MPT Grading Materials July 2010 - Oregon State Bar

MPT- 1
710
In re Hammond
Grading Materials
Copyright © 2010 by the National Conference of Bar Examiners.
All rights reserved.

The MPT point sheet, grading summary, and grading guidelines describe the factual and legal points
encompassed within the lawyering task to be completed. They outline all the possible issues and points
that might be addressed by an applicant. They are provided to the user jurisdictions for the sole purpose of
assisting graders in grading the examination by identifying the issues and suggesting the resolution of the
problem contemplated by the drafters. These are not official grading guides. Applicants can receive a
range of passing grades, including excellent grades, without covering all the points discussed in these
guides. The model answer is included as an illustration of a thorough and detailed response to the task,
one that addresses all the legal and factual issues the drafters intended to raise in the problem. It is
intended to serve only as an example. Applicants need not present their responses in the same way to
receive good grades. User jurisdictions are free to modify these grading materials, including the suggested
weights assigned to particular points. Grading the MPT is the exclusive responsibility of the jurisdiction
using the MPT as part of its admissions process.

Point Sheet

In re Hammond
DRAFTERS’ POINT SHEET
In this performance test item, applicants work for a law firm. A partner in the firm, Jane
Spencer, has received a request for guidance from another attorney, Carol Walker, who
represents William Hammond, who, as a result of a suspicious fire, suffered the loss of a
building that he owned and that housed his business. Hammond has sought Walker’s advice
about whether he has any criminal exposure and whether he may file an insurance claim for the
loss of the building. Walker has suspicions that Hammond may have been involved in the fire,
but Hammond has not explicitly admitted nor denied involvement and Walker has not explicitly
asked.
Walker seeks advice from the applicants’ firm on whether she can successfully move to
quash a subpoena duces tecum issued by the District Attorney compelling her to appear before a
grand jury convened to investigate the fire and to testify and produce materials relating to her
communications with Hammond about the fire. Walker desires not to appear, and Hammond
desires that she not disclose any of their communications.
Applicants’ task is to prepare a brief in support of a motion to quash the subpoena on the
grounds that under the Franklin Rules of Professional Conduct and the Franklin Rules of
Evidence, Walker may not be compelled to give the testimony or produce the materials in
question.
The File contains a memorandum describing the task, a memorandum on persuasive
briefs, a letter from Walker to Spencer, a memorandum to file by Walker summarizing a meeting
with Hammond, another memorandum to file by Walker summarizing a telephone conversation
with Ray Gomez (a friend of Hammond), a police incident report, the subpoena duces tecum, and
a draft of the motion to quash the subpoena.
The Library contains a provision of the Franklin Rules of Professional Conduct relating
to the ethical duty of confidentiality, a provision of the Franklin Rules of Evidence relating to the
attorney-client privilege and the crime-fraud exception, and provisions of the Franklin Criminal
Code relating to arson. The Library also contains two decisions from jurisdictions outside
Franklin bearing on a question, unresolved in Franklin, involving the attorney-client privilege
and the crime-fraud exception.
1

