3 Rules Of Professional Conduct

Front 1

The RPC is tested how on the exam

Back 1

as a component of one or more of the 5 essay questions

Front 2

A. Attorney-Client Relationship
• Tort Victim consults Attorney A who tells Victim he has no case. There was no written
agreement and no fee was paid.

Back 2

o Attorney-client relationship creates particular obligations
o Element of malpractice claims
o No fee or agreement is necessary (use a tort test rather than a contract test)
o Reasonable person test to determine if a reasonable person would have understood that an attorney-client relatioship agreement
- to make it clear "just say no" - expressly clarify that you are not their lawyer

Front 3

Scope of Representation:
limiting the scope
client decisions

Back 3

• Lawyers and clients may limit the scope of representation (e.g., only tax matters).
o Scope cannot be so limited as to create ineffective representation (“I don't do homicide - I'll do the negligence claim for your car accident, but not the homicide”)
• Settlement offers must be communicated to a client absent a prior agreement with the client
concerning minimum offers. (“not less than a million.”)
• Crime: Testimony by a client, the right to jury trial, and pleas are decisions made by the client
only. Plea bargains must be communicated.

Front 4

Scope or Representation: clients with a disability

Back 4

• Client under a disability: minors and medical
o Requirements for a client under a disability:
 Maintain ordinary relationship
 Appointment of guardian, if necessary
 Permissive revelation of disability as necessary to protect client, i.e., protective action

Front 5

Scope of Representation: counseling on crime or fraud

Back 5

• Counseling on crime and fraud:
o YES on legal consequences
o NO on how to

Front 6

Mandatory withdrawal

Back 6

• Grounds for mandatory withdrawal:
o Violation of a rule of professional conduct
o Harassment (if client demands you violate a rule, not if the client merely suggests it)
o Attorney impairment (i.e., addiction, illness that makes it impossible to give good service)
o Discharge (i.e., fired)
 Absolute right in client to fire you but—Watch: no penalty to client if they fire you
• Fees: client still pays. Attorney is entitled to fees despite being discharged.
• If discharged for cause, then no fees
 Cause: no fees because you did a bad job
 Withdrawal once in the court process can only be accomplished by leave of court! IMPORTANT; if court doesn't say it's ok, you have to press on!

Front 7

Permissive withdrawal

Back 7

• Harmless withdrawal is permitted, even if client objects
o Why would you fire a client? to get a better client (when there are conflicts and you couldn't otherwise take the better client)
• Harmful withdrawal:
o “Reasonable belief” (need not know) the client is pursuing crime or fraud
o Services were used in client’s commission of a crime or fraud
 Using a contract I wrote for fraud
o Client’s action is repugnant; fundamental disagreement (Nazi)
o Unreasonable burden on the lawyer
 A bad deal is not enough
o Client fails an obligation to lawyer (e.g., doesn't pay; doesn't cooperate)
o Good cause (when the lawyer doesn't think he can do it - mental health, addiction, etc.
 REMEMBER: When in the court process, an attorney must always obtain court
permission to withdraw

Front 8

After Withdrawal or Termination

Back 8

• When the representation is over, either by completion of the task by the lawyer or by
withdrawal:
1) Return all client’s property and unearned fees
2) The retaining lien allows you to hold client’s property if you are owed a fee. However,
you should not harm the client. Can’t sell the papers. (no big help)

Front 9

Fees

Back 9

• Creditor seeks recovery on a $100,000 note. Lawyer knows that the work is the same as seeking recovery on a $10,000 note. Can Lawyer charge more? yes
1) Factor test: “Reasonable rates” – “court review” and “Rule 11”
• Primary factors:
o Time – hourly rate
o Novelty – new matter or new issue
o Amount in controversy
More in controversy; more in fees;
more at risk for the atty
o Nature of the relationship – new or established relationship
• Precluding employment: “you can pay the superstar lawyer a fee to keep him or her out of the matter”
2) All fee agreements need not be in writing; however, in matters involving domestic
relations, or in matters with fees in excess of $3000, a writing is required.
3) Bound by agreement: “No bonuses for success unless it’s in the contract!”

