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52 Cards in this Set
- Front
- Back
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Governing Rules of Lawyers
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The rules governing conduct of NY attorneys are found in the NY Code of Professional Responsibility which is a modified version of the ABA Code
Structure of NY Code: 1) Cannons – broad statement of norms expressing standards of professional conduct 2) Ethical Considerations (ECs) – application of cannons to working conditions, not disciplinarily 3) Disciplinary Rule (DRs) – mandatory standards can get in trouble for violating |
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Complaints and Discipline
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Complaints involving a NY attorney’s conduct are investigated by the departmental disciplinary committee. In NY, filing of complaint is privileged communication and disciplinary proceeding is NOT public.
Four Types of discipline that can be imposed on NY attorney: 1) Letter of Admonition from the disciplinary committee 2) A Public Censor – Published 3) Suspensions – may not practice law for certain finite amount of time, also published. Name can stay in firm name. 4) Disbarment – cannot practice law ever again. Name must come out of firm name. In addition to disciplinary investigation, attorneys are subject to malpractice claims by client but commission of malpractice does not necessarily mean the conduct which led to the claim is subject to or rises to the level appropriate for discipline. |
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Admission Requirements
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US Sup Court says requirements to enter the bar have to be rationally related to practice of law: Require:
Graduation from ABA Accredited law school and NY: Admission can also be granted for someone who has completed 1 year of law school AND studied law in a NY law office under the supervision of a NY attorney for a period of time that when combined with the time of school adds up to 4 years (1 year of law school and 3 years at NY law office study) Must to take an oath to uphold federal and NY state constitutions What is not rational requirements for NY Bar? US Citizenship and Residency in NY |
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Bar Exam
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Must pass NY bar and MPRE
Admission without taking the bar: Applicant can be considered without an application of applicant graduated from ABA Accredited school Admitted to practice in another state, and that state would admit a NY lawyer without examination = reciprocity and You practiced law for at least 5 of the last 7 years Requirements for you when you apply to bar in NY: Truth and Full Disclosure and the Duty to Cooperate Requirements on lawyers with regard to applicants? For good applicants, don’t have to do anything For bad applicants (commit moral turpitude or bad character) then when asked must respond honestly about what you know, such as: Perjury, bribery, theft However, a single arrest for pot or single drunk driving incident is probably not enough to raise an issue of character |
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Requirements/Regulations after Admission
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Regulated by highest state court (and through its agencies)
Self-regulating profession: 2 prong duty as lawyers: When have actual knowledge a lawyer did something wrong, must report it UNLESS that information is protected as a confidence or secret and Must be available to testify against that lawyer (cannot report lawyer anonymously) If you ultimately fix what you did wrong, still subject to discipline. Cannot use as a tool of negotiation the threat to report – cannot avoid duty to report misconduct by simply trying to negotiate a settlement, the duty is the duty and you must do it or be subject to discipline. Where lawyer learns of conduct through confidentiality with client, duty of confidentiality trumps this requirement But, if have that information cannot recommend the lawyer to another state (can’t help or hurt lawyer) |
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Multi-jurisdictional Practice: Discipline
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Discipline by one state doesn’t mean will be disciplined in another – states do own investigations and most states give some effect to sister state determination on the basis of full faith and credit. If have same/similar rules give the other state’s decision some effect/respect but do own investigation as well.
May end up disciplined by one state and not another, different rules. |
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Multi-jurisdictional Practice: Unauthorized Practice
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Can’t practice where not admitted
Permissible temporary multi-jurisdictional practice 1) Associate with an active local lawyer 2) Special permission from judge called pro hac vice (for this matter only) – judge may also want you to associate with local lawyer 3) Mediation or arbitration out of home-state practice 4) Anything reasonably related to lawyer’s home-state practice If get to point where need a local lawyer, then need to associate with such a lawyer or seek permission to handle that 5) Multi-state Firms: lawyer only practice where admitted and the firm letterhead must indicate the state of admission |
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Multi-jurisdictional Practice: Choice of Law
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If licensed in NY only, then NY law rules apply (disciplinary rules)
If admitted to NY and another state, rules of the state will apply in which the lawyer principally practices unless the conduct he affects is in the other state and if so the other state’s rules will apply |
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Scope of being a lawyer
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You are a Lawyer:
24/7 worldwide whether performing professional or personal activities (why you can get in trouble for bar fight, stabbing someone, etc) |
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Client and Attorney Decision Making Powers
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Who is empowered to make which decisions in legal matters?
