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123 Cards in this Set
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What are the rules reg conduct of NY attornyes?
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NY Rules of Professional Conduct
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tested on in essays and MC, usually in torts, real prop, domestic relations, wills, crim law
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Who investigates complaints?
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Grievance Committee (GC) of 1 of the 4 appellate departments
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Is filing a complaint public or private?
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It's privileged communication, so it's private, not published publicly and the hearing is not public (but if someone is found guilty, that becomes public)
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What are the types of discipline that can be imposed on a NY attny?
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1. admonition: slap on wrist by GC; 2. public or private censure by the courts; 3. suspension: take away license for finite pd of time, can't practice law or share legal fees; 4. disbarment: death! take away ticket to practice!
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Are disciplinary actions the only things that attnys face as a consequence of bad behavior?
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no, also subject to malpractice claims by clients, third parties; where? in the supreme court
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What is the standard for admitting people to the bar, according to the Supreme Court?
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state reqs for admission to the bar must be rationally related to the practice of law; rational=req graduation from ABA accredited law school, BUT in NY can be admitted if applicant a) completed 1 year of law school, and b) studied under supervision of a NY attny for 3 additional years
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What are the NY bar admission reqs?
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pass a written bar exam and the MPRE. OR a) graduated from ABA accredited law school, and b) been admitted to practice in another state AND that state would admit a NY lawyer without examination, known as reciprocity, AND c) practiced law for at least 5 of 7 years preceding application to NY bar
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What does an applicant have to do when applying to the bar?
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1) burden on applicant to show "good moral character" thru a) truth and b) full disclosure; 2) duty to fully cooperate with admission authorities
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What are your reqs re other applicants besides you?
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for good applicants: input is aspirational only (could recommend person, but not req); for bad applicants: MUST report conduct involving moral turpitude=conduct contrary to justice, honesty, or good morals (ex. perjury, bribery, filing false tax return; NOT misdemeanor like marij)
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How are you regulated after you are admitted to the bar?
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by highest state court and its agencies: Court of Appeals; AND it's a self-regulating profession, where a lawyer: 1) MUST report substantial rule violations by another lawyer, AND 2) be available to testify (can't report anonym); also, can't bargain duty to report in exchange for something else!
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What happens if you are representing another lawyer, and learn of his misconduct?
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duty of confidentiality trumps duty to report, but you MAY NOT recommend the lawyer for admission in another state
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What happens if you are licensed in 2 states and are subject to discipline?
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discipline by one state does NOT mean discipline in the other state, b/c other state makes independent determination of whether the conduct violates that state's ethical rules, but most states will give some effect of sister state's determination on basis of comity: reciprocal discipline
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What is unauthorized practice (multi jurisdictional matters)
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can't practice where you aren't admitted, EXCEPT: permissible temporary multi-jurisdictional practice: 1) can associate with an active local lawyer; 2) special permission called pro hac vice (for 1 case); 3) mediation or arbitration out of home-state practice; 4) anything reasonably related to lawyer's home-state practice; 5) multi-state firms: lawyer only practices where admitted and firm letterhead indicates states where attnys are admitted
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What is the choice of law in mult-jurisdictional matters?
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if licensed in NY only, then NY rules apply; if admitted to NY and another state, rules of the state in which the lawyer PRINCIPALLY PRACTICES will apply UNLESS the conduct's PREDOMINANT EFFECT is in another state, then that OTHER state's rules apply; (ex. say an attny is licensed in NY and IL, lives and works in NY, and arrested for drunk driving: investigation will occur in both NY and Il and rules will be NY b/c principally practices) (same facts, but a case in Il is dismissed b/c attny is too drunk to show up to case: can be investigated in NY and Il, but apply Il law b/c predominant effect there)
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At what times are you a lawyer?
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24/7, during prof and personal obligations
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What are decisions that clients can make in legal matters?
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those of substantive legal import: 1) commence an action; 2) settlement (even low offers, must run by client first!); 3) appeal; 4) jury vs. bench trial; 5) testifying in a crim case or taking a plea agreement
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What are the decisions that attorneys can make?
