NYLE Professional Responsibility 5 — Questions and Answers
Question 1: A New York attorney's client is also a close personal friend. The client asks the attorney to prepare a will that leaves a substantial bequest to the attorney. Under NY RPC 1.8(c), this is:
- Permissible because the attorney-client relationship is subordinate to the friendship
- Permissible if the client executes an independent written waiver
- Prohibited unless the client is a relative of the attorney
- Prohibited unless the client is represented by independent counsel in making the gift (Correct answer)
Correct answer: Prohibited unless the client is represented by independent counsel in making the gift
NY RPC 1.8(c) prohibits an attorney from drafting an instrument giving the attorney or a related person a substantial gift from a client unless the client is related to the donee and the client has independent counsel review the arrangement.
Question 2: An attorney is negotiating a settlement with an unrepresented adverse party. Under NY RPC 4.3, the attorney must:
- Advise the unrepresented person to obtain counsel and refuse to negotiate further
- Avoid giving the person any legal advice but may explain the attorney's own client's position (Correct answer)
- Disclose all information that might benefit the unrepresented party
- Not communicate with the unrepresented party at all without court permission
Correct answer: Avoid giving the person any legal advice but may explain the attorney's own client's position
NY RPC 4.3 permits negotiation with unrepresented parties but requires the attorney to make clear the attorney's role, avoid implying neutrality, and refrain from giving legal advice other than to advise the person to get a lawyer.
Question 3: A New York prosecutor learns before trial that DNA evidence conclusively exonerates the defendant. Under NY RPC 3.8(d), the prosecutor must:
- Disclose the evidence only if defense counsel specifically requests it
- Disclose the exculpatory evidence to the defense promptly (Correct answer)
- Seal the evidence until after a guilty verdict to preserve the ability to correct errors on appeal
- Disclose the evidence only to the court in camera
Correct answer: Disclose the exculpatory evidence to the defense promptly
NY RPC 3.8(d) imposes an affirmative duty on prosecutors to disclose all evidence or information that tends to negate guilt or mitigate the offense, beyond what Brady already requires.
Question 4: After winning a hard-fought verdict, a New York attorney posts on social media: 'Just crushed the defense in the [Client Name] case — $2 million for my client! Call me for results!' This post likely violates NY RPC:
- 1.6 (confidentiality) and 7.1 (advertising) (Correct answer)
- Only 7.1 because client results are truthful and permissible
- Only 1.6 because advertising rules do not apply to social media
- Neither rule, because social media is not regulated attorney advertising
Correct answer: 1.6 (confidentiality) and 7.1 (advertising)
Posting a client's name and case outcome without consent violates the duty of confidentiality under NY RPC 1.6, and the boastful 'crushed' language creates unjustified expectations prohibited by NY RPC 7.1.
Question 5: Under NY RPC 1.16(c), a New York attorney who discovers that her client has used the attorney's services to perpetrate a fraud on a third party may:
- Continue the representation without disclosing the fraud to anyone
- Withdraw from representation even if it causes material harm to the client (Correct answer)
- Only withdraw if the court grants permission mid-litigation
- Disclose the fraud to the victim directly without withdrawing
Correct answer: Withdraw from representation even if it causes material harm to the client
NY RPC 1.16(c)(1) permits permissive withdrawal when the client has used the attorney's services to engage in conduct the attorney knows is illegal, even if withdrawal prejudices the client.
Question 6: An attorney leaves a New York law firm to start her own practice. She wishes to take client files with her. Under the NY Rules, client files:
- Belong to the firm and may not be removed without firm consent
- Belong to the client, who may authorize their transfer to the departing attorney (Correct answer)
- Belong to the attorney who worked on them, regardless of firm policy
- Must remain at the firm for at least 90 days under NY court rules
Correct answer: Belong to the client, who may authorize their transfer to the departing attorney
Client files belong to the client, not the attorney or the firm; clients have the right to designate who retains their files, including a departing attorney they choose to follow.
Question 7: Under New York's version of the Multistate Professional Responsibility framework, a New York-licensed attorney temporarily practicing in another state (not admitted there) is primarily governed by:
- The rules of the state where the attorney is physically working
- New York's Rules of Professional Conduct (Correct answer)
- The ABA Model Rules only, as the national standard
- Federal rules of professional conduct, which preempt state rules
Correct answer: New York's Rules of Professional Conduct
NY RPC 8.5(b)(ii) provides that for temporary practice in another jurisdiction, the rules of the jurisdiction where the attorney is admitted (New York) generally apply, unless the matter is pending before a tribunal in the other state.
NYLE Professional Responsibility 5
A New York attorney's client is also a close personal friend.
The client asks the attorney to prepare a will that leaves a substantial bequest to the attorney.
Under NY RPC 1.8(c), this is: