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NYSBA Amends Comments to New York Rules of Professional Conduct

January 1, 2011 • NYPRR Archive

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By Roy Simon
[Originally published in NYPRR January 2011]

 

At its Nov. 3, 2010 meeting, the New York State Bar Association amended the Comments to the New York Rules of Professional Conduct. The press release by the State Bar said, in part:

As part of its continuing review of the Comments to the New York Rules of Professional Conduct in the wake of the Court’s adoption of the Rules, the New York State Bar Association (Association) announced technical revisions to the Comments to the New York Rules of Professional Conduct. These technical revisions are intended to align the Comments with the Rules as adopted, and to correct various drafting errors.

The amendments were extensive — the Association made “technical” revisions to 44 separate Comments and withdrew five other Comments pending a Jan. 28, 2011debate in the House of Delegates on proposed substantive changes. This column focuses on some of the most significant November 2010 amendments. (Some of the changes not discussed in this column are displayed at the end of this article.)

Background: How COSAC Developed the Rules

From 2003 until 2008, the State Bar’s Committee on Standards of Attorney Conduct (COSAC) developed proposed New York Rules of Professional Conduct (Rules). COSAC itself was headed by the late and revered Steve Krane, who felt so passionately about the work of COSAC that he kept the chairmanship of the committee for himself for 15 years (1995–2010), even during his year as President of the State Bar (2001–02). He personally hand-picked the 24 members of COSAC, who ranged from small town upstate solo general practitioners to law professors to partners at large firms in New York City, Rochester, Albany, and Buffalo.

In my capacity as Vice-Chair and Chief Reporter for COSAC, I invited three experienced professors (Roger Cramton, Carol Ziegler, and Steve Wechsler) to serve as associate reporters. Steve Krane divided the ABA Model Rules into three tranches (e.g., conflicts rules in one tranche, confidentiality rules in another tranche), assigning an associate reporter and eight

COSAC members to work on each tranche. Each subcommittee held numerous conference calls and circulated drafts to the full membership of COSAC, which held nearly ten plenary meetings to discuss and revise the subcommittee drafts. Finally, in September 2005, after more than two-and-a-half years of internal debate, COSAC issued its massive 479-page report setting out its recommendations for the Rules and Comments that would comprise the New York Rules of Professional Conduct. The report included a line-by-line COSAC Commentary explaining every provision.

Then the hard work began. Tranche by tranche, COSAC solicited public comments from every New York State Bar Association committee and from every local and specialty bar association in New York. In light of the detailed and thoughtful public comments, COSAC revised numerous proposals, then sent them to the State Bar’s House of Delegates for debate at six quarterly meetings from June 2006 through November 2007. At the November 2007 meeting, the House of Delegates put its final stamp of approval on the full set of COSAC proposals. Steve Krane then oversaw an intensive effort to “flyspeck” the proposals and assemble them in one volume to send to the Presiding Appellate Division Justices. The COSAC/State Bar process had taken five full years.

The Appellate Divisions Study and Adopt the Rules

The Presiding Justice of each Appellate Department received the neatly bound set of Proposed Rules and Comments around Feb. 1, 2008. (A different delegation delivered the proposals by hand to each Presiding Justice, so the deliveries did not all occur on the same day.) The Courts appointed a six-person committee to review the proposals. Each Presiding Justice appointed one member of the committee, as did the Chief Judge and the Chief Administrative Judge. This special committee worked with some urgency because Chief Judge Kaye was mandated by law to retire at the end of 2008, and she was determined that part of her legacy (already rich) would be the New York Rules of Professional Conduct.

On Dec. 16, 2008, the Courts posted the New York Rules of Professional Conduct on their website and announced that they would take effect on April 1, 2009, just over three months later. The Rules as adopted were vastly different from the Rules proposed by the State Bar based on COSAC’s work. That meant that COSAC was forced to revise the Comments significantly, in a very short time frame, to conform to the Rules as adopted. Steve Krane personally contacted the Courts and asked that the effective date be postponed for one more month, until May 1, 2009, so that COSAC would have adequate time to revise the Comments to conform to the Rules, but the Courts refused to extend the deadline.

