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Professional Responsibility > Professional Responsibility (j) > Flashcards

Professional Responsibility (j) Flashcards

1
Q

What rules govern the conduct of NY Attorneys?

A

The new York Rules of Professional Conduct

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2
Q

Who investigates complaints?

A

The grievance committee of on of four appellate divisions

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3
Q

What are the 4 types of discipline that can be imposed on a NY attorney?

A

(1) Admonition (slap on the wrist)
(2) Public or Private Censure
(3) Suspension for a Finite Period of Time
(4) Disbarment

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4
Q

What is a lawyers duty when they know of another lawyer’s violation of the rules that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer?

A

(1) Must report knowledge of the violation to grievance committee, AND
(2) Cooperate in the investigation
NB: duty of confidentiality to the client will trump duty to report

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5
Q

For NY lawyers licensed in more than one state…

A

Discipline imposed upon the lawyer by another state permits NY to impose reciprocal discipline for the same conduct
- a lawyer admitted in NY can be disciplined by NY’s disciplinary authority for any misconduct, no matter where it occurs.

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6
Q

Choice of Law in Disciplinary Matters

A

If the conduct occurred in connection with a proceeding before a tribunal in which the lawyer was admitted, then the rules of the jurisdiction in which the court sits govern the lawyer’s conduct
- for any other matter, NY rules will govern if the lawyer is only admitted in NY. IF the lawyer is admitted in NY and another state, the rules of the state in which the lawyer principally practices applies unless the predominant effect of the conduct is in another state

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7
Q

Restrictions on Lawyers

A
  • a lawyer shall not aid a non-lawyer in the unauthorized practice of law
  • a lawyer shall not enter into a partnership, employment, or similar type of agreement that restrict the right of the lawyer to practice after termination of the relationship
  • a lawyer may not participate in the settlement of a client’s matter that restrict the lawyer’s right to practice in the future.
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8
Q

Client’s Decisions

A
  • those of substantive legal import
  • commencing an action, settling a case, plea in a criminal case, appeal, electing a jury or bench trial, testifying in a criminal case
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9
Q

Attorney’s Decisions

A
  • strategy, procedure and tactics

- granting reasonable adjournments that do not prejudice the client

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10
Q

What happens if the client loses the ability to make a clear decision or is a minor?

A

Have a guardian appointed for the client

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11
Q

In NY, an attorney can take reasonably necessary protective action and seek to have a guardian appointed for a client if:

A

(1) Client has diminished capacity,
(2) Is at risk of substantial physical, financial or other harm, AND
(3) Client cannot adequately act in her own interests.

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12
Q

Do lawyers have a right to reject a case?

A

Yes! Lawyers have a right to reject all cases

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13
Q

When MUST an attorney withdraw from a representation?

A

(1) Lawyer knows representation will result in violation of rules or law
(2) lawyer suffers physical or mental disability
(3) Client fires lawyer, OR
(4) Lawyer knows client is taking steps solely to harass or maliciously injure another

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14
Q

When MAY an attorney withdraw from a representation?

A
  • 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 (breach must be deliberate)
  • client uses lawyers services to perpetrate a crime or fraud
  • 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
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15
Q

Competence

A
  • a lawyer should take only those cases he is competent to handle
  • competency includes: physical and mental competence, competence in substantive law and having sufficient time to devote to the matter
  • can overcome lack of competence by association with a competent lawyer or by becoming competent
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16
Q

Can a lawyer limit the scope of representation?

A

Yes, IF:

(1) the limitation is reasonable, AND
(2) The client gives an informed consent
- should tell the client she may have other rights against a party that can be pursued with another lawyer

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17
Q

Advertising the Firm Name:

A
  • the firm name must not be misleading

- no trade names

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18
Q

Advertising a Specialization

A
  • a lawyer or firm may publicly identify one or more areas of law in which the lawyer/firm practices, or may state that the practice of the lawyer/firm is limited to one or more areas of law
  • A lawyer may NOT hold herself out as a specialist UNLESS she is certified as a specialist in a particular area of the law by a private organization approved by the ABA or another state
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19
Q

Advertising (defined)

A

Any PUBLIC or PRIVATE communication made by or on behalf of a lawyer or law firm about the law or firm’s services, the primary purpose of which is for retaining the lawyer/firm
- Exception: communications to existing clients or other lawyers

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20
Q

Attorney Advertisements MUST include:

A

(1) Name, principal law office address and telephone number of the lawyer or law firm whose services are being offerred
(2) any words or statement required by the rule must be clearly legible and capable of being read by the average person and understood if spoken aloud. If a website, must appear on homepage
(3) the label “Attorney Advertising” must appear on the first page of any direct mail OR on the homepage
- in email, “attorney advertising” has to be in the subject line

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21
Q

Attorney Advertisements MAY include (assuming such info is true and not misleading):

A
  • education background and degrees, date of admission to bar and area of practice, public offices and teaching positions held, memberships in bar associations and other professional organizations, foreign language proficiency if fluent, name of regular clients if they consent in writing, fees, rates, ranges of fees,
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22
Q

Assuming the ad is otherwise in accord with the Rule, if it contains a disclaimer “Prior results do not guarantee outcome” (and can be factually supported on the date on which the ad is published/disseminated, the ad MAY also contain:

A
  • statements that are reasonably likely to create an expectation about the results the lawyer can achieve
  • statements that compare lawyers services with those of another lawyer
  • testimonials or endorsements of clients or former clients
  • statements describing/characterizing the quality of the lawyer’s or law firms services`
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23
Q

Ads may NOT include:

A
  • a paid advertisement of/or testimonial about the lawyer/firm without disclosing that the person is being compensated
  • actors to portray lawyer, clients or events without disclosure
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24
Q

You can use a domain name that does not include the name of the lawyer/firm provided that:

A
  • all pages clearly and conspicuously include the actual name of the lawyer/firm
  • lawyer/firm in no way attempts to engage in the practice of law using the domain name
  • the domain name does NOT imply an ability to obtain results in the matter (ex.winbig.com)
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25
Q

Television and Radio Ads

A
  • must be approved by the lawyer, include the name, address, phone number of the lawyer/firm and kept for at least 3 years following initial dissemination
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26
Q

Soliciting Clients

A

All solicitations are ads and subject to the same rules
- R: A lawyer shall not engage in solicitation directed/targeted at a specific person(s), the primary purpose of which is the retention of the lawyer/firm and a significant motive for which is pecuniary gain by: in person communication, live telephone communication, IM’ing… UNLESS the recipient is a close friend, relative, former or existing client

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27
Q

Solicitations to Specific Recipients

A
  • must be filed with disciplinary committee or judicial dept at lawyer/firm office
  • if solicitation was prompted by a specific occurrence, the lawyer must disclose how they learned the recipients identity and need for legal services. A list of recipients must be kept for 3 yrs
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28
Q

Solicitation for Personal Injury Matters

A

No solicitation for Personal Injury or wrongful death matters by the lawyer or any agent before the 30th day after the incident, unless a filing is required in less than 30 days, in which case no unsolicited communication before the 15th day after the incident

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29
Q

Consequence of Improper Solicitation

A

Lawyer cannot accept employment resulting from such communication

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30
Q

Duty of Confidentiality

A

A lawyer may not knowingly disclose confidential information, or use such information to the disadvantage of a client or for the advantage of the law/third party, such as another client or a friend.

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31
Q

Confidential Information

A

Consists of information gained during or relating to the representation of a client, whatever its source, that is:

  • protected by the attorney client privilege
  • likely to be embarrassing or detrimental to the client
  • information that client has requested by kept confidential
  • this duty is broader than the obligation to preserve the attorney-client privilege
32
Q

Exceptions to the Duty of Confidentiality

A

A lawyer MAY reveal confidential information to the extent that the lawyer reasonably believes necessary:

  • when permitted or required by the rules, law, court order
  • to obtain legal/ethical advice (using hypos)
  • to prevent client from committing a crime
  • to prevent reasonably certain death or substantial bodily harm
  • to withdraw a representation previously given by the lawyer and reasonably believe to be relied upon by a third person, where the lawyer has discovered it was based on materially inaccurate information or is being used to further a crime or fraud
  • disclosure of info necessary to collect a fee
  • client has provided an informed consent or the disclosure is impliedly authorized to advance clients interests`
33
Q

What happens when a client testifies falsely?

