By Mary C. Daly [Originally published in NYPRR March 2003]
The law governing lawyers has grown exponentially more complex over the past decade. As a practical matter, lawyers must devote more time and effort to policing their own conduct and the conduct of their law-firm colleagues. This article offers suggestions for successful research and identifies some of the major sources for guidance on the New York rules for lawyer conduct and related substantive law. A subsequent article will discuss non-New York sources.
The same analytical tools that a lawyer uses to examine a client’s legal problems should be brought to bear on the lawyer’s inquiry into her own conduct. The answers to three questions will help a lawyer to formulate a step-by-step research agenda for the issue under scrutiny. Those three questions are: what is the factual setting for the issue (e.g., professional ethics, malpractice, regulatory, etc.); which jurisdiction’s law controls; and, is the issue likely to metamorphose from one type of claim into another (e.g., from a disciplinary complaint into a malpractice action)?
Identifying Issues & Jurisdiction
A New York lawyer will have little difficulty in identifying the nature of most issues, as well as the controlling jurisdiction. But when the issues becomes more complex and elusive, the first place to look for guidance is The Lawyer’s Code of Professional Responsibility (Code) published by New York State Bar Association (NYSBA). The second place is the ethics opinions issued by the state and local bar associations.
The savvy lawyer will not stop there, however. Ethics committee opinions do not have the force of law. The courts and disciplinary authorities are free to disagree with them. Moreover, both the federal and state courts regard the disciplinary rules of the Code as providing non-binding “guidelines.” [See, e.g., Niesig v. Team I, 76 N.Y. 2d 363 (1990).] The lawyer’s initial inquiry is therefore likely to lead only to conflicting decisions, or even to judicial and professional silence. Without thorough research, the lawyer will never gain a big-picture perspective on the issue. An erroneous decision will expose the lawyer to liability for malpractice and/or breach of fiduciary duty, disciplinary sanctions, and, in a litigated matter, disqualification.
Identifying the controlling jurisdiction may be especially difficult. A multiple-licensed lawyer who maintains an active practice in New York and New Jersey, for example, may question which jurisdiction’s rules apply to a particular representation. To resolve this dilemma, the lawyer may need to conduct careful research into the choice of law provisions of DR 1-105. [See, Mary C. Daly, “Crossing State Lines — Which Law Governs,” NYPRR, Sept. 1999).] Additionally, the lawyer may decide to research the ethics rules and case law of both jurisdictions. A concern for her professional reputation will probably lead her to comply with the standards which are most exacting.
A client’s initial manifestation of dissatisfaction with a lawyer’s conduct may not be his last. Disgruntlement voiced in a telephone call can evolve in a very short time into a com-plaint to a disciplinary committee, and, still later, into an action for malpractice or breach of fiduciary duty. Faced with this potential metamorphosis, an astute lawyer will heed a client’s initial expression of dissatisfaction and research its potential for discipline and liability thoroughly.
Multi-Step Strategy for Research
The key to a successful research strategy is proper focus. A scatter-gun approach wastes time and may bypass important sources. A New York lawyer researching an issue concerning ethics or professional conduct will consider all of the sources I list below. If the answer is still elusive, she will continue her research into other sources, including the rules of other jurisdictions and the ABA Model Rules.
The most helpful research sources for New York lawyers are:
1. NYSBA, The Lawyer’s Code of Professional Responsibility. This pamphlet contains the complete New York Code, including the Canons and Ethical Considerations. Researchers should remember to visit the Association’s website at http://www.nysba.org. To be certain that the text they have has not been amended. The Appellate Divisions of the Supreme Court have adopted the Code’s Disciplinary Rules as their own joint rules. [Part 1200 of Title 22 of the New York Codes, Rules and Regulations (NYCRR).] A word of caution: It is increasingly common for the state and federal courts to cite Code provisions solely by the 22 NYCRR citation, ignoring the DR citation. Be sure to check the 22 NYCRR citation in your searches, especially in Lexis and WestLaw.
