BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS
Opinion No. 2020-01 Inquiry No. 2020-1 March 2, 2020 Topic: Conflict of interest – former client; imputed conflicts; responsibilities of law firm partners and supervisory lawyers Digest: Law firm partner, whose prior representation of a client at his former firm creates an imputed conflict as to representation of his current firm’s client, is required…
Topic: Use of altered “form” or boilerplate documents, and the disclosures required with their use. Digest: Real Estate practitioner, who routinely uses extensive “form” boilerplate documents as part of practice may not insert different language in place of form text on documentation without running afoul of attorneys duty to act honestly. Opinion: Inserting language onto…
Topic: Practice and / or advertisement in New York jurisdiction by practitioner of Federal immigration law, who is not admitted to practice in New York. Digest: Practitioners from out of the jurisdiction may represent within the jurisdiction on Federal immigration law exclusively, so long as disclosures are made and coordination with New York attorneys regarding…
Topic: Law firm names; attorney advertising; use of logo; misleading the public. Digest: May a law firm enhance its name by further describing itself by using the phrase “Tax Attorneys” as part of the firm’s logo or moniker, while complying with the firm’s ethical obligations? Rule Provisions: RULE 7.1 RULE 8.4 Facts Presented: A law…
Topic: Ethical issues for attorneys accepting payment by credit card. Digest: An attorney is permitted to accept client payments by credit card under the New York Rules of Professional Responsibility provided the attorney observes certain caveats and restrictions, which are the same as those required under the previous New York Code of Professional Responsibility. Rule…
Topic: Confidentiality in settlements Digest: Inquiring counsel is not prohibited by Rule 8.4(c) or 8.4(d) of the New York Rules of Professional Responsibility from agreeing, as a condition of settlement of a medical malpractice action, to discontinue the action as against the individual physicians, and to settle solely with the defendant hospital, if it is…
Topic: Duty to report; where to report. Digest: Inquiring counsel, as plaintiff’s counsel, has no obligation to report alleged tortious wrongdoing by an attorney who is a defendant in an action in which the alleged tortious wrongdoing is the subject of the complaint, beyond the report which arises by the filing of the complaint itself…
Topic: Accepting Compensation For Representation From Someone Other Than Client; Professional Independence of Lawyer; Conflict of Interest; Payment for Referrals Digest: Inquiring counsel may undertake the representation or counseling of a family of a prospective student in a proceeding to have the student’s school district pay the student’s tuition at a private school at which…
Topic: Safekeeping, payment and delivery of property. Digest: Notification of receipt of property; safekeeping; rendering accounts; payment or delivery of property; client instructions to convert property of another. Opinion: A retired attorney who has properly certified his status with the Office of Court Administration may continue to provide legal services to clients without restriction if…
Topic: New York equity partnership with and activity in New York by attorney admitted solely in the State of Massachusetts and the New York Federal Courts — Advertising limitations. Digest: Two immigration counsel, one admitted to practice in the state and federal courts of Massachusetts, and one admitted to practice in the state and federal…
Topic: Practice Limitations Placed on Retired Attorneys—Responsibility of Retired Attorneys to Identify Status on Letterhead Used in Pro Bono Representations Digest: Attorney, who has been in private practice for several decades, and has developed a loyal clientele of individuals and institutions who have sought his advice and services over the years, plans to retire from…
Topic: Attorney advertising using testimonials, superlatives, and statements regarding success and prominence. Digest: Attorney advertisements using superlative language and testimonials are permitted so long as they are not misleading, include the required disclaimer, and otherwise comply with the requirements for attorney advertisements. Rules: Rules 5.4 (b), 5.8, 7.1 (a), 7.1 (a), 7.1 (c), 7.1 (d),…
Topic: The duties of an attorney who is subpoenaed to produce records and to testify concerning a prior engagement. Digest: An attorney who is subpoenaed to produce records and to testify concerning a prior engagement should attempt to contact the former client to communicate with her regarding whether she should and will consent to the…
Topic: Whether a lawyer can represent a client in a sale or purchase of real estate where the lawyer’s wife is the real estate broker handling the transaction. Digest: A lawyer who represents a client in a sale or purchase of real estate, where the lawyer’s wife is the real estate broker handling the transaction,…
Topic: Duty to report misconduct of another attorney—Attorney’s responsibility to report an illegal solicitation. Digest: Inquiring attorney reports having observed patterns of conduct suggesting that certain attorneys, and others acting on their behalf, systematically solicit legal representation from criminal defendants at various stages of the arraignment process. Inquiring attorney asks whether he is obligated to…
Topic: Conflict of interest – – an orthopedist refers a client to inquiring attorney and inquiring attorney pays the orthopedist for his initial medical report and agrees to pay expenses reasonably incurred by the orthopedist with respect to attending and/or testifying. Digest: A lawyer may enter into a non-exclusive reciprocal referral arrangement with a non-lawyer…
Topic: Duty to report misconduct of another attorney – Attorney’s responsibility to report suspicion that opposing attorney may be proffering false evidence in litigation. Digest: In the course of litigation over the purchase and sale of goods on consignment inquiring attorney, had cause to suspect that copies of sales receipts submitted by plaintiff in support…
