Professional Responsibility

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Miscellaneous prohibitions: NO derogatory personal references to other attorneys. NO gift of loan to Judge except allowed by Code of Judicial Conduct. Campaign donations OK.
Non-compete agreements: Lawyer may not enter into a non-compete agreement. Exceptions - reasonable non-compete is fine: 1) retirement; 2) Departure/separation from firm.
Requirements for bar admission: 1) Truth and full disclosure - Burden on App. To show good moral character; 2) Duty to cooperate.
Pro Res code: New York Code of Professional Responsibility (NYCPR). Modified version of the ABA Rules of Conduct
Targeted mail: 1) May send to groups of people likely to need legal services; 2) "Attorney advertising" shall appear: a) on self-mailing brochure or postcard; b) in subject line of email; c) Retainer agreement included must include "DO NOT SIGN" shall appear on the client signature line; "SAMPLE" on the top of each page in red ink; d) Include name, principal office address and number of lawyer/firm offering; e) Application not non-NY attorneys seeking NY clients; f) NO SOLICITATION for personal injury or wrongful death <30 days after, UNLESS filing required - 15 days; g) **NY LAWYER - NO solicitation of profession employment in written com IF...
Complaint: Filing a complaint is privileged communication
Mortgage: Lawyer cannot take a mortgage on a client's property to secure a fee. Under NY law, a lawyer may take a lien on real property or obtain a security interest to secure his fee if 1) retainer agreement provides security interest may be sought 2) notice of application for securityi nterest is given to other spouse and 3) court grants approval for the security interest. But an attorney shall not foreclose on a mortgage placed on a martial residence while the spouse who consents to the mortgage remains the titleholder, and it is the primary residence.
Adverse Authority: A lawyer has an affirmative duty to disclose contrary or adverse authority, which means cases and statutes from the court's jursidiction only but does not extend to facts or witnesses not controlling in the jurisdiction.
Domain Names: You may utilize one that does not include name of lawyer or firm if, All pages clearly and conspicuously include actual name of the lawyer/firm. Lawyer/firm does not attempt to engage in practice of law utilizing domain name. Domain name DOES NOT imply an ability to obtain results.
Fee payment by a third party: 3P IS NOT the party, the client still makes the decisions
Loans: NO loans to clients unless advancing court costs - EXCEPTION: Indigent, pro bono clients.
Trial Publicity - Lawyer MAY state: 1) General nature of claim or defense; 2) Public info or record; 3) That an investigation is in progress; 4) Scheduling or result of any step in litigation; 5) Warning or danger if reason to believe harm to person or public; 6) Criminal case: Info to apprehend accused; 7) Right of reply: May make statement to protect from prejudicial effect of negative publicity
Fees: Lawyer has the duty to explain fully the reasons for the fee; keep reasonable. State bar cannot set min or max fee schedule - Consider: Time and labor; Novelty and difficulty of question involved; Requisite skill to perform legal service; Customary fee for similar work same location; Experience, ability, reputation; Interference w/ other cases; Time limitations imposed by client or circumstances; Fix or contingent fee
Lawyer advertising: Any public or private communication made by or on behalf of a lawyer or law firm about the lawyer or services, w/ primary purpose to retain the lawyer or firm. Exception: Communications to existing clients or other lawyers.
Unauthorized Practice of Law: RULE: Only lawyers may engage in the practice of law. DO NOT help others engage in the unauthorized practice of law. The unauthorized practice of law is anything that requires a license: appearing at depos, judicial proceedings, drafting substantial legal docs. (wills, trusts), negotiating cases for clients. A lawyer can give some advice to pro se litigant.
General Conflict of Interest Rules: Lawyers cannot represent adverse interest of client or prospective client unless lawyer fully explains risks and alternatives (informed consent) and client agrees in writing. A person who communicates with a lawyer for the purpose of disqualifying the lawyer from handling a materially adverse representation on the same or a substantially related matter is not a perspective client.
