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Hey everyone. Today I want to do a little tutorial to show you how you can break down sample and model essay answers in order to learn from them. I am going to be working from Q1 (professional responsibility) from the July 2008 exam. There is a sample answer on my Sample Essays & PTs page that I will be using. This particular essay answer received a score of 80 on the first read and 70 on the second read.
What we want to do is break down the essay by IRAC components. That is, we want to be able to look at a well written answer and see how the writer did the following things: (I) spot legal issues arising from a set of facts, (R) state the rules that govern those issues, (A) apply the rules to the given facts, and (C) come to a legal conclusion. A simple way to do this is to use highlighters. Each step of the IRAC process will get its own color. For simplicity, use the order of the rainbow - red, orange, yellow, green - so you don't have to memorize which step corresponds to which color. Thus, I=Red, R=Orange, A=Yellow, C=Green. If we take this approach, this is what the sample answer looks like: 1. Did Alex act improperly by representing both Booker and Clare? Under the rules of Professional Responsibility, a lawyer owes a duty of loyalty to his clients. This includes a duty to avoid conflicts of interests. In the event that there is a conflict of interest, a lawyer must be able to provide legal services without the conflict impeding their ability, and they must also disclose the conflict and get a written disclosure from their client(s). Here, Alex had a prior personal relationship with Booker, because Booker was “a friend during college.” But Alex had no prior relationship with Clare. Between Booker and Clare, Alex would tend to have a preference for Booker because of his past relationship with him. There is no indication whatsoever that Alex disclosed to Clare his personal relationship with Booker. Additionally, because the issue here involves the formation of a partnership, there are some innate conflicts between the two partners (Booker and Clare) because each partner would want to ensure their personal legal rights are being protected. Here, Alex did not explain to both Booker and Clare the possible conflict that representing both of them might cause because Alex only had “a brief meeting with Booker and Clare.” Lastly, there are no facts whatsoever that indicate that Alex obtained a written disclosure from either client regarding those conflicts of interest. Therefore, it appears that Alex acted improperly by representing both Booker and Clare because he (1) never disclosed his personal relationship with Booker, (2) never disclosed the conflict of interest that arises by representing both parties forming a partnership, and (3) never obtained a written disclosure from either client. 2. Did Alex act improperly by taking on legal work in which he was not experienced? Under the rules of Professional Responsibility, a lawyer must not accept legal work which he is incompetent to handle. However, an inexperienced lawyer is not necessarily considered incompetent to handle legal work if s/he takes steps to adequately prepare for the legal work. A lawyer may do this by doing appropriate research into the law and/or by associating with a lawyer experienced in the area of law. Here, Alex was inexperienced because he “is a recently-licensed attorney” and “had no experience with forming partnerships.” However, Alex did not associate with a lawyer experienced in forming partnerships because Alex had “a solo practice.” Rather, Alex only hired a “paralegal” to do the work. Although Dale the paralegal had decades of experience in the formation of partnerships, he was not an attorney because he was “recently-disbarred.” Nor did Alex do the necessary research to make himself competent in the area of formation of partnerships because he only spent “a total of two hours” on the matter, which included his meetings with the clients, and only a “reading” of the “partnership documents in order to learn about partnerships.” This “reading ... in order to learn about partnerships” was not appropriate legal research to learn about this area of the law. In addition, the small amount of time spent doing the reading was insufficient as well. Therefore, Alex acted improperly by accepting legal work which he was incompetent to handle and not associating with an experienced attorney on the matter or performing the legal research necessary to learn the area of the law. 3. Did Alex act improperly by assisting someone who is not licensed to practice law? Under the rules of Professional Responsibility, a lawyer may not assist another in the unlicensed practice of law. Here, Dale was not an attorney because he was “recently-disbarred.” Alex hired Dale to prepare the partnership documents for Booker and Clare. Dale was not supervised by Alex because Dale “spent four hours on his own preparing the partnership documents.” Also, Dale was unsupervised by Alex in meeting with the clients because Dale was “on his own ... meeting with Booker and Clare.” Alex did not supervise Dale’s finished work product either because Alex read “the partnership documents in order to learn about partnerships.” Alex could not have been supervising any of Dale’s work since it is clear that Alex was so inexperienced in formation of partnership matters that he would not be able to critique Dale’s performance. It does not matter that Alex notified the State Bar about hiring Dale and Dale’s involvement in the matter. Disclosure to the State Bar of improper activity does not excuse or validate improper activity. Nor does it matter that Dale had “decades of experience in law practice, including the formation of partnerships” because he was disbarred, and therefore practicing law without a license. Therefore, Alex acted improperly by assisting Dale to practice law without a license. 