skip navigation
search

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.2   Rule 1.2 Scope of Representation

1.2:100   Comparative Analysis of New York Rule

Primary New York References: DR 2-110(C), 7-101, 7-102(A)(6), (7), (8), DR 7-106 & 9-101(C), EC 7-5, 7-7, 7-8, 7-17 & 9-4
Background References: ABA Model Rule 1.2, 1.4, 1.16 & 4.4, Other Jurisdictions
Commentary:
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canons 2, 7 and 9, et seq.

1.2:101      Model Rule Comparison

ABA Rule 1.2(a)

The New York Code has no direct counterpart to ABA Rule 1.2(a). However, NY DR 7-101(A) and NY EC 7-7 and 7-8 bear on the relative decision-making authority of the lawyer and client in the course of a lawyer's representation of the client.

NY DR 7-101(A)(1) is comparable to ABA Rule 1.2(a). It bars a lawyer from intentionally failing to seek the lawful objectives of the client through reasonably available means. The lawyer can, without violating this Rule, accede to opposing counsel’s reasonable requests, as long as they do not harm the client’s rights; be prompt in completing all professional commitments; avoid offensive tactics; and treat with courtesy all people involved in the legal process. This subsection is further qualified by subsection (B), which allows a lawyer to waive a client’s right in the exercise of his or her professional judgment and also allows a lawyer to refuse to help a client engage in conduct that the lawyer believes is unlawful.

NY EC 7-7 is comparable to the second and third sentences in ABA Rule 1.2(a). NY EC 7-7 acknowledges that the client has sole authority to determine whether to accept a settlement offer in a civil case or a plea bargain in a criminal case.

Unlike ABA Rule 1.2(a), NY EC 7-7 further states that the client has the sole authority to waive the right to plead an affirmative defense. Additionally, NY EC 7-7 obligates the defense lawyer in a criminal case to fully advise his or her client on whether a particular plea to a charge appears to be desirable and as to the prospects of success on appeal. Furthermore, NY EC 7-7 notes that a criminal defendant has the authority to decide whether an appeal should be taken.

NY EC 7-8 requires a lawyer to exert his or her best efforts to insure that the client’s decisions are made after the client has been informed of relevant considerations. NY EC 7-8 emphasizes, however, that the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately the client's to make.

NY DR 7-101(A)(3) bars a lawyer from intentionally prejudicing or damaging the client during the course of the employment, except as required under NY DR 7-102(B), the rule dealing with a lawyer’s obligation if (s)he receives information that the client or third person perpetrated a fraud upon a tribunal.

ABA Rule 1.2(b)

The New York Code contains no direct counterpart to this subsection. EC 7-17, however, provides that a lawyer’s duty of loyalty to a client applies only to the performance of professional duties and creates no obligation to adopt a personal viewpoint favorable to the interests or desires of the client. Indeed, NY EC 7-17 permits a lawyer to take positions on public issues and espouse legal reforms favored by the lawyer without regard to the personal views of the client.

ABA Rule 1.2(c)

NY DR 7-101(B)(1), which allows a lawyer to, where permissible, exercise professional judgment to waive or fail to assert a right or position of the client, is comparable to ABA Rule 1.2(c). ABA Rule 1.2(c), however, requires client consent before a lawyer can limit the scope of representation. NY DR 7-101(B)(1), which does not explicitly require such consent, should be read in concert with NY EC 7-8 (requiring a lawyer to use best efforts to ensure that decisions of the client are made on an informed basis) and NY EC 7-9 (in exercising lawyer's professional judgement, lawyer should always act in manner consistent with client's best interests).

ABA Rule 1.2(d)

Several New York Disciplinary Rules express the proscription contained in ABA Rule 1.2(d) against assisting a client in committing unlawful conduct. NY DR 7-102(A)(6) prohibits a lawyer from participating in the creation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false.

NY DR 7-102(A)(7) bars a lawyer from assisting the client in conduct that the lawyer knows to be illegal or fraudulent.

NY DR 7-102(A)(8) is a general prohibition which bars a lawyer from engaging in other illegal conduct or conduct that vio lates any Disciplinary Rule.

NY DR 7-101(B)(2) allows a lawyer to refuse to aid or participate in conduct that the lawyer believes to be unlawful, even though there is some support for an argument that the conduct is legal.

NY DR 2-110(C)(1)(b) allows the lawyer to withdraw if the client persists in conduct involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.

NY DR 2-110(C)(1)(g) allows the lawyer to withdraw from representation if the client has used the lawyer’s services to perpetrate a crime or fraud.

NY EC 7-5 states that 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."

ABA Rule 1.2(e)

The New York Code does not contain a direct counterpart to ABA Rule 1.2(e). Addressing two instances where a client may expect assistance not permitted by the Rules or by law, NY DR 2-110(C)(1)(c) allows a lawyer to withdraw from employment if the client insists that the lawyer do something which is illegal or in violation of the Disciplinary Rules, and NY DR 9-101(C) prohibits a lawyer from stating or implying that (s)he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.

1.2:102      Model Code Comparison

The comparable provisions of the Model Code are substantially identical to the provisions of the New York Code, discussed above.

1.2:200   Creating the Client-Lawyer Relationship

Primary New York References: DR 2-110(C), 7-101, 7-102(A)(6), (7), (8), DR 7-106 & 9-101(C), EC 7-5, 7-7, 7-8, 7-17 & 9-4
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary: ABA/BNA § 31:101, ALI-LGL §§ 26-29A, Wolfram § 9.2

1.2:210      Formation of Client-Lawyer Relationship

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

1.2:220      Lawyer's Duties to Prospective Client

Also see the discussion on Rule 1.6, the Rule on Confidentiality, at 1.6 et seq.

Relevant Ethical Considerations

NY EC 4-1 recognizes that both the fiduciary relationship between a lawyer and a client and the proper functioning of the legal system require that the lawyer preserve the confidences and secrets of both clients and prospective clients. A client must feel free to discuss anything with his or her lawyer, and a lawyer must be equally free to obtain information beyond that volunteered by the client. A lawyer needs to be fully informed of all the facts pertaining to a matter in order for the client to obtain the full advantage of the legal system.

Relevant Cases

Creation of Confidential Relationship: The receipt of information from a prospective client can create a confidential relationship, thereby disqualifying the lawyer from later accepting an adverse representation, even though the lawyer does not accept the representation of the prospective client. See, e.g., Rosman v. Shapiro, 653 F. Supp. 1441 (S.D.N.Y. 1987).

Disqualification Required: In Desbiens v. Ford Motor Co., 81 A.D.2d 707, 439 N.Y.S.2d 452 (3d Dept. 1981), the court found a confidential relationship where the law firm reviewed plaintiff’s file in an automobile accident and decided not to represent him. The court held that the firm’s access to plaintiff’s information barred the firm from handling the defense of a products liability claim arising out of the same facts.

No Disqualification Necessary: In Bennett Silvershein Assoc. v. Furman, 776 F. Supp. 800 (S.D.N.Y. 1991), the court concluded that disqualification was not warranted because the prospective client only had a brief consultation with the lawyer ten years earlier about a tenuously related matter.

1.2:230      When Representation Must Be Declined [see 1.16:200-230]

Cross References

See 1.16:200-230.

Relevant Disciplinary Rules

The New York Code of Professional Responsibility identifies several instances in which representation must be declined:

Following Unsolicited Advice to Obtain Counsel: NY DR 2-104 states that a "lawyer who has given unsolicited advice to an individual to obtain counsel or take legal action shall not accept employment resulting from that advice, in violation of any statute or court rule."

Avoidance of Illegal or Improper Actions: NY DR 2-109(A) requires a lawyer to decline employment if the lawyer knows or it is obvious that the client wishes to (1) bring a legal action, conduct a defense, assert a position in the litigation, or otherwise have steps taken merely for the purpose of harassing or maliciously injuring another person, or (2) present a claim or defense in the litigation that is not warranted under existing law or a good faith argument for the extension, modification or reversal of existing law.

Avoidance of Conflicts of Interest: NY DR 5-101 requires a lawyer to decline employment if by his "professional judgment on behalf of the client will be or reasonably may be affected by the lawyer's own financial business, property or personal interests." See 1.7, et seq., infra. NY DR 5-105(A) requires a lawyer to decline employment if the lawyer’s independent professional judgment will be or is likely to be adversely affected, or if the employment will likely involve the lawyer in representing differing interests, except to the extent permitted under NY DR 5-105(C), i.e., the client consents after full disclosure. See 1.7, et seq., infra.

Lawyer as Potential Witness: NY DR 5-101(B) requires a lawyer to decline employment which contemplates the lawyer's acting as an advocate before any tribunal if the lawyer knows or it is obvious that the lawyer ought to be called as a witness on behalf of the client, "except on uncontested issues or matters of formality." NY DR 5-101(C) bars the entire law firm from serving as counsel where any lawyer in the firm may be called as a witness adverse to the client. See 3.7:300 infra.

Relevant Ethical Considerations

NY EC 2-26 provides: "A lawyer is under no obligation to act as advisor or advocate for every person who may wish to become a client; but in furtherance of the objective of the bar to make legal services fully available, a lawyer should not lightly decline proffered employment. The fulfillment of this objective requires acceptance by a lawyer of a fair share of tendered employment which may be unattractive both to the lawyer and the bar generally."

NY EC 2-30 cautions that: "Employment should not be accepted by a lawyer who is unable to render competent service or who knows or it is obvious that the person seeking to employ the lawyer desires to institute or maintain an action merely for the purpose of harassing or maliciously injuring another. Likewise, a lawyer should decline employment if the intensity of personal feelings, as distinguished from a community attitude, may impair effective representation of a prospective client. If a lawyer knows that a client has previously obtained counsel, the lawyer should not accept employment in the matter unless the other counsel approves or withdraws, or the client terminates the prior employment."

