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 with a passive ownership stake in a real estate brokerage represent a buyer, seller, or lender in a deal where that brokerage is the broker?
No. A lawyer with a substantial passive investment in a closely held real estate brokerage may not represent a buyer, seller, or lender in a transaction in which that brokerage acts as broker; the…
Can a lawyer cut a contingent fee to share it with a non-attorney tax-reduction firm that refers clients, or be retained by that firm to serve its customers?
No. A lawyer may not reduce a contingent fee so the difference flows to a non-attorney tax-reduction firm that refers clients, because that is impermissible fee-splitting (or a cooperative business…
Can a criminal defense lawyer interview a complaining witness who is represented by counsel in a separate, related criminal matter, without that counsel's consent?
Yes. Rule 4.2's no-contact bar protects only a represented party to the matter, and a non-party witness is not a party, so defense counsel may interview the witness without the consent of the lawyer…
Can a New York attorney advertisement portray a fictitious law firm, such as arguing against a made-up opposing counsel?
Yes. An attorney advertisement may portray a fictitious law firm so long as it is not misleading about the association of lawyers in the advertiser's firm. Rule 7.1(c)(2) bars the device only where…
Can a lawyer take part in a home sale where the price is grossed up to match a seller's concession, if every document discloses both the concession and the gross-up?
Yes, but only with full disclosure. A lawyer may participate in a residential sale that grosses up the price to offset a seller's concession only if every document stating the price discloses that…
Can a solo practitioner use her spouse's law firm address and phone number as her own contact information, and does occasionally using the firm's office make her part of the firm for conflicts?
A solo practitioner may not list her spouse's firm address and phone number as her own where the phone is answered in the firm's name, unless she takes steps to dispel the impression that she is…
Can a lawyer offer to refund all legal fees if a traffic or other Vehicle and Traffic Law charge is not dismissed or reduced?
The ban on contingent fees in criminal matters does not reach simple traffic infractions, which the Vehicle and Traffic Law deems noncriminal, but it does reach VTL violations that are misdemeanors…
Is a lawyer who is representing himself, or who is a represented party, bound by the no-contact rule when communicating with an opposing party who has counsel?
Yes. A lawyer who is a party to a matter, whether appearing pro se or represented by his own counsel, is subject to Rule 4.2's no-contact rule. He may not communicate directly with a counterparty he…
When a lawyer serves as a volunteer mediator, must the lawyer disclose to the parties that he or she is a lawyer?
Sometimes. Rule 2.4(b) requires a lawyer serving as a third-party neutral to tell unrepresented parties that the lawyer is not representing them and, where a party does not understand the role, to…
What may a lawyer post on the firm website: former partnership positions in other firms, and favorable quotes from a lawyer-rating publication?
A lawyer may accurately list former partnership positions in other firms in a website biography, and may quote bona fide professional ratings or favorable comments from a ratings publication,…
Can lawyers who belong to two or more law firms avoid imputing each firm's conflicts to the others by screening and limiting one firm's practice?
No. When a lawyer is associated as a partner, associate, or of counsel with more than one firm, all of those firms are treated as one for conflicts, so every firm's conflicts are imputed to all of…
Can a lawyer take a case on a contingent fee when the client has already retained a non-testifying expert who is paid a percentage of the recovery?
Yes. There is no ethical barrier to a lawyer agreeing to a contingent fee where the client has separately retained a non-testifying expert who is also paid a percentage of the recovery, because the…
Can a lawyer who defends criminal cases in town court also take a part-time job prosecuting traffic offenses in the same county?
No. A lawyer who prosecutes traffic and other offenses for a locality represents the people of the state, which is inherently incompatible with defending criminal cases anywhere in New York. The…
Can a lawyer offer a prize as an incentive for people to connect with the lawyer on Facebook, LinkedIn, or other social networking sites?
Yes, assuming the prize offer is not itself illegal. But if the offer's primary purpose is retention of the lawyer, it becomes an advertisement subject to Rule 7.1, and if it is also targeted at…
Can a lawyer use a nickname or an English translation of a foreign first name on business cards and a firm website instead of the name on the Roll of Attorneys?
