Shared Flashcard Set


Professional Responsibility
NY Bar

Additional Law Flashcards




types of discipline
1. admonition (grievance committee can impose; all others only available in courts)
2. public or private censure
3. suspension
4. disbarment
5. malpractice claims by clients or 3rd parties in supreme court (violation of Rules are relevant evidence of malpractice)
another lawyer's violation
when you know of another's violation that raises substantial question as to that lawyer's honesty, trustworthiness, or fitness:
1. must report knowledge to a grievance committee or court; AND
2. duty to cooperate in the investigation
-but, duty of confidentiality during rep trumps duty to report; thus, lawyer may not reveal without client's consent
multi-jurisdictional practice
discipline imposed by another state permits NY to impose reciprocal discipline for same misconduct; lawyer admitted in NY can be disciplined for any misconduct, no matter where it occurs
choice of law
1. if conduct occurred in connection with proceeding before tribunal in which lawyer admitted, rules of that jurisdiction govern
2. for any other conduct, NY rules govern only if admitted in NY
3. if lawyer admitted in NY and another state, rules where lawyer principally practices apply unless conduct's predominate effect is in another state
1. shall not aid a non-lawyer in the unauthorized practice of law
2. shall not enter partnership, employment, or similar type of agreement that restricts the right of the lawyer to practice after termination
3. may not participate in settlement of client's matter that restricts lawyer's right to practice in the future
client's decisions
1. commencing action
2. settlement
3. plea deals
4. appeal
5. electing for jury trial
6. testifying in criminal case
attorney's decisions
1. discovery methods
2. granting reasonable adjournments that do NOT prejudice client
client capacity
-if client lose ability to make clear decision or is a minor, attorney MUST have guardian appointed
-attorney can take reasonably necessary protective action and seek guardian when client does not want one if:
(i) client has diminished capacity;
(ii) client is at risk of substantial physical, financial, or other harm; AND
(iii) client cannot adequately act in own interests
accepting rep
lawyers have a right to reject all cases, although they should do pro bono
mandatory withdrawal
1. lawyer knows rep will result in violation of Rules or other law;
2. lawyer suffers physical/mental disability;
3. client fires lawyer; OR
4. lawyer knows client is taking steps solely to harass or maliciously injure another
permissive withdrawal
1. client insists on presenting frivolous claim/defense
2. client persists in course of action involving lawyer's services that he reasonably believes is criminal or fraudulent
3. client deliberately disregards agreement/obligation to lawyer as to fees/expenses
4. client uses lawyer's services to perpetrate crime or fraud
5. continued employment likely to result in violation of Rules or law (mandatory if lawyer KNOWS)
6. lawyer's inability to work with co-counsel indicates that best interests served by withdrawal
7. client insists on taking action with which lawyer has fundamental disagreement
8. clients fails to cooperate in rep
9. withdrawal can be accomplished without material adverse affect on client
lawyer competence
competence: physical/mental, substantive law, sufficient time
-lack of competence can be overcome by associating with competent lawyer or becoming competent on the law
firm name
must NOT be misleading; trade names NOT permitted
-lawyer or firm may publicly identify one or more areas of law in which they practice or state that practice is limited to those areas
-lawyer may NOT hold herself out as a specialist UNLESS she is certified as a specialist in a particular area of law by private organization approved by ABA or another state AND notes that certification is NOT recognized by NY authority
-any public or private communication made by or on behalf of lawyer or firm about services, primarily trying to retain them
-exception: communications to existing clients or other lawyers
-must include name, office address, and phone # (which can contain name that does NOT violate Rules); words required by Rules must be clearly legible and understandable; "attorney advertising" label must be on first page
-if using statements creating expectation, comparing to others, testimonials, or describing quality, must include "prior results do not guarantee similar outcome"
-NO paid endorsements/testimonials or actors
-must be approved by lawyer and kept for 3 years (1 year for computer communications)
all solicitations are ads and subject to same rules, as well as:
-NO solicitation to get lawyer/firm retained for pecuniary gain by:
(i) in person communication;
(ii) live telephone communications; OR
(iii) real-time computer access communication
UNLESS recipient is a close friend, relative, former client, or existing client
-exceptions: NO solicitation when
1. client made know desire NOT to be;