NY EC 5-1 provides that a lawyer’s professional judgment should only be exercised on behalf of the client, free of compromising interests and loyalties.

NY EC 5-2 provides "A lawyer should not accept proffered employment if the lawyer's personal interests or desires will, or there is reasonable probability that they will, affect adversely the advice to be given or services to be rendered to the prospective client. After accepting employment, a lawyer carefully should refrain from acquiring a property right or assuming a position that would tend to make his or her judgment less protective of the interests of the client."

NY EC 5-3 provides, in pertinent part: "The self-interest of a lawyer resulting from ownership of property in which the client also has an interest or which may affect property of the client may interfere with the exercise of free judgment on behalf of the client. If such interference would occur with respect to a prospective client, a lawyer should decline proffered employment."

NY EC 5-14 notes that maintaining independent professional judgment precludes a lawyer from accepting or continuing employment that will adversely affect the lawyer’s judgment on behalf of the client.

NY EC 5-15 points out that if a lawyer is asked to represent multiple clients having potentially differing interests, the lawyer must consider carefully the possibility that the law yer’s judgment can be impaired. A lawyer should never represent clients with differing interests in the same litigation. If a lawyer accepts employment by several clients in the same litigation, and it is later discovered that their interests are differing, the lawyer would have to withdraw, to the clients’ detriment. NY EC 5-15 notes that in non-litigation matters, it is possible for a lawyer to properly represent several clients having potentially differing interests.

NY EC 5-17 states that the question of whether a conflict of interest exists must be determined on a case-by-case basis.

Relevant Ethics Opinions

Representation of Private Clients by Town's Special Counsel: NYSBA Comm. on Prof. Ethics, Formal Op. No. 630, 1992 WL 465632 (March 23, 1992) notes that unless there are "differing interests" as defined under the Code, NY DR 5-105 (A) does not prohibit a town’s "special counsel" from representing private clients before the town’s planning board and zoning board of appeals.

Government Entity's Consent to Conflicts Now Permitted: NYSBA Comm. on Prof. Ethics, Formal Op. No. 629, 1992 WL 465631 (March 23, 1992) recognized that the State Bar Association in the past opined that a governmental entity could not consent to a conflict under NY DR 5-105 (A) or (B) because the public interest was involved. In this opinion, having considered the so-called "government cannot consent" rule in depth, "we have concluded that a per se ban is unjustified and should no longer be imposed in this State." In conjunction with other rules, the conditions imposed by NY DR 5-105(C) adequately protect the public interest.

Relevant Cases

Disqualification for Conflict of Interest: Stratagem Development Corp. v. Heron International N.V., 756 F. Supp. 789 (S.D.N.Y. 1991) (pursuant to NY DR 5-105 (A), granting motion to disqualify counsel from representing new client in litigation against former client's subsidiary where former client refused to consent to conflict).

1.2:240      Client-Lawyer Agreements

Relevant Cases

Strict Scrutiny of Agreements after Termination of Representation: See, e.g., Mar Oil, S.A. v. Morrissey, 982 F.2d 830 (2d Cir. 1993) (holding that no valid agreement was made after representation ended because the client did not understand the import of the language). See also Epstein Reiss & Goodman v. Greenfield, 102 A.D.2d 749, 476 N.Y.S.2d 885 (1st Dept. 1984) (declining to find valid agreement made after representation ended even though the client failed to object to the bill, where there was no explanation of the services performed and some of the services were arguably unauthorized). Compare Kramer, Levin, Nessen, Kamin & Frankel v. Aranoff, 638 F. Supp. 714 (S.D.N.Y. 1986) (finding a sophisticated business client who made partial payment on the attorneys’ bills bound by an agreement made after representation ended when there was no claim of fraud, mistake or overreaching.)

Construction of Agreements: Ambiguities in agreements between a client and a lawyer are usually read in the client’s favor. See Shaw v. Manufacturers Hanover Trust Co., 68 N.Y.2d 172, 507 N.Y.S.2d 610 (1986) (construing contingent fee retainer agreement against attorney and in favor of client as concluding "upon an adverse judgment following trial and that, even if th[e] agreement persisted through appeal ... requir[ing] the attorney to continue advancing the client's litigation expenses.")

1.2:250      Lawyer's Duties to Client in General

The New York Code and the ABA Model Code set out several duties owed by a lawyer to clients. They are discussed at different sections in this outline.

