NY Professional Responsibility Commonly tested areas: y Regulating lawyers y What does it mean to practice law?

y Establishing your practice and getting clients y The lawyer-client relationship y Conflicts of interest y Handling money- yours and clients y Being professionally responsible I. Regulation A. Regulated by: NY Rules of Professional Conduct B. Complaints investigated by the Grievance Committee. y The complaint is a privileged communication- it s private and there is no c/a for defamation C. Four types of discipline: 1. Admonishment- a letter, slap on the rest 2. Public or private censure by the courts 3. Suspension of license a. Can t practice or share legal fees earned during period of suspension 4. Disbarment Note: also there are malpractice claims by clients or third parties Admission to the profession Admission to bar must be rationally related to the practice of law Ex. graduate from law school y In NY, admission may be allowed for someone who has completed one year of law school and studied under supervision of a NY attorney for 3 years. NY admission rqmts: pass bar &mpre Admission w/o exam if: y graduated from ABA accredited law school y was admitted in a state with reciprocity provided they practice law for at least 5 of last 7 years Rqmts for applying to the bar: y truth& full disclosure i.e. good moral character y duty to fully cooperate Rqmts regarding other applicants y Good applicants: Your input is aspirational.

Bad applicants: you must report conduct involving moral turpitude ex. perjury, bribery, filing a false tax return is a crime of moral turpitude

Regulation after admission Regulated by highest state court and through its agencies Sefl-regulating profession- 2 pronged duty if you know of a violation: 1. Lawyer must report substantial rule violation by another lawyer 2. Lawyer must be available to testify Hypo: Denny will be disciplined for keeping client funds. Ally is disciplined for not reporting denny s violation. Hypo: if a lawyer learns of another s bad conduct through representation, the duty of confidentiality will trump the duty to report the misconduct to the bar, but the lawyer may NOT recommend the lawyer for admission in another state. G. For lawyers who practice in more than one state 1. Discipline in one state may not mean discipline in another state. a. Other states will make an independent determination of whether the conduct violates that state s ethical rules. b. Done on the basis of: comity (reciprocal discipline). Unauthorized practice of law (UPLA)- can t do it! Permissible types of temporary multi-jx practice allowed in other states by NY lawyers: i. associate w/ an active local lawyer ii. special permission pro hac vice for one case. iii. mediation or arbitration out of state-practice iv. anything reasonably related to the lawyer s home state practice v. multi-state firms: lawyer only practices where admitted and firm letterhead indicated state of attorney s admission. 2. Choice of law in multi-jx matters: a. If licensed in NY only, then NY rules apply. b. If admitted in NY and another state, rules of the state in which the lawyer principally practices will applyunless the conduct s predominant effect is in another state, then the OTHER state s rules apply. Ex. Attny Jerry springer licensed in both NY and IL. His primary residence is NY but while in Las Vegas gets arrested for DUI. The investigation for his conduct will occur both in NY and IL, and the rules of conduct of the state of NY will be applied in NY (principal place of practice).

Ex. While drinking in Vegas, a client in Il has his case dismissed b/c Jerry failed to show up. Jerry s conduct will be investigated in both NY and IL, and the rules of the state of IL will apply in NY.

II. What does it mean to practice law? A. You are a layer 24/7 whether or not in your personal life or not. B. Who makes final decisions in legal matters? a. Client s decisions: i. Commence an action, settlement, appeal, choosing between a jury trial or a bench trial ii. Testifying in a criminal case b. Attorney decisions: strategy, procedure, and tactic i. Discovery methods to use ii. Granting adjournments that do not prejudice rights of a party C. Note: Attorney s must abide by client s wishes unless doling so would be illegal, unethical or immoral. Ex. client makes final call on settlement- even for extremely low settlement offer ex. $ 1.73- client decides Ex. lawyer finds out about jury tampering by opposing counsel. Lawyer must report the lawyer, but it s the client s decisionwhether to appeal the judgment. y If client loses capacity or is a minor, you must have a guardian appointed. In NY, an attny can take protective action and substitute judgment for a client if: y client has diminished capacity, and y is at risk of substantial physical financial or other harm, and y cannot adequately act in her own interests. C. Lawyers have a right to reject all cases but they should take cases involving the oppressed or defenseless and should do their share of pro bono work. 1. Lawyer must withdraw when: a. Lawyer knows representation will result in violation of rules for law. b. Lawyer suffers physical or mental disability c. Client fires the lawyer. d. Lawyer knows client is taking steps solely to harass or maliciously injure another. 2. Lawyer may withdraw a. If the client s claim or defense is frivolous b. Client persists in a criminal or fraudulent manner. c. *Client deliberately disregards an agmt or obligation to the lawyer. d. Client uses services to perpetrate crime or fraud. e. Employment will likely result in violation of PRC. f. Your inability to work with co-counsel hurts client. g. Lawyer should only take cases she is competent to handle or encourage client to seek other counsel.

h. Competence includes: i. Physical or mental comp. ii. Comp. in the substantive law. iii. Having sufficient time to devote to matter. iv. You can overcome comp. byassociation with a competent lawyer or becoming competent in the area. D. Do not help others practice in UPL. What is the practice of law?Every activity that requires a license. Examples: 1. Appearances in judicial actions that rq s a license. Ex. taking a deposition. A paralegal may not do so. 2. Drafting legal documents ex. will or contracts 3. Settling cases for clients Ex. lawyer sends secretary to make an appearance. Lawyer can be disciplined for sending secretary to perform task only lawyer can perform. Ex. lawyer broke hand. Secretary types document and sends it. Permissible b/c attny has oversight on the document. E. Hindering a lawyer s future right to practice. You may not enter into a noncompete agmt or provision w/ current partners or associates, EXCEPT: 1. An agmt re: benefits on retirement. Ex. I m going to leave firm, but if I practice in Albany County in next 5 years, I forgo benefits. Permissible. 2. In a sale of a law practice III. Establishing your practice and Getting clients A. The firm name must NOT be misleading. 1. You cannot name your firm Aaabest law firm in order to be 1st in phonebook 2. Trade names NOT permitted in NY (it is permitted in ABA) ex. the law firm of NY 3. You can include the name of a deceased partner in the firm name as long as attny practiced at the firm while alive. So you can t call your firm: Cardozo, Holmes etc. Hypo: Holmes name must be removed b/c he is now in full-time govt. work. Lincoln s name, even though suspended, can stay on the letterhead. B. Do not hold yourself out as aspecialistunless you are certified. 1. Ex. 20 years of practice in sports law is not enough to be certified. You must be certified by a private organization- approved by the ABA or NY State. 2. Certifying org. must be identified in the ad. 3. Ad should not suggest you are more qualified than another lawyer. 4. This also applies when you are certified by another state. 5. However, it is ok to say what you concentrate in. C. Advertising

Advertising defined: public or private communication made by or behalf of lawyer about the lawyer or services, the primary purpose is to retain a client for the firm.Exception: Communication to existing clients or other lawyers. Computer accessed communication includes: any communication disseminated through computer or electronic device which includes:Websites, blogs, email, popup ads, chatrooms, list serves, instant messaging. 1. Ads must include: i. Name, address, telephone (may include domain name or motto that does not violate the RPC) ii. Any words must be clearly legible and understood. iii. The label Attny advertising must appear on the first page of hard copy ads and website homepages. 2. Ads may also include, if true and not misleading: i. Educational background & degrees ii. Dates of admission to bar and areas of practice. iii. Memberships, Public offices and teaching position held iv. Foreign language fluency. (must be fluent!) v. Names of regularly represented clients w/ their consent vi. Accepting fees by credit card vii. Legal fees, contingent fees rates (and if does so, the firm shall abide by the ad). viii. Bona fide professional ratings. (super lawyers probably ok if a bona fide service). 3. Assuming the ad is otherwise in accord with the RPC and is factually supported by the firm on the date of publication. Ad may also contain: i. Reasonable expectations about results ii. Compare lawyer s services iii. Endorsements from former clients iv. And must contain the disclaimer: prior results do not guarantee a similar outcome. 4. Domain names: you can use a domain name that d/n include the firm name ex. winner.com, provided that: all pages include firm name, and it does not imply a result (winner.com would do this). i. What is misleading?promised outcomes and ability to achieve results from improper influence / clout. ii. Telling clients about connections with agency administrators is improper. 5. Telephone & radio ads must be kept for at least 3 years. 6. Ads contained in a computer must be retained for not less than 1 year. 7. Contingent fees i. You must clearly state terms and basis of the rate. ii. You must make it clear what client will be responsible for and that contingency fees are not permitted in all types of cases.

