United States: Recent N.Y. Ethics Opinions: June/July 2016

Last Updated: July 13 2016
Article by Tyler Maulsby

Here are summaries of ethics opinions issued in December 2015 and January 2016. 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/.


NEW YORK STATE BAR ASSOCIATION OPINIONS

NYSBA Ethics Op. 1080 (Dec. 2015)

Governmental Parties and the 'No-Contact' Rule

In Opinion 1080, the inquiring lawyer represented a client against a municipal agency in a dispute over a real property assessment. The lawyer mainly communicated with the attorney for the municipality and both lawyers had entered appearances in the case. During the course of the litigation, the public official in charge of the municipal agency that was a party to the action contacted the lawyer and requested that the lawyer communicate directly with him. The Opinion addresses whether the lawyer may communicate with the public official under Rule 4.2 of the New York Rules of Professional Conduct (New York Rules), which prohibits a lawyer from communicating with a party who is represented by counsel without first obtaining consent from that party's lawyer or unless the lawyer is "authorized by law" to do so. The Opinion concludes that the lawyer would be prohibited from communicating with the public official under Rule 4.2 because it was clear that the municipality was represented by counsel. Citing prior ethics opinions, the Opinion reasons: "once there is an indication that counsel has been designated by a party, whether governmental unit or otherwise, with regard to a particular matter, all communications concerning the matter must thereafter be made with the designated counsel except as provided by law." Thus, the lawyer must first obtain consent from the municipality's lawyer before communicating directly with the public official. The Opinion also concludes that the type of communication at issue does not meet the "authorized by law" exception in Rule 4.2. If the lawyer were simply attempting to "petition the government" within his First Amendment rights, Rule 4.2 would not apply, however, because the lawyer is litigating against the agency, he must first seek permission from the municipal agency's attorney before speaking with the public official.

The full Opinion is available at: http://www.nysba.org/CustomTemplates/Content.aspx?id=60761.

NYSBA Ethics Op. 1081 (Jan. 2016)

Legal and Non-Legal Services and the Unauthorized Practice of Law

In Opinion 1081, two lawyers were employed by a debt management company (the "Company") that was run by a non-lawyer. The Company wished to offer services whereby the lawyers would provide certain advice and counseling to the Company's clients. The Company also proposed an incentive structure where the salaries of the lawyers would be augmented by $100 for each account that was settled for more than $10,000. Finally, the lawyers were concerned that they would be unable to properly counsel all of the Company's clients due to the number of cases the Company handled. The threshold question, the Opinion concludes, is whether the services the lawyers would be providing are "legal services, non-legal services, or a combination of the two." If any of the proposed services are "legal services," then the lawyers would be bound by the New York Rules. If the services are non-legal in nature, then some of the New York Rules may apply but others may not. If the services are a combination of legal and non-legal services relating to the same matter then under Rule 5.7(a)(1) the New York Rules would apply to both the legal and non-legal services. Because the definition of "legal services" is a question of law, the Opinion does not opine on whether the services at issue are in fact "legal services," but notes that "it seems likely that some of the activities of the [Company]...probably are legal services." If the services at issue are legal services then the lawyers may be violating New York Rule 5.5, which prohibits lawyers from aiding a non-lawyer in the unauthorized practice of law, as well as New York Rule 5.4, which prohibits lawyers from sharing legal fees with non-lawyers. With regard to the proposed bonus compensation, the Opinion concludes that such an arrangement would create a potential personal interest conflict under Rule 1.7(a)(2) because it could encourage the lawyer to settle a matter on terms less favorable to the client. Finally, the Opinion concludes that, assuming the New York Rules applied to the scenario, the lawyers would also have a duty of competent representation to the clients under Rule 1.1, and thus, would not be able to accept more matters than they could manage.

The full Opinion is available at: http://www.nysba.org/CustomTemplates/Content.aspx?id=61395.

NYSBA Ethics Op. 1082 (Jan. 2016)

Providing Legal Services to Clients of a Non-Legal Entity

Opinion 1082 addresses whether a lawyer employed by a finance company may provide legal services to the company's clients or whether the lawyer may assist the company's clients with pro se filings. The Opinion concludes that the lawyer may not provide legal services to the company's clients because doing so would violate Rule 5.5(b), which prohibits a lawyer from aiding a non-lawyer in the unauthorized practice of law. The Opinion notes that any compensation arrangement would also likely violate Rule 5.4(a)'s prohibition on sharing legal fees with non-lawyers. The Opinion also concludes that the lawyer may not help the company's client's "ghostwrite" pleadings for the same reasons. The Opinion reasons "it would make no difference whether the lawyer's name appeared on the documents. The problem would be that the Company is engaging in the unauthorized practice of law. Omitting the lawyer's name from any documents would not cure the problem." The Opinion also notes that the lawyer's failure to disclose his participation may also violate Rule 8.4(c), which requires a lawyer to refrain from behavior involving dishonesty, deceit or misrepresentation. Readers should also take note of N.Y. County Lawyers' Assn. Op. 742 (Apr. 16, 2010) (not cited in Opinion 1082), which concludes that it is generally permissible for a lawyer to ghostwrite pleadings for a pro se client without disclosing the fact of the lawyer's participation, unless disclosure is necessary by law or court rule.

The full Opinion is available at: http://www.nysba.org/CustomTemplates/Content.aspx?id=61396.

Originally published by the New York Legal Ethics Reporter

www.fkks.com

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.

Authors
Tyler Maulsby
Similar Articles
Relevancy Powered by MondaqAI
Frankfurt Kurnit Klein & Selz
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Frankfurt Kurnit Klein & Selz
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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.

Disclaimer

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.

General

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