Term
| Where are the rule governing attorney conduct in New York found? |
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Definition
| The rules governing NY attorney conduct is found in the New York Code of Professional Responsibility. |
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Term
| The New York Code is broken up into three sections, what are they? |
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Definition
1. Cannons: broad statemnets of what the norms are in regard to expected attorney conduct.
2. Ethical Considerations: This is aspirational application of the cannons. What any attorney should do.... but if do not follow cannot be disciplined.
3. Disciplinary Rules (DRS): Mandatory standards, if not followed result in discipline. |
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Term
| Who investigates complaints regarding attorney conduct? |
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Definition
| The Departmental Disciplinary Committee or any Deoartment of the Appellate Division. |
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Term
| What are the 4 tpes of discipline that may be imposed on a NY attorney? |
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Definition
1. A letter of admonition: it is a letter scolding an attorney, providing the attorney with a warning... is made part of an attorney's permanent file.
2. A public or private censure: public censure is when it is published in the NY Bar Journal
3. Suspension: Temporary revocation of license to practice law. The Committe makes a reccomendation to the COA who makes the final decision regarding the suspension and its duration. Note that a n attorney may be suspended or disbarred without be found to commit malpractice.
4. Disbarment: Total revocation of license. Attorney may re-apply after number of years, but up to the Court to decide if the attny may be re-admitted. |
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Term
| Malpratice claims are brought by _______ and may not rise to the level of ________ __________. Investigations by the Departmental Disciplinary Committee may lead to discipline, but not_____________. |
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Definition
clients, disciplinary action.
malpractice. |
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Term
| What has the USSC ruled regarding what is appropriate for a state to require regarding admission to the bar? |
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Definition
| The USSC has held that requirements for admission to the bar must be rationally related to the practice of law. |
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Term
| What is considered a reasonable requirement for admission to the bar? |
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Definition
| Graduation from an ABA accredited law school. |
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Term
| Is graduation from an accredited ABa law school the only way to be admitted to the bar in NY? |
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Definition
| No. A person may be admitted to the bar if they attended one year of law school and then studied law under the supervision of a NY licensed attorney for a period of three years. |
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Term
| What will reult in a bar to be admitted to NY? |
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Definition
| If an applicant to the bar refuses to take an oath to uphomd the state and federal Constitutions. |
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Term
| What are examples of unreasonable requirements to be admitted to the bar in NY? |
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Definition
| United States citizenship and residency in NY. |
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Term
| What are the NY Bar Examination req'ts? |
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Definition
| Pass the written part of the bar and MPRE. |
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Term
| When may an applicant to the NY Bar be admitted without taking the NY Bar Exam? |
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Definition
When:
1. She graduated from an ABA accredited law school.
2. She has been admitted to practice in another state and that state has reciprocity with NY.
AND
3. Has practiced law 5 out of 7 years preceeding the application to be admitted to the NY Bar. |
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Term
| What is required from candidates when applying to the bar? |
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Definition
1. Burden on applicant to show good moral character: truth and full disclosure.
2. The duty to cooperate with the NY Bar |
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Term
| Wha tis required regarinding other applicants? |
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Definition
| Duty to report moral turpitude or an applicant. Examples of moral turpitude are purgery, bribery and theft. |
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Term
| Post admission, who regulates the conduct of attorneys? |
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Definition
| The COA and its agencies. |
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Term
| When you are admitted to the bar you have obligations to the NY bar when you know of a violation of another attorney. What is this duty? |
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Definition
| It is a two-pronged duty when you know of a violation of the New york Code of Professional Responsibility: 1. Report it to the Departmental Disciplinary Committee: rat on your friends, and 2. Be available to testify against your fireds: must make yourself known and available... no anonymous reporting. |
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Term
| Can an attorney negotiate his right to report. In other words, can an attorney use another attorney's misconduct as a bargaining chip? |
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Definition
| No. Both attorneys would be subject to discipline. |
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Term
| Under what circumstance will reporting an attorney's bad conduct not be required? |
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Definition
| When that attorney learns of the other attorney's misconduct through representation of the attorney who has engaged in improper conduct. Therefore the duty of confidentiality to a client trumps the duty to report. |
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Term
| Through the course of representing another attorney for misconduct, may that represnting attorney recommend the other attorney for admission to the bar in another state? |
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Definition
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Term
| If a lawyer is licensed to practice in multiple states, if he is disciplined n one state, will that result in automatic discipline in the other? |
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Definition
| No. The other state will be able to makeits own determination base don its own rule. States will, however, consider judgments made by other states on the basis of full faith and credit. |
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Term
| How does an attorney gain temporary permission to practice in a jurisdiction where he is not admitted? |
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Definition
1. Unadmitted attorney must associate himself with an active local lawyer.
2. Must obtain special permission to handle the case: called pro hac vice.
3. Meditation or arbitration is permissible even where not admitted.
4. May practice out of state if the matter is reasonablyrelated to lawyer's home-state practice. For example a NY lawyer can do al the paper work for a rela estate transaction in NJ, provided that a NJ attorne actually closes the deal. |
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Term
| In the context of multi-state firms, attorneys may only practce where they are admitted. What other requirment doe sNY impose on multi-state law firms? |
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Definition
| NY Code requires that multi-state law firms require tha its letterhead indicate states of admission. |
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Term
| When a lawyer's conduct is being reviewed, which state's rules should apply to determine whether the lawyer is subject to discipline? |
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Definition
If the lawyer is licensed in NY only, then NY Code applies.
If he lawyer is admitted in NY an danother state, the lawyer's conduct will be reviewed by the state's rules where the lawyer principally practices UNLESS the conduct affects another state, then that state's rules will apply. |
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Term
| When a lawyer is licesnse din two states an alleged misconduct is reported do both states do an investgation? |
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Definition
| Yes. To determine if that attorney is subject to discipline apply the rules of the state where the attorney principally practices unless the effect of the conduct affects the other state... apply the law of that state even though conduct is being reviewed by a state where the attorney is also licensed. |
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Term
| When are lawyers subject to the New York Code of Professional Responsibility? |
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Definition
| 24-7. Even private conduct may be reviewed. |
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Term
| In litigation, what decisions are considered left to the client and which are considered left to the attorney? |
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Definition
Client: To sue, settle, appeal, jury or bench trial, whether or not to testify or take the 5th (criminal).
Lawyer: Strategy, tactics and procedure. Ex: depositions (client may veto is the cost becomes burdensome). and granting other side continuances. |
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Term
| Attorneys should generally abide by theri wishes, when should an atorney not abide by client's wishes? |
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Definition
| When conduct is illegal, unethical or immoral. |
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Term
| What happens if a client loses capacity to make decisions, can an attorney make decisions on behalf of their client if the loss of capacity makes it impossible for the client to promote his best interest? |
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Definition
| The attorney may not act on behalf of the client by making decisions for him that areleft to him. The attorney must seel to appoint a guardian for their client. This is generally the case with minors. |
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Term
| Under what circumstances must an attorney wihdraw from a case? |
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Definition
1. When it is obvious that a client;s position is frivolous... there is a duty to withdraw.
2. When the attorney becomes physically or mentally impaired.
3. If representaiton would result in the violation of a disciplinary rule under the NY Code of Pro Rep.
4. When the client fires attorney. |
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Term
| When may an attorney seek to withdraw from a case? |
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Definition
1. If withdrawal will not adversely affect the interests of the client.
2. When client's claims or defenses are frivolous, but the lawyer reasonably believes the claims are permissible.
3. Lawyer reasonably believs that the client is using the atotrney's services in a situation tha tmay be criminal or fraudulent.
4. Client demands that the lawyer pursue conduct that is prhibited bya DR.
5. When client's conduct infrings on the lawyer's ability to perform his job effectively
6. Client disregards agreement with lawyer regaridng fees or expenses
7. Lawyer has conflict wth co-counsel
8. Client knowingly and voluntarily agrees to termination
Key is to rememmber the lawyer neds court approval...can't screw client..earlier in the process easier to withdraw |
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Term
| What does competence mean in the context of what cases an attorney should take or refuse? |
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Definition
| Competence means being physically and mentally able and substantively competent. |
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Term
| How can an attorney overcome lack of expertise in an area? |
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Definition
ACE:
Association with another attorney seasoned in that area of law.
Learn it
Emergency- need ot help the client now. |
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Term
| May not assist someone to engage in the unautorized practice of law. What is the practice of law? |
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Definition
| taking depositions, attending judicial proceedings, drafting critical legal docs, such as wills or ks. |
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Term
| Can attorney give pro se advice? |
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Definition
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Term
| Can a lawyer assist another lawyer who is not licensed to practice in his state to represent his client? |
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Definition
| No. Only if there is formal association. |
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Term
| Can attorneys enter non-compete agreements with current firm? |
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Definition
| No. They cannot limit their future ability to provide legal services by clients who want to retain them... some reasonable restrictions are allowed when attny leaves a firm or retires |
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Term
| What firm names are nacceptable in NY? |
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Definition
| Trade names are unacceptable.... actual name of the firm must be used. |
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Term
| Can an attorney use the name Lance Simon and Associates of NY? |
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Definition
| No. this is misleading to the lay person ... may lead the avg Joe to believe that the state is sponsoring your firm. |
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Term
| Here is the firm name A,B,C, & D. What happens to the firm name if lets say A becomes disbarred, C is appointed by the U.S. Presidet as the ambassador to China and D is suspended from practicing law? |
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Definition
| The general rule is that a firm name must be representative of who is part of athe firm. An attorney's permanent absence, either for good or bad reasons should result in the removal of his name from the firm name. Therefore, in this hypo: should be altered to B&D. B's status has not changed and because D was suspended, and not disbarred his name can remain (suspension is temporaryin nature). |
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Term
| Generally, lawyers may not hold themselves out as a specialist in a particulare areas of law, UNLESS . . . |
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Definition
| The lawyer practices, patent, tademark, admirality law or if the attorney was certified by a provate organization approved to certify and the certifying organization is identified. |
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Term
| If an attorney graduated from law school in 1947 and has been solely practicing employment law since then may he advertise as a specialist in employment law? |
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Definition
| No. Unless he was certified by a provate organization as a specialist and he identifies tha organization. Also the attorney must note tha the certifying organization is not affiliated with any governmental authority, certification is not required to practice in New York and certification does not indicate greater competency over non-certified lawyers experienced lawyers. |
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Term
| If an attorney is deemed to be a specialist in another state must he follow the rules that NY provides? |
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Definition
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Term
| How can an attorney convey to the public that he focuses on a particular area of law without saying he is a specialist? |
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Definition
| The attorney may tha this pactice is limited to X law. |
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Term
| Once an attorney has passed the additional bar for one of the speciality areas, such as admirality law, is there any time paramenter that must be met before advertising tat the attorney is a specialist? |
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Definition
| No. The day after an attorney passes his admirality or patent bar exam, she may announce to the world that she is a specialist even though she passed the bar yestrday. |
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Term
| Wha tis the trst regarding whether an advertisement is considered false or msleading? |
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Definition
| The test is wether a layperson would find the advertisement statement r advertisement misleading. |
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Term
| What is the definition of lawyer advertising? |
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Definition
| Lawyer advertising is any public or prvate communication made by or on behalf of an attorney or law firm about that lawyer(s) and the services she provides for the primary purpose of retaining or securing busines. |
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Term
| Attorney X represents A. Subsequently, Attorney X contacts A to tell him tha the is beginning to practice in trusts and estates and now works on will for a discountd price for clients. Is this considerd an advertisement? |
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Definition
| The legal definition of advertisement is any communication, public or provate on behalf of an attorney with the objective of retaining business. The answer here, however, is no, this is not considered an attorney advertisement because there is an exception for past or current clients. |
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Term
| In the context of advertising, what is considered computer accessed communication? |
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Definition
| Any communication made by or on behalf of a lawyer or law firm tha tis disseminated through the use of a computer or other electronic device which includes, but is not limited to: websites, web blogs, search engines, email, banner ads, pop-ups, chat rooms list servers, instant messages or other internet presences. |
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Term
| What must legal advertisements include? |
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Definition
| Firm or attorney name, principal law office address and telephone number. This required information must be legible or audible to the average person. Additionally, the label "attorney Advertising" on the first page of the ad or on the home page of the website is required. |