Topic: Conflict of interest – former client; preservation of confidential information. Matrimonial attorney interviewed by wife in divorce action later interviewed by husband for appeal of judgment in same action. Digest: During the initial stages of separation and divorce proceedings, a law firm interviewed a wife who discussed and divulged important information with respect to…
Topic: An attorney who practices law privately and holds a position as the Teen Court Coordinator for a City Court wishes to practice law before this same City Court. Digest: An attorney who holds the position of Teen Court Coordinator which facilitates student participation in the City Court sentencing proceeding is not prohibited from representing…
Topics: Conflict of interest of attorney in real estate transaction simultaneously acting as broker for seller and attorney for third-party lender (Bank’s attorney) prohibited. Digest: Attorney retained as realty broker for seller and asserting right to broker’s commission may not also serve as attorney for third-party lender (Bank’s attorney) in real estate transaction. The attorney’s…
Topic: Preservation of confidence and secrets of client – attorney subpoenaed to testify against former client in civil litigation. Digest: An attorney can not volunteer information gained in the professional relationship where a former client has requested that it be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental…
Topic: In retainer agreement, attorney seeks prior consent of the client to attorney withdrawal if payment has not been made within sixty (60) days of any future statement or bill. Digest: An attorney may not require a client, or prospective future client, to agree, in advance, not to contest the possible attorney’s withdrawal if payment…
TOPIC: Multiple client representation, preservation of client loyalties, avoiding conflicts of interest, exercising independent professional judgment. DIGEST: An attorney who represents multiple clients on related matters cannot enter into a confidentiality agreement on behalf of one client where the agreement gives such client an advantage in the discovery portion of its litigation since the terms…
TOPIC: Conflict of interest of attorney solicited by a medical service provider to represent patients in disputes with insurance carriers over failure to pay the provider’s fees for medical services where the attorney is paid a percentage of the settlement or litigation proceeds by the provider and the parties may subsequently have divergent interests. DIGEST:…
TOPIC: Attorney’s fee to be uniformly charged every client for continued storage of their files after closing of clients’ matters. DIGEST: An attorney may not charge a fee for the storage of material that the attorney is required by law or is otherwise obligated to retain in the attorney’s custody, for the period of time…
Topics: Preservation of Clients Confidences and Secrets and Attorney-Client Privilege as to Confidential Communications; Consent to Disclosure and Waiver of Privilege by Deceased Client’s Personal Representative; Validity of Informed Consent in Light of Executor’s Conflict of Interests; Lawyer’s Duty To Preserve Confidences and Secrets Pending Proof of Valid Waiver or Judicial Determination and Court Order…
Topic: Placement of clients’ applications for title Insurance with own title abstract company. Inquiry: Mayan attorney with an ownership interest in a title abstract company place title insurance applications for real estate clients with the attorney’s own title abstract company in transactions in which the attorney represents those clients if the attorney disclosures his or…
Topics: Conflict of interest of attorney solicited by private school to represent students and their parents in dispute with local school districts over the proper placement of students in “appropriate” schools, where the private school pays the attorneys fees, and an “appropriate” school in the clients’ best interests may be one other than the school…
Topics: Preservation of Confidences and Secrets; Effect of Statute Permitting Disclosure of Client’s Financial Ineligibility for Assigned Counsel Program. Digest: An attorney appointed by a tribunal to represent a criminal defendant under a publically funded Assigned Counsel Program based upon indigence, must not voluntarily reveal the client’s financial misrepresentation to the tribunal since the information…
Topic: Accepting Compensation For Representation From Someone Other Than Client; Professional Independence of Lawyer; Conflict of Interest; Payment for Referrals Digest: Inquiring counsel may undertake the representation or counseling of a family of a prospective student in a proceeding to have the student’s school district pay the student’s tuition at a private school at which…
Topic: Conflict of interest of attorney solicited by private school to represent students and their parents in dispute with local school districts over the proper placement of students in “appropriate” schools, where the private school pays the attorneys fees, and an “appropriate” school in the clients’ best interests may be one other than the school…
Topic: Supervision and compensation of paralegals or other non-lawyer employees in real estate closings. Digest: (1) A lawyer or law firm may utilize paralegals or other non-lawyer personnel to perform real estate closings under the guidance and supervision of an attorney, even though the attorney is not physically present at the closings, provided the attorney…
Topics: The extent to which one of two attorneys representing the same client for the same criminal matter, may comment on the capabilities of the other attorney in representing this mutual client. Digest: Code Provisions: EC 7-8 EC 7-9 EC 3-4 DR 6-101 DR 7-101 Facts Presented: A criminal defendant has two different, independent attorneys…
Topics: Digest: Conflicts of interest arising from partners’ law partnership in one state and independent practices in New York representing adverse parties in same transactions – application of New York Lawyer’s Code to conduct partially occurring in another state – imputation of conflict among related entities – consentability of and clients’ informed consent to conflict….
