July 1998 - Vermont Bar Examination Essay Questions

[Question I]
[Question II]
[Question III]
[Question IV]
[Question V]
[Question VI]


QUESTION I - JULY 1998


       John, whom you have represented for several years, comes to see you to
  discuss a problem he is having and a future business plan.  He tells you
  that he and two others set up ABC Corporation a number of years earlier to
  run a retail plumbing parts business.  He and his two co-shareholders each
  own 33-1/3% of the corporation.  His co-shareholders recently indicated
  that they wanted to merge the corporation, and consequently its business,
  with another corporation in a similar business owned by some distant
  relatives of one of the other two shareholders.  The plan is that ABC
  Corporation will be merged into the other corporation, and the shareholders
  of ABC Corporation will receive stock in the surviving corporation.  You
  have never represented the other co-shareholders or the corporation.

       John indicates to you that he told his two co-shareholders that he did
  not want to go ahead with the merger and, if they did, he wanted them to
  buy him out.  His co-shareholders indicated that they did not want to buy
  him out, and neither did the corporation that ABC Corporation was merging
  into or its shareholders.  The other co-shareholders said that they did not
  want to have to buy his shares and that, since he is a minority
  shareholder, he would just have to accept the shares in the surviving
  corporations.

       Under the corporate by-laws, a merger requires more than 50% of the
  shareholders to vote in favor of such a merger.  John's co-shareholders
  told him they plan to call meetings of the board of directors and
  shareholders, and they will vote in favor of the merger.  Although John
  plans to vote against the merger, it is clear the merger will go through
  over his objection.

       John indicates to you that he is tired of the retail plumbing parts
  business anyway and, given the changes, all he wants is a fair price for
  his shares so that he can start a skydiving school with his brother.  The
  problem is that unless he gets a fair price for his shares, he cannot
  possibly afford to go into business with his brother.

       Assuming John can resolve the issues surrounding his shares in ABC
  Corporation, he would like to know something about the various forms of
  business organizations he and his brother might use in their new endeavor. 
  Since both he and his brother do not like paperwork, he would like to have
  some general idea of what paperwork is necessary to set up the various
  types of business organizations and what type of "maintenance" will be
  necessary.  He also tells you that it is possible, although not yet
  certain, that his brother will not want to be involved in the operation of
  the new business and that the brother has some concerns about his liability
  if a client gets injured.  He wants to know if there are any forms of doing
  business that exist that might relieve his brother's concerns in this
  regard?  Since both he and his brother expect the new business to incur
  significant losses at least during the initial years, they would both like
  those losses to be available to them as individuals for tax purposes. 
  Although John plans to speak to his accountant concerning the tax 
  ramifications and what form of business might be best, he would like you to
  give him some general guidance in that area as well.

1.	Explain to John what, if any, rights he has with regard to the
situation involving ABC Corporation and what, if anything, can be done to
protect him and force the others to buy him out.

2.	List and describe the different forms of doing business that are
available to John and 	his brother.  In your answer, you should address such
issues as formation, owner involvement in management and operation,
liability, and tax issues involved in various manners of doing business.



Model Answers
QUESTION II - JULY 1998 18 V.S.A. §4201 (29) defines "regulated drug" to include marijuana. §4201 (15) defines marijuana as any plant of the genus cannabis or any preparation, compound or mixture thereof except sterilized seeds of the plant and fiber produced from the stalks. 18 V.S.A. §4205 forbids any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any regulated drug. 18 V.S.A. §4230 criminalizes the knowing and unlawful possession of marijuana specifically, and provides increased penalties for knowingly and unlawfully cultivating marijuana. Industrial hemp is a plant of the genus cannabis and species sativa. It contains tetrahydrocannabinol ("THC"), the psychogenic chemical in marijuana, but in such minute amounts that it is extremely difficult, if not impossible, to extract enough THC from industrial hemp to produce a substance having a psychoactive effect. It grows well in Vermont's harsh climate, and its cultivation does not require pesticides or fertilizer. Industrial hemp can be used to make high quality paper, cotton-and linen-like fabrics, rope, carpet backing and many other useful fiber-based products. Industrial hemp seed oil makes excellent soap, salve, medicinal bases and edible vegetable oil, and can also be used as an inexpensive replacement for chemicals used in paint, varnish and many other industrial applications. Industrial hemp cannot be distinguished from THC-containing marijuana by the average person. Assume, however, that a trained law-enforcement officer using a newly invented $25 hand-held spectrometer can easily distinguish between industrial hemp and THC-containing marijuana. Industrial hemp was cultivated on a large scale in Vermont and was an important cash crop until these Title 18 proscriptions were enacted. They are intended to promote the eradication of marijuana as an important part of the state's efforts to combat the possession, use and sale of illegal drugs. Vermonters for Agriculture, a charitable organization formed to improve the economic lot of Vermont farmers, has retained you to commence a lawsuit to re-establish the right to cultivate industrial hemp in Vermont. Assume that there are no federal statutes or regulations affecting the cultivation, possession, processing, sale or use of industrial hemp, and that it is lawfully grown in Canada and several of the United States. In what court will you bring this litigation? Who will your plaintiff(s) be? What arguments will you raise on their behalf? Who will the defendant(s) be? What response do you expect the defendant(s) to make? What other courses of action might you consider? Explain the reasons for each answer.
Model Answers
QUESTION III - JULY 1998 You have recently been admitted to the Vermont Bar, and this is the first day of your work for your new law firm of Meany, Miney and Moe in Fair Haven, Vermont. The senior partner, Mr. Meany, drops a file on your desk which includes the attached complaint. He wants answers to his concerns on the case in one hour when he gets back from lunch and meets with the client Mines-R-Us Inc. The file contains the following information: Mines-R-Us employed a Mr. Peter Peron as a miner in an open pit granite quarry beginning in 1995. Mr. Peron earned on average $550 per week. Mr. Peron's primary job was to operate a drilling rig which would drill into the granite for the placement of explosives to remove large blocks of granite from the quarry. Mr. Peron's drilling rig was a large machine which can be operated by one individual standing behind the drill. The drill is supported by a small tri-legged stanchion. The drilling rig was manufactured and sold by Downdeep Drillers of Portland, Maine to Mines-R-Us in 1994. There is no written agreement between Downdeep Drillers and Mines-R-Us as to the sale or use of the drilling rigs. The drill has a safety device in a regulator to prevent the drill from operating at excessive speeds and to shut the drill off if the drill bit breaks. Drill bits often break at Mines-R-Us. The stanchion can easily support the drills when they are drilling, but the vibrations from the drill operating at high speeds can cause the stanchion to collapse. Downdeep Drillers is aware of this problem, but has not told any of its customers, including Mines-R-Us, as Downdeep Drillers believes the regulator on the drill adequately protects against the stanchion collapsing. In the late fall of 1997, as the winter shut-down period was approaching, the quarry was far behind its production quota. On November 17, 1997, Mr. Peron's supervisor, David Deloise, told both Mr. Peron and Mr. Peron's co-worker, Denise Drackmed, that if they did not increase the number of holes they drilled, then the quarry would not meet its production goals for the year, the financial well-being of the company would be at risk, and the annual year end bonus would certainly not be paid. Therefore, Mr. Deloise stridently urged Mr. Peron and Ms. Drackmed to do everything possible to speed up production. While Mr. Deloise was still present, Ms. Drackmed suggested to Mr. Peron that they both override the safety regulator so that they could keep drilling even if part of the drill broke, and avoid a shut down in order to replace the drill bit. Mr. Peron refused, saying to Ms. Drackmed "Somebody's sure to get hurt if we do that!" Ms. Drackmed replied "I don't care, I need that annual bonus to pay for the