Our constitutional democracy flourishes when our society continues to believe in the rule of law and the viability of its judicial system. As attorneys, we play a vital role in fostering trust and confidence in our legal institutions through interactions with participants in the legal process with the public at large.
This trust and confidence is enhanced by our adherence to the core principles that have guided our professional ethics, including competence, loyalty, professional judgment, fairness to participants in the judicial process, and truthfulness in dealing with others.
The vast majority of New York’s attorneys have a tradition of practicing ethically and honorably. However, as the modern practice of law continues to present new challenges, we must ensure that our system of lawyer regulation continues to adapt to the changing legal environment, while remaining faithful to these core principles.
By virtue of Judiciary Law §90, the Legislature has entrusted lawyer regulation to the Appellate Division in each of the four judicial departments. Under the guidance of the Administrative Board of the Courts, and in cooperation with bar associations and individual practitioners throughout the state, the disciplinary rules that ensure compliance with our core ethical principles have been revised to meet the needs of modern day practice.
Beginning in June 2005, the Administrative Board initiated a study of the disciplinary rules governing lawyer advertising, resulting in significant changes and improvements. In all, the Administrative Board adopted nearly 50 new or amended rules, which became effective Feb. 1, 2007.1
Many of these provisions were designed to keep pace with the explosive advances in modern communications technology, extending the realm of advertising and solicitation to “computer accessed communications” such as Web sites, blogs, e-mail, chat rooms, meta tags, domain names and other Internet presences.2
As a further step toward modernizing our lawyer regulatory system, the Administrative Board recently authorized a complete restructuring of the disciplinary rules into the Model Rules format of the American Bar Association. This initiative, effective April 1, 2009, brings New York into harmony with the standardized format now followed in 48 other states.3
The change not only provides New York practitioners, prosecutors and judges with access to a nationwide source of ethics law, but will serve to integrate New York with emerging trends in the profession that transcend state and national boundaries.
Consistent with the practice followed by all other model rules states, New York’s version of the Rules of Professional Conduct (Rules) is unique to our state’s needs, striking a balance between the implementation of new approaches and the preservation of the trust-based nature of the traditional lawyer-client relationship.
For example, in the area of conflicts of interest, the New York version of the Rules adopts the model rules approach for identifying and organizing various categories of conflicts, including an entirely new category addressed to conflicts involving “prospective clients.”4 At the same time, the Rules retain the existing “differing interests” standard for assessing concurrent conflicts, preserving the mandate that New York lawyers exhibit the highest degree of loyalty to their clients.5
Similarly, the Rules adopt, in part, the model rules approach governing lawyer candor before a tribunal, offering greater guidance for lawyers confronted with issues involving false evidence.
However, the model rules provision governing lawyer candor toward third parties was not adopted since it applies only when a lawyer knowingly makes a “material” false statement. Instead, the prohibition against knowingly making a false statement, regardless of materiality, was retained, requiring New York lawyers to adhere to the core principle that they exercise the highest degree of truthfulness in the course of representing their clients.6
Enforcement Also Crucial
The recognition of our need to adapt and modernize applies equally to enforcement procedures.
When lawyer conduct is called into question, the legal profession is permitted great independence and the privilege to self-regulate. Effective regulation requires attorneys and complainants to have trust and confidence in a fair and just attorney disciplinary system.
With nearly 50,000 lawyers now registered to practice, the Second Department alone has disciplinary jurisdiction over a lawyer population larger than that of 40 states. To meet the challenges of this ever-growing constituency, the system of lawyer regulation in the Second Department has undergone a substantive review over the last eight years, resulting in meaningful revision.
Early in my tenure as Presiding Justice, I established a committee under the leadership of former Associate Justice Gabriel M. Krausman to review the practices and procedures of the Second Department relating to attorney admission, discipline and reinstatement. The Krausman Committee was comprised of a wide array of judges, court personnel, disciplinary staff counsel, bar leaders, grievance committee members and private practitioners.
As a result of the Committee’s work, numerous recommendations for improvement were implemented.7 Among these was the adoption of a rule permitting “diversion” in certain grievance matters involving lawyers impaired by substance abuse or the disease of addiction. Similar to rules in place in the Third and Fourth departments, the new diversion rule is designed to foster early identification of, and treatment for, impaired lawyers before they cross the line into serious misconduct.8
The implementation of this rule reflects the growing awareness of the need to address the challenges of substance abuse among the members of the bar and their families, and to enhance the dedicated efforts of the network of lawyer assistance programs and other related support groups.
Also in accordance with the report of the Krausman Committee, the Second Department has been engaged in an ongoing effort to improve and streamline the practices and procedures of its three departmental grievance committees with a view toward achieving departmental uniformity wherever possible. In pursuing this goal, the Second Department will continue to ensure that every participant in the lawyer disciplinary process is treated with dignity and respect, and that our grievance committees carry out their mission fairly, expeditiously, and with departmental consistency.
A hallmark of this approach has been the practice of ensuring that every attorney accused of misconduct is afforded a full and fair opportunity to be heard, on both the merits and the issue of sanctions, before a final determination is made.
In the case of private discipline issued by a grievance committee, the attorney may exercise the right to a hearing, at which the grievance committee bears the burden of establishing the charges, and the attorney is afforded a full opportunity to address all issues. Another opportunity to be fully heard may be afforded yet again, should the attorney choose to seek further review before the court.
Likewise, in formal disciplinary proceedings, the attorney is afforded a full, plenary hearing before a special referee appointed by the court to hear and report. At the conclusion of the hearing, both the special referee and the grievance committee refrain from making any recommendation as to sanctions, leaving the accused attorney the widest latitude to address this issue, virtually unfettered, in written submissions to the court.
Only then does the court deliberate and render its determination, judging every disciplinary case individually, each according to its own unique facts and circumstances. As the Second Department fulfills its mandate in these matters, it will continue to be guided by this enduring tradition of fairness.
New challenges no doubt will arise as the practice of law continues to evolve in an ever-changing world, and we must remain vigilant in our efforts to adapt our lawyer regulatory system accordingly. In confronting these challenges, it is wise that we remain rooted in the core principles that have so nobly served our profession.
A. Gail Prudenti is Presiding Justice of the Appellate Division, Second Department
1. Four of these new or amended rules, and part of a fifth, have since been adjudged unconstitutional under the First Amendment (see Alexander v. Cahill, 2010 WL 842711, 2010 US App LEXIS 5253 [2d Cir 2010]). The remaining rule changes are unaffected by this decision, and remain viable.
2. 22 NYCRR Part 1200, sections formerly designated as 1200.1(L), 1200.6(f), 1200.6(g)(2), 1200.6(k), 1200.7(a)(e) and (f), 1200.8(a)(1), and 1200.8(c)(5)(ii); now designated respectively as rules 1.09(c), 7.1(f), 7.1(g)(2), 7.1(k), 7.5(a)(e) and (f), 7.3(a)(1), and 7.3(c)(5)(ii).
3. Rules of Professional Conduct (22 NYCRR 1200.0), Rules 1.0 through 8.5.
4. Id. Rules 1.7 through 1.12, and 1.18.
5. Id. Rules 1.0(f) and 1.7.
6. Id. Rules 3.3 and 4.1.
7. “Report to Public and Bar on Admission, Discipline, and Reinstatement of Attorneys,” http://www.nycourts.gov/courts/ad2/publicnotices.shtml (July 27, 2005).
8. 22 NYCRR 691.4(m).