Who investigates complaints involving NY attorney conduct?
(1) Departmental disciplinary committee or (2) any department of appellate division
What type of discipline can be imposed on a NY attorney?
(1) A letter of admonition from the disciplinary committee; (2) public or private censure by the courts; (3) suspension; or (4) disbarment
Is a disciplinary investigation all a lawyer has to worry about?
No, attorneys are also subject to malpractice claims by their clients
Do you need a law degree to become a member of the bar?
No, admission may be granted for an applicant who has completed one year of law school plus studied law in a NY law firm under the supervision of a NY licensed attorney for three additional years
What are the NY Bar admission 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 AND (2) been admitted to practice in another state and that state would admit a NY lawyer without
What are the requirements on an applicant?
(1) Truth and full disclosure (burden on applicant to show "good moral character" and (2) duty to cooperate
What are your duties regarding other applicants?
If good applicant, your input is aspirational. If bad applicant, you have a duty to report on moral turpitude
What must you do if you KNOW of a violation?
(1) You must report what you know, unless it is protected as confidential information and (2) you must be available to testify against the lawyer. If confidential relationship, you may not recommend lawyer for admission to another state
When may one obtain permissible temporary multi-jurisdictional practice?
(1) Associate with an active local lawyer; (2) special permission called pro hac vice; (3) mediation or arbitration out of home-state practice; (4) anything reasonably related to lawyer's home-state practice; and (5) multi-state firms (lawyer only practic
If a member of the NY bar is practicing in another state, what rule of law is used?
(1) If licensed in NY only, then NY law and rules apply. (2) If admitted to NY and another state, rules of the state in which the lawyer principally practices will apply unless the conduct's key effect is in another state, then that other state's rules wi
What decisions belong to the client?
Those of substantive legal import: whether to sue, appeal, settle, a bench or jury trial, whether to testify in a criminal case (D has no right to testify in a civil case)
What decisions belong to the attorney?
Strategy, procedure and tactic: depositions, discovery decisions, granting continuances
Can an attorney ever take protective action and seek to substitute judgment for a client?
Yes, if: (1) the client has diminished capacity; and (2) the client is at risk of substantial physical, financial or other harm; and (3) the client cannot adequately act in their own interest
Are lawyers free to reject cases?
Generally, yes. However, they should take cases involving the oppressed or defenseless and should do their fair share of pro bono work
When must an attorney withdraw from a representation?
(1) When a lawyer knows or it is obvious from the start that the client's position is frivolous or is to harass or maliciously injure an individual; (2) if the lawyer becomes impaired, mentally or physically; (3) a RPC would be violated in NY by your repr
When may an attorney withdraw from a representation?
(1) Client's claim or defense is frivolous; (2) client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) Client deliberately disregards an agreement or obligation to the lawye
What cases should a lawyer accept?
Only those cases he or she is competent to handle or encourage client to seek other counsel
What does competence include?
(1) Being physically and mentally able; (2) being substantively competent; and (3) have time to devote to the case
Can an incompetent lawyer overcome that incompetence and take a case?
Drink some ALE: (1) Association; (2) learn it in time; (3) emergency situation
A lawyer may not help others engage in the unauthorized practice of law. What is the practice of law?
(1) Appearance in depositions and judicial hearings; (2) drafting substantive legla documents; (3) settling a case with clients
May a lawyer enter into a non-compete agreement or provision with current partners or associates?
No. Exceptions: (1) retirement and (2) withdrawal from the firm
When can attorney advertise that he specializes?
(1) He is certified by a private organization approved to certify by the ABA or NY state; (2) the certifying organization is identified in the ad; and (3) lawyer states that (a) certifying organization is not affiliated with any governmental authority, (b
What must ads include?
(1) Name, principal law office address and telephone number of the lawyer or law firm; (2) 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; (3) the label
What may ads include, assuming such information is true and not misleading?
(1) Educational background and degrees; (2) dates of admission to bar and areas of practice; (3) public offices and teaching positions held; (4) memberships in bar associations and other professional organizations; (5) foreign language ability (must be fl
Assuming the ad complies with the RPC and can be factual supported by the lawyer, what else may the ad contain?
(1) Statements that are reasonably likely to create an expectation about results the lawyer can achieve or which describe or characterize the quality of the lawyer's/law firm's services (so long as there is a factual basis); (2) statements that compare th
What may not be included in ads?
(1) A paid endorsement or testimonial about lawyer/law firm without disclosing that the person is being compensated or (2) acts to portray the lawyer, firm members, clients or events without disclosure
May a lawyer/law firm use a trade name or domain name?
