment action, a claimant seeks disclosure of all attorney-client communications regarding a prelitigation investigation by an attorney of sexual harassment claims. The court should:
A. Grant the motion, since the attorney, as an investigator, was not providing legal services.
B. Grant the motion, since the attorney became a percipient witness.
C. Deny the motion if the lawyer demonstrates that the investigation services were incidental to the legal advice that was given.
D. Deny the motion unless the opposing party proves that the company never before used the lawyer as an investigator.  

16. A predecessor trustee may assert the attorney-client privilege and keep the successor trustee from discovering the predecessor's communications with the attorney for the trust.

17. By operation of law, an attorney who represents a trustee necessarily represents the trustee in both representative and personal capacities.

18. A lawyer amends a standard arbitration clause through a further amendment to an attorney-client fee agreement with an existing client. In an action by the attorney to enforce the arbitration agreement, the factors that the court will consider are:
A. Whether the arbitration clause was written in 12-point type in red ink.
B. The application of the presumption of undue influence.
C. Whether the amendment is fair and equitable to both parties and not adverse to the client.
D. A and C.  

19. In a civil malpractice action, a former criminal defendant suing his or her former criminal defense lawyer must prove not only that the former counsel was negligent but also that he or she is innocent of the criminal charges at issue.

20. A court may determine the validity of an attorney's lien against a judgment in approving a settlement in a personal injury action, even if the settlement allows the clients to defeat the attorney's lien. 

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*The Los Angeles County Bar Association has been approved as a continuing legal education provider of Minimum Continuing Legal Education credit by The State Bar of California. This self-assessment activity will qualify for Minimum Continuing Legal Education credit by The State Bar of California in the amount of one hour.

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