New York PR Flashcards
4 types of discipline
1) Admonition
2) Public/private censure
3) Suspension
4) Disbarrment
Violation of rule of PC is:
Relevant evidence of malpractice but not conclusive
When must you report knowledge of a violation?
When it raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer
Reciprocal discipline
Discipline imposed by the bar of one state allows NY to impose reciprocal discipline for the same misconduct
Does it matter where misconduct occurred to give rise to discipline in NY?
No
Choice of law in disciplinary matters
1) If conduct occurred in connection with a proceeding where lawyer was admitted, rules of that jurisdiction govern lawyer’s conduct
2) For other conduct, if lawyer only admitted in NY, NY rules govern. If he is admitted somewhere else also, rules of the state in which he principally practices apply unless the predominant effect was in another state
Three restrictions on lawyers
1) May not aid a non-lawyer in the practice of law
2) Shall not enter into partnership, employment, or similar agreement that restricts the right of the lawyer to practice after termination (exception: agreement concerning retirement benefits)
3) May not participate in settlement of a matter that restricts his right to practice in the future
Which decisions does lawyer make and which does client make?
Client- those of substantive legal import
Attorney- strategy, procedure, tactic
Specific examples of client decisions (6)
1) Commencing action
2) Settlement
3) Criminal plea
4) appeal
5) Jury trial/bench trial
6) Whether to testify in criminal case
Example of attorney’s decision
Granting reasonable adjournment that does not prejudice the client
What to do if client loses ability to make a clear decision or a is a minor
Have a guardian appointed
Attorney can take reasonably necessary protective action and seek to have a guardian appointed for client if (3)
1) Diminished capacity
2) Is at risk of physical, financial, or other harm
3) Client cannot act in his own interest
Do lawyers have a right to reject cases?
Yes
When must an attorney withdraw from representation? (4)
1) Lawyer knows it will result in violation of rules or law
2) Lawyer suffers physical or mental disability
3) Client fires lawyer
4) Lawyer knows client is taking steps solely to harass or maliciously injure another
When may an attorney withdraw from representation? (6)
1) Client persists in course of action involving lawyer’s services that lawyer reasonably believes is criminal/fraudulent
2) Client fails substantially to fulfill an obligation to the lawyer regarding services and has been gien reasonable warning of withdrawal unless fulfilled
3) Client uses lawyer’s services to perpetrate crime/fraud
4) Client insists upon action taht the lawyer considers repugnant or with which the lawyer has a dundamental disagreement
5) Representation will result in unreasonable financial burden on lawyer or has been rendered unreasonable difficult by client
6) Other good cause
When must a lawyer continue representation of a client?
When ordered to by the tribunal
Competence includes
1) Physical/mental competence
2) Competence in substantive law
3) Time to handle matter
Lack of competence can be overcome by
Association with someone who is competent or becoming competent in the area
When can a lawyer limit scope of representation?
If limitation is reasonable and client gives informed consent
What type of firm name can you not have?
Trade name
Lawyer may hold himself out as specialist only where
Certified as specialist in the area by a private organization approved by the ABA or another state
2) Includes a disclaimer that it isn’t necessary
What is not included in advertising?
Communications to existing clients or other lawyers
Attorney advertisements must include
1) Name, main office addressm, and phone number of lawyer/law firm
2) Words or statements required by the rules must be clearly legible
3) “Attorney advertisement” on the first page of any direct mail or on home page of website
Lawyer can identify regular clients in ad only where:
They have the clients’ written consent
All statements made in advertising must be:
True and not misleading or deceptive
If an advertisement advertises fees for service:
It must abide by those for a reasonable period
If ad contains disclaimer that “prior results do not guarantee a similar outcome” and can be supported by lawyer on date published, it may contain
1) Statements reasonably likely to create expectation about results lawyer can achieve
2) Statements that compare lawyer’s statement with that of another lawyer
3) Testimonials of clients
Ads may not include
1) Paid endorsement without disclosing that the person is being paid
2) Actor without disclosure
You can use domain name that does not include the name of the lawyer/firm provides that (3)
1) All pages clearly and conspicuously include the actual name of the lawyer/firm
2) Lawyer/firm doesn’t attempt to practice law under domain name
3) Domain name does not imply ability to obtain results
TV and radio ads must be
Approved by lawyer, include name, address and phone, and be kept for at least 3 years
Ads contained in computer-based communication must be retained for
1 year
Lawyer may not solicit by phone, in-person communication, or computer-accessed communication unless recipient is (4)
1) Close friend
2) Relative
3) Former client
4) Existing client
Absolutely no soliciting allowed where
1) Recipient has made known desire not to be solicited
2) Communication is false/misleading
3) Solicitation involves coercion, duress, harassment
4) Lawyer expects the services to be performed by someone else who is not a partner/associate of the lawyer
If retainer agreement is included with solicitation, must include
“Do not sign” on signature line and “sample” at the top
Solicitation directed to specific recipients, if prompted by a specific occurrence involving or affecting a recipient, must disclose
How the attorney learned the recipient’s identity and need for legal services. List of names/addresses must be kept for 3 years and filed with grievance committee
No solicitation for personal injury or wrongful death matters:
Before 30th day after incident, unless filing is required before then (but no earlier than 15 days)
If a lawyer engages in improper solicitation
She cannot accept employment resulting from such communication
Attorney-client privilege applies to:
Confidential communications made by an individual to an attorney who is sought out for the purpose of obtaining legal advice
Duty of confidentiality prevents:
1) Lawyer from knowingly disclosing confidential information OR
2) Using confidential information to the disadvantage of the client or for the advantage of the lawyer
Confidential information consists of information obtained during or relating to representation that:
1) Protected by AC privilege
2) Likely to be embarrassing/detrimental to client
3) Client has requested it be kept confidentiral
Exceptions to duty of confidentiality (may reveal client info)
1) When necessary to prevent reasonably certain death or substantial bodily harm
2) Necessary to prevent a client from committing a crime or fraud
3) Required by court order, ethics rules, or statute
4) Necessary to establish claim/defense to lawyer in dispute between client and lawyer
5) To obtain legal or ethical advice (hypotheticals okay)
6) Client consents
When must a lawyer breach duty of confidentiality?
Lawyer who represents client before tribunal who knows that a person intends to engage in criminal/fraudulent conduct related to the proceeding
Two types of retainer
1) Advanced payment - belongs to client, goes into trust account
2) General retainer- belongs to attorney, goes into lawyer’s account
Two accounts every lawyer must have
1) Operating account (lawyer’s money)
2) Client trust
Special rules of client trust account
1) Must be in bank in NY
2) Funds to maintain account are the only lawyer funds that can be put in
3) Must be placed in a bank with dishonored check reporting
Non-meritorirous claims
Lawyer shall not bring/defend claims without a basis in law and fact
Criminal defense lawyer may defense as to require every element of the case be proved
Lawyer should not represent a client if a reasonable lawyer would conclude that either
1) Representation will involve the lawyer in representing differing interests
2) There is a significant risk that the lawyer’s professional judgment will be affected by the lawyer’s own financial, business, property, or other personal interests
When a potential conflict arises, a lawyer can accept the case only if (4)
1) Lawyer reasonably believes he can competently represent all clients
2) Not prohibited by law
3) Does not involve assertion of claim by one client against another that are both represented by the lawyer
4) Informed consent in writing from each client affected
Lawyer as witness
Shall not represent a client before a tribunal in a matter in which the lawyer is likely to be a witness unless
1) Testimony relates to uncontested matter
2) Relates solely to value of legal services
3) Relates to a matter of formality
4) Disqualification will be a substantial hardship on client
5) Authorized by tribunal
Security interest or lien on real property in a divorce matter is okay if
Prior notice provided to client in signed agreement, judge approves it, and notice to adversary
When can a lawyer advance or guarantee financial assistance to a client?
1) Advance of court costs and litigation expenses, repayment contingent upon outcome
2) Litigation costs for pro bono client even if not seeking reimbursement
Lawyer cannot accept compensation from a 3rd party unless
1) Client gives informed consent
2) No interference with lawyer/client relationship
3) Confidential information not provided to payor
Lawyer cannot enter into business transaction with client if they have differing interests and client expects the lawyer to exercise professional judgment for client’s beneit unless
1) Transaction is fair and reasonable and terms are disclosed in writing
2) Client is advised in writing of desirability of seeking independent lawyer
3) Informed consent
Letter of engagement must include
1) Scope of representation
2) Explanation of attorneys’ fees and expenses
3) Notice of client’s right to arbitration of fee disputes
Letter of engagement not necessary where: (4)
1) Fee to be charged expected to be less than $3000
2) Representation where attorney’s services are of same general kind offered and paid for by client previously
3) Representation in domestic relations matter
4) Representation where no material portion of the services are to be rendered in NY
Rules for fees in domestic relations
1) Agreement must be in writing signed by client and lawyer
2) Must provide client with statement of rights/responsibilities
3) No non-refundable fees
4) Cannot use contingency fee to collect alimony/child support
5) Periodic billing must be sent every 60 days
Litigation expenses and contingency fees
Generally can be deducted before or after contingency fee taken by agreement, but in PI and wrongful death must be deducted before fee calculated
Contingency fees prohibited for
1) Criminal matters (including quasi-criminal proceedings)
2) Domestic relations matters
