United States: Recent N.Y. Ethics Opinions: January/February 2017

Last Updated: February 15 2017
Article by Tyler Maulsby

Here are summaries of ethics opinions issued October 2016 and January 2017. The opinions were issued by the NYSBA Committee on Professional Ethics and the NYC Bar Association 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 NYSBA Committee on Professional Ethics, please visit http://www.nysba.org/Ethics/.

For information about how to obtain an ethics opinion from the NYC Bar Association Committee on Professional Ethics, please visit http://www.nycbar.org/member-and-career-services/committees/.


NYSBA Ethics Op. 1104 (Oct. 2016)
Obtaining a Security Interest in a Client's Property

Opinion 1104 addressed whether a lawyer may ethically secure his legal fees by having his client sign a promissory note secured by a mortgage against the client's property. The Opinion reasoned that the inquiry turned on whether the proposed arrangement constituted a business transaction with the client. If so, the arrangement would be subject to Rule 1.8(a) of the New York Rules of Professional Conduct (Rules). Rule 1.8(a) prohibits business transactions with clients unless: (i) the transaction is fair and reasonable to the client and the terms of the transaction are fully disclosed in writing and can be reasonably understood; (ii) the client is advised in writing of the desirability of seeking independent counsel and is given a reasonable opportunity to do so; and (iii) the client gives informed consent, confirmed in writing, to the material terms of the transaction including the lawyer's role in the transaction and whether the lawyer is representing the client in the transaction. The Opinion reasoned that "Rule 1.8(a) by its terms applies only if the client expects the lawyer to exercise professional judgment for the benefit of the client in the matter." The Opinion continued "[t]he determination of this issue turns on several factors, including the sophistication and expectations of the client, the complexity of the proposed promissory note and mortgage, and the relationship of those instruments to the ." Also, to the extent the client fails to pay the legal fees and the lawyer is forced to foreclose on the mortgage, the client and the lawyer would have conflicting interests. The Opinion concluded, therefore, that while the proposed transaction was permissible, the lawyer must comply with Rule 1.8(a).

The full opinion is available at: http://www.nysba.org/CustomTemplates/Content.aspx?id=67819.

NYSBA Ethics Op. 1105 (Oct. 2016)
Imputation of Conflicts of Interest for Part-Time Government Lawyers

In Opinion 1105, a lawyer was of counsel to a law firm and received court appointments in criminal matters. Another partner in the same firm recently started working part-time for the local public defender's office. The inquiring lawyer asked whether he could continue to represent his court-appointed clients if the representation of those clients would create a conflict of interest with the public defender's office. The Opinion reasoned that under Rule 1.10, when lawyers are associated in a firm, none of them may undertake a representation when any of them would be prohibited from undertaking that representation owing to a conflict of interest. Citing prior ethics opinions, the Opinion concluded that the part-time attorney was "associated" with the firm for the purposes of the conflict rules. Further, where two law firms share a common lawyer, "a conflict of interest is imputed to both firms." Thus, the Opinion concluded that the lawyer working as a part-time public defender could not represent a client in private practice "where another lawyer in the public defender's office is disqualified from undertaking the representation, unless the conflict may be and is waived." That conflict would also be imputed to all of the other lawyers in the firm, including the lawyer who received court appointments. The one exception to this rule is if the conflict could be properly waived under Rule 1.7(b), which requires informed consent from each affected client. The Opinion cautioned, however, that "when the lawyer seeks consent from a client who is receiving free legal services, the lawyer must consider whether such consent would be freely given."

The full opinion is available at: http://www.nysba.org/CustomTemplates/Content.aspx?id=67820.


N.Y. City Formal Op. 2017-1 (2017)
Fee-Sharing Between Lawyer Referral Services

Opinion 2017-1 addressed whether a lawyer may pay a fee to a bar association's lawyer referral service, if the referral service intends to share the referral fee with a lawyer referral service operated by a different bar association. Rule 7.2(a) prohibits a lawyer from paying a referral fee except if the fee is paid to a "qualified legal assistance organization." In turn, a "qualified legal assistance organization" is defined in Rule 1.0(p) as: (i) a legal aid and public defender office; (ii) a military assistance office; (iii) a legal referral service operated by a bar association; and (iv) certain bona fide organizations providing legal services to their beneficiaries or members. Thus, Rule 7.2 does not prohibit a lawyer from paying a referral fee to a bar association legal referral service. The Opinion concluded, therefore, that there is no reason why "one lawfully-operated referral service (or other qualified legal assistance organization) cannot cooperate with, and share referral fees with, another, as long as the lawyer's required payment to the second referral service is not increased by virtue of the fact that it will be divided." The Opinion continued, "fee-sharing between bar associations' referral services does not cause any harm against which the fee-sharing rule protects and is consistent with the purposes for which Rule 7.2 exempts bar associations' referral services from the restrictions against paying a person or organization for a referral." The Opinion noted, however, that the analysis would be different if the original referral was not made by a duly-qualified assistance organization. In that event, any subsequent fee-sharing would be prohibited.

The full opinion is available at: http://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/formal-opinion-2017-1-payment-of-fees-to-a-legal-referral-service.

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.