Professional Responsibility New York

Front 1

State Regulation

Back 1

The legislature may establish standards, but the authority to regulate practice within NY is vested with the Court of Appeals and the Appellate Division of the Supreme Court.

There are two general classes of state bar associations:

1. Integrated bar associations (all attorneys must join) and

2. Voluntary bar associations

Front 2

Federal Regulation: Federal Courts

Back 2

Each federal district and appellate court promulgates its own rules. Most federal courts require only that an attorney seeking admission be a member of the bar of the state in which the court sits and make formal application for admission to the federal bar.

An attorney who is a member of the bar in one state may be allowed to appear in federal court in another state to argue or try a particular case. This is known as a "pro hac vice" appearance. But continuous federal practice in a state in which he has not been admitted to the bar may be prohibited.

Front 3

Federal Regulation: Federal Administrative Agencies

Back 3

Generally, the only requirement for practice before a federal administrative agency is that the attorney be a member of the bar of the state in which the agency sits.

An agency may require that the attorney first pass a special exam.

Front 4

Federal Regulation: Federal Government Attorneyss

Back 4

A federal government attorney is subject to state ETHICS laws and rules governing attorney conduct in each state in which she engages in her duties.

Front 5

American Bar Association

Back 5

The American Bar Association ("ABA") is a voluntary national organization that promulgated the Model Rules of Professional Conduct ("RPC").

Front 6

Admission to Legal Profession

Back 6

Any prerequisite to admission must bear a rational relationship to the applicant's fitness or capacity.

Front 7

Admission to Legal Profession: Educational Requirements

Back 7

An applicant will be admitted to the NY Bar if he has:

1. Graduated from an ABA-approved law school; or

2. Successfully completed at least one year of law school and studied law in a law office located in NY under the supervision of a licensed NY attorney for a period of time that, together with the credit allowed for the law school attendance, aggregates to four years.

Front 8

Admission to Legal Profession: Bar Examination

Back 8

NY generally requires applicants to pass a written bar examination.

However, an applicant may be admitted to the bar without examination if the applicant has:

1. Graduated from an ABA-approved law school

2. Been admitted to practice law in another state and that state would admit a NY attorney without examination, and

3. Practiced law for at least 5 of the 7 years preceding the application for admission

Front 9

Admission to Legal Profession: Citizenship Requirements

Back 9

A state may not require that an applicant be a citizen of the U.S.

Front 10

Admission to Legal Profession: Residency Requirements

Back 10

The U.S. Supreme Court has held that state residency requirements for bar admission violate the Privileges and Immunities Clause of the U.S. Constitution.

The Court has also struck down state residency requirements for admission on motion and for federal court practice.

Front 11

Admission: Character Requirements: Applicant's Procedure

Back 11

An applicant is required to answer a detailed background questionnaire and to furnish references.

The refusal to furnish such information is grounds for rejection.

Front 12

Admission: Character Requirements: Procedural Protections

Back 12

An applicant has the right to a hearing before the bar committee and confrontation of adverse witnesses, as well as the right to judicial review of the denial of an application based on bad moral character.

Front 13

Admission: Character Requirements: Conduct Failing the "Good Moral Character" Test

Back 13

Each applicant has the burden of showing that she possesses "good moral character."

Acts that involve intentional dishonesty or are repugnant to accepted moral standards (e.g., bribery, perjury, theft, murder, rape) constitute conduct involving moral turpitude and reflect adversely on an applicant's honesty and integrity.

Front 14

Admission: Character Requirements: Constitutional Limitations on Regulatory Authorities

Back 14

There must be a nexus between the requirements for admission and an applicant's fitness to practice law.

Thus, a rejection may not be based on the personal beliefs of an applicant where those beliefs are not translated into an illegal advocacy to action.

Front 15

Admission: Character Requirements: Attorney's Duty to Cooperate with Character Investigations

Back 15

An applicant or an attorney in connection with a bar admission application or a disciplinary matter must not:

1. Knowingly make a false statement of material fact; or

2. Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority.

