New York State Bar Association Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the New York State Bar Association, with full citations and source links on every page.
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Does a New York lawyer's announcement of certification as a specialist need the disclaimer if it goes only to other lawyers and to the lawyer's own clients?
Yes. The opinion concludes that a professional announcement of specialist certification mailed to bar members, reprinted in a bar newsletter, and mailed to present and former clients is 'public' and m…
Can a New York lawyer refer clients to the lawyer's own non-legal business, and can that business refer customers back by phone or in person?
The opinion concludes that if the lawyer gives the DR 1-106 notice that the non-legal services are not covered by the attorney-client relationship, the lawyer may refer clients to the business without…
Can a New York lawyer who owns a mortgage brokerage and a title abstract company also act as the lawyer for the buyer, seller, or lender in the same real estate deal?
The opinion concludes the lawyer may not be the buyer's or seller's lawyer while also acting as mortgage broker or as a non-ministerial title abstract company in the same deal, but may, with informed …
Can a New York lawyer pass on to a contingent-fee client the interest the lawyer pays on money borrowed to fund litigation expenses?
The opinion concludes that a lawyer may borrow to advance litigation expenses in a contingent-fee matter and pass the interest cost on to the client, provided the client remains ultimately liable for …
After New York adopted DR 1-106 on non-legal services, can a lawyer who owns an ancillary business provide both legal and non-legal services in the same transaction with the client's consent?
The opinion concludes that the prior bars on a lawyer acting in dual roles (such as lawyer and broker) in the same transaction survive DR 1-106, because those bars came from applying DR 5-101(A) to th…
Can a government agency lawyer be required to take on more cases than the lawyer can competently handle?
The opinion concludes that a lawyer who represents a government agency may not accept more matters than the lawyer can competently handle, and may not consent away the duty of competence; the lawyer m…
Can a New York lawyer's advertisement give only a website or email address, or must it include a physical street address?
The opinion concludes a legal-services advertisement may not list a website or email address as the sole address; DR 2-101(K) requires the lawyer's physical street office address as well.
If a lawyer is admitted in New York and another state, whose ethics rules govern conduct that happens in the other state?
The opinion concluded that a New York-admitted lawyer is always subject to New York's disciplinary authority, but the rules actually applied may be another jurisdiction's: for work outside a court pro…
Can a lawyer use software to pull hidden data and prior drafts out of an electronic document an opposing lawyer sent?
The opinion concluded that lawyers may not ethically use available technology to surreptitiously examine and trace e-mail and other electronic documents to uncover information the sender did not inten…
Can a former prosecutor now in a public defender or Legal Aid office defend people who were charged while the lawyer worked at the DA's office?
The opinion concluded that a former prosecutor may defend criminal defendants charged during the lawyer's DA tenure as long as the lawyer did not participate personally and substantially in that defen…
Can a lawyer take a contingent fee to collect unpaid alimony, maintenance, or child support owed under a divorce judgment that has already been entered?
The opinion concluded that a lawyer may not charge a contingent fee in a post-divorce action to collect maintenance, child support, or alimony due under a final judgment, because the Code treats such …
If a lawyer holds a client's durable power of attorney and the client becomes incapacitated, can the lawyer petition to have a guardian appointed and act as the lawyer in that proceeding?
The opinion concluded that a lawyer-agent may petition for a guardian without the client's consent only if the client is incapacitated, no less-restrictive alternative (including the power of attorney…
If a lawyer is disqualified from a matter by a conflict of interest, can the lawyer still collect a referral fee for sending it to another firm?
The opinion concluded that a lawyer disqualified on non-consentable conflict grounds may not receive a referral fee, because the lawyer cannot assume the joint responsibility that fee division require…
When a lawyer handles several lawsuits for one client under a single retainer, can the lawyer agree that recoveries from the winning cases will cover the litigation costs of the losing cases?
The opinion concluded that the arrangement is permissible so long as the client remains ultimately responsible for all litigation expenses; the lawyer may agree to pay the costs of unsuccessful suits …
When a union's lawyer handles an arbitration involving a union member, does the lawyer owe confidentiality to the individual member or only to the union, and can the lawyer circulate the arbitrator's decision?
