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Flashcards in PR Deck (72)
1

What decns belong to the CLIENT only?

Client’s decns = substantive legal import: Decision to commence an action Settlement Accept a plea in a criminal case Decision to appeal or not Jury or bench trial choice Testifying in a criminal case

2

What decns belong to the ATTY only?

Lawyer’s decisions = strategy, procedure, tactics Discovery methods Granting reasonable adjournments that do not prejudice the rights of a client THUS Run EVERY settlement by the client unless in writing that you can avoid certain sizes For appeals, you have to ask the client and follow the client’s decision  

3

How does a lawyer handle client decnmaking when a client is a minor OR incapacitated?

If the client cannot make a clear decision or is a minor, you have a guardian appointed Get a guardian appointed if: Client has diminished capacity; At the risk of substantial, physical, financial or other harm; AND Clients cannot adequately act in their own interest  

4

What are the 4 circumstances under which a lawyer MUST withdraw?

Lawyer MUST withdraw when... 1) Lawyer KNOWS representation will result in violation of rules or law 2) Lawyer suffers physical or mental disability (including drug addiction) 3) Client fires lawyer 4) Lawyer KNOWS client is taking steps SOLELY to harass or malicious injure another

5

What are the 9 circumstances under which a lawyer MAY withdraw?

Lawyer MAY withdraw if... 1) Client insists on presenting a frivolous claim or defense 2) Client persists in a course of action involving the lawyer’s services that the lawyer REASONABLY BELIEVES is criminal or fraudulent 3) Client deliberately disregards an agreement or obligation to the lawyer as to expenses or fees 4) Client uses lawyer’s services to perpetrate a crime or fraud (i.e. lawyer learned abt it AFTER rep started) 5) Lawyer’s continued involvement is LIKELY (vs. will) to result in the violation of a law or disciplinary rule 6) Lawyer’s inability to work with co-counsel indicates that the best interests of the client are served withdrawal 7) Client insists on taking action with which the lawyer has a fundamental disagreement (narrowly defined) 8) Client fails to cooperate in the representation 9) Withdrawal can be accomplished without material adverse affect on the client

6

What is the duty of competence AND its three prongs?

Lawyers should take only those cases that he or she is competent to handle This includes: Physical or mental competence Competent in the substantive law Sufficient time to devote to the matter NOTE: You can overcome a lack of competence by... 1) association with a competent lawyer; OR 2) becoming competent in the area  

7

Can a lawyer limit the scope of representation?

A lawyer CAN limit the scope of the representation IF... 1) The limitation is reasonable; AND 2) Client gives informed consent NOTE: A lawyer may limit the scope of representation to a particular area of law (i.e., workers’ comp) as long as they explain that there might be other claims AND they get informed consent  

8

What are the restrictions on a firm's name?

The firm name must not be misleading Trade names (e.g. "Aaaabest Law Firm" or "Law Firm of NY") are NOT permitted

9

How can an atty communicate a specialization?

A lawyer may publicly identify one or more areas of law in which the lawyer or the law firm practices OR may state that the practice of the lawyer of the law firm is limited to one or more areas of law   BUT a lawyer may not say he or she is a specialist UNLESS approved by a private organization approved by the ABA or another state

10

What is advertising?

Advertising is any public or private communication made by or on behalf of a lawyer or law firm about the lawyer or law firm’s services the primary purpose of which is for retaining the lawyer or firm EXCEPTION: Rules on advertising DOESN'T apply to communications to existing clients or other lawyers.

11

What 3 things MUST advertisements include?

Advertisements MUST include: 1) Name, principal law office address and telephone number of the lawyer or law firm whose services are being offered  The telephone number may contain a domain name, nickname, moniker or motto that does not otherwise violate the Rules 2) Any words or statements required by the Rules must be clearly legible and capable of being read by the average person and of being understood if spoken aloud On websites, the statements must appear on the home page 3) The label “attorney advertising” must appear on the first page of any direct mail or in the subject line of any email

12

What 9 things MAY advertisements include?

Nine things that are truthful and not misleading: Educational background and degrees Dates of admission to the bar and areas of practice Public offices and teaching positions held Memberships in bar associations and other professional organizations Foreign language FLUENCY Names of regularly represented clients, if the clients consent in writing Acceptable credit arrangements and participation in group or prepaid legal  services programs Legal fees, contingent fee rates, range of fees for services, hourly rates and fixed fees for specific services (and if it does so, the firm must abide by that rate for a reasonable period of time) Bona fide professional ratings, a rating is NOT “bona fide” unless it is unbiased and nondiscrimination

13

Is an ad allowed to create client expectations?

Depends... ONLY IF there is the disclaimer: "Prior results do not g'tee a similar outcome", then an ad MAY INCLUDE... 1) Stmts that are reasonably likely to create an expectation about the results the lawyer CAN achieve; 2) Stmts that compare lawyer's servs w/ those of another lawyer;  3) Testimonials or endorsements of clients or fmr clients; OR 4) Stmts describing or characterizing the quality of the lawyer's or law firm's service  

14

What is forbidden in advertising?

1) A paid endorsement or testimonial about lawyer/law firm without disclosing that he person is being compensated 2) Actors to portray the lawyer, firm members, clients or events without disclosure

15

What are the rules re: domain names?

You can use a domain name that does not include the name of the lawyer/law firm PROVIDED that: 1) All pages of the website clearly and conspicuously include the actual name of the lawyer/law firm; 2) Lawyer/law firm in NO way attempts to engage in the practice of law using the domain name; AND 3) The domain name does not imply an ability to obtain results in the matter (winnerslaw.com)

16

What are additional reqs for TV and radio advertising?

Television and radio ads must be approved by the lawyer, include the name, address, telephone number for the lawyer/firm and kept for 3 YEARS following the initial dissemination Ads contained in a computer-accessed communications shall be retained for a period of not less than one year  

17

How is solicitation by lawyers treated?

All solicitations are advertising and are subject to the rules for advertising... PLUS some add-on obligations.

18

What forms of solicitation are prohibited?

A lawyers shall NOT engage in solicitation by: In-person communication Live telephone communication Real-time or interactive computer access communication NOTE: Does not include websites, pop-up ads, or emails UNLESS you’re soliciting: A close friend; Relative; Former client; OR An existing client NOTE: If the solicitation is improper, that you cannot accept employment result from such communication  

19

When are PERMITTED forms of solicitation prohibited?

No Solicitation (in ANY FORM) allowed if: 1) The recipient has made known a desire not to be solicited; 2) Communication is false or misleading; 3) The solicitation involves coercion, duress, harassment; OR 4) The lawyer intends or expects but does not disclose that the legal services will be performed primarily by ANOTHER lawyer who is not affiliated with the soliciting lawyer as a partner, associate or counsel

20

What are the 6 rules re: targeted mail?

1) You MAY send direct mail to groups of people likely to need legal services 2) In the case of self-mailing brochures or postcards, the words “Attorney Advertising” has to be appear on it  Email has to say “Attorney Advertising” in the subject line 3) If a retainer agreement is included in the solicitation the words “do not sign” shall appear on the client signature line 4) These provisions ALSO apply to lawyers not admitted in NY who solicit retention by NY residents 5) Solicitations directed at predetermined recipients, if prompted by a specific occurrence involving or affect a recipient, MUST disclose how the attorney learned the recipient’s identity and need for legal services A list of the names and address of the recipients must be kept for three years. 6) No solicitation for personal injury or wrongful death suits by the lawyer or any agent/representative before the 30th DAY of the incident, UNLESS a filing is required in less than 30 days, in which case no unsolicited communication until after the 15th DAY after the incident

21

What is a COI?

