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53 Cards in this Set
- Front
- Back
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What is the source of rules regulating lawyers, and who investigates complaints of attorney misconduct? |
NY Rules of Professional Conduct
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What Discipline that can be imposed on a NY attorney? |
(1) Admonition: slap on the wrist of the grievance committee, not public (5) Subject to malpractice claims by clients, third parties, in the Supreme Court ---violation of NY Rule of Professional Conduct is relevant evidence of malpractice |
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Regulation after Admission
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SELF-REGULATING profession:
If lawyer (a) knows of another lawyer's violation, and (b) the violation raises a substantial question as to lawywer's honesty, trustworthiness, or fitness as lawyer: (1) Must report violation to grievance committee or court (2) Must also cooperate in the investigation (3) EXCEPTION: duty of confidentiality while representing that lawyer as a client
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Multi-Jurisdictional Practice |
(1) NY may punish lawyer admitted to NY bar even if misconduct occurred outside NY (2) Discipline by another state permits NY to impose reciprocal discipline for the same conduct
CHOICE OF LAW: Conduct in connection with litigation proceeding where lawyer was admitted: (1) Rules of the jurisdiction in which the court sits apply (i.e. NJ proceeding - NY applies NJ proceeding to punish)
For every other matter: (1) Lawyer only admitted to NY = NY law governs (2) Lawyer admitted to NY and another state: (a) Apply rules of state where lawyer principally practices, UNLESS (b) Conduct's predominant effect is in another state = apply that state's rules |
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Restrictions on lawyers |
(1) May not aid non-lawyer in unauthorized practice of law (i.e. helping lawyer not admitted to NY bar to practice in NY)
(2) No non-compete agreements: May not enter into partnership, employment, or similar agreement that restricts right of lawyer to practice after termination of the relationship EXCEPT: ---agreement concerning benefits on retirement, or ---sale of law practice EXAMPLE: lawyer leaving firm to start solo may not agree to not compete with that firm (unless concerning retirement benefits or selling law practice)
(3) May not participate in settlement of client's matter that restricts lawyer's right to practice in the future (i.e. cannot agree to settle products liability case if lawyer agrees to refrain from bringing future actions against the company) |
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In a lawyer-client relationship, who may make what decisions? |
CLIENT: (1) Deicisions of substantive legal import ---Commence an action, Settlement, appeal, choosing between a jury and bench trial
LAWYER: (1) Strategy, procedure, tactics ---discovery methods ---Granting adjournments that do not prejudice the rights of the party (2) May take reasonably necessary protective action and seek appointing of guardian if: (a) Client has diminished capacity (i.e. minor), and
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When may attorneys accept representation? |
(1) Lawyers have the right to reject all cases, though should do their share of pro bono
(2) May only take cases she is COMPETENT to handle: (a) physical and mental (b) competence in substantive law (c) sufficient time to devote to matter EXCEPTION: ---may associate with competent lawyer OR become competent in the area
(3) Lawyer may limit scope of representation if (a) reasonable limit and (b) client gives informed consent
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What are the rules for attorney withdraw from representation? |
MUST withdraw:
MAY withdraw: |
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What are the limits on firm names and identifying their specializations? |
FIRM NAME: (1) Can not be misleading (2) Trade names not permitted (i.e. "Law Firm of NY", "AAA Legal Clinic")
SPECIALIZATION: (1) May identify areas the lawyer practices, or state that firm is limited to certain areas of law (2) May NOT hold self out as SPECIALIST UNLESS: (a) Certified by private organization approved by ABA or another state, AND (b) states that certification is not recognized by any NY authority |
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What constitutes lawyer advertising? |
(1) Any public or private communication (2) made by or on behalf of a lawyer or law firm about the lawyer or services (3) with the primary purpose of retaining the lawyer or firm
EXCEPTIONS: (1) Communication to existing clients (2) Communication to another lawyer |
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What MUST ads include? |
(1) Name, principal address and phone number ---may contain monikers that do not violate rules
---website: home page ---email: subject line
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What must Ads NOT include? |
(1) Paid endorsement/testimonial without disclosing person is being compensated (2) Actors to portray lawyer, firm members, clients, events without disclosure |
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What is a "misleading" ad? |
Misleading if EITHER: (1) omits a fact necessary to make lawyer's communication, as a whole, not materially misleading, OR (2) SUBSTANTIAL likelihood it will lead a reasoanble person to make a specific conclusion about the lawyer/services/result for which there is NO REASOANBLE FACTUAL FOUNDATION |
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Ads MAY include |
May include the below so long as TRUE AND NOT MISLEADING: (1) education, public offices and teaching positions held (2) Bar admission and membership (3) Areas of practice (4) Foreign language fluency (must actually be fluent) (5) names of regularly represented clients with written consent (7) Bona fide professional ratings that are unbiased and nondiscriminatory
If include DISCLAIMER "prior results do not guarantee a similar outcome": (1) statements reasonably likely to create expectation about results lawyer can achieve (2) statements that compare lawyer serices with those of another lawyer (3) testimonials or endorsements of clients of former clients (4) Statements describing quality of lawyer or firm's services |
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What are the rules for domain names?
Computer-accessed ads?
TV/Radio Ads? |
DOMAIN NAMES: (1) domain name does not have to include name of lawyer/law firm (2) all pages clearly and conspicuously include the actual name of the lawyer/firm
COMPUTER-ACCESSED ADVERTISEMENTS: (2) Must be retained for 1 year
TV/Radio: (1) Lawer must approve (2) include name, address, phone of lawyer/firm (3) Kept for 3 years |
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Rule on Soliciting Clients |
NO SOLICITATION: (1) 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, and (2) with the primary purpose which is the retention of the lawyer/law firm for pecuniary gain, and (3) Real-time contact: --- in person or telephone contact ---real time or interactive computer accessed communication
EXCEPTIONS: (1) a close friend, relatives
(1) Recipient has made known desire to not be solicited (2) False or misleading (3) Coercion, duress, harassment (4) Lawyer expects but does not disclose that the legal services will be primarily performed by another lawyer |
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Targeted Mail |
GENERAL RULES: (1) May send direct mail to groups likely to need legal services (2) Attorney Advertising must be stated on first page (or subject line of email) (3) Retainers included must state "do not sign" on signature line
SOLICITATIONS TO SPECIFIC RECIPIENTS: (1) For personal injury or wrongful death matters: no solicitation before 30 days after injury (2) Must file solicitation with disciplinary committee (3) Recipient names and addresses kept for 3 years (4) Must disclose to committee how lawyer learned of recipient's identity and need for legal services
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Duty of Confidentiality |
"Confidential" information: (1) Info client requested to be kept confidential, or (2) Protected by attorney-client privilege, or (3) Likely to be embarrassing or detrimental to client
WAIVER: (1) Waiver to attorney-client privilege does NOT WAIVE duty of confidentiality (i.e. client telling friend waives privilege, but not confidentiality)
MAY NOT: (1) knowingly disclose confidential information, OR (2) use confidential information to disadvantage of client or to advantage of lawyer or someone else
EXCEPTIONS:
Lawyer MUST reveal and take reasonable remedial measures if: (1) Representing client before a tribunal, and (2) knows a person in the engaged or intends to engage in criminal or fraudulent conduct related to the proceeding, and (3) Warned client of consequences but client refuses to correct (i.e. lying on the stand)
Lawyer MAY reveal confidential info if reasonable belief it is necessary for: (1) Rules laws, or court order (may disobey and challenge court order) (6) Information necessary to collect fee or defend self from accusations of wrongful conduct (7) Client informed express or implied consent to disclose, to advance best interest of client |
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What is the duty of confidentiality to prospective clients? |
"Prospective client": (1) person who discussed with lawyer the possibility of entering into lawyer-client relationship,
Duty of confidentiality to prospective client, UNLESS: (1) Uniterally communicates to lawyer without reasonable expectation that the lawyer is willing to discuss possibility of forming client-lawyer relationship, OR (2) Communicates with lawyer for purpose of disqualifying lawyer from handling materially adverse representation on same or substantially related matter |
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When may a lawyer refuse to offer evidence? |
(1) Lawyer MAY refuse to offer evidence if reasonable belief that the evidence is false
(2) EXCEPTION: Testimony of D in criminal matter |
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What are the rules regarding safeguarding money and property of clients? |
RETAINERS: (1) Advance Payment/advance on fees: belongs to the client, goes into trust account
CLIENT TRUST ACCOUNT: (1) Contains only client's money, EXCEPT for funds to maintain the account (2) Must be separate from lawyer's operating account (lawyer cannot use in any way for own purpose) (3) Must have bounced check reporting (automatic report of bounced check to lawyer and disciplinary commission)
COMMON PROBLEMS: (1) Lawyer generally may transfer earned fees from trust account to operating account within reasoanble time after sending invoice (2) If client disputes fees: ---disputed amount must be left in trust account until resolved ---lawyer may transfer undisputed amount to own account
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What are the restraints on public statements regarding trial proceedings? |
No statement may be made by a lawyer that a reasonable lawyer should know it has a substantial likelihood of materially prejudicing a proceeding:
Lawyer MAY state: (1) dry facts about case (i.e. a murder took place) |
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What are the rules regarding non-meritorious claims and contentions? |
(1) Lawyer may not bring or defend a proceeding or issue unless there is a NON-FRIVOLOUS basis in LAW AND FACT for doing so (2) EXCEPTION: Lawyer may allow client to plead not guilty even if she knows client is guilty |
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Conflict of Interest Basic Rule |
GENERAL RULE: Lawyer may not represent client if reaosnable lawyer would conclude either: (1) Lawyer will represent differing interests, OR (2) Significant risk that lawyer's professional judgment for client will be adversely affected by financial, business, property, or other personal interests
Lawyer may represent when conflict exists only if: (1) explain conflict and risks to each client (2) Each client gives consent in writing
IMPUTATION: (1) If one lawyer has a conflict, ALL lawyers in the firm are conflicted (even if in different office)
