Professional Liability

What differs is while DR 4-101 prescribes the scope of “Confidential Information,” Rule 1.6 is more educative in what is and is not “Confidential Information.” Rule 1.0 terminology is also more helpful in respect to certain definitions.

Competency

The terminology “reasonable,” reasonably, “reasonable belief,” “reasonably believes,” and “reasonably should know” has significant import in testing the lawyer’s judgment when a competency or ethical issue is presented. Rule 1.0(q), (r) and (s) provide the definitions of “reasonable” or “reasonably” as “the conduct of a reasonably prudent and competent lawyer” and in the context of conflict determinations, it denotes “a lawyer acting from the perspective of a reasonably prudent and competent lawyer who is personally disinterested in commencing or continuing the representation.” “ Reasonable belief” or “reasonably believes,” in reference to the matter in question, is when the circumstances are such that the belief is reasonable.” (Emphasis added.) “ Reasonably should know” occurs when “a lawyer of reasonable prudence and competence would ascertain the matter in question.”

The definitions comport with the Lawyer’s Judgment Rule that lawyers are protected from civil liability and professional discipline when the lawyers, after obtaining the client’s informed consent in respect to the matters being handled, exercise good faith and not unreasonable judgment, albeit in error. In Rubinberg v. Walker, the Appellate Division, First Department, articulated the Lawyer’s Judgment Rule as follows:

The Lawyer’s Judgment Rule protects the lawyer who acts reasonably and in good faith in contexts where duties are not specifically mandated by statute, court or agency rules. This can be particularly true in situations where a second-guessing client is looking to avoid his or her obligation to pay legal fees. The litigation context is where the Lawyer’s Judgment Rule is most suitable for application and where the lawyer has broad discretion. In Bernstein v. Oppenheim & Co. P.C., the First Department held in the context of a lawyer erroneously advising his client to start a lawsuit that a judgment of legal malpractice cannot be based on dissatisfaction with strategic choices.²

DR 6-101 addressed competency issues. The Rule is that “a lawyer should decline to handle a matter he or she is not competent to handle without associating with a lawyer competent to handle it; handle a matter without preparation adequate in the circumstances,” or “[n]eglect a legal matter entrusted to the lawyer.” It is obvious from a comparison of the foregoing with Rules 1.1 and 1.3 “Competence” and “Diligence” respectively, that the New Code, in importing an express standard of reasonableness, gives better recognition to the realities of present day law practice that, while the lawyer should be held to high standards of competency and ethics, there is also a degree of fair flexibility in making professional and ethical judgments in respect to the lawyer’s conduct. Rule 1.1(a) provides “[c]ompetent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation” and Rule 1.3(a) provides “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” (Emphasis added.)

The pervasive use of the terminology “reasonable” enhances the New Code, because the Lawyer’s Judgment Rule strikes a fair balance between the lawyer’s responsibilities and what clients can reasonably expect of the legal profession and that has added value. They should not expect the impossible of the lawyer, only what is fair, honest and reasonable.

Conflicts

DR 5-101 [§1200.20] Conflicts of Interest – Lawyer’s Own Interests reads: