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88 Cards in this Set
- Front
- Back
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Rules governing NY attys are found in
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NY rules of professional conduct
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Can law firms be disciplined in NY?
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Yes
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Complaints against an atty are investigated by (2)
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1. The departmental disciplinary committee
2. Any dept of the appellate division |
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Status of a complaint against an atty
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Privileged communication
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types of discipline for attys (4)
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1. Letter of admonition from the disciplinary committee
2. Public or private censure by the courts 3. Suspension-- no practicing law for a finite period 4. Disbarment-- most serious, your license is taken away, you may not practice law. |
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In addition to disciplinary investigation
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Attys are subject to malpractice suits from their clients, but the commission of malpractice does not automatically equal discipline.
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Educational requirements for admission to the bar (2)
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1. Graduation from an ABA accredited law school or
2. Completed 1 yr of law school and studied law in an NY firm under an NY licensed atty for 3 more years |
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In NY, attys mmay be admitted w/o passing the bar exam if the applicant has (3)
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1. graduated from an ABA approved law school
2. Been admitted to practice in another state that would admit an NY lawyer w/o an exam (reciprocity) and 3. Practiced law for at least 5 out of the last 7 years preceding the admission application |
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Duties of a bar applicant (2)
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1. Truth and full disclosure
2. Duty to cooperate |
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Requirements vis a vis other bar applicants
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Duty to report on moral turpitude.
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Duty when you know of a violation of professional responsibility (2)
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1. You must report what you know unless it us protected as confidential information
2. You must be available to testify against the lawyer. |
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If a lawyer learns of bad conduct of another lawyer through representation of that lawyer (2)
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1. The duty of confidentiality trumps duty to report
2. May not recommend violating atty for admission to another state's bar. |
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Atty may practice in a jurisdiction where atty has not been admitted to the bar only if (4)
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1. Associate with an active local lawyer
2. Special permission-- pro hac vice 3. Mediation/arbitration out of home state practice 4. Anything reasonably related to lawyer's home state practice. |
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Attys in a multi-state firm (2)
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1. may only practice in the state where they have been admitted and
2. firm letterhead must indicate the states of admission |
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Choice of law in atty discipline (2)
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1. If admitted only in NY, NY law and rules apply
2. If admitted in NY and another state(s), rules of the state in which the lawyer principally practices will apply unless the conduct's key effect is in the other state, in which case that state's law applies. |
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Client's decisions on legal matters (2)
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1. Whether to sue, appeal, settle, bench trial/jury trial
2. Whether to testify in a criminal case |
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Atty decisions on legal matters (2)
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1. Depositions/discovery decisions
2. Granting continuances |
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Client's decisions on legal matters (rule, 2)
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1. Atty's must abide by the client's wishes unless doing so would be illegal, unethical, or immoral
2. If a client is incompetent or a minor, a guardian must be appointed. |
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An atty can take protective action and seek to substitute attys judgment for a client if (3)
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1. The client has diminished capacity
2. The client is at risk of substantial physical, financial or other harm 3. the client cannot adequately act in his/her own interest |
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When must an atty withdraw from representation? (4)
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1. When a lawyer knows/it is obvious from the start that clients position is frivolous, harassing, or malicious.
2. If the lawyer becomes impaired 3. A rule of professional conduct would be violated 4. The client fires you |
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When may an attorney withdraw from representation? (6)
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1. frivolous claim or defense
2. Crime/fraud--Client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent 3. Non-payment of fees or expenses 4. Using lawyer's services to perpetrate a crime or fraud 5. Future violation of a rule-- lawyer's continued employment is likely to result in the violation of a rule 6. Best interest of the client b/c of inability to work w/co-counsel. |
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Competence includes (3)
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1. Physically and mentally able
2. Substantive competence 3. Have the time to devote to the case |
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Overcome lack of competency through (3)
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ALE
1. Association 2. Learning in time 3. Emergency situations |
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Non-compete agreements are only permissible (2)
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1. On retirement
2. Withdrawal from a firm |
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If an atty permanently leaves a firm,
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Atty's name must be removed from the firm
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Are law firms allowed to adopt trade names?
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No
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May law firms retain the names of dead partners?
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Yes
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May law firms be named after dead non-partners?
