Ethics Roundup For 2013: Six Developments That Affect The Way We Practice Law

Our work as professional responsibility attorneys over the past year has given us a front row seat to the most bedeviling ethical conundrums faced by lawyers. In our final Ethics Alert of 2013, we re-cap six important developments for New York-area lawyers, along with tips for staying on the right side of the line. But before we get to the list, we wanted to share the good news that, effective January 1, 2014, Nicole Hyland, author of many of our alerts, has been named a partner in our expanding Professional Responsibility Group. The group will continue to counsel lawyers on their ethical obligations, assist them in responding to disqualification motions, and represent them in disciplinary proceedings. We will also continue to advise lawyers and law firms on partnership agreements, partnership disputes, and lateral transitions. In addition, our professional responsibility lawyers will continue to serve the legal community through their work on the most influential ethics committees and on various ethics "hotlines" that field questions from lawyers throughout the state.

Now, on to the list.

1. New York Has the Rules Now, Not the Code

   Until 2009, New York lawyers were governed by the Code of Professional Responsibility. That year, New York became the 49th State (with California the lone holdout) to implement a version of the ABA Model Rules of Professional Conduct. Yet, many of New York's older ethics opinions and cases, which were decided under the Code, will continue to be extremely relevant to this practice area for many years to come. Unfortunately, this seems to cause a great deal of confusion for New York lawyers who do not regularly engage in the area of professional responsibility law. Because of this confusion, we continue to see motions and other papers that cite to the Code, instead of the Rules, even where the conduct occurred after the Rules were adopted. (Note that conduct prior to April 1, 2009 is still covered by the Code.) We have observed similar confusion from some of our hotline callers.

   Tip: When analyzing your ethical obligations as a New York lawyer, the place to start is with the relevant provision of the New York Rules of Professional Conduct. A copy of the Rules (with the comments) can be found here on the New York State Bar Association website. Naturally, as with any research project, reviewing the relevant rule is just the beginning. But starting in the right place gives you the best chance of finding the right...