Competence: NY DR 6-101/ABA Rule 1.1
Diligence: NY DR 6-101(A)(3), 7-101(A)(1), (A)(3)/ABA Rules 1.3, & 3.2
Zealousness: NY DR 7-101, et seq./ABA Rule 3.1 et seq.
Refrain from Damage: NY DR 7-101(A)
Independent Professional Judgment: NY DR 5-101, -104, -105, & -107/ABA Rule 5.4
Promptness: ABA Rule 1.3

1.2:260      Client's Duties to Lawyer

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

1.2:270      Termination of Lawyer's Authority

Relevant Cases

Deceased or Defunct Client: Lawyers are prevented from acting on behalf of a client on his or her death. For example, a lawyer cannot file a stipulation on behalf of a dead client. See, e.g., Bossert v. Ford Motor Co., 140 A.D.2d 480, 528 N.Y.S.2d 592 (2d Dept. 1988). An analogous rule applies to the termination of a lawyer’s authority on behalf of a dissolved corporation or partnership. See Sinnott v. Hanan, 156 A.D.2d 323, 141 N.Y.S. 505 (2d Dept. 1913).

Death of Lawyer: Not only will the death of a client terminate a lawyer’s authority, the lawyer’s death will also work the same result. See CPLR § 321(c), which provides that there can be no further proceedings without leave of court if the lawyer dies, is incapacitated, or is removed or suspended.

1.2:300   Authority to Make Decisions or Act for Client

Primary New York References: EC 7-8, EC 7-12
Background References: ABA Model Rule 1.2(a), Other Jurisdictions
Commentary: ABA/BNA § 31.301, ALI-LGL §§ 32-34, 37-41, Wolfram §§ 4.4, 4.6

1.2:310      Allocating Authority to Decide Between Client and Lawyer

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

1.2:320      Authority Reserved to Client

Relevant Ethical Considerations

NY EC 7-8 requires a lawyer to ensure that the client’s decisions are made only after the client has been informed of relevant considerations. The lawyer should initiate a discussion on this point if the client does not do so. The discussion should include non-legal considerations as well as the extent they bear on the client’s decisions. If the client insists on pursuing a course of action in a non-adjudicatory matter that is allowed by the Disciplinary Rules but contrary to the lawyer’s advice and judgment, the lawyer may withdraw from the representation.

Relevant Cases

Client’s Right to Decide on Criminal Plea: Miller v. Angliker, 848 F.2d 1312 (2d Cir.), cert. denied, 488 U.S. 890 (1988) (defendant has the right to decide whether to plead guilty, not guilty, or not guilty by reason of insanity).

Settlement Decisions in Civil Cases: Fennell v. TLB Kent Co., 865 F.2d 498 (2d Cir. 1989) (settlement agreement made by counsel in telephone conference outside of parties’ presence held not to be binding on parties); compare, County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295 (2d Cir. 1990) (allowing lawyer to settle a class action suit with court’s approval), aff'd, 106 F.3d 1112 (1997).

Right to Decide Whether to Appeal: In re Sherburne, 129 Misc.2d 56, 492 N.Y.S.2d 349 (Surr. Ct. Queens County 1985). (although attorney retained to represent client has implied authority to perform acts he deems necessary to advance his client's interest, implied authority is not unlimited and, without more, does not permit attorney to appeal adverse decision against client).

1.2:330      Authority Reserved to Lawyer

Relevant Cases

Authority over Procedural and Tactical Issues: In Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308, rev’g, 665 F.2d 427 (2d Cir. 1981) (observing that the lawyer is the master of procedural and tactical aspects of both civil and criminal litigation matters.)

1.2:340      Lawyer's Authority to Act for Client

Relevant Ethical Considerations

NY EC 7-12 provides that if a client is rendered incapable because of a mental or physical condition, and the client has no legal representative, the lawyer may be compelled in court proceedings to make decisions on behalf of the client. The lawyer must, under these circumstances, safeguard and advance the interests of the client. A lawyer cannot, however, per form any act or make any decision which the law requires the client to perform or make, either acting alone, or if legally incompetent, by a duly appointed representative.

Relevant Cases

Pursuant to Agreement: Avendanio v. Marcantonio, 75 A.D.2d 796, 427 N.Y.S.2d 512 (2d Dept. 1980) (court held that the contract providing for notice of cancellation to the seller’s lawyer implicitly authorized the lawyer to extend the cancel lation time).

No Authority to Settle: See Fennell v. TLB Kent Co., 865 F.2d 498 (2d Cir. 1989) (holding that settlement agreement reached by lawyers in the parties’ absence was invalid).

No Authority to Waive Rent: See Gordon v. Town of Esopus, 107 A.D.2d 114, 486 N.Y.S.2d 420 (3d Dept. 1985) (holding that lawyer was not authorized to waive client's right to receive rent), appeal denied, 494 N.Y.S.2d (1985).

Pursuant to Court Order: A court rule or order may grant attorneys the apparent authority to settle cases. For example, courts may require a lawyer to appear at a conference with the authority to settle the case. See Hallock v. State, 64 N.Y.2d 224, 485 N.Y.S.2d 510 (1984) (declaring settlement binding when one of the co-parties was at the conference and the other co-party did not object to the settlement agreement until two months later).

1.2:350      Lawyer's Knowledge Attributed to Client

Relevant Cases

Attribution Permitted: Veal v. Geraci, 23 F.3d 722 (2d Cir. 1994) (holding that the lawyer’s knowledge was attributed to the client to determine when the statute of limitations began to run); Farr v. Newman, 14 N.Y.2d 183, 250 N.Y.S.2d 272 (1964) (concluding that the client was bound by the lawyer’s knowledge of a contract to sell to another buyer); People v. Smith, 54 N.Y.2d 259, 445 N.Y.S.2d 103 (1981) (attributing lawyer's knowledge of court’s notification of parole revocation to the client).

No Attribution where Disclosure Violates Duty to Other Client: Arlinghaus v. Ritenour, 622 F.2d 629 (2d Cir.), cert. denied, 449 U.S. 1013 (1980) (a lawyer’s knowledge is not attributed to the client when communicating it would violate the lawyer’s obligations to another client) (Friendly, J.).

1.2:360      Lawyer's Act or Advice as Mitigating or Avoiding Client Responsibility

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

1.2:370      Appearance Before a Tribunal

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

1.2:380      Authority of Government Lawyer

See ABA Model Rule 3.8, which corresponds to NY DR 7-103, both concerning special responsibilities of a prosecutor, at 3.8, infra.

1.2:400   Lawyer's Moral Autonomy

Primary New York References: DR 2-110(C)(1)(e), EC 7-8 & 7-17
Background References: ABA Model Rule 1.2(b), Other Jurisdictions
Commentary: Wolfram § 10.4
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canons 2 and 7, et seq.

Relevant Disciplinary Rules

NY DR 2-110(C)(1)(e) allows a lawyer to withdraw if the client insists, in a matter not pending before a tribunal, that the lawyer engage in conduct which is contrary to the lawyer’s judgment and advice, but not prohibited under the Disciplinary Rules. This Rule covers non-litigation matters and litigation matters where suit has not yet been filed.

Relevant Ethical Considerations

NY EC 7-17 also provides that a lawyer’s duty of loyalty to a client applies only to the performance of professional duties. It implies no obligation to adopt a personal viewpoint favor able to the interests or desires of the client. In addition, the lawyer can take positions on public issues and espouse legal reforms favored by the lawyer without regard to the personal views of the client. This NY EC is broader than ABA Rule 1.2(b) because the ABA Rule only goes one way—the lawyer does not have to adopt the client’s viewpoint. NY EC 7-17 expressly allows a lawyer to embrace views publicly without having to be concerned about the client’s views.

NY EC 2-30 provides: . . . [A] lawyer should decline employment if the intensity of personal feelings, as distinguished from a community attitude, may impair effective representation of a prospective client.

NY EC 7-8 provides: . . . Advice of a lawyer to a client need not be confined to purely legal considerations . . . In assisting the client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lend to a decision that is morally just as well as legally permissible.

NY EC 7-8 also notes that if a client in a non-adjudicatory matter insists on pursuing a course of conduct that is contrary to the lawyer’s judgment and advice, but not prohibited by the Disciplinary Rules, the lawyer can withdraw from the employment.

1.2:500   Limiting the Scope of Representation

Primary New York References: DR 7-101(A)(2)
Background References: ABA Model Rule 1.2(c), Other Jurisdictions
Commentary: ABA/BNA § 31:301, ALI-LGL § 30, Wolfram § 5.6.7
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Ethics Opinions

No Inherent Obligation to Prosecute Appeal: Under NY DR 7-101(A)(2), when an attorney’s retainer agreement does not expressly obligate the attorney to prosecute an appeal, the attorney has no ethical obligation to file a notice of appeal. The attorney may fulfill her ethical duty to safeguard the client’s interests by "fully advising the client, sufficiently in advance to allow the client to act, of the client’s options, of the deadlines which must be met, of the consequences of missing a deadline, and of any other pertinent information, so that the client has sufficient opportunity to make an informed decision as to how to proceed." (emphasis in original).

1.2:510      Waiver of Client or Lawyer Duties (Limited Representation)

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

1.2:600   Prohibited Assistance

Primary New York References: DR 7-102(A)(6), (7) & (8), DR 7-106, EC 7-1, 7-2, 7-5 & 7-22
Background References: ABA Model Rule 1.2(d) & 3.4(d), Other Jurisdictions
Commentary: ABA/BNA § 31:301, ALI-LGL § 151, Wolfram § 13.3
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

See NY DR 7-102(A)(1) – (8), NY DR 7-106.

Relevant Ethical Considerations

See EC 7-1, 7-2, 7-5, 7-22, and ABA Model Rule 3.4(d).

Relevant Cases

Exploiting Client's Illegal Acts: Lawyers cannot assist their client in the performance of illegal acts, nor can they capitalize on such acts to gain an advantage. In re Wehringer, 135 A.D.2d 279, 525 N.Y.S.2d 604 (1st Dept.), appeal dismissed, 488 U.S.988 (1988), the client kidnaped his child to gain settlement leverage in a divorce action. The lawyer violated NY DR 7-102(A)(1) by attempting to force a favorable settlement on that basis, and by helping his client engage in other harassing and malicious tactics.

