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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May a New York disability-rights lawyer who relies on fee-shifting awards enter agreements with compensatory-service providers under which the providers pay a portion of the lawyer's fees, and refer clients to those providers?
Per the Committee, yes if the client gives informed consent under Rule 1.8(f) and informed consent confirmed in writing under Rule 1.7(b) for the Rule 1.7(a)(2) personal-interest conflict, provided th…
Can a lawyer at a nonprofit immigration clinic share a client's intake information with the nonlawyer staff of an affiliated shelter?
Only on conditions. The opinion concludes a New York lawyer at an immigration clinic may not share information from the representation with a shelter's nonlawyer staff unless the information is not pr…
Can a lawyer's engagement letter bar the client from recording their communications, and let the lawyer withdraw if the client records anyway?
Yes, with limits. The opinion concludes a retainer agreement may include a no-recording clause and may allow withdrawal for a violation, but only if the agreement does not mislead the client about whe…
When a government agency funds a lawyer's representation of clients, can the lawyer report the clients' confidential information back to the funder?
Only with informed consent. The opinion concludes a lawyer may share information with a funding agency if it is not confidential under Rule 1.6(a), but may not disclose a client's confidential informa…
Can a lawyer pass the credit card merchant processing fee on to a client who pays legal fees by credit card?
Yes. The opinion concludes a lawyer may pass a merchant processing fee on to a client as an expense if both the legal fee and the processing fee are reasonable and the lawyer explained the charge and …
Can a New York lawyer send a client's retainer agreement and invoices to a credit card company to fight a chargeback of legal fees?
Yes, but only if the material is not confidential, the client consents, or the lawyer reasonably believes disclosure is necessary to collect the fee; disclosure must be limited or redacted, and the Fe…
What must a lawyer do to protect non-party clients' confidential data on a hard drive a court has ordered produced for forensic analysis?
The opinion concludes the lawyer must notify the non-waiving clients of the order, consult them about reasonable steps to avoid or limit production, and take those steps before complying; once reasona…
Can a lawyer accept a settlement offer for a client after the client has died, and may the lawyer stop pursuing the matter?
No to settling, yes to stopping. The opinion concludes that a client's death terminates the lawyer's authority, so the lawyer may not accept a settlement without authorization from the decedent's duly…
After a lawyer changes firms, may she contact the clients she used to represent to tell them she has moved and offer to review their estate plans?
Yes. The opinion concludes that a communication to former clients that is germane to the earlier representation is neither an advertisement nor a solicitation, so Rules 7.1 and 7.3 do not apply; it mu…
When a personal injury client dies and the lawyer must hire separate probate counsel to appoint a representative, can the lawyer charge those probate fees as a disbursement?
Yes, with limits. The opinion concludes that probate counsel's fees may be charged as a disbursement in the personal injury action if they are reasonably incurred to continue that action and are not e…
Can a lawyer withdraw from a case because they fear contracting COVID-19 at a required in-person court appearance?
Yes, with the tribunal's permission. The opinion concludes that a lawyer may seek to withdraw where fear of contracting COVID-19 at in-person appearances makes it difficult to represent the client eff…
Can a New York lawyer ask a client to name an emergency or alternate contact person, and reach out to that person when the lawyer cannot otherwise reach the client?
Yes. The opinion concludes that a lawyer may ask a client to designate an alternate contact and, when ordinary means fail, may contact that person and disclose that the lawyer has been unable to reach…
If a criminal defendant wants to withdraw a guilty plea even though the motion is unlikely to succeed and could lead to a harsher sentence, must the lawyer follow the client's decision?
Yes. The opinion concludes that the plea decision belongs to the client under Rule 1.2(a); once the lawyer explains the material risks and low chance of success under Rule 1.4, the lawyer must abide b…
What must a lawyer do when a former client defaults on a settlement, the lawyer can't find the client, and opposing counsel threatens a motion?
The opinion concludes the lawyer may tell opposing counsel and the court that the lawyer no longer represents the client if both the representation and the court matter ended; if either is still open,…
Can a lawyer who drafted a real estate contract hand it to the client's broker without the client's consent, and does the lawyer's own interest in withholding it create a conflict?
No to disclosure without consent. The opinion concludes a lawyer-drafted sale contract is confidential information the lawyer must protect absent the client's informed consent, and the lawyer's own pe…
Can a lawyer the insurance company assigned to defend an insured withhold information from the insured to protect the insurer's financial interests?
