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Flashcards in Bar Prep - NY Professional Responsibility Deck (70)

What is the basic rule regarding conflict of interest?

A lawyer SHALL NOT represent a client if a reasonable lawyer would conclude:

(1) representation will involve the lawyer in representing DIFFERING INTERESTS, or
(2) there is significant risk that client would be adversely affected by lawyer's own financial, business, property or other PERSONAL INTEREST.


If potential conflict exists, lawyer can except case (waive conflict) only if ___?

(1) L reasonably believes she can competently represent affected clients
(2) Rep not prohibited by law
(3) Rep doesnt involve claim between two clients
(4) Each client gives informed consent AND confirms in writing.


Mother and child in accident with Jimmy. Can lawyer represent both mother and child in action against Jimmy?

NO - child must assert claim against mother who may also be at fault.


A and B are pulled over and arrested for possession of cocaine present in car. Can L represent both clients?

NO - virtually never permissible to rep co-defendants in criminal case.


True or False: In cross claims, Lawyers can rep. multiple Ds who have cross-claims against each other?

FALSE - L cannot.


What is the general rule of IMPUTATION of conflicts?

If 1 L is conflicted, all L's in firm are conflict, even if in another office of the firm.


What is the rule regarding lawyer as witness?

L shall not represent a client before a tribunal in a matter where L is likely to be a witness on a significant issue of fact. There are exceptions.


What are the exceptions to general rule against L taking case where likely to be witness as well?

(i) Testimony for Uncontested Matters

(ii) Testimony for Value of Legal Services

(iii) Relates to matter of Formality

(iv) Disqualification would create substantial hardship on client

(v) Testimony authorized by Tribunal


What is required for L admission to practice?

Good Moral Character

No false statements on application

Citizenship or residency requirements permissible


How are disciplinary proceedings initiated in NY?

By complaint to Departmental Disciplinary Committee of the Appellate Division


T or F: In NY, lawyers admitted to practice in NY are subject to discipline in NY regardless of where conduct occurs?



What are the rules regarding choice of law issues?

(i) Litigation = rules of forum

(ii) Any other conduct (NY only bar) = NY rules

(iii) Any other conduct (multi-jurisdictional practice = rules of state where L principally practices).


May non lawyers draft real estate contracts or will/estate plans?



May non lawyers counsel on legal implications of tax laws?



What is the rule regarding non-lawyers?

L shall not aid NON-lawyer in the UNAUTHORIZED practice of law (including non-NY lawyers).


What are the exceptions to the general rule where a lawyer cannot practice where unlicensed?

(i) Pro hac vice
(ii) clients with multi-state business
(iii) practice before federal agency
(iv) multi-state law practices


Can a non-lawyer have an interest in law firms?

Generally no.

Exception --> agreement concerning benefits on returement.


What decisions are within the client's power?

SUBSTANTIVE legal decisions.

Commencing action, settlement, plead in criminal case, appeal, electing jury trial


What decisions are within the Lawyer's power?


Discovery methods to use; granting adjournments


If client loses ability to make clear decision or is minor, what result regarding decision-making?

Have guardian appointed, guardian makes decisions.


When can L take reasonably necessary protective action and have guardian appointed for C (even if against C's will)?

(i) Diminished capacity
(ii) Risk of substantial physical, financial or other harm
(iii) C cannot adequately act in own interest


What is rule regarding L ability to reject cases?

L have right to reject all cases, though they SHOULD do fair share of pro bono work.


When MUST L withdraw from representation?

(a) L knows rep will result in violation of law
(b) L suffers physical/mental disability
(c) C fires L
(d) L knows C taking steps SOLELY to harass or maliciously injure another.


When MAY L withdraw from representation?

- Frivolous claim
- Reasonable believe L services used for crime
- C deliberately disregards L fee agmt
- L work likely to result in violation of law
- Fundamental disagreement
- C fails to cooperate with rep.


L should only take cases competent to handle, this includes:

(i) Physical and Mental ability
(ii) Competence in substantive law
(iii) Significant time


How can L overcome incompetence?

By association with competent L OR becoming competent.


How can L limit scope of representation?

(1) limitation is reasonable and
(2) C gives informed consent.


What are the rules regarding permissible firm names?

May not practice under trade or other misleading name.


May L partner with nonlawyers?


Also, May not share legal fees with nonlawyers


What is exception to rule that L may not share legal fees with nonlawyers?

(i) Payments to lawyers' heirs or estate after L's death
(ii) compensation and retirement plan payments for firm employees


What is the key responsibility for a partner, manager or supervisory L?

MUST ensure that subordinates comply with RPC


When is supervising L responsible for subordinate acts?

(a) Orders or ratifies act,
(b) knowingly fails to take remedial action


What is the definition of advertisement?

Any public or private communication made by or on behalf of L or Law firm about firm services, where primary purpose = retaining L or law firm.


T or F: Label "attorney advertising" must appear on first page of any direct mailing or homepage of web site.


