process and punishment Flashcards
regulation
a) rules governing conduct of NY attys found in NY Rules of Professional Conduct
b) Complaints involving NY atty’s conduct are investigated by a grievance committee in one of four depts of appellate division
- -> in addition to a disciplinary investigation, attys are also subject to malpractice claims by clients and 3Ps in NY SC
c) types of discipline that can be imposed on NY atty:
1) admonition (letter of caution)
2) public or private censure (imposed by ct)
3) suspension (ct-imposed)
4) disbarment (ct-imposed)
d) violation of a NY rule of professional conduct is some relevant evidence of malpractice
regulation after admission
a) self-regulation profession, with 2-pronged duty when you know of another lawyer’s violation of rules that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer
1) must report knowledge of violation to a grievance committee or ct, (even if members in same firm) AND
2) cooperate in the investigation
b) where a lawyer learns of another lawyer’s rule violation during the representation of a client, duty of confidentiality to client will trump duty to report misconduct to bar and lawyer may not reveal information without client’s consent
NY lawyers licensed in more than one state (multi-jx practice)
a) discipline imposed upon lawyer by another state permits NY to impose reciprocal discipline for same misconduct (so NY lawyer can be disciplined by NY’s disciplinary authority for any misconduct, no matter where it occurs)
b) choice of law in disciplinary matters:
1) if conduct occurred in connection with a proceeding before a tribunal in which the lawyer was admitted (generally or pro hac vice), rules of jx in which ct sits govern lawyer’s conduct
2) for any other conduct, such as transactional matter, NY’s rules will govern if lawyer is only admitted in NY. If lawyer is admitted in NY and another state, rules of state in which lawyer principally practices will apply unless the predominant effect is in another state, in which case other state’s rules apply
restrictions on lawyers
a) lawyer shall not aid non-lawyer in unauthorized practice of law
b) lawyer shall not enter into a partnership, employment, or similar type of agreement that restricts the right of the lawyer to practice after termination of the relationship. Exceptions: an agreement concerning benefits on retirement
c) a lawyer may not participate in settlement of a client’s matter that restricts the lawyer’s right to practice in the future
lawyer-client relationship
a) decision-making:
–client-makes decisions of substantive legal import (commencing an action, settlement, plea, appeal, testify, etc.) (so ask client and follow his direction) (if opposing counsel bribed jury, report atty but still follow client’s direction on whether or not to appeal)
NOTE: if client loses ability to make a clear decision or is a minor, have a guardian appointed for client and guardian makes final call
–atty’s decisions-strategy, procedure, and tactics (discovery methods to use, interrogatories, depositions, granting adjournments, etc.)
in NY, atty can take reasonably necessary protective action and seek to have guardian appointed for a client if:
i) client has diminished capacity
ii) is at risk of substantial physical, financial, or other harm
iii) client cannot adequately act in her own interests
b) accepting and withdrawing from representation:
lawyers have a right to reject all cases, although they should do their fair share of pro bono work.
i) atty MUST withdraw when:
-lawyer knows representation will result in violation of rules or of law
-lawyer suffers physical or mental disability
-client fires lawyer
-lawyer knows client is taking steps solely to harass or maliciously injure another
ii) atty MAY withdraw when:
-client insists on presenting a frivolous claim or defense
-client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent
-client deliberately disregards an agreement or obligation to the lawyer as to expenses or fees
-client uses lawyer’s services to perpetrate a crime or fraud
-lawyer’s continued employment is likely to result in violation of a law or disciplinary rule
-lawyer’s inability to work with co-counsel indicates that best interests of client are served by withdrawal
-client insists on taking action with which lawyer has a fundamental disagreement
-client fails to cooperate in representation
-withdrawal can be accomplished without material adverse effect on the client
c) competence
- lawyer should only take those cases for which he is competent
- competence includes: physical and mental competence, competence in substantive law, having sufficient time to devote to matter
- can overcome lack of competence by association with a competent lawyer or becoming competent in an area
- lawyer can limit scope of representation of a client if: limitation is reasonable AND client gives informed consent
communication about legal services and advertising
a) firm name
- must not be misleading; no trade names
b) specialization
- lawyer or law firm may publicly identify one or more areas of law in which lawyer or law firm practices, or may state that the practice of lawyer or law firm is limited to one or more areas of law
- lawyer may not hold herself out as a specialist unless she is certified as a specialist in particular area of law by a private org approved by ABA or another state
c) advertising
- any public or private communication made by or on behalf of a lawyer or law firm about lawyer or law firm’s services, the primary purpose of which is for retaining the lawyer or law firm. EXCEPTION: communications to existing clients
- computer-accessed communications can constitute advertisements (includes any communication by or on behalf of a lawyer disseminated through use of a computer/electronic device such as website, blog, email, pop-ups, chat rooms, listservs, IMs, etc.)