Assuming ad is otherwise in accord w/ the code and can be factually supported as of the date of publication, ads may also contain: a) statements that are reasonably likely to create an expectation about results a lawyer can achieve or which describe or characterize quality of lawyer/firm services; b) Statements that compare the lawyer's services w/ those of a other lawyers; c) testimonials or endorsements of former or current clients - BUT NOT for pending matter; d) MUST contain disclaimer "prior results do not guarantee a similar outcome"
Advertising: NO false or misleading statements. ASK: Would a layperson find the statement or advertising misleading.
When conflict arise: Attorney must withdraw from representation. MUST w/d: 1) When a L knows C position frivolous; 2) L becomes impaired; 3) If in any way representation would violate DR; 4) client fires MAY w/d: 1) W/d w/o material adverse effects on interests of C; 2) C's claim or defense is frivolous; 3) C persists in course of action involving L's services L reasonably believes is criminal or fraudulent; 4) C insists that the L pursue course of conduct that is illegal or violates DR; 5) Other conduct makes it unreasonably difficult for L to carry out employment effectively; 6) Client insists in matter not pending before court that lawyer engage in conduct that is contrary to judgment and advice of L (Even if no DR violation); 7) C deliberately disregards an agreement or obligation to L - fees and expense; 8) C uses L's services to perpetrate a crime or a fraud; 9) Continued employment likely to result in DRV; 10) L's inability to work w/ Co-counsel indicates best interest of C to w/d; 11) C knowingly and freely agrees to termination; 12) Other good cause for w/d - Lawyer and client may agree to w/d for any reason
Ratifying a fee agreement: A client may ratify an attorney's fee agreement during a period of continues representation even if attorney misconduct occurs during that period so long as the client's ratification not procured as a result of the misconduct. A fully-informed client who knowingly and voluntarily affirms an existing fee arrangment that might otherwise be considered voidable, can ratify, so long as client has full understanding of facts and has knowledge of rights as a client.
Testifying on behalf of client: NO testifying on behalf of client UNLESS: 1) Uncontested matter or formality; 2) Fees - statutory award of attorney fees; 3) Substantial hardship.
Sexy times: 1) Can't demand as payment; 2) Cannot coerce into relationship; 3) NOT w/ domestic relations client during representation; 4) Can be a preexisting relationship
Relationship w/ non-lawyer: Lawyer cannot be partner with a nonlawyer if any part of the partnership involves the practice of law. A lawyer can NEVER divide fee w/ Non-L - EXCEPTIONS: 1) Salaries, retirement plans, bonus, profit sharing; 2) Spouse of partner gets fees of L partner; 3) May share office space - Need physical separation → NO coercion to use lawyer services
Reporting Requirements regarding other applicants: 1) Good applicants - input is a "should"; 2) Bad applicants: Duty to report on moral turpitude, conduct contrary to justice, honesty, modesty or good morals - EX: Perjury, bribery, theft.
**NY LAWYER - NO solicitation of profession employment in written com IF: a) Comm is false, misleading or deceptive; b) Recipient made it known to lawyer that they do not want to be solicited; c) Involves coercion, duress, or harassment; d) Lawyer knows or has reason to know that b/c of age, or physical, emotional, or mental state of the person makes it unlikely that they will be able to exercise reasonable judgment in retaining a lawyer; e) Lawyer intended or expects, but does not disclose, that the legal services will be performed primarily by another lawyer who is not affiliated w/ the soliciting lawyer as a partner, associate or counsel; f) written comm. Sent by method that requires recipient to travel to a location other than where they receive mail, or requires signature.
Ads MAY include: 1) Ed background and degrees; 2) Dates of admission to bar, areas f practice; 3) Public offices and teaching positions held; 4) Memberships in bar associations and other prof orgs; 5) foreign language ability - MUST be fluent; 6) Names of regular clients - need signed client consent; 7) Acceptable credit arrangements, participation in group, prepaid legal services programs; 8) Legal fees, contingent fee rates, range of fees for services: No charge for > ad fee
Multi-J Practice: States make independent determinations of violations of states ethical rules - but also give some effect b/c full faith and credit clause.
Interest in Publication Rights: Interest in publication rights related to case subject matter are prohibited. undue influence - Client can pay w/ them after the matter is over
Duty to Corporation: When representing a corporation, the lawyer had a duty to proceed as is reasonably necessary to protect the best interest of the organization and report violations to a higher authority within the organization. The lawyer also has a duty to report sec violations up to CEO. If not appropriate response, must report to BOD and may report to outside authority. May reveal confidential info as necessary to protect client. Sarbanes-Oxley gives discretion to go to SEC as necessary.
CONFLICTS OF INTEREST - BASIC RULE: Avoid conflicts, exercise independent legal judgment. CONFLICT: Refuse to accept OR continue employment
Choice of law: License in NY → NY law & rules apply. APPLY RULES of state in which lawyer principally practices UNLESS conduct's key effect is in another state then that Other State's rules will apply.
Four types of discipline: 1) Letter of admonition - Goes in your file and remains there; 2) Public censure by the courts - NYBA Journal Publication; 3) Suspension - you can't practice law, BUT you come back (Your name stays on the door); 4) Disbarment - Not coming back, permanent revocation (Take name off the door). Can be subject to malpractice claim by clients - malpractice does not mean the activity rises to the level of rule violation.
Ads MAY NOT include: 1) Paid endorsement or testimonial about lawyer/firm w/o disclosing that the person is compensated; 2) Actors to portray lawyer, firm members, clients or events w/ disclosure
Advertising contingent fees: Make clear: 1) terms and basis of fee; 2) Whether client responsible for any costs; 3) That contingent fees not permitted in all types of cases
Trial publicity RE: Restraints: Restraints: No statement made by lawyer that a reasonable person would expect to be disseminated if lawyer knows or reasonably knows it will be prejudicial to proceedings w/ regard to: 1) character, reputation or criminal record of party; 2) ID of witness or expected testimony; 3) Possibility of guilty plea; 4) Existence of a confession; 5) Results of any exam or test; 6) Opinion as to guilt or innocence of a D or suspect; 7) Info lawyer knows or reasonably should know is inadmissible as evidence; 8) Fact that D is charged w/ crime unless stating it as merely an accusation and that the D is presumed innocent
Client v. Former client: You may represent a current client against a former client - EXCEPTIONS: 1) Current client wants to sue former on matter your represented former client, OR 2) when during representation of the former client you learned confidential info that is now relevant to the action by the current client. However, if the information is no longer confidential or if the client consents in writing, the lawyer may represent. It is always a conflict to represent a current client against a current client even with informed consent. NEVER current client against current client.
Investigation: Departmental Disciplinary committee or any department of appellant division
Responsibility with Lying client: 1) Try to dissuade client from lying; 2) Must seek withdrawal from case → NO: 3) Let client take the stand, ask no questions, don't argue what they tell you.
Domestic relations fee agreement: 1) In writing signed by L and C; 2) Provide C w/ statement of rights and responsibilities prior to writing at 1st conference: 3) Non non-refundable fees; 4) No contingency fee on unpaid alimony or child support; 5) MUST resolve disputes in arbitration at election of C; 6) .Periodic billing every 60 days and at conclusion, return any unused portion of retainer
Written Letter of Engagment on Fees (SEEN): If fees are projected to be greater than $3000 the fee agreement must be in writing. >$2,999 agreement must be in writing. MUST include: 1) Scope of legal services provided; 2) Explanation of attorneys' fees charged; 3) Expenses and billing practices; 4) Notice of client's right to arbitrate fee dispute. NOT when: Services similar to in the past; No office in NY or material services not there; Domestic relations matter requiring another letter.
Ex part comm. During trial: 1) No communication w/ jury; 2) De minimis or emergency or settlement conferences w/ Judge; 3) No comm. w/ adversarial party, only L; 4) communication with witness is okay
Admission to the Profession: The U.S. Supreme Court says state requirements for admission to the bar have to be rationally related to the practice of law. Rational requirements: 1) Graduation from ABA accredited law school; 2) **NY - Admission may be granted to applicant who has completed 1 yr. law school and studied law in NY law office under supervision of licensed NY Attorney for an additional period of 3 years; 3) Oath to uphold state or national constitution. NOT Rational: 1) Citizenship; 2) Residency in state.
Termination of relationship: not in way that prejudice client. Give file back, unused portion of retainer, give notice.
Ads for computer-accessed communication: must be kept for 1 yr. after dissemination. Copy of content of web site preserved no les frequently than once every 90 days.
Retainer types: 1) Advance on fees - belongs to C, put in trust account; 2) Availability retainer - belongs to L
Regulation after admission: Regulated through highest state court and through its agencies. Self-regulated profession - two-pronged duty when you know of a violation: 1) Must report it unless information would be protected as confidential; 2) NO ANONYMOUS reporting - must be available to testify. Can't negotiate away your duty to report. Duty of confidentiality TRUMPS duty to report. But cannot recommend for admission to bar in another state.
Prohibited Contingent Fees in Certain Cases: 1) Criminal case; 2) Domestic relations. MBE EXCEPTION: Past due alimony and child support. **NY DOES NOT RECOGNIZE EXCEPTION.
Safeguard client property: Must protect client property in a bonded warehouse.
Civil and Criminal: A lawyer should represent his client zealous, within bounds of law, and make only mertious claims and contentions. A lawyer should represent his client zealously, within bounds of law, and make only mterious claims, but may defeined the proceeding as to require every element of the case be proving beyond a reasonable doubt.
Taking Cases: Lawyer should take only those cases he or she is competent to handle, or encourage client to seek other counsel. Competence includes 1) physically and mentally able; 2) Substantively competent; 3) time to devote case. A lawyer can overcome lack of competence by associating with another lawyer who is competent; learn it in time; emergency.
Confidentiality: Maintain confidences of prospective, current and former clients: Keep client secrets. Broader than attorney-client privilege - not just about communications. MAY reveal intention of client to commit future crimes. EXCEPTIONS: 1) Required by law or court order; 2) To obtain legal or ethical advice for lawyer - use hypos;3) to prevent client from committing crime; 4) to prevent reasonable certain death or substantial bodily harm; 5) to recifiy a fraud on a tribunal committed by the lawyer's own client; 6) disclosure expressly authorized to advance the best interest of the client.
Solicitation: laywer shall not engage in solicitation by in-person or phone contact, or real time or interactive comp accessed communication UNLESS recipient is 1) Close friend or relative; 2) Former/existing client; 3) Pro bono - NO pecuniary gain; 4) existing client Solicitation = any ad intended by or on behalf of lawyer/firm directed to, targeted at a specific person, family or legal reps, so they will hire for significant pecuniary gain. NEVER when recipient made known they don't want it. In person, unsolicited advice = NO employment resulting from advice.
Structure of the code: 1) Canons - broad statements of norms: Expected standards; 2) Ethical considerations - Aspirational (Can't get in trouble for violating); 3) Disciplinary Rules - what you HAVE to follow
Misleading: Promised outcomes, ability to achieve outcomes from use of clout. NO advertising "advancing cost of litigation" - all lawyers do this.
Representing partnership or corp: You rep entity, NOT individuals or directors
NY Bar Requirements: Pass written bar and MPRE. Applicant may considered w/o exam if: 1) Graduated from ABA accredited law school; 2) Reciprocity - Admitted to practice in another state AND that state would admit NY attorney w/o exam; 3) Practice law for at least 5/7 past years preceding app for admission
TV and radio ads MUST BE: 1) Prerecorded; 2) Approved by lawyer; 3) Include name, address and phone number of lawyer or firm whose services are being offered; 4) Ad must be kept for 3 yrs after dissemination
Representing Insured: Lawyer represents the insured, not the insurance company paying the bills: 1) Protect confidential info from company; 2) Engagement letter both to insured and company.
