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 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 …
Can a divorce lawyer settle with the client for less than a court-awarded fee and promise to repay the client anything the opposing party later pays toward that award?
Yes. The committee concludes settling with one's own client for less than a Domestic Relations Law section 237 fee award, and reimbursing the client for amounts later collected from the adverse party,…
Can a law firm represent the underwriters in a securities offering when the issuer picks and pays the firm, and can it also represent the issuer?
Yes, with consent. The committee concludes designated underwriters' counsel may represent the underwriters even though the issuer selects and pays the firm, given disclosure and underwriter consent, a…
Can a New York lawyer take an advance payment retainer into the firm's own account and keep the interest, and require it to cover final fees?
Yes. The committee concludes a lawyer may accept an advance payment retainer, hold it in the lawyer's own account, and keep the interest, and may require an advance retainer to cover final fees, provi…
Can a lawyer take a security interest in a client's fee-recovery lawsuit, or its proceeds, to secure unpaid fees from an earlier case the lawyer is also handling?
Not while handling that suit. The committee concludes that, absent an available charging lien, a lawyer who represents the client in the fee-recovery litigation may not take a security interest in tha…
Can a retainer agreement get a client to agree in advance that the lawyer may withdraw if the client fails to pay fees?
No advance assent. The committee concludes a retainer may not secure a client's advance consent to withdrawal for nonpayment, but it may accurately advise the client that the lawyer may withdraw, subj…
When a lawyer represents a legal services nonprofit pro bono, can the lawyer pay litigation expenses without the organization remaining liable for them?
Only if the organization itself is indigent. The committee holds that a legal services provider is not indigent merely because it serves the poor or wants to spend its money on its mission; indigence …
Can a lawyer who is a principal in an entertainment management company also represent that company's clients through the law firm?
Yes, but only in some matters. The committee concludes there is no per se bar, but the law firm may not represent the client in transactions where the management company's interest in closing the deal…
If a client deliberately stops paying and the retainer says nothing about interest, can a lawyer require the client to agree to interest as a condition of continuing?
Yes. The committee concludes a lawyer may condition continued representation of a deliberately delinquent client on the client's agreement to pay reasonable interest prospectively on the past-due bala…
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…
Can a New York collection lawyer accept credit card payments from a client's debtors, deduct the fee, and pass on the card processing charges?
The opinion concludes a collection lawyer may accept debtors' credit card payments, must deposit them in a trust or IOLA account, may deduct an agreed non-excessive fee and disbursements (but not disp…
Can a New York lawyer pass on to a contingent-fee client the interest the lawyer pays on money borrowed to fund litigation expenses?
The opinion concludes that a lawyer may borrow to advance litigation expenses in a contingent-fee matter and pass the interest cost on to the client, provided the client remains ultimately liable for …
Can a lawyer take a contingent fee to collect unpaid alimony, maintenance, or child support owed under a divorce judgment that has already been entered?
The opinion concluded that a lawyer may not charge a contingent fee in a post-divorce action to collect maintenance, child support, or alimony due under a final judgment, because the Code treats such …
When a lawyer handles several lawsuits for one client under a single retainer, can the lawyer agree that recoveries from the winning cases will cover the litigation costs of the losing cases?
The opinion concluded that the arrangement is permissible so long as the client remains ultimately responsible for all litigation expenses; the lawyer may agree to pay the costs of unsuccessful suits …
If a lawyer takes a matrimonial case at a reduced rate through a bar referral service, can the lawyer still ask the court to award fees from the other spouse at the lawyer's full customary rate?
The opinion concluded that a lawyer who represents a low- or moderate-income matrimonial client at a reduced fee may include in the retainer a provision contemplating an application to the court for c…
Can a lawyer charge a contingency-fee client interest on disbursements the lawyer advanced on the client's behalf?
The opinion concluded that a lawyer may charge interest on unpaid disbursements in a contingency fee case, even when the lawyer did not borrow the advanced funds, provided the client is told in advanc…
Can a matrimonial lawyer use a retainer agreement where the client consents in advance that listed grounds, including nonpayment, let the lawyer withdraw?
The opinion concluded the proposed agreement was improper because it misled the client about the lawyer's right to withdraw: it implied an absolute right to withdraw on listed grounds and omitted DR 2…
Can a lawyer who is called to testify as a fact witness about a former representation charge the client an hourly fee for preparing and testifying?
The opinion concluded that, assuming the payment is legal, a fully informed client may agree to pay a lawyer-witness reasonable compensation for lost time, ordinarily up to the lawyer's customary hour…
Can a lawyer take a medical malpractice case from a consultant who demands a contingent consultant's fee as the price of bringing the case, and can the two contingent fees together exceed the statutory cap?
The opinion concluded a lawyer may not take a case conditioned on agreeing to a consultant's contingent fee, and that a consultant's contingent fee combined with the lawyer's may be excessive, especia…
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 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…
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 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 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 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 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 give a client a benefit, like rent-free office space, in exchange for the client hiring the lawyer for its legal work?
The opinion concluded that a lawyer may furnish rent-free office space to a client in consideration of the client's employment of the lawyer, because the rule against paying for recommendations does n…
If a borrower pays the lender's lawyer, must the lawyer tell the borrower he is also being paid by the title insurer, and can he keep both fees?
The opinion concluded that the lender's lawyer must disclose to the borrower, who pays the fee, that the lawyer is also compensated by the title insurer at closing and how much, and may retain both fe…
Can a New York lawyer hire a collection agency to collect an unpaid legal fee from a client?
The opinion concluded that, overruling earlier guidance, a lawyer may use a collection agent to recover a fully earned legal fee, but only after exhausting all reasonable efforts short of litigation a…
Can a lawyer representing a group of tenants against a landlord accept a bonus or premium from the landlord as part of settling the dispute?
The opinion concluded that a lawyer may not accept a bonus or premium from the adverse party in a settlement where the amount exceeds the reasonable fee the lawyer could expect from the client, becaus…
Can a lawyer charge a nonrefundable minimum fee that the client pays in advance and the lawyer keeps even if the matter ends before that much work is done?
The opinion concluded that a nonrefundable minimum fee is not improper in all cases, but is permitted only if the minimum is not excessive or unconscionable, nonrefundability is expressly conditioned …
Can a lawyer withdraw from a litigated case when the client cannot afford to pay the fee, and does the lawyer need the court's permission if the client consents to the withdrawal?
The opinion concluded that nonpayment due to a client's inability to pay can be a deliberate disregard of the fee obligation that warrants permissive withdrawal, but in a litigated matter the lawyer m…
Can a New York lawyer keep the interest a client's settlement check earns between the day it is deposited and the day it clears?
The opinion concluded that a lawyer may not retain the interest earned on a client's settlement check between the date of deposit into an escrow account and the date the check clears; that interest is…
Can a lawyer who represents a party in a real estate deal also act as agent for the title insurer and keep part of the title insurance premium?
The opinion concluded that a real estate lawyer may also act as title-insurance agent and share in the premium only if the arrangement is legal, no prohibited conflict exists, all parties consent afte…
Must a New York lawyer deposit a refundable advance fee in a client trust account, and who keeps the interest it earns?
The opinion concluded that advance payments of legal fees, refundable to the extent not earned, need not be treated as client funds or deposited in a trust account, and any interest earned may be reta…
Must a New York lawyer holding funds under a retaining lien sue the client to resolve a disputed fee?
The opinion concluded that a lawyer holding funds under a retaining lien need not sue the client to resolve a fee dispute, provided the lawyer has zealously tried to settle it short of litigation and …
Can a New York lawyer advertise a discount off customary fees to a civic group or the public for a limited time?
The opinion concluded that a lawyer may offer and advertise a discount from customary fees, but only where the customary fee is reasonably ascertainable and is actually the fee the lawyer charges for …
Can a lawyer lend a matrimonial client money to bid on the marital home being sold under an equitable distribution decree?
The opinion concluded that a lawyer may not lend or guarantee a loan to a client to let the client bid on marital property being sold under an equitable distribution decree; such a loan is prohibited …
Can an 18-B assigned lawyer represent the same indigent client in unrelated paying matters during or after the assignment?
The opinion concluded that an 18-B assigned lawyer may represent the former client for a fee on unrelated new matters after the assignment ends (first checking continued 18-B eligibility), but may not…
Can a lawyer take a mortgage, or a deed, on the client's property to secure payment of the lawyer's fee?
The opinion concluded that a lawyer may take a mortgage to secure a fee, subject to conditions (a proper fee, no quantum meruit basis for future fees, no undue pressure, restraint on foreclosure, and …
Can a lawyer who serves as escrow agent keep the interest earned on the escrowed funds as payment for handling the escrow?
