MPT Summaries

2013 MPT Summaries

In re Wendy Martel (February 2013, MPT-1)

In this performance test, examinees are employed by the law firm that represents Wendy Martel, a Franklin attorney. Martel seeks the law firm’s advice regarding her representation of David Panelli, M.D. Martel recently settled Panelli’s case and has received the settlement funds. When Martel informed Panelli that she had the funds and needed to determine how much Panelli’s former attorney, Rebecca Blair, was entitled to for her work on the case, Panelli was adamant that Blair should receive nothing and should not even be told of the settlement. (Panelli had fired Blair as a result of a personality conflict.) Martel wants to be sure that she acts ethically with regard to Blair and the information about the settlement that Blair is entitled to have. Examinees’ task is to draft an opinion letter, following the firm’s guidelines, identifying the ethical issues raised by Panelli’s position and advising Martel as to how she should proceed. The File contains the instructional memo from the supervising attorney, a format memo for opinion letters, the client interview, copies of the Martel/Panelli emails, and a copy of Blair’s lien. The Library contains excerpts from the Franklin Rules of Professional Conduct, a Franklin State Bar ethics opinion, and a case from the Franklin Supreme Court.

In re Guardianship of Will Fox (February 2013, MPT-2)

Examinees’ law firm represents Betty Fox, a member of the Blackhawk Tribe, who has petitioned for guardianship of her minor grandson, Will. Will’s mother died when he was born, and his father, Betty’s son, has been in a coma for several months as a result of a car accident. Betty is petitioning for guardianship in the Blackhawk Tribal Court in response to a petition for guardianship in Franklin state court filed by Will’s maternal grandparents, the Lodens, who are not members of the tribe. In addition, the law firm has filed on Betty’s behalf a motion to transfer the Lodens’ state court action to the tribal court. Examinees are asked to prepare a brief in support of the motion to transfer, following the firm’s format for persuasive briefs, and anticipating those arguments likely to be raised by the Lodens against the transfer. The File includes the instructional memo from the supervising attorney, a format memo for persuasive briefs, the competing petitions for guardianship filed in state and tribal court, the motion to transfer, a letter from the tribal court, an email from Betty’s son, and an excerpt from the Journal of Native American Law. The Library contains excerpts from the Indian Child Welfare Act of 1978, guidelines from the Bureau of Indian Affairs for Indian child custody proceedings, and a case from the Franklin Supreme Court bearing on the subject.

2012 MPT Summaries

Franklin Resale Royalties Legislation (February 2012, MPT-1) In this performance test, examinees are employed by the law firm that represents the Franklin Artists Coalition. The Coalition supports enactment of legislation which would require a five percent royalty to be paid to artists or their heirs on the resale of their visual artworks. To this end, the Coalition has asked the law firm to prepare a document which can be handed out to legislators and which will set forth the need for and benefits of the legislation, especially in light of the fact that similar legislation was introduced but not adopted in the neighboring state of Olympia. Examinees’ task is to draft the “leave-behind”—a persuasive document that will convince legislators to vote in favor of the resale royalties legislation. In doing so, examinees must set out the arguments in favor of the legislation, respond to the objections to the legislation, and address the legal issue of whether the legislation is preempted by the 1976 federal Copyright Act. The File contains the instructional memorandum from the supervising attorney, a letter from the client, a template for the “leave-behind,” and testimony by three witnesses before the Olympia State Senate regarding the similar legislation in that state. The Library contains the text of the proposed legislation, excerpts from the federal Copyright Act, and two cases bearing on the legal issue of preemption.

In re WPE Property Development, Inc. (February 2012, MPT-2) Examinees’ law firm represents WPE Property Development, Inc., a developer of low-income housing properties in Franklin. WPE contracts with Trident Management Group to manage many of its properties in compliance with Internal Revenue Code provisions to ensure tax-exempt status. One of these properties has now lost its tax-exempt status as the result of Trident’s mismanagement. WPE and Trident have a long-term business relationship that is valuable to both parties. Thus, while WPE appears to have a strong breach-of-contract claim against Trident (for tax liabilities and penalties resulting from Trident’s failure to maintain the tax-exempt status), the client, WPE’s CEO, is reluctant to file suit against Trident. He hopes that a settlement can resolve the matter short of litigation and thereby also avoid negative publicity for the housing project. However, despite many assurances from Trident’s counsel that Trident is willing to reach a settlement and make WPE whole for its losses, no final agreement has been reached, and the statute of limitations on a claim against Trident will run in just 15 days. The senior partner must advise WPE’s CEO of the legal consequences of not filing the complaint against Trident before the deadline. Examinees are asked to draft a letter to WPE’s CEO for the senior partner’s signature analyzing the potential legal consequences to WPE if it decides not to file its complaint against Trident and any possible theories under which WPE could recover against Trident after the limitations period has run. The File consists of the task memorandum from the senior partner, a memo to the file summarizing WPE’s concerns, and several pages of correspondence between counsel for WPE and Trident discussing the proposed settlement of the breach-of-contract claim. The Library contains three cases on the statute-of-limitations issue.

State of Franklin v. Soper (July 2012, MPT-1) In this performance test, examinees are law clerks for the trial court judge assigned to the homicide prosecution of Daniel Soper, who is charged in the shooting death of Vincent Pike. The defense has filed a motion to exclude, on state law hearsay and federal constitutional grounds, statements made by Pike after the shooting during a 911 call and later at the hospital shortly before he died. Examinees’ task is to draft a bench memorandum that will help prepare the judge for the evidentiary hearing. The File contains the judge’s instructional memo, a “format memo,” the defendant’s Motion to Exclude Evidence, the 911 call transcript, and the police report. The Library contains excerpts from the Franklin Rules of Evidence (identical to the restyled Federal Rules of Evidence), a state case discussing the applicable hearsay exceptions, and a heavily edited version of Michigan v. Bryant (U.S. 2011) setting forth the test for determining whether statements are “testimonial” for purposes of the Confrontation Clause.

Ashton v. Indigo Construction Co. (July 2012, MPT-2) Examinees’ law firm represents Margaret Ashton, a homeowner, in her dispute with Indigo Construction Co. A few months ago, Indigo bought a vacant lot behind Ashton’s home and began storing dirt on the lot to use later in its construction and landscaping business. Although Indigo’s use of the vacant lot is in compliance with the relevant zoning ordinances, its activities have negatively affected Mrs. Ashton—she is disturbed by noise from the trucks going to and from the vacant lot, and the huge dirt pile has caused substantial amounts of dust and mud to accumulate in her yard. Examinees are asked to draft the argument section of the brief in support of a preliminary injunction against Indigo. The File contains a memorandum from a firm partner asking the examinee to prepare the legal argument, a “format memo” that lays out the format for persuasive writing of trial briefs, two affidavits (from Margaret Ashton and from a firm investigator), and an article about the dirt pile from a local newspaper. The Library contains two cases from the Franklin Supreme Court: Parker v. Blue Ridge Farms, Inc. (dealing with the elements of the common law action of private nuisance) and Timo Corp. v. Josie’s Disco Inc. (dealing with the standards for granting injunctive relief for a private nuisance).

2011 MPT Summaries

Butler v. Hill (February 2011, MPT-1) Examinees’ law firm represents Jennifer Butler in a divorce action against Robert Hill. Jennifer was 17 and pregnant when the marriage ceremony was performed in 2003, and Robert forged the required signatures on the parental consent form. Jennifer and Robert lived together as a married couple for over six years, and they have two children. When Jennifer learned that Robert had been having an affair, she decided to end the marriage. Shortly thereafter, she discovered that Robert had been married before, and that he and his first wife were divorced in 2008—that is, several years after Jennifer and Robert’s marriage ceremony. Examinees’ task is twofold. First, they are asked to draft a brief objective memorandum for the supervising partner analyzing whether the parties’ marriage ceremony in September 2003 had any legal effect under the Franklin Family Code. Second, examinees are to prepare a closing argument in which they persuasively set forth the case for why the court should conclude that Jennifer and Robert are married under Franklin law and that Jennifer should be awarded more than 50 percent of the marital property. The File consists of the task memorandum, the partner’s memorandum to the file, a transcript of an interview with a neighbor, the couple’s marriage certificate, the divorce judgment for Robert’s first marriage, the deed for the parties’ residence, and an invitation to their anniversary party. The Library contains the relevant sections of the Franklin Family Code and three cases relating to void marriages, common law marriages, and the division of marital property.

In re Magnolia County (February 2011, MPT-2) In this performance test, examinees are employed by the Magnolia County Counsel’s Office. The county wants to build a new road connecting two state highways. To do so, the county will have to obtain an easement from the Plymouth Railroad Company over a portion of Plymouth’s railroad track and install an at-grade crossing of the track. If Plymouth refuses to grant the easement, then the County will need to exercise its eminent domain powers under state law and file a condemnation action in state court to force Plymouth to grant the easement. Plymouth contends that a condemnation action would be preempted by the Interstate Commerce Commission Termination Act (ICCTA), a federal statute that governs railroad operations. Examinees’ task is to draft an objective memorandum analyzing whether a condemnation action to acquire the easement for the crossing of Plymouth’s railroad track would be preempted under the ICCTA. The File contains the instructional memo from the supervising attorney, notes from a meeting between the supervising attorney and the county’s senior civil engineer, and a memo summarizing the preliminary meeting between the supervising attorney and railroad representatives. The Library contains three cases involving federal preemption under the ICCTA.

In re Field Hogs, Inc. (July 2011, MPT-1) In this performance test, examinees are employed by the law firm that represents Field Hogs, Inc., a manufacturer of heavy lawn and field equipment for consumer use. The company has been sued four times on various products liability and tort theories; the firm successfully defended two of these cases, but two others resulted in substantial jury awards for the plaintiffs. Field Hogs wants to limit its costs and any unwanted publicity in future litigation. To address these concerns, Field Hogs has asked the law firm to draft an arbitration clause to be added to its sales contracts. Examinees’ task is to draft an objective memorandum analyzing whether the proposed arbitration clause would cover tort claims against Field Hogs and whether the allocation of arbitration costs would affect the clause’s enforceability. In addition, examinees are asked to draft an arbitration clause that is likely to be enforceable in court and that addresses the client’s priorities. The File contains the instructional memorandum from the supervising attorney, a summary of the client interview, a memorandum summarizing Fields Hogs’s litigation history, a copy of the law firm’s standard commercial arbitration clause, and the Consumer Procedures of the National Arbitration Organization. The Library contains two cases discussing the standards for enforceable arbitration clauses.

In re Social Networking Inquiry (July 2011, MPT-2) Examinees’ supervising partner is the chairman of the Franklin State Bar Association Professional Guidance Committee. The committee issues advisory opinions in response to inquiries from Franklin attorneys concerning the ethical propriety of contemplated actions under the Franklin Rules of Professional Conduct. The committee has received an inquiry from a Franklin attorney asking whether an investigation using the social networking pages (such as Facebook or MySpace) of a nonparty, unrepresented witness in a personal injury lawsuit would violate the Rules. The supervising partner has reviewed the matter and believes that the attorney’s proposed course of conduct would be contrary to the Rules. Examinees’ task is to prepare a memorandum analyzing the issue with the object of persuading the other committee members that the proposed course of conduct would violate the Rules. This is an issue of first impression in Franklin. Examinees must therefore discern the relevance of, and guidance to be derived from, the three differing applications of those Rules in other states and then apply those differing approaches to the proposed course of conduct. The File contains the instructional memorandum, the letter from the Franklin attorney making the inquiry to the committee, and notes of the committee meeting. The Library contains the applicable Rules of Professional Conduct (including commentary on the Rules) and two cases—one from Olympia and one from Columbia—bearing on the legal issues.

