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84 Cards in this Set
- Front
- Back
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Where can the rules governing the conduct of NY attorneys be found?
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NY Rules of Professional Conduct, which are a modified version of the ABA model rules.
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What is the biggest difference between the NY rules of professional conduct and the ABA model rules?
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NY rules allow disciplining of law firms.
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What types of discipline can be imposed on a NY?
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1. Letter of admonition from disciplinary committee (private)
2. Public or private censure by the courts 3. Suspension: cannot practice law for a finite period 4. Disbarment: take license away (name comes off the door and letterhead) |
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Are attorneys automatically subject to discipline if they commit malpractice? Have they committed malpractice if they are subject to discipline?
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No - they are tested separately.
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What standard has the U.S. Supreme Court held applies to requirements for admission to the bar?
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They must be rationally related to the practice of law.
Graduation from an ABA accredited law school is rational. |
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Can someone be admitted to the NY bar without completing law school?
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Yes, if the person:
1. Completes one year of law school; and 2. Studied under the supervision of an NY licensed for 3 years. |
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When can an applicant be admitted to the NY bar without taking the bar exam?
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1. Graduated from an ABA accredited law school; and
2. Been admitted to practice in another state AND that state would admit a NY lawyer without examination (reciprocity); and 3. Practiced law for at least 5 of the 7 years proceeding application |
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What requirements on an applicant applying to the bar?
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1. Truth and full disclosure
2. Duty to cooperate |
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What requirements do lawyers have regarding other applicants applying to the bar?
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1. Aspirational duty to praise good applications
2. Duty to report moral turpitude (conduct contrary to justice, honesty, modesty or good morals) |
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Who regulates attorneys in NY?
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NY Ct. of Appeals and its agencies
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What must a lawyer do when he KNOWS of a violation?
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1. Report unless protected as confidential information; AND
2. Must be available to testify against lawyer |
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Must a lawyer who learns of the bad conduct of another lawyer through representation of that lawyer report the misconduct to the bar?
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No. The duty of confidentiality trumps.
But he may not recommend the lawyer for admission to another bar. |
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What effect does discipline in one state have on an attorney who is admitted to practice in multiple states?
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Each state makes an independent determination of whether the conduct violates that states ethics rules.
But must states will give some effect to the sister state's determination based on full faith and credit or comity. |
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When is temporary practice in another jurisdiction where not admitted not unauthorized practice?
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1. Associate with an active local lawyer
2. Special permission for this matter only (pro hac vice) 3. Mediation or arbitration out of home-state practice 4. Anything reasonably related to the lawyer's home state practice Note: Even in multi-state firms, a lawyer can only practice where admitted and the firm letterhead indicates states of admission. |
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What rules of professional conduct are applied to an attorney admitted in NY and another state (by the NY Ct. of Appeals)?
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Rules of the state in which the lawyer principally practices will apply, unless:
the conduct's key effect is in another state, in which case that state's rules will apply. |
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Who is empowered to make decisions in legal matters?
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Client makes those decision of substantive legal import:
1. Whether to sue, appeal, settle, or have a bench vs. jury trial 2. Whether to testify in a criminal case Attorney makes decisions of strategy, procedure and tactic: 1. Depositions, discovery procedures (but client may control costs) 2. Granting continuances |
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What should a lawyer do if client loses the ability to make a clear decision or is a minor?
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Get a guardian appointed.
Guardian can substitute his judgment for clients if: 1. Client has diminished capacity 2. Client is at risk of substantial physical, financial or other harm 3. Client cannot adequately act in his own interest |
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When MUST a lawyer withdraw from a case?
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1. When lawyer knows from the start, or it is obvious, that a client's position is frivolous or is to harass or maliciously injury another
2. If lawyer becomes impaired mentally or physically. 3. If NYRPC would be violated by representation. 4. Client fires lawyer. |
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When MAY an attorney withdraw from representation?
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1. Client's claim or defense is frivolous (lawyer learns later as opposed to MUST case)
2. Client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent. 3. Client deliberately disregards an agreement or obligation to the lawyer as to fees or expenses. 4. Client uses lawyer's services to perpetrate a crime or fraud. 5. Lawyer's continued employment is likely to result in violation of the NYRPC. 6. Lawyer's inability to work with co-counsel indicates that the client's interests are best served by withdrawal. |
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When is a lawyer competent to handle a case?
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1. Physically and mentally able
2. Being substantively competent 3. Having time to devote to the case |
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How can lack of competence be overcome?
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ALE
- Association with competent counsel - Learn it in time - Emergency |
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What is considered to be the practice of law?
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Everything that requires a law license, including:
1. Appearances in depositions and judicial hearings. 2. Drafting legal documents. 3. Settling a case with clients. |
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A non-compete clauses allowed in contracts for legal employment?