I. Detailed Analysis
The following discussion covers all the points the drafters intended to raise in the
problem. Applicants need not cover them all to receive passing or even excellent grades.
Grading decisions are left to the discretion of the user jurisdictions.
In arguing the motion to quash the subpoena duces tecum, applicants must address two
separate questions: First, may Walker be compelled to appear before the grand jury to disclose
her communications with Hammond about the fire, whether by testimony or by production of
materials, under the Franklin Rules of Professional Conduct? Second, may she be compelled to
do so under the Franklin Rules of Evidence? As will appear, applicants should give a negative
answer to each question.
In the call memo, applicants are urged to remain faithful to the Franklin Rules of
Professional Conduct and observe client confidences. This requires applicants to distinguish
carefully between those facts that are not protected by ethical and evidentiary rules and those that
are protected, including any communications between Walker and Gomez and any suspicions
Walker may have about Hammond’s involvement in the fire.
• Applicants should include in their arguments only those facts that are not protected, as
the task memorandum underscores the importance of maintaining client confidences.
A. Whether Walker May Be Compelled to Appear before the Grand Jury to Disclose
Her Communications with Hammond under the Franklin Rules of Professional Conduct
The first question for applicants to address is whether Walker may be compelled to
appear before the grand jury to disclose her communications with Hammond about the fire,
whether by testimony or by production of materials, under the Franklin Rules of Professional
Conduct.
Under Rule 1.6 of the Franklin Rules of Professional Conduct—which is identical to Rule
1.6 of the American Bar Association’s Model Rules of Professional Conduct, the source of many
jurisdictions’ analogous rules—a lawyer may not, as a general matter, reveal information relating
to the representation of a client, whether or not that information consists of a communication
between lawyer and client, and whether or not it is confidential.
• It is plain that the communications between Walker and Hammond about the fire fall
within the general rule of confidentiality.
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• On their face, they contain information relating to the representation and are
confidential communications between lawyer and client.
• There are, however, three exceptions to Rule 1.6. The lawyer may make a disclosure
• (a) if the client gives informed consent,
• (b) if the disclosure is impliedly authorized in order to carry out the
representation, and
• (c) if any one of certain circumstances is found to exist—here, specifically, “to
prevent, mitigate or rectify substantial injury to the financial interest or property
of another that is reasonably certain to result or has resulted from the client’s
commission of a crime or fraud in furtherance of which the client has used the
lawyer’s services.”
The exceptions to Rule 1.6 do not apply to Walker/Hammond communications
• The first exception, client consent, is not present. Hammond has not given Walker
consent, informed or otherwise, to disclose their communications about the fire to the
grand jury.
• Indeed, he specifically requested that she not do so.
• Neither is the second exception present. Disclosure of the communications between
Walker and Hammond about the fire to the grand jury or otherwise is not impliedly
authorized in order to carry out Walker’s representation of Hammond.
• Again, Hammond has specifically requested that she make no such disclosure.
• Finally, the specified circumstance (the third exception) is apparently inapplicable at the
threshold. That circumstance would be applicable only if Walker were to reasonably
believe that disclosure of her communications with Hammond about the fire was
necessary to “prevent, mitigate or rectify substantial injury to the financial interest or
property of another that is reasonably certain to result or has resulted from” Hammond’s
“commission of a crime or fraud in furtherance of which” he “has used” her “services.”
• The very fact that Walker is seeking to quash the subpoena reveals that she has no
such belief—and certainly has no such belief that disclosure to the grand jury is
necessary.
• In any event, it appears that “substantial injury to the financial interest or property
of another” could result only if Hammond filed a fraudulent insurance claim.
• That Hammond will do so is not “reasonably certain.”
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• Walker has advised Hammond that if he was involved in any way in the
fire, he cannot collect insurance and may face criminal charges.
• At the present time, without knowing the cause of the fire or whether
Hammond will file an insurance claim, it is unreasonable, indeed
speculative, to conclude that financial injury to a third party (i.e., the
insurer) will occur.
• Thus, there is little basis for concluding that Walker has an obligation to
reveal any client confidences.
• Further, the language of Rule 1.6(b) is permissive (e.g., “a lawyer may reveal
information…”) not mandatory, so even if an exception applied, the rules would not
require Walker to disclose the communications.
In light of the foregoing, applicants should argue that Walker may not be compelled to
appear before the grand jury to disclose her communications with Hammond about the fire,
whether by testimony or by production of materials, under the Franklin Rules of Professional
Conduct.
B. Whether Walker May Be Compelled to Appear before the Grand Jury to Disclose Her
Communications with Hammond under the Franklin Rules of Evidence
The second question for applicants to address is whether Walker may be compelled to
appear before the grand jury to disclose her communications with Hammond about the fire,
whether by testimony or by production of materials, under the Franklin Rules of Evidence.
Summary of the applicable law
Under Rule 513 of the Franklin Rules of Evidence (which is similar to the lawyer-client
evidentiary privilege in many jurisdictions), a client “has a privilege to refuse to disclose and to
prevent any other person from disclosing a confidential communication made for the purpose of
facilitating the rendition of” a lawyer’s services. There is no privilege, however, if the client
sought or obtained a lawyer’s services in furtherance of a crime or fraud.
4