Front 16

Disciplinary Process: General Substantive Standards

Back 16

A lawyer may not:

1. Violate or attempt to violate the RPC, knowingly assist or induce another to do so, or use the acts of another to commit a violation;

2. Engage in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects;

3. State or imply an ability to improperly influence a government agency or official;

4. Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

5. Engage in conduct prejudicial to the administration of justice;

6. Knowingly assist judge or judicial officer in conduct that violates applicable rules of judicial conduct or other law; or

7. Unlawfully discriminate in the practice of law, including in the hiring, promoting, or otherwise determining conditions of employment.

Front 17

Disciplinary Procedures

Back 17

The disciplinary proceeding is initiated by a complaint to the Departmental Disciplinary Committee or to any of the departments of the Appellate Division.

The complaint may be filed by any interested party.

The filing of a complaint is generally considered a privileged communication.


The complaint is examined in a preliminary screening process conducted by a disciplinary committee.

The next step is a nonpublic hearing before the disciplinary committee.

A lawyer subject to a disciplinary hearing retains the basic rights to counsel and to cross-examination of witnesses at the hearing.

He also has the right to invoke, without penalty, the 5th Amendment protection against self-incrimination.

The disciplinary committee may recommend disciplinary action or request that the Appellate Division institute disciplinary proceedings.

Front 18

Forms of Disciplinary Sanction

Back 18

The most common penalties for engaging in unprofessional conduct are:

1. Disbarment

2. Suspension; and

3. Public or private censure by the courts or NY Bar Association

Front 19

Effect of Disciplinary Action on Other Court Systems

Back 19

Disciplinary proceedings by the state courts located within the federal district court have no binding effect on the attorney's ability to practice before the federal courts in that district.

Similarly, foreign state courts must make their own independent evaluation of an attorney's conduct when he has been disciplined in a sister state; but most states give effect to the sister state's determination.

Front 20

Practice in Multiple State--Choice of Law

Back 20

A lawyer admitted to practice in NY is subject to the disciplinary authority of NY, regardless of where her conduct occurs.

A NY court considering conduct connected with a matter pending before it will apply the NY RPC, unless the court's rules provide otherwise.

For any other conduct:

1. The NY RPC will apply if the lawyer is licensed to practice only in NY;

2. If the lawyer is licensed to practice in more than one state, the RPC of the state in which the lawyer principally practices apply unless the conduct clearly has a PREDOMINANT EFFECT in another state in which the lawyer is licensed, in which case the RPC of that state will apply.

A lawyer has a safe harbor for conduct that conforms to the rules of a state in which she reasonably believes the predominant effect will occur.

Front 21

Unauthorized Practice of Law

Back 21

The RPC prohibit a lawyer from practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction, or assisting another person in doing so.

Front 22

Unauthorized Practice of Law: Limited Exception where Professional Judgment Not Required

Back 22

Where the professional judgment of a lawyer is not involved, nonlawyers are authorize to engage in occupations even if they require a special knowledge of the law in certain areas.

A lawyer can delegate tasks to nonlawyers provided the lawyer maintains a direct relationship with the client, supervises the delegated work, and has complete professional responsibility for the work product.

However, courts have placed limitations on certain activities relating to real estate brokers, title insurance and escrow companies, tax advisers, estate planners, corporations representing a client directly in judicial proceedings, and collection agencies.

Individuals have the right to represent themselves even if they are not attorneys.

Front 23

Unauthorized Practice of Law: Practicing Across Jurisdictional Boundaries

Back 23

A lawyer engages in the unauthorized practice of law by practicing in a jurisdiction where he is not admitted.

There are several caveats to this principle:

1. Lawyers are routinely admitted "pro hac vice" to appear in individual proceedings on behalf of a client. However, a lawyer must be a member in good standing of at least one bar before he can be admitted "pro hac vice"

2. Because the business of a single client may involve legal problems in several states, the RPC do not contain regulations specifically imposing territorial limits on a lawyer's right to handle the affairs of a client

3. Multistate law partnerships are acceptable provided the individual lawyers practice in the jurisdiction(s) in which they are admitted and the firm letterhead so indicates.

4. A state may not prevent a person licensed by a federal agency from carrying on activities related to his work before that agency.

Front 24

Unauthorized Practice of Law: Judges and Court Officers

Back 24

Full-time judges and court officers may not practice law, nor may law students represent clients except where authorized to do so under the supervision of a licensed attorney.

Front 25

Unauthorized Practice of Law: Lawyers Aiding Lay Practitioners

Back 25

A lawyer may not practice law in association with, or otherwise share fees with, a layperson.

Front 26

Unauthorized Practice of Law: Law Firms and Nonlawyers

Back 26

Law firms may not be set up in such a way that a nonlawyer owns an interest therein, a nonlawyer is a corporate officer or director, or a nonlawyer has the right to direct or control a lawyer's professional judgment.

Front 27

Law-Related (Ancillary Services)

Back 27

Lawyers are permitted to provide law-related services (e.g., financial planning, accounting, trust services) to clients.

If these services are provided under circumstances that are not distinct from legal services, the lawyer must adhere to the RPC with respect to the ancillary services as well.

Front 28

Services Provided by Entity Controlled by Lawyer

Back 28

When ancillary services are provided by a separate entity controlled at least partly by a lawyer, the lawyer must adhere to the RPC unless she takes reasonable measures to ensure that the recipient of the services knows that the services are not legal services and that the protections of the lawyer-client relationship do not apply.

Front 29

Establishing a Legal Practice: Forms of Practice: Law Firms

Back 29

Three categories of practitioners generally are distinguished within the firm framework: partners, associates, and attorneys of counsel.

A lawyer in practice must ensure that the client's interests are paramount to the firm's interests and that the client's problems are handled with competence and care.

Front 30

Naming the Law Firm

Back 30

A lawyer may not practice under a trade name, a name that is misleading to the identity of the lawyers practicing in the firm, or a name containing the names of lawyers not practicing in the firm, unless such lawyers were formerly associated with the firm and no legal barriers exist to the use of their names.

A multistate firm may use the same firm name or other professional designation in each jurisdiction but must list the jurisdictional limitations of those lawyers not licenses to practice in a particular jurisdiction.

Front 31

Partnerships with Laypersons Involving Legal Practice

Back 31

A lawyer may not be a partner with a nonlawyer if any of the partnership activities consists of the practice of law.

Front 32

No Sharing of Office Space

Back 32

A lawyer may not share office space with a nonlawyer unless the offices are physically separate.

Further, precautions must be taken so that the nonlawyer's clients are not coerced into consulting with the lawyer sharing the offices when they are in need of legal advice.

Front 33

No Sharing of Legal Fees

Back 33

A lawyer or law firm must not share legal fees with a nonlawyer.

Exceptions:

1. An agreement to provide for the payment of money, over a reasonable period of time after a lawyer's death, to the lawyer's estate, or to one or more specified persons;

2. Payment of the purchase price of a law practice to the estate or representative of a deceased, disabled, or disappeared lawyer; and

3. Payments pursuant to a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.

Front 34

Lawyer Must Exercise Independent Judgment

Back 34

A lawyer must not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.

Front 35

Legal Corporations

Back 35

Because of certain favorable tax treatment, lawyers may incorporate.

However, the liability of the lawyer to the client may not be limited, and a nonlawyer may not have an interest in a legal corporation as a shareholder, officer, or director.

Front 36

Legal Services Organizations

Back 36

Legal services organizations include legal aid and public defenders, military legal assistance offices, and lawyer referral services.

Group legal service plans are plans designed to provide various legal services to members of a specific group.

Such group may consist of union members, members of an association, and participants in prepaid legal insurance programs.

Legal service plans may advertise their availability to the public.

Such advertisements must conform to the RPC.

Front 37

Membership in Legal Services Organizations

Back 37

A lawyer may serve as a director, officer, or member of a legal services organization, other than the law firm with which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer.

However, the lawyer must not knowingly participate in a decision that would be incompatible with the lawyer's obligations to a client, or where the decision could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer

Front 38

Responsibilities of a Partner, Manager, or Supervisory Lawyer

Back 38

A partner, as well as a lawyer with comparable managerial authority, must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all of the firm's lawyers conform to the RPC.

Supervisory lawyers have comparable responsibility.

A lawyer will be responsible for another lawyer's violation of the RPC if:

1. The lawyer orders or ratifies the specific conduct; or

2. The lawyer is a partner or similar manager in the firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Front 39

Responsibilities of a Subordinate Lawyer

Back 39

A lawyer is bound by the RPC notwithstanding that the lawyer acted at the direction of another person.

Front 40

Restrictions on Right to Practice

Back 40

A lawyer must not participate in an agreement that restricts the rights of a lawyer to practice after termination of the relationship, except:

1. An agreement concerning benefits upon retirement; or

2. An agreement in which a restriction on the lawyer's right to practice is part of the settlement of a controversy between private parties.

Front 41

Sale of a Law Practice

Back 41

The RPC permit the sale or purchase of a practice or an area of practice, including goodwill, if:

1. The seller ceases private practice (or practice in the area of practice that has been sold) in either the geographic area or the state in which the practice has been conducted;

2. The entire sale is to one or more lawyers or firms;

3. Fees charged to clients do not increase because of the sale; and

4. The seller gives written notice to each client of the sale and the client's right retain other counsel or to take possession of her file.

Front 42

Information about Legal Services: Definitions--Advertising vs. Solicitation

Back 42

"Advertising" is a communication with the public at large.

"Solicitation" is a lawyer's individual contact with a layperson designed to entice the layperson into hiring the lawyer.

Front 43

Information about Legal Services: First Amendment Protection

Back 43

The U.S. Supreme Court has recognized lawyer advertising as commercial speech protected by the 1st and 14th Amendments.

These Amendments allow commercial speech to be totally prohibited ONLY IF false or misleading.

Otherwise, commercial speech must be allowed, but MAY BE LIMITED by regulations that:

1. Serve a substantial government interest;

2. Directly and materially advance that interest; and

3. Are narrowly tailored to serve that substantial interest

Note: In-person solicitation for profit may be banned

Front 44

Advertising: Basic Rule--Communications must be true and Not Misleading

Back 44

A lawyer is subject to discipline for ANY TYPE of communication about the lawyer or the lawyer's services that is FALSE, DECEPTIVE, or MISLEADING or that VIOLATES THE RPC.

This rule applies to all kinds of communications (e.g., advertisements, personal communications, office signs, recorded telephone messages, etc.)

Front 45

Advertising: Prohibited Communications

Back 45

The RPC prohibits communications that:

1. Use a nickname, moniker, motto, or trade name that implies the ability to obtain results in a matter;

2. Are irrelevant to the selection of counsel;

3. Are made to resemble legal documents;

4. Use, without disclosure, an actor to portray the lawyer, a member of the firm, or a client, or depictions of fictionalized events or scenes; or

5. Portray a judge, a fictitious law firm, or that include a fictitious name to refer to lawyers not associated together in a law firm.

A lawyer may include certain information in advertisements, provided the information is not false, deceptive, or misleading.

Front 46

Advertising: Statements Regarding the Lawyer's Services

Back 46

An advertisement can include true and nonmisleading statements that:

1. Are reasonably likely to create an expectation about the results the lawyer can achieve;

2. Compare the lawyer's services with the services of other lawyers;

3. Are client testimonials or endorsements (unless the matter is still pending); or

4. Describe or characterize the quality of the lawyer's services.

Front 47

Advertising: Notification that Communication is Advertising

Back 47

Every advertisement, other than one appearing on the radio, television, or billboard, or in a directory, newspaper, or periodical, must labeled "Attorney Advertising" on the first page. If the advertisement appears on a website or electronic mail, the words must appear on the homepage or on the subject line, respectively.

Front 48

Limits on Advertising

Back 48

Lawyers have broad latitude in advertising their services.

All statements made in advertisements must be true and not misleading or deceptive.

All advertisements are subject to the following restrictions:

1. Statements about the areas of law in which the lawyer practices must comply with the RPC.

2. If a lawyer wishes to identify some regular clients in an advertisement, the lawyer must first obtain the clients' written consent

3. Every advertisement for legal services must include the name, office address, and telephone number of the lawyer or law firm whose services are being offered.

4. A lawyer must not give anything of value to a person for recommending the lawyer's services.

5. A lawyer may use a telephone number that contains a domain name, nickname, moniker, or motto provided that it does not violate the RPC.

Front 49

Advertising: Computer-Accessed Communications

Back 49

Internet web site domain names can be used by a lawyer if:

1. The domain name does not include the name of the lawyer or law firm;

2. Each page of the web site clearly states the name of the lawyer or firm;

3. The lawyer or firm does not attempt to practice law using the domain name

4. The domain name does not imply an ability to achieve particular results; and

5. The domain name does not violate a disciplinary rule.

A lawyer cannot use hidden computer software codes if they would violate the RPC if displayed.

Pop-up and pop-under advertisements can be used only on the lawyer's own web site.

Front 50

Advertising: Preapproval and Retention Requirements

Back 50

All advertisements must be preapproved by the lawyer and a copy must be kept for 1 year for computer-accessed communications and 3 years for all other advertisements.

A copy of the published contents of any web site must be preserved and updated every 90 days, or sooner in the vent of major web site redesign or extensive content change.

Front 51

Solicitation: By In-Person, Telephone, or Computer-Accessed Communication

Back 51

A lawyer must not solicit professional employment from a prospective client by in-person or telephone contact, or by real time or interactive computer-accessed communication, unless the prospective client is a close friend, relative, or former or current client.

The rules prohibiting in-person or telephone solicitation apply only "when a significant motive" for the lawyer's solicitation "is the lawyer's pecuniary gain."

Thus, a lawyer who volunteers to represent someone without a fee, and without other hope of pecuniary gain, is not subject to discipline for solicitation.

Front 52

Solicitation: By Written or Recorded Communication

Back 52

A lawyer must not solicit professional employment from a prospective client by written or recorded communication if:

1. The communication is false, deceptive, misleading, or violates the RPC;

2. The recipient has made known to the lawyer a desire not to be solicited;

3. The solicitation involves coercion, duress, or harassment;

4. The lawyer knows or reasonably should know that the age or physical, emotional, or mental state of the recipient makes it unlikely that the recipient will be able to exercise reasonable judgment in retaining a lawyer;

5. The lawyer intends or expects, but does not disclose, that the legal services necessary to competently handle the matter will be performed primarily by another lawyer who is not affiliated with the soliciting lawyer as a partner, associate, or counsel; or

6. The written communication is sent by a method that requires the recipient to travel to a location other than that at which the recipient ordinarily receives business or personal mail, or that

Front 53

Solicitation: By Written or Recorded Communication: Communications Regarding Specific Incidents

Back 53

In the event of a specific incident involving potential claims for personal injury or wrongful death, a lawyer (or someone acting on behalf of the lawyer) must not make any unsolicited communication to the defendant or to the victim or his family or legal representative during the first 30 days after the date of the incident.

Front 54

Solicitation: By Written or Recorded Communication: Sample Retainer Agreements

Back 54

A retainer agreement that is included with a solicitation must be marked "SAMPLE" at the top of each page in red ink and marked "DO NOT SIGN" on the client signature line.

Front 55

Solicitation: By Written or Recorded Communication: Recording and Retention Requirements

Back 55

A copy of any solicitation, excluding web sites or professional cards, sent to a NY resident (excluding close friends, relatives, or former or existing clients) must be filed with the local attorney disciplinary committee or in the judicial department where the solicitation is sent.

Front 56

Solicitation: Group and Prepaid Legal Service Plans

Back 56

A lawyer may participate in and be compensated by a group or prepaid legal service plan, even though the plan uses personal contacts and live telephone contacts to offer the plan to persons who are not known to need specific legal services.

Furthermore, a lawyer may personally contact a group that might wish to adopt a legal service plan for its members.

Front 57

Solicitation: Educational Activities

Back 57

A lawyer may accept employment that results from participation in activities designed to educate the public to recognize legal problems, to make intelligent selection of counsel, or to utilize available legal services.

Front 58

Indentification of Practice and Specialization

Back 58

A lawyer who is admitted before the U.S. Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation.

In public communications, a lawyer may identify one or more areas of law in which she practices or may state that her practice of law is limited to one or more areas of law, but she must not state that she is a specialist in a particular area of law except:

1. A lawyer may state that she is certified as a specialist in a particular area of law if certified by a private org and:

a. The certifying org has been approved by ABA;

b. The certifying org is identified; and

c. Lawyer states that certifying org not affiliated with any gov authority, cert is not required to practice in NY, and cert does not necessarily indicate greater competence

2. Lawyer may state she has been cert as specialist in area BY ANOTHER STATE if:

a. State identified, and

b. Lawyer states that cert granted by the state not recognized by any gov auth within NY, cert not

Front 59

Basic Responsibility to Render Public Interest Legal Service

Back 59

A lawyer should aspire to render a specified minimum number of hours of pro bono legal services per year.

The RPC suggest 20 hours.

A substantial majority of time should be devoted without fee to poor persons or organizations in matters designed to help poor persons.

A lawyer may also participate in law reform activities, even if they might affect a client's interests.

However, if the lawyer knows that a client may materially benefit from a decision in which the lawyer participates, she must disclose that fact to the reform organization (but need not identify the client).

Front 60

Client with Diminished Capacity

Back 60

When a client has diminished capacity to make adequately considered decisions in connection with the representation, the lawyer must, as far as reasonably possible, maintain a normal lawyer-client relationship.

The lawyer may seek the appointment of a guardian if she reasonably believes that the client cannot adequately protect himself from substantial harm

Front 61

Emergency Legal Assistance to Nonclient with Diminished Capacity

Back 61

Where the health, safety, or financial interest of a person with SERIOUSLY diminished capacity is threatened with IMMINENT and IRREPARABLE harm, a lawyer may take legal action on behalf of the person even though the person is unable to establish a lawyer-client relationship.

The impaired person (or someone acting on his behalf) must have consulted the lawyer.

The lawyer should not act unless she reasonably believes the impaired person has no other representative.

The lawyer owes the same duties to the impaired person as she would with respect to a client.

Normally, a lawyer should not seek compensation for such emergency actions.

Front 62

Avoiding Conflicts of Interest

Back 62

A lawyer must be careful not to enter into a relationship where there is a potential conflict of interest that is likely to adversely affect his ability to exercise independent and professional judgment

Front 63

Avoiding Conflicts of Interest: Concurrent Conflicts of Interest

Back 63

A lawyer must not represent a client if the representation creates a concurrent conflict of interest, i.e., if representation will involve the lawyer in representing different interests, or there is a significant risk that representation will be adversely affected by the lawyer's personal interests or responsibilities to a current or former client or third person.

Front 64

Avoiding Conflicts of Interest: Client Consent to Concurrent Conflicts

Back 64

Despite a concurrent conflict, a lawyer may undertake representation if the following conditions are satisfied:

1. The lawyer reasonably believes that he can competently and diligently represent each affected client;

2. The representation is not prohibited by law;

3. The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same case pending before a tribunal; and

4. Each affected client gives informed consent in writing

Front 65

Business Transaction with Client

Back 65

A lawyer must not enter into a business transaction with a client if they have differing interests in the transaction and the client expects the lawyer to exercise professional judgment for the protection of the client unless:

1. The transaction and terms under which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client;

2. The client is informed in writing of the desirability of seeking, and is given a reasonable opportunity to seek, the advice of independent counsel on the transaction; and

3. The client gives written informed consent to the lawyer's role in the transaction

NOTE: The lawyer and client are permitted to enter into STANDARD COMMERCIAL TRANSACTIONS for products or services that the client generally markets to others (e.g., banking or brokerage services). The lawyer has no advantage in dealing with the client in such situations.

Front 66

Avoiding Conflicts of Interest: Improper Use of Information Adverse to Client

Back 66

A lawyer must not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by the RPC.

Front 67

Avoiding Conflicts of Interest: Designating Oneself as a Beneficiary

Back 67

A lawyer must not solicit a substantial gift from a client or prepare an instrument giving the lawyer, or a person with whom the lawyer has a close, familial relationship, any substantial gift from a client (including a testamentary gift except where the client is related to the donee.

Front 68

Avoiding Conflicts of Interest: Literary or Media Rights Based on Representation

Back 68

Prior to the conclusion of representation of a client, a lawyer must not make or negotiate an agreement giving the lawyer literary or media rights to an account based, in substantial part, on information relating to the representation.

No matter how compelling the circumstances, the client cannot waive this prohibition against the lawyer's acquisition of media rights PRIOR to the conclusion of the matter.

Front 69

Avoiding Conflicts of Interest: Financial Assistance to Client

Back 69

A lawyer must not provide financial assistance to a client in connection with litigation except that:

1. A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and

2. A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

Front 70

Avoiding Conflicts of Interest: Compensation from Party Other than Client

Back 70

A lawyer must not accept compensation for representing a client from someone other than the client unless:

1. The client gives informed consent;

2. There is no interference with the lawyer's independence of professional judgment or with the lawyer-client relationship; and

3. Information relating to representation of a client is protected

Front 71

Avoiding Conflicts of Interest: Aggregate Settlement or Agreement in Multiple Representation

Back 71

A lawyer who represents two or more clients must not participate in making an aggregate settlement of the claims of or against the clients (or, in a criminal case, an aggregate agreement as to guilty or no-contest pleas) unless each client gives informed consent in a signed writing.

There must be disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement or agreement.

Front 72

Avoiding Conflicts of Interest: Limiting Liability for Malpractice

Back 72

A lawyer must not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement.

Front 73

Avoiding Conflicts of Interest: Settling Malpractice Claim with Unrepresented or Former Client

Back 73

A lawyer must not settle a claim or potential claim for malpractice liability with an unrepresented client or former client without first advising that person in writing that independent representation is desirable and giving that person a reasonable chance to consult with independent counsel

Front 74

Avoiding Conflicts of Interest: Proprietary Interest in the Cause of Action

Back 74

A lawyer must not acquire a proprietary interest in a client's cause of action or litigation subject matter except that the lawyer may:

1. Acquire a lien granted by law to secure the lawyer's fee or expenses; and

2. Contract with a client for a reasonable contingent fee in a civil case.

Front 75

Avoiding Conflicts of Interest: Sexual Relations Between Lawyer and Client

Back 75

A lawyer must not, as a condition of entering or continuing any professional representation by the lawyer of his firm:

1. Require or demand sexual relations with any person;

2. Employ coercion, intimidation, or undue influence; or

3. In domestic relations matters, enter into sexual relations with a client during the course of the lawyer's representation of the client.

Note that a conflict caused by a sexual relationship is not imputed to other lawyers in the lawyer's firm.

Front 76

Conflict of Interest Regarding Former Client

Back 76

A lawyer who formerly represented a client in a matter may not thereafter represent another client in the same or a substantially related matter if that client's interests are materially adverse to the interests of the former client, unless the former client gives informed, written consent.

Also, a lawyer may not represent a person in the same or a substantially related matter in which a firm with which the lawyer was formerly associated represented a client:

1. Whose interests are materially adverse to this person; and

2. About whom the lawyer had acquired material information protected by the RPC--unless the former client gives informed, written consent.

Front 77

Conflict of Interest Regarding Former Client: Using or Revealing Information

Back 77

A lawyer who has formerly represented a client in a matter or whose present or former firm has done so may not thereafter:

1. Use information relating to the representation to the disadvantage of the former client except as permitted or required by the RPC or when the information has become generally known; or

2. Reveal information relating to the representation except as permitted or required by the RPC.

Front 78

Avoiding Conflicts of Interest: Prospective Client

Back 78

A lawyer who has had discussions with a prospective client must not use or reveal information learned in the consultation.

A lawyer must not represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.

Front 79

Avoiding Conflicts of Interest: Problems with Testifying for Client

Back 79

A lawyer ordinarily may not represent a client in litigation where the lawyer is likely to be a necessary witness.

In such a situation, the lawyer should refuse employment or, if he has already been retained, should withdraw from the case.

There are 3 exceptions to this prohibition:

1. If the lawyer's testimony will relate solely to an uncontested issue;

2. If the lawyer's testimony will concern only the nature and value of legal services rendered to the client; and

3. If the withdrawal of the lawyer for the purpose of testifying would result in substantial hardship to the client because of the distinctive value of the lawyer or firm to the case.

Front 80

Conflicts in Corporate Representation: Lawyer Represents Organization

Back 80

A lawyer employed to represent an organization represents the organization acting through its duly authorized constituents.

