NY BAR REVIEW professional responsibility 2019 Flashcards
professional responsibility law
NY RULES OF PROFESSIONAL CONDUCT
other statutes and court rules governing atty conduct
NY JUDICIARY LAW.
RULES OF CHIEF ADMINISTRATOR OF COURTS.
JOINT RULES OF APPELLATE DIVISION
ny state bar association comments
non binding comments and suggestions about how rcp shoujld be interpreted and ethics opinions issued by nys bar assoc, ny county lawyer’s assoc and assoc of bar of city of ny. social media ethics guidelines- in atty advertising, furnishing legal advice, use of evidence, communications w clients, researching of social media profiles of prospective or siting jurors
lawyer client relationship
scope of representation and allocation of authority bw c and lawyer- rules of prof conduct
lawyer may exercise his prof judgment ot waive or fail to assert c’s right or position, but should what?
accede to reasonable requests of opposing counsel - sheduling, continuances, small favors, as long as c’s rights are NOT prejudiced
lawyer may refuse to participate in conduct he believes to be what?
unlawful
lawyers should avoid offensive tactics and should treat persons involved in legal process w what?
courtesy and consideration
while a lawyer MUST abide by c’s decisions on objectives, lawyer is not obligated to play what?
hardball
lawyer MUST promptly inform c of material developments, including what?
settlement or plea offer.
it is the c’s right to decide whether to accept what?
settlement or plea bargain
lawyer MUST withdraw from rep of c when he knows or reasonably should know that what?
c is bringing the action, conducting the defense, asserting a petition, or taking other steps merely for purpose of harassing or maliciously injuring any person
lawyer MUST maintain c’s what?
confidence
what is confdtl info?
info from any source gained during or relating to rep that is protected by atty client privilege and is likely embarassing or detrimental to c if disclosed or that c has requested be kept confdtl
lawyer MUST exercise reasonable care to prevent what?
his employees and associates from disclosing confdtl info
lawyer may NOT knowingly reveal confdtl infoor use such info to what?
harm c.
help lawyer.
help third person.
disclosure of confdtl info is permitted if what?
c consents.
if disclosure is impliedly authorized to advance best interest of c and is either reasonable under circumstances or is customary in prof community
lawyer MAY disclose confdtl info to prevent what?
reasonably certain death or substl bodily harm, prevent c from committing a crime, withdraw an opinion based on false info that is being relied upon by 3rd person or is being used to further crime or fraud, to secure legal advice about compliance w rules, to defend lawyer ag accusation of wrongful conduct, or collect a fee.
lawyer CANNOT represent person or entity when?
a current or former c or lawyer personally has differing interests.
ones that will adversely affect either the judgment or loyalty of lawyer to c.
lawyer MAY represent c if lawyer reasonably believes that he can provide what?
competent rep.
rep isnt prohibited by law.
rep doesnt involve claim by 1 c ag another c represented by lawyer in same litigation or other proceeding before tribunal.
both affected c’s give informed consent, confirmed in writing.
lawyer formerly representing c in matter MAY NOT rep another person whos what?
in same or substly related matter in which that person’s interests are materially adverse to the interest of former c, unless former c gives informed consent, in writing.
if law firm with which lawyer formerly was associated had previously rep a c whose interests are materially adverse to person the lawyer now seeks to rep and about whom lawyer or any lawyer in firm acquired material confdtl info., then?
lawyer may NOT rep, unless informed consent in writing
sexual relations w c during course of rep is?
NOT prohibited, unless dom rel matter.
sexual relations w c during course of rep is NOT what?
advisable and may lead to impairment of lawyer’s exercise of prof judgment, conf of interest, breachof fiduciary duties.
lawyer MUST NOT require/demand sexual relations w any person as what?
condition of entering or continuing prof reltshp or employ coerciion in entering into sex rltns incident to prof rep.
sexual relations w c- doesnt apply to what?
ongoing consensual sexual reltns that predate initiation of lawyer c reltshp
lawyers in same firm MAY NOT rep a c when what?
any of them practicing alone would be prohibited from doing so
when lawyer leaves firm, former firm MAY NOT rep whom?
person w interests that firm knows or reasonably should know are materially adverse to c rep by formrely assoc lawyer and not currently rep by firm if anyone remaining at firm has confdtl info mtrl to matter
lawyer joining new firm, it CANNOT rep a c in a matter substly related to or same as a matter being handled by lawyer’s what?
former firm if interests of former firm’s c are materially adverse to those of new firm’s c unless lawyer hasnt acquired confdtl mtrlto matter being handled by new firm. disqualifications may be waived by affected c and/or former c if lawyer determines rep is NOT prohibited under confl of intrst rules involving current c and both affected c’s give informed consent, in writing.
in some cases, risk may be so great that confl CANNOT be cured by what?
c consent
firm MUST keep detailed records of what?
c base and maintain system for checking ag any conflicts in rep
lawyer for organization represents whom?
the organization, not constituents- officer, director, employee, and others.
if interests of org and any of constituents differ, lawyer MUST make clear that what?
he represents the org.
if const engagedor intends to engage in action that violates legal obligation to org or violates law, which violation may be imputed to org, and is likely to result in substl injury to org, lawyer MUST what?
proceed as is reasonably necessary in best interests of org
measures taken by lawyer MUST be designed to what?
minimize disruption to org and risk of revealing info relating to org to persons outside of it and may include advising constituent and asking for reconsideration of matter, go to higher authority, request sep legal opinion be sought.
if no change achieved, lawyer may what?
resign, and may also reveal confdtl info if any of rule exceptions apply
lawyer MUST post in the office, in manner visible to c, statement of c rights in form set forth by law. it includes what?
right of c to competent and courteous rep by lawyer, rt to be charged reasonable fees and have them explained before or within reasonable time of engagement, rt to be informed at outset how fee will be computed and manner of billing and rt to be kept informed of status of matter and have questions answered promptly
lawyer charging a fee for rep MUST provide c prior to rep with a written what?
letter of engagement containing explanation of scope of legal services provided, attys fees to be charged, expenses and billing practices, rt to arbitrate fee dispute. letter may be retainer agreement.
if expected fee is under $3000, requirements dont apply where what?
services are the same as others previously rendered to and paid for by c, in domest reltns , where atty admitted in another jurisd, has no office in ny, where no mtrl portion of services are to be rendered in ny.
domestic reltns matter - divorce, separation, annulment, custody, visitation, maintenance, child support, more detailed what is required?
statement of c’s rts and retainer agreement
c MUST be shown sttmt of rts when?
before rep and prior to executing retainer agreement and c MUST sign acknowledgment that he has received sttmt of rights
lawyers in dom reltn matter is not permitted to charge what type of fee?
contingency.
or collect nonrefundable retainer fee.
MAY enter into min fee arrangement providing for payment of specific amt below which fee wont fall based upon handling of case to its conclusion
lawyers may NOT obtain confession of judgment or promissory note, take lien on real prop, obtain security interest from c to secure what?
payment of his fee, unless retainer agreement so provides, an application is made to ct, notice of application has been given to c’s spouse, and ct grants approval
lawyer MUST apply for ct approval of settlement of claim or cause of action belonging to whom?
infant.
any $ collected by atty on his behalf must be deposited in special acct apart from attys personal acct and sttmt of amt received must be delivered or sent by certified mail to infants guardian. payments from special acct may be made only pursuant to court order.
lawyer CANT charge or collect what type of fee in criminal matter?
contingent.
fee prohibited by law or court rule.
fee based on fraudulent billing or nonrefundable retainer fee.
lawyer may charge reasonable min fee if retainer agreement containing min fee clause defines it how?
in plain lang an sets forth circumstances under which fee may be incurred and how it will be calculated.
dom reltn matters, payment of fee CANNOT be contingent upon what?
securing of divorce, obtaining custody or visitation or determined by ref to maintenance, support, equitable distribution
fee disputes bw c and lawyer where amt in question is bw 1k and 50k may be resolved how?
by arbitration pursuant to detailed procedure in law.
arbitration of fee disputes is mandatory when?
c requests it
determination of arbitration panel is what?
final and binding, except that either party may request DE NOVO REVIEW by the courts
mandatory arbitratio of fee disputes DOESNT apply to rep in which matters?
crimina.
dispute below 1k and above 50k.
claims requesting relief other than adjustment of fees.
claims involving substl legal questions.
professional malpractice or misconduct.
claims where attys fees are set by statute, rule, court order, where no services have been rendered by atty for more than 2 years.
dispute involves atty not admitted to practice in ny and having no ny office.
where no material service was rendered in ny.
where request for arbitration is not made by c or his legal rep