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78 Cards in this Set

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Regulating Lawyers
NY Rules of Professional Conduct
Complaints investigated by the grievance committee of one of the four departments of the appellate division
Regulating Lawyers
NY Rules of Professional Conduct
Complaints investigated by the grievance committee of one of the four departments of the appellate division
Discipline that can be imposed on a NY attorney
1- Admonition: slap on the wrist of the grievance committee, not public
2- Public or Private censure by the courts
3- Suspension: cannot share legal fees or practice
4- Disbarment
Also malpractice by clients, third parties, in the supreme court
Discipline that can be imposed on a NY attorney
1- Admonition: slap on the wrist of the grievance committee, not public
2- Public or Private censure by the courts
3- Suspension: cannot share legal fees or practice
4- Disbarment
Also malpractice by clients, third parties, in the supreme court
Admission to the profession
USSC: state requirements for bar admission have to be rationally related to the practice of law
- graduation from an accredited law school
-IN NY: one year of law school and studied under the supervision of a NY attorney for 3 years
Admission to the profession
USSC: state requirements for bar admission have to be rationally related to the practice of law
- graduation from an accredited law school
-IN NY: one year of law school and studied under the supervision of a NY attorney for 3 years
NY Bar Admission
1- Pass written bar and MPRE
2-Graduated from an ABA accredited law school
3- Been admitted to practice in another state AND reciprocity
4- Practiced law for at least 5 of 7 years proceeding
5- Good Moral Character
6- Duty to fully cooperate with admission authorities
7- Must report conduct involving moral turptitude
NY Bar Admission
1- Pass written bar and MPRE
2-Graduated from an ABA accredited law school
3- Been admitted to practice in another state AND reciprocity
4- Practiced law for at least 5 of 7 years proceeding
5- Good Moral Character
6- Duty to fully cooperate with admission authorities
7- Must report conduct involving moral turptitude
Regulation after Admission
- By highest court and agencies
- Self regulation
*Lawyer must report substantial rule violations by another lawyer
*Lawyer must be available to testify
When lawyer learns of bad conduct of another lawyer through client representation, confidentiality trumps reporting duty, but he may not recommend the lawyer for admission to another state
Regulation after Admission
- By highest court and agencies
- Self regulation
*Lawyer must report substantial rule violations by another lawyer
*Lawyer must be available to testify
When lawyer learns of bad conduct of another lawyer through client representation, confidentiality trumps reporting duty, but he may not recommend the lawyer for admission to another state
Multi-Jurisdictional Practice
Discipline
Discipline by one state- other states make an independent determination BUT most give some effect to sister state's determination on basis of comity, reciprocal discipline
Permissible types of temporary multi-jurisdictional practice
-Associate with an active local lawyer
- Special permission: pro hac vice
- Mediation
- Reasonably related to home state practice
-Multi-state Firms: Lawyer only practices where admitted and firm letterhead indicates states of attorney's admission
Choice of Law in Multi-Jurisdictional Matters
IF NY ONLY: NY Rules apply
IF NY AND ANOTHER STATE: State of Principal practice UNLESS predominant effect is in another state
Client's Decisions: Substantive legal import
1. Commence an action, Settlement, appeal, choosing between a jury and bench trial
2. Testifying in a criminal Case
Attorney's Decisions: strategy, procedure and tactic
1. Discovery methods
2. Granting adjournments that do not prejudice the rights of the arty
Attorneys must abide by the client's wishes unless doing so would be illegal, unethical or immoral
*If client loses the ability to make a clear decision or is a minor MUST HAVE GUARDIAN
IN NY, AN ATTORNEY CAN TAKE PROTECTIVE ACTION AND SEEK TO SUBSTITUTE JUDGMENT FOR A CLIENT IF
1. Client has diminished capacity
2. is at risk for substantial harm
3. AND cannot adequately act in her own interests
Rejecting cases
Lawyers have the right to reject all cases, although they should take cases involving oppressed or defenseless clients and should do pro bono
Attorneys MUST withdraw from representation
1. Lawyer knows it will result in violation of rules or laws
2. Lawyer suffers physical or mental disability
3. is fired
4. Client is taking steps to harass or injure another
Attorneys MAY withdraw from a representation
1. Frivolous Claim
2. Lawyer reasonably believes client's course of action is criminal or fraudulent
3. Client deliberately disregards an agreement to the lawyer as to expenses or fees
4. Client uses services to perpetrate crime or fraud
5. Lawyer's continued employment is likely to result in the violation of a RPC
6. Lawyer's inability to work with co-counsel indicates that the best interests of the client are served by withdrawal
Competence Includes
1. physical and mental
2. Knowledge in the substantive law
3. Having sufficient time to devote to the matter
Can over come lack of competence by association with a competent lawyer or becoming competent
What is the practice of law
Every activity that requires a license:
-Appearances in judicial actions
-drafting legal documents
-Settling cases for clients
Hindering a lawyer's future right to practice: A lawyer may not enter a non-compete agreement EXCEPT
1- An agreement concerning benefits on retirement OR
2- in a sale of a law practice
A firm name must
not be misleading
- no trade names
- can include deceased partner if he worked there while alive
Advertising as a Specialist
1- If certified by a private organization approved by ASA or NYS AND
2- Certifying organization is identified in ad AND
3- Lawyer states that certifying organization is not affiliated with any governmental authority, not required for practice of law in NY, and does not indicate greater competence
Advertising defined
Any public or private communication made by or on behalf of a lawyer or law firm about the lawyer or services with the primary purpose of retaining the lawyer or firm
Ads must include
- Name, principal address and phone number
-Must be clearly legible and capable of being read by the average person and understood if spoken
- "Attorney advertising" must apper on the first page
Ads MAY include
-education
- dates of admission and areas of practice
- public offices and teaching positions held
- memberships in bar associations and other professional organizations
-Foreign language FLUENCY
- names of regularly represented clients with written consent
- acceptable credit arrangements and participation in group or prepaid legal services
- Legal fees, contingent fee rates, range of fees for services, hourly rates, fixed fees
-Bona fide professional ratings
- expectation about results
-compare services with other lawyers
- testimonials former clients
MUST contain disclaimer: PRIOR RESULTS DO NOT GUARANTEE SIMILAR OUTCOME
Domain names do not have to include the name of the lawyer/firm provided
- all pages clearly include the actual name of the lawyer/firm
- Lawyer/firm in now way attampts to engage in the practice of law using the domain name
- the domain name does not imply an ability to obtain results in the matter
Misleading Ads include
promised outcomes and ability to achieve results of improper influence or clout
Contingent Fees
must clearly state terms and basis of rate
Make it clear in advertising whether the client will be responsible for any costs and that they are not permitted in all cases
Rule on Soliciting Clients
Lawyer shall not engage in solicitation (any advertisement) initiated by or on behalf of a lawyer/law firm that is directed to or targeted at a specific person, or their family or legal representatives with the primary purpose which is the retention of hte lawyer/law firm and with a significant motive of pecuniary gain by in person or telephone contact, real time or interactive computer accessed communication unless the recipient is
1. a close friend
2. relative
3. former client
4. existing client
EXCEPT no solicitation in any form is permitted if the recipient has made known a desire not to be solicited
Targeted Mail
may be sent to groups likely to need legal services
Attorney Advertising must be stated
Specific contents of targeted mail
1- retainer included: "do not sign"
2- apply to lawyers not admitted in NY who solicit NY residents
3- Pre-determined recipients must disclose how the attorney learned the recipients identity and need for legal services (list of names and addresses must be kept for 3 years)
No solicitation for personal injury or wrongful death matters before
30 days after the incident, unless a filing is required in less than 30 days, in which case, no unsolicited communication after the 15th day after the incident
Client Secrets
maintain confidences of prospective, current and former clients about anything derogatory, embarrassing or hurtful no matter what the source
Terminate a client relationship in a manner that does not prejudice
reasonable advance notice
return file and any unused portion of the retainer
Exceptions to confidentiality
1. Rules laws, or court order
2. To obtain legal or ethical advice for lawyer, use hypothetical
3. To prevent client from committing a crime
4. To prevent reasonably certain death or substantial bodily harm, allows lawyer to protect third parties
5. To rectify a fraud on a tribunal committed by the lawyer's own client***
6. Disclosure expressly authorized to advance best interest of a client
Trial Publicity- restraints on public statements
No statement may be made by a lawyer that a reasonable person would expect to be disseminated re:
1- character, reputation or criminal record
2- identification of witness or expected testimony
3- possibility of a guilty plea, existence of a confession, and opinion as to guilt or innocence
4- information lawyer knows will be inadmissible as evidence
5. fact that defendant is charged with a crime unless stating it as merely an accusation and that the defendant is presumed innocent
Lawyer's may publicly state
1- facts
2- warning of danger
3- in criminal case: information necessary to aid in apprehension of accused
4- right to reply: to protect a client from substantial prejudicial effect of recent publicity not initiated by the lawyer or client
Conflict of Interest Basic Rule
Lawyer must avoid conflicts and exercise independent professional judgment
Steps required when a conflict of interest exists
1- explain conflict and risks to client
2- ensure representation is not prohibited by law
3- obtain consent in writing
After these steps, decide if lawyer can provide competent and diligent representation
Lawyers do not testify on behalf of their clients unless testimony relates to
1- uncontested matter
2- nature and value of legal services
3- a matter of formality
Conflict of interest and prospective client
a person who communicates with a lawyer for the purpose of disqualifying the lawyer from handling a materially adverse representation on the same or a substantially related matter is not a prospective client
Interest in publication rights related to case subject matter
are prohibited.
Mortgage on real property
usually, not allowed
NY EXCEPTION: IN DOMESTIC RELATIONS MATTERS A LAWYER MAY TAKE A LIEN ON REAL PROPERTY OR OBTAIN A SECURITY INTEREST TO SECURE HIS FEE IF:
1- retainer provides that security interest can be sought
2- notice for application for security interest is given to other spouse
3- court approves the security interest
BUT an attoeney shall nto foreclose on a mortgage placed on a marital residence while the spouse who consents to the mortgage remains the titleholder, and it is the primary residence
Lending money
a lawyer cannot advance any financial assistance to a client in litigation except court costs and expenses of litigation
EXCEPTION, NY ALLOWS to pay court costs and expenses of litigation for indigents and pro bono clients
Fee payment by a third party
is allowed, but take direction from client, not payer
Doing business with clients
generally prohibited unless fair and reasonable client:
Client should be:
1- fully informed of terms of transaction in writing
2- advised in writing to review transaction with independent lawyer
EXCEPTION: standard commercial or other ordinary transactions are ok
Lawsuits between current and former clients:
you may represent a current client in an action against a former client except:
1- when your current client wants youto sue your former client involving a matter or transaction in which lawyer represented the former client OR
2- when during representation of the former client you learned confidential information that is now relevant to the action by the current client
Current client vs current client
In a current matter, don't do it even with consent
As the lawyer for a corporation or a partnership you represent
the entity, not any individual
1- duty to proceed as is reasonably necessary to protect the best interests of the organization and report violations to a higher authority within the organization
2- duty to report securities violations up the chain of command to the CEO
3- If not appropriate response, must report to the board and outside authority
4- may reveal confidential information to extent necessary to protect client and lawyer has discretion in this regard
5- Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing confidential information to persons outside the organization
Representing the insured
not the insurance company paying the bills
Letter of engagement must be sent to insurer and insured/client
Handling money, lawyer has the duty to
explain full the reasons for the fee
keep fee reasonable and note that state bars cannot set minimum or maximum fee schedules
EXCEPTION: Medical malpractice set by legislature
Ratifying a fee agreement
a client may ratify an attorney's fee agreement during a period of continuous represntation even if attorney misconduct occurs during the period so long as the client's ratification is not procured as a result of the misconduct
A fully-informed client who knowingly and voluntarily affirms an existing fee arrangement that might otherwise be considered voidable, can ratify, so long as
client has a full understanding of facts and knowledge of their rights as a client
Cannot charge contingent fees
in criminal matters
in domestic relations matters
IN NY, after representation is over, the lawyer must provide client with a written closing statement stating the outcome of the matter and computing the fee, filed with the appellate division
Written letter of engagement if fees are projected to be $3000 or more the fee agreement must be in writing
Not applicable if services are of the same general knid previously provided to client or domestic relations, but must include:
1-scope of legal services to be provided
2- explanation of fees
3- Expenses and billing practices
4- Notice of client's rights to arbitrate fee dispute
EXCEPT
- fee less than $3000
- Services are of the same general kind as previously rendered to and paid for by the client
- Attorney has no office in NY and is admitted in another jurisdiction or no material portion of services are performed in NY
4- a domestic relations matter, a more specific letter is required
Requirements In domestic relations matters
1- fee arrangement must be in writing signed by lawyer and client
2- lawyer must provide prospective client with a statement of client's rights and responsibilities at the initial conference and prior to the signing of a written retainer agreement
3- no non-refundable fees in domestic relations matters
4- cannot use contingency fee to collect unpaid alimony or child support
5- Fee disputes in domestic relations matters must be resolved by arbitration at the election of the client
6- Periodic billing must be sent out every 60 days and at the conclusion of case, attorney must send back any unused portion of the retainer
Relationship with the non-lawyer
Lawyer cannot be partner with a non-lawyer if any part of the partnership involves the practice of law
1- Never divide a legal fee with a non-lawyer
*Except salaries, retirement plans, bonuses, profit sharing, spouses of deceased partners
2. BUT can share office space, so long as physically separate and appears so, no coercion
Referral fees from a lawyer with another firm
prohibited
Retainer, 2 types
1- advance on fees: belongs to the client, goes into trust account
2- availability or general retainer: belongs to attorney, goes into lawyers account
2 types of accounts every lawyer must have
1- operating; firms account, lawyer's money
2- client trust: only client's money goes here, but bank fees can be covered by lawyer's money
General rule of client trust accounts
Have one, use it, keep records of its use, and don't mix up your clients trust account with your operating account
1- account must be in a bank in NY
2- Funds to maintain the account are the only lawyer funds that can be put into a Client Trust Account
3- For small sums accumulating interest is swept out and sent to NY IOLA fund
4- Dishonored check reporting: Client funds must be placed at bank that will provide this when check bounces. A
Fee dispute and resolution program- In NY, a civil matter, fee disputes between lawyer and client are subject to
arbitration at the client's option
Except
1- Criminal matters
2- if amount in dispute is less than $1000 or more than $50000
3- dispute involves malpractice
Responsibility of a subordinate lawyer
must follow rules even if acting at another's direction
No violation if you follow supervisor's instructions on an arguable question of professional duty
Responsibility of Supervising lawyer/partner
must abide by these rules and ensure all lawyers and non-lawyers acting at their direction conform to the rules
Ex Parte communications during trial with jury
Cannot speak to a juror about any issue
Bu after trial ok unless
1- its prohibited by court order
2- juror does not want to talk
3- purpose is to harass juror
Ex Parte communications during trial with judge
can't communicate with judge other than deminimus communication or in a settlement conference
Ex Parte communication during trial with adversarial party
no communications with represented client
Ex Parte communications during trial with witnesses
Generally no limitations, if witness is high level corporate officer, corporate employee whose liability can be imputed to corporation, you must obtain corporate counsel permission
Adverse Authority
A lawyer has an affirmative duty to disclose contrary or adverse authority, which means case law or statute directly adverse but dyty does not extend to facts or witnesses adverse to client's position
In an Ex Parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will make the tribunal
make an informed decision, whether or not the facts are adverse to a lawyer's client
Special duties of the prosecutor
1- proceed only on probable cause
2- must disclose in a timely manner evidence tending to negate the guilt of the accused or which could mitigate the degree of the offense or reduce the punishment
Voluntary Pro Bono Service: strongly encouraged to
provide 20 hours in pro se representation per year;
contribute financially to organizations that provide such services
A lawyer must uphold the integrity of the profession and its members by not making
unfair or derogatory remarks to other lawyers and not giving or lending any itmes of value to a judge or other public official except as permitted by the Code of Judicial conduct, contribution to a judge's campaign is ok
Every attorney shall file a registration statement
every 2 years when duly admitted to the NY Bar. public record on submission of a written request
Civil Professional responsibility standard
a lawyer must represent his client zealously within the bounds of the law and make only meritorious claims and contentions
Criminal Professional Responsibility Standard
A lawyer must represent his client zealously within the bounds of the law but may defend the proceeding so as to require every element of crime to be established.