Bar Prep - NY Professional Responsibility Flashcards
What is the basic rule regarding conflict of interest?
A lawyer SHALL NOT represent a client if a reasonable lawyer would conclude:
(1) representation will involve the lawyer in representing DIFFERING INTERESTS, or
(2) there is significant risk that client would be adversely affected by lawyer’s own financial, business, property or other PERSONAL INTEREST.
If potential conflict exists, lawyer can except case (waive conflict) only if ___?
(1) L reasonably believes she can competently represent affected clients
(2) Rep not prohibited by law
(3) Rep doesnt involve claim between two clients
(4) Each client gives informed consent AND confirms in writing.
Mother and child in accident with Jimmy. Can lawyer represent both mother and child in action against Jimmy?
NO - child must assert claim against mother who may also be at fault.
A and B are pulled over and arrested for possession of cocaine present in car. Can L represent both clients?
NO - virtually never permissible to rep co-defendants in criminal case.
True or False: In cross claims, Lawyers can rep. multiple Ds who have cross-claims against each other?
FALSE - L cannot.
What is the general rule of IMPUTATION of conflicts?
If 1 L is conflicted, all L’s in firm are conflict, even if in another office of the firm.
What is the rule regarding lawyer as witness?
L shall not represent a client before a tribunal in a matter where L is likely to be a witness on a significant issue of fact. There are exceptions.
What are the exceptions to general rule against L taking case where likely to be witness as well?
(i) Testimony for Uncontested Matters
(ii) Testimony for Value of Legal Services
(iii) Relates to matter of Formality
(iv) Disqualification would create substantial hardship on client
(v) Testimony authorized by Tribunal
What is required for L admission to practice?
Good Moral Character
No false statements on application
Citizenship or residency requirements permissible
How are disciplinary proceedings initiated in NY?
By complaint to Departmental Disciplinary Committee of the Appellate Division
T or F: In NY, lawyers admitted to practice in NY are subject to discipline in NY regardless of where conduct occurs?
True.
What are the rules regarding choice of law issues?
(i) Litigation = rules of forum
(ii) Any other conduct (NY only bar) = NY rules
(iii) Any other conduct (multi-jurisdictional practice = rules of state where L principally practices).
May non lawyers draft real estate contracts or will/estate plans?
NO.
May non lawyers counsel on legal implications of tax laws?
NO
What is the rule regarding non-lawyers?
L shall not aid NON-lawyer in the UNAUTHORIZED practice of law (including non-NY lawyers).
What are the exceptions to the general rule where a lawyer cannot practice where unlicensed?
(i) Pro hac vice
(ii) clients with multi-state business
(iii) practice before federal agency
(iv) multi-state law practices
Can a non-lawyer have an interest in law firms?
Generally no.
Exception –> agreement concerning benefits on returement.
What decisions are within the client’s power?
SUBSTANTIVE legal decisions.
Commencing action, settlement, plead in criminal case, appeal, electing jury trial
What decisions are within the Lawyer’s power?
STRATEGIC PROCEDURE AND TACTICS.
Discovery methods to use; granting adjournments
If client loses ability to make clear decision or is minor, what result regarding decision-making?
Have guardian appointed, guardian makes decisions.
When can L take reasonably necessary protective action and have guardian appointed for C (even if against C’s will)?
(i) Diminished capacity
(ii) Risk of substantial physical, financial or other harm
(iii) C cannot adequately act in own interest
What is rule regarding L ability to reject cases?
L have right to reject all cases, though they SHOULD do fair share of pro bono work.
When MUST L withdraw from representation?
(a) L knows rep will result in violation of law
(b) L suffers physical/mental disability
(c) C fires L
(d) L knows C taking steps SOLELY to harass or maliciously injure another.
When MAY L withdraw from representation?
- Frivolous claim
- Reasonable believe L services used for crime
- C deliberately disregards L fee agmt
- L work likely to result in violation of law
- Fundamental disagreement
- C fails to cooperate with rep.
L should only take cases competent to handle, this includes:
(i) Physical and Mental ability
(ii) Competence in substantive law
(iii) Significant time
How can L overcome incompetence?
By association with competent L OR becoming competent.
How can L limit scope of representation?
(1) limitation is reasonable and
(2) C gives informed consent.
What are the rules regarding permissible firm names?
May not practice under trade or other misleading name.