trip I've scheduled to Florida next spring." Ms. Drackmed easily overrode the safety regulator on her drill rig. Mr. Deloise smiled at Ms. Drackmed, gave a dirty look at Mr. Peron, and quickly left the scene. Sure enough, after only a couple of minutes of operation the drill bit broke and Ms. Drackmed's drilling rig stanchion collapsed due to the vibrations. Ms. Drackmed jumped out of the way of the vibrating drill rig, but Mr. Peron was not so fortunate. The drill hit Mr. Peron, seriously injuring his right foot. Mr. Peron was rushed to the local hospital but due to the extensive injuries his foot was amputated the next day. In addition to his extensive physical injuries, Mr. Peron suffers severe pain from the injury. He is also unable to enjoy many of his previous hobbies including downhill skiing and hiking. As a result of the injuries, Mr. Peron also suffers from Post Traumatic Stress Disorder. This required at least one hospitalization for an attempted suicide. Mr. Peron has not returned to work since the accident. Ms. Drackmed was fired immediately after the accident. The federal Mine Safety and Health Administration fined Mines-R-Us $10,000 for Ms. Drackmed's operating the drill with the safety regulator inoperable. On June 10, 1998, service of process of the attached complaint was perfected on all of the Defendants. The Complaint was filed by your law school classmate, Susie Solo, who has just started as a sole practitioner in Burlington, Vermont. On June 30, Downdeep Drillers filed a general denial of any liability in this matter as well as a cross-claim against Mines-R-Us seeking contribution and indemnification for any liability which may be found against Downdeep Drillers. On June 30, Mr. Meany received a thirty day extension of the period within to respond to the complaint. Draft a memo to Mr. Meany discussing procedural and substantive issues raised by the complaint and Susie Solo's likely actions and responses. STATE OF VERMONT CHITTENDEN COUNTY PETER PERON ) ) v. ) CHITTENDEN SUPERIOR COURT ) DOCKET No.___________________ MINES-R-US, INC., ) DOWNDEEP DRILLERS, ) and, DENISE DRACKMED ) COMPLAINT 1. Peter Peron, a resident of the Town of Fair Haven, County of Rutland and State of Vermont, was an employee of Mines-R-Us, Inc. on or about November 17, 1997, when he was severely injured in an accident arising out of and in the course of his employment at the Mines-R-Us quarry in Fair Haven, Vermont. 2. Said injuries include but are not limited to physical, personal, mental, emotional and loss of the enjoyment of life. 3. Mines-R-Us, Inc. is a domestic corporation with a principal place of business in Fair Haven, Vermont. 4. Downdeep Drillers, Inc. is a foreign corporation incorporated in Maine with a principal place of business in Portland, Maine. 5. Denise Drackmed, a resident of the Town of Castleton, County of Rutland, and State of Vermont, was a co-employee of Peter Peron at the time of the accident on or about November 17, 1997. 6. Mines-R-Us, Inc. was intentionally negligent in failing to provide adequate protection to Peter Peron for the reasonably foreseeable event of a co-employee overriding a safety device proximately and actually resulting in an injury to a co-employee, and, acting through its agent, David Deloise, encouraging employees to work in an unsafe manner as shown by the MSHA fine. 7. Downdeep Drillers Inc, is strictly liable for the injuries suffered by Peter Peron due to the manufacture sale and distribution of a defectively designed drill rig in which a safety device could be easily overridden by an untrained operator proximately and actually harming Peter Peron. 8. Denise Drackmed intentionally and negligently overcame an intended safety device over the objections of Peter Peron proximately and actually resulting in substantial injuries to Peter Peron. 9. Wherefore, as the direct and proximate result of the actions, negligent and intentional, of the above listed defendants, acting individually and jointly, Peter Peron suffered physical and mental injuries and loss of enjoyment of life in an amount in excess of $1,000,000.00. Dated at Burlington, Vermont this 1st day of June, 1998. /s/ Susie Solo Susie Solo 40 George Street Burlington Vermont 05401
Model Answers
QUESTION IV - JULY 1998 Cy Pres comes to your newly opened law office with the deed shown above. He wants to make certain that he owns the property described in the deed. He tells you that the survey describes land duly conveyed to Rhyllis Tate and her husband, and that Rhyllis and her husband had duly recorded the conveyance to them. Assume he is correct about the conveyance and recording. Rhyllis is married to Pross Tate who is now under guardianship, his guardian being Wrent N. Lees. Rhyllis has "disappeared." 1. Is the deed valid? Why or why not? 2. Can the deed be recorded under Vermont law? Why or why not? 3. What do you advise regarding recording? 4. Suppose Rhyllis Tate and Shelley Skase are found dead. What do you advise regarding the deed? 5. Suppose Rhyllis is located but refuses to cooperate in any way. What would you advise and how would you proceed? 6. Assume that Rhyllis is out-of-state and refuses to return to Vermont, but is willing to meet with Mendon Proctor out-of-state. What do you advise? 