NY Professional Responsibility (1) Control over Attorneys and the Practice of Law

Issue Rule
Source of Law New York Rules of Professional conduct Who investigates complaints about NY Attorney s conduct: the grievance committee of one of four departments of the appellate division Terminology for New York Professional Conduct Types of Discipline by NY Grievance Committee: (1) Admonition slap on the wrist nonpublic letter (2) Public or private censure by the courts (grievance committee sends up to courts) (3) Suspension lawyer barred from the practice for a period of time and cannot share in legal fees earned during suspension (4) Disbarment take away your ticket to practice Other Sources of Discipline: Malpractice Claims by clients, third parties (1) Venue Supreme Court (2) Money Damages (note $ damages not available in action by grievance committee) Bar Admission Federal Standard: U.S. Supreme Court says that state requirements for admission to the bar have to be rationally related to the practice of law Rational Requirements: (1) Graduation from law school a. However, in NY admission may be granted based on 1 year of law school PLUS studied under NY attny for 3 additonal years) (2) Many states, including NY also require a. Pass written bar exam b. Pass MPRE (ethics exam) (3) Alternative to bar/MPRE if the applicant has a. Graduated from ABA accredited law school AND b. Been admitted to practice in another state that would admit a NY lawyer w/o exam ( reciprocity); AND c. Practiced law for at least 5 of 7 years proceeding application. (4) Truth & Full disclosure, burden on applicant to show her Good moral character (5) Duty to fully cooperate with admission authorities (6) Requirements regarding other applicants: a. Good applicants you may but don t have to give input b. Bad applicants you MUST report conduct involving moral turpitude (perjury, bribery) Forms of regulation: (1) regulated by highest state court (2) self-regulation of profession. Two prong duty when a lawyer KNOWS of a violation a. Lawyer MUST report substantial rule violations by another lawyer b. Lawyer MUST be available to testify

Exceptions/Special Situations
Note: the filing of a complaint is a PRIVILEGED communication meaning the attorney can not sue for defamation

Admission to the Profession

Regulation AFTER admission

Attorney-Client Privilge TRUMPS duty to report another lawyer but a lawyer who is aware of a substantial violation may not RECOMMEND the lawyer for admission in another state.

Regulation of Lawyers Licensed in more than one state

Regulation of Lawyers licensed in more than one state: (1) Discipline by one state does NOT mean there will be discipline in the other each state makes an independent determination as to whether the conduct complained of violates that states ethics rules a. But states will usually give effect to sister-state determination under principals of COMITY. (2) Unauthroized practice cannot practice where you are not admitted a. Exception permissible types of temporary practice in another state: i. Associate with an active local lawyer ii. Special permission called pro-hac-vice iii. Mediation or arbitration out of home-state practice iv. Anything reasonably related to lawyer s home-state practice b. Multi-state firms: Lawyer only practices where admitted and firm letterhead indicates states of attorneys admission. (3) Choice of Law in multi-jurisdictional matters a. If licensed in NY ONLY NY professional rules apply b. If admitted in NY and another state rules of state in which the lawyer principally practices will apply i. EXCEPTION if the predominant effect of the lawyers conduct is in another state, then that state s rules will apply Unauthorized practice of law ( UPL ) lawyers may not engage in UPL or help others engage in UPL Examples of Non-UPL activites of NON-lawyers: You can have a secretary type a legal document or correspondence for you provided that an attorney authors the letter

The Practice of Law

The practice of Law includes EVERY activity that requires a law license, including: (a) Appearances in a judicial action (b) Drafting legal documents (like a will or a contract) (c) settling cases for clients A Lawyer may not enter into a CNC

Non-compete Agreements an other restraints on the practice of law

Exceptions where Restriction on Legal Practice is Allowed A lawyer may enter into the following types of agreements: (1) an agreement concerning benefits on retirement whereby the attorney forfeits retirement benefits if he practices for another firm (2) In a sale of a law practice the lawyer can sell his sole or small proprietarship and agree not to practice law in a certain are. Sharing of NON-Legal fees permissible - E.g., Lawyers may split real estate broker fees with a non-lawyer You can pay legal fees to pay for law firm operating expenses: y Salaries, retirement plans, bonuses, profit sharing y Spouses of deceased partners to pay fees earned by deceased party

Lawyer Relationships with non-lawyer lawyer cannot be partner with a non-lawyers if ANY PART of the partnership involves the practice of law Relationships with non-lawyers Splitting of Legal Fees Lawyers may NEVER divide a legal fee with a non-lawyer (but see exception) Sharing of Office Space an attorney and a non-attorney CAN share office space, so long as the space is physically separate in fact and appears so to the public. Also, must take precautions to ensure nonlawyer s clients are not coerced to use the lawyer for legal matters.

