BAR/BRI BAR REVIEW – NEW YORK PROFESSIONAL RESPONSIBILITY
? Copyright 2006 to completed compilation. All such rights reserved. No claim to original.
BAR BRI BAR REVIEW
NEW YORK PROFESSIONAL RESPONSIBILITY
Prof. Patrick M. Connors
Albany Law School
Always tested since 2000 introduce on essay somehow—weaved in with other issues
I. New York State Lawyer’s Code of Professional Responsibility
A. Disciplinary Rules (DR’s)
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These are "must" rules and if violate;subject to discipline
―Discipline‖ is different than legal malpractice. Violation may lead to malpractice
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B. Ethical Considerations (EC’s) These are ―should rules.‖ No discipline for violating
this
II. Misconduct – A lawyer or a law firm shall not (NY is only state that allows disciplining the – A lawyer or a law firm shall not (NY is only state that allows disciplining the
entire firm, since 1996. Not done yet) entire firm, since 1996. Not done yet)
A. Violate a DR;Subject to discipline. Violate
B. Circumvent a DR through actions of another;Misconduct (eg, attorney gave
money to ambulance driver to give business card if picks someone up)
C. Engage in illegal conduct that adversely reflects on the lawyer’s honesty,
trustworthiness or fitness as a lawyer (eg, attorney assisting client with perjury) (eg,
illegal conduct outside of practice—fraudulent insurance claims for home insurance)
D. Engage in conduct involving dishonesty, fraud, deceit or misrepresentation
Even if not illegal you're subject to discipline for engaging in this
E. Engage in conduct that is prejudicial to the administration of justice.
Very broad. This is was Arkansas got Clinton on
F. Unlawful (employment) discrimination in the practice of law.
For hiring, promoting, or other way (eg, only female clients)
BAR/BRI BAR REVIEW – NEW YORK PROFESSIONAL RESPONSIBILITY
G. Engage in any other conduct that adversely reflects on the lawyer’s fitness as a
lawyer.
Attorneys have been disciplined for carrying pot
Judicial ethics;will not be tested standing alone (except eg, ex parte talks)
III. Reporting Misconduct
A. Duty to Report Rule;attorney must report another attorney’s violations of DR’s
that raise a substantial question as to that attorney’s honesty, trustworthiness,
or fitness as an attorney (must be substantial)
B. Exception - ―Confidences‖ and ―Secrets‖
If L learns of violation in context of representation;no duty to report
i. this includes anything learned via L-client relationship, even if the client is
not the L (but you can tell client that you would like to report it, but must get
client to consent to waiving attorney-client privilege
C. Duty of Cooperation
If L called in by grievance committee;duty t cooperate
D. Lawyer Fired for Reporting Another Lawyer’s Violation of a Disciplinary Rule
COA;you can't be fired solely for reporting this violation as reqq
NOTE: you as co-L have no duty of confidentiality
IV. Responsibilities of Supervisory Lawyers and Subordinate Lawyers
A. Law Firm;must make efforts to ensure that all Ls comply with DR’s
B. Supervisory Lawyers;same duty as to subordinate Ls (make sure underlings
following Dr’s)
C. Subordinate Lawyers;must obey Dr’s even if acting at direction of superior
V. Disciplinary Authority and Choice of Law
A. Disciplinary Authority
Jurisdiction/Power to discipline L;L admitted in NY can be discipline in NY for
any conduct wherever it occurs
B. Choice of Law
1. Conduct in connection with a proceeding
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apply state’s where proceeding conducted
2. Any other conduct
a. Lawyer only admitted in New York;NY code
b. Lawyer admitted in New York and another jurisdiction;apply rules of
jurisdiction where L principally practices, unless conduct has
pre-dominant effect elsewhere, in which case you apply rules of that
jurisdiction
VI. Preservation of Confidences and Secrets
A. Confidences
THIS IS MUCH BROADER THAN THE ATTORNEY-CLIENT PRIVILEGE, WHICH IS ONLY A RULES OF EVID
Any info protected by attorney-client privilege
B. Secrets - any other information gained in the professional relationship that:
1. Client requested to be kept confidential_(client doesn’t waive secrets if tells other
people)
2. Would embarrass the client if revealed
3. Would be detrimental to client if revealed
C. Generally, a lawyer shall not:
1. Reveal a confidence or secret