Topics: Referral Fee Arrangement with Termite Inspection and Extermination Service; Association with Termite Inspection and Extermination Service Internet Web Site; Web Based Advertising. Digest: An attorney may ethically accept a referral fee from a company engaged in termite inspection and extermination provided: (i) The client consents to the arrangement after full disclosure; (ii) A disinterested…
Topics: Referral Fees Paid to Lawyer by Service Provider. Digest: Notwithstanding consent of a client, a lawyer may not accept a fee from a real estate broker and/or mortgage broker for referral of a client to a real estate broker or mortgage broker if the attorney represents the client, directly or indirectly, in connection with…
Topics: Preservation of confidences and secrets of a client, attorney’s obligation to disclose former client’s admission, made after conclusion of the representation, that representations made by client and certified by attorney, were known by client to be false Digest: A matrimonial attorney whose former client advises him, after the representation has ended, that a Statement…
Topics: The circumstances under which “confidences” and “secrets” of clients are to be revealed. Digest: Where, prior to the commencement of any court proceedings, the attorneys (“the Firm”), client and client’s group sever the professional relationship because they intend to pursue an illegal course of action, what is the obligation of the Firm with respect…
Topics: Firm name lawyers who only share expenses. Digest: May lawyers use a firm name as partners when they only perform minimal professional work and don’t share employees but only share expenses for supplies and telephone charges. Code Provisions: DR 2-102 (B) EC 2-11 EC 2-13 DR 2-102 (A) DR 2-102 (D) DR 2-102 (C)…
Topics: Contlict of interest in dual representation of two defendants, an employer and one of its employees, in a civil proceeding, where, by agreement between them, the employer shall be solely responsible for payment of legal fees and the employee shall be solely responsible for payment of all settlement amounts and/or any award that may…
Topics: Attorney’s affiliation with on-line legal services-related website. Digest: Subject to the operational structure and advertising content as described, an attorney may affiliate with an on-line legal services-related website. Code Provisions: DR 2-101, DR 2-103, DR 2-103(B), DR 2-103(D)(1) through (4), DR 2-103(F), DR 2-107, DR 3-101(A), DR 3-102, DR 3-102(A), DR 5-105(E), EC 3-3….
Topics: An attorney’s entitlement to a fee from another attorney, when initially a conflict of interest existed, but at the time the fee was earned there was no longer a conflict. Digest: Subject to the clarifications as described, an attorney may not accept a referral fee when a conflict of interest exists. Code Provisions: Facts…
Topics: Permissive Withdrawal of Counsel; Effect of Retainer Agreement; Escape Clause. Digest: Client’s advance consent may be obtained in Retainer Agreement for an attorney to withdraw from representation in a personal injury action if the attorney discovers after investigation that the claim is not viable. Attorney has the obligation to advise the client at the…
Topics: An attorney’s permissible use of a standard real estate sales contract form. Digest: Subject to the clarifications as described, an attorney may utilize a standard real estate sales contract form. Code Provisions: DR 1-102(A)(4), DR 7-102(A)(5), EC 7-38 Facts Presented: Inquiring counsel has been presented with a real estate contract form indicating such form…
Topic: Attorney’s duty, even after resigning from representing client, to disavow untrue or fraudulent pleadings or other representations upon which the court or other persons may rely. Digest: (1) An attorney, after resigning from clients’ representation, is not required to reveal to the court or other persons information showing that clients perpetrated fraud if such…
Topics: Validity of hybrid minimum and contingent fee retainer for employment – law matters – Application of court rules on certain contingent fee matters — required specification for deducting expenses in contingent -Fee matters-Invalidity of agreement Digest: (1) The Professional Ethics Committee has no competence or jurisdiction to opine on the application to or legality…
Topics: Permissibility of attorney’s participation as “Sponsor” or “Lead Counsel” of Internet advertising service providing information to inquirers about particular fields of law with references to Internet sites containing discussions concerning the law Digest: A lawyer may advertise as a “Sponsor” on an Internet legal. information and advertising service, provided that (1) the service does…
Topics: Conflict of Interest – Associate Lawyer as Advocate and Possible Witness for Law Firm’s Client in Civil Case; Associate Lawyer as Client’s Spouse and Former Codefendant in Prior Criminal Matter. Digest: Lawyer who is spouse and former Codefendant with attorney’s client in criminal case and who was dismissed from criminal case upon spouse’s acquittal…
Topics: Attorney’s acceptance of all referrals made by fee-collection company organized by attorney and subsequent fee-splitting between attorney and collection company Digest: An attorney may not organize, and then accept referrals of all legal business from, a fee-collection company organized, in part, for the purpose of indirectly soliciting business for the attorney. Assuming a nonlegal…
