Sunday, October 7, 2012

Question 2: When Hal met Wendy (Community Property) California Bar Exam

This is a fastball question, which was kind of funny.  How many unpaid lawyers out there would love to be able to get mortgages on client property in exchange for legal services?  Actually California permits this in divorce proceedings (CFC 1102e).  Who knew?

Wendy and Hal are married and live in California. A year ago, Wendy told Hal that she would not tolerate his drinking any longer. She insisted that he move out of the family home and not return until he completed an alcohol treatment program. He moved out but did not obtain treatment.  
Last month, Hal went on a drinking spree, started driving, and struck a pedestrian. When Wendy learned of the accident, she told Hal that she wanted a divorce.  
Hal has consulted Lawyer about defending him in a civil action filed by the pedestrian. He is currently unemployed. His only asset is his interest in the family home, which he and Wendy purchased during their marriage. Lawyer offered to represent Hal if Hal were to give him a promissory note, secured by a lien on the family home, for his fees. Hal immediately accepted. 
1. Is Wendy’s interest in the family home subject to damages recovered for injuries to the pedestrian? Discuss. Answer according to California law.  
2. Is Wendy’s interest in the family home subject to payment of Hal’s legal fees? Discuss. Answer according to California Law.  
3. What, if any, ethical violations has Lawyer committed? Discuss. Answer according to California and ABA authorities.

I.  Community Property

California is a community property state.  All property and debts obtained in marriage is community property, except (i) property acquired prior to marriage; (ii) property acquired during marriage by gift or inheritance; and (iii) property designated as nonmarital through an agreement between spouses.. All property obtained by either spouse either before the marriage or after separation is separate property.  At divorce, each spouse is entitled to half of the community property and all of their separate property unless an exception applies.

Here, "Wendy and Hal are married...." Therefore community property laws apply.  They never divorced and never separatated.  However, Hal did "move[] out."  This is considered "living separately" under the California Family Code (CFC).

II. Wendy's interest in the home.

The issue is whether Pedestrian (P) can attach a money judgment to Wendy's interest in the family home.  Generally, the debts (such as tort judgments) of one spouse can be attached to any community property.  However, when "living apart" leads to "divorce" or separation, it is considered the constructive end of the marriage for the purpose of creditor.  Generally, Wendy's interest could not be touched.  However, if Hal and Wendy reconciles then they are no longer living apart and Wendy interest can be attached.  The disposition of this issue depends on future events that have yet to unfold.

III.  Wendy v. Lawyer

The issue is whether a spouse can mortgage the entire community property without another spouse being aware of this.  California does not allow only one spouse to encumber property for more than one year without the consent of the other spouse (CFC 1102).  Therefore the conveyance is invalid and Lawyer has no rights to Wendy's interest in the house.

IV. Lawyer issues

The issue is whether Lawyer violated the ABA Model Rules (MR) or California rules (CR).  Both MR and CR prevent a lawyer from using his position of influence to have an inverse adverse to a client.  Here, MR forbids a lawyer from having a simultaneous interest in property with a client without signed informed consent stating that the client had an opportunity to speak with another attorney. CR forbids a lawyer from taking an interest in a community asset except as payment for a dissolution action.  Lawyer has violated CR and MR by, at the very least, failing to obtain informed consent before entering into this self-interested transaction because Hal "accepted immediately".


  1. The leading city in California is Los Angeles, and in the LA County, there are more than 10,000 Los Angeles attorneys who are affiliates of the State Bar of California. With so many cities in the LA County, how can one find the right divorce attorney in LA to help with a divorce or child custody case? Take a look at-los angeles probate lawyer

    1. Great Article Cyber Security Projects projects for cse Networking Security Projects JavaScript Training in Chennai JavaScript Training in Chennai The Angular Training covers a wide range of topics including Components, Angular Directives, Angular Services, Pipes, security fundamentals, Routing, and Angular programmability. The new Angular TRaining will lay the foundation you need to specialise in Single Page Application developer. Angular Training

  2. I accept there are numerous more pleasurable open doors ahead for people that took a gander at your and safety course in chennai

  3. Wow, great article! Great work man i would like to congratulate you on this effort

  4. I really appreciate this post. I’ve been looking everywhere for this! Thank goodness I found it on Bing. You’ve made my day! Thanks again! Divorce procedure in pakistan

  5. I must thank you for posting this blog because the topic is very much in demand today and everyone wants to read about lawyers, thanks for such great post as we provide Car Accident Lawyer Jefferson, which is available for you to provide justice.

  6. Hi there, I read your blogs on a regular basis. Your humoristic style is witty, keep it up! Thank You for Providing Such a Unique and valuable information, If you are looking for the best st petersburg car accident attorney,then visit Coleman Law Group. I enjoyed this blog post.

  7. Nice Post For me and It is a very different blog than the usual ones I visit. From this post , I get more knowledge and I read a lot of interesting content here. Thanks for sharing a knowledgeable post. Houston divorce lawyer

  8. An attorney with experience in cases similar to yours is more likely to grasp the ins and outs of what you face. Every type of case comes with nuances and subtleties that impact the outcome.

  9. I am glad to found this post, it's a good one. I am always looking for quality posts, I hope you will be adding more in the future. thanks for this.Lawyers in Orange Park Florida

  10. Excellent post. I really enjoy reading and also appreciate your work. This concept is a good way to enhance knowledge. Keep sharing this kind of articles, Thank you. Louisiana Adoption Lawyer

  11. Your blog is awfully appealing. I am contented with your post. I regularly read your blog and its very helpful. If you are looking for the best Legal Help, then visit Enso Legal. Thanks! I enjoyed this blog post.

  12. Great job for publishing such a nice article. Your article isn’t only useful but it is additionally really informative. Thank you because you have been willing to share information with us. Divorce attorney Houston

  13. You've provided some very useful information about bluffton divorce attorney.I'm glad I came into this article because it provides a lot of important information. Thank you for sharing this blog with us.

  14. You've provided quite good information here. This is fantastic since it expands our knowledge and is also beneficial to us divorce in oklahoma. Thank you for sharing this piece of writing.

  15. I found decent information in your article.divorce online I am impressed with how nicely you described this subject, It is a gainful article for us. Thanks for share it.