No. The insured is the client, and the lawyer's duties under Rules 1.2(a) and 1.4 to communicate fully cannot be limited to protect the paying insurer; doing so would be the interference Rule 1.8(f) f…
Can a lawyer limit how and when a difficult client communicates, and when may the lawyer withdraw?
Yes. A lawyer may set reasonable time-and-manner limits on client communications, such as scheduled appointments or writing, as long as the substantive duties of Rule 1.4 are met. If communication bre…
Must a lawyer follow opposing counsel's instructions to communicate only in writing and to copy opposing counsel's client on every message?
No. A lawyer may communicate with opposing counsel in any manner he chooses, though opposing counsel need not respond to that method. With opposing counsel's prior consent, a lawyer may, but is not re…
Can a law firm's retainer agreement give the firm 20 days to be paid and then automatically charge the client's credit card for the full unpaid balance?
Yes, a retainer may secure fees by credit card and auto-charge amounts unpaid after 20 days, but only if it expressly tells the client of the right to dispute any invoice and seek fee arbitration befo…
Can a lawyer pay a client's settlement funds on a fully-loaded pre-paid debit card instead of by check?
Yes. A lawyer may give the client that option and use a pre-paid debit card to pay funds the client is owed, provided the lawyer adequately discloses the relative merits and costs of the payment metho…
Can a criminal defense lawyer advise a client about drug treatment and a court diversion program, and recommend it even if failing carries harsher penalties?
Yes. Under Rule 2.1 the lawyer may advise on non-legal considerations like treatment and must competently explain the risks and alternatives, but under Rule 1.2(a) must follow the client's decision; d…
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 lawyer bill clients for 'paralegal' time when the paralegal is not certified or program-trained?
Yes. The opinion concludes that because New York does not require paralegals to be certified, the title 'paralegal' does not imply certification, so it is not deceptive to use it for an uncertified le…
Can a lawyer blind-copy a client on emails to opposing counsel after opposing counsel objects?
Yes. The opinion concludes that because a lawyer is the client's agent, bcc'ing the client on correspondence with opposing counsel is not deceptive under Rule 8.4(c), even over opposing counsel's obje…
Does using a sign-language interpreter to communicate with a deaf client waive the attorney-client privilege, and may a lawyer use one?
Whether the privilege is waived is a question of law the committee does not decide, but it notes courts have repeatedly held that using an agent to facilitate communication does not waive it. If using…
Can government lawyers submit a position paper instead of appearing in person at routine immigration status hearings where nothing substantive will be addressed?
Yes, if both the court and the client consent. Government lawyers may submit a position paper in lieu of attending immigration status hearings at which no substantive or procedural issues will be addr…
Can a New York lawyer help clients comply with the state medical-marijuana law even though marijuana is still illegal under federal law?
Yes. Given the published federal policy of restrained enforcement, the opinion concludes that Rule 1.2(d) permits a New York lawyer to advise and assist clients in conduct designed to comply with the …
Does a New York lawyer violate Rule 3.2 by refusing to give adverse counsel copies of pleadings that are already in the public court file?
No. The opinion concludes that declining to share documents available from the court is not 'causing' needless expense under Rule 3.2, because a mere refusal to cooperate is not an affirmative step; t…
Can a lawyer agree to represent a criminal defendant for arraignment only and then withdraw?
Yes, a lawyer may limit a criminal representation to arraignment if the client gives informed consent, the scope is reasonable, and it is not prejudicial to the administration of justice. But the duty…
Is a law firm's educational newsletter or website an 'attorney advertisement' that must carry the 'Attorney Advertising' label and the exact prior-results disclaimer?
It depends on the communication's purpose, content, and audience. If it is an advertisement, it must be labeled 'Attorney Advertising' (including on a website home page), and if it makes results or co…
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…
Does a New York lawyer have to respond to unsolicited letters from incarcerated people asking the lawyer to take their case?
No. The committee concludes that no Rule of Professional Conduct requires a lawyer to answer unsolicited mail from someone who is neither a client nor an adversary, and a person who sends such a lette…
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…
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…
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…
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…
Can a New York lawyer use a power of attorney in the retainer to settle a case and endorse the client's settlement check?
The opinion concludes a lawyer may obtain and use a revocable power of attorney to settle and to endorse the settlement check, with full disclosure, but only if the lawyer settles on terms the client …
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…
Must a lawyer follow a client's instruction to skip title searches the lawyer recommended, and what are the lawyer's options if the lawyer disagrees?
The opinion concluded the lawyer should follow the client's lawful instruction to forego title searches once the client is fully informed of the consequences; the decision belongs to the client, and t…
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 run ads or send letters to a company's employees inviting them to join an employment discrimination class action?
The opinion concluded that a lawyer may advertise for and mail letters to potential class members inviting them to join class action litigation, including targeted recipients, as long as the lawyer fi…
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…
Must a New York lawyer tell a client that a small estate can be settled without a lawyer?
The opinion concluded that a lawyer consulted about a small estate should determine whether it qualifies for the simplified procedure under Article 13 of the Surrogate's Court Procedure Act and fairly…
Must a lawyer withdraw from representing a fugitive client who refuses to surrender?
The opinion concluded that a lawyer is not required to withdraw merely because a fugitive client refuses to surrender; the lawyer may keep giving legal advice and negotiating surrender, so long as the…
Can a lawyer advise a client to refuse a police breathalyzer test?
The opinion concluded that a lawyer may advise a client to refuse a breathalyzer test, because under New York law refusing is not itself criminal, the resulting license revocation is a civil sanction,…
Can a lawyer advise a client about recording a conversation with someone who is not told it is being recorded?
The opinion concluded that a lawyer may counsel a client about recording a conversation without notice to the other party where one-party recording is lawful, distinguishing advising the client from t…
Can a lawyer disclose that a client has said they intend to commit suicide?
The opinion concluded that a lawyer may take appropriate steps, including disclosure, to prevent a client's suicide; where the disclosure of intent came in the course of the representation, the lawyer…
Can a lawyer file a lawsuit on a claim that the statute of limitations has already run on?
The opinion concluded that a lawyer may institute suit on a time-barred claim where the limitation merely bars the remedy and can be waived as an affirmative defense, but not where the passage of time…
Can a law firm send a newsletter bearing its name, prepared by an outside service, to people who are not its clients?
The opinion concluded that a firm may distribute a firm-named newsletter prepared by others to its own clients with full disclosure, but distributing it to non-clients would create the appearance of s…
Can a lawyer advise a client about conduct that would be a crime in another state, and where is the line between advice and counseling a crime?
The opinion concluded that a lawyer may explain the legal character and consequences of a contemplated act, even one criminal where it would occur, but may not encourage the client to commit it or bec…
Can a lawyer publish a notice in a bar journal asking other lawyers with similar cases to get in touch?
The opinion concluded that a lawyer may publish a notice in a legal periodical inviting other attorneys who represent similarly situated clients to communicate with him, because cooperation serves the…
Can a lawyer send a licensed non-lawyer representative to appear before the Workers' Compensation Board on the lawyer's client's behalf?
The opinion concluded that a lawyer may retain a state-licensed lay representative to appear before the Workmen's Compensation Board if the lawyer discloses the representative's non-lawyer status, obt…
Can a lawyer run a school that teaches laypeople how to file their own bankruptcy petitions pro se?
The opinion concluded that it is improper for lawyers, acting independently of any responsible sponsoring organization, to operate a school teaching laymen to prepare and file their own bankruptcy pet…
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 lawyer feed the press a news story about a lawsuit he filed, or publicize his role in a case?
The opinion concluded that a lawyer should not instigate a news story highlighting his own involvement in a case, because that is indirect self-advertising; publicity genuinely in the client's interes…
Can a lawyer in a matrimonial case just draft the divorce decree and leave alimony, support, custody, and property division for the client to handle later?
The opinion concluded that an attorney handling a matrimonial matter must, at a minimum, inform the client that custody, support, alimony, and property division are issues to be considered, and may li…
Can a lawyer hired by an accountant review the work of the client's own lawyer and present those views to the client's board?
The opinion concluded that an accountant's lawyer may review another lawyer's pension-plan work to advise the accountant, and may present those views to the client's board with the client's consent, b…
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…
Is a lawyer who routinely fails to return a client's phone calls acting improperly?
The opinion concluded that consistently failing to respond to a client's telephone calls as a course of conduct is improper, because the client has a continuing right to reasonable access to counsel; …
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.