Prof Resp Flashcards
Statute
New York Rules of Professional Conduct (“NYRPC”)
Who Investigates Complaints
A grievance committee in one of the four appellate division departments
Four types of discipline
- Admonition
- Public or private censure (imposed by courts only)
- Suspension (courts only)
- Disbarment (court only)
Who Can Bring Malpractice Claims and Where?
Clients or third parties in Supreme Court.
Violation of a NYRPC in a Malpractice Suit
“Some relevant evidence of malpractice”
Lawyer must report
a violation of the Rules that raises a SUBSTANTIAL QUESTION as to that lawyer’s HONESTY, TRUSTWORTHINESS, or FITNESS AS A LAWYER
1. report knowledge of the violation to a grievance committee or court
AND
2. cooperate in the investigation
“self-regulating profession”
Confidentiality vs. Duty to Report
Duty of client confidentiality trumps duty to report - must get client’s consent if reporting would require divulge confidential information.
Reciprocal Discipline
Discipline imposed upon the lawyer by another state permits NY to impose reciprocal discipline for the same misconduct.
NY Long Arm Discipline
A lawyer admitted to NY State can be disciplined by NY’s disciplinary authority for any misconduct, no matter where it occurs.
*No double jeopardy rule for lawyer discipline.
Choice of Law - Litigation
The rules of the jurisdiction in which the court sits govern the lawyer’s conduct.
Choice of Law - Transactional
- If lawyer is ONLY admitted to NY -> NY rules apply
- If lawyer is admitted to NY and another state -> rules of the state lawyer PRINCIPALLY PRACTICES apply
UNLESS the conduct’s predominant effect is in another state, in which case the OTHER state’s rules will apply.
A lawyer shall not aid a non-lawyer in the…
UNAUTHORIZED PRACTICE OF LAW
*including a non-NY lawyer regarding NY law.
Agreements that restrict a lawyer’s right to practice after the end of representation
Not allowed!
e.g. non-compete
Agreement to restrict lawyer’s right to practice EXCEPTION
Retirement benefits lost if he competes
Settlement restrictions on the lawyer
A lawyer cannot agree to limit future representation as part of a settlement - even if the client wants it.
Lawyer-client relationship
Client’s Decisions Include:
Those of substantive legal import
- Commencing an action
- Settlement
- Criminal plea or going to trial
- Appeal
- Jury or bench trial
- Testifying in a criminal case
Lawyer’s Decisions include
Strategy, Procedure, & Tactics
- Discovery methods
- Interrogatories
- Depositions
- Granting adjournments that do not prejudice the rights of the client
Client’s Incapacity & Decision Making
If the client loses the ability o make a clear decision or is a minor, lawyer should have a guardian appointed for the client.
Incapacitated Client Opposes Guardian Appointment
Lawyer seek guardian against client’s wishes if:
- Client has diminished capacity
- Is at risk of substantial physical, financial, or other harm; and
- cannot adequately act in her own interests.
Deciding to take a case
Lawyers have a right to reject any case although they should do their fair share of pro bono
When MUST a lawyer withdraw from representation
- Lawyer KNOWS representation will result in a violation of a rule or law.
- Lawyer suffers physical or mental disability
- Client fires lawyer
- Lawyer knows client is taking steps SOLELY to harass or maliciously injure another.
When MAY a lawyer withdraw from representation
- Client insists on presenting a frivolous claim or defense.
- Client persists in a course of actions 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 used lawyer’s services to perpetrate a crime or fraud.
- Lawyer’s continued employment will LIKELY RESULT in the violation of a rule or law.
- Lawyer’s inability to work with co-counsel indicates that the best interests of the client are served by withdrawal.
- Client insists on taking action with which the lawyer has a fundamental disagreement
- Client fails to cooperate in the representation.
- Withdrawal can be accomplished without material adverse affect on the client
Competence: A lawyer should only take those cases he is …
Competent to handle:
- Physical and mental competence
- Competence in the substantive law
- Having sufficient time to devote to the matter.
Overcoming subject matter competence
Associating with a competent lawyer OR becoming competent in an area.
Limiting scope of representation
OK if:
1. Limitation is reasonable
2. Client gives INFORMED CONSENT
EXC: Can limit rep to worker’s comp claim, provided client is informed he may have additional rights to pursue.
Firm Names
- Must not be misleading
2. No trade names
Specialization
May publicly identify fields of practice.
May hold self out as “specialist” only if approved by organization approved by ABA
Advertising - Defined
Any public or private communication made by or on behalf of a lawyer or firm about the lawyer or firm’s services, the primary purpose of which is for RETAINING THE LAWYER.
Advertising - Exception
communications to existing clients or other lawyers.
Advertising - Computer Communications
Can be advertisements
Attorney Advertisements MUST include
- Principal law office address & phone number
- All words must be clearly legible and understood by the average person
- The label “Attorney Advertising” on the first page, home page, or subject line.
Attorney Advertisements MAY include:
- Education, backgrounds, degrees
- Dates of admission to bar, areas of practice
- Bar memberships
- Public offices, teaching positions
- Foreign language proficiency
- Names of rep’d clients, if they consent
- Credit arrangements, prepaid programs
- Fees (must abide by)
- Bona fide professional ratings
- If ad ays “prior results to not guarantee a similar outcome, may contain statements reasonably likely to contain expectation of results, comparisons to other lawyers, testimonials, quality of firm and services…
Advertisement May NOT Include
- A paid endorsement or testimonial without disclosing compensation
- Actors to portray the lawyer, firm members, clients or events without disclosure.
Domain names
If domain name does not include lawyer/firm name, must:
- all pages must contain name of firm
- lawyer/firm does not attempt to engage in practice of law using domain name
- does not imply ability to obtain results
Misleading Truthful Statements
If they omit a material fact, or
if there is a substantial likelihood that it will mislead a reasonable person
Television & Radio Ads: Approval & Retention
Must be approved by the lawyer and retained for at least 3 years after dissemination.
Computer Ads: Retention
Not less than 1 year.
Soliciting Defined
An advertisement that is directed to a specific person for the primary purpose of retention, and a significant motive for which is pecuniary gain
Soliciting vs. Advertisement
All solicitations are advertisements & subject to the same rules as ads
PLUS special rules
Soliciting: Additional Rules
Solicitation may not be:
- In person communication
- Live telephone communication
- Real time computer communication
Solicitation - Exceptions
- Close friend
- Relative
- Former client
- Existing client
Solicitation - Exceptions to the Exceptions
No solicitation to anyone IF:
- Recipient has made known a desire not to be solicited
- the communication is false or misleading
- solicitation involves coercion, duress, or harassment
- legal services will be performed by an unaffiliated lawyer
Solicitation - Targeted Mail
Lawyer may send direct mail to GROUPS of people likely to need legal services
Must conform to ad rules AND
- filed with the disciplinary grievance committee
- not before 30 days after the incident if personal injury (unless filing required before that, then 15 days)
- disclose how lawyer obtained identity
Solicitation - Self-mailing brochures/postcards
Caption “attorney advertising”
If agreement - caption “do not sign”
Applies to non-NY attorneys soliciting in NY.
Solicitation - consequences of improper
Cannot accept employment resulting from communication
Duty of Confidentiality - Defined
A lawyer may not knowingly disclose confidential information, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person
Confidential Information - Defined
Information gained during or relating to the representation of a client that is:
- Protected by the attorney-client privilege; or
- Likely to be embarrassing or detrimental to the client; or
- Information requested to be kept confidential
Duty of Confidentiality - Exceptions
Lawyer MAY reveal confidential information to the extent necessary when:
- Permitted or required by law, rules, or court order
- To obtain legal or ethical advice for lawyer
- To prevent client from committing a crime
- To prevent reasonably certain death or substantially bodily harm
- To withdraw written or oral representation based on materially inaccurate information or used to further a crime or fraud.
- Disclosure of information necessary to
a. collect a fee
b. defend self from accusation of wrongful conduct - Client has expressly or impliedly consented
Duty of Confidentiality - Must Reveal Confidential Information
Lawyer knows that a person intends to engage in criminal or fraudulent conduct related to a TRIBUNAL MUST take reasonable REMEDIAL MEASURES including disclosing confidential information.
Knows that client testified falsely - ask him to correct, warn him, then lawyer must correct the testimony! (AS IF)
Prospective Client - Defined
A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter
protected by duty of confidentiality
Prospective client conf - EXC
- Communicates unilaterally, without reasonable expectation of forming relationship.
- Communicates for purpose of disqualifying lawyer from case.
Retainers (2 Types)
- Advanced payment that belongs to client and goes into trust account
- General retainer that belongs to attorney and goes into attorney’s account.
Required Accounts (2 Types)
- Operating account (firm’s/lawyer’s money); and
2. Client trust (only client’s money)!
Client Trust Account (3 rules)
- Account must be in a bank in New York.
- Funds to maintain the account are the ONLY lawyer funds that can be put in a client trust account
- Client funds must be placed in a bank that will provide DISHONORED CHECK REPORTING.
Trial Publicity - Statements Not Allowed
Ones that a REASONABLE lawyer would expect to be disseminated and have a substantial likelihood of materially prejudicing a proceeding.
- identification of witnesses
- criminal record of a witness
- confession or guilty plea
- inadmissible evidence
Trial Publicity - Allowed Statements
Dry facts of the case
Warning of danger - reason to believe of a likelihood of substantial harm to a person or public interest
In criminal case - info necessary to aid apprehension of accused
Trial Publicity - Right of Reply
Lawyer may make a statement to the extent necessary to protect a client from substantial prejudicial effect of recent publicity not initiated by lawyer or client.
Non-meritorious Claims
A lawyer shall not bring or defend a proceeding unless there is A BASIS IN LAW AND FACT that is NOT FRIVOLOUS
Conflicts of Interest - Basic Rule
A lawyer shall not represent a client if a reasonable lawyer would conclude that either:
- the representation will involve the lawyer in representing DIFFERING INTERESTS; or
- there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affect by the lawyer’s own FINANCIAL, BUSINESS, PROPERTY, or OTHER PERSONAL INTERESTS.
Conflicts of Interests - Conflict Waiver
Only if:
- Lawyer reasonably believes he can competently represent ALL AFFECTED clients;
- Representation is not prohibited by law;
- Representation does not involve assertion of claim by 1 client against another; and
- Each client gives INFORMED CONSENT to conflict CONFIRMED IN WRITING.
Conflict Imputation - Basic Rule
If 1 lawyer is conflicted then ALL lawyers in the firm are conflicted.
Lawyer as Witness - General Rule
A lawyer shall not represent a client before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact.
Lawyer as Witness - Exceptions
- Testimony relates to an uncontested matter
- Testimony relates solely to value of legal services (e.g. fee-shifting provision)
- Relates to a matter of formality
- Disqualification would create a substantial hardship on the client
- Testimony is authorized by a tribunal.
Lawyer as Witness - Imputation
Not imputed to rest of firm, BUT
A layer may not act as an advocate before a tribunal if another lawyer in the firm is likely to be called as a witness on a SIGNIFICANT ISSUE and it is apparent that the testimony may be PREJUDICIAL TO THE CLIENT.
Media Rights
A lawyer is prohibited from entering into or even negotiating any arrangement regarding the media rights PRIOR TO THE CONCLUSION OF THE CLIENT’S ENTIRE MATTER.
Interest in the Subject Matter of Representation
A lawyer cannot acquire a proprietary interest in the cause of action or subject matter of litigation
Subject Matter Interest - Exception
- A lien authorized by law to secure fees or expenses
2. Reasonable contingent fee
Subject Matter - Domestic Relations Matter
Retainer agreement may include a SECURITY INTEREST, CONFESSION OF JUDGMENT, or OTHER LIEN, to secure lawyer’s fee ONLY IF:
- in writing signed by client
- the judge approves it
- after notice to the adversary
* can’t foreclose on mortgage on marital residence while spouse uses it as main residence
Financial Assistance to the Client
A lawyer cannot guarantee or advance financial assistance to the client
Client Financial Assistance - Exceptions
A lawyer may
- ADVANCE court costs & expenses of litigation and seek reimbursement
- PAY court costs & expenses of litigation if client is indigent or pro bono without reimbursement.
Fee Payment by Third Party
Not allowed UNLESS
- Client gives informed consent
- No interference with lawyer-client relationship
- Confidential information is not provided to the payor.
Sex with Clients
- Can’t demand sex as a condition for representation.
- Not allowed at all in a domestic relations matter during the course of the lawyer’s representation.
* In other situations, sex with clients may still create a conflict of interest.
Business with Clients - General Rule
A lawyer cannot enter into a business transaction with a client if they have
- differing interests; AND
- the client expects the lawyer to exercise professional judgment therein for the benefit of the client
Business with Clients - Exceptions
Allowed if
- Transaction is fair and reasonable to the client disclosed in writing;
- client is advised in writing about seeking another lawyer and is given time to do so
- the client gives informed consent to the essential terms and the lawyer’s role in the transaction.
Lawsuit between Current & Former Clients
Lawyer may represent except
1. When your current client wants to sue your former client in a matter that is substantially related to your previous representation;
OR
2. during the prior representation you learned confidential information that is now relevant to the action by the current client.
Suits between Current & Former Clients Exception
Representation allowable if
1. confidential information has become publicly known;
OR
2. the client consents to the representation
Representing an Organization - Who’s the Client
The ENTITY is the client (corporation, partnership, etc); NOT the directors, officers, employees, members, shareholders, etc
Representing an Organization - Knowledge of wrongdoing by officer
If a lawyer knows that the individual is engaged in or intends to act, in a matter related to the representation, in a manner which:
- is a violation of law that reasonably might be imputed to the org, AND likely to result in substantial injury to the org,
THEN take resonable measures:
1. ask to reconsider
2. advise seeking separate legal opinion
3. referring to higher authority
4. quitting
Limiting Liability & Settling Malpractice Claims
- Lawyer can’t contract with client to prospectively limit lawyer’s liability to a client for professional malpractice
- A lawyer shall not settle a claim for legal malpractice with a client or former client unless the he is ADVISED IN WRITING of the DESIRABILITY OF SEEKING INDEPENDENT LEGAL COUNSEL.
Statement of Clients Rights
Must be posted in every attorney office in a manner visible to clients
Letter of Engagement
Representation engagement MUST BE IN WRITING and include:
1. Scope of representation
2. Explanation of fees and expenses
*3. Notice of client’s right to arbitrate fee disputes
When there is significant change in fees or services -> new letter of engagement.
Letter of Engagement - Exceptions
- Fees expected to be less than $3,000
- Representation are of the same general kind as previously rendered and paid for
- Domestic relations matters
- No material portion of the services will be rendered in New York.
Domestic Relations Matters
- Fee agreement must be in WRITING SIGNED BY THE LAWYER AND CLIENT
- Provide client with a statement of client rights and responsibilities
- No non-refundable fees
- Can’t use contingency fee to COLLECT unpaid alimony or child support (even though it’s a judgment enforcement matter).
- Billing must be sent out every 60 days and return any unused portion of the retainer at the conclusion of the case.
Contingency Fees - Limits
- Must be reasonable; and
2. If personal injury or wrongful death, CANNOT exceed 33%.
Contingency Fees - Agreement
- Method of determining fee including contingency in the event of settlement, trial, and appeal
- Litigation and expenses to be deducted
- In PI or wrongful death cases, expenses must be deducted before contingency fee is calculated.
Contingency Prohibited - Matters
- Criminal
2. Domestic relations matters
Fee Division with Non-lawyer
- Lawyers can’t be partners with non-lawyers if the partnership includes the practice of law.
- Can’t divide a legal fee with non lawyer
- Can share a space with non-lawyer so long as the space is divided
- No referral fees
Fee Division - Exceptions
- Salaries, retirement plans, bonuses, and profit sharing, as long as they are not tied to fees generated in a specific matter.
- Payments to spouse of deceased partner, or to estate of deceased partner, to compensate for fees earned by deceased partner prior to death.
Fee Splitting with Lawyer Outside Firm
Allowed when:
- The division is
a. proportional to the % of the work performed; or
b. in a writing given to the client and each lawyer assumes joint responsibility for the representation - Client gives informed consent in writing.
- Total fees can’t be excessive
Fee Dispute Resolution
In NY, fee disputes from a civil matter are subject to ARBITRATION AT THE CLIENT’S ELECTION
Fee Dispute Arbitration - Exceptions
- Criminal matters
- Less than $1000 or more than $50,000
- Substantial legal questions including malpractice
- If the judge has already ruled on the issue
- No attorney services have been rendered for more than 2 years.
Supervisor lawyer responsible for subordinate’s conduct if:
Supervisor KNEW of the wrongful conduct and did not report, OR
he told subordinate to perform the task.
Subordinate lawyer is responsible:
Always, even if following supervisor’s instruction
EXCEPT if following instructions in an arguable question of professional duty
Ex Parte Communications with Jury
during trial NEVER! After trial, OK unless: 1. court order 2. juror doesn't want to talk 3. harassment
Ex Parte Communications with Judge
Never, except de minimis communications
Communications with known represented party
Only if:
- Other lawyer consents
- Authorized by law (eg. FBI talks to suspects)
Communications with unrepresented party
Shall not state that lawyer disinterested.
Make reasonable efforts to correct misunderstanding re lawyer’s role.
Don’t give any legal advice, except advice to obtain counsel.
Speak to adverse party’s witness?
Allowed unless witness represnted.
Obligation to disclose “adverse legal authority”
Must disclose to court! Can argue that irrelevant.
Only NY cases.
Not facts, except in ex parte proceeding where facts must be disclosed.
Special duties of prosecutor
Proceed only on probably cause
Disclose evidence tending to negate guilt of accused, mitigate degree of offense, reduce punishment.
Pro bono - should aspire to:
Provide 20 hours /year
Contribute financially to orgs that provide pro bono services.
How to define lawyer’s ethical role in essay rule:
“A lawyer must represent his client zealously, within the bounds of the law, and make only meritorious claims and contentions”
CRIMINAL:
May require that every element of case be established.