Yes, as far as the Rules of Professional Conduct are concerned, so long as the name used is not misleading as to the lawyer's identity. But the lawyer must separately comply with the statutes, court…
Can a lawyer who once represented a wife take on the husband in their later divorce, when the prior matter was a different family-court case?
Only with the former client's informed written consent if the two matters are substantially related. They are substantially related when a reasonable lawyer would see a substantial risk that…
Can a lawyer set up a mutual referral arrangement with a debt-reduction company and charge clients a contingent fee based on the debt reduced?
Yes to both, with conditions. A non-exclusive reciprocal referral arrangement with a debt-reduction company is permitted, and the limited relationship here does not make the lawyer 'affiliated' with…
Can a solo lawyer name the practice 'The Smith Tax Law Firm' to show a practice area, and may a solo use the word 'Firm' in the name?
No to the practice area: including an area of law in the firm name (like 'Tax') makes it an impermissible trade name that misleadingly implies an officially recognized category of 'tax law firms.'…
Can one lawyer represent both a corporation and its sole owner when a fraud claim is brought against the owner personally?
Yes, on these facts. Because the president is the corporation's sole shareholder, director, and officer, the two do not have 'differing interests' under Rule 1.7; they are united in prosecuting the…
Can two different lawyers at the same firm represent both the mortgage lender and the seller in the same residential real estate closing?
Only in limited circumstances. The representation always involves differing interests under Rule 1.7(a)(1), so the firm may proceed only if each lawyer reasonably believes they can give competent…
Can a lawyer disclose a client's confidential information to prevent harm or a crime, and is information learned after the representation ended still confidential?
A lawyer is permitted, but not required, to disclose a current or former client's confidential information when the lawyer reasonably believes it necessary to prevent reasonably certain death or…
After Estate of Schneider v. Finmann, can the lawyer who drafted a decedent's estate plan also represent the executor administering that estate?
Yes, as long as the lawyer does not perceive a colorable legal malpractice claim against himself arising from the estate planning. If such a claim is apparent at the outset or arises during the…
Can a New York lawyer share a personal injury fee with an out-of-state lawyer who is not admitted in New York?
Yes, if the split meets Rule 1.5(g): proportional to each lawyer's work or a written assumption of joint responsibility, the client's written consent after disclosure of the division, and a total…
If a lawyer admitted only in another state practices immigration law from a New York office, what must her letterhead and business cards say?
Assuming she may practice and the New York Rules apply, her letterhead and business cards must state that she is admitted only in her licensing state and that her New York practice is limited to…
Can a part-time assistant public defender take an assigned-counsel case that another lawyer in the same public defender office is conflicted out of?
No, not without a valid waiver. A public defender office is a 'firm,' so one assistant public defender's Rule 1.7 or 1.9 conflict is imputed to every lawyer in the office, including part-timers in a…
Can the New York office of a multistate firm use a trade name, and can a New York PLLC be owned by an out-of-state PLLC?
No to the trade name: a New York office may not practice under an initials-based trade name or a name combining a partner's name with a trade name. Yes to the ownership question, if all owners of…
Can a law firm pay a nonlawyer business developer a percentage of grants its clients are awarded?
It depends on whether the grant writing is legal services. If it is, Rule 5.4(a) bars paying the nonlawyer a percentage of grants and Rules 7.1, 7.2, and 7.3 limit the marketing. If it is distinct…
Can a part-time government social services lawyer defend, in private practice, a client the agency is prosecuting for child neglect?
No. A part-time Social Services lawyer who prosecutes neglect cases cannot also defend that client in an unrelated criminal matter; the role conflict is non-consentable and is imputed to the whole…
Can in-house general counsel make staff attorneys sign a confidentiality agreement as a condition of employment?
Yes, even one that on its face reaches information beyond what the Rules protect, so long as it includes a savings clause making plain it does not restrict the lawyer's right to practice law after…
Can a lawyer have a paralegal hand-deliver law firm name-change announcements to nearby homes?
Yes, but only without personal contact. The announcement is an advertisement and a solicitation, so a paralegal who leaves it on a door or porch is fine, but a paralegal who comes into personal…
Can a lawyer agree to represent a criminal defendant for arraignment only and then withdraw?