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Term
| May a lawyer's telephone number contain a domain name? |
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Definition
| Yes. Such words must be legible and able to be heard or read by the average person. |
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Term
| What additional infomration may a legal advertisment include: providing it is true? |
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Definition
| 1. Educational background anddegrees 2. Dates of admission to the bar and areas of practice 3. Public offices and teaching positions held 4. Memberships in bar associations and other professional organziations 5. Foreign language ability: must be fluent, however, 6. Names of regular clients provided tha tthey provide permission r consent in writing 7. Acceptable credit arrangements and participation in prepaid legal service propgrams. 8. Horly rate, contingency fee rates, range of fees: once the fee is in wiriting the firm/attny must not charge more than the stated fee. In NY cannot change advertised fee for 30 days. |
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Term
| May lawyers make statements that would likely create an expectations regaridng results? May they characterize the service or quality of firm/atty? May the lawyer compare his servce to competitiors? |
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Definition
| The lawyer may do all of this provided tha tit can be supported factually at the time of publcation. |
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Term
| May a lawyer publish testimonials of clients/former clients as part of his advertisement? |
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Definition
| Yes the attorney may, but he may not publish the testimonial or endorsement of a client wo has a peding matter. Additionally, the attorney must have a disclaimer saying that "prior results do not guarantee a similar outcome." |
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Term
| What must a lawyer advertisement not include? |
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Definition
| An endoresemt or testimonial from a client with a pending matter, Undisclosed payment arrangements for testimonials (must say that this is a paid testimonial), must not portrayal affiliation with a judge or a law firm that the lawyer is not associated with, actors may not be used to portray members of law firms, attny, or clients wthout disclosure. |
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Term
| When must a lawyer not use pop-up or pop-under advertisements? |
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Definition
| They may only use these devices if it is their own website or internet presence. Additionally, attorneys may not use meta tags or other hidden codes on the internet tha tif revealed would violate the NY Code of Professional Responsibility. |
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Term
| A lawyer may use a domain name in lieu of the firm name when . . . |
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Definition
| all pages conspicuously provide the name of the attorney or firm on each page. The attornye must also not attempt to use the domain name in the course of representation. The domain name may not imply results: for example, may not be www.winningteam.com. |
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Term
| What is considered misleading communication? |
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Definition
| A misleading communicagion is one that promises outcomes or using clout or connections to receive results. |
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Term
| Attorney X reminds prospective clients with his connctions with many judges. Is this permissible? |
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Definition
| No. Why else would Attorney X say this other than to imply tha tthe connections will help to provide his clients with favorable results. |
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Term
| What are attorneys required to do with television and radio advertisements? |
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Definition
| 1. They must be pre-recorded, approved by the attorneu, provide the name of the firm, address and telephone number and must be kept for at least three years after the advertisement was published to the community. |
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Term
| How long does n attorney need to retain an d that is considered a computer-accessed communitcation? |
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Definition
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Term
| Why must an attorney be clear about contingency fees? |
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Definition
| The client must be aware in explicit terms whether the contingent fee arrangment is 1/3 after all expenses or deducted before... generally after, which make s abig difference in the amount the clienct can expect. |
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Term
| Is this billboard acceptable in NY? Simon, Jones & Ramseur: "No charge for intial consultation. We don't get paid unless you do." |
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Definition
| This is not an appropriate advertosement because it does not make it clear to prospective clients what the terms and conditions are regarding the division of the award, if any fees will be paid by client etc. |
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Term
| What are the rules regarding the useof targeted mailings to solicit business? |
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Definition
1. Attorneys may send flyers to every person who may need legal service (every convicted of drunk driving in Buffalo).
2. Any mailings must have "attorney advertisement" on th emailing. In regard to e-mail, "atorney advertisement" mut appear in the subject line of the email.
3. If a retainier agreement is enclosed in the mailing. In red ink, or font the words, "sample" must be present on each page of the retainer agreement. The font must be the same or larger than the rest of the font used in the retainer agreement. Additionally, wherever there is a signature block, it must say on the space where client would ordinarily sig, "Do Not Sign."
4. Name must be present along with the principal law ffce address and phone number.
5. These rules apply to lawyers who are not residing in NY. |
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Term
| If there is a plane accident, and you would like to send a direct mailing to the families are there any restrictions? |
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Definition
Yes. In NY, no solicitation for personal injury or wrongful death suits before the 30th day from the time of the event (moratorium).
