1. DO LAWYERS HAVE ANY STANDARDS OR ETHICS THAT THEY ARE REQUIRED TO FOLLOW?

Yes! In fact, lawyers are probably one of the most regulated professions.

For the protection of the consumer of legal services, clients and the proper functioning of the judicial system, in many states lawyers are required to:

• Take at least one lawyer ethics class in law school.
• Take and pass a 2.5 hour examination testing professional responsibility and ethics subjects.
• Pass a general bar examination which usually includes at least one essay question involving an ethical issue.
• Go through a rigorous "moral character" investigation by the Committee of Bar Examiners to determine their honesty, good moral character and fitness to practice law.
• Take an oath to uphold the United States and New York Constitutions and their laws.
• Abide by high professional standards which include:
  • Many lawyers' professional standards are established by the New York Legislature in the Judiciary Law.
  • Additionally, the New York Supreme Court has established Rules of Professional Conduct with which all New York lawyers must comply.
• Finally, the New York Supreme Court and the Appellate Division have established standards of care, professional conduct and responsibility for lawyers through appellate case law which explain the application of existing law or add new duties.

The questions and answers below summarizes the most important duties and responsibilities New York lawyers have to clients.

2. BEFORE YOU HIRE A LAWYER, DOES THE LAWYER OWE YOU ANY DUTIES?

Yes! The lawyer you consult or interview is required to treat your matter as confidential.

Until you and the lawyer form an attorney-client relationship, the lawyer may not owe you other legal duties that lawyer would owe to a client. You and the lawyer are dealing at "arms length" in a manner that any other business people would. At this point, if you have never had a "relationship" with a particular lawyer before, the law assumes that you and the lawyer are in an equal bargaining position.

3. WHAT IS CONFIDENTIAL?

Generally, any communication from you to the lawyer about your legal matter and anything from the lawyer to you. Confidentiality includes:

• Anything you say (orally or in writing) to the lawyer concerning your legal matter is confidential and secret, unless you say that the information can be revealed.
• Anything you say (orally or in writing) to the lawyer's employees (e.g. secretaries, receptionists, paralegals, investigators, assistants, associate attorneys) or agents (e.g. investigators, accountants, doctors, other professionals or experts retained by the lawyer or you to assist the lawyer in your legal matter) concerning your legal matter is confidential and secret, unless you say that the information can be revealed.
• Anything your authorized representative says (orally or in writing) to the lawyer, lawyer's employees, or agents concerning your legal matter is confidential and secret, unless you say that the information can be revealed.
• Any oral or written communication from your lawyer, his/her employees, or his/her agents to you respecting your legal matter is confidential and secret unless you say that the information can be revealed.
• The work product of your lawyer, his/her employees, or agents is also privileged from disclosure in most situations.

4. WHAT IS THE PURPOSE OF CONFIDENTIALITY?

To promote the fullest communication between the client and the lawyer on any issues which may be relevant, even if the client, and sometimes the lawyer, do not think those issues are relevant. A lawyer needs to know the big picture in order to determine whether he or she can help you; to know how to help you and to figure out what further areas need to be investigated. If you or the lawyer were afraid that the information could be accessed by either opposing parties or the government, you would not be able to have the full and frank discussions necessary for the lawyer to assist you.

Therefore, it is the policy of the law to protect confidential information as indicated above except in a handful of circumstances outlined below.

5. HOW DOES A LAWYER PROTECT YOUR CONFIDENTIALITY?

If a lawyer is asked to reveal confidential information and you do not agree that it should be revealed, the lawyer is required by law to decline disclosure and asserts the attorney-client privilege. Some New York cases state that an attorney should be prepared to go to prison rather than reveal a confidence or secret of the client. Our legal history is replete with stories of lawyers who have gone to prison and suffered other penalties in protecting their clients' confidential information.

6. DOES THE DUTY OF CONFIDENTIALITY END?

Generally, the lawyer's duty to maintain your confidences lasts forever. It continues even if you do not hire the lawyer. It continues after your legal matter has concluded. In most cases, a lawyer must keep information about your matter confidential even after you have died.

The lawyer's duty to maintain confidentiality ends when you authorize the lawyer to release information, but then the scope of the lawyer's ability to release information is limited by the terms you set.

