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55 Cards in this Set
- Front
- Back
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4 types of discipline
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• 4 types of discipline:
○ Letter of admonition from disciplinary committee. ○ Public or private court censure ○ Suspension--name stays on door/letterhead, but cannot practice ○ Disbarment |
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Malpractice and discipline
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Malpractice: attorneys are also subject to malpractice claims by clients, but commission of malpractice DOES NOT automatically mean discipline.
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Admission to profession
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• Admission to profession: SCOTUS says requirements must be rationally related to practice
○ Rational: graduation from ABA law school (in NY: 1 year of law school, PLUS studied law in NY in NY firm supervised NY licensed attorney for 3 years). ○ Bar exam requirements: Bar exam and MPRE Admission w/out the bar: an applicant can be considered without exam if the applicant has (1) graduated from an ABA law school, (2) been admitted to practice in another state AND that state would admit a New York lawyer without examination (known as reciprocity) AND (3) practiced law for at least five of the last seven years preceding application for admission. |
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Requirements prior to admission
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○ Requirements prior to admission:
§ On you as applicant: Applicant must be (1) truthful and give full disclosure (the burden is on the applicant to show “good moral character” and (2) there is duty to cooperate. § On other applicants: Other applicants are (1) encouraged to give input as to good applicants (aspiration) and (2) have duty to report on moral turpitude (i.e. conduct contract to justice, honesty, modesty, or good morals. Ex: Perjury, bribery, theft; but not single arrest for pot). |
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Regulation after admission
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○ Regulated by highest state court (and through its agencies)
○ Self-regulation: Attorneys have a TWO PRONGED duty when you KNOW of a violation— § Report (exception if information is confidential—i.e. when lawyer is client); □ Ex. If A1 knows of A2’s violation (e.g. failure to pay money to client) A1 must report. A1 will be in violation of DR if he merely warns A2 to pay or be reported. □ Recommendation of another lawyer: If L1 has knowledge of L2’s violation, but it is confidential or secret, L1 still cannot recommend L2 for admission to another state. § Be available to testify (no anonymous reporting). |
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Multi jurisdictional practice
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○ Licensed in more than one state: Discipline by one state does NOT mean there will be discipline in other. Other states make independent determination of whether conduct violates state rules. Most other states will give some effect to a sister state’s determination (full faith and credit / comity)
○ Unauthorized practice: cannot practice where not admitted ○ Permissible temporary multi-jurisdictional practice: § Associate with active local lawyer; and/or § Special permission called pro hac vice. § Mediation or arbitration out of home-state practice. § Anything reasonably related to lawyer’s home-state practice § Multi-State Firms: lawyer only practices where admitted and firm letter head must indicate states of admission. |
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Choice of law for multi jurisdictional matters
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§ If licensed in New York only, then NY Law and rules apply.
§ If admitted to New York and another state(s), all states where Lawyer is admitted will investigate wrongful conduct. Rules of state will apply in which lawyer principally practices unless conduct’s key effect is in another state, then that state’s rules will apply. |
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Client decisions
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○ Client’s decisions: subjective legal import
§ Appeal, sue, settle bench or jury trial. Whenever settlement is proposed to attorney, attorney must inform client. § Whether to testify in criminal case. D has no right to testify in civil case. § Attorneys must abide by client's wishes unless doing so would be illegal, unethical or immoral (report other lawyer even if client refuses to appeal). |
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Attorney decisions
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○ Attorney’s decisions: strategy, procedure, and tactic
§ Depositions (subject to client’s veto on basis of cost), § Granting continuances. § Client loses competence/child: even when client loses ability to make clear decision, Lawyer cannot make decisions, Lawyer must get a guardian appointed □ Three part test to substitute client’s wishes: a) client has diminished capacity; b) client is at risk of substantial physical, financial or other harm; c) client can’t adequately act in their own interest |
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When must attorney withdraw?
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○ When must an attorney withdraw from representation?
§ Client’s position is FRIVOLOUS or HARRASSING or maliciously injure any individual. § Lawyer becomes impaired (mentally or physically)' § When representation would violate Rule of Professional Conduct § Client fires lawyer |
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When may attorney withdraw?
