NYLE NY Professional Responsibility — Questions and Answers

Question 1: Under New York's Rules of Professional Conduct (RPC), when must an attorney decline or withdraw from representation due to a conflict of interest?

When the representation will involve the attorney in representing differing interests, unless each client gives informed consent confirmed in writing (Correct answer)
Only when both clients are in the same lawsuit
Only when the attorney has a financial interest in the outcome
Conflicts never require withdrawal if the attorney believes they can be fair

Correct answer: When the representation will involve the attorney in representing differing interests, unless each client gives informed consent confirmed in writing

RPC 1.7 prohibits concurrent conflicts unless each affected client gives informed consent, confirmed in writing, and the attorney reasonably believes they can provide competent and diligent representation.

Under RPC 1.7(a), a concurrent conflict exists when (1) representing one client is directly adverse to another client, or (2) there is a significant risk that representation will be materially limited by the attorney's obligations to another client, former client, or third person, or by the attorney's own interests. The conflict may be waived under RPC 1.7(b) if: the attorney reasonably believes competent representation is possible, the representation is not prohibited by law, the clients are not in the same proceeding asserting claims against each other, and each client gives informed consent confirmed in writing.

Question 2: Under New York RPC 1.15, what must an attorney do with client funds received in connection with a representation?

Deposit them in a special account separate from the attorney's own funds (IOLA or escrow account) (Correct answer)
Deposit them in the attorney's personal checking account for safekeeping
Immediately distribute them to the client
Hold them in cash in the attorney's office safe

Correct answer: Deposit them in a special account separate from the attorney's own funds (IOLA or escrow account)

RPC 1.15 requires attorneys to maintain client funds in a separate escrow or IOLA account, never commingling them with the attorney's own funds.

Under RPC 1.15, attorneys must deposit client funds in an identifiable bank account separate from the attorney's business and personal accounts. For funds that are nominal in amount or held for a short period, attorneys use an IOLA (Interest on Lawyer Account) account, where interest goes to fund legal services for the poor. For substantial amounts held for longer periods, the attorney must place funds in a separate interest-bearing account with interest payable to the client. The attorney must maintain complete records, provide prompt notification upon receipt, and promptly deliver funds to which the client is entitled. Commingling is a serious disciplinary offense.

Question 3: Under New York RPC 3.3, what is an attorney's duty of candor toward the tribunal?

The attorney must not make false statements of fact or law and must disclose directly adverse legal authority in the controlling jurisdiction not disclosed by opposing counsel (Correct answer)
The attorney must disclose all facts, even those harmful to the client's case
The attorney has no obligation regarding truthfulness if the client instructs otherwise
The duty of candor applies only in appellate proceedings

Correct answer: The attorney must not make false statements of fact or law and must disclose directly adverse legal authority in the controlling jurisdiction not disclosed by opposing counsel

RPC 3.3 requires attorneys to refrain from making false statements of material fact or law, to correct material misstatements, and to disclose directly adverse controlling authority not disclosed by the opposing party.

Under RPC 3.3(a), an attorney shall not knowingly make a false statement of fact or law to a tribunal, fail to correct a false statement of material fact or law previously made, or fail to disclose to the tribunal legal authority in the controlling jurisdiction known to be directly adverse to the client's position that has not been disclosed by opposing counsel. If the attorney knows the client or a witness has offered false testimony, the attorney must take reasonable remedial measures, including disclosure to the tribunal if necessary. This duty of candor overrides the duty of confidentiality.

Question 4: Under New York RPC 1.6, what is the scope of the attorney's duty of confidentiality?

It covers privileged information and any other information gained during or relating to the representation that is likely to be embarrassing or detrimental to the client, or that the client has requested be kept confidential, but not generally known information (Correct answer)
It covers only information protected by the attorney-client privilege
It covers only communications made in the attorney's office
It covers only information obtained during litigation, not transactional work

Correct answer: It covers privileged information and any other information gained during or relating to the representation that is likely to be embarrassing or detrimental to the client, or that the client has requested be kept confidential, but not generally known information

RPC 1.6(a) protects 'confidential information', which RPC 1.6 defines as information gained during or relating to the representation, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information the client has requested be kept confidential. It does not include information that is generally known in the local community or the trade, field or profession to which the information relates.

Under RPC 1.6(a), a lawyer shall not knowingly reveal confidential information, or use it to the disadvantage of a client or for the lawyer's advantage, unless an exception applies. 'Confidential information' (the definition in RPC 1.6) means information gained during or relating to the representation that is protected by the attorney-client privilege, likely to be embarrassing or detrimental to the client, or that the client requested be kept confidential. It excludes information that is generally known. This is broader than privilege, but it applies to transactional work as well as litigation.

