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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Can a lawyer interview an expert witness retained by the opposing party without the consent of opposing counsel?
The opinion concluded that a lawyer may communicate ex parte with an adversary's retained expert witness without opposing counsel's consent, because the expert is a non-party witness and not a 'party'…
Can a lawyer who represents a party in a real estate deal also act as agent for the title insurer and keep part of the title insurance premium?
The opinion concluded that a real estate lawyer may also act as title-insurance agent and share in the premium only if the arrangement is legal, no prohibited conflict exists, all parties consent afte…
When a lawyer holds a real estate contract deposit as escrow agent, does the lawyer have to put the money in an interest-bearing account?
The opinion concluded that a lawyer holding a contract deposit as escrow agent should, where the amount and holding period would warrant it for client funds, recommend that the parties include instruc…
Must a New York judge recuse when a party is represented by a lawyer who once represented the judge?
The opinion concluded that there is no per se rule; whether the judge must recuse turns on whether the judge's impartiality might reasonably be questioned under Code of Judicial Conduct Canon 3C(1), w…
When may a New York district attorney or assistant DA attend a political party's functions?
The opinion concluded that a district attorney who is not involved in his own re-election campaign may attend a political party's political or social functions, as a paying or invited guest, only in l…
Can a New York lawyer in a malpractice case recommend a medicolegal consulting service paid on a contingent fee and guarantee that fee?
The opinion concluded that it is improper for a lawyer to shift work normally performed by lawyers to a medicolegal consulting service paid on an added contingent fee, but a lawyer may recommend and g…
Can a New York lawyer who is attorney for the town's zoning and planning boards also serve as a town justice?
The opinion concluded that an attorney serving by town-board appointment as counsel to the zoning board of appeals and the planning board may not also serve as a town justice, because litigants could …
Must a New York lawyer deposit a refundable advance fee in a client trust account, and who keeps the interest it earns?
The opinion concluded that advance payments of legal fees, refundable to the extent not earned, need not be treated as client funds or deposited in a trust account, and any interest earned may be reta…
Must a New York lawyer tell a client that a small estate can be settled without a lawyer?
The opinion concluded that a lawyer consulted about a small estate should determine whether it qualifies for the simplified procedure under Article 13 of the Surrogate's Court Procedure Act and fairly…
Can a New York district attorney attend a political party's functions when not running for re-election?
The opinion concluded that a district attorney not running in his own re-election campaign may not attend the political or social functions of any political party, as either a paying or invited guest,…
Must a New York lawyer holding funds under a retaining lien sue the client to resolve a disputed fee?
The opinion concluded that a lawyer holding funds under a retaining lien need not sue the client to resolve a fee dispute, provided the lawyer has zealously tried to settle it short of litigation and …
Can a New York law firm pay to be the recommended firm in a real estate broker's homebuyer brochure?
The opinion concluded that a law firm may not pay to be listed as the recommended firm in a real estate broker's brochure; paying a third party to recommend the lawyer's services is prohibited by DR 2…
Can a New York lawyer hire a marketing firm to solicit clients for a prepaid legal plan and pay it a share of the legal fees?
The opinion concluded that a lawyer may not employ and compensate a public relations or marketing firm to solicit clients for the lawyer's prepaid legal services; paying a third party to recommend or …
Is a special district attorney appointed for one case subject to the same restrictions on private criminal defense work as a regular part-time prosecutor?
The opinion concluded that a special district attorney appointed under County Law section 701 is sui generis, not a part-time prosecutor, so the per se limits on private criminal practice do not apply…
Can a New York lawyer advertise a discount off customary fees to a civic group or the public for a limited time?
The opinion concluded that a lawyer may offer and advertise a discount from customary fees, but only where the customary fee is reasonably ascertainable and is actually the fee the lawyer charges for …
What can a New York lawyer do when a client says he intends to commit a future crime?
The opinion concluded that the lawyer may never further the client's criminal purpose and should try to persuade the client to abandon it; the lawyer may withdraw, and must withdraw if continuing woul…
Can a New York law partner sell part of his partnership interest, including a share of future fees, to an incoming partner?
The opinion concluded that a lawyer may not sell an interest in an ongoing law practice itself; selling tangible assets is permissible, but transferring the right to represent the firm's clients for a…
Can one lawyer keep defending two co-defendants in a malpractice case when one of them refuses consent to the joint representation?
The opinion concluded that where one co-defendant may have a cross-claim against the other, the lawyer may not represent both without each client's informed consent; if a client has specifically asked…
Can a law school alumni association publish a directory of its lawyer graduates by location and practice area and answer phone inquiries about it?
The opinion concluded that an alumni association may publish and publicize such a directory if it conforms to the advertising rules, but listed New York lawyers may identify areas of law they practice…
May an incumbent New York judge be shown wearing judicial robes in campaign literature?
The opinion concluded that an incumbent judge may be depicted in judicial robes in campaign literature, modifying the earlier flat prohibition; following ABA Informal Opinion 1450, the controlling pri…
Can a lawyer form a firm with an accountant to provide tax legal and accounting services, share legal fees, and use a joint letterhead?