4. Did Alex act improperly by charging an exhorbitant fee? Under the rules of Professional Responsibility, a lawyer must not charge an unfair fee. A fee is unfair if it is not representative of the relative experience and expertise of the attorney, the complexity of the legal matter, or the time and energy spent on the matter by the attorney. However, flat fees may be appropriate in some situations. Here, Alex charged Booker and Clare $5,000 to set up their partnership. Alex paid his paralegal $250/hour to prepare the partnership documents, and it took Dale 4 hours to prepare those documents, for a total cost of $1,000. Alex also spent 2 hours on the matter himself. Based on the 6 hours of work performed, and the $1,000+ that was spent on the work, it appears that $5,000 was far in excess of the reasonable value of work performed. However, it can be argues that because Dale “had decades of experience in ... formation of partnerships” and Alex “had no experience with forming partnerships”, it would have taken Alex much longer than it took Dale to do the same work that Dale performed, which would have made the cost higher. On the other hand, Dale was very highly paid for a paralegal, so it could be argued that the cost for such experience was already included in the $1,000 that Alex paid Dale to do the work. Another important factor that might help determine whether the $5,000 was a reasonable fee would be the general rates that other solo practitioners with Alex’s level of experience in formation of partnerships charge. If Alex’s fee was significantly higher than those rates, then his fee might be considered to be unfair or exhorbitant. Therefore, Alex might have acted improperly by charging a high fee if the fee was unrepresentative of the value of the services provided to Booker and Clare. If you highlight sample and model answers like this, you are going to see some things in common. (Make sure to highlight some of your practice essays like this as well; you will want to see the same things in common to know you are on track.) For instance, essays should look like the rainbow - red, orange, yellow, green. Good answers will look like this. Poorer answers might look like playdoh after my 3 year old has been playing with it. You don't want red showing up in the yellow and so forth. If your essays have some color cross-over, that is going to tell you that you need to work on organization. That being said, for the last issue (#4), there is a little bit of cross-over where there is a legal rule mixed in with analysis. But here's why it's okay in this instance: first, that particular legal rule & its corresponding analysis are broken out into their own paragraph so that the grader is put on notice visually that something different is going on (that a new idea/thought is being presented). Secondly, the rule is not spelled out in an obvious way; rather it is implied and woven into analysis all at the same time. It is actually dealt with very smoothly and elegantly. And for the essay answer overall, organization is great. Another thing you should notice about the essay after it's been highlighted is this: all the red looks the same. The essay is broken up by the issues, and they have been organized nicely for the grader by being numbered. Besides that, each issue is a simple, one-sentence question. Plus they have a great rhythm, don't they? 1. Did Alex act improperly by representing both Booker and Clare? 2. Did Alex act improperly by taking on legal work in which he was not experienced? 3. Did Alex act improperly by assisting someone who is not licensed to practice law? 4. Did Alex act improperly by charging an exhorbitant fee? You can't get much better than that! Let's do the same thing with all our orange and see what happens: Under the rules of Professional Responsibility, a lawyer owes... Under the rules of Professional Responsibility, a lawyer must... Under the rules of Professional Responsibility, a lawyer may... Under the rules of Professional Responsibility, a lawyer must... Another pattern! And what grader wouldn't appreciate the ease and simplicity of reading a rule statement that starts like this? If we look at the yellow, once again we see that each paragraph starts the same way: Here, Alex had... Here, Alex was ... Here, Dale was... Here, Alex charged ... Likewise, each conclusion begins with "Therefore, ..." You can also look at how each paragraph starts to see some patterns. 1. Did Alex act improperly by representing both Booker and Clare? Under the rules of Professional Responsibility, a lawyer owes... Here, Alex had... Therefore, ... The issue is always the heading, and it is easiest to notice if it is numbered or given some kind of overall structure. Then you will notice that the rule statement always starts with "Under...", the analysis always starts with "Here...", and the conclusion always starts with "Therefore..." Remember that: Under, Here, Therefore; Under, Here, Therefore; Under, Here, Therefore. If you get into the good habit of always starting your paragraphs like this it will make things a lot easier. You won't get that i-don't-know-what-to-write-so-i'm-going-to-stay-frozen-in-a-panic thing that we've all experienced and all dread will happen on exam day. You already know the first word or two, and it will act as a cue as to what you should be writing. You may have noticed that I have only scratched the surface of what you can learn by dissecting sample and model essay answers. These tips are really all just organizational in nature - things you can do to present yourself to the graders in an organized way (numbering each issue, making each issue a heading, breaking out each IRAC step into a separate paragraph, and starting paragraphs in the same way which creates good rhythm and acts as a writing cue). Copy these techniques to make them your own, and you will present yourself to the graders as a stronger writer. But don't stop there! There is so much more you can learn. For example, you can study yellow sections and see how good writers use and apply facts. If you look at just orange, you can learn how to craft clear, succinct legal rules. (By the way, did you notice that nowhere in the essay was there a specific citation? Only the words "Rules of Professional Responsibility" were used. Did you know you could do that and still score well?) If you want to find more high-scoring essays to learn from (besides the ones I have available here), you can check out baressays.com. But before I leave you, I must leave you with a word of warning: do not, I repeat, DO NOT, spend any time looking at bad answers. I am firmly against doing that. You can read more on that here.
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