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 represent a client in a lawsuit financed by a litigation-funding company in which the lawyer is an investor?
No. Even with disclosure and consent, the lawyer's investment routes financial assistance to the client and gives the lawyer a proprietary interest in the claim, violating Rules 1.8(e) and 1.8(i); tho…
When a law school clinic and a legal services group serve as co-counsel, must they clear conflicts across all their clients?
No. Separate firms acting as co-counsel on particular matters are not 'associated in' one firm under Rule 1.10, so they must clear conflicts only for the shared co-counsel matters, not across all thei…
Can a law firm draft a will for an expert it regularly calls to testify for its clients, and must it disclose that relationship?
Yes, and generally no disclosure is required. Drafting a will for a treating provider the firm calls as a witness does not create a disqualifying conflict, and the firm need not volunteer the relation…
Can a law firm amend its retainer mid-case to secure unpaid fees with a confession of judgment and a mortgage?
Yes, if it complies with Rule 1.8(a). Securing accrued, fixed-amount fees by a confession of judgment and collateral mortgage during a pending matter is a business transaction with differing interests…
Can a lawyer represent a private applicant before a town planning board when partners in the same firm serve as the town's attorney?
No. This is a nonconsentable concurrent conflict. When firm lawyers serve as Town Attorney and Deputy Town Attorney advising the planning and zoning boards, no lawyer in the firm may represent an appl…
Can a New York law firm send an educational newsletter to a broad audience, and accept payment from a real estate brokerage to offset the cost?
Yes to both, with limits. An educational newsletter is not advertising and may go beyond current and former clients; if it primarily promotes the firm it is advertising and must meet Rules 7.1 and 7.3…
Can a family-law attorney who serves as a foster parent keep representing children and other parties in Family Court proceedings in the same county where the social services department runs the foster care system?
Yes, in general. Usually the foster-parent role poses no significant risk to the lawyer's judgment, so no consent is needed. But where a reasonable lawyer would see a significant risk that the foster-…
Can a lawyer in the firm where the newly elected district attorney was once a partner represent criminal defendants the DA's office is prosecuting?
Yes, if the district attorney has fully severed ties with the firm and a reasonable lawyer would not find a significant risk that the prior relationship will adversely affect the lawyer's judgment. If…
Can a lawyer who earns a broker's commission in a real estate deal also act as the buyers' attorney, even if the legal work is pro bono and the buyers are long-time clients and friends?
No. A lawyer who takes a commission as broker in a real estate transaction may not also serve as a lawyer to a party in that transaction. The conflict is per se nonconsentable, and offering the legal …
Can an immigration firm work with a nonlawyer foreign migration agent who refers clients and handles communication and translation, charge the client for those nonlegal services, and what must be disclosed?
Yes, if the relationship is not exclusive, the agent does not interfere with the lawyer-client relationship, the client consents to the referral conflict, and the lawyer pays nothing for referrals. Th…
Can a public defender appear in the court where another member of the same public defender office serves as a part-time judge?
No. Members of a public defender office are generally one firm, and the part-time judge's own judicial-conduct rules bar the judge from letting office colleagues practice in the judge's court. Under R…
Can a lawyer use a nonlawyer-owned online service to find and hire per diem lawyers for court appearances, and does the client have to consent?
Yes. A lawyer may use or list in a nonlawyer-owned online per diem directory if the service does not recommend or select the lawyers, is open only to lawyers, and charges a flat fee. Client consent is…
Can a lawyer refer clients to a third-party lender to finance the lawyer's fees, when the lawyer pays the lender and gets loan-status updates?
Yes, if the lawyer obtains informed consent and complies with Rule 1.8(f), and the fees the lawyer pays the lender do not amount to financial assistance to the client under Rule 1.8(e). The lawyer sho…
If a firm partner is a part-time public defender, can another lawyer in that firm take assigned cases the public defender's office is conflicted out of?
Not without informed written consent. A part-time public defender's conflicts run to the whole PD office and then are imputed across his private firm, so other firm lawyers are disqualified from cases…
Can a lawyer secure unpaid legal fees by having the client sign a promissory note and a mortgage on the client's property?
Yes, but it is a business transaction under Rule 1.8(a): the terms must be fair and reasonable, fully disclosed in writing, the client must give informed written consent, and the client must be advise…
Can a lawyer represent a company against a competitor that is a former client, when the former client benefits if the new client loses?
Yes, if the new matter is not the same as or substantially related to the former representation. The opinion concludes that purely economic competition does not make a former client's interests 'mater…
What ethics rules govern the office of an insurance company's in-house legal department that defends the company's policyholders?
The in-house lawyers must protect the insureds' confidential information, avoid conflicts, and comply with the other Rules. That means physically and electronically separating the department's work an…
Can a New York lawyer who is also a real estate broker link from the law firm website to a page about the brokerage?
Yes. A lawyer may link from the firm site to a real estate brokerage profile if both the site and the linked page comply with the advertising rules; the lawyer must also heed Rule 5.7 on ancillary non…
May a prosecutor make waiving ineffective-assistance-of-counsel claims a routine condition of a plea bargain?
No. The opinion concludes that routinely conditioning a plea bargain on a defendant's waiver of ineffective assistance of counsel claims is prejudicial to the administration of justice under Rule 8.4(…
Can a lawyer admitted in both New York and the UK who runs a UK firm with non-lawyer owners also become a partner in a separate New York law firm?
Yes, conditionally. The opinion concludes the lawyer may join a separate New York firm without violating Rule 5.4 as long as the lawyer principally practices in the foreign jurisdiction (or the predom…
Does a lawyer have to tell the client when co-counsel on the same matter appears to have committed malpractice?
Yes. The opinion concludes that a lawyer must disclose to the client information the lawyer reasonably believes shows that co-counsel, still representing the client, committed a significant error or o…
Can a New York lawyer refer a client to an investment firm and accept a commission from that firm for managing the client's settlement money?
No. The opinion concludes that taking a fee or commission from an investment firm for referring a client whose funds came from the lawyer's representation creates a non-consentable conflict, because t…
When a law firm only knows an adverse party by a street name, does its conflict check have to go beyond its written engagement records?
It can. The opinion concludes that when a firm has reason to believe it may have represented a materially adverse party it knows only by street name, an effective conflict check may require consulting…
Can a firm that represents nursing homes form a nonprofit to serve as guardian for the homes' residents, and then represent that nonprofit?
It may form the nonprofit, but representing it can create conflicts. The opinion concludes property-guardianship work may be consentable depending on the facts, but if the matter involves the guardian…
Can a part-time county Department of Social Services lawyer also take assigned-counsel criminal and Family Court cases?
Sometimes. The opinion applies a facts-and-circumstances test: the lawyer may accept criminal or Family Court assignments only where the Department, and the law-enforcement officials the lawyer works …
Can a criminal defense lawyer serve on a District Attorney's conviction integrity committee and still represent criminal defendants?
Yes. The opinion concludes that reviewing wrongful-conviction claims is not a prosecutorial function, and an unpaid volunteer reviewer who is not controlled by and shares no general case access with t…
In a joint representation, can a lawyer give one co-client the file and keep that request secret from the other co-clients?
It depends. The opinion concludes co-clients are presumed to share information and to have full file access, but where one co-client asks the lawyer to keep the file request secret from the others and…
Can a lawyer represent both an immigrant child in removal proceedings and the proposed guardian in the related Family Court guardianship case, and can the child consent to the conflict?
Yes, if the lawyer reasonably believes the lawyer can competently and diligently represent both and obtains each client's informed consent confirmed in writing. The child may consent if the lawyer bel…
What does a firm owe a prospective client who turns out to be the adversary of an existing client, and must it tell the existing client about the consultation?
The firm owes the prospective client confidentiality under Rule 1.18(b) for information learned in the consultation. Whether the consultation must be disclosed to the existing client, or bars continue…
Can a lawyer guarantee a bank loan that a client takes out to pay the lawyer's retainer?
No. The opinion concludes that Rule 1.8(e) bars a lawyer from advancing or guaranteeing financial assistance to a client in litigation, and none of the rule's three exceptions covers guaranteeing a lo…
Can a part-time town prosecutor's firm sue a neighboring village over its zoning or planning board's actions?
Yes, under stated conditions. The opinion concludes the firm may bring an Article 78 proceeding against the Village's zoning or planning board where the Town and Village are separate entities with sep…
Can a lawyer who used to be a Family Court judge later represent, in private practice, a party who appeared before them, and can the lawyer's firm take the case if the former judge is screened?
No. Under Rule 1.12(a) a former judge may not privately represent a client in a matter on the merits of which the judge acted, and that conflict cannot be waived even with everyone's consent. The conf…
If a lawyer's fee for representing a client was paid by the client's parent, can the lawyer later take a case against that parent?
Yes. A third party who pays a client's fee is not the lawyer's client just by paying. As long as the lawyer did not give the parent reason to believe he was a client, representing the other parent aga…
Can an elected county clerk keep a private law practice, and what limits do the conduct rules place on it?
Yes, subject to any law governing the office. Under Rule 1.11(d) and (f), the clerk may not participate in any matter before the clerk's office in which the clerk was personally and substantially invo…
Can a city attorney buy property the city took in tax foreclosure and is reselling, and what conflict rules apply?
Yes, if the purchase complies with government-ethics law, the lawyer does not advise the city (or supervise those who do) on property sales, and the lawyer holds no confidential city information beari…
Can a criminal defense lawyer advise a client to accept a plea deal that waives the right to later claim ineffective assistance of counsel?
Yes, unless a reasonable lawyer would find a significant risk that the lawyer's own interest in avoiding an ineffective-assistance claim would adversely affect the lawyer's judgment. If that personal-…
Can a lawyer take a court appointment for an incapacitated person when the lawyer's firm also represents the care facility where that person lives?
Yes for Court Evaluator or Guardian roles, because those do not create a lawyer-client relationship with the alleged incapacitated person, so Rule 1.7(a) is not implicated. Serving as counsel for the …
Can a New York lawyer accept part of a real estate broker's commission as a referral fee instead of charging the client for legal work on the deal?