Question 5: Under New York's attorney disciplinary system, which body has the authority to impose sanctions on attorneys for professional misconduct?

The Appellate Division of the Supreme Court in the department where the attorney is admitted (Correct answer)
The New York State Bar Association
The local county bar association
The Court of Appeals exclusively

Correct answer: The Appellate Division of the Supreme Court in the department where the attorney is admitted

Attorney discipline in New York is administered by the Appellate Division of the Supreme Court in each of the four judicial departments.

Under Judiciary Law § 90, the Appellate Division of each of the four judicial departments has authority over attorney discipline within its department. Each department has grievance committees or a Disciplinary Committee (Attorney Grievance Committee) that investigates complaints and prosecutes cases. Sanctions range from private admonition, public censure, suspension, to disbarment. The Appellate Division may also impose conditions such as monitoring or continuing education. Reciprocal discipline may be imposed based on discipline in another jurisdiction. The Court of Appeals may review Appellate Division disciplinary decisions.

Question 6: Under New York RPC 1.5, what standard governs the reasonableness of attorney fees?

Fees must not be excessive, considering factors such as time and labor, novelty and difficulty, the customary fee, the amount involved, and the attorney's experience (Correct answer)
Attorneys may charge any fee agreed upon by the client
Fees are regulated by a fixed schedule set by the court system
Only contingency fees are subject to reasonableness review

Correct answer: Fees must not be excessive, considering factors such as time and labor, novelty and difficulty, the customary fee, the amount involved, and the attorney's experience

RPC 1.5(a) prohibits excessive or illegal fees and lists factors for determining reasonableness including time, complexity, customary fees, and the attorney's experience.

Under RPC 1.5(a), an attorney shall not charge or collect an excessive or illegal fee or expense. Factors for determining reasonableness include: (1) time and labor required, (2) novelty and difficulty, (3) skill required, (4) likelihood the engagement precludes other employment, (5) customary fee in the locality, (6) amount involved and results obtained, (7) time limitations imposed, and (8) nature and length of the professional relationship. Contingency fees are subject to additional regulation under RPC 1.5(c)-(d) and court rules (e.g., Appellate Division rules cap medical malpractice contingency fees on a sliding scale). Fee agreements should preferably be in writing.

Question 7: Under New York RPC 4.2, what restriction applies to an attorney communicating with a person represented by counsel?

The attorney must not communicate about the subject of the representation without prior consent of the other person's attorney (Correct answer)
The attorney may communicate freely as long as they identify themselves
The restriction only applies during trial, not during negotiations
The attorney may communicate if they believe the other attorney is incompetent

Correct answer: The attorney must not communicate about the subject of the representation without prior consent of the other person's attorney

RPC 4.2 prohibits an attorney from communicating about the subject of the representation with a person the attorney knows to be represented by another attorney, without that attorney's prior consent.

RPC 4.2(a) provides that in representing a client, an attorney shall not communicate or cause another to communicate about the subject of the representation with a party the attorney knows to be represented by another attorney, unless with the prior consent of the other attorney or as authorized by law. For organizations, this extends to current employees whose acts or omissions may be imputed to the organization, who have managerial responsibility, or whose statements may constitute admissions. Former employees are generally not covered. Government attorneys have limited exceptions under RPC 4.2(b) for certain investigative communications.

Question 8: Under New York RPC 8.4, which of the following constitutes professional misconduct?

Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation (Correct answer)
Declining to take a case due to scheduling conflicts
Charging a fee lower than the customary rate
Representing an unpopular client

Correct answer: Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation

RPC 8.4(c) defines professional misconduct as engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, whether or not related to the practice of law.

RPC 8.4 lists specific acts constituting professional misconduct: (a) violating or attempting to violate the Rules, (b) committing a criminal act reflecting adversely on honesty or trustworthiness, (c) engaging in dishonesty, fraud, deceit, or misrepresentation, (d) conduct prejudicial to the administration of justice, (e) stating or implying an ability to influence a tribunal improperly, (f) knowingly assisting a judge in violating judicial conduct rules, (g) unlawful discrimination in the practice of law, and (h) sexual harassment in the practice of law. Notably, misconduct under 8.4(c) applies to all conduct, not just conduct in the attorney's professional capacity.

Question 9: Under New York RPC 1.9, what are an attorney's obligations to a former client?

The attorney must not represent another person in the same or substantially related matter if that person's interests are materially adverse to the former client, without informed consent (Correct answer)
The attorney has no obligations once the representation ends
The attorney may represent adverse parties as long as the former matter is closed
The attorney must continue to provide legal advice to the former client indefinitely

Correct answer: The attorney must not represent another person in the same or substantially related matter if that person's interests are materially adverse to the former client, without informed consent

RPC 1.9(a) prohibits an attorney from representing a person in the same or substantially related matter in which the person's interests are materially adverse to the former client, unless the former client gives informed consent confirmed in writing.

