29 February 2008

Day 3 - February 28, 2008 - of the California Bar Exam

Oy, it's over.

Questions (roughly):

Essay 1: Trusts/wills cross over (Sis, you just got greedy, didn't you?)

Essay 2: Community Property (yeah, I didn't remember WTF a putative/meretricious spouse was either - just that they're up to no good - you sneaky bigamists) - link to the February 2004 exam where a REALLY similar question came up (essay #2 on page 12) and they define putative spouse there if you're so dang curious)

Essay 3: Corporations/Professional Responsibility (/agency/partnership/contract/what? no, not really, yeah? maybe? doesn't matter now)

Performance Test B - objective memo on chances of getting an injunction for a demoted doctor (Snyder) based on violation of his free speech rights as part of a hospital was planning to then voted on moving to Palatine (which, according to googlemaps is actually 207 miles from Springfield). Tests with sub-tests re: can get injunction? matter of public concern? blah. Hated PT-A, dugg PT-B.

View Larger Map

So the real question now is, "what movies are you going to see because you didn't get to while you were overcome with guilty/anxiety/stress/fear during the past month or two?"

I'll get started:
Invincible (co-workers demand it, no idea)
American Gangster
Charlie Wilson's war


Anonymous said...

Does anyone else feel completely depressed? I failed for the first time in July, by 18 points. Then, I studied my ass off for round 2, which I have a strong feeling I just failed. This is the most depressed I've felt since November 2007. Anyone in a similar boat?

Holden said...

Depression - the natural result of the CA bar exam. People can tell you stories of "oh, she thought she failed but then she passed" and all kinds of other shit, but the reality is you probably did better than last time (you just knew more) and if you were that close before you probably got it this time.

That being said, worrying about it probably won't change anything unless you have heretofore unknown worry-super-powers which impact the thoughts of graders. If so, I suggest avoiding "The Corporation" and Sylar while you hone your powers and save the cheerleader.

Anonymous said...

thanks holden, I appreciate it. how do you feel about it? was this your first time taking it?

Holden said...

Actually, this is Abe =)

This is my second time. I was further from passing last time that you were.

I feel better this time about my prospects of passing - last time I really bought into Honingsberg's "everyone passes" speech and I studies a lot so I was worried about passing, but kept telling myself, "you'll be fine, you studied a ton!"

But I was studying the wrong way - reading the conviser sections a few times each, outlining essays then skipping to the answer to see if I got all the right issues ...

The reality was I should have been MEMORIZING the law rather than reading it to become familiar.

Also, I should have been focusing on the STRUCTURE and ORGANIZATION of the answers rather than just the issues.

On the first go round I got many of the right issues, but didn't have the rules down nearly well enough and my organization (i.e., canned approaches for each subject and sub-category [i.e., murder cluster, products liability, etc]) was REALLY poor or non-existent.

This time I had an approach for each subject and category within them (thanks to John Holtz and Jeff Adachi and The Bar Code - Whitney Robert's course). And I spent the last 11 days just memorizing a subject or two a day and spending 10-60 minutes reviewing several of the subjects from the preceeding days (mix of the adachi memorization plan, the Performance Advantage plan, and the flash cards that Whitney had me prepare).

This isn't the "right" plan or anything, but it was a hell of a lot better than my past approach that had me memorize the law first, then outline essays for nothing more than issue spotting ...

I feel better about my (and your) prospects of passing this time, but having failed once I don't have the "invincibility" feeling that kept me from getting worried and worked up about the possibility of failure the first time. So I'm more worried and feel better. Right ...

Anonymous said...

Holden, come to www.jdjinx.com. You will like it.

Anonymous said...

What is people's take on the $15K of SP used to pay W's medical bills? I know that the "community" would have been entitled to reimbursement, but it wasn't the "community" that paid it was his SP. So I said it would be up to the "interests of justice"... ???

Anonymous said...

re: $15k

I said that in the absence of an agreement to the contrary, when one spouse spends SP on community interests it is a gift. However, here they had agreed that the CP held in Wendy's account would be devoted to family emergencies. Thus Harvey was entitled to reimbursement of his SP out of the CP at permanent separation.

