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New York Professional Responsibility


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Four types of discipline that may be imposed?
1. Letter of admonition
2. Public or private censure
3. Suspension
4. Disbarment
Structure of NY Code?
1. Canons
2. Ethical considerations (aspirational)
3. Disciplinary rules
The U.S. Sct says state requirements must be RATIONAL. What reqs are rational?
- Graduation from an ABA accredited law school; OR completed one year of law school PLUS working for a NY law office for a period of time that in aggregate equals 4 years
- Can be required to take the oath to uphold the NY Const and Fed Const
What CAN'T be required for Bar membership?
1. residency in NY
2. U.S. citizenship
3. Not being a communist
When can you be admitted without passing the NY Bar?
1. grad from an ABA school
2. been admitted to practice in another state with RECIPROCITY
3. practiced law for at 5 of the 7 years preceding appication
What requirements do you have regarding other applicants?
- Good apps: you should report good input (aspirational)
- Bad apps: duty to report moral turpitude, conduct that is dishonest. E.g. perjury, bribery, theft.
Regulations after Admission: If you know of a violation, what must you do?
- if you know you must report except if you are under a duty not to (e.g. you are a malpractice atty)
- you must be av'ble to testify against that lawyer -- no anonymous reporting
Ed Crook represents Sue Mee in a personal injury action. Crook settles the case but never gives Sue her share of the funds. Sue seeks legal assistance from Attorney Chip Douglas who warns Crook that if he doesn’t pay up, Chip will be forced to report C
- Crook disbarred because he didn't pay money owed
- Chip in trouble too because you can't bargain away the obligation to report bad conduct even for benefit of a client.
Ex: Lawyer Will Truman steals his client’s money in July. In October of the same year, Lawyer Will seeks advice from attorney Jack McFarland regarding an anticipated investigation by the disciplinary authority on this matter. Attorney “Just Jack’sâ
- "protected as a confidence"
- "may not"
- "recommend will for admission to another state"
Permissible temporary multi-jurisdictional practice can happen in what five ways?
1. Associate with an active local lawyer
2. special permission from court to practice "pro hac vice".
- you may have to do both 1 and 2 -
3. mediation or arbitration out of home-state practice
4. anything reasonably related to your overall practice.
5. multi-state firms: lawyers practice where admitted, and admission must be indicated on firm letterhead
Choice of law in Multi-jurisdictional Matters.
1. NY licensed only?
2. Admitted to NY and XX?
1. NY laws apply
2. Law of state where you principally practice applies, unless the conduct's key effect is in another state; then the other state's laws will apply
Clients make substantive legal decisions, e.g. suing, appealing and settling. What decisions are attorneys allowed to make? Can client veto?
Depositions and continuances. Client can veto on grounds of cost.
For the last year, all of the attorneys at Dewey, Cheatum have devoted their efforts to the big slip and fall case. Yesterday the jury came back and said plaintiff takes nothing. After the trial Ann Howe met a juror in the hall who said, “I sure am gla
Appealing is the client's decision so no Appeal. But Ann HAS an affirmative responsibility to report the unethical conduct, and not do it anonymously.
If a client has lost the ability to make decisions, what do you do?
Get a guardian appointed!
When MUST an attorney withdraw from representation?
1. Where we know that the client's position is frivolous or may be harassing.
2. If we become phys or mentally impaired
3. If participation would violate a disciplinary rule
4. If we get fired
When MAY an attorney withdraw from representation?
1. Civil matters: always granted
2. Criminal matters: up to the judge
3. Grab bag:
a. if withdrawal can be accomplished without material adverse effect on interests of client
b. client’s claim or defense is frivolous
c. client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal
d. client insists that the lawyer pursue a course of conduct that is illegal or is prohibited by a DR
e. other conduct that makes it unreasonably difficult for lawyer to carry out employment effectively.
f. Client insists in matter not pending before the court that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer, even if not prohibited by DR
g. Client deliberately disregards an agreement or obligation to the lawyer as to
fees or expenses
h. Client uses lawyer’s services to perpetrate a crime or fraud
i. Lawyer’s continued employment is likely to result in violation of DR
j. Lawyer’s inability to work with co-counsel indicates that the best interests of the client are served by withdrawal
k. Client knowingly and freely agrees to termination
l. Other good cause for withdrawal (but lawyer and client may not agree to alter these rules and allow for withdrawal for any reason).
What is "competence"?

How can lack of competence be overcome?
1. Physically capable
2. Substantive legal knowledge
3. Time to handle the case

We overcome by A-L-E:
1. Association w/ attorney who knows
2. Learn it in time
3. Emergency
What is the "Practice of Law"?
It's "anything lawyers do." I.e. attending hearings, taking depositions, drat legal documents like wills, trusts, pleaadings. However, merely INTERVIEWING people, drafting legal memos and filling in legal forms is OK.
1. Hugh Lewis Dewey's old law school buddy from the Boston College of Law Knowledge is a Massachusetts attorney wants to come to New York to represent a client in just one little matter. May Dewey help his buddy?