Also, there are a number of legal rules stating the circumstances in which there is no attorney-client confidentiality. If a judge in a court of law orders the attorney to release information after ruling that there is no attorney-client confidentiality.

7. WHAT ARE THE EXCEPTIONS TO THE DUTY OF CONFIDENTIALITY?

There are some exceptions to the duty of confidentiality.

• There are a handful of circumstances when there is no attorney-client privilege. A lawyer is required to asserts the attorney-client privilege and refuse to disclose information until a court rules that the lawyer must reveal the information. This also gives the client the opportunity to argue against revelation of the confidential information.
• If the Court rules that information to or from the lawyer is legally not confidential, then the lawyer may have to reveal information which both you and the lawyer thought would be confidential.
• Your lawyer should caution you when you discuss an area that may be an exception to the attorney-client privilege.
• If you and other people all hire the same lawyer for the same matter, there will be no confidentiality among all of you joint clients. The lawyer cannot disclose confidential information to third parties, but may be required to tell any of the other joint clients anything you say in private to the lawyer. If you and other joint clients later have a dispute, the lawyer must reveal all information communicated in the course of the joint representation on the same matter.
• If you bring an action or complaint or arbitration against your lawyer regarding his or her professional conduct, a lawyer may disclose confidential information necessary to conduct his or her own defense to your charges, and in New York State, a lawyer may reveal confidential communications sufficient to collect any unpaid attorneys fees or costs of litigation.
• Some things do not become confidential and secret just because you give them to your lawyer during the consultation or attorney client relationship.

EXAMPLE 1: Documents and papers that relate to your legal matter, but which were not created by the lawyer or his/her agents or by you or your representatives directed to your attorney, are not confidential.

EXAMPLE 2: Money given to the lawyer cannot ultimately be shielded from disclosure or release if required by law.

EXAMPLE 3: Property given to the lawyer cannot ultimately be shielded from disclosure or release if required by law.

8. HOW DOES AN ATTORNEY-CLIENT RELATIONSHIP BEGIN?

A lawyer-client relationship is formed by an express or implied contract between the client and the attorney.

9. WHAT IS AN EXPRESS CONTRACT?

Most attorney-client relationships are created by an express understanding between both lawyer and client that each desires to form an attorney-client relationship with one another. The characteristics of an express contract can include:

• The contract establishing a lawyer-client agreement can be oral or in writing.
• The payment of legal fees is not required. Lawyers who perform work for free for family members, friends and to third parties who need assistance which they cannot afford are held to the same high standards as lawyers who are paid for their services.
• In New York, most all agreements for the payments of legal fees must be in writing.
• An express agreement requires:
  • That the client agrees to hire the lawyer to represent him or her;
  • That the lawyer has agreed to represent the client; and
  • That there be agreement about the terms of the representation, including:
    • the subject matter of the representation;
    • the goals of the representation; and
    • the obligations of the client concerning fees and costs, if any.

10. WHAT IS AN IMPLIED ATTORNEY-CLIENT RELATIONSHIP?

A lawyer-client relationship can be created by an implied contract, without formal agreement. An implied lawyer-client relationship does not necessarily require the payment of legal fees or any formal agreement. An implied agreement arises by operation of law where, by the conduct of the attorney and the client, the client has a reasonable belief that the lawyer is protecting the clients interests and the client relies upon that belief.

EXAMPLE 1: Jack was terminated from his employment with Big Corporation. During a consultation about Jack's legal rights and remedies, Lawyer tells Jack that he does not have a good case for wrongful termination. Jack is disappointed and but about a year later finally gets a second opinion. Lawyer 2 thinks that Jack has a very good case but the statute of limitations on bringing a legal case against Big Corporation has ended. Even though Jack and Lawyer 1 never entered into a fee contract or pursued Jack's case, an implied attorney client relationship was created because Lawyer 1 gave Jack a legal opinion about his case.

EXAMPLE 2: Jill believes that her doctor did something wrong in her back surgery because she is still suffering unrelenting pain. She consults Lawyer 1 about bringing a medical malpractice case. Lawyer 1 says that he is not sure whether he can take her case, but he will look into whether or not she has a good case and will get back to her. Lawyer 1 retained Jill's files and papers for over four months, during which her right to bring a legal action against the doctor expired. An implied attorney-client relationship was created, requiring the lawyer to protect Jill's rights during the time when the lawyer is deciding to take the case.

11. WHAT ARE THE LAWYER'S OBLIGATIONS TO A CLIENT AFTER BEING HIRED?

Once you have hired a lawyer to represent you, the lawyer has a whole host of duties which govern the course of the relationship and the lawyer's conduct in that relationship with you.

It has often been said that the lawyer is a fiduciary to the client. Being a fiduciary means that the lawyer owes the client the utmost fair dealing and good faith. A fiduciary relationship is essentially that of a trustee.

The lawyer also owes the client the duty to adhere to the Rules of Professional Conduct and the laws which govern the attorney-client relationship.

12. WHAT DUTIES DOES A LAWYER OWE AS A FIDUCIARY TO THE CLIENT?

• Confidentiality. (See answers to questions on confidentiality above.)
• Candor.
• Honesty in the handling of your funds and property.
• Undivided loyalty.
• Communication
• Competence

13. WHAT IS THE DUTY OF CANDOR?

Candor involves the lawyer's fiduciary duty to tell you the truth at all times. The lawyer also has a duty to divulge to you any information in his or her possession which is relevant and material to your matter or your decision making about your matter. Candor includes the duty to be honest, forthright, and not to mislead or conceal material information from you.

14. WHAT IS MEANT BY THE DUTY OF HONESTY AND HOW IS IT DIFFERENT FROM CANDOR?

In the handling of your property and funds, the lawyer is required to act as a trustee. This duty of honesty includes the following subset of duties:

• The duty to keep your property safe.
• The duty to report to you promptly whenever the lawyer receives property or funds which belong to you (whether wholly or partially belonging to you).
• The duty to account to you for his or her handling of the property or funds.
• The duty to return your property or funds to you or direct them to a third party, on demand.

15. WHAT IS MEANT BY THE DUTY OF FAIR DEALING?

Before you have a relationship with your lawyer, it is said that lawyer and client deal at arms' length. For example, in negotiating the fee agreement with you, the lawyer is free, within the bounds of the law, to negotiate the best deal he or she can make concerning legal fees and costs.

Once you have hired your lawyer, the lawyer must protect your interests to the maximum extent, even over his or her own interests. All business and financial transactions between the lawyer and the client (other than the initial fee agreement) are regulated carefully to ensure that the transactions:

• are fully disclosed in writing;
• are fair to the client; and
• that the client has an opportunity to seek the advice of an independent lawyer on the transaction.

16. WHAT IS MEANT BY THE DUTY OF UNDIVIDED LOYALTY?

A lawyer has the duty of undivided loyalty in protecting the client's interests. Generally, this means that the lawyer cannot have a conflict of interest that will affect his or her ability to protect your interests. Ensuring that lawyers have no conflicts of interests involves three basic areas:

a. Relationship conflicts.

Does the lawyer have any past or present relationships that affect his or her ability to place your interests first?

Does the lawyer have any past or present relationships that might dilute your confidence in your lawyer's loyalty?

The law requires your lawyer to disclose a variety of relationships to you so that you can decide whether those relationships might affect your confidence or challenge your lawyer's loyalty.

b. Interest conflicts.

Sometimes the protection of your interests might be in actual conflict with the lawyer's duties to protect the interests of others presently or in potential conflict in the future. In these situations, the lawyer must disclose the potential or actual conflicts in writing and must obtain your written consent before continuing to represent you.

Note: The written disclosure must explain the foreseeable risks to you if the representation were to continue in such a way as to permit informed consent. In this way, you, as a consumer of legal services, can judge whether the risk to your interests is slight or sufficient that you desire to retain another lawyer.

c. Protection of the attorney-client privilege.

As noted above, your communications with a prospective lawyer and after you've hired a lawyer are protected from disclosure by statute except in very narrow situations. To protect your confidential information from disclosure, a lawyer may not accept or continue employment from a new client if that clients matter is substantially related to the information which the lawyer acquired from you, or would require the lawyer to use or disclose your confidential information.

17. WHAT DUTIES OF COMMUNICATION DOES THE LAWYER HAVE?

Your lawyer is professionally obligated to have adequate communication with you. There are three types of communications your lawyer must have with you:

1. Information sufficient for your decision making.

The lawyer must communicate enough information to the client, in a manner in which the client can understand, so that the client can make knowing and intelligent decisions about the legal matter which the lawyer is handling.