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Not overly prospective ones. They are only allowed when leaving the firm:
- In retirement - Withdrawal from the firm Otherwise, it will be impermissible hindering of the lawyers future right to practice. |
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Are trade names allowed for law firms?
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No.
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When must names be removed from a law firm name?
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Upon, disbarment or other legal barriers to the return of the lawyer to the firm such as appointment to a permanent position.
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When can a lawyer hold himself out as a specialist?
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Only if:
1. He has been certified by a private organization approved to certify by NY state; and 2. The certifying organization is identified in the ad; and 3. Lawyer states in the ad that the certifying organization is not affiliated with any government authority; certification is not required for practice of law; and certification does not indicate any greater competence over other non-certified but experienced lawyers in the area. |
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What is lawyer advertising?
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Any private or public communication made on behalf of a lawyer or lawfirm about the lawyer or services, the primary purpose of which is to retain the lawyer or law firm.
COMMUNICATIONS TO EXISTING CLIENTS DO NOT COUNT. |
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Are statements that are reasonably likely to create an expectation about the results a lawyer can achieve allowed?
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Yes, if they can be factually supported and the ad is otherwise in conformity with the NYRPC.
But ad must contain the disclaimer: "Prior results do not guarantee a similar outcome." |
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What are lawyer advertisements prohibited from including?
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1. A paid endorsement or testimonial without disclosing that the person is being compensated.
2. Actors in the ads without disclosing that they are actors. 3. Promised outcomes. 4. Ability to achieve an outcome because of clout or some other improper influence. 5. Cannot advertise that you advance the costs of litigation, because nearly all firms do. |
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Are lawyers allowed to us a domain name that does not include the name of the lawyer/law firm?
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Yes, if:
1. All pages clearly and conspicuously include the actual name of the lawyer; and 2. Lawyer/law firm does not attempt to engage in the practice of law using the domain name; and 3. Domain name does not imply an ability to get results in a matter. |
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What must the lawyer do in advertisements promoting contingent fee arrangements?
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- Clearly state the terms and basis of the fee.
- Make it clear that contingent fees are not permitted in all cases. - Make it clear in any advertising that refers to contingent fees whether the client will be responsible for any costs. |
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What is the most restricted means of client solicitation?
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An attorney advertisement directed to or targeted at a specific person with a significant motive of pecuniary gain by in person or telephone contact, or real-time/interactive computer communications.
- Real time or interactive communications are those in instant messages and chatrooms; NOT: - email; - websites; or - pop-up ads Note: The acts of a partners or associates at a law firm or solicitors for hire are imputed to the lawyer. |
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When is solicitation of clients allowed in-person, by telephone, or by direct electronic means?
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Only if the recipient is:
1. A close friend or relative 2. A former client 3. An existing client 4. A pro-bono client Except: It is never allowed when the recipient has told the lawyer that he does not want to be solicited. |
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When are the words "Attorney Advertising" required?
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- TV or radio ads
- Targeted emails, in the subject line - Targeted mailing ors postcards |
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Is solicitation allowed in personal injury or wrongful death cases?
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Not within 30 days after the incident.
Unless, a filing is required in less than 30 days, in which case, no unsolicited communication before the 15th day after the incident. |
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What circumstances always make solicitation unacceptable?
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- Communication is false, deceptive or misleading.
- Recipient has made known to lawyer a desire not to be solicited. - Solicitation involves coercion, duress or harassment. - Lawyer should know the personal characteristic of the recipient make it unlikely that he will be able to exercise reasonable judgment in retaining a lawyer. - Written communication is sent by a method that requires the recipient to travel to a location to receive the mailing other than their usual mailstop. |
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How broad is the lawyer's duty of confidentiality to the client?
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Broader than the attorney-client privilege; it is not source specific.
Lawyer must keep confidential anything derogatory, embarrassing or hurtful regarding the client, no matter what the source. |
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What are the exceptions to the duty of confidentiality?
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1. Disclosure required by law or court order
2. To prevent client from committing a crime 3. To prevent reasonably certain death or substantial bodily harm 4. To rectify fraud on a tribunal committed by the lawyer's own client. 5. Disclosure expressly authorized to advance client's best interest. 6. To obtain legal or ethical advice for lawyer - Use of discrete hypotheticals is OK |
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Does the duty of confidentiality bind the lawyer to secrecy if the client tells the lawyer about past crimes?
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Yes.
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Does the duty of confidentiality bind the lawyer to secrecy if the client tells the lawyer about future crimes that he plans to commit?
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No. Lawyer "shall" (stronger than "may" but not a "must") reveal the intention of a client to commit a crime and the information necessary to prevent the crime.
