New York City Bar Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the New York City Bar, with full citations and source links on every page.
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Can a lawyer secretly tape record telephone or in-person conversations with opposing counsel without telling them the conversation is being recorded?
The opinion concluded a lawyer may not tape record a telephone or in-person conversation with an adversary attorney without informing the adversary that the conversation is being taped, treating undis…
Can independent lawyers sharing offices advertise as 'The Law Offices at X Square,' and when can lawyers or firms call themselves 'of counsel,' 'associated,' or 'affiliated' with each other?
The opinion concluded an unaffiliated group may not advertise under a trade name like 'The Law Offices at X Square,' but a firm may be of counsel to another firm or to individuals, and firms may descr…
Can a New York lawyer practice through an LLC or LLP to limit personal liability for the malpractice of partners the lawyer did not supervise?
The opinion concluded yes; practicing through an LLC or LLP to limit a lawyer's vicarious liability for others' malpractice does not violate the rule against prospectively limiting one's own liability…
Can a New York firm open a same-named firm in another state, let a name partner be of counsel to one firm while a name partner in the other, and keep his name in the New York firm's name?
The opinion concluded yes to all three, provided the arrangement is not intended to mislead and does not mislead: partners may form a same-named firm in another jurisdiction, a lawyer may be of counse…
A lawyer holds a small settlement for a now-incompetent client who can't sign the required release. What must the lawyer do with the funds, and must they earn interest?
The opinion concluded the lawyer must hold the funds and pursue a valid release (or a court deposit or agreement to dispense with one), and that if the funds are likely to be held a year or more, the …
Must a lawyer report a former partner who neglected matters and mishandled client and firm funds, and what if the lawyer believes the partner is mentally impaired?
The opinion concluded the lawyer must report a former partner to disciplinary authorities on knowledge of a pattern of neglect or the mismanagement or conversion of client or firm funds, subject to pr…
Can a collections lawyer pre-sign blank judgment-execution forms for the sheriff, or let his printed name go on dunning letters that falsely say an execution has been sent?
The opinion concluded no to both; pre-signing a blank execution falsely implies the lawyer verified the facts later filled in, and letting one's name appear on letters that wrongly state an execution …
Can a New York firm list a lawyer admitted only in a foreign country as an associate on its letterhead and in its advertising?
The opinion concluded yes, provided an appropriate disclaimer sets forth the jurisdictional limitations on the associate's practice; it modified the firm's earlier opinion that had rejected a disclaim…
When a legal services organization may have committed malpractice against its own client, can it keep representing the client, and what must it do about the possible malpractice claim?
The opinion concluded the organization has a non-waivable conflict of interest, so it must withdraw from the representation, advise the client to obtain legal advice from a lawyer not employed by the …
Can a lawyer use a third-party company that finances clients' legal fees, paying the lawyer up front and collecting from the client with interest?
The opinion concluded such fee-financing arrangements are not per se improper, but the specific plan would be improper unless modified, because the lawyer must keep control over whether the client is …
Can a lawyer discuss confidential client matters on a cellular or cordless phone that could be intercepted?
The opinion concluded a lawyer should exercise caution when discussing client confidences or secrets on cellular, cordless, or other readily interceptable devices, should consider securing such conver…
If a lawyer for a limited partnership discovers the general partner is looting it, must the lawyer tell the limited partners, and may the lawyer tell outsiders?
The opinion concluded that a lawyer for a limited partnership must disclose the general partner's improprieties to the limited partners, since the entity is the client, but may not reveal the informat…
Should a candidate for Attorney General or District Attorney personally solicit campaign contributions or learn who donated?
The opinion concluded that candidates for Attorney General, District Attorney, and similar offices tied to the judicial process should not personally solicit contributions but should use committees an…
Can a bank charge borrowers a fee for its in-house lawyer's closing work, and can that lawyer also be an officer, director, or shareholder of the bank?