NOTE: whenever a fee is mentioned, consider whether it is excessive or illegal

Front 10

Contingency fees

Back 10

• Agreements: Must be in writing (if above $3,000)
• Never: Criminal cases / domestic relations
• Always: Signed agreement / calculation methodology: fees and expenses have to be delineated in the written agreement

Front 11

F. Retainers

Back 11

• Lawyer receives $10,000 from Client to be drawn down as Lawyer performs services. Question
is: whose money is it? It's the client's money.
o Unearned legal fees must be placed in escrow and unearned fees must be returned
o All costs advanced to the lawyer must be placed in escrow
o Accounts of lawyer and clients must be separate
• Taking an interest in the client in lieu of a fee is a kind of conflict of interest (holding the client's stock or holding a mortgage lien on a client's property).
• Business transactions with clients AND acquisitions of an ownership or security interest in clients property must be:
o In writing
o Fair and reasonable
o Advise client in writing of the prudence of seeking independent counsel, and
o Informed consent, in writing, signed by the client
Note 1: No liens or execution on client’s property in domestic relations actions without additional notice regarding the same

Front 12

Fee sharing

Back 12

• Lawyer refers Client to Lawyer #2. Lawyer #2 “kicks-back” to Lawyer a portion of his fee.
o Key = services
• Fee sharing (among lawyers NOT in the same firm) is permitted if:
o Overall fee is fair
o “Kickback” must be disclosed to client in writing, and
o Referring lawyer must actually provide services or have joint responsibility for the matter
Note 2: New York is NOT a free fee sharing jurisdiction

Front 13

Disputes - fees in escrow
Lawyer wins suit for Client and the proceeds of the judgment are placed in Client’s Escrow
Account to be distributed, 1/3 to Lawyer, 2/3 to Client. Client’s medical insurer calls Lawyer and
asserts a claim that they are entitled to the Client’s share.

Back 13

have to hold the disputed funds until the dispute is resolved
Note 3: New York STRONGLY encourages arbitration in fee disputes.

Front 14

. Duty of Confidentiality

Back 14

• What’s confidential? Items that are:
o Protected by attorney-client privilege
o Likely to be embarrassing or detrimental
o Requested to be kept confidential
EXam note: be certain to understand the difference between the duty of confidentiality and the evidentiary lawyer-client privilege. Only client-driven confidential communication is covered by the privilege. The duty of confidentiality also covers third-party-driven communication, lawyer observation, and all information relating to the representation.

• Let’s distinguish:
o The attorney-client privilege is:
 Only testimonial communications and
 Actually given confidentially and
 Actually kept confidential (if a third party hear it, it isn't confidential
o The Smoking Gun is not privileged (if a client puts a gun on your desk and says he killed his wife, the speech is confidential, but the gun is not.

Front 15

exceptions to privilege

Back 15

Exceptions to privilege:
o crime; and
o disputes with the lawyer (malpractice suits or fees disputes)
Note 4: New York has a special exception in connection with communications regarding wills.

New York has an exception to the lawyer-client privilege for a deceased client’s communications with counsel with regard to the preparation, execution, or revocation of a will or other relevant instrument in any action involving the probate, validity, or construction of a will. N.Y. C.P.L.R. § 4503(b). The privilege is maintained, however, if disclosure of the confidential communications would tend to disgrace the memory of the decedent.

Front 16

exceptions to privilege: work product doctrine

Back 16

Work product doctrine: can be disclosed but only if there is no other means for the court or opposing counsel to get at necessary information
 A court may order a lawyer to reveal information protected under the ethical duty of confidentiality, but cannot order revelation of material subject to the attorney-client privilege.
 CAUTION: Prospective clients: Must keep confidential information learned from them even though no atty client relationship has been formed (could be tested this year)

Front 17

Permissive Disclosures: “May” means “may!”

Back 17

• Consent by client (informed consent)
Example: "advocate for me publically"
• Implied by representation
Example: sue for me, talk to my partners (have to disclose info to do these things)
• To prevent reasonably certain death or substantial bodily injury (Note that this is permissive, not mandatory)
Example: “Wife in wood chipper”
• To prevent a client’s criminal act
Example: Company is being embezzled
Note 5: Withdrawal of an opinion made to third parties; Can take back the opinion but can’t tell why
Post-crime, you may represent criminals
• Controversies with clients or disciplinary proceedings: courts allow you to reveal info about the client relationship in fee disputes between lawyer and client
• Court orders
o Duration: The duty lasts forever

Front 18

Conflicts of Interest

Back 18

• May result in disqualification from representation as well as disciplinary sanctions
“trial court enforced Rules”
• Conflicts:
o Direct adversity (never waivable!)
Example: Representing landlord and tenant; suing a client ; also can't sue your own client
o Material limitations on lawyers’ representation

EXAM NOTE: When addressing a conflict of interest problem on the exam (i) identify clearly the client or clients, (ii) determine whether a conflict of interest exists, i.e., whether the lawyer’s judgment may be impaired or the lawyer’s loyalty may be divided if the lawyer accepts or continues the representation, and (iii) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict may be waived by the client with informed written consent.

Front 19

Waivable conflicts: which conflicts are waivable and what are the requirements

Back 19

TO WAIVE CONFLICTS:

o Require client’s informed consent, in writing

o Lawyer must have a “reasonable belief” representation will not be adversely affected
o All affected clients must waive!
 Joint Representation – a passenger and driver in a car accident (situation where later discovered facts can create a conflict of interest)
 This rule applies both to current clients and conflicts between a current client and a
former client
(you'd have to withdraw without client consent)

Front 20

Special conflicts:

Back 20

o Related lawyers are not permitted to oppose each other
o No sex in domestic relations matters or with the “control group” (managers of a
corporation) – personal disqualification, not firm-wide
o Lawyers as witnesses

Front 21

conflicts of interest: former clients

Back 21

o Objective test: What’s the matter? Is it related to the prior matter?
o Gulf Oil: uranium leases/ uranium price fixing
o Elements:
 What was the scope of the prior representation?
 Could the lawyer have learned information? And,
 Would that information be useful in this litigation?
 If YES to each of the above, then there is an irrebuttable presumption the matters are
related and thus the disqualification of the attorney/firm.

objective test, the court determines if the elements are met; to discuss what the lawyer actually knew would be a breach of confidentiality

Front 22

personal interest of the lawyer

Back 22

Business dealings or acquisition of an interest in client or client’s property:
o Writing
o Fairness
o Opportunity for counsel
o Current clients only
• No literary or media rights prior to the conclusion of representation. (e.g., OJ)
• NO proprietary interests
o No loans to clients
o No advances to clients except for court costs
 Champerty:
Business dealings or acquisition of an interest in client or client’s property:
 Contingent costs for indigents allowed
• No gifts / wills in which “I am the Heir!”
o Agreements attempting to limit malpractice recovery are unenforceable.
o No settlement of malpractice claims with unrepresented clients.
• No liquidated damages in representation agreement
o An attorney may not use information acquired in a previous representation to that client’s disadvantage.

Front 23

Imputed Disqualification

Back 23

• General rule: If a lawyer in a firm is in conflict with a representation, no lawyer in the firm may represent the client. “Cootie Rule”
o Exceptions:
 Clients consent, informed, confirmed in writing
 The conflict is based upon the lawyer’s personal interest and is not materially limiting.
(See e.g., sex with clients)
 There is no "appearance of impropriety” standard. It can appear improper
 Conflicts created by non-lawyers as well “paralegals and secretaries - screening”
• Government lawyers:
o A lawyer becomes associated with a firm creating the conflict; but
o OK if the lawyer is immediately “screened” on the matter; but immediate screening is required
o No negotiation for employment with those before the agency. (Arbitrator/Mediator)
o Exception: law clerks - tell the boss (judge)
o Prospective clients – Information you receive from a prospective client can also create a conflict

Front 24

Imputed disqualification: info received from prospective clients
If a guy comes in and tells you lots of bad stuff about a divorce situation between himself and his wife and then doesn't hire you...

