NY BAR REVIEW professional responsibility 2019 Flashcards
1
Q
professional responsibility law
A
NY RULES OF PROFESSIONAL CONDUCT
2
Q
other statutes and court rules governing atty conduct
A
NY JUDICIARY LAW.
RULES OF CHIEF ADMINISTRATOR OF COURTS.
JOINT RULES OF APPELLATE DIVISION
3
Q
ny state bar association comments
A
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
4
Q
lawyer client relationship
A
scope of representation and allocation of authority bw c and lawyer- rules of prof conduct
5
Q
lawyer may exercise his prof judgment ot waive or fail to assert c’s right or position, but should what?
A
accede to reasonable requests of opposing counsel - sheduling, continuances, small favors, as long as c’s rights are NOT prejudiced
6
Q
lawyer may refuse to participate in conduct he believes to be what?
A
unlawful
7
Q
lawyers should avoid offensive tactics and should treat persons involved in legal process w what?
A
courtesy and consideration
8
Q
while a lawyer MUST abide by c’s decisions on objectives, lawyer is not obligated to play what?
A
hardball
9
Q
lawyer MUST promptly inform c of material developments, including what?
A
settlement or plea offer.
10
Q
it is the c’s right to decide whether to accept what?
A
settlement or plea bargain
11
Q
lawyer MUST withdraw from rep of c when he knows or reasonably should know that what?
A
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
12
Q
lawyer MUST maintain c’s what?
A
confidence
13
Q
what is confdtl info?
A
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
14
Q
lawyer MUST exercise reasonable care to prevent what?
A
his employees and associates from disclosing confdtl info
15
Q
lawyer may NOT knowingly reveal confdtl infoor use such info to what?
A
harm c.
help lawyer.
help third person.
16
Q
disclosure of confdtl info is permitted if what?
A
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
17
Q
lawyer MAY disclose confdtl info to prevent what?
A
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.
18
Q
lawyer CANNOT represent person or entity when?
A
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.
19
Q
lawyer MAY represent c if lawyer reasonably believes that he can provide what?
A
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.
20
Q
lawyer formerly representing c in matter MAY NOT rep another person whos what?
A
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.
21
Q
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?
A
lawyer may NOT rep, unless informed consent in writing
22
Q
sexual relations w c during course of rep is?
A
NOT prohibited, unless dom rel matter.
23
Q
sexual relations w c during course of rep is NOT what?
A
advisable and may lead to impairment of lawyer’s exercise of prof judgment, conf of interest, breachof fiduciary duties.
24
Q
lawyer MUST NOT require/demand sexual relations w any person as what?
A
condition of entering or continuing prof reltshp or employ coerciion in entering into sex rltns incident to prof rep.
25
sexual relations w c- doesnt apply to what?
ongoing consensual sexual reltns that predate initiation of lawyer c reltshp
26
lawyers in same firm MAY NOT rep a c when what?
any of them practicing alone would be prohibited from doing so
27
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
28
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.
29
in some cases, risk may be so great that confl CANNOT be cured by what?
c consent
30
firm MUST keep detailed records of what?
c base and maintain system for checking ag any conflicts in rep
31
lawyer for organization represents whom?
the organization, not constituents- officer, director, employee, and others.
32
if interests of org and any of constituents differ, lawyer MUST make clear that what?
he represents the org.
33
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
34
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.
35
if no change achieved, lawyer may what?
resign, and may also reveal confdtl info if any of rule exceptions apply
36
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
37
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.
38
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.
39
domestic reltns matter - divorce, separation, annulment, custody, visitation, maintenance, child support, more detailed what is required?
statement of c's rts and retainer agreement
40
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
41
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
42
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
43
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.
44
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.
45
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.
46
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
47
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.
48
arbitration of fee disputes is mandatory when?
c requests it
49
determination of arbitration panel is what?
final and binding, except that either party may request DE NOVO REVIEW by the courts
50
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
51
lawyer in possession of fund or other prop belonging to another person in connections w his practice of law is a what and MUST what?
fiduciary.
| misappropriate or commingle such funds w lawyer's own funds.
