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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


New York Legal Ethics

I. CLIENT-LAWYER RELATIONSHIP

1.1   Rule 1.1 Competence

1.1:100   Comparative Analysis of New York Rule

Primary New York References: DR 6-101, EC 6-1 - 6-4
Background References: ABA Model Rule 1.1 & 1.3, Other Jurisdictions
Commentary:
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 6, et seq.

1.1:101      Model Rule Comparison

NY DR 6-101(A), which prohibits a lawyer from acting incompetently, is the converse of Model Rule 1.1. Unlike Model Rule 1.1, which affirmatively describes the elements of competence, NY DR 6-101 lists conduct which fails to satisfy the requisite standard of competence, such as handling a legal matter the lawyer knows he or she is not competent to handle, failing to adequately prepare, or neglecting a legal matter. Unlike NY DR 6-101(A), the Model Rule does not specifically prohibit neglect. Instead, it affirmatively requires a lawyer to be competent.

Cross References

ABA Model Rule 1.3, Diligence, is related to the doctrine of an attorney’s competence. This topic is discussed in Section 1.3:200.

1.1:102      Model Code Comparison

ABA Model Code DR 6-101(A) is substantially identical to NY DR 6-101(A).

1.1:200   Disciplinary Standard of Competence

Primary New York References: DR 6-101, EC 6-1, 6-2, 6-3, 6-4 and 7-9
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 31:201, ALI-LGL § 28, Wolfram § 5.1
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canons 6 and 7, et seq.

Relevant Ethical Considerations

Several New York Ethical Considerations elaborate on the competency requirements contained in NY DR 6-101.

NY EC 6-1 requires a lawyer to attain and maintain proficiency in his/her practice. EC 6-1 allows a lawyer to accept matters which (s)he is not currently competent to handle as long as (s)he intends to become competent to handle them.

NY EC 6-2 advises a lawyer to attain and maintain competence by keeping abreast of current legal developments, participating in continuing legal education courses, and by concentrating in particular areas of the law.

NY EC 6-3 allows a lawyer to accept a matter in which (s)he is not currently competent as long as (s)he engages in the appropriate study and investigation. The Ethical Consideration warns, however, that this study and investigation should not take an unreasonable amount of time.

NY EC 6-4 provides: "Having undertaken representation, a lawyer should use proper care to safeguard the interests of the client. If a lawyer has accepted employment in a matter beyond the lawyer's competence but in which the lawyer ex pected to become competent, the lawyer should diligently undertake the work and study necessary to be qualified. In addition to being qualified to handle a particular matter, the lawyer's obligation to the client requires adequate preparation for and appropriate attention to the legal work, as well as promptly responding to inquiries from the client."

NY EC 7-8 provides: "A lawyer should exert best efforts to insure that decisions of the client are made only after the client has been informed of relevant considerations. A lawyer ought to initiate this decision-making process if the client does not do so. Advice of a lawyer to the client need not be confined to purely legal considerations. A lawyer should advise the client of the possible effect of each legal alter native. A lawyer should bring to bear upon this decision making process the fullness of his or her experience as well as the lawyer's objective viewpoint. In assisting the client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible."

Relevant Ethics Opinions

Adequate Preparation May Require Retaining Interpreter: N.Y. City Bar Op. 1995-12 (1995): "Adequate preparation" within the meaning of DR 6-10l(A)(2) requires lawyers to gather information material to the claims or defenses of a client. If a lawyer cannot fully understand a client because of a language barrier, then DR 6-10l(A)(2) and EC 6-3 require the lawyer to hire an interpreter. "When the need for an interpreter is apparent or it is reasonable to conclude that an interpreter is required for effective communication," failing to secure an interpreter may breach the duty to represent the client competently.

Guidelines for Representation of Temporary Lawyer Placement Agency: N.Y. City Bar Op. 1988-3 (1988): The inquiring lawyer wishes to represent a "temporary lawyer placement agency" (the "Agency"), which would provide attorneys, on a per-diem or per-hour basis, to law firms that need additional expertise or manpower. May the inquiring lawyer properly represent the Agency? Yes, provided the Agency follows certain "guidelines" to ensure that its conduct and the conduct of the temporary lawyers comports with the Code of Professional Responsibility. One guideline is that under DR 6-101, the Agency "must agree not to attempt to require a lawyer to handle a matter that the lawyer is unable to handle competently," and "the law firm must investigate the competence of the temporary lawyer, and . . ., be satisfied after investigation that the lawyer is competent to handle the matter assigned to him." [Note: This opinion is generally reaffirmed but partially modified in N.Y. City Bar Ops. 1988-3A and 1989-2.]

Relevant Cases

Delegation of Responsibility: Kleeman v. Rheingold, 81 N.Y.2d 270, 598 N.Y.S.2d 149 (1993): Under DR 6-101, an attorney cannot delegate the duty to exercise care in handling a client's legal matter. Accordingly, an attorney cannot escape liability for negligent service of process by delegating that task to an independent process server.

Neglect: Matter of Sorid, 189 A.D.2d 377, 596 N.Y.S.2d 125 (2nd Dept. 1993): An attorney violated DR 6-101 by failing to forward a settlement check to a client for two months, failing to retrieve the file in an estate matter after a former employee removed it from the attorney's offices, and by failing to probate an estate within four years. See also In re Lowenthal, 132 A.D.2d 117, 521 N.Y.S.2d 721 (2d Dept. 1987), appeal dismissed, 71 N.Y.2d 888 (1988) (lawyer that violated DR 6-101(A)(3) by neglecting an estate matter for more than seven years was suspended for two years for this and various other rules violations).

