So you failed the MPRE?

So you didn’t pass the MPRE the first, or second, or fifth, time around. What did you do wrong? What can you do differently?

First and foremost, do NOT beat yourself up. This does not mean you didn’t study hard enough (though maybe it does!), or that you’re not ethical, or that you don’t know the rules. It could be that you didn’t study the RIGHT way.

1) What you needed for professional responsibility class is not identical to what you need for the MPRE: The course that many of you are required to take, called professional responsibility or ethics, is not necessarily geared towards helping you master the MPRE. Some professors may bring up the MPRE, or give you practice MPRE questions, but most are geared towards discussions, towards the gray area and towards what we SHOULD do as professionals. The MPRE tends to focus on where the rule draws the line.
2) Pay Attention to Key Words: Sometimes it’s not that you don’t know the rule, or even how to apply it, but you misread the question. Maybe the question asks about civil liability, which means was the attorney negligent, versus is the attorney subject to criminal sanctions, litigation sanctions or discipline. The difference is very distinct, and sometimes the answer can change drastically based on those little words.
3) Study by practicing, and learning from the questions: The MPRE is a test that you master by practice, not by continually reviewing substance. Yes, you DO need to know the rules, but merely reviewing the rules over and over again will not do the trick. You need to practice the questions, and learn from those questions. Master the way the rule is applied, and why one question turned out one way, while another turned out to have a completely different answer. Students are tempted to assume that they don’t know enough rules, but that’s not necessarily the case, sometimes it’s the way those rules are applied.
4) Pay attention to nuances: One thing to learn from the questions is the tiny nuances you might not pick up studying the rules. For instance, you might master the rule that you can not comingle funds, and even have the exact rule number memorized verbatim. However, only the questions will show you the various ways that rule gets applied, and that’s how you REALLY master the MPRE

MPRE Tips

One recurring observation I have of my MPRE students is that test takers fail to appreciate the specifity of the call of the question. What do we mean by that? The call of the question often helps you determine the subject, as well as the right answer. For example:

The MPRE, as you know, addresses areas of judicial canons and the Model Rules of Professional Responsibility, but it also revisits Torts? What? No one ever told me
torts was on the exam?! Okay, maybe not the whole gamet of torts, but
one particular area tested is negligence...

Consider the following fact pattern:

Prissy was injured in automobile accident by Dolly Drunk and hires attorney to litigate against Dolly Drunk. Prissy informs attorney that she is unwilling to accept less than $150,000.00 prior to trial and if the matter goes to trial she would want no less than $200,000.00 A week before trial Dolly's counsel offers to settle case for
$160,000.00 in exchange for a release and dismissal of Prissy's pending action against Dolly. Attorney rejects the offer. The matter goes before a jury, and the jury returns a verdict of $300,000.00. Prissy later learns that the offer of settlement was never communicated to her by attorney. Infuriated, Prissy brings suit alleging civil malpractice liability.

Did attorney's actions subject her to malpractice liability?

There are several options that the Examiners could provide as possible selections in a multiple choice set up. One's initial gut response is Yes,.... because one may remember reading Rule 1.2 which pertains to this question in pertinent part that the “...lawyer shall abide by the decisions concerning the objectives of representation and, as a result required by Rule 1.4. Rule 1.4 which further states that [a] lawyer shall (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these
Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; and (3) keep the client reasonably informed about the status of the matter.

In the above fact pattern, it is safe to say that the attorney did none of that. But, the answer is No, the attorney will not be subject to liability. How can that be? Look at the call of the question. The call of the question is asking whether the attorney is subject to liability. Liability should alert you to the fact that this is a civil claim, most likely based on negligence (legal malpractice) and negligence is premised on four elements (in the context of negligence actions) Duty; Breach; Causation; and Harm/Damages. Assuming Prissy could prove the first three elements, she cannot prove damages. Recall in the fact pattern that the jury awarded he $300,000.00. Therefore, Prissy was not damaged.

How might the result of this question been different if the call of the question was is Prissy subject to discipline? The attorney most certainly WOULD have been subject to discipline.

For more advice on taking the MPRE, please contact LawTutors to learn more about their MPRE seminar, or working with Joe Keeney, the MPRE Attorney Instructor. (www.lawtutors.net, 617-738-4800)