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57 Cards in this Set
- Front
- Back
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General:
Sources of rules Complaints Four types of disclipline |
NY Rules of Professional Conduct - source of the rules (based on ABA model rules, w/ some changes) (NY - it applies to law firms)
Complaints re: NY atty's conduct - investigated by departmental discipinary committte or to any dept of appellate division. FIling complaint is a privileged communication Four type of discipline that can be imposed on NY atty: 1) Letter of admonition from disciplinary committee 2) public or private censure by the courts 3) suspension - can't practice for finite period 4) disbarment - take license away, can't practice law In addition to a disciplinary investigation, atty's also subject to malpractice claims by their client - but commission of malpractice doesn't automatically mean discipline |
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Admission to the profession:
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1) SCOTUS says state requirements for admission to bar must be rationally related to practice of law
a) what's rational? graduation from ABA accredited LS. In NY, admission may be granted for applicant who completed 1 year of LS, plus study in firm under supervision of NY atty for 3 years. b. NY bar admission requirements: pass written bar exam and mpre. Can be considered w/o exam if 1) graduated from ABA school, and 2) been admitted to practice in another state and that state would admit NY lawyer w/o exam (reciprocity), and 3) practice law at least 5 out of last 7 years 2) Requirements on YOU when you apply for the bar: a) truth and full disclosure (burden on applicant to show good moral character), b) duty to cooperate 3) Requirements regarding OTHER applicants (not yourself) a) Good aplicants - your input is aspirational b) bad aplicants - duty to report moral turpitude (i.e. perjury, bribery, theft) |
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Regulation after admission
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1) Regulated by highest state court (and through its agencies)
2) Self-regulating profession - 2 pronged duty when you KNOW of a violation: a) must report what you know unless protected as confidential info b) must be available to testify against the lawyer Don't report - suspension Stealing client's money - disbarred 3) where lawyer learns of bad conduct through rep of that lawyer as a client, duty of confidentiality trumps - but can't recommend that lawyer for admission to another state |
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For lawyers licensed in more than one state (multi-J practice)
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1) Discipline by one state does NOT mean there will be discipline in the other - other states made independent determination of whether the conduct complained of violates that state's ethical rules. But most other states give some effect to sister state's determination - on basis of full faith and credit or comity
a. unauthorized practice - can't practice where not admitted b. permissible temporary multi-J practice - associate w/ local lawyer, special permission (pro hac vice), mediation/arb, anything reasly related to home state practice. Multi-state firms - lawyer only practices where admitted and the firm indicates the states of admission |
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Choice of Law in Multi-J matters
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If licensed in NY only - NY law and rules apply.
If admitted to NY and other state, rules of the state in which the lawyer principally practices will apply - unless conduct's key effect is in another state |
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Decision making - you vs client
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Client's decisions - those of substantial legal import
1) whether to sue, appeal, settle, bench, or jury trial 2) whether to testify in crime case - D has no right to testify in civil case Atty Decisions - strategy, procedure, tactics 1) depositions, discovery decisions 2) granting continuances If client loses ability to make clear decisions --> get a guardian appointed In NY, atty can take protective action and seek to sub judgment for a client if: a) client has diminished mental capacity b) client is at risk of substantial physical/financial/other harm c) client can't adequately act in his own interest |
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Freedom to reject cases
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Lawyers have general freedom to reject, but should help poor people
Atty must w/draw from representation when: 1) lawyer knows/it's obvious that client's position is frivolous from the start - or it's to harass/maliciously harm/injure someone 2) lawyer becomes phys/metntally impaired 3) RPC of NY would be violated by continued representation 4) client fires the lawyer When MAY an atty w/draw from rep: 1) client's claim/defense is frivolous 2) client persists in course involving lawyer's services that lawyer reasly believes is crim/fraudulent 3) client deliberately disregards agreement/obligation to lawyer as to fees/expenses 4) client uses lawyer's services to perpetrate crime or fraud 5) lawyer's continued employment likely will violate rul 6) lawyer's inability to work w/ co-counsel - best interests of client served by w/drawal |
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Lawyer competence
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Only take case if competent - unless you can overcome it by association, learned in time, emergency
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Don't help others engaged in unauthorized practice of law
Don't hinder lawyer's future right to practice |
practice of law - everything that requires law license
Hinder - can't enter into non-compete agreement or provision w/ his current partners/associates, except 1) retirement, 2) w/drawal from firm |
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Establishing Your Practice and getting Clients
Firm Name |
Must be appropriate - no trade names, no misleading names.
IF permanently won't be at firm, name mustr come out, if temporary, your namecan stay in |
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Holding yourself out as specialist
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Don't do it unless certified specialist or practice patent, TM, or admiralty.
