New York Bar Exam - Professional Responsibility

Front 1

What is the source of rules of professional responsibility in NY?

Back 1

NY Code of Professional Responsibility, which consists of:
1) Disciplinary Rules (DR) — "must" rules (subject to discipline for violation)
2) Ethical Considerations — "should" rules (but not subject to disciplinary action)

Front 2

What are the general substantive standards for PR?

Back 2

Lawyer/Law firms must not:
1) Violate or circumvent DRs
2) Engage in illegal conduct that adversely reflects on honesty, trustworthiness or fitness
3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation
4) Obstruct justice
5) Unlawfully discriminate in practice of law
6) Engage in any other conduct that adversely reflects on fitness as a lawyer (e.g., drugs)

Front 3

What is the disciplinary procedure?

Back 3

1) Initiated by complaint to disciplanry committe or appellate divison
2) Preliminary screening
3) Non-public hearing

**Lawyer has right to counsel, examine witness, self incrimination

Front 4

How far does the scope of NY disciplinary authority reach?

Back 4

A lawyer admitted to practice in NY is subject to disciplinary authority of NY, regardless of where the conduct occured.

**Lawyer may also be subject to discipline for the same conduct in another state where the lawyer licensed

Front 5

When does an atty have a duty to report disciplinary violations?

Back 5

Must report other lawyers' violations of DRs and cooperate with grievance committee w/ 2 exceptions:
1) Confidences
2) Secrets

Front 6

When can a lawyer practice law in another state in which he's not admitted and not be guilty of unauthorized practice?

Back 6

1) "pro hac vice" appearances
2) clients involvede in multistate business
3) multistate law partnerships (provided ind lawyers practice where they're admitted), and
4) practice before fed admin agencies

Front 7

What are the responsibilities of supervisory lawyers and subordinate lawyers?

Back 7

1) Law Firms — Must ensure all attorneys comply with DRs AND must implement/enforce firm procedures
2) Supervisory Lawyers — must ensure subordinates comply with DRs
3) Subordinate Lawyers — must obey DRs, despite instructions to contrary from supervisory lawyers

Front 8

What is the lawyer's most basic duty with repect to clients?

Back 8

To act competently and with care in handling legal matters for a client.

**May not accept employment in an area in which he is not qualified and become qualified woul result in reasonable delay or expense to the client.

Front 9

What is the emergency exception for lawyer expertise?

Back 9

In an emergency the lawyer may assist the client even if he lacks expertise in the area.

**Assistance cannot exceed what is reasonably necessary te meet the emergency.

Front 10

What is a confidence?

Back 10

Any information protected by the atty-client privilege.

Front 11

What is a secret?

Back 11

Non-confidential information learned through rep of a client that:
1) Client requests be kept confidential, OR
2) Would be embarrassing or detrimental to client if revealed.

Front 12

What is the attorney client privilege?

Back 12

Allows a client to refuse to testify and prevent his attorney from testifying in court about communications between the two.

Front 13

Who does the atty-client privilege cover if the client is a corporation?

Back 13

It will cover employees if:
1) the employee communicates with the atty at the direction of a supervisor
2) the employee knows that a communication is to help the corp get legal advice, AND
3) the communication concerns a subject w/in scope of the employees duties.

Front 14

How long does the atty client privilege continue?

Back 14

Indefinitely, even after the relationship has terminated or client dies.

Front 15

What is the scope of the professional duty to preserve all confidences and a secerets?

Back 15

Lawyer must not reveal any confidences or secrets that the client has requested remain confidential or would be embarrasing or detrimental to the client.

**Much broader than the atty-client privilege.

Front 16

Does the duty to preserve secrets and confidence become compromised if others are present?

Back 16

No, unlike atty-client privilege.

Front 17

What is the duration of the duty to preserve confidences and secrets?

Back 17

Covers the period prior to, during, and after the relationship.

**Duty can arise with respect to a client that has not been hired.

Front 18

What are the exceptions to the duty to preserve?

Back 18

1) Informed consent of client
2) Required by law or court order
3) To reveal client's intention to commit crime, and information necessary to prevent crime (applies to any crime—NOT limited to death or bodily harm)
4) Necessary to collect fee OR to defend accusation of wrongful conduct
5) To extent implicit in withdrawing statement now known to be false

Front 19

What is the scope of the duty to preserve confidence and secrets?

Back 19

Duty extends beyond mere nondisclosure to include using it to the disadvantage of the client or the advantage of another.

**Must take care to prevent employees from disclosing.

Front 20

What is the general rule regarding advertising?

Back 20

Must avoid any type of communication about the lawyer or his services that is false or misleading.

Front 21

What limitations exist on ads, in addition to the general rule?

Back 21

1) Must have consent of client to use their name
2) Must include name, address, and number
3) TV or Radio ad must be prerecorded and a copy retained for one year
4) Mailing lists must be retained for one year

Front 22

What communciations are specifically prohibited under the code?

Back 22

Communications that:
1) promise or suggest outcomes
2) state or imply ability to improperly influence a court or gov't official
3) are made to appear as legal documents
4) contain info in a type font too small to be read by most
5) use an actor to portray the lawyer w/o meaningful disclosure.

Front 23

When may a lawyer solicit prospective clients in person or via phone?

Back 23

Only when they are:
1) Close friend
2) Relative
3) Former client
4) Current client

Front 24

When may a lawyer solicit prospective clients wia written or recorded communications?

Back 24

Shall not solicit from prospective clients if:
1) Recipient has communicated a desire not to be represented
2) Age, physical, emotional or mental state impairs their reasonable judgment

Front 25

Are referral fees permitted in NY?

