United States: Recent N.Y. Ethics Opinions: January 2016

Last Updated: January 6 2016
Article by Tyler Maulsby

Here are summaries of ethics opinions issued July and August 2015. The opinions were issued by the NYSBA Committee on Professional Ethics. NYLER will continue to provide updates on new ethics opinions issued by NYSBA and other ethics committees in New York State.

For information about how to obtain an ethics opinion from the NYS Bar Association Committee on Professional Ethics, please visit http://www.nysba.org/Ethics/.


NYSBA Ethics Op. 1067 (July 27, 2015):
Current Client-Prospective Client Conflicts of Interest and the Duty to Inform

Opinion 1067 addresses a law firm's ethical duties when an adversary in one matter inadvertently becomes a prospective client of the firm. The law firm represents a father, who was a long-time client ("Father"), in a highly contested proceeding brought by Father's adult child ("Child") over the guardianship of Father's wife. Several months after the guardianship proceeding ended, Child attended a seminar on estate planning held by one of the firm's partners ("Partner") and subsequently contacted Partner for a consultation. After the consultation with Child, Partner learned of the firm's representation of Father and the earlier guardianship proceeding. The Opinion answers three questions: (1) whether the New York Rules of Professional Conduct require the firm to disclose to Father that Child sought to retain the firm on an unrelated matter; (2) whether the firm can continue to represent Father in light of Partner's consultation with Child; and (3) whether the firm is required to inform Child's lawyer from the guardianship proceeding that Child sought to retain the firm for estate planning. The Opinion assumes that Child was acting in good faith when he consulted the lawyer and was therefore a "prospective client" under the Rules. See Rule 1.18(a) (prospective client is one "who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter.").

Since Child is a prospective client, the Opinion reasons, "Rule 1.18(b) prohibits the lawyer from 'using or disclosing prospective client information only if the information is 'confidential information' as defined in Rule 1.6, and even then only if the information was 'learned in the consultation.'" The Opinion explains that under Rule 1.6 "confidential information" falls into three categories: "(i) information 'protected by the client-attorney privilege'; (ii) information that is 'likely to be embarrassing or detrimental to the [prospective] client if disclosed'; or (iii) 'information that the [prospective] client has requested be kept confidential.'" Whether the information Partner learned during the consultation falls into any of these categories is an issue of fact. If Partner determines, however, that the information about Child's "identity, consultation with [Partner] about possible representation, and the general subject matter of that consultation, fits under any of the rubrics of confidential information" then Partner, and the firm may not disclose such information. With regard to the firm's duty to notify Father, the Opinion reasons that Rule 1.4(a)(1)(iii) obligates a lawyer to inform the client of "material developments in the matter." Whether certain information is "material" to the representation should be determined on a case-by-case basis. However, if the firm concludes that the information learned during the consultation is material to the representation of Father then the firm would face a dilemma where it has a duty of confidence to its prospective client (Child) and a duty to notify its current client (Father) about the same information. If the information learned during the consultation is unrelated to the representation of Father, then the firm has no obligation to notify Father about the consultation. Second, the Opinion analyzes whether the firm has a conflict of interest in its continued representation of Father. Under Rule 1.18(c), the firm would be prohibited from representing Father in a matter "substantially related" to the matter about which Child sought representation if the interests of Child were "materially adverse" to Father's and the firm obtained information that could be "significantly harmful" to Child in the matter. While the Opinion does not opine on the degree of harmfulness of any information learned during the consultation, it concludes that the firm would have to determine that the information learned from Child would be "significantly harmful" in order to create a conflict of interest. Finally, the Opinion concludes that the firm has no duty to disclose the consultation to Child's lawyer from the guardianship proceeding. If Partner learned confidential information during the consultation, the firm would be prohibited from doing so.

The Opinion is available at: https://www.nysba.org/CustomTemplates/Content.aspx?id=57804

NYSBA Ethics Op. 1068 (Aug. 10, 2015):
Partnership with a Nonlawyer Claims Recovery Firm

