Wednesday, December 17, 2008

New York Finally Becomes A "Rules" State, Sort Of

Posted by Alan Childress

Over at Legal Ethics Forum, Andy Perlman reports (and helpfully links) that the NY bar will join the great majority of states in using the ABA's Model Rules as the general basis, structure, and numbering of its operative ethical rules, starting April 1, 2009.  Previously those of us teaching the course would use California and NY as examples:  two of the eight or so states that retain their origins and numbering from the old Model Code of the early 1970s.  Of course, the substance in both states had over time evolved to a notable extent, but this is a wholesale change especially in the organization. 

My first glance tells me that the version adopted is the ABA's newer post-2003 rules, often called "Ethics 2000" after the committee charged with promulgating them.  But there are some notable variations.  NY retains MC language (here in 1.7), for concurrent conflicts, of "lawyer's professional judgment" and "differing interests"; the latter seems stricter than "directly adverse interests" as most states use as one trigger.  The new 1.6 exceptions for confidentiality in NY are narrower than the ABA's proposals over the last eight years; in NY, there is no general disclosure for past acts of financial harm.  (On the other hand, the permission to reveal information to prevent a "crime," though limited to the future apparently, is broader and cleaner than how the ABA words it.)   These may well work out much the same in practice in many situations, but it is clear that NY is not adopting wholesale the post-Enron ABA view of exceptions to confidentiality for past facts and acts having financial consequences.

These new rules also do not provide such a sweeping prohibition of sexual relations with a client as did Ethics 2000; in NY, other than in ongoing domestic law matters, the prohibition is just for coercive or intimidating relations, or sex extorted to represent someone.  And the prohibition is limited to the individual attorney, not by its terms applying vicariously to an office or law firm, 1.8(k).  (Some of the wording is a bit odd in that it implies that coercive sexual relations, or representations made conditional on giving sex, are permitted if it is with a spouse or someone you already had a relationship with; I am sure they do not mean that.)  NY lawyers need to understand that many situations which arguably do not fall within a specific prohibition of this rule (or other 1.8 delineated conflicts) may still fail other rules, such as the general 1.7 conflict of interest rule.  Even outside divorce cases, relations may well cause a conflict of interest (as Glenn Close learned in The Jagged Edge).  And I doubt that an associated lawyer who demands sex for representation or is coercive sexually will be able to cite the fact that he or she is not the lawyer personally on the case, to avoid bar discipline. 

My review finds nothing in 1.9 or 1.10 on successive conflicts that would allow screening of the migratory attorney, so as to prevent vicarious law firm disqualification just because the new lawyer himself or herself is conflicted.  New York might have considered going the way of the ALI's Law Governing Lawyers (and some other jurisdictions like the Seventh Circuit and Ohio) to permit screening within private firms.  Apparently it did not, and that will continue to affect the mobility of lawyers who had access to some confidences at their old firm and may now "infect" a new firm wishing to hire them.

Anyway, those are some thoughts on my quick review of the new NY rules.  Because there are several places where the substance or language of the old NY rules is retained, or the newest ABA  proposed version is not accepted wholesale, in some ways the new NY rules are mainly about organization and style.  But as Andy says, the changes are "significant." 

My final PR thought: they should not make them effective on an April first.  Newspaper headline writers will have a field day announcing the revisions to the NY lawyer ethics rules that day.  I already suffer layperson snickers after I say I teach Legal Ethics.  This lede is as predictable as your Action News reporter televising from a post office the night of April 15, 2009.

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Shortly after I put up my post I started to wonder whether I should have used a word other than "significant." That word implies that there are major changes to the substance of the rules.

According to the story that I linked to, Stephen Gillers suggested that about 75% of the changes are simply a renumbering of the existing New York rules, with the rest being an adoption of the ABA Model Rules or some variant of them. If that's right (I haven't looked closely enough to know for sure), that means that 25% of the new rules embody a substantive change. By itself, that sounds significant, but I haven't looked closely enough to know for sure.


Posted by: Andrew Perlman | Dec 17, 2008 9:26:18 AM

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