The mailing also must be sent to the Attorney Disiplinary Committee of the judicial district where the attny's principal office is... the fact tha thte advertisement is remitted tot he Commission must not be referred o in the advertisement. A list of names and addresses to whom the attorney sent the mailing to must be retained for 3 years. |
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Term
| When must a New York attnornye not solicit employment by wirtten or recorded communication? |
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Definition
1. When the communication is false, deceptive or misleading.
2. A person has made it known tha tthey do not want to be solicited.
3. Solicitation involves durress coercion or harrasment.
4. when lawyer knows tha the potential client does not have the capacity to make a reasoned decision about reatainning an attorney (age, physical, or emotional state).
5. When lawyer is aware that even though he is soliciting the client, he nor someone n his firm will be handling the matter he is solicting.
6. When lawyer requires the potential client to sign for advertisement or requires them to travel to the post office to receive the advertsement. |
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Term
| When is any form of solicitation banned? |
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Definition
| When the potential client makes it clear tha tshe does not want to be solicited by the attorney/firm. |
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Term
| Can lawyers hire others to solicit on their behalf? |
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Definition
| No. The Code is imputed on agents therefore the agent cannot do what the attorney cannot. |
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Term
| If an attorney wtnesses an accident, may he tell the injured person tha the has a great case and represnt him? |
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Definition
| No, cannot accept the employemnt because of the solicitation. Same facts, but this time the client walks up to you and says do you think I have a case...you can represnt this guy now because he approached you. |
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Term
| What is included in an attorney's duty to keep information confidential? |
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Definition
| An attny must maintain confidences of all prospective, current and former clients: maintiain their secrets. |
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Term
| What is considered a client secret? |
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Definition
| Anything that is deragatory, embarrasing or hurtful regrding your client, irrespective of the source of information. |
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Term
| Deos the duty of confidentiality survive a client's death? |
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Definition
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Term
| Why is the attorney-client privilege dfferent than the duty to keep informtion confidential? |
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Definition
| The attorney-client provilege only applies to communications between attorney and client, the duty of confidentiality is much broader. |
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Term
| If a client divulges to you that he committed 7 murders in the past what is the attorney's duty? |
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Definition
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Term
| If a client tells you that he plans to kill his boss, wha tis your duty as his attorney? |
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Definition
| Whatever you think is right... you may report it or warn the potential victim... |
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Term
| In the context of attorney confidentiality: what happens if your client gets on the stand and lies about his whereabout on the night of the nurder. You know the truth, wha tis your duty? |
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Definition
| As an attorney you have a duty to your client and the court. Here, you must try to elicit the truth from your client, or just tell him th the cannot lie. If you are not successful, you must seek withdrawal from the case. |
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Term
| If you terminate the attorney-client relationship you must |
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Definition
| protect the client from undue prejudice and return the unused protion of the retainer. |
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Term
| What are the exceptions to confidentiality? |
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Definition
| If by law or by the Court required to disclose client information. You should, however, make every attempt to protect the information. Disclose information to colleague to discuss the matter providing that you use hypotheticals and do not identify the client. |
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Term
| When an attorney acts as a bailee, how must she treat the property? |
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Definition
| She should have the property held in a bonded warehouse. Never use for personal purpose. |
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Term
| What restraints are on attorney statments during a trial? |
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Definition
| Lawyer may not make any statements that would be prejudicial to the trial. Statements that would prejudice client by discussing the character of the parties, shoukd not identify future witnesses or witnesses generally nor divulge expected testimony, must not disclose the possibility of a guilty plea, must not disclose the existence of a confession, may not disclose the results of a test or exam, mus tnot provide an opinion as to the innocence or guilt of a party, must not divulge information regarding evidence tha thte lawyer knows or should reasonably know be inadmissible at tril, Must not say that D is charged with a crime unless he is gong to follow with the clarification tha the is innocent until proven guilty. |
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Term
| What restraints are on attorney statments during a trial? |
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Definition
| Lawyer may not make any statements that would be prejudicial to the trial. Statements that would prejudice client by discussing the character of the parties, shoukd not identify future witnesses or witnesses generally nor divulge expected testimony, must not disclose the possibility of a guilty plea, must not disclose the existence of a confession, may not disclose the results of a test or exam, mus tnot provide an opinion as to the innocence or guilt of a party, must not divulge information regarding evidence tha thte lawyer knows or should reasonably know be inadmissible at tril, Must not say that D is charged with a crime unless he is gong to follow with the clarification tha the is innocent until proven guilty. |
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Term
| What may a lawyer state to the public while a trial is underway? |
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Definition
1.May discuss the genral nature of a claim or defense 2. May dscuss public inofrmation or wha tis on the record