2010 MPT Summaries

State of Franklin v. McLain (February 2010, MPT-1) The client, Brian McLain, has been charged with violating various sections of the Franklin Criminal Code dealing with methamphetamine, a controlled substance. The charges are based on evidence seized from McLain after police stopped him for investigatory purposes, acting on an anonymous tip that an individual matching McLain’s description had been seen purchasing items at a convenience store that, while entirely legal, are known ingredients of methamphetamine production. The officers searched his car, finding the goods described in the tip, together with a small plastic bag containing what appeared to be a marijuana cigarette. McLain was arrested and booked. After questioning, McLain directed the police to a “meth lab” where they found chemicals and equipment used to manufacture methamphetamine, as well as the drug itself. McLain was charged with possession of methamphetamine with intent to distribute, possession of laboratory equipment and supplies with the intent to manufacture methamphetamine, and manufacture of methamphetamine. He has moved to suppress all evidence seized by police on the ground that the officer lacked reasonable suspicion to stop him. He has also moved to dismiss the charge of possession of equipment with the intent to manufacture methamphetamine on the ground that it is a lesser-included offense of manufacture of methamphetamine. Examinees’ task is to draft the arguments in support of both motions. The File consists of a memorandum from the supervising attorney describing the assignment, the criminal complaint, the motion to suppress evidence and to dismiss Count 2, the transcript of the anonymous call to the crime hotline, and excerpts from the transcript of the evidentiary hearing. The Library contains the relevant Franklin statutes and three cases—two relating to investigatory stops and one dealing with lesser-included offenses.

Logan v. Rios (February 2010, MPT-2) In this performance test, examinees are associates at a law firm. The client, Trina Rios, owner of a toy store called Trina’s Toys, has been sued by Karen Logan, who slipped in a puddle of water and fell while shopping in the toy store. As a result, Logan sued Rios, claiming that Rios violated her duties as a premises owner. Rios pled an affirmative defense of contributory negligence, which, if proven, would be a complete defense to Logan’s action. Local court rules require parties to attend an early dispute resolution (EDR) conference, at which a neutral evaluator (the EDR judge) attempts to facilitate settlement of the case. Applicants’ task is to prepare an initial draft of part of the EDR statement, which will be submitted to the EDR judge. The EDR statement is confidential and is not shared with any other party. Thus, examinees should candidly discuss the strengths and weaknesses of their client’s case. The File contains the instructional memo from the supervising attorney, the local rule and form concerning EDR conferences and statements, the complaint, an investigator’s report, and excerpts of the depositions of plaintiff Karen Logan and Nick Patel, a toy store employee. The Library includes a Franklin Supreme Court Approved Jury Instruction concerning the premises liability of property owners with commentary on the duty of property owners and on contributory negligence.

In re Hammond (July 2010, MPT-1) In this performance test, examinees work for a law firm, which has received a request for guidance from another attorney, Carol Walker, related to her representation of William Hammond. A suspicious fire destroyed a building that Hammond owned and that housed his business. He has sought Walker’s advice about whether he has any criminal exposure related to the fire and whether he may file an insurance claim for the loss of the building. While Walker suspects that Hammond may have been involved in the fire, Hammond has not admitted or denied involvement and Walker has not explicitly asked. Walker wants to know whether she can successfully move to quash a subpoena duces tecum compelling her to appear before a grand jury convened to investigate the fire and to testify and produce materials relating to her communications with Hammond. Examinees’ task is to prepare the argument section of a brief in support of the motion to quash on the grounds that under the Franklin Rules of Professional Conduct and the Franklin Rules of Evidence, Walker may not be compelled to give the testimony or produce materials. The File contains the instructional memorandum from the supervising attorney, a memorandum on persuasive briefs, a letter from Walker to the firm, two memoranda from Hammond’s case file, a police report, the subpoena duces tecum, and the motion to quash. The Library contains provisions of the Franklin Rules of Professional Conduct, the Franklin Rules of Evidence, and the Franklin Criminal Code, and two cases from other jurisdictions bearing on a question, unresolved in Franklin, involving the attorney-client privilege and the crime-fraud exception.

In re City of Ontario (July 2010, MPT-2) In this performance test, examinees work for the City Attorney for the City of Ontario, Franklin. The City Attorney has been reviewing the city ordinances and procedures that cover the Liquor Control Commission, the administrative agency composed of the mayor and the city counsel that is responsible for granting liquor licenses and enforcing the relevant city ordinances. The City Attorney is concerned that the current Commission procedures would not be given preclusive effect by the courts should a licensee appeal a decision. Examinees’ task is to draft an objective memorandum analyzing whether the courts would be likely to grant preclusive effect to the Commission’s decisions and recommending what changes to the current procedures would make it more likely that the courts would do so. In addition, examinees should consider how any recommended changes would affect the City’s goal of having cost- and time-effective procedures for addressing violations of the Liquor Control Act. The File contains the instructional memorandum from the City Attorney, excerpts from the City of Ontario Liquor Control Ordinances, and the Notice of Liquor Control Violation form used by the City. The Library includes three cases.

2009 MPT Summaries

Phoenix Corporation v. Biogenesis, Inc. (February 2009, MPT-1) The law firm of Amberg & Lewis LLP represents Biogenesis, Inc., a large biotechnology company that is the defendant in a breach-of-contract suit regarding payment of patent royalties. A jury trial is set to begin in a month and is expected to last six weeks. The plaintiff in that suit, Phoenix Corporation, has filed a motion to disqualify the Amberg firm as Biogenesis’s attorneys, arguing that Amberg inadvertently received a letter covered by the attorney-client privilege and that Amberg’s actions with respect to that letter violate the Franklin Rules of Professional Conduct and will incurably prejudice Phoenix’s case. Examinees are associates at the law firm that has agreed to represent the Amberg firm in defending it against the motion to disqualify. Examinees’ task is to prepare an objective memorandum evaluating the merits of Phoenix’s argument for the Amberg firm’s disqualification. The File contains a task memorandum from the supervising attorney, the transcript of the client interview, the privileged letter that is the subject of the motion to disqualify, and Phoenix’s brief in support of its motion for disqualification. The Library contains the text of the Franklin Rules of Professional Conduct at issue and two cases.