Proper accounts: Every lawyer must have: 1) operating - firm account; 2) Client trust - L pays bank fees. GENERAL RULE: Keep record of use, DO NOT mix funds. SPECIFIC RULES: a) Must be in NY - C consent for anywhere else; b) L pays service charges; c) Interest goes to IOLA. Transfer payments into firm account to avoid commingling fees.
Supervising and subordination: 1) Subordinate - follow code but argue following instructions, >arguable ok activity; 2) Supervising attorney - Follow rules, ensure subordinate follow.
Specialists: DO NOT claim to be specialist UNLESS certified as a specialist or practice patent, trademark, admiralty: 1) Be certified by private org approved to certify by the ABA or State of NY; 2) Identify the org; AND 3) State that certifying org is NOT affiliated w/ any gov authority, not required to practice in NY, and does not indicate greater competence by attorney over other non-certified but experience lawyers in the area. Applies to certification in another state. CAN SAY: "Practice limited to..."; "Practices primarily in the are or ...".
Special prosecutor duties: Proceed only on probable cause. MUST disclose any evidence tending to mitigate guilt or which could mitigate degree of offense or reduce punishment.
Fee dispute resolution program: 1) Commence services after 01/01/02 - disputes go to arbitration at C's option, must tell C about option; 2) EXCEPTIONS: a) Fee disputes w/ Criminal matters; b) Amount is <$50, >$1,000; c) Malpractice
Dead Man's Statute: doesn't apply to atyy disciplinary proceeding.
Computer-accessed communication: Computer-accessed communication includes: any communication made by or on behalf of a lawyer or law firm that is disseminated through the use of a computer or other electronic device. Includes: Web sites, blogs, search engines, email, banner ads, pop-ups, chat rooms, list serves, etc.
Referral fees: unethical - Divide fees when: 1) In proportion to work performed; 2) informed consent in writing;3) Total fee is reasonable
Permissible temporary mult-J practice: Not independent of each other: 1) Associate w/ active local lawyer; 2) Special permission pro hac vice; 3) Mediation or arbitration out of home-state practice; 4) Anything reasonably related to home state practice - e.g. real estate attorney; 5) Mult-State Firms: Lawyer only practices where admitted, firm letterhead must indicate states of admission
Who makes the decisions: Client decides matters of substantive legal import: 1) Whether to sue, take appeal, settle, trial before or jury; 2) Criminal case: D's decision to testify. Attorney decides strategy, procedure and tactic: 1) Discovery decisions - Exception: Clients can veto costs; 2) Granting a continuance. Attorney must abide by client's wishes UNLESS doing so would be illegal, unethical or immoral. Client loses ability to make clear decisions → Get a guardian appointed.
Informed Consent: To obtain informed consent, the lawyer must 1) explain material risks and reasonable alternatives to the client 2) client agrees after hearing the risks and reasonable alternatives; and 3) client agrees in writing. After these steps then the lawyer must decide if a reasonably prudent lawyer would take the case. Answer is usually no.
Business w/ clients: A lawyer is generally prohibited from doing business with clients, unless the transaction is fair to the client. In such cases, client should be advised to get independent legal advice and informed consent in writing. There is an expection to the general rule that business with clients is allowed in standard commercial or other transaction (banking or brokerage).
Ads MUST include: 1) Name, principal law office address and phone number of the lawyer or firm whose services are being offered; 2) Any words or statements required by rules must be clearly legible and capable of being read by the average person, understood if spoken; 3) Label: "Attorney Advertising" on first/home page.
Firm name: The firm name must be appropriate: 1) NY DOES NOT permit trade names; 2) NO appearance of state sanction - E.g. Law firm of NY; 3) Names must be real - can be dead. RULE: Permanent action → take name out.

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