The opinion concluded that a lawyer acting as escrow agent may not accept or seek the interest earned on escrowed funds as compensation; the committee found such an arrangement per se improper given t…
Can a law firm that is itself the plaintiff solicit contributions for its fees and expenses from others interested in the outcome?
The opinion concluded that a law firm suing on its own behalf may not solicit contributions for its fees and expenses from others interested in the issue; soliciting contributions is tolerated only to…
Can a lawyer have a client sign a confession of judgment as security for unpaid legal fees?
The opinion concluded that it is not per se improper for a lawyer to take a client's signed confession of judgment as security for fees already earned, to be filed only if the agreed fee goes unpaid, …
Can a court-appointed receiver hire his own law firm to serve as counsel in the case?
The opinion concluded that a receiver in a mortgage foreclosure action may retain the law firm of which he is a member to act as his counsel, because the court's supervision of the firm's fees and the…
Can a lawyer advance litigation costs and agree that the client only repays them if the case is won?
The opinion concluded that a lawyer may advance the costs of litigation but may not make the client's obligation to reimburse those costs contingent on the outcome; the client must remain ultimately l…
Can a lawyer take a share of a public adjuster's commission on the client's fire-loss claim?
The opinion concluded that a lawyer may accept a portion of a fire adjuster's commission on a client's loss only if the client consents after full disclosure and all of the proceeds the lawyer receive…
Can a lawyer charge a contingent fee to collect past-due alimony or child support that is already owed?
The opinion concluded that a reasonable contingent fee for collecting past-due alimony and child support is not improper; EC 2-20's caution against contingent fees in domestic relations cases applies …
Can a lawyer hand a written fee-schedule brochure to clients and prospective clients who come to the office?
The opinion concluded that a lawyer may give a truthful and dignified fee-schedule brochure to clients and prospective clients who come to the office, so long as the rates are not the product of an an…
When can a lawyer withdraw from a case after suit has been filed: no liability, client problems, or the lawyer's own illness?
The opinion summarized the grounds for withdrawal under DR 2-110: a lawyer may seek the court's permission to withdraw on becoming convinced there is no liability, for various client problems, for del…
Can a bank's lawyer have the borrower pay his fee, and can he represent both the bank and the borrower at a mortgage closing?
The opinion concluded that a lender's lawyer may have the borrower pay his fee for work actually performed, so long as the fee is not divided with the lay lending institution and the borrower is told …
Can a group legal service plan set a fee schedule in advance with participating lawyers, with the fees paid by plan members rather than the sponsor?
The opinion concluded that a qualifying group legal service plan may include a fee schedule agreed in advance between the lawyer and the sponsor, payable by individual beneficiaries rather than the sp…
What guidelines govern a lawyer who participates in a group legal service plan, including a labor union's plan, under New York's 1975 Code amendments?
The opinion concluded that lawyers may participate in group legal service plans sponsored by qualified legal assistance organizations under the 1975 Code amendments, subject to detailed conditions, an…
Can two lawyers who are not in the same firm agree up front on how to split the fee for a shared matter?
The opinion concluded that lawyers who share services and responsibility for a matter but are not partners or associates may agree in advance on a fee division, provided it is proportional to services…
Can a criminal defense lawyer charge a contingent fee, or a bonus tied to acquittal or a lighter sentence?
The opinion concluded that any contingent fee in a criminal case is improper, including a fixed bonus contingent on a result like acquittal or probation, but a reasonable non-contingent fee may take t…
Can a lawyer who is co-executor and estate counsel share trial counsel's fee in a wrongful-death case without doing the work?
The opinion concluded that a lawyer-co-executor may share trial counsel's fee only if the client consents, the division is proportional to the work performed and responsibility assumed, and the total …
Can a law firm turn delinquent fee accounts over to a collection agency to recover unpaid fees from former clients?
The opinion concluded that using a collection agency to recover attorneys' fees was improper. This opinion was later overruled by N.Y. State 608 (1990).
Can a lawyer charge interest on a client's overdue bill, or accept a credit card that charges the client interest?
The opinion concluded that charging interest on delinquent fee accounts, including through a credit-card plan, is not per se improper, provided the client is told in advance of the rate and timing and…
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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.