ALBANY – Chief Judge Judith S. Kaye and the four presiding Appellate Division justices have formally adopted a new set of attorney ethics rules that proponents say brings New York lawyers in line with their counterparts in most of the rest of the country.
The Rules of Professional Conduct align ethics standards in form and numbering sequence with the American Bar Association’s Model Rules of Professional Conduct. That change will make it easier for New York attorneys to reference ethics rules and advisory and legal opinions nationwide when researching issues, supporters of the new rules say.
“It is a tremendous relief to now speak the same language as the rest of the country,” said Steven C. Krane, chairman of the New York State Bar Association’s Committee on Standards of Attorney Conduct, which proposed the revisions. “The code is dead. Long live the rules.”
Starting April 1, 2009, the Rules of Professional Conduct will replace the New York Code of Professional Responsibility.
Mr. Krane’s committee began working on a proposed reworking of the code in 2003, and the 500-plus pages of proposals it eventually made to the administrative board of the state courts were approved in a piecemeal fashion by the state bar’s House of Delegates in 2006 and 2007.
The proposals were submitted to the administrative board earlier this year.
Mr. Krane, of Proskauer Rose, said yesterday there are no sea changes in the new rules.
“Substantively, I would say that the new rules represent a fine tuning of the existing code of professional responsibilities in New York so that the obligations remain exactly the same,” he said.
Chief Judge Kaye said in her State of the Judiciary last month that she was hopeful the administrative board of the courts would adopt the new ethics rules before she leaves office on Dec. 31 due to mandatory retirement rules.
In a statement released yesterday, Judge Kaye called the new rules “accessible and understandable” and “consistent generally with national standards” for attorney conduct.
Only California and Maine have not adopted the ABA’s Model Rules of Professional Conduct.
New York’s Code of Professional Conduct took effect on Jan. 1, 1970. In 1985, the state bar’s House of Delegates rejected a proposal to adopt the then two-year-old ABA Model Rules of Professional Conduct. The state bar’s past president, Kathryn Grant Madigan, recalled that small-firm and solo practitioners were against adoption of the rules 23 years ago, but she said opposition among lawyers has faded over the years.
Most Standards Kept
The current state bar president, Bernice K. Leber, said yesterday that the new rules are “extraordinarily positive” for the bar. She said her group would continue to provide commentary and guidance on the rules, as it has since 1970 with the code.
Stephen Gillers, a professor at New York University School of Law, estimated that about three-quarters of the new rules embody the current state code. The rest, he said, are the ABA standards or the ABA standards modified for use in New York state.
Mr. Gillers said that in some ways the new rules impose more strict codes of conduct on lawyers and in other ways relax ethical rules.
“I think these rules go part way toward modernizing the ethical standards for lawyers in New York,” he said. “I think there is still work to be done and I hope it will be done.”
A more stringent aspect of the new codes, for example, will be to require that attorneys get in writing assent from both sides that they can continue representing a current client in a case in which a former client is an adversary. Verbal consent is acceptable under the current code, Mr. Gillers said.
“There are no more oral consents” as of April 1, he said.
Mr. Gillers and Roy D. Simon Jr., a Hofstra University School of Law professor and vice chairman of the Committee on Standards of Attorney Conduct, both said they were disappointed that a recommendation made by the state bar committee on multi-jurisdictional practice by lawyers was not approved.
The state bar committee recommended that out-of-state lawyers be allowed to practice in New York – and be subject to the state ethical rules as New York-based attorneys – when performing all legal work in the state, including the representation of clients in arbitration and mediation proceedings or in negotiating contracts.
Without that provision, Mr. Simon said some lawyers will continue to practice in New York in a “shadow-land” without clearly being subject to the regulation of New York’s disciplinary rules.
Mr. Simon said he was also disappointed that the administrative board did not adopt a recommendation, also made by the state bar, establishing an obligation for prosecutors to launch investigations in cases where DNA and other evidence establishes the strong suspicion that convicted defendants are innocent.
The new rules do include a provision that attorneys should provide at least 20 hours a year of pro bono work to the poor, and to contribute money to providers of legal services to the poor. Violators of that provision are not subject to discipline, according to the new rules.
Violations of most state ethical conduct rules can carry punishments up to disbarment.