D. Soliciting clients: all solicitationsare advertisements and are subject to advertising rules. 1. Rule: lawyers may NOT solicit for pecuniary gain by in-person or telephone contact, real-time or interactive computer access communications (includes chat rooms, instant messaging, but does not include websites, pop-ads or email- these are too impersonal) UNLESS the recipient is: i. Close friend ii. Relative iii. Former client iv. Existing client 2. Exception: no solicitation if clients says stop. 3. A lawyer cannot assist another lawyer in violating solicitation rules. Ex. partner A tries to get now clients for partner B. 4. Lawyer may not violate rules through the acts of a non-lawyer: ex. lawyer pays guy to give cards at scene of accident. E. Targeted mail: 1. you may send mail to groups of people like in need of services (ex. everyone arrested fro DUI last week) 2. if self-mailing brochure , the words attorney advertising must go in subject line (this however puts the email in spam) 3. if retainer agmt in solicitation, the words do not sign must appear on client signature line. 4. These rule apply to non-NY lawyers. 5. Solicitations direct to predetermined recipients MUST how lawyer learned of recipient identity. 6. No solicitation for personal injury or wrongful death matters by lawyer before the 30th day of the incident, unless a filing is rqed in less than 30 days, in which case no unsolicited communication is allowed until the 15th day after the incident. Ex. on plane crashing in Hudson. Lawyer wants to mail letter to victims advertising services. What s required? i. copy of letter filed w/ grievance committee. ii. Wait until 30 days after the crash iii. Disclose how lawyer obtained identity of recipient. NY lawyer may not solicit someone by written or recorded communication if: y false, misleading or defective y the client has asked not to be solicited y solicitation involves coercion, duress, harassment. y It will emotionally injure the person ex. they re in the hospital y Sent to a place someone other than the business address. In-person, unsolicited advice, do not accept employment resulting from such advice:

y y

ex. you see guy hit and run up and say you have a great case. no- you cannot rep victim ex. victim comes up to you and says do you think I have a case: yes you can represent.

IV. The lawyer-client relationship A. Maintain Confidences of clients 1. Anything derogatory, embarrassing or hurtful regarding your client, no matter what the source. 2. Broader than the attny-client privilege which are confidential and are for legal advice. 3. ex. client tells you about past crime- where the bodies were buried. What can you do? Nothing. 4. Ex. client tells you about elaborate murder scheme. What can you do? You mayreveal the intention of your client to commit murder or substantial bodily injury. 5. Ex. Your client lies on stand and you know it. What to do? i. Direct client to correct testimony. ii. If he refuses, lawyer must disclose perjury to tribunal, even if it requires revealing confidential info. Ex. you tell judge, he told he was at the scene of the crime. Wow. 6. If you terminate the ACR, do not prejudice the client: i. Give client reasonable notice. ii. Return the whole file and iii. Return unused portion of the retainer. B. Exceptions to confidentiality- all permissible, not mandatory: 1. Rqed by rules, law or ct order 2. To obtain legal or ethical advice via use of hypos 3. To prevent client from committing a crime or to prevent reasonably certain death or substantial bodily harm. 4. To protect third parties, such as children from serious risk of harm. 5. To rectify fraud on a tribunal committed by lawyers owner client.**this is must reveal. 6. Disclosure authorized to advance best interest of client. i. Ex. client tells you she is planning to kidnap someone. You can go to the police to prevent a crime. ii. Judge order you turn over work product: you may but not required. C. Safeguard client property 1. You have client s car due to your representing them in a divorce case. you cannot use client s property for personal use. You must safeguard the property. D. Trial Publicity 1. Lawyers may not be stmts that a reasonable person would know would be prejudicial to the case, ex.

