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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After a real estate closing, can or must a lawyer who learns the buyer and seller committed fraud (including bad checks) disclose it to the lender or law enforcement?
Generally no. The fraud is confidential information under Rule 1.6, and Rule 3.3 does not apply because no tribunal is involved. Disclosure is permitted only in narrow situations: to withdraw a repres…
Can a New York lawyer appear before a judge when the lawyer's part-time secretary also works for a related judge on the same court?
Yes. A lawyer's familial tie to one judge and a secretary shared with that judge do not bar the lawyer from appearing before a different judge of the same court, so long as the lawyer protects client …
Can a New York lawyer who represents lenders in foreclosure pass leads on those properties to a real estate company the lawyer plans to join?
Not without the lender client's informed consent. Information the lawyer learns about foreclosure properties is confidential, and a personal stake in the buyer creates a conflict under Rule 1.7; the l…
Can a New York lawyer represent one regular client lending money to another regular client, take an advance waiver to sue the borrower later, and accept stock in the lender as a fee?
Yes, if the conflict consents satisfy Rule 1.7(b), the borrower's confidential collateral information is disclosed only with that client's consent, and a stock fee meets the Rule 1.8(a) business-trans…
Can a law school clinic that once represented a nonprofit later help a rival nonprofit with the same goals apply for tax-exempt status?
Yes, without the former client's consent. The tax-exemption application is not substantially related to the prior work, would not use the former client's confidential information, and the two nonprofi…
Can an insurer's non-attorney claims staff review insurance staff counsel's files, which contain the insured client's confidential information?
No, not without the insured's informed consent. The claims-department staff are not part of staff counsel's law firm and are not supervised by counsel, so under Rule 1.6 the confidential information m…
Must a New York lawyer who has withdrawn and never appeared before the court disclose that a false statement he earlier gave opposing counsel may be used as evidence?
No. The opinion concludes a lawyer who has not appeared before the tribunal has no duty and no right under Rules 1.6 or 3.3 to disclose confidential information to correct a prior false statement made…
Can a New York lawyer reveal a former client's confidential financial information in the client's bankruptcy to collect an unpaid fee, and what duty applies if the client misled an earlier court?
The opinion concludes the lawyer may disclose confidences in the bankruptcy only to the extent reasonably necessary to collect the fee, and that if the client gave false material evidence to a tribuna…
Must a lawyer give a deceased client's file to the executor of the estate who requests it?
It depends on the executor's legal rights. If the executor is legally entitled to the same access the decedent had, the lawyer should ordinarily provide the whole file. If not, the file's confidential…
Must a legal services lawyer who reviewed a prospective client's file, but never appeared in the matter, report to the tribunal or to police that the person gave a false name and address and may have failed to register as a sex offender?
No. Because the lawyer never represented the person before the tribunal and never offered the false information as evidence, Rule 3.3 imposes no mandatory disclosure, and Rule 1.6(b)(2) is permissive …
After a homeowner consulted a lawyer about claims against the home's seller but never retained the lawyer, may the lawyer represent the contractor suing that homeowner for unpaid repair fees?
Possibly. Under Rule 1.18, the lawyer may take the contractor's case unless the lawyer received confidential information from the homeowner that would be significantly harmful in the fee dispute; if i…
Can a lawyer employed by a nonprofit credit-counseling agency provide legal services to the agency's clients and help the agency seek grants to fund those services?
Yes, if the agency lawfully offers legal services under Judiciary Law 495 and the lawyer gets each client's informed consent to third-party payment, keeps the agency from controlling his professional …
Can a law firm scan incoming mail, destroy the paper originals, and keep only electronic copies?
Yes, with safeguards. A firm may destroy paper mail and keep electronic copies if it uses a reliable method to identify and retain the items that must be kept in original form, and protects confidenti…
Must a New York lawyer disclose that the client has been secretly reading the opposing party's privileged emails?
Generally no. The lawyer's knowledge is confidential under Rule 1.6, and absent an exception (the client is committing a crime or fraud that only disclosure can prevent, or other law requires it) the …
Can a New York lawyer store client data on off-site backup tapes, and can electronic copies satisfy the record-retention rules?
Yes to off-site backup tapes if the lawyer takes reasonable care to protect confidentiality. Whether electronic copies suffice depends on the record: some items (such as bank statements and canceled c…
Can solo lawyers who share office space also share one computer for confidential client information if they have separate passwords?
Yes, if they take reasonable care. Office-sharing solo lawyers may use a shared computer for client confidences only if the actual security measures, including password systems and their use, reasonab…
Can a lawyer serve as a referee in a foreclosure case when one of the lawyer's clients holds a judgment on the property?
Yes, with conditions. The opinion permits it if the lawyer makes any needed disclosures, has no circumstances that would let impartiality be reasonably questioned under the judicial-conduct rules, and…
Can a New York lawyer give a bank or law enforcement the emails and documents from a 'client' who turned out to be running a counterfeit-check scam?
Yes. If the lawyer reasonably concludes the purported client was trying to defraud the lawyer rather than obtain legal services, that person is neither a client nor a prospective client, so the confid…
Can a lawyer take a case that might require impleading people the lawyer used to represent?
Yes, if the new matter is not substantially related to the prior representations, even though impleading former clients is materially adverse to them; but the lawyer still may not use or disclose thos…
Can a New York lawyer keep a client's identity secret and use the escrow account to make an anonymous charitable donation for the client?
Yes. A lawyer must keep a client's identity confidential when the client asks, and may run an anonymous donation through the escrow account, provided the lawyer makes no false statement, segregates an…
When a firm hires a new lawyer who learned an adversary's confidences while working as a paralegal, is the firm disqualified, or can screening cure it?
Rules 1.9 and 1.10 do not apply to confidences acquired solely as a paralegal, so the conflict is not imputed to the hiring firm; the firm must instead supervise, instruct, run a conflicts check, and …
When spouses at different firms end up on opposite sides of a case, is the conflict imputed to their colleagues, and can it be waived?
Not automatically. A Rule 1.10(h) spousal conflict is not automatically imputed to colleagues in either firm, but may be imputed on the facts; where imputed, in civil matters the conflict is often wai…
Can a lawyer who once represented a wife take on the husband in their later divorce, when the prior matter was a different family-court case?
Only with the former client's informed written consent if the two matters are substantially related. They are substantially related when a reasonable lawyer would see a substantial risk that confident…
Can two different lawyers at the same firm represent both the mortgage lender and the seller in the same residential real estate closing?
Only in limited circumstances. The representation always involves differing interests under Rule 1.7(a)(1), so the firm may proceed only if each lawyer reasonably believes they can give competent and …
Can a lawyer disclose a client's confidential information to prevent harm or a crime, and is information learned after the representation ended still confidential?
A lawyer is permitted, but not required, to disclose a current or former client's confidential information when the lawyer reasonably believes it necessary to prevent reasonably certain death or subst…
Can in-house general counsel make staff attorneys sign a confidentiality agreement as a condition of employment?
Yes, even one that on its face reaches information beyond what the Rules protect, so long as it includes a savings clause making plain it does not restrict the lawyer's right to practice law after lea…
Must a lawyer report a former employer-lawyer's misconduct, and can the lawyer tell that lawyer's clients?
A lawyer must report another lawyer's misconduct under Rule 8.3(a) when it raises a substantial question about that lawyer's honesty, trustworthiness, or fitness and reporting reveals no confidential …
Can a lawyer store client confidential information with an outside online 'cloud' storage provider, and what precautions are required?
Yes. A lawyer may use online cloud storage for client files if the lawyer takes reasonable care to keep the information secure and confidential under Rule 1.6, and stays abreast of changing technology…
When a lawyer learns that the client gave false material evidence to a tribunal, must the lawyer disclose it, even over confidentiality, and must the lawyer withdraw?
Under Rule 3.3, the lawyer must take reasonable remedial measures even if that means disclosing confidential information, but disclosure to the tribunal is required only if no lesser remedial measure …
If a client committed fraud on a court before New York's new Rules took effect on April 1, 2009, does the lawyer's duty to disclose follow the old Code or the new Rule 3.3?
The old Code. The committee concludes that when the client's fraud occurred before April 1, 2009, the lawyer's disclosure obligation is governed by former DR 7-102(B)(1), which did not permit disclosu…
Can a law firm cooperate with a client's outside billing auditor and pay the auditor a percentage of the firm's billings directly from the firm's account?
Yes, with the client's informed consent. The committee concludes that cooperating with a client-hired auditor and paying it a percentage of billings from the firm's account is an allocation of costs b…
Can a New York lawyer provide legal services by phone to employees referred by an Employee Assistance Program that pays the lawyer, and later take private work from those employees?
Yes to both, if the Code is otherwise honored. The committee concludes a lawyer may serve EAP-referred clients by telephone and be paid by the EAP, and may accept ancillary private retention, subject …
If two jointly represented clients want opposite litigation strategies, can the lawyer keep representing one of them?
Not both. The committee concludes a lawyer must withdraw from joint clients whose strategies significantly diverge, and may continue for one only with the other's informed consent and if the lawyer ca…
Can a lawyer use a free email service, like Gmail, that scans message content to display targeted ads, given client confidentiality duties?
Yes. The committee concludes a lawyer may use an email provider whose computers scan messages to generate targeted advertising, so long as no humans other than sender and recipient read the messages a…
If a lawyer learns that a client's court affidavit was false, what must the lawyer do, and how much of the client's confidence can the lawyer reveal?
The lawyer must ask the client to correct the affidavit, and if the client refuses, must withdraw the lawyer's own certification to the court. The lawyer may disclose only what is implicit in that wit…
Does a lawyer who emails a document containing metadata that reveals client confidences violate the duty of confidentiality?
Lawyers must exercise reasonable care when transmitting documents by email to prevent disclosure of confidences and secrets contained in metadata. What reasonable care requires varies with the circums…
A matrimonial lawyer certified a client's financial statement to family court and later learns it omitted substantial assets through the client's fraud. Must the lawyer withdraw the statement?
Yes. The lawyer must call on the client to correct the fraud, and if the client refuses, must withdraw the false financial statement and disclose confidences to the extent implicit in that withdrawal.…
A law firm hires a paralegal or secretary who used to work at another firm, maybe one it now opposes. What must the firm do to supervise that nonlawyer and check for conflicts?
The firm must adequately supervise the nonlawyer so confidences from the former firm are not disclosed or exploited. A formal conflict check is not always required, but is advisable where the nonlawye…
Can a personal injury lawyer also represent the client in a deal with a litigation funding company that advances cash for a share of the recovery, and charge a separate fee for that work?
If the financing transaction is legal, the lawyer may represent the client in it and may charge a separate, non-excessive fee, subject to caveats: no ownership of or compensation from the funder, a DR…
How far must a New York firm supervise its partners, associates, and staff who are licensed abroad but not admitted in New York?
The opinion concludes a New York firm must make reasonable efforts to ensure lawyers subject to the New York Code comply with it, and must supervise foreign-licensed lawyers (treated as nonlawyers und…
If a lawyer filed an immigration petition for a client's wife, can the lawyer later represent the wife in an abuse-based self-petition against that client?
No, not where the husband is a current or former client, because the matters are substantially related and the wife's interests are materially adverse, and informed consent cannot be obtained without …
Can a lawyer use software to pull hidden data and prior drafts out of an electronic document an opposing lawyer sent?
The opinion concluded that lawyers may not ethically use available technology to surreptitiously examine and trace e-mail and other electronic documents to uncover information the sender did not inten…
When a union's lawyer handles an arbitration involving a union member, does the lawyer owe confidentiality to the individual member or only to the union, and can the lawyer circulate the arbitrator's decision?
The opinion concluded that when the member is the party to the arbitration the lawyer represents the member and must protect the member's secrets; when the union is the party under a collective bargai…
Does a lawyer have to report a non-client third party's violation of law that the lawyer learned about while representing a client?
The opinion concluded that the Code imposes no duty to report a non-lawyer third party's violation of law where no other lawyer and no tribunal is involved, and that the lawyer may in fact be prohibit…
In a civil case, can a lawyer interview an independent contractor working for the opposing corporate party without the consent of the corporation's counsel?
The opinion concluded that a lawyer may communicate with an adverse corporate party's independent contractor without opposing counsel's consent unless the contractor has personally retained counsel in…
Can a plaintiff's lawyer agree, as part of a settlement, to broad confidentiality terms that would effectively keep the lawyer from representing other clients against the same employer?
The opinion concluded that a lawyer may not agree to settlement confidentiality terms so broad that they would restrict the lawyer from representing future clients by barring use of information not pr…
If a lawyer keeps a client's original will, does the lawyer have to track the client's death and file the will, and may the lawyer tell the executor it exists?
The opinion concluded a lawyer has no duty to keep a client's will or to learn of the client's death or file the will absent agreement, but if the lawyer is holding the original after the client dies …
Can an insurance defense lawyer follow the carrier's requirement to use a designated outside legal research firm, and submit the insured's briefs to the carrier's brief bank?
The opinion concluded defense counsel may follow a carrier's direction to use a designated research service if the lawyer reviews the work and effective representation is not diminished; the firm's us…
When a lawyer moves to a new firm, what client information may the lawyer disclose so the new firm can run conflict checks?
The opinion concluded the new firm must seek, and the moving lawyer may disclose, the names of the lawyer's clients and (depending on the old firm's size) the old firm's clients for a reasonable perio…
Can a legal aid office share data pulled from clients' mental health evaluations with a bar association committee for a statistical study without getting client consent?
The opinion concluded the office may provide extracted information for a statistical summary only if it is in a form that no recipient could link to a particular client; if any client could be identif…
Can an insurance defense lawyer send the insured's legal bills to an outside auditor hired by the insurance carrier without the insured's consent?
The opinion concluded a lawyer may not submit an insured's legal bills to an independent audit company employed by the carrier without the insured's informed consent, because the billing records conta…
Can a solo lawyer take on contract or project work from several different law firms, and must the firms tell their clients a contract lawyer is doing the work?
The opinion concluded a lawyer may work as a contract lawyer for one or more firms; DR 5-105 and DR 5-108 apply to the lawyer personally, and whether the firm's vicarious disqualification under DR 5-1…
Can a New York lawyer run and advertise a trademark practice over the Internet, communicate with clients by unencrypted e-mail, and operate under a trade name?
The opinion concluded a lawyer may operate and advertise a trademark practice on the Internet and ordinarily may use unencrypted e-mail for client confidences, subject to conflict checks, advertising …
What should a lawyer do after an adversary law firm's former employee calls unsolicited to report that the firm altered documents?
The opinion concluded the lawyer may not question the former employee further to extract the adversary's confidences, and where the tip suggests fraud the opposing firm may be assisting, the lawyer sh…
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 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 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…
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…
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…
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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.