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No
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To hold yourself out as a specialist
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You must be
1. certified as a specialist 2. Practice patent, trademark or admiralty law. 3. Certified by an org approved by ABA or NY which is identified in your ad, which also states that the certifying org is not affiliated w/any governmental authority, certification is not required for practice of law in NY, and cert does not equal greater competence. |
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Lawyer advertising (definition)
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Any public or private communication made by or on behalf of a lawyer or law firm about the lawyer or services, the primary purpose of which is to retain the lawyer or law firm,
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Ads must include (3)
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1. Name, principal office, tel #
2. Any words or statements required by the rules must be clearly legible, and understandable by an average person. 3. Label "Atty advertising" on the first page. |
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Ads that reference past performance of an atty
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Must contain the disclaimer "prior results do not guarantee a similar outcome
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If an ad mentions rates
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the lawyer shall not charge more than the advertised fee
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Claims in law advertising must be
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factually supportable by the buyer as of the day the ad is published
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Ads may not include (2)
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1. Paid endorsement/testimony
2. Actors w/o disclosure. |
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May a law firm use a domain name other than the name of the firm? (3)
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Yes, so long as
1. Name is indicated on every page and 2. Web site is not used for practice 3. Domain name does not promise/imply results. |
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TV and radio ads (3)
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1. Must be approved by the lawyer
2. Incl name, address, tel # 3. Be kept for 3 yrs. |
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Ads contained in a computer accessed communication shall be retained for at least
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1 year
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Lawyers may only solicit by in-person, tel, or real time electronic correspondence if (5)
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Recipient is
1. A close friend/relative 2. Former client 3. An existing client 4. A pro bono client 5. Unless the client has made known a desire no to be solicited. |
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Direct mail (3)
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1. Is permitted to groups
2. Must contain "atty advertising" 3. If directed at predetermined recipients, must disclose how the atty learned recipient needed legal services, and a list of the recipients must be kept for 3 yrs. |
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If a retainer agreement is included w/ a solicitation (2)
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1. The top of each page must be marked "sample" in red
2. The words "do not sign" must go on client signature line. |
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Solicitations for personal injury/death
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Are not permitted w/in 30 days of the incident unless process is filed w/in 30 days, in which case may solicit w/in 15 days
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Atty must not solicit employment by writing/recorded communication if (5)
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1. Communication is false, deceptive, misleading
2. Recipient has made known to the lawyer desire not to be solicited 3. Solicitation involves coercion, duress, harassment 4. Reasonable to belief recipient could not make a good decision about counsel. 5. Solicitation requires recipient to travel to pick it up. |
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Lawyer's who give in person, unsolicited advice
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May not accept employment that results from the advice
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Lawyer's who give in person, solicited advice
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May accept employment that results from the advice
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Confidential client secrets (2)
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1. Anything derogatory, embarrassing, or hurtful regarding the client, no matter what the source.
2. Survives the death of the client |
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If a client confesses a past crime
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Atty should not report it
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If a client tells an atty about an intention to commit a future crime,
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Atty must report it, and info necessary to prevent it
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If atty knows client perjured himself (2)
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1. Urge the client to correct/recant
2. If he refuses, atty must disclose to the court |
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If atty terminates client relationship (3)
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Must be in a manner that does not prejudice client--
1. Give the client notice 2. Return the case file 3. Return any unearned portion of the retainer. |
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Exceptions to confidentiality (6)
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1. Required by law/court order
2. To obtain legal/ethical advice from another lawyer 3. To prevent client from committing a crime 4. To prevent reasonably certain death or substantial bodily harm. 5. To rectify a fraud on the tribunal by lawyer's client 6. Disclosure expressly authorized to advance client's best interest |
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If a lawyer is entrusted w/client property
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The lawyer must safeguard the property by, eg placing it in a bonded warehouse.
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Public statements about the case (4)
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1. May not be prejudicial
2. May state the facts of the case 3. To prevent a crime/apprehend a criminal 4. Right of reply |
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Right of reply
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Lawyer may make a statement to the extent necessary to protect a client from substantial prejudicial effect of recent publicity not initiated by the lawyer or client
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May a lawyer take a case with a conflict of interest?
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Yes, if all clients have given informed consent
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Informed consent to be represented by a conflicted lawyer (4)
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1. The client must agree after
2. The lawyer explains material risks and reasonable alternatives 3. The client agrees in writing, which may be electronic 4. The lawyer then decides if it would be reasonably prudent to take the case. |
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Lawyers may not testify on behalf of clients unless (3)
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1. It's an uncontested matter/matter of formality
2. Fees-- a suit under a statute that allows atty fees. 3. Substantial hardship if atty withdraws. |
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Can a lawyer represent adverse interests of a (prospective) client?
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Only if the lawyer fully explains the risks and alternatives and client agrees in writing
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A person who communicates w/a lawyer for the purpose of disqualifying the lawyer from handling the opposing sides case
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Is not a prospective client
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In NY, in a domestic relations matter, a lawyer may take a lien on real property or obtain a security interest in to secure his fee if (3)
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1. The retainer agreement provides that the security agreement may be sought
2. Notice of the application for the SI is given to the other spouse and 3. The Court grants approval for the SI after submission of counsel fees. |
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May an atty take literary rights to the story of a case in lieu of fees?
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No.
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May an atty lend money to clients? (2)
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1. Generally no.