Family Problems No Excuse For Neglect: Matter of Sexton, 231 A.D.2d 832, 647 N.Y.S.2d 587 (3d Dep't 1996) (acknowledging that attorneys must attend to their clients' interest punctually and with vigor despite distracting and stressful intrusions from personal and family problems or advise their clients of their option to obtain other counsel; neglectful counsel suspended for 6 months)

Illness Not an Excuse: Matter of Whitbread, 183 A.D.2d 347, 591 N.Y.S.2d 117 (4th Dept. 1992) (under DR 6-101, an attorney's illness and divorce do not justify the attorney's neglect of legal matters and abandonment of clients; sanction: suspended for one year.)

Depression May be Mitigating Factor: Matter of Chikofsky, 239 A.D.2d 86, 668 N.Y.S.2d 586 (1st Dep't 1998) (sanction of public censure only despite attorney's neglect and misrepresentations about status of client's criminal appeal, and his refusal to refund unearned fees, where mitigating factors included attorney's severe depression).

1.1:300   Malpractice Liability

Primary New York References: DR 6-102(A), EC 6-6
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 301:101, ALI-LGL § 71-76 , Wolfram § 5.6

Relevant Cases

Statute of Limitations: NY CPLR § 214(6), amended effective September 4, 1996, provides that the statute of limitations for a claim of professional nonmedical malpractice is three years "regardless of whether the underlying theory is based on contract or tort." See Russo v. Waller, 171 Misc.2d 707, 655 N.Y.S.2d 313 (Sup. Ct. Nassau County 1997) (holding that new statute of limitations applies to claims arising before its effective date.)

Accrual of Claim: A claim for legal malpractice accrues when the malpractice is committed, not when the client discovers it. See Goicoechea v. Kihl, 234 A.D.2d 507, 651 N.Y.S.2d 198 (2d Dept. 1996) (breach of contract action against attorney accrued when attorney failed to file action).

Tolling by Continuous Representation: A client's malpractice claim may be tolled by the attorney's continuous representation of the client. See Glamm v. Allen, 57 N.Y.2d 87, 453 N.Y.S.2d 674 (1982); Kuritzky v. Sirlin & Sirlin, 231 A.D.2d 607, 647 N.Y.S.2d 806 (2d Dept. 1996) (finding clients' malpractice claims tolled by continuous representations). See also Schlanger v. Flaton, 218 A.D.2d 597, 631 N.Y.S.2d 293 (1st Dept. 1995) (client's cause of action for rescission of agreement with lawyer tolled until termination of attorney client relationship).

Requirements of Prima Facie Case: To establish a prima facie case of legal malpractice under New York law, the plaintiff must prove: (1) the negligence of the attorney; (2) that such negligence was the proximate cause of the plaintiff's injury, and (3) that but for the attorney's negligence, the plaintiff would have been successful in the underlying action. See, e.g., C&F Pollution Control Inc. v. Fidelity and Cas. Co. of New York, 222 A.D.2d 828, 653 N.Y.S.2d 704 (3d Dept. 1995); Franklin v. Winard, 199 A.D.2d 220, 606 N.Y.S.2d 162 (1st Dept. 1993) (both applying tri-partite test).

Malpractice Liability Found: S & D Petroleum Co., Inc. v. Tamsett, 144 A.D.2d 849, 534 N.Y.S.2d 800 (3d Dept. 1988) (lawyer committed malpractice by failing to file a security agreement); Logalbo v. Plishkin, Rubano & Baum, 163 A.D.2d 511, 558 N.Y.S.2d 185 (2d Dept. 1990) (lawyer committed legal malpractice as a matter of law where he gave oral notice of the cancellation of a contract for purchase of a home instead of timely written notice as required by the contract), appeal dismissed, 569 N.Y.S.2d (1991); Degen v. Steinbrink, 202 A.D. 477, 195 N.Y.S. 810 (1st Dept. 1922) (where a lawyer undertook to draw a chattel mortgage on property in other states and to file requisite documents there, court rejected his claim that he was ignorant of the law of other states in the ensuing malpractice suit), aff'd, 142 N.E. 328 (1923).

Continuing Duties after Representation: A lawyer’s responsibility to a client may outlast the attorney-client relation ship. See Lama Holding Co. v. Shearman & Sterling, 758 F. Supp. 159 (S.D.N.Y. 1991) (opining that for malpractice purposes, a lawyer owes a duty to an otherwise former client if the lawyer told the client that he would inform the client of significant tax law changes).

1.1:310      Relevance of Ethics Codes in Malpractice Actions

[The discussion of this topic has not yet been written.]

1.1:320      Duty to Client

[The discussion of this topic has not yet been written.]

1.1:330      Standard of Care

[The discussion of this topic has not yet been written.]

1.1:335      Requirement of Expert Testimony

Relevant Cases

Expert Testimony Generally Required: Ordinarily, expert testimony is required to establish a breach of a standard of professional care. See, e.g., Fidler v. Sullivan, 93 A.D.2d 964, 965, 463 N.Y.S.2d 279, 280 (3d Dept. 1993) (affirming dismissal of action for legal malpractice where, inter alia, "there was no expert opinion evidence offered to establish the standard of professional care and skill that defendants were alleged to have failed to meet"); Greene v. Payne, Wood and Littlejohn; 197 A.D.2d 664, 602 N.Y.S.2d 883 (2d Dept. 1993) ("[U]nless the ordinary experience of the fact-finder provides sufficient basis for judging the adequacy of the professional service . . . or the attorney's conduct falls below any standard of care . . . expert testimony will be necessary to establish that the attorney breached a standard of professional care and skill.") (citations omitted).

1.1:340      Causation and Damages

[The discussion of this topic has not yet been written.]

1.1:350      Waiver of Prospective Liability [see 1.8:910]

Cross References

See section 1.8:910.

Relevant Disciplinary Rules

NY DR 6-102(A) provides: "A lawyer shall not seek, by con tract or other means, to limit prospectively the lawyer's individual liability to a client for malpractice, or, without first advising that person that independent representation is appropriate in connection therewith, to settle a claim for such liability with an unrepresented client or former client."

Relevant Ethical Considerations

NY EC 6-6 provides: "A lawyer should not seek, by contract or other means, to limit prospectively the lawyer's individual liability to the client for malpractice nor shall a lawyer settle a claim for malpractice with an otherwise unrepresented client without first advising the client that independent representation is appropriate. A lawyer who handles the affairs of the client properly has no need to attempt to limit liability for professional activities and one who does not handle the affairs of the client properly should not be permitted to do so. A lawyer who is a stockholder in or is associated with a professional legal corporation may, however, limit the lawyer's liability for malpractice of associates in the corporation, but only to the extent permitted by law."

Relevant Ethics Opinions

Limited Liability Companies ("LLCs") and Limited Liability Partnerships ("LLPS"): Assoc. of the Bar of the City of New York, Formal Op. No. 1995-7, 1995 WL 875456 (May 31, 1995): An LLC or LLP insulates the lawyers in the firm from professional liability for acts of other associates and partners in the LLC or LLP, except for acts of the lawyer or persons subject to the lawyer's direct supervision and control. LLPs and LLCs, are completely consistent with DR 6-102(A). See also N.Y. County Lawyers' Assoc. Comm. on Prof. Ethics, Op. No. 703, 1994 WL 906736 (November 8, 1994) (operation of a law firm as a professional corporation, limited liability partner ship does not violate any ethical standard).

Arbitration Clauses in Retainer Agreements: N.Y. County Lawyers' Assoc. Comm. on Prof. Ethics, Op. No. 723, 1997 WL 419331 (July 17, 1997): Outside the domestic relations con text, it is not unethical or violative of DR 6-102(A) for a lawyer to provide in a retainer agreement that all disputes arising thereunder shall be subject to arbitration, provided: (a) that the arbitrator is not prevented from awarding punitive damages, (b) the lawyer discloses the consequences of the arbitration provision and (c) the lawyer permits the client, if (s)he chooses, to consult independent counsel concerning the arbitration provision.

Prospective Agreement for Reimbursement of Monetary Sanctions Imposed by a Court: N.Y. County Lawyers' Assoc. Comm. on Prof. Ethics, Op. No. 683, 1990 WL 677025 (November 15, 1990): A provision in a retainer agreement prospectively requiring a client to reimburse a lawyer for any monetary sanctions which may be imposed is analogous to the attempt to prospectively limit the lawyers liability for malpractice, proscribed by DR 6-102(A), and is therefore inappropriate. However, reimbursement may be ethical in other circumstances such as where the client insists that the lawyer take action which the client has been told may result in sanctions, or where sanctions have already been imposed, although not specifically on the lawyer. Additional reimbursement may be proper where the lawyer for goes the right to appeal the imposition of sanctions.

1.1:360      Settlement of Client's Malpractice Claim [see 1.8:920]

Cross References

See 1.8:920

Relevant Disciplinary Rules

NY DR 6-102(A) prohibits a lawyer from settling a malpractice claim brought against the lawyer by an unrepresented client without first advising the client that independent representation is appropriate.

Relevant Ethical Considerations

See EC 6-6

Relevant Cases

Release by Sophisticated Client: Settlement of a malpractice claim with an unrepresented former client who is sufficiently sophisticated does not violate NY DR 6-102. See In Mergler v. Crystal Properties Associates, Ltd., 179 A.D.2d 177, 583 N.Y.S.2d 229 (1st Dept. 1992) (sophisticated client, sued by his attorney for fees, must have realized that it was advisable to retain a new lawyer.)

Disbarment Ordered: See Matter of Sims, 201 A.D.2d 72, 614 N.Y.S.2d 846 (4th Dept. 1994) (ordering disbarment of attorney who committed a variety of ethical violations, including, inter alia, attempting to settle a claim for legal malpractice with an unrepresented client.)

Relevant Ethics Opinions

Prerequisites of Valid Negotiations for Release of Malpractice Claims: NYSBA Comm. on Prof. Ethics, Op. No. 591, 1988 WL 236149 (May 3, 1988): The following conditions must be met before negotiations to limit or release a lawyer's liability for malpractice:

"1. A client has been fully apprised of the facts pertaining to the representation that may give rise to specific claims against the lawyer;

2. The lawyer has been discharged or has withdrawn from the representation in accordance with DR 2-110; and

3. The lawyer had advised the client to secure independent counsel in the negotiation and consummation of such an agreement.

Cf. A.B.A. Inf. 1010 (1967); N.Y. State 275 (1972)."

1.1:370      Defenses to Malpractice Claim

[The discussion of this topic has not yet been written.]

