Regulatory controls, est practice, info re services

Question 1

Although the state legislature establishes standards, the authority to actually regulate the practice of law is vested in?

Answer 1

The Court of Appeals and the Appellate Division of the Supreme Court

Question 2

What is it called when an attorney of one bar is allowed to practice in another state’s courts?

Answer 2

Pro hac vice

Question 3

Are residency requirements permissible for practice under a state’s bar?

Answer 3

No, they are a violation of the privileges and immunities clause

Question 4

*How is a disciplinary proceeding initiated? Who may file the complaint, and where a file it?

Answer 4

It is initiated by complaint to the departmental disciplinary committee or to any of the departments of the Appellate Division. It may be filed by any interested party. Thereafter there is a nonpublic hearing before the committee.

Question 5

***There are 3 forms of disciplinary sanction; name them

Answer 5

Disbarment

2. Suspension
3. Public or private censure by the court or New York Bar Association (wrist slap)

Question 6

**How does choice of law work with respect to the punishment of lawyers practicing in multiple states?

Answer 6

The court will apply New York law unless the lawyer is licensed in multiple states and the conduct has its PREDOMINANT EFFECT in another state.

Question 7

• Where a nonlawyer is giving advice related to legal issues, what are the restrictions on a lawyer’s relation to that advice? E.g., a real estate broker filling in blanks or drafting a sales contract, a tax advisor preparing tax returns or counseling individuals about the legal tax implications?

Answer 7

A lawyer may delegate tasks but must SUPERVISE the delegated work carefully and must ultimately be responsible. A real estate broker may not draft the contract, but may fill in blanks. A tax advisor may prepare tax returns, but may not provide legal counseling.

Question 8

Can a nonlawyer have an interest in the law firm?

Answer 8

No. A corporate officer or director who is a nonlawyer cannot own an interest in the law firm.

Question 9

*** What are the limits on the name of your law firm? 3 restrictions

Answer 9

You cannot practice under 1. a TRADE NAME, 2. a name that is MISLEADING as to the identity of the lawyers practicing in the firm, or 3. names containing names of lawyers NOT practicing in the firm, unless such lawyers were formally associated therewith and there’s no conflict b/c lawyer at another firm.

Question 10

Can a lawyer and nonlawyer form a partnership together which involves the practice of law?

Answer 10

No. Nor are they allowed to share office space in less they are physically separate.

Question 11

May a law practice incorporate? Does this limit the lawyer’s liability?

Answer 11

Lawyers may incorporate, but the liability of the lawyer to the client may not be limited. Further, a nonlawyer may not have an interest in the legal corporation as a shareholder, officer, or director.

Question 12

What is a legal services organization? Give examples. Does it face looser or tighter advertising restrictions relative to private law firms?

Answer 12

A legal services organization is, e.g., legal aid, public defenders, military legal assistance offices, and lawyer referral services. They provide aid to MEMBERS OF A SPECIFIC GROUP. Advertisements are permissible, and must conform to standard legal advertising restrictions.

Question 13

**When will a manager, partner, or supervisory lawyer be responsible for another lawyer’s violation of the professional code of ethics? 2 situations

Answer 13

1. The lawyer ORDERS OR RATIFIES the specific conduct, or
2. The lawyer is a partner, manager, or has supervisory authority over the other lawyer, and KNOWS OF THE CONDUCT at the time when its consequences can be avoided or mitigated, but FAILS TO TAKE REASONABLE REMEDIAL ACTION.

Question 14

**What is the acronym for the law applicable to professional responsibility questions?

Answer 14

RPC - RULES OF PROFESSIONAL CONDUCT

Question 15

*When may a lawyer enter an agreement restricting his right to practice after termination of the relationship? 2 situations.

Answer 15

1. Agreement concerning the benefits upon retirement (e.g., you can agree to forgo your retirement benefits if you come out of retirement); or
2. Where the restriction in the agreement is part of a settlement of a controversy between private parties

Question 16

*What are the 4 requirements for the sale of a law practice?

Answer 16

1. Seller ceases private practice in the geographic region,
2. The buyer is a lawyer or firm,
3. Fees to clients don’t increase because of sale, AND
4. Seller gives written notice to clients of sale and clients right to take their business elsewhere with their file.

Question 17

**What is the difference between advertising and solicitation?

Answer 17

Advertising is an indication the public at large. Solicitation is individual contact with a layperson

Question 18

Is attorney advertising protected by the First Amendment? When may the speech be totally prohibited?

Answer 18

Attorney advertising is protected by the First Amendment. It may be totally prohibited ON the IF FALSE or MISLEADING.

Question 19

Attorney speech must be allowed under the First Amendment, but may be CONSTITUTIONALLY limited by regulations that meet the following constitutional test (3 parts):

Answer 19

1. Serve a substantial government interest,
2. Directly and materially advance that interest, and
3. Are narrowly tailored to serve the substantial interest

Question 20

***What is the basic rule regarding attorney communications that are advertisements? A lawyer is subject to discipline for any type of communication about the lawyer or his services that _____

Answer 20

A lawyer is subject to discipline for any type of communication about the lawyer or his services that is FALSE, DECEPTIVE, OR MISLEADING or that otherwise violates the RPC. This applies to ALL COMMUNICATIONS.