2. communication is false/misleading;
3. coercion, duress, or harassment; OR
4. lawyer intends/expects another lawyer to handle and does not disclose
targeted mailing
may send direct mail to groups of people likely to need legal services
-must include "attorney advertising"
-if directed at specific recipients, must file with disciplinary committee
-NO solicitation for personal injury or wrongful death before 30 days after incident unless filing required less than 30 days, in which case nothing before 15 days
duty of confidentiality: generally
a lawyer may not knowingly disclose confidential information, or use such info to disadvantage of client or own/3rd party advantage
-consists of info gained during/relating to rep that is privileged, likely to embarrass/detriment, or client requests confidentiality
duty of confidentiality: exceptions
may reveal to extent reasonably believed to be necessary when:
1. permitted/requires by Rules, law, or court order
2. obtain legal/ethical advice for lawyer (use hypos)
3. prevent a crime
4. prevent reasonably certain death or substantial bodily harm
5. to withdraw previous statement reasonably believed still relied on by third person where lawyer discovered it was materially inaccurate or used for crime/fraud
6. disclosure necessary to collect fee or defend accusation of wrongful conduct
7. informed consent to disclose or implied authorization
8. MUST take remedial measures when lawyer knows crime or fraud in proceeding, including, if necessary, disclosure of confidential info
duty of confidentiality: prospective clients
a person who discusses with a lawyer possibility of forming attorney-client relationship is entitled to duty of confidentiality for the conversation that takes place when seeking rep
1. communicates info unilaterally without any reasonable expectation that lawyer is willing to discuss possibility of entering relationship; OR
2. communicates for purpose of disqualifying lawyer from handling materially adverse rep on same/substantially related matter
security: belongs to client
general: belongs to attorney (compensates for availability)
trial publicity
NO statement may be made that a reasonable lawyer would expect to be disseminated if knows/reasonably should have known it will have substantial likelihood of materially prejudicing proceeding--e.g.:
1. character, rep, criminal record of party
2. ID of witness or expected testimony
3. possibility of guilty plea, existence of confession, opinion of guilt or innocence
4. inadmissible evidence
5. fact that D is charged with crime unless stating as merely an accusation and that D is presumed innocent

generally allowed:
1. dry facts about case
2. warning of danger
3. info necessary to aid in apprehension of accused
4. right of reply: may make statement to protect client from prejudice of recent publicity NOT initiated by lawyer or client (e.g., opponent attorney crosses the line)
non-meritorious claims
a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous
-criminal proceedings: if it could result in incarceration, lawyer may nevertheless defend the proceeding as to require that every element of the case be established (i.e., may allow client to plead not guilty and make prosecution prove case)
conflicts generally
a lawyer shall not represent a client if a reasonable lawyer would conclude that either:
1. the rep will involve the lawyer repping differing interests; OR
2. there is a significant risk that the lawyer's professional judgment on behalf client will be adversely affected by the lawyer's own financial, business, property, or other personal interests

if either, lawyer can accept rep ONLY IF:
1. lawyer reasonably believes she can competently rep all affect clients;
2. rep not prohibited by law;
3. rep does not involve assertion by 1 client against another; AND
4. each client give informed consent confirmed in writing

-imputation: if one lawyer conflicted, all others in the firm are (even other offices)
lawyer as witness
a lawyer shall not rep a client before a tribunal in a matter in which he is likely to be a witness on a significant issue of fact unless:
1. testimony relates to uncontested matter
2. testimony relates solely to value of services
3. matter of formality
4. substantial hardship on client
5. testimony authorized by tribunal
-NO imputation BUT lawyer may not be advocate if another lawyer in the firm is likely to be called as a witness on a significant issue by another party (policy-->vigorous cross)
interest in media rights
prior to conclusion of client's entire matter (including appeals), a lawyer is prohibited from entering into or even negotiating any arrangement with client to acquire an interest in literary or media rights with respect to the subject matter of the rep
interest in subject matter of rep
a lawyer cannot acquire proprietary interest in the cause of action or subject matter of litigation, except lawyer may:
1. acquire lien authorized by law to secure fees/expenses; AND
2. contract with client for a reasonably contingent fee in a civil matter
