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N.Y. Bar Panel Urges Adoption of New Conduct Rules
New York Law Journal
November 07, 2007
Attorneys in New York state are a step closer to becoming the last Bar in the United States to have rules of ethical behavior based in form and substance on the American Bar Association's Model Rules of Professional Conduct.
The New York State Bar Association's House of Delegates last Saturday unanimously approved revisions that are designed to transform New York's current Code of Professional Responsibility into new state Model Rules of Professional Conduct.
It took the State Bar's Committee on Standards of Attorney Conduct nearly five years to produce the almost 500 pages of proposed rules, which will now be sent to the appellate division's presiding justices for review and possible final adoption.
Committee Chairman Steven C. Krane of Proskauer Rose said the proposed rules were formulated at a measured pace by the State Bar to give interested parties ample opportunity to comment on changes. The presiding justices are now unlikely to rush their review, according to Krane.
"If history is any guide, they will be deliberate about it," Krane said. "In 1987, when amendments were made to the code, it took Two-and-a-half years for the courts to act on them. I would not be surprised if it took a couple of years for the courts to reach a resolution and hopefully adopt our proposals."
The justices can approve the recommended rules, modify them or reject them, Krane said.
The proposed rules are a hybrid. They include guidelines lifted directly from the ABA rules, provisions from the current New York Code of Professional Responsibility and rules combining language from both.
Overall, Krane estimated that about two-thirds of the proposed rules are ABA model rules modified by the committee for application in New York and one-third are rules from the current Code of Professional Responsibility.
Though complaining that some of the proposed rules would relax current ethical standards or are less stringent than ABA codes, New York University Law School professor Stephen Gillers said the revised rules would be a "resounding" improvement in an age when ethical behavior by attorneys has become "exponentially more complicated."
"The proposal of the State Bar advances the ball by offering a document that is more specific" than the current code, Gillers said Tuesday.
Gillers said the current New York rules were drawn up mainly with litigating attorneys in mind. The new code would be far more specific about the obligations of transactional attorneys and other nonlitigators.
However, Gillers said the State Bar committee erred by declining to adopt two provisions -- in the ABA rules and adopted by most other states -- permitting attorneys to reveal clients' confidential information in cases where lawyers discover they have knowingly been used by clients to defraud others. The proposed rules contain no provision allowing lawyers in those situations to breach confidentiality, Gillers said.
Portions of the proposed new model rules have been adopted by the House of Delegates on a piecemeal basis over the past 17 months, beginning with the house's approval of the broader concept of going from the code to a model rules system in April 2006.
That determination, in turn, represented an about-face from 1985, when State Bar leaders rejected a proposal to adopt the then-two-year-old ABA Model Rules of Professional Conduct as the ethical guidelines for New York attorneys.
'RESISTANCE' RECALLED
Kathryn Grant Madigan, president of the Bar group and a supporter of the model code, recalled "great resistance" 22 years ago from small-firm and solo practitioners who were accustomed to the Code of Professional Responsibility and were reluctant to learn a new body of ethics rules. The current code went into effect Jan. 1, 1970.
But Madigan, of Levene Gouldin in Binghamton, said that changed as time went on. The introduction of the multistate phase of the Bar examination in 1979 has required prospective attorneys in New York to become familiar with the ABA Model Rules.
According to Madigan, about two-thirds of the current practicing Bar in New York has been admitted under the multistate exam.
Since the mid-1980s, all states have adopted the ABA model rules outright or realigned their rules to largely match ABA guidelines. The only exceptions other than New York -- California and Maine -- are moving toward adoption of ABA-based systems, Krane said.
"We could have been at the forefront in the '80s," he said. "Now we are a straggler and we are playing catch up to the rest of the country."
If nothing else, the proposed changes are important because they would apply the ABA rules' numbering system to New York's code, said Roy D. Simon Jr., a Hofstra University Law School professor and vice chairman of the Committee on Standards of Attorney Conduct.
For example, to attorneys in virtually every other state, model Rule 3.3 and its subdivisions are recognized as governing the conduct of lawyers representing clients in court. But in New York, virtually identical language on the same subject is found sprinkled through Disciplinary Rule 7-102(A) 4 and 5; DR 7-106(B)(1); DR 7-102(A)(4) and (5); and other provisions.
According to Simon, navigating the current code "is like driving on the highways of New York -- if you don't know what you are looking for, you're not going to find it."
Reconciling New York's code with the ABA rules for numbering purposes would allow New York practitioners to review precedents in other states if conduct or interpretation problems arise, Simon said. Likewise, he said, important ethical precedents in New York would now be given weight in other states because they could be catalogued and retrieved under the ABA model rule headings.
The revised proposed rules also folds the ethical considerations of the Code of Professional Responsibility into commentary accompanying the model rules. Simon called the ethical considerations "nice stuff" that all attorneys accept, but he said the committee found they were of limited practical use to the everyday ethical work of attorneys.
"By and large, we avoided big policy statements," Simon said.
Lewis F. Tesser of Tesser & Ryan was co-chairman of a New York County Lawyers' Association task force that monitored the State Bar committee's work and proposed some modifications. Tesser praised the Bar panel for being "very, very attentive" to suggestions of proposed revisions by NYCLA and other bar groups and committees.
"When it came down to any given rule, there was lively debate," Tesser said. "I don't think any rule was preordained. I think the proposed rules are ones that were arrived at after much discussion and thought and represented the considered judgment of a lot of lawyers who were involved."
C. Kenneth Perri, chairman of the State Bar's committee on legal aid, said Krane's panel also accepted alterations proposed by Perri's committee. Perri, of Legal Assistance of Western New York in Geneva, Ontario County, said he also was "very impressed" by the work of State Bar committee.
"I think the Bar is on board," he said.