1.1:380      Liability to Client for Breach of Contract, Breach of Fiduciary Duty, and Other Liabilities

Relevant Cases

Liability for Breach of Contract: A lawyer can be held liable to a client on a breach of con tract theory. See, e.g., Sanulli v. Englert, Reilly & McHugh, 78 N.Y.2d 700, 479 N.Y.S.2d 324 (1992) (permitting breach of contract claim against attorney). See also Gunn v. Mahoney, 95 Misc.2d 943, 408 N.Y.S.2d 896 (Sup. Ct. Erie County 1978) (allegation that lawyer failed, within a reasonable time, to incorporate the client’s business stated claim for breach of implied contract.)

Liability for the Intentional Breach of a Lawyer’s Fiduciary Duty to the Client: New York recognizes a cause of action for a lawyer’s breach of a fiduciary duty to a client. See e.g., Milbank, Tweed, Hadley & McCloy v. Boon, 13 F.3d 537 (2d Cir. 1994) (finding "serious breach of fiduciary duty" where law firm agreed in writing not to represent client's agent after agency was terminated, and law firm, without client's consent, proceeded to do so in connection with agent's attempt to amend the very transaction that the firm had previously negotiated on behalf of the client).

Restitutionary, Injunctive, or Declaratory Remedies

New York courts permit restitutionary, injunctive, and declaratory remedies in certain malpractice cases.

Rescission: In Greene v. Greene, 56 N.Y.2d 86, 451 N.Y.S.2d 46 (1982), the Court of Appeals allowed a client to rescind a trust agreement which, unbeknownst to the client, had given the lawyers "powers greater than they would be entitled to have as fiduciaries and relieved them of normal fiduciary liability." See also Schlanger v. Flaton, 218 A.D.2d 597, 631 N.Y.S.2d 293 (1st Dept. 1995) (rescinding contracts granting lawyer opportunity to participate in real estate option ex tended to client, where lawyer breached fiduciary duties to client and violated DR 5-104(a)).

Disgorgement: In Zeiden v. Oliphant, 54 N.Y.S.2d 27 (Sup. Ct. N.Y. County 1945), the client was allowed to recover the lawyer’s profits derived from the use of client’s information even though the lawyer’s use of such information did not harm the client. See also Excelsior 57th Corp. v. Lerner, 160 A.D.2d 407, 553 N.Y.S.2d 763 (1st Dept. 1990) (acknowledging disgorgement of fee as potential remedy where client raises claims of self-dealing and divided loyalty).

Injunctions: In Penguin Books USA Inc. v. Walsh, 756 F. Supp. 770 (S.D.N.Y. 1991), vacated as moot, 929 F.2d 69 (2d Cir. 1991), the court recognized the possibility of injunctive relief in denying a client’s request for an injunction based on an alleged breach of a fiduciary duty. The court found that information the lawyer proposed to publish was not protected under the rules of confidentiality.

1.1:390      Liability When Non-Lawyer Would Be Liable

Relevant Cases

Lawyers are subject to the same laws as non-lawyers. However, a lawyer’s occupation, functions, and powers may be relevant to an analysis of a lawyer’s potential liability and the existence of available defenses.

Breach of Contract: In Gunn v. Mahoney, 95 Misc.2d 943, 408 N.Y.S.2d 896 (Sup. Ct. Erie County 1978), a lawyer was held liable to his client for breaching a contract to incorporate the client’s business.

Conversion: In Kahn v. Crames, 92 A.D.2d 634, 459 N.Y.S.2d 941 (3d Dept. 1983), a lawyer was held liable for conversion after directing his client to take and keep property that belonged to the client’s husband’s clients.

Fraud: In Heine v. Colton, Hartnick, Yamin & Sheresky, 786 F. Supp. 360 (S.D.N.Y. 1992), a lawyer was held liable for de frauding his client in business transactions while representing him in other matters. See also Breard v. Sachnoff & Weaver, Ltd., 941 F.2d 142 (2d Cir. 1991) (complaint properly alleged fraud based on lawyer's reckless drafting of an offering memorandum which failed to mention the promoter’s past fraud conviction and misrepresented that the promoter’s past was immaterial).

Criminal RICO Liability: United States v. Eisen, 974 F.2d 246 (2d Cir. 1992) (upholding criminal RICO conviction of a lawyer who systematically forged evidence and bribed witnesses), cert. denied, 507 U.S. 1029 (1993).

Fair Debt Collection Practices Act Liability: See, e.g., Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993) (lawyer held liable under the Fair Debt Collection Practices Act for approving a collection letter purporting to come from the lawyer when the lawyer had no role in deciding to send the letter.)

Anti-Discrimination Liability: See, e.g., Lucido v. Cravath, Swaine & Moore, 425 F. Supp. 123 (S.D.N.Y. 1977) (former associate at law firm stated cause of action against law firm under Civil Rights Act of 1964, based on alleged instances of religious and national origin discrimination).

1.1:400   Liability to Certain Non-Clients

Primary New York References:DR 7-102(A)(3) & (5), EC 7-5, 7-26
Background References: ABA Model Rule 1.1 & 4.1, Other Jurisdictions
Commentary: ABA/BNA § 71:1101, ALI-LGL § 73, Wolfram § 5.6
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

The New York Disciplinary Rules mandating truthfulness and prohibiting omissions in violation of a legal duty apply with equal force to a lawyer's interactions with non-clients. Specifically, NY DR 7-102(A)(2) states that "[i]n the representation of a client, a lawyer shall not . . . [k]nowingly make a false statement of law or fact." NY DR 7-102(A)(3) provides, moreover, that a lawyer shall not "conceal or knowingly fail to disclose that which the lawyer is required by law to reveal."