i. Character, reputation or criminal record of party ii. Identification of witness or expected testimony iii. Possibility or existence of a conviction and opinion as to guilt or innocent iv. Inadmissible evidence v. That defendant is charged, unless to say that they are presumed innocent 2. Lawyer may state: i. Dry facts ii. Person is of public interest and there is reason to believe they may cause harm iii. in criminal case: info necessary to aid in apprehension of accuses iv. Right of reply: if one lawyer crosses the line, the other party s lawyer can make stmt to mitigate effect of improper stmt. v. ex. DA tells press D is most likely guilty and will probably plead so this week. Defense responds: he is innocent until proven guilty and is an upstanding guy. 1. Murder stmt is allowed, but opinion on guilt & plea stmt are not allowed. Defense attny on character is allowed to mitigate the DA s stmt. V. Conflicts of Interest Rule: lawyer must avoid conflicts and exercise independent professional jdgmt. Accept a case w/ a conflict only if you have clients informed consent. Steps you must take: 1. Explain conflict and risk to client. Disclosure. 2. Ensure representation is not prohibited by law. 3. Obtain consent in writing. After these steps: you must still decide if you can provide competent and diligent representation. Ex. pp. 20 Hall approaches lawyer who has represented oates on separate small matters. Lawyer probably can t represent hall v. oates if oates is a currently client. Cannot use Oates s confidential info in representing hall. Laywers do not testify on behalf of clients, UNLESS: 1. In an uncontested matter. Ex. an uncontested fact that D ran the red light. 2. Nature and value of legal services 3. A matter of formality. Ex. witnessing a signature on a will. Conflict ripe for testing General rules 1. Lawyer s cannot represent adverse interests of client unless lawyer fully explains risks and alternative. Need informed consent and ALL WAIVERS must be confirmed in WRITING.

2. Person who communicates w/ lawyer for person of disqualifying an opposing party from having a lawyer will not get the benefits of a prospective client. 3. Interest in publication rights are prohibited. Generally, a lawyer cannot take a mortgage on a client s property to secure a fee. Exception: a. Retainer provides security interest (SI) can be sought. b. Notice of application to SI is given to other spouse. c. Court approves SI. d. But, an attny shall NOT foreclosure on a mortgage placed on a marital residence remains the title owner, and it is the primary residence. Ex. you offer to take Charlie sheen s case for free in exchange for half of publication rights. Rule: a lawyer cannot even negotiate a media-rights agmt until all legal matters are concluded. Ex. lawyer requires 35% of profits from any media/literary proceeds relating to the incident. No, same as above. Ex. Carmela soprano seeks divorce and in retainer she signs for lawyer to take a SI in any real property. Is this permissible? No, unless notice of the SI was given to tony. 4. Lending money to clients: ex. your client asks you for money for their infant. No: a lawyer cannot advance any financial assistance to a client in litigation, except for: court costs and expenses of litigation. y NY allows you to pay court costs and expenses of litigation for indigents and pro bono clients. 5. Fee payment by third party: ex. homer and marge are getting a divorce. Homer s mother is paying, she instructs you to make sure marge gets nothing. Homer tells you he d/n want a divorce. y You must take direction from client, even though mother is paying the bill. 6. Lawyers cannot demand sexual relations as a condition of representation. (preexisting sex is ok). You cannot start a sexual relations matter during representation. No rule of imputation- no partners will not be affected. 7. Doing business w/ clients generally prohibited unless the transaction is fair and reasonable to the client. In such cases: y client should be full informed of the terms of transaction in writing. y client should be advised in writing to review transaction w/ independent lawyer. Ex. lawyer and client want to start restaurant. Is the pship agmt binding? Yes if terms are fair and reasonable to client, and meets other rqmts above. Contrast: you represent a car dealer. Buying a car from them is not doing business b/c the deal is not relying on lawyer s advice.

8. Lawsuits between current and former clients: You may represent a current client in an action against former client except: y when you have confidential info which is now relevant OR y ex. you know about the client s financial information which may apply to a lot of future cases Note: if the info is no longer confidential or if the client consents, lawyer may consent new client against former client. y You can never represent a current client against a current client. That is always a conflict and even consent will not cure the conflict. y Ex. Carmella finally finds a lawyer that tony hasn t already talked to about the case, but the lawyer has represented Tony s sanitation company on a parking ticket in the past. Can the lawyer take the case? yes, as long as tony is no longer a client. Representing a corporation or pship, you represent the entity. 1. Duty to protect the best interests of the org and report violation to a higher authority w/in org. 2. Duty to report securities violation up the chain of command to CLO. 3. If not appropriate response from higher ups- go to the board of directors. 4. You may reveal confidential into to extent necessary to protect client (corporation). Lawyer has discretion. 5. Lawyer should try to minimize disruptions to corp. and risk of revealing confidential info to persons outside the org. y Ex. ceo of ford tells you keep something confidential. You must tell ceo, you represent thecorp and not him individually, if ceo d/n correct problem, you report up the chain of command. 10. Representing the insured: lawyer represents the insured, not the insurance company paying the bills. You keep insured info confidential and you send out a letter of engagement.

