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State Subjects > New York PR > Flashcards

New York PR Flashcards

1
Q

4 types of discipline

A

1) Admonition
2) Public/private censure
3) Suspension
4) Disbarrment

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2
Q

Violation of rule of PC is:

A

Relevant evidence of malpractice but not conclusive

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3
Q

When must you report knowledge of a violation?

A

When it raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer

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4
Q

Reciprocal discipline

A

Discipline imposed by the bar of one state allows NY to impose reciprocal discipline for the same misconduct

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5
Q

Does it matter where misconduct occurred to give rise to discipline in NY?

A

No

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6
Q

Choice of law in disciplinary matters

A

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

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7
Q

Three restrictions on lawyers

A

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

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8
Q

Which decisions does lawyer make and which does client make?

A

Client- those of substantive legal import

Attorney- strategy, procedure, tactic

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9
Q

Specific examples of client decisions (6)

A

1) Commencing action
2) Settlement
3) Criminal plea
4) appeal
5) Jury trial/bench trial
6) Whether to testify in criminal case

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10
Q

Example of attorney’s decision

A

Granting reasonable adjournment that does not prejudice the client

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11
Q

What to do if client loses ability to make a clear decision or a is a minor

A

Have a guardian appointed

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12
Q

Attorney can take reasonably necessary protective action and seek to have a guardian appointed for client if (3)

A

1) Diminished capacity
2) Is at risk of physical, financial, or other harm
3) Client cannot act in his own interest

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13
Q

Do lawyers have a right to reject cases?

A

Yes

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14
Q

When must an attorney withdraw from representation? (4)

A

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

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15
Q

When may an attorney withdraw from representation? (6)

A

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

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16
Q

When must a lawyer continue representation of a client?

A

When ordered to by the tribunal

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17
Q

Competence includes

A

1) Physical/mental competence
2) Competence in substantive law
3) Time to handle matter

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18
Q

Lack of competence can be overcome by

A

Association with someone who is competent or becoming competent in the area

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19
Q

When can a lawyer limit scope of representation?

A

If limitation is reasonable and client gives informed consent

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20
Q

What type of firm name can you not have?

A

Trade name

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21
Q

Lawyer may hold himself out as specialist only where

A

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

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22
Q

What is not included in advertising?

A

Communications to existing clients or other lawyers

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23
Q

Attorney advertisements must include

A

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

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24
Q

Lawyer can identify regular clients in ad only where:

A

They have the clients’ written consent

25
Q

All statements made in advertising must be:

A

True and not misleading or deceptive

26
Q

If an advertisement advertises fees for service:

A

It must abide by those for a reasonable period

27
Q

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

A

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

28
Q

Ads may not include

A

1) Paid endorsement without disclosing that the person is being paid
2) Actor without disclosure

29
Q

You can use domain name that does not include the name of the lawyer/firm provides that (3)

A

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

30
Q

TV and radio ads must be

A

Approved by lawyer, include name, address and phone, and be kept for at least 3 years

31
Q

Ads contained in computer-based communication must be retained for

A

1 year

32
Q

Lawyer may not solicit by phone, in-person communication, or computer-accessed communication unless recipient is (4)

A

1) Close friend
2) Relative
3) Former client
4) Existing client

33
Q

Absolutely no soliciting allowed where

A

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

34
Q

If retainer agreement is included with solicitation, must include

A

“Do not sign” on signature line and “sample” at the top

35
Q

Solicitation directed to specific recipients, if prompted by a specific occurrence involving or affecting a recipient, must disclose

A

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

36
Q

No solicitation for personal injury or wrongful death matters:

A

Before 30th day after incident, unless filing is required before then (but no earlier than 15 days)

37
Q

If a lawyer engages in improper solicitation

A

She cannot accept employment resulting from such communication

38
Q

Attorney-client privilege applies to:

A

Confidential communications made by an individual to an attorney who is sought out for the purpose of obtaining legal advice

39
Q

Duty of confidentiality prevents:

A

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

40
Q

Confidential information consists of information obtained during or relating to representation that:

A

1) Protected by AC privilege
2) Likely to be embarrassing/detrimental to client
3) Client has requested it be kept confidentiral

41
Q

Exceptions to duty of confidentiality (may reveal client info)

A

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

42
Q

When must a lawyer breach duty of confidentiality?

A

Lawyer who represents client before tribunal who knows that a person intends to engage in criminal/fraudulent conduct related to the proceeding

43
Q

Two types of retainer

A

1) Advanced payment - belongs to client, goes into trust account
2) General retainer- belongs to attorney, goes into lawyer’s account

44
Q

Two accounts every lawyer must have

A

1) Operating account (lawyer’s money)

2) Client trust

45
Q

Special rules of client trust account

A

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

46
Q

Non-meritorirous claims

A

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

47
Q

Lawyer should not represent a client if a reasonable lawyer would conclude that either

A

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

48
Q

When a potential conflict arises, a lawyer can accept the case only if (4)

A

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

49
Q

Lawyer as witness

A

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

50
Q

Security interest or lien on real property in a divorce matter is okay if

A

Prior notice provided to client in signed agreement, judge approves it, and notice to adversary

51
Q

When can a lawyer advance or guarantee financial assistance to a client?

A

1) Advance of court costs and litigation expenses, repayment contingent upon outcome
2) Litigation costs for pro bono client even if not seeking reimbursement

52
Q

Lawyer cannot accept compensation from a 3rd party unless

A

1) Client gives informed consent
2) No interference with lawyer/client relationship
3) Confidential information not provided to payor

53
Q

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

A

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

54
Q

Letter of engagement must include

A

1) Scope of representation
2) Explanation of attorneys’ fees and expenses
3) Notice of client’s right to arbitration of fee disputes

55
Q

Letter of engagement not necessary where: (4)

A

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

56
Q

Rules for fees in domestic relations

A

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

57
Q

Litigation expenses and contingency fees

A

Generally can be deducted before or after contingency fee taken by agreement, but in PI and wrongful death must be deducted before fee calculated

58
Q

Contingency fees prohibited for

A

1) Criminal matters (including quasi-criminal proceedings)

2) Domestic relations matters

State Subjects (9 decks)

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