Ads must also include name, address, phone number


If ad includes legal fees, contingent fee rates, etc - what result?

The firm shall abide by these rates.


What phrase must be included if ad includes statements that are reasonably likely to creation expectation about results OR statements that compare L services with others.

"Prior results do not guarantee a similar outcome."


What may not be included in ads?

(a) Paid endorsement of/testimonial about lawyer without disclosure
(b) Actors to portray L without disclosure.


When can L use domain name that does not include name of L or firm?

(i) Clear and conspicuously include actual name
(ii) L no way attempts to engage in practice under domain name
(iii) domain name does not imply ability to obtain results


What is considered misleading?

Truthful statements can be misleading if they omit fact necessary to make the lawyer's communication, considered as whole, not materially misleading.


What is the rule regarding solicitation?

NOT ALLOWED to solicit via:

(i) in person communications
(ii) Live telephone communications
(iii) Real time computer chats


When can L solicit "in person" (or via other prohibited ways)?

If recipient is: Close friend, Relative, Former Client or Existing Client.


What is solicitation IN ANY FORM prohibited (even to close family or existing clients)?

(1) Recipient made known no solicitation
(2) Comm. false or misleading
(3) Solicitation involves coercion, duress or harassment


What is the rule regarding targeted mailings?

Generally --> allowed to mail groups of people likely to need legal services

However --> no solicitation for personal injury or wrongful death matter INAPPROPRIATELY close to date of incident (30 days).


What is the duty of confidentiality?

L may not knowingly DISCLOSE confidential information OR use such information to the disadvantage of C


What is the responsibility of a subordinate lawyer?

Must follow RPC even when acting at supervisor's direction.


What is the definition of confidential information?

Info gained during or relating to representation of client that is:

(i) protected by AC privilege
(ii) likely to be embarrassing or detrimental
(iii) info C requested to keep confidential


Which duty is broader - (a) Confidentiality or (b) AC Privilege

Duty of confidentiality.

AC Privilege only address confidential communications between L and C for legal advice.


What are the exceptions to duty of confidentiality?

L MAY reveal confidential information:

(1) Permitted by law
(2) Obtain legal or ethical advice
(3) Prevent C from committing crime
(4) Prevent reasonably certain death or substantial bodily harm
(5) Disclosure necessary to collect fee OR defend oneself.


What is the rule regarding confidentiality during trial?

TRUTH trumps confidentiality before a tribunal.

If C testifies falsely, L MUST correct testimony after advising C of consequences for lying.


What is the general rule regarding advertisements?

Must be true, nondeceptive, not misleading no a violation of RPC.


How long must L retain records of ads?

One year for computer access communications AND three years for all others.


True or False: Ads must be labeled "attorney advertising"



May a lawyer pay people for recommendations?

NO - exception in connection with sale of law practice.


What is required for L to hold himself out as specialist?

Certified as specialist by private org approved by ABA.


What is the key NY distinction regarding L's identification of practice and specialization?


Ad must indicate that organization is not affiliated with NY government and that certification DOES NOT necessarily mean greater competency.


What are exceptions to general rule that L cannot accept rep if (1) rep is materially adverse to another C OR (2) significant risk rep will be materially limited by L's personal interests?

(1) Reasonable belief in competency
(2) Rep not prohibited by law
(3) Rep does not involve one of L's clients vs. another
(4) Each C gives written consent.


True or False: L must not designate oneself as beneficiary unless C is related to L.



True or False: L: must not accept literary or media rights to portrayal or account based on information relating to representation.



What is L's duty establishing compensation for legal services?

Duty to avoid fee misunderstandings


In NY, when must L provide client with written retaining agreement?

If Fees will be $3,000 or more.


What must be included in written retention agreement?

Scope of services; explanation of fees; billing practices; notice of client's rights to demand arbitration.


When are contingent fees prohibited?

(a) Criminal cases and (b) domestic relations matters.

Though when they are allowed -- must be in writing.


Generally, what are L's responsibilities to client?

(1) Basic obligation of competence and care
(2) Duty to preserve confidential information
(3) Duty to protect clients property


What is protected under AC Privilege?

Protects confidential communications made between L and C regarding legal advice.


What is the scope of AC privilege?

Continues AFTER AC relationship ends AND survives clients death.


What is required under duty to protect client's property?

(1) Keep C's property separate
(2) Notify client when property received
(3) Maintain records
(4) Deliver property upon request


What is required under L duty as adviser?

Exercise independent judgment and render candid advice


What is the scope of L's representation generally?

Abide by C's decisions AND act within bounds of law.

Must withdraw if C using L services to commit a crime.


What are the exceptions to the general rule that L must not communication with person represented by counsel?

(1) L has no actual knowledge of rep.
(2) Comm. authorized by law
(3) Subject of comm. is outside rep.


What is required under L's candor toward tribunal?


Make false statements of fact or law,
Fail to correct false statements,
Fail to disclose directly adverse controlling authority,
Knowingly offer false evidence.