Ronald v. Department of Motor Vehicles (February 2009, MPT-2) In this performance test, examinees work for a sole practitioner who represents Barbara Ronald in an administrative proceeding before the Franklin Department of Motor Vehicles (DMV). The DMV suspended Ronald’s driver’s license for allegedly operating a motor vehicle with a blood-alcohol level of at least 0.08 percent, the legal limit. Ronald requested an administrative hearing to challenge the suspension. Because this is an administrative proceeding, and not a criminal prosecution, the DMV must prove by a preponderance of the evidence that Ronald drove a motor vehicle with a prohibited blood-alcohol content. The administrative hearing officer has heard the evidence and has directed the parties to submit written briefs. Examinees’ task is to draft a persuasive memorandum arguing that the police officer did not have a reasonable suspicion warranting the stop of Ronald’s car, that the hearing officer cannot rely solely on the blood test report to find that Ronald was driving with a blood-alcohol content of 0.08 percent or more, and finally, that in light of all the evidence, the DMV has not proved that Ronald was operating a motor vehicle while intoxicated. The File contains the memorandum from the supervising attorney, the administrative hearing transcript, the police report, and the blood-alcohol test results. The Library contains a selection of Franklin statutes and three cases.

Jackson v. Franklin Sports Gazette, Inc. (July 2009, MPT-1) The client, the Franklin Sports Gazette, a weekly tabloid sports newspaper, has been sued by Richard “Action” Jackson, a star baseball player, for an alleged violation of Jackson’s right of publicity under Franklin’s recently enacted right-of-publicity statute. The Gazette ran a photograph of Jackson, only partially visible, sliding into home plate as part of its coverage of a baseball game. Jackson’s complaint arises from the Gazette’s use of that same photo in a print advertisement soliciting subscriptions. The Gazette seeks the law firm’s assistance in defending against the suit. Examinees’ task is to draft an objective memorandum analyzing whether there is a cause of action under Franklin’s right-of-publicity statute and identifying the Gazette’s possible legal arguments to oppose such a cause of action. The File contains the instructional memorandum from the supervising attorney, a summary of the client interview and background research, an internal memorandum from the Gazette approving the advertisement, and a copy of the advertisement itself. The Library contains the Franklin Right of Publicity Statute, excerpts from its legislative history, and three right-of-publicity cases decided under the previous common law in Franklin.

In re City of Bluewater (July 2009, MPT-2) Examinees are employed by the Bluewater City Attorney’s Office. The City plans to provide water and sewer services to a proposed 500-acre subdivision and to collect the corresponding revenue for such services. However, the City has just received a demand letter from Turquoise Water Supply Corporation (TWS), threatening to sue the City if it proceeds with its plan to provide water and sewer services to the subdivision site, which has not yet been annexed by the City. TWS claims to have the exclusive right under federal and state law to provide such services to the site. This presents an issue of first impression in Franklin. Examinees’ task is to draft a response to TWS’s demand letter, addressing TWS’s contentions and persuasively setting forth the City’s right to provide the services in question. The File contains the instructional memorandum, a preliminary research memorandum, the TWS demand letter, a newspaper article about the proposed subdivision, and a copy of the City’s draft service plan. The Library includes the relevant provisions of the federal statute and the Franklin Code regarding water utilities, and two Columbia cases.

2008 MPT Summaries

In re Velocity Park (February 2008, MPT-1) Examinees’ law firm represents Zeke Oliver, a local entrepreneur who is building Velocity Park, which will soon open as the first skateboarding park in Banford, Franklin. Zeke has asked the law firm to advise him on an appropriate liability waiver to be signed by skate park customers, many, if not most, of whom will be teenagers. Examinees are asked to review the draft waiver that Zeke has brought in and to draft a memorandum analyzing whether the waiver in its current form is legally enforceable under Franklin law. In completing this task, examinees are expected to address both the language of the document and its format and suggest specific revisions. In addition, examinees must grapple with the issue of whether liability waivers signed only by minors will be enforced to bar actions for negligence arising from injuries suffered by those minors while engaging in recreational activities. The File contains the instructional memorandum from the supervising partner, a transcript of the client interview, a liability waiver Zeke assembled by taking language from a triathlon liability waiver, and a newspaper article about the risks associated with skateboarding. The Library includes a Franklin statute regarding civil actions and two cases, one from Franklin and one from the state of Columbia.

In re Lisa Peel (February 2008, MPT-2) Examinees’ law firm represents Lisa Peel, a private citizen who operates an Internet blog on which she posts news stories about local government, as well as movie reviews and items about her family activities. Following her post about a local school official taking $10,000 in audiovisual equipment for personal use, the district attorney subpoenaed Peel to testify before the grand jury and to produce all of her interview notes in an effort to get her to reveal the identities of the sources for her story. Peel seeks the law firm’s advice on whether she can resist the subpoena. Examinees’ task is to draft a memorandum analyzing whether Peel would be considered a “reporter” under the Franklin Reporter Shield Act and would therefore be protected from being compelled to reveal her confidential sources. The File contains the instructional memorandum from the supervising partner, the transcript of the client interview, a copy of Peel’s school-corruption post, a copy of the subpoena, and a news article about the development of blogs as the newest form of journalism. The Library contains excerpts from the Franklin Reporter Shield Act, various dictionary definitions, and two cases.

Bohmer v. Bohmer (July 2008, MPT-1) Examinees are associates at a Franklin law firm, which has agreed to represent Jessica Bohmer, mother of a six-year-old daughter, in a child custody dispute with the child’s father, Alex Bohmer. Jessica and Alex are still married, but Jessica has recently relocated from Franklin to Columbia with their daughter because of Jessica’s concerns about Alex’s violence. Alex has filed for custody in Franklin. Examinees’ task is to draft an objective memorandum analyzing the provisions of the Franklin Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and discussing whether the UCCJEA, and the Franklin cases interpreting the statute’s home-state jurisdiction and inconvenient forum provisions, will permit the firm to persuade a Franklin court that the state of Columbia is the preferable jurisdiction to address the Bohmers’ child custody dispute. The File contains the instructional memorandum, a transcript of a telephone call between the partner and a legal services attorney in Columbia who is helping Jessica in that jurisdiction, the legal services intake form, a civil protection order, and an e-mail from Alex to Jessica. The Library includes the relevant provisions of the Franklin UCCJEA and two Franklin cases.