A confidential communication between a client and a lawyer is presumed to be
privileged. To rebut the presumption, a party claiming otherwise must carry the burden of proof
by a preponderance of the evidence. A party claiming that a confidential communication is
privileged must nevertheless disclose the communication to the court to determine the
communication’s status if a party claiming that the communication is not privileged presents
evidence sufficient to raise a substantial question about the communication’s status. Franklin
courts have not yet determined whether, to be sufficient, the evidence presented must establish
probable cause to believe that the communication is not privileged, see, e.g., State v. Sawyer
(Columbia Sup. Ct. 2002), or whether there must merely be “some evidence” to that effect, see,
e.g., United States v. Robb (15th Cir. 1999).
• The Walker/Hammond communications are presumed to be privileged.
• From all that appears, all communications between Hammond and Walker about the fire
were confidential and all were made for the purpose of facilitating the rendition of
Walker’s services as a lawyer to Hammond as a client.
• Therefore, all the communications in question are presumed privileged because they were
confidential and are in fact privileged because they were not only confidential but were
also made with a view toward the rendering of legal services.
• Hammond has impliedly (if not expressly) authorized, and instructed, Walker to claim the
privilege on his behalf and to refuse to disclose any of the communications to the grand
jury through his expressed desire that Walker not disclose any communications.
• As things stand, the Gordon County District Attorney cannot carry her burden of proof by
a preponderance of the evidence that any of the communications between Hammond and
Walker about the fire were not privileged by virtue of the crime-fraud exception.
• The District Attorney’s evidence establishes the following:
• the building housing the Hammond Container Company was destroyed by fire;
• Hammond owned the business and the building;
• Hammond had insured the building;
• Hammond has made inquiries about filing an insurance claim, but has not filed such a
claim;
• Hammond sought a bank loan prior to the fire, and was turned down because of his
company’s financial condition;
• the Fire Marshal classified the fire as suspicious in origin;
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• Hammond has not been willing to fully cooperate with the police;
• there is a discrepancy between what Hammond and his friend Gomez said they were
doing the day of the fire; and
• Hammond retained Walker two days after the fire.
• To be sure, this evidence supports an inference that Hammond may have committed
arson with the intent to defraud the insurer of his building and may intend to carry
through by filing a fraudulent insurance claim.
• Even if he caused the fire, Hammond has not violated Fr. Criminal Code § 3.01,
Arson of Building, because that makes it a crime to damage with fire the building of
another, not one’s own building.
• But the evidence does not support an inference that Hammond sought or obtained
Walker’s services to further any such crime or fraud. True, the evidence allows
conjecture about Hammond’s purpose in retaining Walker, but it does not point to an
improper purpose—to further a crime or fraud—rather than a proper one—to defend
against an accusation of a crime or fraud.
• Whether the Gordon County District Attorney has sufficient evidence to require Walker to
disclose her communications with Hammond about the fire for the court to determine their
status (in camera) as privileged or nonprivileged depends upon whether the District Attorney
has evidence sufficient to raise a substantial question about their status.
• Whether the District Attorney has such evidence may depend in turn on whether the court
would apply the stricter “probable cause” standard or the looser “some evidence”
standard. Applicants should argue that the stricter standard applies.
• If the court should apply the “probable cause” standard, the Gordon County District
Attorney’s evidence would be insufficient to require Walker to disclose her
communications with Hammond about the fire for the court to determine their status as
privileged or nonprivileged.
• As explained, although the evidence supports an inference that Hammond may have
committed arson with the intent to defraud the insurer of his building and may intend
to carry through by filing a fraudulent insurance claim, it does not support an
inference that Hammond sought or obtained Walker’s services to further any such
crime or fraud.
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• Hammond requested claim forms and information from Mutual Insurance before
he hired Walker (see Police Report). Thus, it is unlikely that he sought advice
from Walker about how to submit an insurance claim—he had already obtained
such information.
• Moreover, the nature of the potential crime in this instance—insurance fraud—is
not comparable to the complex financial fraud perpetrated by the defendant in
Robb. In short, it is not the type of crime for which one would necessarily need
legal advice to commit.
• There is evidence that Hammond had a motive to commit insurance fraud, but the
police report notes only that the bank denied Hammond’s application for a
business loan. The more damaging information—Hammond’s statements to
Walker that he had been having financial problems and could not make his next
payroll or mortgage payment—is found only in the privileged attorney-client
communications at issue. Thus those statements are not available to the district
attorney at this stage in the proceedings.
• Applicants who divulge what Hammond told Walker regarding his dire
financial straits may receive less credit for their discussion, as they will have
violated client confidentiality.
• If the court should apply the “some evidence” standard, the Gordon County District
Attorney’s evidence would arguably remain insufficient to require Walker to disclose her
communications with Hammond about the fire for the court to determine their status as
privileged or nonprivileged.
• It is true that the “some evidence” standard may apparently be satisfied by a client’s
retention of a lawyer “in the midst of a fraudulent scheme.” United States v. Robb
(15th Cir. 1999).
• But whether Hammond is indeed involved in a “fraudulent scheme” is the very
question to be resolved. To assume that he is involved simply begs the question. As
stated, he sought advice about whether he could file an insurance claim, not how he
could do so.
• The Fire Marshal’s report failed to find specific evidence of the cause of the fire,
but classified it as suspicious. At this point in time, there is no determination that
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the fire was intentionally set. [Contrast with Robb, in which there was clear
evidence of manipulation of the price of the mining stock.]
• Just burning down his own building is not arson. Frank. Crim. Code § 3.01.
• By contrast, in Robb, there was evidence available to the government that the
defendant had employed his lawyer in the midst of his fraudulent mining scheme, and
the actual mining records revealed the misrepresentations in the publicly disseminated
information. Accordingly, the government met the “some evidence” standard required
to trigger in camera review of the attorney-client communications.
• The Walker/Hammond relationship appears much closer to that in State v. Sawyer
(Columbia Sup. Ct. 2002): “While the evidence would indeed support an inference
that Krause retained Novak to facilitate perjury, it supports an equally strong
inference that Krause retained him to ensure that his choices were informed—and that
he failed to cooperate earlier because he was afraid he might expose himself to
prosecution with no countervailing benefit.”
• There is an equally strong inference that Hammond, realizing that his financial
situation made him a prime suspect in an arson investigation, retained Walker to
ensure that he had sound legal advice in responding to police inquiries.
• Finally, it can be argued that the same public policy underlying the existence of the
attorney/client privilege—encouraging clients to fully and frankly disclose matters to
their attorneys—also supports the Franklin courts adopting a probable cause standard.
• “[T]he attorney-client privilege [is] the oldest of the privileges for confidential
communications known to the common law. It encourages full and frank
communication between attorneys and clients….” Robb.
• Robb recognized that the low “some evidence” standard had the potential to lead to
infringement of confidentiality between attorney and client. But the Robb court
reasoned that because of the risk that a higher standard could “improperly cloak
fraudulent or criminal activities,” the “some evidence” standard was appropriate. Id.
• It could be argued that the Robb standard encourages fishing expeditions into
privileged communications and that it could have a chilling effect on the attorneyclient
relationship. Sawyer is the better approach. Franklin should join Columbia in
requiring a “strong factual basis for the inference” that the crime-fraud exception
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applies and the privileged communications should be submitted to the court for in
camera review.
• Opting for the probable-cause standard, as in Sawyer, will better protect the
importance of maintaining the confidentiality of attorney-client communications and
yet is not an insurmountable bar to those parties who believe that there is a substantial
question regarding whether such communications are entitled to the privilege.
• In any event, no matter which standard the court might apply, and even if the court might end
up requiring Walker to disclose her communications with Hammond about the fire so as to
determine their status as privileged or nonprivileged, the result would likely be the same: The
court would likely conclude that the communications were in fact privileged inasmuch as
they are presumed to be such in light of their confidential character and the presumption is
not rebutted by a preponderance of evidence proving the crime-fraud exception.
In light of the foregoing, applicants should argue that Walker may not be compelled to
appear before the grand jury to disclose her communications with Hammond, whether by
testimony or by production of materials, under the Franklin Rules of Evidence.
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Grading Summary
and
Grading Guidelines

