COMMENTS ON NEW YORK’S ADOPTION OF NEW RULES OF PROFESSIONAL CONDUCT EFFECTIVE APRIL 1 2009
As an attorney whose only practice has been Attorney Ethics in New York for over twenty years, I have a true fondness for the outgoing Code of Professional Responsibility. We were about the last regulatory scheme to reflect the origins of attorney regulatory rules. The original ethical rules were simply 32 Canons of Ethics adopted by the ABA in 1908. These were an outgrowth of the lectures of Judge Sharswood back in 1854; as adopted and amended by the Alabama Bar Association in 1887.
The ABA adopted the Code of Professional Responsibility in 1969 but abandoned it in favor of the Model Rules in 1983. New York kept the Code but made many changes to it over the years. The New York Code truly was unique in many ways. The problem with the Code was that it was amended over and over since its adoption. It had become a patchwork needing a major overhaul.
Briefly, there has been an ongoing debate for many years over whether or not a strict statutory scheme is required or can even be an effective way to regulate lawyers. It is my opinion that the Code was an effective approach, as it set out a minimum standard of conduct, alongside ethical considerations which exhorted the highest level of conduct. Apparently I was one of the few, as now New York has abandoned that approach.
THE NEW RULES
The New York Rules of Professional Conduct (“new Rules”) will replace the Code on April 1 and will be located at the same place; 22 NYCRR Part 1200. The new rules are a new set of rules particular to New York. We have not adopted the ABA Model Rules.
We have adopted the Model Rules numbering scheme; and there are a number of similar sections in both sets of rules. However, New York still has a very unique insular set of Rules which should be addressed and researched as such. Where there is a precise fit between the new Rules and the ABA Model Rules, we can reference the ABA Model Rules for guidance. Where the new Rule at issue has no ABA counterpart, then we cannot look to the ABA except to inform our rule where appropriate.
Where there is no ABA counterpart, we will have some real problems with interpretation for a while. This is because the new Rules do not have an accompanying set of official comments or other interpretive material. The drafters did recommend that their comments and reporter’s notes be included, but the Appellate Divisions decided not to include them.
Thus, where there is no ABA counterpart we have only the plain language for now. Ideally, the courts will give us some detailed decisions on the new Rules, but that will take time. What we need right away is for the local bar associations and the NYSBA to put out some ethics opinions that will provide some reliable guidance for the attorneys practicing in New York.
MOST NOTABLE CHANGES
In the old Code, we had Definitions, now we have terminology. Term 1.0(h) defines a law firm. Notably, it deletes LLC, which was specifically included in the old Code. It does permit any lawyerly “association authorized to practice law”, which should include LLC. Also, in Rule 7.5 (b), under the advertising rules, the use of LLC in a firm name is specifically approved. A bit confusing, but the continued use of LLC is probably OK.
1.0(j) defines “informed consent.”
“Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated information adequate for the person to make an informed decision, and after the lawyer has adequately explained to the person the material risks of the proposed course of conduct and reasonably available alternatives. (emphasis added)
While most lawyers want an informed client, the sweep of this term concerns me as it seems to put great emphasis not only on informing clients but documenting and proving the information exchanged and the level of client understanding and agreement. It seems to put us on par with doctors. And with doctors, the scrutiny on informed consent is severe – resulting in the hundreds of forms doctors must use and patients must sign. Until we get some guidance on this, this one worries me.
Compounding my concern, and why I think it important that we get some guidance, is the numerous time's Informed Consent is the standard set forth in the new Rules. So we need to get it right.
Rule 1.5(b) A written retainer will now be required under all circumstances. The retainer must set forth the scope of the representation and the basis for the fee. In contingent fees, the retainer must include the method of arriving at the legal fee, and the expenses the client remains responsible for. There must also be a closing memorandum in all contingent cases setting forth the division of fees, how they were calculated, and confirming remittance of the client’s share.
This is actually a great rule. It forces lawyers to set out the scope and the limits to the attorney-client relationship. This can only help us by reducing unwarranted grievances, malpractice, and general client griping.
Rule 1.5(g) This Rule makes crystal clear that there are no permissible straight referral fees. A nonrelated lawyer may only share in a legal fee where the fee he receives is proportionate to work actually performed or proportionate to the responsibility he assumes; and the client is apprised of and consents to the fee-sharing via signed writing.
The Code made a slippery distinction between confidences and secrets; which really was a distinction without a difference. The new Rules now make the sole reference to Confidential Information.
“Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field, or profession to which the information relates. 1.6(b) adds exceptions to the confidentiality requirements previously set out in 4-104 C.
The new Rules now permit a lawyer to reveal confidential information, to the extent necessary, to prevent reasonably certain death or substantial bodily harm. This means that a lawyer may reveal information normally protected as confidence, but only to the extent reasonably necessary to prevent the harm. Revealing too much, or too soon, can still get you in trouble. We will discuss this Rule a bit later in conjunction with Rule 3.3.
This Rule specifically extends confidentiality protection to prospective clients. So if a potential client comes in but does not retain you, they are owed the same duties as if they were clients. Exempted from this Rule are communications from clients who had no intention of hiring you and wanted to try to disqualify you for some reason, or for gratuitous relation of information.
Under the new rules, if a prospective client does relate confidential information relating to a matter in which the lawyer is representing another party, and the lawyer promptly stops them because the information relayed would disqualify the lawyer, that lawyer’s firm will not be disqualified from the case if the affected lawyer is screened from the case, or both the client and prospective client consent.
The business transaction with a client
This Rule repeats the existing requirement that a client must be advised in writing of the conflicts flowing from a lawyer-client business transaction, as well as who the lawyer represents and the client’s right to independent counsel. The new Rule adds that the client now must have a reasonable time to seek independent counsel.
So if you are inclined to enter a business transaction with a client, which is almost always a bad idea, give them the disclosure and consent notice and make them take it home and get a signed copy back to you in a day or two.
Former government lawyers
The conflict between a former public lawyer appearing before his old agency may be waived by the agency only in its sole discretion.
Avoids imputed disqualification of a firm that hired a former public lawyer. The new Rules allow the former public lawyer to be screened off from the cases which might create a conflict.
Client Perjury or Fraud
Article Three contains one of the biggest changes from the Code. These changes continue the Court of Appeals' decision in People v. Depallo 96 NY2d 437 (2007).
Prior to DePallo, the Code stated at DR 7-102B
|(b) A lawyer who receives information clearly establishing that:|
|(1) The client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a confidence or secret.|
Under the Code, a lawyer was prohibited from disclosing to a tribunal protected confidence or secret of the client even if the lawyer knows the client perjured himself or perpetrated some other fraud on the court.
DePallo limited the sweep of the DR by setting forth the manner in which criminal defense lawyers should deal with clients who insist they will give perjured testimony:
1. try to talk them out of it
2. if unsuccessful, they should notify the Court
3. present the testimony in narrative form
4. not use or reference the perjured testimony in any way
The DePallo Court specifically held that a client’s intent to commit a crime is not protected as a confidence or secret.
The new Rule states
3.3(a) A lawyer shall not knowingly:
(3) offer or use evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
* * *
3.3 (c) The duties stated in paragraphs (a) and (b) apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
The bottom line is that when you know a client will, or has previously given, false testimony on a material issue, a lawyer must take reasonable steps necessary to correct that evidence, even if this means revealing protected confidence.
So, to sum up, the combined outcome of Rules 1.6 and 3.3 on confidentiality, revealing client perjury or fraud under Rule 3.3 is mandatory. However, Rule 1.6, which concerns revealing confidences necessary to prevent reasonably certain death or substantial bodily harm, is permissive; and leaves the decision to reveal or not to the lawyer. Lastly, Rule 1.6 only permits disclosure of future acts, while 3.3 requires that you remedy past acts as well.
Advertising and Solicitation
There has been some confusion over advertising and solicitation due to the lawsuit which derailed the so-called “New Advertising Rules” released by the Appellate Divisions and effective February 1, 2007.
The new Rules of Professional Conduct under Article Seven are not very different. They do try to make the rules more technologically current, and actually open up advertising opportunities.
The main prohibition is still that one cannot use any “advertisement” which is false, deceptive, or misleading. The advertising lawyer should consult this section carefully before advertising or soliciting clients. This will reveal many nuances. However, 7.1(d) now permits certain claims that had previously been inappropriate in my opinion. I qualify this statement because the former advertising rules were not all that certain.
Notably, Rule 7.1(d) allows purely subjective claims as long as they can be proved. This should be interesting:
7.1(d) An advertisement that complies with paragraph (e) may contain the following:(1) statements that are reasonably likely to create an expectation about results the lawyer can achieve;(2) statements that compare the lawyer’s services with the services of other lawyers;(3) testimonials or endorsements of clients, where not prohibited by paragraph (c)(1), and of former clients; or(4) statements describing or characterizing the quality of the lawyer’s or law firm’s services.
7.1 (e) It is permissible to provide the information set forth in paragraph (d) provided:(1) its dissemination does not violate paragraph (a); (2) it can be factually supported by the lawyer or law firm as of the date on which the advertisement is published or disseminated; and(3) it is accompanied by the following disclaimer: “Prior results do not guarantee a similar outcome.”(emphasis added)
Rule 7.3 Concerns solicitation. A few changes here.
More solicitations and advertisements now need to be filed, as compared to the Code. Plus, any solicitations or advertisements directed at specific individuals must indicate how the lawyer learned of their prospective need.
You cannot solicit simply to refer cases to other lawyers without disclosing that fact in the advertisement or solicitation. Also, you cannot solicit personal injury or wrongful death cases within 30 days of the underlying event, unless a filing is required with 30 days, then a 15-day prohibition applies.
This new set of Rules is a huge change for New York practitioners. It is hoped that the courts and the bar associations will provide guidance quickly. However, if something arises and you are not certain how to handle it or how the new rules apply, you can contact your local bar association ethics hotline before you do anything uncertain.
A copy of the new Rules of Professional Conduct can be obtained at http://www.courts.state.ny.us/rules/jointappellate/NY%20Rules%20of%20Prof%20Conduct_09.pdf
 Adapted from Chris McDonough’s appearance on “Law you should know”, a radio show scheduled to air March 30, 2009, on WHPC.
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