Anonymous said...

Anonymous @ 2:17

You seem to be making the opposite argument. If the Wendy account was to be used for emergencies, his use of his own SP would seem to indicate a GIFT.

But I thought the right answer would be found in the specific rules about P/I settlements...

Anonymous said...

Took the exam as well.

Keep in mind that the "emergency fund" agreement was invalid because it was a transmutation made orally after 1985. Just my two cents.

I argued that the 15K medical expense would be a gift only if there were proper funds available in the CP fund at the time. Otherwise, it would be reimbursable.


Anonymous said...

@2:38 - interesting, and I hear ya. My thinking was b/c of agreement, he would expect to be reimbursed, ergo not a gift. Almost a detrimental reliance argument.

@2:56 - Shit, Lucas/anti-Lucas issue, huh? I missed that completely, but good eye. I moved out here recently from the east coast, so never had cp in law school or knew anything about it otherwise, so my knowlege was limited to the little I studied it here (I figured after 2x on no way it would be on again.. ugh)

MarinaT said...

Not really a lucas/antilucas thing since those deal with an actual divorce after 1987 and usually the reimbursement of any downpayments made.

A transmutation is different. It is basically an agreement between spouses (allowed to be orally pre 1985, has to be in writing after 1985) to make CP into SP or vice versa.


Liz said...

I pointed out post 85 transmutations must be in writing as well. But ultimately, the agreement should be enforced. The argument I made was since it was fully executed/detrimentally relied (ei: his salary was used for CP expenses) that it should be enforced.
But in some in some jurisdictions they only honor marital contracts/agreements between valid spouses not meretricious/putative spouse.

Also even though there is a presumption of a gift of his SP, there was a management/control issue because the checking account was out of state and only in her name.

Michelle T. said...

But here's the thing--the agreement was not to re-characterize the asset. The agreement was only to use "x" for day-to-day and "y" for emergencies. They're all community expenses. Saying that her salary is gonna be used for emergencies is nothing like saying her salary is her separate property. Anyone agree?

Abe said...

From my notes (NOT what I remembered):

Putative spouse is an(1) innocent spouse with (a) an objective (b) good faith belief of marriage.

The putative spouse has the same prop rts as if married.

There is a split as to whether decedent’s CP/QCP goes to with legal spouse at death - apply K principals (divide as relied upon - i.e., as if married though not) or apply strictly (i.e., to legal spouse)

Meritorious spouse is one who knew marriage was invalid (i.e., bigamists)

There is a split as to giving quasi-marital prop to the non-spouse and the legal spouse BUT in CA general K principals apply.

Further, a meretricious spouse cannot assert that it was invalid if he/she knew it was invalid (i.e., such would be asserting a bad faith claim).

Compared to my answer:
Putative has objective good faith belief that the marriage is valid ("I'm single" statement) and can recovered by K principals as a real spouse.

Meritorious spouse knows marriage is invalid and cannot assert that it is invalid later.

Missing elements and what now, but I think I got closer than I believed during or after the test.

Problem is, I wasn't such how to apply it throughout the problem so I just came up with a definition that made is so that all the other answers would be dealt with under normal marital property principals (which turns out to be pretty close to the real definition).

The fact is, H never tried to get more from the dissolution by claiming that there was no valid marriage so the meritorious definition didn't change outcomes.

Further, H acted like the marriage was valid but recovery for good faith payment of expenses would be recoverable only if CP was not available but it was (she had $50,000 in the account before the settlement apparently). Plus, the CP checking account could have been a source. I made up some bullshit about how maybe he only used the money from his savings account because the CA Checking Account was too low and the money in the State X savings account was not "liquid" enough (because it's a savings account [not attached to an ATM card] and because it was in another state [can't just get a new set of checks]) BUT that it was supposed to be for emergencies so they likely made it sufficiently liquid to access for such so it was available (or something).

Then I got confused with everyone else as to whether H or the community should have gotten reimbursed. I decided that he should be reimbursed the full $15,000 if he had to spend that money because other funds were not instantly available. No idea if that's right.

Abe said...

