February 2022 · ORIGINAL INSTRUCTIONAL EXAMPLE

Essay 4: Evidence and Professional Responsibility
Sample Answer & Question Pointers

February 2022 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 6

QUESTION 4 Dan is facing trial in the Superior Court of California for the murder of Victor. Dan entered into a valid retainer agreement with Attorney Anita for her to represent him. Anita met with Dan to discuss Dan’s defense. In their interview, Dan claimed he had spent the entire evening when the murder occurred with his father, Frank. The next day, Anita sent an email to Dan expressing her concern that his alibi was weak. Dan replied to the email and admitted that he had lied about his alibi, but denied that he killed Victor. Anita visited Dan’s apartment and spoke with Dan’s roommate1, Ben, who said that Dan confided in him that he had killed Victor. Ben gave Anita a pair of Dan’s pants that were covered in blood. The next day, Anita gave the prosecutor the bloody pants3 and the email exchange2 about Dan’s alibi. Anita then decided she did not want to represent Dan any longer because she was tired of his lies. Anita petitioned the court to withdraw as Dan’s attorney. The court granted permission for Anita to withdraw. Frank then immediately hired another lawyer to represent Dan. At Dan’s trial, the prosecutor called Ben as a witness to testify to Dan’s statement that he killed Victor. The prosecutor then called Anita to testify: (1) about Dan’s statement that he had been with Frank on the night of the murder; (2) that Anita had received the bloody pants from Ben and turned them over to the prosecutor; and (3) that Ben had told Anita that Dan said he killed Victor. 1. Assume all proper objections have been made. Should the following items be admitted into evidence: a) Ben’s testimony? Discuss. b) Anita’s testimony regarding Dan’s statement that he was with Frank the night of the murder? Discuss. c) Anita’s testimony that she had received the bloody pants from Ben and turned them over to the prosecutor? Discuss. d) Anita’s testimony that Ben told her that Dan said he had killed Victor? Discuss. Answer each according to California law. QUESTION CONTINUES ON THE NEXT PAGE

Official source page 7

2. What ethical violations, if any, did Attorney Anita commit by: a) Turning over the bloody pants to the prosecutor? Discuss. b) Turning over the email exchange regarding Dan’s alibi to the prosecutor? Discuss. c) Withdrawing1 from representing Dan? Discuss. Answer each according to California and ABA authorities.

Before you write: issue outline

  1. Classify each statement and each hearsay layer separately under California law.
  2. A lawyer cannot waive the client’s privilege merely by making an unauthorized disclosure.
  3. Physical evidence in counsel’s possession creates duties different from a confidential email.

1A. Ben’s account of Dan’s admission

Dan’s statement that he killed Victor is relevant to the charged murder. Ben has personal knowledge of hearing it. When offered against Dan, it is an opposing-party statement admissible under California Evidence Code section 1220, even though Dan need not have spoken against his interest at the time or become unavailable. No attorney-client relationship or privilege covers an ordinary confession to a roommate. Ben’s testimony ordinarily is admissible, subject to normal foundation and prejudice balancing.

California’s Truth-in-Evidence rule in criminal cases generally favors relevant evidence but preserves applicable hearsay and privilege restrictions. It does not independently authorize ignoring those restrictions in the following items.

1B. Anita’s account of the alibi

Dan privately gave Anita his purported alibi while consulting his retained lawyer about his defense. The attorney-client privilege protects confidential communications for legal representation, including a false account. The privilege belongs to Dan and continues after withdrawal. Anita’s discomfort with the lie does not permit disclosure.

The crime-fraud exception concerns services sought to enable or aid a crime or fraud, not merely representation concerning a past crime or a client’s untruthfulness during consultation. Dan later admitted the alibi was false and denied murder; no plan to have Anita knowingly present perjury is established. That exception therefore cannot be inferred solely from the lie.

Anita’s unauthorized delivery of the email does not supply a knowing client waiver of the privilege. Likewise, hiring counsel is not a waiver. Her testimony about the confidential alibi should be excluded on Dan’s privilege claim, even though the statement might otherwise satisfy the opposing-party hearsay exception or show consciousness of guilt.