Topics: Lawyer retained by client upon recommendation of person with adverse legal interest who, directly or indirectly, pays lawyer to render legal services to client. Digest: It is not impermissible for a lawyer to render legal services to a client (a purchaser of real property) at the recommendation of a third party with differing legal…
Topics: Duty when confronted with information raising a substantial question as to the fitness of another attorney to practice law – – bringing fraud to the attention of a tribunal. Digest: An attorney who has information indicating the possibility of an adversary attorney being involved in perpetrating a fraud upon a court must make a…
Topics: (1)Providing discount coupons for attorney’s legal fees to real estate brokers for distribution to the broker’s clientele; and (2) dual representation in a residential mortgage transaction of (a) the same entity as both seller and loan originator/lender Digest: (1) It is improper for a lawyer to provide a real estate broker with lawyer discount…
Topics: Obligation of inquiring attorney to inform existing client of information material to its interests which was imparted to inquiring attorney by another attorney in discussion of attorney’s availability to serve as co-counsel on a prospective matter Digest: Information regarding identities of the parties and general nature of proposed representation disclosed to an attorney in…
Topics: Unauthorized practice of law within other states – trusts and estates legal services provided to Florida client by New York Lawyer in consultation with Florida counsel. Digest: Determining what constitutes the “practice of law” in Florida or another state is ultimately a question of law under Florida’s or other states’ court rules governing legal…
Topics: Prohibition on paying referral fee to lawyer who could not have handled the case due to a conflict of interest. Digest: A lawyer who receives a referral from a lawyer who withdrew from a case due to a conflict of interest may not pay a referral fee to the conflicted lawyer for any work…
Topics: Non-Disclosure of Client’s secret as to another lawyer’s violation of disciplinary rule Digest: A lawyer may not disclose information learned in representing a client indicating a violation by another lawyer of a disciplinary rule, as otherwise required by DR 1-103(A), where the information is protected as a client’s “secret” as defined in DR 4-…
Topics: Revealing client’s identity in response to subpoena, search warrant, or official request, absent a court order. Digest: An attorney who receives an official request or subpoena asking for the identity of a client may not reveal the client’s identity without the client’s consent or some other exception to the duty of confidentiality if the…
Topics: Use of pre-authorized credit card charge form for payment of legal fees. Digest: Attorney may use pre-authorized credit card charge signed by client to pay attorney’s fees where services have already been rendered, the client approves the, bill or retainer, and the authorization is executed as a means of assuring payment or if a…
Topics: Formation of a Corporation by an Attorney and Real Estate Broker; Sharing of Legal Fees with a Non-Lawyer. Digest: A lawyer who actively renders services may not form a corporation with a real estate broker for the purpose of filing residential tax certiorari cases; a lawyer may not practice law in affiliation with a…
Topics: Attorneys direct mail solicitation to targeted areas Digest: Direct mail solicitation of potential clients by lawyers is constitutionally protected and may be regulated but not prescribed, but the particular letters inquired about are misleading as written. Code Provisions: DR 2 – 101; EC 2 – 10; DR 2 -103; DR 2 – 104 JUDICIARY…
Topics: What are an attorney’s ethical obligations to an elderly client and the beneficiaries of the client’s will when the attorney believes that an attorney-in-fact may be taking advantage of the client? Digest: No disciplinary rules or prior ethics opinions are on point. The question of whether the attorney owes a duty to his client…
Topics: Attorney’s obligation to disclose to the court information received from a client during the course of representation that may affect the decision by the court in the client’s pending or past litigation. Digest: An attorney is obligated to disclose client information to the court only if it would be material to the resolution of…
Topics: Donating legal services for charitable fund-raising purposes. Digest: A lawyer may not donate the legal service of making a valid will to a charitable fund-raising program. However, lawyer may cooperate with a fund-raising organization to present and advertise a program in which the lawyer explains about wills and why it is important to have…
Topics: Lawyer’s duties when representing the executor of an estate, or the estate, or both; disclosure of alleged fraud by the executor; withdrawal from continued representation. Digest: The question of to whom an attorney for the executor of an estate owes a duty in the event of the executor’s fraud — whether to the executor,…
Topics: Illegal or excessive fee-Propriety of seeking additional fees for services rendered to alleged incompetent where attorney has already sought court approval of the requested fees and the court has reduced them Digest: It is unethical to charge or collect a fee from client in excess of fee determined by court to be fair and…