A

(1) Ask the client to correct testimony
(2) Warn client of consequences of perjury
(3) if client does not correct, lawyer MUST, even if it requires revealing confidential information
NB: a lawyer may refuse to offer evidence, other than the testimony of a D in a criminal matter, that the lawyer believes is false

34
Q

Two Types of a Retainer:

A

(1) Advanced Payment Retainer: belongs to client and goes into trust account
(2) A General Retainer: belongs to attorney and goes into lawyer’s account

35
Q

Two accounts a lawyer must have:

A

(1) Operating: Firm’s account

(2) Client Trust: only client money can be in this account. Cannot co-mingle attorney money with client money.

36
Q

Specific Rules of Client Trust Accounts

A
  • account must be in a bank in NY
  • 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” when a check bounces
37
Q

How does a Dishonored Check Reporting Service work?

A

When a check bounces, a copy of the report is mailed to the lawyer and after 10 days, the report is sent to the Disciplinary Commission to take action.
- a lawyer cannot go an deposit additional sums in the account from her own funds

38
Q

Trial Publicity; restraints on public statements regarding adjudicative proceedings

A

No statement may be made by a lawyer that a reasonable lawyer would expect to be disseminated if the lawyer knows or reasonably should know it wil have a substantial likelihood of materially prejudicing a proceeding.

39
Q

Right of Reply

A

A lawyer may make a statement to the extent necessary to protect a client from substantial prejudicial effect of recent publicity NOT INITIATED by the lawyer of the client.

40
Q

Conflict of Interest

A

A lawyer shall not represent a client if a reasonable lawyer would conclude that either:

(1) the representation will involve the lawyer in representing differing interests, OR
(2) there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.

41
Q

General Rule of Imputation of Conflicts

A

If one lawyer is conflicted, all lawyers int eh firm are conflicted. Even if they are in another firm office.

42
Q

Lawyer as Witness

A

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 unless:

  • testimony relates to an uncontested matter, or
  • solely to the value of legal services, or
  • a matter of formality, or
  • disqualification would result in substantial hardship to the client, or
  • testimony is authorized by the tribunal
43
Q

What if a lawyer in the same firm is going to be called as a witness?

A

A lawyer may not act as an advocated before a tribunal in a matter if another lawyer in the lawyer’s firm is likely to be called as a witness on a SIGNIFICANT ISSUE by another party to the lawsuit and it is apparent that the testimony may be prejudicial to the client.

44
Q

Interest in Media Rights

A

Prior to the conclusion of the client’s entire matter (including appeals), a lawyer is prohibited from entering into (or even negotiating) any arrangement with a client/prospective client by which the lawyer acquires an interest in literary or media rights wrt the subject matter of the representation, or transfers or assigns any such interest.

45
Q

Acquiring an Interest in the Subject Matter of the Representation

A

A lawyer cannot acquire a proprietary interest in the coA or subject matter of litigation, except that the lawyer may:

  • acquire a lien authorized by law to secure the lawyer’s fees or expenses, AND
  • contract with a client for a reasonable contingency fee in a civil matter
46
Q

Acquiring an Interest in the Subject Matter of the Representation: DOMESTIC RELATIONS

A

In domestic relations matters, a lawyers retainer agreement may include a security interest, confession of judgment or other lien to secure the lawyer’s fee, but only if:
- prior notice is provided to client in signed retainer agreement,
- the tribunal approves it
- after notice to the adversary
BUT- an attorney shall not foreclose on a mortgage placed on a marital residence while the spouse who consents to the mortgage remains the titleholder, and it is the primary residence.

47
Q

Providing Financial Assistance to the Client

A

While representing a client in connection with contemplated or pending litigation, a lawyer CANNOT advance or guarantee financial assistance to the client. EXCEPT:

  • a lawyer may advance court costs and expenses of litigation the repayment of which may be contingent on the outcome of the matter
  • a lawyer representing an indigent or pro bono client may pay court costs and expenses of litigation outright
48
Q

Fee Payment by Third Party

A

A lawyer cannot accept compensation for representing a client, or anything of value related to the lawyer’s representation of the client, from one other than the client unless:

  • the client gives informed consent
  • there is no interference with lawyer-client relationship, AND
  • confidential information is not provided to payor
49
Q

Sexual Relations with Clients

A
  • lawyers cannot demand sexual relations as a condition of representation
  • lawyers cannot employ coercion, intimidation or undue influence in entering into sexual relations incident to any representation by the lawyer OR the lawyer’s firm
  • a lawyer in a domestic relations matter cannot enter into sexual relations with a client during the course of the lawyer’s representation of the client
50
Q

Business Transactions with Clients

A

A lawyer cannot enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise professional judgment therein for the benefit of the client, UNLESS:
- transaction is fair/reasonable to client and the terms of transaction are disclosed in writing in a manner easily understood
- client is advised in writing of the desirability of seeking independent counsel
- the client gives informed consent
EXCEPTION:
- standard commercial transactions are not subject to the rule (buying a car from an auto dealer)

51
Q

Lawsuits between Current and Former Clients

A

You may represent a current client in an action against a former client, EXCEPT:

  • when your current client wants to sue your former client in a matter substantially related to a prior representation, OR
  • when during the representation of the former client you learned confidential information that is now relevant to the action by the current client.
  • but if the info has become generally known or former client consents in writing, then ok
52
Q

Lawsuits between Current Clients

A

Never! It is an UNCONSCIONABLE conflict to represent a current client against another current client, even if in an unrelated matter.
- you must NOT undertake such a representation, even with client consent.

53
Q

Representing an Organization

A

a lawyer for a corporation/partnership represents the entity and NOT the directors, officers, employees, members, shareholders etc.
- if a lawyer knows that a person associated with the org is engaged in action or intends to act in a matter related to the representation that is a violation of a law that might be imputed to the org, AND is likely to result in substantial injury to the org, then the lawyer shall proceed as is reasonably necessary in the best interest of the org.

54
Q

Limiting Liability and Settling Malpractice Claims

A

A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice
- a lawyer shall not settle a claim for legal malpractice with a client or former client unless the client or former client is advised in writing of the desirability of seeking independent legal counsel

55
Q

Statement of Client’s Rights

A

Every attorney with an office in NY shall insure that there is posted in that office, in a manner visible to clients of the attorney, a statement of client’s rights

56
Q

Written Letter of Engagement

A

An attorney who undertakes to represent a client and enters into an arrangement for, charges, or collects any fee from a client shall provide to the client a written letter of engagement before commencing the representation, or within a reasonable time thereafter.

57
Q

What MUST the Letter of Engagement Include?

A

(1) Scope of the representation
(2) Explanation of attorneys’ fees and expenses, AND
(3) Notice of a client’s right to arbitration of fee disputes
- if there is a significant change in the fee or scope of services, an updated letter of engagement shall be provided to that client
NB: a signed retainer agreement can take the place of a letter
- if an entity engages an attorney to represent a third party, the entity also gets a letter of engagement or retainer agreement

58
Q

When is a Letter of Engagement Not Necessary?

A

(1) A representation of a client where the fee to be charged is expected to be less than $3k
(2) representation where the attorney’s services are of the same general kind as previously rendered and paid for by the client
(3) representation in Domestic Relations Matters
(4) representation where no material portion of the services are to be rendered in NY

59
Q

Domestic Relations Matters

A
  • divorce, separation, annulment, custody, visitation, maintenance, child support, alimony
  • Special rules apply: fee agreement must be in writing and must be signed by lawyer and client
  • lawyer must provide prospective client with a statement of clients rights and responsibilities at the initial conference and prior to the signing of a written retainer agreement
  • no refundable fees
  • cannot use contingency fee to collect unpaid alimony or child support
  • periodic billing must be sent out every 60 days at at conclusion of case, must send back any unused portion of retainer
60
Q

Contingent Fees

A

A lawyer’s fee may be contingent on the outcome of the matter for which the service is rendered, provided that the fee is reasonable
- contingency fees in personal injury and wrongful death actions cannot exceed 33%

61
Q

What must a Letter of Engagement or Retainer Agreement in a Contingency Fee Matter Include?

A
  • method by which fee is determined, including the % that shall accrue to the lawyer in the event of settlement, trial and appeal
  • litigation and other expenses to be deducted from the recovery, and
  • whether such fees are deducted before or after the fee is calculated
62
Q

Fee Division with Non-Lawyer

A
  • a lawyer cannot be a partner with a non-lawyer if any part of the partnership activity involves the practice of law
  • a lawyer cannot divide a legal fee with a non-lawyer
    Exceptions: payment of fees to widow/widower of partner incurred prior to death
  • salaries, retirement plans
63
Q

Fee Splitting with a Lawyer Outside the Firm

A

A lawyer shall not divide a fee for legal services with another lawyer who is not associated in the same law firm unless:

  • the division is in proportion to percentage of work done, or in a writing to client, each assumes joint responsibility to the representation
  • the client consents in writing after full disclosure of fee breakdown, and
  • the total fees of both lawyers combined is not excessive
64
Q

Fee Dispute Resolution Program

A
  • mandatory program
  • in NY, in a civil matter, fee disputes between lawyer and client are subject to arbitration at the CLIENTS election
  • client must be informed about this program in the letter of engagement AND when a fee dispute arises
    Exceptions to program:
  • criminal matter
  • if amount is less than 1k or more than 50k
  • if claim involves malpractice
  • if the fee was determined pursuant to statute/rule/court
  • disputes where no attorney’s services have been rendered for more than 2 years
65
Q

Professional Responsibility of Law Firm

A

A law firm shall make reasonable efforts to ensure that all lawyers in the firm conform to the rules

66
Q

Professional Responsibility of Supervising/Managing Lawyer

A

Must abide by these rules and make sure all lawyers and non-lawyers acting at their direction do the same
- managing lawyers can be held responsible for conduct of subordinates if they knew of the wrongful conduct and did not report it; or if they told the subordinate to perform the act

67
Q

Professional Responsibility of Subordinate Lawyer

A

Must follow the rules even if acting at another’s direction

- no violation if you follow supervisor’s instructions on an arguable question of professional duty

68
Q

Professional Responsibility of Non-Lawyer Employees

A

lawyers at a firm must ensure that their work is adequately supervised
- a lawyer CAN be held responsible for the acts of a non-lawyer

69
Q

Ex Parte Communications with Jury

A

You cannot speak to a juror about any issue (not even where the bathroom is). BUT after trial is ok, UNLESS:

  • prohibited by court order
  • juror doesn’t want to talk
  • purpose is to harass the juror
70
Q

Ex Parte Communications with Judge

A

You cannot communicate with a judge ex-parte other than diminimus considerations or a settlement conference

71
Q

Ex Parte Communications with Represented Party

A

No Contact Rule

  • A lawyer shall NOT communicate (or cause another to communicate) about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter UNLESS:
  • adverse party’s lawyer consents, OR
  • communication is authorized by law
72
Q

Ex Parte Communications with Unrepresented Party/Person

A
  • in communicating on behalf of a client with a person/party who is not represented by counsel, a lawyer shall NOT state/imply that they are disinterested
  • lawyer shall not give legal advice to an unrepresented person, other than the advice to go get a lawyer
73
Q

Ex Parte Communications with a Witness for Adverse Party

A
  • no limitations unless the witness is separately represented, then you must go through their lawyer
74
Q

Adverse Legal Authority

A

A lawyer has an affirmative duty to disclose controlling legal authority known to the lawyer to be directly adverse to the client’s position

  • duty does not extend to facts adverse to your clients position
  • in an ex parte proceeding, the lawyer shall inform the tribunal of all material facts known that will assist the tribunal in making an informed decision, regardless of if they are adverse
75
Q

Special Duties of the Prosecutor

A
  • proceed only on probable cause
  • must disclose (in a timely manner) evidence tending to negate the guilt of the accused or which could mitigate the degree of the offense or reduce the punishment
76
Q

Put this in in civil cases

A

A lawyer must represent his client zealously within the bounds of the law and make only meritorious claims and contentions

77
Q

in a criminal case

A

you can plead your client not guilty even if you know they committed the crime. BUT, you cant plead an alibi defense (bc that would be frivolous)

Professional Responsibility (1 decks)

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