Multistate Performance Test
GRADING SUMMARY
In re Hammond
William Hammond is the subject of a grand jury arson investigation as a result of a suspicious fire that
burned down the building that housed his company, the Hammond Container Co. His attorney, Carol
Walker, has been subpoenaed to testify and produce materials relating to their communications.
Applicants’ task is to draft a brief in support of a motion to quash arguing that under the Rules of Prof.
Conduct and Evidence, Walker may not be compelled testify or to produce the materials in question.
Disclosure Is Not Appropriate under the Fr. Rules of Prof. Conduct (35% total weight)
• Rule 1.6 prohibits disclosure of client communications; no exceptions apply here.
• Hammond does not consent to disclosure. He has told Walker not to disclose anything.
• No facts support Hammond’s implied authorization to disclose to carry out the representation.
• Clearly Walker does not believe disclosure is necessary “to prevent … substantial injury to
the financial interest … of another that is reasonably certain to result.” Rule 1.6(b)(3)
• No insurance claim has been filed; there is no imminent injury to another’s financial interest.
• Thus, it is not “reasonably certain” that injury to another will occur.
• By challenging the subpoena, Walker is demonstrating her belief that no disclosure is necessary
to mitigate or rectify any harm to a third party or that Hammond has used her services in
furtherance of the commission of a crime.
• There are no facts that counter Walker’s belief that disclosure of information regarding
Hammond’s representation/case is not needed in order to prevent financial injury to another.
• Further, Rule 1.6(b) is permissive (e.g., “a lawyer may reveal information…”), not mandatory, so
even if an exception applied, the rules would not require Walker to disclose the communications.
Fr. Rules of Evidence Do Not Compel Disclosure of A/C Communications (65% total weight)
• Confidential A/C communications are presumed privileged. Fr. R. Evid. 513. (25%)
• Walker may claim the privilege on Hammond’s behalf. Fr. R. Evid. 513(b)(3).
• A preponderance of the evidence is required to overcome the presumption. Rule 513 cmt.
• The crime/fraud exception to the privilege. (Rule 513(d)(1)) does not apply.
• The proof needed for in camera review re: privilege is an open question in Franklin.
• Columbia requires probable cause to believe the communication is not privileged. Sawyer.
• The 15th Circuit requires only the “some evidence” standard. Robb.
• Applicants should argue for the stricter probable cause standard on public policy grounds, but note
that the DA doesn’t even have enough to meet the “some evidence” standard and so no substantial
question is raised regarding the communications’ status. (40%)
• The evidence may support an inference that Hammond committed arson with intent to defraud,
as the building was insured for $500k. Fr. Crim. Code § 3.02; police report.
• The Fire Marshal called the fire “suspicious”; Hammond hasn’t fully cooperated with police;
he’s said he was with a friend on the day of the fire, but the friend denies it. See police report.
• Hammond contacted his insurer about filing an insurance claim (but has not yet filed it). Id.
• Hammond has financial problems: he was denied a loan and has a $425k mortgage. Id.
• But it is unreasonable to infer that Hammond retained Walker in furtherance of a crime.
• Hammond may have wanted to obtain counsel because he knew he was under investigation.
No publicly available evidence points to an ongoing scheme to defraud, as in Robb.
• Hammond hired Walker after the fire, which cuts against applying crime-fraud exception.
• Past/completed crimes do not fall under the crime/fraud exception. See Rule 513(d)(1).
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Multistate Performance Test
In re Hammond
Grading Guidelines
I. Overview Grading Comments
• Applicants’ law firm represents attorney Carol Walker,
who has been subpoenaed by the grand jury in an arson
investigation to appear with regard to her client William
Hammond.
• Hammond’s building, which housed his business,
burned down on May 10. He hired Walker two days
after the fire, after being contacted by the police.
This section is informative only
and no grading weight is
assigned.
No discrete weight is assigned to
the “format” component of the
task.
• Walker does not want to appear before the grand jury.
• Applicants’ task is to craft the arguments in support of the
motion to quash the subpoena.
• There are two issues to address: whether disclosure may be
compelled under the Franklin Rules of Professional
Conduct or the Franklin Rules of Evidence.
• Franklin Rule of Prof. Conduct 1.6 is identical to Rule
1.6 of the ABA’s Model Rules.
• Franklin Rule of Evidence 513 is similar to the lawyerclient
evidentiary privilege in many jurisdictions.
• Applicants should argue that disclosure of the attorneyclient
communications between Walker and Hammond
cannot be compelled under either the Franklin Rules of
Professional Conduct or the Franklin Rules of Evidence.
II. Walker may not be compelled to testify under Fr. Rule of
Professional Conduct 1.6.
• Under Rule 1.6, a lawyer may not reveal information
relating to the representation of a client. The information
need not be a lawyer-client communication, nor must it be
confidential—it need only relate to the representation for
the rule to apply.
• Rule 1.6 is broader than the evidentiary privilege (Fr.
R. Evid. 513), which applies only to communications
between the lawyer and client.
• All the Hammond/Walker communications in the file fall
within the rule, as well as the memos from Walker’s file.
• The Walker/Gomez communications relate to Walker’s
representation of Hammond and are covered by R. 1.6.
• There are exceptions to the Rule when (1) the client gives
informed consent to disclosure, or (2) disclosure is
impliedly authorized to carry out the representation.
• Note that Hammond specifically requested that Walker
not disclose any of their communications.
• Nor do the facts support any conclusion that Hammond
implicitly authorized any disclosure by Walker.
12
No separate statement of facts is
required, but applicants should
incorporate the facts into their
analyses. Applicants are told to
use descriptive section headings.
The assignment is to draft an
argument. Work product that is
objective in tone is not
responsive to the instructions.
(35% total weight)
Reduced credit for applicants
who disclose too many facts
which are privileged and so not
known to the DA. Only the fact
that Hammond retained Walker
and the date of her
representation, and the fact that
she advised him to refer any
questions to her (see Police
Report) should be mentioned.
The other listed exceptions in
subsection (b), to prevent death
or bodily harm, or to comply
with law or a court order, plainly
do not apply.