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those of strategy, procedure and tactic: 1) discovery methods to use (like depos, interrogs); 2) granting adjournments that dont prejudice rights of client (giving adverse party extra time to do things)
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Do attorneys always have to abide by client's wishes?
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generally must abide by wishes, EXCEPT: if doing so would be illegal, unethical, or immoral
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What happens if a client loses ability to make clear decision or is a minor?
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must have a guardian appointed; In NY can take protective action and seek to substitute his own judgment for that of the clients if client: 1) has diminished capacity, AND 2) is at risk of substantial phys, finanical or other harm, AND 3) cant adequately act in her own interests
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Do lawyers have right to reject all cases?
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yes, but SHOULD take cases involving oppressed or defenseless and do fair share of pro bono
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When MUST a lawyer withdraw from representation?
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a) lawyer KNOWS rep will result in violation of the prof rules or law; b) lawyer suffers phys/mental disability; c) client fires lawyer; d) lawyer knows client is taking steps SOLELY to harass or maliciously injure another person
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When MAY a lawyer withdraw from representation?
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a) client's claim/defense is frivolous; b) client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; c) client DELIBERATELY disregards an agreement or obligation to the lawyer as to expenses or fees (not just financial hardship and can't pay, must be delib); d) client uses lawyer's services to perpetrate a crime/fraud; e) lawyers continued employment is LIKELY to result in violation of a professional rule (diff that KNOWS that it will result in violation in the 'must' withdraw category); e) lawyer's inability to work w/ co-counsel indicates that the best interests of the client are served by withdrawal
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What does competency entail?
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a lawyer must only take cases he is competent to handle, or encourage client to seek other counsel; competency= 1) phys and mental competence, AND 2) competence in subst law, AND 3) having sufficient time to devote to matter
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How do you overcome lack of competence?
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by association with competent lawyer, or becoming competent in the area!
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What does it mean to not help others from engaging in the Unauthorized Practice of Law (UPL)?
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practice of law=every activity that reqs a license: a) appearances in judicial actions (like taking depo); b) drafting legal docs (like a will, k); c) settling cases for clients
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if an attny authors a doc but has a secretary dictate it, this is NOT UPL, it's ok
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Can a lawyer enter into a non-compete agreement with current partners?
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generally no, EXCEPT: 1) an agreement concerning benefits on retirement, where if you leave firm you lose benefits; OR 2. in a sale of a law practice (policy: don't want guy who sold it to compete for same clients)
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What is the req for a firm name?
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must not be misleading; trade names not allowed (like Law Firm of New York); can include name of a deceased partner in firm name AS LONG AS attny practiced at firm while he was alive; must remove partners names if disbarred or in full-time gov't work (which would imply that firm has relation/connections to govt); can KEEP name of suspended partner on letterhead
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What's the rule on calling yourself a specialist?
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can't hold out as specialist UNLESS you are certified as a specialist or practice patent, trademark or admiralty. if advertising your specialty, must: 1) be certified by private organization approved by ABA or NY state, 2) certifying organization MUST be identified in the ad;
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What must a lawyer 'state' regarding specialization/certification?
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state that certifying organization is not affiliated with any govt authority, certification is not req for practice of law in NY, and certification does not indicate greater competence of the lawyer over the non-certified but experienced lawyers in the areas (this also applies for certification as a specialist by another state)
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What can you say if you don't feel like going through all the 'specialist' or 'certification' process?
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can instead just say practice is "limited to" or "concentrates in"
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What is lawyer advertising?
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any public or private communication made by or on behalf of a lawyer or law firm about the lawyer or services, the primary purpose of which is to RETAIN lawyer or firm. EXCEPTION: communications to 1) existing clients, or 2) other lawyers
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What is a computer-accessed communication?
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includes any commun disseminated through the use of a computer/electronic device which includes, but is not limited to: websites, blogs, email, pop-up ads, chat rooms, listserves, instant messaging, texts
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What MUST ads include?