Trade name: NO. Domain name, yes, provided that (1) all pages clearly and conspicuously contain the actual name of the lawyer/law firm; (2) lawyer/law firm in no way attempts to engage in the practice of law using the domain name; and (3) domain name does
What is misleading in ads, and therefore prohibited?
Promised outcomes or the ability to achieve results because you have clout or inappropriate influence
How long must ads be kept on file by the lawyer/law firm?
(1) TV/radio ads: 3 years following dissemination. (2) Ads contained in a computer-accesed communication: not less than one year
When may an attorney advertise contingent fees?
You must clearly state the terms and basis of the fee. You must make it clear in any advertising that refers to contingent fees whether the client will be responsible for any costs and that they are not permitted in all types of cases
May attorneys solicit clients?
No solicitation by in-person or telephone contact, real-time or interactive computer accessed information (does not include ordinary email, websites or pop-up ads), unless the recipient is (1) a close friend or relative, (2) a former client, (3) an existi
Is targeted mailing permitted?
Yes, so long as the the mail includes "Attorney Advertising." Solicitations directed to pre-determined recipients must disclose how the attorney learned the recipients identity and need for legal services. A list of the names and addresses of the recipien
When is targeted mail prohibited?
No solicitation for personal injury or wrongful death by the lawyer or any agent/representative before the 30th day after the incident, unless a filing is required in less than 30 days, in which case, no unsolicited communication before the 15th day after
When is solicitation by written or recorded communication prohibited?
(1) Communication is false, deceptive or misleading; (2) recipient has made known to lawyer a desire not to be solicited; (3) solicitation involves coercion, duress, or harassment; (4) lawyer reasonably should know that the age of physical, emotional, or
What result if you give in-person, unsolicited advice?
You may not accept employment resulting from such advice.
What does the attorney's duty of confidentiality include?
Attorney-client privilege plus anything derogatory, embarrassing or hurtful regarding your client, no matter what the source. This duty survives the client
What is required of you if you terminate the client relationship?
Do so in a manner that does not prejudice the client. Give the client notice, return the case file and any unearned portion of the retainer
When may you breach confidentiality?
(1) required by law or court order; (2) to obtain legal or ethical advice for lawyer (use of hypotheticals with colleague is okay if discrete to protect identity of client); (3) to prevent the client from committing a crime; (4) to prevent reasonably cert
A lawyer may not make a public statement that he should reasonably know will be prejudicial to the case - especially regarding:
(1) Character, reputation, or criminal record of party; (2) identification of witness or expected testimony; (3) possibility of a guilty plea, existence of a confession, and opinion as to guilt or innocence of defendant or suspect; (4) information lawyer
What may a lawyer always state publicly about a case?
(1) Dry facts; (2) warning of danger where there is a reason to believe of a likelihood of substantial harm to a person or public interest; (3) in a criminal case, information necessary to aid in the apprehension of an accused; (4) right of reply (lawyer
What is the general rule regarding conflicts of interest?
An attorney must avoid conflicts and exercise independent professional judgment
When may an attorney accept a case with a conflict?
Only when all clients have given informed consent: (1) lawyer explains material risks and reasonable alternatives; (2) client agrees in writing (can be electronic); (3) then lawyer decides if a reasonably prudent lawyer would take the case
When may lawyers testify on behalf of clients?
(1) It is an uncontested matter or a matter of formality; (2) fees; or (3) substantial hardship if the attorney withdraws
Who is not a prospective client?
Someone who communicates with a lawyer for the purpose of disqualifying the lawyer from handling a materially adverse representation on the same or a substantially related matter
Can a lawyer take a mortgage on client's property to secure a fee?
No. Exception: In domestic relations matters, a lawyer may take a lien on real property or obtain a security interest to secure his fee if (1) the retainer agreement provides that an SI may be sought, (2) Notice of the application for the SI is given to t
May you loan money to a client?
No, but you can advance court costs and expenses of litigation repayment of which can be contingent upon the case outcome. Exception: you may loan money to indigents and pro bono clients
When may a lawyer "do business" with a client?
Only when the transaction is FAIR to the client. Lawyer must: (1) advise client to get independent legal advice and (2) get informed consent in writing. Exception: standard commercial or other ordinary transactions are okay
May you represent a current client against a former client?
Yes, except (1) when your current client wants to sue your former client involving a matter or transaction in which you represented the former client, or (2) when representing former client, you learned confidential information that is now relevant to the
When does client consent not cure a conflict?