7. Assume that the deed can be recorded. Where do you advise recording it, and why? QUITCLAIM DEED THIS QUITCLAIM DEED, Executed this 1st day of July, 1998, by first party Pross and Rhyllis Tate whose post office address is Rutland, Vermont to second party, Cy Pres whose post office address is Burlington, Vermont. WITNESSETH, That the said first party, for good consideration and for the sum of $100,000.00 paid by the said second party, the receipt whereof is hereby acknowledged, does hereby remise, release and quitclaim unto the said second party forever, all the right, title, interest and claim which the said first party has in and to the following described parcel of land, and improvements and appurtenances thereto in the County ofWashington, State of Vermont, to wit: Land located in the Town of Montpelier and described in Survey #532 of ABC Survey Co., 5/28/90 /S/ Wrent N. Lees Wrent N. Lees (for Pross Tate) /S/ Phyllis Tate Rhyliss Tate IN WITNESS WHEREOF, The said first party has signed and sealed these presents the day and year first above written. Signed, sealed and delivered in presence of: /S/ Cy Pres Cy Pres Witness /S/ Shelley Skase Shelley Skase Witness STATE OF VERMONT COUNTY OF RUTLAND On July 2, 1998 before me personally appeared Wrent N. Lees, personally known to me [(or proved to me to on the basis of satisfactory evidence)] to be the person[(s)] whose name[(s)] is/[are] subscribed to the within instrument and acknowledged to me that he/[she/they] executed the same in his/[her/their] authorized capacity[(ies)], and that by his/[her/their] signature[(s)] on the instrument the person[(s)], or the entity upon behalf of which the person[(s)] acted, executed the instrument. WITNESS my hand and official seal. Signature /S/ Mendon Proctor Rutland County Clerk
Model Answers
QUESTION V - JULY 1998 You are a sole practitioner recently admitted to the Vermont Bar. You are contacted by Pat, a young woman from Alabama, who was referred to you by the St. Johnsbury Battered Women's Shelter. Pat is in her early thirties and has a high school diploma. She has been married to her husband, Dan, for 10 years. She has three young boys, ages 3, 5 and 7 with Dan. She also has a daughter, age 14, by her first husband, Joe. Pat has sole custody of her daughter and Joe has no right to visitation. He is currently incarcerated in Mississippi for abusing their daughter. Dan is a corporate attorney. When Pat and Dan were first married, Pat supported Dan while he was in law school. Since Dan's graduation from law school, Pat stayed at home and raised the children. Pat advises you that she has been physically and emotionally abused by Dan throughout their marriage. Recently, Dan went into a rage and beat her three times in one day. All four of the children witnessed this incident as well as other incidents of abuse in the past. During the abusive episodes, the children were afraid of Dan and were sometimes hit by objects Dan threw at Pat. Pat left Alabama with the children the day after the most recent incident of abuse while Dan was at work. She moved to Vermont a week ago because her parents and two sisters live here. She intends to stay in Vermont. Pat is terrified that Dan will find and harm her and the children. Dan has told her that if she ever left him he would find her and kidnap the children. She indicates that she wants to get a divorce because she is tired of the abuse, but she is afraid of losing the children. Pat has no job and no means to support herself or her children. The parties own a camp in Vermont on Lake Champlain where they often vacationed. Besides the camp, most of the marital assets are in Alabama and include a doll collection that Pat inherited from her great-grandmother, a savings account with a balance of $5,000 which is in Dan's name only, and a car worth $3,000, titled in both of their names. Additionally, Dan is vested in his company's pension plan and, when he retires, will receive significant monthly payments under the plan. Pat needs to know what her legal rights and options are with respect to the following: 1. What legal action can Pat take to protect herself and her sons from Dan? What about protecting her daughter from Dan? 2. What can you advise Pat about custody of all of the children? How does Vermont determine parental rights and responsibilities and parent/child contact? 3. How can Pat get child support in Vermont for the children? When? If Pat gets an order for child support, how will it be enforced? 4. Can Pat file for a divorce in Vermont? When? 5. Does the Vermont court have jurisdiction to hear the divorce with respect to the property issues? What advice will you give to Pat as to Vermont law regarding the disposition of marital assets?
Model Answers
QUESTION VI - JULY 1998 On July 22, 1995, Amy C. walked to a nearby convenience store at 10:55 p.m. She knew that the store would close at 11:00 p.m., and she wanted to purchase a quart of milk for breakfast. It was very dark outside, and the block before the store was poorly lit. As she passed an alleyway, a man darted out from some tall bushes and tried to pull her into the bushes. He was about Amy's height, rather heavy, and physically stronger than Amy. She noted that he had a strong odor of cigarettes on his breath, he wore a baseball cap on his head, and had long hair, a beard and mustache. She struggled for a couple of minutes, and he threw her to the ground, which stunned her momentarily. Then she heard a dog barking, and the barking grew louder and louder as the dog came closer. The assailant panicked, got up, and ran away. Amy C. immediately ran to the convenience store and used the owner's phone to telephone the police. The police arrived quickly, obtained a verbal description from Amy of her assailant, and asked her to come to the police station so that they could make a composite drawing based on her description. After this was done, the police drove Amy home, and said they would put together a photo line-up for her to review within a day or so. The next day, the police published the composite drawing in the local newspaper, and posted flyers around town with the drawing. By that evening, phone calls with tips from residents started to come in. None of the leads were initially helpful. On the third day, however, one anonymous caller telephoned to say that the drawing resembled a neighbor who lived in a boarding house next door to the caller. The caller did not identify himself, but stated that the neighbor had shaved off his mustache and cut his hair the day that the composite drawing had appeared in the newspaper. He stated that the neighbor was a heavy smoker. The caller identified the man as Sam G., stated that Sam had lived in town only a month, and that he had moved to Vermont from Florida. With this information, the police contacted Florida and ran a criminal record check on Sam G. They learned that Sam G. had convictions in Florida for assault and attempted sexual assault. They arranged for the Florida State Police to telefax a recent photo of Sam G., and the Vermont police used this to put together a photo line-up for Amy's review. Amy was contacted that evening at her home, and shown the line-up. There were 6 photos. Two of the men, including Sam, had beards and mustaches; the other 4 had only beards or mustaches, but not both. Sam G's photo was different from the rest in that there were handcuffs visible on one of his wrists, at the bottom of the photo. None of the other men had restraints or cuffs. Amy selected Sam's photo as best resembling her assailant. The police officer asked her, "Are you sure?" Amy said, "Pretty sure...it was dark out." The next morning, the police set up a surveillance car outside of Sam's boarding house. There was a car with Florida plates parked nearby, and a check with the Florida Department of Motor Vehicles indicated that it was registered to Sam G. While the police were watching Sam's residence, they observed Sam exiting and re-entering the house several times, loading the Florida car with two suitcases and some other small boxes. The police were in an unmarked car. They radioed headquarters for directions, and were told to stop Sam for questioning if he tried to leave town in the car. A half hour later, Sam entered his car and drove down the street. The police in the unmarked car followed him. As Sam approached an intersection with a traffic light, the light in Sam's direction turned red. Sam drove through it. The police put on their blue lights and stopped Sam. When the police approached Sam, they told him of the traffic violation. They asked if he would return to the police station with them. Sam became suspicious, and asked why he had to go to the station for running a traffic light. The police then advised him that they were investigating an attempted rape, and that they had been given a physical description which matched his. They assured him that he was not under arrest, and stated that they merely wanted to question him at the station. They told him that if his story checked out, they would release him and he could be on his way. Sam agreed to accompany the police. When the investigating detective at the station heard on the police radio that Sam was being brought in, he arranged for Amy to come to the station at the same time. Sam arrived at the station first, and Amy showed up 5 minutes later. When Amy arrived, the investigating detective arranged for Amy to pass by Sam in the hallway. Amy saw Sam with the other two officers, who were in plainclothes. Sam was smoking a cigarette. Amy immediately pulled the investigating detective aside and said, excitedly, "That's him! I think that's the man who tried to rape me!" Sam saw Amy, became nervous and said, "Hey, I didn't do anything to her! I was home watching T.V. at 11 o'clock." The police had not yet told Sam what time the assault had occurred, and they had not released that information to the press. Based on Amy's identification, the lead police investigator decided that he had enough evidence to charge Sam. He advised Sam that he was under arrest for the attempted rape of Amy, and read him his "Miranda rights." Sam gave an oral statement, which was videotaped by the police, admitting that he had tried to assault Amy on the night in question. Assume that you have been retained by Sam as his defense counsel. 1. What pre-trial motions would you file, and why? Discuss each of the issues you would raise, and the factual and legal basis for each of your motions. 2. With respect to your motions, analyze the strengths and weaknesses of your client's position, and give the likely outcome for each motion.
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--------------------------------------------------------------------------- Board of Bar Examiners Mailing address: 109 State St. Montpelier VT 05609-0702 Office Location: 111 State St. Montpelier, VT Telephone: (802)828-3281