MPT Grading Materials July 2010 - Oregon State Bar

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