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What are the bright-line prohibitions against representing multiple Defendants? |
Generally may NOT:
Rationale: inherently cannot competently represent all affected parties |
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What is the rule regarding lawyers that may be witnesses in the matter he is representing? |
Generally may NOT represent client before a tribunal where the lawyer is likely to be a witness on a significant issue of fact
EXCEPTIONS: (1) Uncontested matter, or (4) disqualification would bring substantial hardship to client, or (5) Authorized by tribunal
IMPUTATION: Lawyer in the same firm may not act as advocate in an action where: (1) Another attorney in same firm likely to be called as witness, and (2) On significant issue by another party, and (3) Apparent that testimony may be prejudicial to the client Rationale - lawyer may not want to aggressively cross-examine fellow attorney in same firm |
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Conflict of interest and prospective client
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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 |
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Interest in publication rights related to case subject matter |
STRICTLY PROHIBITED before entire matter concluded (i.e. even if negotiations) |
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Taking an interest in subject matter of representation |
Not allowed, EXCEPT: (1) lien to secure fees (2) lien to secure reasonable contingent fees in civil matter
DOMESTIC RELATIONS MATTER: (1) Lawyer's retainer in domestic relations matter may include lien/mortgage on real property to secure lawyer fee only if: (a) proper notice provided in signed retainer agreement, and (b) notice to adversary, and (c) Court approves (2) May NOT foreclose on mortgage placed on marital residence if: (a) spouse who consents to the mortgage remains titleholder, and (b) primary residence
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May lawyer provide financial assistance to the client? |
Generally may NOT provide financial assistance in connection with litigation, EXCEPT: (1) Court and litigation costs |
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Fee payment by a third party |
May not accept compensation for representing client from someone other than client, UNLESS: (1) Client informed consent, and (2) No interference with lawyer-client relationship, and (3) No confidential info provided to payor
Example: Lawyer representing D in auto accident, insurance company paying lawyer to represent. Client is the insured, NOT the insurance company (cannot take instructions from insurance company and must represent client competently) |
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Sexual relations with a client |
STRICTLY PROHIBITED, even if sexual relationship predates attorney-client relationship |
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Doing business with clients |
Generally prohibited UNLESS: (1) standard commercial or ordinary business transaction that client markets to others (i.e. bank loan, car dealership), OR (2) Fair and reasonable test: (a) Transaction is fair and reasonable to client, and (b) client fully informed of terms of transaction in writing and consents, and
NOTE: Above rules apply to any SUBSTANTIAL INCREASE IN FEES |
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May a lawyer represent a current client against a former client? |
Genrally MAY represent current client against former client, UNLESS ---EXCEPTION: confidential info now generally known to public, or client written consent
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May a lawyer represent a current client against another current client? |
STRICTLY PROHIBITED, NO CONSENT ALLOWED |
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What are the rules for a lawyer representing an organization? |
(1) Lawyer represents the entity, NOT individual employees (2) If employee's interest differs from that of organization, lawyer must tell employee he represents entity and not the employee (3) If lawyer knows of employee who intends to act in matter that is (a) violation of law that reasonably may be imputed to entity, and (b) likely to result in substantial injury, lawyer must proceed as reasonably necessary, including: (a) ask for reconsideration of the act (b) Advise company to seek another legal opinion (c) refer matter to higher authority (4) If highest authority refuses to correct that will likely result in substantial injury, lawyer MAY: ---may reveal confidential info if permitted by confidentiality exceptions, and ---may withdraw from representation
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May lawyers limit liability and settle malpractice claims? |
(1) May NOT make agreement to limit liability to client for malpractice (2) Lawyer may settle claim for malpractice ONLY IF client advised in writing of desirability of seeking independent legal counsel |
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What must lawyers provide when he decides to represent a client? |
MUST PROVIDE LETTER OF ENGAGEMENT (1) Given within reasonable time after starting representation (2) If entity (i.e. insurance co) engages attorney to represent 3rd party (i.e. insured), letter must be sent to all parties (3) Content must include: ---scope of representation (4) Must update for any substantial changes in fees or scope of representation (5) SPECIAL REQUIREMENTS for domestic relations matters
EXCEPTIONS: (1) Signed retainer agreement already includes the required content (i.e. scope, fees, arbitration), or
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Requirements for letter of engagement and fees In domestic relations matters |