Yes, a lawyer may limit a criminal representation to arraignment if the client gives informed consent, the scope is reasonable, and it is not prejudicial to the administration of justice. But the…
Can a lawyer refer litigation clients to a litigation financing company owned by the lawyer's spouse?
No, not to provide financial assistance the lawyer is personally barred from giving. Rule 1.8(e) bars a lawyer from advancing or guaranteeing living-expense funds to a litigation client, and that…
Must a lawyer report a former employer-lawyer's misconduct, and can the lawyer tell that lawyer's clients?
A lawyer must report another lawyer's misconduct under Rule 8.3(a) when it raises a substantial question about that lawyer's honesty, trustworthiness, or fitness and reporting reveals no…
Can a law firm keep a name partner's name in its name after that partner leaves to become a corporation's in-house counsel?
No. A partner who leaves to practice as in-house counsel is not 'retired' under Rule 7.5(b), and the firm cannot keep his name by treating him as on open-ended leave or as of counsel while he…
Can a plaintiff's lawyer agree to personally indemnify the client's Medicare lien or other third-party obligation to settle the case?
No. A lawyer's promise to indemnify a client's obligation to a third party (such as a Medicare lien) as part of a settlement is a barred guarantee of financial assistance under Rule 1.8(e), which…
Can a law firm's advertisement include a photo of the whole firm, including paralegals and other nonlawyer staff?
Yes, if the ad as a whole is not misleading. A firm photo that includes nonlawyer employees is permitted under Rule 7.1 so long as it does not create a false impression about the firm's size, its…
Can a firm keep a former partner's name in the firm name after he leaves to become a company's general counsel?
No. A former partner who continues to practice law elsewhere, such as a corporation's general counsel, has not 'retired' under Rule 7.5(b), so keeping his name in the firm name is misleading and…
Can a lawyer who represents a bank in a vendor financing program also represent the equipment vendor in that program?
Yes, with informed written consent. The bank and the vendor have differing interests on the lease terms (the vendor wants to close the deal, the bank wants its credit standards met), so Rule 1.7 (or…
Is a law firm's educational newsletter or website an 'attorney advertisement' that must carry the 'Attorney Advertising' label and the exact prior-results disclaimer?
It depends on the communication's purpose, content, and audience. If it is an advertisement, it must be labeled 'Attorney Advertising' (including on a website home page), and if it makes results or…
Can a lawyer represent the owner of a mortgage note while also serving as an officer of MERS, the record mortgagee, to sign an assignment and bring the foreclosure in the owner's name?
Yes. Because MERS holds no economic interest and the lawyer was hired and paid by the note owner, there is no significant risk to the lawyer's judgment under Rule 1.7(a)(2), and any conflict was…
May a lawyer for an insurance carrier send forms to a represented workers' compensation claimant, or have non-lawyer claims adjusters do it, without the claimant's lawyer's consent?
A carrier's lawyer may not send forms directly to a known-represented claimant without the claimant's counsel's consent, but may direct non-lawyer adjusters to send them after giving reasonable…
Can a lawyer who is also a real estate broker share her brokerage commission with lawyers who refer buyers or sellers to her?
Yes, but only if the referring lawyer is not representing the buyer or seller in that transaction, or, if the referring lawyer is, the lawyer remits or credits the referral fee to the client and…
Can a part-time county legislator accept Family Court appointments as attorney for the child when the legislature funds the county attorney and social services offices?
No. The opinion concludes that a county legislator may not accept Family Court appointments as attorney for the child in delinquency, PINS, neglect, or abuse cases, because of the legislator's…
Can a lawyer view an opposing party's public Facebook or MySpace pages to gather impeachment material, without 'friending' the party?
Yes. A lawyer may access the public social networking pages of another party for impeachment material, as long as the lawyer does not 'friend' the party or direct anyone else to do so, and uses no…
Can a lawyer store client confidential information with an outside online 'cloud' storage provider, and what precautions are required?
Yes. A lawyer may use online cloud storage for client files if the lawyer takes reasonable care to keep the information secure and confidential under Rule 1.6, and stays abreast of changing…
Can a lawyer email other lawyers asking them to refer cases, such as injuries from a particular drug, without it being a regulated solicitation?