Basic rule = A lawyer can’t represent a client IF... 1) the representation will involve the lawyer representing differing interests OR 2) there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property, or other personal interests 

22

When can a lawyer take a case in which there is a COI?

If there is a COI, a lawyer can accept the case ONLY IF ALL 4 are met: 1) Lawyer reasonably believes she can competently represent all affected clients; 2) Representation is not prohibited by law; 3) Representation does not involve an assertion of claim by one client against another; AND 4) Each client gives informed consent in writing

23

What is general rule re: imputation of conflicts?

If one lawyer is conflicted, all lawyers in the firm are conflicted

24

Is a lawyer allowed to serve as his client's witness?

Lawyer is not able to represent a client where he’s likely to be a witness on a significant issue of fact UNLESS Testimony related to uncontested matter Relates solely to value of legal services Relates solely to a matter of formality Disqualification would work substantial hardship on a client; OR Testimony is authorized by the tribunal NOTE: this conflict is NOT imputed to other lawyers on the firm BUT a lawyer may not act as an advocate if another in the lawyer in the firm is likely to be called as a witness on the significant issue by another party to the lawsuit (and it is apparent that the testimony may be prejudicial to the client)  

25

When is a lawyer allowed to obtain media rights?

ONLY at the END of a matter  Prior to the CONCLUSION of the client’s entire matter, a lawyer is prohibited from entering into or even negotiating any arrangement or understanding with a client or a prospective client by which the lawyer acquires an interest in literary media interests with respect to the subject of the representation

26

Is a lawyer allowed to acquire a financial interest in a matter?

NO! Can’t take an interest in the cause of action or subject matter of litigation Except: 1) Acquire a lien authorized by law to secure the lawyer’s fee or expenses (i.e. a charging lien) 2) Contract with a client for a reasonable contingency fee in a civil matter NOTE re: domestic relations matters: A lawyer’s retainer agreement may include a security interest, confession of judgment, or other lien, such as a lien on real property to secure the lawyer’s fee, but ONLY IF: Prior notice is provided to the client in assigned retainer agreement Tribunal/judge approves it; AND Notice to the adversary BUT a an attorney shall not foreclose on a mortgage placed on a marital resident while the spouse who consents to the mortgage remains the titleholder, and it is the primary residence.

27

Is a lawyer allowed to financially assist a client?

A lawyer CAN'T advance or guarantee financial assistance to a client for contemplated or pending litigation UNLESS they’re court costs or expenses litigation: You can advance contingent on the result; OR If your client is indigent or pro bono, you can pay them yourself

28

What is the rule re: 3d party payors?

A lawyer cannot accept compensation for representing a client or anything of value related to the lawyer’s representation of the client, from one OTHER than the client, UNLESS: Client gives informed consent; There is no interference with lawyer-client relationship; AND Confidential information is not provided to payor.

29

What is the rule re: sexual relations w/ a client?

Lawyers cannot demand sexual relations as a condition of representation. There is a broad definition of “sexual relations.” Lawyer in a domestic relations matter cannot enter into sexual relations with a client during the course of the lawyer’s representation of the client.  NOTE: EVEN if a sexual relationship PREDATES the ACR, an ongoing relationship can still create a conflict of interest (personal judgment may be affected)

30

Is a lawyer allowed to enter a business trxn w/ a client?

Lawyers cannot enter into a business transaction with a  client IF (i) they have different interests than the client; and (ii) if the client expects the lawyer to exercise his professional judgment on behalf of the client, UNLESS: Fair and reasonable to the client Terms of the transaction disclosed in writing in a matter that can be reasonably understood by the client Client is advised in writing of the desirability of seeking and is given the opportunity to seek an independent lawyer on the transaction; AND The client gives informed consent EXCEPTION: a lawyer can always enter into a standards business contract when it doesn’t use the lawyer’s judgment e.g. buying a car from a car dealer  

31

Can a lawyer represent a current client in a lawsuit against a FORMER client?

YES. You may represent a current client in an action against a former client UNLESS: Your current client wants to sue the former client in matter that’s substantially similar to prior presentation; OR During the representation of the former client you learned confidential information that is now relevant to the action by the current client. NOTE: If confidential information becomes known to the public or the client consents in writing, you can do this. BUT you can NEVER represent two current clients against each other no matter what you’re representing them for

32

Who is the lawyer's client when the matter involves a corporate entity?

A lawyer for a corporation or partnership represents the entity... NOT the constituents And you have to tell the constituents you represent the entity and not the constituents.  

33

What is a lawyer's duty when she KNOWS of corporate misconduct?

If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action or intends to act in a manner that is a violation of law that might reasonably be imputed to the organization; AND is likely to result in substantial injury to the organization... THEN the lawyer shall proceed as is reasonably necessary in the best interest of the organization, inlcuding: 1. Asking reconsideration of the matter 2. Advise that a separate legal opinion be sought 3. Referring the matter to the a higher authority including, if serious, referring it to the highest authority that can act (i.e. "reporting up") 4. If the highest authority is in conflict with the lawyer and the act is CLEARLY in violation of law AND likely to result in a SUBSTANTIAL injury, then the lawyer MAY reveal confidential information IF permitted by the exceptions to confidentiality

34

What is the lawyer's duty re: limiting malpractice liability?

A lawyer CAN'T make an agreement prospectively limiting the lawyer’s liability to a client for malpractice FURTHERMORE, a lawyer MUST not SETTLE a claim for legal malpractice w/ a client or former client, UNLESS the client or former client is advised in writing of the desireability of seeking independent legal counsel

35

What is a lawyer's duty of confidentiality?

A lawyer may not knowingly disclose confidential information or use such information to the advantage of the lawyer or a third person, such as a friend REMEMBER: The duty of confidentiality is BROADER than the obligation to preserve atty-client privilege 

36

What is confidential Information?

Confidential information consists of information gained during or relating to the representation of the client, that is: Protected by the ACR;  Likely to be embarassing or detrimental; OR Info the client has requested to be kept confidential    

37

What are the 7 circumstances in which you MAY disclose confidential information?

1) When permitted or required by rules, law or court order 2) To obtain legal or ethical advice for lawyer You can use hypotheticals if you are discrete to protect identity of client. 3) To prevent ANY crime 4) To prevent reasonably certain death or substantial bodily harm 5) To withdraw a written or oral opinion or representation given by the lawyer and reasonably believed by the lawyer still to be relied upon by the third person, where the lawyer has discovered that het opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud 6) Disclosure of information necessary to: Collect a fee Defend self from accusation of wrongful conduct.   7) Client has provided an INFORMED consent to the disclosure OR the disclosure is impliedly authorized to advance the best interests of the client NOTE: a lawyers who KNOWS that a person to intends to lie in ct MUST take reasonable remedial measures, including, if necessary, disclosure to judge

38

Is the duty of confidentiality owed to PROSPECTIVE clients?

YES! Prospective clients get the duty of confidentiality  A prospective client = a person who discusses with a lawyer the possibility of entering into a lawyer client-relationship. “Prospective client” does NOT include: Person who unilaterally sends information to lawyer without expectation of client-lawyer relationship Communicates with a lawyer for the purpose of disqualifying a lawyer from handling that matter 

39

What are 4 situations in which you do not need a letter of engagement?

A letter of engagement is NOT necessary when any of the following...  **1. Rep of a client is expected to cost less than $3,000 2. Representation where the attorney’s services are of the same general kind as previously rendered and paid for by the client **3. In a domestic relations matter (different, proceedures necessary) 4. Representation where no material portion of the services are to be rendered in New York **NOTE: in pts1 & 3, you STILL have to explain the scope of the representation and the basis of the rate  

40

What must go in a written letter of engagement?

