美国纽约州律师资格考试各科提纲 -- 职业伦理规范.pdf

融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis International Commercial Regulatory Consulting 如有任何问题或需进一步法规信息 请与王榮菁律师 涉外法律顾问 上海金茂律师事务所 联系 If you have any questions or need further legal information please contact Rita Wang Esq by e mail attorneyritawang 美国纽约州律师资格考试各科提纲美国纽约州律师资格考试各科提纲 职业伦理规范职业伦理规范 二二 Professional ResponsibilityProfessional Responsibility Start Essay With NY Code of Professional Responsibility governs Summary of Most Commonly Tested Issues 1 Advertisements Lawyers have a First Amendment right to engage in commercial speech if it is not fraudulent deceptive or misleading 2 Fees Fee must be reasonable and contingent Fee is prohibited for criminal and domestic relations cases 3 Lawyer s Responsibility for the Act of Another A Lawyer shall be responsible for a violation by another Lawyer or a non Lawyer employed if the Lawyer orders or ratifies the acts or the Lawyer should have known the conduct and failed to mitigate 融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis International Commercial Regulatory Consulting 如有任何问题或需进一步法规信息 请与王榮菁律师 涉外法律顾问 上海金茂律师事务所 联系 If you have any questions or need further legal information please contact Rita Wang Esq by e mail attorneyritawang 融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis International Commercial Regulatory Consulting 如有任何问题或需进一步法规信息 请与王榮菁律师 涉外法律顾问 上海金茂律师事务所 联系 If you have any questions or need further legal information please contact Rita Wang Esq by e mail attorneyritawang 融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis International Commercial Regulatory Consulting 如有任何问题或需进一步法规信息 请与王榮菁律师 涉外法律顾问 上海金茂律师事务所 联系 If you have any questions or need further legal information please contact Rita Wang Esq by e mail attorneyritawang 融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis International Commercial Regulatory Consulting 如有任何问题或需进一步法规信息 请与王榮菁律师 涉外法律顾问 上海金茂律师事务所 联系 If you have any questions or need further legal information please contact Rita Wang Esq by e mail attorneyritawang 融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis International Commercial Regulatory Consulting 如有任何问题或需进一步法规信息 请与王榮菁律师 涉外法律顾问 上海金茂凯德律师事务所 联系 If you have any questions or need further legal information please contact Rita Wang Esq by e mail attorneyritawang I I Regulation of the Legal ProfessionRegulation of the Legal Profession A Inherent Powers of Courts to Regulate Lawyers Courts have inherent powers to regulate lawyers 1 Complaints Involving Lawyer Conduct a Investigated by the Departmental Disciplinary Committee Filing a complaint is privileged and followed by a non public hearing b Malpractice does not necessarily mean that there is a conduct appropriate for discipline 2 Types of Discipline That May be Imposed a Disbarment b Suspension c Public or private censure d Letter of admonition B Admission to the Profession 1 State Requirements for Admission to Bar Need to be Rationally Related to the Practice of Law a Graduation from American Bar Association ABA law school or b NY 1 1 year of law school and study in NY office under a licensed Lawyer and subject to their supervision for an aggregate total of 4 years and 2 Must take oath to uphold State and Federal Constitutions 2 Cannot require US citizenship or NY resident 3 Examination Requirement a Pass bar exam and MPRE or b Without Examination 1 Graduated ABA law school and 2 Admitted to bar in another state and that state would admit NY Lawyer without examination and 3 Practiced law for at least 5 of last 7 years proceeding application c To Apply for Bar Exam 1 Truth and Full Disclosure Burden on applicant to show good moral character 2 Duty to cooperate C Regulation after Admission 1 Lawyers are Regulated by the Highest State Court Through its Agencies a Lawyers should not violate laws or disciplines b Lawyers cannot unlawfully discriminate in the practice of law on the basis of race sex sexual orientation age marital status and etc 2 Multi Jurisdictional Practice a Discipline by one state does not mean there will be discipline in another but most states will give full faith and credit to other states decision b Choice of Law in Multi Jurisdictional Matters 1 If Licensed in NY Only NY law applies 2 Admitted in NY and Another State Rules of the state where Lawyer principally practices are used a Unless the conduct s key effect is in another state then apply that state s rules D Maintaining Professional Standards Including Peer Responsibility Admitted lawyers have 融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis International Commercial Regulatory Consulting 如有任何问题或需进一步法规信息 请与王榮菁律师 涉外法律顾问 上海金茂凯德律师事务所 联系 If you have any questions or need further legal information please contact Rita Wang Esq by e mail attorneyritawang the duty to report and testify when he knows of a violation 1 Not anonymously 2 Cannot Violate a Rule and Try to Fix it Later a Lawyer that threatens to report another Lawyer who violates rule if he does not remedy his wrong will be disciplined b Confidentiality trumps duty to report if the Lawyer is a client In this case the Lawyer still cannot recommend his client Lawyer for admission in another state E Unauthorized Practice of Law Lawyer cannot practice in a jurisdiction where he is not authorized unless he has a permissible temporary practice 1 Activities Constitute Practicing Law and Thus Require a Lawyer a Providing legal advice b Taking depositions c Appearing in court for a client d Negotiating settlement e Approving a legal document 2 Tasks That do not Require License a Non Lawyer under the supervision of a senior Lawyer b Where professional judgment is not required 3 Permissible Temporary Practice a Associate with an active local Lawyer b Pro Hac Vice Special permission for a specific case c Mediation arbitration out of home state practice d Anything reasonably related to Lawyer s home state practice 4 Multi State Firms Lawyer may only practice where admitted and firm letterhead must indicate his state of admission F Fee Division With a Non Lawyer Lawyer cannot be partner with non Lawyer if any part of the partnership involves the practice of law 1 Generally Lawyer should never divide a legal fee with a non Lawyer unless payments are a In the forms of salaries retirement plans bonuses or profit sharing b For spouses of deceased partners the fees earned by deceased partner 2 Lawyer and non Lawyer can share office as long as the space is physically separated a The separation has to appear to be separated to the public b Lawyer must take precautions to insure non Lawyer clients are not coerced to use Lawyer for legal matters G Fee Division With a Lawyer 1 This rule does not prohibit payment to a Lawyer formerly associated in a law firm pursuant to a separation or retirement agreement 2 A Lawyer shall not divide a fee for legal services with another Lawyer who is not associated in the same law firm unless a The division is in proportion to the services performed by each Lawyer or by a writing given to the client each Lawyer assumes joint responsibility for the representation b The client agrees to employment of the other Lawyer after a full disclosure that a division of fees will be made including the share each Lawyer will receive and the client s agreement is confirmed in writing and c The total fee is not excessive 融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis International Commercial Regulatory Consulting 如有任何问题或需进一步法规信息 请与王榮菁律师 涉外法律顾问 上海金茂凯德律师事务所 联系 If you have any questions or need further legal information please contact Rita Wang Esq by e mail attorneyritawang H Law Firm and Other Forms of Practice 1 Law Firm A law firm shall make reasonable efforts to ensure that all lawyers in the firm conform to the disciplinary rules 2 Other Forms of Practice a A supervisory Lawyer shall make reasonable efforts to ensure that the other Lawyer conforms to the disciplinary rules b Lawyer shall be responsible for a violation by another Lawyer or a non Lawyer employed if 1 The Lawyer orders or ratifies the acts 2 The Lawyer should have known the conduct and failed to mitigate c Lawyer is liable for his misconducts notwithstanding that the Lawyer acted at the direction of another person d A subordinate Lawyer is not liable if that Lawyer acts in accordance with a supervisory Lawyer s reasonable resolution of an arguable question of professional duty I Contractual Restrictions on Practice 1 Non Compete Agreements are Prohibited with Exceptions Lawyer should not enter an agreement to restrict the right of another to practice law after the termination of a relationship created by the agreement except as a condition to payment of retirement benefits 2 Settlement Lawyer shall not enter into an agreement that restricts the right of a Lawyer to practice law J Responsibilities and Contractual Relationships Regarding Non Legal Services 1 Lawyer subject to these disciplinary rules with respect to non legal services if a Client could reasonably believe that the non legal services are the subject of the Lawyer Client relationship b Lawyer treats his non legal services like legal services 2 It will be presumed that the person receiving non legal services is the subject of Lawyer Client relationship unless a Lawyer has advised the client in writing that the services are not legal services and that the protection of a Lawyer Client relationship does not exist with respect to the non legal services or b The interest of the Lawyer in providing services is de minimis II II The LawyerThe Lawyer Client Relationship Client Relationship A Acceptance or Rejection of Clients 1 Consensual Lawyer can decline to represent someone but he should not decline a client s case just because client s side is unpopular 2 Lawyer Must Reject Certain Cases a Lawyer is unable to provide adequate legal services b Actions are intended to harass or interposing party c Client is already represented by another counsel d Other lawyers within the firm are prohibited from taking the case e Representation would result in violation of disciplinary rule e g conflict of interest f Lawyer cannot accept or continue employment if his professional judgment would be affected by his own financial business property or other personal interest unless a disinterested Lawyer would believe that the representation of the client would not be 融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis International Commercial Regulatory Consulting 如有任何问题或需进一步法规信息 请与王榮菁律师 涉外法律顾问 上海金茂凯德律师事务所 联系 If you have any questions or need further legal information please contact Rita Wang Esq by e mail attorneyritawang adversely affected and the client consent after full disclosure B Scope Objective and Means of the Representation 1 Scope A Lawyer may serve simultaneously as both advocate and adviser and a Lawyer has duty to zealously represent a client a Lawyers as Advocate Can apply most favorable construction to the fact that the client gives you so long as not frivolous b Lawyer as Adviser Has duty to give professional opinion as to likely decision of the court and the result or effect of that decision 2 Objective a Client Decision 1 General Rule The client makes all decisions that affect the merits of the case or will substantially prejudice the client s rights 2 Examples a Whether to commence a suit b Whether to plead an affirmative defense c Whether to settle d Whether to testify at trial e Whether to plead guilty f Whether to elect for jury trial g Whether to file an appeal h Whether to join a party to the lawsuit 3 Lawyer must abide by clients wishes unless it would be illegal unethical or immoral b Lawyer Decision 1 General Rule Lawyer makes all decisions that are procedural in nature 2 Examples a Adjournment b Whether to conduct discovery c What kind of discovery to conduct d Venue 3 Means of the Representation a If client is minor or client becomes incapacitated then Lawyer must get a guardian appointed b Lawyer must respect the client and include client in the process of making decisions as much as possible C Within the Bounds of the Law 1 Lawyer s Conduct Has to be Within the Bounds of the Law a Only make good faith argument b Cannot assert a frivolous claim which means claims that he knows is not true D Withdrawal The client has the power to terminate the Lawyer client relationship in disregard of the circumstances and a Lawyer may withdraw when there is good reason and material harm to the client 1 Lawyer Must Request Withdrawal When a Lawyer knows client s purpose is frivolous and will cause harassment b Lawyer leads to a violation of the Code including his service being used to perpetrate a crime or fraud 融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis International Commercial Regulatory Consulting 如有任何问题或需进一步法规信息 请与王榮菁律师 涉外法律顾问 上海金茂凯德律师事务所 联系 If you have any questions or need further legal information please contact Rita Wang Esq by e mail attorneyritawang c Client fires the Lawyer d Lawyer becomes impaired physically or mentally 2 Lawyer May Request Withdrawal When a Lawyer s withdrawal can be accomplished without material adverse effect on interests of client b Client s claim or defense is frivolous c Client persists in a course of action involving Lawyer s services that the Lawyer reasonably believes is criminal or fraudulent d Client insists that Lawyer pursue a course of conduct that is illegal or prohibited by Code e Other conduct makes it unreasonably difficult for Lawyer to carry out employment effectively f Client insists that the Lawyer engage in conduct that is contrary to the judgment and advice of the Lawyer even if the conduct is not prohibited by Code and the matter is not pending before the court g Client