52
lawyer must keep funds received by atty in a fiduciary capacity and belonging to c or beneficial owner incident to lawyer's practice of law where?
special acct separate from any of lawyer's or law firm's business, personal, fiduciary accts, accts held as executor, guardian, trustee, receiver
53
acct, checks, deposit slips MUST all contain language identifying it as?
escrow or trust
54
those funds MUST be maintained in bank taht agrees to provide what?
dishonored check reports to lawyers fund for c protection.
55
funds belonging in part to lawyer and in part to c MUST be kept where?
in separate acct, but lawyer MAY withdraw part belonging to lawyer unless c disputes his rt to funds, in which case dispute MUST first be resolved
56
atty has discretion to determine whether such funds must be what?
deposited in non interest or in interest bearing accts.
57
funds deposited in interest on lawyer acct / IOLA are ____ funds
fiduciary.
too small an amt or likely to be held too short a time to justify sep acct in which interest would be paid to beneficial owner.
58
STATE FINANCE LAW establishes state IOLA fund that receives what?
interest on atty iola accts to assist in funding of civil legal services for low income people
59
all trust acct withdrawals MUST be made only to named payee and NOT to what?
cash
60
if firm dissolves, former members MUST make appropriate arrangements to what?
maintain these records
61
lawyer MUST promptly notify c or 3rd party of receipt of funds in which c or third party have what?
an interest, safeguard funds, maintain complete records of funds, promptly pay and deliver funds to c or 3rd party that c or 3rd party it entitled to receive
62
lawyer MUST maintain and keep for ____ years after events that they record all records of any kind of what?
7.
deposits, withdrawals, disbursements of funds that concern laywer's practice of law, retainer agreements, stttmts and bills rendered to c's, copies of retainer and closing sttmts filed w office or court admin
63
records MUST be produced in response to notice or subpoena in connection w any what?
investigation by appropriate discipl authority
64
lawyer who failes to maintain records is subject towhat?
discipl proceedings.
65
only lawyer licensed to practice in ny may be an authorized signatory
on a trust acct
66
lawyer advertising
broadly permitted as long as is truthful and not deceptive or misleading.
67
may a lawyer make sttmt reasonably likely to create an expectation about results?
YES
68
may a lawyer compare his services w services of other lawyers and describe quality of services, not false deceptive or misleading and factually support by lawyer as of date on which publishes/disseminates?
YES
69
can a lawyer use testimonials of c's?
YES, w written consent
70
can lawyer use paid endorsments and actors?
YES, as long as discloses
71
advertising of atty MUST be labeled as what?
atty advertising
72
what is the disclaimer the advertising shall contain?
prior results dont guarantee similar outcome
73
does a lawyer have to honor fees advertised?
YES
74
may a lawyer compensate a person or organization for recommending clients?
NO
75
may a lawyer accept referrals from legal service org's, bar associations, and other non profit org's?
YES
76
may a lawyer enter into agreemetns w other lawyers to refer c's to each otehr?
YES
77
may a lawyer solicit in person, phone, real time computer accessed communication?
NO.
| recipient has to be close friend, relative, former client, existing client.
78
may lawyer use targeted communications to solicit clients in the form of mailing?
YES, must be filed w appropriate atty disciplinary committee
79
may lawyer use targeted communications to solicit clients in the form of website, professional card, announcement?
YES
80
may lawyer use targeted communications to solicit clients in the form of specific incident involving potential claims for personal injury or wrongful death?
NO.
| only after 30th day after incident.
81
lawyer may use these, provided dont violate statute or court rule:
```
website.
professional card.
professional announcement card.
office sign.
letterhead.
professional notice.
```
82
lawyer may not practice under a ____ name
trade
83
lawyer may not practice under a name that is misleading to what?
identity of lawyer.
firm name.
contain names other than lawyers in the firm. contain retired lawyers.
contain deceased lawyers.
84
domain name phone number permitted?
YES
85
moniker phone number permitted?
YES
86
in course of representing client, lawyer must NOT knowingly make what type of sttmt to 3rd person?
false sttmt of fact or law
87
if lawyer incorporates or affirms a sttmt of another person that lawyer knows is false, what has occured?
a misrepresentation
88
may a lawyer communicate w a party that he knows is represented by another lawyer in the matter, w/o prior consent of that other lawyer?
NO
89
may a lawyer direct a c to communicate w a represented person provided advance notice is given to represented person's counsel?
YES
90
lawyer may NOT bring or defend a proceeding, or assert or controvert an issue therein, unless there is what?
a basis in law and fact for doing so, NOT frivolous.
91
lawyer's conduct is frivolous if:
knowingly advances claim/defense unwarranted under existing law, except good faith arguments to modify the law.
conduct has no reasonable purpose other than to delay or prolong resolution of litigation or harass or maliciously injure another.
OR
lawyer knowingly asserts material factual sttmts that are false.
92
papers served on another party or submitted to court MUST be signed by whom?
lawyer.
| the signature constitutes a certification by the lawyer that the paper / contention therein is not frivolous
93
lawyer whose conduct found to be frivolous is subject to what?
imposition of expenses reasonably incurred and reasonable atty's fees and sanctions up to 10k.
94
in personal inj, property damage, wrongful death, penalty for frivolous is what?
costs and atty's fees up to 10k
95
if, during civil case or criminal case - lawyer's failure, with good cause, to appear in court at scheduled time and place, then what?
costs and sanctions up to 2500
96
lawyer may NOT use means that have no substl purpose other than to what?
delay or prolong the proceeding or cause needless expense
97
fair competition in the adversary system prohibits lawyer from what?
suppress evidence that he is legally obligated to produce.
advise or cause person to hide for purpose of making person unavailable as witness.
knowingly use perjured testimony or false evidence.
disregard ruling of tribunal, except in good faith to test validity of ruling.
assert before tribunal personal knowledge of facts in issue except when testifying as witness.
ask question he has no reasonable basis to believe is relevant and is intended to degrade a witness or other person.
threaten to present criminal charges solely to obtain advantage in civil matter
98
lawyer may NOT offer to pay witness contingent on content of witness' what?
testimony or outcome of matter.
99
lawyer may pay reasonable compensation to witness for what?
loss of time and reasonable related expenses incurred in testifying and may pay reasonable fee for professional services of expert
100
lawyer MUST file sttmt w _____ every ___ years
office of court admin.
| 2.
101
lawyer not retired from practice of law MUST pay what?
registration fee $375 w filing
102
sttmts are available for public inspection, excluding what?
lawyer's home address, social security number, race, gender.
103
lawyer MUST certify in registration sttmt that he is in full compliance w what?
continuing legal education requirements, retention of certs of attendance, reporting of pro bono services and contributions, outstanding child support obligations
104
applicant for admission to practice law MUST register by completing what?
form registration and pay $375 biennial fee. instructions regarding registration will be provided to applicant at time theyre certified by state board of law examiners to appellate division / rules of court of appeals
105
newly admitted lawyer MUST complete ____ hours of accredited transitional education within first 2 years of admission to bar.
32.
each year MUST include 16 hours -
3 ethics and professionalism, 6 skills, 7 practice management and areas of professional practice.
formal courses and programs approved by continuing legal education board.
nontraditional formats not permitted.
106
no newly admitted lawyers MUST complete ____ credit hours of continuing legal education, accredited by cle board, every two years
24.
at least 4 ethics and professionalism.
from 7.1.18 - 1 hour diversity, inclusion, and elimination of bias.
may be earned in non traditional formats - cd, self study, online, as well as formal courses. credit also earned for speaking and teaching activities, attending law school courses, judging law school competitions, legal writing, pro bono legal services
107
lawyer may NOT violate or attempt to violate any rules of professional conduct nor engage in any conduct involving what?
dishonesty.
fraud.
deceit.
misrepresentation.
conduct prejudicial to administration of justice.
unlawfully discriminate in practice of law.
hiring, promoting, determining conditions of employment on basis of age, race, creed, color, national origin, sex, disability, marital status, sexual orientation.