Client’s Decisions: those of substantive legal import 1) Whether or not to sue, settle, appeal, or have a jury trial 2) Whether or not to testify in a criminal case Attorney’s Decisions: strategy, procedure, and tactic 1) Whether or not to take deposition and who’s deposition to take 2) Granting continuances Note: Client can veto you when it comes to cost – can say “I can’t afford that, no” Attorneys must abide by the clients wishes unless doing so would be illegal, unethical, or immoral If client becomes incapacitated or if the client is a minor: Must get a guardian appointed for the client |
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Accepting/Rejecting Cases: Overview
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Lawyers have a general freedom to reject cases, although they should take cases involving the oppressed or defenseless and should do their fair share of pro bono public work. When a conflict or other problem arises, a lawyer may need to withdraw from representation
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When MUST a lawyer withdraw from representation?
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a) If the lawyer knows or it otherwise becomes obvious that the client’s position is frivolous or just based on harassment, then cannot take the case or must get out of it
b) If you become mentally/physical impaired then you must withdraw c) If representation would violate a Disciplinary Regulation, then have to get out d) If the client fires you, you have to leave – clients have the power to fire you |
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When MAY a lawyer withdraw from representation?
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For ANY reason:
a) If withdraw can be accomplished without material adverse effect on interests of client b) Client’s claim or defense is frivolous c) Client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent d) Client insists that the lawyer pursue a course of conduct that is illegal or is prohibited by a DR e) Other conduct that makes it unreasonably difficult for lawyer to carry out employment effectively f) Client insists in matter not pending before the court that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer, even if not prohibited by DR g) Client deliberately disregards an agreement or obligation to the lawyer as to fees or expenses h) Client uses lawyer’s services to perpetrate a crime or fraud i) Lawyer’s continued employment is likely to result in violation of DR j) Lawyer’s inability to work with co-counsel indicates that the best interests of client are served by withdrawal k) Client knowingly and freely agrees to termination l) Other good cause for withdrawal |
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Lawyer competence
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Should only take cases you are competent to handle
What is competence? Physical and mental ability and Legal Knowledge If don’t believe legally competent, can you overcome that incompetence? Yes: A: Association L: Learn it E: Emergency May still get sued for malpractice but won’t be disciplined |
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Scope of "practice of law"
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Do not help others engage in the Unauthorized Practice of Law: The rule is: Only lawyers may engage in practice of law. What is the practice of law?
Everything lawyer does that requires a license: a) Attending Judicial Proceedings and Depositions Interviewing isn’t practice of law, don’t need to be a lawyer to do that b) Drafting substantive legal documents (or supervise those) Filling in forms is not practice of law, don’t need to be a lawyer to do that It is ok for lawyers to give some advice to pro se litigants. Can give advice but do NOT cross the line |
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Restrictions on Future Right/Ability to Practice
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Hindering a lawyer’s future right to practice: A lawyer may not enter into a non-compete agreement or provision with his current partners or associates. Why?Cannot put any restriction on ability to practice the law, no matter how small that restriction is
Client’s have the right to hire whoever they want so can’t be under a no-compete clause Exception: As a condition of retirement and as result of retirement getting paid a lot and If leaving firm but brought in a lot of business, as condition of negotiation non-compete may be ok But when hiring someone, can’t have a non-compete as a condition |
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Firm Name
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The firm name must be appropriate
Can you name your firm the Aaabest Law Firm to ensure you are the first in the phone book? NO, not in NY. Trade names are NOT permitted. If your name is Joe Aaabest, then would be ok because not trade name How about Aaabest Legal Clinic or The Law Firm of NY? NO, it is misleading to the unwary (idiots) Even if your name is Joe Aaabest, can’t do it because seems to be saying NY is sanctioning you so can’t do that It is alright to have dead people named in your firm name but they have to be real people, can’t just make it up |
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When does your name come off of the firm name?
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If whatever happens to you is temporary, good or bad, then your name stays in the firm name. If whatever happens to you is permanent, whether good or bad, then your name comes out of the firm name.