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○ When may attorney withdraw from representation? (Civil always allowed; Criminal court decides)
§ if withdrawal can be accomplished without material adverse effect on interests of client. § client’s claim or defense is frivolous. § client persists in a course of action involving lawyer’s services that lawyer reasonably believes is criminal or fraudulent. § Client deliberately disregards an agreement or obligation to the lawyer as to fees or expenses. § Client uses lawyer's services to perpetrate crime or fraud § Lawyer's continues employment is likely to result in violation of Rule § Lawyer's inability to work with co-counsel indicates that best interests of client are served by withdrawal. |
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Competence
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• Competence: Lawyer should take only cases he competent to handle or encourage client to seek other counsel.
○ Competence includes—physically and mentally able; have legal knowledge to handle matter and time to put into case. ○ Overcome lack of competence or expertise by: (“ALE”) 1) Associate with competent attorney; 2) Learn it in time; 3) Emergency (can act with incompetence when in emergency situation). |
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Unauthorized practice of law
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• Unauthorized Practice of Law: Only lawyers may engage in practice of law. Lawyers may not help others engaged in the unauthorized practice of law (includes helping lawyers practice where they are not admitted). Lawyer can give advice to a pro se party on how to win at trial (b/c pro se parties can represent themselves).
○ Practice of law: Everything that requires law license:--1) attending judicial hearings and appearances in depositions; 2) draft substantive legal documents (wills, trusts, pleadings); 3) settling cases with clients Permissible without license: 1) interview; 2) draft memos; 3) fill in forms. |
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Non-compete clauses
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• Non-Compete Clauses: Hindering lawyer's future right to practice is impermissible. Lawyer may not enter into a non-compete agreement or provision with his current partners or associates. Why? Clients have a right to hire whomever they want.
○ Exceptions (Only reasonable non-competes are allowed in these instances): § conditions of retirement from firm; § separation or withdrawal from firm. |
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Firm name
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• Firm Name: must be appropriate. No trade names or misleading names. Partner’s names must be real. Deceased partner’s name may remain in firm name.
○ Removing names: If partner permanently leaves (good or bad reason), name comes out. If partner temporarily leaves (good or bad reason), name stays. § Permanent removal: Appointed to be ambassador; become senator; get disbarred. § Temporary removal: Appointed as acting ambassador; get suspended from practice. |
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Specialists
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• Specialists: Lawyer cannot hold himself out to be a specialist, unless Certified as Specialist; or practice Patent, Trademark, or Admiralty law.
○ Certified Specialist: How to advertise that you are "certified specialist": 1. Certified by private organization approved to certify by ABA or New York state, 2. Certifying organization is identified, AND 3. Lawyer states that certifying organization is not affiliated with any governmental authority, certification is NOT required for practice of law in New York, and certification does not indicate greater competence of the lawyer over other non-certified lawyers. § Above also applies for certification as a specialist in particular area of law by another state. ○ Not Certified, but want to limit practice: Can indicate “Practice limited to” or “Primarily in area of” |
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Advertising
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• Advertising: any public or private communication made by or on behalf of lawyer or law firm about lawyer services, primary purpose of which is to retain lawyer or law firm (do not apply to communications with other lawyers or current clients.
○ Computer-access communication: any communication made by or on behalf of lawyer or law firm that is disseminated through use of computer or other ○ Must include: name, principal law office address and telephone number of lawyer or law firm whose services are being offered. Telephone number may contain domain name, nickname, moniker or motto that does not otherwise violate Rules § Any words or statements required by rules must be clearly legible and capable of being read by average person and understood if spoken aloud § Label "attorney advertising" on first page |
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Advertising may include
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§ educational background and degrees
§ dates of admission to bar and areas of practice § public offices and teaching positions held § memberships in bar associations and other professional orgs § foreign language ability (must be fluent) § names of regularly represented clients if the clients consent in writing § acceptable credit arrangements and participation in group or prepaid legal services programs § legal fees, contingent fee rates, range of fees for services, hourly rates and fixed fees for specific services (If advertised, cannot change the rate until after a reasonable period of time). § Statements that are reasonably likely to create expectation about results lawyer can achieve or which describe or characterize quality of lawyer's/law firm's services that can be factually supported. § Testimonials or endorsement of clients otherwise not prohibited § Testimonials or endorsements of form client MUST include disclaimer: past results do not guarantee future performance. |
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Advertising con't
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○ MAY not include:
§ Paid endorsements must be disclosed § Actors--must be disclosed ○ Domain names: § All pages clearly and conspicuously include actual name of lawyer or law firm; lawyer/law firm in no way attempts to engage in practice of law using domain name; domain name does not imply ability to obtain results in a matter. ○ Misleading: promised outcomes; ability to achieve results because of clout • Television and Radio Ads: approved by lawyer, and include Name, Office Address, and Telephone number of the lawyer or firm whose services are being offered. Must be kept for 3 years. Computer accessed communication shall be retained for 1 year. |
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Contingency fees
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• Contingent Fees: 1) must clearly state the TERMS and BASIS of fee; 2) must make it clear whether client will be responsible for any costs; 3) must make it clear that contingent fees are not permitted in all cases
○ Ex. “No charge for initial consultation. We don't get paid unless you recover.” –Not acceptable. |
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Solicitation
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• Solicitation: lawyer shall not engage in solicitation (meaning any advertisement initiated by or on behalf of lawyer/law firm that is directed to or targeted at a specific person(s), or their family or legal representatives, primary purpose of which is retention of lawyer/law firm and with significant motive of pecuniary gain) by in-person or telephone contact, or real time or interactive computer accessed communications (includes real-time or interactive computer-accessed communications refers to conversational communications and includes instant messaging and chatrooms; does not include ordinary email, websites or pop-up ads.)
○ Computer-access communication: any communication made by or on behalf of lawyer or law firm that is disseminated through use of computer or other ○ Unless close friend or relative; former client; pro bono client ○ No solicitation of ANY form of communication whatsoever is permitted if recipient has made clear. Rule of imputation: Applies to partners and associates as well. |
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Targeted mail solicitation rules
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○ Targeted Mail: Special rules apply—
§ May send direct mail to groups of people likely to need legal services. § Self-mailing brochures or postcards: must include "attorney advertising". Email must include attorney advertising in subject line. § If retainer agreement is included with soliciation: sample included on top of page in red ink in type size equal to largest type used in agreement and word "do not sign" shall appear on client line signature. □ Apply to lawyers not admitted to NY who solicit retention by NY residents. □ Solicitations directed to pre-determined recipients MUST disclose how attorney learned recipients identity and need for legal services. List of names and address of recipients must be kept for 3 years. |
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Personal injury or wrongful death solicitation
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○ No personal injury or wrongful death by lawyer or agent representative before 30 days, unless filing required within 30 days, then 15 day waiting period.
§ copy must be filed with departmental judicial committee of the appropriate department and advertisement must not refer to the fact that it has been filed (transcript if TV or radio). Record of recipient list must be kept for one year. |
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No solicitation is allowed
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○ Must not solicit by written or recorded communication if:
§ communication is false, deceptive, or misleading; or § client has made known to lawyer desire not to be solicited; or § solicitation involves coercion, duress, or harassment; or § lawyer knows or reasonably should know that the age or physical, emotional, or mental state of the client makes it unlikely that client will be able to exercise reasonable judgment; § lawyer intended or expects, but does not disclose that legal services will be performed primarily by another lawyer who is not affiliated with soliciting lawyer (partner, associate); § written communication is sent by method that requires the client to travel to location other than that at which client ordinarily receives business or personal mail. |
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in-person unsolicited advice
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• In-person, unsolicited advice: If you give in-person, unsolicited advice, do not accept employment resulting from such advice. (Ex. Lawyer sees an accident. If lawyer tells victim he has a case, lawyer cannot represent).
○ If client comes to you (calls you), it is not unsolicited advice and lawyer can represent. |
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Duty of confidentiality
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• Duty: Lawyer must maintain confidences of prospective, current and former clients and keep client secrets.