Topics: Referrals to health care providers based on (1) mutual referrals back to lawyer, or (2) free medical reports Digest: An attorney may not refer clients to a health care provider organization in exchange for referrals to the attorney from that organization, but may make referrals to any appropriate health care facility without a quid…
Topics: Propriety of agreeing that future fee be paid from proceeds of sale of residence after eviction of tenant. Digest: An attorney retained to represent a plaintiff in a litigation to evict a defendant from a residence owned by plaintiff may agree that future fees will be paid out of the proceeds of the sale…
Topics: For-profit enterprise renting office space to a lawuer concentraded in elder law and no-lawyers offering various other services related to lawyer’s area of concentration, with advertising by such enterprise of multi-disciplianry aproach to those fields Digest: A lawyer may not enter into an arrangement with a for-profit enterprise, including non-lawyer professionals offering services in…
Topics: Obligations to constituents of corporate client; disclosure of confidences and secrets. Digest: Attorney for corporation owes allegiance to the corporation, not its officers, directors, shareholders or employees. Attorney may reveal confidences and secrets to extent necessary to establish or collect the attorneys fee. Code Provisions: DR 4-101(A) DR 4-101(B) DR 4-101(C) DR 4-101(C)(4) EC…
Topics: Propriety of attorneys establishing a budget planning service in accordance with General Business Law § § 455, 456, and 457. Digest: Because only lawyers may operate a statutorily defined “budget planning service” without obtaining a special license, lawyers may operate such a service only in conformity with the standards of the Code of Professional…
Topics: Conflicts of interest, appearance of impropriety: attorney’s appearance before local criminal court or administrative adjudicative agency representing a private individual while employed as a police officer. Digest: An attorney who is also actively employed as a police officer may not represent a client in connection with a traffic infraction which is adjudicated in either…
Topics: Conflict of interest, propriety of attorney opposing client of law firm where attorney was previously employed in same or substantially related matters on behalf of same client. Digest: An attorney may not represent a client against a former client in the same or “substantially related” matters absent informed consent by the attorney’s former client….
Topics: Limits on disclosure of an attorney’s billing records for legal services when these records are requested by a civil inquiry from a federal agency, without a court order. Digest: Absent client consent after full disclosure, an attorney may not disclose billing records for legal services to a federal agency pursuant to the agency’s civil…
Topics: Factors that a lawyer may properly consider in deciding whether to accept or reject a case. Digest: In deciding whether to accept or reject a case, a lawyer may properly consider — subject to the restrictions of DR 5-101(A) — factors such as (a) the opportunity to work with a specific expert, (b) extending…
Topics: Extent of attorney’s obligation to honor liens asserted by health rare providers over proceeds of personal injury actions. Digest: When a lawyer receives proceeds from a personal injury action, DR 9-102(C)(1) requires the attorney to “notify” every third party who has asserted a lien over the proceeds. In response to the notice, the third…
Topics: Propriety of two or more attorneys joining together to advertise their separate legal practices in one advertisement where there is no professional relationship between the attorneys other than the sharing of office space. Digest: An attorney may advertise together with another attorney in a single advertisement where there is no professional relationship between the…
Topics: Attorney right to hold himself out as a certified specialist. Digest: DR 2-105(B) of the New York Lawyer’s Code of Professional Responsibility prohibits an attorney from holding himself or herself out as a specialist unless (1) the certification is made by the “authority having jurisdiction under the laws of this state over the subject…
Topics: Dealings with printer that employs suspended attorney. Digest: An attorney may use the printing services of an appellate printer even though the printer has hired a suspended attorney as a commissioned salesperson, provided the attorney does not share any part of the legal fee with the suspended attorney and does not give anything of…
Topics: “Factoring” fees for legal services” Digest: It is not per se impermissible for an attorney to “factor” (i.e., to finance) earned legal fees to another attorney, provided adequate precautionary measures are taken for the protection of the client. Code Provisions: DR 2-103 DR 2-104 DR 2-106 DR 2-107 DR 3-102 DR 4-101(c)(4) EC 2-23…
Topics: Providing reduced-fee legal services through a corporation. Digest: A lawyer may not practice in a corporate form except according to applicable statutes and rules; the name of the attorney must be disclosed in the corporation’s name and on papers to be used by pro se clients. Any participation by the corporation in the functions…
