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49 Cards in this Set
- Front
- Back
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who investigates complaints involving NY attny conduct?
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Grievance Committee
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what are the 4 types of discipline
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letter of admonition; public or private censure by ct; suspension; disbarment
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What is lawyer's 2 pronged duty?
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when L KNOWS of violation by another L, must report & cooperate in investigation
EXCEPT if L learns of violation thru representing a client |
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reciprocal discipline
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if L is disciplined by another state, NY can impose reciprocal discipline for the same misconduct
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Choice of law
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if conduct occurs before ct of another state--> apply other state's rules
if conduct not before ct (transactional), apply NY rules if L only admitted in NY. If L admitted in mult states, apply state law of state in which L principally practices, UNLESS conduct's predom effect is in other state |
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Client Decisions vs. Attny decisions
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client makes substantive decisions: sue, appeal, settle, bench or jury, accept plea, testify in crim
L makes procedural and tactical |
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When MUST L withdraw from representation?
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1. client's case is frivolous/malicious
2. L becomes phys or ment impaired 3. rep would violate Rules or law (L may wdraw if rep is likely to violate) 4. C fires L |
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When MAY L withdraw from representation?
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1. C's claim is frivolous
2. C persists in course of action involving L's services that L BELIEVES is crim/fraudulent 3. C deliberately disregards fees and expenses owed to L 4. C uses L's services to perpetrate crime 5. L's rep is likely to violate Rules or law 6. L is unable to work w/ co-counsel shows that it's in C's best int for L to w/draw 7. Client insists on taking action L fundamentally disagrees with |
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When can a lawyer enter into a non-compete agreement?
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only if agreement concerns retirement or w/drawal from firm, otherwise such agreements are invalid
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Firm name
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can't be misleading, no trade names
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When can lawyer hold himself out as a specialist?
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L may only hold himself out as a specialist if he is certified by private org approved by ABA OR practices TM, patent, admirality
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What is an advertisement?
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any public or private communication used to retain clients; can be electronic
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What info MUST advertisements include?
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name, office addy, phone #, "attny advertising" on mailings and homepage
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What info MAY advertisements include?
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education & degrees; date of admission to bar; public offices & past positions; bar memberships; FLUENCY in foreign lang; names of regularly repped clients if they agree in writing; payment program info; fees, contingent fees, hourly rates; if so, can't change rate until reas time after ad
might be able to incl testimonials |
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When can an ad include testimonials?
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if the ad is in accordance w/ the rules and can be factually supported, AND CONTAINS DISCLAIMER SAYING SIMILAR RESULTS NOT GUARANTEED, then ad van include testimonials or endorsements from other clients
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what can an ad NOT include?
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paid endorsements or testimonials w/o disclosing fact that it's paid; actors to portray lawyer
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what does misleading mean?
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promising an outcome, promising an ability to achieve results bc you have clout, saying "I have never lost a case"
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TV/Radio ads
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must be approved by L, include name and addy, kept for at lst 3 yrs following initial dissemination
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ads on computer
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retain for at least 1 yr
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What are the rules of contingent fee advertising?
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must clearly state the terms and basis for fee
must make clear whether client will be responsible for any costs not permitted in all types of cases |
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what is solicitation?
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any ad initiated by/on behalf of L, directed to SPECIFIC ppl/their fam, w/ the primary purpose of getting them to retain the L for PECUNIARY GAIN
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When CAN a lawyer solicit business in person, on phone, electronically?
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Generally, L cannot solicit clients in person, on the phone, or via comp accessed communications (does not include email), unless the recipient is CLOSE FRIEND, FORMER CLIENT, EXISTING CLIENT, RELATIVE, PRO BONO
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When is solicitation not allowed?
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No solicitation, even to friend/fam/client/pro bono, if
1. recipient has made known a desire not to be solicited by L 2. communication is false/misleading 3. solicitation involves coercion, duress, harassment NOTE: Imputation applies |
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Target mail
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L may send direct mail to a grop of ppl likely to need legal services
Must put "Attny Ad" on front or in subject line Must disclose how you got their IDs No solicitation for pers injury/wrongful death until 30 DAYS AFTER INCIDENT Can't solicit professional employment by written or recorded comm if it's false, person made known doesn't want solicitation, L should know pers can't make reas judgment in deciding whether to hire If L gives person UNSOLICITED advice, can't accept employment from that person If person ASKS L for advice, then L can accept |
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What is confidential info?
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ANY info gained during or relating to the representation of client, by any source, that is
1. protected by A/C privilege 2. likely to be embarrassing or detrimental to client 3. C asks L to keep conf 4. info abt past crime NOTE: survives C's death |
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When MAY L report confidential info?
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1. permitted by rules or law, if L reas believes nec
2. obtain legal advice, use hypos 3. prevent C from committing crime 4. prevent reas certain death/ subst harm 5. w/draw an oral/written opinion or rep previously given by L that L believes is still relied upon by 3rdparty, if L discovered the opinion was based on materially innaccurate info or is being used for crime 4. disclosure nec to collect fee (i.e. L sues C for $) 5. client had informed consent and authorized disclosure, express or implied |
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When MUST lawyer reveal confidential info?
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if L kNOWS C is engaging in, about to, or engaged in crim/fraud conduct relating to trial, he must urge client to correct, tell client consq of his behavior, and if C refuses, disclose what C did to ct, even if info is conf
(i.e. if C testifies falsely and A KNOWS) |
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When can a lawyer refuse to offer evidence?
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In a civil case, L can refuse to offer C's testimony if he REAS BELIEVES it is false
In a crim case, L can refuse only if he KNOWS the info is false |
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What can a lawyer discuss in public about a trial?
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L can't make any statement that reas person would expect to be prejudicial. Ie: nothing abt D's character, IDs of Ws, possible pleas, his opinion as to guilt, info that he knows is inadmissible as evidence, fact that D is charged w/ crime UNLESS just saying it as an accusation and that D is presumed innocent
L can make dry statements of case, reply to a substantially prejudicial comment from the other side, warn of danger if L has reason to believe there is harm to public, give info nec to aid in apprehension of accused. |
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Can a lawyer testify on behalf of a client?
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Generally, no. But the exceptions are when it's an uncontested matter, about fees, subst hardship if L doesn't testify
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Interest in publication rights
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an interest in publication or movie rights related to the case subject matter is prohibited until case is over (appeals & all)
L cannot even negotiate until all is over But L can be assigned FUTURE profits |
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when can L take a lien on real property as a security interest?
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only in domestic relations cases, and then only if the retainer says so, notice is given to other spouse
L can never foreclose on mortgage placed on marital residence while spouse owns title and it's the primary residence |
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When can L lend $ to clients?
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Generally, never ever. L can only advance ct costs
In NY, L can also loan $ to indigents and pro bono clients (but can't advertise that he will advance costs) don't be fooled by sad story where client really needs $ |
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When can L do business with a client?
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Generally, doing business w/ a client is prohibited, unless the transaction is fair to the client and
1. C is advised to get indep legal advice and 2. L gets written informed consent NOTE: for standard commercial or ordinary transactions, the above reqs don't apply |
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Representing current & former clients
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L may represent a current client against a former client, EXCEPT
1. Current client wants to sue former client abt a matter in which L represented former client 2. during rep of former C L learned conf info that is now relevant and is still conf L can never rep current client against another current client |
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Does L represent the insured or the insurance company?
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the insured
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Representing a corporation
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L represents the corporate entity, not any individual. The corp is the client
If L knows someone in corp is doing something/ did something/ abt to do something that is a violation of law and likely to hurt corp, then he must move up chain of command in reporting the person |
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What are the rules of contingency fees?
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must be reasonable- prob no more than 33%
never used in crim case or dom rela case |
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written letter of engagement
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fee agreement must be in writing if fees are projected to be more than 3K
if there is a signif change in the fee or scope of services, then L must update the letter |
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Domestic relations matters
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fee agreement must be in writing & signed by L&C
L must provide C w/ statement of client's rights fees are not refundable no contingency fees fee disputes must be resolved by arbitration periodic billing- every 60 days L must give back any non used portion of retainer |
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Referral fees
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unethical
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Division of fees
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can never split fees w/ a non L unless it's a salary, retirement, bonus, to spouse of dead partner situation
can divide fees w/ L in another firm if in proportion to work done or w/ consent of C |
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Client trust account
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only client's money goes in here
never put L's own money in there never borrow from CTA, it's conversion even if L pays back keep all disputed fees in here |
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operation account
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L's money
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Fee dispute resolution
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NY- in civil matters, fee disputes b/w L and C are subject to arbitration
UNLESS it's a fee dispute in a crim matter or amt is less than 1K or grtr than 50K or claim involves malprac |
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Duties of subordinate lawyer
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must abide by rules and by law. Cannot follow supervisor's instructions if you know it's a violation of law. If it's a close call, you can
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Ex parta communication
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During trial, never ever talk to juror about ANYTHING, related or unrelated to case
After trial, can talk to juror unless prohibited by ct, juror doesn't want to, purpose is to harrass During trial, can only have de minimis convo w/ judge During trial, never ever talk to adversary party directly, talk only through lawyer Can talk to witnesses |
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Adverse authority
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L has duty to disclose contrary authority OF LAW
only if it's from the same jurisdiction |
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Duties of Prosecutor
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only bring case if you have probable cause
must disclose evidence that negates guilt or that mitigates offense or reduces punishment |