VI. Handling money- yours and your clients Rule: explain fees, keep reasonable, cannot set min or max fee schedule. y Exception: lawyer can enter into a minimum fee agmt once she sets forth how fee will be incurred and calculated. Note: there is a cap on lawyers fees in Personal Injury cases and wrongful death. B. Ratifying a fee agmt: 1. A client may ratify an attny s fee agmt during: a period of continuous representation, even if attny misconduct occurs during the period, so long as the ratifying is not a result of misconduct. 2. A client can ratify so long as: Client has a full understanding of facts and has knowledge of their rights as a client.

C. Be aware of when you cannot charge contingent fees. You cannot charge a contingent fee in a criminal matter. Note: medical malpractice is quasi crim. You cannot charge a contingent fee if you represent the doctor. y No contingency in domestic relations matters, which in NY includes past due alimony and child supportor other proceedings to enforce divorce jdgmts. Different in ABA. y After representation is over, lawyer must provide a closing statement, stating the outcome of the matter and computing the fee. It must be filed with the appellate division.

D. Written letter of engagement. If fees are projected to be $3000 or more, fee agmt must be in writing. However if this is old client, you don t have to do this b/c their not accustomed to it. Retainer agmt or letter of engagement must include: 1. scope of legal services provided 2. explanation of attny s fees to be charged 3. expenses and billing practices 4. notice of client s right to arbitrate a fee dispute Exceptions: not subject to this rule (no letter required) if: a. services are of the same general kind as previously rendered to and paid for by the client. b. Attny has no office in NY, and is admitted in another jx, or c. no material portion of services are performed in NY d. if a domestic relations matter, a more specific letter is required note: in a & c above, must still orally communicate the scope of the rep. and the basis of the fee. E. Domestic Relations matters Very broad definition- all aspects of divorce 1. fee amt must be in writing signed by client and laywer 2. lawyer must give prospective client a stmt of their rights and responsibility at the initial conference and prior to signing retainer. 3. No non-refundable fees in DR matters (or any other matter). 4. c/n use contingency fee to collect unpaid alimony or child support. 5. Fee disputes should be resolved by arbitration at the election of the client. 6. Periodic billing must be sent out every 60 days and at conclusion of case, attny must send back any unused portion of retainer. F. Relationship with non-lawyer: lawyer cannot be partner with a non-lawyer if any part of the partnership involved the practice of law.

1. Never divide a legal fee w/ a non-lawyer. Hypo: Bill, a lawyer who is also a real estate broker, goes into business w/ another broker. Can bill split real estate fees? Yes under facts he can split brokerage fees b/c he s not practicing law. Exceptions (can share these types of fees): a. salaries, retirement plans, bonuses, profit sharing b. spouses of deceased partners to pay fees earned by deceased partner. But an attny and non-attny can share office space, so long as the physical space is separated. y Non-lawyer s clients cannot be coerced into using lawyer s services. G. Referral fees are prohibited Hypo: You need a bankruptcy expert to help you with an aspect of your PI case. Can you brink in that expert?yes, but in order to split fees: 1. you need client consent to the hiring of the lawyer and division of the fee 2. total fees must be reasonable 3. division must be in proportion to the serviced performed or 4. each lawyer must assign joint responsibility for representation in a writing with a client. H. Retainer; 2 types 1. Advance on fees(belongs) to client (goes into trust account) 2. Availability or general retainer (belongs to attny- goes into their account) I. Put money in proper accounts: 1. Two typesof accounts that every lawyer must have: 1. Operating account: this is the firm s account 2. Client trust: only client s money goes here, but bank fees must be covered by lawyer s money. 2. General rules of client trust accounts: don t mix up your client trust account with your operating accounts: a. must be aNY bank b. funds to maintain the account are the only lawyer funds that can be put in the client trust account c. For small sums accumulating interest, interest is swept out and sent to NY IOLA fund (the interest on lawyer s account fund). d. dishonored check reporting: client funds must be placed at a bank that will provide this when check bounces y A copy of this 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 and deposit additional funds from your own account. J. Common client trust account problems