Topics: (a) Advertising of legal services pursuant to a directory of attorneys prepared by a non-profit organization; (b) Fee splitting arrangement between non-profit organization and such attorneys. Digest: (a) Provided that certain restrictions are adhered to, advertising in the form of a directory is permissible conduct. (b) An attorney may not split a legal fee…
Topics: Communicating with jurors after trial Digest: Subject to any applicable statutes, court rules, or court customs, an attorney may send a letter to jurors after they are discharged asking them to talk with him about the trial, provided he does not harass or embarrass the jurors or attempt to influence their actions in future…
Topics: Partnership with a non-lawyer in a business entity to negotiate out of court settlements for business debtor clients. Digest: An attorney should not form a business partnership with a non-lawyer to provide out-of-court negotiation services notwithstanding disclaimers as to the attorney’s ability to dispense legal advice. Code Provisions: 3-101(A) DR 3-102(A) DR 3-103(A) DR…
Topics: Lawyer’s Duty To Report Fraud or Professional Misconduct of Another Lawyer — Exception for Client’s Confidences or Secrets — Fraud upon a Tribunal — Definition of “Tribunal” as Adjudicatory Body. Digest: Inquiring Counsel is required under DR 1-103(A) to report fraud and other professional misconduct of clients’ prior lawyers, to the extent such conduct…
Topics: Propriety of inquiring law firm (“Law Firm Two”) representing a client where the client is engaged in ii legal malpractice action against another law firm (“Law Firm One”), and a partner in Law Firm Two (“Attorney A”) was a partner in Law Firm One at …. Digest: ….the time the legal malpractice action was…
Topics: Propriety of employing a suspended attorney to draft pleadings, contracts, trust agreements and wills, and to perform legal research as a “litigation analyst,” and duty to report employing attorney and/or suspended attorney to appropriate authorities Digest: Whether an attorney may ethically employ a suspended attorney to draft pleadings, contracts, trust agreements and wills, and…
Topics: Advertising Minimal Fees and Fee Ranges. Digest: An attorney who advertises a minimal fee, or a range of fees, must clearly state in an obvious fashion that the lowest fee stated is a minimal fee, and may not separate this Qualifying language from the fee by asterisk or other artifice. Any minimal fee must…
Topics: Conflict: Attorney’s continuance as counsel for plaintiff, after defendant in plaintiffs action retains counsel in related declaratory judgment action by the defendant’s insurance carrier against plaintiff and defendant where the law firm retained by… Digest: …defendant previously represented plaintiff’s attorney personally in an unrelated litigation. An attorney may continue to represent a client after…
Topics: Continued representation of criminal defendant where attorney may be called as witness for client in pretrial speedy trial hearing. Digest: An attorney may continue to represent a criminal defendant where the attorney may be a witness if withdrawal would work “substantial hardship” on the client or where the attorney’s testimony would not go toward…
Topics: Communication by a lawyer with a person who has an interest adverse to the lawyer’s client, and who is not represented by counsel. Digest: A lawyer suing the relative of a homeowner on behalf of a construction company that was hired by the relative to perform certain work on the homeowner’s house, may communicate…
Topics: Allocation of travel expenses between two clients when a lawyer is traveling on behalf of only one client. Digest: An attorney who performs work for one client while traveling on behalf of another client may only bill all travel expenses to the client on whose behalf the attorney is traveling. Code Provisions: DR 2-106(A)…
Topics: Retirement of lawyer handling active litigations. Digest: A retiring lawyer seeking to withdraw from a employment as litigation counsel in ongoing matters must take steps; to the extent reasonably practicable to avoid foreseeable prejudices to his clients. In matters in which the lawyer is attorney of record before a tribunal the rules of which…
Topics: Lawyers filing bankruptcy petitions. Digest: An attorney who has filed a bankruptcy petition may continue to practice before the courts of the State of New York. Code Provisions: DR 1-102 Facts Presented: Inquiring attorney is contemplating filing a personal bankruptcy petition. Inquiry: Is it unethical for an attorney to file a personal bankruptcy petition?…
Topics: Propriety of cover letter and firm brochure soliciting parents of prospective college students. Digest: An attorney may solicit the parents of prospective college students for legal assistance with respect to college financial aid programs by mailing a letter and brochure to those parents. Code Provisions: DR 2-101 DR 2-101(B) DR 2-102(B) Facts Presented: Inquiring…
Topics: Disclosure of Attorney’s “House Counsel” or Employee Relationship with Insurance Company on Professional Letterhead, Business Cards, Door Placard and Building Marquee and Cover Sheet of Pleadings. Digest: Under the Lawyer’s Code of Professional Responsibility, an insurance company’s attorneys, who are employed on a salaried basis as house counsel to, represent and defend insureds, need…
