NEW YORK – Chief Judge Judith S. Kaye and the Presiding Justices of the Appellate Division today announced a new set of attorney conduct rules for New York, effective April 1, 2009. The Rules of Professional Conduct, which will replace the existing Disciplinary Rules, introduce a number of important ethics changes for New York lawyers and are set forth in a new format and numbering system that are based on the ABA Model Rules.
Chief Judge Kaye stated, “This is an important day for New York’s legal profession as we adopt new lawyer ethics rules that are accessible and understandable, consistent generally with national standards, and relevant to emerging practice areas and trends that are transforming how lawyers represent and communicate with clients. As I prepare to leave office as Chief Judge, I am truly pleased that New York’s bar will be practicing under a set of ethics rules that are thoroughly modern in organization and substance. I want to commend the Presiding Justices, who are responsible for regulating New York’s lawyers, for their wisdom and discernment in adopting these rules. On their behalf, I extend my heartfelt appreciation to the State Bar, particularly its Committee on Standards of Attorney Conduct, for the extraordinarily comprehensive work that served as the basis for the new Rules of Professional Conduct.”
In February 2008, the New York State Bar Association submitted to the Administrative Board of the Courts a five-year study that included a proposed new ethics code. An internal committee appointed by the Administrative Board carefully analyzed the State Bar’s proposed rules over a period of several months before issuing its recommendations to the Board. The Board in turn approved most of the State Bar’s proposals, though in some instances it retained the language of existing Disciplinary Rules in whole or in part. The Board also approved the State Bar’s recommended transition to the ABA Model Rules format. The Rules were formally reviewed and adopted by the Justices of the four Appellate Divisions last week.
Highlights of significant ethics changes contained in the new Rules of Professional Conduct are set forth below:
Adoption of ABA Model Rules Format
- This standardized format, used in 47 other states, is organized according to a lawyer’s role as litigator, counselor, negotiator, etc., and will facilitate a lawyer’s ability to assess specific ethical issues in context. It has generated a national body of ethics law that will ease ethical research and guidance by New York lawyers as well as out-of-state lawyers seeking to research and follow New York’s rules.
Scope of Representation and Allocation of Authority Between Client and Lawyer (Rule 1.2)
- Rule 1.2 codifies a lawyer's obligation to abide by a client’s decisions regarding the objectives of representation, including whether to settle a civil matter or to enter a plea, waive a jury trial or testify in a criminal matter.
Fees and Division of Fees (Rule 1.5)
- Rule 1.5(b) requires a lawyer to communicate fees and expenses to the client before or within a reasonable time after commencement of representation, thereby extending the current letter of engagement rule (22 NYCRR 1215), without the necessity of a writing, to all matters currently excepted under that rule.
Confidentiality of Information (Rule 1.6) and Conduct Before a Tribunal (Rule 3.3)
- Rule 1.6(a)(2) permits disclosure of confidential client information impliedly authorized to advance the client’s best interests when it is reasonable or customary.
- Rule 1.6(b) permits a lawyer to reveal or use confidential client information necessary to “prevent reasonably certain death or substantial bodily harm.”
- Rule 1.6(b)(4) permits a lawyer to reveal confidential information to the extent necessary to secure legal advice about compliance with ethical rules or other laws.
- Rule 3.3 requires a lawyer to correct a false statement of material fact or law previously made to the tribunal by the lawyer or the client and to take necessary remedial measures, including disclosure of confidential client information.
- Rule 3.3 requires a lawyer who knows that a person intends to, is or has engaged in criminal or fraudulent conduct related to the proceeding to take reasonable remedial measures, including disclosure of confidential client information.
Current Clients: Specific Conflict of Interest Rules (Rule 1.8)
- Rule 1.8(c) prohibits a lawyer from soliciting any gift from a client, including a testamentary gift, for the benefit of the lawyer or a person related to the lawyer; or from preparing on a client’s behalf an instrument giving a gift to the lawyer or a person related to the lawyer, unless the lawyer or recipient of the gift is related to the client and a reasonable lawyer would find the transaction fair and reasonable.
- In a business transaction between lawyer and client, Rule 1.8(a) requires the lawyer to advise the client in writing to seek the advice of independent counsel and to give the client a reasonable opportunity to do so; and the client must give informed written consent that addresses the lawyer’s role in the transaction and whether the lawyer is representing the client in the transaction.
Special Conflicts of Interest for Former and Current Government Officers and Employees (Rule 1.11)
- Rule 1.11 governs the lawyer’s obligations based on conflicts presented when a lawyer moves from government to private employment and vice versa, and provides that such conflicts may be waived by the government entity upon informed consent.
Duties to Prospective Clients (Rule 1.18)
- Rule 1.18 governs a lawyer’s duties to a prospective client when that person and the lawyer ultimately do not form an attorney-client relationship. It applies the same duty of confidentiality owed to former clients. However, a lawyer or law firm may nonetheless oppose a former prospective client if the lawyer’s current client and former prospective client give informed written consent, or the law firm may do so if certain conditions are met, including timely screening of the disqualified lawyer and prompt written notice to the former prospective client.
- The protections of Rule 1.18 are expressly denied to a prospective client who communicates with a lawyer in order to disqualify the lawyer from handling a materially adverse representation in the same or a substantially related matter.
Voluntary Pro Bono Service (Rule 6.1)
- Though not enforceable through the disciplinary process, Rule 6.1 reaffirms a lawyer’s responsibilities to provide at least 20 hours of pro bono legal services each year to poor persons, and to contribute financially to organizations that provide legal services to poor persons.
Other Noteworthy Developments
- Rule1.3 (Diligence) mandates that a lawyer "shall not neglect" a legal matter and obliges a lawyer to “act with diligence and promptness” in representing a client.
- Rule 1.4 (Communication) codifies a lawyer’s duty to communicate effectively with the client, including keeping the client reasonably informed about the status of the matter promptly complying with a reasonable request for information.
- Rule 1.12 applies conflicts rules to arbitrators and mediators, other third-party neutrals and law clerks.
- Rule 1.14 provides guidance to a lawyer whose client has diminished capacity. It allows the lawyer to take action to protect the client from substantial physical and financial harm, and permits disclosure of confidential client information to the extent reasonably necessary to protect the client’s interests.
- Rule 2.4 deals with lawyers serving as third-party neutrals, such as arbitrators and mediators, and sets forth their obligations with respect to unrepresented parties.
- Rule 3.2 prohibits a lawyer from using means that have no substantial purpose other than to delay or prolong a proceeding or cause needless expense.
- Rule 3.9 requires a lawyer to alert legislators and administrative agencies as to when the lawyer is speaking as a paid advocate rather than a public citizen.
- Rule 4.3 sets forth a lawyer’s obligations when dealing, on behalf of a client, with a person who is not represented by counsel.
- Rule 6.4 sets forth a lawyer’s duties when participating in law reform activities that may affect the interests of the lawyer’s clients.
- Rule 8.2 expands the prohibition against false statements of fact regarding “qualifications” of judges or judicial candidates to include false statements about “conduct or integrity.”
The new Rules of Professional Conduct are available at www.nycourts.gov/rules/jointappellate/.