3. May state that an investigation is in progress
4. May state the result of any step of litigation or scheduling issues.
5. May stte a warning of danger if the lawyer reasonably believes that public welfare is at stake
6. In a criminal case, may state information that is is necessary to aid in the apprehension of an accused person.
7. The opportunity to reply: a lawyer may address negative publicity about client when the publicity was not initiated bythe client or attorney. Rehabilitate their client. |
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Term
| Is there a duty for an attorney to avoid professional conflicts? |
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Definition
| Yes. Attorney must avoid all known conflicts or situations where a conflict is likely to occur. |
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Term
| What are considered conflicts? |
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Definition
| Conflicts may arise because of obligations to other clients, to the attorney himself or conflicts created by the firm. |
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Term
| May a case be taken with a known conflict? |
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Definition
| A case may only be taken with a known conflict when there is informed consent by all the clients. |
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Term
| What are the three steps that enable an attorney to represent two clients that may be in conflict? |
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Definition
1. Clients must all agree to the relationship.
2. The lawyer advises client of the possible risks and reasonable alternatives.
3. Client agrees in writing (it may be electronic).
Finally, the attorney must ask himself if a prudent attorney would take the case under similar cirumstances... genraly attorneys not take the case: avoid conflict. |
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Term
| Generally, lawyers do not testfy on behalf of their clients. When, however, may an attorney testify on behalf of his client? |
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Definition
1. It is an uncontested matter or a matter of formality.
2. Involves statutory fees.
3. When not allowing the attorney to testify wouldpresent sibstantial hardship to client. |
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Term
| Can an attorney retain publication rights flowing from books or movies regarding the case subject matter (in other words as a means of payment)? |
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Definition
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Term
| May a lawyer take a mortgage on a client's property to secure a fee? |
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Definition
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Term
| If a client desires to give you a gift, what should you do? |
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Definition
| There is always a presumption of undue influence when a client gives a gift to an attorney. You must encourage your client to seek other counsel before accepting a gift. The exceptions to this is gifts from family members.... for example you write you mother's will and you are a beneficiary in the will. Also, nominal gifts don;t usually create an issue. There is an objective test appied to determine whether a gift is nominal. |
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Term
| If your client comes to you and says can you pleas elaon me $5 because his three year old son has not eaten in 3 days. what should you do? |
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Definition
| Attend the funeral. The only time you may advance money to a client is for litigation expenses, court fees or medical fees, which is part of the contingency agreement. |
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Term
| When a third-party is paying for legal expenses are they considered your client too? |
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Definition
| No. Payment does not create a client relationship. You must take direction from the party you are representing and must not disclose any confidential information about your client to the 3d party. |
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Term
| Under what circumstances may a lawyer have sex with his client? |
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Definition
| When the sexual relationship preceded the attornyclient relationship. Never demand sex as a condition to representation. |
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Term
| Can an attny advertise tha the advances all court fees and costs of litigation? |
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Definition
| No. This is the general rule. By advertising it implies that you are doing something extraordinary, which is misleading. |
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Term
| When is a loan permissible to a client? |
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Definition
| When you are working on a pro bono matter and the client is indigent. |
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Term
| In regard to sex with a client, is there a ule of imputaton, meaning that another colleague cannot take the case because of the sexual relationship? |
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Definition
| No rule of imputation. A colleague may take over the case if a sexual relationship begins. |
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Term
| Can a lawyer do business with clients? |
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Definition
| Generally prohibited, unless the transaction is fair to teh client, the client consents in writing and the terms of the transaction are in writing and comprehensible to the client. The attorney should also encourage the client to seek independent leagl advice. Standard services or commercial relationships are ok. |
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Term
| When can't you represent a client who is suing a former client? |
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Definition
When your client wants you to sue your former client on an issue where you represented the former client
OR
You may not represent a client against a former client when information learned about the former client would give you unfair advantage in the current litigation because it is relevant to the case at bar. |
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Term
| When may a lawyer represent a client against a former client and the lawyer knows information tha tis relevant to the cse at bar? |
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Definition
| When that relevant informtion is no longer confidential or has the express consent from the former client. |
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Term
| If a lawyer recieves informed consent from two present clients, may the lawyer proceed with the represntation of the clients? |
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Definition
