by Stephanie Martin Halford
We’ve all witnessed a DUI checkpoint – usually on a holiday weekend where significant drinking is expected. The checkpoint is in place to ensure that people with the ability to drive do so responsibly. Well, consider the Multistate Professional Responsibility Examination (“MPRE”) the checkpoint legal professionals have to pass in order to take their developed lawyering skills from the classroom into the courtroom. The MPRE is a required pause to ask freshly educated lawyers how they intend to apply their newfound skills and knowledge. Apply those skills ethically? You pass. Are your ethical evaluations questionable? No license for you.
Don’t get me wrong – failing the MPRE does not automatically imply you are unethical. The exam tests your knowledge of the Rules of Professional Responsibility, not your moral compass. Multiple choice exams also might not be your thing. To avoid falling for the MPRE test makers’ tricks, here are three basic principles to keep in mind.
First, the question is less important than the answer options. Before you even read the question, read each possible response carefully to see if any answer can be preliminarily excluded because they make an incorrect statement of law or fact or do not deal with an ethical rule. Draw a short slash through any answers that you believe can be excluded on these grounds. Do not, however, completely obliterate the answer (just in case).
Second, find the call of the question and read it before the fact pattern. (Hint – it is usually at the bottom of the question.) This is particularly important if it is a long fact pattern, which is commonly the case on the MPRE. Sometimes the call of the question is basic – has their been an ethical breach? Other times it directs your attention to a specific rule or action – is the attorney subject to discipline if she follows the client’s instructions? Follow the call of the question and avoid the “red herring” distractions test makers love to include. For example, if the call tells you the question is about client instructions, go to the answer options and draw a slash through any options not dealing with client instructions. Again, treat this as a preliminary exclusion and be careful not to completely disregard the answer choice.
The third principle pertains only to the MPRE or any other test question addressing professional responsibility. Always find a breach. Always. Let me repeat this – if the question wants to know if there is a breach, find a breach. It may be that the answer to a few professional responsibility questions is “the lawyer has done nothing wrong”, but this is not the norm. The purpose of the MPRE is not to test your ability to find a way out for your client (the lawyer) but whether you are ethical enough to identify behaviors that should not be tolerated in the legal profession. If you cannot demonstrate that you understand what behavior goes against the Rules of Professional Responsibility, you’ll struggle to get that license. Err on the side of caution and find that breach!
Are you having trouble identifying the breach? Duty of care and duty of loyalty are often safe bets because they usually at the heart of most ethical conundrums; however, test makers for the MPRE may be looking for the more specific breaches. For that reason, I highly recommend finding a quality test preparation guide specific to the MPRE.
To find a quality study guide, I recommend you start with the National Conference of Bar Examiners (“NCBE”). NCBE provides a free MPRE Subject Matter Outline (note: it does not give details on rules), a list of MPRE Key Words and Phrases, and sample test questions online. They also offer an Online Practice Exam for $35. This exam has 60 questions drawn from actual MPREs administered recently (these questions have been retired from the MPRE and will not reappear on future MPRE exams). This is also helpful because there are explanations for each answer in the event you miss a question and need to know why.
I also recommend that you find a detailed outline to use as your study guide. You might decide that you can rely on your self-created study guide from your Professional Responsibility Course. But, what if you revisit your notes and they are terrible? Or, more commonly for MSJDN’ers – what if your Professional Responsibility Course was taken six years ago and you’ve PCS’ed to a new jurisdiction and your prior MPRE results have expired or don’t satisfy this jurisdiction’s minimum passing score requirement? In either circumstance, don’t worry. There are several commercial study guide options that are available online. Kaplan‘s MPRE review course comes with a downloadable outline and course materials. (I used the Kaplan outline five years after law school when we PCS’ed to a new location. I studied for only three days before the test, and still managed to pass with a high score.) Barbri has a free online MPRE Review Course available. Another popular option for bar takers on the move is Themis Bar Review, which has a free MPRE option accessible. If you are worried to utilized study options that are free, don’t be. Test preparation companies make their real money on bar preparation – the MPRE prep being free is often just to lure you in.
The next MPRE will be given on March 19, 2016. There is still time to study, especially if you are a practicing attorney looking to move into a new jurisdiction. If you’re a newbie – stay calm. The key to being a good lawyer is simple – maintain your cool; listen (or read) carefully; and use your training and common sense when giving a response. The MPRE is no different and with a little preparation you’ll pass this checkpoint and go on to lawyering ethically.