The opinion concluded that when the member is the party to the arbitration the lawyer represents the member and must protect the member's secrets; when the union is the party under a collective bargai…
Does a lawyer have to report a non-client third party's violation of law that the lawyer learned about while representing a client?
The opinion concluded that the Code imposes no duty to report a non-lawyer third party's violation of law where no other lawyer and no tribunal is involved, and that the lawyer may in fact be prohibit…
Can a lawyer join a business networking group whose members are required to refer clients to one another?
The opinion concluded that a lawyer may not participate in a business networking organization that requires members to refer clients to, and accept referrals from, other members in exchange for those …
Can a lawyer use the firm name 'A' or place the letter 'A' in front of the firm name in a Yellow Pages ad to get a more prominent listing?
The opinion concluded that a lawyer may not use 'A' as a firm name or insert the letter 'A' before the firm name to secure favorable Yellow Pages placement, because doing so turns the firm name into a…
If a lawyer takes a matrimonial case at a reduced rate through a bar referral service, can the lawyer still ask the court to award fees from the other spouse at the lawyer's full customary rate?
The opinion concluded that a lawyer who represents a low- or moderate-income matrimonial client at a reduced fee may include in the retainer a provision contemplating an application to the court for c…
Can a lawyer refer real estate clients to a title abstract company in which the lawyer's spouse has an ownership interest?
The opinion concluded that a lawyer may not refer a real estate client to a title abstract company owned in whole or part by the lawyer's spouse for anything beyond purely ministerial abstract work; w…
Can a lawyer write a check from the attorney escrow account against a bank or certified check that has been delivered but not yet deposited or cleared?
The opinion concluded that a lawyer may not issue an escrow check drawn against an undeposited or uncleared bank or certified check, because doing so uses one client's cleared funds to cover another c…
In a civil case, can a lawyer interview an independent contractor working for the opposing corporate party without the consent of the corporation's counsel?
The opinion concluded that a lawyer may communicate with an adverse corporate party's independent contractor without opposing counsel's consent unless the contractor has personally retained counsel in…
After mediating a divorce, can the lawyer-mediator draft and file the separation agreement and divorce papers for both spouses as joint clients?
The opinion concluded that a lawyer-mediator may draft and file the separation agreement and divorce papers for both spouses only when the mediation has fully succeeded, the parties are fully informed…
Does a lawyer, including a legal aid organization, have to tell the client about a significant error that could support a malpractice claim, and might the lawyer have to withdraw?
The opinion concluded that a legal services organization is held to the same ethical standards as any other law office, so it must report to the client a significant error or omission that may give ri…
Can a law firm pay a non-lawyer employee a percentage of the fees from matters the employee referred, now that the rule allows profit-sharing compensation?
The opinion concluded that the 1999 amendment letting a firm compensate non-lawyer employees on a profit-sharing basis does not allow paying an employee a percentage of fees attributable to matters th…
Can a lawyer whose firm has several associates practice under a name like 'The [Surname] Group'?
The opinion concluded that a lawyer named X whose firm includes a number of associates may practice as 'The X Group,' because the word 'group' simply signals that the named lawyer practices with other…
Can a lawyer who represents lenders or borrowers in real estate deals pay the firm's employees to steer those clients to a title insurance agency the lawyer owns?
The opinion concluded that a lawyer may not compensate the firm's employees for soliciting clients or other parties to engage a title insurance agency the lawyer owns, because the lawyer could not eth…
Can a plaintiff's lawyer agree, as part of a settlement, to broad confidentiality terms that would effectively keep the lawyer from representing other clients against the same employer?
The opinion concluded that a lawyer may not agree to settlement confidentiality terms so broad that they would restrict the lawyer from representing future clients by barring use of information not pr…
Can a lawyer charge a contingency-fee client interest on disbursements the lawyer advanced on the client's behalf?
The opinion concluded that a lawyer may charge interest on unpaid disbursements in a contingency fee case, even when the lawyer did not borrow the advanced funds, provided the client is told in advanc…
Can a municipality's lawyer at a General Municipal Law 50-h hearing warn a pro se claimant who faces related criminal charges that the testimony could be self-incriminating?
The opinion concluded a municipal lawyer must first confirm the claimant is not being advised by counsel about the hearing before communicating directly; if the claimant is unrepresented on that subje…
Can a lawyer take personal injury referrals from an accounting firm and let the firm collect its own contingent fee from the same client's recovery?