2. Roy Simon, Simon’s New York Code of Professional Responsibility Annotated (Thompson-West 2003). Professor Simon has extensively analyzed the Code, court rules relevant to the regulation of the legal profession, bar association ethics opinions, and leading state and federal court decisions. No research is complete without consulting this book. Every lawyer should have it at his desk.
3. The New York Code of Professional Responsibility: Opinions, Commentary & Caselaw (Mary C. Daly, ed.) This two-volume set is updated four or more times a year and contains the Code, extensive commentary on related federal and state court rules, and a complete set of all the ethics opinions of the NYSBA, the Association of the Bar of the City of New York (ABCNY), the New York County Lawyers’ Association (NYCLA), and the Nassau County Bar Association (NCBA).
4. The Judiciary Law §500 to End (McKinney’s Consolidated Laws of New York Annotated 2002). This volume contains a useful but limited selection of cases and secondary material.
5. Legal Newspapers and Journals. The New York Law Journal and the New York State Bar Association Journal often publish articles analyzing current professional responsibility and liability issues and report on significant court decisions. The Record of the Association of the Bar of the City of New York reprints the reports of the Committees on Professional Responsibility and Professional Discipline and the formal opinions of the Committee on Professional and Judicial Ethics. The reports address contemporary ethical and regulatory issues and frequently recommend reforms that the legislature and the courts subsequently adopt.
6. Hot Line Assistance. The ABCNY (212-382-6624) and the NCBA (518-747-4070) operate telephone ethics hot lines. Attorneys knowledgeable in professional responsibility issues provide guidance. In addition, the ABCNY, the NCBA, the NYSBA, and the NYCLA sponsor ethics committees that will provide written responses to letters requesting guidance. The inquiring lawyer does not have to be an association member to take advantage of either the hot-line or the letter-response services. These services are free of charge. The ABA offers similar assistance at 312- 988-5323. The ABA’s initial consultation is free; but there is a charge for further research.
7. Web Sites. The NYSBA and some local bar associations host web sites on which you can find a variety of information, including the formal opinions issued by their ethics committees. These opinions analyze professional responsibility dilemmas that are of general concern to practitioners. Recent opinions of these ethics committees can be found at: NYSBA, http://www.nysba.org; ABCNY, http://www.abcny.org; NCBA, http://www.nassaubar.org; NYCLA, http://www.nycla.org.
8. Cornell Law School’s Legal Information Institute maintains the American Legal Ethics Library. The Library is an ambitious undertaking whose goal is to make digitally available each state’s code of lawyer conduct along with annotations and commentary. While the New York commentary is not complete, the site publishes helpful excerpts from Professor Simon’s book. The site’s URL is http://www.law.cornell.edu/ethics.
9. N.Y. Jur.2d. The commentary under the subject matter headings of Attorneys at Law and Malpractice is straightforward with respect to issues of ethics and professional liability. The case citations in the footnotes are extensive.
10. N.Y. Digest 4th. The topic Attorney and Client contains extensive citations to cases analyzing ethical and liability issues. A particular advantage of using the Digest is that once you identify the relevant key numbers you can easily research the issues in multiple jurisdictions. You can also use the key numbers in Westlaw research.
11. N.Y. Shephards. Volume 2 allows you to shephardize New York statutes relevant to the practice of law, such as The Judiciary Law. Volume 5 allows you to shephardize NYCRR provisions, including the disciplinary rules.
12. The New York Professional Responsibility Report (NYPRR). The publication that you are reading now is a valuable tool for keeping up-to-date on ethical issues and offers practical advice on important law firm management issues, such as record keeping, preservation of clients’ original documents, and the operation of conflicts checks. The publication is qualified by New York’s CLE Board to issue CLE credits to New York lawyers who read it.
Mary C. Daly is James H. Quinn Professor of Legal Ethics at Fordham Law and past Chair, Committee of Professional and Judicial Ethics, Association of the Bar of the City of New York.
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.