Ethics Opinions

BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS

Opinion No. 2020-1

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…

Opinion No. 2015-2

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…

Opinion No. 2015-1

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…

Opinion No. 2014-1

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”…

Opinion No. 2013-5

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…

Opinion No. 2013-4

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…

Opinion No. 2013-3

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…

Opinion No. 2013-2

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…

Opinion No. 2013-1

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…

Opinion No. 2012-3

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:…

Opinion No. 2012-2

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…

Opinion No. 2012-1

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…

Opinion No. 2011-01

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…

Opinion No. 2009-2

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…

Opinion No. 2009-01

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…

Opinion No. 2008-02

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…

Opinion No. 2008-01

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…

Opinion No. 2007-03

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….

Opinion No. 2007-02

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:…

Opinion No. 2007-01

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…

Opinion No. 2006-6

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…

Opinion No. 2006-05

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….

Opinion No. 2006-04

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…

Opinion No. 2006-03

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…

Opinion No. 2006-02

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…

Opinion No. 2003-4

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…

Opinion No. 2003-3

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…

Opinion No. 2003-2

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”…

Opinion No. 2003-1

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…

Opinion No. 2002-13

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…

Opinion No. 2002-4

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”…

Opinion No. 2002-3

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…

Opinion No. 2002-02

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…

Opinion No. 2002-01

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…

Opinion No. 2001-10

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…

Opinion No. 2001-09

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…

Opinion No. 2001-08

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…

Opinion No. 2001-07

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…

Opinion No. 2001-06

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…

Opinion No. 2001-5

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…

Opinion No. 2001-4

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…

Opinion No. 2001-3

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…

Opinion No. 2001-2

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…

Opinion No. 2001-01

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…

Opinion No. 2000-1

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…

Opinion No. 1999-4

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…

Opinion No. 1999-3

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…

Opinion No. 1999-2

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…

Opinion No. 1999-1

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…

Opinion No. 1998-13

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…

Opinion No. 1998-12

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….

Opinion No. 1998-10

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…

Opinion No. 1998-9

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…

Opinion No. 1998-8

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…

Opinion No. 1998-7

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…

Opinion No. 1998-6

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…

Opinion No. 1998-5

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…

Opinion No. 1998-4

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…

Opinion No. 1995-3

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…

Opinion No. 1995-1

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…

Opinion No. 1998-2

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…

Opinion No. 1998-1

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…

Opinion No. 1997-11

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…

Opinion No. 1997-10

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…

Opinion No. 1997-9

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…

Opinion No. 1997-8

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…

Opinion No. 1997-7

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…

Opinion No. 1997-6

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…

Opinion No. 1997-4

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…

Opinion No. 1997-2

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…

Opinion No. 1997-1

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…

Opinion No. 1996-16

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…

Opinion No. 1996-15

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:…

Opinion No. 1996-14

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…

Opinion No. 1996-13

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,…

Opinion No. 1996-12

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…

Opinion No. 1996-11

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…

Opinion No. 1996-10

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…

Opinion No. 1996-9

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…

Opinion No. 1996-5

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…

Opinion No. 1996-4

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…

Opinion No. 1996-3

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…

Opinion No. 1996-2

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…

Opinion No. 1996-1

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…

Opinion No. 1995-16

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…

Opinion No. 1995-15

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…

Opinion No. 1995-14

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…

Opinion No. 1995-13

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…

Opinion No. 1995-12

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…

Opinion No. 1995-11

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…

Opinion No. 1995-10

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…

Opinion No. 1995-9

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…

Opinion No. 1995-8

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…

Opinion No. 1995-7

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…

Opinion No. 1995-5

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…

Opinion No. 1994-11

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…

Opinion No. 1994-10

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…

Opinion No. 1994-9

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…

Opinion No. 1994-8

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:…

Opinion No. 1994-6

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…

Opinion No. 1994-5

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…

Opinion No. 1994-4

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…

Opinion No. 1994-3

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…

Opinion No. 1994-2

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…

Opinion No. 1993-6

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…

Opinion No. 1993-5

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…

Opinion No. 1993-4

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…

Opinion No. 1993-3

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…

Opinion No. 1993-2

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…

Opinion No. 1993-1

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…

Opinion No. 1992-6

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…

Opinion No. 1992-5

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…

Opinion No. 1992-4

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…

Opinion No. 1992-3

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…

Opinion No. 1992-1

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…

Opinion No. 1991-6

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…

Opinion No. 1991-5

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…

Opinion No. 1991-4

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…

Opinion No. 1991-3

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…

Opinion No. 1991-2

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…

Opinion No. 1991-1

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…

Opinion No. 1990-5

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…

Opinion No. 1990-4

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…

Opinion No. 1990-3

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…

Opinion No. 1990-2

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…