security interest in domestic relations
for domestic relations, a lawyer's retainer agreement may include a security interest, confession of judgment, or other lien to secure fee BUT ONLY IF:
1. prior notice provided to client in signed retainer;
2. tribunal approves it; AND
3. adversary is given notice of the interest
-BUT, lawyer shall not foreclose on such mortgage on marital residence while spouse who consents remains titleholder and it is primary residence
financial assistance to client
during rep, lawyer cannot advance or guarantee financial assistance to client
1. lawyer may advance court costs and expenses, repayment contingent on outcome
2. lawyer repping indigent or pro bono client may pay court costs and expenses on behalf of client outright, and not elect to seek reimbursement
fee payment by 3rd party
a lawyer cannot accept compensation for repping client from one other than client unless:
1. client gives informed consent;
2. NO interference with attorney-client relationship; AND
3. confidential info NOT provided to payor
sexual relations with client
1. lawyers cannot demand sexual relations as condition of rep
2. lawyer in domestic relations matter cannot enter (i.e., start) sexual relations with client during course of rep
3. even in ongoing relationship predating rep in matters other than domestic relations, lawyer may still have conflict because professional judgment likely adversely affect by own personal interests
business transactions with clients
a lawyer cannot enter into a business transaction with a client if they have differing interests therein and client expects lawyer to exercise professional judgment for benefit of client UNLESS:
1. transaction is fair and reasonable to client and terms are disclosed in writing understandable by client;
2. client is advised in writing of desirability of seeking and is given opportunity to seek independent lawyer; AND
3. client gives informed consent in writing to the essential terms, lawyer's role, and whether lawyer repping client in transaction
exception: standard commercial or other ordinary business transactions, which client markets to others, are not subject to this Rule because client not relying on lawyer's legal advice
lawsuits between current and former clients
may rep current client in action against former client except:
1. current client wants to sure former in matter substantially related to prior rep; OR
2. lawyer learned confidential info during former rep that is relevant to current rep (but, if info became generally known or former client consents in writing, OK)
repping an organization
1. lawyer for corporation or partnership reps the entity, NOT directors, officers, employees, etc.
2. if lawyer knows that an officer, employee, or other person associated is engaged in action or intends to act or refuses to act in matter related to rep that is in violation of law that reasonably might be imputed to organization AND likely to result in injury, lawyer shall proceed as is reasonably necessary for best interest of organization:
1. ask them to reconsider;
2. advise that separate legal opinion be sought; AND
3. referring matter to higher authority
-if reasonable measures do not work, lawyer may reveal confidential info if permitted by exceptions to confidentiality AND may withdraw
limiting malpractice liability
a lawyer shall not make an agreement prospectively limiting lawyer's liability to client for malpractice
settling malpractice claims
a lawyer shall not settle claim for malpractice with client or former client unless advised in writing of desirability of seeking individualized counsel
letter of engagement
attorney who undertakes rep shall provide client with written letter of engagement before commencing rep or within reasonable time thereafter
-must include:
1. scope of rep;
2. explanation of fees and expenses; AND
3. notice of client's right to arbitrate fee disputes
-must be updated with significant change in fee or scope
-signed retained can suffice is all 3 items in it
-if entity such as insurer engages lawyer to rep third party such as insured, must send letter of engagement to the entity
-NOT necessary when:
1. rep where fee is expected to be less than $3,000
2. rep where services are same general kind as previously rendered and paid for
3. domestic relations matters
4. rep where not material portion of services to be rendered in NY
domestic relations: special rules
1. fee agreement must be in writing, signed by lawyer and client
2. lawyer must provide prospective client with statement of client's rights and responsibilities at initial conference and prior to signing of written retainer agreement
3. NO nonrefundable fees (OR in any other matter)
4. NO contingency fees to collect unpaid alimony/child support
5. periodic billing every 60 days and at conclusion attorney must send back any unused portion of retainer
contingent fees
fee may be contingent on outcome of the matter, provided that the fee is reasonable (generally, 33% and cannot exceed 33% in personal injury and wrongful death actions)
