NY Professional Responsibility Flashcards
Start of representation.
Based on Client’s reasonble belief that atty-client relationship has begun
Fee mentioned in fact pattern?
Make sure to consider whether fee is excessive or illegal!
What to do on Conflict of interest problem?
identify clearly the clients
determine whether conflict exists (judgment impaired, or loyalty divided)
deicde whether conflict may be wiaved
Gifts to lawyers
Prohibited from soliciting gift
BUT may accept UNSOLICITED gift if gift meets fairness. Subsantial gifts can be accepted but are VOIDABLE by client.
Child clients
Parents paying for representation are NOT the clients
Violation of Rule of Professional Conduct is….
NOT negl per se
NOT malpractice
IS evidence of malpractice
Use of false evidence distinction
PROHIBITED from using evidence KNOWS is false
MAY refuse to introduce evidence that REASONABLY BELIEVES is false.
Represented rule…. if discovered midstream
Terminate convo immediately
ALSO, does not extend to FORMER EEs of represented corp
Advertising: Statemetns creating expectations
Ok ONLY if factually accuate AND accompanied by disclaimer “prior results do not” ….
Also must include “atty advertising”
Certified specialist
MAY state areas lawyer practices
MAY NOT state “specialist”, unless. … . .
MAY say “certified” so long as includes large disclaimer
Exception: Patent Attorney
Scope of Representation
May limit, but cannot be so limited as ot create infficient representation
Settlement offers
must be communicated, unless standing minimum
Same rule applies to blea bargains
Reqs for client under disability (minors, medical)
Maintain ordinary relationship
Appoint guardian if necessary
Permissive revelation of disability as necessary to protect clinet
Counseling on crime and fraud
YES re legal consequences
NO re HOW to commit
Mandatory withdrawal
coextensive wrt taking on client
Conflict
- violation of professional conduct
- harassment
- atty impairment (drug abuse, eg)
- discharge (absolute client right)
withdrawal requires ct apporval if ct proceeding initiated
Penalty (Liq Damages) for atty discharge
NOT allowed
Permissive withdraw (6)
If HARMLESS to client, then PERMITTED even over client objections
If HARMFUL, may still be permitted, if:
1. RB that client is prusing crime or fraud (need not know.
- Services used for crime
- Fundamental disagreemnt (nazi)
- Unreasonable burden (difficult life). Bad fee deal is NOT enough.
- Client doens’t pay
CT PERMISSION!
After withdrawing
Must return all client’s property and unearned fees
Retaining lien for fee, but cannot sell papers or use to harm client
Reasonableness of Fees
NY apply a factor test: 1. time, 2. hourly rate, 3. novelty of matter, 4, amount in controversy.
more AIC, more in risk, more in fee
ok to accept payment for conflicting out the superstar
PER SE INVALID IN
Fee agreements
Can be oral
But must be in writing if over 3000 OR in matters re domestic relations
Contingency fees
Must be in writing for over 3000
NEVER allowed in criminal cases / domestic relations
Must delineate calculation methodology
Retainers (eg. 10k up front)
Upfront payments are still CLIENT’s money, and must be kept in ESCROW
Taking interest in client (stock, mortgage)
reqs 4
is a form of COI, but one that can be waived by client. REQS:
- in writing
- fair and reasonable
- advise client in writing of prduence of indy counsel
- informed consent in writing signed by client
Fee sharing
reqs 3
Allowed in firm
Outside of firm is permitted ONLY IF:
- overall fee is fair
- kickback is dicslosed to client in writing AND
- referrign lawyer must actual PROVIDE SERVICES!!!!~
Disputes over winnings
Keep in escrow
Duty of Confidentiality, 3
- protected by atty client privilege
- likely to be embarrasing/detrimental to cleint
- client request to keep confidential
A-C privilege
ONLY testimonial communications
Actually given confidentially
Actually kept confidential
NOT smoking gun
Exceptions to Atty Cl Privilege
- Crime
- In dipsutes with lawyer
- regarding wills
Permissive disclosures, 6
May means may… Six types
- informed consent by client
- implied by represenation ( talk to partners)
- to prevent REASONABLY CERTAIN death or substantial bodily injury
- prevent client’s criminal act
- disputes with client over fees / malpractice (trial enforced)
- court orders
Conflicts of interest (nonwaivable, reqs to waive, types)
Nonwaivable: 1. direct adversity (T-LL) 2. material limitations on lawyer’s representation
Waivable, reqs: (1) IC in writing, (2) RB that COI will not adversely affect representation, (3) wavier by ALL affected clietns (applies to both former and current clients!!!!!!)