No. A lawyer may not accept a share of the broker's commission as a referral fee in lieu of charging the client a legal fee, even with the client's informed consent, because the lawyer's financial int…
Can a lawyer publicly defend a judge against unfair media criticism if the lawyer has a case pending before that judge?
A lawyer ordinarily may respond to unjust media criticism of a judge. But a lawyer with a case pending before the judge may not publicly support the judge if doing so is likely to require the judge's …
Are the separately incorporated local offices of a national legal services project one law firm for conflict and confidentiality purposes?
Yes, on these facts. A national legal services project whose local sections share a single case management system giving every attorney access to all clients' information, and whose regional attorneys…
Can a government agency lawyer work on matters involving litigation she earlier handled against the agency for a private client?
Not on the same matter. A lawyer who participated personally and substantially in the prior litigation may not advise the agency on that same matter (such as compliance with its settlement), and conse…
After withdrawing because of a conflict of interest, can a law firm refer the former client to specific new attorneys?
Yes. The opinion concludes that a firm withdrawing for a conflict may give the former client a good-faith referral to attorneys it believes appropriate, consistent with Rule 1.16(e)'s duty to avoid pr…
Can a New York lawyer who is also a real estate broker represent the seller and broker the same sale?
Yes. The opinion concludes a lawyer who is also a licensed broker may represent a seller and act as broker in the same sale if the broker fee is fixed, non-refundable, and not contingent on closing, a…
Can a New York lawyer who works as a real estate broker represent an owner in foreclosure to then broker the firm's purchase of the property?
No. The opinion concludes the dual role is a nonconsentable conflict under Rule 1.7: the lawyer's interest in brokering the later purchase would taint the lawyer's judgment in the foreclosure case, an…
Do the usual conflict rules apply to a lawyer who gives short-term pro bono advice through a bar association program?
Under Rule 6.5, the conflict rules bind a limited-services pro bono lawyer only when the lawyer has actual knowledge of a conflict, and even then the conflict is not imputed to others in the firm; the…
Can a New York law firm take on new clients against an entity it represented before, over that entity's objection?
It depends on whether the entity is a current or former client. The opinion concludes a firm may not oppose a current client absent written informed consent, but may oppose a former client in a matter…
Can a lawyer who works as a marital mediator refer the couples to the lawyer's spouse, a psychiatrist, for free counseling sessions?
Yes. As a third-party neutral the mediator is not representing clients, so Rule 1.7's personal-interest conflict rule does not apply; but the lawyer must tell the parties the lawyer does not represent…
Can a New York lawyer accept payment of fees from a third party whose interests may be adverse to the client, when the client also still owes the lawyer money from earlier work?
Yes. Under Rule 1.8(f) the lawyer may accept a third party's payment if the client gives informed consent, the lawyer's independent judgment is not compromised, and confidences are protected. A client…
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 lawyer whose firm represents a school district also work as a paid coach for that district's sports team?
Yes, unless a reasonable lawyer would conclude there is a significant risk that the coaching interest would adversely affect the lawyer's professional judgment for the district under Rule 1.7(a)(2). T…
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 a New York lawyer who represents a mentally incapacitated client also represent the client's sister in a guardianship petition when the sister's plan conflicts with the client's stated wishes?
No. The opinion concludes it is a conflict of interest, and because the incapacitated client cannot give informed consent, it is non-consentable; the lawyer may suggest the sister petition and point h…
Can a New York lawyer who used to be a judge's law clerk appear, or help others appear, before that same judge after leaving the clerkship?
Yes, on new matters. Rule 1.12(b)(2) only bars appearing in a matter in which the lawyer participated personally and substantially as a clerk, absent all parties' informed consent confirmed in writing…
Can a New York real estate lawyer accept a referral fee from a home security company for clients who sign up using a code on flyers in the lawyer's office?
Yes. The opinion concludes that nothing bars a lawyer from being paid for providing passive space for a third party's flyers when the lawyer does not recommend the service and it is unrelated to the l…
When a New York lawyer is general counsel to a closely held corporation, must the lawyer raise an issue that helps the company but hurts some directors personally, and whom does the lawyer represent?
The opinion concludes the lawyer represents the entity, not the directors or shareholders, and must raise an issue needed for the company's informed decision while explaining to the affected constitue…
Is a county public defender's office a single firm for conflict imputation when its assistant public defenders work independently from separate private offices?
Yes. The opinion concludes a statutory public defender office is one firm under Rule 1.10(a), so one assistant's Rule 1.7, 1.8, or 1.9 conflict is imputed to the others, including part-timers acting a…
If a real estate lawyer also acts as a paid title insurance agent in the same deal, is the legal fee automatically excessive where the two roles overlap?
No. The opinion modifies N.Y. State 576 and holds that overlap between the work done for the client and for the title abstract company does not automatically make the legal fee excessive; reasonablene…
Can an appellate lawyer in a legal aid office argue that the defendant got ineffective assistance from a trial lawyer in the same office?
Only with a valid client waiver. Trial counsel's own conflict in attacking his work is essentially nonconsentable, but a colleague's imputed conflict is judged from the colleague's position, so the ap…
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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.