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1) name; 2) principal law office address; 3) phone number of the lawyer or firm whose services are being offered (phone number may contain a domain name, nickname, moniker or motto that does not otherwise violate RPC (like 1-800-lawyer)); 4) label "attorney advertising" must appear on first page of hard copy ads and website home pages). Any words or statements req by rules must be clearly legible and capable of being read by the average person and understood if spoken aloud
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What MAY ads include?
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if such info is true and not misleading: 1) educational bckground and degrees; 2) dates of admission to bar and areas practice; 3) public offices and teaching positions held; 4) memberships in bar associations and other professional organizations; 5) foreign lang fluency (must be fluent!); 6) names of regularly represented clients IF clients consent in writing; 7) acceptable credit arrangements and participation in group or prepaid legal services programs; 8) legal fees, contingency rates, range of fees for services (if so, firm SHALL abide by the ad), hourly rates and fixed fees for specif services (if fees advertised, can't change rate until AFTER REASONABLE pd of time); 9) bona fide professional ratings (must say ratings apply equally to all members of the bar)
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Assuming that an ad conforms to RPC AND can be "factually supported" by the firm on the date of publication, what else can ads contain?
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1) statements that are reasonably likely to create an: expectation of results the lawyer can achieve or which describe quality of work; 2) statements that compare lawyer's services w/ another's; 3) testimonials or endorsements of clients otherwise not prohibited; 4) testimonials or endorsements of former clients. ALL OF THESE MUST HAVE DISCLAIMER: "prior results do not guarantee a similar outcome"
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Can lawyers use a domain name that does not include name of lawyer/law firm?
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yes, provided that: 1) all pages clearly include the actual name of the lawyer/firm (if it's Blank Rome, can use brlawfirm.com) AND 2) lawyer/firm never attempts to use domain name to practice law (can't say that brlawfirm will help you!) AND 3) domain name does not imply an ability to obtain results in the matter
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Can you mention your connections in an ad/website?
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NO, this is misleading: can't promise outcomes and ability to achieve results from improper influence/clout/implying ability to improperly influence govt officials
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Compare reqs for a tv/radio ad to a computer-accessed communication in terms of retention of a copy in case GC needs to review it during investigation
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tv/radio: must be approved by the lawyer, include name, address, phone number and COPY KEPT for 3 years following initial dissemination; computer accessed: retained for period of not less than 1 year
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Whats the rule on advertising contingent fees?
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must clearly state terms and basis of rate, and whether client must pay costs, and that contingent fees not available in all types of cases (remember there are 2 types where def NOT allowed!)
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What constitutes solicitation of clients? What does NOT constitute solicitation?
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a) face to face interaction (give card); b) live phone communication; c) live electronic commun (chat rooms, ims); NOT: websites, pop-up ads, emails
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How does a solicitation compare to ads?
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all solicitations are under umbrella of ads and subject to ad rules
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What is the rule on solicitations?
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lawyer CANNOT engage in a solicitation, which is: any advertisement, initiated by or on behalf of a lawyer/firm, directed to or targeted at specific persons, or fam or legal representatives, the primary purpose is retention and signif motive of "pecuniary gain", via in-person or phone contact, real time or interactive comp access communications, BUT EXCEPTIONS
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What recipients of solicitations are valid?
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those to a 1) close friend; 2) a relative; 3) former client; 4) existing client
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What happens if a person falls in a group that is allowed to be solicited, but they don't want to be solicited?
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MUST not solicit in any form of communication if recipient has made known a desire NOT to be solicited
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What happens if a lawyer solicits for another lawyer (partners)
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NOT allowed, a lawyer can't assist another lawyer in violating solicitation rules
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What happens if a non-lawyer solicits for you?
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NOT allowed, a lawyer can't violate rules thru acts of a non-lawyer...if a nonlawyer did so without your knowledge, and you find out, must not accept those cases
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Who can you send targeted mail to?
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can send direct mail to groups of ppl likely to need legal services
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it's impersonal mailing, but reqs heightened scrutiny
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What do self-mailing brochures or postcards have to state on it? What about emails?