2. Use a confidence or secret to client’s disadvantage (can't even get consent to do
this)
rd3.Use a confidence or secret to advantage of L or 3 person, unless client consents
(eg, corp L privy to this info to use insider trading)
D. Exceptions - a lawyer may reveal confidences or secrets in the following five
situations:
1. After client’s informed consent (but cannot use it to disadvantage of client, even
with consent)
2.When required by law or court order
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3. Future crime;To reveal intention of client to commit any crime and info
necessary to prevent crime (eg, if client tells you he’ll commit perjury) (need not involve imminent death or SPI)
4. To collect L’s fee or to defend self from accusation of wrongful conduct in civil malpractice action or disciplinary proceeding
5. Later withdrawal of discovered past improper conduct;To the extent
implicit in withdrawing a written or oral opinion or representation previously given by the lawyer that the lawyer now knows is false.
Example – a. False statement of net worth in divorce action. You know other side is relying on it. You may withdraw it later upon learning of falsity;implicitly revealing
confidence/secret here
b. Withdrawal of interrogatory response
E. A lawyer has a corresponding duty to ensure that her employees, associates and
others whose services she uses, i.e., accountants, do not reveal confidences or
secrets.
VII. Advertising (non-personal communication)
A. Rule;A lawyer shall not use or disseminate or participate in the preparation or dissemination of any publication or communication to a prospective client containing
statements or claims that are false, deceptive or misleading.
B. Examples of proper advertising:
1. Education, degrees and other scholastic distinctions.
2. Dates of admission to any bar.
3. Areas of law in which lawyer or law firm practices (limited to tort cases)
(CANNOT say you specialize in bankruptcy)
4. Public offices and teaching positions held.
5. Memberships in bar associations or other professional societies or
organizations.
6. Foreign language fluency.
7. Names of clients regularly represented, provided: client consented in writing 8. Bank references.
9. Credit arrangements accepted.
10. Legal fees for initial consultation.
11. Contingent fee rates in civil matters, only when accompanied by the
following:
a. whether percentages are computed before or after deduction of
costs, disbursements and other expenses of litigation.
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b. a statement that, in the event of no recovery, the client shall remain
liable for the expenses of litigation, including court costs and
disbursements
12. Range of fees for services, provided that there be available to the public, free
of charge, a written statement clearly describing the scope of each advertised
service
13. Hourly rates.
14. Fixed fees for specified legal services (must be a specific legal service)
15. Other things—business card, brochures
a. General rule;anything else that is not misleading
i. Past performance;cannot put in awards received in other cases,
unless you have a thorough disclaimer with it
C. Radio and Television Ads
a. Requirements
a. Pre-recordeed
b. Tapes and approved for broadcast by the L
c. L must keep copy of ad for 1 year following last transmission
D. Direct Mail
Permitted, but L must
file copy of ad with appellate division and L cannot reference the filing in the
keep mailing list following last mailing
See other rules on pg 8
E. Changes in Rates
If L advertises fees, cannot change the rate until after a reasonable period of
time and must keep that rate open for at least 30 days
F. Name, Office Address and Phone Number
Each as must include this info for a L or firm whose services are offered
VIII. Solicitation
NY applies these rules to written/recorded communication and personal communication
A. A lawyer shall not solicit professional employment from a prospective client in
person or by telephone contact.
i. Four exceptions
1. Close friend
2. Relative
3. Former client
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4. Current client
B. A lawyer shall not solicit professional employment by written or recorded
communications if:
1. the communication is false, misleading or deceptive (eg, promise results)
2. the recipient has communicated a desire not to be solicited by the lawyer.
