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THE STATE BAR OF CALIFORNIA BOARD OF LEGAL SPECIALIZATION

LEGAL SPECIALIST EXAMINATION Registration & Preparation Packet

2017 Examination Date: October 24, 2017

Area of Specialty: LEGAL MALPRACTICE LAW

INTRODUCTION

This packet contains key information that you will need to prepare for the legal specialist examination to be given on October 24, 2017.

For full details, please visit www.californiaspecialist.org and look for your specialty page.

This packet contains:

An action list for examination preparation

Examination specifications listing topics that may be tested on the legal specialist

examination

Sample essay questions from past examinations (Multiple-choice questions are not

released for practice)

A fillable examination registration form

2017 LSX Preparation Packet – Legal Malpractice Law 01/05/17 2

http://ls.calbar.ca.gov/LegalSpecialization.aspx

2017 LEGAL SPECIALIST EXAMINATION ACTION LIST

A. Start Today:

1. Register for the legal specialist examination today using the registration form included in

this packet and also available on www.californiaspecialist.org. Register for the

examination early to take advantage of reduced pricing. At no extra charge, you can add

the option to take the essay portion of the test using your laptop computer. Deadlines

and fees are as follows:

a. Early Filing Deadline: received on or before May 1, 2017 ($100)

b. Timely Filing Deadline: received on or before September 1, 2017 ($250)

c. Final Filing Deadline: received on or before October 2, 2017 ($350)

2. Review this packet for an overview and visit the examination and specialty pages at

www.californiaspecialist.org for more details about the examination and the post-

examination application you will file after you pass the examination.

B. Know the Examination:

1. Format: Four-hour morning session, eight essays; approximate 90-minute lunch; two

and a half-hour afternoon session, 75 multiple-choice questions.

2. Examination topics: See enclosed examination specifications.

3. Examination practice: At this time, practice questions are not released for this specialty area.

4. Optional preparation course(s): If you plan to register for an optional preparation

course from a commercial provider, be sure to check the schedule right away, as some

courses may already be underway. All courses are designed to accommodate full-time

working schedules. Your specialty page at www.californiaspecialist.org will list all

preparation classes reported to the Department of Legal Specialization.

5. Other certification requirements: Review the other task, education and experience

requirements in the post-examination application. You may have already met many of

the requirements, or you can continue to meet them through February 1, 2021.

C. Prepare for Examination Day:

1. Arrive by 7:00 a.m. so that you will have enough time to find your assigned seat and

start your laptop, if you are using one, when examination begins at 7:30 a.m.

2. Items allowed in the examination room:

a. You are allowed to bring only the items listed in the examination bulletin into the

examination room. Please review the examination bulletin which will be sent to

you after you register.


http://www.californiaspecialist.org/

http://www.californiaspecialist/



LEGAL MALPRACTICE LAW Examination Specifications

Purpose of the Examination: The Legal Malpractice Law Examination consists of a

combination of essay and multiple-choice questions. It is designed to verify the applicant’s knowledge of and proficiency in the usual legal procedures and substantive law that should be

common to specialists in the field as represented by the skills listed below. We recognize that

these skills are interrelated, which may require that you apply several skills in responding to a

single examination question. Also, the order of the skills does not reflect their relative

importance, nor does the skill sequence represent an implied order of their application in

practice.

Your answers to the examination questions should reflect your ability to identify and resolve

issues, apply legal malpractice law to the facts given, and show knowledge and understanding

of the pertinent principles and theories of law, their relationship to each other, and their

qualifications and limitations. Of primary importance for the essay questions will be the quality of

your analysis and explanation.

Knowledge of the following fundamental lawyering skills may be assessed:

Subject Area 1: Professional Responsibility 1.1 Duties to clients, opposing counsel and the

court 1.2 Bases for attorney’s fees/costs in litigation

matters 1.3 Bases for enforcement of ethics/standards 1.4 Conflicts of interest 1.5 Process for recognizing and resolving ethical

dilemmas 1.6 Rules of Professional Conduct/B&P Code

sections dealing with Attorneys 1.7 Ethical issues involving fee claims 1.8 Fee agreements

Subject Area 2: Legal Analysis and Reasoning 2.1 Wrongful Acts 2.2 Omissions 2.3 Statute of Limitations 2.4 Breach of attorney-client privilege 2.5 Abandonment of a client’s matter 2.6 Lack of due diligence 2.7 Exerting undue influence adverse to the

client’s interest 2.8 Improper legal advice 2.9 Malicious or frivolous litigation 2.10 Obstruction of justice 2.11 Gathering information relevant to the decision

to be made 2.12 Malfeasance or dishonesty 2.13 Breach of Fiduciary Duty 2.14 Analyzing the decision to be made 2.15 Predecessor counsel conduct 2.16 Successor counsel conduct

Skill 3: Damages Skill 4: Motions 3.1 Billing fraud 4.1 Dispositive 3.2 Excessive litigation at the client’s expense 4.2 Summary judgment 3.3 Collectability 4.3 Anti-SLAPP 3.4 Recoverable damages 4.4 Pre-trial/trial motions 3.5 Causation 4.5 Disqualification motions 3.6 Disgorgement of fees 4.6 Discovery motions regarding punitive 3.7 Cross-complaints for fees damages


Skill 5: Litigation and Alternative Dispute Skill 6: Insurance Resolution Proceedings 6.1 Errors and omissions 5.1 Tactics/strategies/advocacy/parties 6.2 Coverage policy limits 5.2 Trial court practice and procedures 6.3 Reservations of rights 5.3 Preliminary hearings 6.4 Coverage exclusions 5.4 Jury selection/instruction 6.5 Ethical issues regarding insurance policies 5.5 Gathering information relevant to the decision

to be made 5.6 Counseling client about the decision to be

made 5.7 Ethics in mediation 5.8 Civil procedure 5.9 Arbitration with clients



LEGAL MALPRACTICE LAW

4 Sample Legal Specialist Examination Essay Questions

Below are actual questions from past examinations. These questions were designed to be read

and answered within 45 minutes, though current examination questions are designed to be read

and answered in 30 minutes.

Sample Legal Specialist Examination Essay Question #1

Company employs a large sales force. Company retained Attorney to draft a form employment contract for use in the hire of new salespersons, whose duties rendered them exempt from overtime compensation. The retainer agreement between Attorney and Company states: "Attorney will provide Company with legal services and advice pertaining to an employment matter."

Attorney transmitted to Company without any comment the form employment contract it requested. Despite the fact that an important issue in the employment of salespersons is their status as exempt or non-exempt from overtime compensation, the contract did not contain a provision addressing whether the salespersons under contract are exempt or non-exempt for overtime compensation. At no time did Attorney talk with Company about salesperson classification or entitlement to overtime compensation.

Company hired Salesperson and entered into the form employment contract that Attorney had drafted. During the 28 months that Salesperson worked for Company, she never submitted a request for overtime compensation. After Salesperson was fired for poor performance, however, she sued Company, alleging that she was a non-exempt employee entitled to overtime compensation in the amount of $125,000. Rather than engage in protracted litigation, Company paid Salesperson $60,000 to settle her claims and dismiss her lawsuit, and paid a Law Firm fees and costs in the amount of $50,000 to defend Company against Salesperson's lawsuit.

Company then sued Attorney for legal malpractice, alleging that Attorney should have both advised Company about the issue of exempt/non-exempt employment status and entitlement to overtime compensation for its salespeople and included a provision in the form employment contract that would have protected Company from claims such as Salesperson’s. Company asserted that if Attorney had not committed legal malpractice, it would not have been sued by Salesperson and would not have had to pay her $60,000 to settle her claims and Law Firm $50,000 in defense costs. Company seeks $110,000 in damages from Attorney.

A. Did Attorney have a duty to:

1. Advise Company about the issue concerning the classification of its salespersons as exempt or non-exempt in the context of eligibility for overtime compensation? Discuss.

2. Include in the form employment contract a provision addressing salesperson’s status as exempt from overtime compensation? Discuss.


B. Can Company establish a claim for legal malpractice against Attorney?

1. If so, may Company recover in damages from Attorney the amount of settlement with Salesperson ($60,000) and the amount it incurred in the defense of Salesperson’s claim? Discuss.



Attorney is a business and probate attorney who was hired to probate the estate of Testator for statutory fees. Testator’s Son is the executor.

