Differing Interests, Conflicts & Waiver and Consent 101

Differing Interests, Conflicts & Waiver and Consent 101 by Chris McDonough

Differing interests between a lawyer and a client are defined as “every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest.” (RPC 1.0 (f))

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Advanced Legal Fees and Related Escrow Issues

Advanced Legal Fees and Related Escrow Issues by Chris McDonough

I recently gave a lecture where I was discussing retainers, legal fees, and escrow. It became clear that there’s some confusion over advanced legal fees paid to a lawyer.

A general retainer is a retainer paid to a lawyer for unspecified future services and for the lawyer to be available to the client in the future. For example, this might be used to engage a lawyer on a monthly or yearly retainer to be available for representation or to give the client legal advice as issues arise. Under this type of retainer, the fee paid is not an advance fee but is deemed earned immediately upon receipt. See NYSBA Opinion 570.

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Alcohol Abuse by Lawyers Is a Major Problem in the Legal Profession

Alcohol Abuse By Lawyers Is a Major Problem in the Legal Profession by Chris McDonough

Recently, CNN published an article focusing on alcohol usage in the legal profession, authored by Patrick Krill Esq., the lead author of an important study that appeared in the Journal of Addiction Medicine. Mr. Krill is an attorney, board certified alcohol and drug counselor who is the director of the Legal Professionals Program at the Hazelden Betty Ford Foundation.   

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What to Do If You Have Been Charged with Cheating on the Bar Exam or Violating Other Rules of the New York Board of Law Examiners

What to Do If You Have Been Charged with Cheating on the Bar Exam or Violating Other Rules of the New York Board of Law Examiners by Chris McDonoughThe Board of Law Examiners (Board) has the authority to bring charges against a test taker (applicant) for any violation of their rules (22 NYCRR 6000). The violation can be based upon observation by a proctor, a report from exam security, a report by another test taker, or by computer detection software. They do not bring charges lightly, but when they do, it is usually a serious situation.

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Bars Rally Around Suspended Attorney

Andrew Keshner

Several bar organizations are supporting the effort of a suspended Long Island attorney to challenge in the state’s highest court what he describes as the overly strict approach of the Appellate Division, Second Department, to enforcing disciplinary rules governing attorney escrow accounts.

A Second Department panel suspended Peter J. Galasso of Galasso, Langione, Catterson & LoFrumento in Garden City for what it called his failure to exercise “appropriate vigilance over his firm’s bank accounts” from which the firm’s bookkeeper—Mr. Galasso’s brother Anthony—embezzled $4 million in client funds (NYLJ, Feb. 27). Peter Galasso cooperated with the prosecution of his brother, who is now in prison.

Mr. Galasso’s suspension was to begin on March 21, but on March 19, Court of Appeals Judge Victoria A. Graffeo (See Profile) stayed the suspension pending determination of Mr. Galasso’s motion for leave to appeal. The Grievance Committee for the Ninth Judicial District is due to file a response by April 2.
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Section 90 of the Judiciary law states that the Appellate Divisions must “be satisfied” that a candidate for admission possesses the requisite character and fitness to join our profession.  This is quite a vague standard; attempting to quantify an equally vague character based value.

It is simple for the Committees to find someone questionable or unfit to practice law.  Indicators of dishonesty, self dealing, disrespect for the law and the like will trigger deeper levels of review and/or rejection.  But how can you prove your actual fitness?

Of course, the absence of the indicators listed above is paramount.  Yet, there are other methods you should know.  For example, if there is an arrest in your past, explain it in detail and honestly.  Take full responsibility.  Show remorse, and if possible, show what you have done to address your behavior or how you given back to the community you may have harmed.

Just keep in mind that a well crafted complete application for admission must “satisfy” the Committees upon initial review.  Any serious questions that remain will trigger a hearing; which will trigger, at minimum, a lengthy delay, substantial legal fees, etc.

The moral here?  Make sure you submit an application for admission that answers any and all potential questions that it may raise as to your fitness to practice.  If you are not certain, discuss the situation with competent counsel before filing.

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The reality is that in New York a criminal record is not a bar to admission.  Indeed, a criminal charge that would get a lawyer disbarred may not keep a bar applicant from being admitted.  The real test is – what was the character of the crime and how did the applicant grow or change subsequent to engaging in that crime?

Our office was able to get an applicant admitted to practice in New York despite having been imprisoned on a felony conviction for a drug based crime that involved the use of a hand gun.  A crime of this nature (drugs, guns, and the gross disregard for the safety of others), would ordinarily cause an applicant to be rejected out of hand.  However, in this case we were able to demonstrate that the applicant had done a 180 degree turnaround from the time of his conviction.

The Character Committee decided that we were able to prove, despite the applicant’s past conduct, that the applicant possessed the requisite level of fitness to be admitted at the time of the Character Committee review.

So, can you get admitted with a criminal record?  The answer is “possibly.”  Where the acts are simple, isolated and prior to law school, there is a good chance.  Where the conviction is for fraud, theft, or other acts of dishonesty; or for multiple crimes or crimes that show a clear disrespect for the law and the rights and welfare of other people, it is a tougher hurdle.  But, it can be done with the right amount of mitigation, acceptance of responsibility, and making sure you take the correct approach when filling out your application for admission and when you appear before the Character Committee.

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Many lawyers say what they think a potential client wants to hear to get the retainer.  They figure they can ‘control’ the client after they get retained.  This practice, however, is risky and can come back to haunt you.  When you cannot deliver the result as promised, your client becomes dissatisfied; even if the result you obtain is actually a very good result.  Importantly, even if the client stays with you and you earn the retainer, his view of you will still be negative and will make it unlikely that he will refer others to you.

Instead, manage the client’s expectations right from the start.  Listen to what they want.  Sympathize with them and express your appreciation their goals.  Then, explain why their view of the case and their expectations are not reasonable (impossible, unlikely, not cost effective, etc.).  Give them a realistic range of potential outcomes right from the start where possible.  Most clients will accept your opinion; which in the final analysis is why they came to you.

Anecdotally, those potential clients who refuse to accept reason more likely than not will turn into nightmare clients who are not worth the retainer paid and are best avoided.

Encourage your clients to see their case rationally and accept reasonable expectations as to potential case outcome.  When the case resolves as expected, or better, the client walks away with a good feeling about you and your abilities.  A client satisfied with the result will be more likely to refer other clients to you.

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