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 who owns a real estate company act as the lawyer on closings referred by a broker at that company, where the broker and the company split the commission?
No. The opinion concludes that because the lawyer has a financial interest in the brokerage commissions his company splits with its brokers, serving as the closing lawyer creates a per se non-waivable…
Can a New York lawyer mediate a divorce, then represent one party to draft the settlement papers, and offer limited-scope services to pro se clients from an out-of-state office?
Yes, with conditions. The opinion permits a lawyer-mediator to later represent one party with all parties' informed written consent, permits limited-scope ghostwriting for pro se clients (disclosure r…
Can a single law firm market itself under two different assumed names (d/b/a) for two separate practice areas?
Yes. The opinion concludes a law firm may operate under two different assumed names that distinguish separate practice areas, as long as no particular facts make the use false, deceptive, or misleadin…
Can a New York lawyer be sold to, merge into, or work for a foreign law firm that has nonlawyer owners?
Generally no. The opinion concludes a New York lawyer may not practice in a firm (in New York or elsewhere) with direct or indirect nonlawyer ownership unless the lawyer principally practices in the o…
Can a solo practitioner use 'and Associates' in the firm name when the only other lawyers she works with are employed by other firms?
No. The opinion concludes that 'associate' means a lawyer employed by the firm, so a sole practitioner with no employed lawyers may not call lawyers at other firms her 'associates' or use 'and Associa…
Is it advertising or prohibited solicitation for a lawyer to ask a fertility clinic to list him on its website as an assisted-reproduction lawyer?
It is advertising, not solicitation. The opinion concludes that asking to be listed on the clinic's website is attorney advertising subject to Rule 7.1, but is not a solicitation because it is not dir…
Can an estate-planning lawyer own a separate company that manages the assets of trusts the lawyer sets up for clients?
Yes, with safeguards. The opinion concludes the lawyer's interest in the management company is a consentable Rule 1.7 conflict requiring informed written consent at the outset, that nondistinct nonleg…
Can a solo practitioner put his late father's name on the firm letterhead when the father never practiced with the firm?
No. The opinion concludes a firm may not list on its letterhead the name of a deceased attorney who is not in a continuing line of succession with the firm, because the implied affiliation is deceptiv…
Can a lawyer accept a settlement offer for a client after the client has died, and may the lawyer stop pursuing the matter?
No to settling, yes to stopping. The opinion concludes that a client's death terminates the lawyer's authority, so the lawyer may not accept a settlement without authorization from the decedent's duly…
Can a lawyer enclose a draft complaint with a demand letter and say it will be filed if the matter is not settled by a deadline?
Yes, in most cases. The opinion concludes that threatening to file an enclosed draft complaint by a deadline is permissible, except in unusual situations where the threat is a false statement under Ru…
Is an out-of-state firm's mass email to a list of New Yorkers seeking class-action plaintiffs a regulated solicitation?
Yes. The opinion concludes that an email blast to a list of specific New York individuals seeking class-action plaintiffs is both an advertisement and a solicitation under Rules 7.1 and 7.3, and New Y…
Can a lawyer use a website domain name that is different from the name the firm practices under?
Yes. The opinion concludes a lawyer may use a domain name (such as a descriptive practice-area name) that differs from the firm name, as long as neither the firm name nor the domain name, separately o…
Can a New York lawyer advise a recreational cannabis business, take equity in lieu of fees, and personally use marijuana, even though it remains federally illegal?
Yes. The opinion concludes that, given current federal enforcement forbearance, a lawyer may help clients comply with New York's Recreational Marijuana Law, may use and home-grow marijuana personally,…
When two jointly represented clients give the lawyer opposite instructions, can the lawyer follow one of them, especially if the other may have diminished capacity?
No. The opinion concludes that when jointly represented co-purchasers give mutually exclusive instructions, their interests differ and the lawyer cannot continue representing both under Rule 1.7; one …
Can a lawyer run a business renting office space and equipment to other lawyers, and is that nonlegal business subject to the ethics rules?
Yes. The opinion concludes that renting office space to other lawyers is a permitted nonlegal business; under Rule 5.7(a)(3) it is subject to the ethics rules only if a renter could reasonably believe…
Can lawyers co-own a divorce mediation business with a nonlawyer, accept referrals from it, and enter a reciprocal referral agreement with it?
Lawyers may co-own a mediation business with a nonlawyer only if it provides solely nonlegal services and employs no lawyers to give legal advice; they may accept referrals and enter a non-exclusive r…
After a lawyer changes firms, may she contact the clients she used to represent to tell them she has moved and offer to review their estate plans?
Yes. The opinion concludes that a communication to former clients that is germane to the earlier representation is neither an advertisement nor a solicitation, so Rules 7.1 and 7.3 do not apply; it mu…
Can separate, independent law firms form a PLLC and market themselves jointly as members of 'ABC Law Group PLLC' when they do not actually practice law together?
No. The opinion concludes that 'ABC Law Group PLLC' would be a false, deceptive, and misleading trade name because it implies the member firms are associated in the practice of law within the PLLC whe…
Can a part-time assistant county attorney whose office handles only civil work take assigned defense of state parole-violation cases?
Generally yes. The opinion concludes that there is no per se bar when the county attorney's office does no criminal prosecution, the lawyer appears before no county officials, and county law is not at…
Can a law firm pay a former lawyer their agreed share of fees on cases they worked on after that lawyer leaves to take public office?
Yes, subject to any governing law. The opinion concludes that paying a departed lawyer a fee share for work performed at the firm is a permitted separation-agreement payment under Rule 1.5(h), not a r…
Can a law firm keep a founding partner's name in the firm name after that partner leaves to take a nonlegal job or becomes Of Counsel?
Yes. The opinion concludes that there has never been a per se bar to keeping a former partner's name in the firm name; a firm may keep it when the partner leaves for nonlegal work or becomes Of Counse…
Can an assistant county attorney moonlight as a paid consultant for the software vendor whose contract with the county the lawyer helped negotiate and implement?
Not unless law expressly allows it. The opinion concludes that Rule 1.11(d)(2) bars the lawyer from negotiating private employment with a vendor party to a matter the lawyer handles, and the arrangeme…
Can a criminal defense firm sign a retainer that limits its work to the pretrial stage and requires the client to hire separate counsel for trial?
Only rarely. The opinion concludes that a pretrial-only criminal retainer is permitted under Rule 1.2(c) only if the limit is reasonable, the client gives informed consent, and it does not prejudice t…
When a court-assigned client insists on pressing a motion the lawyer believes is frivolous, can the lawyer just rest on the client's pro se papers or refuse to go further?
No. The opinion concludes that a lawyer may not advance frivolous arguments under Rule 3.1(a); the lawyer may present any non-frivolous arguments, may seek leave to withdraw if the client insists on f…
Can a lawyer pay to join an online matching service that picks 'the best traffic lawyer' for a client and vouches for that lawyer's track record?
No. The opinion concludes that a service that vouches for a lawyer's credentials and recommends the lawyer as the 'best' or 'right' choice is making a prohibited recommendation, so the lawyer's paymen…
When a county defunds its public defender's office, can the office hand its open and closed client files to the county's assigned counsel program?
No, not without client consent. The opinion concludes that the assigned counsel program is not a lawyer or law firm, so the office may deliver open files only to the client or successor counsel and mu…
When a personal injury client dies and the lawyer must hire separate probate counsel to appoint a representative, can the lawyer charge those probate fees as a disbursement?
Yes, with limits. The opinion concludes that probate counsel's fees may be charged as a disbursement in the personal injury action if they are reasonably incurred to continue that action and are not e…
Can a public defender appear before a part-time town justice who also works full-time in the county attorney's office that advises the public defender?
Maybe. The opinion concludes the two offices are not a single law firm on these facts, so Rule 8.4(f) does not bar the appearance, but the public defender may have a Rule 1.7(a)(2) personal conflict i…
Can a retired judge, or the judge's new firm, represent a party in the same easement dispute the judge ruled on a decade earlier?
The opinion concludes the former judge is personally and non-waivably disqualified under Rule 1.12(a) from the same matter, but the firm to which the judge is of counsel may take the representation un…
Can a real estate lawyer take closing referrals from her own paralegal, who is also a broker earning a commission on the deal?
Yes, if the lawyer has no stake in the commission and the referrals do not create a significant risk to her independent judgment under Rule 1.7(a)(2); if such a risk exists she needs informed written …
After New York's 2020 amendment to Rule 7.5(b), can a law firm practice under a trade name that contains no lawyer's name, such as an acronym or a street name, or keep a retired partner's name?
Yes. The opinion concludes that the amended Rule 7.5(b) lets a firm practice under a trade name (including an acronym or street-address name) or keep a retired partner's name, as long as the name is n…
Can a law firm refer its clients to a litigation financing company owned by the spouse of a lawyer who is Of Counsel to the firm?
No. The opinion concludes that because the Of Counsel lawyer could not personally advance litigation funding to clients under Rule 1.8(e), he cannot refer clients to his spouse's financing company, an…
Can a government lawyer apply for and negotiate a private-sector job with a company that is an adverse party in a matter the lawyer is currently handling for the agency?
No. The opinion concludes that a lawyer currently serving as a government employee may not negotiate for private employment with a party the lawyer is personally and substantially handling a matter ag…
After buying a retired lawyer's practice, can a firm note 'former office of [retired lawyer]' and that lawyer's dates of practice on the letterhead of the acquired office?
Yes. The opinion concludes that a firm that purchased a retired (now deceased) lawyer's practice may list that lawyer's name and dates of operation on the acquired office's letterhead, because doing s…
Can a lawyer withdraw from a case because they fear contracting COVID-19 at a required in-person court appearance?
Yes, with the tribunal's permission. The opinion concludes that a lawyer may seek to withdraw where fear of contracting COVID-19 at in-person appearances makes it difficult to represent the client eff…
Can a lawyer charge a flat fee with advance payments and let the client decide whether to pay part of the final balance based on satisfaction?
Yes, within limits. The opinion concludes a lawyer may charge a non-excessive flat fee with advance payments and a satisfaction-based discount, but advance fees are payments on account unless the reta…
Can a lawyer pay a referral fee to a lawyer who has since taken 'retired' registration status with the Office of Court Administration?
Yes, if the referring lawyer assumed joint responsibility for the matter. The opinion concludes that an OCA-retired lawyer is still a member of the bar, so Rule 5.4(a) does not bar the split, and the …
Can a lawyer also work as a wealth manager, charge the same clients for both, send clients to a financial planner for a referral fee, or sell financial products to non-clients?
The opinion concludes a lawyer may not provide legal and wealth management services to the same client for separate fees (an unconsentable conflict), may not take a referral fee for sending a law clie…
Can a lawyer run a separate website that helps pro se litigants generate court filings through an automated system without forming an attorney-client relationship?
Sometimes. The opinion concludes a lawyer may operate a separate business offering generic do-it-yourself forms only if it is not used to solicit the lawyer's legal practice; once an attorney reviews …
How must a former government lawyer respond to a subpoena or court order seeking confidential information from a matter they handled in government service?
The opinion concludes a former government lawyer may disclose a former client's confidential information when reasonably believed necessary to comply with a court order, but must first consult the for…
Does a lawyer who gives free, limited-scope legal help through a nonprofit program still get Rule 6.5's relaxed conflict rules if the program pays the lawyer a nominal fee?
Yes. The opinion concludes that paying participating lawyers a nominal or below-market fee does not displace Rule 6.5's actual-knowledge conflicts standard, but the third-party payment triggers Rule 1…
Can a lawyer refer a client to a litigation funding company owned by the lawyer's sibling for a non-recourse loan to cover litigation expenses?
Yes, with a written waiver. The opinion concludes the referral is not barred by Rules 1.8(e) or 1.8(i) because the lawyer has no interest in the sibling's company, but it creates a Rule 1.7(a)(2) pers…
After a lawyer leaves a firm, must the lawyer keep representing the firm's clients who did not retain the lawyer's new firm, just because the old firm sent over their files?
No. The opinion concludes that clients who did not retain the departing lawyer's new firm are former clients to whom the lawyer owes only the limited duties owed any former client; the old firm cannot…
Does a lawyer for an executor owe duties to the estate's beneficiaries, and what may the lawyer do if the executor appears to be hiding assets from the Surrogate's Court?
The opinion concludes the lawyer's only client is the executor, not the beneficiaries; the lawyer may withdraw for non-cooperation or suspected fraud, must disclose the executor's fraud to the tribuna…
Does a New York lawyer have to keep a firm's thousands of old, closed client files indefinitely, or can the lawyer dispose of files no one has asked for?
The opinion concludes that, with key exceptions, no Rule requires a lawyer to keep unsought closed files indefinitely; the lawyer must indefinitely retain intrinsically valuable originals (wills, deed…
Can a lawyer admitted only in New York practice at a New York office of a D.C.-based firm that uses a trade name, and may the New York office keep a surname-based name and advertise the affiliation?
The opinion concludes that a lawyer admitted only in New York may not practice in New York under a firm trade name, even one permitted where the firm is organized; the New York office may keep a surna…
When a municipal corporation counsel learns that municipal employees may have misappropriated public funds, what must the lawyer do, and does having represented those employees in their official capacity change the answer?
The opinion concludes that corporation counsel's client is the municipality alone, so the lawyer should report credible allegations of serious employee wrongdoing up to the highest municipal authority…
Can a New York lawyer add nonlawyer family members as minority members of the PLLC through which the lawyer practices, so they can get retirement and health benefits?
No. The opinion concludes that Rule 5.4(d) bars a lawyer from practicing in a for-profit entity in which a nonlawyer holds any ownership interest or membership, so a PLLC providing legal services may …
Can a New York lawyer ask a client to name an emergency or alternate contact person, and reach out to that person when the lawyer cannot otherwise reach the client?
Yes. The opinion concludes that a lawyer may ask a client to designate an alternate contact and, when ordinary means fail, may contact that person and disclose that the lawyer has been unable to reach…
Can a New York lawyer who serves as co-executor of an estate use the lawyer's attorney trust account to hold and pay out estate funds that come to the lawyer only as executor, not as the estate's attorney?
No. The opinion concludes that an attorney trust account is only for funds received incident to the practice of law, so funds the lawyer holds solely as an executor, in a separate fiduciary capacity, …
Can a New York lawyer who also works as a village police officer represent defendants in traffic court, in the county where the officer serves or in other counties?
No in the same county. The opinion concludes the officer may not represent traffic court defendants in the county where the village police department sits, because that Rule 1.7(a)(2) conflict is not …
Can a legal aid society avoid conflict imputation between its divisions and programs by screening them, or by treating each division or program as a separate law firm?
The opinion concludes that screening cannot defeat conflict imputation under Rule 1.10(a), but certain screening elements can help show that a not-for-profit legal services organization's divisions ar…
Can one law firm represent two clients in separate but related criminal cases arising from the same events, where each client is a witness in the other's case, and can the conflict be waived?
The opinion concludes that concurrently representing both clients is a conflict because their interests differ, and the conflict is imputed firm-wide; whether it can be waived is highly fact-intensive…
Can a New York lawyer market freelance or per diem services to other lawyers under the name 'Surname Esquire,' and must the lawyer keep a separate bank account and other records?
The opinion concludes a lawyer may market per diem services to other lawyers as 'Surname Esquire'; marketing aimed only at lawyers is not attorney advertising; a freelance lawyer who holds no one else…
Can a lawyer take a spot on a counterparty's list of designated counsel for the funders in a financing deal, paid from the deal proceeds, when the counterparty tries to limit the lawyer's role?
The opinion concludes a lawyer may serve as designated counsel recommended and paid by the counterparty only if the third party does not interfere with the lawyer's independent professional judgment a…
Can a New York lawyer holding hundreds of old original wills dispose of them when the testators cannot be located after a diligent search?
No. The opinion concludes that a will is property under Rule 1.15(c), so a lawyer custodian who cannot locate the testator must safeguard the wills indefinitely unless the law provides a way to file o…
Can a New York contingency-fee lawyer charge interest on litigation disbursements the lawyer advanced but the client did not pay, and must the lawyer use the 9% statutory rate?
The opinion concludes a contingency-fee lawyer may charge interest on unpaid disbursements if a signed written agreement discloses the terms, the client is billed promptly with a chance to pay first, …
Can a lawyer who is outside counsel to a company communicate with third parties from the client's email address, with the client's logo and a title like 'Corporate Counsel and Chief Compliance Officer'?
Yes, if true. The opinion concludes that under the Rule 7.5(a)(4) safe harbor, a lawyer who devotes substantial professional time to the client may use the client's email, logo, and an accurate office…
Could a New York lawyer open a New York branch of an out-of-state firm and practice under the firm's trade name, where the firm's home state permits trade names?
No, under the rule as it stood. The opinion concluded that Rule 7.5(b) barred a New York lawyer from practicing under a trade name in New York even as a branch of an out-of-state firm allowed to use t…
When a lawyer acts as a divorce mediator, which ethics rules apply, how must the lawyer disclose the neutral role, and can the lawyer later file the uncontested divorce for one party?
The opinion concludes a lawyer-mediator is governed by Rule 2.4, not the client-representation rules, so the lawyer may run the mediation and set fees freely while disclosing the neutral role; afterwa…
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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.