Relevant Cases

Participation in Clients' Fraud: See Stochastic Decisions, Inc. v. DiDomenico, 995 F.2d 1158 (2d Cir.) (holding lawyer liable for fraudulent misrepresentation and defrauding non-clients when he transferred client’s assets to his account in order to defraud the client’s creditors), cert. denied, 510 U.S. 945 (1993); Chase Manhattan Bank, N.A. v. Perla, 65 A.D.2d 207, 411 N.Y.S.2d 66 (4th Dep’t 1978) (holding lawyer liable for knowingly making false assertion that the client’s house was being sold and that the non-client would be paid from the proceeds of the sale); compare, Royal American Managers, Inc. v. IRC Holding Corp., 885 F.2d 1011 (2d Cir. 1989) (seller’s lawyer was not liable when he gave the buyer of a large block of shares his opinion that government approval was not required for the sale because buyer could have discovered otherwise with ordinary diligence).

False Representations: See, e.g., Slotkin v. Citizens Casualty Co., 614 F.2d 301 (2d Cir. 1979), cert. denied, 449 U.S. 981 (1980) (lawyer held liable to opposing party for obtaining a settlement by recklessly and falsely stipulating that the client had only $200,000 in insurance coverage).

Fraudulent Concealment of Documents: See Cresswell v. Sullivan & Cromwell, 668 F. Supp. 166 (S.D.N.Y. 1987) (investors stated a claim against lawyers for fraudulently withholding documents during discovery), aff'd in part, vacated in part, 922 F.2d 60 (2d Cir. 1990) (court considered a defense of lack of reasonable reliance by investors). See also Slotkin v. Citizens Casualty Co., 614 F.2d 301 (2d Cir. 1979), cert. denied, 449 U.S. 981 (1980) (defense lawyer liable for fraud in settlement of medical malpractice suit where lawyer stipulated that "to the best of his knowledge" there was no excess insurance coverage, despite the fact that his client’s files, which were in law firm’s possession during trial, contained letters from the excess carriers).

1.1:410      Duty of Care to Certain Non-Clients

Relevant Cases

Opinion Letters: A lawyer may owe a duty of care to a non-client who relies on the lawyer’s opinion. See, e.g., Vereins-und Westbank, AG v. Carter, 691 F. Supp. 704 (S.D.N.Y. 1988) (borrower's lawyer who wrote an opinion letter required by the lender and its assignee owed the assignee a duty of care); Prudential Ins. Co. v. Dewey, Ballantine, Bushby, Palmer & Wood, 80 N.Y.2d 377, 590 N.Y.S.2d 831 (1992) (lawyer who provided an opinion letter to client’s creditor to obtain refinancing was held liable to creditor for misstatements in opinion letter).

Limited Liability to Non-Clients for Opinion Letters: A lawyer's liability to third parties who rely on the lawyer's opinion is limited. See Alpert v. Shea Gould Climenko & Casey, 160 A.D.2d 67, 559 N.Y.S.2d 312 (1st Dept. 1990) (no fiduciary relationship between law firm and non-clients); Resolution Trust Corp. v. Latham & Watkins, 909 F. Supp. 923 (S.D.N.Y. 1995) (author of opinion letter on Florida law not liable for his failure to discuss other states' laws).

1.1:420      Reliance on Lawyer's Opinion [see also 2.3:300]

See 2.3:300.

1.1:430      Assisting Unlawful Conduct [see also 1.2:600-1.2:630]

Cross References

See 1.2:600-1.2:630.

Relevant Disciplinary Rules

Several New York Disciplinary Rules prohibit a lawyer from assisting a client's unlawful conduct. NY DR 7-102(A)(7) bars a lawyer from counseling or assisting the client in conduct that the lawyer knows to be illegal or fraudulent. NY DR 7-102(A)(8) prohibits a lawyer from knowingly engaging in "other illegal conduct or conduct contrary to a Disciplinary Rule."

NY DR 7-102(B) further provides that if a lawyer discovers that a client has perpetrated a fraud upon a third person or tribunal, the lawyer must call upon the client to rectify it. If the client does not do so, the lawyer must reveal the fraud to the third person or tribunal, unless the information is protected by the rules of confidentiality.

Relevant Ethical Considerations

NY EC 7-5 similarly provides that a lawyer can continue to represent the client even if the client does not follow the lawyer’s advice as long as the lawyer does not thereby knowingly assist the client to engage in illegal conduct or to take a frivolous legal position. A lawyer should never encourage or aid the client to commit criminal acts or counsel the client on how to violate the law and avoid punishment for it.

NY EC 7-26 further provides that "the law and Disciplinary Rules prohibit the use of fraudulent, false, or perjured testimony or evidence. A lawyer who knowingly participates in the introduction of such testimony or evidence is subject to discipline."

Relevant Ethics Opinions

Participation in Settlement Based on Fraud: Nassau County Bar, Op. No. 94-21 (1994): An attorney represented an infant in a personal injury action. When the infant appeared for his deposition, both the infant's attorney and the opposing attorney concluded that the infant was non compos mentis, so the deposition was not taken. The case then settled, but the infant's attorney could not obtain a physician's affidavit needed to obtain court approval of the settlement. The attorney then received information suggesting that the infant who had appeared for the deposition was not the plaintiff but rather the plaintiff's cousin. If the information is protected as a confidence or secret, then the attorney has no obligation to report the fraud to the tribunal. But under DR 7-102(A)(7), the attorney may not "assist the client in conduct that the lawyer knows to be illegal or fraudulent" and thus may not seek court approval for a settlement that the attorney knows has been obtained by fraud. If the client refuses to rectify the fraud, then the attorney must withdraw.