1.2:610      Counseling Illegal Conduct

Relevant Disciplinary Rules

NY DR 7-102(A)(7) prohibits a lawyer from counseling or assisting a client in conduct the lawyer knows to be illegal or fraudulent. See also DR 7-102(A)(6)(participation in the creation of false evidence) and DR 7-106 (advising client to disregard standing rule or ruling of a tribunal). See also Section 1.2:620

Relevant Ethics Opinions

Participation in 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), notes that under NY 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 for a contingent fee because § 84(1) of the General Business Law makes it unlawful for private investigators to accept compensation on a contingent basis.

Withdrawal Where Client Insists on Illegal Conduct: Assoc. of the Bar of the City of New York, Formal Op. No. 1994-8, 1994 WL 780799 (July 27, 1994) endorsed the lawyer's withdrawal where, without the lawyer’s knowledge, the 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 NY DR 7-102(A)(7) which bars a lawyer from counseling or assisting the client in conduct the lawyer knows to be illegal or fraudulent.

Relevant Cases

Perjury: People v. Appel, 120 A.D.2d 319, 509 N.Y.S.2d 438 (3d Dept. 1986) (rejecting claim by criminal defendant who argued that his criminal conviction should be overturned because of the ineffective assistance of counsel, finding that his lawyer had an ethical duty not to help the client present perjured testimony at his trial).

Conscious Disregard of Illegality: See United States v. Sarantos, 455 F.2d 877 (2d Cir. 1972) (observing that a lawyer is liable for assisting in illegal conduct if the prosecution can prove that (1) there was subjective awareness of a high probability of the existence of illegal conduct; and (2) the lawyer engaged in a purposeful contrivance in order to avoid learning of the client’s illegal conduct. See also United States v. Benjamin, 328 F.2d 854 (2d Cir.) (opining that the lawyer could not consciously disregard readily available information which demonstrated the illegal nature of the client’s transaction), cert. denied, 377 U.S. 953 (1964).

1.2:620      Assisting Client Fraud

Cross References

See also 1.2:610.

Relevant Ethics Opinions

Settlement Procured by Client's 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 determined that the infant was not competent, and the deposition was not taken. The case subsequently settled, but the infant’s attorney could not get a physician’s affidavit which was needed in order to obtain court approval of the settlement. The attorney then learned 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. Under NY DR 7-102(A)(7), the attorney cannot help the client in conduct that the lawyer knows is illegal or fraudulent and, therefore, cannot seek court approval for a settlement that the lawyer knows has been obtained by fraud. If the client refuses to rectify the fraud, then the attorney must withdraw.

Client Interviewing Techniques: Nassau County Bar Op. No. 94-6 (1994) examines a "gray area", i.e., whether and to what extent a lawyer can instruct the client about the relevant law before the client relates the facts of the case to the lawyer. In this case, a potential client consulted an attorney about an intersection collision. As the client began telling his story, the attorney cut him off and explained what the client had to show in order to have a valid case. The attorney then proceeded to explain the law to the client. Whether the attorney acted properly depends in part on his and the client’s motive. Under NY DR 7-102(A)(6), an attorney cannot participate in the creation of false evidence. On the other hand, EC 7-6 explains that a lawyer should resolve all doubts in the client’s favor and explain to a client the applicable rules of evidence and facts required to prove a case. The Bar Association reasoned that as long as the attorney acts in good faith and does not believe that he is participating in the creation of false evidence, the attorney can resolve reason able doubts in the client’s favor and can explain the law before hearing the facts.

Relevant Cases

Suspension Imposed: In re Siegel, 99 A.D.2d 87, 471 N.Y.S.2d 591 (1st Dept. 1984) (suspending corporate counsel for engaging in a fraudulent scheme with the corporation’s president and chairman of the board involving unrecorded cash sales of corporate merchandise).

1.2:630      Counseling About Indeterminate or Uncertain Law

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

1.2:700   Warning Client of Limitations on Representation

Primary New York References: DR 2-110(C)(1)(c), DR 9-101(C)
Background References: ABA Model Rule 1.2(e), Other Jurisdictions
Commentary: ABA/BNA § 31:301, ALI-LGL § 165
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canons 2 and 9, et seq.

Relevant Disciplinary Rules

Unlike ABA Model Rule 1.2(e), the New York Code has no specific provision affirmatively requiring a lawyer to warn a client of the limitations on the lawyer's representation. However, NY DR 9-101(c), for example, prohibits a lawyer from stating or implying that the lawyer is able to improperly influence any tribunal legislative body or public official and NY DR 2-110(C)(1)(c) permits a lawyer to withdraw where the client insists that the lawyer pursue a course of conduct which is illegal or prohibited by the Rules.

1.2:800   Identifying to Whom a Lawyer Owes Duties

Primary New York References: DR 5-107(A), EC 5-18, 5-22, 5-23
Background References: ABA Model Rule 1.2, 1.7, 1.8(f), & 1.13(a), (d), (e), Other Jurisdictions
Commentary: ABA/BNA § 31:101, ALI-LGL §§ 72, 73, 155, 156A, Wolfram § 7.2

1.2:810      Prospective Clients [see 1.2:220]

See 1.2:200.

1.2:820      Persons Paying for Representation of Another [see 1.7:400]

Cross References

See 1.7:400. See also 5.4:400 (Third Party Interference with a Lawyer's Professional Judgment).

Relevant Disciplinary Rules

NY DR 5-107(A)(1) allows a lawyer to be paid by a third party for representing a client only if the client consents after full disclosure. NY DR 5-107 is designed to avoid any outside influence on the attorney-client relationship.

NY DR 5-107(A)(2) allows a lawyer to only accept from a third person something of value related to the lawyer’s representation of the client if the client agrees after full disclosure. This rule is similar to the one stated in subsection (A)(1) but this subsection covers non-monetary payments to the lawyer by third parties.

NY DR 5-107(B) precludes a lawyer from allowing a third party who recommends, employs, or pays the lawyer to give legal services to another from directing or regulating the lawyer’s professional judgment in rendering such legal services to the client.

Relevant Ethical Considerations

NY EC 2-21 precludes a lawyer from accepting compensation or anything of value from a third party without the client’s knowledge and consent after full disclosure.

NY EC 5-1 requires a lawyer to exercise his or her professional judgment solely for the client’s benefit, free of compromising influences and loyalties. A third party’s interests may not impair a lawyer’s duty of loyalty to the client.

NY EC 5-22 notes that a third party’s economic, political, or social pressures are less likely to impinge upon a lawyer’s independent professional judgment if the lawyer is compensated directly by the client. If a third party compensates the lawyer, the lawyer might feel some responsibility to someone other than the client.

NY EC 5-23 likewise notes that a third party who pays a lawyer for someone else’s representation has the potential power to exert strong pressure against the lawyer’s professional judgment. NY EC 5-23 cautions a lawyer paid by a third party to be on constant guard that his or her professional judgment not be impinged.

Relevant Ethics Opinions

Approval of Payment by Defendants' Sister in Criminal Case: Nassau County Bar Op. No. 94-7 (1994) (defendant's sister allowed to pay for defendant's legal fees in criminal matter as long as the attorney abided by NY DR 5-107(A), which re quired the client’s informed consent to the agreement, and NY DR 5-107(B), which prohibited the lawyer from allowing the sister to control the attorney’s professional judgment in rendering legal services to the defendant.)

Representation of, and Payment by, Transferor or Transferee and Title Insurance Company: NYSBA Comm. on Prof. Ethics, Op. No. 576, 1986 WL 68785 (June 5, 1986): Under NY DR 5-107, an attorney for the buyer, seller, or the mortgagee in a real estate transaction can also serve as an agent for the title insurance company that issues the policy for the subject transaction, and can receive part of the title insurance premium as compensation for her services as the Agent if the following conditions are met: (1) the conduct does not violate any law; (2) the attorney does not have a conflict of interest; (3) all parties consent after full disclosure; (4) the lawyer reduces the legal fee charged by the amount she receives from the title insurance company unless the clients expressly consent to a full fee; and (5) the legal fee is not excessive. See also Moll v. U.S. Life Title Ins. Co., 654 F. Supp. 1012 (S.D.N.Y. 1987) (court declared that without client consent a lawyer is prohibited from accepting money or any thing of value from a title insurance company hired to perform services on behalf of a client).

Relevant Cases

Improper Third Party Payor Fee Arrangement: In Lincoln Plaza Assocs. v. Various Tenants, 134 Misc.2d 791, 512 N.Y.S.2d 330 (Civ. Ct. N.Y. County 1987), aff'd as modified, 539 N.Y.S.2d 612 (Sup. Ct. N.Y. County 1989), a tenants’ association retained an attorney to protect its rights during the conversion of a rental building to a cooperative or condominium. The fee agreement stated that if the tenants’ association approved the plan, the sponsor of the conversion plan would pay the attorney a substantial fee. If, however, the association rejected the plan, the association would have to pay the attorneys’ fee itself, and the fee would be much smaller. The court held that this fee arrangement violated NY DR 5-107(A) because the tenants' and the plan’s sponsor were adversaries. Therefore, the sponsor could not pay the association’s legal fees.

Criminal Matters: In the criminal context, the courts have recognized that the need to maintain the integrity of the criminal justice system can outweigh the client’s consent to payment by third parties. See United States v. Locascio, 6 F.3d 924 (2d Cir. 1993), cert. denied, 511 U.S. 1070, 114 S. Ct. 1645 (1994) (disqualifying a criminal defense lawyer who represented an alleged member of an organized crime family because he was answerable to a co-defendant, the alleged ring-leader of the crime, who chose the lawyer for the first defendant and might have been paying the first defendant’s legal fees). Cf. In re Grand Jury Subpoena, 759 F.2d 968, 977, 984 n.9 (2d Cir. 1985) (Timbers, J., dissenting) ("[a]ccepting payment of clients’ fees from a third party may subject an attorney to undesirable outside influence, particularly where the attorney is representing clients in criminal matters and the third party is the head of a criminal enterprise"), judgment vacated, 781 F.2d 238 (2d Cir.), cert. denied, 475 U.S. 1108 (1986).

1.2:830      Representing an Entity [see also 1.13:200]

Cross References

See 1.13:200.

Relevant Ethics Opinions

Representation of Parent and Subsidiary Corporations: N.Y. County Lawyers' Assoc., Comm. on Prof. Ethics, Op. 684, 1991 WL 755940 (June 1991): Representation of a parent company does not automatically constitute representation of the subsidiary. The parent company and the subsidiary are considered legally distinct entities.

Participation in Corporate Compliance Program: NYSBA Comm. on Prof. Ethics, Formal Op. No. 650, 1993 WL 560291 (June 30, 1993): A corporate lawyer can participate in a corporation’s "compliance with law" program, which required all employees to report unlawful and unethical conduct by employees to the corporate legal department. The lawyer had to explain, how ever, that he represented the corporation, not the employees, and he had to ensure that the employee had no expectation of confidentiality or protection from liability. This relates to the general rule that the lawyer is the corporation’s legal representative and not that of the constituents.

Representation of General Partner and Partnership: Assoc. of the Bar of the City of New York, Op. No. 1994-10, 1994 WL 780797 (October 21, 1994): A limited partnership lawyer who also represents the sole general partner in his individual capacity must disclose to limited partners the general partner’s improper activities so the entity can protect its interests. In this opinion, the Association goes as far as to proclaim that when the general partner engages in conduct that could harm the entity, the lawyer might be required to with draw from representing the partnership, the general partner, and the individual limited partner if his independent professional judgment is likely to be impaired by the differing interests.

Relevant Ethical Considerations

NY EC 5-18 states that a lawyer employed by a corporation or similar entity owes allegiance to the entity and not to any of the organization’s constituents. If the lawyer learns that a constituent is going to act in a matter related to the representation that is a violation of law that can be imputed to the entity, or that is a violation of a legal obligation to the entity and is likely to result in substantial injury to the entity, the lawyer should proceed as is reasonably necessary in the best interests of the entity. The lawyer’s actions in such an instance should be designed to minimize disruption of the entity and the risk of revealing the entity’s confidences and secrets. Proposed courses of action include asking the constituent to reconsider the conduct and referring the matter to a higher authority within the organization. The Ethical Consideration recognizes that at times the lawyer might be asked to represent a constituent in his or her individual capacity. NY EC 5-18 allows the lawyer to represent the individual only if the lawyer is convinced that differing interests are not present.

NY EC 5-24 advises a lawyer employed by an organization to execute a written agreement that defines the relationship between the lawyer and the organization and provides for the lawyer’s independence. This could prevent any misunderstanding as to whom the lawyer is representing and who can claim the lawyer’s loyalty.

Relevant Cases

Representation of Merging Corporations: In Kubin v. Miller, 801 F. Supp. 1101 (S.D.N.Y. 1992), two close corporations were merging. The lawyer represented the second close corporation’s shareholder for a long time before the merger. At the time of the merger, the lawyer was also representing the first close corporation’s shareholder. Under these circumstances, the court opined, the shareholder of the first close corporation should not have expected his discussions with the lawyer about the surviving corporation to be kept confidential. Similarly, in Rosman v. Shapiro, 653 F. Supp. 1441 (S.D.N.Y. 1987), the court held that a lawyer cannot represent one shareholder of a close corporation against another of its shareholders. One shareholder of the close corporation reasonably believed that corporate counsel represented him individually. The court disqualified the lawyer from representing the corporation. This decision reinforces the importance of having the lawyer clarify who (s)he is representing in the organization.

Appearance on Behalf of Officer: In Cooke v. Laidlaw, Adams & Peck, Inc., 126 A.D.2d 453, 510 N.Y.S.2d 597 (1st Dept. 1987), a corporate counsel’s prior appearance on behalf of a corporate officer in federal agency proceedings created the presumption that a lawyer-client relationship existed between the officer and the corporate counsel.

1.2:840      Representing a Fiduciary [see also 1.13:520]

Cross References

See 1.13:520.

1.2:850      Class Action Clients

Relevant Cases

Special Analysis of Conflicts in Class Actions: The Second Circuit, in In re "Agent Orange" Product Liability Litig., 800 F.2d 14 (2d Cir. 1986), held that despite traditional principles governing disqualification for conflict of interest, a lawyer who had previously represented class member supporting a settlement for the class could subsequently represent dissenting class members on appeal, because automatic disqualification of counsel most familiar with case due to conflicts between class members would substantially diminish the efficacy of class actions as a method of dispute resolution.