During the pendency of the probate proceeding, Son apprised Attorney about a business opportunity to develop a golf course on land that Son owned. Attorney agreed to participate in a business transaction whereby Attorney and two of his other clients would invest in the development of, and acquire ownership interests in, the golf course. In full consideration for his ownership interest in the new golf course, Attorney agreed to prepare the legal documents necessary to get the planning and procedures approved, and also to draft an appropriate agreement. A partnership agreement drafted by Attorney was executed by all the parties to the golf course transaction.

Attorney’s investment consisted solely of the contribution of his legal services. To make sure those services appeared equal in value to the ownership interest he was to acquire, Attorney increased his hourly rate for business-related legal services from $400 to $900, without advising any of the other parties. Attorney then sent bills out reflecting his services to the transaction at the higher rate. Son contributed the land and the other partners each contributed $100,000 to the development partnership. Environmental snags caused delays, the project was not completed, and the partnership lost the land in foreclosure because it could not repay the loan.

A. What duties of disclosure did Attorney owe to Son and the other client/investors before the parties entered into the transactions? Discuss.

B. What issues were raised with respect to Son and Attorney’s other clients as parties to the transaction for development of the new golf course when Attorney raised his fees from $400 to $900 for services related to the transaction and formation of the partnership? Discuss.



Attorney represented Plaintiff in a personal injury action. For reasons unknown to Attorney, Plaintiff failed to attend his noticed deposition. Defense counsel moved to compel Plaintiff’s appearance, and sought sanctions against him, but not against Attorney. Attorney appeared at the hearing, and told the court she had not been able to speak to her client for some time. The court granted the motion and ordered Plaintiff to appear. Defendant immediately re-noticed the deposition.

Two weeks before the new deposition date, Attorney served a motion to be relieved as counsel, citing among other reasons, her inability to locate Plaintiff. Attorney, not having been able to contact Plaintiff, although still his attorney of record, told Defendant’s counsel she still could not reach her client and did not attend the deposition. When Plaintiff yet again failed to appear at the deposition, Defendant moved for terminating and monetary sanctions against Plaintiff, citing his numerous failures to appear and to respond to discovery, and moved for monetary sanctions against Attorney, without citing any conduct by Attorney, as opposed to Plaintiff, to support sanctions.

Before opposition to Defendant’s motion was due, the court granted Attorney’s motion to be relieved. Two weeks later, the court granted sanctions against both Plaintiff and Attorney, based on Plaintiff’s violation of the court’s order to appear at deposition. Attorney did not appear at the hearing on Defendant’s motion, never received formal notice of the court’s ruling and never knew about the sanctions awarded against her until Defendant demanded payment three months later. Upon learning of the sanctions, attorney requested that the court vacate the order awarding sanctions against her and sought a rehearing on Defendant’s motion for sanctions against Attorney.

What arguments, if any, can Attorney reasonably make in seeking to vacate the order of sanctions? Discuss.



Attorney represented Client in Client’s wrongful termination lawsuit against Employer. Attorney agreed to advance costs and represent Client “on contingency” but there was no written fee agreement.

After nearly two years of litigation, the parties attended a mediation before Retired Judge. During the mediation, Attorney told Client for the first time that there was a pending summary judgment/adjudication motion which was likely to end Client’s case because there was no evidence of wrongful termination.

Employer, through Retired Judge, offered $75,000 to settle the case, claiming it was their “best and final offer.” Attorney told Client the offer was reasonable and should be accepted. Client agreed and entered into a written settlement agreement with Employer at mediation.

After the mediation, Employer sent the settlement check to Attorney. Attorney deposited the entire settlement check into Attorney’s personal account as payment for fees and costs for the numerous depositions that had been taken.

Believing there was evidence of wrongful termination that, if known, would have increased the settlement value of Client’s claim, Client sued Attorney for legal malpractice and breach of fiduciary duty.

A. What breaches of fiduciary duty will be raised by Client against Attorney?

B. What defenses will Attorney raise in response to Client’s claim that the advice to accept the $75,000 settlement offer was negligent?


CALIFORNIA BOARD OF LEGAL SPECIALIZATION OF THE STATE BAR OF CALIFORNIA

180 HOWARD STREET, SAN FRANCISCO, CALIFORNIA 94105-1617

TELEPHONE: (415) 538-2120 FAX: (415) 538-2180

E-MAIL: [email protected] WEBSITE: www.californiaspecialist.org

2017 Legal Specialist Examination Registration Form Examination Date: Tuesday, October 24, 2017

Registration Deadline: October 2, 2017

NOTE: For the 2017 Legal Specialist Examination only, registration fee(s) are reduced and all laptop fees are waived. Reduced pricing will only be honored with valid full payment. Applicants who wish to take the examination via laptop will still need to indicate on this form, complete the Release of Liability and comply with all department policies. Laptop slots are limited so applicants are encouraged to apply early.