Yes. Emails seeking referrals from other lawyers are not 'advertisements' or 'solicitations' under Rules 7.1 and 7.3, but they must still comply with Rule 7.4 (specialization claims) and Rule 8.4(c)…
Can a lawyer pay the litigation expenses of a pro bono client that is not itself indigent, such as a legal-services organization?
Yes. Under Rule 1.8(e)(2), a lawyer representing a client pro bono may pay the client's court costs and litigation expenses whether or not the client is indigent.
Can a lawyer join a group radio advertisement that gives no lawyer name or contact information and instead directs listeners to an agent?
No. The opinion concludes that a group radio ad that omits the lawyer's name, principal office address, and telephone number, directing listeners to an agent instead, violates Rule 7.1(h).
When a lawyer learns that the client gave false material evidence to a tribunal, must the lawyer disclose it, even over confidentiality, and must the lawyer withdraw?
Under Rule 3.3, the lawyer must take reasonable remedial measures even if that means disclosing confidential information, but disclosure to the tribunal is required only if no lesser remedial…
Is an administrative agency's rule-making or rate-making proceeding a 'tribunal' under the ethics rules, and does Rule 3.5 bar ex parte communications in it?
It is a question of fact: the agency is a 'tribunal' only when a neutral official renders a judgment directly affecting specific parties. Even then, Rule 3.5's ex parte restrictions apply only if…
Can a lawyer who represented an incapacitated client in a guardianship appointment later represent both that client and the guardian in a proceeding to end the guardianship?
Yes, if the conflict is consentable. The dual representation involves differing interests under Rule 1.7(a)(1), but where the parties are aligned and the matter is court-supervised, the lawyer may…
Can a lawyer admitted in another U.S. state, but not in New York, serve as in-house general counsel for a New York corporation and keep an office in New York?
The committee declined to answer. Whether an out-of-state lawyer may serve as New York in-house counsel is a question of law under the Judiciary Law, not the Rules of Professional Conduct, because…
Does a New York lawyer's advertisement that includes a client testimonial or endorsement have to carry the 'Prior results do not guarantee a similar outcome' disclaimer?
Yes. Under New York Rule 7.1(e)(3), any advertisement containing a client or former-client testimonial or endorsement must include the disclaimer 'Prior results do not guarantee a similar outcome,'…
Does a New York lawyer have to respond to unsolicited letters from incarcerated people asking the lawyer to take their case?
No. The committee concludes that no Rule of Professional Conduct requires a lawyer to answer unsolicited mail from someone who is neither a client nor an adversary, and a person who sends such a…
When a New York lawyer sells a nonlegal product like shelf corporations to non-clients, do the lawyer advertising and solicitation rules apply to that business?
It depends on whether legal advice is involved and whether the lawyer's status is visible. If the lawyer gives no legal advice and is not held out as a lawyer, the Rules generally do not apply; but…
If a client committed fraud on a court before New York's new Rules took effect on April 1, 2009, does the lawyer's duty to disclose follow the old Code or the new Rule 3.3?
The old Code. The committee concludes that when the client's fraud occurred before April 1, 2009, the lawyer's disclosure obligation is governed by former DR 7-102(B)(1), which did not permit…
Can a New York lawyer contact lay organizations to offer to speak to them about legal topics, and do the advertising and solicitation rules apply?
Yes, a lawyer may contact lay organizations to offer to speak on legal topics. But if the communication is made expressly to encourage the audience to retain the lawyer or firm, it becomes an…
After New York required conflict consents to be 'confirmed in writing' on April 1, 2009, does a lawyer need to re-obtain consents that clients validly gave before that date?
No. The committee concludes that the new requirement that conflict consents be 'confirmed in writing' applies only to consents given on or after April 1, 2009; consents validly given before that…
Are a state agency's staff attorneys responsible for a non-lawyer investigator's contact with a represented licensee when the investigators are not supervised by the lawyers?
No, not on these facts. The committee concludes a non-lawyer investigator's conduct is not imputed to agency staff attorneys unless the lawyers have supervisory authority over the investigators;…
Can a law firm cooperate with a client's outside billing auditor and pay the auditor a percentage of the firm's billings directly from the firm's account?
Yes, with the client's informed consent. The committee concludes that cooperating with a client-hired auditor and paying it a percentage of billings from the firm's account is an allocation of costs…
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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 advisory, 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.