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Can a New York lawyer still help clients comply with the state's medical marijuana law after the federal Cole Memo was rescinded, given that marijuana remains illegal under federal law?
Yes. The opinion reaffirms N.Y. State 1024 and concludes that, given the Rohrabacher Amendment and current federal enforcement forbearance, Rule 1.2(d) permits a lawyer to assist a client in conduct d…
Can a New York lawyer put a small amount of the lawyer's own money into a trust or escrow account to stop the bank from closing it for inactivity, without it being improper commingling?
Yes. The opinion concludes that Rule 1.15(b)(3) lets a lawyer deposit own funds reasonably sufficient to maintain the account or cover bank charges; only amounts beyond what is reasonably sufficient r…
If a criminal defendant wants to withdraw a guilty plea even though the motion is unlikely to succeed and could lead to a harsher sentence, must the lawyer follow the client's decision?
Yes. The opinion concludes that the plea decision belongs to the client under Rule 1.2(a); once the lawyer explains the material risks and low chance of success under Rule 1.4, the lawyer must abide b…
Can lawyers at the same firm file amicus briefs on opposite sides of the same issue before the same court?
Not when the lawyers are representing clients (including firm lawyers as clients), because Rule 1.7(b)(3) bars one firm from being on both sides of a proceeding and that bar is imputed firm-wide; but …
Can a lawyer admitted in New York but practicing only at an out-of-state firm with no New York office list the New York admission on the firm's letterhead?
Yes. The opinion concludes a New York lawyer admitted in another state may list the New York admission on out-of-state letterhead even without a New York office, as long as the lawyer discloses to cli…
Can a retiring lawyer who hands over clients' wills to another attorney collect a referral fee when those wills turn into estate work?
Only if the retiring lawyer assumes joint responsibility for the new representation under Rule 1.5(g), which requires keeping active attorney registration; a lawyer in 'retired' status or who has resi…
Can a lawyer run client funds through an attorney escrow account to help a foreign client get money out of a country in a way that evades that country's currency controls?
No. The opinion concludes the proposed escrow arrangement is a sham designed to disguise the transfers and deceive authorities, so it involves dishonesty, fraud, and deceit barred by Rule 8.4(c); the …
Can a part-time village attorney defend private clients on traffic and criminal charges in the same town court where fines from village offenses are shared with the village?
Yes, if the village attorney does not represent the village in those courts and the financial overlap is managed. The opinion holds the fine-sharing formula can create a Rule 1.7 differing-interests r…
Can a lawyer keep a private practice while serving as town supervisor, and represent private clients located in or appearing before the town?
Yes, subject to other law, but the opinion holds the lawyer may not represent any private client in a matter involving the town, may not act officially on matters handled privately, may not negotiate …
Can a lawyer buy a firm wholly owned by another lawyer who keeps practicing elsewhere, and keep using that lawyer's name on the firm?
Yes. The opinion concludes a lawyer with a pre-existing, bona fide affiliation may purchase the firm under Rule 1.17, that the seller is 'retired' once he stops practicing in the firm's geographic are…
Can a solo lawyer name the firm using only the lawyer's middle and last names, even if it might look like two lawyers?
Yes. The opinion concludes a lawyer who practices under the lawyer's full surname may drop the first name and use a firm name of the middle and last names, because that minor variation of the lawyer's…
If a lawyer runs both a law firm and an IP consulting company, which ethics rules apply, and can the lawyer share ownership or fees with non-lawyers and a foreign lawyer?
The opinion concludes that where the consulting services are not distinct from the legal services, the Rules govern the whole operation: the lawyer may share fees with a qualifying foreign lawyer but …
Can a lawyer take disputed fees out of the client's escrow funds, add interest, and hold back a cushion for possible fee litigation?
No. The opinion concludes a lawyer may not remove from the trust account any amount the client disputes, may charge interest on an unpaid bill only if the written fee agreement provided for it, and ma…
Must a lawyer delete backup copies of a former client's data on request, and can the lawyer first require a release or indemnity?
The opinion concludes a lawyer generally may keep copies of client-owned documents, but that interest can yield to a legitimate destruction request (here, a settlement requiring it); the lawyer may re…
What must a lawyer do when a former client defaults on a settlement, the lawyer can't find the client, and opposing counsel threatens a motion?
The opinion concludes the lawyer may tell opposing counsel and the court that the lawyer no longer represents the client if both the representation and the court matter ended; if either is still open,…
Can a lawyer who runs or works with an R&D tax-credit business pay or receive referral fees from lawyers and from the business?
The opinion concludes a lawyer's own tax-credit firm may not pay lawyer referral fees unless Rule 1.5(g) or 7.2 allows it; a lawyer employed by a non-lawyer-owned tax-credit firm may take a referral f…
Can a lawyer who drafted a real estate contract hand it to the client's broker without the client's consent, and does the lawyer's own interest in withholding it create a conflict?
No to disclosure without consent. The opinion concludes a lawyer-drafted sale contract is confidential information the lawyer must protect absent the client's informed consent, and the lawyer's own pe…
Can a New York lawyer affiliate and share fees with a New York resident who is admitted only in another state but in New York federal courts, purely to bring in New York clients?
The opinion concludes the arrangement is improper if the other lawyer's soliciting clients, sharing fees, and other activities would, as a matter of law, be the unauthorized practice of law; a federal…
After a solo lawyer dies and the firm is dissolved, can the lawyer who took over the cases pay part of the fees to the deceased lawyer's estate?
Only in narrow circumstances. Because an estate is a nonlawyer, fees may go to it only under a Rule 5.4(a) exception, chiefly to compensate for legal services the deceased actually rendered before dea…
Can a government lawyer look for outside work, and later take a job, advocating to change the very laws the lawyer helped administer?
Generally yes. The Rules do not bar a government lawyer from organizing or later joining a law-reform project, subject to protecting confidential information, avoiding personal conflicts under Rule 1.…
Can a New York lawyer who is also a licensed engineer run both practices in one entity, name the firm after the engineering work, and avoid the Rules for the engineering clients?
A lawyer-engineer may run both practices in one entity from one office, but the firm name may not reference the engineering practice. Because engineering is distinct from legal work, the lawyer can ke…
Can a New York divorce lawyer take a mortgage on the client's house to secure unpaid legal fees without going back to the court?
Not on the lawyer's own. A fee mortgage in a divorce matter must satisfy both Rule 1.8(a) (a fair, fully disclosed business transaction with the client) and Rule 1.5(d)(5)(iii), which requires a signe…
Can a New York lawyer also work as a financial planner for the same clients, advertise the planning service, and take referral fees from investment firms?
A lawyer may provide both legal and financial-planning services if no significant conflict exists, but may not take brokerage commissions on products bought by legal clients, which is a nonconsentable…
Can a lawyer the insurance company assigned to defend an insured withhold information from the insured to protect the insurer's financial interests?
No. The insured is the client, and the lawyer's duties under Rules 1.2(a) and 1.4 to communicate fully cannot be limited to protect the paying insurer; doing so would be the interference Rule 1.8(f) f…
Can a county attorney also sit on, and chair, the board of a county-sponsored community college that the county attorney's office represents?
If no law bars the dual roles, the lawyer may serve only after assessing, each time the county's and college's interests overlap, whether the board role creates a significant Rule 1.7 risk; a disquali…
Can a New York lawyer name the firm using only a first name, like 'The Jane Law Firm,' to stand out from other firms sharing the surname?
Under the rule the committee applied, no: a firm name had to include a lawyer's surname, so a first-name-only name was an impermissible trade name. The first name could still be used as branding, and …
Can a lawyer working a non-legal job sign an employer's non-solicitation agreement that could be read to restrict practicing law after the job ends?
No, if the clause restricts the lawyer's right to practice law after the job, Rule 5.6(a)(1) bars it even though the job is not legal work. The lawyer may sign if the clause is expressly made subject …
Can a real estate lawyer and a spouse who is a real estate broker send each other client referrals?
Yes, with limits. The lawyer may take referrals from the broker spouse only if the spouse is uninvolved in the transaction and follows the lawyer-solicitation rules, and may refer clients to the spous…
Can a government lawyer who pays union dues as an agency-shop member prosecute discipline cases against employees that union represents?
Yes, unless in a given matter a reasonable lawyer would find a significant risk that agency-shop status would impair the lawyer's judgment for the agency. If such a risk exists, the lawyer may still a…
Can a former county social-services lawyer go into private practice and oppose that same agency, including in support-enforcement cases?
Yes, unless the lawyer was personally and substantially involved in, or holds confidential information about, the same specific matter while in government service. Rule 1.11(a)'s narrow same-matter te…
Can a lawyer admitted only in another state use 'Esq.' in New York and call themselves a lawyer when doing pro bono immigration work here?
Yes, with care. A lawyer not admitted in New York may use 'Esq.' on a non-legal-job business card if the card does not suggest the person practices law in New York, and may call themselves a lawyer fo…
Can a lawyer agree to be paid for a client's criminal defense out of the client's personal injury recovery in another matter the same firm handles?
Yes, if the lawyer complies with Rule 1.8(a). Securing hourly criminal fees against a personal injury recovery is a permitted Rule 1.8(i) contract lien, but it is a business transaction creating diffe…
Can a lawyer represent a client in a lawsuit financed by a litigation-funding company in which the lawyer is an investor?
No. Even with disclosure and consent, the lawyer's investment routes financial assistance to the client and gives the lawyer a proprietary interest in the claim, violating Rules 1.8(e) and 1.8(i); tho…
Can a lawyer limit how and when a difficult client communicates, and when may the lawyer withdraw?
Yes. A lawyer may set reasonable time-and-manner limits on client communications, such as scheduled appointments or writing, as long as the substantive duties of Rule 1.4 are met. If communication bre…
Can a lawyer appointed individually as a foreclosure referee deposit sale proceeds into the law firm's IOLA account?
Yes. Serving as a foreclosure referee is incident to the practice of law, so Rule 1.15 applies. The attorney/referee may deposit third-party sale proceeds into the firm's IOLA or special account, or o…
If a lawyer keeps a client's file electronically, must they print it on request, and who pays?
The lawyer must take reasonable measures to deliver the file in a form the client can actually access, printing it when the client cannot use the electronic version, but the lawyer may charge the clie…
When a law school clinic and a legal services group serve as co-counsel, must they clear conflicts across all their clients?
No. Separate firms acting as co-counsel on particular matters are not 'associated in' one firm under Rule 1.10, so they must clear conflicts only for the shared co-counsel matters, not across all thei…
Can a law firm draft a will for an expert it regularly calls to testify for its clients, and must it disclose that relationship?
Yes, and generally no disclosure is required. Drafting a will for a treating provider the firm calls as a witness does not create a disqualifying conflict, and the firm need not volunteer the relation…
Can a law firm amend its retainer mid-case to secure unpaid fees with a confession of judgment and a mortgage?
Yes, if it complies with Rule 1.8(a). Securing accrued, fixed-amount fees by a confession of judgment and collateral mortgage during a pending matter is a business transaction with differing interests…
Can a lawyer use an English translation of their own surname as the firm's name?
Under the rule the committee applied, no: a solo admitted under an actual surname could not use an English translation of that surname as the firm name, because it was a trade name and was misleading …
Can a solo principal call the firm 'A & Associates' when the only other lawyers are 'of counsel'?
Yes. A firm with one principal and two properly designated 'of counsel' lawyers may call itself 'A & Associates,' because 'of counsel' lawyers are 'associated' with the firm, so long as those lawyers …
Can a law firm sponsor parties, sporting events, or raffles to promote its name?
Yes. Sponsoring receptions, sporting events, and raffles is permissible branding outside the advertising rules if the primary purpose is name recognition. The firm may not use those occasions for in-p…
Can a lawyer who is also a CPA make unsolicited cold calls offering accounting services that overlap with legal work?
No. When the accounting services are not distinct from the lawyer's legal services, Rule 5.7(a)(1) makes all the Rules apply, including Rule 7.3's ban on in-person and telephone solicitation of strang…
Can a divorce lawyer's retainer authorize charging the client's credit card for bills left unpaid?
The committee cannot say; it turns on a question of law. Rule 1.5(d)(2) bars a fee prohibited by law or court rule, and whether a credit-card authorization is a 'security interest' under 22 NYCRR 1400…
May a lawyer who took custody of another lawyer's client files solicit those clients for legal work?
Yes. A lawyer who holds a prior lawyer's client files only as a custodian, not through a sale of practice, may offer legal services to those clients if the lawyer reviews the files only as needed to f…
Can a New York lawyer pay Avvo Legal Services' marketing fee to participate in the program?
No. Avvo's marketing fee is an improper payment for a recommendation under Rule 7.2(a). By advertising its ratings as identifying 'the right' lawyer, touting participants as 'highly qualified,' and ba…
Can a lawyer pay a for-profit online service a flat fee for leads to potential clients?
Yes. A lawyer may pay a for-profit lead service for client leads if the service picks lawyers by transparent, mechanical methods, does not analyze the client's problem or recommend any lawyer, and its…
Can a lawyer represent a private applicant before a town planning board when partners in the same firm serve as the town's attorney?
No. This is a nonconsentable concurrent conflict. When firm lawyers serve as Town Attorney and Deputy Town Attorney advising the planning and zoning boards, no lawyer in the firm may represent an appl…
Can a New York law firm send an educational newsletter to a broad audience, and accept payment from a real estate brokerage to offset the cost?
Yes to both, with limits. An educational newsletter is not advertising and may go beyond current and former clients; if it primarily promotes the firm it is advertising and must meet Rules 7.1 and 7.3…
When a lawyer takes over a deceased lawyer's cases, may the lawyer pay the deceased lawyer's estate a share of the fee, and how may fees be split if the case is referred to a third attorney?
The lawyer may pay the estate only the portion of the fee that fairly represents legal services the deceased lawyer actually performed; paying for a bare referral, where the deceased did no work, is a…
When a law firm receives a settlement check covering the client's money, a referral fee, a staff bonus, and the firm's own fees, which payments must come out of the attorney trust account, and how fast?
Money in which a client or third person has an ownership interest must be paid from the trust (Special) account; money owed to someone who has only a claim against the lawyer may be paid from either t…
May a lawyer who drafted a couple's trust tell the beneficiaries that the surviving spouse, as trustee, misappropriated the trust assets, when the lawyer learned this from the successor trustee who consulted as a prospective client?
No. The successor trustee was a prospective client, so the lawyer owes her the same confidentiality owed to a former client under Rules 1.18 and 1.9. The information is confidential and no exception i…
Does a lawyer have to respond to a query from the disinherited son of a deceased client, who is neither a client nor a party to the will, asking the lawyer to confirm she drafted it?
No. The New York Rules impose no general duty to communicate with third parties, only two narrow exceptions that do not apply here. The lawyer has no obligation to respond to the son, and disclosing t…
Must a lawyer follow opposing counsel's instructions to communicate only in writing and to copy opposing counsel's client on every message?
No. A lawyer may communicate with opposing counsel in any manner he chooses, though opposing counsel need not respond to that method. With opposing counsel's prior consent, a lawyer may, but is not re…
If a divorce lawyer learns after the judgment that the client omitted a material asset from a sworn Statement of Net Worth, must the lawyer do anything about it?
Yes. The lawyer must take reasonable remedial measures that are still available, even after the case has ended, starting by urging the client to correct the statement. If the client refuses, the lawye…
Can a family-law attorney who serves as a foster parent keep representing children and other parties in Family Court proceedings in the same county where the social services department runs the foster care system?
Yes, in general. Usually the foster-parent role poses no significant risk to the lawyer's judgment, so no consent is needed. But where a reasonable lawyer would see a significant risk that the foster-…
Can a company's in-house counsel hand over the attorney-fee portion of an insurance arbitration award to the company employer without it being improper fee sharing?
Yes. Because New York no-fault insurance law entitles the prevailing claimant, not the attorney, to the fee award, the in-house lawyer may sign the fee portion over to the company without violating th…
Does a government agency lawyer satisfy the duty to report another agency lawyer's misconduct by reporting it to the agency's internal ethics office?
Reporting to the internal ethics office is consistent with Rule 8.3, but it does not by itself discharge the duty unless that office is a tribunal or an authority empowered to investigate or act. The …
Can a lawyer in the firm where the newly elected district attorney was once a partner represent criminal defendants the DA's office is prosecuting?
Yes, if the district attorney has fully severed ties with the firm and a reasonable lawyer would not find a significant risk that the prior relationship will adversely affect the lawyer's judgment. If…
Can a lawyer disclose a client's confidential information, such as billing time sheets, to support a fee claim in a fee dispute?
Yes, a lawyer may disclose confidential information reasonably necessary to establish or collect a fee, but must take all reasonable measures, such as redaction or seeking the court's guidance, to lim…
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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.