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154 Cards in this Set

  • Front
  • Back
What is the source of rules of professional responsibility in NY?
NY Code of Professional Responsibility, which consists of:
1) Disciplinary Rules (DR) — "must" rules (subject to discipline for violation)
2) Ethical Considerations — "should" rules (but not subject to disciplinary action)
What are the general substantive standards for PR?
Lawyer/Law firms must not:
1) Violate or circumvent DRs
2) Engage in illegal conduct that adversely reflects on honesty, trustworthiness or fitness
3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation
4) Obstruct justice
5) Unlawfully discriminate in practice of law
6) Engage in any other conduct that adversely reflects on fitness as a lawyer (e.g., drugs)
What is the disciplinary procedure?
1) Initiated by complaint to disciplanry committe or appellate divison
2) Preliminary screening
3) Non-public hearing

**Lawyer has right to counsel, examine witness, self incrimination
How far does the scope of NY disciplinary authority reach?
A lawyer admitted to practice in NY is subject to disciplinary authority of NY, regardless of where the conduct occured.

**Lawyer may also be subject to discipline for the same conduct in another state where the lawyer licensed
When does an atty have a duty to report disciplinary violations?
Must report other lawyers' violations of DRs and cooperate with grievance committee w/ 2 exceptions:
1) Confidences
2) Secrets
When can a lawyer practice law in another state in which he's not admitted and not be guilty of unauthorized practice?
1) "pro hac vice" appearances
2) clients involvede in multistate business
3) multistate law partnerships (provided ind lawyers practice where they're admitted), and
4) practice before fed admin agencies
What are the responsibilities of supervisory lawyers and subordinate lawyers?
1) Law Firms — Must ensure all attorneys comply with DRs AND must implement/enforce firm procedures
2) Supervisory Lawyers — must ensure subordinates comply with DRs
3) Subordinate Lawyers — must obey DRs, despite instructions to contrary from supervisory lawyers
What is the lawyer's most basic duty with repect to clients?
To act competently and with care in handling legal matters for a client.

**May not accept employment in an area in which he is not qualified and become qualified woul result in reasonable delay or expense to the client.
What is the emergency exception for lawyer expertise?
In an emergency the lawyer may assist the client even if he lacks expertise in the area.

**Assistance cannot exceed what is reasonably necessary te meet the emergency.
What is a confidence?
Any information protected by the atty-client privilege.
What is a secret?
Non-confidential information learned through rep of a client that:
1) Client requests be kept confidential, OR
2) Would be embarrassing or detrimental to client if revealed.
What is the attorney client privilege?
Allows a client to refuse to testify and prevent his attorney from testifying in court about communications between the two.
Who does the atty-client privilege cover if the client is a corporation?
It will cover employees if:
1) the employee communicates with the atty at the direction of a supervisor
2) the employee knows that a communication is to help the corp get legal advice, AND
3) the communication concerns a subject w/in scope of the employees duties.
How long does the atty client privilege continue?
Indefinitely, even after the relationship has terminated or client dies.
What is the scope of the professional duty to preserve all confidences and a secerets?
Lawyer must not reveal any confidences or secrets that the client has requested remain confidential or would be embarrasing or detrimental to the client.

**Much broader than the atty-client privilege.
Does the duty to preserve secrets and confidence become compromised if others are present?
No, unlike atty-client privilege.
What is the duration of the duty to preserve confidences and secrets?
Covers the period prior to, during, and after the relationship.

**Duty can arise with respect to a client that has not been hired.
What are the exceptions to the duty to preserve?
1) Informed consent of client
2) Required by law or court order
3) To reveal client's intention to commit crime, and information necessary to prevent crime (applies to any crime—NOT limited to death or bodily harm)
4) Necessary to collect fee OR to defend accusation of wrongful conduct
5) To extent implicit in withdrawing statement now known to be false
What is the scope of the duty to preserve confidence and secrets?
Duty extends beyond mere nondisclosure to include using it to the disadvantage of the client or the advantage of another.

**Must take care to prevent employees from disclosing.
What is the general rule regarding advertising?
Must avoid any type of communication about the lawyer or his services that is false or misleading.
What limitations exist on ads, in addition to the general rule?
1) Must have consent of client to use their name
2) Must include name, address, and number
3) TV or Radio ad must be prerecorded and a copy retained for one year
4) Mailing lists must be retained for one year
What communciations are specifically prohibited under the code?
Communications that:
1) promise or suggest outcomes
2) state or imply ability to improperly influence a court or gov't official
3) are made to appear as legal documents
4) contain info in a type font too small to be read by most
5) use an actor to portray the lawyer w/o meaningful disclosure.
When may a lawyer solicit prospective clients in person or via phone?
Only when they are:
1) Close friend
2) Relative
3) Former client
4) Current client
When may a lawyer solicit prospective clients wia written or recorded communications?
Shall not solicit from prospective clients if:
1) Recipient has communicated a desire not to be represented
2) Age, physical, emotional or mental state impairs their reasonable judgment
Are referral fees permitted in NY?
No, they're strictly prohibited.
When may a lawyer represent themself as a "specialist" in a praticular area?
A lawyer who has been certified by a private organization as a specialist may state so if:
1) the org has been approved by the ABA
2) the organizantion is identified
3) The disclaims that such certification is not required

**May always state practice areas.
When does an atty have an obligation to reject clients?
1) He is unable to render competent service
2) The proposed client wants to bring an action merely to harassor or injure
3) The proposed client has not terminated a relationship with another atty
When may an atty withdraw from a case he was appointed to?
Only where there are "compelling reasons".

**Repugnance, belief of guilt, or belief regarding the merits are not "compelling reasons"
When must a lawyer refuse employment due to his own conflicts of interest?
When his professional judgment will or reasonably may be affected by his own financial, property, or personal interest, unless:
1) A disinterestd lawyer would believe there's not problem, and
2) Client consents
What are the exceptions to the rule that a lawyer can't rep a client where he or a firm member should be called as a witness on a signifant issue?
1) If the testimony will relate sole to an uncontested matter
2) Tesimony only relates to a matter of formality
3) Testimony will only concern the nature and value of legal services rendered
4) Withdrawal will result in substantial hardship to the client
When will simultanous representation constitute a conflict of interest?
1) Can never represent parties on the opposite sides of the 'v'
2) Can't sue a current client on behalf of another clien
3) Can't rep a client if independent judgment on behalf of that client is likely to be affected by representation of another client.

**Consent and disinterestedness applies to #3.
When will representing a current client against a former client constitute a conflict of interest?
Cannot represent a current client in same or substantially related matter in which his interests are materially adverse to interests of a former client

**Can represent current client if former client consents, in writing, after full disclosure
When is disqualification of one lawyer imputed to the entire firm?
All lawyers in firm are disqualified if any lawyer is disqualified b/c of:
1) Personal interests,
2) Simultaneous representation conflict, or
3) Former client conflict
Who is the actually client in an insurance defense case?
The lawyer represents the insured and cannot furnish any of the client's confidential info to the insurance company.
What is the general rule with respect legal fees?
1) Fee must be reasonable in light of particular circumstances
2) Must fully explain the fee arrangements.
What is a contingent fee?
A fee that is dependent on the successful resolution of the client's case.

**Must be in writing
What must be included in the written contingent fee?
1) Method of calculating fee (including percentage in event of settlement, trial or appeal),
2) Expenses to be deducted from recovery, and
3) Whether such expenses are deducted before or after fee is calculated
When are contingent fees prohibited?
1) Criminal matters
2) ANY domestic relations matters (including proceedings to enforce or modify judgment)—no "incentive" fees either
What are the requirements for fee agreements in domestic relations matters?
1) Must be in writing (as prescribed by court)
2) Must be signed by lawyer and client
3) Must send out regular monthly bills—can't just send one big one at the end
4) Lawyer must furnish statement of client's rights and responsibilities at initial conference and prior to signing of written retainer agreement
5) Fee disputes must be resolved by arbitration at election of client

**If lawyer doesn't comply he doesn't get paid.
When can a lawyer share a fee with an "outside lawyer"?
Only if:
1) Client consents after full disclosure,
2) Total fees of all lawyers do not exceed reasonable compensation, AND
3) Either: Division is in proportion to services performed by each lawyer, OR Division may be made in any manner, so long as each lawyer assumes joint responsibility for the representation in a writing given to client
What other fee restrictions are there?
1) Proprietary interests in litigation prohibited
2) No financial assistance to clients
3) No interest publication rights prior to concluding all aspects of the arrangement
4) May not suggest that a gift be made to lawyer
5) No business transactions between lawyer and client.

** It is permissible for a lawyer to bill one person for legal services to another.
What is the duty to protect client's property?
1) An atty must keep separate from her own property all property belonging to the client,
2) All funds of the client paid to the lawyer must be deposited in an identifiable bank account,
3) Lawyer must notify client when he recieves property and maintain records.
What are the duties of an attorney befor attempting termination of the atty-client relationship?
Before attempting to terminate at any stage of the proceedings, the attorney must:
1) Obtain permission from the tribunal (if required)
2) Take any reasonable step necessary to avoid foreseeable prjudice to client
3) Return any unearned advance fee.
When is withdrawal from the atty-client relationship mandatory?
1) Client is merely harasing opposing party
2) Continued employment will violate a disciplinary rule
3) Lawyers mental or physical condition makes it unreasonaly difficult to effectively represent client
4) Lawyer is discharged.
How is the responsibility divided as to legal decisions?
1) Client makes decisions affecting merits (eg: accepting settlement, waiver of aff defense, plea, etc)
2) Lawyer makes procedural/tactical decisions (eg: motions, scope of discovery, W choice, etc)
What is the rule regarding trial publicity?
Lawyer must not make an extrajudicial statement that:
1) a reasonable person would expect to be disseminated by means of public communication, and
2) the lawyer knows or should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.
Where are complaints adjudicated + applicable body of law
Complaints involving a New York attorney’s conduct are investigated by the Grievance Committee in one of the Departments of the Appellate Division.

Applicable Law: Code of Professional Conduct = rules governing lawyers
Filing of complaints are ____communications


Hearings are _______

suing for defamation
Filing of complaints are privileged communications (not public), and

hearings are not public:

atty cannot sue for defamation because it is privileged complaint, at the end of the hearing If guilty then it can become public
General Substantive standards: a lawyer may not: (7)
General Substantive standards: 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 such violation

2.Engage in illegal conduct that adversely reflect on the lawyers honesty, trustworthuness or fitness as a lawyer in other respects

3.State or imply an ability to improperly influence a government agency or official or to achieve results by means that violate the RPC or other law.

4.Engage in conduct involving dishonestey, fraud, deceit or misrepresentation.

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

6.Knowingly assist a judge or judicial office in conduct that violates the applicable rules of judicial conduct or other law.

7.Unlawfuly discriminate in the practice of law, including hiring, promoting or otherwise determining conditions of employment.
Four types of discipline that can be imposed on a New York attorney are:
Discipline: Four types of discipline that can be imposed on a New York attorney are:

i.‏Letter of Admonition: slap on the wrist, this is not public

ii.Public or private censure by the court: It will be published

iii. Suspension: A lawyer is temporarily suspended from practicing law. Take away license for a period of time, 6 months, a year, two years, → can’t practice law OR share in legal fees earned during period of suspension.

iv. Disbarment: Permanent revocation of license to practice law. You cannot practice law anymore.
malpractice claims
Malpractice: In addition to a disciplinary investigation, attorneys are also subject to malpractice claims by clients any by third parties. → malpractice claims are in the Supreme Court, grivance committee cannot do this.
ADMISSIONS REQUIREMENTS
1. US SC requirements
2. NY requirements 3
3. NY bar exam 3.
Admission to the Profession U.S. Supreme Court says state requirements for admission to bar need be rationally related to the practice of law. -→ Graduation from an ABA accredited law school is rational

NEW YORK: New York, admission may be granted for an applicant who:

1.Has 1 year of law school experience, and then

2.Studied NY law in NY law firm under the supervision of NY attorney for 3 more years.

3.NY can refuse to admit persons, who refuse to uphold the NY State Constitution or US Constitution.

NEW YORK BAR EXAMINATION REQUIREMENTS pass a written bar exam and the MPRE. An applicant can be considered without examination if the applicant has
1. Graduated from an ABA accredited law school
2. Been admitted to practice in another state AND that state would admit a New York lawyer without examination, known as reciprocity, AND
3. Practiced law for at least 5 of the last 7 years preceding the application to the New York Bar.
Requirements on applicant when the applies to the bar (2)
Requirements on applicant when rhe applies to the bar

TRUTH AND FULL DISCLOSURE: Burden on applicant to show “good moral character” in addition to passing the New York bar and the MPRE.

DUTY TO COOPERATE WITH ADMISSIONS AUTHORITIES
Requirements on lawyer regarding other applicants (not yourself)

GOOD + BAD APPLICANTS + NOTE
Requirements on lawyer regarding other applicants (not yourself)

1.Good applicants: Your input is aspirational/“should” → you don't have to recommend but you may.

2.Bad applicant: must report conduct involving moral turpitude. Affirmative duty to report on moral turpitude, i.e. conduct contrary to justice, honesty, or good morals.

a.Moral turpitude: perjury, bribery, theft, Filing a false tax return is a crime of moral turpitude

b.NOTE: single possession of pot (marijuana) for personal use does NOT rise to the level of moral turpitude.
Regulation After Admission:

STATE COURT
Regulation After Admission:

Regulated by highest state court: (and through its agencies) court of appeals and the Appellate Division of the Supreme Court.
Regulation After Admission:

SELF REGULATING PROFESSION: (2 Prong duty when violation occurs)
Self-regulating profession: with two-pronged duty when you KNOW of a violation: (this is atty’s application to regulate the bar.)

PRONG I: Lawyer must report substantial rule violations by another lawyer→ small violations don't require reporting. → you cannot bargain away duty to report, if you see a violation even if it is resolved peacefully, you must report it.

PRONG II: Lawyer Must be available to testify against the lawyer‏ We CANNOT report anonymously.
Where a lawyer learns of the bad conduct of another lawyer through representation
Where a lawyer learns of the bad conduct of another lawyer through representation of that lawyer as a client, the duty of confidentiality will trump the duty to report the misconduct to the bar. →

But he may not recommend the lawyer for admission in another state.
Multi-Jurisdictional Practice:

FOUR Things about diff. states and discipline
1. Discipline by one state does NOT mean there will be discipline in the other.

2. Other states make an independent determination of whether the conduct complained of violates that state’s ethical rules.

3. But, most other states will give some effect to a sister state’s determination on the basis of (comity, respect for another state’s decision) reciprocal discipline →

4. you can be discipline in more than one same based on the same conduct.
Multi-Jurisdictional Practice:

unauthorized practice
UNAUTHORIZED PRACTICE: can’t do it where not admitted;
Multi-Jurisdictional Practice:

permissible types of temporary multijurisdictional practice. 5
PERMISSIBLE TYPES OF TEMPORARY MULTIJURISDICTIONAL PRACTICE: allowed in other states by NY lawyers (first two can be simultaneous)

a.Associate with an active local lawyer

b.Special permission called pro hac vice (for one case)

c.Mediation or arbitration out of home-state practice

d.Anything reasonably related to lawyer’s home-state practice (You handle all of client’s real estate in NY and he has one parcel in NJ. You can also handle the NJ parcel.)

e. Multi-State Firms: A lawyer may ONLY practice in the state where he is admitted, and the firm letterhead must indicate the states of atty’s admission.
Multi-Jurisdictional Practice:

CHOICE OF LAW: in Multi-jurisdictional Matters:

General rule + if licensed in NY + if admitted to NY and another state
CHOICE OF LAW: in Multi-jurisdictional Matters: NY can discipline atty for any conduct where it cocurred, this is how we decide what law to the discipline

1.If licensed in New York: ONLY, then NY law and rules apply. Regardless of where conduct occurs.

2.If admitted to New York and another state: rules of the state will apply in which the lawyer principally practices, UNLESS the conduct’s key effect is in another state, then that OTHER state’s rules will apply.
WHAT DOES IT MEAN TO “PRACTICE LAW”?

general
WHAT DOES IT MEAN TO “PRACTICE LAW”?

General: You are a lawyer all the time and everywhere. You can be held responsible by NY for professional and personal activities. 24/7 whether performing personal or professional obligations
Decision Making Power:

Client’s Decisions: (5)
Decision Making Power: Who is empowered to make which decisions in legal matters?

a. Client’s Decisions: Those of substantive legal import, such as whether or not to:
i. Sue; whether to commence an action
ii. Appeal;
iii. Settle; whether to settle
iv. Have a jury or a bench trial; choosing between jury or bench trial
v. Take the stand in a criminal case. Testifying in a criminal case is always the clients decision.
Decision Making Power:

Attorney’s Decisions:

general 2 things, + summation of rule
Attorney’s Decisions: Strategy, procedure and tactic, such as whether or not to:

i. Discovery methods to use: such as depositions, interoggatroeis etc is usually the atty’s call →Take depositions (however, the client can veto if deposition is too costly); and

ii. Granting adjournments that do not prejudice the right of a party: Granting continuances to the opponent party.

iii. Thus, attorneys must abide by the client's wishes, UNLESS doing so would be illegal, unethical or immoral. even if the atty thinks its the best offer you need to do what the client wants → even low settlement offers need to go to the client, don't just assume they would reject them. So call client and follow his instructions
What if the client loses the ability to make a clear decision?
What if the client loses the ability to make a clear decision?→

You should have a guardian appointed. Do not make decisions for the client.
In New York, an attorney can take protective action and seek to substitute judgment for a client if: (3)
In New York, an attorney can take protective action and seek to substitute judgment for a client if: You cannot substitute your judgment unless: (*if you have all three of these the atty can take protective action otherwise you need listen to client)
i. Client has diminished capacity
ii. Is at risk of substantial physical, financial or other harm
iii. Cannot adequately act in her own interests.
Withdrawal from Representation:
Lawyers have a general freedom to reject cases, although they should take cases involving the oppressed or defenseless, and should do their fair share of pro bono publico work. →

This is NOT required. This is should NOT must →
Attorney MUST (seek to) withdraw from a representation when: (4)
Attorney MUST (seek to) withdraw from a representation when:

1.Lawyer knows representation would result in volation of rules or law

2.Lawyer suffers physical or mental disability

3.Client fires the atty

4.Lawyer knows client is taking steps to solely to harass or maliciously injure another → if partly to harass then not must withdraw
Attorney MAY may (seek to) withdraw when: (9)
Attorney MAY may (seek to) withdraw when:
1.If withdrawal can be accomplished without material adverse effect on interests of client.

2.Client’s claim or defense is frivolous.

3.Client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.

4.Client deliberately disregards an agreement or obligation to attorney as to expenses or fees. → MUST show it is deliberate = client has the money and refuses to pay. If client is just poor then not deliberate.


5.Client insists that the lawyer pursue a course of conduct that is illegal or is prohibited by a Domestic Relations

6.Other conduct that makes it unreasonably difficult for lawyer to carry out employment effectively.

7.Lawyer’s continued employment is likely to result in violation of DR. this is a may withdraw, above it is that “he knows” this just “likely”


8.Lawyer’s inability to work with co-counsel indicates that the best interests of the client are served by withdrawal.

9.Client knowingly and freely agrees to termination.
Competence:

Rule + includes + overcome lack of competence by (2)
Lawyer should take ONLY those cases he or she is competent to handle or encourage client to seek other counsel.

Competence includes: physically and mentally able, having competence in the substantive knowledge of law, and sufficient time to devote to the matter.

‏You can overcome lack of competence or expertise by:

i. A: Association with a competent lawyer.

ii. L: Learn in time. Becoming competent in the area
DO NOT help others engage in the Unauthorized Practice of Law:

rule + what is the practice of law (3) + note
DO NOT help others engage in the Unauthorized Practice of Law:

a. Rule: ONLY lawyers may engage in the practice of law. → be careful for young attys passed bar but NOT admitted = unauthorized practice of law, sometimes judge will permit.

The practice of law is every activity that requires a law license: such as, attending hearings, taking depositions, drafting substantive legal documents, negotiating settlements.
i. Appearances in judicial actions = requires a license → taking a deposition ie paralegal cannot do it
ii. Drafting legal documents → will or contract
iii. Settling cases for clients, you must be an attorney to do this.


NOTEPeople without licenses can conduct interviews, write memorandums of law, and fill in forms drafted by an attorney.
Hindering a lawyer's future right to practice:

noncompete: rule + 2 exceptions
Hindering a lawyer's future right to practice:

A lawyer may NOT enter into a non-compete agreement or provision with his current partners or associates, EXCEPT:
a. An agreement concerning benefits on Retirement: this means you can enter agreement to leave, but if I do practice, I lose benefits but if it said “you cannot practice for 5 years this is prohibited
b. In a sale of a law practice → atty can sell their practice, but there you can have an agreement not to practice.
ESTABLISHING YOUR PRACTICE AND GETTING CLIENTS:

firm name + tade name + standard
ESTABLISHING YOUR PRACTICE AND GETTING CLIENTS:

Firm Name: The firm name must, not be be isleading


Trade names: trade names are NOT allowed in NY Such names can be misleading to a lay person that you are sanctioned by the state. →

Standard is the “very stupid lay person,” not the “reasonable person.” Aaabest; The Law Firm of New York= misleading ‏
ESTABLISHING YOUR PRACTICE AND GETTING CLIENTS:

dead lawyers and firm name
Dead lawyers can be in the name, ONLY IF they were real partners:

You can include the name of a deceased partner in the firm name. As long as attorney practiced at the firm while he was alive
IF the lawyer is leaving the firm permanently, the name must be removed (unless retiring): (2 + exception)
IF the lawyer is leaving the firm permanently, the name must be removed (unless retiring):

a.Atty who leaves for government work: name must be removed because he is now in full time government work; if lawyer goes in to the government it would imply a relationship

b. Disbarred atty: name must be removed from the letterhead since he was disbarred

c. Suspended attorney: the rule is that a suspended attorney’s name can stay on letter head
Specialist:

rule + Requirements to prove certification (4) + 3 notes
Specialist: DO NOT hold yourself out as a specialist, UNLESS you are certified as a specialist or practice PATENT, TRADEMARK, OR ADMIRALTY or:

Requirements to prove certification:
i. He has been certified by a private organization approved by the ABA or the State of NY to certify; →

ii. The certifying organization is identified in the advertisement ; and

iii. Atty states that the certification is not affiliated with any government,

iv. States that Certification is not required to practice law, and

v. That the certification does not indicate greater competance of the lawyer over non attys over noncertified attys

**The above also applies for certification as a specialist in a particular area of law by another state.

**You can say “my practice concentrates in…” this is not a certification

**Remember even a 1st day attorney could say “specialist in admiralty law since this is one of the exceptions
Lawyer advertising defined:

rule + exception
Lawyer advertising defined: Any public or private communication made by or on behalf of a lawyer or law firm about the lawyer or services, the primary purpose of which is to retain the lawyer or law firm.


Exception: Communications to existing clients or other lawyers. These communications are not governed by the advertising rules.
Computer-accessed communication
Ads can be by Computer-accessed communication: Any communication made by or on behalf of a lawyer/law firm that is disseminated through the use of a computer or other electronic device which includes, but not limited to: websites, weblogs, search engines, e-mails, pop-up ads, chat rooms, list servers, IMs, , other Internet presences =advertisement
Ads should not be misleading:

7 examples
Ads should not be misleading: the following are misleading

i.Promising outcomes ("never lost a case"). And ability to achieve results from improper influence/ clout

ii.Suggesting ability to achieve results inappropriate use of clout.

iii. Advancing the cost of litigation

iv. Communications that use a nickname, moniker, motto, or trade name that implies an ability to obtain results

v. Communications that are irrelevant to the selection of counsel → shows characteristics unrelated to legal competence

vi. Letter or other written communication made to resemble legal documents.

vii. Communications that use, without disclosure an actor to portray the lawyer, a member of the firm, or a client or depictions of fictionalized events or scenes.

viii. Communications that portray a judge, ficticious law firm, or that include a ficticious name to refer to lawyers not associated together in a firm.
Domain Name: (3)
Domain Name: Lawyer/law firm may utilize a domain name that does NOT include the name of the lawyer/law firm, provided that:

i.All pages clearly and conspicuously include the actual name of the lawyer/law firm → www.bsk.com okay but once you get on sight you need the names

ii. Lawyer/law firm in no way attempts to engage in the practice of law using the domain name

iii. The domain name does NOT: imply an ability to obtain results in the matter.
Television and Radio Ads:
Television and Radio Ads: must be approved by the lawyer and include the name, address, telephone number of the alwyer/ firm and kept for atleast 3 years.
Ads contained in a computer-accessed communication
Ads contained in a computer-accessed communication: shall be retained for a period not less than 1 year.
Preapproval and retention requirements:
Preapproval and retention requirements: all advirtisements must be preapproved by the lawyer and a copy must be kept for one year for computer-accessed communications and three years for all other advertisments. A copy of the published contents of any website must be preserved and updated every 90 days or sooner n the even of a major website redesign or extensive content change.
Advertisement of Contingent Fees:

Rule 3
Advertisement of Contingent Fees:

a. You must clearly state the terms and basis of the fee. Of the rate, you must be very clear in the ad

b. You must make it clear in any advertising that refers to contingent fees, whether the client will be responsible for any costs. → inform client about how fees are calculated.

c. You must also make it clear that contingent fees are NOT permitted in all types of cases.
Two times you CANNOT charge a contingency fee
You cannot charge a contingency fee in a criminal matter

You cannot charge a contingency fee in a domestic relations matter → NOTE even if this is a claim for child support or marital alimony arrears, NY still sees this as a “domestic relations issue” not as a debt collection matter.
Soliciting clients:

In-person Solicitation of Clients: what is includes
Soliciting clients:

INCLUDES: In-person Solicitation of Clients: 1) face to face communication 2) live telephone contact, 3) other communication → all solicitations are advertisements and subject to the advertising rules.
Soliciting clients:

In-person Solicitation of Clients: RULE + 4 exceptions + 2 notes
RULE: Lawyer shall not engage in solicitation (meaning any advertisement initiated by or on behalf of a lawyer/law firm that is directed to, targeted at a specific person(s), or their family or legal representatives, the primary purpose of which is the retention of the lawyer/law firm, and with significant motive of pecuniary gain) by in-person or telephone contact, real-time or interactive computer accessed communication,
i. UNLESS that recipient is:
1. A close friend or a relative,
2. A pro bono client,
3. A former client, or
4. A current client. Existing client

NOTE Real-time or interactive computer-accessed communications refers to conversational communications and includes instant messaging and chatrooms. →It does NOT include: websites, popup ads, or emails.

NOTE: watchout for an example where atty gives friend in hospital advice, it will probably be that he accident outweighs the friendship making it soliciation
when is solicitation absolutely not permitted
NO solicitation in ANY form of communication whatsoever is permitted, if the recipient has made known to lawyer a desire NOT to be solicited.
Imputation (2) + note (even if not authorized what must you do)
“Imputation.” What you cannot do, your partners cannot do for you. Atty Cannot send non-lawyers to do what lawyers can’t do.

i.Lawyer cannot assist another lawyer in violating the solicitation rules

ii. Lawyer cannot violate the rules through acts of a non-lawyer

NOTE Even if actor was not directed/ authorized; once lawfim/atty finds out about the prohibited practice/soliciation they must stop it → if you or your agent gives unsolicited advice DO NOT accept employment from such advice.
In-person, unsolicited advice
In-person, unsolicited advice, DO NOT accept employment resulting from such advice:
targeted mail

Rule + self mailing brochures/postcards,+ electronic mail
You may send direct mail to groups of people likely to need legal services (ie every one arrested for drunk driving in Buffalo last week)

Self- mailing brochures, or postcards, the words “ATTORNEY ADVERTISING” shall appear on it;


Electronic mail shall have “ATTORNEY ADVERTISING” in the subject line.
targeted mail

If a retainer agreement is included in the solicitation: you must.....
If a retainer agreement is included in the solicitation: the words “DON'T SIGN” and “SAMPLR” shall appear on the client signature line.
solicitation for personal injury or wrongful death matters:

2 rules
NO solicitation for personal injury or wrongful death matters: restrictions on when comm. sent out.

i.30 days: By the atty OR any agent/representative before the 30th day after the incident.

ii.15 days: If a filing is required in less than 30 days an unsolicited communication before the 15th day AFTER the incident
1.*this is a result of 2nd Circuit case law,
NY lawyer must not solicit professional employment from someone by written or recorded communication if: 5
NY lawyer must not solicit professional employment from someone by written or recorded communication if:
i. Communication is false, misleading or deceptive
ii. Recipient has made known to lawyer A desire not to be solicited
iii. Solicitation involves coercion, duress, harassment→ friend at hopital
iv. Lawyer reasonably should know that the age, physical, emotional, or mental state of the person makes it unlikely that he/she will be able to exercise reasonable judgment in retaining an atty.
v. Written communication is sent by a method that requires the recipient to travel to a location to receive the mailing other than at which recipient ordinarily receives personal or business mail, or that requires a signature
Recording and retention requirements: RUle 1,2,3ab
Recording and retention requirements: a copy of any solicitaiton, excluding web sites or professional cards, sent to NY resident (excluding friends, relatives, or former or existing clients) must be filed with filed with the local attorney disciplinary committee or in the judicial department where the solicitation is sent.

1. The filing must include a transcropt of an audio portion of a radio or TV solicitation and

2. an accurate English translation if in foreign language

3. Solicitations direct to pre-determined recipients:

a. MUST disclose how the attorney learned of the recipients identity and need for legal services.

b. A list of the name and addresses of the recipients must be kept for 3 years from the date of dissemination.
if you give in-person, unsolicited advice, + exception
if you give in-person, unsolicited advice, do NOT accept employment resulting from such advice. → note exception for advice that is not solicited by atty, ie client asks do you think I have a good case first,
Duty of confidentiality:

Duty is broader than the attorney client privilege
Duty of confidentiality: Client Secret = confidential information, Anything derogatory, embarrassing or hurtful regarding your client, no matter what the source. →

Duty is broader than the attorney client privilege, which addresses communications between attorney and client and are confidential and for legal advice. the duty survives death of client. Ie client didn't say she is close to bankr, you must keep it secret.
Duty of confidentiality:

atty MUST disclose + what to do 3
The atty MUST DISCLOSE: To rectify fraud on a tribunal committed by the atty’s own client THIS IS A MUST REVEAL

1.Client testifies falsely: Get client to recant. If the client does not, make a motion to withdraw. If you can’t withdraw, DO NOT ask any more questions, and make NO references to the client's false statement.

a. direct client to correct the testimony,

b. if he refuses lawyer must disclose perjury to tribunal even if it requires revealing confidential information.

c. This is classic to crim case, run and tell judge client leid on the stand, I know bec……, you are required to reveal the information to correct the fraud on the court.
Duty of confidentiality:

atty MAY disclose (6)
The atty MAY disclose:
1. Disclosure with consent or implied authority expressly authorized to advance best interests of client.

2.disclosure to prevent death or serious bodily harm: atty reasonably believes necessary→ allows the atty to disclose client confidences to protect third parties such as vulnerable children from serious risk of harm in extrodinary circumstances NOTE atty doesn't have to disclose, if someone actually gets hurt and atty did not disclose then he is not liable.

3.disclosure to prevent a client form committing a crime or fraud

4.disclosure required by court, ethics rules, or law.

5.Disclosure necessary to collect a fee or protect lawyer: in a claim against atty or on behalf of atty. → atty can only disclose info. he believes is reasonably necessary to establish a claim or defense

6.Disclosure to obtain legal ethics advice: To obtain legal or ethical advice for lawyer. Use of hypotheticals with colleague is OK, if discrete to protect identity of client.
Atty client privilege: (3)
Atty client privilege:
i. communications between atty and client, and
ii. are confidential and
iii. for legal advice.
If you terminate a client relationship 4
you terminate a client relationship, do so in a manner that does not prejudice the client.

a. Give the client reasonable advance notice,

b. return the unused portion of the retainer, and

c. return all client files

d. Give the client a time to retain a new attorney.
Safeguard client property

2 rules
Safeguard client property
a. You must safeguard client property → use a bonded garage

b. You cannot use client property for personal use.
what 8 things you cant say for publicity at a trial
NO statement may be made by a lawyer that a reasonable person would expect to be disseminated if lawyer knows or reasonably should know it will be prejudicial to proceedings re:

i.Character, reputation or criminal record of party,

ii. Identification of witness or expected testimony

iii. Possibility of a guilty plea

iv. Existence of a confession

v. Results of any exam or test

vi. Opinion as to guilt or innocence of defendant or suspect

vii. Information lawyer knows or reasonably should know will be inadmissible as evidence

viii. Fact that defendant is charged with crime, UNLESS stating it as merely an accusation and that the defendant is presumed innocent → “merely charge and innocent until guilty” is permitted
6 things lawyer MAY say for trail publicity
Lawyer MAY state: dry facts of the case.

i. General nature of claim or defense

ii. Public information or record

iii. That an investigation is in progress

iv. Scheduling or result of any step in litigation

v. Warning of danger where there is a reason to believe of a likelihood of substantial harm to a person or public interest

vi. In a criminal case: information necessary to aid in apprehension of an accused person
trail publicity right of reply.
Right of Reply: lawyer may make a statement to the extent necessary to protect a client from substantial prejudicial effect of recent publicity NOT initiated by the lawyer or client. If one lawyer crosses the line, other party’s lawyer can make a statement to mitigate the effect of improper statement.

1.ADA: “murder took place” statement is allow →but opinion on guilt is not allowed→ “he will probably plea this week” not allowed

2.Defendant: “innocent until proven guilty” always allowed → “D is an upstanding member of community” D’s character is allowed to mitigate the ADA’s statement.
conflicts and general rule
RULE: A lawyer may NOT enter into an attorney-client relationship, where there is potential conflict of interest that would adversely affect the lawyer's ability to exercise independent professional judgment.


Avoid conflicts and exercise independent professional judgment! But, in the event of a conflict, refuse to accept or continue the representation in most cases.
Atty cannot represent a client with a concurrent conflict: 3
Atty cannot represent a client with a concurrent conflict: concurrent conflict exists of

1. The representation will involve the atty in representing differing interest OR

2. There is a significant risk that the representation of a client will be adversely affected by the lawyers personal interests or by his responsibilities to another client. Former client, or third person.

3. *client can consent to current rep. see below
bar exam rule of thumb for conflicts.
Bar Exam Rule of Thumb – even if it doesn’t look like a conflict, treat it as one. → On the bar exam, look for anything that might drive a wedge between a lawyer and her client. Look for obligations to other clients, a lawyer's obligation to herself, or obligations to the firm.
Accept a case with a conflict only if all clients have given their informed consent:
YOU MUST A,B 1,2, C + note
Accept a case with a conflict only if all clients have given their informed consent:

YOU MUST

a. Explain conflict and risks to client → called “disclosure

b. Ensure representation is not prohibited by law
i. Current client vs. curerent client in current matter not allowed
ii. Cant use former clients confidential information in representation


c. Obtain consent in writing → must always be in writing!


********After these steps you must then decide if lawyer can provided competent and diligent representation: even if you satisfy the above steps you must still be competent and have the ability in terms of time to take the case.
atty testifying for client: general rule + 3 exceptions
Lawyers do not testify on behalf of Client unless testimony relates to:

a. Uncontested matter

b. Nature and value of legal services

c. Matter of formality (ex. Signing of will)
waiver + note
Lawyers CANNOT represent adverse interests of client or prospective client, UNLESS lawyer fully explains risks and alternatives (informed consent) and client agrees in writing.

→Anytime you see conflict on exam make sure ALL wiavers are in writing.
A person who communicates with the attorney for the purpose of disqualifying the lawyer from dangling a materially adverse representation on the same or substantially related matter is NOT________
A person who communicates with the attorney for the purpose of disqualifying the lawyer from dangling a materially adverse representation on the same or substantially related matter is NOT a prospective client. →


ie wealthy spouse goes and speaks to the five best divorce atty, and choose one, if they are doing this intentionally to make sure the other spouse doesn't get the attys, then they do not get the protection, but they still cant use the confidential informaiton .
Interest in Publication Rights related to Case Subject Matter

rule + 3 things you cannot do + when you can
Interest in Publication Rights related to Case Subject Matter Prohibited, → If the movie and books rights are NOT related to case subject matter, the lawyer may accept the movie and book‏

a. Atty cannot even negotiate a media rights agreement unitl all aspects of the matter are concluded.

b. Fee cannot be interest in the subject matter of the litigation, unless case and all appeals are over.

c. The client could pay out of book royalties, but lawyer cannot accept assignment of royalties to himself ahead of time.

d. If the movie and books rights are NOT related to case subject matter, the lawyer may accept the movie and book‏
An attorney cannot take a mortgage on a clients property to secure a fee.

+ exception (3) + foreclosure
An attorney cannot take a mortgage on a clients property to secure a fee.

a.Exception: in NY in domestic relations matters, a lawyer may take an lien on real property or obtain a security interest to secure his fee if:

i. Retainer provides Security interest can be sought

ii. Notice of application for security interest is given to the other spouse

iii. Court approves Security interest.

b. An atty shall NOT foreclose on a mortgage placed on a marital resident while the spouse who consents to the mortgage remains the title holder, and it is the primary residence.
Lending money to clients:

when you can + CANT + dont
Lending money to clients:

a. A lawyer cannot advance any financial assistance to a client in litigation except court costs and expenses of litigation.

b. advance litigation expenses can be reimbursed as part of a contingency
----litigation costs for indigent are included here too. → ie the expenses need not be reimbursable.

c. Don't give money for food, rent, clothes.
demanding sex as payment + imputation
Lawyers CANNOT demand SEXUAL relations as condition of representation. (Pre-existing is OK).

a. lawyer CANNOT coerce a client into a sexual relationship, or enter into a sexual relationship, in a domestic relations matter during the representation

i. NOTE this is defined broadly to mean all kinds of touching, kissing, etc not just sex.

b. NO rule of imputation. Definition of “sexual relations” can be found on page 20 of the BAR/BRI outline.
Doing business with clients:

rule + 3 exceptions + broad exception
Doing business with clients: A lawyer is generally prohibited from doing business with clients, UNLESS the transaction is fair and reasonable to the client.
In such case:

i. Fully informed of the terms of the transaction in writing

ii. Advised in writing to review transaction with an independent lawyer.

iii. Client consents in writing; and,

iv. All terms are fully disclosed in writing in a manner that can be reasonably understood by the client.


Exception: Standard commercial or other ordinary transactions (ex. Banking or brokerage services) are OK.
Lawsuits between current and former clients:

rule + 2 exceptions
Lawsuits between current and former clients: You may represent a current client in an action against a former client, EXCEPT:

a. When your current client wants to sue your former client involving a matter or transaction in which lawyer represented the former client, OR


b. When, during representation of the former client, you learned confidential information of the former client that is now relevant to the action by the current client. Even here if the matters are not related.


c. Client must consent in writing!
client conflicts dont get tricked
DON’T GET TRICKED: it is non-consentable to represent a current client against a current client in a current matter. Even if the matter is unrelated. You CANT take this representation even with client consent. → It is ALWAYS a conflict to represent a current client against a current client. You must NOT undertake such a representation, EVEN WITH client consent.
Representing a corporation or partnership:
Representing a corporation or partnership:

As the lawyer for a corporation or partnership, you represent the entity, NOT any of the individuals or directors involved.
Representing a corporation or partnership:

3 duties + 2 notes
Duty to proceed as is reasonably necessary to protect the best interests of the organization and report violations to a higher authority within the organization

Duty to report securities violations or anything else that would hurt the company up the chain of command to CEO.


