July 2018 · ORIGINAL INSTRUCTIONAL EXAMPLE

Essay 3: Professional Responsibility
Sample Answer & Question Pointers

July 2018 California Bar Examination · Fact-specific analysis, an issue outline, and pointers on the official question.

By Bar Exam Doctor · Published November 4, 2026

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This is an original, ungraded instructional response. It is not an official State Bar selected answer, a scored student submission, or a claim of attorney review. Use it to compare reasoning and organization after attempting the question. Alternative reasoned analyses may be possible.

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The actual question, with pointers

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Official source page 4

QUESTION 3 Betty and Sheila, who have been friends for a long time, were charged with armed robbery, allegedly committed in a convenience store. They decided to hire Betty’s uncle, Lou, as their lawyer. Lou is an estate planning attorney1 and has never represented defendants in criminal cases before. Both Betty and Sheila met with Lou together. In that meeting, both of them emphatically denied that they robbed anyone. Lou agreed to represent them in their criminal cases and gave them a retainer agreement, which states: Scope of representation. Lawyer agrees to represent Clients through any settlement or trial. No conflicts of interest. From time to time, Lawyer may represent someone whose interests may not align with that of Clients. Lawyer will make every effort2 to inform Clients of any potentially conflicting representations. Fees and expenses. Lawyer will advance the costs of prosecuting or defending a claim or action or otherwise protecting or promoting Clients’ interests, but Clients are ultimately responsible for repaying Lawyer for all costs that Lawyer advances. If Clients are unsuccessful at trial, Clients will owe only costs advanced by Lawyer and zero fees3. If Clients are successful either before or at trial, Lawyer will be paid $10,000 plus any costs incurred. Betty and Sheila each signed the retainer agreement. Two days later, Lou represented both defendants at the joint arraignment. He angered the court during the arraignment because of his unfamiliarity with criminal procedure, and the court relieved Lou and appointed new counsel for Betty and Sheila. Betty and Sheila agreed to new counsel. Although Lou had not incurred any costs by that point, Lou asked Betty and Sheila to pay him a total of $2,000, divided up however they wanted, to reimburse him for his time spent on the case. What, if any, ethical violations has Lou committed? Discuss. Answer according to California and ABA authorities.

Before you write: issue outline

  1. Apply the California rules in force before November 2018 and compare the ABA rules.
  2. Analyze competence and joint-client conflicts separately from the success-contingent criminal fee.
  3. Distinguish advancing litigation costs from demanding compensation not earned under a valid arrangement.

1. Applicable rules and competence

The July 2018 examination predates the November 1, 2018 replacement of California's former Rules of Professional Conduct. This response uses the former California framework, alongside the ABA authorities, rather than presenting the later numbering as if it governed the exam. Many underlying duties continue, but their wording and operation are not identical.

Lou must provide competent representation. ABA Rule 1.1 requires the knowledge, skill, thoroughness, and preparation reasonably necessary. A lawyer may acquire competence by study or association with qualified counsel; prior criminal experience is not a universal prerequisite. Former California Rule 3-110 similarly prohibits intentional, reckless, or repeated failures to perform competently and identifies ways to obtain needed ability.

Lou is an estate planner with no criminal-defense background. Armed robbery involves serious liberty interests and specialized procedure, so he should assess his ability, prepare adequately, consult or associate experienced criminal counsel with appropriate client arrangements, or decline. Instead he appeared at the joint arraignment so unfamiliar with criminal procedure that the court removed him. Those facts support inadequate preparation and competence. California's stated culpability standard should be addressed: a single disappointing appearance is not automatically every kind of rule violation, but knowingly undertaking serious criminal work without obtaining necessary ability can be reckless. The record supports a substantial violation rather than an inference that his estate-planning expertise suffices in every field.

2. Representing Betty and Sheila together

Joint representation of criminal codefendants creates risks even if both initially deny guilt. Their accounts may diverge, one may seek a plea in exchange for testimony, or one may have defenses and confidential information harmful to the other. Lou owes each independent loyalty and advice. Their friendship and shared initial denial reduce apparent immediate antagonism but do not eliminate foreseeable conflicts.

Under the ABA framework, a significant risk that duties to one client will materially limit representation of another requires informed consent confirmed in writing, provided the conflict is consentable. Lou must reasonably believe he can represent each competently and diligently, and other restrictions still apply. Joint criminal representation is especially sensitive because some conflicts cannot effectively be managed by a general consent.