Don't say you specialize in X unless certified by ABA or NY, and you should put the cert org in your ad, and should put in a disclaimer in the ad that specialization not required. If you practice primarily in an area, you can say in your ad practice is "limited to sports law" or you practice "primarily in sports law" |
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Advertising
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Any pub/private communication made by/on behalf of lawyer or law firm about the lawyer/services, primary purpose of which is to retain the lawyer/firm (exception - communicatin to existing clients/other lawyers)
Computer accessed communication includes - any communication made by/on behalf of lawyer/firm that is disseminated through use of comp or electronic device which includes websites, blogs, search engines, emails, pop-up ads, chat rooms, list servs, IM, and other |
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Ads must include:
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1) name, principal law office address/phone # of the lawyer/firm whose services being offer. Phone # may contain domain name/gimmick, etc
2) any words/statements required by the rules must be clearly legible/read by average person/understood if spoken aloud c) Label: "Attorney Advertising" must be on first page |
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Ads MAY include (if not misleading):
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1) educational background
2) dates of admission to bar/areas of practice 3) public offices/teaching positions held 4) memberships in bar associations/professional groups 5) foreign language ability (must be fluent) 6) names of regularly represented clients, if client consent 7) acceptable credit arrangements/participation in group/prepaid legal services programs 8) legal fees, contingent fee rates, range of fees for services (and if it does, form shall not change more than the advertised fee), hourly rates and fixed fees (if fees advertised, can't change them for reas time 9) bona fide professional ratings 10) Assuming ad is otherwise in acccord w/ RPC and can be factually supported by the lawyer as of the date in which it was published, ads may also include: i) statements that areas reasly likely to create expectation about the results lawyer can achieve/state quality of lawyer/firms's services ii) statements that compare the lawyer's services to that of other lawyers iii) testimonials/endorsements |
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Domain names
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lawyers/firms can use domain names that don't include name of lawyer/firm provided:
a) all pages clearly/conspicuously include the actual name of the lawyer/firm b) lawyer/firm in now way attempts to engage in practice of law using the domain name c) domain name doesn't imply an ability to get results |
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What counts as misleading?
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promised outcome, or ability to achieve results because you have clout/inappropriate influence
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Special Rules re: advertising contingent fees
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must clearly state the basis of the fee. must make it clera in any ad that refers to contingent fees whether the client will be responsible for any costs that they are not permitted in all types of cases
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Soliciting Clients
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Lawyers shall not engaged in solicitation (any ads, etc directed at a specific person/their family), primary purpose of which is retetention of the lawyer/firm, with a significant motive of pecuniary gain, by in person or phone or real time or interactive computer assessed communication, unless recipient is:
1) close friend 2) former client 3) existing client 4) pro bono clients Exception - no solicitation in any form when recipient has made known desire not to be solicited by the lawyer |
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Targeted Mail
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You may send direct mail to groups of people likely to need legal services
2) "Attorney Advertising" must always appear, and it shall be in subject line of email If retainer agreement included, top of each page should be marked w/ 'sample' and the words "do not sign" should be on sign line These apply to lawyers not admitted to NY who solicit retention by NY residents Must disclosed how atty learned of the recipients identity and need for legal services (if atty directed it to specific people) NO SOLICITATION FOR PERSONAL INJURY OR WRONGFUL DEATH BY LAWYER/AGENT BEFORE THE 30TH DAY AFTER THE INCIDENT, unless filing required in less than 30 days, in which case no unsolicited communication before 15th day |
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Client approaches you...
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That's OK
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Lawyer Client Relationship
Maintaining Confidence of Client |
Maintain confidences of prospective/current/former clients, keep client secrets
client secret - confidential - anything derogatory, embarassing, hurtful regarding client, no matter what the source Duty is broader than atty/client privilege which address communications - this duty survives death of client. But lawyer shall revieal intent to commit a crime and info necessary to stop it False testimony by client and you know: 1) discourage him to recant/fix his lie 2) if he refuses, disclose the act Terminating relationship Give client notice, return the case file, and ANY UNEARNED PORTION OF THE RETAINER |
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Exceptions to confidentiality
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1) required by law/court order
2) to obtain legal/ethical advice for lawyer - use hypos w/ colleagues 3) to prevent client from committing a crime 4) to prevent reasly certain death/substantial bodily harm 5) rectify graud on a tribunal committed by the client 6) disclosure expressly authorized to advance client's best interest |
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Safeguard client's property
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Must protect client's property in bonded warehouse
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Trial publicity
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No statement may be made by lawyer that reas person would expect to be disseminated if lawyer knows/reasly shoud that it would be prejudicial to case re:
1) char/rep/crim record of party 2) ID of witness or expected testimony 3) possibility of plea, existence of confession, opinion as to guilt/innocence 4) info lawyer knows/reasly should know would be inadmiss 5) fact that D is charged w/ crime unless stating it as merely an accusation and that D is presumed innocent Lawyer MAY state: 1) dry facts about case 2) warning of danger if subsantial likelihood of harm to public 3) in crim case, info necessary to apprehend accused 4) Right of reply - protect client from substantial prejudicial effect of recent publicity - can negate the damage |
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***Conflicts of Interest***
Basic rule |
avoid conflicts and exercise independent professional judgment
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Informed consent
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Accept a case w/ a conflict only if all clients have given their informed consent. Steps you must take:
1) Client must agree after 2) lawyer explains material risks/reas alternatives 3) client agrees in writing After these steps, decide if a reasly prudent lawyer would take the case |
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Lawyers do not testify on behalf of client unless...