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"Attorney Advertising" shall appear on it; for emails, that phrase must be in subject line
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What happens if a retainer agreement is included with the targeted mail/solicitation?
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the words "do not sign" must appear on the client signature line (applies to non-NY lawyers if targeted NY clients)
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What do targeted mailings/solicitation at pre-determined recipients need to disclose?
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how the attorney learned of recipient's identity and need for legal services. a list of names and addresses of the recipients must be kept for 3 years
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What is the rule for soliciting ppl in personal injury or wrongful death matters?
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lawyer or agent/representative can't solicit BEFORE the 30th day AFTER the incident, UNLESS filing is required in less than 30 days, in which case can't solicit BEFORE 15th day AFTER the accident
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When can a lawyer not solicit by written or recorded communication?
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1) communication is false, misleading or deceptive; 2) recipient has made it known to lawyer desire not to be solicited; 3) solicitation involves coercion, duress, harassment; 4) lawyer reasonably should know that the age or physical, emotional or mental state of the person makes it unlikely that he/she will be able to exercise reasonable judgment in retaining a lawyer; 5) written communication is sent by a method that reqs the recipient to travel to a location to receive the mailing other than personal/business
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If a potential client initiates communication/solicitation for advice, is that ok?
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yes; you just cant give in-person, unsolicitied advice and then seek employment from that person
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What is your duty of confidentiality
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must maintain confidential communications and secrets of prospective, current and former clients; must keep secret anything derogatory or embarrassing: broader than the attny-client privilege, which just addresses communications b/t attny and client that are confidential and for legal advice
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Can you reveal past crimes of a client?
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no, not if said in confidence
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What happens if your client commits perjury?
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must direct client to correct the testimony, and if he refuses, lawyer MUST disclose perjury to the tribunal (judge) even if it reqs revealing confidential info
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What do you need to do if you have to terminate a client relationship?
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must do so in way that doesnt prejudice client: 1) give reasonable advance notice; 2) return file; and 3) return any unused portion of retainer
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What are the exceptions to confidentiality, where you MAY (not must!) reveal confidences?
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you MAY reveal confidence if: 1) it's required by court order, rules, law (although you can try to appeal b4 turning over docs); 2) to obtain legal/ethical advice for a lawyer (can use hypos with colleague); 3) to prevent client from committing a crime; 4) to prevent reasonably certain death or subst bodily harm (to protect third parties, like children, from serious risk of harm in extraordinary circs); 5) disclosure is expressly authorized to advance best ints of client
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When MUST you reveal a confidentiality (not just may)?
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to rectify a fraud on a tribunal committed by the lawyer's own client
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What is the duty to safeguard property?
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must store it in a warehouse or garage, lawyer can't use client's property for own use
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What are some restraints on lawyer's ability to speak to the public about trials?
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general rule: no lawyer can make a statement that a reasonable person would expect to be disseminated if the lawyer KNOWS or REASONABLY SHOULD KNOW it will be prejudicial to case regarding: a) character, reputation or crim record of a party, b) id of witnesses/testimon, c) possible guilty plea, existence of confession and opinion as to guilt or innocence of d or suspect, d) info lawyer knows or reasonably should know will be inadmissible as evidence, e) fact that d is charged with crime, unless saying it's allegation and innocent til proven guilty
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What CAN lawyers speak about to public about a trial?
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a) dry facts about case (like alleged murder, address where occurred), b) warning of danger where there is reason to believe of a likelihood of substantial harm to person/public interest, c) in crim case: info necess to aid in apprehension of accused
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What is the right of reply?
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lawyer can make statement to extent necess to protect client from subst prejudicial effect of recent publicity, NOT initiated by the lawyer or client; must only be used to mitigate effect of improper statements (can mention the d's good character to mitigate prosecution publicity)
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What is a lawyer's duty re conflicts of interests?
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basic rule: under NYRPC, a lawyer must not enter into a relationship where there is potential conflict of interest that is likely to adversely affect his ability to exercise independent and professional judgment; must not accept or continue employment if this occurs, or if the lawyer would be representing differing interests; lawyer must REFUSE employment when his professional judgment will reasonably be affected by his own financial, business, property, or personal interests
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When can a lawyer accept a case with a conflict?
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ONLY if: 1) a disinterested lawyer would believe that the lawyer can competently and diligently represent the client's interests, AND 2) ALL clients have given informed consent--must take 3 steps: 1. explain conflict and risk to client (full disclosure), and 2. ensure rep is not prohib by law, and 3. obtain consent IN WRITING.
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Can you rep 2 current clients against each other at same time?
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NO, can't even get a waiver via informed consent
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Do lawyers ever testify on behalf of their clients?
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no, UNLESS: 1) testimony relates to uncontested matter, nature and value of legal services, OR 2) a matter of formality (witness to will)
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When can you rep the adverse ints of a client or prospective client?
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usually can't, UNLESS: lawyer fully explains risks and alternatives (informed consent) and client consents IN WRITING
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What happens if person communicates with a lawyer for purpose of disqualif them?
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usually a lawyer can't handle materially adverse representation on the SAME or SUBSTANTIALLY RELATED matter; but if someone does it for the sole purpose of disqualifying (like in a divorce proceeding to make sure husband doesnt get good lawyer) then NOT treated as a prospective client
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Can lawyers gain property interests related to case subject matter?
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No, prohibited. EXCEPTIONS: in NY domestic relations, can take lien on real property or obtain a Security Interest (SI) to secure his fee if: 1. retainer provides that SI can be sought, and 2. notice of application for SI given to other spouse, and 3. court approves SI
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Can an attorney foreclose on a client's mortgage?
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NO, an attny cannot foreclose on a mortgage placed on a marital residence while the spouse who consents to the mortgage remains titleholder and it's their primary residence
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What about media rights?
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NO, CANT even NEGOTIATE media rights agreement (until all aspects of case concluded) creates bias in outcome of case
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Can you lend $ to clients?
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generally no, cant advance any financial assistance to a client in litigation (like food, medical bills, rent) EXCEPT: a) court costs, b) expenses of litigation (usually for indigents and pro bono clients
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What happens when a third party pays a client's legal fees?
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usually occurs in parent-child relationship; must still take direction of client even if third party paying bills
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What are the rules on sex with clients?
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cant demand sex as condition of rep; pre-existing sex is ok; can't coerce client to have sex or just enter into sexual relationship with client during domestic relations matter (during the rep); NO RULE of IMPUTATION: if a coworker starts sleeping with your client, YOU dont get in trouble; definition of sexual relations is BROAD (can be touching)
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Can you do business with clients?
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generally no, UNLESS transaction fair and reasonable to client; in those cases, client should be 1) fully informed of terms of transaction IN WRITING, and 2) advised IN WRITING to review transaction with INDEPENDENT counsel. EXCEPTION: if standard commercial or other ordinary transactions (like buying a car from your car salesman client, or banking at your client's bank) then OK
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Can you rep a current client against former client?
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yes, EXCEPT when current client wants to sue former client involving matter or transaction in which you rep former client, OR you learned of confidential info now relevant to action brought by current client against former client (usually info about the client's financial situation is relevant); BUT if info no longer confidential or if client consents IN WRITING, then can rep current against former
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dont forget, a client cant consent to a conflict where you are asked to rep current client against current client, this is conflict that is NOT allowed, even if on completely diff/unrelated matters! on exam: make sure to see if a current client is really 'current'
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If you rep a corp or partnership, who do you represent?
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the entity, not the individuals
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What are your duties to a corp/partnership?
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proceed as reasonably necessary to protect the best intsts of the org and report violations to higher authority in org; duty to report securities violations up the chain of command to CEO
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What happens if you report to CEO and don't get an appropriate response?
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MUST report to board of directors and MAY report to outside authority (depending on bi-laws)
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Can you reveal confid info of a corp/partnership?
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MAY reveal confid to extent necess to protect client (corp), lawyer has discretion
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If you take any measures to report violations of a corp, what should you try to do to minimize damage?
