New York State Bar Association Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the New York State Bar Association, with full citations and source links on every page.
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Can a lawyer charge both an hourly fee and, on top of it, a percentage of any recovery (a hybrid or modified contingent fee)?
The opinion concluded yes, in a case where a contingent fee is allowed, so long as the total fee is reasonable, which usually means a lower hourly rate, a lower contingency percentage, or both; crimin…
Can a lawyer who investigates public corruption for a municipal department of investigation take part in partisan political activity?
The opinion concluded no: a municipal examining attorney with subpoena power who investigates public corruption and refers matters for prosecution is subject to the same bar on partisan political acti…
Can a lawyer list a paralegal as a 'Certified Legal Assistant' on letterhead when a private association issued the certification?
The opinion concluded yes, provided the materials disclose that the National Association of Legal Assistants issued the certification and the lawyer has confirmed NALA certifies everyone who meets obj…
Can a lawyer join a real estate broker's program that selects the lawyer to represent both the home buyer and the lender at a reduced flat fee?
The opinion concluded no: the lawyer's dependence on the broker's continued approval created a personal-interest conflict that could not be cured by consent, and the broker's promotion of the selected…
Can a lawyer let a paralegal use the lawyer's signature stamp to sign checks drawn on the client escrow account?
The opinion concluded yes, with conditions: a nonlawyer may not be a signatory on the special account, but a lawyer may authorize a paralegal to apply the lawyer's signature stamp to escrow checks at …
Can a part-time city or county legislator defend criminal cases that require cross-examining police or opposing a prosecutor whose budget the legislature controls?
The opinion concluded no: a lawyer who sits on a municipal legislature with budgetary or appointment authority over a prosecutor's office or police department may not take a criminal defense matter re…
Can a lawyer who is on a nonprofit's referral list and receives referrals from it make a charitable donation to that organization?
The opinion concluded yes, as long as the donation is clearly charitable and is not part of a tacit arrangement to compensate the organization for the referrals; otherwise it would be paying for refer…
Can a divorce lawyer or the lawyer's firm take a contingent fee for a tort suit by the client against the spouse, even if it is tried with the matrimonial case?
The opinion concluded yes: DR 2-106(C)(2) bars a contingent fee only where it turns on securing a divorce or on the amount of support, maintenance, equitable distribution, or property settlement, so a…
Can a lawyer for the petitioner in a guardianship proceeding accept a fee from the petitioner on top of the fee the court awards from the incapacitated person's assets?
The opinion concluded yes, provided the total fee is not excessive under DR 2-106 and accepting the extra fee does not violate any law, court rule, or court order; the lawyer must also consider disclo…
Can a law school clinic's supervising attorney represent a client against a lawyer who is on the law school's board of trustees or faculty?
The opinion concluded yes, but only if the clinic attorney reasonably believes the trustee's or faculty member's role will not affect the attorney's professional judgment and, after full disclosure, t…
When can a lawyer who is also a licensed insurance broker sell insurance products to the lawyer's own clients and to non-clients?
The opinion concluded the lawyer may sell insurance to a client only where insurance advice is tangential to the representation, with full disclosure and consent; where advising on the insurance is ce…
Can a part-time village attorney who handles prosecutions serve as a political party committeeman or circulate designating petitions for candidates?
The opinion concluded no: a part-time village attorney who performs a prosecutorial function may not serve as a party committeeman or circulate designating petitions, because prosecutors must avoid pa…
Does a matrimonial lawyer have to get a signed retainer agreement and give the client-rights statement before charging for an initial consultation?
The opinion concluded that a matrimonial lawyer need not obtain a signed retainer agreement before charging for a consultation, as long as the fee is not excessive and is disclosed in advance, but mus…
Can a lawyer report a client's unpaid bill to a credit bureau to pressure the client into paying?
The opinion concluded that a lawyer may not report a client's delinquent account to a credit bureau, because the status of the account is a client secret and the report is not necessary to collect the…
Can a lawyer accept a referral fee from an investment advisor for sending the lawyer's clients to the advisor?
The opinion concluded that a lawyer may not accept a referral fee from an investment advisor, because the conflict is non-consentable: the fee turns on how much of the client's money is entrusted to t…
Can a court-appointed lawyer withdraw and tell the court that the indigent client lied about being too poor to hire counsel?
The opinion concluded that assigned counsel may not disclose client confidences or secrets in the motion papers to support withdrawal, but may disclose a client secret if the court orders it; a confid…
Can a lawyer keep the records the bar requires (bank statements, escrow records, bills) as scanned computer images instead of paper?
The opinion concluded that records the Code lets a lawyer keep as 'copies' may be stored as reliable computer images, and records created electronically may stay electronic, but items the Code names s…
Can a lawyer pay a potential class member who investigates the case, and can that payment be a percentage of the court-awarded fee?
The opinion concluded that a lawyer may pay a potential class member from the lawyer's own funds for investigation only if the client stays ultimately liable to repay it, and may pay a reasonable hour…
Can a lawyer join a private divorce-mediation referral service that advertises and routes callers to mediators by location?
The opinion concluded that a lawyer may not participate in a divorce-mediation referral service that no bar association operates, sponsors, or approves, because lawyer-provided mediation is the practi…
Can an assistant district attorney work on the campaign to re-elect their boss, the incumbent district attorney?
The opinion reaffirmed N.Y. State 675: an assistant district attorney may not actively participate in the incumbent district attorney's reelection campaign, because partisan political activity is inco…
Can a lawyer send a paralegal to handle a real estate closing while the lawyer is only reachable by phone?
The opinion concluded that a lawyer may delegate attendance at a real estate closing to a paralegal, with the lawyer available by phone, but only where the closing is purely ministerial and the lawyer…
Can a lawyer run ads or send letters to a company's employees inviting them to join an employment discrimination class action?
The opinion concluded that a lawyer may advertise for and mail letters to potential class members inviting them to join class action litigation, including targeted recipients, as long as the lawyer fi…
Can an assistant district attorney campaign for the incumbent district attorney's re-election?
The opinion concluded that an assistant district attorney may not take part in campaign activities for the incumbent district attorney's re-election, such as circulating petitions or campaigning publi…
Can a lawyer appear before a town justice when the lawyer represents a relative of another town justice, or after representing the judge's own adult child in an unrelated matter?
The opinion concluded the lawyer may appear in both situations: one judge's disqualifying relationship is not imputed to other judges of the same court, and prior representation of the judge's adult c…
Can a part-time assistant district attorney and a part-time confidential law clerk to a County Court judge be law partners, and what limits does that put on their practice?
The opinion concluded the two may be partners: the confidential clerk may not practice before the County Court or do criminal work, and the assistant DA may not appear before the judge who employs the…
Can an estate-planning lawyer accept a referral fee from an insurance company for steering a client who then buys life insurance?
The opinion concluded that an estate-planning lawyer may not accept a referral fee from an insurance company for recommending a client, because the conflict is non-consentable: life insurance is not f…
A part-time City Court judge shares a law firm with a part-time assistant district attorney. What criminal and civil work can each of them, and the rest of the DA's office, take on?
The opinion concluded that because the part-time assistant DA cannot defend criminal cases anywhere in the state, the associated part-time judge (and the whole firm) is also barred from criminal defen…
Can a lawyer calculate a contingent fee on the gross recovery before deducting litigation expenses?
The opinion concluded that in personal injury and wrongful death cases the Appellate Division rules require the fee to be computed after deducting expenses, but in other cases where contingent fees ar…
Can a lawyer pay someone an hourly fee to help find and explain evidence in a case when that person might also testify?
The opinion concluded a lawyer may pay an individual whatever the client consents to for pre-trial fact-finding, because DR 7-109(C) governs only witnesses; if the person testifies, payment is limited…
Can a lawyer accept a referral fee from a mortgage broker for sending a real estate client to that broker?
The opinion concluded that a lawyer may accept a referral fee from a mortgage broker only if the client consents after full disclosure, the lawyer remits the fee to the client on request, the aggregat…
Can a lawyer refer a personal injury client to a finance company that will lend the client money for living expenses, repayable only if the claim succeeds?
The opinion concluded a lawyer may refer a client to a lending institution that loans money for living expenses on a contingent basis, so long as the lawyer does not advance or guarantee the loan, own…
Can a lawyer join a barter exchange and accept 'trade dollars' for legal services?
The opinion concluded a lawyer may participate in a commercial barter exchange if the exchange does not control the lawyer's professional judgment or steer clients to particular lawyers, its advertisi…
Can a lawyer run a pay-per-minute '900 number' service giving legal advice by phone, advertise it on the radio, and refer callers to other firms?
The opinion concluded a lawyer may give legal advice on a paid 900-number call if the lawyer is competent, the fee is reasonable, and the lawyer discloses the limits of the advice and of any attorney-…
Can a lawyer contact an opposing party directly when that party once claimed to have a lawyer, but the lawyer never confirms or denies the representation?
The opinion concluded a lawyer may contact the opposing party directly only after a complete and thorough inquiry, including a series of letters warning that silence will be taken as proof of no repre…
Can a lawyer use actors to dramatize real client testimonials, or use made-up clients and testimonials, in radio or TV ads?
The opinion concluded a lawyer may use actors to dramatize an actual client's testimonial (with the client's consent and clear disclaimers) and may use fictional situations without testimonials, but m…
Can a lawyer team up with a real estate broker to represent homeowners in tax-grievance proceedings if the lawyer just doesn't tell anyone he's a lawyer?
The opinion concluded no: representing homeowners in tax-review proceedings is the practice of law, so a lawyer may not affiliate with a nonlawyer to do it, and hiding the lawyer's status to evade tha…
A lawyer represents both a corporation and one of its officers; the officer admits perjury in a pending arbitration. Must the lawyer reveal it, and can the dual representation continue?
The opinion concluded the lawyer must urge the officer to rectify the perjury but, because the admission is a protected client secret, may not reveal it to the tribunal; the lawyer may withdraw, and w…
Can a district attorney prosecute a case where the defendant is represented by the DA's spouse, sibling, or a former campaign adviser?
The opinion concluded that a DA may not prosecute a case in which the defendant is represented by the DA's spouse or sibling (or their firm); whether a former unofficial adviser triggers disqualificat…
Can a lawyer require a client to advance litigation expenses, and withdraw if the client refuses to be liable for them?
The opinion concluded that a lawyer may not assume ultimate liability for litigation expenses but may ask the client to advance them, and may seek leave to withdraw if the client refuses ultimate resp…
Can a lawyer contact officials or employees of a government agency that is represented by counsel in the matter?
The opinion concluded that a lawyer may communicate with officials or employees of a represented government entity if the person lacks power to bind the entity, the communication is directed to the en…
Can a bar association referral service require lawyers to remit a percentage of the fees earned from referred clients, and can the lawyer pass that cost to the client?
The opinion concluded that a bar-operated lawyer referral service may require participating lawyers to pay a percentage of fees earned from referrals, and the lawyer may pass that cost along to client…
Can a company's in-house lawyers staff a compliance help line where employees report misconduct, including their own?
The opinion concluded that corporate lawyers may participate in a compliance program and staff a help line if they comply with the rules on representing an organization, by telling employees with pote…
What must a lawyer for an estate executor do when the executor breaches, or plans to breach, fiduciary duties, and must the lawyer tell the beneficiaries?
The opinion concluded that the executor's lawyer must call on the executor to fulfill fiduciary duties, refuse to assist misconduct, and consider withdrawal; whether the lawyer may disclose the execut…
Can a lawyer who served as a child's law guardian in an abuse proceeding later represent the child in a civil damages suit against the abuser?
The opinion concluded that a law guardian may represent the same child in a related civil action against the alleged abuser, provided the lawyer does not exploit the fiduciary relationship to obtain t…
Can a lawyer act as a bail bond agent or own an interest in a bail bond agency that sells bonds to the lawyer's clients?
The opinion concluded that, assuming no legal bar, a lawyer may profit from a bail bond agency's sale of bonds to non-clients, but may not act as bail bond agent for a person the lawyer represents, be…
Can a New York lawyer work for a licensed foreign legal consultant, or form a partnership with a foreign lawyer such as a Japanese bengoshi?
The opinion concluded that a New York lawyer may be employed by a duly licensed foreign legal consultant acting within authorized limits, and may partner with a Japanese lawyer where the foreign lawye…
Can a lawyer take a town board seat that requires a financial-disclosure form listing clients who do business with the town?
The opinion concluded that a lawyer may not file a disclosure form revealing a client confidence or secret without consent, so the lawyer must obtain each affected client's consent, secure a court rul…
Can a lawyer co-own a corporation with nonlawyers that helps homeowners win real estate tax reductions and pays out profits by share?
The opinion concluded that a lawyer may not form such a corporation: the lawyer conceded the work is the practice of law, so the corporation's furnishing it would violate Judiciary Law Section 495, an…
Can a legal aid office set up a panel of volunteer lawyers to take clients it has to turn away because of a conflict of interest?
The opinion concluded yes: an independent conflicts panel may represent eligible clients the office cannot take, the panel may share the office's malpractice insurance, and a board member of the organ…
Does a recycling ordinance excuse a lawyer from confidentiality duties, and how must a lawyer recycle paper that contains client confidences?
The opinion concluded that a lawyer must comply with a general recycling law but must still protect client confidences and secrets, screening papers and shredding or otherwise securing those that coul…
Does the advocate-witness rule apply in an arbitration, so a lawyer who may have to testify must consider withdrawing as the advocate?
The opinion concluded that an arbitrator or arbitration panel is a 'tribunal' under the Code, so the advocate-witness rule applies and a lawyer who ought to be called as a witness must withdraw as adv…
Can a defense lawyer represent a client being prosecuted by an assistant DA the lawyer is dating, and is the lawyer's whole firm disqualified?
The opinion concluded a lawyer in a frequent dating relationship with the prosecuting assistant DA may not defend that prosecutor's cases, because client consent cannot cure the conflict in a criminal…
Can a lawyer put advertising materials in an information packet that a car dealer hands to people buying cars?
The opinion concluded a lawyer may place advertising material in a car dealer's information package for car buyers, so long as the ad is not false or misleading, the dealer does not discuss or endorse…
Can a New York law firm form a partnership with a foreign law firm organized as a stock company?
The opinion concluded that a New York law firm may partner with a Swedish law firm organized as a stock company, provided the New York lawyers confirm the Swedish lawyers' training and ethical standar…
Can a part-time municipal lawyer defend criminal cases in the local court, and can they handle civil matters there?
The opinion concluded that part-time municipal attorneys, whatever their title, may not undertake criminal defense before the courts of the locality they serve, but there is no per se bar on represent…
Can a parent's lawyer in a custody case question the child without the consent of the child's court-appointed law guardian?
The opinion concluded that a parent's attorney may not communicate with a child for whom the court has appointed a law guardian without the law guardian's consent, because the no-contact rule treats t…
Can a lawyer who serves on a town zoning board of appeals represent a personal injury plaintiff suing that town?
The opinion concluded that, absent evidence of improper influence or impaired professional judgment, an attorney-member of a town zoning board of appeals may represent a personal injury plaintiff suin…
What job titles may a law firm's paralegals use on business cards and letterhead without misleading the public into thinking they are lawyers?
The opinion concluded that paralegal titles may not be false or misleading: 'Senior Paralegal' is fine, but titles like 'Legal Associate,' 'Public Benefits Specialist,' and the various 'Advocate' titl…
Can one lawyer represent two plaintiffs injured in the same accident against the same defendant when there will not be enough money to pay both claims in full?
The opinion concluded that the plaintiffs have differing interests when available assets cannot satisfy both claims, so the lawyer must decline unless it is obvious he can adequately represent both an…
When a private lawyer is elected district attorney, can the new DA prosecute someone the lawyer's former firm represents, and is the whole office disqualified?
The opinion concluded that the new DA may prosecute a former-firm client where the lawyer did not participate personally and substantially and learned no relevant confidences; if the DA is disqualifie…
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Legal ethics opinions from the New York State Bar Association 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.