If not appropriate response, MUST report to board of directors and MAY report to outside authority.

May reveal confidential information to extent necessary to protect client (corporation) and lawyer has discretion in this regard.

***Don't get tricked you are not going outside client, the entity is your client so you are still acting within the organization

****Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing confidential information to persons outside the organization.
Representing the Insured:

rule + confidential information + engagement letter
Representing the Insured: Lawyer represents the insured, NOT the insurance company paying the bills.

a. Confidential information from the insured is protected from disclosure from the insurer and in the insurance company cannot direct the case decisions.

b. Engagement letter must be sent to BOTH insurance company and insured/client.
HANDLING MONEY: YOURS AND YOUR CLIENTS

rule + exception 3 + atty can enter into a min. fee arrangement once.....
HANDLING MONEY: YOURS AND YOUR CLIENTS

I.Lawyer has the duty to explain fully the reasons fully the reasons for the fee; Keep fee reasonable→ state bars cannot set either minimum or maximum fee schedules.

Exception: Medical mal practice max fee schedules, wrongful death actions, personal injury actions cap. → these are controlled by the legislature

Atty can enter into a minimum fee agreement once she sets for how fee will be incurred and calculated.
Ratifying a Fee Agreement:

client ratification + affirming voidable agreement
Ratifying a Fee Agreement:

a. A client may ratify an attorney's fee agreement during a period of continuous representation, EVEN IF attorney's misconduct occurs during that period, SO LONG AS the client's ratification is not procured as a result of misconduct.

b. A fully informed client who knowingly and voluntarily affims an existing fee arrangement that might otherwise be considered voidable, can ratify so long as: client had a full understanding of the facts and has knowledge of the rights as a client.
Contingent Fees:

2 times you cannot charge contingent fee + what you must do after representation with contingent fee
Contingent Fees: Be aware of when you cannot charge contingent fees.

a. You CANNOT charge a contingent fee in a criminal case: quasi criminal actions count. Ie state action. Medical doc loses his license.

b. NO contingent fee in a domestic relations case (including alimony and child support): in NY even past due alimony or child support is still a domestic relations matter so NOT contingency fee.

c. After representation is over, the atty must provide client with a written closing statement, stating the outcome of the matter and computing the fee. → It must be filed with the appellate Division.
Written Letter of Engagement:

rule + exception
Written Letter of Engagement:

If fees are projected to be $3000 or more, fee agreement must be in writing (though a signature is not required).

This does NOT apply, if services are of the same general kind previously provided to client, or if services involve domestic relations matter.
Written Letter of Engagement:

retainer agreement 4
the retainer agreement must include: (can be a 1 page doc.)
i. Scope of legal services to be provided

ii. Explanation of attorneys’ fees to be charged

iii. Expenses and billing practices

iv. Notice of client’s right to arbitrate a fee dispute
You do NOT need a letter of engagement: 4 + note
You do NOT need a letter of engagement:

i. Where the fee is expected by be less than $3000.

ii. Where the services rendered are similar to those rendered in the past. Services are of the same general kind as previously rendered to and paid for by the client. (prior client exception)

iii. Where lawyer has no office in New York or no material portion of services are rendered in New York, or

iv. In domestic relations matter, where there a more specific letter is required.

NOTE: In items 1 and 3 above must still orally communicate the scope of the representation and the basis of the free.
Domestic Relations Matters:

definition + 6
Domestic Relations Matters:

Definition: A lawyer representing a client in any action involving divorce, separation, annulment, custody, visitation, maintenance, child support, or alimony. Includes preliminary hearings, enforcement or judgment modification hearings, and appeals. Very broad, policy is to provide protection in domestic relations matters

a. Fee agreement must be in writing, signed by lawyer AND client.

b. Lawyer must provide prospective client with a statement of client’s rights and responsibilities at the initial conference and prior to the signing of a written retainer agreement. *must be posted in law office, but in domestic relitons you need to actual post and give it to domestic relations client

c. NO non-refundable fees in domestic relations matters. And also in any other matter.

d. CANNOT use contingency fee for domestic relations cases, including collection of unpaid alimony or child support. This is till a domestic relations matter in New York

e. Fee disputes in domestic relations matters must be resolved by arbitration at the election of the client. See page 31.

f. Periodic billing must be sent out every 60 days and at conclusion of case, attorney must send back unused portion of the retainer.
RELATIONSHIP FOR NON-LAWYER

Rule + NEVER do this + 2 exceptions + atty can ... + precautions
RELATIONSHIP FOR NON-LAWYER: (lawyer cannot be partner with a non-lawyer if any part of the partnership involves the practice of law)

a. NEVER divide a legal fee with a non-lawyer. If not practicing law then you can since these are not “legal fees”

Exceptions to the Rule: you can use legal fees to pay these items.

1. Salaries, Retirement Plans, Bonuses, Profit Sharing

2. Spouses of deceased partners to pay fees earned by the deceased partner. You can pay non lawyer spouses with legal fees

NOTE: But an atty and nonatty can share office space so long as the space is physically separate in fact and appears so to the public

NOTE: Precautions must ensure that the non-lawyer’s clients are not coerced to use the lawyer for legal matters
dividing fees with another firm 3
Be careful when dividing fees with a lawyer in another firm.

You can divided fees with a lawyer in an other firm:

i. The fee is divided proportionately to the work performed.

ii. The client is advised and does not object

iii. The total fee is reasonable (doesn’t go up).
Referral fees are....
Referral fees are: unethical.‏ referral fees are prohibited. (money or gifts, or anything of value)
But if splitting fees: 3 requirements
But if splitting fees:

i. you need client consent to the hiring of the atty AND the disvision of the fee,

ii. total fees must be reasonable

iii. division must be in proportion to services performed. OR each lawyer must assume joint responsibility for representation in a writing with the client
Retainers – 2 Types
Retainers – 2 Types

i.Advance of fees (belongs) to client (goes into trust account)

ii. Availability retainer (general retainer) (belongs) to attorney (goes into lawyer’s account, the client never retains you, you keep the money)
ACCOUNTS

rule + two types of accounts every atty needs.
Account: Make sure to put money in and take money out of the proper accounts.

Two types of accounts every lawyer MUST have:
1. Operating Account: Lawyer’s money‏ this is the firm’s account

2. Client Trust Account: only Client’s money. The only time you put in your money is to cover bank fees can be covered by lawyers money. Ie you need to pay $100 to keep account open
General Rule of Trust Accounts:
General Rule of Trust Accounts:

Have one, use it, keep records of its use, and DON'T mix up your trust account with your operating account, EXCEPT to cover bank fees.
Specific Rules of Trust Accounts 4
Specific Rules of Trust Accounts

1. Accounts must be in a bank in NY,

2. Funds to maintain the account are the only lawyer funds that can be put in client trist account Lawyer must pay the bank fees when he opens the trust account.

