FAQs

Where can I find information about setting up and maintaining escrow accounts?

Take a look at the Association’s pamphlet entitled “Other People’s Money,” which provides an overview of your obligations. Copies of this pamphlet are available in the Small Law Firm Center. Disciplinary Rule 9-102 of the Lawyer’s Code of Professional Responsibility, 22 NYCRR 1200.46, referred to in our pamphlet, outlines your responsibilities (you can download a copy of the entire Code by going on to the N.Y. State Bar Association’s website www.nysba.org, clicking the “Attorney Resources” tab and clicking on link for the Code). Additionally, the IOLA Fund website has a FAQ section about accounts and you can download enrollment forms. Both the Association’s Committee on Professional and Judicial Ethics Formal Opinions and the N.Y. State Bar Association’s Ethics Opinions have provided advice on the subject.

What obligations do I have to retain records and files?

Again, the Lawyer’s Code of Professional Responsibility (DR 9-102) outlines your responsibilities and the length of time particular documents must be retained. N.Y. State Bar Association Ethics Opinion Nos. 623(1991), 641(1993), and 680(1996, among others, also provide guidance about closed files, recycling laws, and computer-based record retention. The Association’s Committee on Professional and Judicial Ethics Formal Opinion 1999-05 (N.Y. City 1999-05) provides advice about the disposition of original wills when the testator cannot be located and the attorney is retiring or the firm is dissolving. You may also contact the Association’s Ethics Hotline at 212-382-6624 with a specific question.

Can “of counsel” relationships be listed on a firm’s/attorney’s letterhead?

First, do you really have an “of counsel” relationship? The Lawyer’s Code of Professional Responsibility (DR 2-102(A)(4), 22 NYCRR 1200.7) permits an “of counsel” designation when there is a “continuing relationship with a lawyer or law firm, other than as a partner or associate.” You do not have an “of counsel” relationship if you are merely sharing office space or referring business. There must also be active involvement in each other’s cases and day to day affairs, as well as the availability for consultation and advice on a regular and continuing basis. See, e.g. N.Y. City 1996-8; N.Y. City 1995-8.

If there is, indeed, an “of counsel” relationship, a law firm or an individual attorney may act as “of counsel” to another law firm or another individual attorney, and each may so indicate on the letterhead. Remember, however, that for purposes of analyzing conflicts of interest, the “of counsel” relationship is treated as if the “counsel” and firm/attorney conduct business as a single firm. See, N.Y. City 1995-8.

What about “associated” or “affiliated” designations?

These designations may be used when the attorneys/firms involved have met the criteria for an “of counsel” relationship, an “of counsel” relationship already existed between the attorneys/firms, and there has been appropriate disclosure of the nature of the relationship to clients and prospective clients. Just as “of counsel” relationships are treated as one unit for conflicts of interest purposes, so too are “associated” or “affiliated” relationships. See, N.Y. City 2000-4.

If you have any questions about whether your contemplated designation is appropriate, please call the Association’s Ethics Hotline at 212-382-6663.

What type of business entity should my firm be?

Consultation with an accountant is often the first step in determining the appropriate business entity for your firm. You will want to take into consideration the tax consequences as well as liability issues attendant to the proposed entity.

Generally, if you are a sole practitioner, you may practice as a sole proprietor (check local requirements about filing a business certificate with the County Clerk’s office); a single member Professional Service Limited Liability Company (“LLC” or “PLLC”) (review the N.Y. Limited Liability Company Law for legal requirements and procedure, and N.Y. State Department of State website for filing information and forms; or a single member Professional Service Corporation or “PC” (review the N.Y. Business Corporation Law for legal requirements and procedure, and N.Y. State Department of State website for filing information and forms.

If there are two or more attorneys involved, they may practice as partners (check local requirements about filing a business certificate as well as the N.Y. Partnership Law); in a professional Limited Liability Partnership (“LLP” or “PLLP”) (review Article 8-B of the N.Y. Partnership Law for legal requirements and procedure, and N.Y. State Department of State website for filing information and forms; in a professional Limited Liability Company (“LLC” or “PLLC”) (review the Limited Liability Company Law for legal requirements and procedure, and N.Y. State Department of State website for filing information and forms; or in a PC (review the N.Y. Business Corporation Law for legal requirements and procedure, and N.Y. State Department of State website for filing information and forms.

Where can my firm find or advertise available office space?

One great place to look is the Association’s Free Member Postings (Association members only). You may also respond to ads in a newspaper’s classified section, such as the New York Law Journal, or work with a broker to find space. Of course, letting your colleagues know that you are looking for space is also very helpful. They may know about unadvertised available space!

Where do I find information about malpractice and other types of insurance?

The first place to look for information is the Association’s website (www.nycbar.org). Visit Benefits of Membership or go to the Insurance Programs link for the insurance services provided by Mercer.

How do I know what software my firm should be using?

As every law practice and firm style of management is different, there are no quick answers to this question. Billing, calendar, and case management systems, whether created from off-the-shelf software (such as Microsoft Word® or Microsoft Outlook®), or specifically tailored to the legal profession are key components to a firm’s office technology. To help determine which software is right for your firm, the following is suggested: Attend the Association’s technology presentations (check the Association’s calendar of events; check the Law Practice Management Sections of the NYSBA and ABA for recent articles and publications about software; review Law Office Computing; attend the Legal Tech Conference and Exhibition; and last, but certainly not least, consult with colleagues in your fields of practice to find out what they use and why.

I am admitted to practice in another state or country. What do I need to do to practice law in New York?

Attorneys who are seeking admission on motion and foreign attorneys seeking to be licensed as foreign legal consultants must pass through an application process administered by the Committee on Character and Fitness of a Judicial Department of the New York State Supreme Court, Appellate Division.

Experienced attorneys seeking admission without examination should refer to the applicable court rules (22 NYCRR Part 520), and must first apply to the New York State Board of Law Examiners to be certified to the appropriate Judicial Department. Attorneys certified should refer to the particular Judicial Department’s specific instructions and additional guidelines, and should carefully review 22 NYCRR §520.10 before completing and filing the application.

Foreign attorneys seeking to apply for a license as a foreign legal consultant should refer to 22 NYCRR Part 521 and send a written request for the application materials to New York State Supreme Court, Appellate Division, at the particular Judicial Department’s Committee on Character and Fitness. Further information may be found with the First Department Information and the New York Bar Exam.

Additionally, N.Y. Judiciary Law Section 470 requires that a New York attorney maintain an office in this state in order to practice.

For the procedure for pro hac vice admission, see 22 NYCRR Section 520.11. Note that in order to participate in pre-trial or trial proceedings, you must be associated with an attorney in good standing of the New York bar, who shall be the counsel of record for the matter.