In NEW YORK, we require written letters of engagement It must include: 1. Scope of representation 2. Explanation of fees and expenses 3. Notice of client’s right to arbitration of fee disputes NOTE: a SIGNED retainer agmt can take the place of an engagement letter, IF it contains the items above

41

What special rules apply to client engagement wrt domestic relations matters?

1) Fee agreement must be signed by lawyer and client Cf. Letter of engagement where NO sig is req'd 2) Lawyer must provide client with statement of rights and responsibilities (and a signed acknowledgment) 3) There are NO non-refundable fees in domestic matters (**OR any other matter.) Must return unused portion **4) Cannot use contingency fee to collect unpaid alimony or child support (**different frome MPRE rule!**) 5) Periodic billing must be sent out every 60 DAYS, and at the conclusion of the case, the attorney must send back any unused portion of the retainer  

42

What is a reasonable contingent fee?

Generally 33% is reasonable. And it CAN'T be more than 33% in personal injury or wrongful death.  

43

What information goes in a contingency fee agmt?

1) The method by which the fee is to be determined including the percentage or percentages in that will accrue to the lawyer in the event of settlement, trial, or appeal. 2) Litigation or other expenses to be deducted from the recover 3) Whether such expenses are to be deducted before or, if not prohibited by statute or court rule, after the contingent fee is calculate In personal injury or wrongful death matters: the expenses must be deducted before the lawyer’s contingency fee is calculated 4) What expenses the client will be liable for REGARDLESS of the outcome of the case

44

What is a closing stmt?

Upon the conclusion of a contingent fee matter, the lawyer must provide the client in writing with a statement of the outcome and if there is a recovery, the amount the client gets and how it’s determined

45

In which matters are contingent fees prohibited?

Contingent FEES are prohibited in: 1. Criminal matters (or quasi-criminal) In order to rise to an IAC claim, ∆ must show that the Rule violation affected the defense (unlikely) 2. Domestic relations matters NOTE: Cannot use contingency fee to collect unpaid alimony or child support (**different frome MPRE rule!**)

46

Can a lawyer fee-split or share office space with a non-lawyer?

FEES Generally can’t do this→a lawyer cannot divide a legal fee w/ a non-lawyer Can’t be a partner with a non-lawyer if the partnership if involves practice of the law. EXCEPTIONS: Payments for salaries, retirement plans, bonuses, profit sharing . . . Payments to the spouse of the deceased partner or to the estate of deceased partner A lawyer cannot give anything of value to a person or organization to recommend or obtain employment by a client , or as a reward for having made a recommendation resulting employment by a client This means that referral fees are not permitted   But you can split fees with lawyers under certain circumstances OFFICE SPACE An attorney can share space as long as it’s separate and appears so to the public

47

Can a lawyer fee-split with an OUTSIDE lawyer?

A lawyer shall not divide a fee for legal services with another lawyer who is not associated in the same law firm UNLESS... The division is: In proportion to the percentage of work performed; OR In a writing given to the client that each lawyer assumes joint responsibility for the representation The client consents to employment of another lawyer after a full disclosure that division of fees will be made (including the percentage of fees each lawyer will receive), and the client’s agreement is confirmed in writing; AND The total fees of both lawyers combined is not excessive. NOTE: Lawyer formerly associated can still be paid as per separation or retirement agreement.  

48

What is the rule in NY for fee dispures over CIVIL matters?

You have to allow clients to elect arbitration Clients must be informed of this right: 1) in the letter of engagement; AND 2) when a fee dispute arises EXCEPTIONS when arbitration is not mandatory: 1. Representation in criminal matters 2. Amounts in dispute involving LESS than $1,000 or MORE than $50,000 3. Claims involving substantial legal questions including legal malpractice 4. Disputes where the fee to be paid by the client has been determined pursuant to statute or rule and allowed as of right a court 5. Dispute where NO attorney’s services have been rendered for more than 2 YEARS

49

What is the rule re: public prejudicial stmts?  