Opinion 1068 addresses whether a lawyer may enter into an arrangement with a nonlawyer Claims Recovery Firm where the Claims Recovery Firm would hire the lawyer to represent the client corporation as plaintiffs in an action, the Claims Recovery Firm would receive a contingent commission from any recovery, and the Claims Recovery Firm would pay the lawyer a portion of its commission. Under Rule 5.8(a), a lawyer may not have an exclusive referral relationship with a nonlegal professional service firm unless the professional service firm is included on a list jointly established and maintained by the Appellate Divisions. Because claims recovery firms are not included on this list, the Opinion concludes, an exclusive relationship with the Claims Recovery Firm would be prohibited. The Opinion notes, however, that Rule 5.8(a) does not apply to "non-exclusive reciprocal referral agreements" between a lawyer and a nonlegal professional service firm. If the relationship is non-exclusive, the Opinion reasons, the relationship must still comply with other applicable rules. Specifically, Rule 5.4(c) requires that the lawyer "shall not permit a person who recommends, employs or pays the lawyer to render services for another to direct or regulate the lawyer's professional judgment in rendering such legal services." Similarly, the lawyer may not use the Claims Recovery Firm to do what that the lawyer would otherwise be prohibited from doing in violation of Rule 8.4(a). For instance, because the lawyer is prohibited from engaging in in-person solicitation under Rule 7.3, the lawyer could not allow the nonlawyer Claims Recovery Firm to do the same. With regard to fee-sharing, Rule 5.4(a) generally prohibits a lawyer from sharing legal fees with a nonlawyer. Citing prior ethics opinions, the Opinion reasons that this prohibition also includes a lawyer reducing his fee to "free-up funds" for the client to pay the nonlawyer unless the nonlawyer was performing services worth the amount of the reduced fee. The Opinion concludes, therefore, that "[i]f the Claims Recovery Firm provides substantial assistance in the proceedings and the compensation of the Claims Recovery Firm is commensurate with the services it provides, then the lawyer would not be sharing legal fees with a nonlawyer in violation of Rule 5.4(a) even if the lawyer reduces his fee by the amount of the Claims Recovery Firm's compensation." Similarly, if the Claims Recovery Firm's compensation does not exceed the reasonable value of its services, then the Claims Recovery Firm's fee would not be a prohibited referral fee in violation of Rule 7.2(b). Finally, the Opinion cautions that Rule 5.5(b) prohibits the lawyer from assisting the Claims Recovery Firm in engaging in the unauthorized practice of law. While the Opinion does not opine on whether the Claims Recovery Firm is engaged in unauthorized practice of law, it notes that activities of the Claims Recovery Firm, particularly in identifying potential antitrust claims, raise serious questions about unauthorized practice of law, and the inquirer should consider them carefully."

The Opinion is available at: https://www.nysba.org/CustomTemplates/Content.aspx?id=57957.

NYSBA Ethics Op. 1069 (Aug. 19, 2015):
Concurrent Representation in Family Court and Immigration Proceedings

In Opinion 1069, an attorney represents an immigrant child in an administrative removal proceeding. Under relevant federal law, the subject child may gain lawful permanent residency if the lawyer can show, inter alia, that the subject child is "dependent on a juvenile court" and that reunification with the child's parents is not in the child's best interests. In order to meet this standard, the lawyer intends to petition the New York Family Court for the appointment of a guardian for the child. The lawyer intends to represent the proposed guardian in the Family Court proceeding. The Opinion analyzes the proposed concurrent representation under Rule 1.7, which prohibits the lawyer from representing clients with "differing interests" or if there is a "significant risk that the lawyer's professional judgment on behalf of a client will be adversely affected by the lawyer's own financial, business, property or other personal interests." With regard to "differing interests," the Opinion acknowledges that there may be many scenarios where the child and the proposed guardian's interests are aligned, in which case, no conflict would exist. The Opinion concludes, however, that the lawyer must be "sensitive to changes that might create differing interests" and that such changes would be addressed if the Family Court appointed separate counsel for the child in the Family Court proceeding." Even where the lawyer and the proposed guardian do not have differing interests, the lawyer must still reasonably conclude that he can provide competent and diligent representation to both parties and obtain informed consent in writing from each client in accordance with Rule 1.7(b). On this point, the Opinion notes that there is some support for the proposition that a child cannot consent to dual representation. Notwithstanding that line of cases and opinions, the Opinion concludes that the lawyer "must assess whether the child has the capacity to make a reasoned decision regarding the potential conflict ... [i]f the lawyer concludes that the immigrant-child is capable of making a reasoned decision, the lawyer must provide the child with information and explanations suitable to the child’s level of understanding."

The Opinion is available at: https://www.nysba.org/CustomTemplates/Content.aspx?id=58066.

Get CLE Credit for this month's articles (January 2016).

Originally published by the New York Legal Ethics Reporter


This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Tyler Maulsby
Similar Articles
Relevancy Powered by MondaqAI
Frankfurt Kurnit Klein & Selz
Frankfurt Kurnit Klein & Selz
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Frankfurt Kurnit Klein & Selz
Frankfurt Kurnit Klein & Selz
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions