The New York Law Journal by Joel Stashenko - March 31, 2009
ALBANY, NY - A new code of conduct for New York attorneys that goes into effect tomorrow should largely be familiar to lawyers who have practiced under the old standards, according to the chairman of the state bar committee that began developing the new code nearly six years ago. The format of the new Rules of Professional Conduct also should be familiar to lawyers from outside the state since they adopt the numbering and titling sequences of the American Bar Association's Model Rules of Professional Conduct, which have been accepted in part or in whole by 48 other states since they were adopted by the ABA in 1983. Former Chief Judge Judith S. Kaye and the four presiding Appellate Division justices, including new Chief Judge Jonathan Lippman, adopted the new rules late last year (NYLJ, Dec. 17, 2008). They are a modified version of proposed rules developed by the New York State Bar Association's Committee on Standards of Attorney Conduct that were approved in a piecemeal fashion by the bar group's House of Delegates in 2006 and 2007. About three-quarters of the new rules embody the current state code, with the remaining one-quarter lifted directly from the ABA's Model Rules or are ABA rules reworked for the state code.
Steven C. Krane, a Proskauer Rose partner and chairman of the state bar's standards committee, said New York lawyers may be unfamiliar with the numbers on the 43-page-long new rules, but not the concepts behind them. "The more I go around talking about them and lecturing on them and studying them, the more I realize they are, for the most part, consistent, if not identical to, the Code of Professional Responsibility," said Mr. Krane, who estimated that he has spoken to between 3,000 and 4,000 lawyers about the new rules. Differences between the old code and the new rules largely concern the more expansive definitions provided in the new guidelines, according to Mr. Krane. For instance, the new code declares that conflict waivers must be the product of informed consent confirmed in writing. "Informed consent," "confirmed in writing" and "writing" are all defined in the new rules, Mr. Krane noted. "I tell people that the most important rule is Rule 1.0 on terminology," Mr. Krane said. "If they read nothing else, they should read that and familiarize themselves with the terms that are defined."
Under the old code, which was adopted in 1970, oral conflict waivers were permitted. Mr. Krane called the requirement that the waivers now be in writing one of the "major" changes in the new rules. Professor Stephen Gillers of New York University School of Law said another major change is the abandonment of the way the code treated instances where lawyers discovered that their clients had provided false information to a court or another tribunal. The expiring code treats disclosure of confidential information by the lawyer, even to correct a wrong against another party in litigation, as a violation of attorney-client privilege. Under the new rules, the state has adopted the ABA model rules provision that a lawyer is required to disclose a false representation by a client, either intentional or unintentional, to the court in any criminal or civil matter.
Ralph Halpern, also a member of the state bar committee, said the new rules 1.6 and 3.3 requiring lawyers to reveal client falsehoods "clashes with the common-law concept of the lawyer-client confidentiality." He predicted the validity of the new requirement would be litigated in the courts. Mr. Halpern was chairman of the standards committee in 1985, when the state bar's House of Delegates narrowly rejected the ABA model code. Mr. Halpern said some members were uneasy about having to reveal possible fraud by their clients, feeling it was a violation of attorney-client privilege. "That [opposition] has softened over time," Mr. Halpern, of Jaeckel Fleischmann & Mugel in Buffalo, said yesterday in an interview. "Lawyers didn't feel at that time they should be policemen. They said, 'We are advocates, not policemen.'"
Howard A. Levine, a former Court of Appeals judge who is also on the standards committee, said he has sensed an improved awareness by lawyers of their obligations under the old conduct code and, with "no radical" changes between the old rules and the new ones, he predicted that most attorneys should be up to speed on the new guidelines within a year. Mr. Levine, now with Whiteman Osterman & Hanna in Albany, said the requirement that attorneys must take four hours of continuing legal education in ethical and professional conduct every two years to be re-licensed has been helpful in raising awareness of ethical standards. "Even if they can't cite chapter and verse immediately about which rule applies, they'll do the research or maybe talk to lawyers who are experts in the field," Mr. Levine said. Also, since 1983, new attorneys have been quizzed on the ABA model code as part of the multistate phase of the state bar exam. Mr. Krane said that about two-thirds of the attorneys in New York have been admitted to the bar since 1983.
Mr. Krane said an important feature of the new rules is that since they are numbered the same as the ABA guidelines and most other states' codes, it will become easier for lawyers in New York researching ethical and professional conduct questions to locate legal precedents and ethics opinions elsewhere in the country. Mr. Krane said soon-to-be-released commentary on the new rules will also provide extensive guidance on the guidelines. Mr. Gillers questioned how precise lawyers' knowledge is of the conduct guidelines, despite the CLE and bar exam requirements. "What most lawyers think is, 'Look, the rules I have to know to stay out of trouble are pretty simple: Don't lie. Don't steal money. Don't ignore cases,'" Mr. Gillers said. "If you follow those three rules, you are going to be pretty safe against discipline." But he said ethical violations can result in grief for lawyers outside of the disciplinary process, such as suits filed against them for breach of fiduciary duty or legal malpractice actions or fee forfeiture. Joel.Stashenko@incisivemedia.com