Williams v. A-1 Automotive Center (July 2008, MPT-2) The client, Robert Williams, took his minivan to A-1 Automotive Center (A-1) for a routine oil change. After being told by the repair shop’s owner that the minivan’s transmission was in imminent danger of failing, Williams agreed to have a rebuilt transmission installed for approximately $1,700. Williams subsequently found out from a local dealership that A-1 had not performed the agreed-upon work but had in fact reinstalled the original transmission. He now wants to file suit against A-1. Examinees’ task is to analyze several potentially actionable statements made by A-1’s owner and to determine which statements are actionable and which are not. Next, examinees are to draft a cause of action for fraud based on those statements determined to be actionable. In doing so, examinees are expected to follow the firm’s drafting guidelines, which provide an example of a well-pleaded cause of action. The File contains the instructional memorandum from the supervising attorney, the law firm’s guidelines for drafting causes of action, client interview notes, a memorandum from the supervising attorney identifying four potentially actionable statements, and Williams’s receipt from A-1 for the alleged repair. The Library contains three cases discussing the pleading requirements for a cause of action for fraud.

2007 MPT Summaries

In re Tamara Shea (February 2007, MPT-1) Examinees’ law firm represents Tamara Shea, a real estate broker who believes that she has been cheated out of a commission rightfully owed her in regard to a sale of a 20-acre real estate parcel. Shea and the seller, Ann Remick, entered into a 60-day listing agreement under which Remick retained Shea to serve as her broker. Under the agreement, Shea was to be paid a commission of 10 percent of the purchase price if the property was sold with her assistance during the listing period. Shortly after the listing agreement lapsed, Shea was contacted by Dan Anderson, a potential buyer. Shea then contacted Remick, who confirmed, in a telephone message, her intention to extend the listing agreement. However, Remick neglected to confirm the listing extension in writing. When Anderson, with Shea’s assistance, made an offer of $185,000 for the property, Remick rejected it, claiming it was too low. Shea subsequently discovered that shortly after the listing agreement expired, Remick sold the property directly to Anderson for $180,000. Remick is now refusing to pay Shea any commission, stating that Anderson informed her she need not compensate Shea because she sold the property directly to him. Examinees’ task is to draft an objective memo to the supervising attorney analyzing whether Shea can maintain claims against Remick for breach of contract and against Anderson for interference with contractual relations and/or interference with prospective economic advantage. The File consists of the instructional memorandum from the partner, a transcript of an interview with Shea, the listing agreement, a letter from Shea confirming extending the listing agreement, the MLS listing for the property, and Anderson’s initial offer to purchase the property. The Library contains the Franklin statute of frauds and two cases.

Glickman v. Phoenix Cycles, Inc. (February 2007, MPT-2) The client, George Glickman, was demoted from his vice president position at Phoenix Cycles, Inc. shortly after returning to work after taking nine weeks’ leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., to recover from a stroke and to care for his newly adopted baby. Glickman seeks legal advice regarding whether his employer’s actions violate the rights accorded under the FMLA, specifically, the right to be restored to a pre-leave employment or an equivalent position. The supervising partner has already spoken to Phoenix’s in-house counsel in an attempt to resolve Glickman’s claims without resorting to litigation. Examinees’ task is to draft a follow-up letter persuasively setting forth the basis for Glickman’s claims under the FMLA, discussing the specific FMLA provisions that Phoenix has violated, explaining why the exceptions in the Act for key employees do not apply, and setting forth the forms of relief to which Glickman would be entitled should the matter proceed to litigation. The File consists of the instructional memorandum, a transcript of an interview with Glickman, a Phoenix Cycles’ press release, a letter to Glickman from the company regarding his FMLA leave, and a management consulting firm’s report on Phoenix Cycles. The Library contains excerpts from the FMLA and two federal cases.

Acme Resources, Inc. v. Robert Black Hawk et al. (July 2007, MPT-1) Examinees’ law firm represents Robert Black Hawk and other members of the Black Eagle Tribe who have sued Acme Resources, Inc., a mining company, in tribal court seeking to recover for damage caused by Acme’s mining coal bed methane from under reservation land, in addition to an injunction ordering Acme to cease its mining activities. The Tribe members claim that their water wells are running dry, leaving them without water for livestock and crops, because Acme’s mining activities are depleting the water table. Acme’s answer to the tribal court complaint denies liability for the alleged harm and also denies that the tribal court has jurisdiction in this matter. Subsequently, Acme filed suit in federal court requesting a declaratory judgment that the tribal court lacks jurisdiction over Acme and seeking an injunction against the tribe members’ prosecution of the tribal court action. Examinees are asked to draft the argument section of a brief in support of a motion for summary judgment in the federal action or, in the alternative, to dismiss or stay the action on the grounds that the tribal court has jurisdiction and that Acme has failed to exhaust its tribal court remedies before pursuing its complaint in federal court. The File contains an instructional memorandum, a transcript of a client interview, a copy of Acme’s complaint filed in U.S. District Court, a draft motion for summary judgment or, in the alternative, to dismiss or stay, and affidavits from a tribe member and a geologist. The Library contains excerpts from the tribe’s constitution and tribal code and one case.

