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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What conflicts of interest does a New York per diem (appearance counsel) attorney face when switching between representing plaintiff lenders and defendant debtors in collection matters?
The opinion concludes that a per diem lawyer may not oppose a current client in any matter, or a former client in a substantially related matter, without informed consent confirmed in writing; persona…
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 pay people who refer clients a flat fee for 'administrative' work, like filling out and filing forms, on each referred matter?
No. The opinion concludes that promising a nonlawyer referrer paid administrative work for each referred matter is a thing of 'value' given as compensation or a reward for the referral, which violates…
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 who works only as a real estate broker, and provides no legal services, accept referral fees from an investment advisor?
Yes. The opinion concludes that a New York lawyer who provides only nonlegal real estate broker services, and gives the client a Rule 5.7(a)(4) written notice that the services are not legal services,…
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…
Can a New York lawyer charge a minimum fee for a defined legal service, and when does it become a prohibited nonrefundable fee?
Yes. The opinion concludes a minimum fee is permitted if the engagement letter explains in plain language how it is calculated and incurred and the fee is reasonable and not excessive; an unearned por…
Can a law firm pay a former lawyer their agreed share of fees on cases they worked on after that lawyer leaves to take public office?
Yes, subject to any governing law. The opinion concludes that paying a departed lawyer a fee share for work performed at the firm is a permitted separation-agreement payment under Rule 1.5(h), not a r…
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 charge a flat fee with advance payments and let the client decide whether to pay part of the final balance based on satisfaction?
Yes, within limits. The opinion concludes a lawyer may charge a non-excessive flat fee with advance payments and a satisfaction-based discount, but advance fees are payments on account unless the reta…
Can a lawyer also work as a wealth manager, charge the same clients for both, send clients to a financial planner for a referral fee, or sell financial products to non-clients?
The opinion concludes a lawyer may not provide legal and wealth management services to the same client for separate fees (an unconsentable conflict), may not take a referral fee for sending a law clie…
Can a lawyer take a spot on a counterparty's list of designated counsel for the funders in a financing deal, paid from the deal proceeds, when the counterparty tries to limit the lawyer's role?
The opinion concludes a lawyer may serve as designated counsel recommended and paid by the counterparty only if the third party does not interfere with the lawyer's independent professional judgment a…
Can a New York contingency-fee lawyer charge interest on litigation disbursements the lawyer advanced but the client did not pay, and must the lawyer use the 9% statutory rate?
The opinion concludes a contingency-fee lawyer may charge interest on unpaid disbursements if a signed written agreement discloses the terms, the client is billed promptly with a chance to pay first, …
When a lawyer acts as a divorce mediator, which ethics rules apply, how must the lawyer disclose the neutral role, and can the lawyer later file the uncontested divorce for one party?
The opinion concludes a lawyer-mediator is governed by Rule 2.4, not the client-representation rules, so the lawyer may run the mediation and set fees freely while disclosing the neutral role; afterwa…
Can a lawyer take disputed fees out of the client's escrow funds, add interest, and hold back a cushion for possible fee litigation?
No. The opinion concludes a lawyer may not remove from the trust account any amount the client disputes, may charge interest on an unpaid bill only if the written fee agreement provided for it, and ma…
Can a New York divorce lawyer take a mortgage on the client's house to secure unpaid legal fees without going back to the court?
Not on the lawyer's own. A fee mortgage in a divorce matter must satisfy both Rule 1.8(a) (a fair, fully disclosed business transaction with the client) and Rule 1.5(d)(5)(iii), which requires a signe…
Can a lawyer agree to be paid for a client's criminal defense out of the client's personal injury recovery in another matter the same firm handles?
Yes, if the lawyer complies with Rule 1.8(a). Securing hourly criminal fees against a personal injury recovery is a permitted Rule 1.8(i) contract lien, but it is a business transaction creating diffe…
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…
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 divorce lawyer's retainer authorize charging the client's credit card for bills left unpaid?
The committee cannot say; it turns on a question of law. Rule 1.5(d)(2) bars a fee prohibited by law or court rule, and whether a credit-card authorization is a 'security interest' under 22 NYCRR 1400…
Can a lawyer disclose a client's confidential information, such as billing time sheets, to support a fee claim in a fee dispute?
Yes, a lawyer may disclose confidential information reasonably necessary to establish or collect a fee, but must take all reasonable measures, such as redaction or seeking the court's guidance, to lim…
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 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 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…
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 let a non-lawyer civil rights client keep some or all of the statutory attorney fees a court awarded to the client?
Yes. The opinion concludes that because statutory civil rights fees are awarded to the prevailing party (the client), not to the lawyer, letting the client keep some or all of them is not the kind of …
Can a law firm bill a client for work done by an unpaid law-student intern who works for academic credit?
Yes. The opinion concludes a firm may bill for a student-intern's work even though the firm pays the intern nothing, as long as the internship complies with applicable law, the school does not object …
Can a New York law firm charge a prospective client a fee for cancelling an initial consultation without notice, and does the policy have to be in writing?
Yes, within limits. The opinion concludes a lawyer may charge a nominal late-cancellation fee for an initial consultation if the lawyer discloses what triggers it and the charge either reflects the la…
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…
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 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…
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 a lawyer report a client's bill-payment history to a credit-bureau-style database that other law firms can see?
Yes, but only with the client's informed, uncoerced consent. A client's payment status is confidential information, and the fee-collection exception does not cover this reporting, so the lawyer needs …
Can a lawyer with a contingent-fee agreement take a fee out of a litigation-funding advance the client received against a future recovery?
Whether an existing 'settlement or judgment' contingent fee reaches a third-party advance is a question of law the committee will not decide. A retainer may provide for such payment from the start; if…
Can a law firm charge clients who pay a retainer by credit card a little more than the processing fee the card company charges the firm?
Yes. A lawyer may charge a client a nominally higher amount than the credit card processing fee imposed on the lawyer, as an administrative convenience, if the client is told about the up-charge and c…
Can a New York lawyer advance an indigent client's taxi and transportation costs to medical appointments in a no-fault injury case?
A lawyer may advance transportation costs only if they qualify as an expense of litigation. Travel to an insurer-required IME clearly qualifies; travel to other doctors qualifies only when necessary t…
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 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…
If a contract requires my client to pay the other side's attorney's fee and that fee seems excessive, can I still close the deal, and must I report the other lawyer?
Yes, the lawyer may participate in the transaction even if the counter-party's attorney's fee is excessive, because the lawyer did not cause or induce it. Reporting under Rule 8.3 is required only if …
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 buy physical evidence, such as surveillance video, for use in litigation, and can the payment be contingent on the case outcome?
Yes in general, and the payment may be contingent on the outcome, but limits apply: a lawyer may not pay outcome-contingent compensation to someone who will be a witness (Rule 3.4(b)), and may not off…
Can a New York lawyer move unearned client retainers from one escrow account to another lawyer's escrow account to protect them from a creditor's levy?
No. Unearned advance-payment retainers belonging to a lawyer's clients must stay in that lawyer's own escrow account and cannot be transferred to another lawyer's escrow account to shield them from a …
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…
After a matter settles, can a New York lawyer keep the leftover retainer in escrow at the client's request as an advance for unspecified future work?
Yes. The opinion concludes the leftover balance becomes an advance payment retainer, which the parties may agree to treat as client funds held in escrow or as the lawyer's own funds, subject to refund…
Can a New York lawyer reveal a former client's confidential financial information in the client's bankruptcy to collect an unpaid fee, and what duty applies if the client misled an earlier court?
The opinion concludes the lawyer may disclose confidences in the bankruptcy only to the extent reasonably necessary to collect the fee, and that if the client gave false material evidence to a tribuna…
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 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 New York lawyer take client referrals from a non-lawyer firm and be paid an undisclosed cut of the flat fee the client pays that firm?
No. A lawyer may not accept referrals where the legal fee, in an amount never disclosed to the client, is taken from the fee the client pays a non-lawyer firm; that violates the duty to communicate fe…
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 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…
Can a New York matrimonial lawyer triple the hourly rate to cover the risk of nonpayment, take a confession of judgment or security interest, and amend the retainer?
The risk of nonpayment alone does not justify charging a multiple of the normal hourly rate. A lawyer may take a confession of judgment for fees already earned and a security interest in client proper…
Can a New York lawyer sell discounted legal services through a 'deal of the day' or group-coupon website like Groupon?
Yes, if the ad is not misleading and discloses that no lawyer-client relationship forms until the lawyer checks for conflicts and competence. The lawyer must fully refund a coupon buyer who cannot be …
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 offer to refund all legal fees if a traffic or other Vehicle and Traffic Law charge is not dismissed or reduced?
The ban on contingent fees in criminal matters does not reach simple traffic infractions, which the Vehicle and Traffic Law deems noncriminal, but it does reach VTL violations that are misdemeanors or…
Can a lawyer take a case on a contingent fee when the client has already retained a non-testifying expert who is paid a percentage of the recovery?
Yes. There is no ethical barrier to a lawyer agreeing to a contingent fee where the client has separately retained a non-testifying expert who is also paid a percentage of the recovery, because the la…
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…
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 pay the litigation expenses of a pro bono client that is not itself indigent, such as a legal-services organization?
Yes. Under Rule 1.8(e)(2), a lawyer representing a client pro bono may pay the client's court costs and litigation expenses whether or not the client is indigent.
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.