Attorneys practicing law throughout New York State must follow the standards outlined in the rules of professional conduct. This used to be referred to as the New York Code of Professional Responsibility, until April 1, 2009 when changes and updates were made to create what we now call The New York Rules of Professional Conduct.
The Committee On Standards of Attorney Conduct (COSAC) of the New York State Bar Association played a vital role in moving the state of New York toward adopting the format of the American Bar Association’s (ABA) Model Rules of Professional Conduct and abandoning the old format of the Code of Professional Responsibility.
In this article, we’ll address some prominent changes from the “Code” to the newly titled “Rules.”
What Are the New York State Rules of Professional Conduct?
This set of rules governs an attorney’s professional conduct while practicing law in the state of New York. Several subjects covered in these conduct rules include topics such as:
- Client-lawyer relationships
- A lawyer’s role in the decision-making process
- Advocacy on a client’s behalf
- How lawyers interact with non-clients
- Fees and division of fees
The Key Details and Differences in the 2009 New York State Rules of Professional Conduct
Informed Consent
A waiver of a conflict of interest must be given with “informed consent,” as stated by Rule 1.0 (j) in the New York Rules of Professional Conduct. “Informed consent” is the agreement someone follows after their lawyer proposes a course of conduct, acknowledging that their lawyer has adequately informed them of any risks associated with the course of action and explained any reasonable alternatives.
Rule 1.7 requires that all conflict waivers must be “confirmed in writing,” as defined by Rule 1.0 (e). “Confirmed in writing” denotes:
- A writing from a person to a lawyer confirming their oral consent
- The lawyer promptly transmits the writing to the person confirming their oral consent
- A statement by a person made on the record of a proceeding before a tribunal
- If the writing cannot be transmitted immediately, it must be transmitted within a reasonable time after
Fortunately, lawyers relying heavily on electronic forms of communication will be glad to know that emails are sufficient to meet the “confirmed in writing” requirements. The words “writing” or “written” refer to tangible records of communication, which can include electronic transmissions. In addition, “signed” writing can include an electronic symbol, sound, or process attached to the writing.
Eliminating Zealous Advocacy
The New York Code of Professional Responsibility discussed the concept of zealous advocacy. Instead, the New York Rules of Professional Conduct replaced “zealous” with the concept of “diligence.”
Now, Model Rule 1.3 states that lawyers should maintain diligence and promptness when representing a client. A lawyer must not neglect a matter entrusted to them, and the lawyer may not intentionally fail to carry out a contract, but they can withdraw under these rules.
Every client is entitled to having a loyal lawyer, expecting their legal representation to work diligently to achieve the goals they’ve been contracted for. Because of these updates, “bad apple” attorneys in New York can no longer use “zealous advocacy” to justify breaking ethics rules.
Candor to the Tribunal
Lawyers have to rely on clients for facts and information. Sometimes, for reasons beyond their control, lawyers unintentionally misrepresent facts or misrepresent a “bad” law as a “good” law to a Tribunal. New York Rules of Professional Conduct Rule 3.3 removes an exception and requires lawyers to take reasonable remedial measures, up to and including, if necessary, disclosure of confidential information to a Tribunal.
It’s always helpful to know where you have been to best understand where you are going. Fortunately, nearly all lawyers welcomed New York’s changes from the New York Code of Professional Responsibility to the New York Rules of Professional Conduct. If you’re a lawyer facing ethical problems in the state of New York, schedule a consultation with one of this state’s top ethics lawyers, David A. Lewis.
Some Frequently Asked Questions
What was the reason for the replacement of “zealous advocacy” with “diligence”?
“Diligence” was substituted for “zealous advocacy” to avoid the term being used as a justification for unethical conduct. The focus is currently on upholding loyalty and devotion to clients’ needs while avoiding ethical violations.
What prompted the transition to align with the ABA Model Rules?
The transition aimed to modernize the ethical guidelines and align them with the widely recognized ABA Model Rules, providing consistency and clarity.
Are electronic communications acceptable for confirming consent?
Yes, electronic communications, such as emails, are acceptable for meeting the “in writing” requirement.
How do these changes affect confidentiality and client communication?
The new rules maintain the importance of confidentiality and require lawyers to keep clients reasonably informed and promptly comply with information requests.
Resources For Further Reading:
ABA/Bloomberg Law Lawyers Manual on Professional Conduct
David A. Lewis Legal Ethics Blog
NYSBA Committee on Standards of Attorney Conduct
New York Rules of Professional Conduct with Commentary (New York State Bar Association)
