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 part-time prosecutor also serve as court-appointed counsel for indigent parties in a neighboring county's Family Court?
Sometimes, case by case. The committee concludes there is no per se bar, but the part-time prosecutor may not take delinquency, PINS, or any matter involving law enforcement personnel the prosecutor w…
Can a lawyer who serves on a county legislature defend criminal cases in that county when the legislature controls the police or DA budget, and are the lawyer's firm colleagues disqualified too?
No to the lawyer, even for plea bargaining and regardless of county size. The committee concludes the lawyer/legislator may not handle criminal cases involving police or prosecutors the legislature fu…
If a private firm's lawyer supervises one project of a law school legal clinic, are the clinic's other conflicts imputed to that lawyer's firm?
Yes. Where the clinic's students share common workspace and physical files, the whole clinic is one law firm, so the conflicts of the entire clinic are imputed to the supervising lawyers' firms and vi…
When a lawyer is of counsel to two firms, are one firm's conflicts imputed to the other firm's lawyers?
Yes, in most cases. Conflicts imputed to a lawyer under DR 5-105(D) are imputed to every firm with which the lawyer has an of-counsel relationship, and where two firms share an of-counsel lawyer their…
Can a lawyer employed part-time by a social services agency serve as a Law Guardian for a child whose parent received non-legal services from that agency?
Sometimes. Agency employment alone is not a disqualifying interest, but the lawyer must decline (or withdraw) when their professional judgment as the child's advocate reasonably may be affected by the…
Can a law firm consult its own in-house ethics counsel about a client matter, without the client's consent, without creating a conflict with that client?
Yes. The committee concludes a law firm may form an attorney-client relationship with its own lawyers to get advice on its professional-responsibility obligations, including matters implicating a clie…
Can a part-time assistant district attorney keep representing a private client whom the DA's office is now prosecuting?
No. The DA's office is treated as a law firm, so the office's conflict is imputed to the part-time prosecutor, who may not continue representing the husband in the civil estate-planning matter. The co…
A lawyer represents a wife on a personal injury claim and her husband on a loss of consortium claim, and the husband has vanished. Can the lawyer settle the wife's claim?
Not without both clients' informed consent, because settling the wife's claim would bar the missing husband's derivative claim, creating differing interests. The lawyer must take all reasonable steps …
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…
An insurer wants one lawyer to defend two insured co-defendants, one of whom can claim indemnification from the other and the claim exceeds the policy limits. Can the lawyer represent both?
Only if a disinterested lawyer would believe both can be competently represented, the defendant with the indemnification claim agrees not to assert it as a cross-claim, and both consent after full dis…
A lawyer already owns land that is the subject of an annexation dispute between two towns. Can the lawyer represent one of the towns in the litigation over that land?
Yes, if the lawyer's interest is aligned with the client's, the client consents after full disclosure, and the lawyer is not likely to be a witness on a significant issue. DR 5-103(A) bars only acquir…
Can a former prosecutor defend a criminal defendant on the same charges the prosecutor personally handled while in the DA's office?
No. A lawyer who participated personally and substantially in prosecuting a defendant on certain charges may not later defend the same person on those charges. The conflict under DR 9-101(B)(1) is per…
A lawyer sits on a municipal board and is 'of counsel' to a law firm. Can the lawyer or the firm appear before that board on behalf of private clients?
The lawyer-member may not appear before the board. Because an 'of counsel' lawyer is 'associated' with the firm, the firm's appearance is restricted too: any DR 5-101 conflict imputes to the firm (wai…
Can a prosecutor agree to a plea bargain that requires the defendant to donate money to STOP-DWI or a charity, and can the donation be kept from the sentencing judge?
If probable cause supports the charge and the terms are legal, a prosecutor may require a donation to STOP-DWI (unless the DA is also its coordinator) or to a charity (absent a disqualifying personal …
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 lawyer who serves as a certified impartial hearing officer also represent parents in special-education hearings, and can the lawyer advertise the certification?
The opinion concludes the lawyer may do both, but may not represent clients in any school district where the lawyer sits as a hearing officer, in matters the lawyer handled as a hearing officer, or wh…
Can a New York lawyer agree to swap client referrals with a securities broker or insurance agent who is not on the approved nonlegal-professions list?
Yes. The opinion concludes a lawyer may enter a nonexclusive reciprocal referral arrangement with a broker or insurance agent, provided no fees are shared and the lawyer discloses the arrangement and …
Can a New York lawyer accept a bank 'earnings credit' that reduces the lawyer's bank fees based on balances held in the lawyer's IOLA account?
Only with the client's consent after full disclosure. The opinion concludes the credit is something of value from a third party related to the representation under DR 5-107(A)(2), so the lawyer may ac…
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 New York lawyer refer clients to the lawyer's own non-legal business, and can that business refer customers back by phone or in person?
The opinion concludes that if the lawyer gives the DR 1-106 notice that the non-legal services are not covered by the attorney-client relationship, the lawyer may refer clients to the business without…
Can a New York lawyer who owns a mortgage brokerage and a title abstract company also act as the lawyer for the buyer, seller, or lender in the same real estate deal?
The opinion concludes the lawyer may not be the buyer's or seller's lawyer while also acting as mortgage broker or as a non-ministerial title abstract company in the same deal, but may, with informed …
After New York adopted DR 1-106 on non-legal services, can a lawyer who owns an ancillary business provide both legal and non-legal services in the same transaction with the client's consent?
The opinion concludes that the prior bars on a lawyer acting in dual roles (such as lawyer and broker) in the same transaction survive DR 1-106, because those bars came from applying DR 5-101(A) to th…
If a lawyer is admitted in New York and another state, whose ethics rules govern conduct that happens in the other state?
The opinion concluded that a New York-admitted lawyer is always subject to New York's disciplinary authority, but the rules actually applied may be another jurisdiction's: for work outside a court pro…
Can a former prosecutor now in a public defender or Legal Aid office defend people who were charged while the lawyer worked at the DA's office?
The opinion concluded that a former prosecutor may defend criminal defendants charged during the lawyer's DA tenure as long as the lawyer did not participate personally and substantially in that defen…
If a lawyer holds a client's durable power of attorney and the client becomes incapacitated, can the lawyer petition to have a guardian appointed and act as the lawyer in that proceeding?
The opinion concluded that a lawyer-agent may petition for a guardian without the client's consent only if the client is incapacitated, no less-restrictive alternative (including the power of attorney…
If a lawyer is disqualified from a matter by a conflict of interest, can the lawyer still collect a referral fee for sending it to another firm?
The opinion concluded that a lawyer disqualified on non-consentable conflict grounds may not receive a referral fee, because the lawyer cannot assume the joint responsibility that fee division require…
Can a lawyer refer real estate clients to a title abstract company in which the lawyer's spouse has an ownership interest?
The opinion concluded that a lawyer may not refer a real estate client to a title abstract company owned in whole or part by the lawyer's spouse for anything beyond purely ministerial abstract work; w…
After mediating a divorce, can the lawyer-mediator draft and file the separation agreement and divorce papers for both spouses as joint clients?
The opinion concluded that a lawyer-mediator may draft and file the separation agreement and divorce papers for both spouses only when the mediation has fully succeeded, the parties are fully informed…
Does a lawyer, including a legal aid organization, have to tell the client about a significant error that could support a malpractice claim, and might the lawyer have to withdraw?
The opinion concluded that a legal services organization is held to the same ethical standards as any other law office, so it must report to the client a significant error or omission that may give ri…
Can a lawyer who represents lenders or borrowers in real estate deals pay the firm's employees to steer those clients to a title insurance agency the lawyer owns?
The opinion concluded that a lawyer may not compensate the firm's employees for soliciting clients or other parties to engage a title insurance agency the lawyer owns, because the lawyer could not eth…
When a lawyer moves to a new firm, when is the lawyer (and the new firm) barred from handling matters adverse to a client of the old firm?
The opinion concluded that, absent the former client's consent, a moving lawyer may not take on a matter adverse to a former client if the lawyer personally represented the client or acquired relevant…
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 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 lawyer who represents a foster care agency in terminating parental rights then represent the prospective adoptive parents who want to adopt that child?
The opinion concluded no: a lawyer representing a foster care agency in surrender or termination-of-parental-rights proceedings may not represent the prospective adoptive parents either at the same ti…
Can a lawyer who serves on a county legislature still practice criminal defense in that county if the lawyer abstains from voting on the DA's budget and discloses that?
The opinion concluded no: abstaining from votes on the district attorney's budget and disclosing the intent to abstain does not cure the bar on a lawyer-legislator practicing criminal law where the le…
Can a lawyer who is regularly co-counsel with a part-time judge appear before other judges of that judge's court in unrelated cases?
The opinion concluded the lawyer may appear before other judges of the part-time judge's court only if their relationship does not make them 'partners,' 'associates,' or 'connected in the law business…
Does a lawyer have a conflict of interest when the lawyer is a beneficiary of a trust that owns stock in companies that turn out to be clients or opponents of the firm?
The opinion concluded that ordinarily there is no conflict and no disclosure duty, because such a financial interest only rarely could reasonably affect the lawyer's professional judgment; only in the…
Can a lawyer who is also a licensed insurance broker sell long-term care insurance to the lawyer's own estate-planning clients?
The opinion concluded no: a lawyer may not sell long-term care insurance to a client the lawyer represents in estate planning, because advice about that insurance is central, not tangential, to the re…
Can a lawyer join a real estate broker's program that selects the lawyer to represent both the home buyer and the lender at a reduced flat fee?