Sometimes English is not the first language of a client and the client may not understand the full content of the lawyer's oral and written communications. In these situations, a lawyer may have a duty to communicate with the client through an interpreter who can communicate adequately with the client in that client's first language.

2. Significant developments.

The lawyer must keep the client reasonably informed of significant developments in the client's matter in which the lawyer is performing legal services.

3. Responses to reasonable status inquiries.

The lawyer must respond promptly to reasonable status inquiries of the client. If things are moving very swiftly in your legal matter, this may require that the lawyer talk to you on a daily basis.

However, many legal matters move more slowly. This may mean that nothing significant happens for weeks or even months. If you have a question about your matter, you may call, write or fax your lawyer your questions. Your lawyer or a trusted member of the lawyer's staff should respond promptly.

A lawyer is not always required to communicate with you in person; lawyers may delegate some tasks to secretaries, paralegals, or associates in their offices. Having another person communicate with you does not mean that the lawyer does not consider you or your case important. Getting information from someone in your lawyer's office other than the lawyer can have two advantages to you:

• It is more economical and can lower your legal bills; and
• It is often quicker. Lawyers tend to be in court, at a meeting or in conference with someone else when you call or need the information.

18. WHAT IS THE DUTY OF COMPETENCE?

When the lawyer must perform legal services for you, a lawyer must have apply the necessary time, resources, knowledge, ability, and experience to protect your interests. Lawyers in New York may give legal advice in any area of the law and practice in any court of record or administrative tribunal in New York. They may also be admitted to one or more federal courts within the State of New York.

Although they may practice in any area of the law, some lawyers choose to limit their practice to certain areas of the law (e.g. criminal defense; probate and estate planning; general civil; workers compensation or family law). Although some lawyers acquire special skills and experience in a particular area, they call their practice "limited". The New York State Supreme Court does not certify specialists in particular fields.

19. WHAT OTHER RIGHTS DO YOU HAVE IN THE CLIENT-ATTORNEY RELATIONSHIP?

A. YOU HAVE AN ABSOLUTE RIGHT TO FIRE YOUR LAWYER

In New York, a client has the right to terminate the services his or her lawyer at any time, regardless of whether there is good cause. However, you may still have to pay for the legal work your lawyer performed on your case prior to notice of termination of legal services.

Practical tip: There is no required means of firing your lawyer. However, it is good practice to send your lawyer a written notice of termination (by fax or mail). Here are a few other tips:

1. Always date your letter.
2. State a date when the termination of legal services will be effective if the date is other than the date upon which you send the letter.
3. Indicate in your letter the means of delivery (e.g. by fax, by letter, by registered letter, by certified letter).
4. Identify a new lawyer you have hired, if any, and the new lawyer's address and phone number.
5. Ask for the return of any advances for fees you believe that the lawyer has not earned and an accounting.
6. Ask the lawyer to make your file available to the new lawyer or yourself immediately.
7. Tell the lawyer what you want done with any funds or property the lawyer is then holding.

B. IN NEW YORK YOUR FILE BELONGS TO YOU, IF

a. You have paid all fees due concerning your representation, or;

b. You have retained the attorney on a "No-Recovery No Fee Basis" in a case seeking the recovery of a money judgment against a wrongdoer.

Unlike many states, New York recognizes an attorneys retaining lien on your personal file for unpaid fees. If you have paid all of your fee's or if no fee's are owing because the attorney hasn't recovered on the contingency fee contract, upon termination of the attorney-client relationship, the client has a right to access and possession of the original file. The lawyer is not required to deliver the original file to you, but is required to make it available promptly, at reasonable hours, to you or your new attorney for pick up.

The lawyer may keep the file for a reasonable time to make a copy of it. However, the lawyer should not charge you for making a copy, or charge you any fees for making it available to you (unless, in a prior written agreement, you agreed to a copying charge or other payment).

The lawyer must give you the original file, not a copy of the file.

What constitutes "the file" is not settled, but generally includes all pleadings, original documents in the lawyer's possession, and all papers necessary for you or your lawyer to continue with the legal matter.

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