○ Client Secret: Anything derogatory, embarrassing or hurtful regarding your client, no matter what the source. Duty is broader than attorney client privilege which addresses communications between attorney and client. Duty survives death of client. ○ Past crimes: past crimes are secret and cannot be disclosed. ○ Future crimes: lawyer SHALL reveal intention of client to commit crime and information necessary to prevent crime. ○ Client testifies falsely: If you know your client lied, 1) try to get client to recant; 2) if client will not, disclose to court, even if protected by confidentiality rule. Don't be party to perjury: seek to withdraw, civil always granted, criminal up to judge—if judge says no, must stay but don't argue any of client's lies). § If you withdraw: give client notice, give the file back, give them a chance to get a new lawyer. |
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Exceptions to confidentiality
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○ Exceptions to Confidentiality:
§ Required by law or court order to disclose--1) try to get permission from the client to disclose; 2) make good faith efforts to judge not to disclose. If ordered, must disclose. § To obtain legal or ethical advice for lawyer: Use of hypothetical with colleague is ok if discrete enough to protect identity of client. § To prevent client from committing crime. § To prevent reasonably certain death or substantial bodily harm. § To protect vulnerable children in extraordinary circumstances § To rectify fraud on tribunal committed by lawyer's own client § Disclosure expressly authorized to advance client's best interest. |
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Trial publicity
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○ No statement may be made by a lawyer that reasonable person would expect to be disseminated if lawyer knows or reasonably should know it will be prejudicial to proceedings re:
§ character, reputation or criminal record of party, § identification of witness or expected testimony § possibility of a guilty plea § existence of a confession § results of any exam or test § opinion as to guilt or innocence of defendant or suspect § information lawyer knows or reasonably should know will be inadmissible as evidence § fact that defendant is charged with crime unless stating it as merely accusation and that defendant is presumed innocent |
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Trial publicity--what lawyer may say
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○ Lawyer may state:
§ Dry facts about case § warning of danger where there is a reason to believe of a likelihood of substantial harm to a person or public interest § in a criminal case: information necessary to aid in apprehension of an accused person § Right of Reply: lawyer may make a statement to the extent necessary to protect client from substantial prejudicial effect of recent publicity not initiated by lawyer or client. |
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Conflict of interest
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• Basic rule: Avoid conflicts and exercise independent professional judgment. But, in event of conflict, refuse to accept or continue representation in most cases.
○ Rule of thumb: On bar exam, look for anything that might drive a wedge between a lawyer and client; for obligations to other clients, a lawyer's obligation to herself, or obligations to the firm. |
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Informed consent
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• Informed Consent: Accept case with conflict only if all clients have given their informed consent and prudent lawyer would have taken case.
○ Steps to obtain Informed Consent: client must 1) AGREE; 2) in WRITING; 3) after lawyer explains material risks and reasonable alternatives. After these steps you must then 4) decide if reasonably prudent lawyer would take case. |
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Testifying lawyers
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• Testifying: Lawyers cannot testify on behalf of client unless: 1) uncontested matter or matter of formality; 2) about fees or 3) Substantial hardship to client.
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Conflicts situations
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• Conflict Situations: General rule—lawyers cannot represent adverse interests of client or prospective client unless lawyer fully explains risks and alternatives (informed consent) and client agrees in writing.
Person who communicates with lawyer for purpose of disqualify lawyer from handling materially adverse representation on same or substantially related matter is not a prospective client. |
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Interest in publication rights
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○ Interest in Publication Rights: Prohibited to take an interest related to Case Subject Matter while litigation is pending. Can be paid with an interest is something other than litigation.
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Mortgage on fee
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○ Lawyer cannot take a mortgage on a client’s property to secure a fee.
§ NY distinction: In domestic relations matters, lawyer may take lien on real property or obtain security interest to secure his fees if: □ If RETAINER AGREEMENT PROVIDES that security agreement may be sought. □ Notice of application for Security interest in GIVEN TO OTHER SPOUSE □ COURT GRANTS APPROVAL l for security interest after submission of counsel fees. □ But attorney shall not foreclose on mortgage place on marital residence while spouse who consents to mortgage remains titleholder, and is primary residence. |
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Lending money to clients
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Lending money to clients is generally prohibited (even de minimis). Can advance court costs and expense of litigation, repayment of which can be contingent on case outcome. NY allows you to loan money to indigents and pro bono clients. (remember cannot advertise that advance litigation expenses in way that makes it seem special because most lawyers do).
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Fee payment by third party
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○ Fee payment by a third party is permitted if 1) client consents; 2) client remains client (i.e. in control of decisions) and 3) lawyer-client confidentiality remains. Follow client’s instructions, not the instructions of the person paying.