Multistate Performance Test
In re Hammond
Grading Guidelines
• Other exceptions may apply if certain circumstances exist
under Rule 1.6(b).
• The relevant inquiry here is Rule 1.6(b)(3): Is disclosure
necessary “to prevent, mitigate or rectify substantial injury
to the financial interest or property of another that is
reasonably certain to result or has resulted from the client’s
commission of a crime or fraud in furtherance of which the
client has used the lawyer’s services”?
• The facts do not suggest that Walker reasonably believes
that disclosure is necessary to prevent injury to the
financial interest of another that is reasonably certain to
result or has resulted from Hammond’s “commission of a
crime or fraud in furtherance of which” he has used
Walker’s services.
• The very fact that Walker is seeking to quash the
subpoena presumably indicates that she has no such
belief—and certainly has no belief that disclosure to
the grand jury is necessary.
• Hammond is suspected of burning down his own building.
Thus, he can only cause injury to the financial interest of
another if he files an insurance claim for the loss (building
is insured for $500,000). § 3.02, Fr. Crim. Code.
• It’s not certain that Hammond will attempt to file a claim
with his insurance company.
• Applicants should use these facts to assert that Hammond
has done nothing wrong but is merely acting prudently
after having been contacted by police regarding the fire.
• Better answers will note that this is an ethical obligation,
not an evidentiary privilege; thus, there is not a dispute
regarding the level of evidence. Rule 1.6(b) is a permissive
rule under which an attorney who reasonably believes
disclosure is necessary to prevent financial harm or injury
to another may disclose client information.
• In fact, the prohibition on disclosure is mandatory (“a
lawyer shall not…”). By challenging the subpoena, Walker
is simply complying with her ethical responsibilities under
Rule 1.6.
III. Walker may not be compelled to testify under the Fr. Rules
of Evidence
• Confidential attorney-client communications are presumed
privileged against disclosure. Fr. R. Evid. 513.
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Of course, the fire has adversely
affected the bank’s security
interest in the warehouse. But
again, that is a completed
act/injury, predating Walker’s
representation of Hammond.
Note to Graders: The fact that
Walker advised Hammond not to
file a claim if he was anyway
involved in the fire and that he
could face criminal charges if he
did so, is a confidential A/C
communication. Those applicants
who cite the specific advice
Walker gave Hammond are in
breach of their ethical obligation
not to disclose client
confidences.
Less credit may be given to those
applicants who discuss the Robb
and Sawyer evidentiary standards
in this section of their argument.
(65% total weight)

Multistate Performance Test
In re Hammond
• Walker has claimed the privilege on Hammond’s
behalf.
• The privilege may be overcome if the party seeking to
defeat it shows by a preponderance of the evidence that the
communications fall within an exception to the privilege.
• There is no privilege if the attorney’s services were used or
obtained in furtherance of a crime or fraud. Id. 513(d)(1).
• Thus, a completed crime (e.g., arson) does not come
within the exception.
• Because the DA is claiming that the communications are
not privileged, the DA must present evidence to the court
raising a substantial question about the communications’
status.
• The appropriate standard of proof required for the court to
review the A/C communications in camera and determine
their status is undecided in Franklin.
• Columbia utilizes a “probable cause” standard. Sawyer.
• There must be a “strong factual basis for the inference
that the client retained the attorney for improper
purposes.” Id.
• In Sawyer, the evidence equally supported the inference
that the attorney was retained to facilitate perjury by the
client and the inference that the client realized that he
should have legal advice before cooperating with the
prosecution. Accordingly, there was not probable cause to
conclude that the attorney was retained to further a crime
or fraud and the communications were privileged.
• Hammond’s failure to fully cooperate with the police
should be viewed as in Sawyer—the prudent act of a man
who realizes that he is a likely suspect and therefore would
benefit from having legal counsel.
• However, Hammond’s situation is perhaps more
tenuous than that in Sawyer: Hammond has not just
refused to fully cooperate with the police; he may have
given a false alibi about going fishing with Gomez.
• But the fire is classified as “suspicious” at this point;
there is no official conclusion that it was arson.
• Even if it were arson with intent to defraud, the fire
occurred before Hammond hired Walker, so unlike the
crime in Sawyer, the arson itself was a completed crime
Grading Guidelines
(25% weight (for stating the
law and applicable evidentiary
standards))
Applicants should recognize that
the burden is on the DA to
establish a substantial question
regarding the communications’
status.
The key is that applicants
recognize that Franklin courts
have not articulated the
applicable evidentiary standard
to trigger in camera review.
Applicants should argue that the
stricter standard (“probable
cause”) should apply, but should
also argue that the presumption
should not be overcome under
the lesser standard (“some
evidence”).
(40% weight (for addressing
both Robb & Sawyer and
applying the law to the facts))
The point is that applicants
recognize and address both
evidentiary standards.
A key grading distinction will be
the extent to which applicants
analyze the facts and legal
reasoning in both cases and
compare them with Hammond’s
facts.
14

