Recent N.Y. Ethics Opinions: May 2015

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By Tyler Maulsby, Associate, Frankfurt Kurnit Klein & Selz

Here are summaries of two ethics opinions issued in January and February 2015. The first was issued by the NYSBA Committee on Professional Ethics, and the second by the NYC Bar Association Committee on Professional Ethics. NYLER will continue to provide updates on new ethics opinions issued by these and other ethics committees in New York State.

For information about how to obtain an ethics opinion from the NYS Bar Association Committee on Professional Ethics, please visit

For information about how to obtain an ethics opinion from the NYC Bar Association Committee on Professional Ethics, please visit



NYSBA Ethics Op. 1044 (Jan. 8, 2015):
Paying for Litigation Expenses

The inquiring lawyer represents a personal injury client in a matter covered under New York’s no-fault insurance provisions. The client is indigent and unable to afford transportation expenses to and from medical appointments and has asked the lawyer to advance the transportation costs. The attorney asked the Committee whether this was permissible as an “expense[] of litigation” under Rule 1.8. The answer, the Opinion reasoned, depended on whether the appointment to which the client was traveling was necessary to the litigation. The cost of transportation to the Independent Medical Examination, for example, was clearly a necessary litigation expense because the examination was a condition to receiving payments from the state’s no-fault insurance fund. However, “costs of routine medical care necessary to treat the client’s injuries may not qualify as costs of litigation.” The Committee concluded that “[t]he dividing line between what is and is not a necessary cost of litigation is a question of fact that is beyond our jurisdiction to determine.” The Opinion discussed the basis for Rule 1.8’s prohibition on advancing costs not necessary for litigation, specifically, Comment [10]’s note that the danger in a lawyer advancing costs not necessary to litigation is that such a structure would “encourage clients to pursue lawsuits that might not otherwise be brought and because such assistance gives lawyers too great a financial stake in the litigation.” Finally, the Opinion concluded that if the lawyer’s client was indigent, the lawyer could ethically pay qualifying expenses without seeking reimbursement.

The full opinion is available at:



N.Y. City Formal Ethics Op. 2015-2 (Feb. 2015):
Nonrefundable Monthly Fee in a Retainer

Opinion 2015-2 addresses whether a lawyer may ethically enter into retainer agreement that requires the client to pay a nonrefundable flat monthly fee in exchange for access to the lawyer for a specified list of legal services. Under the agreement, the lawyer would send the client a bill specifying the time spent and services rendered by the lawyer during the prior month, and the amount of the bill for the prior month would be the flat fee. Any services outside the scope of the agreement would be billed separately. Analyzing Rule 1.5, the Committee reasoned that the proposed arrangement fits the criteria for a hybrid retainer — where money is being paid in advance both to secure a lawyer’s availability for future services, if requested, and to compensate the lawyer for providing specific services. The Committee cautioned that, while a lawyer using such an agreement may run into several ethical issues, “[t]he Committee is not prepared to say that charging a nonrefundable monthly fee is impermissible in all circumstances. ***.” The Committee concluded that the proposed fee is permissible, provided the following conditions are met: (i) the fee is not “excessive” under Rule 1.5(a); (ii) the fee is fully earned; and (iii) the agreement does not impede the client’s right to terminate the representation. Additionally, the fee must be adequately disclosed in the agreement. This includes an adequate explanation of the services included in the retainer and what portion of the fee is being charged to the lawyer’s availability as opposed to compensating the lawyer for specific legal services.

The full opinion is available at:


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DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.


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