| No. Never. Two conflicting clients that are presently clients may not be represented by an attorney even with informed consent. |
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Term
| May you represent multiple clients on one issue? |
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Definition
| Yes, provided that you represent each client zealously. |
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Term
| May you represent multiple clients on one issue? |
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Definition
| Yes, provided that you represent each client zealously. |
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Term
| If a lawyer represents a corporation, who is his client? |
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Definition
| The lawyer's client is the corporation itself. His duty is to the corporation, therefore a lawyer may be a director of the corporaion, but no attorney-client relationship exists at things said at the board meetings. The attorney has a duty to report securities violations up the chain of command. Must report to BOD and my report to outside authorities. The welfare of the corporation is tantamount not the indivisulas that compose the corporate structure. |
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Term
| When an attorney works for insurance company, who is the client? |
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Definition
| The client is the insurer, who deserves all of the duties and privileges of the relationship. Insurance company is a third-party payor. |
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Term
| Can state bars impose minimum or maximum fee schedules for attorneys? |
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Definition
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Term
| Attorney fees must be reasonable. What are the factors that determine reasonableness? |
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Definition
1. Time and labor.
2. Novelty and difficulty of question involved.
3. Requisite skill to perform the legal service.
4. Customary fee for the service based on geography.
5. Experience, ability and preputation of the attny.
6. Intereference with other cases.
7. Time limitations imposed by client or matter.
8. Whether the fee is fixed or contingent. |
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Term
| When can't an attorney charge contingent fees? |
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Definition
| 1. not in criminal matters, 2. not in matters where a person may lose a license (law medicine teaching): this is considered quai-criminal. 3. No contingent fees in domestic relation cases. |
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Term
| Deos NY have any particular rules regariding fee arrangements? |
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Definition
| All fee arrangements that are projected to be 3k or more have to be in wiritng. The writing does not have to be signed by client. |
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Term
| Where a fee is to be be 3k or more and a retainer is drafted, what must the retainer agreement include? |
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Definition
1. Scope of legal services.
2. Explanation of attorney fees.
3. Expense and billing practices.
4. Notice of a client's right to arbitrate a fee dispute. |
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Term
| What are the rules in domestic relation cases and retainer agreements? |
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Definition
1. Fee arrnagement must be in writing signed by the client and attorney.
2. Lawyer must provide the propspective client with a statement of his rights and responsibilities as a client at the frst meeting and preceeding any ratification or signing of the retainer agreement. |
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Term
| In domestic cases, can an attorney explain to his client that fees are non-refundable? |
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Definition
| No. Fees may never be non-refundable in domestic relation cases. |
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Term
| Can contingency fees be used to collect child support or alimony? |
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Definition
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Term
| How must fee disputes be reconciled in domestic relation cases? |
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Definition
| By arbitration at the election of the client. |
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Term
| In domestic relation cases what are the rules regarding billing? |
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Definition
| Attorney must send a statement every 60 days. At the conclusion of the case the client will either receive a bill or the remainder of retainer refunded. |
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Term
| Can a lawyer ever be a partner with a non-lawyer if the partnership includes the practice of law? |
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Definition
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Term
| Can a law firm split fees with accounting firm? |
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Definition
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Term
| If a lawyer opens a real estate brokerage and has a partner who is not an attorney, may he split the fees from the real estate transaction? |
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Definition
| Yes, This has nothing to do with the practice of law... if the lawyer starts to do closing, him splitting that fee with the non-lawyer seems problematic. |
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Term
| Are there exceptions to no splitting fees with non-attorneys? |
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Definition
| Yes. Atorneys may pay their staff out of the fees from clients. In addition, firms may pay spouses of deceased partners from client fees that were earned by the deceased partner. |
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Term
| May an attorney and non-attorney share office space? |
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Definition
| Yes, but it must be separate and it mus appear separate to public. |
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Term
| Are referral fees permisible? |
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Definition
| No. Referral fees are unethical. |
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Term
| What happens if you are working ion a case that evolves into a new issue where you must refer part of it out to insure your client's interest are being fuly met? |
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Definition
| This is not a referral fee situation. An attorney may bring in another attorney who will get paid for his service too. Here: 1. the division of fees must be based on the amount of work each attorney performed individually. 2. The client is advised of this relationship and does not object. 3. The total fee is reasonable. |