3. Interest accruing from the trust account MUST be swept out sent to NY State Interest on Lawyer Account Fund (IOLA).

4. An attorney cannot go and deposit additional sums in the account from her own funds.

*see also the dishonored check reporting
Specific Rules of Trust Accounts

Dishonored check reporting
Dishonored check reporting client funds MUST be placed at bank when check bounces.

A copy of the report is mail dot the lawyer and after 10 days the report is send ot the isciplinary commission to take action. A lawyer cannot go and deposit.
Fee Dispute Resolution Program

Rule:
Fee Dispute Resolution Program

Rule: in a civil matter, fee disputes between lawyer and client are subject to arbitration at the client’s option. Client must be told about this option in the letter of agreement (where required) and when a fee dispute arises.
Fee Dispute Resolution Program

exceptions 4
Exceptions to this mandatory program (when either side can litigate immediately):

i. Fee disputes in criminal matters.

ii. Where the amount in dispute is less than $1000 or greater than $50,000 you don't have to go to arbitration you can go right to court

iii. If the claim involves malpractice.

iv. *sends client letter of engagement and it says in the unlikely event we have a dispute you have a right to arbitration
BEING PROFESSIONALLY RESPONSIBLE HOW FAR DOES IT EXTEND:

subordinate lawyer + supervising lawyer + managing lawyer
BEING PROFESSIONALLY RESPONSIBLE HOW FAR DOES IT EXTEND:

SUBORDINATE LAWYER: must follow rules even if acting at another’s direction. abide by the rules. He can argue that you were just following superior's directions on an arguable question of professional duty. , AS LONG AS it is at least arguable that the conduct is ethical.

SUPERVISING LAWYER: follow the rules, and also make sure subordinates do so. If he tells a subordinate to do something, the supervising lawyer is responsible. Also responsible, if they know of violations by the junior attorney and don’t report them. Must abide by these rules and ensure all lawyers and non lawyers acting at their direction conform to the rules.

MANAGING LAWYER (Supervisor) can be held responsible for conduct of subordinates if they knew of the wrongful and did not report it or if they told the subordinate to perform the act.
Ex Parte Communications during trial

with jury during trial + with jury after trial
Ex Parte Communications during trial

WITH JURY: you cannot speak to a juror about ANY issue. NONE allowed at all, not even saying “Good Morning” in the hallways of the courthouse.


AFTER TRIAL: it is okay unless:
1) prohibited by court order,

2) juror does not want to talk, you need to stop conversation,

3) purpose is to harass juror.
Ex Parte Communications during trial

with judge
With judge: ‏you can communicate with judge other than de minimis communications or in a settlement conference, or in an emergency.
Ex Parte Communications during trial

With adversarial party:
With adversarial party: NO communications with represented party. ONLY through their lawyers.
Ex Parte Communications during trial

with witness + exception
With witnesses: Allowed. Generally no limitations here.

Exception: if W is high level corporate officer, or corporate employee whose liability can be imputed to corporation you must obtain corporate counsel’s permission to speak to them
Adverse Authority Rule
Adverse Authority:

A lawyer has an affirmative duty to disclose contrary or adverse authority, which means: case law and statutes directly adverse to client’s position from controlling jurisdictions ONLY. But duty does NOT extend to: facts or witnesses. Adverse to client’s position.
In ex parte proceeding:
In ex parte proceeding: an atty shall inform the tribunal of all material facts known to the atty, that will make the tribunal informed decision, whether or not the facts are adverse to a lawyer’s client.
Special duties of the prosecutor:

2 rules
Special duties of the prosecutor:

i. Proceed only on probable cause

ii. Must disclose (in a timely manner) evidence tending to negate the guilt of the accused or which could mitigate the degree of the offense or reduce the punishment. *this is important for crime pro
voluntary pro bono service:

2 points
voluntary pro bono service: lawyers are strongly encouraged to provide probono services to benefit poor persons and should aspire to:
i.provide 20 hours of pro se representations per year.

ii. Contribute financially to organizations that provide such services.
deragatory remarks AND lending judge or public officials

+contributions to judge's campaigns
A lawyer must hold the integrity of the profession and its members by not making unfair or derogatory remarks to other lawyers and not giving or lending nay items of value to the judge or other public official except as permitted by the Code of judicial conduct.

i. *Contributions to judges and campaigns is okay even if you appear before the judge regularly. → note don't give to judge directly
NY CIVIL CASES ESSAY
Civil cases: “ a lawyer must represent his client zealously within the bounds of the law and make only meritous claims and contentions
NY CRIMINAL LAW ESSAY
Criminal: a lawyer must represent his client zealously within the bounds of the law but may define the proceeding so as to require every element of the crime to be established → this is how we can say our client is innocent when we know he is guilty.
Ads MUST: include: (4)
Ads MUST: include:

i.Name, principal law office address, and telephone number of the lawyer or law firm whose services are being offered.
The telephone number may contain: a domain name, nickname, moniker or motto that does NOT otherwise violate the rule. → 1800 winner is prohibited this would violate the rules,→ 1800 lawyer would work

ii. Any words or statements required by the rules must be clearly legible and capable of being read by the average person and understood if spoken aloud.

iii. The label: "Attorney Advertising" must appear on the first page hard copy ads and website homepage in the case of a website)

iv. and MUST contain the disclaimer: PRIOR RESULTS DON'T GUARANTEE A SIMILAR OUTCOME.
Lawyer ads MAY also include, 13
Lawyer ads MAY also include, assuming such information is true and misleading: f. (Assuming that the ad is otherwise in accord with the Code AND be factually supported by the firm as of the date on which the ad is published)

i. Educational background and degrees

ii. Dates of admission to bar and areas of practice

iii. Public offices and teaching positions held

iv. Memberships in bar associations and other professional organizations

v. Foreign language ability (must be fluent)

vi. Names of regularly represented clients, if the clients consent in writing

vii. Acceptable credit arrangements and participation in group or prepaid legal services programs you can accept payment of fees by credit card

viii. Legal fees, contingent fee rates, range of fees for services, (and if it does so, the firm shall abide by the ad, and not charge more than the advertised fee), hourly rates and fixed fees for specific services (If fees are advertised, you CANNOT change the rate until after a reasonable period of time).

ix. Bonafide professional ratings → rating in super lawyers, if it is a bonda fide rating service that applies to all attys it is okay, but this in issue in the courts right now.

x. Statements that are reasonably likely to create an expectation about result the lawyer can achieve, or which describe or characterize the quality of the lawyer's/law firm's services

xi. Statements that compare the lawyer’s services with services of other lawyers

xii. Testimonials or endorsements of clients otherwise not prohibited

xiii. Testimonials or endorsements of former clients