The opinion concluded no: the lawyer's dependence on the broker's continued approval created a personal-interest conflict that could not be cured by consent, and the broker's promotion of the selected…
Can a part-time city or county legislator defend criminal cases that require cross-examining police or opposing a prosecutor whose budget the legislature controls?
The opinion concluded no: a lawyer who sits on a municipal legislature with budgetary or appointment authority over a prosecutor's office or police department may not take a criminal defense matter re…
Can a law school clinic's supervising attorney represent a client against a lawyer who is on the law school's board of trustees or faculty?
The opinion concluded yes, but only if the clinic attorney reasonably believes the trustee's or faculty member's role will not affect the attorney's professional judgment and, after full disclosure, t…
When can a lawyer who is also a licensed insurance broker sell insurance products to the lawyer's own clients and to non-clients?
The opinion concluded the lawyer may sell insurance to a client only where insurance advice is tangential to the representation, with full disclosure and consent; where advising on the insurance is ce…
Can a lawyer accept a referral fee from an investment advisor for sending the lawyer's clients to the advisor?
The opinion concluded that a lawyer may not accept a referral fee from an investment advisor, because the conflict is non-consentable: the fee turns on how much of the client's money is entrusted to t…
Can a lawyer appear before a town justice when the lawyer represents a relative of another town justice, or after representing the judge's own adult child in an unrelated matter?
The opinion concluded the lawyer may appear in both situations: one judge's disqualifying relationship is not imputed to other judges of the same court, and prior representation of the judge's adult c…
Can a part-time assistant district attorney and a part-time confidential law clerk to a County Court judge be law partners, and what limits does that put on their practice?
The opinion concluded the two may be partners: the confidential clerk may not practice before the County Court or do criminal work, and the assistant DA may not appear before the judge who employs the…
Can an estate-planning lawyer accept a referral fee from an insurance company for steering a client who then buys life insurance?
The opinion concluded that an estate-planning lawyer may not accept a referral fee from an insurance company for recommending a client, because the conflict is non-consentable: life insurance is not f…
A part-time City Court judge shares a law firm with a part-time assistant district attorney. What criminal and civil work can each of them, and the rest of the DA's office, take on?
The opinion concluded that because the part-time assistant DA cannot defend criminal cases anywhere in the state, the associated part-time judge (and the whole firm) is also barred from criminal defen…
Can a lawyer accept a referral fee from a mortgage broker for sending a real estate client to that broker?
The opinion concluded that a lawyer may accept a referral fee from a mortgage broker only if the client consents after full disclosure, the lawyer remits the fee to the client on request, the aggregat…
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…
Can a district attorney prosecute a case where the defendant is represented by the DA's spouse, sibling, or a former campaign adviser?
The opinion concluded that a DA may not prosecute a case in which the defendant is represented by the DA's spouse or sibling (or their firm); whether a former unofficial adviser triggers disqualificat…
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…
Can a lawyer act as a bail bond agent or own an interest in a bail bond agency that sells bonds to the lawyer's clients?
The opinion concluded that, assuming no legal bar, a lawyer may profit from a bail bond agency's sale of bonds to non-clients, but may not act as bail bond agent for a person the lawyer represents, be…
Can a legal aid office set up a panel of volunteer lawyers to take clients it has to turn away because of a conflict of interest?
The opinion concluded yes: an independent conflicts panel may represent eligible clients the office cannot take, the panel may share the office's malpractice insurance, and a board member of the organ…
Does the advocate-witness rule apply in an arbitration, so a lawyer who may have to testify must consider withdrawing as the advocate?
The opinion concluded that an arbitrator or arbitration panel is a 'tribunal' under the Code, so the advocate-witness rule applies and a lawyer who ought to be called as a witness must withdraw as adv…
Can a defense lawyer represent a client being prosecuted by an assistant DA the lawyer is dating, and is the lawyer's whole firm disqualified?
The opinion concluded a lawyer in a frequent dating relationship with the prosecuting assistant DA may not defend that prosecutor's cases, because client consent cannot cure the conflict in a criminal…
Can a part-time municipal lawyer defend criminal cases in the local court, and can they handle civil matters there?
The opinion concluded that part-time municipal attorneys, whatever their title, may not undertake criminal defense before the courts of the locality they serve, but there is no per se bar on represent…
Can a lawyer who serves on a town zoning board of appeals represent a personal injury plaintiff suing that town?
The opinion concluded that, absent evidence of improper influence or impaired professional judgment, an attorney-member of a town zoning board of appeals may represent a personal injury plaintiff suin…
Can one lawyer represent two plaintiffs injured in the same accident against the same defendant when there will not be enough money to pay both claims in full?
The opinion concluded that the plaintiffs have differing interests when available assets cannot satisfy both claims, so the lawyer must decline unless it is obvious he can adequately represent both an…
Browse New York State Bar Association opinions by topic
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.