In re Mistover Acres LLC (July 2007, MPT-2) Examinees’ law firm represents Petra Flynn in her individual capacity as one of the three members of Mistover Acres LLC, a Franklin limited liability company. Mistover Acres LLC (the LLC) grows and sells apples, salad greens and other produce. Recently, the LLC received a demand letter from counsel for a neighboring trout farm. The demand letter asserts that a substantial amount of its trout stock has died and claims that aerial pesticide spraying by the LLC is the cause. According to the demand letter, it will cost upwards of $1 million to clean and restock the trout ponds; the trout farm will sue the LLC if a settlement cannot be reached. The LLC has its own legal counsel. Petra, however, is seeking legal advice in her individual capacity because she is concerned that the LLC business structure may not protect her from being held personally liable for the alleged harm to the trout fishery. Unlike the other two members of the LLC, Petra has significant assets of her own; she fears that she could be an attractive “deep pocket” defendant from the trout farm’s perspective. Examinees’ task is to write an objective memorandum discussing: 1) whether the LLC’s pesticide spraying constitutes an ultrahazardous activity under tort law, and 2) whether Petra, through her activities as a member of the LLC, is at risk of being personally liable for the trout farm’s claim. The File contains an instructional memorandum, notes from the client interview, the LLC operating agreement, an excerpt from the pesticide user’s guide, and a copy of the public notice of pesticide application on Mistover Acres’ fields. The Library contains excerpts from the Franklin LLC statute and two cases.

2006 MPT Summaries

Harris v. CBL (February 2006, MPT-1) Examinees' law firm represents Steve Harris, a graphic artist, in a copyright dispute with Columbia Biotech Laboratories, Inc. (CBL). Harris won a competition to develop a cartoon character for use in marketing CBL’s new computer chip, the i-Chip. Harris then entered into a six-month contract (the letter agreement) with CBL, during which time he was to use his character, “Blinky,” in developing marketing materials for CBL in exchange for $7,000/month. The contract contained a “work made for hire” clause stating that all work performed under the contract belonged to CBL. Shortly after they entered into the contract, CBL cancelled it, but paid Harris the remainder due thereunder. CBL continued to use Blinky in its own i-Chip marketing campaign. Examinees’ task is to draft an objective memorandum analyzing (1) who owns the copyright to Blinky, (2) if Harris owns Blinky, whether he granted CBL an implied nonexclusive license to use it, and (3) if there was a license, whether CBL’s use of Blinky is within the scope of any such license. The File contains the instructional memorandum from the partner, notes of an interview with Harris, a series of e-mail messages, and excerpts from the Harris/CBL letter agreement. The Library contains excerpts from the U.S. Copyright Act and two cases bearing on the subject.

State of Franklin v. Butler (February 2006, MPT-2) The Franklin State’s Attorney’s Office has subpoenaed Flora Hernandez, a mediator, to testify in its felony case against John Butler for illegally dumping chemical waste. Hernandez presided at a mediation between Butler and his former business partner, Lynn Long, during which Butler admitted to dumping the chemical waste into the Green River. Hernandez and Long were the only witnesses to Butler’s admission, and Long has since died. Hernandez has filed a motion to quash the subpoena, arguing that her testimony is protected by the mediation privilege of the Franklin Uniform Mediation Act (FUMA). However, there are several exceptions to FUMA’s mediation privilege, and examinees, assistant state’s attorneys, are asked to write a brief in opposition to the motion to quash. The File contains an instructing memorandum from the Senior Assistant State’s Attorney, case notes, notes from a police officer’s interview with Long, a copy of the agreement to mediate, and a copy of the motion to quash. The File also contains instructions for drafting persuasive briefs. The Library consists of portions of FUMA and two relevant cases.

Larson Real Estate File (July 2006, MPT-1) Examinees are associates at a law firm that represents Karen Larson, who has contracted to sell her home in Banford, Franklin, to Pierre and Lisa Meridien, residents of the neighboring state of Columbia. When they entered into the sales contract, the Meridiens had not seen Larson’s house in person; now, after traveling to Banford to view the property, they are unhappy about the condition of the house and have concerns about the neighborhood. The Meridiens are demanding a $60,000 reduction in the purchase price as compensation for the condition of the house and the environs that Larson allegedly failed to disclose, contrary to Franklin Real Property Law § 350, which requires sellers to disclose “material facts” to future buyers of residential real estate. Section 350 was recently enacted; previously, Franklin was a strict “buyer beware” jurisdiction. Thus, this is a developing area of the law in Franklin. Examinees’ task is to draft an objective memorandum (1) discussing the disclosure requirements imposed on sellers of residential real estate by Franklin Real Property Law § 350 and the common law; (2) analyzing whether, with respect to disclosing the specific items listed by the Meridiens’ attorney, Larson complied with § 350 and the common law; and (3) identifying what relief, if any, the Meridiens are entitled to. The File contains the task memorandum, the transcript of the client interview, the letter from the Meridiens’ attorney, the real property disclosure statement, and an article from The Banford Courier regarding a proposed neighborhood group home. The Library contains a Banford city ordinance on historic districts, Franklin Real Property Law § 350, and two cases.

Parker v. Essex Productions (July 2006, MPT-2) Examinees’ law firm, Brown Scott & Mayer (BSM), represents the pop star Sylvia Parker in her lawsuit against Essex Productions (Essex), a company that promotes and manages concert tours. Parker has claimed that, in connection with her last concert tour, Essex breached a contract to procure singing performances for Parker, that it was unjustly enriched as a result of the breach, and that it violated state law by operating without an employment agency license. Essex’s counsel in Parker v. Essex asserts that BSM’s representation of Parker creates a conflict in violation of the Franklin Rules of Professional Conduct and has filed a motion to disqualify BSM because of a supposed conflict arising from work Peter Alexander, a BSM associate, did for Essex while working at his former law firm, Tansy & Pipe. Essex’s motion claims that, while employed by Tansy & Pipe, Alexander advised Essex on a variety of music business matters, including licensure issues and negotiation of contracts similar to the one under scrutiny in Parker v. Essex. Examinees’ task is to draft the supervising partner’s argument in opposition to Essex’s motion to disqualify BSM, setting forth every available point that supports the conclusion that BSM should not be disqualified from representing Parker. The File contains the task memorandum, the motion for disqualification filed by Essex’s counsel, a transcript of the supervising partner’s interview with Peter Alexander, and a memorandum from Carol Scott, another BSM partner. The Library contains three rules from the Franklin Rules of Professional Conduct and two cases.

2005 MPT Summaries

In re Rose Kingsley (February 2005, MPT-1) Examinees’ law firm represents Attorney Rose Kingsley in a fee dispute with Attorney Karen Sheats. Kingsley temporarily hired Sheats to assist her in the Moreno case, a complex toxic tort case. The two lawyers entered into a fee-splitting agreement whereby Sheats would receive 30% of Kingsley’s final fee from the case. Sheats was also to be paid $50 an hour for her work on the case as an advance on the 30% contingency. After Sheats had devoted 600 hours to the case and been paid $30,000 for her work, she felt that the case was too time-consuming and was not going to succeed, so she quit. When Kingsley recovered a $10 million fee for settling the Moreno case, Sheats demanded 30% of the $10 million settlement. Examinees are asked to draft a memorandum for the supervising partner analyzing whether, under Rule 200 of the Franklin Rules of Professional Conduct, Sheats was Kingsley’s partner or associate, and whether the correspondence between Kingsley and Moreno complied with Rule 200’s disclosure requirements for fee-splitting arrangements. The File consists of an instructional memo, a transcript of an interview with Kingsley, a letter from Sheats’s counsel, the Kingsley-Sheats fee agreement, a letter from Kingsley to Janice Moreno, and a memo from Sheats. The Library contains Rule 200 of the Franklin Rules of Professional Conduct and two relevant cases.

Reynolds v. Preferred Medical Providers (February 2005, MPT-2). In this item, examinees’ law firm represents Rowena Reynolds in a wrongful death action against her deceased father’s HMO, Preferred Medical Providers (Preferred). John Reynolds was enrolled in Elder Advantage, a Medicare health insurance plan issued by Preferred. Mr. Reynolds’s physician recommended that he receive a newly developed treatment for his kidney disease, but Preferred refused to authorize it and Mr. Reynolds died of kidney disease. Shortly after examinees’ law firm filed the lawsuit in Franklin state court, Preferred’s attorney demanded that the dispute be submitted to arbitration because the Elder Advantage enrollment agreement had an arbitration clause requiring that disputes go to arbitration. While conceding that the arbitration clause violates Franklin law, Preferred’s counsel has argued that the Federal Arbitration Act (FAA) and the Medicare Act preempt Franklin law, and that therefore the arbitration clause is enforceable. Examinees’ task is to draft a letter to Preferred’s attorney arguing that Franklin law is not preempted by federal law and that the clause is unenforceable. The File contains an instruction memo, the letter from Preferred’s attorney, an excerpt from the Elder Advantage participant handbook, Mr. Reynolds’s Elder Advantage enrollment form, and a transcript of an interview with Rowena Reynolds. The Library contains excerpts of the Franklin law, excerpts of federal statutes (McCarran-Ferguson Act, Medicare Act, FAA), an excerpt from the Congressional Record, and two cases.

In re Barnett (February 2005, MPT-3) Examinees work for The Open Housing Center, which represents Matt and Sarah Barnett in a housing discrimination claim arising out of their attempt to rent an apartment from Tony Gordon. Matt is white, and his wife, Sarah, who was born and raised in England, is dark-skinned. Matt saw a flyer for an apartment that seemed well suited for his family. He went to view the apartment by himself and was encouraged by the owner’s sister, who was showing it to him, to rent the apartment. After Sarah and Matt went to view the apartment together, though, it became evident to them that the apartment owner, Tony Gordon, would not rent to them notwithstanding their ability to pay the rent and their interest in the apartment. Examinees are asked to draft a memo explaining how the facts support the claim that (1) Tony Gordon violated two civil rights sections of the Franklin Administrative Code; (2) Matt has recourse to bring an action against Gordon; and (3) Matt and Sarah are entitled to recover damages from Gordon. The File contains an instructional memo, notes from separate interviews with Sarah and Matt, the apartment flyer, and a property and ownership report of Gordon’s properties. The Library is composed of Title 8 of the Franklin Administrative Code and two relevant cases.

In re Brigham (July 2005, MPT-1) Examinees represent Dr. Barbara and Len Brigham before the Bay County Zoning Board of Adjustment (ZBA) regarding their petition for a use variance to move Barbara’s dental office into the Brighams' home. Dr. Brigham specializes in geriatric dentistry, devoting 20-25% of her practice to serving pro bono patients. She will be unable to maintain her pro bono commitment and stay in her current office due to a substantial rent increase. She has just learned that the County Supervisors recently passed an ordinance rezoning a parcel near the Brighams' home from R-1 to R-R (multi-family, catering to senior citizens). The Brighams are seeking to move Barbara’s dental office into their home, located in a R-1 (single-family residential) zoned neighborhood. They have asked examinees’ law firm to file the letter brief to the ZBA in support of their petition for a use variance. The File consists of the instructing memorandum, notes from the partner’s interview with the Brighams, a neighborhood map, letters from neighbors, and a newspaper article about the rezoning ordinance passed by the County Supervisors. The Library contains excerpts from a treatise on Franklin land use planning and the Bay County Code, as well as a case bearing on the subject.

In re Clarke Corporation (July 2005, MPT-2) Examinees’ law firm represents Clarke Corporation (Clarke). In 1990, Clarke purchased a division of Santoy Enterprises (Santoy) that manufactured pharmaceutical products, including Pure View, an X-ray enhancing contrast dye. The sale was an arm’s-length transaction that did not involve the transfer of any corporate stock or any overlap in officers, directors, or shareholders. Clarke briefly continued to manufacture Pure View and is now being threatened with a products liability suit for the death of Thomas Regan, who allegedly died from doses of Pure View administered to him more than two decades ago. Examinees are asked to draft an opinion letter to Jasmine Clarke, Clarke’s president, addressing whether liability can be imposed on Clarke under the product line successor rule, a judicially created doctrine that applies only in the products liability area. The File contains instructions on writing opinion letters, notes from an interview with Jasmine Clarke, excerpts from the 1990 Asset Purchase Agreement between Clarke and Santoy, and the demand letter from Mr. Regan’s widow’s attorneys. The Library contains two relevant cases.

2004 MPT Summaries

State v. Miller (February 2004, MPT-1) In this item, examinees are employed by the State’s Attorney and are assisting in the prosecution of the defendant, Tom Miller, on two counts of aggravated assault involving domestic violence. Pursuant to the Franklin Evidence Code, the prosecution has given notice that it intends to introduce evidence of three prior acts of violence committed by the defendant against Jan Adams and her daughter, Sara. Ms. Adams, Sara, and the defendant used to live together. Defense counsel has objected to the introduction of this “other acts” evidence and the court has ordered both sides to submit briefs on the issues raised in defense counsel’s objection. The File consists of the instructional memo from the supervising State’s Attorney, which sets forth the three grounds of defense counsel’s objection, an office memo prescribing the format and contents of briefs, and a transcript of a police interview with Jan Adams. The Library contains various sections of the Franklin Evidence Code and the Franklin Penal Code, as well as two appellate cases.

In re Rivera (February 2004, MPT-2) Examinees’ law firm represents Cara Rivera in a personal injury action against the owners of an amusement park where Rivera was injured on a ride. The matter is about to go to trial and the supervising partner has learned that opposing counsel refuses to stipulate to the authenticity of several items of evidence he intends to introduce in Rivera’s case in chief. Examinees are asked to write a memorandum to the supervising partner spelling out exactly what has to be done to compel production of the documents and exhibits in court for use at trial and to lay the foundation (i.e., authenticate) for introducing them into evidence. The partner’s memo prescribes the format applicants are expected to use. They are also told that all the evidence is relevant and admissible if properly authenticated. The File contains the partner’s instructing memo, a list of the evidentiary items in question, and a letter/report from an investigator. The Library contains an excerpt from the treatise Walker on Evidence in the Franklin Courts and sections of the Franklin Rules of Evidence and Code of Civil Procedure.

Bennett v. Sands Construction Company (February 2004, MPT-3) In this performance test item, examinees represent Samuel Bennett, who has just spent $45,000 to replace the roof on his house and repair damage resulting from leaks in the original roof. Bennett wants to sue Sands Construction Company, the contractor that built his house and installed the original roof seven years ago. The problem is that the applicable four-and six-year statutes of limitation appear to have run. Examinees are asked to write a memorandum analyzing whether there is any way around the apparent bar of the tort and contract statutes of limitation. The File contains notes of an interview with Bennett and a series of letters chronicling the events. The Library contains the applicable statutes and two cases interpreting them.

In re Marian Bonner (July 2004, MPT-1) In this item, examinees’ law firm represents Dr. Nicole Hall, the daughter of deceased educator Dr. Marian Bonner. Dr. Bonner was a prominent, highly respected educational reformer in the Franklin public school system. Dr. Bonner bequeathed all her property to Dr. Hall. Upon Dr. Bonner's death, her personal papers were unwittingly given to a for-profit corporation, SECA (Success for Every Child Association), which has been awarded state contracts for taking over underperforming public schools in Franklin. Dr. Hall has learned from the Franklin Library Association that SECA intends to use Dr. Bonner’s writings and name for SECA’s commercial advantage. Dr. Hall is concerned that SECA’s use of her mother’s name and papers for its cause will distort her mother’s proud legacy as a champion of public education. Dr. Hall, as the successor in interest to her mother’s copyright in her papers and her right of publicity, seeks the firm’s help in stopping SECA from using her mother’s writings and name. Examinees’ task is to draft a letter to SECA’s attorney demanding that SECA refrain from using Dr. Bonner’s name and her papers. The File contains the instructing memo from the supervising partner, a transcript of an interview with Dr. Hall, the letter from the Franklin Library Association, and a biographical sketch of Dr. Bonner. The Library contains excerpts from federal copyright statutes and two cases.

Graham Realty, Inc. v. Brenda Chapin (July 2004, MPT-2) For this item, examinees work in the Franklin Legal Aid Society representing Brenda Chapin, a tenant in an apartment building owned by Graham Realty, Inc. (GRI). GRI has brought a summary eviction proceeding against Chapin for failing to pay her rent. Chapin has been withholding her rent for seven months because GRI has refused to repair numerous defects in her apartment, notwithstanding her repeated requests. To successfully defend against GRI’s eviction action, Chapin will have to prove that GRI breached the implied warranty of habitability. Examinees’ task is to draft a case planning memo that identifies and evaluates Chapin’s claims, counterclaims, defenses, and/or remedies in the eviction action. The File consists of the Legal Aid Society’s intake officer's interview with Chapin, a letter from Chapin to GRI’s building manager detailing the defects in her apartment, the Legal Aid Society’s case planning memorandum guidelines and examples, a City of Avon Building Inspector Violation Report, and a newspaper article. The Library contains sections of the Franklin District Court Act and the Franklin Real Property Code, as well as two cases.

Wells v. Wells (July 2004, MPT-3) In this item, examinees are asked to draft a persuasive brief in support of Joan Wells’s petition to move her six-year-old child, Sammy, to the state of Columbia, where Joan has been offered a job. Sammy’s father, Fred Wells, Joan’s former husband, opposes the move. Under the Franklin Dissolution of Marriage Act, Section 109, the petition is required because when Joan Wells and Fred Wells were divorced in 2002, they were granted joint custody of Sammy. In this instance, joint custody is defined as joint legal custody and joint physical custody but does not imply equal durations of time with each parent. Joan has finished her doctoral studies, and she would like to relocate to Columbia to accept a position as an Associate Professor of Irish Literature and Studies at Columbia State University in Columbia City. This career opportunity is unparallel to any in Franklin. If permitted to move, Joan has made arrangements for Sammy’s care and upbringing and for various means of maintaining a relationship with his father. Fred opposes this move and believes that it is motivated by a desire to separate Sammy from him or by Joan’s jealousy related to his remarriage. The File contains a memorandum from Pamela Broyles (Joan’s attorney), a memorandum regarding persuasive briefs, and a transcript of a hearing. The Library consists of two Franklin court cases and the Franklin Dissolution of Marriage Act.