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Term
| What are the two types of retainers? |
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Definition
1. Advance on fees where you ut client's money in a trust account and use as you do the work.
2. Availability retainer:? |
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Term
| What two types of accts must every lawyer have? |
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Definition
Operating account: attorney's money and Client Trust acct: this is an account where the client's money goes: advance retainers.
Make sure there is no commingling of the accounts.... keep records. |
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Term
| What are the rules regaring client trust accounts? |
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Definition
| 1. the account must be in NY. If elsewhere, the client must give written consent.the only money that the attorney may put from his operating account into the client's trust acct is bank service charges. |
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Term
| When an attorney receives an advance retainer must she take outmoney she has billed client? |
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Definition
| Yes. Attorneys should withdraw money from client's trust account into attny operating account as the work is done ... if not tha tis a form fo commingling funds, which is prohibited. |
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Term
| You take a contingency case and receive a settlement check for 30 k, which the client agrees to accept. After you deposit the 30k in the client's trust account the client calls and says that she does not think you deserve 10k for your work, but 3k. What |
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Definition
| You send the 20k to the client immediately. You take 3k and you put that in your operating acct. then you proceed to arbitration to resolve the 7k balance. You may also hand over the 27 k to the client and arbitrate the matter, but you will most likely get screwed. |
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Term
| As of January 1, 2002, what are the rules regardig fee dispute resolution? |
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Definition
| In civil cases, disputes are subject to arbitration at the client's election f the client. Client must be advised of this option in writing. |
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Term
| What are the exceptions tot eh mandatory fee dispute resolution program? |
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Definition
1. Fee dispute in criminal cases.
2. Where the fee in dispute is less than 1k or more than 50k.... got to court.
3. Where claim involves malpracice. |
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Term
| Can a subordinate lawyer escape discipline under the rules if ordered by a superior to do something? |
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Definition
| Yes, provided tha tthe subordinate attorney believed tha the request was permissible. |
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Term
| Wha tis the extent of partners and supervising attorneys exposure to discipline? |
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Definition
| Supervising are not only responsible for their conduct, but for the conduct of thse who they oversee. Especally, where they are orivy to teh conduct and do nothing to stop it. |
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Term
1. Are ex parte conversation spermitted with jurors during trial?
2. With the judge?
3. With adversary?
4. Witness? |
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Definition
1. Never.
2. De minimus communication: good morning.
3. Only through his attorney.
4. Yes. |
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Term
| Does a lawyer have an affirmative duty to disclose adverse case law, statutes, facts or witnesses? |
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Definition
| A lawyer has an affirmative duty to report all adverse law and case law that controls in NY. There is no duty to affirmatively provide the cort with adverse information, facts or witnesses. |
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Term
| Can parties talk to one another during a trial? |
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Definition
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Term
| What are exceptions to the general rule that a lawyer may not have ex parte conversations with the presiding judge during trial? |
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Definition
1. emergency
2. settlement conference |
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Term
| What are the special duties of a prosecutor? |
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Definition
1. May only pursue a case if he has probable cause.
2. Must disclose, in a timely manner, evidence tending to negate guilt or would mitigate or lessen the extent of the D's punishment (Brady Rule). |
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Term
| May a prosecutor make contributions to campaigns? |
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Definition
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Term
| Do prosecutors have a duty to not make derogatory personal remarks about the D's attorney? |
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Definition
| Yes. They must always conduct themselves in a professional manner. |
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Term
| May prosecutors lend or give judges anything of value? |
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Definition
| Generally no. They can if permitted by the Code of Judicial Conduct. |
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