No statement may be made by a lawyer that reasonably knows would expect to be disseminated if the lawyer knows OR reasonably should know it will have a substantial likelihood of materially prejudicing a proceeding. Examples: Character, reputation or criminal record of a party Identification of witness or expected testimony Possibility of a guilty plea, existence of a confession, and opinion as to guilt or innocence of defendant or suspect Information lawyer knows or reasonably should know will be inadmissible as evidence Fact that defendant is charged with crime unless stating it merely as an accusation and that the defendant is presumed innocent  

50

What are 4 categories of public statements a lawyer CAN usually make?

1) Dry Facts about the case 2) A warning of danger where there is a reason to believe of a likelihood of substantial harm to a person or the public interest 3) In a criminal case, information necessary to aid in apprehension of the accused 4) Right of reply: A 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 of client.  

51

What is the rule re: bringing non-meritorious claims and contentions?

RULE = a lawyer shall NOT bring or defend a proceeding, or assert or controvert an issue therein, UNLESS there is a basis in LAW and FACT for doing so that is not FRIVOLOUS Re: criminal proceedings – a lawyer for the ∆ in a proceeding that could result in incarceration MAY nevertheless defend the proceeding as to require that EVERY element of the case be est'd (i.e. even if known to be guilty, a lawyer argue not guilty by having prosecution prove case)

52

What must every law office have visibly posted?

Posting w/ clients rights Every attorney with an office located in the state of New York shall insure that there is posted in that office, in a manner visible to clients of the attorney, a statement of client’s rights.

53

What duty does a law firm have?

A law firms shall make reasonable efforts to ensure that lawyers in the firm conform to the Rules.

54

What responsibility does a supervising atty have in a law firm/organization?

The supervising lawyer or managing lawyer must abide by these Rules and make sure that all lawyers and nonlawyers acting at their direction do the same.  Managing lawyers can be held responsible for the conduct of subordinates if they knew of the wrongful conduct and did not report it or if they told the subordinate to perform the wrongful act.

55

What responsibility does a subordinate lawyer have in a firm/organization?

The subordinate lawyer must follow the rules EVEN IF acting at another’s direction It is NO violation if you follow supervisor’s instructions on an arguable question of profession duty

56

What responsibility does a non-lawyer employee have in a firm/organization?

Non-lawyer employees must make sure that their work is adequately supervised.  A lawyer can be held responsible for acts for nonlawyers

57

When is ex parte commn w/ a jury member allowed?

During trial, NEVER!  NO ex parte communications with jury on any issue until after the trial. You can talk AFTER the trial UNLESS: 1. Prohibited by court order 2. Juror does not want to talk 3. Purpose is to harass juror

58

When is ex parte commn w/ a judge allowed?

Can’t communicate with a judge ex parte other than de minimis OR in a settlement conference

59

When is ex parte commn w/ a rep'd party allowed?

A lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matters UNLESS: 1) Other party consents; OR 2) Communication is authorized by law;   

60

When is ex parte commn w/ a UNrep'd party allowed?

NOT prohibited, but a lawyer should proceed w/ caution. In communicating on behalf of a client with a person OR party who is NOT represented by counsel, a lawyer SHALL NOT state or imply that the lawyer is DISINTERESTED If the unrep'd person MISUNDERSTANDS the lawyer's role in the matter, the lawyer SHALL make reasonable effors to correct the misunderstanding  The lawyer SHALL NOT give legal advice to an unrep'd party, other than advice to obtain counsel

61

When can a lawyer speak with a witness in a case?

Generally no limitations on talking to a witness for an adverse party. UNLESS it’s a high-level corporate official or a corporate employee whose liability can be imputed to a corporation. Then you need to talk to corporate counsel

62

What is a lawyer's duty re: disclosing adverse legal authority?

A lawyer has an affirmative duty to disclose CONTROLLING LEGAL AUTHORITY known to the lawyer to be directly adverse to the position of client. Duty does not extend to facts. Must discuss only CONTROLLING LEGAL AUTHORITY. Not persuasive. Don’t have to explain. But should distinguish. NOTE re ex parte proceedings: A lawyer shall inform the tribunal of all material facts known to the lawyer that will allow the tribunal to make an informed decisions, whether or not the facts are adverse to the client.

63

What special duties does a prosecutor have?

1) Proceed only on probable cause 2) Must disclose in a timely manner evidence tending to negate the guilt of the accused or which could mitigate the degree of the offense or reduce the punishment.  

64

What are the pro bono reqs for a practicing atty?

Should provide 20 hours a year. And contribute financially to organizations that provide such services.   

65

What other misc. duties does a lawyer have?

1) A lawyer must uphold the integrity of the profession and its members by not making unfair or derogatory remarks, and not giving or lending any items of value to a judge or other public official except as permitted by the Code of Judicial Conduct. 2) Every attorney shall file a registration statement every two years when admitted to the NY Bar. This Registration Statement is a public record on submission of a written request and fee.  

66

Essay prompts for PR issues:

CIVIL matter: “A lawyer must represent his client ZEALOUSLY within the bounds of the law and make only meritorious claims and contentions" CRIMINAL matter: **ABOVE** + "A lawyer can defend in order to require every element of the case be established even if the lawyer knows the guilt."

67

Where are the rules governing the conduct of NY attorneys found?    

In the NY Code of Professional Responsibility 

68

Who investigates conduct AND what are the 4 types of discipline?

Complaints involving a NY attorney’s conduct are investigated by the grievance committee of one of the four appellate divisions Four types of discipline: 1. Admonition (letter of caution) 2. Public or private censure (imposed by cts) 3. Suspension (imposed by cts→can't practice fore FINITE time pd) 4. Disbarment (imposed by cts→CAN NEVER practice again)   NOTE: violation of a Rule is SOME evience of malpractice (not conclusive tho)

69

What duty do you owe when you KNOW of another lawyer’s violation of the Rules?

When you know of another lawyer’s violation of the Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer: (1) You MUST report knowledge of violation to a grievance committee or a court; AND (2) You have to cooperate in an investigation.  EXCEPTION: When a lawyer learns of another lawyer’s Rule violation during the representation of a client, the duty of confidentiality to the client will trump the duty to report the misconduct to the bar →The lawyer may not reveal the information without the client’s consent.  

70

Where can a lawyer be disciplined re: multi-jx practice?

Discipline imposed upon the lawyer by another state permits New York to impose reciprocal discipline on the same conduct A lawyer admitted in NY state can be disciplined by NY’s disciplinary authority for ANY misconduct, no matter WHERE it occurs A NY lawyer can be subject to the disciplinary authority of BOTH NY AND another state for the same misconduct  

71

How does choice of law work re: multi-jx discipline?

If the conduct occurred in connection with a proceeding before a tribunal in which the lawyer was admitted (generally or pro hac vice), then the rules of that jurisdiction govern your conduct.  For any other conduct, like a transaction matter, NY rules (the lawyer’s primary practice) will apply UNLESS the the conduct's predominant effect is in another state, THEN the other state's rule will apply

72

What are the 3 restrictions on lawyers?

1) A lawyer shall NOT aid a non-lawyer in the practice of law A non-lawyer includes a LAWYER not admitted in that jurisdiction 2) A lawyer shall NOT enter into a partnership, employment, or similar type of agreement that restricts the right of the lawyer to practice after termination of the relationship 3) A lawyer may NOT participate in the settlement of a client’s matter that restricts the lawyer’s right to practice in the future So a lawyer can’t settle a claim if the settlement requires the lawyer to refrain from bringing future actions