(2) Establishing a Legal Practice, Advertising & Solicitation of Legal Services

Issue Rule
Rules re Firm Names: (1) The firm name must not be misleading. (2) Can t use trade names ( The Best Law Firm of NY ) a. Note: telephone number may contain a domain name, nickname, moniker, or motto that doesn t (3) You can only use names of persons who practice at the firm or used to practice at the firm but are now deceased (4) You CAN include the name of partners who are currently suspended Rules Re: Specialization a lawyer may not hold herself out as a specialist UNLESS: (1) categorical exclusion: patent, trademark or admiralty CAN indicate specialty (2) Can advertise OTHER special certifications ONLY IF: (a) Certification is by a private organization approved by ABA or NY state; (b) Certifying organization is identified in the advertisement (c) Lawyer must state that certifying organization is NOT AFFILLIATED with any governmental authority, certification is not required for practice of law in NY, and certification does NOT indicate greater competence of the lawyer over other non-certified but experienced lawyers in the area. Legal advertising = any public or private communication made by or on behalf of a lawyer or law firm about the lawyer or services, the PRIMARY PURPOSE of which is to retain the lawyer or law firm Legal Ads MUST include the following: (1) name, principal law office address and telephone number of lawyer or firm whose services are being offered a. Telephone Numbers: may contain a domain name, nickname, moniker, or motto b. Domain Names: may contain a domain name provided that: (a) all pages clearly include the actual name of the lawyer/law firm; (b) lawyer does not attempt to engage in the practice of law using the domain name; (c) the domain name does NOT imply an ability to obtain results in the matter (www.winner.com) (2) Any words or statements required by the rules must be clearly legible and capable of being read by average person (3) The label attorney advertising must appear on the first page (hard copy & website homepage) (4) If the ad contains a testimonials or endorsements or statements likely to create an expectation about results the ad MUST contain the DISCLAUMER: prior results do not guarantee a similar outcome Legal Ads MAY Include (truthful information) about the following: (1) Educational backgrounds and degrees (2) Dates of bar admission and areas of practice (3) Public offices and teaching positions held (4) Memberships in bar associations and other professional organizations (5) Foreign language FLUENCY (nothing less than fluent!!) (6) Names of regularly represented clients, if the clients consent in writing. (7) Acceptable credit arrangements and participating in group or prepaid legal service (8) Legal fees, contingent fee rates, range of fees for services a. Note: if fees are advertised you cannot change the rate until after a reasonable period of time (9) Bona Fide professional ratings (e.g., Super Lawyers) (10) Testimonials or endorsements of clients or former clients (but must include disclaimer above) (11) statements that are likely to create an expectation about results the lawyer can achieve or which characterize the quality of the lawyer or law firm s services

Exceptions/Special Situations
What can t go in firm name: (1) names of attorneys now in full time government work (don t want to appear to have improper relationship with government official) (2) names of partners who are now disbarred must be removed from firm name/letterhead What can lawyers do to indicate area of concentration: (a) Can state practice is limited to X area of law OR (b) practice concentrates in

Firm Name

Specializati on

Non-advertising: communications to existing clinets or other lawyers Guaranteed Results not allowed - Advertisements MAY NOT include guarantee of results. Ad may NOT contain misleading statements Including: (a) promised outcomes, (b) ability to achieve a result from improper influence clout Television & Radio ads/Computer Ads (1) must be approved by the lawyer, include name, address, telephone number of the law firm; AND (2) TV/Radio must be kept by the law firm for at least 3 years following the initial dissemination and computer ads for 1 year. Advertising Contingency Fees: MUST: (1) clearly state terms and basis of rate; (2) make it clear whether client will be responsible for ANY costs (even if lawyer loses); AND (3) that contingency fees not available in some types of cases

