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Types of Punishments
(1) A letter of admonition from disciplinary committee (least severe)
(2) Public or private censure by the courts
(3) Suspension—Name can stay on the door and letterhead
(4) Disbarment (most severe)—names comes off the door, letterhead. Cannot practice
Who can sue a lawyer for malpractice?
Constitutional limitation on bar admission requirements
The requirements must be rationally related to the practice of law.
Requirements for Applicants When Applying to the Bar
- Applicant must show good character.
- Applicant has a duty to cooperate.
Requirement to Provide Info about Other Applicants
Good applicants—aspirational, “should” give input.
Bad applicants—duty to report on moral turpitude. E.g. Perjury, bribery, theft.
Who regulates the legal profession?
State's highest court and its agencies
Duties When You KNOW of a Violation
- Self-Regulating Profession:
- (1) You must report what you know unless it is protected as confidential info.
(2) You must be available to testify against the lawyer. (No anonymous snitching.)
Duty to Report Misconduct v. Duty of Confidentiality: Who Wins?
- When a lawyer learns of the bad conduct of another lawyer through representation of that lawyer as a
- client, the duty of confidentiality will trump the duty to report the misconduct to the bar, but he may not recommend the lawyer for admission to another state
Multi-Jurisdictional Practice: Will discipline in one state trigger discipline in the other?
No. Other states makes an independent determination. Most other states will give some effect to another’s state’s determination on the basis of full faith and credit or comity.
Permissible Temporary Multi-Jurisdictional Practice: When can you practice law where you aren't licensed?
- (1) Associate with an active local lawyer
- (2) Special permission called pro hac vice.
- (3) Mediation or arbitration out of home-state practice.
- (4) Anything reasonably related to lawyer’s home-state practice.
- (5) Multi-state Firms: lawyer only practices where admitted, and the firm letterhead indicates the states of admission.
PR Choice of Law Issues in Multi-Jurisdictional Practice
If licensed in NY only, then NY law and rules apply.
If admitted to NY and another state, rules of the state in which the lawyer principally practices will apply unless the conduct’s key effect is in another states, then the OTHER state’s rules will apply.
What decisions are reserved to the CLIENT?
Decisions of substantive legal import:
- (1) Whether to sue, appeal, settle, a bench or jury trial
- (2) Whether to testify in a criminal case
What decisions may the LAWYER for the client?
(1) Depositions, discovery—Client can veto as to cost.
(2) Granting continuances
When Can a Lawyer Substitute Client's Judgment With His Own?
General Rule: If client is a minor or loses the ability to make a decision, get a guardian appointed
- NY RULE: Attorney can take protective action and seek to substitute judgment for a client if ALL three of the following are met:
- (1) The client has diminished capacity.
- (2) The client is at risk of substantial physical, financial or other harm; AND
- (3) The client cannot adequately act in his own interest.
May a lawyer reject a potential client's case?
Lawyers have a general freedom to reject cases, although they should take cases involving the oppressed or defenseless and should do their fair share of pro bono work.
When MUST a lawyer withdraw from representation?
An attorney MUST request to withdraw from representation if—
(a) When a lawyer knows or it is obvious from the start that the client’s position is frivolous or is to harass or maliciously injury any individual;
(b) If the lawyer becomes impaired mentally or physically;
(c) An Rule of Professional Conduct (RPC) would be violated in NY by your representation; or
(d) Client fires the lawyer.
When MAY a lawyer withdraw from representation?
Client’s claim or defense is frivolous. [On Exam, always err on the side of getting out.]
Client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes a criminal or fraudulent.
Client deliberately disregards an agreement or obligation to the lawyer as to fees or expenses.
Client uses lawyer’s services to perpetrate a crime or fraud.
Lawyer’s continued employment is likely to result in the violation of a Rule.
Lawyer’s inability to work with co-counsel indicates had the best interests of the client are served by withdrawal.
Definition: Competence (of Lawyer)
- Being physically and mentally able
- Being substantially competent
- Have time to devote to the case.
Can overcome lack of competence by association, learn it in time, emergency [ALE].
Definition: Practice of Law
- Practice of law is everything that requires a law license.
- Includes appearance in depositions and judicial hearings, drafting substantive legal documents, settling cases with clients.
You may NOT help non-lawyers engage in the unauthorized practice of law.
Rules re: Non-Compete Agreement
- A lawyer may not enter into a non-compete agreement or provision with his current partners or associates EXCEPT:
- (1) Retirement;
- (2) Withdrawal from the firm.
Rules re: FIRM NAME
- Firm name must be appropriate. Cannot make it up. Dead people are okay.
- NY RULE: Trade names are NOT permitted
When can a lawyer advertise himself as a SPECIALIST?
(1) He has been certified by a private organization approved to certify by the ABA or NY state;
(2) Certifying organization is identified in the ad; AND
(3) Lawyer states that certifying organization is not affiliated with govt authority, certification is not required to practice of law in NY, and the certification does not indicate greater competence of the lawyer over the non-certified.
How do you advertise you "specialize" in an area if you do not qualify as a specialist?
To let people know you practice in a particular area, term of art is “limited to” or “practice primarily in.”
Definition: LAWYER ADVERTISING
- Any public or private communication made by or on behalf of a lawyer or law firm about the lawyer or
- services, the primary purpose of which is to retain the lawyer or law firm.
EXCEPTION: Communications to existing clients or other lawyers.
Definition: Computer-Accessed Communication
- 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.
- E.g., websites, blogs, search engines, email pop-up ads, chat rooms, listservs, IMs, and other Internet presences.
What MUST an ad include?
(1) Name, principal law office address, and telephone number of the lawyer or law firm whose services are being offered.
(2) Any words or statements required by the rules must be clearly legible and capable of being read by the average person and understood if spoken aloud.
(3) The label: “Attorney Advertising” on the first page.
*What MAY an ad contain without requiring a disclaimer?
- Assuming the following info is TRUE AND NOT MISLEADING:
- (1) Educational background and degrees
- (2) Public offices and teaching positions held
- (3) Foreign language ability (must be fluent)
- (4) Legal fees, contingent fee rates, range of fees for services (and if it does so, the firm shall not charge more than the advertised fee)
- (5) Assuming the ad is otherwise in accord with the RPC and can be factually supported by the lawyer as of the date the ad is published.
- (6) Statements that are reasonably likely to create an expectation about results the lawyer can achieve or which describe or characterize the quality of the lawyer’s or firm’s services.
(1) What MAY be included in the ad if disclaimer is included?
(2) What must the disclaimer say?
- Statements that compare the lawyer’s services with those of other lawyer.
- Testimonials or endorsements of clients otherwise not prohibited.
- Testimonials or endorsements of former clients
(2) "Prior results do not guarantee a similar outcome."
What MAY NOT be in an ad?
(1) A paid endorsement or testimonial about lawyer/law firm without disclosing that the person is being compensated.
(2) Actors to portray the lawyer, firm members, clients or events without disclosure.
May a law firm's use of a domain name that is not the firm name?
- DEPENDS. Lawyer/law firm may utilize a domain name that does not include the name of the lawyer/law firm ONLY IF:
- (a) All pages clearly and conspicuously include the actual name of the lawyer/law firm;
- (b) lawyer/law firm in no way attempts to engage in the practice of law using the domain name;
- (c) The domain name does NOT imply the ability to obtain results in a matter.
When is an ad MISLEADING?
- If it promises outcome or the ability to achieve results because you have clout or inappropriate
- influence. Also, it cannot advertise that you advance litigation fees.
Pre-Approval and Retention Requirements for Ads
All ads must be pre-approved by the lawye
r and a copy must be kept
- ONE YEAR for computer-accessed communications
- THREE YEARS for all other ads.
**Contingent Fees in Ads
Must clearly state the terms of basis of the fees. Must also make it clear whether client will be responsible for any costs and that they are not permitted in all types of cases.