2. Dewey's next door neighbor,
1. No. It would be helping UPL.

2. Yes. You can advise someone who is representing themselves pro se.
When can you restrict lawyer's future right to practice? (When are non-competes OK?)
1. At point of retirement
2. Separation or withdrawal from the firm.
I name my firm AAA Best firm. OK?
No, NY does not permit trade names or misleading names.
My firm is Holmes, Cardozo, and X. Ok? What if Holmes gets appointed ambassador?
Names can be in firm name, even of dead lawyers, as long as they are real people. If they temporarily leave the firm, their names can stay. If permanent, the names must go.
Jerry Maguire goes to law school in New York, graduates and chooses to practice only sports law. After 20 years of successful practice only in sports law, Jerry starts to advertise that he specializes in sports law. Can he do this? No, unless he has:
1. Been certified by a private organization that has been approved to certify by the ABA
2. That certifying organization has been indentified and
3. The lawyer states that certifying org is not affiliated with any govt auth, cert not required for PoL in NY, and cert does not indicate greater competence ....
What's a simple and OK way to advertise yourself as a specialist?
Say that your practice is "limited to" sports law.
What are the three areas where you are allowed to say you are specialist even with no experience in practicing?
Patent, trademark, admiralty.
What is Misleading Advertising?
1. Promising outcomes
2. Improperly comparing yourself to another lawyer
3. No suggesting that you can get results because of the Clout you have
Requirements for radio tv ads
1. pre recorded
2. approved
3. retained
New York lawyer must not solicit professional employment from a prospective client by written or recorded communication if:
a. ⬏the communication is false, deceptive, or misleading
b. client has made known to lawyer ⬏
c. solicitation involves ⬏
d. lawyer knows or reasonably should know that the age or physical, emotional, or mental state of the client makes it unlikely that client will be able to exercise reasonable judgment in retaining a lawyer
e. lawyer intended or expects, but does not disclose that the legal services will be performed primarily by another lawyer who is not affiliated with the soliciting lawyer as a partner, associate or counsel, or
f. written communication is sent by a method that requires the client to travel to a location other than that at which the client ordinarily receives business or personal mail.
1. Lawyers must not solicit clients by in-person or telephone contact unless that prospective client is:

2. There's an exception to this rule for
1. a close friend, relative, or a former or current client

2. Non-profit/public interest lawyers
If you give in-person, unsolicited advice, may you accept employment resulting from such advice?
No. If victim solicits YOU, however, you may represent the victim.
Maintain client confidentiality, except:
1. Required by law or court order
2. To obtain legal or ethical advice for lawyer. Use of hypotheticals with colleague is ok if discrete to protect identity of client.
As a result of effectively representing her client in a contentious divorce, Attorney Ann Howe has gotten the now ex-husband's Porsche on a Friday afternoon. Ann is supposed to deliver the Porsche to her client on Monday. To make sure nothing happens to
No, keep it in a bonded warehouse
Trial publicity has some restrictions. Name some.
1. 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:
a. character, reputation or criminal record of party,
b. identification of witness or expected testimony
c. possibility of a guilty plea
d. existence of a confession
e. results of any exam or test
f. opinion as to guilt or innocence of defendant or suspect
g. information lawyer knows or reasonably should know will be inadmissible as evidence
h. fact that defendant is charged with crime unless stating it as merely an accusation and that the defendant is presumed innocent
Conflicts of Interest: be hypersensitive to conflicts for the Bar. The only way to clear up a conflict is through Informed Consent. What does this mean?
1. Client must agree after
2. the lawyer explains material risks and reasonable alternatives
3. Client's agreement in Writing (electronic ok).
FINALLY you must decide if the REASONABLY PRUDENT LAWYER would take the case.
We don't testify on behalf of a client unless:
1. an uncontested matter like witnessing and signing of a contract
2. fees
3. a substantial hardship to the client if we didn't
Emilio robs a convenience store and gets arrested. As you spend some time with Emilio down at the jail, you realize that he is Emilio Estevez, the once popular actor. Recognizing that this story is bigger than any fee you could collect in this case, you
You can't accept as payment of a fee an interest in a book related to the subject matter of the litigation. So it's not ok until the case is completed, appeals and all.
Bill Gates asks you to draft his will. Among the gifts in the will is Bill's entire art collection that he wants to give to you. What should you do?
Have another lawyer draft the will. You can't draft a will that gives you anything more that a de minimis items. Also: there is an exception for family members.
Loans to Clients. OK?
No, no loans to clients except for advancing legal fees. NO de minimis exceptions
Third person payment of legal fees is OK BUT you must be sure that:
1. client consents
2. client remains "the client".
3. lawyer client confidentiality remains and fee payer can't know of these communications.
Lawyers cannot demand sex as condition of representation.