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measures should be designed to minimize disruption of org and risk of revealing to outside org (can give person time to correct problem)
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Who is the real client when an attorney working for an insurance co is assigned to represent one of their insured in a lawsuit?
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client is the insured, not insurance co. Letter of Engagement (LOE) msut be sent to insurer and insured/client
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What are your duties re fees and explaining them to client?
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MUST commit fees to writing; duty to explain fully reasons for fee, keep fee reasonable and note that state bars CANNOT set either MIN or MAX fee schedules, EXCEPT: for med malpractice (max set by legis) AND a lawyer can enter into a min fee agreement ONCE sets forth how fee will be incurred/calculated
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What happens to a fee if attny misconduct occurs during rep?
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a client may RATIFY the agreement during a period of continuous representation, even if attny committed misconduct during that pd, AS LONG AS client's ratification not procured as result of the misconduct (basically if client accepts benefit of rep, and misconduct unrelated, then ratified)
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Can a client ratify a fee agreement that is otherwise voidable?
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yes, can ratify if client fully informed, who has full understanding of the facts and knowledge of their rights as a client, and voluntarily affirms existing agreement
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When can you NOT be charged a contingency fee?
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in 1) a crim matter (includes disciplinary hearings for doctors etc, which are deemed quasi-crim; don't want to promote lying or corruption of witnesses to get your client a good deal) or 2) in domestic relations matters (this includes alimony, child support, etc! policy is to preserve sanctity of marriage)
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What must lawyer provide client with at end of the rep regarding fees?
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a written closing statement, stating outcome of the matter and computing the fee (filed in Appellate division)
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What is a written LOE?
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letter of engagement/retainer agreement: if fees are projected to be $3k or more, fee arrangement must be IN WRITING, and MUST INCLUDE: 1) scope of services, 2) explanation of fees to be charged, 3) expenses and billing practices, 4) notice of client's right to arbitrate a fee dispute (BUT EXCEPTIONS TO ALL OF THIS)
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What are the exceptions to needing to write a LOE?
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a) fee is less than $3k, b) services are of same general kind as previously rendered to and paid for by the same client, c) attny has no office in ny and admitted in another jurisdiction too, OR no material portion of services performed in NY (so even if office in ny, if not material services there, no need for letter), d) domestic relations matter, need more specific letter. NOTE: in a) (fees) and c) (material portion services), must still ORALLY communicate scope of rep and basis of fee
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What is a domestic relations matter?
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any action involving: divorce, separation, annulment, custody, visitation, maintenance, child support, or alimony; includes prelim hearings, enforcement or judgment-modification hearings, and appeals
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What should happen re the fee arrangement in domestic relations?
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must be in writing signed by lawyer and client
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What doc should lawyer send to domestic relations client?
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prospective client sent a statement of client's rights and responsibilities at initial conference, and prior to signing of written retainer agreement (usually only need to post this in an office, but in dom rel cases, must get their own copy)
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Can you impose non-refundable fees in dom rels cases?
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no. can't do this in any matter
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Can you use a contingency fee to collect unpaid alimony or child support?
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no
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how are fee disputes resolved in dom rel cases?
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arbitration at election of the client
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When must periodic billings be sent out in dom rel cases?
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every 60 days and at concl of case, attorney must send back any unused portion of the retainer
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Can a lawyer be a partner with a non lawyer?
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If ANY part of the partnership involves practice of law, NO
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Can you divide legal fees with non lawyer?
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no; CAN use legal fees to pay salaries, retirement plans, bonuses, profit sharing plans, spouses of deceased partners can be paid fees earned by deceased
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Can attorney and non attorney share office space
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yes, ONLY IF space phys separated in fact and appears so to public; must ensure thru precautions that non lawyer's clients are not coerced to use lawyer for legal matters
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Can a lawyer in another firm get referral fees?
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NO, referral fees are prohibited
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Can a lawyer get outside counsel to help, and then split fees with him?
