How to Attack an MPRE Question

The Multistate Professional Responsibility Exam, or MPRE, is required for admission to the bar in most states. The MPRE has 60 multiple-choice questions, consisting of a brief fact pattern and 4 answer choices. Students have 2 hours to complete the exam, which works out to exactly 2 minutes for each question. Quimbee’s MPRE course can help you conquer the MPRE.

The MPRE tests issues related to legal ethics and professional conduct. The test is based on the American Bar Association’s Model Rules of Professional Conduct and the Model Code of Judicial Conduct. There are 12 subject areas tested. The 6 most heavily tested subjects are regulation of the legal profession; the client-lawyer relationship; client confidentiality; conflicts of interest; competence, legal malpractice, and other civil liability; and litigation and other forms of advocacy. These 6 subjects combine for around two-thirds of the MPRE questions. The remaining 6 subjects are transactions and communications with persons other than clients, different roles of the lawyer, safekeeping funds and other property, communications about legal services, lawyers’ duties to the public and the legal system, and judicial conduct.

Let’s examine a Quimbee-authored MPRE-style question to understand how best to approach the MPRE.

An attorney represented a plaintiff in an age-discrimination lawsuit against a business. The plaintiff had approached the attorney after the statute of limitations for filing an age-discrimination suit had passed. However, the attorney argued that the statute of limitations should be tolled based on the plaintiff’s delayed discovery of the business’s discriminatory practices. A recent decision from the state’s intermediate court of appeals interpreted the state’s gender-discrimination law as not permitting the tolling of the statute of limitations based on the plaintiff’s delayed discovery. The statutory language of the state’s gender-discrimination law was nearly identical to that of the state’s age-discrimination law.

Assuming the opposing party does not cite the appellate court’s decision, must the attorney notify the court of the decision?

a.      No, because the decision is not directly adverse to the plaintiff’s position.
b.      No, because the decision could be appealed to the state supreme court and is therefore not controlling legal precedent.
c.      Yes, because the court would almost certainly apply the appellate court’s reasoning to find that the age-discrimination statute also did not permit tolling.
d.      Yes, because an attorney has a duty to disclose all adverse authority that would potentially undermine the attorney’s position.

One strategy to budget your limited time for the MPRE is to read the question prompt and answer options before reading the question. By doing this, you’ll know what the question is testing and which facts from the fact pattern are most important.

Here, the prompt asks whether the attorney must notify the court of an appellate-court decision. So, this question is likely testing the lawyer’s duty of candor to the tribunal. Recall that one aspect of the duty of candor is that a lawyer must disclose any controlling, adverse authority that has not been cited by the opposing party. Now, let’s move on to the answer options and see if we can provisionally eliminate any of them.

Answer option A says that the lawyer doesn’t have to notify the court of the decision because the decision is not directly adverse to his position. This answer option sounds like it could be correct because it accurately states the legal principle. However, we don’t yet know from the fact pattern whether the decision is directly adverse or not.

Answer option B says that the lawyer doesn’t have to disclose the appellate court’s decision because it could still be appealed. This should strike you as likely incorrect—appellate-court decisions are binding authority even if subject to further review. Unless the fact pattern indicates something unusual—such as that the state supreme court vacated the decision pending appeal—you should consider this answer option as likely incorrect.

Answer option C makes a statement about the facts. You’ll have to read the fact pattern to determine whether this answer option might be correct.
Finally, answer option D makes a purely legal statement—that a lawyer has a duty to disclose all adverse authority. This is an incorrect statement of the law. A lawyer’s duty to disclose adverse authority is limited to controlling, adverse authority, not persuasive or nonbinding authority. We can eliminate this answer option.

Now, read the fact pattern. The fact pattern indicates that the lawyer represents a client suing for age discrimination and that the appellate-court decision at issue concerns a different but similar statute relating to gender discrimination. Remember, only controlling authority that is directly adverse to the client’s position must be disclosed. Because the appellate-court decision interprets a different statute, it’s not directly controlling, even though its interpretation is likely to be persuasive.

Going back to our answer options, we can now see that answer option A is correct. The conclusion in answer option C—that the trial court would likely apply the same reasoning to the age-discrimination statute—is probably accurate. But the question isn’t about what the trial court will do; it’s about whether the lawyer must disclose the appellate-court decision. Under the Model Rules, the lawyer has no duty to disclose the adverse, but not controlling, decision.

The above example shows one strategy for attacking an MPRE question to get the correct answer. The more you study, the more tactics you’ll learn. Quimbee’s free MPRE course provides beautifully designed video lessons; a comprehensive, expert-written outline; advanced performance statistics; and a study calendar to help you stay on track. Tackle practice questions your way with bite-sized quizzes and full-length practice exams. Click here to get Quimbee MPRE Review for free.

You can also click here to watch the live recording of Mastering the MPRE—an informational webinar highlighting what you need to know about the MPRE and how you can prepare for success.