The opinion concluded the arrangement is prohibited: capping the legal fee so the accounting firm can take a separate contingent fee for unsought services gives the firm something of value for referra…
Can salaried lawyers employed by an insurance company to defend its policyholders call themselves a law firm on letterhead and business cards?
The opinion concluded they may hold themselves out as a law firm only if they actually take on the professional responsibilities the Code imposes on firms and they clearly disclose in their public com…
Can an assistant district attorney prosecute a case before a Town Justice who is the prosecutor's sibling, and can other lawyers in the office appear before that judge?
The opinion concluded the assistant DA may not appear before a sibling Town Justice and must take steps to secure the judge's recusal, but other lawyers in the DA's office may appear before that judge…
If a lawyer keeps a client's original will, does the lawyer have to track the client's death and file the will, and may the lawyer tell the executor it exists?
The opinion concluded a lawyer has no duty to keep a client's will or to learn of the client's death or file the will absent agreement, but if the lawyer is holding the original after the client dies …
When a lawyer moves to a new firm, when is the lawyer (and the new firm) barred from handling matters adverse to a client of the old firm?
The opinion concluded that, absent the former client's consent, a moving lawyer may not take on a matter adverse to a former client if the lawyer personally represented the client or acquired relevant…
Can a lawyer put a certification from a non-legal professional organization, like AICP planner certification, on the firm letterhead?
The opinion concluded a lawyer may note membership in a professional organization on letterhead, but if the certification implies certification in a legal field it must comply with DR 2-105(C), meanin…
Can an insurance defense lawyer follow the carrier's requirement to use a designated outside legal research firm, and submit the insured's briefs to the carrier's brief bank?
The opinion concluded defense counsel may follow a carrier's direction to use a designated research service if the lawyer reviews the work and effective representation is not diminished; the firm's us…
When a lawyer moves to a new firm, what client information may the lawyer disclose so the new firm can run conflict checks?
The opinion concluded the new firm must seek, and the moving lawyer may disclose, the names of the lawyer's clients and (depending on the old firm's size) the old firm's clients for a reasonable perio…
Can a matrimonial lawyer use a retainer agreement where the client consents in advance that listed grounds, including nonpayment, let the lawyer withdraw?
The opinion concluded the proposed agreement was improper because it misled the client about the lawyer's right to withdraw: it implied an absolute right to withdraw on listed grounds and omitted DR 2…
Can a legal aid office share data pulled from clients' mental health evaluations with a bar association committee for a statistical study without getting client consent?
The opinion concluded the office may provide extracted information for a statistical summary only if it is in a form that no recipient could link to a particular client; if any client could be identif…
When a settlement check arrives, must the lawyer pay the client's medical providers directly, and what happens if a lienholder is out of business?
The opinion concluded the lawyer must pay a provider directly when it has an undisputed valid lien or assignment, must hold disputed funds (while disbursing undisputed funds) when the client contests …
Can an insurance defense lawyer send the insured's legal bills to an outside auditor hired by the insurance carrier without the insured's consent?
The opinion concluded a lawyer may not submit an insured's legal bills to an independent audit company employed by the carrier without the insured's informed consent, because the billing records conta…
Can a solo lawyer take on contract or project work from several different law firms, and must the firms tell their clients a contract lawyer is doing the work?
The opinion concluded a lawyer may work as a contract lawyer for one or more firms; DR 5-105 and DR 5-108 apply to the lawyer personally, and whether the firm's vicarious disqualification under DR 5-1…
Can a lawyer who is called to testify as a fact witness about a former representation charge the client an hourly fee for preparing and testifying?
The opinion concluded that, assuming the payment is legal, a fully informed client may agree to pay a lawyer-witness reasonable compensation for lost time, ordinarily up to the lawyer's customary hour…
Must a lawyer follow a client's instruction to skip title searches the lawyer recommended, and what are the lawyer's options if the lawyer disagrees?
The opinion concluded the lawyer should follow the client's lawful instruction to forego title searches once the client is fully informed of the consequences; the decision belongs to the client, and t…
When parties dispute escrowed funds and the escrow agreement has no release or dispute clause, may the lawyer-escrow agent just return the funds to the lawyer's own client?
