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Justices of the Appellate Division 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.

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

http://www.nycourts.gov/rules/jointappellate/

(Source: http://www.nycourts.gov/press/pr2008_7.shtml)

(Last accessed: December 18, 2008)