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 ask the client to indemnify the lawyer against claims by a non-client who receives the lawyer's opinion letter?
Yes. The opinion concludes Rule 1.8(h)'s bar on prospectively limiting malpractice liability protects only the client, so a lawyer may ask the client to indemnify against malpractice or other claims b…
Can a government lawyer challenge his own furlough and also defend the agency against other employees' furlough appeals?
The lawyer may file his own furlough appeal if it does not impermissibly affect representing the agency, but if he files it he generally cannot also defend the agency against similar appeals. If he do…
Can a lawyer who works as a town court clerk represent a private client who has a matter pending in the clerk's own court?
Yes, subject to limits. No ethics rule categorically bars it. If the clerk has no role or only ministerial duties in the client's matter before the clerk's court, the clerk may represent the client el…
Can a town attorney who advised the building inspector then represent the zoning board of appeals in a related Article 78 case?
Yes, ordinarily. The opinion holds the town attorney represents the Town as an entity, so advising the building inspector and later appearing for the zoning board are both service to one client, not d…
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 take a finder's fee for introducing a client who needs capital to potential investors the lawyer also knows?
Yes. A finder's fee for matchmaking is a nonlegal service the rules permit, but only if the lawyer satisfies the confidentiality, conflict, business-transaction-with-client, and reasonable-fee rules; …
Can a lawyer who regularly represents a lender also represent the buyer at residential closings when the lender pays most of the buyer's legal fee as a promotion?
No. The lawyer's regular lender relationship and the lender's payment of most of the buyer's fee create a Rule 1.7 conflict that is nonconsentable, because the lawyer cannot reasonably believe he coul…
Can two solo New York lawyers, each practicing as a PLLC, form a law firm by creating a joint venture of their PLLCs?
Yes, on the facts given. Two PLLCs may create a joint venture that functions as a law firm, using a name that discloses the joint-venture relationship; the venture is a 'firm,' which matters for confl…
Can a lawyer serve as attorney for a child when the lawyer's spouse, a public defender, represents another party in the case?
Yes, unless the circumstances create a Rule 1.7(a)(2) personal-interest or Rule 1.10(h) spousal conflict and the child has no representative who can consent to it. A child cannot consent to the confli…
Can a firm list a departing former name partner as 'Special Counsel' on its letterhead, and what does that title do to conflicts?
Only if the departing lawyer is actually available to the firm for consultation on a regular and continuing basis. If the title fits, the lawyer is 'associated' with the firm and his conflicts are imp…
Can a public defender or assistant public defender keep a separate private practice in the same Criminal Court where they appear for the office?
Yes. A public defender or assistant public defender may represent private clients in a separate practice in the same Criminal Court where they appear in their public capacity, provided conflict-of-int…
Can a New York lawyer run a law practice and a real estate brokerage from the same office and market them together?
Yes; the lawyer may operate both from one office and send joint mailings as long as the marketing is truthful and not misleading, but may not serve as both lawyer and broker in the same real estate tr…
Can a New York lawyer team up with an insurance agency to offer clients a combined legal-and-nonlegal service package?
No, not as an exclusive ongoing arrangement. The opinion holds Rule 5.8 bars a systematic cooperative legal/non-legal venture with a provider whose profession is not on the Appellate Divisions' approv…
Can a New York lawyer who belongs to a union serve on the union's legal-fee reimbursement panel and represent a fellow union member?
Yes to both, with conditions. The lawyer may join the panel and represent a co-worker in a real estate deal covered by the plan, subject to Rule 1.8(f) third-party-payment requirements and, for repres…
Can a criminal defense lawyer keep representing a client when her law partner is in business with a part-time assistant DA in the prosecuting office?
Yes, on these facts. The opinion treats the partner's business relationship as a personal-interest conflict imputed to the firm under Rule 1.10(a), finds no significant risk to the partner's judgment …
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 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 who also works as a real estate broker represent a party in the same deal, or in a deal handled by a broker at the lawyer's brokerage office?
A lawyer may never serve as both attorney and broker in the same transaction; that conflict is non-consentable. A lawyer employed at a brokerage may represent a party in a deal another office broker h…
Can a New York lawyer acting as the broker in a real estate deal throw in free legal services if the client is told they may hire separate counsel?
No. A lawyer acting and being paid as the broker may not offer free legal services to a party in the same transaction, even with disclosure that the party may retain separate counsel; the broker's fin…
If one lawyer on a Legal Aid conflicts panel has a conflict, are all the other panel members disqualified too?
No. As long as conflicts-panel lawyers are independently engaged by, and independently serve, their indigent clients, the panel is not a 'law firm' under Rule 1.0(h), so one member's conflict is not i…
Can a New York lawyer accept stock or an equity interest in a client as payment for legal services?
Yes. A lawyer may take an equity interest in a client or the client's company as a fee if the deal satisfies Rule 1.8(a)'s business-transaction safeguards, is not excessive under Rule 1.5(a), and does…
When a lawyer serves on a town board that controls the town court's budget, can other lawyers in the firm still appear in that court?
Generally yes. A board member's bar on appearing in the town Justice Court is not automatically imputed to the rest of the firm, except where the facts make public suspicion of undue influence likely …
If one jointly represented co-defendant revokes a conflict waiver, can the lawyer keep representing the other client?
It depends on the circumstances. With no advance agreement covering revocation, whether the lawyer may continue for the non-revoking client turns on the nature of the conflict, whether the revoking cl…
Can a lawyer who has represented an individual officer or shareholder also represent the closely held corporation, and vice versa?
Yes, if any conflicts are consentable. Representing both a corporation and its director, officer, or shareholder can create conflicts under Rules 1.7 and 1.9, but consentable conflicts can be cured by…
Can an Assistant County Attorney serve as a mediator in a case where another lawyer from the same office represents the agency, and what conflicts arise?
Yes, with disclosure. An ACA may mediate a Child Permanency Mediation in which another ACA represents the county DSS, but must disclose his office connection; the ACA representing DSS has a personal c…
Can a law firm provide or subcontract lien-search services for its clients, and what can it charge?
Yes, but a firm may not bill clients more than its actual cost for a third-party search, and when it performs lien searches itself or through an affiliate the conduct rules apply to the nonlegal servi…
Can a lawyer oppose a lawyer from the firm where the lawyer's spouse is a partner, and is that conflict imputed to the spouse's whole firm?
Only with the client's informed written consent. A lawyer opposing a five-lawyer firm in which her spouse is senior partner has a personal-interest conflict under Rule 1.7(a)(2); the opposing lawyer i…
Can a full-time prosecutor accept appointment to a court referee panel and oversee foreclosure proceedings?
Yes. No per se rule bars a full-time Assistant District Attorney from serving as a foreclosure referee, but Rule 1.7(a)(2) conflicts must be avoided case by case, and Rule 1.12 restrictions may apply …
Can a lawyer refer a client to a title company the lawyer has a financial interest in, and still represent the client in the same deal?
Yes to the referral, but only if the title company does purely ministerial work. If the company performs non-ministerial tasks (such as title insurance or recommendations), the lawyer's personal-inter…
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 with a passive ownership stake in a real estate brokerage represent a buyer, seller, or lender in a deal where that brokerage is the broker?
No. A lawyer with a substantial passive investment in a closely held real estate brokerage may not represent a buyer, seller, or lender in a transaction in which that brokerage acts as broker; the law…
Can a solo practitioner use her spouse's law firm address and phone number as her own contact information, and does occasionally using the firm's office make her part of the firm for conflicts?
A solo practitioner may not list her spouse's firm address and phone number as her own where the phone is answered in the firm's name, unless she takes steps to dispel the impression that she is part …
Can lawyers who belong to two or more law firms avoid imputing each firm's conflicts to the others by screening and limiting one firm's practice?
No. When a lawyer is associated as a partner, associate, or of counsel with more than one firm, all of those firms are treated as one for conflicts, so every firm's conflicts are imputed to all of the…
Can a lawyer who defends criminal cases in town court also take a part-time job prosecuting traffic offenses in the same county?
No. A lawyer who prosecutes traffic and other offenses for a locality represents the people of the state, which is inherently incompatible with defending criminal cases anywhere in New York. The resul…
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 a lawyer set up a mutual referral arrangement with a debt-reduction company and charge clients a contingent fee based on the debt reduced?
Yes to both, with conditions. A non-exclusive reciprocal referral arrangement with a debt-reduction company is permitted, and the limited relationship here does not make the lawyer 'affiliated' with t…
Can one lawyer represent both a corporation and its sole owner when a fraud claim is brought against the owner personally?
Yes, on these facts. Because the president is the corporation's sole shareholder, director, and officer, the two do not have 'differing interests' under Rule 1.7; they are united in prosecuting the co…
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 …
After Estate of Schneider v. Finmann, can the lawyer who drafted a decedent's estate plan also represent the executor administering that estate?
Yes, as long as the lawyer does not perceive a colorable legal malpractice claim against himself arising from the estate planning. If such a claim is apparent at the outset or arises during the repres…
Can a part-time assistant public defender take an assigned-counsel case that another lawyer in the same public defender office is conflicted out of?