2. contents of agreement:
(i) method to determine fee, including percentages that accrue to lawyer in the event of settlement, trial, and appeal;
(ii) court costs and expenses to be deducted from recovery; AND
(iii) whether such expenses deducted before or after calculated (personal injury and wrongful death MUST be before fee calculated unless lawyer advanced them)
3. closing statement provided at conclusion of matter stating outcome and showing remittance to client of any recovery
contingent fees: prohibited
1. criminal (including quasi)
2. domestic relations
fee division with non-lawyer
1. lawyer cannot partner with non-lawyer if any part of partnership activity involves practice of law
2. lawyer cannot divide legal fee with non-lawyer
exceptions: payments for salaries, retirement, bonuses, profit sharing as long as not tied to fees generated; payments to spouse of deceased partner or estate to compensate for fees earned prior to death
3. may share office space as long as physically separate and appears so to public
4. lawyer cannot give anything of value to recommend as reward for recommendation (e.g., NO blind referral fees to non-lawyers)
fee splitting with lawyer outside firm
lawyer shall not divide a fee outside firm UNLESS:
1. division is in proportion to services performed or in writing given to client each lawyer assumes joint responsibility for rep;
2. client consents to employment of other lawyer after full disclosure of fee division and percentage confirmed in writing; AND
3. total fees combined NOT excessive
fee dispute resolution program
in civil matter, fee disputes subject to arbitration at client's election (client must be informed in letter of engagement AND when fee dispute arises)
1. criminal
2. amounts in dispute less than $1,000 or more than $50,000
3. claims involving substantial legal questions (e.g., malpractice)
4. disputes where fee to be paid determined pursuant to statute or rule and allowed as of right by court (e.g., bankruptcy court ordered fee)
5. disputes where no attorney's services have been rendered for more than 2 years
firm responsibility
a law firm shall make reasonable efforts to ensure that all lawyers in the firm conform to the Rules (can be disciplined)
supervising/managing lawyer responsibility
MUST abide by the Rules and all lawyers and non-lawyers acting at their direction must do so as well
-can be held responsible for conduct of subordinates if they knew of the wrongful conduct and did not report it, or if they directed the conduct
subordinate lawyer responsibility
MUST follow Rules even if acting at another's direction; however, no violation if following supervisor's instructions on arguable question of professional duty
non-lawyer responsibility
lawyers at a firm must ensure non-lawyer's work is adequately supervised and can be held responsible for their wrongful acts
ex parte communications: jury
cannot speak to juror about any issue during trial; after trial OK unless:
1. prohibited by court order;
2. juror does not want to talk; OR
3. purpose is to harass juror
ex parte communications: judge
cannot communicate with judge ex parte other than de minimis, settlement conference, or seeking TRO
ex parte communications: represented party
a lawyer shall not communicate or cause another to communicate about the subject of rep with a party the lawyer knows to be represented by another lawyer in the matter UNLESS:
1. other party's lawyer consents; OR
2. communication is authorized by law
ex parte communications: unrepresented party
a lawyer shall not state or imply that he is disinterested, and shall make reasonable efforts to correct misunderstandings about lawyer's role; lawyer shall not give legal advice other than to seek counsel
ex parte communications: adverse witness
generally, no limits on such communications; lawyer may communicate ex parte with P's treating physician, provided P has provided an authorization; but, if separately represented, must go through lawyer
adverse legal authority
a lawyer has an affirmative duty to disclose controlling legal authority known to be directly adverse to position of client (duty does NOT extend to facts)
facts in ex parte proceeding
a lawyer shall inform tribunal of all material facts known to lawyer that will assist tribunal to make an informed decision, whether or not facts are adverse to client
special duties of prosecutor
1. proceed only on probable cause
2. must disclose in timely manner evidence tending to negate guilt of accuse or which could mitigate degree of the offense/reduce punishment
introductory rule: civil
a lawyer must represent his client zealously within the bounds of the law and make only meritorious claims and contentions
introductory rule: criminal
a lawyer must represent his client zealously within the bounds of the law and make only meritorious claims and contentions, but may nevertheless defend proceeding as to require that every element of the case be established (can plead not guilty even if guilty, but NO frivolous defenses)
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