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

Last Updated: May 5 2016
Article by Tyler Maulsby

Here are summaries of ethics opinions issued in December 2015. The opinions were issued by the NYSBA Committee on Professional Ethics. NYLER will continue to provide updates on new ethics opinions issued by these 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. 1076 (Dec. 2015)
Blind Copying Client on Correspondence with Opposing Counsel

Opinion 1076 addresses whether a lawyer must obtain the consent of opposing counsel before the lawyer can blind copy (bcc) her client on correspondence with opposing counsel. The Opinion concluded that consent of opposing counsel was not necessary. The Opinion reasons that because the lawyer is an agent of her client, opposing counsel "should expect that the lawyer may share correspondence relating to the representation with the client." As a result, the lawyer does not engage in "dishonesty, fraud, deceit or misrepresentation" in violation of Rule 8.4(c) when she sends her client copies of correspondence with opposing counsel. The opinion also notes that sending the client copies of correspondence with opposing counsel may, in certain instances, be the easiest way for the lawyer to comply with her duties under Rule 1.4(a) to keep the client reasonably informed about the status of the matter as well as the lawyer's duty under Rule 1.4(b) to provide the client with information that is reasonably necessary for the client to make informed decisions about the representation. The Opinion cautions, however, that blind copying the client on emails with opposing counsel may not be best practice as the client could inadvertently "reply all" and risk disclosing confidential information.

The Opinion is available at: http://www.nysba.org/CustomTemplates/Content.aspx?id=60757

NYSBA Ethics Op. 1077 (Dec. 2015)
Maintaining Only Electronic Copies of Retainer Agreements

Opinion 1077 addresses whether a law firm may institute a practice where it maintains scanned copies of retainer agreement and discards the originals. The Opinion concludes that a law firm can satisfy the requirement in Rule 1.15(d)(1)(iii) that it keep "copies" of retainer agreements for at least seven years by maintaining scanned copies of retainer agreements. Under Rule 1.15(d)(3), "copies" include "photocopies, microfilm, optical imaging, and any other medium that preserves an image of the document that cannot be altered without detection." The Opinion concludes that scanned images fit the definition of "copies" in Rule 1.15(d)(3). The Opinion reasons that while a scanned image may be able to be "altered without detection", that phrase in Rule 1.15(d)(3) only applies to "medium[s] other than the specific ones listed — that is other than original records, photocopies, microfilm, or optical imaging." Since scanned copies are specifically listed in the rule, the lawyer does not need to conduct an independent inquiry into whether it can be "altered without detection." In any event, however, the Opinion reasons that scanned copies may be able to meet that standard to a reasonable degree of certainty. Finally, the Opinion notes that while a law firm may maintain scanned copies of retainer agreements in lieu of the originals, the law firm's storage system must be reliable enough to ensure that the copies are retained for the requisite seven years.

The Opinion is available at: http://www.nysba.org/CustomTemplates/Content.aspx?id=60758

NYSBA Ethics Op. 1078 (Dec. 2015)
Communications with Deceased Client's Family

In Opinion 1078 a lawyer was approached by the son of a former client who had died. The son asked the lawyer whether the lawyer ever drafted a will for the client or referred the client to other counsel for that purpose. According to the son, no estate proceedings have commenced and no administrator or executor has ever been appointed. The lawyer wishes to know whether he may answer the son's questions. The Opinion concludes that the information at issue is not "confidential information" under Rule 1.6(a) and therefore the lawyer has no obligation to protect it. While the information may have been gained "during or relating to the representation," it does not meet any of the other requirements in Rule 1.6(a) that would make the information confidential. Specifically, the information is not protected by the attorney-client privilege, is not "likely to be embarrassing or detrimental to the client if disclosed" and there is no indication that it was "information that the client has requested to be kept confidential." The Opinion further concludes that even if the information could be considered "confidential information," the disclosure may be "impliedly authorized to advance the best interests of the client" under Rule 1.6(a)(2). The Opinion reasons that the disclosure at issue may advance the interests of the lawyer's former client because it "may assist the son in ensuring that any final wishes of his father are brought to light, and the disclosures may save the estate further time and expense of investigating in a futile search for a will." While the Opinion concludes that the information at issue is not "confidential information," the lawyer may request satisfactory confirmation of the father's death before answering the son's questions.

The Opinion is available at: http://www.nysba.org/CustomTemplates/Content.aspx?id=60759

NYSBA Ethics Op. 1079 (Dec. 2015)
Charging for Paralegal Time

Opinion 1079 addresses whether a lawyer may charge clients for tasks performed by a "paralegal" when the person completing the tasks is a legal assistant who is neither a graduate of a paralegal program nor certified by any accrediting body. The Opinion concludes that there is no ethical prohibition on a lawyer charging a client for paralegal tasks that are performed by someone who is otherwise a legal assistant. Citing earlier opinions, the Opinion notes that a "paralegal" has been defined as "a lay person employed by a lawyer to perform certain law office functions for which legal training and bar admission are not necessary." The Opinion concludes that the Rules "do not contain a requirement that a paralegal have any particular training or experience." Similarly, because New York does not require paralegals to be certified, the use of the term "paralegal" does not imply certification and is therefore not misleading or deceptive when used to describe tasks performed by an uncertified layperson. The Opinion also reasons that beyond Rule 1.5(a)'s prohibition on excessive fees and expenses, there is nothing in the Rules that prohibits charging for the time of paralegals. The only requirement under the Rules is that the work of the paralegal be adequately supervised. Under Rule 5.3(a), the degree of supervision requires is that which is "reasonable under the circumstances, taking into account such factors as the experience of the person whose work is being supervised, the amount of work involved and the likelihood that ethical problems might arise in the course of working on the matter."

The Opinion is available at: http://www.nysba.org/CustomTemplates/Content.aspx?id=60760

Get CLE Credit for this month's articles (May 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
In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.