Back 24

there's a conflict of interest and you can't take the wife's case if she wants to hire you. Your firm can take the case if you are immediately screened out.

Front 25

Third Party Interference: (usually the insurance company’s problem)

Back 25

Key: The client is the client, not the lawyer’s third-party payor (e.g., insurance company)
o “Bad examples”
 ins co (or parent) wants to control your work
 wants information
 wants settlement control
- not ok - the client is the client, not the ins co
o Remember: Agreements attempting to limit malpractice recovery are unenforceable.

Front 26

Organization as a Client

Back 26

• The lawyer represents the organization and not the constituents, although joint representation is permissible. The “control group” is often represented as well. Particularly, watch for
admissions.
• If a lawyer “knows” of a violation of law that may be imputed to the organization, and such
violation is likely to result in a substantial injury to the organization, then the lawyer should take appropriate measures, including referring the issue to a higher organizational authority: manager is polluting, go up the ladder to the board if necessary
• If the organization does not correct the matter, then the lawyer may resign - “Noisy
Withdrawal”
• Fired for complying with these rules? Tell the Boss
• These rules trump permissive revelation rules (Federal Rules: Sarbanes-Oxley)

Front 27

when a lawyer represents an indigent client, he may/may not advance court costs and repayment may/may not be contingent upon the outcome of the case

Back 27

may, may

Front 28

Professional Competence

Back 28

• Key: Malpractice ≠ discipline; discipline ≠ malpractice.
o Discipline does not require damage
(e.g.,failure to communicate)
o Malpractice does require damage.
 Malpractice liability can be shown by a lack of required competence, but:
 Watch for burden of proof issues
• Malpractice: Preponderance of the evidence
• Ethical violation: The burden of proof in New York for an ethical violation is a preponderance of the evidence.
 Violations of the Rules of Professional Conduct do not set up a cause of action (not necessarily a breach of duty - a tort)
• May be evidence of a breach of duty, however
 Duty to decline: The lawyer must decline if not competent or cannot become competent
withou

Front 29

Diligence: If you cannot be diligent, then you must withdraw

Zealous advocacy

Back 29

• “Too busy” OR “too impaired”
be prompt and go to completion

Commitment to client but not for every advantage
• Promptness
• Reasonable request for postponements are not a problem
• “Complete the job or you won't get paid”

Front 30

Malpractice Theories

Back 30

• Contract — e.g., if no fee, then the client gets the dollars back
• Fiduciary relationship breach (typically a conflict of interest type of cases)
e.g., representing both landlord and tenant; buying your client’s property too cheaply
• Intentional tort — e.g., fraud
• Negligence — e.g., duty/ breach/cause/ damage
• REMEMBER: No attempts to contractually or otherwise limit liability

Front 31

Settlement of Malpractice Claims

Back 31

• Settlement of malpractice claims is permissible if the client is:
o Advised, in writing, of the desirability of seeking independent counsel in the matter; and
o Given a reasonable opportunity to obtain independent counsel

Front 32

In order to enter into a settlement of a client's malpractice claim, a lawyer must do which of the following?
Orally advise the client of the desirability of obtaining independent counsel
Give the client a reasonable opportunity to obtain independent counsel
Both
Neither

Back 32

Give the client a reasonable opportunity to obtain independent counsel.

Front 33

Courtesy and Zealous Advocacy: (Part II)

Important exam note:

Back 33

• Frivolous claims:
o A lawyer may not assert or defend a claim that is frivolous absent a good faith argument to extend the law.
o Reliance on a client’s factual assertions may be permissible under this rule, but note FRCP 11
(and its state cognates) requires “reasonable investigation” into facts. "Development of facts may make the action frivolous". Don’t Delay!
• Candor to the tribunal: “Tribunals” include administrative agencies and courts
• Lying: Lawyers may not “knowingly:”(actual knowledge)
o Make actual false statements as to law or fact;
o Fail to disclose controlling authority to the tribunal (bad case law); or
o Offer evidence “known” to be false
 BUT, a lawyer may refuse to offer evidence he “reasonably believes” is false (except for
criminal defendant’s testimony)

EXAM NOTE: Examiners frequently test the subtle distinction between knowing and reasonably believing that evidence is false. The prohibition against offering false evidence only applies if the lawyer actually knowsthat the evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier-of-fact, but the lawyer may (except for the testimony of a criminal defendant) refuse to offer evidence that the lawyer reasonably believes is false.

Front 34

Remedial measures (part I)

Back 34

• When a lawyer “knows” evidence submitted was false or, typically, when perjury has been
committed or is about to be committed:
1) She must attempt to dissuade the witness; then
2) She may reveal the matter to the court and seek to withdraw
 REMEMBER: Withdrawal still requires court permission.
o The trial-by-narrative solution: testimony without questions or objections
o A lawyer’s duty to correct ends when the matter has concluded.
• Tampering - Evidence and witness cannot be tampered with!
o No paid witness unless they are experts
o No contingency fees with experts

Front 35

Remedial measures (part II)

Back 35

• No “ex parte” communications: There must be a parte (don't discuss the case with someone like the judge without the other party or party's lawyer present)
o Judges, jurors, the potential venire (pending jurists)
o Watch for post-trial contact – “survey says! after litigation, you can survey the jury - no harassment of the jury”

EXAM NOTE: Examiners frequently test the subtle distinction between knowing and reasonably believing that evidence is false. The prohibition against offering false evidence only applies if the lawyer actually knowsthat the evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier-of-fact, but the lawyer may (except for the testimony of a criminal defendant) refuse to offer evidence that the lawyer reasonably believes is false.
o Out-of-court communications, including talking to the media, is permitted unless it would have a likelihood of prejudicing the proceeding.
 A lawyer may respond in the media to protect a client from undue publicity not initiated by the client or lawyer:
DA spoke to the media, so I responded
• Okay to say: general facts, charges, schedule
• Bad to say: slammin' witnesses
• Communications with represented persons: Key is knowledge of the representation
o Entities and control group: Watch admissions
o Former employees are not protected

Front 36

Communication with unrepresented: no misleading

Back 36

• Special rule for undercover activity (when lawyers go under cover to conduct an investigation, courts have permitted this activity - only if no other way to get the info - this is an exception)
• Inadvertent communication: email sent to the wrong party; notify the sender (nothing in the rule about whether the recipient can read it)
• Can’t tell the client to do what the lawyer can’t do (e.g., slamming witnesses in media)
• Prosecutors:
o Must have probable cause
o May not take advantage of unrepresented people
o Must disclose of exculpatory information
o May not subpoena lawyers to destroy privilege
o Must watch advocacy in the media
o New evidence rule: seek remedy if new clear and convincing evidence surfaces

Front 37

when a lawyer knows a person is represented by another lawyer, he may not contact that person about a matter related to the representation without the consent of the other lawyer

Back 37

true

Front 38

A lawyer who is bringing suit against an employer may contact a former employee of that defendant employer without the consent of either the employer or the employer's lawyer. true or false

Back 38

true

Front 39

Advertising:
New York Mess: Lack of rational basis for particularized rules.
Question: what so bad about pop ups?

Back 39

NY Second Circuit struck down many particularized rules.