Haste Makes Waste

In January 2009, about a dozen members of COSAC embarked on a rush project to conform the Comments to the new Rules. The primary object was simply to remove any language in the Comments that was inconsistent with the Rules as adopted — there was no time to write new Comments to provisions that had not been part of the COSAC proposals (and therefore were not explained by any Comments), and there was minimal time to rewrite Comments on provisions the Courts had materially altered. COSAC divided into two teams that painstakingly compared the Rules to the proposed Comments and recommended deletions or minor revisions needed to bring the Comments into line with the Rules. In mid-March COSAC held a plenary meeting to consider all of the Comments. The aim was to get a full set of Comments ready by April 1, 2009, the day the new Rules took effect, and COSAC met that deadline. A full set of Rules and Comments was posted on the State Bar’s website on April 1st.

Over the next several months, however, COSAC members and various others pointed out additional places where the Comments contradicted or went beyond the Rules. Small ad hoc working groups discussed these glitches and revised the Comments where necessary. In mid-October 2009, I notified the State Bar that I believed COSAC had identified all of the remaining problems in the Comments. The State Bar then printed the compact blue and white bound booklet of Rules and Comments that many of you have at your fingertips.

Unfortunately, because the Courts had made so many changes to the COSAC proposals and allowed so little time to compare the Rules and Comments before the April 1, 2009 effective date, COSAC did not catch every problem in the Comments. As time went on, various people pointed out errors and inconsistencies, sometimes obvious, sometimes subtle. In May, June, and July 2010, COSAC combed over these problems during conference calls or in-person meetings and discussed possible revisions. In September 2010, COSAC sent proposed revisions to the State Bar’s Executive Committee for its reactions. After one round of revisions to a few Comments, the Executive Committee approved all of the proposed changes at its Nov. 5th meeting. (The Executive Committee also instructed COSAC to withdraw five Comments that required substantive as opposed to technical changes. These are completely crossed out and marked “Comment under review” in the Rules posted on the State Bar’s website. Proposed amendments to these Comments are on the House of Delegates agenda for the Jan. 28, 2011 meeting.) On Nov. 10, 2011, the State Bar issued a press release and posted a blackline document showing all of the November changes, and separately posted a revised clean set of the Rules of Professional Conduct with Comments.

The November 2010 Amendments

The remainder of this column will briefly explain the changes to the Comments that strike me as most important. (The explanations are solely my own. I do not speak for COSAC or the State Bar.) Deletions from the Comments as originally adopted effective April 1, 2009 are stricken through. Additions effective Nov. 10, 2010 are underlined. To save space, I have sometimes indicated unchanged language with an ellipsis.

Rule 1.6, Comment [4A] (part one)

[4a] Paragraph (a) protects all factual information “gained during or relating to the representation of a client.,” but not information obtained before a representation begins or after it ends. See Rule 1.18, dealing with duties to prospective clients. Information relates to the representation if it has any possible relevance to the representation or is received because of the representation. …

Simon’s explanation: Comment [4a] was written to interpret the language of COSAC’s 2005 proposal for Rule 1.6, which defined “confidential information” as information “gained during and relating to the representation of a client … ” Rule 1.6 as adopted by the Courts (based on COSAC’s ultimate recommendation) defined “confidential information” as information “gained during or relating to the representation of a client” (emphasis added), so the language in Comment [4a] categorically excluding information obtained before a representation begins or after it ends was no longer accurate. The revised Comment recognizes that as long as the information relates to the representation, it falls within the ambit of the definition of confidential information even if it was not gained “during” the representation. (Rule 1.18, which was cited in the deleted language, governs duties to prospective clients, and provides additional and probably redundant confidentiality protections to information acquired by an attorney before a representation begins.)

Rule 1.6, Comment [4A] (part two)

[4a] … Information is not “generally known” simply because it is in the public domain or available in a public file. Information that is in the public domain is not protected unless the information is difficult or expensive to discover. For example, a public record is confidential information when it may be obtained only through great effort or by means of a Freedom of Information request or other process.

Simon’s explanation: Comment [4a] was also changed in another significant way. The definition of “confidential information” in Rule 1.6 expressly excludes “information that is generally known in the local community or in the trade, field or profession to which the information relates.” COSAC’s original Comment basically said that if information was “difficult or expensive to discover,” then it was not generally known. Critics found this language too sweeping and noted that it went beyond the language of the Rule, so COSAC narrowed the Comment, which now asserts only that information is not generally known “simply because it is in the public domain or available in a public file.” The revised version of Comment [4a] leaves it to courts and disciplinary authorities to determine when information is “generally known.” In my view, courts and grievance committees should follow the original Comment by holding that information is not generally known if it is difficult or expensive to discover — but the revised Comment is less definite and therefore allows more leeway for judicial interpretation and for case-by-case analysis.