Multistate Performance Test
In re Hammond
and the communications are privileged under 513(d).
Grading Guidelines
• In contrast to the Sawyer court, the 15th Circuit has
adopted a more lenient “some evidence” test. Robb.
• Under Robb, if “some evidence” supports the inference that
the client sought the attorney’s services to further a crime
or fraud, the court will review the materials in camera and
determine if the crime/fraud exception applies.
• In Robb, there was independent, public evidence
(records of actual mining results that showed that Robb
made public misrepresentations about the mine’s ore
yields) that the attorney was hired in the midst of an
ongoing crime, and the government could show that
crime with the discrepancy between the actual mining
results and the information given to the public.
• Arguably, this more than satisfies the “some
evidence” standard.
• Moreover, applicants can argue that the same public policy
underlying the existence of the attorney/client privilege—
encouraging frank discussions between clients and
attorneys—also supports the Franklin courts adopting a
probable cause standard.
• “[T]he attorney-client privilege [is] the oldest of the
privileges for confidential communications known to the
common law.” Robb.
• The “some evidence” standard creates the risk that it will
be too easy for opposing parties to infringe on the
confidentiality between attorney and client. The Robb court
recognized (but rejected) this risk.
• Indeed, the looser standard encourages “fishing
expeditions” as here, where an attorney is subpoenaed to
testify based on little more than speculation that her
services may have been used to facilitate a crime or fraud.
• Franklin should follow Columbia in requiring a “strong
factual basis for the inference” that the crime-fraud
exception applies before allowing privileged
communications to be submitted to the court for in camera
review. [This also conserves judicial resources, by
requiring the moving party to assemble a solid case before
seeking in camera review.]
• Facts that applicants can use in their arguments are only
those that the DA has already established; otherwise they
are divulging confidences that Hammond has instructed
Walker not to divulge.
• Hammond Container Company building was destroyed
Applicants should clearly set out
the facts known to the DA to date
(without invading A/C privilege)
and state why they do not rise to
either “some evidence” or
“probable cause” standard.
15

Multistate Performance Test
In re Hammond
by fire;
• Hammond owned the business and the building;
• Hammond had insured the building;
• Hammond has inquired about filing an insurance claim,
but has not filed such a claim;
• Hammond was turned down for a bank loan before the
fire, because of his company’s financial condition;
• The Fire Marshal classified the fire as suspicious in
origin;
• The day after the fire, Hammond answered police
questions;
• The next day, Hammond retained Walker, and per her
instructions, referred all further questions to her;
• There is a discrepancy between what Hammond and
Gomez said they were doing the day of the fire;
Grading Guidelines
• Here there was a fire, and Hammond hired a lawyer. His
requesting insurance claim forms is just as much the act of
an innocent man who has paid his insurance premiums and
now wants to collect on them under his insurance contract
as it is the act of someone who intends to file a false claim.
• Thus this case is distinguished from Robb, where the
facts tended to show that the attorney was hired “in the
midst of a fraudulent scheme.”
• Accordingly, even under Robb’s lower “some evidence”
standard, the facts do not support any argument that the
crime/fraud exception applies.
• Walker’s memo about the call from Ray Gomez would
be protected only by work-product privilege, because it
is not a communication between Hammond and Walker
(but it would be covered by Rule 1.6).
• Note that the subpoena refers only to Walker’s
communications with Hammond. Thus, on its face, it
would appear not to extend to Walker’s conversation
with Gomez.
• In any event, no matter which standard the court might
apply, and even if the court might end up requiring Walker
to disclose her communications with Hammond about the
fire so as to determine their status as privileged or
nonprivileged, the result would likely be the same: The
court would likely conclude that the communications were
in fact privileged inasmuch as they are presumed to be
such in light of their confidential character and the
presumption is not rebutted by a preponderance of
evidence proving the crime-fraud exception.
16

Model Answer

Multistate Performance Test
In re Hammond
Model Answer
MEMORANDUM
TO: Jane Spencer
FROM: Applicant
RE: Draft argument to support Motion to Quash (Carol Walker case)
DATE: July 27, 2010
Argument
Attorney Carol Walker May Not Be Compelled to Appear before the Grand Jury to
Disclose Her Communications with Her Client William Hammond. Both Rule 1.6 of the
Franklin Rules of Professional Conduct and Franklin Rule of Evidence 513 Prohibit Such
Testimony in This Case.
A. Rule 1.6 of the Franklin Rules of Professional Conduct Does Not Permit Disclosure
and in Fact Prohibits Attorney Carol Walker from Testifying before the Grand
Jury about Her Communications with Her Client William Hammond.
On May 10, 2010, Hammond’s building was destroyed by a fire of unknown origin. The
next day, Hammond was questioned by the Gordon Police Department regarding the fire. He
answered police questions. On May 12, Hammond retained attorney Carol Walker. When the
police re-contacted Hammond on May 14 regarding the fire, Hammond referred questions to
Walker.
On July 22, 2010, Gordon County District Attorney Shirley S. Grant subpoenaed
Attorney Walker to appear before the grand jury investigating the fire and ordered her to disclose
her communications with Hammond and all related materials. She seeks to quash the subpoena
for the reasons set forth below.
An examination of Rule 1.6 of the Franklin Rules of Professional Conduct (Rule 1.6)
leads to the conclusion that Walker may not be compelled to appear pursuant to the Gordon
County District Attorney’s subpoena to testify and produce documents before the grand jury
regarding her communications with Hammond about the fire. Such disclosure is not permitted
and is in fact prohibited by the Rule.
The protection afforded to attorney-client communications under Rule 1.6 is very broad.
It is one of the hallmarks of our legal system. Under Rule 1.6, a lawyer may not, as a general
matter, reveal information relating to the representation of a client, whether or not that
information consists of a communication between lawyer and client, and whether or not it is
17

Multistate Performance Test
Model Answer
In re Hammond
confidential. Under Rule 1.6, there are only a few exceptions, and none of the exceptions apply
to this case. Each will be discussed in turn.
1. Client consent: a lawyer may disclose confidential communications if the client has
consented. See Rule 1.6(a). In this case, Hammond has not provided Walker with
consent. Indeed, he refused to talk to the police after retaining her, referring all further
questions to her. (See Gordon Police Department Incident Report.)
2. Implied authorization: if disclosure is impliedly authorized to carry out the attorney’s
representation, disclosure may be permitted. See Rule 1.6(a). Here, this exception is not
applicable. Disclosure of the communications between Walker and her client Hammond
about the fire to the grand jury is not impliedly authorized in order to carry out Walker’s
representation of Hammond.
3. Use of lawyer to further a crime or fraud resulting in substantial injury: disclosure of
confidential information may be permitted “to prevent, mitigate or rectify substantial
injury to the financial interest or property of another that is reasonably certain to result or
has resulted from the client’s commission of a crime or fraud in furtherance of which the
client has used the lawyer’s services.” Rule 1.6(b)(3). Here the lawyer has to make a
judgment about whether this permissive disclosure is appropriate. Walker, by filing this
motion to quash, has exercised her professional judgment to conclude that the soughtafter
disclosure to the grand jury would not be necessary or appropriate in this case. The
substantial injury in this case has been to Hammond, not to another person. According to
the police report, Hammond has not filed an insurance claim, but has only requested
claim forms and information from his insurer, Mutual Insurance Company, which is
certainly lawful and, in fact, expected behavior of anyone whose insured building is
damaged. Therefore, Walker has appropriately concluded that this Rule 1.6 exception
does not provide her with authority to disclose confidential, protected attorney-client
communications.
18

Multistate Performance Test
Model Answer
In re Hammond
In summary, the court should conclude that Walker may not be compelled to appear
before the grand jury to disclose her communications with Hammond about the fire, whether by
testimony or production of documents. Rule 1.6 of the Franklin Rules of Professional Conduct
prohibits Walker from making such disclosures in this case. Doing so would violate her ethical
duty to her client.
B. Rule 513 of the Franklin Rules of Evidence Does Not Require or Permit Attorney
Walker to Disclose Her Communications with Her Client William Hammond to the
Grand Jury.
Under Rule 513 of the Franklin Rules of Evidence (Rule 513), a client “has a privilege to
refuse to disclose and to prevent any other person from disclosing a confidential communication
made for the purpose of facilitating the rendition of professional legal services to the client.”
However, there is no such privilege if the client sought or obtained a lawyer’s services to help
further a crime or fraud.
In this case, all the communications between Walker and Hammond about the fire are
confidential and all of them were made for the purpose of facilitating the rendition of Walker’s
services as a lawyer to Hammond as her client. Therefore, all the communications at issue in this
subpoena are presumed privileged because they are confidential and are in fact privileged: all the
communications were made with a view toward the providing of legal services. Under Rule 513,
it is Hammond’s privilege; as his attorney, Walker would need Hammond’s explicit or implied
consent to disclose. Hammond has not provided any consent in this case; in fact, Walker asserts
that he wishes her not to disclose.
To rebut the presumption of privilege that exists as discussed in the comments to Rule
513, this court should apply the rule that the party claiming otherwise, in this case the Gordon
County District Attorney, must carry the burden of proof by a preponderance of the evidence.
But before the court can make that determination, the District Attorney must present evidence
which raises a substantial question as to whether the attorney-client communications are covered
by the crime-fraud exception to the Rule 513 privilege. In State v. Sawyer (Columbia Sup. Ct.
2002), the highest court of our neighboring jurisdiction squarely addressed this issue. The
Sawyer rule addresses the important interests involved by requiring that challenging parties
produce evidence that meets a “probable cause” standard before privileged materials can be
submitted to a court for an in camera determination of whether the crime/fraud exception may
19