Front 40

Advertising

Back 40

• All forms of communications are considered advertising (e.g., business cards, letterhead, etc.)
o May not be false or misleading (“I win them all.”)
Note 7: New York permits “metaphorical advertising” and also actors.
o No unverifiable self-promotion
o Fields of practice can be communicated, but not a specialty unless certified (e.g., patent)
o Must disclose office location
o No implication of partnership unless there is really a partnership
• Key #1: “Real-Time” direct contact to solicit business is prohibited (absent family or pre-existing legal relationship).
o Volunteer versus pecuniary gain:
exception - you can offer to volunteer using real time calls,etc

Front 41

Advertising (continued)

Back 41

• Key #2: General mailings, non-real time electronic communications, and targeted direct-mail are permissible unless the lawyer knows that the “state” of the recipient would make him incapable of a reasoned choice. The communication must be labeled as advertising.
Note 8: There is a 30-day prohibition on contacting victims of accidents through targeted, direct mail.
Note 9: Advertising must be filed with disciplinary committee of the district in which you practice. Distinguish toxic torts - no 30 day restriction (there's a delay before the harm shows up anyway)
• Referral services are permitted. But no
payments for endorsements. You can reimburse for any fees or other expenses of the referror.

Front 42

Maintaining the Integrity of the Profession: admission to the bar

Back 42

Admission Issues
o ABA-accredited school, or non-accredited with five years of practice, or school plus law
office study
o Entrance without taking the exam? five years of practice
o Character and fitness
 Not all crime is disqualifying, but failure to disclose non-disqualifying crimes will result in
disqualification.
 If you have disorderly conduct, disclose
 No lying on the application (or on your law school application)
o No residence requirement for admission
o “Permission to Sit” cases and “Permission to Enter” cases

Front 43

regulation after admission

Back 43

• Regulation after admission
o Violate the rules
o Criminal acts
o Fraud / deceit
 Need not be associated with legal practice
 Rob a bank—disbarred; defraud a customer—disbarred
Note 10: Discipline conducted in four appellate divisions. Misconduct includes rule violations, discrimination, and helping a judge violate rules.

Front 44

Vicarious Liability of Attorney

Back 44

• Partners within “firms” (or similar managers) must make reasonable efforts to ensure that the lawyers and non-professional employees comply with the Rules of Professional Conduct.
o It is a violation for a firm to have no conflict check procedures in place, even if there is no
conflict of interest.
o Includes corporate staff, DA’s office
• Supervisory attorneys are liable for violations of supervised attorneys and non-professionals if the supervising attorney orders, ratifies, or (after learning of a violation) fails to take remedial action in connection with a violation.
• No “Nuremberg Defense!” Subordinate lawyers cannot defend an ethics case by saying “I was following orders.” Only a reasonable order by a supervisor is a defense.
• Out-of-state conduct can subject a lawyer to discipline in home state

Front 45

vicarious liability of attorney

Back 45

• Squeal Rule: Duty to report known violations going to a lawyer’s substantial honesty and fitness
o May be sanctioned for failure to squeal
Example: suit against an attorney for stealing a client's funds - need to report this cuz you know an atty did something wrong
o Actual knowledge is required
o Out-of-state lawyers: May practice in a jurisdiction on a temporary basis if pro hac vice admission – there's gotta be a vice - local lawyer to ask (Note, this is different than MRPC - much freer ways for an out of state atty to come into the state)

Front 46

Fee Division with Non-Lawyers

Back 46

• NO fee division with non-lawyer (except in estates and retirement plans).
Example: legal fees are from legal work, no sharing with private detective
• Fee division at firms – Fee sharing at a firm is permitted provided:
o It is a real firm, not simply lawyers sharing office space
o No partnerships with non-lawyers
o No corporations except professional corporations
 No non-lawyers in control
 You cannot be in partnership with accountants for example
o No control by third-party payor
 remember the ins co is not the client!
o Lawyer-owned legal related service is permitted provided:
 Clients must know they are not dealing with a lawyer when they deal with that entity (confidentiality, atty client privilege, etc.)
• Referrals between lawyers and non-legal professionals are permitted
o CPAs, engineers, architects, social workers

Front 47

sale of a legal practice

Back 47

• A sale of a legal practice is permitted provided
1) Stop practicing
2) Notify the client
3) Sale of practice is made to other lawyers
4) no increase of fees due to the sale
• No covenants not to compete
Exam Tip 2: Watch for scenarios involving
settlement agreements that have built-in covenants for the lawyer not to take on a certain kind of lawsuit in the future - these are not allowed under the RPC

Front 48

when does an atty/client relationship exist?