Under RPC 1.9, duties to former clients include: (a) not representing another person in the same or a substantially related matter where interests are materially adverse, without informed written consent; (b) not knowingly representing a person whose interests are materially adverse to a former client of the attorney's former firm, if the attorney acquired confidential information material to the matter (unless informed consent); and (c) not using or revealing confidential information of a former client except as permitted by the Rules. Matters are 'substantially related' if there is a substantial risk that confidential information from the prior representation would materially advance the new client's position.

Question 10: Under New York RPC 5.4, what limitation exists on an attorney sharing legal fees with a non-lawyer?

An attorney generally may not share legal fees with a non-lawyer, subject to limited exceptions (Correct answer)
Attorneys may freely share fees with non-lawyer partners
Fee sharing is permitted as long as the non-lawyer does no legal work
There are no restrictions on fee sharing in New York

Correct answer: An attorney generally may not share legal fees with a non-lawyer, subject to limited exceptions

RPC 5.4(a) generally prohibits attorneys from sharing legal fees with non-lawyers, with limited exceptions such as payments to the estate of a deceased attorney or compensation to non-lawyer employees based on a profit-sharing plan.

RPC 5.4(a) prohibits fee sharing with non-lawyers except: (1) death benefits to the estate of a deceased attorney, (2) profit-sharing or retirement plan payments to non-lawyer firm employees, (3) sharing court-awarded fees with a nonprofit that employed or retained the attorney, and (4) compensation or retirement benefits to non-lawyer employees based on a profit-sharing arrangement. RPC 5.4(b) prohibits forming partnerships with non-lawyers to practice law. RPC 5.4(d) prohibits practicing in an entity where a non-lawyer owns an interest, is a corporate officer/director, or directs professional judgment. These rules preserve attorney independence and prevent unauthorized practice of law.

Question 11: Under New York RPC 1.8, what restriction applies to business transactions between an attorney and client?

The transaction must be fair, the terms must be fully disclosed in writing, the client must be advised to seek independent counsel, and the client must give informed consent in writing (Correct answer)
Business transactions with clients are absolutely prohibited
No restrictions apply as long as the transaction is at market rate
The attorney must merely verbally inform the client of the terms

Correct answer: The transaction must be fair, the terms must be fully disclosed in writing, the client must be advised to seek independent counsel, and the client must give informed consent in writing

RPC 1.8(a) permits attorney-client business transactions only if the terms are fair and reasonable, fully disclosed in writing in a manner understandable to the client, the client is advised to seek independent counsel, and the client gives informed consent in a signed writing.

RPC 1.8(a) governs business transactions between attorneys and clients with strict requirements: (1) the transaction must be fair and reasonable to the client, (2) the terms must be fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client, (3) the client must be advised in writing to seek independent legal counsel and given a reasonable opportunity to do so, and (4) the client must give informed consent in a writing signed by the client to the essential terms and the attorney's role. The burden is on the attorney to demonstrate compliance. Additional restrictions under 1.8 apply to literary/media rights (1.8(d)), financial assistance to clients (1.8(e)), gifts from clients (1.8(c)), and sexual relations with clients (1.8(j)).

Question 12: Under the New York Rules of Professional Conduct, what are an attorney's obligations upon learning that a client intends to commit perjury?

The attorney must first try to dissuade the client; if unsuccessful, the attorney must not offer the false testimony and may need to disclose to the tribunal (Correct answer)
The attorney must present the testimony and let the jury decide credibility
The attorney must immediately withdraw without informing anyone
The attorney has no obligation because the client has the right to testify

Correct answer: The attorney must first try to dissuade the client; if unsuccessful, the attorney must not offer the false testimony and may need to disclose to the tribunal

Under RPC 3.3, if a client intends to testify falsely, the attorney must first attempt to dissuade the client. If unsuccessful, the attorney must refuse to offer the false testimony and may be required to disclose to the tribunal as a remedial measure.

Under RPC 3.3(a)(3), an attorney shall not knowingly offer false evidence. If the client insists on testifying falsely, the attorney must (1) attempt to dissuade the client from giving false testimony, (2) if unsuccessful in a criminal case, some authorities permit 'narrative testimony' where the client testifies in narrative form without direct examination, though this is controversial, (3) if the false testimony is given, take reasonable remedial measures including remonstrating with the client, seeking to withdraw, and if necessary, disclosing to the tribunal. The duty of candor under RPC 3.3 overrides the duty of confidentiality under RPC 1.6. This is one of the most challenging ethical dilemmas in practice.

NYLE NY Professional Responsibility

Under New York's Rules of Professional Conduct (RPC), when must an attorney decline or withdraw from representation due to a conflict of interest?

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