Rule 1.6, Comment [6B]

[6B] Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial risk that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town’s water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims. Wrongful execution of a person is a life threatening and imminent harm under paragraph (b)(1) once the person has been convicted and sentenced to death. On the other hand, an event that will cause property damage but is unlikely to cause substantial bodily harm is not a present and substantial risk under paragraph (b)(1); similarly, a remote possibility or small statistical likelihood that any particular unit of a mass-distributed product is expected to will cause some injuries death or substantial bodily harm to unspecified persons over a period of years is not a present and substantial risk does not satisfy the element of reasonably certain death or substantial bodily harm under this the exception to the duty of confidentiality in paragraph (b)(1).

Simon’s explanation: The framers of COSAC’s original Comment wrestled with a problem that has puzzled lawyers ever since the ABA added an exception to the duty of confidentiality for “reasonably certain death or substantial bodily harm” in 2002. Suppose a lawyer for a car company knows that the gas tank will explode and cause death or grievous injuries in one out of 1,000 crashes. (Think Ford Pinto.) Does this tiny statistical probability rise to the level of “reasonably certain death or substantial bodily harm”? If it does, then lawyers for virtually any company that manufactures mass-produced products — toaster ovens, subway signals, chain saws, ladders, anything that can kill or cripple — will have discretion to reveal any product design choices that are less than 100% safe. That cannot be right.

Critics of the original Comment, however, pointed out that if passengers were likely to die from an exploding gas tank in 97% of crashes, then that statistical probability did seem to rise to the level of “reasonably certain death or substantial bodily harm.” In other words, a “statistical likelihood” (the phrase in the original Comment) could be large or small. The intent of revising the Comment was to capture the idea of a small or remote statistical likelihood, which seemed far from “reasonably certain,” and to clarify that the lawyer did not know which individual unit of a mass-produced product would cause injury.

Accordingly, the revised Comment focuses not on a manufacturer’s aggregate production but on a single unit of a product, and the revised Comment amplifies the concept of “statistical likelihood.” under the revised Comment, a “remote possibility or small statistical likelihood” that “any particular unit” of a mass-distributed product will cause death or substantial bodily harm to “unspecified persons over a period of years” does not satisfy the element of reasonably certain death or substantial bodily harm under Rule 1.6(b)(1). That is a distinct improvement over the old Comment.

Rule 1.10, Comment [4]

[4] The Rule in paragraph (a) also does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does paragraph (a) prohibit representation if the lawyer is prohibited from acting because of events that took place before admission to the bar, such as work that the person did while a law student. Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect. See Rules 1.0(t), 5.3.

Simon’s explanation: Comment [4] interprets Rule 1.10(a), which is the general imputation Rule. Rule 1.10(a) basically provides that if any one lawyer associated with a law firm is disqualified under the rules governing conflicts of interest with current or former private clients (Rules 1.7, 1.8, and 1.9), then every lawyer in the firm is disqualified absent informed consent from each affected current or former client. Let’s illustrate. Suppose Lawyer X, who now works at Cravath & Cromwell, worked during law school as a summer associate or paralegal at Debevoise & Dewey. At Debevoise & Dewey, Lawyer X worked on the case of Worldwide Widget v. Global Gizmo, assisting Worldwide Widget in a massive review of documents (including privileged documents). Now that Lawyer X is a full-fledged lawyer, can Cravath & Cromwell assign Lawyer X to work on the Global Gizmo side of the case? Almost certainly not. But is Lawyer X’s disqualification imputed to the rest of the firm? Good question.

The original Comment [4] to Rule 1.10 provided that Lawyer X’s disqualification would not be imputed to the full firm because the disqualifying events took place before Lawyer X was admitted to the Bar. But some critics said COSAC had overstepped its bounds because that question is unsettled in the courts. COSAC therefore removed the sentence about imputation based on work by a person before admission to the bar. Courts and grievance committees will now have to sort it out. I think the resolution will be to allow a prompt and effective screen to avoid firmwide imputation, but that may depend on factors such as (i) the degree of involvement the lawyer had in the matter while still a nonlawyer, (ii) the sensitivity of any information acquired, (iii) the viability of a screen (which may depend on firm size and structure), and (iv) the degree of prejudice to the client if the entire law firm is disqualified via imputation.

Rule 1.11, Comment [6]

[6] Paragraphs (b) and (c) contemplate the use of screening procedures that permit the law firm of a personally disqualified former government lawyer to avoid imputed disqualification. Nevertheless, Tthere may be circumstances where, despite screening, representation by the personally disqualified lawyer’s firm may could still undermine the public’s confidence in the integrity of the legal system. Such a circumstance may arise, for example, where the personally disqualified lawyer occupied a highly visible government position prior to entering private practice, or where other the facts and circumstances of the representation itself create a risk that the representation will appear to be improper an appearance of impropriety. Where the particular circumstances create such a risk an appearance of impropriety, a law firm may find it prudent to must decline the representation, but Rule 1.11 does not require it to do so. See Rule 1.0(t) for the definition of “screened” and “screening.”

Simon’s explanation: Rule 1.11 governs conflicts of interest involving lawyers who currently are or formerly were in public service. The COSAC/State Bar proposal for Rule 1.11 eliminated language in former DR 9-101(B) providing that screening could cure a conflict only if there are “no other circumstances in the particular representation that create an appearance of impropriety.” When the Courts adopted the Rules, however, they restored the “appearance of impropriety” language, making the appearance of impropriety a distinct and dispositive factor in determining whether a screen could avoid disqualification.

The original Comment [4] took the restored “appearance of impropriety” language into account somewhat obliquely by stating that where the particular circumstances create a “risk” of an appearance of impropriety, a law firm “may find it prudent to decline the representation, but Rule 1.11 does not require it to do so.” That was technically accurate — a mere “risk” of an appearance of impropriety (as opposed to an actual appearance of impropriety) did not require a law firm to decline the representation. But the Comment was misleading, because many lawyers might not appreciate the subtle distinction between a risk of an appearance of impropriety and a genuine appearance of impropriety. COSAC therefore revised Comment [4] to say straightforwardly that “[w]here the particular circumstances create an appearance of impropriety, a law firm must decline the representation.” That adds clarity on one level — but as COSAC appreciated, lawyers will still have to puzzle over the vague phrase “appearance of impropriety,” which most other jurisdictions long ago eliminated from their rules.

Rule 1.11, Comment [7B]

[7B] To enable the government agency to determine compliance with the rule, Nnotice to the appropriate government agency, including a description of the screened lawyer’s prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

Simon’s explanation: As proposed by COSAC, Rule 1.11(b) had required a firm that used screening to “promptly advise the appropriate government agency in writing of the circumstances that warranted the implementation of the screening procedures required by this Rule and of the actions that have been taken to comply with this Rule.” In my view, that was an improvement over the equivalent language in ABA Model Rule 1.11(b), which required only that the screening firm “give written notice to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.” But the Courts, which have a love/hate relationship with the ABA Model Rules, rejected the COSAC formulation and substituted the less specific ABA wording. Comment [7B] to Rule 1.11, which had reflected the more informative notice required by the COSAC proposal, has now been scaled back to conform to the more skeletal notice required by Rule 1.11(b)(1)(iv). Thus, the Comment no longer expressly states that the notice must include “a description of the screened lawyer’s prior representation and of the screening procedures employed …” Unfortunately, lawyers will now have to figure out what it does include, with minimal guidance from the Comment. (Note: The same change is made to Rule 1.12, Comment [5], for the same reasons.)

Rule 4.2, Comment [8]

[8] The prohibition on communications with a represented person party applies only in circumstances where the lawyer knows that the person party is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation, but such actual knowledge may be inferred from the circumstances. …

Simon’s explanation: The COSAC proposal for Rule 4.2(a) (the “no-contact rule”) prohibited communication with a “person” the lawyer knows to be represented by another lawyer in the matter. The Courts changed the word “person” to “party” in Rule 4.2(a) (though not in Rule 4.2(b)). Comment [8] to Rule 4.2 has now been amended to substitute “party” for “person” in the Comment pertaining to Rule 4.2(a) as well.

Rule 8.5, Comments [3] and [5]

[3] Paragraph (b) seeks to resolve such potential conflicts. … Paragraph (b) is not intended to subject lawyers to discipline if they act reasonably in the face of uncertainty about where the predominant effect of their conduct will occur.

