You and Your Lawyer

NEW YORK STATE BAR ASSOCIATION

This pamphlet, which is based on New York law, is intended to inform, not to advise. No one should attempt to interpret or apply any law without the aid of an attorney. Produced by the New York State Bar Association Committee on Public Relations.

Early consultation with a lawyer could prevent serious problems later on.

Who needs a lawyer?

Sooner or later, almost everyone. Many people only think of seeing a lawyer after they develop a legal problem, but the best time to consult an attorney is before, not after you have a legal problem.

When do you need a lawyer?

Early consultation with a lawyer can prevent serious problems later on. Common situations when you should have a lawyer include:

The basis for a legal fee

Abraham Lincoln once emphasized the value of a lawyer's services when he said, "A Lawyer's time and advice are his stock and trade." Probably the key elements in any fee charged by a lawyer are the amountof time spent and the overall value of the service rendered on a particular problem. A lawyer's professional services differ from those of a doctor or dentist in one important way: much of the work is done when the client is not present.

Many clients are often unaware that a document drawn for them, or the advice given to them in a few minutes, is actually the product of a lawyer's education, experience, and many hours of work. The end result may also have involved time spent by other persons in the lawyer's office, such as legal assistants, the lawyer's associates, and/or legal secretaries.

Remember, when you engage the services of a lawyer, you are really hiring an entire law office to work for you.

Computation of the fee

The legal profession is trying to hold down legal fees (and office expenses) through the use of computers, work processing equipment, legal assistants, and pre-paid insurance programs; however, the nature of the services being rendered makes this difficult.

In computing fees, a lawyer considers a number of elements:

This is not to imply that a lawyer less experienced in a certain area of the law is not able to cope with typical legal problems. The law is no different in this respect from any other profession, such as medicine, where there are specific fields of practice.

Probably the key element in any fee charged by a lawyer is the amount of time spent on a particular problem.

There are several other methods used for computing legal fees, a combination of which may be used:

Remember, that no matter what fee arrangement is used, the client will be expected to advance or to reimburse the lawyer for out-of-pocket disbursements, and that unless a contingency fee arrangement has been made, the lawyer will expect to be paid whether the client wins or loses the case. You should keep in mind that in a court proceeding, no lawyer could guarantee the results. Discussing the fee: You should discuss the cost of legal services at your first interview with a lawyer. The lawyer may not be able to determine the exact amount of time and effort required to handle your case, but should be able to give you an estimate based upon past experience. A lawyer may quote a total charge for the work involved, or may provide you with hourly rates and an estimate of the time required on a particular matter.

You should always discuss fees with a lawyer before you ask to have work done.

You should never hesitate to discuss fees at any time during the handling of your legal matter, including asking you lawyer for an itemized explanation of fees and expenses charged. If you receive a statement and believe that the fee isn't proper, talk it over with your lawyer promptly.

Misunderstandings about fees frequently result from the fact that the client is not aware of the extent of the lawyer's work on the case. This is by no means the client's fault. Clients who do not regularly use a lawyer may understandably believe that the only services being performed by the lawyers are those, which the client can actually see, which is not generally the case. It is the obligation of the lawyer to explain, if asked, how the charges were made. And of course, sometimes lawyers make mistakes when preparing the bills. Prompt, frank discussion between you and your lawyer is the best way to correct any mistakes and to clear up any misunderstanding, which they may have caused.

How to work best with your lawyer

Why you should not seek to handle your own legal affairs

A number of do-it yourself "kits" are offered for sale from time to time. Kits are available for getting a divorce, avoiding probate, declaring bankruptcy, or forming a business. It's not illegal for you to use these for your own affairs; however, you risk paying the consequences. Kits may appear to save you money, but a minor detail, one that you might overlook but one that a lawyer is trained to notice, could result in a loss far greater than what you "save" by trying to be your own lawyer. After all, there's an old saying, even for lawyers, that "he who represents himself has a fool for a client."

Statement of Client's Rights

As a public service, your lawyer is providing you with a Statement of Client's Rights as approved by the Administrative Board of the Courts. To help prevent any misunderstandings between you and your lawyer, please read the Statement carefully. It tells you what you as a client are entitled to by law or by custom.

Reciprocal trust, courtesy and respect are the hallmarks of the attorney-client relationship. Within that relationship, the client looks to the attorney for expertise, education, sound judgment, protection, advocacy and representation. These expectations can be achieved only if the client fulfills the responsibilities as outlined by your attorney.

Your lawyer is available to answer any questions you may have about these rights, or about the way your case is being handled. Don't' hesitate to call. He or she should be readily available to represent your best interests and to keep you informed about your case.

The client's rights are as follows:

Good communication between you and your lawyer is the key to a good lawyer-client relationship.

If you have a problem with your lawyer

Good communication between you and your lawyer is the key to a good lawyer-client relationship. No matter what problems develops between you and your lawyer, speak to him or her as soon as the problem arises, first by telephone and then, if necessary, in person. Perhaps the problem has arisen due to a simple misunderstanding that can be cleared up in a short, frank telephone conversation. And if you are unable to reach your lawyer by telephone, then write and keep a copy of your letter. Tell the lawyer exactly what is bothering you and request that he or she schedule an appointment for you to discuss the matter.

If, after you have spoken with your lawyer you have not resolved the problems, or if your lawyer has failed to respond to your calls and letters, then depending upon the circumstances, there are a number of things that you can do.

If, you are simply dissatisfied with your lawyer's representation, or if you wish to change attorneys for some other reason, then you have the absolute right to do so. You always have a right to change lawyers for any reason, but you should be aware that a change could delay your case, and that you still have to pay the first lawyer for the work that has already been completed.

Lawyers are held to the highest level of professional and ethical conduct as prescribed by New York's Code of Professional Responsibility.

If you have a question about the ethical conduct of an attorney, contact the New York State Bar Association, which can give you the telephone number for the appropriate Appellate Division grievance committee. You should keep in mind that a lawyer cannot guarantee the outcome of your case, and the fact that the results are less than what you may have hoped for or expected does not mean that there was unethical conduct.

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The Role Of The Lawyer In Home Purchase Transactions

NEW YORK STATE BAR ASSOCIATION

This pamphlet, which is based on New York law, is intended to inform, not to advise. No one should attempt to interpret or apply any law without the aid of an attorney. Produced by the New York State Bar Association Committee on Public Relations.

Do I need a lawyer? I can buy an automobile or 100 shares of stock without a lawyer. Why not a one or two family home?

Buying a home

Buying a home may not only be the most significant and largest purchase you will make, it also involves the law of real property, which is unique and has special problems. A lawyer is trained to deal with these problems and often has the most experience to deal with them. This applies to people selling a home or buying a home.

In the typical home purchase transaction the seller enters into a brokerage contract with a real estate agent, which is usually in writing. When the broker finds a potential buyer, negotiations are conducted through the broker, most often acting as an intermediary. Once an informal agreement is reached, buyer and seller enter into a formal written agreement. The buyer then obtains a commitment for financing. Title is searched to satisfy the lender and the buyer. And finally, the property is transferred from the seller to the buyer and the seller receives the purchase price bargained for in the contract. Seems simple and uncomplicated, but, without a lawyer, the consequences may be even more disastrous than purchasing a car that turns out to be a lemon, or a stock investment that was unwise.

What are some of the reasons why you need a lawyer for a home purchase or sale?

A lawyer's advice and guidance is essential from the time you decide to sell or to buy a home until the actual closing.

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Buying And Selling Real Estate

NEW YORK STATE BAR ASSOCIATION

This pamphlet, which is based on New York law, is intended to inform, not to advise. No one should attempt to interpret or apply any law without the aid of an attorney. Produced by the New York State Bar Association Committee on Public Relations.

Whether you are seller or buyer, you should understand the contract terms and how they affect you.

Nearly everyone, at some time in life, faces the problems of buying and selling real estate. Because the purchase of a home is probably the largest single investment a person will ever undertake, careful consideration should be given to the practical and legal complications involved in the transfer of real estate before any action is taken. This pamphlet describes the process, noting some differences in practice between upstate (north of Dutchess and Orange Counties) and downstate.

Contracts

Once you have found the house you would like to buy and have agreed on the price, you will probably be asked to sign a paper and pay a deposit. This paper may be called a binder, receipt, purchase offer or agreement and is usually prepared by the seller's agent (upstate, usually a real estate agent; downstate, usually the seller's attorney). Contracts prepared by brokers are usually subject to the approval of the attorneys for the parties within a short specified period of time.

Any one of these papers may constitute a binding contract requiring you to purchase the house. Before signing it, you should consider seeking legal advice. Remember that once a contract has been signed, your rights and obligations are fixed concerning the transaction and your attorney may not have the opportunity to structure the contract to meet your objectives.

Whether you are seller or buyer, you should understand the contract terms and how they affect you. The other parties to the contract may not be under any obligation to tell you what the contract means and you may not understand the legal meaning of much of the terminology or what should be changed or added to protect you.

So, if you are going to have an attorney represent you in the transaction, the time to consult one is before you sign any papers or immediately after signing a contract that is subject to attorney approval.

The contract of sale should state the parties, the purchase price and how it is to be paid, an adequate description of the property being sold, the kind of deed to be delivered, the quality of the seller's title to the property, a description of personal property include in the sale, the date the buyer is to take possession, and other clauses relating to the property and the parties' respective responsibilities to each other.

The contract should also permit the buyer to cancel the contract, if a commitment for financing can't be obtained and provide for the return of the down payment, if the sale falls through for other reasons not the fault of the buyer. Or, perhaps the seller may want to retain possession of the property for some time, in order to find new accommodations. If so, appropriate clauses can be included in the contract defining such rights.

These are only a few matters usually covered in the contract. However, they illustrate the variety of terms and conditions to be considered when you enter into such a transaction.

All contracts and mortgage documents for the purchase and sale of real estate costing $50,000 or less must be written in non-technical language and in a clear and coherent manner. This requirement applies only to real estate, which is, or will be, personally used by the buyer or seller.

Title

The "title" to real estate is the right of the owner to its peaceful possession and use, free from the claims of others. Often, however, the exercise of that right is limited by the existence of other rights, which are, called easements. To obtain electricity, sewers, telephone, etc., an owner gives the municipality or public utility the right to run its lines or pipes across his or her property to the house. Other often encountered easements provide for drainage of surface water, or access rights of way such as for a jointly used driveway. These easements must be recognized by the owner in the use of the property and considered by the buyer who is purchasing the property.

There are other ways in which the use of the owner's property may be limited. One is by restrictions in the deed; another is by local zoning law. Also, almost all land is subject to real property taxes, which if not paid, may result in the loss of title. Other debts owed on the property (for example, special assessments or levies) can also cause problems later on.

When you buy a home, you should be certain that you have the right to occupy it without interference and that you later will be able to sell or mortgage it without problems.

Title Searches

After the contract has been signed, you should satisfy yourself that the seller can convey title to the property to you as agreed upon in the contract of sale. In different areas of the state, varying methods are used to make sure that the title received from the seller is acceptable under the contract.

Upstate, your lawyer may make his or her own examination of the records and issue a certificate indicating the findings, or supply you with a written title opinion based on an abstract of title (which is simply a title history) prepared by a commercial abstractor. Downstate, your attorney may often order a title search by a title insurance company or agent and a title insurance policy. Or, a combination of any of these methods may be used.

A word about title insurance - while it may give you protection against financial loss and the possible expense of defending your title in court, it does not lessen the importance of your lawyer's advice. Your lawyer can advise you whether and how to obtain title insurance and also on the terms, exceptions, and conditions of a title insurance policy. Title insurance does not cover compliance with zoning or environmental laws, among other things.

Buyer's Duty to Inspect

Under New York law, the buyer of a house that is not newly constructed has a duty to inspect the condition of the house and land. The buyer should carefully look over the property and is also urged to consider hiring a home inspector to perform a professional inspection, preferably prior to signing a contract of sale. Alternatively, the contract sale should be conditioned on receipt of a satisfactory inspection. The buyer also has a duty to ask questions about any conditions observed and to inquire about other matters, such as taxes, zoning and school district. Buyers of newly constructed houses are protected by a statutory housing merchant implied warranty under General Business Law S 777-a.

Form of Deed

In residential transactions there are two generally used Forms of Deed. The first is called a "Warranty Deed", which assures the buyer that the title is good against anyone who may claim a superior title, which is customarily used upstate. The second Form of Deed is the "Bargain and Sale Deed With Covenant Against Grantor's Acts," which is customarily used downstate. This deed assures the buyer that the seller has done nothing to affect the title to the property through his or her own acts or omissions. In both instances, if the title is insured by the title insurance company, the buyer will usually look to the title insurer for protection against claims even though the buyer may also make a claim against the seller.

Representation

Remember one important point - the seller, broker, and bank in the transaction may each have an attorney representing each of their interests. An attorney representing any of these parties (even though you may be charged with a fee, as in the case of a bank) is not your attorney unless you agree otherwise after being properly informed of the potential conflict of interest. It is your own responsibility, as the buyer, to seek the professional advise of an attorney to protect yourself and to be sure that you get precisely what you are legally entitled to receive.

Closing

The "closing" of the purchase of your home is the transaction in which you receive all the documents required to convey the title of your home.

At the closing these documents are reviewed to be sure that the conditions and promises of the purchase contract are fulfilled. Also at this time, the balance of the purchase price is paid to the seller.

Arrangements are made at the closing for the time when you will occupy the home. Normally, when the full purchase price is paid, the keys to the house are delivered to the buyer, who then has the right to move in immediately. However, your purchase agreement may also specify that you move in at a later date.

The important thing to remember is that buying a home is a major investment. It usually involves making payments over a period of years. In the long run, it's likely to be more economical to have competent professional advice - your attorney's advice - in making

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If You Have An Auto Accident

NEW YORK STATE BAR ASSOCIATION

This pamphlet, which is based on New York law, is intended to inform, not to advise. No one should attempt to interpret or apply any law without the aid of an attorney. Produced by the New York State Bar Association Committee on Public Relations.

What should you do if you're involved in an automobile accident in New York State?

Stop

In New York State, if you are involved in a vehicle accident causing injury to person or property, you are required to stop and give your name, address, and show your driver's license and insurance identification card to the person who is injured or whose property is damaged, or to a police officer. If such information isn't available at the scene of the accident, it must be given to the nearest police station or judicial officer as soon as possible.

Injured persons receive first consideration

If possible, have someone call a doctor or an ambulance at once. If you don't know the local area, a telephone operator will locate help for you. Remember, in getting aid, it is necessary to fix your location as precisely as possible, so that help can reach you without delay.

Meanwhile, make the injured party as comfortable as possible. You normally should not move an injured person. Keep the person warm with blankets or coats. If there is any bleeding, stop it by applying direct pressure with a clean cloth. Do not give an unconscious person anything by mouth.

Protect the scene

Make every effort to prevent further accidents. You may be liable for damages to approaching vehicles unless they are properly warned. Vehicles should not be left in a position of danger on a highway if they can be moved, nor should passengers remain in such a vehicle. If the highway is obstructed at night, have someone with a flashlight warn approaching motorists. Set out flares and reflectors if they are available.

Call traffic officials

Request the presence of a police officer or highway official and give briefly the basic facts. The official report may help you later if any liability claim is made.

Trade facts with other drivers

Obtain the names and addresses of all other drivers involved, along with the names and addresses of other passengers. Also note the ownership, license number, year and make of all cars involved in the accident.

If possible, obtain the names of the insurance companies and the policy numbers covering the other autos in the accident. By law, an insurance policy information card must be carried in every vehicle-licensed In New York State. These cards can be your source for such information.

Get the names and addresses of as many witnesses as possible

Witnesses will be a tremendous help to you in any subsequent court action, if there is any question of liability involved. Get the names, addresses and telephone numbers of as many witnesses as possible. If they refuse to identify themselves, jot down the license numbers of their automobiles.

Do not discuss the accident with the witnesses. Do not give their names to anyone but the police, your attorney or your insurance company. Remember to get the name and badge number of any police officials who appear on the scene.

Write down the details of the accident

Make a note of the details of the accident, including date and time, road conditions, weather conditions and speed of all other cars involved. It also is a good idea to draw a diagram of the accident showing the position and direction of the cars just prior to and after the accident.

Report the accident to the commissioner of motor vehicles and to your insurance company

The law requires that the operator of a vehicle involved in an accident in New York State in which a person is killed or injured or one in which damage to the property of any person, including himself, exceeds $1,000 must file a written report with the Commissioner of Motor Vehicles within 10 days. If the operator is unable to make such a report, another participant must make it within the prescribed period. Remember to keep copies of all correspondence and reports for your records. The law further provides that if an operator or participant is unable to make this report, the owner of the vehicle must do so within 10 days after learning of the accident. Failure to comply with the law is a misdemeanor and could be grounds for suspension or revocation of the operator's driving license, or certificate of registration for the vehicle. Your local police station or insurance agent will help prepare the necessary forms.

Failure to comply with the law is a misdemeanor.

Remember to call your insurance company representative immediately after the accident. Don't forget to send written notice to your insurance company as soon as possible. The notice should include the time, place and circumstances of the accident. If you fail to notify your insurance company of the accident in writing within a reasonable time, this could be grounds for the company's denying any obligation to protect your interests in the event a claim is made against you.

Also, make sure your report contains the names of all injured persons (including passengers, pedestrians, and drivers and the names of all available witnesses.

Claims made against you

Refer all persons making claims against you to your insurance company. Make no payments, or promises to pay, to any claimant. Immediately send your insurance company all legal papers served on you. If the coverage you have purchased is not adequate to cover the claims made against you, consult your lawyer at once. Remember, you may have insurance coverage under more than one policy.

Claims made by you

If you are injured, see a doctor as soon as possible. Potentially serious and costly injuries may seem trivial at first.

Where accidents occur within New York State, automobile insurance policies include provisions for payments to operators and passengers of automobiles, and to pedestrians for medical expenses, lost wages, and other expenses, regardless of fault.

If you have any questions about your right to sue for either personal injury or property damage, consult your attorney.

No-Fault insurance benefits in New York State

Under New York State's compulsory no-fault automobile insurance law, persons injured in a motor vehicle accident are eligible to receive up to $50,000 in benefits provided they were not intoxicated, drugged or engaged in other specified criminal or anti-social behavior. The no-fault benefits include:

(Note: you must file your no-fault claim within thirty days of the accident or you will lose your no-fault coverage)

These benefits are payable regardless of who was to blame for the accident.

Some policies may contain additional benefits, but each policy must be examined to determine what its benefits are.

The right to sue

Under no fault, you, as an accident victim, retain the right to sue a negligent operator and owner of a covered vehicle for personal injury losses in certain cases:

New York State requires a minimum of $25,000/$50,000 personal liability coverage, $10,000 in property damage and $50,000 in the event of a wrongful death; in addition to the no-fault coverage.

If an owner or operator is uninsured, you should consult your attorney immediately.

Property damage

Claims for damages to your vehicle still will be covered by your own collision or comprehensive insurance policy, if you have one. As in the past, if another motorist is at fault in an accident, you retain the right to sue the person for property damage. New York requires a minimum $10,000 property damage coverage.

If the owner or operator is uninsured, you should consult your attorney immediately.

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Your Rights If Arrested

NEW YORK STATE BAR ASSOCIATION

This pamphlet, which is based on New York law, is intended to inform, not to advise. No one should attempt to interpret or apply any law without the aid of an attorney. Produced by the New York State Bar Association Committee on Public Relations.

When making an arrest without a warrant a police officer must tell you the reason for the arrest, unless you are in the act of committing the crime or being chased.

What is an arrest?

You have been arrested when a police officer or citizen takes you into custody or restrains you physically or verbally so that you may be held to answer for a crime or an offense; you may be taken into custody immediately or be given an appearance ticket similar to a traffic ticket.

Arrest warrants

A warrant for an arrest is a process issued by a court. It may be executed on any day of the week and at any hour of the day or night. The police officer must tell you that he is acting under the authority of a warrant. He also must show you the warrant, if you ask, and give you a chance to read it either at the time of the arrest, if it is in his possession, or as soon as he obtains it.

If you refuse to let him in, a police officer with an arrest warrant may break open a door or window to gain entrance, after he has given you notice of his authority and purpose or without notice he reasonably believes that you will escape, destroy evidence or that notice will endanger him.

Arrest without a warrant

A police officer may arrest you without a warrant if:

When making an arrest without a warrant a police officer must tell you the reason for the arrest, unless you are in the act of committing the crime or are being chased. In any arrest without a warrant, a police officer may chase you beyond his geographical area.

Citizen's arrest

A citizen may arrest you without a warrant if you have committed a felony in fact or if you have committed a non-felony in his presence. He must tell you the reason for the arrest unless that is impractical to do.

You may sue a private individual for unlawful arrest if you did not commit any crime, even if the individual had reasonable cause to believe you had committed a crime.

You may use reasonable force to resist an unlawful arrest being made by a private citizen.

If you are arrested by a private citizen you must be taken before a judge or turned over to a police officer "without unnecessary delay."

Use of force

If you resist an arrest, the police officer may use all necessary means to arrest you, including force.

Questioning without arrest

The law permits a police officer to approach any person in a public place to request information if he reasonably suspects that you are committing, have committed or are about to commit a crime. He may demand to know your name, address and an explanation of your actions.

You are not required to answer; the right to remain silent is guaranteed you by the Federal and New York State constitutions.

When you are lawfully arrested, your person may be searched. In addition, the immediate area of the place of your arrest may be searched.

If you are held for questioning by a police officer and he reasonably suspects that he is in danger, he may search you for weapons or instruments that could cause serious injury.

If he finds a dangerous weapon or instrument on you, he may keep it until he finishes questioning you. If he does not arrest you, he must give you back the weapon (provided you have a permit to carry it). If the police officer, while searching you for dangerous weapons, finds anything else on you, which is a crime to possess, he may take it, and arrest you for possessing it.

Search warrants

In all situations, the police officer needs a warrant to search you, except where the search is incidental to a lawful arrest or under other specific circumstances where the search may be justified by law.

Anything unlawfully taken by the police may not later be used as evidence against you.

A search warrant is an order in writing signed by a judge directing a police officer to search a certain place and / or person for specified property and to bring that property to court. The warrant must describe the place and / or person to be searched and the property to be searched for.

The police officer has to show the search warrant and give notice of his authority or purpose before making entry and beginning to search. However, the warrant may authorize the police to break in and search without notice. A police officer can break in if you refuse to admit him after being given notice.

Anything unlawfully taken by the police may not later be used as evidence against you.

If you are taken into police custody (this includes juveniles) you have the following rights:

Arrest records

When you are arrest for felonies or misdemeanors, a record is made of your arrest. You will be fingerprinted and photographed. If you are found not guilty or the case is dismissed, you may apply for return of your fingerprints and photographs and the sealing of the record of that case.

If personal property or money is taken from you, you must be given a receipt showing the amount of money or the kind of property taken.

Once you are arrested and booked, you must be taken to court "without necessary delay." If the court is not then open, you may be held in custody until it is open.

Right to a lawyer

Your right to have a lawyer is a fundamental one at every stage of a criminal proceeding.

If you appear in a court without a lawyer, the judge must allow you a "reasonable time" to find one before proceeding with the case, which usually means a few days. In addition, the judge must tell you of your right to use the telephone or to send a letter free of charge in order to get a lawyer and to tell a relative about your arrest.

Your right to have a lawyer is a fundamental one at every stage of a criminal proceeding.

If you do not have a lawyer at the time of your first appearance before the judge, you have the right to insist that the court assign you an attorney if you cannot afford one. If you have waived your right to counsel earlier and you now decide you want one, you may exercise your right at this stage.

Depending on the local plan in effect for providing a lawyer in such cases, you may get a private attorney, or you may be assigned someone from a legal aid society. A public defender will be assigned if your community has one.

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