Hypo: lawyer short on money, borrow $100 from client trust account, writes a promissory which pay 3x going interest rate. Problem?yes this is conversion, even if he pays the money back. Hypo: Lawyer short on money. Gets a retainer for 100k and starts working on case. Bills 2k the first week and transfers money from client trust to operating account. Problem? No, done w/in a reasonable time after sending the bill. Hypo: lawyers has 1/3 contingency agmt. Case settles for 30k, check arrives, lawyer puts it in the client trust account, notifies client. Before lawyer takes out his 10k, the clients says I think you only deserve 3k of the 10k. What to do?pay client 20k. transfer 3k to operating account. 7k remains in client trust account until dispute is resolved. K. Fee dispute Resolution Program 1. In NY in a civil matter, fee disputes between Lawyer and Client are subject to arbitration at the client s option. (lawyercan t just go to court) y client must be told about this option in the letter of engagement. Exceptions to this mandatory program: a. criminal matters b. if amt in dispute, if less than $1000 Or greater than $50k, you can go to court c. dispute involves malpractice. VII. Being professionally responsible- How far does it extend? 1. Subordinate lawyer: must follow rules even if acting at another s direction y No violation if on an arguable question of ethics. 2. supervising lawyer/partner: must abide by these rules and ensure that all lawyers and non-lawyers acting at their direction conform to the rules. y Managing lawyer (supervisor) 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. Hypo: Supervisor tells subordinate to sign the client s name and notarize the affidavit himself. Super says him and the client are great friends. What should sub do? Refuse to sign the affidavit and report the rule violation. There is a law that will allow him to sue for wrongful termination. B. Conducting litigation fairly 1. Ex Parte Communications during trial a. With juror y Lawyer cannot speak to a jury for any reason. Not even to tell them where the bathroom is.

After trial, it s ok unless: 1. prohibited by court order 2. juror d/n want to talk 3. purpose is to harass juror b. With judge: you c/n communicate w/ judge other than customary communication or in a settlement conference. c. With adversarial party: no communications with represented party. d. With witnesses: generally no limitations. Exception: if W is a high-level corporate officer or corporate employee- you must obtain corporate counsel s permission to speak with them. y Ex. lawyer Macgyver speaks to juror, speaks to the defendant and puts together a settlement in the hallway, and then tells judge of settlement. No, no, no. He can talk to the witness though. 2. Adverse authority Lawyer has affirmative duty to disclose contrary or adverse authority, which means:case law or statues, directly adverse to client s positionbut the duty does not extend to facts or witnesses adverse to client s position. Hypo: You know of a case that is directly on point for opposing counsel. During trial, opposing counsel argues and fails to rasie the case. the judge d/n raise the case. What do you do? disclose the on-point but probably try to distinguish your case from it. 3. In an ExParte proceeding: y lawyer must disclose all facts (even those adverse to your client) so the tribunal can make an informed decision. C. Special duties of prosecutor 1. Proceed only on probable cause. 2. Must disclose(in a timely manner) evidence tending to negate the guilt of the excused or reduce the punishment. D. Voluntary pro bono service 1. strongly encouraged and should provide 20 hours of pro se representation per year. 2. contribute financially to organizations that provide such services E. A lawyer must uphold the integrity of the profession and should not make unfair or derogatory remarks about other lawyers and or makes gifts to judges. y contribution to a judges campaign is ok (even if you appear regularly b/f the judge). F. Every attny shall file a registration stmt every year when duly admitted to the NY bar. It s a public record.

On NY essays, if you see a lawyer/conflict problem, add the following rule segment after you have framed the issue. y y Civil: a lawyer must represent his client zealously w/in the bounds of the law and make only meritoriously claims and contentions. Criminal: a lawyer must represent his client s zealously w/in the bound s of the law but may defend the proceeding so as to require every element of crime to be established.