According to another site: "The facts did not indicate Albert and Barry were directors"

Well, they were named as "equal shareholders" and the articles named them as "president and secretary" which are officers - implication that officers are directors? There must be directors in a corporation so only owners and managers implicitly directors?

I thought for 40 minutes it was only a corps question then started placing in each heading "but it is were a partnership then ... blah, blah" and even one "and if it was a sole proprietorship because B could not be a member of the law firm as a partner then ... blah blah"

Still think the majority of points were from picking a corp or a partnership and then moving on (rather than my foolish way of trying to make it both for all the answers after each heading, oy).

Weird shit about law firm formation - last part of PR I suspected would be on there.

The "equal share" and "profit" stuff was what lit up the idea of partnership - i.e., do not need to meet formalities to create a partnership; formed by intent to co-own and if unclear look to:
i. Shared profits / Share gross returns (yes)
ii. Hold prop in joint tenancy / tenancy in common (yes)
iii. Held out at Partnership (yes)
iv. Lots of work req’d so that the biz req's more than one person (maybe)
(I forgot element ii. above on the test and did not focus on element iii. enough - just a few words IIRC).

Another student points out why he's smarter than you (but, shocker, is wrong): "One issue nobody has brought up yet: Piercing the Corporate Veil."

BS. It was nNot brought up because not sought by the calls of question (I fell for this too for a minute): the calls asked whether Lawco (not A or B) could be held to the contracts. Piercing the veil would hold someone liable, but that's not what the question was.

My favorite non-issue from this essay: could have been an S-corp (taxed like partnership) because fewer than 100 SHs. Was it worth mentioning on there? No. Was I kicking myself during lunch about not mentioning it? Yes. Now, the alcohol clarifies my perception and I realize they definitely did not care about it and everything's going to be a-ok-freakin'-kay.

But hey, also forgot to use the words "pre-incorp" and "post-incorp" contracts ... so wtf.

Enjoy your weekend everyone!

Anonymous said...

I'm not so sure Piercing the Corporate Veil is a non-issue, although it is a minor one...

Think about it: Piercing the corporate veil would make the corporation itself NOT liable on the contracts. Rather, the shareholders would be held liable. If the corporation were a person, it would say, "Hey, don't sue me, pierce me and get the other guys." If LawCo itself could not be sued as a corporation and held liable on the contracts, someone must be held liable. Perhaps, the shareholders who are not following the proper formalities, perhaps under the alter ego theory.... That's about as in depth as I got.

Promoter liability is a similar issue because it focuses on the liability of Albert and Barry. But it was definitely something to be discussed. It led into the discussion of LawCo's liability for accepting the benefits of the contracts and thus being held liable as well.

Also, I think a quick sentence stating that a corporation requires at least 2 directors is one way to get past the corp discussion and onto the partnership issue. There were many ways to get there.

Bottom line, this question was all over the place, the answers will be all over the place, and there are a ton of issues and a variety of ways of setting them up. It is very obvious that essay 6 is the question everyone seems hung up on.

Anonymous said...

Secretary & President are positions of a board. A Chairman of the Board is more commonly referred to as the "president" in CA. The Secretary is also a common board position.

That was very confusing because an officer can be a president and a corporation can also have a "corporate secretary" but generally that person is an employee rather than an official officer.

Anonymous said...

re CP -

Lucas/anti-Lucas doesn't apply, because bank accounts come under the probate code (rather than CP law), even when taken in joint and equal form. Somehow I remembered that from Wills lectures.

This is how I basically handled the savings account-reimbursement issue, and I think it's fairly accurate:

1. No valid marriage, therefore putative spouses and quasi-marital property (I forgot the "meretricious" terminology, but that should not be fatal).

I briefly discussed whether this might be a Marvin relationship based on Contract law (e.g., a partnership, maybe a joint venture), but decided it probably was not because of the knowing fraud by H, and that this situation differed from typical Marvin-type contractual relationships (e.g., where one partner agrees to do housework or whatever, while other partner earns living).

2. Therefore, all property during the course of the relationship should be treated just like "real" CP.

3. Also, H&W have fiduciary relationships to each other. As to medical expenses in a valid marriage, then, such duties and obligations survive until divorce. Thus, H was obligated to pay, and is entitled to no reimbursement.

