NYLE - New York Law NY Professional Responsibility Questions and Answers — Questions and Answers
Question 1: An attorney, newly admitted to the New York bar, is asked by a close family friend to handle a complex international trade dispute. The attorney has no prior experience in this area of law. According to the New York Rules of Professional Conduct, which of the following is the most appropriate course of action for the attorney?
- Decline the representation immediately due to lack of experience.
- Accept the representation, but only if they can achieve competence through diligent study and preparation before any critical deadlines. (Correct answer)
- Accept the representation and handle it to the best of their ability, as their duty of loyalty to a friend is paramount.
- Refer the matter to a more experienced attorney and request a referral fee, without informing the client.
Correct answer: Accept the representation, but only if they can achieve competence through diligent study and preparation before any critical deadlines.
New York Rule of Professional Conduct 1.1(a) requires a lawyer to provide competent representation. However, Comment [2] to Rule 1.1 clarifies that a newly admitted lawyer can be as competent as an experienced practitioner. Comment [4] further states that a lawyer may accept representation if the necessary level of competence can be achieved through adequate preparation. Rule 1.1(b) also permits a lawyer to handle a matter they are not competent in if they associate with a lawyer who is competent. Therefore, simply declining is not the only option, and accepting with the commitment to become competent through study is a permissible course of action.
Question 2: A lawyer represents a client in a personal injury lawsuit. During a deposition, the client knowingly makes a false statement of material fact under oath. The lawyer was unaware the statement was false at the time it was made but discovers the truth the next day. Under the New York Rules of Professional Conduct, what is the lawyer's primary obligation?
- To immediately inform the opposing counsel of the client's false statement.
- To maintain client confidentiality above all else and proceed with the case as if the statement were true.
- To first remonstrate with the client to correct the false statement and, if the client refuses, take reasonable remedial measures, which may include disclosure to the tribunal. (Correct answer)
- To withdraw from the representation without disclosing the reason to the court or opposing counsel.
Correct answer: To first remonstrate with the client to correct the false statement and, if the client refuses, take reasonable remedial measures, which may include disclosure to the tribunal.
Under Rule 3.3(a)(3) of the New York Rules of Professional Conduct, if a lawyer comes to know that material evidence offered by their client is false, the lawyer must take reasonable remedial measures. The comments to this rule clarify that the first step is to speak with the client confidentially and urge them to correct the falsehood. If the client refuses, the lawyer's duty of candor to the tribunal requires further action, which may necessitate disclosing the perjury to the court, even if it means revealing confidential information otherwise protected by Rule 1.6.
Question 3: Attorney A and Attorney B are not in the same law firm. Attorney A refers a personal injury case to Attorney B, a certified specialist. They agree to divide the contingent fee. Under the New York Rules of Professional Conduct, which condition is NOT required for this fee division to be proper?
- The client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing.
- The total fee charged to the client is reasonable and not excessive.
- The division is in proportion to the services performed by each lawyer, or each lawyer assumes joint responsibility for the representation in a writing given to the client.
- Both attorneys must be certified specialists in personal injury law. (Correct answer)
Correct answer: Both attorneys must be certified specialists in personal injury law.
Rule 1.5(g) of the New York Rules of Professional Conduct governs the division of fees between lawyers who are not in the same firm. It requires that (1) the division is either proportional to the services performed or each lawyer assumes joint responsibility in writing; (2) the client agrees in writing to the arrangement, including the share each lawyer receives; and (3) the total fee is not excessive. There is no requirement in the rule that both attorneys be specialists in the area of law.
Question 4: An attorney represents a small tech startup. The attorney learns confidential information that the startup is about to be acquired by a major corporation at a price that will cause its stock to triple in value. The attorney's spouse, an independent stockbroker, asks for a 'hot tip.' Under which of the following circumstances may the attorney disclose this information?
- If the information is already a rumor on a few obscure online forums.
- If the attorney's spouse promises not to act on the information.
- Under no circumstances, unless the client gives informed consent. (Correct answer)
- To prevent the spouse from committing the crime of insider trading.
Correct answer: Under no circumstances, unless the client gives informed consent.
Rule 1.6 of the New York Rules of Professional Conduct establishes a broad duty of confidentiality. A lawyer cannot reveal confidential information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure falls under one of the specific exceptions in Rule 1.6(b). Using the information for the advantage of a third person (the spouse) is explicitly prohibited. The exceptions, such as preventing a crime, apply to crimes the client intends to commit, not crimes a third party might commit with the information.
Question 5: A lawyer represented Client X five years ago in negotiating a commercial lease for a retail space. Now, Landlord Y, the other party to that lease, wants to hire the lawyer to sue Client X for breach of that same lease agreement. What must the lawyer do to accept the representation of Landlord Y?
- The lawyer may accept the representation without any further action because the previous matter is closed.
- The lawyer must obtain informed consent, confirmed in writing, from the former client, Client X. (Correct answer)
- The lawyer is automatically barred from ever representing a client against a former client.
- The lawyer only needs to inform Landlord Y of the prior representation of Client X.
Correct answer: The lawyer must obtain informed consent, confirmed in writing, from the former client, Client X.
According to New York Rule of Professional Conduct 1.9(a), a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. Suing a former client for breach of a lease the lawyer negotiated is the same matter, and the interests are materially adverse. Therefore, obtaining written, informed consent from the former client is required.
Question 6: Which of the following situations describes a non-consentable conflict of interest under New York's Rules of Professional Conduct?
- A lawyer representing two co-defendants in a civil case who have differing ideas on litigation strategy.
- A lawyer whose personal financial interests might be adversely affected by the outcome of a client's case.
- A lawyer seeking to represent a client in a transaction where the lawyer's former client is the adverse party.
- A lawyer representing one client in the assertion of a claim against another client who is represented by the same lawyer in the same litigation. (Correct answer)
Correct answer: A lawyer representing one client in the assertion of a claim against another client who is represented by the same lawyer in the same litigation.
New York Rule of Professional Conduct 1.7(b)(3) explicitly states that a conflict is non-consentable if the representation involves the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal. While the other scenarios present potential conflicts of interest, they may be consentable if the lawyer reasonably believes they can provide competent and diligent representation to each affected client and each client gives informed consent, confirmed in writing.
NYLE - New York Law NY Professional Responsibility Questions and Answers
An attorney, newly admitted to the New York bar, is asked by a close family friend to handle a complex international trade dispute.
The attorney has no prior experience in this area of law.
According to the New York Rules of Professional Conduct, which of the following is the most appropriate course of action for the attorney?