July 2022 New York State Bar Examination MEE Questions & MPT

July 2022

New York State

Bar Examination

MEE Questions & MPT Summaries

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MEE QUESTION 1

Four months ago, Victim was shot and seriously wounded in City. Defendant has been

charged with attempted murder. The prosecution's theory is that Victim and Defendant

were both members of a criminal street gang called "The Lions," which engages in drug

dealing, robbery, and murder in City. The prosecutor alleges that the shooting was the

result of a gang dispute.

Defendant has brought a pretrial motion objecting to the prosecutor's introducing the

following anticipated evidence:

(A) Testimony by a City detective who will be offered as an expert in gang

identification, gang organizational structure, and gang activities generally and as an

expert on particular gangs in City. The detective is expected to testify as follows:

I have been a detective on the police force for six years. Throughout that time, my

primary assignment has been to investigate gangs and criminal activity in City. I

have also worked closely with federal drug and firearm task forces as they relate to

gangs. Prior to becoming a detective, I was a corrections officer in charge of the

gang unit for City's jail for three years, and my duties included interviewing,

investigating, and identifying gang members.

Throughout my career, I have attended training sessions providing education and

information on gang structure, membership, and activities. As I've gained

experience and knowledge in this area, I've frequently been asked to lead such

sessions. I would estimate that I've taught more than 75 such training sessions over

the past three years.

Street gangs generally engage in a wide variety of criminal activities. They usually

have a clear leadership structure and strict codes of behavior. Absolute loyalty is

required and is enforced through violent acts. Members of particular gangs can be

identified by clothing, tattoos, language, paperwork, or associations.

I am quite familiar with "The Lions." It is one of City's most violent and feared

criminal gangs. Members of The Lions can be identified by tattoos depicting

symbols unique to the gang.

(B) Testimony by a former leader of The Lions concerning a photograph of Defendant's

tattooed arm. After the photograph is authenticated as a photograph of Defendant's arm,

the witness is expected to testify in part as follows:

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I am certain that this is a Lions tattoo. I had a similar one removed. You'll notice

that it has a shield containing the numbers for the police code for homicide, and

Lions' members frequently include police codes in their tattoos to indicate crimes

the gang has committed. The tattoo also has a shotgun and sword crossed as an

"X," and a lion. Those are symbols frequently used by The Lions. This tattoo

indicates to me, based on my experience, that Defendant is a member of The Lions

gang.

follows:

I got into an argument with a gang boss at a meeting of The Lions. I said I

wouldn't participate in an attack that was planned on another gang because my

cousin was in that gang. The boss looked at Defendant and nodded to him. Next

thing I knew, after the meeting, Defendant pulled a gun on me and shot me. I'm

sure he did it because of that argument.

The jurisdiction has adopted rules of evidence identical to the Federal Rules of Evidence.

Defense counsel's motion raises the following objections to the evidence described

above:

1. The detective's anticipated testimony about gang identification, organization,

and activities is improper expert testimony.

2. The photograph of Defendant's tattoo and the former gang leader’s anticipated

testimony about it is inadmissible character evidence.

3. Victim's anticipated testimony that Defendant shot him because of a gang

dispute is irrelevant.

How should the trial court rule on each objection? Explain. (Do not address constitutional

issues.)

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MEE QUESTION 2

Five years ago, Seller started a small winery that catered to a regional market. The winery

became wildly successful. Two years ago, Seller decided to retire and sell the winery.

Seller entered into negotiations with Buyer, who was interested in buying a winery. Seller

was proud that the label for her red wines bore her picture so, during the negotiations, she

told Buyer that she would not sell him the winery unless he agreed to continue using that

label. Seller and Buyer orally agreed that if Seller sold the winery to Buyer, he would

continue to use the label for as long as he sold red wines.

Buyer and Seller agreed that Buyer would buy the winery from Seller for a purchase

price of $3 million plus a "fair share" of the profits generated by the winery during the

first year after it was acquired by Buyer. While they did not agree on the precise share of

the first-year profits that Buyer must pay to Seller, Buyer said that 20% would be fair,

while Seller said that 25% would be fair.

Buyer and Seller entered into and signed a lengthy written agreement. It stated that, in

exchange for the assets of the winery, Buyer would pay Seller $3 million at the closing

and, 15 months later, a "fair share of the winery's profits" during Buyer's first year of

ownership. It also stated that Seller was not permitted to own or operate a winery

anywhere in the United States for 10 years after the closing, a term that Seller was happy

to accede to because she intended to retire. The agreement did not include any provision

about future use of the red wine label with Seller's picture and did not contain an

"integration" or "merger" clause.

After Seller transferred ownership of the winery to Buyer, Buyer continued to sell red

wines but discontinued using the label with Seller's picture. When Seller complained

about this, reminding Buyer of his oral agreement to continue using the label, Buyer said,

"The agreement we both signed doesn't say anything about the label."

Fifteen months after the closing, Buyer sent Seller $10,000, which was equal to 5% of the

winery's profits during the first year of his ownership. Seller emailed Buyer, complaining

about the low amount of the payment and reminding Buyer that they had both understood

that a "fair share" of the first-year profits would be in the 20–25% range. In response,

Buyer pointed out that the agreement that they had signed did not say that a "fair share"

of the profits would be that high.

Fed up with Buyer, Seller came out of retirement and opened and began operating a

winery in another state in the United States far from her original winery.

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In litigation between the parties:

1. Is Seller's and Buyer's oral agreement that Buyer would use Seller's picture on red

wine labels enforceable even though it was not included in the written agreement?

Explain. (Do not discuss any potential statute of frauds issues.)

2. Could Seller introduce evidence of the negotiations about what would constitute a

fair share of the winery's first-year profits to help explain the meaning of that

term? Explain.

3. Assuming that Buyer is not in breach of any of his obligations under the purchase

agreement, would Buyer prevail on a claim that Seller breached her obligations

under the agreement by opening her new winery? Explain.

Assume for all questions that, in the jurisdiction whose law governs the dispute, the sale

of an ongoing business is governed by the common law of contracts, not Article 2 of the

Uniform Commercial Code.

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MEE QUESTION 3

Brian, a home builder, and Danielle, a land developer, properly formed a corporation.

The articles of incorporation state that the corporation's purpose is to pursue property

development opportunities and any other lawful business. Brian owns 20% of the

corporation's shares, and Danielle owns 80%. Under their shareholders' agreement, Brian

and Danielle serve as directors on the corporation's three-member board of directors, and

Danielle selects the third director.

Shortly after the corporation's formation, the corporation (following unanimous board

approval) purchased a parcel of land for $5 million for the purpose of dividing it into

residential lots and constructing a single-family home on each lot. The board also decided

that (1) Brian would be responsible for the construction of all homes on the parcel, (2)

Danielle would be responsible for securing the financing necessary to build the homes,

and (3) the proceeds from home sales would be paid to the corporation. After setting a

reasonable salary for Brian during the home-construction period, the board agreed to

periodically consider whether to issue dividends.

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The board unanimously authorized Danielle to hire Carol, a consultant, to negotiate

financing agreements on behalf of the corporation with several banks. Danielle asked

Carol to act on behalf of the corporation to obtain the loans, and Carol agreed to do so.

The first bank that Carol contacted declined to provide financing to the corporation but

offered instead to buy the parcel for $6 million. Without discussing any of this with any

of the corporation's directors, Carol signed a written agreement with the bank on behalf

of the corporation to sell the parcel to the bank for $6 million.

The next day, Carol informed Danielle about the terms of the sale agreement with the

bank. Danielle agreed with Carol that the deal was in the corporation's best interest and

properly called a special meeting of the board to approve it.

At the special meeting three days later, Carol described to the board the terms of the

agreement. Danielle and the third director voted to approve the land sale under the terms

of the written agreement signed by Carol. Brian voted against approving the sale.

Danielle and the third director then voted to distribute all the sale proceeds to Danielle as

a "bonus payment." Brian, who would receive no payment from the sale, properly made a

request to see all accounting records related to the purchase and sale of the parcel. But the

board refused Brian's request, with Danielle and the third director voting against it.

The corporation was incorporated in a jurisdiction whose corporation statute is modeled

on the Model Business Corporation Act (MBCA).

1. Is the corporation bound by the land-sale agreement with the bank signed by

Carol? Explain.

2. Was the bonus payment made to Danielle, which was approved by a majority of

the board of directors, proper? Explain.

3. Does Brian have sufficient grounds to seek the judicial dissolution of the

corporation? Explain.

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MEE QUESTION 4

Ten years ago, Arlene Doe, age 34, signed and dated a "Declaration of Trust," the

pertinent part of which provided as follows:

I, Arlene Doe, do hereby create the Arlene Doe Trust (AD Trust). I name myself

sole Trustee of the trust. I reserve the right to all trust income during my lifetime.

Upon my death, all trust assets shall be paid in equal shares to my three nieces

Carla, Donna, and Edna. I declare that this trust applies to all assets listed in

Schedule A, attached hereto.

In Schedule A, Arlene wrote, "I have not transferred any assets to this trust yet, but I will

before I die."

The trust instrument had no provision regarding whether it was revocable or irrevocable.

Four years ago, Arlene bought bonds with her personal funds and revised Schedule A to

list them as assets of the trust.

Two years ago, Arlene wrote across the face of the Declaration of Trust for the AD Trust,

"This AD Trust is revoked" and "I'm taking back the assets."

One year ago, Arlene gave her friend a package containing a valuable necklace and the

bonds. As she handed her friend the package, Arlene said, "This package contains a

valuable necklace and bonds. I revoked the AD Trust because I decided that I want my

niece Donna to have everything I own except what I'm giving to a worthy cause in my

will. Hold this package as trustee for Donna. When Donna reaches age 18, sell the

necklace and bonds, use the proceeds to pay for Donna's college education, and then give

her what's left over when she reaches age 22." The friend said, "Okay."

Later, Arlene properly executed a will naming a bank as executor of her estate and as

trustee of a perpetual trust created under her will. This testamentary trust directed that "all

of my worldly goods not otherwise validly disposed of during my life, I leave in trust for

the Political Party. I direct the trustee to pay all income from this trust, annually, to the

Political Party and not to any other person." The Political Party's exclusive mission is to

support candidates for public office who accept its political views.

Last month, Arlene died. At Arlene's death, she owned a bank account with a balance of

$300,000. The bonds in the package given to Arlene's friend were worth $200,000, and

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the necklace was worth $50,000. Arlene was survived by her younger brother Bob, her

three nieces Carla, Donna, and Edna (the only children of Arlene's deceased sister), and

her nephew Fred (the only child of Arlene's deceased older brother). Donna is 16 years

old.

The jurisdiction in which Arlene died has adopted the Uniform Trust Code. It also applies

the common law Rule Against Perpetuities. Another statute in this jurisdiction provides,

"If a decedent died intestate without a surviving spouse, issue, or parent, the decedent's

property is distributed to the issue of his or her parents per stirpes."

1. (a) Was the AD Trust validly created, and if so, when was it created? Explain.

(b) Assuming that the AD Trust was validly created, was it effectively revoked?

Explain.

2. Was the trust for the benefit of Donna valid? Explain.

3. Was the testamentary trust for the benefit of the Political Party valid? Explain.

4. Assuming that the testamentary trust to Political Party is invalid, to whom should

the bank account be distributed? Explain.

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MEE QUESTION 5

Developer LLC is a limited liability company organized in State A, with its principal

place of business in State A. Its only two members are Amy, a domiciliary of State A,

and Barbara, a domiciliary of State B. Amy is the managing member of Developer.

Developer entered into a written construction contract with Builder Co., a State B

corporation with its principal place of business in State B. Builder agreed to build an

office building for Developer on a vacant lot owned by Developer in State A. Lender

Corp., a finance company, agreed to lend Developer up to $2 million to finance the

construction project. Lender is incorporated in State A with its principal place of business

in State A.

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Lender disbursed $250,000 of the loan amount to Builder to cover the down payment on

the construction contract. The loan agreement between Developer and Lender provided

that any funds disbursed by Lender under the loan agreement would be added to

Developer's loan balance and repaid, with interest, over a five-year period.

As construction of the office building proceeded, Lender made disbursements to Builder

pursuant to the loan agreement between Lender and Developer. But when Builder

finished construction of the office building, Lender refused to make the final $100,000

disbursement to Builder even though Developer had occupied the building and had begun

leasing space to tenants. Lender told Developer that it was refusing to authorize the final

disbursement because Builder's construction was "substandard." Developer also has not

made final payment to Builder.

Builder has sued Lender in federal district court in State A, invoking the court's diversity

jurisdiction. Builder's complaint alleges that Lender's withholding of the final payment of

$100,000 violated the loan agreement with Developer. Builder claims to be a third-party

beneficiary of Lender's promise to Developer, entitled to payment of $100,000 from

Lender.

Lender has moved to dismiss the action on the ground that Developer is a required party

to the action and has not been joined as a defendant.

1. Is Developer a person "required to be joined if feasible" to the Builder v. Lender

action under Federal Rule of Civil Procedure 19(a)? Explain.

2. Would joinder of Developer deprive the court of subject-matter jurisdiction?

Explain.

3. Assuming that Developer cannot be joined, how should the court rule on the

motion to dismiss? Explain.

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MEE QUESTION 6

In 2015, Oscar validly conveyed an apartment building that he owned

to my grandson Frank and his heirs so long as at least four apartments in the

apartment building are rented to families with incomes below the state median

income for a family of their size. If at any time fewer than four apartments are

being rented to below-median-income families, the apartment building

automatically reverts to Oscar.

In 2017, Oscar died owning the family home. His valid will included the following

provisions:

1. I give my family home to my new wife, Wanda, for life, and upon her death to

my daughter, Adele, and her heirs.

2. I give the entire residue of my estate to my wife, Wanda.

In 2020, Adele died. Pursuant to her valid will, Adele left her entire estate to Frank.

Before her death, Adele had regularly paid the property taxes on the family home because

she believed that Wanda could not afford them. After Adele died, Frank told Wanda that

he would not pay the property taxes because "they are your responsibility, Wanda."

Wanda accurately asserts that she cannot afford to pay the $6,000 annual property tax out

of her limited income. Frank accurately observes, however, that if Wanda moved out of

the home and rented it to another, she could generate at least $1,500 per month in rental

income, more than enough to pay the property tax.

Until February 1, 2021, Frank had leased four apartments in the building to below-

median-income families. On that date he validly and lawfully terminated the leases of all

tenants in the building to begin his plan to convert all the apartments in the building to

luxury apartments. As a result, beginning February 1, 2021, no apartments in the building

were being rented to below-median-income families.

On February 7, 2021, Wanda learned what had happened and immediately told Frank, "I

now own the building."

The jurisdiction has adopted the Uniform Statutory Rule Against Perpetuities.

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These materials are for personal use only and may not be reproduced or distributed in any way.

1. As between Wanda and Frank, who is obligated to pay the property taxes on the

family home? Explain.

2. Upon conveying the apartment building to Frank, what if any interest did Oscar

have in the apartment building, and was that interest valid? Explain.

3. Upon Oscar's death, what if any interest does Wanda have in the apartment

building, and is that interest valid? Explain.

4. After February 1, 2021, who owns the apartment building? Explain.

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MPT 1 – In re Marriages of Walter Hixon In this performance test, the client, Walter

Hixon, seeks legal advice regarding his recent discovery that his first wife, whom he had

not divorced, was still living when he married a second time. Hixon wants to annul the

second marriage and to resolve claims to certain real property acquired during that

second marriage. The examinee’s task is to prepare an objective memorandum addressing

whether Columbia or Franklin law governs the grounds for annulling the second

marriage, the process for obtaining an annulment, whether a Franklin court would have

jurisdiction to annul the marriage and to dispose of the parties’ property, and where

Hixon should file an action given that the couple’s real property is located in Columbia.

The File contains the task memorandum, a transcript of the client interview, and an

investigator’s memorandum. The Library contains an excerpt from

Walker’s Treatise on Domestic Relations, selected Columbia and Franklin statutes

dealing with void and voidable marriages, sections of the Restatement (Second) of

Conflict of Laws, and two Franklin appellate cases.

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These materials are for personal use only and may not be reproduced or distributed in any way.

MPT 2 – In re Nina Briotti This performance test requires the examinee to draft an

objective memorandum that the supervising partner can use to advise attorney Nina

Briotti, a sole practitioner, on the legal and ethical issues presented by her concern that

one of her clients might commit a criminal act. Briotti fears that her client, a financial

adviser, might invade a trust that he administers in order to cover investment losses in

other accounts that he manages. As Briotti intends to telephone her client and counsel

him that such a use of trust funds would be illegal, she wants to know whether recording

the telephone call would be legal and ethical under applicable state law and the rules of

professional conduct, as well as whether she must inform him that she is recording the

call. The File contains the instructional memorandum from the supervising partner, a

transcript of the client interview, and Briotti’s notes of her last telephone conversation

with her client. The Library contains excerpts from the Franklin and Olympia criminal

codes dealing with recording of telephone conversations, excerpts from the American Bar

Association’s Model Rules of Professional Conduct, an opinion of the ABA Standing

Committee on Ethics and Professional Responsibility, commentary of the Franklin State

Bar Ethics Committee on Franklin Rule of Professional Conduct 8.4 (which is identical to

the ABA Model Rule), and an Olympia District Court case addressing the legality of

recording a telephone conversation with only one party’s consent.

July 2022

New York State

Bar Examination

Sample Essay Answers

July 2022 NEW YORK STATE BAR EXAMINATION

SAMPLE ESSAY ANSWERS

The following are sample candidate answers that received scores superior to the average

scale score awarded for the relevant essay. They have been reprinted without change,

except for minor editing. These essays should not be viewed as "model" answers, and

they do not, in all respects, accurately reflect New York State law and/or its application

to the facts. These answers are intended to demonstrate the general length and quality of

responses that earned above average scores on the indicated administration of the bar

examination. These answers are not intended to be used as a means of learning the law

tested on the examination, and their use for such a purpose is strongly discouraged.



ANSWER TO MEE 1

1. Detective's Anticipated Testimony About Gang Identification, Organization, and

Activities Is Admissible

Evidence is generally admissible if it is relevant, and if it is not barred by any one of the

Federal Rules. Evidence is relevant if it tends to make any fact of consequence more or

less probable. Here the prosecutor's theory of the case is that the shooting was the result

of a gang dispute. Testimony as to gang identification, structure, and activities is relevant

because it has a tendency to make the prosecutor's theory of the case more probable (e.g.,

whether the Lions are a gang).

Expert testimony is one form of evidence. To determine whether expert testimony is

admissible, the expert must go through a Daubert motion. An expert can testify if they

use reliable methodology, that is testable, based on personal experience, the methodology

is approved in the scientific community.

Here the police officer has significant experience with gangs. He was a detective on the

police force for six years where he investigated gangs. He worked closely with federal

officers related to gangs. He was also a corrections officer in charge of the gang unit. In

addition, he has attended training sessions providing education and information on gang

structure, and he has taught more than 75 training sessions. He has personal knowledge

of the gang because of his experience working as a detective. Explaining how gangs

operate is likely helpful to the jury. But it is not clear that the detective used reliable

methodology to conclude that the Lions are in fact a gang. The evidence is based on the

detective's personal interaction with the Lions.

The evidence is likely proper expert testimony.

2. Photograph of Defendant's Tattoo and the Former Gang Leader's Anticipated

Testimony About It Is Admissible

As discussed above, this evidence is relevant because it has a tendency to establish that

Defendant was a member of the Lions gang.

Generally, character evidence is not permitted to show that a person has a character trait

and therefore he acted in propensity with that character trait and must be guilty of a

crime. However, character evidence can be admissible for another purpose. For

example, character evidence is admissible to prove motive, intent, lack of mistake, and

identity. In a criminal case, the defendant can introduce character evidence about himself

in the form of reputation or opinion. However, the defendant is not the party introducing

the character evidence, the prosecution is. Evidence should be excluded under Rule 403 if

its probative value is substantially outweighed by its prejudicial effect.



Here, the photo of the tattoo and the proposed testimony that based on his tattoo the

defendant is a member of the lions gang is not inadmissible character evidence. The

evidence is not being admitted to show that the defendant is mean, aggressive, or violent.

Rather, it is to identify the defendant as a member of a group. This is permissible

because the prosecution must demonstrate that the defendant is in the gang based on its

theory of the case. The defendant may argue that there is a significant risk that the

evidence will cause the jury to think he is a dangerous man based on his gang

membership, and that therefore he committed this crime. To determine whether the

evidence is admissible, the court must do a 403 analysis and consider whether the

probative value of the picture and testimony- demonstrating that defendant is a member

of the lions - is substantially outweighed by its prejudicial effect - that the jury will

convict the defendant based on his propensity for violence. Here the probative value is

not substantially outweighed by the risk of unfair prejudice, and the testimony and picture

should be admitted.

3. Victim's Anticipated Testimony that Defendant Shot Him Because of a Gang Dispute

Is Relevant

Evidence is generally admissible if it is relevant, and if it is not barred by any one of the

Federal Rules. Relevance is a low bar, and the rule generally favors admissibility.

Evidence is relevant if it tends to make any fact of consequence more or less probable.

Here the victim's testimony is relevant. To prove attempted murder, the prosecution must

demonstrate that the defendant intended to kill the victim. The victim's testimony that he

had a fight with the boss, the boss nodded at the defendant, and the defendant shot the

victim, tends to show that the defendant had a motive to kill the victim, because his boss

told him based on an internal fight.

Therefore, the evidence is not irrelevant.

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ANSWER TO MEE 1

I. EXPERT TESTIMONY

The issue is how the trial court should rule on the objection to the detective's anticipated

testimony about gang identification, organization, and activities as improper expert

testimony.

Expert testimony is admissible so long as the expert testifies about a scientific, medical,

technical, or other subject for which expertise is required and to which the expert has



sufficient knowledge, the data the expert uses is reliable, the method the expert uses is

reliable, and the application of the methods to the data is reliable.

The detective has a long history of dealing with and researching gangs, specifically in

City. The detective worked as a detective for six years investigating gangs, he worked

with a federal task force on matters related to drugs and firearms as they relate to gangs,

and has taught seventy five training sessions on gang structure, membership, and

activities over the past three years. Therefore, the detective has sufficient expertise to

qualify as an expert with regards to his testimony about gang identification, organization,

and activities. The data he is relying on is not entirely general to gangs or even general

to gangs in City, but includes specific knowledge about the Lions. For example, the

detective notes the Lions are one of "City's most violent and feared criminal gangs."

Based on detective's background and expertise, it is likely a court will find this "data"

reliable. Similarly, the method and application of the detective's knowledge about how

gangs operate to the Lions will likely be found reliable based on the detective’s

experience with the Lions and gang structure and operation.

Therefore, the court will overrule the objection to the detective's anticipated testimony

about gang identification, organization, and activities as improper expert testimony.

II. CHARACTER EVIDENCE

The issue is how the trial court should rule on the objection to the introduction of the

photograph of the Defendant's tattoo and the former gang leader's anticipated testimony

about it as inadmissible character evidence.

Character evidence, which includes reputation in the community, opinion of the witness,

and specific acts, is generally inadmissible. However, it may be offered in certain

circumstances. If proven legally relevant (the probative value of the evidence is not

substantially outweighed by the danger of prejudice, confusing or misleading the jury,

being unnecessarily cumulative, causing undue delay or wasting time), it may be

introduced to show, among other things, motive, interest, lack of mistake, or

identification. Since the objection is not based on grounds of failure to authenticate or

failure to be proper lay testimony, I will not discuss these potential issues.

The tattoo's probative value is that it increases the likelihood the Defendant is a member

of the gang in which the dispute is alleged to have occurred. This is a fact of consequence

because if it is not true, the prosecution's theory of the attempted murder fails, and if it is

true, it increases the likelihood the attempted murder took place. The danger of unfair

prejudice is present because a jury might decide the gang member should be convicted

regardless of the crime simply because he is a part of a dangerous gang. However, the

probative value is high because the prosecution's case rests on the Defendant's

membership, and the probative value is not substantially outweighed because the victim

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and witness are or were members of the same gang. No other factors weigh against the

probative value is a material way. Additionally, the tattoo is being used for purposes of

identification, which is an exception to the rule limiting the introduction of character

evidence.

Therefore, the court should overrule the objection to the introduction of the photograph of

the Defendant's tattoo and the former gang leader's anticipated testimony about it as

inadmissible character evidence.

III. LOGICAL AND LEGAL RELEVANCE

The issue is how the trial court should rule on the objection to the victim's anticipated

testimony that Defendant shot him because of a gang dispute as irrelevant.

Relevance must be logical and legal. Logical relevance requires that the evidence affects

the probative value of a fact of consequence. Legal relevance is the 403 balancing test; it

requires that the probative value is not substantially outweighed by the danger of

prejudice, confusing or misleading the jury, being unnecessarily cumulative, causing

undue delay or wasting time.

The probative value of the victim's testimony is high because is explains why the victim

was shot by the Defendant. That is, the Defendant disagreed with a gang boss's decision

to attack another gang, so he was punished for it. There is no indication that the danger of

unfair prejudice would be materially implicated through this testimony. As discussed

earlier, all the parties were in the gang, so gang membership is not highly prejudicial.

Additionally, there is no indication this testimony would cause delay, would be confusing

to a jury or mislead a jury, or be unreasonably cumulative.

Therefore, the court should overrule the objection to the victim's anticipated testimony

that Defendant shot him because of a gang dispute as irrelevant.

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ANSWER TO MEE 2

Enforceability of the Oral Agreement to Use Seller's Picture

The oral agreement that Buyer would use Seller's picture on red wine labels is likely

enforceable. The issues are whether the agreement is integrated, and whether evidence of

the oral agreement can be admitted to enforce the agreement.



Parol evidence is evidence of agreements or negotiations before the contract was signed.

It is generally inadmissible to contradict the terms of a final, integrated agreement. It can

come in, however, to add additional terms to a partially integrated agreement. A fully

integrated agreement is one that the parties intended to be a final and conclusive

contract, often evidenced by an "integration" or "merger" clause. A partially integrated

agreement, by contrast, is one which omits some provision that the parties would have

intended to include had they considered it.

Here, the agreement signed by Buyer and Seller was "lengthy" and written, evidence that

it was intended to be exhaustive and final. However, it did not contain an integration or

merger clause. It also did not include any provision about future use of the red wine

label. However, there is evidence that Seller and Buyer intended for the oral agreement to

be a part of their contract. Seller told Buyer she wouldn't sell him the winery unless he

agreed to continue using that label. Buyer orally agreed to the condition. Therefore, the

agreement is likely only partially integrated. Because the oral agreement would add an

additional term to the contract, not contradict existing terms, it is admissible and

enforceable.

Admissibility of Evidence of the Negotiations

Seller likely can introduce evidence of the negotiations to help explain the meaning of

"fair share." The issue is whether it constitutes admissible parol evidence.

Parol evidence is generally inadmissible to contradict the terms of a final, integrated

agreement. It is admissible, however, to interpret ambiguous terms, even in an integrated

agreement. A term is ambiguous when it is reasonably susceptible to more than one

meaning.

Here, "fair share" is ambiguous. There is no way to ascertain the amount owed under the

contract by those terms. Therefore, parol evidence should be admitted to interpret the

terms. The negotiations between Buyer and Seller are good evidence of the meaning of

"fair share." Buyer said that 20% would be fair, and Seller said that 25% would be fair.

This would indicate that the meaning of fair share is, at least, much higher than the 5% of

profits that Buyer paid to seller. Therefore, such evidence can be introduced by seller to

explain the meaning of "fair share."

Opening the Winery as a Breach

Buyer likely will not prevail on a claim that Seller breached her obligations by opening

her new winery. The issue is whether the non-compete clause is enforceable.

Generally, disobeying an express provision in a contract constitutes a breach. However,

not all provisions create enforceable obligations. A noncompete clause will be upheld as

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valid if it is reasonable in geographic scope and time. Reaching the entire country is

probably not a reasonable geographic scope. A time limit of more than a year or two is

probably not a reasonable time limit.

Here, the noncompete clause stated that Seller was not permitted to own or operate a

winery anywhere in the United States for 10 years after the closing. This represents a vast

geographic scope and an unreasonably long time, and a court would likely find it

unenforceable as against public policy. Furthermore, Seller opened her winery in another

state far from her original winery, so it is unlikely that her business would be in

competition with Buyer's. That Seller was happy to accede to the clause does not mean it

is enforceable. A finding of unconscionability can override the intentions of the

contracting parties. Therefore, Buyer likely would not prevail on a claim that Seller is in

breach.

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ANSWER TO MEE 2

1. Oral agreement regarding the use of Seller's picture

At issue is whether the parol evidence rule precludes Seller from enforcing the oral

agreement reached with Buyer regarding the continued use of Seller's picture on red wine

labels.

In principle, when there is a signed written agreement between the parties, the parol

evidence rule precludes a party from relying on prior written agreements and on prior and

contemporaneous oral agreements between the parties. However, the applicability of the

parol evidence rule depends on whether a specific written agreement is fully integrated or

partially integrated. A fully integrated written agreement is presumed to contain the entire

agreement between the parties so that the inclusion of additional terms through extrinsic

evidence, such as prior written agreements or prior and contemporaneous oral

agreements, is forbidden. By contrast, if the written agreement is only partially

integrated, the parties are generally allowed to introduce extrinsic evidence of additional

terms that do not contradict the terms of the written agreement. Whether an agreement is

considered as fully or partially integrated depends on the circumstances and on the terms

of the agreement. Of particular relevant are (i) the length and exhaustiveness of the

written agreement and (ii) the existence of an "integration" or "merger" clause.

In the present case, Buyer and Seller entered into a lengthy written agreement. The fact

that the agreement was lengthy speaks in favor of finding the agreement to be fully

integrated. However, the parties did not include any "integration" or "merger" clause in

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their written agreement, which tends to show that the agreement was only partially

integrated.

Based on the above-mentioned facts, it is difficult to reach a definitive conclusion as to

whether the parties' written agreement must be considered as partially or fully integrated.

That said, it cannot be disputed that the written agreement does not include any provision

about future use of the red wine label with Seller's picture. Therefore, the term that Seller

attempts to introduce by extrinsic evidence of the parties' oral agreement, i.e., the

continued use of Seller's picture on red wine labels, is an additional term that does not

contradict the written agreement.

In conclusion, if a court were to find the written agreement to be partially integrated

based on the above-mentioned facts, the additional term evidenced by the parties' oral

agreement regarding the use of Seller's picture would be admissible under the parol

evidence rule as an additional term consistent with the terms contained in the written

agreement. By contrast, if a court were to find that the above-mentioned circumstances

demonstrate that the written agreement is fully integrated, the additional term regarding

the use of Seller's picture would be inadmissible.

2. Evidence of the negotiations about what would constitute a fair share of the

winery's first-year profits

While the parol evidence rule prohibits the inclusion of additional terms not contained in

a written agreement in certain circumstances (as discussed in Section 1), the parol

evidence rule generally does not apply when it comes to interpreting the meaning of

ambiguous or unclear terms.

Here, and unlike the use of Seller's picture, Seller does not attempt to introduce additional

terms to the written agreement signed by the parties. Rather, Seller attempts to introduce

evidence of the parties' negotiations to interpret the terms "fair share of the winery's first-

year profits". In this regard, there can be little doubt that the term "fair share" creates a

certain ambiguity as to the specific amount of the winery's first-year profits due by Buyer

to Seller. Indeed, the term "fair" does not have a clear and common meaning, but rather

gives a certain discretion when it comes to determining what is fair. As a result, Seller

should be allowed to bring relevant extrinsic evidence resulting from the parties'

negotiations in order to demonstrate that the parties understood the term "fair share" as

meaning somewhere between 20% and 25% of the profits.

In conclusion, Seller should be allowed to bring in evidence of the parties' negotiations to

interpret the meaning of "fair share" as understood by the parties at the time of

contracting and execution.

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3. Enforceability of the non-compete clause

In principle, a non-compete clause is enforceable provided that it is reasonable as to its

duration, as well as geographic and subject matter scope.

In the present case, the non-compete clause should be found to be unreasonable both as to

its duration and as to its scope.

First, with regard to the geographical scope, the non-compete clause prohibits Seller from

owning or operating a winery anywhere in the United States. Given that the winery

appears to cater mainly the regional market, it seems unreasonable to restrict Seller's

ability to compete throughout the entire United States. Indeed, a reasonable non-compete

clause would have been limited to a specific state or a specific region (such as the West

Coast or the East Coast).

Second, the non-compete clause is also unreasonable as to its duration. Indeed, the

non-compete clause prohibits Seller from owning or operating a winery for 10 years. A

10-year period constitutes an unreasonably long period of time, even if Seller initially

intended to retire. A period of a few years, i.e., around 2-3 years, might have been

reasonable.

In conclusion, the non-compete clause is unreasonable as to its duration and geographic

scope so that it should not be enforced.

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ANSWER TO MEE 3

1. The corporation is bound by the land sale agreement because it properly ratified

the sale.

a. Carol did not have actual or apparent authority to conduct the sale.

An agent of a corporation may conduct business on its behalf and bind the corporation to

contracts entered into so long as the agent possesses either actual or apparent authority.

Actual authority can be either explicit or implied. Explicit authority exists where the

corporation has authorized the agent to carry out a particular task. Implied authority

exists where an agent's duties or functions would ordinarily and naturally include the

action undertaken as part of such duties or functions. Apparent authority is created when

a principal manifests an agent's authority to a third party, who then relies upon it, or when

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an agent's title or position is generally understood to encompass the kind of action the

agent has attempted.

Here, Carol lacks explicit authority because she was authorized to enter into a financing

agreement, not to sell the parcel. Carol lacks implied authority because the selling of the

parcel was not a natural part of her duties as a consultant authorized to enter into

financing agreements with banks. Finally, Carol lacks apparent authority because the

facts do not indicate that the corporation represented to the bank that Carol was

empowered to sell the land, and her position as a consultant could not reasonably be

construed to imply authority to sell corporate land. As a result, Carol initially lacked the

power to bind the corporation to the land sale.

b. The board properly ratified the sale after the fact.

Even where an agent initially lacks authority to bind a principal to a contract, the

principal may nonetheless be bound by the contract if it later ratifies the agent's actions.

Ratification of a corporate action conducted in the ordinary course of business requires

the approval of a majority of the board of directors at a meeting where a quorum is

present.

Here, two out of three directors ratified the land sale agreement at a meeting where all

directors were present. Sale of the land likely constituted action in the ordinary course of

business, as the purchase and sale of land is likely an ordinary part of the corporation's

stated purpose of "pursuing property development opportunities." As a result, the land

sale was properly ratified by the corporation, and Carol's actions as agent for the

corporation became binding.

2. The bonus payment was improper as a breach of the duty of loyalty.

Generally, corporations have discretion to declare dividend payments so long as such

payments are approved by the majority of the board of directors. However, directors have

a duty to avoid self-dealing and, in a closely held corporation, to protect the interests of

minority shareholders. The duty to avoid self-dealing may be breached when a

disproportionate dividend (or salary bonus) is declared in disproportionate favor of one or

more directors over the other shareholders. Such an action may nonetheless be approved

by a majority of disinterested directors, or by a majority of disinterested shareholders.

Failing that, a court may still uphold the self-dealing if it is found to be fundamentally

fair.

Further, a director may breach their special duty to minority shareholders when declaring

a dividend in a closely-held corporation that disproportionately favors the majority

shareholders over the minority shareholders.

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Here it is unclear whether the distribution to Danielle was a dividend or a bonus payment,

but the analysis is the same in either case. The distribution to Danielle is clearly a breach

of the duty of loyalty and self-dealing. Neither a majority of disinterested directors (Brian

and the 3rd director voted 1-1) nor a majority of disinterested shareholders (Brian holds

the only disinterested shares, at 20% of the whole) voted to ratify the transaction. Finally,

the transaction is clearly not fundamentally fair. As a result, it is a breach of the duty of

loyalty and self-dealing.

Last, the transaction clearly discriminates against Brian as a minority shareholder if the

payment took the form of a dividend. Since the corporation is closely held (held by only

two people), Danielle owed a special duty to ensure that Brian is not unduly

discriminated against. This includes the duty to fairly and proportionately distribute

dividends to minority shareholders. In this case, Danielle received $6 million and Brian

received nothing. Thus, this duty was clearly breached.

3. Brian may seek the judicial dissolution of the corporation due to the egregious

breach of the duty of loyalty perpetrated by Danielle.

A corporation may be judicially dissolved when its purpose is satisfied, when its duration

expires, when directors have become incurably deadlocked, in order to avoid waste, or

when the directors have breached their fiduciary duties and no other remedy is available

or practicable.

Here, Danielle (and probably also the third director) have breached their duty of loyalty

by distributing most or all of the corporation's assets to the majority shareholder. Further,

the corporation denied Brian access to see accounting records related to the sale and

purchase of the parcel, which he is entitled to as both a director and a shareholder. Since

Danielle owns 80% of the stock in the corporation, she is empowered to elect herself at

every board election, and so cannot be practicably removed from the directorship. As a

result, Brian has sufficient grounds to seek judicial dissolution of the corporation.

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ANSWER TO MEE 3

1(a). The issue is whether Carol had actual authority or apparent authority to bind

the corporation to the land sale contract.

An agent, i.e. a person who acts for the benefit of a principal, another legal person such

as a corporation and is controlled by the other person, binds the principal to a contract

when the agent acts with authority. Authority may be actual or apparent. Actual authority



arises when the agent reasonably believes that the principal authorized the contract. It can

be express, i.e. when through the principal's words or conduct, the principal explicitly

instructed the agent to enter into the contract, or implied, i.e. the principal's other conduct

made it reasonable for the agent to believe that the contract was authorized, such as when

it is reasonably necessary to achieve a task for which the agent has explicit authorization.

Apparent authority arises when the third-party reasonably believes, based on the

principal's manifestations to the third-party, that the agent had authorization.

Here, Carol was an agent of the corporation because she was explicitly hired by the

corporation to negotiate on behalf of the corporation, and both parties agreed. Carol was

tasked to negotiate financing agreements on behalf of the corporation to obtain loans in

order to build homes on the parcel of land. However, she ultimately sold the parcel of

land. Carol lacked actual explicit authority to do this, because at no point did anybody at

the corporation authorize her to sell the parcel of land. She lacked actual implied

authority, because no reasonable agent would believe that selling the parcel of land was a

necessary step towards obtaining financing to build homes on that parcel of land. She

lacked apparent authority, because there is no evidence that the corporation had made

any manifestations to the bank that would lead the bank to reasonably believe that Carol

had the authority to sell the corporation's land to it.

Therefore, Carol lacked authority to sell the land.

1(b). The issue is whether the corporation ratified the land-sale contract.

While a principal is not bound by a contract the agent enters into without authority, a

principal may become bound to the contract by ratification. Ratification occurs when 1)

the principal accepts the benefits of the contract 2) with capacity 3) with knowledge of

the material provisions of the contract and 4) ratifies the entirety of the contract. A

corporation may enter into a contract by approving it with the board of directors, which

generally requires a majority vote of the directors.

Here, Carol lacked authority to sell the land. However, Danielle and the third director

subsequently voted to approve the land sale under the terms of the written agreement

signed by Carol. Although Brian dissented, a majority of the board voted in favor of

accepting the contract, and so the board of directors voted in favor and bound the

company to the contract. Before the vote, Carol described the board the terms of the

agreement, so the board understood the material provisions of the contract. The board

agreed to the entirety of the land sale contract. Therefore, the corporation is bound by the

land-sale agreement with the bank signed by Carol through ratification.



2. The issue is whether the bonus payment made by Danielle a violation of Danielle's

duty of loyalty and the Danielle's and the third director's duty of care.

A board member owes the corporation a duty of loyalty, which prohibits self-dealing.

Self-dealing includes approving a transaction that the director knows or should

reasonably know that they stand to directly benefit from at the cost of the corporation,

and which would reasonably affect their ability to act on the best interests of the

company. One example of a self-dealing transaction is a direct payment to the director or

an entity that the director is a shareholder of. A director that violates the duty of loyalty

may be protected from liability if they can show that there is a safe harbor: 1) the director

fully disclosed all material information to the other directors and a majority of the

disinterested directors approved the transaction, 2) the director fully disclosed all material

information to the shareholders and a majority of the disinterested shareholders approved

the transaction, or 3) the transaction was fair and reasonable. Additionally, all board

members owe the company a duty of care, which requires that the board member act as a

reasonably prudent person in the same situation would and in good faith make decisions

for the benefit of the corporation. The business judgment rule, which presumes that a

board member's decision complies with the duty of care, can be rebutted by a showing a

conflict of interest and gross negligence in investigating and considering a decision.

Here, the transaction in question is a direct payment of all the sale proceeds of the land -

$6 million directly to Danielle as "a bonus payment" with nothing in return. This violated

Danielle's duty of loyalty, because she stood to directly benefit from the transaction by

being personally enriched by $6 million at the cost of the company's losing the same

amount. Additionally, there were no safe harbors, because the majority of disinterested

directors did not approve of the transaction; even if the third director was disinterested,

which is debatable because they were personally selected by Danielle, Brian did not

approve. Brian is the only disinterested shareholder, and he did not approve. The

transaction was not fair and reasonable, because the company did not receive anything in

return. Therefore, the bonus payment was a violation of Danielle's duty of loyalty and

thus improper.

Additionally, Danielle and the third director likely violated their duty of care to the

corporation. The business judgment rule is easily rebutted here, because as discussed,

Danielle had a clear conflict of interest, and the third director acted with gross negligence

in approving a transaction that gave away $6 million with absolutely nothing in return to

the company, especially given the lack of evidence that the thi

rd director investigated the

consequences and justifications for such a payment. No reasonably prudent director

would ever approve such a windfall. Therefore, Danielle and the third director likely

violated the duty of care and the bonus payment was thus improper.



3. The issue is whether Brian has sufficient grounds to seek the judicial dissolution

of the corporation.

A shareholder has grounds to seek the judicial dissolution of the corporation when the

corporation has become no longer a legitimate business that is benefiting the

shareholders, but rather has instead been used by a majority shareholder to personally

enrich one shareholder at the cost of the others. This may arise especially in cases of

extreme violations of the duties owed to the shareholders that the corporation no longer

has an interest in benefiting the shareholders at large and continuously violates the other

shareholders' rights, including the right to inspection of accounting records. Another

factor that courts might consider is whether the corporation has wholly abandoned its

purpose stated in the articles of incorporation and is engaged in illegal activity.

Here, it is clear that based on their two votes, Danielle and the third director are interested

only in enriching Danielle and not looking out for the interests of the other shareholder,

Brian. By making a one-time payment of $6 million to Danielle with no benefit to the

company at large, the board certainly violated its duties to the company and the

shareholders. The board has also refused Brian the right to inspect the accounting

records, which as a shareholder he has a right to. Additionally, the corporation seems to

have abandoned its stated purpose in the corporation's articles of incorporation to pursue

property development opportunities and other lawful business; the sale of the land and

distribution of proceeds to Danielle indicates an abandonment of the mission to develop

property, and was likely unlawful. Therefore, Brian likely has sufficient grounds to seek

the judicial dissolution of the corporation.

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ANSWER TO MEE 4

(1) (a) Was the AD Trust validly created and if so, when was it created?

A valid trust requires (1) a settlor with present intent to create a trust, (2) an identifiable

beneficiary, (3) trust corpus and (4) a trustee (if an inter vivos trust). An inter vivos trust

is a trust made during the lifetime of the settlor, the creator of the trust. An inter vivos

trust is not created until funded with the trust corpus. Here, the settlor, Arlene Doe,

attempted to create a trust, naming her as trustee, her as a beneficiary, and her nieces also

as beneficiaries.

The first issue is whether the trust for the benefit of Donna, who was settlor, trustee, and

a beneficiary, is valid. A valid trust requires complete split of legal title and equitable

title. A complete split of legal and equitable title does not occur if the sole trustee is the



sole beneficiary, because then there is essentially no split of title -the legal and equitable

title are in the hands of the same person. However, if there is an additional beneficiary or

an additional trustee (ex. co-trustee), then this is sufficient to split the title. Here, Donna

is the settlor and trustee and beneficiary during her lifetime. However, she names

additional beneficiaries for when she dies. Because Donna is not the SOLE beneficiary

and SOLE trustee, there is proper split of legal title and the trust for the benefit of Donna

is valid.

The next issue is whether the settlor had present intent to create the trust. Although based

on the express writing it seems like Arlene intended to create the trust at present, she did

not intend to fund it until later, so this was not valid "present intent" to create the trust.

The trust could not have been created until it was funded.

The trust was only funded when Arlene designated on Schedule A that the bonds were

part of the trust. If a trust is funded at a later date, the settlor needs to demonstrate present

intent to create the trust then also. Here, Arlene probably had sufficient present intent to

create the trust when funding it because she listed the assets on a document attached the

trust. Therefore, the trust was created 4 years ago when Arlene funded it.

(b) Assuming that the AD Trust was validly created, was it effectively revoked?

The issue is whether an inter vivos trust may be revoked. Under the traditional rule, trusts

were presumed irrevocable. Under the UTC, trusts are presumed revocable unless

expressly provided otherwise. Here, the trust does not expressly provide otherwise- there

is no indication that the settlor wanted it to be irrevocable. This is especially so because

she was the only trustee and beneficiary during her lifetime.

If a trust is revocable, it may be revoked at any time by the settlor by physical act or

express writing as long as it shows intent to revoke. Here, Donna wrote across the

instrument "this AD Trust is revoked" and "I'm taking back the assets" This is likely

sufficient to evidence her intend to revoke the trust.

(2) Was the trust for the benefit of Donna valid?

The issue is whether the trust for the benefit of Donna was valid. A valid trust requires

(1) a settlor with present intent to create a trust, (2) an identifiable beneficiary, (3) trust

corpus and (4) a trustee (if an inter vivos trust). Here, the settlor has present intent to

create the trust ("hold this package as trustee for Donna"). The trust has an identifiable

bene - Donna and corpus- the necklace and bonds. Lastly, the trust has an identifiable

trustee - friend ("hold this package as trustee for Donna"). In order for the conveyance of

legal title to the trustee to be valid, the trustee must accept it. Here, the trustee said "ok"

which will likely suffice. Thus, al the trust requirements have

been met. Writing is not

required.



(3) Was the testamentary trust for the benefit of the Political Party valid?

The issue is whether a trust to a political party is a proper charitable trust. A charitable

trust must have a charitable purpose. The typical charitable purposes include alleviation

of poverty, education, etc. A charitable trust can never benefit any names individual

person. However, it is still valid if the trust benefits a person who is not named but

ascertainable from the language of the trust (ex. all of the students who pass the NY bar

exam in 2022). A charitable trust cannot be against public policy, such as being used for

discriminatory purposes. Here, this trust is not of the traditional charitable type because it

is political. A court would likely find that there is no charitable intent here -the purpose is

not to benefit others, but rather to promote a political interest.

The next issue is whether the RAP applies to this trust. If the trust is found to be a valid

charitable trust, then RAP does not apply because RAP does not invalid charitable trusts.

If, however, a court determines that this trust is not charitable, then RAP would invalidate

it. RAP generally applies to trusts and invalidates interests that may fail to vest within 21

years of a life in being at the time of the creation of the interest. Here, the trust is

perpetual, this its interests are not sure to vest within 21 years of a life in being at the time

of the creation of the interest - the trust could go on and on forever which is exactly the

type of dead hand control that RAP seeks to invalidate. Here, provided that the trust is not

a charitable trust, RAP would invalidate it.

(4) Assuming that the testamentary trust to Political Party was invalid, to whom

should the bank account by distributed?

Assuming the trust is invalid, the bank should distribute the trust funds to Arlene's next of

kin. The statute given says that if a decedent dies intestate (without a will) without a

surviving spouse, issue, or parent, the decedent's property is distributed to the issue of his

or her parents per stirpes. Here, Arlene's brother is the issue of her parents, as well as her

deceased sister and older brother. Under per stirpes, the property is divided at the child

level. Thus, the 300,000 is divided into 100,000 per sibling (living or dead). Then each

child takes their parents share if the parent is deceased. Thus, the brother would receive

his 100,000 because he's still alive. C, D, and E will receive 33,333 each (1/3 each of

their mom's 100,000 share) and F will receive his dad's whole 100,000 share.

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

ANSWER TO MEE 4

1a) The issue here is whether Arlene created a valid private trust and when the trust was

created.

A trust will be valid so long as the settlor has legal capacity (age, and of sound mind),

testamentary intent, a signed writing, separation of legal and equitable title (no merger),

reasonably ascertainable beneficiaries, a trustee (for an inter vivos trust, a trustee can be

appointed for a testamentary trust if the settlor fails to do so), and trust res. A trust can

be funded with res later, but the creation of the trust will not take place until it is funded.

Here, the trust was validly created four years ago when Arlene bought the bonds and

listed them as assets of the trust. It was not created at the time she made the writing

because there was no trust res at that time. However, it appears that the other

requirements for a valid private trust have been met. Arlene signed the writing. Arlene

was the settlor, trustee for her lifetime, and the income beneficiary; however, she was not

the sole beneficiary. There was no merger between legal and equitable title because she

was just one of the beneficiaries under the trust document; her nieces were remainder

beneficiaries as well. She was not the sole trustee and sole beneficiary so no merger

problems arose. Moreover, the beneficiaries are reasonably ascertainable (her, as income

beneficiary, and her three nieces, as remainder beneficiaries). She seemed to have

testamentary intent and capacity as well -- she knew the natural objects of her bounty, she

understood the effect of her disposition, and she knew of her assets.

Ultimately, Arlene created a valid private trust as soon as she funded it with trust

property.

1b) The issue is whether her writing on the face of the trust document effectively revoked

the trust.

Under the Uniform Trust Code (UTC), a trust is presumed to be revocable unless

otherwise indicated by the settlor. The revocation principles that apply to wills will apply

to trust documents as well under the UTC. Revocation can be accomplished by

subsequent express revocation, subsequent inconsistent writing (partial if only partially

inconsistent), or physical act (e.g. writing/obliteration/canceling/tearing). Writing does

not need to touch the words of the document to act as physical revocation.

Here, the jurisdiction applies the law found in the UTC. The UTC presumption for

revocability will apply to Arlene's trust--making it revocable as she did not expressly

state in the document or intend for it to be irrevocable. Moreover, Arlene effectively

revoked the trust document by writing across the face of the AD Trust. Though the

written words need not touch the document, the words did in this case offering further

evidence of Arlene's intent to revoke the document.



2) The issue is whether an oral trust can be created under the UTC.

An oral trust is allowed under some circumstances within the UTC for personal property.

The requirements for a valid private trust outlined in 1a remain the same other than the

signed writing.

Here, the oral trust indicated that Arlene had capacity (she knew the natural objects of her

bounty, she understood the effect of her disposition, and she knew of her assets) and

intent to create the trust for the benefit of Donna. Donna was a reasonably ascertainable

beneficiary. Arlene delivered the trust res of the necklace and the bonds to the trustee, her

friend. The trust had separation of legal and equitable title as the friend was trustee and

Donna was the beneficiary. The trust created appeared as a support trust for Donna's

educational benefit when Donna turns 18. Upon age 22, the friend trustee can distribute

the remainder of the trust res after the sale of the necklace and bonds and after the

coverage of Donna's tuition. The friend accepted her role as trustee. Mere precatory

words were not used either, Arlene clearly stated that the trustee should hold the property

in trust for Donna.

Ultimately, the oral trust was validly created.

3) The issue is whether the trust to the benefit of the Political Party was a valid charitable

trust.

Under the UTC, a charitable trust can be formed with different requirements than a

private trust. Firstly, charitable trusts can be perpetual and not violate the rule against

perpetuities. Secondly, the charitable trust cannot have definite beneficiaries. A

charitable trust can go to specific charity, but the end user beneficiaries of the charitable

trust should not be specifically identifiable. A charitable trust must have a valid purpose

that is not against public policy. It must be created for the purpose of further an

educational, civic, or other philanthropic goal. A political party as a whole cannot serve

as the beneficiary of a charitable trust under the UTC. However, the UTC will apply the

doctrine of cy pres if the grantor is found to have a general charitable intent. A general

charitable intent is presumed under the UTC and cy pres application is mandatory.

Here, the perpetual nature of the trust was okay and did not violate the rule against

perpetuities because it was an attempt to create a charitable trust. While this trust did not

have issues with specific beneficiaries, the Political Party was not a valid beneficiary for

a charitable trust under the UTC as it was not for a valid educational, civic or

philanthropic goal as a political organization. Political party's only mission was to

support public office candidates.

Ultimately, the charitable trust failed due to the Political Party serving as the beneficiary.



4) The issue is whether the court would apply the cy pres doctrine or whether the

property from the failed charitable trust would flow through intestacy.

A political party as a whole cannot serve as the beneficiary of a charitable trust under the

UTC. However, the UTC will apply the doctrine of cy pres if the grantor is found to have

a general charitable intent. A general charitable intent is presumed under the UTC and cy

pres application is mandatory if there is general charitable intent.

Here, there is an argument that there is no general charitable intent from the testamentary

trust to the Political Party because it is not a charity of any kind but rather a political

organization. If a general charitable intent cannot be inferred from the trust, a resulting

trust will be formed in favor of the settlor and the settlor's heirs. Here, the bank account

of 300,000 would flow to the resulting trust created for Arlene and her heirs. As she has

already passed, the resulting trust would likely be distributed on a per stirpes (vertical

equality favoring as compared to per capita by generation distribution that achieves

horizontal equality for takers) basis to Bob (1/3 of the account, 100,000), her three nieces

(each taking 1/9 to make up the deceased sister's 1/3 share), and to Fred (1/3- taking the

full amount of her older brother's share through the per stirpes model).

---

ANSWER TO MEE 5

Whether Developer is a person "required to be joined if feasible" under Federal Rule of

Civil Procedure 19(a)

The issue presented is whether Developer is a required party to the action who has not

been joined as a defendant. The general rule is that whether a party is a required party

under Rule 19(a) hinges on whether the party has a stake in the dispute, whether the

party has an interest that they must defend and thus need to be party to the action, and

whether failing to join the party would risk leading to inconsistent judgments in future

litigation. Here, Builder sued Lender for the final payment of $100,000; this payment

arises out of Lender's agreement with Developer under which Lender agreed to lend

Developer financing for the construction project, and the loan agreement between

Developer and Lender provided that any funds disbursed by Lender would be added to

Developer's loan balance; further, the loan agreement between Lender and Developer

provided that Lender's disbursements would be made directly to Builder; and lastly,

Lender refused to make the final payment to Builder (though Developer now occupies

and has begun leasing); Builder sue Lender claiming to be a third-party beneficiary of

Lender's promise to developer; the key analysis here then is whether Developer is a

required party under these set of facts. Here, Developer certainly has a stake in the



dispute. Developer has a contract with both Builder and Lender. If Lender winds up

liable to Builder, Lender might seek payment from Builder. Similarly, if Lender wins,

Builder might in turn seek payment from Developer. Because Developer has contracts

with both Lender and Builder, if the actions between them are pursued separately, there is

a real risk of inconsistent results. Moreover, if this case proceeds without Developer,

there is a risk that Developer would be found liable for the payment although Developer

is not a party to the suit. Thus, Developer is required to be joined if feasible under Rule

19(a).

Would joinder of Developer deprive the court of subject-matter jurisdiction

The issue presented here is whether Developer destroys subject matter jurisdiction. Here,

it is stated that Builder invoked diversity jurisdiction in the suit against lender. Federal

courts are not courts of general jurisdiction. Subject matter jurisdiction is required for a

federal court to hear a case. Subject matter jurisdiction may be either federal question

jurisdiction or diversity jurisdiction. Diversity jurisdiction requires complete diversity--

that every plaintiff is a citizen of a different state than every defendant, and that the

amount in controversy exceeds $75,000. Currently, there is complete diversity between

Builder and Lender. A corporation is a citizen of every place where it is incorporated and

the location of its principal place of business. Builder is incorporated in State B and has

its principal place of business in State B, so it is a state B citizen. Lender is incorporated

in State A and has its principal place of business in State A.

Thus, Lender is a state A citizen. Developer is a limited liability company. An LLC is

treated like a partnership--it is considered a citizen of everywhere where its members are

citizens because it is not incorporated anywhere. Here, its members are from State A and

State B, and it has its principal place of business in State A. Developer is a citizen of

State A and State B. Thus, if Developer were joined as a defendant, there would be a

plaintiff, Builder, who is a state B citizen, and a defendant, Developer, who is a state B

citizen. This deprives the court of subject matter jurisdiction because it destroys complete

diversity. Supplemental jurisdiction can be invoked in the absence of diversity

jurisdiction where the two claims arise out of a common nucleus of operative fact, but

that is not applicable here, as supplemental jurisdiction cannot be used where it destroys

subject matter jurisdiction.

How should the court rule on the motion to dismiss

The issue here is what happens when there is a required party who cannot be joined

because joining them will destroy the court's subject matter jurisdiction. The general rule

is that when there is a required party who must be joined under Rule 19, but that party

cannot be joined because of subject matter jurisdiction issues, the court should dismiss

the case. Here, that is what has occurred. While developer is a required party, joining



Developer would destroy subject matter jurisdiction. The court should grant the motion to

dismiss, without prejudice, and the case may be refiled in state court.

---

ANSWER TO MEE 5

1. Is developer a person required to be added to the action?

Developer is likely to be a necessary party under the Federal Rules of Civil Procedure

and therefore a person who must be joined if they can.

Under the FRCP, a necessary party is one who, unless they are joined, (i) relief in the

case will be incomplete, (ii) their interests will be prejudiced if they are not joined or (iii)

it opens up the parties in the case to subsequent potential claims or the possibility of

inconsistent results.

Here, the Building Co is suing the Lender on a loan agreement between the Lender and

the Developer. Were the court to find for the Builder and direct the Lender to pay $1OOk

to the Builder under the loan agreement, relief would likely be incomplete because

Developer is the party to the loan agreement and, as such, they have rights to relief under

the loan agreement for its breach. This makes it likely that a court would consider relief

to be incomplete without joinder of the Developer. In addition, these factors point

towards Developer's interests being prejudiced if they are not joined, as the loan

agreement states that any amounts disbursed to the Builder by the Lender would be

added to the loan balance of the Developer and would accrue interest. The rights of the

Developer to be involved in litigation which results in financial obligations being

imposed to them would be violated if they were not included in this action -therefore the

second ground of FRCP 19 is likely also met.

Finally, it is clear that if Developer is not joined to this case, then there is a strong

likelihood that litigation will be initiated between Lender and Developer to agree the

terms of the disbursements made to the Builder on the Developer's behalf by Lender.

This opens up a party to the Builder v Lender case to further potential litigation, opening

the possibility of inconsistent results.

Courts prefer judicial efficacy where possible and would likely see the Developer as an

indispensable party to be joined, based on the factors set out above.



2. Would joinder of developer destroy subject matter jurisdiction?

Joining the Developer as a defendant to the action would destroy subject matter

jurisdiction. When a court determines whether to join a necessary party, the first

question is whether the party is indeed necessary (as discussed above, and answered in

the affirmative in this case) and the second question is whether the party can be joined. A

party cannot be joined if this will destroy subject matter jurisdiction.

Subject matter jurisdiction is required in federal courts over every case which they hear

and is based on two grounds - (i) federal question jurisdiction (which arises where the

cause of action arises under federal law) and (ii) diversity jurisdiction. No federal law is

engaged on the facts, as this is a contract dispute in the form of a loan agreement.

Diversity jurisdiction requires (i) complete diversity between the plaintiff and each

defendant and (ii) the value of the claim to exceed $75k (excluding interest and as a good

faith determination of its value).

Here, the Builder is a citizen of state Band the Lender is a citizen of state A. A

corporation is a citizen of every state in which it is incorporated (which can be multiple)

and the one state where it has its principal place of business (usually its headquarters).

Accordingly, Builder is a citizen of state B because this is where it is incorporated and

where it has its principal place of business, and Lender is a citizen of state A because this

is where it is incorporated and where it has its principal place of business. As the claim

brought by Builder against Lender is for $1OOk, the value requirement is met. Therefore,

this action has complete diversity (it is between a citizen of A and a citizen of B) and

meets the value requirement - so there is diversity jurisdiction.

However, the Developer is an LLC and, like a partnership, an LLC is a citizen of every

state in which its members are citizens. The members here are citizens of state A (Amy)

and state B (Barbara). By joining Developer to the case, therefore, there will be a

defendant which is a citizen of state B, the state as the citizenship of the Builder. This

destroys complete diversity.

It should be noted that supplemental jurisdiction is not relevant here because joinder of a

necessary party as a defendant does not create a new claim between the defendants (it is

not a cross-claim or an impleader claim) and thus the question is not whether there is

subject matter jurisdiction in respect of the new separate claim between the defendants

but rather, whether the existing subject matter jurisdiction between the plaintiff and

defendant is destroyed by joinder of the new defendant.

3. Assuming developer can be joined, how should the court rule?

Where there is a necessary party, which Developer is as discussed in 01, but they cannot

be joined because this will destroy diversity jurisdiction, as discussed in 02, the court has



discretion as to whether to dismiss the case or proceed without the necessary party. In

using this discretion, it will tend to look to the extent of the prejudice to interests and the

likelihood of further litigation and inconsistent results that were discussed in 01. Given

that here these are strong factors, as Builder is suing on a contract to which it is not a

party but merely a third party beneficiary, thus giving rise to substantial prejudice against

Developer and a high chance of subsequent litigation, the court should dismiss the claim

rather than let it proceed without the Developer.

---

ANSWER TO MEE 6

1. Between Wanda and Frank, who is obligated to pay the property taxes?

The issue is whether a life tenant must pay ordinary property taxes.

A life tenant is required to pay ordinary property taxes, but is only required to pay the

portion represented by the fair rental value amount, not the entire value of the home. The

rental value of the home is usually substantially lower than the entire property value, so

the remaindermen can be required to pay the balance.

Here, Wanda has a life estate in the home per Oscar's will. Frank has a vested remainder

that was passed to him under the terms of Adele's will. A vested remainder is fully

devisable, alienable, and transferable. Between Wanda and Frank, Wanda has an

obligation to pay the proportionate amount of the tax based on the annual fair rental value

of the home. Frank would then be required to pay the balance because of his interest in

the remainder of the estate.

2. Upon Conveying the apartment building to Frank, what if any interest did Oscar

have in the apartment and was that interest valid?

The issue is whether Oscar was able to devise his possibility or reverter.

When a conveyance of land is granted with "durational language," the court will find that

a fee simple determinable has been created. A fee simple determinable creates a

possibility of reverter in the grantor. A possibility of reverter is not subject to the rule

against perpetuities and may be devised. A fee simple determinable automatically

reverts to the grantor and his heirs if the condition is not met. Contrast with a fee simple

subject to a condition subsequent, which creates a right of reentry in the grantor.



Here, the conveyance had durational language of "as long as" the apartments are rented to

low- income families, and specifically stipulated that there was a possibility of reverter.

Thus, Frank was given a fee simple determinable and Oscar held a devisable possibility

of reverter. The interest is valid because although it could vest far outside the Rule

Against Perpetuities period, interests created in the Grantor are not subject to RAP.

Thus, Frank has a fee simple determinable.

3. What interest if any does Wanda have?

The issue is whether Oscar's possibility of reverter passed through his residuary clause.

Possibilities of Reverter are devisable and are not subject to RAP.

So, Wanda properly takes a possibility of reverter in the Apartment upon Oscar's death.

Note that even if Oscar's conveyance had not stipulated that the possibility of reverter

was there, one would have been assumed because of the durational language and no

reservation of a right of reentry.

4. After February 1, 2021, who own the apartment building?

As discussed above, possibilities of reverter automatically vest when the condition they

were premised upon ends.

In this case, on February 1, 2021, Frank's action of not renting to any below income

families automatically triggered the possibility of reverter. Thus, Wanda would be correct

that she owns the building.

Note, that even in jurisdictions that do not favor fee simple determinable, if the court had

found a fee simple subject to condition subsequent- the right of reentry would pass to

Wanda and she would be able to exercise it by bringing action against Frank, and she

clearly has the intent to do that here.

---



ANSWER TO MEE 6

1. Taxes on Family Home

Wanda is required to pay taxes on the family home up to the reasonable amount of

income the home can receive and Frank must pay any surplus. The issue is who has to

pay taxes between a life estate and a remainderman.

A life tenant owes duties to the remainderman. One of the main duties is to avoid waste

of all kinds. One of the duties involved in avoiding waste is to pay the property taxes up

to the amount that the land can earn in income. The remainderman is required to pay any

taxes in excess of this amount. The remainderman may choose to pay taxes on their

own to avoid a lien on their interest but they are entitled to reimbursement from the life

tenant if they pay more than their share of the taxes.

Here, Wanda is a life tenant and Frank is the remainderman. Originally Adele was the

Remainderman but she devised her interest to Frank when she died. Vested

remainderman interests are freely devisable and descendible. The grant to Adele granted

to her and her heirs, but given that Adele left her entire estate to Frank, Frank is her heir

and the interest is not void. Since Wanda is a life tenant, she is required to pay property

taxes to the amount the property can earn in income. The house could earn at least

$1,500 per month which would be more than enough to cover the $6,000 annual

property taxes. Wanda is required to pay those taxes. If Frank is wrong and the property

earns less, he would be liable for any extra tax after the income. The remainderman is

required to pay the taxes above the property's income potential.

2. Oscar's Interest in Apartment Building

Oscar had a possibility of reverter in the apartment building and the interest is valid

because possibilities of reverter are not subject to the Rule Against Perpetuities (RAP).

The Issue is what kind of conveyance did Oscar make to Frank.

A fee simple determinable includes a possibility of reverter in the grantor. The grantee

has full title to the land as long as certain conditions are met. A fee simple determinable

can be seen through durational language like "so long as" "until" "while" etc. If the

grantee stops using the land in accordance with the grant, the interest automatically

reverts to the grantor. There is no need for the grantor to exercise their right, it is

automatic. Possibilities of reverter are not subject to the RAP because the interest is

vested immediately upon granting.

Here, Oscar granted Frank the apartment building "so long as" at least four tenants

were below median income for a family. Frank followed this interest for a while. When

it was granted, Oscar had a possibility of reverter. This grant even explicitly says so



stating "the apartment building automatically reverts to Oscar." This interest is valid

because it has already vested and is not a restraint on alienation.

3. Wanda's Interest in Apartment Building

Wanda owns a vested possibility of reverter because she inherited Oscar's interest. The

issue here is whether Wanda inherited Oscar's interest.

Vested future interests are freely devisable and descendible. A party with a vested future

interest can sell the interest, devise it in a will, or it can pass by intestacy. It can be

validly devised through a residue clause.

Here, Oscar granted Wanda the residue of his estate. Nowhere else in his will did he

devise his interest in the apartment building and he did not otherwise sell it while he was

alive. Wanda is entitled to take the vested future interest through the will and she has the

same rights as Oscar would. Wanda owns Oscar's vested possibility of reverter. This

interest is valid as it is still vested in Wanda. There are no issues with the devise of the

interest.

4 Who Owns the Apartment Building?

Wanda owns the apartment building in fee simple absolute because Frank's interest

terminated and reverted back to Wanda when he stopped renting to below median income

families. The issue here is whether Frank's fee simple determinable terminated.

When the condition in a fee simple determinable stops being followed, the property

automatically reverts to the grantor or their successor in interest. The holder of the

possibility of reverter does not need to exercise their rights or declare their ownership, it

happens automatically by function of law.

Here, Frank stopped renting to below median income families on February 1st, 2021. At

that point, his fee simple determinable was terminated because the condition was no

longer being satisfied. Wanda, being the holder of the possibility of reverter, now validly

owns the apartment building fee simple absolute. Frank's interest is terminated and

Wanda takes as sole owner.

---



ANSWER TO MPT 1

MEMORANDUM

Law Office of Marianne Morton

10 Court Plaza, Suite 2000

Franklin City, Franklin 33705

To: Marianne Morton

From: Examinee

Date: July 26, 2022

Re: Walter Hixon matter

You asked me to research four distinct questions related to the complications of Walter

Hixon's marital status. Below, I answer each question in tum. I do not address Mr.

Hixon's ending his marriage to Ms. Prescott or the risks of criminal prosecution he may

face for bigamy, as instructed.

1. Columbia law governs the grounds for annulling Mr. Hixon's marriage to Ms.

Tucker.

The issue is which law governs the grounds for annulling a marriage: the state in which

the marriage took place (here, Columbia) or the state in which the spouse seeking

annulment resides (here, Franklin). The Restatement (Second) of Conflict of Laws

provides that a marriage's validity is determined by the law of the state which has the

"most significant relationship to the spouses and the marriage." A court determines which

state has the "most significant relationship" to a particular issue by considering the

following factors set forth in the Restatement and applied recently by the Franklin Court

of Appeal in Fletcher v. Fletcher: (1) the relevant policies of other interested states and

their relative interests in the determination of the particular issue; (2) the protection of

justified expectations; (3) certainty, predictability, and uniformity of result; and (4) ease

in the determination and application of the law to be applied. Here, these factors point

toward the law of Columbia governing the grounds for annulment.

First , as the Fletcher court explained, all states have legitimate interests in defining the

initiation and termination of marriage, and the fact that Columbia and Franklin have

different annulment grounds underscores the strengths of the interests involved. Here,

however, Columbia has a specific policy carveout in place for situations where someone's

spouse is absent and believed to be dead for five years-in other words, precisely the kind

of situation in which 1vfr. Hixon finds himself This suggests that the Columbia

legislature has considered precisely the kind of situation with which 1vfr. Hixon is

dealing and determined that its legislative policy is that marriages like Mr. Hixon's are to

be voidable. By contrast, the relevant Franklin statute applies to all marriages in which



one party is lawfully married to another person; it does not contemplate specifically

situations like that of 1vfr. Hixon. This may suggest that the interest in the determination

of the particular issue here is especially important to the state of Columbia.

Second , the protection of justified expectations points toward applying Columbia law.

Mr. Hixon and Ms. Tucker met in Columbia in 2011, married in Columbia in 2012, spent

all of their time as a married couple living in Columbia from 2012 until2019, and own

property together in Columbia (the house they purchased in 2015). The sole connection

between their marriage and the state of Franklin is that Mr. Hixon has lived in Franklin

for several years-without Ms. Tucker, however, who has never been to the state.

Accordingly, it seems likely that a court would find that 1vfr. Hixon and Ms. Tucker had

a justified expectation that Columbia law would govern annulment. This is the inverse of

the fact pattern with which the Fletcher court wrestled and thus parallel reasoning.

Third , a court considering certainty, predictability, and uniformity of result would likely

note, as the Fletcher court did, the importance of clear, established rules governing which

state's law applies to initiation and termination of marriages in light of the reality that in

today's day and age people often move between states. A court may reason that if 1vfr.

Hixon could make Franklin law apply to the annulment of his marriage with Ms. Tucker

simply by unilaterally moving to Franklin, a place she has never even visited, that would

thwart the goals of certainty, predictability, and uniformity. Accordingly, this factor also

points toward Columbia law applying.

Finally, ease in the determination and application of the law to be applied suggests that

Columbia would be a more appropriate forum than Franklin. The real property to be

distributed is located in Columbia, the marriage took place in Columbia, and both parties

have a connection to the state of Columbia (even though Mr. Hixon does not reside there

anymore, he did for over a decade).

Therefore, a court would likely find that Columbia has the most significant relationship to

the marriage and thus would determine the marriage's validity based on Columbia law. It

is worth noting also that under the Restatement, a marriage valid where it was contracted

is valid everywhere "unless it violates the strong public policy of another state which has

the most significant relationship to the spouses and the marriage at the time of the

marriage." However, because Columbia is both the place where Mr. Hixon and Ms.

Tucker's marriage was contracted and the place with the most significant relationship, a

court would not even need to consider whether Mr. Hixon and Ms. Tucker's marriage

violates the public policy of Franklin. In sum, just as the Franklin Supreme Court

concluded in Simeon v. Jaynes that the court should have applied Columbia law given

significant connections between the spouses and Columbia, so too here would a court

conclude that Columbia law governs.



2. Mr. Hixon must file a lawsuit to annul his second marriage. He will be able to

obtain an annulment decree under Columbia law (the governing law), which will

declare his voidable marriage to be void.

Mr. Hixon must file an annulment action to annul his marriage to Ms. Tucker. As

Walker's Treatise on Domestic Relations explains in section 1.7, a party seeking an

annulment must file an annulment action and ask a court to declare that the marriage is

void. As discussed above, a court considering this action would apply Columbia law to

determine whether Mr. Hixon is able to obtain an annulment (if the court was applying

Franklin law, the marriage would be void from the start without the need for any further

action).

Mr. Hixon will be able to obtain an annulment as long as he seeks and a court issues an

annulment decree, as is required for a voidable marriage to be declared void under

Columbia Revised Statutes section 718.02. Under Columbia law, his marriage is

voidable because it meets the statutory criteria. First, his spouse (Ms. Prescott) was living

at the time of his subsequent marriage. Second, the marriage with Ms. Prescott was still

in force at the time of his subsequent marriage; Mr. Hixon and Ms. Prescott were

separated (living apart since 1990) but not divorced and there is no reason to think they

were legally separated. While they likely could have filed for a no-fault divorce

successfully, they didn't, and a marriage does not automatically terminate after living

apart absent more. Finally, Ms. Prescott was absent and not known to Mr. Hixon to be

living for "a period of five successive years immediately preceding" his marriage to Ms.

Tucker. Mr. Hixon married Ms. Prescott in 1986 (as the marriage records so indicate),

moved hundreds of miles away from Ms. Prescott in 1990, and heard in 2001 that she

had died. Accordingly, for a period of ten years (five more than is statutorily necessary),

Mr. Hixon did not know that Ms. Prescott was living. Accordingly, Mr. Hixon's marriage

to Ms. Tucker satisfies the statutory criteria for a voidable marriage under Columbia

Revised Statutes section 718.02, meaning he will be able to seek an annulment decree to

have it declared void.

3.If Mr. Hixon files an annulment action in Franklin, a Franklin court would have

jurisdiction to annul the marriage but would not have jurisdiction to dispose of the

parties' property.

The issue is whether a Franklin court has jurisdiction to annul a marriage that occurred in

Columbia and to dispose of real property located in Columbia. A Franklin court need

not have in personam jurisdiction over both parties to the marriage in order to gran

t a

divorce or annulment. For those actions, the court need only have jurisdiction over the

res of the marriage relationship itself However, a court must have in rem jurisdiction with

respect to property or in personam jurisdiction over the nonresident defendant. Walker's

Treatise section 1.7 underscores that a Franklin court can issue orders dividing marital



property interests under the same rules governing division of property in a divorce

"provided it has jurisdiction."

a. A Franklin court would have jurisdiction to annul the marriage.

A Franklin court would have jurisdiction to annul Mr. Hixon's marriage to Ms. Tucker

because Mr. Hixon has been domiciled in Franklin for over six months. Long-established

Franklin case law makes clear that in order to annul a marriage, a Franklin court must

have jurisdiction over the res of a marriage. Under Daniels v. Daniels, a Franklin court

has jurisdiction over the res of a marriage where one of the spouses has been domiciled

within Franklin for six months. This is consistent with the U.S. Supreme Court's mandate

in Williams v. North Carolina that states "can alter within its own borders the marriage

status of the spouse domiciled there, even though the other spouse is absent." Here, Mr.

Hixon been domiciled in Franklin since 2019, for at least three years. An individual's

domicile is the place where they reside and intend to remain permanently or indefinitely.

Here, Mr. Hixon seems to intend to remain indefinitely in Franklin; his company opened

an office there and asked him to start it and he has been living there ever since.

Ms. Tucker may argue that jurisdiction is improper because she has never been to

Franklin meaning she lacks sufficient minimum contacts with the state under the Franklin

Long Arm Statute, but such an argument will not prevail. The defendant in Daniels v.

Daniels advanced a similar argument, which the court rejected because the long arm

statute applies only where a court seeks to exercise in personam jurisdiction over

nonresidents; here, in personam jurisdiction over Ms. Tucker is not necessary-only in

personam jurisdiction over the res of the marriage. Carew v. Ellis made clear that is true

for annulment actions. So, while Ms. Tucker would be correct (like Ms. Daniels in

Daniels) that the Franklin court could not exercise jurisdiction over her were it not for her

marriage to Mr. Hixon, Franklin does have jurisdiction to annul here even though it lacks

in personam jurisdiction over Ms. Tucker.

b. A Franklin court would not have jurisdiction to dispose of the parties'

property.

A Franklin court would not have jurisdiction to dispose of the parties' property because

the real property is located in Columbia and it lacks in personam jurisdiction over Ms.

Tucker. There are two ways a court could have jurisdiction over

real property. First, a

Franklin court has in rem jurisdiction over real property located within it. Daniels, Gore

v. Gore, and Carew v. Ellis all explained that if division of property is at issue, a Franklin

court has in rem jurisdiction over property located within it even if it lacks in personam

jurisdiction over the nonresident defendant. This is how the Franklin court in Daniels

had jurisdiction to dispose of the marital property at issue there located in Franklin, even

though it did not have in personam jurisdiction over Ms. Daniels. However, this ground

of jurisdiction is inapplicable here. The property at issue is Mr. Hixon and Ms. Tucker's



house in Columbia, not Franklin. Accordingly, the Franklin court lacks in rem

jurisdiction over the property.

Second, a Franklin court can have jurisdiction to dispose of property if it has in personam

jurisdiction over both parties. In personam jurisdiction is proper where the Franklin

Long Arm Statute is satisfied and the constitutional requirements of personal jurisdiction

are met. The Franklin Long Arm Statute applies where, as here, in personam jurisdiction

over the nonresident defendant is required. Personal jurisdiction requires minimum

sufficient contacts with the forum state, relatedness, and fairness. Shaffer v. Heitner

underscored that a state court's jurisdiction must satisfy the "minimum contacts" standard

in order to provide due process. Here, that standard is not satisfied because Ms. Tucker

has never even visited Franklin. Accordingly, the Franklin court would find that it does

not have jurisdiction to dispose of the parties' property, unless of course Ms. Tucker

waives an objection to personal jurisdiction.

4. We should advise Mr. Hixon to file in Columbia.

Mr. Hixon should file his lawsuit in Columbia, not Franklin, because a Franklin court

would not have personal jurisdiction over Ms. Tucker and accordingly would not be able

to dispose of the marital property (even though it could enter an ex parte annulment

order). While Mr. Hixon could file the annulment order in Columbia and a separate

lawsuit for the division of property in Franklin, that seems overly burdensome and

inconvenient. The easier approach is for Mr. Hixon to file in Columbia. The Columbia

court would have jurisdiction to both annul the marriage and dispose of the parties'

property located in Columbia. It would have jurisdiction to annul the marriage because it

would have in personam jurisdiction over both parties; Ms. Tucker obviously has

sufficient minimum contacts under Shaffer since she lives in Columbia, and Mr. Hixon

would waive any objection to personal jurisdiction by filing in Columbia. The Columbia

court would have in rem jurisdiction to dispose of the property because the real property

is located in Columbia. Once the Columbia court enters an annulment decree, the decree

would be given full faith and credit in Franklin. Full faith and credit are proper where a

sister court entered a valid order and had jurisdiction. Thus, a Franklin court would give

full faith and credit.

---



ANSWER TO MPT 1

To: Marianne Morton

From: Examinee

Date: July 26, 2022

Re: Walter Hixon matter

MEMORANDUM

Introduction

This memorandum addresses questions surrounding the annulment of Mr. Hixon

("Hixon") and Ms. Tucker's ("Tucker") marriage and the division of marital property

acquired during the marriage. First, this memorandum will look at whether Columbia or

Franklin law governs the grounds for annulling the Hixon and Tucker's marriage. Next,

this memorandum will explore if Hixon is required to file a lawsuit to annul his marriage

to Tucker and his chances of prevailing on the merits. Then, this memorandum will

discuss whether Franklin courts have jurisdiction to annul the marriage and dispose of the

parties' marital property. Finally, this memorandum will advise which state, Columbia or

Franklin, Tucker should file his suit in.

Discussion

I. Columbia law governs the grounds for annulling Mr. Hixon's marriage to Ms.

Tucker because Columbia has the most significant relationship with the parties and

the marriage between the parties.

Under Franklin law, the validity of marriage should be determined by the law of the state

with the most significant relationship to the spouses and the marriage. Restatement

(Second) of Conflict of Laws§ 283 (1971). Furthermore, under the Full Faith and Credit

Clause of the United States Constitution, if a marriage is valid in the jurisdictions is

contracted, then it is valid in all other jurisdictions. If a state has no relationship to the

parties or the marriage, then that state should apply the law of the state with the most

significant relationship. Fletcher v. Fletcher, (Fr. Ct. of App. 2014). To determine which

state has the most significant relationship to the suit, the court will look at: "the relevant

policies of other interested states and the relative interests of those states in the

determination of the particular issue, the protection of justified expectations,...certainty,

predictability, and uniformity of result, and ease in the determination and application of

the law to be applied." Restatement (Second) of Conflict of Laws§ 6 (1971).



A. The relevant policies of other interested states and the relative interests of those

states in the determination of the particular issue

All states have a policy interest in defining marriage within the states between their

citizens and how a marriage can be "initiated and ended." States' policies differ on how a

marriage can be validly ended; however, the state in which a marriage was entered into,

where the parties lived through the duration of the marriage, and where the marital

property is located as a significant interest in hearing disputes and applying their

appropriate law. Fletcher (2014). In Simeon v. Jaynes (Fr. Sup. Ct. 2009), plaintiff

spouse brought a suit in Franklin to annul their marriage to the defendant spouses and

alleged their marriage was bigamous. The parties were married in Columbia, lived

together in Columbia, owned property in Columbia, and incurred debts in Columbia.

Looking at the totality of the circumstances, the court held that the appropriate law to

apply was Columbia law because, Columbia had the greatest interest in the determination

of the annulment proceedings. See a/so, Fletcher (2014) (holding that it was improper to

apply Columbia law to an annulment proceeding between spouses who were married in

Franklin and lived in Franklin, and the only connection to Columbia was the "short time"

the plaintiff spouse resided there.)

Here, it is clear that both states have a policy interest in defining and creating a solid

framework that governs marriage and divorce proceedings between their citizens. In fact,

each state has different laws that govern annulment, which evinces the importance of the

domestic relation law in each state. See Columbia Revised Statutes§ 718.07; Franklin

Domestic Relations Code§ 19-5. However, it is clear that Columbia has a much stronger

and more significant interest in determining Hixon and Tucker's annulment. Similarly, in

Simeon, the party’s grounds for annulment is bigamy. In both Simeon and Fletcher, the

court applied the law of the state where the parties were married, resided, incurred debts,

and bought marital property. Here, both Hixon's marriage to Tucker and his previous

marriage to Ms. Prescott were in Columbia. Furthermore, the Hixon and Tucker's marital

home is in Columbia, and Hixon still resides in Columbia. In Fletcher, the only

connection the plaintiff spouse had with Columbia was the short time he resided there.

Similarly, here, the only connection Franklin has with the spouses and the marriage is

that Hixon has resided in Franklin for the past three years. Therefore, although both states

have an interest in the domestic relations of their citizens, Columbia has a stronger

interest in the annulment proceeding between Hixon and Tucker.

B. The protection of justified expectations

When determining which state law should apply to a domestic relation proceeding, in this

case an annulment proceeding, the court will also look at what jurisdiction the parties had

a "justified expectation" would apply or govern. In Fletcher, given that the couple was

married in Franklin, had children in Franklin, established a life in Franklin, and owned

property in Franklin, the court held that the factual considerations indicated that the



parties "had a justified expectation that Franklin law would govern the terms on which

the marriage ended." In this case, Tucker and Hixon were married in Columbia in 2012,

owned a house in Columbia, and both lived in Columbia until Hixon unilaterally moved

away in 2019. Hixon and Fletcher have similar connections to Columbia that the spouses

in Fletcher had to Franklin. Thus, given that the only connection the spouses have with

Franklin is that Hixon moved there three years ago, the facts indicate that the parties had

a justified expectation that Columbia law would govern the end of the marriage.

C. Certainty, predictability, and uniformity of result

Next, there is a need for predictability and uniformity in the creation and termination of

marriages. Fletcher (2014). People often move between states, and the migration of

people has created a need for states to create a uniform system to govern domestic

relations and marriage. /d. Here, Hixon moved to Franklin, which has a different set of

laws governing annulment. The court, therefore, should follow the framework that

applies a certain and predictable result to the end of the marriage.

D. Ease in the determination and application of the law to be applied

Lastly, the court consider ease and administration efficiency when choosing what state

law to apply. In Fletcher, the court indicated that due to all of the substantial events in the

marriage occurring in Franklin, it was only proper and efficient to apply Franklin law.

Here, Hixon's first and second marriage happened in Columbia; thus, all necessary

documentation and public records are in Columbia. Furthermore, the marital property is

in Columbia, and the spouses resided in Columbia. It would be much more efficient to

apply Columbia law given the substantial events giving rise to the claim occurred in

Columbia.

Applying all of the factors, Columbia has the most significant relationship with Hixon

and Tucker and their marriage, and therefore, Columbia law should govern the

annulment.

II. Mr. Hixon must file a lawsuit because under Columbia law, because for a

voidable marriage to be declared void, a party must seek a court order, and Mr.

Hixon will be able to obtain an annulment.

Under Columbia Revised Statutes§ 718.02, a marriage is voidable if "[t]he spouse of

either party was living and the marriage with that spouse was then in force and that

spouse was absent and not known to the party commencing the proceeding to be living

for a period of five successive years immediately preceding the

subsequent marriage for

which the annulment decree is sought." Furthermore, unlike other jurisdictions where an

invalid marriage is automatically void, in Columbia, a party must seek an annulment

decree to void a voidable marriage. Columbia Revised Statutes§ 718.02.



A. Mr. Hixon must file a suit and the court must issue an annulment decree for Mr.

Hixon's marriage to Ms. Tucker to be void.

As stated above, Columbia law will apply, and Columbia requires that a party must seek

an annulment decree from the court to void a voidable marriage. Columbia Revised

Statutes § 718.02. Therefore, Hixon's marriage to Tucker is not automatically void. He

must seek an annulment decree by petitioning the state court in Columbia. Then, the

Columbia state court will enter an annulment decree, and the marriage will be annulled.

B. Mr. Hixon will be successful in obtaining an annulment decree in Columbia

because he believed Ms. Prescott was dead for at least five years before marrying

Ms. Tucker.

Columbia law holds that a marriage is voidable if either party entered the marriage and

believed that their previous spouse was not living for "a period of five successive years

immediately preceding the subsequent marriage for which the annulment decree is

sought." Here, Hixon believed that Prescott was dead since 2001. In 2001, an old mutual

friend told Hixon that Prescott was killed in a car accident. Hixon did not meet Tucker,

and the two were married on July 14, 2001. Therefore, there were twelve years between

the time that Hixon first believed that Prescott was killed in a car accident and his

marriage with Tucker. Thus, the marriage is voidable under Columbia law, and Hixon

will prevail in obtaining an annulment decree for his marriage to Tucker.

III. Franklin courts will have jurisdiction over the annulment proceedings;

however, Franklin courts will not have jurisdiction to dispose of the parties'

property

A court must have personal jurisdiction over any suit. In personam jurisdiction, which

means jurisdiction of the parties themselves, over both parties in a divorce or annulment

proceeding is not necessary-instead, the forum court only needs to have jurisdiction over

the res of the marriage. Daniels v. Daniels (Fr. Ct. of App. 1997); Price v. Price (Fr. Sup.

Ct. 1972); Carew v. Ellis (Fr. Sup. Ct. 1957). A court has jurisdiction over the res of the

marriage relationship when one of the spouses has been domiciled within the state for six

months. /d. Furthermore, the Supreme Court has held that a state can alter marriages

within the state, "even though the other spouse is absent." Williams v. North Carolina,

317 U.S. 287,298-99 (1942).

A state has in rem jurisdiction over property within the state's borders, and therefore, has

the power to divide and dispose of marital property within the state, because it is related

to the underlying action. Shaffer v. Heitner,

433 U.S. 186 (1977). However, a state must

have jurisdiction over both the parties to divide the marital property located outside of the

state. The court will determine if it has jurisdiction over the parties by looking at the

parties "minimum contacts" with the forum state.



A. The Franklin courts have jurisdiction to annul the marriage because Hixon is

domiciled in the state

If the plaintiff spouse is domiciled the state, then the court has jurisdiction to hear divorce

and annulment proceedings. In Daniels, the plaintiff spouse moved to Franklin from

Columbia and purchased real property in the state. A year after her became a domiciliary

of Franklin he filed for divorce from his wife in Franklin courts. His wife argued that the

court did not have jurisdiction to enter a valid divorce decree, because the parties were

married in Columbia, resided in Columbia, and she still was domiciled in Columbia. The

court rejected this argument, and held that as long as the plaintiff spouse establishes

residency in Franklin for at least six months, then the court may exercise jurisdiction over

the divorce proceedings. The court does not need in personam jurisdiction over both

parties to enter a divorce decree.

Here, Hixon moved to Franklin in 2019-over three years ago. He has a new job in

Franklin and does not intend to leave. He is now a domiciliary of Franklin, and as seen in

Daniels, if the plaintiff spouse establishes residency for at least six months, then Franklin

courts have jurisdiction over a divorce or annulment proceeding. Therefore, Franklin

courts have annulled the marriage.

B. The Franklin courts do not have jurisdiction to dispose of the marital property

The next issue is whether Franklin courts can dispose of the marital property. In Daniels,

the court was able to dispose of the marital property even though the other spouse was

not a resident of the state because the martial property was located in Franklin. However,

if the property is located outside of the forum state, then the state has to have jurisdiction

over both parties to divide marital property. A state has jurisdiction over a party such that

the party has minimum contacts with the state such that it will not offend the notions of

fair play and substantial justice. Here, the marital property is located in Columbia. Tucker

has never been to Franklin and still resides in Columbia. She likely does not have

minimum contacts with the Franklin, and therefore, Franklin cannot dispose of the

marital property located in Columbia.

IV. Mr. Hixon should file in Columbia

Mr. Hixon should file in Columbia. It would be much more efficient for Mr. Hixon to file

in Columbia because the marital property is located in Columbia and Columbia state law

is going to be applied. Columbia courts are better situated to apply Columbia law and

well-versed in Columbia law. There will be more predictability if he chooses to file in

Columbia. Franklin courts are not as familiar with Columbia law. Furthermore, if he were

to file suit in Franklin, he would also have to file suit in Columbia, which is inefficient

and expensive. All of the events giving rise to the claim happened in Columbia,



Columbia law will be applied, and Columbia has jurisdiction to hear all of the suits, and

therefore, Columbia is the proper forum to file his suit in.

Conclusion

Due to the fact that Columbia has the most significant relationship with the parties and

the marriage, Columbia law will apply. Moreover, Columbia law does not automatically

recognize that a marriage is void, instead a party must file a suit for a decree of

annulment. However, Hixon will be able to successfully file a suit for a decree of

annulment in Columbia because he entered into a subsequent marriage when he believed

Prescott was dead for twelve years. Next, although Franklin courts may properly enter a

decree of annulment because Hixon is domiciled in Franklin, Franklin does not have

jurisdiction to dispose of the property in Columbia. Because substantial events giving rise

to the claim happened in Columbia, the martial property is in Columbia, Tucker is in

Columbia, and Columbia law will be applied to the claim, Hixon should file suit in

Columbia.

---

ANSWER TO MPT 2

To: Howard Zeller

From:

Date: July 26, 2022

Re: Briotti request for advice

Nina Briotti, an attorney seeks our advice regarding her potential civil and criminal

liability as well as her ethical obligations in recording the conversation of her client X

who she believes may commit a crime by invading a trust that he administers to cover

his losses from risky investments. This memorandum will discuss below: (1) whether

Briotti may lawfully record the telephone conversation with X without informing him;

(2) whether to record him in secret would violate the Rules of Professional Conduct; and

(3) whether she must inform X that she is recording the conversation if he asks her.

(1) Briotti may lawfully record her telephone conversation with X without informing X.

Briotti may lawfully record the phone conversation with X and avoid criminal or civil

liability under applicable law. Briotti has her law office in Franklin and X has his

financial advising offices in Olympia. Franklin law will apply to the conversation if

Briotti records from her office (or anywhere else in Franklin) and a civil action or

criminal action in Olympia will look to Franklin regarding the lawfulness of the conduct.



First, Franklin's criminal law regarding conversation recording consent will apply

because Olympia only applies its own criminal code on the subject when the act of

interception takes place inside Olympia. Shannon v. Spindrift (Olympia DC 2018) (citing

Parnell v. Brant (Olympia Sup. Ct. 2014)). The "interceptions and recordings occur

where made," regardless of where each party to the conversation is located. Olympia

law is an "all-party consent" state based on its criminal code requiring all parties to the

recorded communication to consent to the communication before it is intercepted.

Shannon; Olympia Criminal Code (OCC) § 500.4(1)(a). Franklin, however, is a "single

party consent" state because its applicable criminal statute requires only on party to the

communication to provide prior consent to the interception of the conversation. Franklin

Criminal Code (FCC)§ 200(1)(a). Under both codes, an interception includes the

recording of the communication. In Olympia, the courts have interpreted this to apply to

recording phone conversations and it would likely be the same in a Franklin court. But as

to which law prevails, in Shannon, the court settled the conflict between a "single party

consent" state and an "all party consent state" by dismissing the action that was based on

Olympia's "all party consent law'' because the defendant recorded the plaintiff during a

telephone communication from within the defendant's "single party consent" state.

Here, Briotti plans to call X from her office in Franklin and wants to record the phone

call when she provides him legal advice regarding his potential criminal conduct.

Although X is located in Olympia, Olympia courts will not most likely not apply the

applicable OCC provision to any case brought against Briotti, who would be recording

the conversation from her office in Franklin. Because in such a scenario Franklin would

be the place where the interception and recording occurred and Olympia law would not

apply. Thus, Briotti would not need X's consent. Franklin's law only requires that one

party to the conversation consents, and because Briotti would be willfully recording the

conversation and consenting to such a recording, this would suffice under Franklin's

"single party consent" regime. Thus, Briotti can lawfully record any conversation with X

without informing him and receiving his consent.

(2) Briotti may record X without his knowledge under the Rules of Professional Conduct

Briotti may ethically record the conversation with X without X's knowledge. Although

ABA Formal Opinion 01-422 (Opinion 422) and the Franklin State Bar Committee on

Ethics and Professional Responsibility both have published that it would be "inadvisable"

to record a client without the client's knowledge regardless of whether it is unethical

outright, there are several exceptions that may apply here to allow Briotti do so within the

bounds of ethical conduct. Because the ABA rules have been adopted by Franklin and

Olympia alike, analysis of the ABA rules will be sufficient for both states of Briotti's

legal licenses. And in particular Opinion 422 has persuasive weight under Franklin law

and its guidance is highly relevant in interpreting the Rules of Professional Conduct.



Under Rule 8.4(b) and (c), it is professional misconduct for a lawyer to engage in

dishonesty, fraud, deceit, or misrepresentation or commit a criminal act that reflects

adversely on lawyer's honesty, trustworthiness or fitness as a lawyer. First, Briotti is

covered under Rule 8.4(b) because as discussed above, her act of recording the

conversation with only her consent is lawful under the applicable law and would not be a

criminal act. Second, under Model Rule 8.4(c), Opinion 422 discusses that nonconsensual

taping of conversations is no longer considered inherently deceitful such that it would be

automatically covered under the rule for misconduct. Instead, the opinion provides that

under some circumstances requiring disclosure of the recording of a conversation may

defeat a legitimate and necessary act of recording. That would certainly apply where

lawyers are attempting to gather evidence against adverse parties, but does not clearly

apply to where a lawyer seeks to record her own client--to whom she owes duties of

loyalty and confidentiality. Thus, Opinion 422 provides that it is almost always advisable

for a lawyer to obtain informed consent from a client before recording a communication

because most clients would not assume that their voice and tone are being recorded

completely accurately, even if they expect that lawyers memorialize conversations.

Instead, the Opinion 422 and Franklin's Bar Committee both advises that lawyers should

only record clients without their consent when the lawyer reasonably believes that the

client would not object or if the client has forfeited in some manner the right of loyalty or

confidentiality. First, Briotti likely could not argue in any scenario that she reasonably

believes that X would not object to be recording. Nothing that Briotti has told the firm

would provide grounds for her to believe that X would not object. She has not tried to

record X in the past with X's consent nor has she obtained any agreement, express or

implied, that he would consent or would not object. That she has come to the firm with

these questions also implies that she does not reasonably believe that he would not

consent. Under the exceptional circumstances where a client forfeits duties owed to the

client would make it so that the lawyer has no ethical obligation to keep confidential (1)

plans or threats to commit criminal act to cause imminent death or substantial bodily

harm or (2) information necessary to establish defense by lawyer to charges based upon

conduct in which the client is involved. These scenarios are scenarios that under Rule

1.6(b)(2) and (5), the lawyer would be permitted to disclose client confidences that might

be contained in such a recording. But as Franklin's Bar Committee expounded, it can be

difficult to determine when a future conversation might meet these exceptional

circumstances. The Franklin Bar Committee in its relevant opini

on to violations of Rule

8.4 advises that lawyers who would seek to record a future conversation--unknowing of

whether a conversation might include the client disclosing a criminal plan--should use

their factual knowledge of the circumstances and "well- grounded judgment" to

determine the client's intended actions. The opinion advises that rather than engage in

speculation, lawyers should consider the client's previous statements, the client's

circumstances, and any alternative methods of memorializing the conversation when

determining the need for recording the client without the client's knowledge.



Here, Briotti has legitimate concerns based on financial adviser X's previous statements

and circumstances. First, X has told her the only option is to illegally invade the trust that

he administers to cover his investing losses and he has repeatedly referred to this option

despite legal advice to the contrary. X is advising rich clients and is known to Briotti to

be prone to making risky investments in order to get big paydays. Briotti knows that these

investments have not panned out and that X is now facing demands from many clients to

liquidate their assets immediately after they learned he lost a huge amount of his clients'

money. X has two weeks to pay the money and would be in personal financial ruin and

would go out of business if he does not somehow pay back his clients and still cover the

losses. Because his only option that he has thought of is to illegally invade the trust and

Briotti believes that it is possible that he follows through because of his silence in the

face of advice not to do so, Briotti has reasonable grounds to believe that the next phone

conversation might concern illegal conduct of X. The risk is high that X might take

desperate action such as the crime in question and Briotti wants to have evidence that she

advised him that this conduct would be illegal for her own defense--an ethical purpose

under Rule 1.6(b). But because Briotti has already memorialized in writing her advice

and X's reaction, it might be an alternative to nonconsensual recording for Briotti to

consider using the same method, such that multiple written recordings of the same

response to the same legal advice might be adequate evidence in her legal defense if X

actually invades the trust to cover his losses. But this of course would not provide the

same evidence of a recorded conversation and if she seeks consent, X may not consent

and no evidence could be obtained. X may also seek to terminate her as counsel.

(3) Briotti must inform X that she is recording if she asks.

Opinion 422 and rule 8.4(c) are clear on this issue. Being able to conduct a

nonconsensual recording does not mean that a lawyer can falsely state that the

conversation is not being recorded, especially in the face of a direct question. This would

be deceitful conduct covered under the rules as misconduct under Rule 8.4(c). Thus, if X

asks, Briotti must inform him that she is recording the conversation.

Conclusion:

Briotti will not be criminally or civilly liable for conducting a "single party consent"

recording and she is likely permitted under the ethical rules to non-consensually record.

But if asked by X, she must disclose that she is recording.

---



ANSWER TO MPT 2

Zeller & Weiss LLP

Attorneys at Law

Franklin City, Franklin 33705

Memorandum

To: Howard Zeller

From: Examinee

Date: July 26, 2022

Re: Briotti request for advice

Our client, Nina Briotti, is in a position where she is concerned about the personal legal

ramifications of possible future crimes committed by her client, X. Although she has

advised him against committing the unlawful acts, she thinks there is a possibility he may

do so anyways. Briotti is interested in potentially recording a conversation between her

and client X in order to protect herself from liability for his potential bad acts down the

line. There are questions of legality and ethics at play here, and are addressed below in

response to the questions you provided me.

1. The issue is whether Briotti may lawfully record her telephone conversation with

X without informing him she is doing so.

Briotti would like to record the conversation with X without informing him she is doing

so. Whether this is lawful depends on the state law that applies to the situation. Under the

Franklin Criminal Code Section 200, "the interception or attempted interception [of wire

communications, including recordings of that communication is unlawful if it] is made

with the prior consent of one of the parties to the communication. On the other hand, the

Olympia Criminal Code Section 500.4 states that such an interception would be

unlawful if made without "the prior consent of all the parties to the communication"

(emphasis added). Additionally, both statutes provide for an exception to the

prohibitions on recordings in the event of an emergency situation, but no such emergency

seems to exist here. Because of this tension between the law of Franklin and that of

Olympia, it is critical to determine which applies (see also Formal Opinion 01-422). In

Shannon v. Spindrift, the Olympia Supreme Court extended the holding of Parnell v.

Brant to civil cases. Under Parnell, the court held that "Olympia law allows the

admission of evidence legally obtained in the jurisdiction seizing the evidence," and

accordingly that a recording made in Columbia of a person in Olympia was admissible.

Shannon applied this holding to civil cases, stating that "OCC 500.4 [the "all party

consent rule"] does not apply when the act of interception takes place outside of

Olympia." As a result, the recording made in Shannon that would have been unlawful



under Olympia law was instead deemed lawful pursuant to Columbia's "one party

consent" rule.

Consistent with the outcome of Shannon, if Briotti made a recording of a conversation

with X, it would likely be done at her office in Franklin. Although she states in the

transcript that she is barred in both Franklin and Olympia, assuming she will make the

recording Franklin, even though X is in Olympia, it will likely be lawful under Franklin's

"one party consent" rule. Briotti will be the consenting party in this case, and she can

lawfully make such a recording in Franklin. As a result, Briotti may lawfully record her

telephone conversation with X without his consent under the law of Franklin, which will

apply pursuant to Shannon.

2. The issue is whether, assuming Briotti could make such a recording lawfully

under state law, if doing so without the client's knowledge would violate the Rules

of Professional Conduct ("Rules").

Assuming the lawfulness of the recording under Franklin law, as discussed above, Briotti

may still be subject to some ethical issues if she takes the recording without X's

knowledge. As an initial matter, you note in the transcript that both Olympia and

Franklin have adopted the ABA Model Rules. This is relevant to the extent that Briotti is

barred by both states, so should be aware of the ethical requirements for each.

Rule 1.6 generally requires that client information be kept confidential, except in

circumstances where a lawyer "reasonably believes [it] necessary" to reveal information.

There are two exceptions that bear the most relevance to this situation: the exception "to

prevent a client from committing a crime...that is reasonably certain to result in

substantial injury to the financial interests...of another and in furtherance of which the

client has used or is using the lawyer's services," and "to prevent...substantial injury to the

financial interests...of another that is reasonably certain to result...from the client's

commission of a crime or fraud in furtherance on which the client has used the lawyer's

services." In the Commentary published by the Franklin Bar related to Rule 8.4, the

committee states that in deciding whether to undertake a recording of a conversation with

a client without the client's knowledge, the lawyer should make a well- grounded

judgment considering previous statements, client circumstances, and alternative methods

of memorialization.

These exceptions are unlikely to control here, because Briotti does not seem to have a

basis to reasonably believe it "necessary" to collect and potentially reveal

communications with X under these facts. Briotti states that, although invading the trust

would "seriously damage" the beneficiaries, there is only a "possibility" he might commit

a crime. He was silent on the phone when Briotti pressed him on the illegality of the

issue, and he did not say anything that would create a situation where disclosing client

communications would become necessary under Rule 1.6 exceptions. Although he is



desperate, he knows that his actions would be illegal and has been warned of the danger.

Perhaps he would be more likely to do it because, based on Briotti's notes, X thinks he

can keep up with the payments to beneficiaries. But, he has not evinced an actual intent

or states that he intends to undertake the crime. X did state that he has only two weeks

before his payments to his own clients become due, but that still seems like it would be

ample time for him to find another means of making distributions rather than invading the

trust and does not make it that much more likely he would commit the crime.

Furthermore, the written notes provided by Briotti described the situation clearly and

reflected that she advised him properly, so it may be possible for her to use this method

alternatively to recording him going forward. The possibility that he may commit a crime

out of desperation like will not rise to the level needed to meet an exception to Rule 1.6

Rule 8.4 governs misconduct. Of most relevance in these circumstances are the rules that

is misconduct to "commit a criminal act that reflects adversely on the lawyer's honesty"

or "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." The

Franklin Bar has stated in its commentaries that it is inadvisable to record a client without

their knowledge in light of the special relationship between lawyer and client. Although

Franklin adopts the notion that "the mere act of secretly but lawfully recording a

conversation is not inherently deceitful" it is still inadvisable to record without client

permission. Briotti would likely not violate these rules if there were exceptional

circumstances (discussed above), in this case, but because such circumstances are not

present, Briotti may be at risk if violating the Rules, and should not record without X's

consent, unless the facts come to support an inference that he is very likely to commit the

crime of invading the trust and has thusly forfeited his right of loyalty and confidentiality

under the special relationship.

3. The issue is whether, assuming that state law and the Rules would allow Briotti

to make the recording, she must inform X that she is doing so if he asks.

In Formal Opinion 01-422, the ABA states that just because a lawyer may record a

conversation with another person without that person's knowledge and consent "does not

mean that a lawyer may state falsely that the conversation is not being recorded." This, in

turn, may also lead to a violation under Rule 8.4 of the Rules, as noted above, which

prohibits conduct involving dishonesty and misrepresentation. The Franklin Bar has

adopted the Formal Opinion as having persuasive weight under state law, and so Briotti

should likely not withhold the truth about recording the communication if she undertakes

to do so and if X asks whether or not she is recording.