Topics: Payment of a “packaging fee” to an out-of-state attorney or corporation wholly owned by an out-of-state attorney. Digest: With certain limitations, an attorney engaged in collections may pay a “packaging fee” to an out-of-state attorney who has requested the New York attorney to render legal services in this state on behalf of a lending…
Topics: Attorney’s ethical obligations upon discovering that document provided to the attorney by the attorney’s client and thereafter produced by the attorney to opposing counsel, was altered by the client prior to the document’s provision to the attorney. Digest: An attorney whose client discloses to the attorney that the client, when providing a tax return…
Topics: Attorney functioning as commission salesman f or collection agency. Digest: An attorney may, subject to stated qualifications, act as a commission salesman for a collection agency. Code Provisions: DR 2-101(A) Facts Presented: An out-of-state corporation functioning as a nationwide collection agency has solicited inquiring counsel to act (in a “licensee” capacity) as a salesman…
Topics: Propriety of letter soliciting class action claimants. Digest: An attorney may solicit potential claimants to join in a class action by sending a letter to those claimants. Code Provisions: DR 2-101(A) Facts Presented: Inquiring counsel has been retained by several New York State residents who have suffered failures of a certain prosthesis, and has…
Topics: Retainer of client and statements made to client prior to Retainer. Digest: Subject to stated qualifications, an attorney may advise client of applicable law before hearing client’s version of facts. Code Provisions: DR 7-102(A)(6) EC 7-5 EC 7-6 Facts Presented: A client consults with inquiring counsel about an automobile accident the client was involved…
Topics: Propriety of letter soliciting appellate employment sent to litigant whose case has been dismissed in decision published in Law Journal. Digest: An attorney may solicit appellate employment by sending a letter to a litigant whose case has, in a decision published in the Law Journal, been dismissed. Code Provisions: DR 7-104 Facts Presented: Inquiring…
Topics: Propriety of member of county bar association grievance committee representing a client in a post-matrimonial dispute subsequent to having investigated the client’s prior lawyer. Digest: Having, on behalf of a county bar association grievance committee operating as an adjunct of the departmental grievance committee, investigated a complaint against a former attorney, inquiring counsel is…
Topics: Attorney’s liens; fee sharing. Digest: Attorneys have only such liens against recovery as are provided by law. A fee for legal services may be divided with another lawyer only pursuant to the Codes requisites and applicable case law. Code Provisions: DR 2-107 Facts Presented: In Nassau County Opinion #93-25, this Committee noted in passing…
Topics: Distribution of settlement proceeds. Digest: At the client’s request, an attorney must distribute funds received in settlement of litigation unless he has been notified of a lien. The fee for legal services must not be increased when more than one attorney has been employed on the matter. Code Provisions: DR 2-107(A) DR 2-107 (B)…
Re: Tax preparation service advertising “Tax Lawyer on staff.” Digest: Improper for accountant/lawyer employee of tax preparation service to permit employer’s advertisement to provide “Tax Attorney – C.P.A. – Registered Rep on Staff.” Code Provisions: Judiciary Law §479 Judiciary Law §495 DR 2-101 DR-2-101(A) DR 2-103(C) DR 2-103(E) DR 3-101(A) Described Facts: Inquiring counsel, who…
Re: Demanding payment for disbursements advanced on behalf of former client. Digest: Subject to certain restrictions, a lawyer may demand and seek payment from a former client for appropriate “legal disbursements.” Code Provisions: DR 2-106(D) EC 2-23 5-8 Described Facts: Inquiring counsel was attorney of record in the prosecution of a medical malpractice action. The…
Re: Valuation of interest in law partnership in buy-sell agreement between partners. Digest: Death, retirement or disability benefits may be paid to a partner in a two-man law partnership in an amount derived from a formula equal to one-half the average of the immediately preceding two years’ gross receipts. Code Provisions: DR 3-102(A) (1) EC…
Re: Disbursement of escrow funds. Digest: To the extent escrow funds are insufficient to pay the sum due to party entitled thereto because of the escrow attorney’s error, the deficiency should be covered by the attorney so that the full amount due can be paid. Code Provisions: DR 1-102 EC 1-1 1-5 9-1 9-6 Described…
Re: Referrals to and from attorney-owned medical insurance claims processing company. Digest: Subject to stated limitations and qualifications, an attorney may accept referrals from a business of which he is a shareholder formed for the purpose of providing administrative services for medical insurance claims processing, bill paying services and medicare/medicaid application processing, provided there is…
Re: Propriety of attorney’s direct mail solicitation of potential clients, where correspondence is directed toward persons charged with specific crimes; contains a listing of certain of the defendant’s rights, potential defenses, and penalties faced for conviction of various crimes; sets forth that the attorney has represented more than a specified number of clients charged with…