Former California Rule 3-310(C) requires informed written consent for multiple clients in a matter with potentially conflicting interests and imposes further requirements when actual conflicts arise. Lou must explain relevant circumstances and reasonably foreseeable adverse consequences in writing and obtain the clients' informed written agreement where permitted. A potential conflict is enough under the former rule; he need not wait until one defendant accuses the other.

The retainer's clause says he may represent people whose interests do not align and will make every effort to inform the clients. That is not a meaningful explanation of this specific joint representation, the risks to plea advice and confidences, available alternatives, or the consequences if withdrawal becomes necessary. It promises possible future notice rather than obtaining informed present consent. Their signatures on that boilerplate do not establish informed consent under either approach.

Lou's family relationship with Betty raises an additional personal-interest concern: he may favor his niece over Sheila or find it difficult to give each independent advice. The relationship does not automatically prohibit every representation, but it should be disclosed and assessed along with the actual risk. A generic clause about other clients does not address that concern. Betty's uncle is not a neutral substitute for counsel separately advising each defendant.

3. Scope, communication, and confidentiality

Lou should explain who the clients are, their decisions concerning pleas and other fundamental criminal choices, and the implications of sharing information during joint representation. Communication to both together is not generally secret between them if a later dispute arises concerning the common matter; at the same time he cannot assume one client authorizes every disclosure that would prejudice her. He must explain limits and plan for conflicts before accepting rather than discover them midcase.

The promise to represent through settlement or trial does not authorize a unilateral plea or override client decisions. No fact says Lou actually disclosed privileged information or made a plea without authority, so those should be identified as responsibilities implicated by the arrangement rather than invented completed violations. The proven inadequacy is the absence of a sufficient conflict explanation and competent preparation.

4. The fee arrangement

The fee is $10,000 only if the defendants are successful before or at trial and zero if unsuccessful. That is a fee contingent on the outcome of a criminal defense even though it is expressed as a fixed amount rather than a percentage. The ABA prohibits contingent fees for representing a criminal defendant. California likewise prohibits this form of criminal-defense contingency under its governing law and professional standards. The risks include distorting plea advice and giving counsel a personal stake inconsistent with independent judgment.

Calling the document a retainer and having both clients sign does not cure the prohibition. Nor can Lou characterize it as an ordinary flat fee when the agreement expressly makes success a condition to any fee. The term successful is also unclear: a favorable plea, reduced charge, dismissal, and acquittal may affect the clients differently. That ambiguity aggravates the communication and conflict concerns, but the contingency itself is the primary defect.

Advancing litigation costs is different. The ABA permits advancing court costs and litigation expenses, with repayment allowed to depend on outcome; California's former rule also permits appropriate advancement of costs. Requiring the clients ultimately to repay legitimate advances therefore is not by itself improper financial assistance. The facts expressly say no costs had been incurred, so that permission supplies no basis for a reimbursement demand here.

5. Removal and the $2,000 request

After the court relieved Lou and the clients agreed to replacement counsel, Lou must cooperate with the transition, release required papers and property, account for funds, and return any unearned advance. He must respect the tribunal's removal rather than continue appearing as though the representation remained authorized. No actual refusal to transfer files is described, so the answer should not presume one.

The $2,000 request is for his time, not an advance he actually paid. There had been no successful outcome triggering the stated $10,000 term, and the unlawful contingent agreement does not authorize Lou to invent a new fee after his removal. An attorney sometimes may claim a reasonable value for lawful services despite a defective fee agreement, but that does not guarantee quantum-meruit recovery for incompetent work, cure a prohibited contingency, or permit a knowingly unjustified demand. He must identify a legitimate legal basis and a reasonable amount rather than rebrand time as reimbursable costs.

Asking the clients to split the demand however they like also does not resolve his obligations to each or provide a fair explanation of what was earned. The facts do not show an actual collection, so one should distinguish an improper request from completed misappropriation. The strongest violations concern deficient competence, inadequate handling of joint-client and personal-interest conflicts, and the criminal contingency. Any permissible cost advancement and eventual lawful reasonable-fee issue must be kept separate from those failures.

Sources and further comparison

The official question controls its facts and jurisdiction. These responses address the exam scenario; subsequent legal changes and other fact patterns may require a different analysis. The PT uses the supplied fictional Columbia library, which must not be replaced with outside law.