Legal Advertising

Rules re Lawyer Solicitation of clients all solicitation is considered advertisement and are subject to above advertising rules; PLUS subject to additional solicitation specific rules Solicitation = (1) an advertisement initiated by or on behalf of a lawyer/law firm (2) that is directed to or targeted at a specific person(s), or their family or legal representatives, (BUT SEE EXCLUSIONS) (3) the primary purpose of which is retention of the lawyer/lawfirm, and (4) with a significant motive of PECURNIARY GAIN (5) by in-person or telephone contact OR real time interactive computer accessed communications (includes IM and chartrooms BUT SEE EXCLUSIONS) Additional Solicitation Rules: (1) A lawyer may not assist another lawyer in violating the solicitation rules (2) A lawyer cannot violate solicitation rules through acts of a non-lawyer (can t have your secretary chase ambulances) Targeted Mail general rule a lawyer may send direct mail to groups of people likely to need legal services (everyone arrested for DUI in Manhattan last week) Targeted Mailings MUST include (this rule applies to NY lawyers and lawyers not admitted in NY who solicit NY residents): (1) NOTICE - if self-mailing brochure or postcard the words ATTORNEY ADVERTISING shall appear on it (2) NOTICE: E-mails shall have ATTORNEY ADVERTISING IN THE SUBJECT LINE OF THE E-MAIL!!! (spam filter!!) (3) If a retainer agreement is included in the solicitation, the words DO NOT SIGN must appear in the client signature line (4) DISCLOSURE: If solicitation is mailed to PRE-DETERMINED recipients (e.g., those w/ DUIs) the attorney MUST disclose how he learned the recipients identity and need for legal services a. RECORDS: List of those solicited must me maintained for three years (5) FILING: Where you send targeted mail to victims of personal injury/wrongful death you must file a copy of the letter with the grievance committee. Timing Restrictions Personal injury or wrongful death ( Staten Island Ferry Rule ) In personal injury/wrongful death actions NO direct mailing or other solicitation allowed by the lawyer or any agent/representative before the 30th day AFTER the incident (BUT SEE EXCEPTION) y What Lawyer May Say to Media/Public Regarding Trials (1) Dry facts about the case (2) Warning of danger where there is a reason to believe a likelihood of substantial harm to a person or public (3) In a criminal case: information necessary to aid in apprehension of accused. (4) Right of Reply (HOT TOPIC CONTROVERSIAL): 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 or client (e.g., if DA makes a statement that your client is likely guilty, you can reply with good character evidence to mitigate DA s statement) a. This is similar to repairing credibility after attack on the stand

Real time computer accessed communications EXCLUDES: websites, pop-up ads or e-mails. Categories of persons exempt from solicitation bar: (3) a close friend (4) a relative (5) former client (6) existing client EXCEPTION-to-EXCEPTION: no solicitation of ANY form of communication whatsoever if permitted if recipient has made known a desire NOT to be solicited.

Soliciting Clients

Exception to Staten Island Ferry Rule: Where a filing is required in less than 30 days Attorney s may solicit victims beginning the 15th day AFTER the incident. Lawyer may NOT solicit professional employment if: (1) communication is FALSE, MISLEADING, or DECEPTIVE (2) person has made it know that they do not want to be solicited (3) solicitation involves coercion, duress, harassment (4) ads that look like subpoenas require the recipient to receive the mailing somewhere other than personal or business address (5) if lawyer gave in-person unsolicited advice he cannot accept employment base don such advice (note this does not apply if victim asks YOU a question)

Targeted Mail

Trial Publicity

What Lawyer Cannot Say regarding Trial: Lawyer MAY NOT make statements that a reasonable person would expect to prejudice the case, including statements about: (a) Character, reputation or criminal record of party (b) Identification of a witness or expected testimony (c) Possibility of a guilty plea, existence of a confession, and opinion as to guilt or innocence of suspect (d) Information the lawyer knows or should know will be inadmissible as evidence (e) Fact that (D) is charged with crime UNLESS stateing it as a mere accusation and that the (D) is presumed innocent.