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Sexual relationships
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○ Sexual Relationships: Lawyers cannot demand sex as condition of representation. Pre-existing sexual relationship is OK.
§ Cannot coerce a client into a sexual relationship or enter into a sexual relationship in a domestic relations matter during representation. If relationship begins during representation, must withdraw. Other lawyers in firm can take over representation. |
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Doing business with clients
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○ Doing business with clients: A lawyer is generally prohibited from doing business with clients, unless the transaction is FAIR to client and get informed consent in writing.
§ Clients should be advised to seek independent legal advice and all terms are fully disclosed in writing in a manner that can be reasonably understood by the client. § Exception: standard commercial/ ordinary transactions (ex. Banking services) are ok. |
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Law suit between current and former client
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○ Lawsuits between current and former clients: may represent current client in action against former client except:
§ Related matter: When your current client wants to sue your former client involving matter or transaction in which you represented former client, OR § Learned now relevant information: When during representation of former client you learned confidential information that is NOW RELEVANT to action by the current client. □ If information is no longer confidential (made public) or if client consents, no conflict. § DANGER: always conflict to represent current client against current client in current matter. Must not undertake such representation, even with consent. |
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Representation of corporation or partnership
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○ Representing corporation or partnership: As lawyer for corporation or partnership, represent entity, not any of individuals or directors involved.
§ Duty to proceed as is reasonably necessary to protect the best interests of the organization and report violations to higher authority within organization. § Duty to report securities violations up chain of command to CEO § If not appropriate response, must report to board of directors and may report to outside authority. § May reveal confidential information to extent necessary to protect client (corporation) and lawyer has discretion in this regard. § Any measures taken shall be designed to minimize disruption of organization and risk of revealing confidential information to persons outside organization. |
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Representing insured
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○ Representing Insured: Lawyer represents insured not insurance company, even though insurance company paying the bills.
§ Confidential information from insured is protected from disclosure from insurer and in insurance company cannot direct case decisions. Engagement letter must be sent to both insurance company and insured |
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Fees
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• Fees: Lawyer has the duty to explain fully the reasons for the fee; Keep fee reasonable and note that state bars cannot set either minimum or maximum fee schedules.
○ Lawyer can enter into fee agreement with client with minimum fee clause once it sets forth how such fee with be incurred and calculated. § Basically, you can consider most anything in determining whether a fee is reasonable. |
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Ratifying fee agreement
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• Ratifying fee agreement: client may ratify an attorney's fee agreement during representation even if attorney misconduct, so long as client's ratification is not procured as result of misconduct.
○ Fully-informed client who knowingly and voluntarily affirms existing fee arrangement that might otherwise be considered voidable can ratify as long as that client has full understanding of facts and knowledge of their rights as client |
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Contingent fees
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• Contingent fees:
○ No contingent fee in criminal case (and quasi criminal cases). Where license can be revoked/fines is quasi criminal. ○ No contingent fee in domestic relations case, including past due alimony (bad debt). End of matter: lawyer must provide client with stating outcome of matter and computing fee. Must be filed with Appellate Division. |
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Written letter of engagement
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• Writing: If fees are projected to be $3,000 or more, fee agreement must be in writing (no signing by client required).
○ written retainer agreement must include: § Scope of legal services to be provided § Explanation of attorneys’ fees to be charged § Expenses and billing practices § Notice of client’s right to arbitrate a fee dispute ○ Exceptions: No need a letter of engagement where the fee is expected by be less than $3000, where services rendered are similar to those rendered in past, no office in NY or no material portion of services rendered in NY, or in domestic relations (specific letter required). But must communicate letter of engagement even though not required to be in writing. ○ No written letter of engagement: can still probably recover fees in quantum meruit. |
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Fees for domestic relations matters
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• Domestic Relations Matters: lawyer representing client in any action involving divorce, separation, annulment, custody, visitation, maintenance, child support, or alimony. Includes preliminary hearings, enforcement or judgment modification hearings, and appeals.
