New York City Bar Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the New York City Bar, with full citations and source links on every page.
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Can a lawyer use the engagement letter to agree up front that client files will be returned or destroyed when the matter ends?
Yes, with the client's informed consent. The engagement letter may authorize the lawyer to return or discard client files at the end of a matter, except documents with intrinsic value (wills, deeds, n…
Can a New York lawyer ask an unrepresented, non-subpoenaed witness to refrain from voluntarily giving information to the opposing party?
Yes. The opinion concludes a lawyer in civil litigation may ask an unrepresented witness to refrain from voluntarily providing information to other parties, but may not advise the witness to evade a s…
Can jointly represented clients agree in advance to let their lawyer accept an aggregate settlement without each client's approval?
The opinion concluded that the informed-written-consent requirement for aggregate settlements under Rule 1.8(g) cannot be waived; absent court approval, a lawyer may not bind jointly represented clien…
Can a New York lawyer or firm pay a pro bono organization to receive pro bono case referrals?
Yes. The opinion concludes such payments are permitted if the fees are 'usual and reasonable' and the organization is a 'qualified legal assistance organization' under Rule 7.2(b), and the lawyer stil…
When a firm hires a law school graduate who worked in a school legal clinic, can the firm take or keep matters against the clinic's former clients?
Generally yes. The firm may accept or continue matters adverse to clinic clients, but where the matter is substantially related or the graduate gained material confidences, the firm should screen the …
What can a New York lawyer say to a self-represented person on the other side, and must the lawyer correct that person's confusion about the lawyer's role?
The opinion concludes a lawyer may advise a self-represented adversary to get counsel and may give incontrovertible facts or law, but may not mislead them; the lawyer must clarify her role when she kn…
Can a New York lawyer email or write directly to a represented person if the lawyer copies that person's counsel at the same time?
No. The opinion concludes the no-contact rule bars a simultaneous direct communication to a represented person and her counsel unless the lawyer first obtains the other lawyer's prior consent or is au…
Must a lawyer keep client emails and electronic documents, and can the lawyer charge the client to retrieve and produce them?
A lawyer must retain emails and electronic documents the client may later need, the same as paper files, and a client has a presumptive right to the lawyer's entire file subject to narrow exceptions. …
When in-house counsel represent a parent and its corporate affiliates, when is joint representation a conflict and can it be waived in advance?
For wholly owned affiliates, the parent's interests control and there is no conflict between separate clients. For affiliates the parent controls but does not wholly own, inside counsel must treat eac…
Can a law firm second (loan) a lawyer to a client or host organization without the firm inheriting the host's conflicts and vice versa?
Yes, if during the secondment the lawyer is not 'associated' with the firm: the ongoing relationship is narrowly limited and the lawyer is securely screened from the firm's client confidences. A parti…
Can a lawyer contact the in-house counsel of a represented organization directly, without going through its outside counsel?
Yes, generally. The no-contact rule does not bar contacting an organization's in-house counsel, even when outside counsel is retained, so long as the contacting lawyer has a reasonable, good-faith bel…
Can a New York lawyer outsource legal support work (research, document review, drafting) to a non-lawyer or foreign lawyer overseas?
Yes, if the New York lawyer rigorously supervises the overseas non-lawyer to avoid aiding the unauthorized practice of law and ensure competence, preserves client confidences (with informed consent be…
Can a New York law firm ask a client to sign an advance waiver agreeing not to object if the firm later represents another client against it?
Yes. A firm may obtain an advance waiver of future conflicts if it adequately discloses the implications, advantages, and risks so the client can give informed consent, and a disinterested lawyer woul…
After a law firm pitches a prospective client in a 'beauty contest' but isn't hired, can it later represent the opposing party in that matter?
Yes, unless a lawyer learned confidences from the prospective client that could be significantly harmful in the matter. Even then, the firm may proceed if it got an advance conflict waiver, if the inf…
When a conflict is thrust upon a firm mid-representation (for example by a client's acquisition) and one client won't consent, must the firm drop both clients?
No. For a genuinely unforeseeable 'thrust upon' conflict that arose through no fault of the lawyer and does not risk material confidences, the firm is not always required to withdraw from both. It may…
In New York, can a retired attorney who still does unpaid legal work use 'attorney-at-law' letterhead, and must they disclose that they are retired?
Yes. A New York attorney who is retired (and so may practice without charging a fee) may use professional letterhead identifying as an attorney-at-law, and may but need not state that they are retired…
When an insurance company is a party and represented by counsel, can the opposing lawyer talk directly to its claims adjuster about settlement?
No, not without the actual prior consent of the insurer's lawyer. DR 7-104(A)(1) bars the contact even when the adjuster initiates it, even though the adjuster is sophisticated, and even to speed sett…
Can a lawyer voluntarily testify or give an affidavit about a former client without being subpoenaed?
There is no per se bar, but the lawyer may not voluntarily reveal a former client's confidence or secret unless the client consents, another DR 4-101(C) exception applies, or the information is genera…
If a lawyer holds confidential information from one client that would help another client, does that alone create a conflict barring the second representation?
No, not by itself. Merely possessing embargoed confidential information does not create a conflict; the question is whether either representation would be impaired, namely whether the lawyer cannot av…
Can a volunteer lawyer give pro bono help on a consumer Chapter 7 bankruptcy while the lawyer's firm represents some of the debtor's creditors in unrelated matters?
Yes, typically. Representing a Chapter 7 debtor while the firm represents the debtor's creditors in unrelated matters usually creates no DR 5-105 conflict, so the volunteer can rely on an initial-inte…
When a government lawyer represents an agency, who is the client, and when can the lawyer also represent the agency's officials or employees in a civil case?
A government lawyer's client is ordinarily the agency, not the public at large or the individual official. The lawyer may also represent an employee personally only if a disinterested lawyer would fin…
When may a lawyer represent both a corporation and its officers or employees in a government investigation?
There is no per se bar, but the joint representation is permissible only if a disinterested lawyer would conclude it serves both the company's and the constituent's interests under DR 5-105(C), both c…
What ethical duties does a lawyer owe when representing a plaintiff class in a class action?
The lawyer needs individual clients' informed consent to assert class claims; owes competence, diligence, and confidentiality to absent class members; needs the class lawyer's or court's consent befor…
What must a lawyer do after receiving a fax, email, or letter containing the other side's confidences that was sent by mistake?
Promptly notify the sender, stop reading the communication, and return or destroy it if asked. In limited circumstances the lawyer may submit it for in camera review by a tribunal, and may use informa…
What conflict-checking records and systems must a New York law firm keep to comply with DR 5-105(e)?
Every New York law firm, including solo practitioners, must keep written or electronic records of each engagement (at minimum client names, adverse party names, and a description of the matter) and mu…
Can a lawyer secretly tape record a conversation without telling the other party it is being recorded?
Not as a matter of routine practice; undisclosed taping is improper because it smacks of trickery. The opinion permits it only where the lawyer has a reasonable basis to believe that disclosure would …
Can a law firm use a generic domain name like 'newyorklawyer.com' instead of its firm name, and advertise with it?
Yes, with conditions. A domain name need not contain the firm name, but the website must conspicuously show the real firm name, the domain must not be false, misleading, or imply special expertise, an…
If a client decides on her own to contact the represented opposing party, can her lawyer advise her on what to say?
Yes. Where the client conceives the idea of contacting a represented party, the no-contact rule does not bar the lawyer from advising on the substance, so long as the lawyer does not use the client to…
If a lawyer puts client escrow funds in an interest-bearing account and the retainer is silent on interest, can the lawyer keep the interest?
No. Interest earned on client escrow funds belongs to the client and must be paid to the client; if the client cannot be found, the lawyer deposits the funds with the Lawyers' Fund for Client Protecti…
When can a lawyer reveal a client's confidences to stop a crime, and does possessing stolen property count as an intent to commit a future crime?
A lawyer may disclose only to prevent a not-yet-completed crime, and only on a reasonable (not merely suspected) belief the client intends it; a client's continuing possession of stolen property, when…
Can a lawyer narrow the scope of a representation to carve out the part that would conflict with another current or former client?
Yes. A lawyer may limit a representation to eliminate the adverse portion and avoid a conflict, if the client consents after full disclosure and the limited representation is still adequate; the lawye…
Can one law firm represent clients with differing interests in a corporate deal, or a client adverse to another firm client in a separate matter?
Yes, with disclosure and informed consent, if a disinterested lawyer would believe the firm can competently represent each client; the transactional context is judged more flexibly than litigation, we…
If someone emails confidential information to a firm through its website, can the firm still represent the opposing existing client, and can it use the information?
Receiving an unsolicited email does not by itself disqualify the firm from representing an existing client in the same matter; but absent an adequate website warning that the information will not be c…
Can a law firm call another firm 'affiliated' on its letterhead, and does that force them to clear conflicts as one firm?
A firm may use 'affiliated' or 'affiliate' only if the relationship is close, regular, continuing, and semi-permanent (the equivalent of 'of counsel'); firms that do so must treat each other's clients…
Can a lawyer take stock or options in a startup client as payment for legal services instead of a cash fee?
The opinion concluded there is no per se bar on accepting securities as compensation for legal services, but the arrangement may trigger the business-transaction safeguards of DR 5-104(A), may present…
Can a lawyer charge a client interest on unpaid legal fees, and at what rate?
The opinion concluded a lawyer may charge interest on unpaid fees, whether or not the retainer agreement provides for it, if the client is informed of the charge and given a reasonable chance to pay b…
Can a lawyer submit bids for legal work that clients post on an internet comparison website without violating the advertising or referral rules?
The opinion concluded that responding to a client-initiated request for representation on an internet bidding site is not, by itself, advertising or solicitation, and the no-fee bid plan is not a proh…
When former joint clients become adversaries, can a lawyer give one the file if it reveals the other's confidential information?
The opinion concluded a lawyer who jointly represented two clients who became adversaries may not give one documents or information revealing the other's sensitive confidential matters unless both con…
Can a firm sue the State of New York while one of its lawyers serves pro bono as special counsel to a district attorney's office?
The opinion concluded a firm may represent clients in matters directly adverse to the State of New York while a lawyer at the firm serves pro bono as special counsel to the Manhattan District Attorney…
What must a retiring or dissolving lawyer do with a client's original will held for safekeeping when the client can't be found?
The opinion concluded a retiring lawyer or dissolving firm may contact clients to return wills or get disposal consent, but for clients who cannot be located the duty to keep the original will secure …
When two law firms merge, must the firm get each client's consent, or at least notify clients, about the change?
The opinion concluded a merging firm need not obtain clients' express consent to their matters being handled by the new firm, but should notify clients where the merger would leave them represented by…
Can a lawyer agree, as part of a settlement, not to represent other clients in future suits against the same opposing party?
No. The opinion concluded a lawyer may not enter a settlement agreement that restricts her own or another lawyer's right to practice, including a promise not to represent other clients against the set…
Can a lawyer follow a fugitive client's instructions to sell assets, pay creditors, and forward proceeds, and keep representing the client civilly?
The opinion concluded a lawyer may sell a fugitive client's assets, pay her creditors from escrow, and forward the balance to her, and may continue the related civil representation, so long as the law…
Does representing a trade association make every member a client, barring the lawyer from later opposing a member?
The opinion concluded there is no per se rule that representing a trade association creates an attorney-client relationship with each member; whether a member becomes a client, and thus whether the la…
Can a lawyer in good standing employ a disbarred or suspended attorney to work in the law office?
The opinion concluded it is clearly improper for a lawyer or firm to employ a disbarred or suspended attorney in any capacity related to the practice of law, and that what acts amount to the unauthori…
How do the advertising, fee-sharing, and confidentiality rules apply to a law firm's website, online services, and email?
The opinion concluded a firm need not file its website with disciplinary authorities but should keep a copy about a year; may not pay its internet provider a share of fees earned; may not offer online…
Can a lawyer publicly take a personal position, such as in bar association or legislative activity, that is contrary to a client's interests?
Yes, within limits. The opinion concluded a lawyer may espouse a personal viewpoint adverse to a former or present client's interest, without client consent, as long as the lawyer does not reveal clie…
Can a lawyer charge a contingent-fee client interest on litigation expenses the lawyer advanced and financed by a bank loan?
Yes, with limits. The opinion concluded a lawyer may charge a client interest on advanced litigation expenses to recover the lawyer's own bank borrowing cost, so long as the interest does not exceed w…
Can a firm call a non-exclusive per diem lawyer an 'associate' or 'of counsel'?
Not 'associate'; 'of counsel' depends on the relationship. The opinion concluded a lawyer engaged on a non-exclusive, per diem basis cannot be called an 'associate,' and may be called 'of counsel' onl…
Can a lawyer place an ad in a lawful publication that also carries prostitution-related or other sexually related material?
Yes. The opinion concluded that an otherwise Code-compliant advertisement is not rendered improper solely because it appears in a lawfully published periodical containing 'prostitution related' advert…
Must a New York LLP law firm state on its letterhead that some of its partners are professional corporations?
No, in New York. The opinion concluded a New York limited liability partnership need not indicate on its letterhead that some partners are themselves professional corporations, because no member of an…
Can a lawyer charge a forfeitable initiation retainer and advertise a fee discount without stating the standard fee?
No to both. The opinion concluded a lawyer may not charge an initiation/retainer fee that is forfeited entirely if the client terminates, and may not advertise that some clients get a discount from 's…
Can a law firm do pro bono criminal appeals for both a DA's office and Legal Aid at the same time?
Yes. The opinion concluded a firm may simultaneously volunteer in a DA's office program (representing the State) and in a Legal Aid program (representing indigent defendants) on criminal appeals, beca…
Can a lawyer represent, or be represented by, the opposing counsel in an unrelated matter the two are litigating against each other?
It depends on the facts. The opinion concluded there is no per se bar; the propriety turns on a fact-specific own-interest conflict analysis under DR 5-101(A), and only the lawyer who becomes a client…
Can a law firm publicly announce that it has hired a law student or other nonlawyer?
Yes. The opinion concluded a law firm may issue an announcement of its employment of a law student or other nonlawyer, provided the announcement makes clear that the person is not a lawyer and is work…
Can a lawyer publicly criticize a sitting judge after the Commission on Judicial Conduct declines to act on the lawyer's complaint?
Yes, within limits. The opinion concluded a lawyer may make public statements critical of a sitting judge's conduct if the criticisms are well-founded, even though the Commission on Judicial Conduct d…
Can a lawyer list an honorary degree or fellowship in advertisements and on letterhead, even though it was not an earned degree?
The opinion concluded a lawyer may list honorary degrees in advertising and on letterhead, rejecting the view that only 'earned' degrees may be listed, but the nature of honorary distinctions requires…
Can a lawyer settle a client's civil exposure by agreeing the other side won't report the client's possible crime, and can the aggrieved party's lawyer negotiate such a non-reporting deal?
The opinion concluded a lawyer for a potential civil and criminal defendant may offer to settle the civil claim conditioned on the adversary not reporting the crime, and that the aggrieved party's law…
If a lawyer and client can only communicate through a language or sign-language interpreter, must the lawyer consider and arrange for a qualified interpreter?
The opinion concluded that a lawyer representing a client with whom effective direct communication is only possible through an interpreter must evaluate the need for interpreter services and take step…
What are a lawyer's duties when supervising paralegals and other nonlawyer staff who deal with clients and the public, and how may those staff be paid?
The opinion concluded a lawyer must effectively supervise nonlawyer employees, not aid the unauthorized practice of law, ensure client confidences are kept and the public is not misled about nonlawyer…
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Legal ethics opinions from the New York City Bar 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.