NYLE Professional Responsibility 3 — Questions and Answers
Question 1: An attorney learns through privileged communications that her client hid assets during a prior bankruptcy proceeding. The bankruptcy is now closed. Under NY RPC 1.6, may the attorney voluntarily disclose this to the bankruptcy trustee?
- Yes, past frauds are always disclosable
- Yes, if the attorney reasonably believes disclosure would prevent substantial financial harm
- No, this is past criminal conduct and the exceptions to confidentiality do not apply (Correct answer)
- Yes, because a third party (the trustee) has a right to know
Correct answer: No, this is past criminal conduct and the exceptions to confidentiality do not apply
NY RPC 1.6's exceptions permitting disclosure of past crimes are narrow; completed frauds that no longer pose continuing harm generally do not qualify, so confidentiality controls.
Question 2: Under NY RPC 3.5, a New York attorney wishes to contact jurors after a verdict to learn about their deliberations for use in a future similar case. This is:
- Permissible as long as the contact is in person and not by phone
- Permissible unless the juror declines or the court prohibits it (Correct answer)
- Prohibited under all circumstances
- Permissible only with the opposing party's consent
Correct answer: Permissible unless the juror declines or the court prohibits it
NY RPC 3.5(a)(4) allows post-verdict juror contact unless the court prohibits it, the juror has communicated a desire not to be contacted, or the communication involves misrepresentation or harassment.
Question 3: Attorney Z is a partner and directly supervises Associate W. Associate W makes a misrepresentation to a client without Attorney Z's knowledge. Under NY RPC 5.1, Attorney Z may be subject to discipline if:
- Z had any supervisory authority over W, regardless of knowledge
- Z knew of the misconduct at a time when its consequences could be avoided or mitigated but failed to act (Correct answer)
- Z failed to conduct a weekly review of all of W's correspondence
- Z is a named partner even without direct supervisory responsibility
Correct answer: Z knew of the misconduct at a time when its consequences could be avoided or mitigated but failed to act
NY RPC 5.1(c) makes a supervising attorney responsible for another lawyer's misconduct only if the supervisor knew of it in time to prevent or mitigate harm and failed to take reasonable action.
Question 4: A New York attorney represents a client in a personal injury case. Without the client's knowledge, the attorney settles the case for $50,000 because the attorney believes it is a fair offer. Has the attorney violated the NY Rules?
- No, attorneys have inherent authority to settle cases on behalf of clients
- Yes, settlements require the client's informed consent under NY RPC 1.2(a) (Correct answer)
- No, if the attorney reasonably believed the settlement was in the client's best interest
- Yes, but only if the settlement amount was below the client's documented demand
Correct answer: Yes, settlements require the client's informed consent under NY RPC 1.2(a)
NY RPC 1.2(a) reserves to the client the right to decide whether to settle; an attorney who settles without authorization violates both the rules and basic agency principles.
Question 5: An attorney is appointed to represent an indigent defendant and believes the appeal is frivolous. Under the standard established in Anders v. California and followed in New York, what should the attorney do?
- Simply refuse to file the appeal and notify the client
- File a no-merit letter with the court and ask to withdraw, after giving the client a copy (Correct answer)
- File the best brief possible even if personally convinced it is meritless
- Withdraw immediately by sending a letter to the court only
Correct answer: File a no-merit letter with the court and ask to withdraw, after giving the client a copy
Under Anders, appointed appellate counsel must file a brief identifying anything in the record that might support an appeal, request leave to withdraw, and furnish the defendant a copy so the defendant may raise any points.
Question 6: A prospective client gives an attorney a $500 cash retainer and later demands a full refund after deciding not to proceed. The attorney deposited the funds in the IOLA trust account. No work was done. Under NY RPC 1.16(e), the attorney must:
- Return the $500 only after deducting reasonable administrative costs
- Return all funds promptly to which the client is entitled (Correct answer)
- Retain the $500 as a non-refundable engagement retainer
- Return the funds only after the attorney-client relationship is formally terminated by court order
Correct answer: Return all funds promptly to which the client is entitled
NY RPC 1.16(e) requires prompt return of any funds the client is entitled to upon termination, and since no services were rendered, the full retainer must be returned.
Question 7: Under NY RPC 8.3, a New York attorney has knowledge that another attorney has committed a violation of the Rules that raises a substantial question as to that attorney's honesty or fitness. The duty to report is:
- Discretionary — the attorney may report but is not required to
- Mandatory, unless the information is protected by the duty of confidentiality (Correct answer)
- Mandatory without exception, even if the source is a client communication
- Mandatory only if the violating attorney is in the same firm
Correct answer: Mandatory, unless the information is protected by the duty of confidentiality
NY RPC 8.3(a) imposes a mandatory reporting duty for serious misconduct, but carves out an exception where reporting would require disclosure of confidential client information protected under Rule 1.6.
NYLE Professional Responsibility 3
An attorney learns through privileged communications that her client hid assets during a prior bankruptcy proceeding.
The bankruptcy is now closed.
Under NY RPC 1.6, may the attorney voluntarily disclose this to the bankruptcy trustee?