Register to guarantee your space at the test center for the 2017 Legal Specialist Examination by submitting this registration form with valid full payment postmarked no later than October 2, 2017.

Applicant Information

Full Name: CA State Bar Number: We will communicate with you via your address, phone and private e-mail as provided in your “My State Bar Profile.”

Eligibility: Have you been practicing in the specialty area since January 2016? ☐ Yes ☐ No

Examination 1. Subject Matter: Indicate the examination for which you are registering (check one)

☐ Admiralty & Maritime Law

☐ Appellate – Civil Law

☐ Appellate – Criminal Law

☐ Bankruptcy Law

☐ Criminal – State Law

☐ Criminal – Federal Law

☐ Estate Planning, Trust & Probate Law

☐ Family Law

☐ Franchise & Distribution Law

☐ Immigration & Nationality Law

☐ Legal Malpractice Law

☐ Taxation Law

☐ Workers’ Compensation Law

2. Test Center: ☐ Northern California – Oakland Convention Center

☐ Southern California – Pasadena Convention Center

3. Method for Essay Portion:

☐ Handwriting

☐ Typing on Laptop/Netbook (Please review and sign the Release of Liability Form)

4. Payment: ☐ Enclosed check made payable to the State Bar of California.

☐ MasterCard or Visa (Please complete and sign the credit card authorization form)

5. Source: How did you learn about the legal specialization program and examination? (Check all that apply)

☐ A colleague

☐ State Bar website

☐ Mailing/e-mail to State Bar of California

Section Members

☐ California Bar Journal

☐ Information booth at conference

☐ Other:

Declaration

As a condition for registration for the legal specialist examination I agree to the following:

1. I am an active member of the State Bar of California. 2. I understand that the examination is the first step in the certification process and that if I am successful

on the examination, I will be required to file an application for certification with the appropriate fee demonstrating compliance with all other requirements of the legal specialization program, including education, tasks and experience and recommendations, on or before February 1, 2021 before my application can be considered by the California Board of Legal Specialization.

2017 Legal Specialist Examination Registration Form Page 1 of 4 Rev 12/20/16

mailto:[email protected]


3. I am aware that the requirements for becoming a certified specialist are set forth in the Rules andStandards available at www.californiaspecialist.org and that the California Board of Legal Specializationrecommends that I review these rules prior to applying to be sure that I can meet the requirements byFebruary 1, 2021. After that date, the examination results will no longer be valid and I will need to takethe examination again to continue with the certification process.

4. I understand that the legal specialization program is self-funded, and, if certified, I will be required to payan annual fee and to recertify every five years, though I will not need to take the examination again.

5. I understand that any and all fees related to this examination are non-refundable, non-transferable, andapplicable only to the 2017 Legal Specialist Examination and not any future examination.

6. I understand that failure to make a truthful disclosure of any fact or item of information required mayresult in denial of my registration, revocation of my certificate of specialization, if granted, or referral todisciplinary investigation by the State Bar of California.

7. I understand that although laptop fees are waived on a one-time basis for the 2017 Legal SpecialistExamination, should I choose to use a laptop for the essay portion of the examination, I will review andsubmit the Release of Liability Form by October 2, 2017 and upload the required software no later thanOctober 20, 2017.

8. I understand that I will receive a confirmation e-mail sent to my private e-mail address as listed on MyState Bar Profile at www.calbar.ca.gov once my completed registration form has been received andprocessed.

9. I understand that in order attend the examination I will need the admittance ticket that will be sent inOctober to my current address as listed on My State Bar Profile at www.calbar.ca.gov.

10. I understand that subsequent information regarding the examination will be sent to the physical and/or e-mail address listed on My State Bar Profile and I agree to keep my contact information updated.

I have carefully read the foregoing and declare, under penalty of perjury under the laws of the State of California, that the information I have provided is true and correct.

Executed on: (Date) at (City and/or County), California

Signature:

(Please print and manually sign this document or use Adobe’s e-signature function)

Submission Information

MAIL OR FAX YOUR REGISTRATION FORM(S) AND PAYMENT TO: Department of Legal Specialization State Bar of California 180 Howard St. San Francisco, CA 94105 Fax: (415) 538-2180



http://www.calbar.ca.gov/

http://www.calbar.ca.gov/



TELEPHONE: (415) 538-2120 FAX: (415) 538-2180


For Laptop Applicants Only RELEASE OF LIABILITY – LAPTOP COMPUTER PROGRAM

Must be returned no later than October 2, 2017

FOR APPLICANTS:

Although laptop fees will be waived on a one-time basis for the 2017 Legal Specialist Examination, this formmust be reviewed, completed and submitted with the Examination Registration Form.

Laptops will only be used for the morning session/essay portion of the examination. Applicants will not needlaptops for the afternoon session/multiple-choice portion of the examination.

On September 1, 2017 laptop applicants will receive information about downloading the software, whichmust be completed by October 20, 2017.

To ensure that your laptop is compatible with the software as described below, review the system specifications at http://go.examsoft.com/barexamsystemrequirements.

I, , acknowledge that the California Board of Legal

Specialization (Board) of the State Bar of California is allowing examination applicants to use personal laptop computers with pre-installed SofTest software from ExamSoft (Software) to take examinations administered by the Board.

I understand that the use of personal laptop computers is offered by the State Bar of California (State Bar) as a convenience to me and that the State Bar does not warrant or guarantee said Software.

I agree to bear sole responsibility for the use of said Software and I hereby release the State Bar (its Board of Trustees, officers, agents, representatives and employees, as the same may be constituted now and from time to time hereafter), including the Board, from all liability, claims, damages, or demands for personal injury or property damage, arising from or related to my use of a personal laptop computer during the examination.

I further acknowledge that the State Bar does not warrant or guarantee the Software nor does it accept any liability in the event there is a technical or mechanical failure of the personal laptop computer and all associated equipment, Software and/or associated materials during administration of an examination, the uploading of my examination answers or in the printing of my examination answers.

I will accept the use of SofTest under the provisions of the ExamSoft click license at the ExamSoft website and agree to be bound by its terms and conditions.

By my election to use a personal laptop computer to take an examination administered by the Board, I also agree to begin or continue the examination by handwriting in the event there is any malfunction, or issue with access to, the computer, Software, electrical system or such other items associated with administration of the examination; and, understand I will not receive a refund of the fees.

I agree: 1) that I will exit the exam file upon the conclusion of each examination session; 2) that I will not attempt to access my exam file(s) following the examination for the purpose of altering my answers; 3) that I will upload the exam file(s) that contain the examination answers, which I completed during the examination, by the published deadline; 4) that a deduction of ten scaled points will be taken from my total written scaled score if I fail to upload my answer file(s) by the published deadline; and 5) that I will receive a grade of zero (0) for each answer not uploaded timely if I fail to upload my answer file(s) within two (2) weeks of the published deadline.

Date of Examination Administration: October 24, 2017 Legal Specialist Examination

CA State Bar Number:

Applicant Name (please print):

Applicant Signature:



http://go.examsoft.com/barexamsystemrequirements





TELEPHONE: (415) 538-2120 FAX: (415) 538-2180


2017 Legal Specialist Examination Fee Payment Form

FOR APPLICANTS:

Registration fees are non-refundable, non-transferable, and applicable only to the legal specialistexamination to be administered on October 24, 2017.

The applicable registration fee will be based on the day valid full payment is received.

Examination Applicant Information

Full Name: CA State Bar Number:

2017 Legal Specialist Examination (Reduced) Registration Fee(s) If valid full payment is received:

☐ on or before September 1, 2017:

☐ on or before October 2, 2017:

$250

$350

Payment methods ☐ Enclosed check made payable to the State Bar of California

☐ Credit Card – MasterCard or Visa only (Complete and return Credit Card Authorization below)

Credit Card Authorization

Credit Card Payment Information (Only Visa and MasterCard credit cards are accepted)

☐ MasterCard ☐ Visa

Credit Card Number:

Expiration Date (MM/YY): Security Code:

Name on Card:

Billing Address:

City: State: Zip:

By my signature on this document, I hereby authorize the State Bar of California to charge my Visa or MasterCard account for the amount that I have indicated in the form above.

Signature: Date:





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