(3) The Lawyer-Client Relationship

Issue
KEY rule language for any NY Essay involving LawyerClient Problem

Rule

Exceptions/Special Situations

NY Distinction

Civil: A lawyer must represent his client zealously within the bounds of the law and make only meritorious claims and contentions Criminal: A lawyer must represent his client zealously within the bounds of the law but may defend the proceedings so as to require that every element of crime to be established.
Client: makes decisions of substantive legal import: (1) whether to commence an action (2) whether to settle and how much to settle for (3) whether to appeal (4) choosing between jury and bench trial (5) whether to testify in a criminal case If client is a minor or loses ability to make clear decisions you must have a guardian appointed In New York client ALWAYS gets final call in settlement can t assume client would accept or reject must get client s approval. In NY ONLY lawyer can take protective action and seek to substitute his judgment for clients ONLY IF: (1) client has diminished capacity (2) client is at risk of substantial physical, financial or other harm; AND (3) client cannot adequately act in her own interests Lawyer SHOULD but need not take the following cases: (a) Cases involving the oppressed or defenseless; and (b) Lawyers should do their fair share of pro-bono work Ways to overcome lack of competence: (1) Association with a competent lawyer; OR (2) Become competent via research

Who makes which decision

Attorney s decision: strategy, procedure and tactic: (1) discovery method to use (e.g., whethet to take depos) (2) granting adjournment to the other side (where doing so does not prejudice the rights of your client0

Right to Reject Lawyers have a right to reject ALL CASES Competency Requirement - Lawyer should only take those cases he or she is COMPETENT to handle, or encourage client to seek other counsel. Competence includes: (a) physical and mental competence (b) competence in substantive law (c) having sufficient time to devote to the matter Situations where Lawyer MAY but need not withdrawl from representation: (1) Client s claim or defense is frivolous (2) Client persists in a course of action involving the lawyers services that the lawyer reasonably believes to be criminal or fraudulent (3) Client deliberately disregards an agreement or obligation to the lawyer regarding expenses or fees (client has money but refuses to pay) (4) Client uses lawyer s services to perpetrate a crime or fraud (5) Lawyer s continued employment is likely to result in a violation of a Rule of Professional Conduct ( RPC ) Lawyer s inability to work with co-counsel indicates that the best interests of client are served by withdrawl. (1)

Must Lawyers take any case

Mandatory vs. Permissive Withdrawal

Mandatory Withdrawal from Representation: (1) Lawyer knows representation will result in violation of rules or law (2) Lawyer suffers physical or mental disability (3) Client FIRES the lawyer (4) Lawyer knows that client is taking steps to harass or maliciously injure another

To Whom does lawyer owe duty: to prospective, current and former clients What types of information; (1) client communications covered by A-C privilege any communications for the purpose of seeking legal advice and are intended to remain confidential (2) client secrets under PRC lawyer must also keep client secrets anything derogatory, embarrassing or hurtful regarding your client regardless of the source Maintaining Client Confidentiality

What MAY Lawyer Reveal: (1) Client Intent to Murder/Assault - Lawyer MAY reveal intention of a client to commit murder or inflict substantial bodily injury. Particularly if the third party is a vulnerable child. a. BUT if the lawyer fails to report and the person is injured/killed, the lawyer is NOT in trouble (2) Client Plan to Kidnap may but need not notify police (3) disclosure required by rules, law or court order (4) To obtain legal or ethical advice for the lawyer (usually using hypotheticals) (5) Disclosure expressly authorized by client to advance the client s best interests What MUST Lawyer Reveal (Hot Topic for bar!) (1) PERJURY - Lawyer MUST reveal client perjury when he KNOWS client is lying. a. FIRST, lawyer must direct client to correct his testimony. b. IF client refuses lawyer MUST disclose perjury to the tribunal even if it requires disclosing confidential information. (2) FRAUD ON THE TRIBUNAL committed by lawyer s own client. Lawyer MUST notify the court to rectify the situation.

Safeguarding client Property

Client Property Lawyer MAY NOT use client property for personal use. Must store in garage or warehouse or other storage

Terminating an Attorney-Client Relationship

If you terminate an A-C relationship you must do so in a manner that does not prejudice the client, by: (1) giving the client reasonable advanced notice, (2) returning the file (3) returning any unused portion of retainer.