- atty advertisements must include:
(i) name, principal law office address, and telephone number of law firm whose services are being offered. telephone number may contain a domain name, nickname, moniker, or motto that does not otherwise violate the rule
(ii) any words or statements required by rules must be clearly legible and capable of being read by average person and understood if spoken aloud. in case of web site, required words or statements shall appear on home page.
(iii) the label “atty advertising” must appear on the first page of any direct mail or on home page of atty website. if communication is self-mailing brochure or postcard, “atty advertising” shall appear therein. in case of electronic mail, subject line shall contain notation “ATTORNEY ADVERTISING”
- ads may also include (but must be true and not misleading): educational background and degrees, dates of admission to bar and areas of practice, public offices and teaching positions held, memberships in bar associations and other professional organizations, foreign language fluency (must actually be fluent), names of regularly represented clients (if client consents in writing), acceptable credit arrangements and participation in prepaid servies programs), fees (legal, contingent,range of fees hourly, fixed fees; if do so, must abide by those rates); bona fide professional ratings (must be unbiased and nondiscriminatory);
and assuming compliance with all other rules, ad MUST contain disclaimer “Prior results do no guarantee a similar outcome.” and can be factually supported by lawyer as of date of publication.
AD MAY also contain:
i) statements that are reasonably likely to create an expectation about results lawyer can achieve
ii) statements that compare a lawyer’s services with those of another lawyer
iii) testimonials or endorsements of clients or former clients
iv) statements describing or characterizing the quality of lawyer’s or law firm’s services
Ads MAY NOT include:
- paid endorsement of or testimonial about lawyer/law firm without disclosing that person is being compensated
- actors to portray the lawyer, firm members, clients, or events without disclosure
Domain names: can use a domain name that does not include name of lawyer/law firm provided that:
- all pages of web site clearly and conspicuously include actual name of lawyer/law firm
- lawyer/law firm in no way attempts to engage in practice of law using domain name
- domain name does NOT imply an ability to obtain results in matter
Misleading:
truthful statements can be misleading if they omit a fact necessary to make lawyer’s communication, considered as a whole, not materially misleading. A truthful statement is also misleading if there is a substantial likelihoodthat it will lead a reasonable person to formulate a specific conclusion about lawyer or lawyer’s services, or about result lawyer can achieve for which there is no reasonable factual foundation
TV and radio ads must be approved by lawyer, include name, address, telephone number AND kept for at least 3 years following initial dissemination
ADs contained in a computer-accessed communication shall be retained for a period of not less than one year
soliciting clients
all solicitations are ads and they are subject to same rules as ads + additional restrictions:
rule: lawyer shall not engage in solicitation, meaning any ad initiated by or on behalf of lawyer/law firm that is directed to or targeted at a specific person, or their family or legal representatives, the primary purpose of which is the retention of lawyer/law firm, and a significant motive for which is pecuniary gain by:
-in-person communication
-live telephone communication
-real time or interactive computer-accessed communication (IMs and conversational communication, not websites, popups or emails)
UNLESS recipient is
-a close friend
-a relative
-a former client
-an existing client
Exceptions: no solicitations in ANY form of communications whatsoever is permitted if:
- recipient has made known a desire not to be solicited
- communication is false or misleading
- solicitation involves coercion, duress, or harassment
- lawyer intends or expects, but does not disclose, that the legal services necessary to handle the matter competently will be performed primarily by another lawyer who is not affiliated with soliciting lawyer as a partner, associate, or of counsel
targeted mail
1)may send direct mail to groups of people likely to need legal services
2) in case of self mailing brochures or postcards, the words “atty advertising” shall appear on it; words appear in subject line if email
- if retainer agreement included with solicitation, words “do not sign” shall appear on client signature line
- these provisions apply to lawyers not admitted in NY who solicit retention by NY residents
- solicitations directed to specific recipients must also be filed, at the time of its dissemination, with atty disciplinary committee of judicial district or judicial dept wherein lawyer or law firm maintains its principal office. If solicitation was prompted by a specific occurrence involving or affecting a recipient (ie plane crash), lawyer must disclose how atty learned recipient’s identity and need for legal services. List of names and addresses must be kept for 3 years.
- no solicitation for a personal injury or wrongful death matter by lawyer or any agent/representative before 30th day after incident, unless a filing is required in less than 30 days, in which case no unsolicited communication before 15th day after the incident
improper solicitation
if lawyer engages in improper solicitation, she cannot accept employment resulting from such communication