LAWYER ADVERTISING: Definition of SOLICITATION
Any advertisement initiated by or on behalf of a lawyer/law firm that is directed to or targeted at a specific person(s), or their family or legal representatives, the primary purpose of which is the retention of the lawyer/law firm, and with a significant motive of pecuniary gain by in-person or telephone contact, real time or interactive computer-accessed information*.
*Must be "interactive" so does not include ordinary e-mail, websites or pop-up advertisements.
Rule against Solicitation
Lawyer shall not engage in solicitation UNLESS the recipient is:
- A close friend or relative
- A former client
- An existing client
- Pro bono client
LAWYER ADVERTISING: Definition of TARGETED MAIL
Direct mail sent to groups of people likely to need legal services.
Rules re: Targeted Mail
1. In the case of self-mailing brochures or postcards, the words "Attorney Advertising" shall appear on it; electronic mail shall have in the subject matter line “Attorney Advertising.”
2. If a retainer agreement is included with the solicitation, the top of each page shall be marked “SAMPLE’ in red ink in a type size equal to the largest type size used in the agreement, and the words “DO NOT SIGN” shall appear on the client signature line.
3. Solicitations directed to pre-determined recipients MUST disclose how the attorney learned the recipients identity and need for legal services. A list of the names and addresses of the recipients must be kept for three years.
Do rules re: TARGETED MAIL apply to lawyers non-licensed in NY?
Yes, if they solicit retention by NY residents.
**Is solicitation in PERSONAL INJURY or WRONGFUL DEATH cases permitted?
Yes, but subject to the following restriction:
No solicitation 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.
A lawyer MAY NOT solicit by written or recorded communication if:
The communication is false deceptive or misleading.
Recipient has made known to lawyer a desire not to be solicited.
Solicitation involves coercion, duress, or harassment.
Lawyer reasonably should know that the age or physical, emotional, or mental state of the person makes it unlikely that he/she will be able to exercise reasonable judgment in retaining a lawyer.
Written communication is sent by a method that requires the recipient to travel to a location to receive the mailing other than their usual mail stop.
Is IN-PERSON SOLICITATION allowed?
NO!!! If you give in-person, unsolicited advice, DO NOT accept employment resulting from such advice.
L-C RELATIONSHIP: Definition: Duty to Maintain Confidences
Duty to keep client secrets. Owed to prospective*, current and former clients.
Client secrets includes anything derogatory, embarrassing or hurtful regarding your client, no matter what the sources.
*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 prospective client.
Duty to Maintain Confidences: DEATH OF CLIENT
Duty survives death of the client.
Lawyer's duties if client testifies falsely
- (1) Urge client to correct, recant. Dissuade him from lying.
- (2) If he refuses, disclose to the court, even if protected by confidentiality rule.
Termination of L-C Relationship: Duty to Client
If lawyer terminates relationship, he must do si in a way that does not prejudice client.
Exceptions to Confidentiality
- (1) Required by law or court order.
- (2) To obtain legal or ethical advice for lawyer.
- (3) To prevent a client from committing a crime. Cannot reveal info about past crimes.
- (4) A lawyer SHALL reveal intention of client to commit a crime and the info necessary to prevent the crime.
- (5) To prevent reasonably certain death or substantial bodily harm.
- (6) To rectify fraud on a tribunal committed by the lawyer’s own client.
- (7) Disclosure expressly authorized to advance client’s best interests
Safeguarding Client Property
Lawyer must protect client’s property in a bonded warehouse.
TRIAL PUBLICITY: What a lawyer may or may not say
No statement may be made by a lawyer that a reasonable person would expect to be disseminated if lawyer knows or reasonably should know it will be prejudicial to the case re:
- (1) Character, reputation or criminal record of party;
- (2) Identification of witness or expected testimony.
- (3) Possibility of a guilty plea, existence of a confession, and opinion as to guilt or innocence of defendant or suspect
- (4) Information lawyer knows or reasonably should know will be inadmissible as evidence
- (5) Fact that defendant is charged with crime unless stating it as merely an accusation and that the defendant is presumed innocent.
- Lawyer may state:
- (1) Dry facts about the case
- (2) Warning of danger where there is reason to believe of a likelihood of substantial harm to a person or public interest.