Question 21

**The RPC prohibits communications that (do 5 things)

Answer 21

The RPC prohibits communications that:
1. Use of a nickname, moniker, motto, or trade name that IMPLIES THE ABILITY TO OBTAIN RESULTS,
2. Are IRRELEVANT to the selection of counsel,
3. Are made to RESEMBLE LEGAL DOCUMENTS,
4. Use, without disclosure, an ACTOR to portray the lawyer, a member of the firm, or a client, or depictions of FICTIONALIZED events or scenes, or
5 portray a JUDGE, FICTITIOUS LAW FIRM, or that include a FICTITIOUS NAME to refer to lawyers not associated together in a law firm.

Question 22

What is the general rule to describe prohibited communications under the RPC? I.e., what is the unifying theme of prohibited commit communications?

Answer 22

Your communications CANNOT be false, deceptive, misleading, imply results, fictionalize anything or use actors without disclosure, use materials that look legally formal (falsely), or provide irrelevant content.

Question 23

**What non-misleading statements can you include an advertisement? 4 things

Answer 23

True and non-misleading statements that:

1. Are reasonably likely to create an expectation about results that are achievable,
2. Compare the lawyer’s services with other lawyer’s services,
3. Client testimonials or endorsements of closed matters, or
4. Describe or characterize the quality of the lawyers services.

Question 24

What notification is required that a communication is attorney advertising?

Answer 24

It must be labeled “ATTORNEY ADVERTISING” on the 1st page. On a website or email, they must appear on the homepage or in the subject line.
In the case of advertisements through radio, television, or print media, that is not required.

Question 25

Must a lawyer asked for a client’s permission before using them in an ad? Can a lawyer compensate someone for recommending them?

Answer 25

A lawyer must ask permission before using a client an ad. A lawyer cannot compensate a person for recommendations.

Question 26

**What are the limitations on a law firms or lawyers domain name? Four restrictions

Answer 26

1. The domain name cannot imply the ability to achieve particular results,
2. The lawyer or firm does not attempt to practice law using the domain name,
3. Each page of the website clearly states the name of the lawyer or firm,
4. The domain name does not violated disciplinary rule

Question 27

• *What are the retention requirements for attorney advertisements: 1. For computer access communications? 2. For all other advertisements?
  3. What are the approval requirements for an ad with respect to attorney discipline?

Answer 27

1. Computer access communications must be kept for one year after their use,
2. All other advertisements must be kept for 3 years after use,
3. All advertisements must be PREAPPROVED by the lawyer

Question 28

With respect to LIVE solicitation, the RPC generally holds that a lawyer may not permissibly solicit professional employment by in person, telephone, real time, or interactive computer communication. What are the 3 exceptions to this prohibition on solicitation? (This prohibition does not apply to volunteering services for no $ gain)

Answer 28

Is that the prospective client be: 1. A close friend, 2. A relative, or 3. A former or current client.

Question 29

***Under the RPC, with respect to written or recorded solicitation, all the prohibitions of advertising apply. A lawyer must not solicit professional employment by written or recorded communication if… (6 things)

Answer 29

No written or recorded solicitation is allowed if:

1. It’s false or misleading or violates the RPC,
2. The recipient has MADE KNOWN to the lawyer that it desires not to be solicited,
3. The solicitation involves COERCION, DURESS, HARASSMENT,
4. The lawyer knows or reasonably should know that the prospective client c ANNOT EXERCISE REASONABLE JUDGMENT IN RETAINING A LAWYER,
5. The lawyer expects and does not disclose that the legal services necessary to competently handle the matter will be PERFORMED PRIMARILY BY ANOTHER LAWYER not in his law firm, or
6. The written communication is sent by method that requires the recipient to travel to another location to pick it up or that requires the recipient signature.

Question 30

*In the case of a specific incident giving rise to potential personal injury or wrongful death claims, how long must a lawyer weight before making an unsolicited communication to the defendant or to the victim or his family after the incident?

Answer 30

Must wait 30 days after the incident for an unsolicited communication to defendant or plaintiff.

Question 31

If you send a sample retainer agreement to a potential client, how are you required to mark the document?

Answer 31

You must clearly mark it “DO NOT SIGN” on the signature page and “SAMPLE” at the top of each page in red ink.

Question 32

*If you send a solicitation (excluding websites or professional cards) to a New York resident (except for close friends, relatives, former or existing clients), must you file or retain the solicitation?

Answer 32

Yes. You must file a copy with the local attorney disciplinary committee or in the judicial department where the solicitation is sent.

Question 33

What is the relationship between the general prohibition on solicitation and a lawyer’s participation and compensation by a group or prepaid legal service plan that uses personal contacts and live telephone conversations to offer the plan to persons who might use the services?

Answer 33

A lawyer may freely participate be compensated by a group or prepaid legal service plan, even though they solicit business. The lawyer may personally contact a group that might wish to adopt the legal service plan for its members.

Question 34

What are the requirements for a lawyer saying that she is a specialist in a particular area of law? Generally, under the RPC, there is a prohibition on stating that you are a specialist unless…

Answer 34

1. If you have been certified BY A PRIVATE ORGANIZATION that has been approved for that purpose by the ABA, and the certifying organization is identified, and the lawyer states that the organization is not affiliated with any governmental authority, is not required for the practice of law in New York, and does not necessarily indicate greater competence.
2. If you have been certified as a specialist BY ANOTHER STATE if the state is identified, the lawyer states that the certification is not recognized by any government authority within New York, it is not required for practice in New York, and it doesn’t necessarily indicate greater competence.

Question 35

Is it permissible to solicit business from other lawyers?

Answer 35

Yes. Solicitation of other lawyers is completely permissible.

Question 36

May you make statements concerning the fields of law in which you practice?

Answer 36

Yes, this is different from stating that you are a specialist.