NYLE Professional Responsibility 4 — Questions and Answers
Question 1: A New York attorney advertises: 'I have never lost a case.' Under NY RPC 7.1, this advertisement is:
- Permissible as a truthful statement of past results
- Permissible if accompanied by a disclaimer
- Prohibited as a statement likely to create unjustified expectations (Correct answer)
- Permissible only in written advertisements, not broadcast media
Correct answer: Prohibited as a statement likely to create unjustified expectations
NY RPC 7.1(a)(1) prohibits advertising that contains statements likely to create unjustified expectations about results, and claims of never losing a case fall squarely within this prohibition.
Question 2: An attorney simultaneously represents two co-defendants in a criminal case. Both defendants insist on joint representation despite the attorney's conflict warnings. Under NY RPC 1.7, joint representation is permissible if:
- Both clients provide informed written consent and the attorney reasonably believes representation of each will not be materially limited (Correct answer)
- The charges against both defendants are identical
- The prosecutor does not object to the joint representation
- The trial judge approves the arrangement on the record
Correct answer: Both clients provide informed written consent and the attorney reasonably believes representation of each will not be materially limited
Under NY RPC 1.7(b), a lawyer may represent clients with concurrent conflicts if the lawyer reasonably believes competent representation is possible and each client gives informed written consent.
Question 3: A client instructs her attorney to pursue a claim that the attorney believes has no merit. The attorney must:
- Refuse to file the claim under any circumstances
- File the claim because client instructions control litigation strategy
- Advise the client of the attorney's assessment but may still file if the client insists and a good-faith argument exists (Correct answer)
- File the claim only after getting a second opinion from another attorney
Correct answer: Advise the client of the attorney's assessment but may still file if the client insists and a good-faith argument exists
NY RPC 3.1 prohibits filing frivolous claims, but an attorney may advance a non-frivolous claim the attorney personally doubts, provided there is a good-faith argument for the client's position.
Question 4: Attorney represents Seller in a real estate transaction. Attorney also drafts the contract and represents Buyer's interests in explaining the terms. This dual representation without proper consent:
- Is permitted in real estate transactions under the residential exception
- Violates NY RPC 1.7 because the interests of Seller and Buyer are directly adverse (Correct answer)
- Is permitted because transactional matters do not involve adversarial proceedings
- Is permitted if the attorney discloses the dual role verbally
Correct answer: Violates NY RPC 1.7 because the interests of Seller and Buyer are directly adverse
Buyer and Seller have directly adverse interests in a transaction; simultaneously representing both without informed written consent from each violates NY RPC 1.7(a)(1).
Question 5: A New York attorney receives a subpoena for documents relating to a client's case. The attorney believes the documents are protected by attorney-client privilege. The attorney should:
- Comply fully with the subpoena to avoid contempt
- Destroy the documents to protect the client
- Produce a privilege log and move to quash or for a protective order (Correct answer)
- Refuse to respond and await a court order compelling production
Correct answer: Produce a privilege log and move to quash or for a protective order
The proper procedure is to assert the privilege, produce a privilege log identifying withheld documents, and seek judicial relief through a motion to quash or protective order.
Question 6: Under NY RPC 4.2, an attorney may communicate directly with a represented opposing party:
- Never, under any circumstances
- Only through written correspondence, not in person
- When the opposing party's counsel consents or when authorized by law or court order (Correct answer)
- Only on matters unrelated to the subject of the representation
Correct answer: When the opposing party's counsel consents or when authorized by law or court order
NY RPC 4.2 prohibits direct communication with represented parties absent consent of their counsel, but exceptions exist when authorized by law (e.g., government investigations) or court order.
Question 7: An attorney in New York discovers that opposing counsel inadvertently sent her an email containing clearly privileged strategy documents. Under NY RPC 4.4(b), she must:
- Immediately read the documents thoroughly and use them strategically
- Promptly notify opposing counsel of the inadvertent disclosure (Correct answer)
- Submit the documents to the court for in camera review without notifying opposing counsel
- Return the documents only if opposing counsel requests them within 72 hours
Correct answer: Promptly notify opposing counsel of the inadvertent disclosure
NY RPC 4.4(b) requires an attorney who receives inadvertently sent privileged documents to promptly notify the sender, allowing the sender to take protective steps.
NYLE Professional Responsibility 4
A New York attorney advertises: 'I have never lost a case.' Under NY RPC 7.1, this advertisement is: