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31 Cards in this Set

  • Front
  • Back
What limits are placed on requirements of admission to legal practice by the Constitution?
1. requirements must be rationally related to the practice of law

Two things are irrational:
a. requirement of US citizenship
b. requirement of state residency
What is a lawyer or applicant's duty with respect to other applicants to the bar?
Must report on moral turpitude.
What must lawyer do if KNOWS of a violation by another lawyer?
1. report it (unless learned of it through representation of that lawyer; then only duty is not to recommend lawyer affirmatively)
2. be available to testify
What is the effect of discipline of an attorney in another state?
Each state makes an independent determination, but other state's determination may get some weight based on ideas of comity and full faith and credit
What are the permissible forms of temporary multijurisdictional practice?
1. admitted pro hace vice
2. associate with active local lawyer
3. mediation or arbitration arising out of home state practice
4. multi state firms (lawyers only practice where admitted)
What is choice of law issue governing a matter of multi-jurisdictional practice?
1. If licensed in NY, NY rules apply
2. If admitted to NY and another state: usually choose state where principally practices UNLESS conduct's key effect is in another state
When is there mandatory withdrawal due to conflict with client?
1. client's actions are intended to harass or injure another person
2. continued employment will violate a disciplinary rule
3. lawyer's mental or physical condition will render it unreasonably difficult to carry out effective employment
4. lawyer is discharged by client
How may a lawyer overcome competence issue?
1. associate with competent attorney
2. take time to learn the law
3. ok for brief time that faced with emergency situation
When may a lawyer enter into a non-compete agreement with others lawyers/associates?
NEVER while currently employed.
Allowed for:
1. retirement agreement
2. when lawyer leaves the firm
What are requirements for lawyer to hold himself out as a specialist?
Must fit into one of the following:
1. practice admiralty, patent, or trademark
2. certification by private organization approved by ABA and the certifying organization is identified in the Ad, and it is noted that it is not affiliated with any government agency, certification is NOT required in NY, and certification does not indicate greater competence
What standard is used in determining whether advertising is false or misleading?
That of what a reasonable layperson would understand it to mean
What must attorney ads contain?
1. names/address/phone number of lawyer/law firm
2. first page must be marked attorney advertising
3. words required by the rules must be clear and legible
When can an attorney ad include things like statements likely to create expectations, comparisons to other lawyers, and discussion of past results?
when ad otherwise complies with rules and can be factually supported AND contains disclaimer that past results do not guarantee a similar outcome
What are the requirements for television and radio ads?
Must be:
1. pre-recorded
2. approved by the attorney
3. include name, office and phone number of lawyer or firm
4. be kept for 3 YEARS from initial dissemination.
What are the requirements for ads contained in computer-accessed communications?
1. retained for period of not less than ONE YEAR
2. copy of contents preserved upon initial publication, redesign, change etc. but in no event not less than every 90 days.
If lawyer advertising contingent fee-based services?
Must clearly state basis and terms of contingent fee and make clear that such fees not permitted in certain kinds of cases
Can you solicit for wrongful death/personal injury claims immediately?
NO. 30 day moratorium, except in cases where filing date is less than 30 days away and then 15 day moratorium
What must you do when using a targeted ad?
1. file copy of ad with attorney disciplinary committee
2. include audio portion in english transcript
3. ad cannot refer to fact that has been filed
4. list of targeted ad recipients must be kept for at least 3 years from last date of dissemination.
Can you target one specific person?
Generally not in person, real-time, or by phone if primary purpose is pecuniary gain.
1. close friend or relative
2. former client
3. existing client
4. pro bono client
What is rule regarding lawyer testimony on behalf of client.
Generally should not do this unless:
1. uncontested matter or formality
2. nature and value of services
3. substantial hardship to client
What is rule regarding representation of a new client against a former client
Can do this UNLESS:
1. where current client wants to sue on same matter or transaction in which you represented former client
2. where you learned confidential information from old client that is now relevant
What are your duties when setting/explaining fee?
1. explain reasons for fee (in writing if domestic relations case)
2. keep fee reasonable
3. note that state bars can't set minimums and maximums on fees
When must a fee agreement be in writing?
1. contingency fee
2. domestic relations case
3. projected to be $3000 plus
Are non-refundable fees permitted in a domestic relations case?
In a domestic relations case, when must fee disputes be submitted to arbitration?
at election of client
Are referral fees permitted?
NO. These are considered unethical. Thus, be careful when dividing fees and ensure:
1. division was in proportion to work performed
2. client is advised and does not object
3. total fee is reasonable
What are the two types of retainers?
1. client trust retainer (belongs to client and goes into client trust account)
2. availability retainer (belongs to attorney and goes into lawyer's account)
What are the requirements of a client trust account?
1. must be in NY (unless elsewhere at client's consent)
2. only bank service charges can be put into lawyer account
What is the Fee Dispute Resolution Program?
When representation commenced on, or after Jan 1, 2002 in a CIVIL matter, fee disputes subject to arbitration at client's election. Client must be told about this option in letter of agreement and when dispute arises.
1. disputes income
2. less than $100 or more than $50,000 in dispute
3. where claim involves malpratice
When are ex parte communications with a judge permitted?
if deliver copy of communication in writing to opposing counsel or party if not represented
What are the special duties of a prosecutor?
1. proceed ONLY on probable cause
2. disclose, in timely manner, evidence tending to negate guilt or mitigate punishment
3. uphold integrity of profession by not making unfair or derogatory personal references to other lawyers and not giving or lending any items of value to the judge or other public official except as permitted by Code of Judicial Conduct
(contributions to campaigns ok)