NY Professional Responsibility Flashcards
(56 cards)
Start of representation.
Based on Client’s reasonble belief that atty-client relationship has begun
Fee mentioned in fact pattern?
Make sure to consider whether fee is excessive or illegal!
What to do on Conflict of interest problem?
identify clearly the clients
determine whether conflict exists (judgment impaired, or loyalty divided)
deicde whether conflict may be wiaved
Gifts to lawyers
Prohibited from soliciting gift
BUT may accept UNSOLICITED gift if gift meets fairness. Subsantial gifts can be accepted but are VOIDABLE by client.
Child clients
Parents paying for representation are NOT the clients
Violation of Rule of Professional Conduct is….
NOT negl per se
NOT malpractice
IS evidence of malpractice
Use of false evidence distinction
PROHIBITED from using evidence KNOWS is false
MAY refuse to introduce evidence that REASONABLY BELIEVES is false.
Represented rule…. if discovered midstream
Terminate convo immediately
ALSO, does not extend to FORMER EEs of represented corp
Advertising: Statemetns creating expectations
Ok ONLY if factually accuate AND accompanied by disclaimer “prior results do not” ….
Also must include “atty advertising”
Certified specialist
MAY state areas lawyer practices
MAY NOT state “specialist”, unless. … . .
MAY say “certified” so long as includes large disclaimer
Exception: Patent Attorney
Scope of Representation
May limit, but cannot be so limited as ot create infficient representation
Settlement offers
must be communicated, unless standing minimum
Same rule applies to blea bargains
Reqs for client under disability (minors, medical)
Maintain ordinary relationship
Appoint guardian if necessary
Permissive revelation of disability as necessary to protect clinet
Counseling on crime and fraud
YES re legal consequences
NO re HOW to commit
Mandatory withdrawal
coextensive wrt taking on client
Conflict
- violation of professional conduct
- harassment
- atty impairment (drug abuse, eg)
- discharge (absolute client right)
withdrawal requires ct apporval if ct proceeding initiated
Penalty (Liq Damages) for atty discharge
NOT allowed
Permissive withdraw (6)
If HARMLESS to client, then PERMITTED even over client objections
If HARMFUL, may still be permitted, if:
1. RB that client is prusing crime or fraud (need not know.
- Services used for crime
- Fundamental disagreemnt (nazi)
- Unreasonable burden (difficult life). Bad fee deal is NOT enough.
- Client doens’t pay
CT PERMISSION!
After withdrawing
Must return all client’s property and unearned fees
Retaining lien for fee, but cannot sell papers or use to harm client
Reasonableness of Fees
NY apply a factor test: 1. time, 2. hourly rate, 3. novelty of matter, 4, amount in controversy.
more AIC, more in risk, more in fee
ok to accept payment for conflicting out the superstar
PER SE INVALID IN
Fee agreements
Can be oral
But must be in writing if over 3000 OR in matters re domestic relations
Contingency fees
Must be in writing for over 3000
NEVER allowed in criminal cases / domestic relations
Must delineate calculation methodology
Retainers (eg. 10k up front)
Upfront payments are still CLIENT’s money, and must be kept in ESCROW
Taking interest in client (stock, mortgage)
reqs 4
is a form of COI, but one that can be waived by client. REQS:
- in writing
- fair and reasonable
- advise client in writing of prduence of indy counsel
- informed consent in writing signed by client
Fee sharing
reqs 3
Allowed in firm
Outside of firm is permitted ONLY IF:
- overall fee is fair
- kickback is dicslosed to client in writing AND
- referrign lawyer must actual PROVIDE SERVICES!!!!~
