QUESTION I - JULY 2003
PLEASE NOTE: QUESTION I was a "Multistate Performance Test" (MPT) and is not reproduced here.
QUESTION II - JULY 2003
Dennis owned and operated a successful hardware store in Rochester, Vermont, where he resided. He also owned a summer camp located at Lake Dunmore, Vermont. He had five children, Adam, Bill, Chris, Ed, and Frieda. Bill had one son, John. All of them were adults at the time of the events in this case. Dennis had no other living family members. Dennis’s wife, and the mother of his five children, had died many years ago and Dennis never remarried. Adam, Bill, and John were employed to help Dennis with the day to day operation of the store. None of the family members had any ownership interest in the store or the camp.
Ned and Nancy were very close friends of Adam and, as such, they had come to know Dennis quite well over the years. However, Ned and Nancy had never cared for Frieda and their relationship was quite strained. Neil was a neighbor and close friend of Dennis for many years.
Dennis was diagnosed with cancer several months ago and the ongoing chemotherapy treatment rendered him too exhausted to work in the store or even take care of himself. Dennis knew that he was terminally ill, so he consulted with a lawyer about having a will drafted to dispose of his assets upon his death. Dennis had never made a will prior to this initial consultation. In Dennis’s discussions with the lawyer, they never got beyond the tax implications of leaving assets to children and grandchildren. Because Dennis did not understand the legalese that the lawyer insisted on using, he never completed the process with this lawyer. When Dennis expressed his frustrations with this process to Nancy, she told Dennis that he did not need a lawyer to draft a simple will, and that she would help him do so.
Just before Dennis entered the hospital for further treatment, Nancy visited Dennis at his home. Nancy helped Dennis draft a will disposing of all of his assets. The will was written entirely in Dennis’s handwriting. The will was signed by Dennis and witnessed by Ned, Nancy and Neil. Dennis gave the original will to Nancy for safekeeping. In the will, the camp was left to Adam, Chris and Ed. The store was left to Adam, Bill and John. The remainder of the estate, which was of little value, was given to the hospital in appreciation for all of the care they provided to Dennis during his final illness. Nancy is on the board of trustees for the hospital. Frieda was not mentioned in the will at all. He did not inform any of his children of the contents of his will.
Ten days after entering the hospital, Dennis died. After Dennis’s funeral, Nancy provided the will to Adam and told him of her assisting Dennis in the drafting of the will. Nancy is willing to testify to the effect that there were no changes in the will while it was in her possession and that Dennis was mentally competent when he signed the will. However, she is unable to state why Dennis decided to dispose of his assets in this particular arrangement. Ned and Neil will testify that they too believed Dennis was mentally competent when Dennis signed the will.
When the will was offered for probate, the validity of the will was timely contested by Ed. He felt slighted that he had not been given a fair share of the estate. Also, Ed was concerned as to the actions of Nancy in the drafting of the will. Frieda has not joined in this challenge.
The Probate Court judge asks you to draft a memo addressing and discussing the following issues:
1. What are Ed’s likely challenges in contesting the will and what facts support or refute these challenges?
2. Who has the burden of proof on each of Ed’s challenges?
3. If Ed succeeds in his challenge, what, if anything, will Frieda receive?
4. What consequences, if any, result to the hospital if it fails to enter an appearance in the litigation?
QUESTION III - FEBRUARY 2003
You have just met with a new client, Patricia Perkins. She came to see you because she is very unhappy with the final divorce order she received from her lawyer yesterday. She has fired him, retrieved her file and wants to know if you will represent her now to “undo the damage.”
Patricia was married to Dan Dexter for 20 years. They have two children together, ages 10 and 12. Dan is 52 years old and owns his own construction business. According to Patricia he earns over $200,000 per year. Patricia has a nursing degree and worked as a registered nurse for several years early in the marriage while Dan was starting his business. In fact, she was the primary earner back then as Dan’s business was not profitable at first. Eventually, Dan’s business took off and Patricia was able to stay home with the children from the time the twelve-year-old was born. From then on Dan focused his energies on building his business and Patricia took care of the children and the household. Patricia is fifty years old and in good health but her nursing skills are not up to date and she would need some retraining to re-enter the work force. Without retraining, her current earning capacity is approximately $25,000 per year.
Patricia and Dan separated and filed for divorce two years ago. They agreed early on that she would have primary responsibility for the children. Yesterday, after much negotiation and several court hearings, their divorce became final. Patricia is unhappy about several things:
What advice can you give Patricia about each of her concerns? (Do not discuss whether Patricia has a cause of action against her former lawyer.)
QUESTION IV - JULY 2003
Soon after their marriage in 1949, Brattleboro residents Alfred and Annette bought a camp on Orwell Pond in Wilmington. Alfred and Annette raised two children: Barbara, who was born in 1951, and Bill, who followed in 1954. The family spent their summer months at the camp. Over Alfred’s strong objections, Bill joined the U.S. Army when he turned 19. While on active duty in Texas, Bill married his high school girlfriend Joan, whom Alfred actively disliked, and their father-son relationship was permanently ruptured. Bill spent 20 years in the service, almost all of it in Europe. When he was discharged, Bill and Joan settled in St. Johnsbury. Bill and Joan remained estranged from Alfred. Annette unsuccessfully tried to patch things up.
In 1976, Alfred and Annette conveyed the camp to Smith, their lawyer, who immediately reconveyed the camp to Alfred, Barbara and Annette as joint tenants with rights of survivorship by a quitclaim deed that was recorded in the Wilmington land records. Barbara became very attached to the camp and used it every summer.
Alfred died in April of 1996, and two weeks later Annette executed a deed conveying "all of my interest" in the camp to herself and Bill as joint tenants with rights of survivorship. Annette recorded the deed in the Wilmington land records and had the town clerk return the deed directly to her. Annette told Barbara about the gift, which Barbara deeply resented. A year and a half later, Bill called Annette to wish her a happy birthday, and for the first time Annette told Bill about the deed. Bill thanked Annette profusely. Annette died in 1999, when the camp was worth $200,000. Barbara, who had been appointed administrator of Annette’s estate, reluctantly gave Bill the 1996 deed conveying Annette’s interest in the camp to Bill. Barbara then changed the locks on the camp and refused to talk with Bill about sharing the camp.
Bill retained attorney Jones, who brought a partition action against Barbara. Attorney Smith defended the action for Barbara. Jones and Smith persuaded their clients to settle the case, which they did in 2003 when Barbara paid Bill $80,000 in exchange for Bill’s interest in the camp.
QUESTION V - JULY 2003
Alan and Bill decided to turn their passion for bikes into their livelihood by opening up a bike shop in Rutlington, Vermont. While Alan and Bill knew everything there was to know about bikes, they lacked the financial resources they needed to open the shop. Between them, they were only able to pull together $10,000 of the $50,000 they estimated they would need. They turned to their friends for help. One friend, Carol, gave Alan and Bill $25,000 to help them open and operate their store in return for 25% of the profits. Carol was clear that she did not want to be involved in the day-to-day operations of the store, although she did offer to help them find the location for their store. Another friend, David, lent the remaining $15,000 to them at an interest rate of 10%, to be paid back in full after two years. Like Carol, David was not interested in helping to operate the business.
With the necessary funds in hand, Alan and Bill met with you, their attorney, to help them set up their business organization. You suggested that they create either a limited partnership, a limited liability company, or an “S corporation.” After you explained the three choices to them, they said they would contact you after they selected their preference so you could prepare the appropriate paperwork.
In the meantime, Alan, Bill and Carol found the perfect corner location for the store, which they decided to call “The Corner Bike Shop.” The building’s landlord presented them with a one-year lease that provided for the payment of rent at $2,000 per month. After reviewing the lease, Carol signed it as follows: “Carol Smith, The Corner Bike Shop.”
Alan and Bill spent the next month preparing to open their new bike shop. Opening day was a huge success until one customer, Ellen, test rode a bicycle that Alan had assembled. The bike came apart just as Ellen began to ride it, and she suffered a severe concussion and a broken right arm.
Alan and Bill were so upset by the accident that they decided to close the bike store. Knowing that Ellen would likely sue them, Alan, Bill, Carol and David come to you for advice. When they met with you, the first question you asked was whether they had decided on what type of business organization they wanted to create. That’s when they informed you of the events of the past month.
1. Please describe the differences
between a limited partnership, a limited liability company and an S
2. Please describe the
type of business organization, if any, that existed on the
store’s opening day, and discuss the respective
Alan, Bill, Carol and David in that organization.
3. Please discuss the
potential individual liability, if any, of Alan, Bill, Carol and David
for Ellen’s tort claim.
4. For this question only, assume that a limited partnership had been properly formed before they leased the store. Please discuss the responsibility of Alan, Bill, Carol and David for the payment of rent.
QUESTION VI - JULY 2003
Brad Pill, Esq., reads a newspaper article about a woman injured in a collision with a truck. The newspaper reports that Julia Robbins suffered only minor physical injuries when a truck grazed her car after running a stop sign. Julia, however, claims that she has been completely disabled by mental trauma caused by the accident. She tells the reporter that she has post-traumatic stress disorder and the illness has so disrupted her life that she is no longer able to work or to engage in other activities. Brad has significant experience representing plaintiffs who suffer mental trauma from accidents or other causes. He has litigated over two dozen such cases, and in most instances obtained a substantial settlement or judgment for his client. He has made a name for himself in this area and, at the same time, created a prosperous law practice.
Julia’s case proceeds badly for her and she ultimately agrees to settle with the defendant for $10,000. After Brad deducts his 45% fee and all of the expenses, she only receives a few thousand dollars, about the same as Brad, and she is quite unhappy about the result. She feels victimized by Brad and decides to file an ethics complaint against him. The investigation of the complaint reveals the facts described above.
Write a memo to bar counsel analyzing whether Brad violated any ethical rules with respect to the facts set forth in the numbered paragraphs.
Board of Bar Examiners
Mailing address: 109 State St. Montpelier VT 05609-0702
Office Location: 111 State St. Montpelier, VT
Telephone: (802) 828-3281