1C. Receipt and delivery of the pants

Preexisting tangible evidence does not become privileged simply by passing into a lawyer’s hands. Ben voluntarily gave Anita Dan’s bloody pants. Neither receiving them nor observing them is itself a confidential communication from Dan seeking advice. No facts make Ben a necessary intermediary or agent communicating for Dan.

California physical-evidence authorities distinguish protected client communications from evidence counsel takes into possession. Counsel may have to deliver the evidence after a reasonable examination and may not deprive investigators of relevant source or location evidence by removing it. Here the source was an unprivileged third party. Anita ordinarily may testify that Ben gave her the pants and she delivered them, with appropriate authentication and chain-of-custody foundation. The testimony is her own observation, not hearsay. The prosecution still must establish a relevant connection between the pants, blood, and charged crime rather than assume blood alone proves murder.

1D. Anita repeating Ben’s report

There are two hearsay layers: Dan’s admission to Ben and Ben’s report to Anita. Section 1220 addresses the first, but not the second, because Ben is not the opposing party. No applicable exception for his out-of-court repetition is established. Ben is available and testified; a declaration-against-interest exception also lacks the necessary showing and does not fit merely because his report harms Dan.

If Ben’s trial testimony were inconsistent, California section 1235 could permit a prior inconsistent statement with the section 770 opportunity requirements. If a qualifying attack on recent fabrication or improper motive occurred, a properly timed prior consistent statement might satisfy sections 1236 and 791. Neither inconsistency nor the required credibility attack appears. The prosecution cannot introduce cumulative repetition as rehabilitation automatically. Anita’s repetition therefore should be excluded for its truth. If offered for a genuinely relevant nonhearsay purpose, the court should assess that purpose and limiting instruction rather than use it as a pretext to repeat the confession.

2A. Turning over physical evidence

Under both California and ABA rules, a lawyer may not unlawfully obstruct another party’s access to evidence, conceal or destroy material with evidentiary value, or assist another in doing so. Taking possession does not authorize indefinite retention of the bloody pants. Delivering them the next day is consistent with the duty to preserve and turn over physical evidence after an appropriate reasonable examination. Nothing says she altered them or prejudiced a needed defense examination, so disclosure of the item itself is not an established violation.

The duty does not create general permission to reveal privileged client communications explaining the evidence. Here, however, Ben supplied it without a shown privileged agency relationship. Anita should preserve chain of custody and disclose no protected material beyond what law requires. Ethical confidentiality can be broader than evidentiary privilege, but it does not permit unlawful evidence concealment.

2B. Turning over the emails

The lawyer-client exchange is both privileged and protected by ethical confidentiality. Neither system allows a lawyer to expose a client’s past lie simply because she believes he is difficult or guilty. California’s narrow future-crime bodily-harm exception and the ABA’s specified exceptions are not established. A private false alibi never offered to a tribunal does not trigger the same remedial duties as known false evidence already presented to a court. Anita had no basis to reveal the entire exchange to the prosecutor.

That conduct breaches confidentiality and loyalty and may harm the defense. If she later faces a malpractice allegation, a limited self-defense exception must be evaluated under the applicable rules; there was no such allegation when she made this disclosure, and a possible future dispute is not a blanket license.

2C. Withdrawal

Withdrawal requires a permitted or mandatory ground, court approval where required, and reasonable steps to avoid foreseeable prejudice. The court granted permission, satisfying the approval requirement. But approval does not independently prove an ethical substantive ground or compliance with transition duties.

A client’s dishonesty can make representation unreasonably difficult or indicate efforts to use counsel’s services improperly. Here Dan corrected the alibi the next day and still denied guilt; mere irritation at lies does not automatically make continued representation unlawful or sufficiently difficult. Anita must assess whether a genuine permissive ground or another good cause exists, rather than treat dislike as mandatory withdrawal. Any material impairment of her ability to provide competent loyal representation also must be addressed.

Frank immediately hired replacement counsel, reducing practical prejudice. Anita still must provide reasonable notice and time, transfer the client’s papers and property as required, refund unearned fees, and protect confidential information when explaining her withdrawal. No failure of those specific steps is stated. The strongest established violation is the email disclosure; withdrawal’s compliance remains dependent on a proper ground and the steps actually taken.

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.