Back 25

No, they're strictly prohibited.

Front 26

When may a lawyer represent themself as a "specialist" in a praticular area?

Back 26

A lawyer who has been certified by a private organization as a specialist may state so if:
1) the org has been approved by the ABA
2) the organizantion is identified
3) The disclaims that such certification is not required

**May always state practice areas.

Front 27

When does an atty have an obligation to reject clients?

Back 27

1) He is unable to render competent service
2) The proposed client wants to bring an action merely to harassor or injure
3) The proposed client has not terminated a relationship with another atty

Front 28

When may an atty withdraw from a case he was appointed to?

Back 28

Only where there are "compelling reasons".

**Repugnance, belief of guilt, or belief regarding the merits are not "compelling reasons"

Front 29

When must a lawyer refuse employment due to his own conflicts of interest?

Back 29

When his professional judgment will or reasonably may be affected by his own financial, property, or personal interest, unless:
1) A disinterestd lawyer would believe there's not problem, and
2) Client consents

Front 30

What are the exceptions to the rule that a lawyer can't rep a client where he or a firm member should be called as a witness on a signifant issue?

Back 30

1) If the testimony will relate sole to an uncontested matter
2) Tesimony only relates to a matter of formality
3) Testimony will only concern the nature and value of legal services rendered
4) Withdrawal will result in substantial hardship to the client

Front 31

When will simultanous representation constitute a conflict of interest?

Back 31

1) Can never represent parties on the opposite sides of the 'v'
2) Can't sue a current client on behalf of another clien
3) Can't rep a client if independent judgment on behalf of that client is likely to be affected by representation of another client.

**Consent and disinterestedness applies to #3.

Front 32

When will representing a current client against a former client constitute a conflict of interest?

Back 32

Cannot represent a current client in same or substantially related matter in which his interests are materially adverse to interests of a former client

**Can represent current client if former client consents, in writing, after full disclosure

Front 33

When is disqualification of one lawyer imputed to the entire firm?

Back 33

All lawyers in firm are disqualified if any lawyer is disqualified b/c of:
1) Personal interests,
2) Simultaneous representation conflict, or
3) Former client conflict

Front 34

Who is the actually client in an insurance defense case?

Back 34

The lawyer represents the insured and cannot furnish any of the client's confidential info to the insurance company.

Front 35

What is the general rule with respect legal fees?

Back 35

1) Fee must be reasonable in light of particular circumstances
2) Must fully explain the fee arrangements.

Front 36

What is a contingent fee?

Back 36

A fee that is dependent on the successful resolution of the client's case.

**Must be in writing

Front 37

What must be included in the written contingent fee?

Back 37

1) Method of calculating fee (including percentage in event of settlement, trial or appeal),
2) Expenses to be deducted from recovery, and
3) Whether such expenses are deducted before or after fee is calculated

Front 38

When are contingent fees prohibited?

Back 38

1) Criminal matters
2) ANY domestic relations matters (including proceedings to enforce or modify judgment)—no "incentive" fees either

Front 39

What are the requirements for fee agreements in domestic relations matters?

Back 39

1) Must be in writing (as prescribed by court)
2) Must be signed by lawyer and client
3) Must send out regular monthly bills—can't just send one big one at the end
4) Lawyer must furnish statement of client's rights and responsibilities at initial conference and prior to signing of written retainer agreement
5) Fee disputes must be resolved by arbitration at election of client

**If lawyer doesn't comply he doesn't get paid.

Front 40

When can a lawyer share a fee with an "outside lawyer"?

Back 40

Only if:
1) Client consents after full disclosure,
2) Total fees of all lawyers do not exceed reasonable compensation, AND
3) Either: Division is in proportion to services performed by each lawyer, OR Division may be made in any manner, so long as each lawyer assumes joint responsibility for the representation in a writing given to client

Front 41

What other fee restrictions are there?

Back 41

1) Proprietary interests in litigation prohibited
2) No financial assistance to clients
3) No interest publication rights prior to concluding all aspects of the arrangement
4) May not suggest that a gift be made to lawyer
5) No business transactions between lawyer and client.

** It is permissible for a lawyer to bill one person for legal services to another.

Front 42

What is the duty to protect client's property?

Back 42

1) An atty must keep separate from her own property all property belonging to the client,
2) All funds of the client paid to the lawyer must be deposited in an identifiable bank account,
3) Lawyer must notify client when he recieves property and maintain records.

Front 43

What are the duties of an attorney befor attempting termination of the atty-client relationship?

Back 43

Before attempting to terminate at any stage of the proceedings, the attorney must:
1) Obtain permission from the tribunal (if required)
2) Take any reasonable step necessary to avoid foreseeable prjudice to client
3) Return any unearned advance fee.

Front 44

When is withdrawal from the atty-client relationship mandatory?

Back 44

1) Client is merely harasing opposing party
2) Continued employment will violate a disciplinary rule
3) Lawyers mental or physical condition makes it unreasonaly difficult to effectively represent client
4) Lawyer is discharged.

Front 45

How is the responsibility divided as to legal decisions?

Back 45

1) Client makes decisions affecting merits (eg: accepting settlement, waiver of aff defense, plea, etc)
2) Lawyer makes procedural/tactical decisions (eg: motions, scope of discovery, W choice, etc)

Front 46

What is the rule regarding trial publicity?

Back 46

Lawyer must not make an extrajudicial statement that:
1) a reasonable person would expect to be disseminated by means of public communication, and
2) the lawyer knows or should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.