3. the solicitation involves coercion, duress or harassment (eg, to someone in
the hospital)
4. the age or the physical, emotional or mental state of the recipient make it
unlikely that recipient will be able to exercise reasonable judgment in
retaining an attorney (eg, sending to nursing home)
5. the lawyer expects, but does not disclose, that the legal services necessary to
handle the matter competently will be performed primarily by outside L than
the soliciting lawyer as:
a. Partner
b. Associate
c. Of counsel
C. Referral Fees
L cannot give anything of value to person or entity for recommending employment
D. Refusing Employment
L must refuse employment if person who seeks to retain L does so because of
violation of these rules (client learns of L because ambulance driver gave him L’s
business card, which L paid driver to do)
IX. Fees
A. No Excessive Fees
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__________________________________________________________________
Factors:
1. Time and labor required;no double-billing
2. Opportunity cost;likelihood, if apparent or made known to the client, that
the acceptance of the particular employment will preclude other employment
by the lawyer.
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3. Locality (NY—highest fees in the country)
4. Amount involved and results obtained
5. Time limitations imposed by the client or the circumstances 6. Nature and length of the professional relationship;longer relationship can
charge more (knowledge or certain matters enhance efficiency) 7. Experience, reputation and ability of the lawyer
8. Whether fee is fixed or contingent
Contingent fee can result in a higher hourly rate (NY: $1500/hr is
unreasonable as a matter of law)
B. Written Letter of Engagement
Generally you need this formal writing anytime you have a client
No delivery method specified
No client signature required
1. Effective Date: March 4, 2002
2. Contents
Insurer;if L paid by insurer to represent insured；letter of engagement
must be sent to insurer and insured (see pg 21)
a. Explanation of scope of services to be provided
b. Explanation of fees, expenses, and billing practices
c. Notice of client’s right to arbitration of fee disputes
3. Exceptions (not need letter, but wise to use anyway)
a. If used signed retainer (usually signed by L and client) agreement that
includes the 3 items required above
b. Where fee expected to be less than $3,000
c. Where L’s services of same general kind as previously rendered and paid
for by client
d. Domestic relations matters (see pg 11) (because a different,
more-specific letter required)
e. Where L has no office in NY or no material portion of services rendered
in NY
C. Contingent Fees
1. Writing required, and must contain additional contents:
a. method by which fee is to be determined, including percentage that
shall accrue to lawyer in the event of settlement, trial or appeal.
b. Litigation and other expenses to be deducted from the recovery.
c. Whether such expenses are to be deducted before or, if not
prohibited by statute or court rule, after the contingent fee is
calculated
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2. Written closing statement
After representation is over, L must provide client statement computing fee.
The writing and closing statement must be filed with the appellate division
3. Contingent fees are prohibited in:
a. Criminal matter
b. Domestic relations matter
D. Domestic Relations Matters (very broad, not just divorce)
1. Definition: When a lawyer represents a client in any claim, action or
proceeding, or preliminary to the filing of a claim, action or proceeding in
any court, including appellate courts, for:
a. Divorce
b. Separation
c. Annulment
d. Custody
e. Visitation
f. Maintenance
g. Child support
h. Alimony
Proceedings to enforce or modify a judgment or order in connection with any of the above claims, actions or proceedings.
2. No contingent fee in domestic relations matters, even if to collect unpaid
support judgments
3. Fee agreement must be in writing, as prescribed by court rule. The writing
must be signed by the lawyer and the client. A lawyer in a domestic relations
matter shall provide (ie, give it to client) a prospective client with a statement
of client’s rights and responsibilities at the initial conference and prior to the
signing of a written retainer agreement.
4. No nonrefundable fees in domestic relations matters.
5. In domestic relations matters, a lawyer must resolve fee disputes by
arbitration at the election of the client (see also pg. 13-f)
Hypo: Harry and Wendy were married in New York in 1988 and had one child. In
1994, Wendy went to visit attorney Alan to obtain a divorce. Alan told
Wendy that his fee would be $150 per hour and that there would be a $4,000
nonrefundable retainer. Wendy orally agreed to the terms of the retainer and
gave Alan $4,000.
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Alan commenced an action for divorce and ultimately obtained a judgment
for divorce and child support.
Alan then sent Wendy a bill, marked paid in full, which showed that he spent
10 hours working on the action. No portion of the retainer was returned to
Wendy.
1. Was the retainer agreement Alan made with Wendy proper, and was
Alan entitled to retain the $4,000?
No. This is a domestic relations matter, thus fee agreement must be
in writing, as prescribed by court rule. Non-refundable fee
agreements are not allowed. In domestic relations matters, L must
send out periodic billing at least every 60 days. At conclusion of case,
L must return unused portion of retainer.
2. If Harry fails to pay three years worth of child support as required
under the judgment, may Alan represent Wendy in an action to
collect the unpaid child support based on a contingency fee basis?
No. This is where NY diverts from MPRE. (See page 11—D.1.i.)
E. Division of Fees Among Lawyers - a lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or an associate of the lawyer’s law firm unless (all):
1. client consents after full disclosure that a division of fees will be made;
2. division is in proportion to services performed by each lawyer,
or
division may be made in any manner provided each lawyer assumes joint
responsibility for the representation in a writing given to the client
3. total fees of all Ls do not exceed reasonable compensation for all legal
services rendered to the client
F. Fee Dispute Resolution Program
a. Rule;where representation commenced on or after 1/1/2002 in civil a. Rule;where representation commenced on or after 1/1/2002 in civil
matter；fee disputes between attorney-client are subject to arbitration at client’s matter；fee disputes between attorney-client are subject to arbitration at client’s
option option
b. Exceptions—3 major ones b. Exceptions—3 major ones
a. Fee disputes in criminal matters a. Fee disputes in criminal matters
b. Amount in dispute <$1,000 or >$50,000 b. Amount in dispute <$1,000 or >$50,000
c. Claims involving malpractice c. Claims involving malpractice
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c. See also pg 10—Contents-c. You must give notice of right to arbitrate when : c. See also pg 10—Contents-c. You must give notice of right to arbitrate when :
letter of engagement and when dispute arises. You cannot go to court to sue for letter of engagement and when dispute arises. You cannot go to court to sue for
fee even if client agrees to the amount owed;must first go to arbitration fee even if client agrees to the amount owed;must first go to arbitration
X. Withdrawal
MORE LIKELY TOPIC THAN OTHERS (NY HAS HAD PROBLEMS LATELY)
A. Permission of Tribunal
If matter is before tribunal L must get court’s permission before withdrawing from
employment (even if fired by client)
B. Delivery of Property
L must return client’s property upon withdrawal (eg, unused portion of retainer,
entire file including document drafts except for “sage”—initial memos evaluating
case)
Exception;retaining lien (may exercise this if client didn’t yet pay bill, and
may hold up property given to L)
C. Mandatory Withdrawal - a lawyer representing a client before a tribunal must
make a motion to withdraw from representing the client where:
1. the lawyer knows or it is obvious that the client is asserting a position in the
litigation merely for the purpose of harassing any person (eg, frivolous suit)
*duty arises upon realization of frivolousness)
3. continued employment will result in the violation of disciplinary rule (eg,
perjury)
3. the lawyer’s mental or physical condition make it unreasonably difficult to
carry out the employment effectively; or
4. L discharged by client
D. Permissive Withdrawal - a lawyer may withdraw from representing a client, or
make a motion to withdraw if:
1. withdrawal can be accomplished without material adverse effect on the
interests of the client;
2. the client insists on presenting a frivolous claim or defense;
3. the client persists in a course of action involving the lawyer’s services that
the lawyer reasonable believes is criminal or fraudulent;
4. the client insists that the lawyer pursue a course of conduct that is
illegal of prohibited by DR’s