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1) it's an uncontested matter/matter of formality
2) fees- lawsuit involves statute w/ fees 3) substantial hardship if atty w/draws |
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Conflict situations ripe for testing!!:
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1) lawyers can't represent adverse interest of client or propsective client unless lawyer fully explains risks/alternatives (informed consent) and client agrees in writing
2) person who communicates w/ lawyer for purpose of disqualifying lawyer on a related matter is not a prospective client |
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Interest in publication rights related to case subject matter
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Prohibited!
Can't accept publication/movie rights in lieu of a fee Can only retain rights after case is over (including appeals) |
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Lawyer taking mortgage on client's property to secure a fee
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Generally not allowed. Exception in NY:
In domestic relations matters, lawyers may take lien on real prop or obtain a security interest to secure his fee if: 1) retainer agreement provides that a security interest (SI) may be sought 2) notice of the paplication for SI is given to the other spouse 3) court grants approval for the SI after subsmission of counsel fees But atty shall not foreclose on a morrtgage placed on marital residence while spouse who consent to the mortgage remains the titeholder and it is the primary residence |
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Lending money to clients:
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No laons to clients, but can advance court costs and expenses of litigation, repayment of which can be contingent on outcome of case
Exception - allowed to loan money to indigents and pro bono clients |
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Fee payment by 3rd party
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You follow what client says, not what the benefactor wants
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Sex w/ client
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Lawyers can't demand sex for rep. Pre-existing sex OK. Can't coerce client into sex, can't be in sex relationship in domestic relations matter during the rep
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Doing business w/ clients
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Generally prohibited, unless transaction is fair to the client. In such case client should be:
1) advised to get independent legal advice 2) get informed consent in writing Exception - standard commercial/ordinary transactions (banking, brokerage services) are OK |
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***Lawsuits b/w current and former clients***
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You may rep a current C in an action against former C except:
a) when your current C wants to sue your former C involving a matter or transaction in which you represented the former C, or 2) when during rep of the former C you learned confidential info now relevant to the action by current C If info is no longer confidential or client consents in writing, it's OK ALWAYS A CONFLICT TO REP A CURRENT CLIENT AGAINST A CURRENT CLIENT IN A CURRENT MATTER - EVEN W/ CONSENT |
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Representing corp or partnership
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You represent the ENTITY, not any individual
a) duty to proceed as reasly necessary to protest the best interests of the org and report violations to higher authority in the org 2) duty to report securities violations up chain of command to CLO 3) if no approrpriate response,must report to Board and may report to outside authority 4) may reveal confidential info to extent necessary to protect client (corp) and lawyer has discretion here 5) any maeasures taken shall be designed to minimize disruption of org and risk of revealing confidential info to persons outside org |
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Representing the insured
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Lawyer reps the insure, not the insurance company paying the bills
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Handling Money - Yours and Client's
Fee agreements |
A. Lawyer has duty to explain fully the reasons for the fee. Keep fee reas and note that state bars can't set either min or max fee schedules
Exception - lawyer can enter into retainer agreement w/ client that has min fee clause, once it sets forth how such fee will be incurred/calculated |
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Ratifying a Fee Agreement
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Client may ratify atty's fee agreement during period of continuous representation even if atty misconduct occurs during that period, so long as the client's ratification is not procured as a result of the misconduct
A fully informed client who knowingly and voluntarily affirms an existing fee arrangment that might otherwise be considered voidable can ratify, so long as: that client has a full understanding of the facts and knoweldge of their rights as a client |
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CONTINGENT FEES - when you cant charge them:
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You CANNOT charge contingent fees:
1) in criminal cases (or in quasi-crim proceedings, like a doctor before med licensing board) 2) in a domestic relations case |
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Computing fee after rep is over:
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After rep is over, lawyer must provide client w/ written closing statement, statingoutcome of matter and computing fee, and filed w/ appellate division
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**Written Letter of Engagement**
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If fees are projected to be greater than 3k, the fee agreement must be in writing (C doesn't have to sign)
Doesn't apply if services are of the same general kind previously provided to C or if services involve domestic relations. This this situation, retainer agreement/letter of engagement must include: 1) scope of legal services 2) explanation of atty fees to be charged 3) expenses and bill practices 4) notice of C's right to arbitrate a fee dispute Exceptions: 1) fee is expected to be less than 3k 2) services rendered are similar to those in the past 3) where atty has no office in NY or no material portion of services will be rendered in NY 4) domestic relations matter - specific letter required |
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Domestic Relations Matter
Defined |
Lawyer repping C in any action involving div/sep/annul/custody/visitation/maintenance/child support/alimony. Includres prelim hearings, enforcement/judgment modifications, hearings, appeals
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Domestic Relations continued:
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1) Fee agreement must be in writing, signed by L and C
2) L must privide prospective C w/ statement of the C's rights/responsibilities at the intitial conference and prior to signing retainer agreement 3) no non-refundable retainers in domestic relations matters 4) cannot use contingency fee to collect unpaid alimony or support 5) fee disputes in dom rel matters must be resoltved by arbitration at the election of C 6) period billing must be sent out every 60 days and at conlcusion of case, atty must send back ANY UNUSED PORITION OF THE RETAINER |
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Relationships w/ non-lawyers
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L can't be partner wit a non-lawyer if any part of the partnership involves practice of law
1) never divide a legal fee w/ a non-lawyer Exceptions: a. salaries/retirement plans, bonsues, profit sharing b. spouses of deceased partners to pay fees earned by deceased partner 2) but a atty and non-atty can share office space as long as physly separate/appears that way to public. |
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Referral fees
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Unethical
When dividing fees w/ lawyers in other firms, you can do it but: 1) dividions must be in proportion to work performed, 2) must get informed consent in writing, and 3)total fee must be reas |
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Retainers
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2 types:
1) advance on fees - belongs to client and goes into lawyer's trust account 2) availability - belongs to atty and goes into lawyer's personal account IN NY - NO NON-REFUNDABLE AVAILABILITY RETAINERS Make sure to put $ in and take $ out of proper accounts: Two types of accounts every lawyer MUST have: 1) Operating - your $ 2) Client trust - client's $ goes in here, but lawyer can cover account service charges |
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General Rule of Client Trust accounts
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Have one, use it, keep records, don't mix it up w/ your operating account
Specific Rules of client trust accounts: 1) must be in NY 2) bank service charges are the only funds L can contribute 3) For small sums accumulating the interest is swept out and sent to NY state IOLA fund 4) Dishonored check reporting - C funds must be maintained in a bank that maintains dishonored check reporting |
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Common Client Trust Account Problems
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Can't use C's money even if you gaurantee it w/ other account
Once you do the work, transfer from client trust account to personal account 1/3 contingency fee agreement, case settles for 30k (so L would get 10k). Before L transfers from trust account, client says he only wants to give 3k. L can put 3k in personal account, but must keep the disputed 7k in C trust account, or pay it and sue |
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Fee Dispute Resoltuion Program
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In NY, in civil matter, fee disputes b/w L and C are subject to arb at C's option. C must be told about this option in letter of engagement (where required) and when a fee dispute arises
2) exceptions to this mandatory pgoram: 1) fee disputes in crim matter 2) if ammt in dispute is less than 1k or more than 50k 3) if claim invovles atty malpractice |
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Subordinate Lawyer/Supervising Lawyer
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Subordinate - no violation if follow supervisor on a close call
Supervisor - must abide by rules/ensure subordinates do too. Supervisor can be held responsible for conduct of subordinates if they knew of wrongful condcut and didn't report it, or if they told subordinate to do it |
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Ex parte communications during trial
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a) With Jury - nothing outside courtroom during trial, but after trial OK unless prohibited by court order, juror doesn't want to, purpose is to harass
b) w/ judge - only de minimis, in case of of emergency, or in settlement conference c) w/ adversarial party - only through their lawyer d) w/ witnesses - OK, no such thing as P or D witness. but if a corp, go through counsel |
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Adverse authority
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L has aff duty to disclose contrary/adverse authority - cases and statutes from the controlling J only
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Ex Parte Proceeding
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L shall inform tribunal of all material facts known to L that will make tribunal make informed decision, whether or not the facts are adverse
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Special Duties of Prosecutor
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1) proceed only on PC
2) must timely disclose exculp evidence |
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Voluntary pro bono service
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strongly encouraged to do 20 hours a year, and contribute to orgs that provide legal service to poor
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To every essay, add:
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"A lawyer should rep his client zealously w/in the bounds of the law"
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