In addition to general letter of engagement rules, also requires: (1) fee arrangement must be in writing signed by lawyer and client
Liens on property:
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What are the rules regarding retainers? |
(1) General retainers may go to lawyer's account, but NOT an advance on fees (2) NO unrefundable fees (3) Special rules for retainer liens in domestic relations cases
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What are the rules regarding contingent fees? |
Allowed, so long as: (1) Reasonable - personal injury/wrongful death fee cannot exceed 33% (2) EXCEPTIONS: no contingent fees for: (a) criminal matters (D may claim ineffective counsel if he shows contingency fee affected the defense)
CONTINGENT FEE AGREEMENT: (1) All required contents of letter of engagement (2) litigation and other expenses to be deducted (3) Method of calculating fee, including: ---% to lawyer ---whether % is calculated before or after litigation and other expenses (personal injury/wrongful death must be AFTER deducting expenses, UNLESS lawyer fronts court fees) (4) At close of matter, must give writing showing details of how recovery dispersed
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Lawyers associating with non-lawyers? |
(1) Lawyer cannot be partner with a non-lawyer if any part of the partnership involves the practice of law (2) May share office space so long as physically separate and appears so to the public
Fee splitting: (1) NO referral fees (2) Can NOT divide a legal fee with a non-lawyer, EXCEPT: (b) paying widow fees deceased partner earned prior to death |
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What are the rules regarding fee splitting with other lawyers? |
May split legal service fee with a lawyer at a different firm ONLY IF: (1) In proportion to % of work performed OR writing to client that lawyers are assuming joint responsibility for representation, AND (2) Client consent in writing to fee structure, AND (3) Combined fees not excessive |
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Fee dispute and resolution program |
Client must be informed of right to arbitrate BOTH: (1) In letter of engagement, and (2) When fee dispute arises
Must ARBITRATE if: (1) Client election, and (2) Civil matter, and (3) Dispute greater than $1K and less than $50K, and (4) Not involving malpractice
EXCEPTIONS: (1) Court already ruled on fee dispute (2) SOL 2 years
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What are the responsibilities of supervising lawyer and subordinate lawyers? |
SUPERVISING LAWYERS: (1) Must properly supervise and make sure all lawyers and non-lawyers acting at their direction follow ethics rules (2) Can be held liable for conduct of subordinates if: (a) Knew of wrongful conduct, and (b) Did not report wrongful conduct
SUBORDINATE LAWYERS: (1) must follow rules even if acting at another's direction |
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Ex Parte communications |
JUDGES: (1) no communications with judge other than deminimus communication or in a settlement conference
JURY: (1) NO communication whatsoever while trial is ongoing (2) OK after trial, unless prohibited by court order, harassment
WITH OTHER REPRESENTED CLIENT: (1) No communication or cause another to communicate (2) With party that lawyer knows is represented by another lawyer in the matter (3) about subject of representation (4) UNLESS other party's lawyer consents, or communication authorized by law (i.e. deposition)
WITH UNREPRESENTED PERSON (1) Lawyer cannot state/imply lawyer is disinterested (2) If unrepresented misunderstands lawyer's role in matter, lawyer must make reasonable efforts to correct misunderstanding (3) No legal advice, other than advice to obtain counsel
WITNESS FOR ADVERSE PARTY: (1) CAN apeak with witness ex parte (2) BUT if witness separately represented, must go through their lawyer |
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Adverse Legal Authority |
(1) A lawyer has an affirmative duty to disclose to judge (a) controlling legal authority (not facts) (b) that is directly adverse to client's position (2) In ex parte proceeding (i.e. Temporary restraining order): lawyer must inform all material facts that will assist tribunal to make informed decision |
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Special duties of the prosecutor |
(1) proceed only on probable cause |
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Pro Bono Service |
Lawyers SHOULD (not required): (1) provide pro bono services to poor (2) aspire to 20 hours pro bono per year (3) Contribute financially to pro bono organizations |
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Rules regarding integrity of profession |
(1) No unfair or derogatory remarks to other lawyers (2) No giving or lending any items of value to a judge or other public official, except as permitted by the Code of Judicial conduct (i.e. contribution to a judge's campaign is ok) |
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Every attorney shall file a registration statement |
(1) every 2 years when duly admitted to the NY Bar. (2) public record on submission of a written request |
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Civil Professional responsibility standard
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Lawyer MUST: (1) represent his client zealously within the bounds of the law and (2) make only meritorious claims and contentions |
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Criminal Professional Responsibility Standard
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(1) A lawyer must represent his client zealously within the bounds of the law (2) MAY defend the proceeding so as to require every element of crime to be established. |
