In April 2009, New York’s Rules of Professional Conduct, 22 NYCRR 1200.0 et seq. (2009 Rules) replaced the Code of Professional Responsibility that had formerly governed lawyer-client relationships. The preamble to the 2009 Rules clarifies that basic “touchstones” of the lawyer-client relationship underlie any conflict analysis. These are: the lawyer’s obligation to assert the client’s position under the rules of the adversary system, to maintain the client’s confidential information except in limited circumstances, and to act with loyalty during the period of the representation. As had previously been the case, the new rules clarify that “violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer….”
The 2009 Rules incorporated several changes that are pertinent to attorney disqualification. A survey of cases decided since the new rules took effect indicates that in most circumstances courts and litigants have regarded the 2009 Rules as identical for all practical purposes to the Code of Professional Responsibility. Pre-2009 case law remains frequently cited and reliable guidance for practitioners considering whether or not to accept a representation, or whether to file a motion to disqualify an opponent. See, e.g., Pierce & Weiss LLP v. Subrogation Partners LLC, 701 F.Supp.2d 245, 251 (EDNY 2010) (“Even though the Canons have been replaced by the New York Rules of Professional Conduct, the new rules still incorporate much of the substance of the old rules… Therefore, much of the precedent interpreting the old rules still remains applicable”) (citing Merck Eprova AG v. ProThera Inc., 670 F.Supp.2d 201, 207-08 n. 1 (SDNY 2009)). Notwithstanding this analysis, as illustrated below, however, the 2009 Rules arguably narrowed duties owed to former clients in some respects, while broadening obligations in others.
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