108
violations of rules may be reported to whom?
atty disciplinary committee of appropriate appellate division dept and may result in censure, suspension, disbarment
109
laywer may NOT practice law where?
in jurisdiction in violation of regulations of legal profession in that jurisdiction
110
lawyer may NOT aid a non lawyer in what?
unauthorized practice of law
111
lawyer who provides non legal services to person and its not distinct from legal services provided to that person is subject to what?
rules for both legal and non legal services
112
even if non legal services are distinct from legal services, the non legal services still would be subject to rules if person receiving services could reasonably believe that what?
the non legal services are subject of lawyer client relationship
113
lawyers and law firms may NOT offer non legal services through non lawyers as part of services of lawyer or law firm, but may what?
```
enter into contractual relationship, cooperative business arrangements, w non legal professionals or firms to provide non legal services for clients if profession is included in a list establishedin joint appellate division rules.
architect.
accountant.
professional engineer.
land surveyor.
certified social worker.
```
114
laywer may NOT handle legal matter he is what?
NOT competent to handle, w/o associating w lawyer who is competent to handle it
115
lawyer may NOT intentionally what?
fail to seek objectives of c through reasonably available means permitted.
OR.
prejudice or damage c during course of rep.
116
every lawyer should aspire to provide at least ___ hours of qualifying pro bono legal services each year to poor persons and to anually contibute financially to whom?
50.
organizations that provide legal services to poor persons in an amt at least equivalent to amt typically billed by lawyer for 1 hour of time.
117
what do pro bono legal services include
professional legal services to persons who are financially unable to compensate counsel and professional services to charitable, religious, civic and educational organizations in matters designed predominantly to address needs of poor persons.
118
appropriate organizations for financial contributions are what?
organizations primarily or substantially engaged in provision of legal services to poor
119
lawyer who under auspices of programs sponsored by court, bar assocation, govt agency, or not for profit legal services organization provides short term legal services to c w/o expectation by either the lawyer or the c that he will provide continuing rep in the matter is subject to what?
requirements of provisions of rules governing conflicts of interest only if lawyer has actual knowledge at time of commencement of rep that rep of c involves conflict of interest
120
applicants seeking admission to bar MUST complete ___ hours qualifying pro bono legal services prior to seeking admission.
50.
services MUST be law related and assist in provision of legal services w/o charge for low income or disadvantaged individuals, not for profit organizations, other individuals, groups and organizations seeking to secure or promote access to justice, or in public service for various govtl entities.
121
all pre admission pro bono work must be supervised by whom?
persons designated in rule and proof of completion MUST be filed w application for admission to practice in appellate division where admission is sought.
applicants for admission on motion w/o exam are exempt from requirement.
122
what is the pro bono scholars program
it permits students in their final year of law school to devote their last semester of study to performing pro bono service for poor through approved externship program, law school clinic, legal services provider, law firm or corp. students are permitted to take ny bar exam in feb during final year of study and upon successful completion of program and any other graduation and admission requirements, will be eligible for accelerated admission to bar.
123
what is the skills competency requirement for bar admission?
law school study.
requirement applicable to applicants for admission who commenced law study after 8.1.16. applicants qualifying for bar exam after completion of LLM are subject to requirements if commenced LLM after 8.1.18. applicants for admission motion w/o exam are exempt,as are applicants qualifying to take bar exam under rule 520.4, and 5.
124
lawyer competence is directly related to what?
lawyer well being
125
many law students and lawyers suffer from what?
chronic stress,depression, substance use/abuse. ny bar association lawyer assistance program provides education and assistance to lawyers, judges, law school students, immediate family members who are affected by problem of substance abuse, stress, depression, mental health issues.
126
goal of lawyer assistance program
prevention, early identification, intervention of problems that can affect prof conduct and quality of life. those are free andconfdtl.
early identification of impairment.
intervention and motivation of impaired attys to seek help.
assessment, evaluation, development of appropriate treatment plan.
referral of impaired attys to community resources, self help groups, outpatient counseling, detoxification and rehabilitation services.
info and referral for depression.
training programs on alcoholism, drug abuse, stress management.
