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71 Cards in this Set
- Front
- Back
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[Intro]
What line to add to EVERY prof resp question? |
-Atty shall represent his client zealously, within the binds of the law
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[Process and Punishment - Generally]
4 types of discipline that can be imposed on a NY atty (AND on LAW FIRMS too) |
-Letter of admonition (confidential)
-Private or public censure -Suspension -Disbarment (name MUST come off letterhead/firm door) |
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[Process and Punishment - Admission]
What is the supreme court test for allowing admission to state bar? |
-Any regulation that is RATIONALLY RELATED to practice of law
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[Process and Punishment - Admission]
What requirements in NY to admission for new atty? For reciprocity? |
New atty
-Grad from ABA approved school OR 1 year school + studied in firm under supervision -Bar exam and MPRE passage OR Reciprocity if: -Grad from ABA approved school -Other state would admit NY atty on reciprocity -Practice in another state + 5 of last 7 years |
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[Process and Punishment - Post-Admission]
Who regulates bar admission? |
-NY Court of Appeals (highest court)
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[Process and Punishment - Post-Admission]
When you ACTUALLY KNOW there was a violation of the NY Rules of Professional conduct, what are your duties? |
-MUST report, unless confidential
-MUST be available to testify against atty |
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[Process and Punishment - Multi-Jurisdictional]
Effect if one state disciplines an atty barred in NY as well? |
-NOT automatic discipline in NY
-But NY will assists in giving effect to other sister state’s determination through full faith & credit/comity |
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[Process and Punishment - Multi-Jurisdictional]
What are the 3 possibilities for out-of-state practice |
-Associate w/ active local atty
-Pro Hac Vice admission -Mediation/arbitration out of state |
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[Process and Punishment - Multi-Jurisdictional]
Effect on duties of mutli-jur firms |
-Lawyers may only practice where admitted
-Firm letter head must include states where attys admitted |
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[Process and Punishment - Multi-Jurisdictional]
Choice of Law on the Rules of Professional conduct as applied to atty admitted in multiple states |
-BOTH states investigate, but the RPC rules applied are …
-RPC in the state in which the atty PRINCIPALLY PRACTICES apply *unless CONDUCT effect is in another state |
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[Practice of Law - Decision Making]
Which decisions are the CLIENT’s to make, and which are the ATTY’s to make (2 each) |
Client:
-Sue/appeal/settle -Testify in a criminal case Atty -Discovery -Continuances |
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[Practice of Law - Decision Making]
What is atty’s role when client has diminished capacity or is a child? |
-When at risk of substantial physical, financial or other harm, get a guardian appointed if the client can’t act in own interest
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[Practice of Law - Withdrawal]
4 situations when an atty MUST withdraw from a case |
-KNOWS client’s position is frivolous/to harass/injure
-Atty become impaired -Rep violates RPC -Client fires |
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[Practice of Law - Withdrawal]
3 situations when an atty MAY withdraw from a case |
-Client persists in using atty for crime/fraud
-Client disregards agreement re: fees -Atty inability to work w/ co-counsel impairs client |
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[Practice of Law - Withdrawal]
If atty withdraws, what must atty give to client? |
-Give notice
-Return the case file -Return unearned retainer |
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[Practice of Law - Withdrawal]
What is involves in the duty of competence? |
-Time to devote
-Physically/mentally able -knowledge |
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[Practice of Law - Withdrawal]
If lack of knowledge to be competence, what can an atty do? |
*ALE
-Associate -Learn -Emergency |
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[Practice of Law - Unauthorized Practice]
What activities constitute unauth. practice? |
-Appearance at depos/trial
-Drafting legal documents -Settling cases |
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[Practice of Law - Hindering Practice]
When may an atty lawfully enter into a non-compete agreement? |
-Retirement
-Withdrawal from the firm |
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[Establishing Practice - Firm Name]
What restrictions on firm names are there? |
-No trade names, or misleading
-Dead people in firm names are okay, so long as they were partners, BUT have to remove names if permanently disbarred (including ambassadorships) |
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[Establishing Practice - Specialist]
What requirements to advertise as a specialist (except in areas of patent, TM, or admiralty) |
First must be:
-Certified by private org. that has been APPROVED by ABA to certify, AND -Certifying organization is identified, AND -Statement that certifying org is NOT associated with NY state or required under NY law |
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[Establishing Practice - Specialist]
What line can a “specialist” use that doesn’t have to jump through all those hoops? |
-Just say practice is “limited to” a certain area
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[Establishing Practice - Advertising]
Definition of atty advertising in NY: |
-ANY communication about services, the purpose of which is to retain the atty
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[Establishing Practice - Advertising]
What ADDITIONAL advertising freedoms does NY have over the model rules? |
-Any statements that can be factually supported as of the date the ad is published
-Comparisons of atty’s services with that of other attys -NON-PAID Endorsements/testimonials of clients (MUST say prior results do not guarantee similar outcome) |
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[Establishing Practice - Advertising]
What things ARE considered misleading in advertising? (3 things) |
-Actors portraying attys w/o disclosure
-Promised or implied outcomes due to influence -CANNOT say advance costs of litigation |
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[Establishing Practice - Advertising]
How long must TV or radio ads be kept for, from the date of original airing? How about Computer-accessed ads? |
TV/radio: 3 years
Internet: 1 year |
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[Establishing Practice - Advertising]
What must be disclosed about contingent fees in advertising? |
-State the terms, INCLUDING whether client will be responsible for costs
-AND state that contingent fees not allowed in some cases |
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[Establishing Practice - Solicitation]
When are the exceptions to in-person solicitation communication (including computer, phone)? (4) |
-Close friend
-Former client -Existing client -Pro bono client |
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[Establishing Practice - Solicitation]
When is Solicitation BARRED? (2 situations) |
-When person has made it known does not want to be solicited
-After having given unsolicited advice (you have a great case if you sued) |
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[Establishing Practice – Targeted Mail]
Targeted mail MUST have what information in it? |
-Must say “attorney advertising” (for e-mails, must say this IN THE SUBJECT MATTER LINE)
-Disclosure of HOW the atty learned of the recipients identity and need for atty services |
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[Establishing Practice – Targeted Mail]
What restriction of targeted mailing is there for ALL personal injury for wrongful death cases? |
-CANNOT contact before 30 days AFTER the incident
-Provide a copy of the ad to the atty disciplinary committee |
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[Atty-client Relationship - Confidentiality]
What does confidentiality cover? |
-ANYTHING derogatory about the client, NO MATTER the source
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[Atty-client Relationship - Confidentiality]
How long does the confidentiality requirement last? |
-SURVIVES the death of the client
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[Atty-client Relationship - Confidentiality EXCEPTIONS]
When MUST an atty break confidences (SHALL report). |
-Client intent to commit a crime (incl. info necessary to prevent crime)
-To prevent reasonably certain death or substantial body harm (including children) -If client refuses to correct/recant after having lied on the stand (must report to court) -To rectify a fraud on tribunal |
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[Atty-client Relationship - Client Property]
How must an atty protect a client’s property? |
-In a ‘bonded warehouse’ (term of art)
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[Atty-client Relationship - Trial Publicity]
What kind of statements about a pending case must an atty refrain from saying? Exception? |
-Anything that will prejudice the case, EXCEPT where it would negate the damage if the other side crossed the line first
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[Conflicts]
What conditions must be fulfilled for a client to waive an atty’s conflicts: (3 parts) |
-Client must give WRITTEN informed consent AFTER:
-atty explains material risks and alternatives -a reasonably prudent lawyer would take the case (RARE!) |
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[Conflicts]
What are the ONLY 3 situations under which a lawyer can testify on behalf of his client? |
-Uncontested matter
-Suit over atty fees -Substantial hardship to client if atty withdraws after long pre-trial |
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[Conflicts]
What odd rule does NY have that says an atty is NOT disqualified b/c of conflicts re: prospective clients |
-If a person communicates w/ a client for the SOLE purpose of disqualifying the atty, then do NOT have to disqualify self
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[Conflicts]
Rule re: publicity? |
-CANNOT buy publication rights from client on case’s subject matter
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[Conflicts]
When MAY a NY atty take a lien on his client’s property to secure a fee? |
-ONLY in Domestic relations causes IF:
---Retainer agreement allows ---Notice of security interest application is given to spouse ---Court grants approval for security interest after submission of atty fees BUT cannot foreclose on primary marital residence while person remains title holder |
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[Conflicts]
Under what circumstance CAN an atty lend money to clients? |
-ONLY advance costs of litigation, OR
-Loan money to pro bono and indigent clients |
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[Conflicts]
When may a third party pay for a client’s legal fees? |
-CAN do it whenever, but CANNOT let 3rd party make ANY legal decisions – client is still the decision maker
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[Conflicts]
When may an atty do business w/ the client? |
-If the Deal is FAIR to the client, AND:
-Tell client to seek independent legal advice -Client consents in writing to ALL terms |
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[Conflicts]
2 circumstance under which you CANNOT represent a new client against a former client? |
-Current client wants to sue re: issue you previously represented old client for
-Representation of current client will involve INFORMATION ATTY PREVIOUSLY LEARNED about the old client |
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[Conflicts]
As in-house counsel, who is the client? And what are the duties? |
-The Corporation
-Report up the chain, and if NO appropriate action, report OUT (including disclosing confidential info as necessary) |
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[Conflicts]
As an insurance company rep, WHO do you represent? What specific duty do you have? |
-The INSURED, not the insurance company
-Engagement letter must be sent to BOTH insurance co. AND the insured |
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[Handling Money - Fee agreement]
What is the NY rule for min and Max fee schedules? |
-No state law re: min or max fees, BUT …
-Under NY law CAN have a retainer agreement with minimum fee if it sets forth HOW the min. fee would be incurred and calculated |
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[Handling Money - Fee agreement]
When can a client post-hoc adopt an atty’s fee agreement? |
-A client can RATIFY a fee arrangement that may otherwise be considered voidable if the client has full knowledge of their rights as a client
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[Handling Money - Contingent Fees]
When can a contingent fee NOT be used? |
-Criminal cases (including quasi-criminal cases where a loss of a license is at stake)
-Domestic relations cases (NO NY exception for past-due child support/alimony) |
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[Handling Money - Contingent Fees]
Once representation of a client in a contingent-fee case is over, what must the atty do? (2 things) |
-provide client with written closing statement computing the fee
-File copy of the closing statement with the Appellate Division |
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[Handling Money - Letters of Engagement] ****
What is a letter of engagement? |
-Letter that CLIENT DOES NOT have to sign, that states:
--Scope of representation --Explanation of atty fees/billing practices --Notice of client right to arbitrate a fee dispute |
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[Handling Money - Letters of Engagement] ****
When MUST a NY atty write a letter of engagement? |
-If fees are projected to be >$3K
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[Handling Money - Letters of Engagement]
What are the EXCEPTIONS where you do NOT have to write a letter of engagement? |
-Services rendered are similar to those rendered to client in the past
-Atty has no offices in NY -Atty provided no substantial services in NY -Domestic relations matters (see next questions) |
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[Handling Money - Domestic Relations] ***
What type of engagement letter is needed in domestic relations matters? |
-NOT just a letter of rep, a FULL WRITTEN AND CLIENT-SIGNED fee agreements
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[Handling Money - Domestic Relations]
What must the written and signed client fee agreement in domestic relations cases require to be included? |
-Statement of client’s rights and responsibilities
-Client right to arbitration -Periodic billing send out every 60 days! |
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[Handling Money - Non-lawyer relationships]
What restrictions with the management of the firm are there with non-lawyers? |
-Cannot divide LEGAL fees w/ non-lawyer
-Cannot share office space w/ non-lawyers |
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[Handling Money - Non-lawyers]
What exceptions are there to no sharing fees w/ non-lawyer? |
-Employee salaries
-Spouses of deceased partners |
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[Handling Money – Referral Fees]
When may an NY atty get referral fees? |
-Division of payment is proportion to the work performed
-Client does not object AND CONFIRMS IN WRITING -Total fee is reasonable |
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[Handling Money - Retainers]
What are the 2 types of retainers, and to whom do they belong? |
-Advance of fees (belongs to the client)
-Availability retainer (belongs to atty), BUT MUST BE REFUNDABLE IN NY |
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[Handling Money - Account Separation]
What are the 2 types of bank accounts that every atty must have? |
-Operating acct
-Client trust |
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[Handling Money - Account Separation]
What 3 rules MUST be followed re: client trust accounts? |
-Account MUST be in NY
-Atty’s own Operating acct funds may be used to cover the bank service charges of the client trust account -Accumulating interest is swept out by the IOLTA fund -Client trust account MUST BE HANDLED BY A FIRM that provides a DISHONORED CHECK report when a check is cashed due to insufficient funds |
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[Handling Money - Fee Dispute Resolution]
What ADR process MUST an atty provide for? |
-in CIVIL cases, the atty is subject to arbitration at the client’s option.
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[Handling Money - Fee Dispute Resolution]
What are the 2 EXCEPTIONS to having to be subject to arbitration? |
-If amount in dispute is LESS than $1K, or MORE THAN $50K
-If underlying claim was for malpractice |
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[Extent of Rules - Generally]
When does a SUBORDINATE ATTY get in trouble under the RPC? |
-If following superior, and matter is a close call under the RPC
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[Extent of Rules - Generally]
What must a supervising atty do? |
-Ensure self AND all subordinate attys follow the rules
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[Extent of Rules - Fair Litigation]
When many an atty contact a juror? |
-ONLY after the trial, unless prohibited by court order
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[Extent of Rules - Fair Litigation]
When may an atty contact an adversarial party? |
-ONLY through their atty, NEVER directly
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[Extent of Rules - Fair Litigation]
When may you contact witnesses? |
-ALWAYS, EXCEPT corporate representative witnesses (considered part of the ‘corp’ party)
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[Extent of Rules - Prosecutors]
What are the 2 special duties of prosecutors? |
-Proceed only on PC
-Duty to timely disclose mitigating evidence |
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[Extent of Rules - Pro Bono]
What *should* NY attys aspire to do? |
-20 hrs/year for pro bono services
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