○ Fee agreement must be in writing, signed by lawyer and client. ○ Lawyer must provide prospective client with statement of client’s rights and responsibilities at initial conference and prior to signing of written retainer agreement. ○ No non-refundable fees in domestic relations matters. ○ Cannot use contingency fee to collect unpaid alimony or child support. ○ Fee disputes in domestic relations matters must be resolved by arbitration at election of client ○ Periodic billing must be sent out every 60 days and at conclusion of case, attorney must send back any unused portion of the retainer. |
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Relationship with non-lawyer
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• Relationship with Non-Lawyer: lawyer cannot be partner with non-lawyer if any part of partnership involves the practice of law.
○ Rule: Never divide legal fee with non-lawyer. If lawyer uses non-lawyer for part of case, i.e. accountant, lawyer must pay accountant separately, no fee splitting. ○ Exceptions to Rule: § Salaries, Retirement Plans, Bonuses, Profit Sharing § Spouses of deceased partners receive fees earned by the deceased partner. ○ Office space: attorney and non-attorney can share office space so long as space is physically separate in fact and appears so to public. Precautions must insure that non-lawyer’s clients are not coerced to use lawyer for legal matters. |
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Relationship with other lawyers
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• Relationship with other lawyers: dividing fees with lawyer in another firm
○ Referral fees are unethical. Can have reciprocal referral agreement with lawyer or non-lawyer as long as non-exclusive. ○ Can split fee with another attorney if: 1) fee is divided PROPORTIONATELY to work performed; 2) client is advised and does not object; and 3) total fee is reasonable. |
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Two types of retainer
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• Retainer--2 Types:
○ Advance on fees (belongs) to client (goes into trust account) ○ Availability retainer (belongs) to attorney (goes into lawyer’s account). No nonrefundable availability retainers. |
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Accounts and moving money
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• Accounts and moving money: Two types of accounts every lawyer must have:
○ Operating: lawyer’s money ○ Client Trust: client money (can have some of lawyer’s money in this account to maintain bank fees). Have one, use it, keep records of its use, and don't mix up your trust account with your operating account. No commingling funds. § Must be located in NY (or elsewhere with Client’s written consent) § Bank service charges are only lawyer funds that can be put in client trust account. § For small sums accumulating, interest are swept out and sent to IOLA § Dishonored check reporting: client funds must be maintained in bank that provides dishonored check reporting when check is dishonored due to insufficient funds. Copy of report is mailed to lawyer and after 10 days, report is sent to disciplinary commission to take action. |
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Fee dispute resolution program
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• Fee dispute resolution program: in civil matter, fee disputes between lawyer and client are subject to ARBITRATION at CLIENT'S OPTION. Client must be told about option in letter of agreement (where required) and when fee dispute arises.
○ Exceptions to this mandatory program: Lawyer can go to court if, § Fee disputes in Criminal Matters § Amount in dispute is less than $1,000 or more than $50,000 Where claim involves malpractice. |
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Supervisor/subordinate duties
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• Subordinate/Supervising: Subordinates and Supervisors must all follow the Code of Prof. Responsibility
○ Subordinate Lawyer: must abide by rules. § Defense of “following a supervisors orders,” must it be at least arguable that conduct you did was allowed. ○ Supervising Lawyer: must abide by rules, and be sure subordinates follow rules. Supervisors can be held responsible for conduct of subordinate if (1) supervisor told subordinate to do it, or (2) knew and did not report violation. |
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ethical conduct of litigation
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• Conducting litigation fairly:
○ Ex Parte Communications during trial § With jury: nothing outside courtroom during trial. But after trial ok unless: prohibited by court order, juror does not want to talk OR purpose is to harass juror. § With judge: Only de minimus, or in emergency, or part of settlement conference. § With adversarial party: Only through lawyer. □ Corporation: Supervisors are usually parties, must go through General Counsel. § With witnesses: Direct communication allowed. □ Corporation: Supervisory position or whose testimony could lead to corporate liability, need to go through GC. ○ Adverse Authority: affirmative duty to disclose contrary or adverse authority, which means: cases or statues, but only controlling jurisdiction. No duty to disclose facts or witnesses. |
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Special prosecutor duties
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• Special Duties of the Prosecutor: Proceed only on probable cause. Must disclose (in a timely manner) evidence tending to negate guilt or which could mitigate degree of offense or reduce punishment.
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