Ambassador appointments are intended to be permanent – name comes out Disbarment is permanent – name comes out Suspension is temporary – name stays in If appointed to a government position and temporary – name stays in |
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Specialist Rules
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Holding self out as a specialist:
Can’t do that unless you are certified as a specialist or you practice patent/trademark/admiralty law Certification: By a private organization approved to certify by the ABA Certificating organization is identified Lawyer states certifying organization is not affiliated with any government authority, certification is not required for practice of law in NY, and certification does not indicate greater competence of lawyer over other non-certified but experienced lawyer in the area Applies for certification as specialist in particular area in another state as well Can instead use phrase: “Practice Limited to” or “Practices Primarily in the area of” Note: For admiralty/patent/ trademark law don’t have to have any experience required to be “certified” |
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Advertising: Overview
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Must not be false or misleading to the lay person (idiot)
Read in Update: Definition of advertising (public and private), Computer access communication (advertising rules will now govern websites/web blogs/search engines/pop up ads/etc), what ads MUST include (name, principle address of firm, telephone numbers, and telephone numbers may contain nicknames and trade names and such, and more) |
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Advertising: May include
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a) Educational background and degrees
b) Dates of admission to bar and areas of practice c) Public offices and teaching positions held d) Memberships in bar associations and other professional organizations e) Foreign language ability (must be fluent) f) Names of regularly represented clients if the clients consent in writing g) Acceptable credit arrangements and participation in group or prepaid legal services programs h) Legal fees, contingent fee rates, range of fees for services (cannot charge more than that advertised fee range), hourly rates and fixed fees for specific services (if fees are advertised, you cannot change the rate until after a reasonable period of time) Be sure NOTHING is misleading |
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Advertising: What is Misleading?
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a) Promised outcomes
b) Ability to achieve results from inappropriate use of clout/influence As long as you or your firm can factually support what you say then ok to make the claim |
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Advertising: Disclaimer and other requirements
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Required to say prior results are no guarantee for the future
Television and Radio ads must be: Prerecorded Approved by the Lawyer Include the name and address for someone responsible for the ad in the firm **Must be kept for at least 3 years (this is right, not the book) Ads contained in computer access communication must be kept for a period of not less than 1 year |
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Contingent Fees
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Observe the special rules regarding advertising contingent fees
You must clearly state the terms and basis of the fee. You must make it clear in any advertising that refers to contingent fees whether the client will be responsible for any costs. You must also make it clear that contingent fees are not permitted in all types of cases. |
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Mailings
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Be careful when using targeted mail.
Note: in mailings need “attorney advertising” to appear and electronic mailings in subject line must say “attorney advertising” You may send direct mail to groups of people likely to need legal services You can contact families of victims after an accident/natural disaster/etc but you have to wait 30 days and unless there’s some kind of filing requirement that requires contact earlier, then you can’t get to them for at least 15 days after the incident. You have to file a copy of the ad (mailing) with the attorney disciplinary committee in the district where you practice but that ad cannot refer to the fact it was filed and you must keep a list of everyone you sent it to for 3 years. |
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Mailings: Soliciting Employment
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You cannot solicit professional employment from a person by written or recorded communication if:
a) The communication is false, deceptive or misleading b) Recipient has made known to lawyer a desire not to be solicited c) Solicitation involves coercion, duress, or harassment d) Lawyer knows or reasonably should know that the age or physical, emotional, or mental state of recipient makes it unlikely the client will be able to exercise reasonable judgment in retaining a lawyer e) Lawyer intended or expects, but does not disclose the legal services will be performed primarily by another lawyer who is not affiliated with the soliciting lawyer as a partner, associate, or counsel or f) Written communication is sent by a method that requires the client to travel to a location other than that at which the client ordinarily receives business or personal mail |
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Solicitation of Clients
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Soliciting Clients: Lawyers must not solicit people by in-person or telephone contact (or computer access) unless that recipient is:
1) Close friends or relatives 2) Former clients 3) Existing clients 4) Pro bono clients If you give in-person, unsolicited advice, do not accept employment resulting from such advice |
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Client Confidentiality
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Maintain confidences of prospective, current and former clients and keep client secrets as well
Client Secret: Anything derogatory, embarrassing or hurtful regarding your client, no matter what the source. This duty is broader than the attorney client privilege addressing communications between attorney and client and this duty survives the death of the client Client’s Future Illegal Plans: If client comes to you telling you about a planned crime, you may take steps to prevent the crime but you don’t have to. Client’s Plan to Commit Perjury: If the client says he will lie on the stand, try and convince him not to but if he does it then you MUST go to the judge and seek to withdraw. But, the decision belongs to the judge. If judge says you have to stay, then you must do so. Don’t ask any questions, just have the client give their statement. Terminating the Attorney/Client Relationship: If you terminate a client relationship, do so in a manner that does not prejudice the client – give file back and unused portion of retainer and guidance in finding another attorney Also have a duty to safeguard client property |