(4)
Issue

Conflicts of Interest
Rule
Basic Rule: Lawyer MUST avoid conflicts and exercise independent professional judgement Conflicts in Representation a lawyer is NOT ALLOWED to represent a party with INTERESTS ADVERSE to the lawyer s client or prospective Client UNLESS lawyer gets informed consent. Informed consent requires: (1) Disclosure: lawyer must explain the conflicts and risk to client (2) Allowed by Law - Ensure representation is not OTHERWISE PROHIBITED by law (e.g., AUSA can t take case that he worked on) (3) Consent: Obtain consent in WRITING (new addition Hot topic for testing) (4) Competency - Determine if lawyer can provide competent & diligent representation (5) But see exceptions where written waiver not enough to cure conflict Lawsuit b/t CURRENT and FORMER clients lawyer MAY represent a current client in an action against a former client UNLESS (1) Lawsuit involves a matter you worked on for former client - your current client wants to sue your former client regarding a matter or transaction in which you represented the former client; OR (2) Confidence of Former Client Relevant EVEN if matters not related - You cannot represent current client if you would rely on confidence obtained from former client in prior unrelated matter. Other Types of Conflicts of Interest: (1) Publication Rights - A lawyer may not secure interest in public rights as part of fee. Lawyer may not begin negotiates on media rights until ALL aspects of the matter are concluded!! (2) Mortgage a lawyer may not take a mortgage on a client s property to secure a fee (BUT SEE NY DISTINCTION) (3) Lending Money to Clients A lawyer may NOT advance any financial assistance to a client in litigation OTHER THAN court costs and expenses of litigation which client must repay. (4) Third party Payors the lawyer must follow the direction of the client NOT the third party payor (insurance co. or parent paying) (5) Sexual Relations lawyers cannot demand sex as a condition or representation (pre-existing sexual relationship is okay). a. No sex with client consensual or otherwise during the pendency of representation in a domestic relations matter. b. Sexual relations not imputed to other partners in the firm (6) Doing Business with clients lawyer is generally prohibited from doing business with clients UNLESS the transaction is FAIR & REASONABLE. This requires that the client is: a. Fully informed of the terms of the transaction in writing Advised in writing to review the transaction with independent counsel. (but client b. need not actually get other counsel) Representing a Corporation or Partnership: the lawyer for a corporation or partnership represents the ENTITY and NOT any individual w/in the corporation.

Exceptions/Special Situations

NY Distinction

NON-Consentable conflicts: A lawyer cannot represent CURRENT client against a CURRENT client even in an unrelated matter consent will not cure this conflict!! Bad Faith Attempts by Party To Disqualify Lawyer- a person who communicates with a lawyer for the purpose of disqualifying the lawyer from handling a materially adverse representation on the same or substantially related matter is NOT a prospective client and the attorney is not barred from representing the other party (e.g., divorce case where one spouse goes to see all of the divorce lawyers in town) Written waiver doesn t cure Conflict (thus prohibited by law) under the following circumstances: (1) In a suit by H v. O if O is a current client (2) Can t use O s confidential info in representing H Lawsuit b/t CURRENT & FORMER client can represent current client if (1) former client consents in writing OR (2) information obtained from former client no longer confidential

Conflicts in Legal Representation

Doing Buisiness with Client Standard Commercial or Other Transactions Lawyer can do routine commercial business with clients (e.g., banks, retailers, without having to advise in writing.)

Other Conflicts

NY Distinction Mortgage on Clients Home IN a DOMESTIC RELATIONS case, Lawyer may take a lien on real property or obtain a Security Interest ( SI ) PROVIDED THAT: (1) Retainer states that a lien or SI may be sought (2) Notice of application for an SI or lien is given to other non-client spouse (3) Court approves the SI **BUT a NY lawyer shall NOT foreclose on a mortgage placed on a PRIMARY marital residence if client spouse is titleholder and living there New York Giving Money to Clients New York allows attorneys to pay the court costs and expenses of litigation for indigent and pro bono clients without a need to repay.