[5] When a lawyer is licensed to practice in New York this state and another jurisdiction and the lawyer’s conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer’s conduct will occur in an admitting jurisdiction other than the one in which the lawyer principally practices. So For conduct governed by paragraph (b)(2), as So long as the lawyer’s conduct conforms to the rules of the jurisdiction in which the lawyer principally practices, a jurisdiction in which the lawyer is licensed and reasonably believes the predominant effect will occur, the lawyer should not be subject to discipline under this rule unless the predominant effect of the lawyer’s conduct will clearly occur in another admitting jurisdiction.

Simon’s explanation: Rule 8.5(b) tries to solve choice-of-law questions in matters of professional discipline for lawyers who practice in more than one jurisdiction. Rule 8.5(b)(2) provides that when lawyers who are admitted to practice in more than one jurisdiction are engaging in transactions or other conduct unrelated to litigation, the ethics rules to be applied “shall be the rules of the admitting jurisdiction in which the lawyer principally practices” unless the “particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice,” in which case the applicable rules are those of the jurisdiction that will feel the predominant effect.

Unfortunately, lawyers will often have a difficult time determining where the “predominant effect” will occur. For example, if an Ohio company merges with a New York company, will the “predominant effect” be in New York or in Ohio? A lawyer who guesses wrong may be subject to professional discipline.

The COSAC proposal for Rule 8.5(b)(2) took off some of the pressure by including the following language taken verbatim from ABA Model Rule 8.5(b)(2): “a lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.” COSAC’s original Comment [3] to Rule 1.11 echoed that sentence by providing that Rule 8.5(b) “is not intended to subject lawyers to discipline if they act reasonably in the face of uncertainty about where the predominant effect of their conduct will occur,” and COSAC’s original Comment [5] was also based on the standard of what the lawyer “reasonably believes.”

The Courts took out the safe harbor based on what a lawyer reasonably believes, reverting instead to the language of old DR 1-105(B)(2)(b). COSAC has now revised Comments [3] and [5] to conform to the relatively unforgiving text of Rule 8.5(b) (2). But surely courts and disciplinary authorities will at least consider a lawyer’s reasonable belief about “predominant effect” as a factor in mitigation — and if the lawyer’s belief was truly reasonable, then perhaps the authorities will also find that it was correct and that no discipline is warranted.

Conclusion: The Comments Are Still a Work in Progress

COSAC’s November 2010 changes to the Comments correct some obvious errors, clarify some wording, and avoid traps for the unwary by conforming the language of the Comments more closely to the language of the Rules themselves. Lawyers need to keep their eyes on the Comments in the months to come, however, because COSAC is still at work. In January 2011, five more Comments are likely to be revised after a debate on the floor of the House of Delegates. Finally, looking further ahead, COSAC will be writing Comments to help explain the many provisions of the New York Rules of Professional Conduct that were added by the Courts sua sponte and therefore are not currently explained or illustrated by any Comments. In short, the Comments remain a work in progress.


Professor Roy Simon is the author of Simon’s New York Rules of Professional Conduct Annotated. The brand new 2015 edition analyzes more than 100 new cases, ethics opinions, and other developments critical to New York practice. It’s the legal ethics bible for all New York-area lawyers. To purchase, click here.

In addition, Professor Simon advises lawyers and law firms on questions of professional conduct and serves as an expert witness in cases raising issues of lawyer conduct. You may reach Professor Simon at 516-463-5289 or Roy.Simon@hofstra.edu.

 

Comments to Rules Revised By New York State Bar Association

On Nov. 10, 2010, the NYSBA’s Committee on Standards of Attorney Conduct (COSAC) recommended, and its Executive Committee approved, several technical and conforming changes to the Association’s original Comments to the Rules of Professional Conduct promulgated by the Appellate Divisions on April 1, 2009. The changes were in response to revisions in the Rules and to the suggestions of other commentators. The association is continuing to review five of the Comments, and has withdrawn them pending completion of its continuing review. The article above contains Roy Simon’s own interpretation of the changes to the Comments. In all, Professor Simon explains eight of the 44 Comments affected. We publish below an additional 21 of the new Comments.