When a lawyer knows of, and reports to the organization's highest authority, a violation of law or legal obligation that is likely to result in substantial injury to the organization, a failure to take appropriate action allows the lawyer to report the relevant information to appropriate persons outside the organization if the lawyer reasonably believes that reporting to outsiders is necessary to prevent substantial injury to the organization.

Front 81

Exam Tip on Lawyer Representing Organization

Back 81

Keep in mind that the lawyer must act in the best interests of the ORGANIZATION and not any particular officer, employee, or other person associated with the organization.

Beware of exam questions where a lawyer is asked to act in the interests of the corporation's president or other official when that conflicts with the best interests of the organization.

Front 82

Conflicts in Corporate Representation: Multiple Representation Permissible

Back 82

A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of RPC 1.7 (relating to conflict of interest--disclosure and consent requirements).

Front 83

Conflicts in Corporate Representation: Securities Lawyers' Duties under Sarbanes-Oxley Act

Back 83

Pursuant to the Sarbanes-Oxley Act, the Securities and Exchange Commission ("SEC") has promulgated rules for securities lawyers who discover their clients violating securities laws.

A securities lawyer who becomes aware of credible evidence that her client is materially violating federal or state securities law must report such evidence to her client's chief legal officer ("CLO"). The CLO must investigate and conclude whether a violation occurred.

If the securities lawyer believes that the CLO did not achieve an appropriate response, the lawyer MUST report the evidence to:

1. The client's entire board

2. The board's audit committee; or

3. A committee of outside directors.

The Sarbanes-Oxley rules PERMIT, BUT DO NOT REQUIRE, the lawyer to reveal to the SEC confidential information that is reasonably necessary:

1. To stop the client from committing a violation that will cause substantial financial injury to the client or its investors;

2. To rectify such an injury if the lawyer's servic

Front 84

Imputation of Conflicts: Prohibition of One Lawyer Imputed to Entire Firm

Back 84

None of the lawyers in a firm may knowingly represent a client when any one of them practicing alone would be prohibited from doing so because of a conflict of interest.

Front 85

Imputation of Conflicts: Effect of Lawyer's Termination with Firm

Back 85

When a lawyer has terminated an association with a firm, the firm is prohibited from thereafter representing a person with interests that the firm knows or reasonably should know are materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm if the firm or any lawyer remaining in the firm has information protected by RPC 1.6 (relating to confidentiality) and RPC 1.9 (relating to duties to former clients) that is material to the matter.

Front 86

Imputation of Conflicts: Waiver of Imputed Disqualification

Back 86

A disqualification may be waived by the affected client or former client.

Front 87

Successive Government and Private Employment: Prior Public Legal Employment Creates Conflict of Interest

Back 87

Except as otherwise expressly permitted by law, a lawyer must not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives informed written consent.

Front 88

Successive Government and Private Employment: Lawyer's Conflict of Interest Not Necessarily Imputed to Firm

Back 88

No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in a matter in which the lawyer participated personally and substantially as a public officer or employee unless:

1. The disqualified lawyer is TIMELY SCREENED from any participation in the matter and is apportioned no part of the fee therefrom; and

2. WRITTEN NOTICE is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

Front 89

Successive Government and Private Employment: Conflict of Interest May Arise if Lawyer Has Confidential Information

Back 89

Except as law may otherwise expressly permit, a lawyer having what he knows to be confidential information about a person, acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.

A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

Front 90

Successive Government and Private Employment: Prohibited Actions of Public Law Officer or Employee

Back 90

Except as otherwise expressly permitted by law, a lawyer CURRENTLY serving as a public officer or employee may not:

1. Participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives informed written consent; or

2. Negotiate for private employment with any person who is a party or an attorney for a party in a matter in which the lawyer is participating personally and substantially.

However, a lawyer serving as a law clerk to a judge or arbitrator may negotiate for private employment after so notifying the judge or arbitrator.

Front 91

Avoiding Conflicts: Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral

Back 91

A lawyer must not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, or law clerk to such a person, or as an arbitrator, mediator, or other third-party neutral unless all parties to the proceeding give written informed consent.

However, an arbitrator selected as a partisan of a party in a multimember arbitration panel may subsequently represent that party.