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 law firm represent the underwriters in a securities offering when the issuer picks and pays the firm, and can it also represent the issuer?
Yes, with consent. The committee concludes designated underwriters' counsel may represent the underwriters even though the issuer selects and pays the firm, given disclosure and underwriter consent, a…
Can a New York lawyer handle a home sale that inflates the price and gives the buyer a matching seller's concession to enlarge the mortgage loan?
Only if it is lawful and disclosed. The committee concludes a lawyer may not participate in a grossed-up sale with a seller's concession unless the transaction is entirely lawful, the gross-up is disc…
Can a New York lawyer take an advance payment retainer into the firm's own account and keep the interest, and require it to cover final fees?
Yes. The committee concludes a lawyer may accept an advance payment retainer, hold it in the lawyer's own account, and keep the interest, and may require an advance retainer to cover final fees, provi…
Which ethics rules govern a New York lawyer who works mainly abroad, doing work that is law practice but without being admitted in that foreign country?
The foreign jurisdiction's rules generally govern. The committee concludes a New York lawyer authorized to do law-practice work abroad is 'licensed to practice' there, so if the lawyer principally pra…
Can a lawyer use law firm letterhead when collecting debts, both as a lawyer for a creditor and when running debt collection as a non-legal service?
It depends on the role. The committee concludes a lawyer representing clients as a lawyer in collecting debts may use law firm letterhead, but a lawyer offering debt collection as a non-legal service …
Can a developer's lawyer talk privately with individual town planning board members about a pending application when the board's counsel objects?
Only within narrow limits. The committee concludes the no-contact rule permits such communications about pending determinations only if they concern policy issues alone and the lawyer gives the board'…
Can a county public defender review the billing vouchers of assigned counsel who took over a case because the public defender had a conflict of interest?
No, ordinarily. The committee concludes that a public defender's office barred by a conflict from representing a party is equally barred from reviewing the billing vouchers of the assigned conflict co…
When can a lawyer who works as a contract attorney for a county agency represent in private practice a client the lawyer encountered through that government work?
Only in limited circumstances. The committee concludes the lawyer may not privately represent the client in a matter the lawyer handled as a government attorney while the client remains eligible for t…
Is a lawyer aiding the unauthorized practice of law just by dealing with a non-lawyer the other side hired to handle a transaction?
No. The committee concludes that continuing to represent a client in a transaction, and therefore dealing with a non-lawyer the counter-party chose to represent it, does not by itself aid the unauthor…
Can a lawyer take a security interest in a client's fee-recovery lawsuit, or its proceeds, to secure unpaid fees from an earlier case the lawyer is also handling?
Not while handling that suit. The committee concludes that, absent an available charging lien, a lawyer who represents the client in the fee-recovery litigation may not take a security interest in tha…
Can a part-time associate at a law firm represent the buyer through her own separate practice while the firm represents the seller in the same real estate deal, with both clients' consent?
No. The committee concludes a part-time associate is 'associated' with the firm for conflict imputation, and the buyer and seller of residential real estate may not be represented by lawyers in the sa…
Can a New York firm split fees with a foreign law firm that refers it a New York matter and stays involved as a consultant?
Yes, with conditions. The committee concludes a New York firm may share a percentage of its fees with a foreign law firm on referred matters where the foreign firm's lawyers are bona fide lawyers with…
Can a retainer agreement get a client to agree in advance that the lawyer may withdraw if the client fails to pay fees?
No advance assent. The committee concludes a retainer may not secure a client's advance consent to withdrawal for nonpayment, but it may accurately advise the client that the lawyer may withdraw, subj…
If lawyers in a small legal services corporation also keep private practices, can one of them privately represent a party opposing someone the corporation represents in the same case?
No. The committee treats the staff of a small legal services corporation as a law firm, so a conflict that would disqualify one lawyer is imputed to all, and consent cannot cure two same-'firm' lawyer…
Can a New York law firm run debt-collection services for clients in other states as a non-legal service where its lawyers are not licensed?
Yes, with conditions. The committee concludes a New York firm may provide out-of-state collection as a non-legal service if the other state's rules (including its unauthorized-practice law) permit it,…
Can one law firm serve as both bond counsel and the borrower's counsel in a tax-exempt municipal bond issuance?