Representing a Corporation or a partnership

Representing the Insured

Duties of Lawyer to Corporation: (1) Duty to proceed as is reasonably necessary to protect the BEST interests of the organization (2) Report violations to a higher authority within the organization (3) May reveal confidential information to extent necessary to protect client Representing the insured - Lawyer represents the insured, not the insurance company paying the bills Letter of engagement must be sent to BOTH the insured and insurance company.

Special Situation: SECURITEIS VIOLAITONS: (report up the chain) (1) Lawyer has Duty to report SECURITES VIOLATIONS up the chain of command to CEO, (2) If CEO does not respond properly then lawyer MUST report to board of directors.

(5) Fee Arrangements

Issue Rule Exceptions/Special Situations EXCEPTIONS Where Fee Arrangement need not be in writing: (1) If fees are projected to be under $3K a. Still requires oral notice of scope of representation and basis of fee (2) Repeat clients: no need to have written agreement if the services are of the same general kind previously provided (3) Domestic Relations Matter a more specific letter is required (4) Attorney has no office in NY and is admitted in another jurisdiction; OR No material portion of services are provided in NY even if firm has office in NY a. Still requires oral notice of scope of representation and basis of fee EXCEPTIONS Where Fee cap allowed: (1) Contingency fee cases (2) Wrongful death cases (3) Personal injury cases Exception: Fee arrangements otherwise VOIDABLE are enforceable if client KNOWINGLY and VOLUNTARILY affirms an existing fee arrangement that might otherwise be considered voidable, IS ENFORCEABLE provided that: (1) Client has a full understanding of facts; AND (2) Has knowledge of rights as a CLIENT. Contingency Fees Cannot be charged in: (1) Criminal matter (2) Quasi-criminal matters (like actions by medical licensing) (3) Domestic relations (**In NY this includes proceedings to enforce pastdue alimony and child support) NY Distinction Obligations of lawyers lawyer has the duty to: (1) Explain fully the reasons for the fee (2) Charge ONLY reasonable fee If Fees Projected to be $3K or more The fee agreement MUST BE IN WRITING Writing must include: (a) SCOPE of legal services to be provided (b) EXPLANATION of attorney s fees to be charged (c) EXPENSES and BILLING PRACTICES (d) NOTICE of client s right to arbitrate fee dispute No Minimum or Maximum Fee State bars CANNOT set minimum or maximum fee schedules Ratifying a Fee Agreement Attorney should initially reduce fee arrangement to writing but if attorney fails to do so, a client may LATER ratify an attorney s fee agreement during a period of continuous representation even if attorney misconduct occurs so long as the client s ratification was NOT procured as a result of the misconduct.

Max Fee for MedMal

New York Legislature sets maximum fee schedule for MedMal

New York Contingency Fee matters

In NY after representation is over the lawyer must: (1) provide the client with a written closing statement stating the outcome of the matter and computing the fee (2) file the statement with the Appellate Division

Fee Arrangement rules for Domestic Relations Matters special rules:

(1) Form of Agreement a. SIGNED WRITING: Agreement must be in writing, signed by lawyer and client b. INCLUDE STATEMENT OF CLIENT RIGHTS/ RESPONSIBLITIES must be provided at the initial conference and prior to signing of retainer agreement (2) MAY NOT INCLDUE a. provision for non-refundable fee b. provision for contingency fee to collect unpaid alimony or child support (Note: Allowed under MPRE) (3) Billing to be sent every 60 days and at the conclusion of the case attorney must return any unused portion of the retainer (4) Arbitration fee disputes must be resolved by arbitration at the election of the client.