The opinion concluded that a lawyer may not form a firm with a nonlawyer accountant to provide legal services (it aids the unauthorized practice of law and is a barred partnership with a nonlawyer), m…
Can a lawyer who is also a title insurance agent advertise that fact in the yellow pages under both the title-agent and lawyer headings?
The opinion concluded that a lawyer authorized to issue title insurance may list that fact under the 'title company and agent' heading in the yellow pages and may note the authority in his 'lawyers' l…
When a lawyer jointly represents two partners and one tells the lawyer something in confidence, can the lawyer reveal it to the other partner?
The opinion concluded that, absent express or implied consent, a lawyer jointly representing two clients may not disclose to one a confidential communication from the other relating to the representat…
Can a New York lawyer put short-term or nominal client funds in a pooled interest-bearing account that funds legal services for the poor?
The opinion concluded that a lawyer may participate in the statutory IOLA program by depositing client funds that are nominal in amount or held for a short time, where the funds would not earn net int…
Can a lawyer lend a matrimonial client money to bid on the marital home being sold under an equitable distribution decree?
The opinion concluded that a lawyer may not lend or guarantee a loan to a client to let the client bid on marital property being sold under an equitable distribution decree; such a loan is prohibited …
Can a district attorney who is not running for reelection publicly endorse a candidate to succeed him?
The opinion concluded that a district attorney who is not a candidate for reelection may publicly endorse a successor candidate, as a limited exception to the rule against prosecutors' partisan politi…
Can an 18-B assigned lawyer represent the same indigent client in unrelated paying matters during or after the assignment?
The opinion concluded that an 18-B assigned lawyer may represent the former client for a fee on unrelated new matters after the assignment ends (first checking continued 18-B eligibility), but may not…
Can a lawyer take a mortgage, or a deed, on the client's property to secure payment of the lawyer's fee?
The opinion concluded that a lawyer may take a mortgage to secure a fee, subject to conditions (a proper fee, no quantum meruit basis for future fees, no undue pressure, restraint on foreclosure, and …
Can a lawyer who is a principal of a collection agency accept client referrals from it and refer clients to it?
The opinion concluded that, assuming no violation of the law against solicitation and full disclosure to the clients of the lawyer's relationship to the collection agency, a lawyer who is a principal …
Is a judge disqualified when a lawyer appearing before the judge is married to the judge's confidential law clerk?
The opinion concluded that neither the judge nor the practitioner-spouse is disqualified per se, so long as the law-clerk spouse is screened from the case; the law-clerk spouse, however, must disclose…
Can a lawyer pay a non-expert witness for time spent preparing for trial, not just for attending or testifying?
The opinion concluded that a lawyer may pay a non-expert witness reasonable compensation for lost time, including time preparing for trial, so long as the payment is not contingent on the content of t…
Can a law firm list a part-time branch office on its letterhead?
The opinion concluded that a firm may list a branch office staffed only part of the month on its letterhead only if it actually provides minimum services there, otherwise it must add a disclaimer noti…
If a real estate client insists on signing a transfer report that understates the purchase price, must the lawyer withdraw?
The opinion concluded that a lawyer may not assist a client in conduct the lawyer believes to be illegal, must try to dissuade the client, and must withdraw from the representation if the client persi…
Can a part-time local government attorney who prosecutes ordinance violations also defend criminal cases privately?
The opinion concluded that a part-time local attorney may take private criminal defense work only if the conduct he prosecutes for the locality includes no Penal Law or other state-statute offenses an…
Can a lawyer who serves as a tax-assessment hearing officer, or others in his firm, represent private clients in those same proceedings?
The opinion concluded that a lawyer serving as a small-claims real property tax assessment hearing officer, and the lawyers in his firm, may not represent private clients in tax-assessment matters in …
Can a British law firm open a New York office run by one of its members who is admitted to the New York bar?
The opinion concluded that a British solicitors' firm may open a New York office managed as resident partner by a member admitted to the New York bar, because a lawyer admitted in another jurisdiction…
Can a judge hear cases involving a law firm the judge is negotiating with for future employment?
The opinion concluded that a judge may not hear matters in which a law firm the judge is negotiating with for private employment appears, and even after the judge declines a firm, the prior negotiatio…
Can a lawyer mail bar association 'Know Your Rights' pamphlets to clients and non-clients and mention them in advertising?
The opinion concluded that a lawyer may distribute the New York State Bar Association's 'Know Your Rights' pamphlets in a general mailing to clients and non-clients and may mention their availability …
Can a lawyer advertise examples of past case results and the dollar amounts recovered?
The opinion concluded that, as a general rule, a lawyer may not advertise results obtained in prior cases, including selected examples with recovery amounts, because such claims are unverifiable and t…
Can a New York firm list a foreign correspondent or associated firm on its letterhead?
The opinion concluded that a New York firm may not list a foreign 'correspondent,' 'associated,' or 'affiliated' firm on its letterhead, because those terms have no settled meaning and are misleading …
Can a prosecutor campaign for other candidates while running for re-election?
The opinion concluded that a prosecuting attorney may not actively campaign for other candidates for public office, even during the year the prosecutor is himself a candidate for re-election.
Can lawyers run a financial planning company from their law office and take its customers as legal clients?
The opinion concluded that members of a law firm may operate a financial planning corporation from their law office and accept its customers as legal clients, provided the corporation is not used to s…
Can a lawyer who made a fee-sharing referral agreement that violates the Code keep the whole fee and refuse to pay the forwarding lawyer?
The opinion concluded that a lawyer may not keep the entire fee by reneging on a fee-sharing agreement in the name of the Code; the matter should go to a bar association panel to set what fee may be c…
After leaving a Legal Aid Society, can a lawyer represent the same indigent clients for a fee in private practice?
The opinion concluded that a former Legal Aid staff attorney may represent prior clients privately, but not for a fee on the same matters they handled at the Society while those clients still qualify …
Can a public defender's office handle an appeal arguing that its own former lawyer gave ineffective assistance at trial?
The opinion concluded that no, where an appeal must attack the competence of trial counsel from the same public defender's office, the office is disqualified, and the fact that several lawyers work th…
Can a lawyer who serves as escrow agent keep the interest earned on the escrowed funds as payment for handling the escrow?
The opinion concluded that a lawyer acting as escrow agent may not accept or seek the interest earned on escrowed funds as compensation; the committee found such an arrangement per se improper given t…
If a lawyer on a bar rehabilitation committee learns of another lawyer's misconduct during counseling, must they report it to disciplinary authorities?
The opinion concluded that members of a bar rehabilitation committee are not obligated to report misconduct learned while counseling a lawyer for drug or alcohol abuse; reporting would destroy the tru…
Can a criminal defense lawyer keep a piece of physical evidence the client says was stolen from a police station?
The opinion concluded that whether the lawyer may retain physical evidence turns on whether the law imposes a duty to surrender it; if the law requires disclosure the lawyer is ethically bound to comp…
Must a lawyer withdraw from representing a fugitive client who refuses to surrender?
The opinion concluded that a lawyer is not required to withdraw merely because a fugitive client refuses to surrender; the lawyer may keep giving legal advice and negotiating surrender, so long as the…
Can a lawyer subpoenaed before a grand jury refuse to reveal a client's whereabouts learned in confidence?
The opinion concluded that a lawyer may refuse to reveal a client's whereabouts so long as a good-faith claim of privilege is raised, and may postpone court-ordered testimony pending timely appellate …
Can a law firm that is itself the plaintiff solicit contributions for its fees and expenses from others interested in the outcome?
The opinion concluded that a law firm suing on its own behalf may not solicit contributions for its fees and expenses from others interested in the issue; soliciting contributions is tolerated only to…
Can the same lawyer serve at once as a part-time assistant district attorney and a probation officer in the same county?
The opinion concluded that no, the prosecutor's role is fundamentally incompatible with the probation officer's role, so one lawyer may not hold both positions in the same jurisdiction; disqualificati…
If someone confesses a crime while trying in good faith to hire a lawyer who already represents an adverse client, what must the lawyer do?
The opinion concluded that the lawyer may not disclose or use the would-be client's confession, must decline that person's retainer, and must withdraw from representing the existing client on that mat…
Can a lawyer donate legal services to a charity to be auctioned off to the highest bidder as a fundraiser?
The opinion concluded that a lawyer may not donate legal services to be auctioned by a charity, because the lawyer cannot exercise independent judgment about accepting the winning bidder as a client a…
Must a lawyer report an adverse party's perjury committed in an earlier case the lawyer had no part in, when reporting would hurt the lawyer's client?
The opinion concluded that a lawyer need not report a non-client's perjury committed in a prior proceeding in which the lawyer's services were not employed, and need not report it where disclosure wou…
Can a lawyer advise a client to refuse a police breathalyzer test?
The opinion concluded that a lawyer may advise a client to refuse a breathalyzer test, because under New York law refusing is not itself criminal, the resulting license revocation is a civil sanction,…
Can a lawyer who holds a deceased client's original will contact the executor or beneficiaries to tell them he has it?
The opinion concluded that a lawyer holding a deceased client's will may notify the executor or beneficiaries that he has it, but may not suggest he be retained for the estate and, if asked, must make…
Can a part-time judge with criminal jurisdiction represent private clients in criminal matters?
The opinion concluded that a part-time judge may engage in private criminal practice to the extent the Rules of the Chief Administrator allow, overtaking the committee's earlier flat ban, because the …
Can an insurance company's salaried staff lawyer defend an insured the company is denying coverage to?
The opinion concluded that once the carrier persists in disclaiming coverage, its staff lawyer may not defend the insured or handle a coverage declaratory-judgment action, because the conflict is so s…
Can a part-time county public defender sue the county that employs him on behalf of private clients?
The opinion concluded that a part-time county public defender may represent private clients in civil litigation against the county, because his clients are indigent defendants rather than the county, …
Browse New York State Bar Association opinions by topic
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.