deliberately disregards agreement of obligation to the Lawyer as to fees or expenses h Lawyer s inability to work with co counsel indicates that the best interest of the client is served by withdrawal i Client knowingly and freely agrees to termination j Other good cause 3 Lawyer may continue in the representation of his client even though his client has elected to pursue a course of conduct contrary to the advice of the Lawyer so long as the Lawyer does not knowingly assist the client to engage in illegal conduct or to take a frivolous legal position 4 Methods of Withdrawing a Must obtain court s permission to withdraw if matter is in litigation b Lawyer must withdraw in a way that does not prejudice the client 1 Must return client s property promptly 2 Must provide client with reasonable notice E Statement of Client s Rights Engagement Letters and Retainer Agreements 1 Statement of Client s Rights a For domestic relations matter client must be provided with statement of client rights and responsibilities at the initial conference and prior to signing of a written retainer agreement b Fee agreement must be in writing and signed by Lawyer and client 2 Engagement Letters a General Rule To represent a client for fees over 3 000 a Lawyer shall provide to the client a written letter of engagement before or within a reasonable time of commencement with the following exceptions 1 Service is of the same general kind previously provided to client 2 Services involve domestic relations matter where a specific letter is required b The letter of engagement shall address the following matters 1 Explanation of the scope of the legal services to be provided 2 Explanation of Lawyer s fees to be charged expenses and billing practices c Engagement letters can be substituted by retainer agreement 3 Retainer Agreements Retainer agreement must include the following 融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis International Commercial Regulatory Consulting 如有任何问题或需进一步法规信息 请与王榮菁律师 涉外法律顾问 上海金茂凯德律师事务所 联系 If you have any questions or need further legal information please contact Rita Wang Esq by e mail attorneyritawang a Scope of legal services to be provided b Explanation of fees charged c Expenses and billing practice d Notice of client rights to arbitrate a fee dispute F Fees 1 Duty to Explain Fully the Reasons for Fees a Fee Must be Reasonable There is no minimum or maximum fee b Factors of Reasonableness 1 Time and labor 2 Novelty and difficulty of questions involved 3 Requisite skill to perform legal services 4 Customary fee within locality for similar work 5 Experience ability and reputation of Lawyer 6 Interference with other employment by Lawyer 7 Time limitations imposed by client or circumstance 8 Whether fee is fixed or contingent 2 Contingent Fee is Prohibited for a Criminal case b Quasi criminal case c Domestic relations case 3 Domestic Relations Matter a Domestic Relations Matter Include 1 Divorce separation annulment custody visitation maintenance child support and alimony 2 Preliminary hearing enforcement judgment modification appeals b Requirements of Engagement Letter Fee agreement must be in writing and signed by Lawyer and client c Client must be provided with statement of client rights and responsibilities at the initial conference and prior to signing of a written retainer agreement d Prohibitions 1 Non refundable fees 2 Contingency fee to collect unpaid alimony or child support e Periodic Billing 1 Must send out bill every 60 days and at conclusion of case 2 Lawyer must send back any unused portion of retainer G Mediation of Lawyer Client Disputes Mediation is a process in which a moderator does not issue a ruling but helps guide clients and lawyers toward a non binding resolution States should offer mediation as an alternative to arbitration but does not require parties to mediate H Fee Arbitration 1 Fee disputes must be resolved by arbitration at election of client 2 If both the fee arbitration and the legal malpractice action shared at the core claims of Lawyer malpractice then the client is barred from later bringing the malpractice claim to court I Sale of Law Practice A Lawyer retiring from a private practice of law or the personal representative of a deceased disabled or missing Lawyer may sell a law practice 1 Confidences and Secrets The seller may provide the prospective buyer with the following 融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis International Commercial Regulatory Consulting 如有任何问题或需进一步法规信息 请与王榮菁律师 涉外法律顾问 上海金茂凯德律师事务所 联系 If you have any questions or