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Client Confidentiality Exceptions
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1) Required by law or court order then can do so
2) To obtain legal or ethical advice for lawyer. Use of hypothetical’s with colleague is ok if discrete to protect identity of client |
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Publicity: Statements not permitted
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No statement may be made by a lawyer that a reasonable person would expect to be disseminated if lawyer knows or reasonably should know it will be prejudicial to proceedings re:
a) Character, reputation, or criminal record of party b) Identification of witness or expected testimony c) Possibility of guilty plea d) Existence of a confession e) Results of any exam or test f) Opinion as to guilt or innocence of defendant or suspect g) Information lawyer knows or reasonably should know will be inadmissible as evidence h) Fact defendant is charged with crime unless starting it as merely an accusation and that the defendant is presumed innocent |
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Publicity: Lawyer Statements Permitted
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a) General nature of claim or defense
b) Public information or record c) That an investigation is in progress d) Scheduling or result of any step in litigation e) Warning of danger where there is a reason to believe of a likelihood of substantial harm to a person or public interest f) In criminal case: information necessary to aid in apprehension of accused person g) Right of Reply: 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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Conflicts: Overview
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If something is a conflict, avoid it. If conduct creates even a possibility of a conflict, treat it as a conflict
To get around a conflict, need informed consent from client: 1) Client agrees after 2) The lawyer explains material risks and reasonable alternatives 3) Client agrees in writing (can be electronic) Also, must be that a reasonably prudent lawyer would still take this case (usually stay away from it to avoid any possible client) Cannot represent adverse interests of clients without consent in writing after explaining alternatives and risks |
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Times when Lawyers can testify for clients
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1) Uncontested Matter testifying to
2) About fees (such as statutes that give attorney fees) 3) If your not testifying would create a substantial hardship |
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Publication rights as payment
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Cannot take publication rights or mortgage on client’s property to secure a fee
If case is over, appeals and all, then could get paid off royalties of book written about the case. Also could pay lawyer fees with some completely different book royalties. |
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Gifts from client
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May accept gifts from clients but lawyer may not suggest that the gift be made and must affirmatively advise the client to seek disinterested advice before making a gift. There is a presumption of undue influence raised in this situation.
Exceptions: a) Family Members b) De Minimis or Nominal Gifts (Objective Test) |
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Lending money to clients
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NO loans to clients regarding the litigation
Exception: advancing court costs and the cost of litigation and can make payment of that contingent on the outcome |
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Fee payment by third party
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Can do this with the permission of your client
The client remains the client regardless of who pays the bills – take the instructions from the client and also keep attorney-client privilege with the client (tell the third party to talk to your client) |
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Sex with clients
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Lawyers cannot demand sex as condition of representation. (Pre-existing is OK). Cannot coerce a client into a sexual relationship in a domestic relations matter during the representation.
No rule of imputation: Definition of “sexual relations” can be found on p20 of BarBri outline So someone else in the firm can take the representation over |
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Doing business with clients
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A lawyer is generally prohibited from doing business with clients, unless the transaction is fair to the client. In such case, clients should be advised to seek independent legal advice, client consents in writing and all terms are fully disclosed in writing in a manner that can be reasonably understood by the client.
Exception: standard commercial or other ordinary transactions (banking or brokerage etc) are ok |
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Current and Former Client Lawsuits
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Lawsuits between current and former clients. You may represent a current client in an action a former client except:
a) When your current client wants to sue your former client involving a matter or transaction in which you represented the former client OR b) When during representation the former client you learned confidential information that is now relevant ot the action by the current client Don’t get tricked: It is ALWAYS a conflict to represent a current client against a current client. You must NOT undertake such a representation, even with client consent. |
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Representing a corporation/partnership
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As the lawyer for a corporation or partnership you represent the entity, not any of the individuals or directors involved.
a) Lawyer can be director of company, but no attorney-client privilege in board meetings b) Duty to report securities violations up the chain of command to CEO c) If not appropriate response, must report to board of directors and may report to outside authority d) May reveal confidential information to extent necessary to protect client (corporation) and lawyer has discretion in this regard e) Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing confidential information to persons outside the organization |
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Representing the Insured
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Lawyer represents insured NOT the insurance company paying the bills. Confidential information from the insured is protected from disclosure from the insurer and in the insurance company cannot direct the case decisions. Engagement letter must be sent to both insurance company and the insured.
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Fees: Overview
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Lawyer has to explain fully the reasons for the fee. Keep fee reasonable and note that state bars cannot set either minimum or maximum schedules.
Among the permissible factors used to determine reasonableness are: 1) Time and Labor 2) Novelty and difficulty of the questions involved 3) Requisite skill to perform legal service 4) Customary fee within locality for similar work 5) Experience, ability and reputation of attorney 6) Interference with other employment by the attorney 7) Time limitations imposed by the client or circumstance 8) Whether fee is fixed or contingent Ratifying fee agreement: client may ratify attorney’s fee agreement during period of continuous representation even if attorney misconduct occurred during that representation |
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When can you charge contingent fees?
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1) Cannot charge them in criminal cases (lost of license for doctor is quasi-criminal so can’t have contingent fees)
2) Cannot charge them in domestic relations cases (child support and alimony are not exceptions) |
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Fees projected to be more than $3000
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If fees are projected to be $3000 or more the agreement has to be in writing. This does not apply if services are of the same general kind previously provided to client or if services involve a domestic relations matter.
In this situation, the retainer agreement must include: 1) Scope of legal services to be provided 2) Explanation of attorney’s fees to be charged 3) Expenses and billing practices 4) Notice of client’s right to arbitrate a fee dispute You do not need a letter of engagement where the fee is expected to be less than $3000, where services rendered are similar to those rendered in the past, where lawyer has no office in NY or no material portion of services are rendered in NY, or in domestic relations matter where a specific letter is required. |
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Fees in Domestic Relations Matters
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Includes divorce, separation, annulment
1) Fees must be in writing signed by lawyer and client 2) Lawyer must provide prospective client with a statement of client’s rights and responsibilities at the original conference 3) No non-refundable fees in domestic relations matters 4) Cannot use contingency fee to collect unpaid alimony or child support 5) Fee disputes must be resolved by arbitration at election of client 6) Billing must be sent out every 60 days and the attorney must return any unused part of retainer at the conclusion of the case |
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Splitting Fees
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1) Never divide legal fee with a non-lawyer
2) Can split other kinds of fees with non-lawyers Exceptions: 1) Salaries, retirement plans, bonuses, profit sharing 2) Spouses of deceased partners to pay fees earned by deceased partners 3) But an attorney and non-attorney can share office space as long as they do not appear to be a law firm – need space physically separate and appear separate 4) Referral fees are unethical Can split fees with other lawyers working on the case provided: 1) Divided according to work performed 2) Client must be advised and not object 3) Total fee cannot be unreasonable |
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Retainer
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1) Advance on fees – belongs to client (goes into trust account)
2) Availability retainer – belongs to attorney (goes to lawyers account) |
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Accounts
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Every lawyer must have:
Operating account = yours Client trust account = only their money |
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Client Trust Account
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Must have one, use it, keep records of its use, and not mix up the client trust account with the operating account
Client trust account must be located in NY unless client consents to it being somewhere else Bank charges are paid by the lawyer and that money can be in the client trust account As you earn the money, move it out. Can’t intermingle or put money in the wrong account or else that will be conversion. If dispute, pay off the stuff not disputed and leave the disputed amount in the client trust |
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Fee Dispute Resolution Program
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Where representation commenced on or after Jan 1, 2002, in a civil matter, fee disputes between lawyer and client are subject to arbitration at the client’s option and the client must be told about this option in the letter of agreement (where required) and when a fee dispute arises
Exceptions to this program: 1) Fee dispute in criminal manner 2) Amount in dispute less than $1000 or more than $50,000 3) If the claim involves malpractice |
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Being Professionally Responsible
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Associate must follow the rules – if you were told to do something that violates the rules but you thought it was ok, then its an excuse
Supervising lawyers are held responsible for what they told the associate to do Ex Parte Communications: Jurors – NEVER outside of court Judges – only de minimis or emergency communication Adversarial client – Need their lawyer Witness – Ok to talk to them Adverse Authority – must disclose statute/cases in the controlling jurisdiction Special Duties of Prosecutor 1) Proceed only on probable cause 2) Must disclose (in timely manner) evidence tending to negate guilt or which could mitigate the degree of the offense or reduce the punishment Uphold the integrity of the profession and its members by not making unfair or derogatory personal references to other lawyers and not giving or lending any items of value to a judge or other public official except as permitted by the Code of Judicial Conduct (contributions to campaigns are ok) |