Rule 1.5, Comment [1B]:

A supervising lawyer who submits a fraudulent bill for fees or expenses to a client based on submissions by a subordinate lawyer has not automatically violated this rule. In this situation, Wwhether the lawyer is responsible for a violation must be determined by reference to Rules 5.1, 5.2, and 5.3. As noted in Comment [8] to Rule 5.1, nothing in that rule alters the personal duty of each lawyer in a firm to abide by these rules and in some situations, other rules may impose upon a supervising lawyer a duty to ensure that the books and records of a firm are accurate. See Rule 1.15(j).

Rule 1.6, Comment [5]:

Except to the extent that the client’s instructions or special circumstances limit that authority, a lawyer may make disclosures of confidential information that are impliedly authorized by a client if the disclosures (i) advance the best interests of the client and (ii) are either reasonable under the circumstances or customary in the professional community. is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. Implied disclosures are permissible when they (i) advance the best interest of the client and (ii) are either reasonable under the circumstances or customary in the professional community. In addition, lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers. Lawyers are also impliedly authorized to reveal information about a client with diminished capacity when necessary to take protective action to safeguard the client’s interests. See Rules 1.14(b) and (c).

Rule 1.8, Comment [8]: [Comment under review.]

Rule 1.11, Comment [2]:

[2] Paragraphs (a), (d) and (f) restate the obligations of an individual lawyer who has served or is currently serving as an officer or employee of the government toward a former government or private client. Rule 1.10 is not applicable to the conflicts of interest addressed by this rule. rather, pParagraph (b) sets forth special imputation rules for former government lawyers, with screening and notice provisions, and Rule 1.10 is not applicable to these conflicts. See Comments [6]–[7B] concerning imputation of the conflicts of former government lawyers.

Rule 1.11, Comment [7B]:

To enable the government agency to determine compliance with the rule, nNotice to the appropriate government agency, including a description of the screened lawyer’s prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

Rule 1.12, Comment [1]:

This Rule generally parallels Rule 1.11. The term “personally and substantially” signifies that a A judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate act upon the merits. So also, the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. See Rule 1.11, Comment [4]. The term “adjudicative officer” in paragraphs (b)(2) and (c) includes such officials as judges pro tempore, referees, special masters, hearing officers and other parajudicial officers, and also lawyers who serve as part-time judges.

Rule 1.12, Comment [5]:

To enable the tribunal to determine compliance with the rule, nNotice to the parties and any appropriate tribunal, including a description of the screened lawyer’s prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

Rule 1.15, Comment [3]: [Comment under review.]

Rule 1.15, Comment [4]: [Comment under review.]

Rule 1.18, Comment [5]:

A lawyer may condition conversations with a prospective client on the person’s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. See Rule 1.0(j) for the definition of “informed consent.,” and with regard to the effectiveness of an advance waiver see Rule 1.7, Comments [22]–[22a] and Rule 1.9, Comment [9]. If permitted by law and if the agreement so provides, the prospective client may also consent to the lawyer’s subsequent use of information received from the prospective client.

Rule 1.18, Comment [7]:

Under paragraph (c), the prohibition in this rule is imputed to other lawyers as provided in Rule 1.10, but, under paragraph (d)(1), imputation may be avoided if the lawyer obtains the informed consent, confirmed in writing, of both the prospective and affected clients. In the alternative, imputation may be avoided if the conditions of paragraph (d)(2) are met and all disqualified lawyers are timely screened, and written notice is promptly given to the prospective client. See Rule 1.10. Paragraph (d)(2)(i) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified. Before proceeding under paragraph (d) (1) or paragraph (d)(2), however, a lawyer must be mindful of the requirement of paragraph (d)(3) that “a reasonable lawyer would conclude that the law firm will be able to provide competent and diligent representation in the matter.”

Rule 2.1, Comment [1]:

This rule is not intended to be enforced through the disciplinary process. However, it is important to remind lawyers that a A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. Nevertheless, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.

Rule 2.3, Comment [1]:

An evaluation may be performed at the client’s direction or if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client when impliedly authorized to carry out the representation. See Rule 1.2. Such an evaluation may be for the primary purpose of establishing information for the benefit of third parties: for example, an opinion concerning the title of property rendered at the behest of a vendor for the information of a prospective purchaser, or at the behest of a borrower for the information of a prospective lender. In some situations, the evaluation may be required by a government agency: for example, an opinion concerning the legality of securities registered for sale under the securities laws. In other instances, the evaluation may be required by a third person, such as a purchaser of a business, or of intellectual property or a similar asset.

Rule 2.3, Comment [5]:

Information relating to an evaluation is protected by Rule 1.6. In many situations, providing an evaluation to a third party poses no significant risk to the client; thus, the lawyer may be impliedly authorized to disclose the information to carry out the representation, if the disclosures (i) advance the best interests of the client and (ii) are either reasonable under the circumstances or customary in the professional community. See Rule 1.6(a)(2). Where, however, it is reasonably likely that providing the evaluation will affect the client’s interests materially and adversely, the lawyer must first obtain the client’s consent after the lawyer has consulted with the client and the client has been adequately informed concerning the conditions of the evaluation, the nature of the information to be disclosed and important possible effects on the client’s interests. See Rules 1.0(j), 1.6(a).

Rule 3.3, Comment [6A]:

The duties stated in paragraphs (a) and (b) — including the The prohibitions against offering and using false evidence — apply to all lawyers, including lawyers for plaintiffs and defendants in civil matters, and to both prosecutors and defense counsel in criminal cases. In criminal matters, therefore, Rule 3.3(a)(3) ordinarily requires a prosecutor to refrain from offering or using false evidence, and to take reasonable remedial measures to correct any false evidence that has been offered by the government has already offered., For example, inform the tribunal when the a prosecutor comes to know reasonably believes that a prosecution witness has testified falsely, the prosecutor should either recall the witness to give truthful testimony or should inform the tribunal about the false evidence. At the sentencing stage, a prosecutor should and correct any material errors in a presentence report that are detrimental to a defendant. In addition, prosecutors are subject to special duties and prohibitions that are set out in Rule 3.8.

Rule 3.3, Comment [7]:

The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel in criminal cases. If the a criminal defendant insists on testifying and the lawyer knows that the testimony will be false, the lawyer may have the option of offering the testimony in a narrative form, though this option may require advance notice to the court or court approval. The lawyer’s ethical duty duties under paragraphs (a) and (b) may be qualified by judicial decisions interpreting the constitutional rights to due process and to counsel in criminal cases. The obligation of the advocate under the rules of Professional Conduct is subordinate to such requirements.

Rule 6.1, Comment [1]: [reserved.]

Rule 6.1, Comment [3]: [reserved.]

Rule 6.5 Comment [1]: [reserved.]

Legal services organizations, courts, government agencies, bar associations and various non-profit organizations have established programs through which lawyers provide free short-term limited legal services, such as advice or the completion of legal forms, to assist persons to address their legal problems without further representation by a lawyer. In these programs, such as legal-advice hotlines, advice-only clinics or pro se counseling programs, a client-lawyer relationship is established, but there is no expectation that the lawyer’s representation of the client will continue beyond the limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to utilize the conflict-checking system required by Rule 1.10(e) before providing the short-term limited legal services contemplated by this rule. See also Rules 1.7, 1.8, 1.9, 1.10.

Rule 6.5, Comment [4]:

Because the limited nature of the services significantly reduces the risk of conflicts of interest with other matters being handled by the lawyer’s firm, paragraph (b) provides that Rules 1.7 and 1.9 are inapplicable to a representation governed by this rule, except as provided by paragraph (a)(2). Paragraph (a)(2) requires the participating lawyer to comply with Rule 1.10 only when the lawyer knows that the lawyer’s firm is affected by Rules 1.7, 1.8 or 1.9. By virtue of paragraph (b), however, a lawyer’s participation in a short- term limited legal services program will not preclude the lawyer from undertaking or continuing the representation of a client with interests adverse to a client being represented under the program’s auspices. Because the lawyer is not precluded pursuant to this rule Rule 1.10 becomes inapplicable. Nor will the personal disqualification of a lawyer participating in the program be imputed to other lawyers participating in the program.

Rule 7.1, Comment [5]:

The “attorney advertising” label serves to dispel any confusion or concern that might be created when nonlawyers receive letters or emails from lawyers. The label is not necessary for advertising in newspapers or on television, or similar communications that are self-evidently advertisements, such as billboards or press releases transmitted to news outlets, and as to where there is no risk of such confusion or concern. An advertisement in a newspaper may nevertheless require the label if it is a paid article about a law firm adjacent to other articles written by the newspaper, where there is a reasonable risk that readers will confuse the two. The ultimate purpose of the label is to inform readers where they might otherwise be confused.

 


DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.

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