Back 48

EXAM NOTE: On the exam, look for casual conversations between a lawyer and a potential client. If the facts indicate the client reasonably believes the relationship exists, it does.

Front 49

what to remember regarding fees

Back 49

EXAM NOTE: Whenever a lawyer’s fee is mentioned in a fact pattern, be sure to consider whether the fee is excessive or illegal.

Front 50

confidentiality vs lawyer-client privilege

Back 50

EXAM NOTE: Be certain to understand the difference between the duty of confidentiality and the evidentiary lawyer-client privilege. Only client-driven confidential communication is covered by the privilege. The duty of confidentiality also covers third-party-driven communication, lawyer observation, and all information relating to the representation.

Front 51

handling a question of confidentiality

Back 51

EXAM NOTE: When discussing whether a lawyer is permitted to reveal information under the ethics rules, determine whether (i) the information is covered by the ethical duty of confidentiality, (ii) the person who communicated the information is the client or the client’s agent, and (iii) any exceptions are applicable.

Front 52

handling conflicts of interest on the exam

Back 52

EXAM NOTE: When addressing a conflict of interest problem on the exam (i) identify clearly the client or clients, (ii) determine whether a conflict of interest exists, i.e., whether the lawyer’s judgment may be impaired or the lawyer’s loyalty may be divided if the lawyer accepts or continues the representation, and (iii) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict may be waived by the client with informed written consent.

Front 53

who is the client?

Back 53

EXAM NOTE: A common exam question involves a parent paying for representation of a son or daughter. Remember that a competent child, not the parent, is the client whose expressed interests govern.

Front 54

knowing vs reasonably believing

Back 54

EXAM NOTE: Examiners frequently test the subtle distinction between knowing and reasonably believing that evidence is false. The prohibition against offering false evidence only applies if the lawyer actually knows that the evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier-of-fact, but the lawyer may (except for the testimony of a criminal defendant) refuse to offer evidence that the lawyer reasonably believes is false.

Front 55

ex parte communications questions

Back 55

EXAM NOTE: Look for questions placing a lawyer with good intentions in ex parte communication situations. The lawyer is subject to discipline even though no harm is intended or results.

Front 56

recent constitutional challenges to NY advertising rules

Back 56

EXAM NOTE: Some of these provisions survived a constitutional challenge in Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010) because they address only attorney advertising techniques that are actually misleading, and as such are not entitled to First Amendment protections. These points are likely to be tested on upcoming exams.

Front 57

obligations of partners

Back 57

EXAM NOTE: The obligations of partners are tested frequently in the context of paralegals or non-lawyers making mistakes without the lawyer’s knowledge. The outcome depends on whether the firm’s procedures were established and followed.

Front 58

Can a lawyer in a divorce matter accept a mortgage on a client's property as security for his attorney's fees?

Back 58

In family law cases, a written retainer agreement signed by the lawyer and the client is required. The agreement must set forth the nature of the relationship and the details of their fee arrangement. The written retainer may not include a security interest, confession of judgment, or other lien without court approval after notice to the adversary.

Under the facts, Husband and Lawyer agreed in writing that Husband would provide Lawyer a mortgage in Richacre to secure legal fees. There is no indication in the facts that Wife and her counsel were advised of this arrangement, nor does there appear to have been an application to the court for approval. Thus, the written agreement violates the New York Rules of Professional Responsibility and is unenforceable.