Re: Conflict of interest; representation of intestate’s estate on behalf of surviving spouse whom intestate intended to disinherit. Digest: An attorney, although having prepared a draft will for a client who intended to leave the bulk of the client’s estate other than to her surviving spouse, whom she had long ago abandoned, may — notwithstanding…
Re: Commencement of action tor defamation and libel by attorney against: adverse pro se party in a pending lawsuit in Family Court who writes letter of complaint about conduct of attorney In handling the case to the Grievance Committee. Digest: Without consideration of the legal issue of whether complaint to the Grievance Committee is defamatory,…
Re: Continuing to use, as part of a firm name, the name of a partner who withdraws from the firm but continues to practice law. Digest: The name of a partner who withdraws from a firm but continues to practice law may be included as part of the firm name, at least as long as…
Re: Payment of a forwarding fee to a member of the Judiciary proportionate to the legal services rendered by the forwarding attorney before becoming a Judge. Digest: If payment of a forwarding fee by one attorney to another would otherwise be proper, and if the right to such a fee would be enforceable by the…
Re: Compulsion of testimony by an attorneys before a Grand Jury investigating client. Digest: When a lawyer has been ordered by a court to testify about matters of a confidential nature, the lawyer does not violate the Code by complying with the court’s order. Code Provisions: EC 4-1 EC 4-4 EC 7-22 DR 1-102 (A)…
Re: Disqualification of partners or associates or attorneys “of counsel” to attorney in public service; appearance of impropriety. Digest: Partners and associates of, and attorneys “of counsel” to attorney in public service may not practice in areas of law in which the public servant attorney may not practice, absent statutory exemption. Code Provisions: DR 2-102…
Re: Reimbursement for attorney’s out-of-pocket litigation expenses from funds advanced by client for expert medical witness. Digest: An attorney may, with the consent of the client, properly take reimbursement for litigation expenses from funds advanced by the client for costs and expenses where the actual expenses were not the particular litigation expenses anticipated at the…
Re: Advertising fact of being former judge. Digest: A former judge may include that fact in advertisements. Code Provisions: DR 2-101 (C) (1) EC 2-10 Inquiry: May an attorney who is a former Judge, include that fact in advertisements in newspapers, magazines, and telephone directories? Analysis: Under DR 2-101(C) (1) of the Code of Professional…
Re: Campaign donations to judicial candidates. Digest: An attorney is not prohibited from donating to the campaign of a judicial candidate even if the fact of his donation may corne to the attention of the candidate. Code Provisions: DR 7-110 EC 7-34 Described Facts: Inquiring counsel is aware of this Committee’s combined Opinions 22-87 and…
Re: Propriety of advertising reduced rate fees to certain groups. Digest: Improper to advertise fees as dicounted unless customary fees are readily discernible and all applicable provisions of the Code of Professional Responsibility and Court Rules are complied with. Code Provisions: DR 2-101 EC 2-9 EC 2-10 Described Facts: Inquiring counsel proposes to offer reduced…
Re: Retaining lien upon documents and other properties of the client to secure reimbursement of expenses advanced by attorney in the course of representation. Digest: An attorney may withhold documents and other property of the client in order to assert and protect a retaining lien for expenses advanced by the attorney without breaching the general…
Re: Retaining possession of wills. Digest: An attorney may retain existing wills in order to enforce his claim to be paid for preparing new wills. Code Provisions: Ethical Consideration 5-7 Described Facts: Inquiring counsel was consulted about estate-planning-and preparation of new wills for a client and his wife. It was agreed that the client would…
Re: Stopping payment on an attorney’s certified check. Digest: An attorney is not required to stop payment on a check if he determines that this is unlawful. Code Provisions: Canon 7 Disciplinary Rule 2-110 C 1 7-101 B 2 Ethical Consideration 7-7 Described Facts: An attorney represented clients in the purchase of a single-family home….
Re: Attorney’s direct mail solicitation Digest: Subject to certain restrictions, an attorney may solicit, by direct mail, persons charged with violations of the Vehicle & Traffic Law, as well as people involved in automobile accidents or persons who may require an attorney to handle certain estate matters. Code Provisions: Canon 2 Disciplinary Rule 2-101 Described…
Re: Conflict of interest; joint representation of a present client and a new client. Digest: In civil litigation, even where there may be identity of interests, a single lawyer may not represent both parties if one has a claim against the adverse party and the other does not. Code Provisions: Disciplinary Rule 4-101 5-105 A…
Nassau County Bar Association ALL Rights Reserved
15th and West Streets | Mineola, NY 11501 | (516) 747 4070 | Fax (516) 747 4147
