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New York Bar Exam - Professional Responsibility


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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.

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