No, not without a valid waiver. A public defender office is a 'firm,' so one assistant public defender's Rule 1.7 or 1.9 conflict is imputed to every lawyer in the office, including part-timers in a d…
Can a part-time government social services lawyer defend, in private practice, a client the agency is prosecuting for child neglect?
No. A part-time Social Services lawyer who prosecutes neglect cases cannot also defend that client in an unrelated criminal matter; the role conflict is non-consentable and is imputed to the whole leg…
Can a lawyer refer litigation clients to a litigation financing company owned by the lawyer's spouse?
No, not to provide financial assistance the lawyer is personally barred from giving. Rule 1.8(e) bars a lawyer from advancing or guaranteeing living-expense funds to a litigation client, and that bar …
Can a law firm keep a name partner's name in its name after that partner leaves to become a corporation's in-house counsel?
No. A partner who leaves to practice as in-house counsel is not 'retired' under Rule 7.5(b), and the firm cannot keep his name by treating him as on open-ended leave or as of counsel while he minimize…
Can a plaintiff's lawyer agree to personally indemnify the client's Medicare lien or other third-party obligation to settle the case?
No. A lawyer's promise to indemnify a client's obligation to a third party (such as a Medicare lien) as part of a settlement is a barred guarantee of financial assistance under Rule 1.8(e), which has …
Can a lawyer who represents a bank in a vendor financing program also represent the equipment vendor in that program?
Yes, with informed written consent. The bank and the vendor have differing interests on the lease terms (the vendor wants to close the deal, the bank wants its credit standards met), so Rule 1.7 (or R…
Can a lawyer represent the owner of a mortgage note while also serving as an officer of MERS, the record mortgagee, to sign an assignment and bring the foreclosure in the owner's name?
Yes. Because MERS holds no economic interest and the lawyer was hired and paid by the note owner, there is no significant risk to the lawyer's judgment under Rule 1.7(a)(2), and any conflict was cured…
Can a lawyer who is also a real estate broker share her brokerage commission with lawyers who refer buyers or sellers to her?
Yes, but only if the referring lawyer is not representing the buyer or seller in that transaction, or, if the referring lawyer is, the lawyer remits or credits the referral fee to the client and obtai…
Can a part-time county legislator accept Family Court appointments as attorney for the child when the legislature funds the county attorney and social services offices?
No. The opinion concludes that a county legislator may not accept Family Court appointments as attorney for the child in delinquency, PINS, neglect, or abuse cases, because of the legislator's budget …
Can a lawyer who represented an incapacitated client in a guardianship appointment later represent both that client and the guardian in a proceeding to end the guardianship?
Yes, if the conflict is consentable. The dual representation involves differing interests under Rule 1.7(a)(1), but where the parties are aligned and the matter is court-supervised, the lawyer may pro…
After New York required conflict consents to be 'confirmed in writing' on April 1, 2009, does a lawyer need to re-obtain consents that clients validly gave before that date?
No. The committee concludes that the new requirement that conflict consents be 'confirmed in writing' applies only to consents given on or after April 1, 2009; consents validly given before that date …
Can a law firm sue an insurance carrier on behalf of insureds while also defending that same carrier against other insureds in unrelated coverage cases?
There is no per se bar, but the conflict is consentable only after careful case-by-case analysis. The committee concludes positional conflicts, the possible need to cross-examine the carrier's employe…
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 New York lawyer monitor a client's investments for potential claims for free, then handle any resulting lawsuit for a fee?
Yes. The committee concludes a lawyer may review a client's portfolio for potential securities-fraud claims without charge, even though the lawyer may later be retained, for a fee, to litigate any cla…
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 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 county public defender review the billing vouchers of assigned counsel who took over a case because the public defender had a conflict of interest?
No, ordinarily. The committee concludes that a public defender's office barred by a conflict from representing a party is equally barred from reviewing the billing vouchers of the assigned conflict co…
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 part-time associate at a law firm represent the buyer through her own separate practice while the firm represents the seller in the same real estate deal, with both clients' consent?
No. The committee concludes a part-time associate is 'associated' with the firm for conflict imputation, and the buyer and seller of residential real estate may not be represented by lawyers in the sa…
If lawyers in a small legal services corporation also keep private practices, can one of them privately represent a party opposing someone the corporation represents in the same case?
No. The committee treats the staff of a small legal services corporation as a law firm, so a conflict that would disqualify one lawyer is imputed to all, and consent cannot cure two same-'firm' lawyer…
Can one law firm serve as both bond counsel and the borrower's counsel in a tax-exempt municipal bond issuance?
Yes, with limits and consent. The committee concludes a firm may serve as both bond counsel and borrower's counsel if bond counsel's role is limited to opining on the transaction rather than negotiati…
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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.