The opinion concluded a bank may charge borrowers a fixed fee for its in-house counsel's services only up to the actual cost (any profit would be improper fee-sharing and a misrepresentation), and a l…
Can a lawyer use 'Esq.' after their name when working in a non-legal job?
The opinion concluded a lawyer may ethically use 'Esq.' after their name even when acting in a non-legal capacity, because the title is not misleading, though using 'Attorney-at-Law' in that setting c…
Can a New York firm affiliated with a German law firm use a nearly identical name and list the foreign firm on its letterhead without a real partnership?
The opinion concluded that using a name nearly identical to a German firm without a true partnership, listing the German firm as if it were a partner, or calling the German office the 'head office' is…
Can a lawyer join a for-profit private referral service that is not sponsored or approved by a bar association?
The opinion concluded a lawyer may not pay to participate in a for-profit private legal referral service that no bar association operates, sponsors, or approves, because it falls outside the DR 2-103(…
Can a part-time administrative law judge refer out and collect a fee on a lawsuit against the government arm that enforces the judge's own rulings?
The opinion concluded a part-time parking-bureau administrative law judge may not take a referral fee, or a fee for work done, on a suit against the Sheriff's office that enforces the judge's rulings,…
Can a former in-house lawyer sue a former employer for discrimination and help prepare a class action against it?
The opinion concluded a former in-house lawyer may pursue his own discrimination claims against the former employer and help prepare a class action, but may not use or reveal the employer's confidence…
Can a law firm give a nonlawyer billing clerk full discretion and authority to prepare and sign client fee bills without attorney review?
The opinion concluded a firm may delegate final authority for preparing fee bills to a nonlawyer, but the lawyers remain ultimately responsible as a matter of ethics for any billing improprieties and …
If a client insists on a fraudulent scheme, must the lawyer withdraw, and may the lawyer later disclose the former client's past fraud?
The opinion concluded the lawyer must call on the client to stop the fraud and must withdraw if the client refuses, but may not disclose a former client's past fraud because it is a protected secret; …
Can a lawyer take a will contest on a contingent fee, and can the lawyer pay a private investigator a contingent fee on the case?
The opinion concluded a lawyer may charge a contingent fee in a will contest if it is reasonable and the writing requirements are met, but may not compensate a private investigator on a contingent fee…
Can a retired lawyer assign unpaid client accounts receivable to other lawyers for collection?
The opinion concluded a retired lawyer may assign fully earned accounts receivable to other lawyers if the clients are told, client confidences are protected, the fees were reasonable, the assigning l…
When a government agency is the opposing party in litigation, which of its officials may a lawyer interview without the agency's counsel present?
The opinion concluded that DR 7-104(A)(1) applies when the adversary is a government agency, so a lawyer may not communicate, outside the presence of agency counsel, with officials whose acts bind the…
Can a New York lawyer charge a fee paid in advance and call it 'nonrefundable'?
The opinion concluded that minimum fees, flat fees, and traditional retainers can be reasonable and proper, but no advance fee is ever literally nonrefundable, so a lawyer may not characterize an adva…
Can a lawyer tell a client to contact the represented opposing party directly to talk settlement, and what if the client does it on their own?
The opinion concluded a lawyer may not advise or encourage a client to contact a represented adverse party directly, need not stop a client who does so on their own, but may not assist or advise on th…
Must a lawyer tell a client that the lawyer is seeking or considering a job with someone whose interests are adverse to that client?
The opinion concluded that a lawyer's focused, concrete interest in future employment adverse to a client is a personal interest under DR 5-101(A) that requires disclosure and the client's consent, no…
Can volunteer lawyers serve as administrative judges or mediators for an agency and also represent parties before it, and can a firm represent complainants against the City it also serves?
The opinion concluded that whether a volunteer judge's or mediator's firm is disqualified turns on whether the role is treated as a part-time judge (firm-wide disqualification) or a judge pro tempore,…
When must a New York lawyer report another lawyer's misconduct, and what does the amended DR 1-103(A) change about the knowledge required and the conduct covered?
The opinion concluded that the 1990 amendment to DR 1-103(A) keeps mandatory reporting but requires actual knowledge (not suspicion), limits the duty to misconduct raising a substantial question about…
If a lawyer learns that a prior discovery response was wrong because the client actually has responsive documents, can the lawyer disclose that over the client's objection?
The opinion concluded that the discovery-correction duty of Federal Rule 26(e) is 'required by law' under DR 4-101(C)(2), so the lawyer may disclose the documents' existence even though it is a client…
Can the lawyer who represented the sponsor in a cooperative conversion also represent the new cooperative corporation afterward, agreeing to withdraw if a conflict arises?
The opinion concluded that the sponsor's and the cooperative corporation's interests are almost always differing interests under DR 5-105, so although dual representation is theoretically possible wit…
Can a lawyer agree with a client, in a retainer or otherwise, that the client will pay any Rule 11 or Part 130 sanctions imposed on the lawyer?
The opinion concluded that an agreement shifting court-imposed sanctions from the lawyer to the client, whether made before or after sanctions are imposed, is improper, because sanctions on a lawyer r…
Can a law firm pay a temporary-lawyer placement agency a fee tied to the temporary lawyer's hours or pay, and what must the firm tell the client?
The opinion concluded, modifying its earlier view, that an agency's fee (even one calculated from the temporary lawyer's time or compensation) is payment for non-legal placement services, not a legal-…
What must a lawyer do if a client intercepts and copies privileged communications between the opposing party and that party's lawyer?
The opinion concluded that a lawyer may not counsel a client to intercept an adversary's privileged communications, even in retaliation; and a lawyer whose client did so on its own may not use the doc…
If a lawyer testified at trial on the client's behalf, can the same lawyer brief and argue the appeal?
The opinion concluded that a lawyer who testified at trial is precluded from acting as appellate counsel if the lawyer knows or it is obvious that the subject of the testimony will or ought to be an i…
When a government agency in a dispute with my client has retained counsel, can I still write directly to the head of the agency about the matter?
The opinion concluded that if the agency head is acting in an official capacity, the lawyer may submit comments to the head under the 'authorized by law' exception to DR 7-104(A)(1), provided the lawy…
Can a lawyer take a mortgage on a client's home to secure payment of the legal fee, and what conditions apply?
The opinion concluded that a lawyer may take a mortgage on a client's property to secure a fee, but the transaction is a business transaction under DR 5-104(A), so it requires the client's consent aft…
Can a lawyer sign a contract for the book or movie rights to a client's case while still representing the client?
The opinion concluded that a lawyer may not enter a publication or production rights contract, with the client or a third party, until all aspects of the matter are concluded, and that even afterward …
If I own an apartment in a co-op or condo, can I serve as the building's lawyer, or represent a fellow tenant, the board, or a buyer in matters involving the building?
The opinion concluded that a lawyer-tenant's own property and personal interests may compromise independent judgment, so the lawyer may represent the cooperative, a co-tenant, a buyer, or a tenants' g…
After a lawyer's firm dissolves and a judgment is vacated, must the lawyer keep representing the client at a new trial, and what are the duties around the contingency fee?
The opinion concluded that whether the lawyer may keep the contingency fee and whether the original retainer requires continued representation are legal questions beyond the committee's jurisdiction, …
Can a for-profit agency place temporary lawyers with law firms, and how must the agency, the firm, and the temporary lawyer structure the arrangement to satisfy the ethics rules?
The opinion concluded that the agency as proposed was improper because its fee structure and operation would assist the unauthorized practice of law and risk fee-splitting, but that a temporary-lawyer…
Can a judge serve as executor of the estate of a lifelong friend who was not a relative but was treated as family?
The opinion concluded that the judge may serve as executor because the decedent, a lifelong friend the judge treated as family, fell within the 'close familial relationship' exception in Section 100.5…
Can a sitting judge serve on bar association committees and work on improving the law, and what limits apply to lobbying and other activity?
The opinion concluded that judges are permitted and encouraged to participate in bar association committee activities devoted to improving the law, the legal system, and the administration of justice,…
Can a lawyer reveal what an impaired client confided in order to have a conservator appointed for the client?
The opinion concluded that when a client's disability is so severe that the lawyer is compelled to act, and disclosure is the only reasonable way to safeguard the client, the lawyer may, as a last res…
Can a lawyer hand-deliver an argument letter to the judge but only mail the copy to opposing counsel?
The opinion concluded that it is improper to delay an adversary's knowledge of a written argument to a tribunal by hand-delivering it to the court while mailing the copy to opposing counsel, and that …
Can an incumbent judge use campaign materials that show the judge wearing judicial robes?
The opinion concluded that an incumbent judge who is lawfully entitled to wear judicial robes may use campaign materials depicting the judge in robes, whether or not the judge customarily wears them, …
Is it unethical for defense counsel to condition a civil rights settlement on the plaintiff waiving statutory attorneys' fees?
The opinion concluded that, after the Supreme Court's decision in Evans v. Jeff D., it is not unethical per se for defense counsel to propose settlements conditioned on a waiver of statutory attorneys…
Must a government agency lawyer who also represents a discrimination complainant disclose information adverse to the complainant that the complainant confided?
The opinion concluded that when the agency lawyer also represents the complainant, the lawyer need not disclose the adverse confidence to the employer so long as no misrepresentation is made to the tr…
Can a lawyer draft pleadings and advise a litigant who appears pro se without disclosing that help to the court and opposing counsel?
The opinion concluded that a lawyer may provide limited behind-the-scenes help to a pro se litigant, but where the assistance is active and substantial, including drafting any pleading, the fact of le…
Can a law firm let a nonlawyer who rents space in its office advertise that she runs her mediation business at the firm's offices?
The opinion concluded that a law firm may not let a nonlawyer office-mate use the firm's name in advertising her own mediation business, because it would be misleading, would suggest an improper lawye…
Can a law firm suing a former client for unpaid fees reveal what the client told it in confidence?
The opinion concluded that a firm suing a former client for fees may disclose the client's confidences and secrets only to the extent strictly and clearly necessary to establish or collect the fee or …
When a prosecutor threatens a lawyer with indictment, can the lawyer reveal a former client's confidences to clear himself?
The opinion concluded that a lawyer accused of wrongful conduct may disclose a former client's confidences and secrets under the self-defense exception even before any formal charge, but only to the e…
Is a lawyer on a contingent fee required to handle an appeal after losing at trial without charging more?
The opinion concluded that whether a lawyer must handle an appeal depends on the scope of the retainer agreement, a question of law; if the contract requires it the lawyer has an ethical duty under DR…
Can a lawyer act as escrow agent in a deal while also representing one of the parties, and who gets the interest on escrowed funds?
The opinion concluded that a lawyer may serve as escrow agent and represent one party in the same transaction only with the fully informed consent of all parties, must safeguard the funds under the tr…
How long must a lawyer keep closed client files, and when can the lawyer destroy them?
The opinion concluded that a lawyer must first determine whether the papers belong to the client or the lawyer; client papers should not be destroyed without contacting the client, while the lawyer's …
Can a lawyer take a criminal-defense fee out of the client's recovery in a separate civil case?
The opinion concluded that a fixed criminal-defense fee paid from the client's eventual civil recovery is not a prohibited criminal contingent fee, because the fee does not turn on the outcome of the …
Can a lawyer for a partnership tell the limited partners about the general partner's misconduct?
The opinion concluded that a lawyer for a limited partnership may disclose the general partner's improprieties to the limited partners, because the duty of loyalty runs to the partnership entity and t…
Can a lawyer give clients a written guarantee of a permanent visa with a money-back promise, and advertise it?
The opinion concluded that a form guaranteeing a permanent visa with a refund of fees is improper, because the word guarantee is misleading under the advertising rules, a money-back promise that omits…
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Legal ethics opinions from the New York City Bar interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.