Ethics Opinion 771
A website advertisement that uses client testimonials or reports of past results is prohibited under DR 2-101(A) if the advertisement creates unjustified expectations, contains insufficient information, or is otherwise false, deceptive or misleading.If the client testimonials or reports of past results are not false, deceptive or misleading, a lawyer need not post a disclaimer that past results do not guarantee similar outcomes in future cases.If the advertisement is false or deceptive, a disclaimer cannot cure the false or deceptive nature of the advertisement.If client testimonials or reports of past results are misleading, an appropriate disclaimer may be sufficient to correct the misleading nature of the advertisement if the disclaimer is prominently placed in the website such that a lawyer reasonably would expect that any prospective client who reads the advertisement will read the disclaimer.
Ethics Opinion 772
DR 7-105(A) prohibits the presentation and threatened presentation of criminal charges when the purpose is to effect a resolution of a civil dispute; the disciplinary rule does not embrace administrative or disciplinary charges that may be threatened or presented in connection with a civil dispute, regardless of purpose.
Ethics Opinion 773
A lawyer who serves on a municipal board is prohibited from appearing before that board on behalf of a private client.Lawyers who are “of counsel” to a law firm are “associated” with the law firm for purposes of DR5?105(D), and so the firm is likewise disqualified from appearing before the board unless the client gives informed consent.Whether the firm is disqualified by other rules depends on the facts and circumstances, but if not and if the firm does appear, the lawyer-member must recuse him or herself.
Ethics Opinion 774
When a law firm hires a secretary, paralegal, or other nonlawyer who has previously worked at another law firm, the law firm must adequately supervise the conduct of the nonlawyer.Supervisory measures may include i) instructing the nonlawyer not to disclose protected information acquired at the former law firm and ii) instructing lawyers not to exploit such information if proffered.In some circumstances, it is advisable that the law firm inquire whether the nonlawyer acquired confidential information from the former law firm about a current representation of the new firm or conduct a more comprehensive conflict check based on the nonlawyer’s prior work.The results of such an inquiry will help determine whether the new firm should take further steps, such as seeking the opposing party’s consent and/or screening the nonlawyer.
Ethics Opinion 775
When a possibly incapacitated former client asks a lawyer to return the client’s original will, the lawyer may communicate with the former client and others to ascertain the former client’s condition and wishes.
Ethics Opinion 776
It is aper se prohibited conflict of interest for a former prosecutor to defend an accused if the lawyer participated personally and substantially in prosecuting the defendant on the same charges while serving as a prosecutor.
Ethics Opinion 777
A lawyer may represent a client in litigation notwithstanding that the lawyer owns a preexisting interest in the subject matter of the litigation, if the lawyer’s interests and the client’s interests in the outcome of the litigation are not in conflict and the lawyer will not be called as a witness.
Ethics Opinion 778
Lawyer engaged by insurance company may not represent two defendants, one of whom has a potential indemnification claim against the other, unless a disinterested lawyer would believe the lawyer can competently represent the interests of each, the one defendant waives the right to assert indemnification as cross-claim, and both defendants otherwise consent after full disclosure.
Ethics Opinion 779
Improper for an attorney to pay money to a marketing organization in return for that organization providing the attorney with “leads” to potential clients.
Ethics Opinion 780
Generally proper for a lawyer to retain copies of a client’s file; proper to require a release of malpractice liability as a condition of returning the file without retaining copies.
Ethics Opinion 781
A matrimonial lawyer who learns that a financial statement submitted by the lawyer to family court contains a material omission, and that the client perpetrated a fraud on the tribunal, must call upon the client to rectify the material omission.If the client refuses, the lawyer must withdraw the financial statement.If the lawyer knows or it is obvious that continued employment will result in violation of a Disciplinary Rule, the lawyer must withdraw from the representation, with the court’s permission if required under its rules.
Ethics Opinion 782
Lawyers must exercise reasonable care to prevent the disclosure of confidences and secrets contained in “metadata” in documents they transmit electronically to opposing counsel or other third parties.
Ethics Opinion 783
If a client deliberately disregards an agreement to pay legal fees and expenses, and the letter of engagement or retainer agreement is silent as to interest charges on the delinquency, a lawyer may condition continued representation on the client’s agreement to prospectively pay interest on any past due balance for services rendered or to be rendered in the future.
Ethics Opinion 784
Lawyer-principal in entertainment management firm may represent client of such firm in some but not all types of legal matters.
Ethics Opinion 785
An attorney representing a plaintiff in a personal injury action may engage in settlement discussions with a non-lawyer insurance company claims adjuster over the objection of the attorney assigned by the insurance company to represent the defendant-policyholder with respect to the claim,provided that (i) the insurer is not represented by separate counsel with respect to the matter; and (ii) the plaintiff’s attorney does not deliberately elicit information protected from disclosure.
Ethics Opinion 786
A lawyer representingpro bono a provider of legal services to the indigent may not pay the expenses of litigation without the client remaining ultimately liable therefor unless the organization itself is indigent.The test of indigence in these circumstances depends on the financial wherewithal of the organization and not on the purposes it serves.
Ethics Opinion 787
A lawyer who represents a wife in a personal injury matter and her husband on a loss of consortium claimcannot continue to represent either if the wife wishes to accept a settlement offer that would bar the husband’s claim.If the husband has disappeared,the lawyer must take all reasonable steps to protect the client’s interests and to locate the husband client.After exhausting all reasonable efforts to locate the husband, the lawyer may withdraw from the representation.
Ethics Opinion 788
A lawyer who has a private practice and serves as a part-time assistant district attorney may not represent a client in a civil matter where the client is being prosecuted by the district attorney’s office.The conflict cannot be cured by consent.
Ethics Opinion 789
A law firm may form an attorney-client relationship with one or more of its own lawyers to receive advice on matters of professional responsibility concerning ongoing client representation(s), including on matters implicating the client’s interests, without thereby creating an impermissible conflict between the law firm and the affected client(s).The law firm’s duty to disclose its conclusions will vary with the circumstances of the matter.
Ethics Opinion 790
Conflict may exist where Law Guardian is employed by agency that has provided services to parent of Guardian's ward.
NEW YORK STATE BAR ASSOCIATION, ONE ELK STREET, ALBANY, NY 12207 PH: (518) 463-3200 SECURE FX: (518) 463-5993