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Notes--NY Professional Responsibility--form filled in--1 day

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Notes--NY Professional Responsibility--form filled in--1 day

     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 somehowweaved in with other issues

I. New York State Lawyer’s Code of Professional Responsibility

    A. Disciplinary Rules (DR’s)

    __________________________________________________________________

    These are "must" rules and if violate;subject to discipline

     ―Discipline‖ is different than legal malpractice. Violation may lead to malpractice

    ____________________________________________________________

    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 practicefraudulent 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

     BAR/BRI BAR REVIEW NEW YORK PROFESSIONAL RESPONSIBILITY

    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

     BAR/BRI BAR REVIEW NEW YORK PROFESSIONAL RESPONSIBILITY

    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.

     BAR/BRI BAR REVIEW NEW YORK PROFESSIONAL RESPONSIBILITY

    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 thingsbusiness 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

    mail

    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

     BAR/BRI BAR REVIEW NEW YORK PROFESSIONAL RESPONSIBILITY

    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

    __________________________________________________________________

    __________________________________________________________________

    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.

     BAR/BRI BAR REVIEW NEW YORK PROFESSIONAL RESPONSIBILITY

    3. Locality (NYhighest 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 insuredletter 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

     BAR/BRI BAR REVIEW NEW YORK PROFESSIONAL RESPONSIBILITY

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.

     BAR/BRI BAR REVIEW NEW YORK PROFESSIONAL RESPONSIBILITY

    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 11D.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

    matterfee disputes between attorney-client are subject to arbitration at clients matterfee disputes between attorney-client are subject to arbitration at clients

    option option

    b. Exceptions3 major ones b. Exceptions3 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

     BAR/BRI BAR REVIEW NEW YORK PROFESSIONAL RESPONSIBILITY

    c. See also pg 10Contents-c. You must give notice of right to arbitrate when : c. See also pg 10Contents-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

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