- (3) In a criminal case, info necessary to aid in the apprehension of the accused.
Trial Publicity: RIGHT OF REPLY
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 or client
What must a client do before accepting a case with a conflict?
- 1. Obtain INFORMED CONSENT from all clients:
- a. Client must agree after;
- b. Lawyer explains material risks and reasonable alternatives;
- c. Client agrees in writing. Can be electronic.
- 2. Lawyer must then decide if a reasonably prudent lawyer would take the case.
- EXAM TIP: Would almost always reject. the case, even with informed consent.
Should a lawyer testify on behalf of his client?
- (1) An uncontested matter or matter or formality.
- (2) Fees—lawsuit involves statute that awards attorney fees.
- (3) Substantial hardship if attorney withdraws
***If a lawyer wants to represent an interest adverse to a client or prospective client, what must he do?
Fully explain risks and alternatives (informed consent) and client agrees in writing.
Rule re: interest in publication rights
Lawyer taking an interest in publication rights related to Case Subject Matter are prohibited.
***Rule re: taking mortgage in client's property
Generally, lawyer cannot take a mortgage on a client’s property to secure a fee.
EXCEPTION: In domestic relations
matters, a lawyer may take a lien on real property or obtain a Security Interest (SI) to secure his fee if:
- a. Retainer agreement provides an SI may be sought, and
- b. Notice of application for SI is given to the other spouse, and
- c. Court grants approval for SI after submission of counsel fees.
But an attorney SHALL NOT FORECLOSE on a mortgage placed on a MARITAL residence while the spouse who consented to the mortgage remains the titleholder
, and it is the primary residence
Rules re: loans to clients
- No loans to clients.
- BUT can advance legal fees and cost of litigation, repayment of which is contingent on case outcome.
: NY allows you to loan money to indigents and pro bono clients.
Fee payment by a third party: who makes the client decisions?
Do what the client tells you to do, even if someone else is paying your fee.
***Can a lawyer accept a case between current and former clients?
represent a CURRENT client in an action against a former client EXCEPT:
- a. When your current client wants to sue your former client involving a matter or transaction in which you represented the former client, OR
- b. When during representation of the former client you learned confidential information* that is now relevant to the action by the current client.
If information is no longer confidential or if the client consents in writing, then lawyer may represent the current client.
***May a lawyer represent current client v. current client?
- It is ALWAYS a conflict to represent a current client against a current client in a current matter, even with client consent.
Representing a corporation: Who is the client?
Additional duties when representing a corporation
Duty to report securities violations up the chain of command to CLO. If no appropriate response, MUST report to BoD and MAY report to outside authority.
MAY (discretionary) reveal confidential info to extent necessary to protect client (corporation).
Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing confidential info to persons outside the organization.
Are minimum and maximum fee schedules allowed?
No, EXCEPT a lawyer may enter into a retainer agreement with a client that has a minimum fee clause once it sets forth how such fee will be incurred and calculated.
May a client ratify a fee agreement if attorney misconduct occurs?
Yes. A client may ratify an attorney’s fee agreement during a period of continuous representation even if attorney misconduct occurs during that period so long as the client’s ratification is not procured as a result of the misconduct.
A fully informed client who knowingly and voluntarily affirms an existing fee arrangement that might otherwise be considered voidable, can ratify, so long as that client has a full understanding of the facts and knowledge of their rights as a client.
When are contingent fees barred?
- (1) Criminal cases;
- (2) Domestic relations cases.
Closing statement requirement
In NY, after representation is over, lawyer must provide client with a written closing statement stating the outcome of the matter and computing the fee.
***When does fee arrangement have to be in writing?
If fees are projected to exceed $3K. Client does not have to sign it. Does not apply to services are of the same general kind previously provided to client or if services involve domestic relations matter.
***What must the the retainer agreement / letter of engagement include?
- 1. Scope of legal services to be provided
- 2. Explanation of attorneys' fees to be charged
- 3. Expenses and billing practices
- 4. Notice of client's right to arbitrate a fee dispute
- a. Where the fee is expected to be <$3K
- b. Services rendered are similar to those rendered in the past.
- c. Where lawyer has no offices in NY or no material portion of the services are rendered in NY. Must communicate the letter of engagement to the client.
- d. In a domestic relation matter, a specific letter is required.
Requirements for fee and retainer arrangements in domestic relations matters
Fee agreement must be in writing, signed by lawyer and client. No contingent or non-refundable fees.
Fee disputes in domestic relations matters must be resolved by arbitration at the election of the client.
Periodic billing must be sent out every 60 days and at conclusion of case, attorney must send back any unused portion of the retainer
Lawyer must provide 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.
***May a lawyer be a partner with a non-lawyer?
If any part of the partnership involves the practice of law, NO!
**Rules re: division of fees with lawyers in another firm or non-lawyers
Pure referral fees are unethical, but you can have a reciprocal referral agreement with a lawyer or non-lawyer professional if the agreement is non-exclusive.
**May share fees if: (1) division is in proportion to the work performed. (2) You have informed consent in writing. (3) The total fee is reasonable.
Types of Retainer
(1) An advance on fees—belongs to client and goes into lawyer’s trust account.
(2) Availability retainer—belongs to attorney and goes into lawyer’s personal/firm account. In NY, there are NO non-refundable availability retainers.
Types of Lawyer's Money Accounts
Operating account—the firm account. Attorney’s money goes in here.
Trust account—client’s money goes in here. Okay for attorney to cover bank service charges.
Rules re: Client Trust Account
: You have one, you use it, keep records of its use, don’t mix client’s funds with your operating account.
- a. It must be in NY or elsewhere with client’s written consent.
- b. Bank service charges are the only lawyer funds that can be put into client trust account.
- c. For small sums accumulated, the interest is swept out and sent to the NY state Interest on Lawyer Account (IOLA) fund.
- d. Client funds must be maintained in a bank that provides a dishonored check report—check not honored due to insufficient funds. Copy of report is mailed to lawyer and after ten days, the report is mailed to disciplinary commission to take action.
Fee Dispute Resolution Program
In a civil matter, disputes between lawyer and client are subject to arbitration at the client’s option.
Client must be told about this option in the letter of engagement (where required) and
when a fee disputes arises.
- Fee disputes in criminal matters
- If disputed amount is < $1K OR > $50K
- If claim involves attorney malpractice.
**How do the RPCs apply to SUBORDINATE LAWYERS?
They must obey the RPC. However, no violation if he follow supervisor's instructions on a close call.
**How do the RPCs apply to a Supervisory Lawyer/Partner?
- Yes, they abide by the rules and must ensure all ordinary lawyers follow the rules.
- 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.
Ex parte communications at trial: JURY
outside the courtroom during
- After trial is okay UNLESS:
- Prohibited by a court order
- Juror does not want to talk
- Purpose is to harass the juror.
Ex parte communications at trial: JUDGE
De minimis. In the case of an emergency or during a settlement conference where judge asks to speak with each side ex parte.
Ex parte communications during trial: ADVERSARIAL PARTY
Only through the lawyer
Ex parte communications during trial: WITNESS
Permitted, BUT in a corporation, a witness with a supervisory position or his testimony could lead to corporate liability, you have to go through corporate counsel.
Is there a duty to disclosure of ADVERSE AUTHORITY?
YES. A lawyer has an affirmative duty to disclose contrary or adverse authority, which means cases and statutes from the controlling jurisdiction, but duty does not extend to facts or witnesses.
Duty to Disclose in Ex Parte Proceedings
A lawyer shall inform the tribunal of all material facts known to the lawyer that will make the tribunal make an informed decision, whether or not the facts are adverse.
Special Duties of the Prosecutor
- 1. Proceed only on probable cause; and
- 2. Must disclose in a timely manner evidence tending to negate guilt or which could mitigate.
Voluntary Pro Bono Service
Lawyers should aspire to:
- (1) Provide 20 hours per year pro bono to poor persons
- (2) Contribute financially to legal organizations that provide legal services to poor persons.