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What should an attorney do if a client lies in court?
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1. Urge client to recant/correct
2. If he refuses, disclose lie to the court, even if protected by confidentiality. 3. Ask court to withdraw If judge doesn't let you withdraw: - Do not examine client - Do not raise client's testimony in closing argument Notes: - Lawyer must KNOW that client is lying. - If you KNOW that your client is going to lie, don't put him on the stand. |
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How is a lawyer required to safeguard client property?
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Lawyer must protect it in a BONDED WAREHOUSE.
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What can't a lawyer say about an ongoing trial?
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Lawyer cannot make any statement a reasonable person would expect to be disseminated, if it will be PREJUDICIAL WITH RESPECT TO:
- Character, reputation or criminal record of a party - Identification of witness or other expected testimony - Possibility of guilty plea; existence of a confession; opinion as to guilt or innocence of defendant - Information lawyer knows or should know will be inadmissible - Fact that defendant is charged with a crime, unless noting that defendant is presumed innocent BUT if one lawyer makes prejudicial statement, the other has a right of reply to negate the damage. |
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What can a lawyer say about an ongoing trial?
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- Dry facts about the case
- Warning of danger when there is reason to believe there is a likelihood of substantial harm to a person or public interest. - Information necessary to apprehend an accused. |
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What is the basic rule regarding conflicts of interest?
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Avoid conflicts and exercise independent professional judgment.
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When can a lawyer accept a case with a conflict?
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1. If he has informed consent from all clients affected clients:
- Client must agree - After the lawyer explains material risks and reasonable alternatives - Client must give consent in writing (electronic OK) 2. Lawyer must also decide that a reasonably prudent lawyer would take the case. BUT NEVER IF BOTH PARTIES ARE CURRENT CLIENTS. |
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When can a lawyer testify on behalf of his client?
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1. Uncontested matter or formality
2. For recovery of attorney's fees 3. Substantial hardship if attorney withdraws |
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What result if a person communicates with a lawyer for the purpose of disqualifying him?
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That person is not a prospective client.
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Can attorney's take security interests in their clients property to secure their fees?
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Generally not.
Only in domestic relations matters if: - The retainer provides that a security interest may be sought - Notice of the application of a security interest is given to the other spouse - Court grants approval after reviewing counsel fees BUT, attorney is not allowed to foreclose on the mortgage while the spouse who consents to it resides there, and it is her primary residence. * Attorney cannot take interest in publication or movie rights based in part on the content of the litigation. |
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Can you advance money to clients?
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NY allows you to loan money to indigents and pro bono clients.
Lawyers can also advance attorney's fees and costs, repayment of which can be contingent on the case outcome. |
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Who does the lawyer answer to if a third-party is paying his fee?
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The person he is representing.
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What result if lawyer is having sexual relations with a client?
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If sex pre-dated the attorney-client relationship, that is OK.
But lawyer can never coerce a client into a sexual relationship or enter into one during a domestic relations case. - Sex is not imputed to partners/associates. |
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Are lawyers allowed to do business with clients?
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Generally not.
But it will be allowed if the transaction is FAIR to the client and: 1. Lawyer advised client to get independent legal advice; and 2. Lawyer got informed consent in writing. - Standard commercial or ordinary transactions are OK. |
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Can a lawyer represent a client suing a former client?
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Yes, unless:
- Current client wants to sue former client over a transaction in which the lawyer represented the former client; OR - Lawyer gained confidential information during representation of former client that would be relevant to the current action. - If information is no longer confidential, then there is no problem. * If former client gives informed consent, representation is OK |
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Can a lawyer ever represent a current client against a current client?
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NO!
If a former client may believe that he is still a current client, the attorney must inform him that he no longer represents him before attorney can represent a case against him. |
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Who is the lawyer's duty to when he represents a corporation?
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The entity itself, not any individual.
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What duties do lawyers who represent corporations have?
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- Duty to proceed as reasonably necessary to protect the best interests if the corporation and "report up" violations to higher authority within the organization.
- Duty to "report up" securities violations up the chain of command to chief legal officer. |
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What should a lawyer do if "reporting up" within the corporation does not elicit an appropriate response?
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Board of directors is the last entity the lawyer must "report up" to.
If board does not respond appropriately, lawyer MAY "report out, " even if confidential information is revealed but ONLY TO THE EXTENT NECESSARY TO PROTECT THE CORPORATION. |
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Who is a lawyer responsible to when he represents a person who is completely indemnified by an insurance company?
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The insured person, not the insurance company.
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Are state bars allowed to set minimum or maximum fee schedules for attorneys?
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No.
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Can a client affirm an existing fee arrangement that is voidable?
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Yes, so long as client has a full understanding of the facts.
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When are contingent fees not allowed?
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- In criminal cases.
* Even quasi-criminal like disbarment proceeding. - In a domestic relations case * Unlike the national rule, past-due alimony and child support are not exceptions. |
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When can a fee agreement be oral?
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- If fees are projected to be less than $3000; OR
- Services rendered are similar to those rendered to client in the past; OR - Lawyer has no office in NY or no material portion of services are rendered in NY. Except: - In a domestic relations matter, a writing is always required. Note: Client doesn't have to sign. |
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What fee terms must be communicated to the client?
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The following terms must be communicated in writing, if writing is required, or otherwise orally:
1. Scope of 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 |
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What is unique about fees in domestic relations matters?
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- Fee agreement must be in writing and signed by lawyer and client.
- Lawyer must provide client with a statement of client's rights and responsibilities - Non-refundable fees are not allowed - Contingency fees not allowed - Fee disputes must be resolved by arbitration at client's option. - Periodic billing must be sent every 60 days. |
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What can a lawyer do professionally with a non-lawyer?
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Cannot divide legal fees with non-lawyer, except:
* Salaries, retirement plans, bonuses, profit sharing * To spouse of deceased partners for fees earned by that partner. Can divide office space with a non-lawyer, as long as: - The space is physically separate in fact; and - It appears to be separate to the public; and - Precautions insure that the non-lawyer's clients are not coerced to use the lawyer for legal matters. |
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Are referral fees allowed?
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No, they are unethical.
But reciprocal referral agreements are allowed. |
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How should lawyers on the same case split fees?
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They must get informed consent from the client as to the fee splitting arrangement and the total fee.
The division must be proportional to the work preformed. |
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What types of retainers are there?
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- Advance on fees (belongs to client, goes into trust account)
* Lawyer should transfer fees out as soon as they are earned, otherwise he is co-mingling - Availability retainer * Non-refundable availability retainers are void in NY |
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What types of bank accounts must every lawyer have?
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Operating account: lawyer's account
Client trust: client's money, but it is OK for lawyer to cover bank service charges. - Fees that are in dispute can be left here while dispute is resolved. |
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Where is does the interest of client trust accounts go?
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For small sums, it is swept out and sent to the IOLA Fund (Interest on Lawyer's Accounts Fund).
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How are fee disputes resolved in NY?
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Under the Fee Dispute Resolution Program, a fee dispute between lawyer and client are subject to arbitration at the option of the client unless:
- Fees arise from a criminal matter - Amount in dispute is less than $1k or more than $50k |
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When are subordinate lawyers liable for breaches of the NYRPC?
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They are generally responsible, but will not be if they follow supervisor's instructions on a close call.
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When are supervising lawyers/paterners liable for breaches of the NYRPL?
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Must abide by the rules themselves and ensure that lawyers who report to them follow the rules.
They can be held responsible for conduct of subordinates if: - They knew of wrongful conduct and did not report it; OR - They told the subordinate to perform the act |
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What ex parte communication is a lawyer allowed to have with the jury?
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During trial: NOTHING OUTSIDE THE COURTROOM.
After trial, communication is OK unless: - Prohibited by court order - Juror doesn't want to talk - Purpose is to harass |
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What ex parte communication is a lawyer allowed to have with the judge?
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During trial:
- De minimis - In the case of emergency - During a settlement conference if judge asks to speak with each side ex parte After trial: Not restricted |
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Can a lawyer speak with an adversarial party during trial?
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Only through his attorney.
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When can a lawyer speak ex parte with a witness during trial?
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Anytime. There is no such a thing as a plaintiff's witness or a defendant's witness.
But must go through corporate counsel for a corporate witness. |
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What is a lawyer required to disclose as adverse authority?
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Cases and statutes from the controlling jurisdiction only.
Not facts or witnesses. - But Brady rule requires prosecutors to disclose, in a timely manner, potentially exculpatory evidence. |
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What is a lawyer required to disclose in an ex parte proceeding?
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All material facts known to a lawyer that will aid the tribunal in making an informed decision, whether or not they are adverse.
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What special duties does the prosecutor have?
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- Proceed only on probable cause.
- Brady rule: disclose, in a timely manner, potentially exculpatory evidence. |
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What pro bono are lawyers required to do?
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None.
But they should aspire to: - Provide 20 hours per year of pro bono service - Contribute financially to organizations that provide legal services to the poor. |
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What phrase should always be used when discussing professional responsibility?
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"A lawyer should represent his client zealously, within the bounds of the law."
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When does an attorney's communication with a pro se opponent permissible?
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As long as:
1. Attorney does not imply that she is disinterested; and 2. Takes steps to clear up misunderstandings about her role about her role which she should be aware of; and 3. She does not purport to give any advise other than to retain an attorney |