Fees for Legal Services

Referral Fees

No Referral Fees - Referral Fees are generally prohibited but see exceptions

Exception Referral Fees are allowed if: (1) Lawyer gets client consent to (a) hiring of lawyer and (b) division of fee (2) Total fees must be REASONABLE (3) Division must be in proportion to services performed; OR each lawyer must assume joint responsibility for representation in a writing with the client. Special Rules for Client Trust Accounts: (1) Account must be in a bank in NY (2) Funds to maintain account are the only lawyer funds that can be put into a client trust account (3) Interest from account must be swept out and sent to NY IOLA (interest on lawyer account) Fund. Common Client Trust Account Problems: (1) Harm is irrelevant if lawyer takes money out of client trust fund he is in trouble even if he pays it back with interest (2) Transferring Funds from Client Account lawyer must wait to transfer funds from client account until sends bill and gives client reasonable opportunity to reject (3) Where fee disputed - $$$ in dispute remains in client acct until resolved

Two Types of Retainers: (1) Advance on fees (belongs to client goes in to trust account) (2) Availability/general retainer (belongs to attorney goes into lawyers account) Retainers Two Types of Accounts every law firm must have: (1) Operating firms account, lawyers $ (2) Client trust only client s $ (but bank fees can be covered by lawyer)

Dishonored Check Reporting:

Client funds must be placed at bank that will provide dishonored check report. Copy of the report sent to the lawyer and AFTER 10 days to the disciplinary commission to take action. Lawyer May NOT place additional funds in the account from her own funds.

Fee Dispute Mandatory Resolution IN NY in a

civil matter, fee dispute b/t lawyer and client are subject to arbitration at the client s option **Client must be told about this option in the letter of engagement and when fee dispute arises EXCEPTIONS arbitration not mandatory where: (a) Criminal matters; (b) Amt. in dispute is less than $1K or more than $50K; (c) dispute involves malpractice

(6) The Lawyers Responsibilities to Non-Clients: the Court, Opposing Parties 3rd Parties
Issue Rule
Subordinate lawyer: must follow rules EVEN if acting at another s direction. Subordinate can be held responsible for not reporting RPC violations of superiors. Responsibilities for Superiors/ subordinates Supervising Lawyer must abide by the RPC AND insure all lawyers and non-lawyers acting at their direction conform to these rules. Supervising lawyers can be held responsible for conduct of subordinates if they KNEW of the wrongful conduct and DID NOT REPORT it; or if they TOLD the subordinate to perform the act Ex-Parte Communications during trial: Lawyer cannot speak to juror about ANY ISSUE during trial (even using bathroom!) Lawyer MAY be able to speak with jurors after trial; UNLESS: (1) Prohibited by court order (2) Juror does not want to talk (3) Purpose is to harass jurors Settlement Conference Exception: Lawyer can communicate directly with judge during settlement conference

Exceptions/Special Situations
Subordinate lawyer/Unclear areas of law: NO violation if you follow a supervisor s instructions on an arguable question of law

NY Distinction

Communication s with Juror

Communication s with Judge Communication s with adverse party

Ex-Parte Communications with Judge: Lawyer cannot communicate with judge OTHER THAN de minimus communications ( good morning ). Communications with Adverse Party: Lawyer cannot communicate with a represented party Communications with Witnesses: No limits on communication with witnesses

Witnesses

Exception Corporate Witnesses if witness is a high level corporate officer OR corporate employee whose liability can be imputed to the corporation lawyer must obtain corporate counsel s permission to sleep. Adverse Facts - No duty to disclose adverse facts or witnesses EXCEPT in an ex parte proceeding a lawyer MUST inform the tribunal of all material facts known to the lawyer that will help the tribunal make an informed decision, whether or not the facts are adverse to client.

Duty to the Court

Duty to disclose adverse authority: A lawyer has an affirmative duty to disclose contrary or adverse authority, which means cases law or statutes directly adverse to clients position Lawyer need ONLY disclose case name need NOT EXPLAIN. Prosecutors may only proceed on probable cause Prosecutor duty to disclose: [Brady Evidence] Prosecutor MUST disclose (in a timely manner) evidence tending to negate the guilt of accused or which could mitigate the degree of the offense or reduce the punishment. Lawyers should engage in Voluntary Pro-Bono: (a) 20 hours of pro bono a year (not mandatory) (b) Contribute financially to organizations that provide legal aid Uphold the integrity of the Profession and its members: by (a) not making unfair or derogatory remarks to other lawyers and (b) not giving or lending any items of value to a judge or other public officials except as permitted by the Code of judicial conduct

Special Duties of the Prosecutor to the Public

Duty of Lawyers to the Profession

Exception: contribution to a judge s campaign is permissible even if you regularly appear before judge. However, you can t give directly to the judge just to his campaign.