Yes, with limits and consent. The committee concludes a firm may serve as both bond counsel and borrower's counsel if bond counsel's role is limited to opining on the transaction rather than negotiati…
Can a New York lawyer form a partnership with an attorney admitted only in another state who would work exclusively from a New York office on New York matters?
Not where the out-of-state attorney's New York work would be unauthorized practice. The committee concludes such a partnership violates DR 3-101(A); and if the out-of-state attorney instead limited he…
Can a part-time prosecutor also serve as court-appointed counsel for indigent parties in a neighboring county's Family Court?
Sometimes, case by case. The committee concludes there is no per se bar, but the part-time prosecutor may not take delinquency, PINS, or any matter involving law enforcement personnel the prosecutor w…
Can a New York lawyer pay to participate in a website that analyzes a prospective client's problem, picks lawyers to respond, and lets them contact the client?
Not as described. The committee concludes a lawyer may not participate in a paid website that analyzes the prospect's problem and selects lawyers (an improper referral), and may not phone the prospect…
Can a lawyer who serves on a county legislature defend criminal cases in that county when the legislature controls the police or DA budget, and are the lawyer's firm colleagues disqualified too?
No to the lawyer, even for plea bargaining and regardless of county size. The committee concludes the lawyer/legislator may not handle criminal cases involving police or prosecutors the legislature fu…
If a lawyer learns that a client's court affidavit was false, what must the lawyer do, and how much of the client's confidence can the lawyer reveal?
The lawyer must ask the client to correct the affidavit, and if the client refuses, must withdraw the lawyer's own certification to the court. The lawyer may disclose only what is implicit in that wit…
Does the lawyer for an estate administrator have to tell a creditor's lawyer that the estate has assets so the creditor can file a claim?
No. The committee concludes that absent any misrepresentation, the lawyer for an estate administrator has no ethical duty to tell a creditor who failed to file a claim that the estate has assets and t…
Can a physician who is also a New York lawyer advertise free exams to screen medical malpractice claims for referral to lawyers, without disclosing the law license or the fee split?
No. The committee concludes that screening claims for referral is the practice of law, so the advertising must disclose the lawyer status; the referral-for-a-share-of-the-fee arrangement is barred unl…
If a private firm's lawyer supervises one project of a law school legal clinic, are the clinic's other conflicts imputed to that lawyer's firm?
Yes. Where the clinic's students share common workspace and physical files, the whole clinic is one law firm, so the conflicts of the entire clinic are imputed to the supervising lawyers' firms and vi…
When a lawyer is of counsel to two firms, are one firm's conflicts imputed to the other firm's lawyers?
Yes, in most cases. Conflicts imputed to a lawyer under DR 5-105(D) are imputed to every firm with which the lawyer has an of-counsel relationship, and where two firms share an of-counsel lawyer their…
Can a lawyer run a radio or TV ad using a celebrity client's testimonial, name the celebrity, and pay the celebrity for their time?
A lawyer may use a celebrity client's testimonial, and name the celebrity, so long as it is not false, deceptive, or misleading and the ad meets the record-keeping rules. The lawyer may not pay or giv…
Can a New York lawyer join a business networking organization whose members are required to bring or exchange referrals?
No. The committee reaffirms that a lawyer may not participate in an organization that requires the lawyer to refer clients in exchange for other members' referrals, and concludes a lawyer also may not…
Can a lawyer employed part-time by a social services agency serve as a Law Guardian for a child whose parent received non-legal services from that agency?
Sometimes. Agency employment alone is not a disqualifying interest, but the lawyer must decline (or withdraw) when their professional judgment as the child's advocate reasonably may be affected by the…
Can a law firm consult its own in-house ethics counsel about a client matter, without the client's consent, without creating a conflict with that client?
Yes. The committee concludes a law firm may form an attorney-client relationship with its own lawyers to get advice on its professional-responsibility obligations, including matters implicating a clie…
Can a part-time assistant district attorney keep representing a private client whom the DA's office is now prosecuting?
No. The DA's office is treated as a law firm, so the office's conflict is imputed to the part-time prosecutor, who may not continue representing the husband in the civil estate-planning matter. The co…
A lawyer represents a wife on a personal injury claim and her husband on a loss of consortium claim, and the husband has vanished. Can the lawyer settle the wife's claim?
Not without both clients' informed consent, because settling the wife's claim would bar the missing husband's derivative claim, creating differing interests. The lawyer must take all reasonable steps …
When a lawyer represents a legal services nonprofit pro bono, can the lawyer pay litigation expenses without the organization remaining liable for them?
Only if the organization itself is indigent. The committee holds that a legal services provider is not indigent merely because it serves the poor or wants to spend its money on its mission; indigence …
Can a plaintiff's lawyer keep negotiating directly with an insurance company's claims adjuster after defense counsel says to stop?
Yes. The committee concludes that contacting the insurer's non-lawyer adjuster is not contact with the represented policyholder, so the plaintiff's lawyer may negotiate with the adjuster over assigned…
Can a lawyer who is a principal in an entertainment management company also represent that company's clients through the law firm?
Yes, but only in some matters. The committee concludes there is no per se bar, but the law firm may not represent the client in transactions where the management company's interest in closing the deal…
If a client deliberately stops paying and the retainer says nothing about interest, can a lawyer require the client to agree to interest as a condition of continuing?
Yes. The committee concludes a lawyer may condition continued representation of a deliberately delinquent client on the client's agreement to pay reasonable interest prospectively on the past-due bala…
Does a lawyer who emails a document containing metadata that reveals client confidences violate the duty of confidentiality?
Lawyers must exercise reasonable care when transmitting documents by email to prevent disclosure of confidences and secrets contained in metadata. What reasonable care requires varies with the circums…
A matrimonial lawyer certified a client's financial statement to family court and later learns it omitted substantial assets through the client's fraud. Must the lawyer withdraw the statement?
Yes. The lawyer must call on the client to correct the fraud, and if the client refuses, must withdraw the false financial statement and disclose confidences to the extent implicit in that withdrawal.…
When representation ends, can a lawyer keep copies of the client's file even if the client objects, and can the lawyer demand a malpractice release in exchange for not keeping copies?
Yes to both. A lawyer may generally retain copies of the file at the lawyer's own expense, even over the client's objection. As a condition of giving up that right, the lawyer may seek a release from …
Can a lawyer pay a marketing company a flat fee for a bundle of pre-screened client leads, here for federal tax-relief clients?
No. Paying a marketing organization for leads to potential clients is compensation to obtain employment, which DR 2-103(B) prohibits, and neither of that rule's narrow exceptions applies.
An insurer wants one lawyer to defend two insured co-defendants, one of whom can claim indemnification from the other and the claim exceeds the policy limits. Can the lawyer represent both?
Only if a disinterested lawyer would believe both can be competently represented, the defendant with the indemnification claim agrees not to assert it as a cross-claim, and both consent after full dis…
A lawyer already owns land that is the subject of an annexation dispute between two towns. Can the lawyer represent one of the towns in the litigation over that land?
Yes, if the lawyer's interest is aligned with the client's, the client consents after full disclosure, and the lawyer is not likely to be a witness on a significant issue. DR 5-103(A) bars only acquir…
Can a former prosecutor defend a criminal defendant on the same charges the prosecutor personally handled while in the DA's office?
No. A lawyer who participated personally and substantially in prosecuting a defendant on certain charges may not later defend the same person on those charges. The conflict under DR 9-101(B)(1) is per…
A lawyer is holding a former client's original will for safekeeping and the apparently incapacitated client asks for it back. Can the lawyer investigate the client's capacity before returning it?
Yes. The lawyer may communicate with the former client and others to determine whether the client is in fact incapacitated or under undue influence, and may seek judicial guidance if doubt remains. No…
A law firm hires a paralegal or secretary who used to work at another firm, maybe one it now opposes. What must the firm do to supervise that nonlawyer and check for conflicts?
The firm must adequately supervise the nonlawyer so confidences from the former firm are not disclosed or exploited. A formal conflict check is not always required, but is advisable where the nonlawye…
A lawyer sits on a municipal board and is 'of counsel' to a law firm. Can the lawyer or the firm appear before that board on behalf of private clients?
The lawyer-member may not appear before the board. Because an 'of counsel' lawyer is 'associated' with the firm, the firm's appearance is restricted too: any DR 5-101 conflict imputes to the firm (wai…
In a civil dispute, can a lawyer threaten or file criminal charges, or threaten or file administrative or disciplinary charges, against the opposing party to gain leverage?
DR 7-105(A) bars threatening or presenting criminal charges solely to gain an advantage in a civil matter, so a threat to file criminal charges unless funds are returned violates the rule. It does not…
If a law firm's website uses client testimonials or reports of past results, must it post a disclaimer that past results don't guarantee future outcomes?
Not automatically. Testimonials and past results are permitted unless they create unjustified expectations or are false, deceptive, or misleading. No disclaimer is required per se; where they are mere…
Can a prosecutor agree to a plea bargain that requires the defendant to donate money to STOP-DWI or a charity, and can the donation be kept from the sentencing judge?
If probable cause supports the charge and the terms are legal, a prosecutor may require a donation to STOP-DWI (unless the DA is also its coordinator) or to a charity (absent a disqualifying personal …
Can a personal injury lawyer also represent the client in a deal with a litigation funding company that advances cash for a share of the recovery, and charge a separate fee for that work?
If the financing transaction is legal, the lawyer may represent the client in it and may charge a separate, non-excessive fee, subject to caveats: no ownership of or compensation from the funder, a DR…
Can a government lawyer attend and advise at a meeting with a represented contractor's non-lawyer staff, and when does the lawyer 'know' a party is represented?
The opinion concludes a government lawyer may silently attend such a meeting and advise the lawyer's own client if reasonable advance notice is given to opposing counsel and the lawyer does not commun…
Can a New York lawyer who serves as a certified impartial hearing officer also represent parents in special-education hearings, and can the lawyer advertise the certification?
The opinion concludes the lawyer may do both, but may not represent clients in any school district where the lawyer sits as a hearing officer, in matters the lawyer handled as a hearing officer, or wh…
When a former client asks for their file, what does a New York lawyer have to turn over, and can the lawyer charge for assembling it?
The opinion concludes a lawyer must promptly turn over or give access to the files the former client is entitled to possess; under New York law that is presumptively the entire file unless substantial…
Can a New York lawyer agree to swap client referrals with a securities broker or insurance agent who is not on the approved nonlegal-professions list?
Yes. The opinion concludes a lawyer may enter a nonexclusive reciprocal referral arrangement with a broker or insurance agent, provided no fees are shared and the lawyer discloses the arrangement and …
Can a New York lawyer accept a bank 'earnings credit' that reduces the lawyer's bank fees based on balances held in the lawyer's IOLA account?
Only with the client's consent after full disclosure. The opinion concludes the credit is something of value from a third party related to the representation under DR 5-107(A)(2), so the lawyer may ac…
Can a New York collection lawyer accept credit card payments from a client's debtors, deduct the fee, and pass on the card processing charges?
The opinion concludes a collection lawyer may accept debtors' credit card payments, must deposit them in a trust or IOLA account, may deduct an agreed non-excessive fee and disbursements (but not disp…
How far must a New York firm supervise its partners, associates, and staff who are licensed abroad but not admitted in New York?
The opinion concludes a New York firm must make reasonable efforts to ensure lawyers subject to the New York Code comply with it, and must supervise foreign-licensed lawyers (treated as nonlawyers und…
If a lawyer filed an immigration petition for a client's wife, can the lawyer later represent the wife in an abuse-based self-petition against that client?
No, not where the husband is a current or former client, because the matters are substantially related and the wife's interests are materially adverse, and informed consent cannot be obtained without …
Can a New York lawyer use a power of attorney in the retainer to settle a case and endorse the client's settlement check?
The opinion concludes a lawyer may obtain and use a revocable power of attorney to settle and to endorse the settlement check, with full disclosure, but only if the lawyer settles on terms the client …
Can a New York lawyer use an ATM to make deposits into the attorney trust (special) account?
Yes for deposits, if the lawyer uses a deposit slip bearing the special-account title, keeps the ATM record and duplicate deposit slip for seven years, and verifies the deposit on the bank statement; …
Can a New York lawyer keep required trust-account records (checks, bank statements, deposit slips) in electronic form instead of paper?
The opinion concludes the lawyer must keep the DR 9-102(D)(8) items in their original form, paper or electronic; if the bank returns them on paper in the ordinary course the lawyer keeps paper, but ne…
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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.