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yes, can split fees, ONLY IF: 1) client consents to hiring of the lawyer and dividing of fee, and 2) total fees must be reasonable, and 3) division must be in proportion to services performed OR each lawyer assumes joint resp for repres in a writing with client and then split up how they want (all of this prevents blind fee sharing)
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What are types of retainers?
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2: 1) advance on fees (belongs to client and goes into client's trust acct) and 2) availability/general retainer (belongs to attny, goes in his acct)
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must make sure to take $ out of client's trust and transfer to operating accnt as you complete work, don't wait til end, b/c technically it's considered comingling of funds; keep records of use of client acct, dont mix them up
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What are the types of accts every lawyer MUST have?
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2: 1) operation (firm's accnt, lawyer's $) and 2) client trust (only client's $ goes in there, BUT attny can cover BANK FEES to keep acct open)
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What are rules for client trust acct?
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account must be in NY bank; funds to maintain acct are the only lawyer funds can be in the acct; client funds MUST be place in a bank that provides Dishonored Check Reporting (in case check bounces, then copy of report mailed to lawyer and after 10 days, sent to Discp Commit to take action...lawyer CANT deposit own funds to prevent this)
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What happens to interest?
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swept out into NY IOLA fund
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What are you charged with if you use client funds?
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conversion! even if return it later!
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What happens if the client disputes your fee?
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pay client the amount that he is owed, then transfer to your account the fee that the client feels you deserve, then keep the disputed amt in the client's trust account til dispute resolved
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In a civil matter, where do fee disputes get resolved?
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subject to arbitration at client's option, b4 going to court, but client must be told about this in LOE (where req) and when a fee dispute arises
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Are there exceptions to fee disputes being resolved thru arbitration?
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yes: 1. crim matters, convicted d doesnt get to arbitrate; 2. if amount in dispute is less than $1k and more than $50k, can go straight to court; 3. dispute involves malpractice
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What are obligs of a subord lawyer?
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must follow rules, even if acting at other's direction; BUT no violation if follow supervisor's instructions on an arguable question of prof duty
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What are obligs of a superv lawyer?
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abide by rules and ensure all lawyers and non ls conforming to rules; superv can be held resp for conduct of subord if knew of wrongful conduct and didnt report, OR if told subord to do it
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Can you speak to jurors ex parte during trial?
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NO, not about ANY issue! BUT, after trial ok, UNLESS: a) prohib by court order, b) juror doesnt want to talk, c) purpose is to harass juror
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Can you speak ex parte to judge?
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NO, not during trial, except for diminimus communications or in a settlement conference
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Ex parte comm with adverse party?
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NO, not if represented by counsel
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Ex parte talk with witnesses?
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no limitations, EXCEPT: if w is high level corp officer or corp employee, whose liability can be imputed to corp, must obtain corp counsel's permission to speak to them
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What duty do you have to disclose adverse authority?
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yes duty to disclose adverse/contrary case law/statutes that are DIRECTLY adverse to client's position; duty DOES NOT extend to facts or witnesses adverse to client
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Do you have a duty to disclose adverse authority in ex parte proceeding?
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must inform tribunal of all material FACTS (not just authorities!) known to lawyer that help them make informed decision; unlike in court, here you MUST disclose material facts, as in a TRO case
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What are the special duties of a prosecutor?
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1) must proceed only on PC, 2) must disclose in timely manner exculp info that could mitigate degree of offense or reduce punishment (Brady)
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Pro bono
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encouraged, aspire to: 1) provide 20 hours a year, 2) contrib financially to orgs that provide such services
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How uphold integrity of profession?
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not make unfair or derog remarks to other lawyers or lending/giving items of value to a judge or public official except as permitted by CJC (like campaign contribs, OK even if appear b4 judge!)
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What is a registration statement?
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every 2 years every attny must file a registration statement after being admitted to the NY bar, public record submission of a written request and fee
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What should you add to essays?
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1) in a civil problem: lawyer must rep client zealously w/in bounds of the law, and make only meritorious claims and contentions; 2) crim problem: same ..., but may defend the proceeding so as to require every element of the crime to be established by the prosecution (allows lawyer to say my client is not guilty even when know he is!)
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