Flashcards in Prof Resp Deck (102)
New York Rules of Professional Conduct ("NYRPC")
Who Investigates Complaints
A grievance committee in one of the four appellate division departments
Four types of discipline
2. Public or private censure (imposed by courts only)
3. Suspension (courts only)
4. Disbarment (court only)
Who Can Bring Malpractice Claims and Where?
Clients or third parties in Supreme Court.
Violation of a NYRPC in a Malpractice Suit
"Some relevant evidence of malpractice"
Lawyer must report
a violation of the Rules that raises a SUBSTANTIAL QUESTION as to that lawyer's HONESTY, TRUSTWORTHINESS, or FITNESS AS A LAWYER
1. report knowledge of the violation to a grievance committee or court
2. cooperate in the investigation
Confidentiality vs. Duty to Report
Duty of client confidentiality trumps duty to report - must get client's consent if reporting would require divulge confidential information.
Discipline imposed upon the lawyer by another state permits NY to impose reciprocal discipline for the same misconduct.
NY Long Arm Discipline
A lawyer admitted to NY State can be disciplined by NY's disciplinary authority for any misconduct, no matter where it occurs.
*No double jeopardy rule for lawyer discipline.
Choice of Law - Litigation
The rules of the jurisdiction in which the court sits govern the lawyer's conduct.
Choice of Law - Transactional
1. If lawyer is ONLY admitted to NY -> NY rules apply
2. If lawyer is admitted to NY and another state -> rules of the state lawyer PRINCIPALLY PRACTICES apply
UNLESS the conduct's predominant effect is in another state, in which case the OTHER state's rules will apply.
A lawyer shall not aid a non-lawyer in the...
UNAUTHORIZED PRACTICE OF LAW
*including a non-NY lawyer regarding NY law.
Agreements that restrict a lawyer's right to practice after the end of representation
Agreement to restrict lawyer's right to practice EXCEPTION
Retirement benefits lost if he competes
Settlement restrictions on the lawyer
A lawyer cannot agree to limit future representation as part of a settlement - even if the client wants it.
Client's Decisions Include:
Those of substantive legal import
1. Commencing an action
3. Criminal plea or going to trial
5. Jury or bench trial
6. Testifying in a criminal case
Lawyer's Decisions include
Strategy, Procedure, & Tactics
1. Discovery methods
4. Granting adjournments that do not prejudice the rights of the client
Client's Incapacity & Decision Making
If the client loses the ability o make a clear decision or is a minor, lawyer should have a guardian appointed for the client.
Incapacitated Client Opposes Guardian Appointment
Lawyer seek guardian against client's wishes if:
1. Client has diminished capacity
2. Is at risk of substantial physical, financial, or other harm; and
3. cannot adequately act in her own interests.
Deciding to take a case
Lawyers have a right to reject any case although they should do their fair share of pro bono
When MUST a lawyer withdraw from representation
1. Lawyer KNOWS representation will result in a violation of a rule or law.
2. Lawyer suffers physical or mental disability
3. Client fires lawyer
4. Lawyer knows client is taking steps SOLELY to harass or maliciously injure another.
When MAY a lawyer withdraw from representation
1. Client insists on presenting a frivolous claim or defense.
2. Client persists in a course of actions 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 used lawyer's services to perpetrate a crime or fraud.
5. Lawyer's continued employment will LIKELY RESULT in the violation of a rule or law.
6. Lawyer's inability to work with co-counsel indicates that the best interests of the client are served by withdrawal.
7. Client insists on taking action with which the lawyer has a fundamental disagreement
8. Client fails to cooperate in the representation.
9. Withdrawal can be accomplished without material adverse affect on the client
Competence: A lawyer should only take those cases he is ...
Competent to handle:
1. Physical and mental competence
2. Competence in the substantive law
3. Having sufficient time to devote to the matter.
Overcoming subject matter competence
Associating with a competent lawyer OR becoming competent in an area.
Limiting scope of representation
1. Limitation is reasonable
2. Client gives INFORMED CONSENT
EXC: Can limit rep to worker's comp claim, provided client is informed he may have additional rights to pursue.
1. Must not be misleading
2. No trade names
May publicly identify fields of practice.
May hold self out as "specialist" only if approved by organization approved by ABA
Advertising - Defined
Any public or private communication made by or on behalf of a lawyer or firm about the lawyer or firm's services, the primary purpose of which is for RETAINING THE LAWYER.
Advertising - Exception
communications to existing clients or other lawyers.