Multistate Performance Test
Model Answer
In re Hammond
apply. This approach is appropriate and preferable to other resolutions such as that found in
United States v. Robb (15th Cir. 1999). This court should decline to follow the Fifteenth Circuit’s
conclusion that it only needed “some evidence” to support an inference that the crime/fraud
exception existed to require in camera court review of the attorney-client communications.
Although this issue has not been decided by Franklin courts, we urge the court to adopt
the Sawyer rule. The higher probable cause standard best protects the serious interests involved
in protecting attorney-client confidentiality, as it ensures that the confidential attorney-client
relationship will not be breached by mere inference and speculation. However, even if this court
were to follow Robb and require only “some evidence” to trigger in camera review, the District
Attorney would still not be able to meet her burden of proof.
On this record, the Gordon County District Attorney cannot carry her burden of proof by
the probable cause standard that any of the communications between Walker and her client
Hammond were not privileged by virtue of the crime-fraud exception to Rule 513. An
examination of all possible evidence on this issue will make this clear. The only evidence that
the District Attorney can show is the following:
(1) The building housing the Hammond Container Company was destroyed by fire on
May 10, 2010.
(2) Hammond owned the business and the building.
(3) Hammond had an insurance policy on the building.
(4) Hammond had sought and was rejected for a loan six weeks prior to the fire.
(5) After the fire, Hammond made inquiries with his insurance company about the
procedure for filing a claim.
(6) The Fire Marshal has classified the fire as suspicious in origin.
(7) After the fire, Hammond spoke to police.
(8) He then retained Walker on May 12, who advised him to refer any further police
questions to her.
(9) There is a discrepancy between what Hammond and his friend Gomez said happened
on May 10 th .
Nothing in the record supports an inference that Hammond sought or obtained Walker’s
services to further any crime or fraud to others. The fact is that Hammond hired Walker to
20

Multistate Performance Test
Model Answer
In re Hammond
represent after he was questioned by police. There are no facts—let alone “some evidence” or
“probable cause”—to support a finding that he hired Walker to further any crime or fraud.
Moreover, it is questionable what crime or fraud would be the basis for applying the Rule
513 exception. Assuming, purely for the sake of argument, that there is evidence that Hammond
set the fire at 20 South Main Street, he cannot be charged with arson under Fr. Criminal Code
§ 3.01 (Arson of Building) because he owned the building that burned down. That statute makes
it unlawful to damage by fire the building of another. Nor would § 3.02 (Arson of Building with
Intent to Defraud an Insurer) support disclosure using the crime/fraud exception. Hammond
hired Walker to represent him after the fire on May 10th. The Rule 513 exception applies when
the lawyer is retained to enable the client to “commit or plan to commit” a crime or fraud. If the
building was burned down with the intent of defrauding Mutual Insurance Company, that act
occurred before Hammond retained Walker to represent him, and so the representation would not
be in furtherance of a crime or fraud. See Sawyer. Finally, there is no evidence suggesting that
there are grounds to charge Hammond under Fr. Criminal Code § 5.50 (Fraudulent Claims). No
claim for the loss has been presented to Mutual Insurance. (It is notable that Robb involved a
complicated financial fraud—manipulating the price of stock on the New York Mining
Exchange. By contrast, filing a false insurance claim is hardly the type of fraud for which a client
would need the assistance of an attorney to commit.)
Even if this court were to apply the lower “some evidence” standard to trigger in camera
review, the same result is warranted. To assume that Hammond hired Walker because he was in
the midst of a fraudulent scheme simply begs the question because whether Hammond is so
involved is the very question to be decided. Even innocent people are entitled to legal
representation.
Further, if this court were to require Walker to disclose her communications for the
limited purpose of allowing the court to determine if the communications were privileged or nonprivileged,
the result should be the same: this testimony should not be compelled over the
client’s objection at a grand jury hearing. The ultimate burden of proof for defeating the
attorney-client privilege—a preponderance of the evidence—cannot be met in this case. As was
the case in Sawyer, any evidence supporting an inference that the attorney was retained to
facilitate a crime or fraud will be offset by “an equally strong inference that [Hammond] retained
[Walker] to ensure that his choices were informed.” Sawyer.
21

Multistate Performance Test
In re Hammond
case.
Model Answer
For these reasons, the crime/fraud exception to Rule 513 should not be applied to this
Conclusion: No Reasonable Interpretation of Franklin Law Requires or Permits
Attorney Walker to Testify before the Grand Jury.
In light of the foregoing, the court should find that Walker may not be compelled to
appear before the grand jury to disclose her confidential communications with her client
Hammond. Such disclosure would violate Rule 1.6 of the Franklin Rules of Professional
Conduct and Rule 513 of the Franklin Rules of Evidence relating to attorney-client privilege.
Moreover, there is insufficient evidence to support further inquiry into this issue. The court is
respectfully requested to quash the subpoena against Attorney Walker.
22