2. Yes if they are indigent/pro bono clients. |
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If a third party pays atty's fees
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Atty's obligation is nonetheless to the client-- do what the client says.
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When may an atty do business with clients? (4)
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Only if the transaction is fair to the client. Client should be:
1. Advised to get independent legal advice. 2. Get informed consent in writing. 3. The client need not actually get outside legal help. 4. Standard commercial/banking transactions are okay. |
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An atty may not represent a current client against a former client when (3)
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1. The current client is suing about a matter of past representation.
2. You learned confidential info about the former client that you may now use against the former client while representing her, 3. Unless the info is no longer confidential, and the former client consents in writing. |
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As a lawyer for a corp/partnership, you represent (5)
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The corp, not any individual. Your duty is:
1. To protect the best interest of the org and report violations up the chain of command. 2. To report securities violations up the chain of command to the CLO. 3. If no appropriate response, report to directors, may report outside. 4. May reveal confidential info to the extent necessary to protect the corp. 5. Take measures to minimize disruption/the risk of revealing confidential info to outsiders. |
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If you represent an insured party (2)
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1. You represent the insured, not the insurer
2. The letter of engagement must be sent to insurance co and the insured. |
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A minimum fee clause
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Is permissible in a retainer agreement if it sets forth how such a fee will be incurred and calculated.
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With regard to fees, a lawyer has a duty (3)
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1. to explain fully the reasons for the fee
2. Keep fee schedules reasonable and 3. Note that states bars cannot set minimum/maximum fees. |
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May a client ratify a fee agreement in a period when an atty is committing misconduct?
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Yes, so long as the ratification was not procured through misconduct.
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Contingency fees cannot be charged (2)
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1. In a domestic relations case
2. In a criminal case |
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After a case is over, an atty must provide the client w/
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A written closing statement stating the outcome of the matter and computing the fee, which must be filed with the appellate division.
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If fees are projected to be over $3k
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the fee agreement must be in writing.
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If fees will be more than 3k, the retainer agreement must include (4)
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1. Scope of legal services to be provided
2. Explanation of atty's fees to be charged 3. Expenses and billing practices 4. Notice of client's right to arbitrate a fee dispute |
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Cases where a lawyer need not provide a fee agreement (4)
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1. Fee is expected to be less than 3k
2. Services rendered are similar to those rendered in the past 3. No atty office in NY, no material portion of services rendered in NY 4. In a domestic relations matter, a special letter is required. |
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Domestic relations fee agreement/letter of engagement must (6)
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1. Be in writing, signed by lawyer and client
2. Atty must provide client w/statement of rights and obligations 3. No non-refundable fees 4. Cannot use contingency fee to collect unpaid alimony/child support 5. Fee disputes must be resolved by arbitration, at the election of the client 6. Billing must be sent out every 60 days, atty must return any unused portion of retainer. |
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Attys business relationships w/non-lawyer (3)
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1. Not allowed to partner in businesses that involve the practice of law.
2. May not divide legal fees w/non-lawyer 3. May share office space, as long at it is obviously physically separate |
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Referral fees
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Are unethical, though lawyers may have reciprocal, non-exclusive referral agreements w/attys other professionals
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2 Types of retainers
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1. An advance on fees-- belongs to client, goes into a trust account
2. Availability retainer-- belongs to lawyer, goes into lawyer's account, but must not be non-refundable. |
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Two types of accounts every lawyer must have
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1. Operating-- Your money, goes in, it's the firm's account
2. Client trust-- client's money goes in, atty may cover bank fees |
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Rules of client trust accounts (3)
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1. Must be in NY, or elsewhere w/client's written consent
2. Bank service fees are the only lawyer funds that may be put in 3. Must be maintained in a banl that provides dishonored check reporting. |
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If there is a fee dispute regarding settlement $
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Atty should withdraw portion that is indisputably atty's, pay client portion that is indisputably clients, and keep the rest in the account.
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Fee disputes that are not subject to aritration at client's discretion (3)
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1. Fee disputes in criminal matters
2. If the amount is less than $1k, greater than 50k 3. If the claim involves atty malpractice |
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Atty's are responsible for the ethical violations of
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1. Themselves if they are subordinate attys.
2. themselves and their employees if they are supervising attys/partners |
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An atty may not communicate ex parte with (4)
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1. A juror during a trial
2. A judge 3. W/the adversarial party, only through atty 4. Permitted w/witnesses, exc corporate situation, if testimony could lead to corporate responsibility, go through corp counsel. |
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Duty to disclose adverse authority
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which are cases or statutes from the controlling jurisdiction only
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In an ex parte proceeding, the lawyers duty
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Is to inform the court of all material known facts, even if adverse
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Special duties of the prosecutor (2)
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1. Proceed only on probable cause
2. Disclose evidence which would negate guilt/mitigate punishment |