Sex is not the answer. Sex is the question.
Yes is the answer.
Doing business with clients -- when is this ok?
When it's fair and ordinary.
Lawsuits between current and former clients are OK except:
a. When your current client wants to sue your former client involving a matter or transaction in which you represented the former client, OR
b. When during representation of the former client you learned confidential information that is now relevant to the action by the current client.
As corporate counsel for the Ford Motor Company, you meet one day with Ford's President and CEO, Bill Ford. Bill tells you that he's tired of the car business and is about to take off for Rio with the $50 million he has embezzled over the last 20 years.
You are the CORPORATION's lawyer. Turn him in, go up the chain to the Board. If nobody does anything about it, you MAY go to outside authorities.
As between the insured and the insurer, who does the lawyer represent?
Lawyer's client is the Insured. The Client calls the Shots.
Fees must be reasonable and you can consider almost any kind of factor in establishing a fee. Name some factors.
Among the permissible factors used to determine reasonableness are:
1. Time and Labor
2. Novelty and difficulty of the questions involved
3. Requisite skill to perform legal service
4. Customary fee within the locality for similar work
5. Experience, ability and reputation of the attorney
6. Interference with other employment by the attorney
7. Time limitations imposed by the client or circumstance
8. Whether fee is fixed or contingent
Basically, you can consider most anything in determining whether a fee is reasonable. Thus, it is very difficult for the examiners to ask you whether a particular fee is reasonable.
When can you NOT charge a Contingent Fee?
1. No cont fees in Criminal Cases or Quasi-Criminal matters, such as penal loss of medical license.
2. Domestic relations cases, and the NY rule is that Bad Debt and Past Alimony is NOT EXCEPTED. So no "bad debt" exception here!
NY rule on Fees
if fees are projected to be $3k or more, then fee agreement must be in writing. This does not apply if the services are of the kind previously provided to client or if the services involve a domestic relations matter.
Where you have to Write Down the retainer agreement, what must the agreement contain?
1. Scope of legal services to be provided
2. Explanation of attorneys’ fees to be charged
3. Expenses and billing practices
4. Notice of client’s right to arbitrate a fee dispute
--You do not need a letter of engagement where the fee is expected by be less than $3000, where the services rendered are similar to those rendered in the past, where lawyer has no office in New York or no material portion of services are rendered in New York, or in domestic relations matter where there a specific letter is required:
In Domestic Relations matters, you must have a fee agreement in Writing and Signed by Clients. What counts as a Domestic Relations Matter?
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.
What must the DR agreement contain? How do you resolve disputes?
1. Fee agreement must be in writing, signed by lawyer and client.
2. Lawyer must provide prospective client with a statement of rights and responsibilities at the initial conference and prior to the signing of a written retainer agreement.
3. No non-refundable fees in domestic relations matters.
4. Cannot use contingency fee to collect unpaid alimony or child support.
5. Fee disputes in domestic relations matters must be resolved by arbitration at the election of the client

6. Periodic billing must be sent out every 60 days and at conclusion of case, attorney must send back unused portion of the retainer.
Legal fee splitting:
1. Ralph's Rapid Roadside Repair uses the Aaaabest Law Firm for it's legal work. When a tax problem comes up, Aaaabest consults Aaaaacurate Aaacounting. Can Aaaabest split the legal fee collected from Ralph with Aaaaacurate?
No. Ralph has to pay accounting fee separately.

Yes. You can split real estate broker fees.
What are exceptions to fee-splitting rules?
- salaries, bonuses, retirement plans
- spouses of deceased partner
Referral fees are ...
When CAN you split fees?
1. when fee is divided proportionately to work performed
2. client is advised and does not object
3. the total fee is reasonable.
advance on fee retainer and availability retainer: distinguish
AoF retainer belongs to client and goes into the trust account. The availability retainer goes to the attorney.
Rules about Client Trust Account
Must be in NY; it can be elsewhere but only with client's written consent.

The only money that Attorney can have in there is enough to pay bank fees.
Willa Cheatum, finding herself $100 short to pay office rent and salaries at the end of the month borrows the $100 from her trust account after executing a promissory note which will pay three times the going rate of interest. Any problems?
Yes. This is conversion.
After getting through the tough times, Willa gets a new client who gives her a $100,000 retainer which she properly places in her trust account. Willa begins work on the client's file and bills $2,000 the first week. Should she transfer the $2,000 from h
Yes. She should do so immediately. If not, she is committing COMMINGLING.
Dispute Resolution Program
1. Where representation commenced on or after January 1, 2002, in a civil matter, fee disputes between lawyer and client are subject to _____. Client must be told about this option in the letter of agreement (where requir
1. Arbitration at the client's option.
2. Exceptions are fee disputes in criminal matters; where the amount in dispute is less that $5000 or more than $50,000; and 3. where the claim involves malpractice.
What is the Rule for subordinate lawyers?
You must follow rules but you have the "just following orders' defense. Also, what you did must at least ARGUABLY be able to be thought to be OK.
"I thought it was okay."
Can a partner get in trouble if an associate violates a rule?
yes if they told you to do it and also if they know of a rule violation and they don't report it.
Disclosing adverse authority: what must you disclose?
- You must disclose adverse law but ONLY from controlling jurisdiction;
- Does not extend to facts and witnesses.
Special Duties of Prosecutor?
1. Proceed only on probable cause
2. Must disclose (in a timely manner) evidence tending to negate guilt or which could mitigate the degree of the offense or reduce the punishment.

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