Current client versus current client
What are the special duties required when representing a corporation?
You represent the entity, not any individual, so (1) duty to report violations up chain of command; (2) duty to report securities violations up chain of command; (3) if not appropriate response, must report to board and may report to outside authority
What duties do lawyers have regarding fees?
(1) Duty to explain fully the reasons for the fee and (2) keep fee reasonable.
When are contingent fees prohibited?
(1) Criminal cases and (2) domestic relations cases
When must a fee arrangement be in writing?
When the fees are projected to be greater than $3,000. Client doesn't have to sign it, but it must be communicated to him
What must a retainer agreement/letter of engagement include?
(1) Scope of legal services ot be provided; (2) explanation of attorney's fees to be charged; (3) expenses and billing practices; (4) notice of client's right to arbitrate a fee dispute
When is a retainer agreement/letter of engagement not required?
(1) Where the fee is expected to be less than $3,000; (2) where the services rendered are similar to those rendered in the past; (3) where the lawyer has no office in NY or no material portion of services are rendered in NY
What are special rules in domestic relations matters?
(1) Fee agreement must be in writing, signed by lawyer and client; (2) lawyer must provide prospective client with a statement of the client's rights and responsibilities at the initial conference and prior to the signing of a written retainer agreement;
When may legal fees be shared with a non-lawyer?
(1) Salaries, retirement plans, bonuses, profit sharing and (2) spouses of deceased partners to pay fees earned by the deceased partner
May attorneys and-non-attorneys share office space?
Yes, so long as the space is physically separate in fact and appears to the public. Precautions must ensure that the non-lawyer's clients are not coerced to use the lawyer for legal matters
Are referral fees between lawyers okay?
Not usually. You can have a reciprocal referral agreement, as long as the agreement is not exclusive
May a lawyer consult with another lawyer on a matter and share the fee?
Yes, but (1) the division of fee must be in proportion to the work performed, (2) obtain informed consent and (3) the total fee is reasonable
In whose account does a retainer fee belong?
A retainer that is an advance on fees, it belongs to the client and goes into a trust account. An availability retainer belongs to the attorney and goes into the lawyer's account. All availability retainers are refundable
How many accounts must every lawyer have?
At least two: operating and client trust
What happens to interest in client trust account?
Either assign interest pro rata to clients or send small amounts to NYS IOLA Fund (Interest on Lawyer's Account Fund - does good things for indigent clients)
Must fee disputes always be settled through the mandatory fee dispute resolution program?
Generally, but not (1) fee disputes in criminal matters, (2) if the amount in dispute is less than $1K or more than $50K or (3) if the claim involves attorney malpractice
What is your professional responsibility as a subordinate lawyer?
You must abide the rules and follow the provisions of the RPC. No violation if you follow your supervisor's instructions on a close call
What is your professional responsibility as a supervising lawyer/partner?
They must abide by the rules and ensure that all ordinary lawyers follow the rules. Managing lawyer (supervisor) can be held responsible for conduct of subordinates if they knew of the wrongful conduct and did not report it; or if they told the subordinat
May a lawyer ever talk to a juror?
Never outside the courtroom during trial. But after trial is okay, unless: (1) it's prohibited by a court order; (2) the juror does not want to talk; or (3) the purpose is to harass the juror
May a lawyer speak ex parte with a judge?
Only de minimis, in the case of an emergency, or during a settlement conference
May a lawyer speak with adversarial party?
Only through his or her lawyer
May a lawyer speak with witnesses?
Okay anytime. However, when it is a corporation witness whose testimony could lead to corporation liability, must go through corporation's attorney
What is an attorney's duty with regard to adverse legal authority?
A lawyer has an affirmative duty to disclose contrary or adverse authority, which means cases and statutes from the controlling jurisdiction only but duty does not extend to facts or witnesses
What is an attorney's duty when speaking to judge in an ex parte proceeding?
A lawyer shall inform the tribunal of all material facts known to the lawyer that will make the tribunal make an informed decision, whether or not the facts are adverse
What special duties are required of prosecutors?
(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
Is voluntary pro bono service required?
Lawyers are strongly encouraged to provide pro bono services to benefit poor persons and should aspire to: (1) provide 20 hours per year pro bono to poor persons and (2) contribute financially to organizations that provide legal services to poorer persons
Is a registration statement required for NY lawyers?
Yes, every lawyer in NY should file a registration statement every two years