The opinion concluded no: absent all parties' authorization, the lawyer-escrow agent may not release the funds except as the escrow agreement provides; the lawyer may resign but must protect the funds…
Can a New York lawyer run and advertise a trademark practice over the Internet, communicate with clients by unencrypted e-mail, and operate under a trade name?
The opinion concluded a lawyer may operate and advertise a trademark practice on the Internet and ordinarily may use unencrypted e-mail for client confidences, subject to conflict checks, advertising …
Can a lawyer who represents a foster care agency in terminating parental rights then represent the prospective adoptive parents who want to adopt that child?
The opinion concluded no: a lawyer representing a foster care agency in surrender or termination-of-parental-rights proceedings may not represent the prospective adoptive parents either at the same ti…
Can a lawyer who is narrowing the fields he or she practices in sell off just the part of the practice the lawyer is dropping?
The opinion concluded no: DR 2-111 lets a lawyer sell a practice only on retiring from private practice in the geographic area, so a lawyer may not sell one portion of a practice and keep practicing i…
Can a law firm host a holiday party just for the local judges and their law clerks, with only the firm's own lawyers as the other guests?
The opinion concluded no: a party targeted at the judiciary whose only other guests are the firm's lawyers creates an appearance of impropriety and is barred by DR 7-110(A) and Canon 9, even though or…
Can a lawyer take property-tax cases referred by a non-attorney tax reduction company, and be paid a percentage of the company's contingent fee?
The opinion concluded a lawyer may accept such cases where the property owner authorized the company to engage counsel, but not where doing so aids the company's unauthorized practice of law; the lawy…
If a judge is disqualified because a relative or the relative's law firm appears before the judge, can the judge accept the parties' remittal and stay on the case?
The opinion concluded that a judge disqualified because a fourth-degree relative is acting as a lawyer may accept the parties' remittal and continue to sit; whether the appearance of the relative's pa…
Can a lawyer who serves on a county legislature still practice criminal defense in that county if the lawyer abstains from voting on the DA's budget and discloses that?
The opinion concluded no: abstaining from votes on the district attorney's budget and disclosing the intent to abstain does not cure the bar on a lawyer-legislator practicing criminal law where the le…
Can a lawyer who is regularly co-counsel with a part-time judge appear before other judges of that judge's court in unrelated cases?
The opinion concluded the lawyer may appear before other judges of the part-time judge's court only if their relationship does not make them 'partners,' 'associates,' or 'connected in the law business…
What should a lawyer do after an adversary law firm's former employee calls unsolicited to report that the firm altered documents?
The opinion concluded the lawyer may not question the former employee further to extract the adversary's confidences, and where the tip suggests fraud the opposing firm may be assisting, the lawyer sh…
Can a newly-elected judge sell the judge's old law practice for a price tied to how much the buying firm later collects from those former clients?
The opinion concluded no: while a judge may sell a law practice under DR 2-111, a price contingent on the buyer's future success in keeping the former clients would induce the judge to help the firm r…
Can a lawyer take a medical malpractice case from a consultant who demands a contingent consultant's fee as the price of bringing the case, and can the two contingent fees together exceed the statutory cap?
The opinion concluded a lawyer may not take a case conditioned on agreeing to a consultant's contingent fee, and that a consultant's contingent fee combined with the lawyer's may be excessive, especia…
Does a lawyer have a conflict of interest when the lawyer is a beneficiary of a trust that owns stock in companies that turn out to be clients or opponents of the firm?
The opinion concluded that ordinarily there is no conflict and no disclosure duty, because such a financial interest only rarely could reasonably affect the lawyer's professional judgment; only in the…
Can a lawyer who is also a licensed insurance broker sell long-term care insurance to the lawyer's own estate-planning clients?
The opinion concluded no: a lawyer may not sell long-term care insurance to a client the lawyer represents in estate planning, because advice about that insurance is central, not tangential, to the re…
What must a multi-state law firm's New York letterhead and business cards disclose about which lawyers are admitted in New York?
The opinion concluded that a firm's New York letterhead need not name its individual lawyers or a supervising partner, but for any named lawyer carrying a New York address who is not admitted in New Y…
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Legal ethics opinions from the New York State Bar Association 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.