Special COI
related lawyers not allowed to oppose
no sex in domestic relations matters or with control group
Lawyers as witnesses
Test for if conflict with former client
ASK: prior matter related to current matter? Elements:
- scope of prior rep?
- Could lawyer have learned info?
- would info be useful now
IF so, then IRREBUTABLE presumption. Don’t actually take evidence of what lawyer knows (confidential!)
Personal interests of lawyer
Business dealings with client ONLY IF 1. in writing, 2. fair, 3. opportuinty for indy counsel, 4. current clients only.
No literary or media rights PRIOR to conclusion of representation
No proprietry interests (no loans to clients)… DISTINGUISH between advancing costs (okay) versus other loans (not ok, chmampertous)
No wills “I am the heir”
Settlement of malpractice
K limiting liability UNENFORCEABLE;
no LDC
No settlement of malpractice claim with unrepresented client
REQS: (1) advised in writing should seek indy counsel (2) reaosnable opprotunity to do so
Imputations
Cootie rule. If lawyer in firm has conflict, EVERY laywer in firm has conflict.
EXCEPTIONS: 1. clients consent in writing, 2. conflict was personal (sex with client), …….FYI paralegals count…
Immediate screening of new lawyer generally required.
KEYS: consent & screening
Third party interference
Client is client! (beware insurer!)
Orgization-Clients
Requirement to go up the corporate latter (to the Board!
Professional Competence
malpractice vs. discipline, standards
Malpractice ≠Discipline
DISCIPLINE does not require damages. Standard: Clear & Convincing Evidence.
MALPRACTICE: does require damages, Standard: preponderance
Duty of diligence
must withdraw if too busy or too impaired
Knows evidence is false or perjury about to be committed
- attempt to dissuade
- reveal matter to ct and seek to withdraw
- trial by narrative
Evidence tampering
and witnesses
no no no!
no paying witnesses UNLESS they are experts
NO contingency fees for experts.
Beware ex parte statemnets, including to media (no card)
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Media
okay ot say general facts
NOT ok to slam witnesses
Communicating with unrepresented
no deliberate misleading (some undercover ok)
inadvertent communication
must notify sender (priviege gone)
Advertising reqs (4)
May not be false / misleading
No unverified self-promotion
Must disclose office location
No implied partnership unless ACTUAL partnership
KEY Advertising #1 - direct contact
No “real time” direct contact to solicit biz, UNLESS (1) family (2) preexisting client, (3) not for pecuniary gain (pro bono)
Key Advertising #2 - mailings (3 reqs)
General mailing ok, UNLESS lawyer knows that state of recipient would make him incapable of reasoned choice
MUST be labeled as advertising
30 day prohibition on contacting victims of accidents through targeted direct mail.
Admission to bar:
without exam? 5 years
must disclose non-disqualifying crimes will result
including on law school app
PHV…but need DISPUTE… won’t work for corporate lawyers doing deals
Grounds for disbarment
violate rules
criminal acts
fraud/deceit
FYI, need not be related to legal practice!!!! AND can be out of state conduct!!
Squeal Rule
Duty to report known violations going to lawyer’s honesty and fitness
Need ACTUAL knowledge
Vicarious Liability
Supervising attys liable for violations of supervised atty and nonprofessional if supervising atty 1. orders, 2. ratifies, or 3. fails to take remedial action in connection with violation.
No Nuremberg Defense for subordinates
Dividing fees
no fee divisions with non lawyers
okay with parnters (must be lawyers)
corporate firm? no non-lawyers in control
Some referrals okay
Btw lawyers, CPAs, architcts and social workers
Selling your practice
Stop practicing
Notify clients
Sale must be to LAWYER
Fees can’t be altered.
Settleemtn agreement nono
Covenant not to compete. Eg. Lawyer agrees not to bring further suits agiasnt D.