I didn't have time to mention the PI award, but I think it was only incidental, anyway, and the call of the question did not ask about it, specifically. So I think that was more of a red herring to entice people into arguing that W was awarded damages that during the relationship should then be considered CP, but then get awarded to the injured spouse upon permanent separation, and as a result, H has some claim on them. Now that I think of it, there are likely points to be had by pursuing some of these ideas, but I didn't have time, didn't really consider them on the exam, and don't think they are dispositive, anyway.

The above aside, aside, this situation is different, entirely, and H had acted wrongfully, so it is unlikely a Court would award him any reimbursement for having used his SP from the $25K inheritance based on analogies to a valid marriage, and on principles of equity.

4. The rest of the money in H's savings account is his. That's SP. Pretty straightforward.

5. The joint checking account in California to be treated as CP would--50% to H, 50% to W, to be split in kind.

6. Savings account in W's name, only, in state X.

Split of Court authority. One court said wrongful spouse gets a 50% interest. It was criticized, severely. But I put the argument out there.

Also, I noted that this might be complicated further by the fact that the bank account was titled in W's name, in state X, and W had left California. Thus, CA might not have PJ over X to compel her to distribute any money to H under situs rules. (Wasn't sure if money and bank accounts are treated like land or not, but figured graders would ignore all if they didn't want to see it). Also pointed out the joint account, still in Ca might give W enough minimum contacts with CA so CA could exert jurisdiction without offending notions of fairness and substantial justice.

Second line of cases said H takes nothing, because of his wrongful activity. I put that out there, too, and concluded it would be the likely outcome.

Should be enough for a pass, anyway :)

Anonymous said...

Not sure I understand all the concern as to director versus officer stuff. I seem to have missed that issue entirely.

Not persuaded about the PCV so much, though, because courts seem to use that more in conjunction with tortious injuries resulting from wrongful shareholder activity (like alter ego use of corporate funds). Maybe an argument there that B used the computers (I think it was computers) solely, but I think it's kind of thin. But PCV never occurred to me on the exam.

So... I basically argued this two different ways

1) de facto corporation because there was a colorable attempt at forming a corporation under relevant state incorporation statutes, accepting the benefits of that, and a good-faith belief a corporation had been formed. Concluded this probably was not the case on the facts, since the articles were not filed as a result of negligent conduct, as opposed to innocent conduct (like the paperwork having gotten lost in the mail).

But if de facto, then LawCo is bound on all contracts made.

2) In the alternative, and more probably, (at least that's how I argued it), a general partnership was formed because there's an association of two or more carrying on as co owners of a business for a share of dividends/profits rather than a wage.

Therefore A&B personally liable on contracts before late April, and the partnership ("lawco partnership" but not lawco corporation) liable, too.

Once the articles were filed, however, a de jure corporation was formed, and thus A&B no no longer personally liable on the second two contracts, and LawCo, the "corporation" was bound as a corporation.

I think there are plenty of points to be had, here, depending on how people chose to argue...

Anonymous said...

10:31, I think you're probably okay, too. I too failed by a couple of points less than your margin, in July. But I (for various personal and professional reasons) didn't have time to do anything other than study the law, that is, I didn't do any multiple choice practice questions, nor a single essay practice question.

Did a bunch of both this round, and though I'm not entirely pleased with my Feb performance for a number of reasons, like Abe said, I must have known more this time around.

So, likely both your and my MBE scores will improve. That plus knowing better how to organize my essays and give better rule statements should help, too.

So I'm not holding my breath, but I think I might have squeaked by this round. Or at least I pray. For all of us!

Anonymous said...

I don't see that anyone talked about principles of agency as far as the authority of Albert and Barry to engage in transactions with furnitureco and teleco (If i recall their names correctly). There was more to exam 6 than corps and PR, hope you know that

Anonymous said...


Plenty of agency discussion on preceding day entries. I for one didn't say a word about partnership. Never even occurred to me. Did discuss whether Albert as president could bind, Barry as secretary, actual authority, apparent authority....