Withdrawal of Attorney Based on Client's Persistence in Fraud: Assoc. of the Bar of the City of New York, Formal Op. No. 1994-8, 1994 WL 780799 (July 24, 1994): Without his lawyer's knowledge, a client paid cash "under the table" as partial payment for real estate in order to avoid part of the New York City transfer tax for real estate. Before the closing, the lawyer advised the client not to engage in the scheme and advised the buyer of the risks of filing false returns and reports relating to the transfer tax. When the client persisted in the scheme, the lawyer withdrew. The lawyer's withdrawal was mandatory because it was obvious that continued employment would have led to a violation of DR 7-102(A)(7), which forbids a lawyer from counseling or assisting the client in conduct the lawyer knows to be illegal or fraudulent.

Illegal Contingent Fee Arrangement: Assoc. of the Bar of the City of New York, Formal Op. No. 1993-2, 1993 WL 765495 (December 15, 1993): Under DR 7-102(A)(7), a lawyer representing a client in a will contest may not arrange for the client to hire a private investigator on a contingent fee because § 84(1) of the General Business Law makes it unlawful for private investigators to accept compensation on a contingent basis.

Discovery of Client's Prior Attorneys' False OCA Filing: Nassau County Bar Op. 96-1 (1996): The inquiring attorney represents clients in an action against their former attorneys. During the representation, inquiring attorney learned that the former attorneys, who represented the clients in a medical malpractice action, had backdated and filed a false and fraudulent retainer statement with the Office of Court Administration ("OCA"). (In the Second Department, § 691.20(a)-(b) requires attorneys to file retainer agreements and closing statements in contingency fee matters.) The purpose of backdating the retainer statement was to conceal from the court the fact that the former attorneys charged more than twice the fee allowed by a new law, Judiciary Law § 474-a, which governs maximum attorney fees in medical malpractice actions. The clients have asked the inquiring attorney not to report the misconduct to the disciplinary authorities. Must inquiring attorney report the misconduct of the former attorneys under DR 7-102(B)(2), which requires that a lawyer with information clearly establishing that a person other than the client who has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal"? No. Although the prior attorneys have committed fraud, they have not committed fraud on a "tribunal." The Definitions in the Code define "tribunal" as including "all courts and other adjudicatory bodies." The OCA is neither a "court" nor an "adjudicatory body." There has therefore been no fraud "upon a tribunal" and the reporting obligation of DR 7-102(B) is not triggered.

Relevant Cases

Liability for Assisting Illegal or Fraudulent Conduct: In Newberger, Loeb & Co., Inc. v. Gross, 563 F.2d 1057 (2d Cir. 1977), cert. denied, 434 U.S. 1035 (1978), a lawyer was held liable for helping clients breach fiduciary duties owed to their partners by asserting claims in bad faith and issuing a false opinion letter. In Weingarten v. Warren, 753 F. Supp. 491 (S.D.N.Y. 1990), a trustee’s lawyer was found liable to the beneficiary for aiding a trustee’s conversion, but the lawyer was not found liable for malpractice.

1.1:440      Knowledge of Client's Breach of a Fiduciary Duty [see also 1.13:520]

See also 1.13:520.

1.1:450      Failing to Prevent Death or Bodily Injury

[The discussion of this topic has not yet been written.]

1.1:500   Defenses and Exceptions to Liability

Primary New York References: DR 2-109, DR 2-110(B)(1) & (C)(1)(a), DR 7-102(A)(1), (2), (4), & (6), DR 7-102, EC 2-30, 7-4, 7-5, 7-6, 7-21, 7-26, § 130.1-1(c) of the Rules of Court, Rule 11 of Federal Rules of Civil Procedure
Background References: ABA Model Rule 1.1, 1.16, 3.1, 4.4, & 8.4(a), Other Jurisdictions
Commentary: ABA/BNA § 301:1001, ALI-LGL §§ 74, 76, 78, Wolfram § 5.6
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canons 2 and 7, et seq.

1.1:510      Advocate's Defamation Privilege

Relevant Cases:

Scope of Privilege: Under New York law, a lawyer is absolutely privileged to publish defamatory matter concerning a non-client in connection with a judicial proceeding. See Caplan v. Winslett, 218 A.D.2d 148, 637 N.Y.S.2d 967 (1st Dep't 1996) This privilege extends to: (1) a lawyer’s distribution of a complaint at a bar-association seminar, see Branca v. Mayesh, 101 A.D.2d 872, 476 N.Y.S.2d 187 (2d Dept.), aff’d, 483 N.Y.S.2d 1011 (1984); (2) a disclaimer letter sent by an insurer’s lawyer to an insured and its adjuster and attorneys (qualified privilege), see Dano v. Royal Globe Insurance Co., 59 N.Y.2d 827, 464 N.Y.S.2d 741 (1983); and (3) a lawyer’s letter to the police to prevent a client’s arrest. See Fusco v. D'Agostino, 158 A.D.2d 513, 551 N.Y.S.2d 276 (2d Dept. 1990). The privilege, however, does not cover unrelated abuse of the person suing the client. See Fusco, supra (privilege abused by including in letter to police "unfavorable remarks [about plaintiff] that were not material or pertinent to the issues involved.").

1.1:520      Wrongful Use of Civil Proceedings; Abuse of Process; False Arrest

Relevant Disciplinary Rules

Several New York Disciplinary Rules proscribe the wrongful use of civil proceedings.

NY DR 7-102(A)(1) prohibits a lawyer from filing a suit, asserting a position, conducting a defense, delaying a trial, or taking other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.

NY DR 7-102(A)(2) prohibits a lawyer from advancing a claim or defense that is unwarranted under existing law, except that the lawyer may advance such a claim or defense if it can be supported by a good faith argument for an extension, modification, or reversal of existing law.

NY DR 2-109 prohibits a lawyer from accepting employment if (s)he knows, or should have known, that the prospective client wants to bring a legal action, conduct a defense, or assert a position in litigation merely to harass or maliciously injure someone.

NY DR 2-110(B)(1) requires a lawyer to withdraw from employment if the lawyer knows or it is obvious that the client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise taking steps, merely for the purpose of harassing or maliciously injuring another person.

Relevant Ethical Considerations

NY EC 2-30 provides that a lawyer should not accept employment if it is obvious that the prospective client wants to institute an action merely for the purpose of harassing or maliciously injuring another.

NY EC 7-5 states that a lawyer can continue to represent a client even if the client insists on pursuing a course contrary to the attorney's advice--as long as (s)he does not thereby knowingly assist the client to engage in illegal conduct or to take a frivolous legal position. See also NY EC 7-4

Relevant Ethics Opinions

Assisting Pro Se Litigants: NYSBA Comm. on Prof. Ethics, Op. No. 613, 1990 WL 304220 (September 24, 1990): Under NY DR 2-109(A)(2), a lawyer cannot draft pleadings for a pro se litigant unless the lawyer has adequately investigated the facts and researched the law and has concluded that the suit can be filed in good faith.

Statute of Limitations: NYSBA Comm. on Prof. Ethics, Op. No. 475, 1977 WL 15703 (October 14, 1977): Under NY DR 2-109(A)(2), a lawyer can file a lawsuit after the statute of limitations has run only if the statutory time period is solely a defense (and therefore waivable) and not an integral element of the plaintiff’s cause of action. Otherwise, the claim is frivolous.

Refusal to File Meritless Action: NYSBA Comm. on Prof. Ethics, Op. No. 472, 1977 WL 15700 (July 14, 1977): Under NY DR 2-109(A)(2), the general counsel of a corporation is not required to file a lawsuit that he believes has no merit. This State Bar opinion reinforces the court’s holding in Bankers Trust Co. v. Hogan, 187 A.D.2d 305, 589 N.Y.S.2d 338 (1st Dept. 1992), where the court declared that a law firm could properly withdraw where the client insisted that the firm pursue legal theories and arguments that the firm believed were directly contrary to law and against the firm’s professional judgment.

General Denials: NYSBA Comm. on Prof. Ethics, Op. No. 469, 1977 WL 15697 (June 7, 1977): Under NY DR 2-109(A)(2), a lawyer cannot properly interpose a general denial if the lawyer knows that the client does not have a valid defense. Such a practice is considered frivolous and is subject to discipline.

Relevant Cases

Frivolous Motion Practice: In Intercontinental Credit Corp. v. Roth, 78 N.Y.2d 306, 574 N.Y.S.2d 528 (1991), the Court of Appeals, citing 22 NYCRR § 130.1.1, awarded sanctions against a lawyer who filed a meritless motion for reargument "primarily to delay enforcement of a judgment in Israel." See also Public Adm’r of the County of New York v. Cohen, 221 A.D.2d 297, 634 N.Y.S.2d 106 (1st Dept. 1995) (sanction imposed against counsel who, having allowed claim to languish for nineteen years, sought mandamus on unfounded claim that judge took over sixty days to issue rulings on three motions).

Rule Violations Found: In In re Wehringer, 135 A.D.2d 279, 525 N.Y.S.2d 604 (1st Dept.), appeal dismissed, 532 N.Y.S.2d 366 (1988) (lawyer in a divorce action was held to have violated NY DR 7-102(A)(1) by using the fact that his client kidnaped his child to gain leverage to force a favorable settlement. The lawyer also helped his client engage in other harassing and malicious tactics.) See also In re Benjamin, 129 A.D.2d 886, 514 N.Y.S.2d 526 (3d Dept. 1987) (court invoked NY DR 7-102(A)(1) where lawyer improperly sought wildly excessive punitive damages in two minor contract actions).

Lawyer's Independent Duty to Assess Merits: See Fontaine v. Ryan, 849 F. Supp. 242 (S.D.N.Y. 1994) (lawyer has obligation to pursue only appropriate actions despite client’s insistence to contrary).

Reasonable Basis for Action Sufficient: See Hadges v. Yonkers Racing Corp., 48 F.3d 1320 (2d Cir. 1995) (despite lawyer’s factual misstatements to court, appellate court concluded that the action was not frivolous because the lawyer reasonably could have concluded that under the circumstances, there was "evidentiary support" for the factual statements in question).

Withdrawal Permitted Based on Doubts about Merits of Action: In Rindner v. Cannon Mills, Inc., 127 Misc.2d 604, 486 N.Y.S.2d 858 (Sup. Ct. Rockland County 1985), trial counsel moved to withdraw after he developed "doubts about the merits of his client’s case." Specifically, after investigating the facts and consulting with an expert, trial counsel concluded that the plaintiff could not establish a prima facie case against the defendants. The trial court granted the motion pursuant to NY DR 2-107(A)(2): "an attorney cannot be compelled to advance a cause which he or she does not believe is legally justified."

Abuse of Process - Relevant Cases

Elements of Claim: Curiano v. Suozzi, 63 N.Y.2d 113, 469 N.E.2d 1324, 480 N.Y.S.2d 466 (N.Y. 1984) ("Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective."); Lieberman v. Pobiner, London, Bashian & Buonamici, 190 A.D.2d 716, 593 N.Y.S.2d 321 (2d Dep't 1993) ("To prevail on the cause of action to recover damages for abuse of process, the plaintiff had to establish that the defendants (1) used regularly-issued process, either civil or criminal, (2) with an intent to do harm without excuse or justification, and (3) used the process in a perverted manner to obtain a collateral objective . . . "); Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994) ("abuse of process claim lies against a defendant who (1) employs regularly issued legal process to compel performance or forbearance of some act, (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process.").

Improper Purpose Paramount: Even where counsel used a legally invalid method of securing a judgment for attorney's fees against the plaintiff in a matrimonial action, plaintiff failed to state a claim for abuse of process: Lieberman v. Pobiner, London, Bashian & Buonamici, 190 A.D.2d 716, 593 N.Y.S.2d 321 (2d Dep't 1993) (holding that "while the manner in which counsel attempted to enforce the award of counsel fees contained in [a] pendente lite order was technically improper, it does not necessarily follow that the action to recover damages for abuse of process has merit . . . plaintiff simply has failed to demonstrate that the defendant has used process for other than its proper purpose.")

Failure to Satisfy Requirements for Abuse of Process Claim: See Greenfield v. Schultz, 673 N.Y.S.2d 684 (1st Dep't, 1998) (dismissing abuse of process claim against attorney where plaintiff failed to adduce any evidence showing that "process was issued by defendants with an ulterior motive to cause harm, completely devoid of social or economic justification"; citing Buccieri v. Franzreb, 201 A.D.2d 356, 358, 607 N.Y.S.2d 330).

Blunderbuss Subpoenas: Where the lawyer subpoenaed eighty-seven teachers to testify on the same day in order to force the board of education to hire substitute teachers, court found that the lawyer engaged in an abuse of process. See Board of Education v. Farmingdale Classroom Teachers Ass’n, Inc., 38 N.Y.2d 397, 380 N.Y.S.2d 635 (1975).

False Arrest - Relevant Disciplinary Rules

Although NY DR 7-105 does not deal directly with the issue of false arrest, it does prohibit a lawyer from presenting, participating in presenting, or threatening to present criminal charges solely to obtain an advantage in a civil matter. See 4.4:220 and 8.4:900, infra.

NY DR 7-103, which prohibits a public prosecutor or other government lawyer from instituting criminal charges without probable cause, is treated in 3.8:200, infra.

False Arrest - Relevant Cases

Elements of Claim: See Murphy v. County of Nassau, 154 Misc.2d 605, 585 N.Y.S.2d 951 (N.Y.Sup., 1992), aff'd in relevant part, 203 A.D.2d 339, 609 N.Y.S.2d 940 (2nd Dept., 1994) ("The elements of a valid claim for false arrest are: (1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged."; citing Broughton v. State of N.Y., 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310.)

Lack of Probable Cause Required: Coffey v. Town of Wheatland, 135 A.D.2d 1125, 523 N.Y.S.2d 267 (4th Dep't, 1987) ("A lack of probable cause is a necessary element of plaintiff's cause of action for false arrest and imprisonment.")

Mere Provision of Information to Police Insufficient: See Schiffren v. Kramer, 225 A.D.2d 757, 640 N.Y.S.2d 175 (2d Dep't, 1996) (attorney was not liable for false arrest of client's ex-husband, based on attorney's response to police inquiries concerning ownership of client's former marital residence, where husband was arrested for criminal trespass).

Valid Warrant Negates False Arrest: See Mills v. Pappas, 174 A.D.2d 780, 570 N.Y.S.2d 726 (3rd Dept., 1991) (dismissing action by former executrix against attorney named successor executor following plaintiff's arrest for contempt of court for failure to submit account to court for her administration of the estate before removal because "plaintiff's arrest was pursuant to a warrant, valid on its face, by a court having jurisdiction and, as such, was privileged"; citing Broughton v. State of New York, 37 N.Y.2d 451, 456-457, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert. denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257; Saunsen v. State of New York, 81 A.D.2d 252, 253, 440 N.Y.S.2d 281).

Liability for False Arrest Based on Attorneys's "Malicious" Advice: See Bervy v. Hotaling, 88 A.D.2d 735, 451 N.Y.S.2d 863 (3rd Dept., 1982) (holding that plaintiff-owners stated claim of false arrest against attorney based on attorney's allegedly malicious, deliberate and wilful advice to tenants to cause complaints and warrants to be issued against owners for harassment and criminal contempt in order to disgrace and harass them, and acknowledging that "[a]n attorney, under proper circumstances, may be personally liable to a third party for his wrongful acts or improper exercise of authority where he is guilty of fraud or collusion or of a malicious or tortious act.") (citing Gifford v. Harley, 62 A.D.2d 5, 7, 404 N.Y.S.2d 405; Hahn v. Wylie, 54 A.D.2d 629, 387 N.Y.S.2d 855)

1.1:530      Assisting Client to Break a Contract

Relevant Cases

Advisors to a contracting party are generally protected against liability for interfering with contracts or with prospective contractual relations or business relations. See Beatie v. DeLong, 164 A.D.2d 104, 561 N.Y.S.2d 448 (1st Dept. 1990) (lawyer’s negligent advice that client’s contingent fee contract with another lawyer was unenforceable was held to be not actionable by other lawyer).

1.1:600   Vicarious Liability [see 5.1:500]

Primary New York References:
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 79, Wolfram § 5.6

See 5.1:500, infra.