Major Differences Between COSAC Proposals & Current N.Y. Lawyer’s Code of Professional Responsibility (Pt. 2)

[Originally published in NYPRR January 2006]

[Editor’s Note: The Dec. 2005 issue of NYPRR contained COSAC’s proposals for changes in Model Rule 1. This issue contains the proposed changes in Model Rule 2 and Model Rule 3.]

Executive Summary of Major Differences

The proposed New York Rules of Professional Conduct differ in many ways from the current New York Lawyer’s Code of Professional Responsibility. This segment of COSAC’s report briefly highlights the most significant differences. (Where the language of the proposed rules is substantially similar to the language of the existing New York Code of Professional Responsibility, this segment of the Report is silent. Thus, silence indicates that a proposed rule generally tracks the language of the equivalent Code provision.)

Note: All citations to Disciplinary Rules (DRs) and Ethical Considerations (ECs) refer to the current New York Lawyer ’s Code of Professional Responsibility, which is frequently referred to herein as “the New York Code” or simply “the Code.” Citations to Rules (e.g., Rule 1.6 and to “Comments” refer to the New York Rules of Professional Conduct proposed by COSAC.

Rule 2.3: Evaluation for Use by Third Persons. Rule 2.3(a) generally permits a lawyer to evaluate a client’s matter for a third person. For example, (i) a lawyer for the seller of properly may be asked to provide the buyer with an opinion that the seller has good title, (ii) a lawyer for a securities issuer may be asked to provide the SEC with an opinion regarding the legality of the securities. However, if the evaluation is likely to affect the client’s interests “materially and adversely,” then under Rule 2.3(b) the lawyer shall not provide the evaluation absent the client’s informed consent. Rule 2.3(c) makes clear that information relating to the evaluation is protected by Rule 1.6 (the basic confidentiality rule). The current New York Code has no equivalent to Rule 2.3, but the rule reflects common practice.

Rule 2.4: Lawyer Serving as Third-Party Neutral. Lawyers often serve as mediators, arbitrators, or other types of third- party neutrals who are not representing a client in a matter, but no Disciplinary Rule in the current New York Code governs lawyers in those roles. Rule 2.4 supplies some guidance. Rule 2.4(a) defines the term “third-party neutral.” Rule 2.4(b) requires a lawyer serving as a third-party neutral to “inform unrepresented parties that the lawyer is not representing them,” and to explain the difference between a third-party neutral and a client representative to a party who does not understand the lawyer’s role as a third-party neutral.

Rule 3.1: Meritorious Claims and Contentions. Rule 3.1(a), which is similar to DR 7-102(A)(1)-(2), prohibits a lawyer from bringing or defending a proceeding or asserting or controverting an issue in the proceeding unless the lawyer has a basis in law and fact that is not “frivolous.” Rule 3.1(b) defines the term “frivolous” in a fashion consistent with 22 NYCRR §130-1.1, which is the main sanctions provision in New York’s court rules. The current Code does not define “frivolous.”

Rule 3.2: Delay of Litigation. Rule 3.2 prohibits a lawyer representing a client from using means that have “no substantial purpose other than to delay or prolong the proceeding or to cause needless expense.” The rule resembles DR 7-102(A)(1), which prohibits steps that would serve “merely to harass or maliciously injure another.”

Rule 3.3: Candor Toward the Tribunal. Rule 3.3 governs a lawyer representing a client before a tribunal. Rule 3.3(a) provides that a lawyer shall not knowingly (1) make a false statement of fact or law to a tribunal, or fail to correct a false statement of material fact or law previously made to the tribunal, or (2) fail to disclose directly adverse controlling authority not disclosed by opposing counsel, or (3) offer evidence that the lawyer “knows to be false.” Rule 3.3(a)(3) further provides that if a lawyer, the lawyer ’s client, or a witness called by the lawyer has offered material evidence and the lawyer “comes to know of its falsity,” the lawyer “shall take reasonable remedial measures, including, if necessary disclosure to the tribunal.” This mandate arguably goes beyond DR 7-102(B) but is consistent with recent decisions of the New York Court of Appeals.

Rule 3.3(b), which goes well beyond the current Code, requires a lawyer representing a client in an “adjudicative proceeding” to take “reasonable remedial measures, including, if necessary, disclosure to the tribunal,” if the lawyer “knows” that a client or any other person intends to engage or has engaged in “criminal or fraudulent conduct related to the proceeding,” including bribery, witness intimidation, unlawfully destroying or concealing documents, and other specified wrongs.

Rule 3.3(c) provides that the mandatory disclosure duties imposed by Rules 3.3(a) and (b) “continue to the conclusion of the proceeding and apply even if compliance requires disclosure of confidential information.” Moreover, after a proceeding concludes, a lawyer “may” reveal confidential information to the extent the lawyer “reasonably believes necessary to rectify the consequences of a client’s fraud on the tribunal.” These provisions give lawyers greater power to correct fraud on a tribunal than DR 4-101 and DR 7-102(B) provide.

Rule 3.3(d), which has no equivalent in the current Code, provides that a lawyer in an ex parte proceeding must inform the tribunal of “all material facts known to the lawyer” — whether or not the facts are adverse — that will enable the tribunal to make an informed decision.

Rule 3.4: Fairness to Opposing Party and Counsel. Rule 3.4 parallels several existing New York Disciplinary Rules designed to ensure fairness to opposing parties and their counsel, and adds some new provisions covering situations not addressed in the current Code.

Rule 3.4(e), which has no direct equivalent in the current Code, provides that a lawyer shall not “make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party.”

Rule 3.4(g), which also has no equivalent in the current Code, provides that a lawyer shall not ask a person other than a client to refrain from voluntarily giving relevant information to another party unless: “(1) the person is a relative or an employee, former employee or other agent of a client; and (2) the lawyer reasonably believes that the person’s interest will not be adversely affected by refraining from giving such information.”

Rule 3.4(h) provides that a lawyer shall not present, participate in presenting, or threaten to present criminal charges to obtain an advantage in a civil matter “when doing so is prohibited by law.” This broadens the scope of DR 7-105 by removing the qualification that the lawyer ’s actions be “solely” to obtain an advantage in a civil matter, but simultaneously narrows the scope of DR 7-105 by prohibiting the conduct only when “prohibited by law.”

Rule 3.7: Lawyer as Witness. Rule 3.7 greatly simplifies DR 5-102, which governs lawyers who wish to act (or are acting) as both advocate and witness in the same proceeding. Rule 3.7(a) prohibits a lawyer from acting as “advocate at a trial” in which the lawyer is likely to be a “necessary” witness on a “significant issue of fact” unless various exceptions apply. Four of these exceptions are substantially identical to exceptions found in DR 5-102(A)(1)-(4), but the proposed rule also permits testimony “authorized by the tribunal with good cause.”

Rule 3.8: Special Responsibilities of a Prosecutor. Rule 3.8 substantially expands the ethical responsibilities of prosecutors and other government lawyers, which are barely addressed in the existing Code.

Rule 3.8(a) expands on DR 7-103(A) by adding that a prosecutor shall not continue to prosecute a charge that the prosecutor “knows or reasonably should know is not supported by evidence sufficient to establish a prima facie showing of guilt.”

Rule 3.8(b), which has no equivalent in the existing Code, provides that a prosecutor shall not seek to prevent a person under investigation or an accused person from exercising the right to counsel.

Rule 3.8(c), which has no equivalent in the existing Code, provides that a prosecutor shall not seek to obtain from an unrepresented accused a waiver of important pretrial rights.

Rule 3.8(d) is similar to DR 7-103(B) but (1) distinguishes between the sentencing stage and other stages of prosecution and (2) recognizes that a court may relieve a prosecutor of the disclosure obligations.

Rule 3.8(e), which has no equivalent in the existing Code, prohibits a prosecutor from subpoenaing a lawyer to testify about a present or former client unless the information sought is not privileged, is essential, and cannot feasibly be obtained in any other way.

Rule 3.8(f), which significantly expands DR 7-107(A), restricts a prosecutor’s right to make extrajudicial statements that have a “substantial likelihood of heightening public condemnation of the accused,” and requires a prosecutor to exercise reasonable care to prevent those assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Rule 3.8(g), which has no equivalent in the existing Code, provides that when a prosecutor learns about new evidence creating a “reasonable likelihood” that a convicted defendant did not commit the offense for which he was convicted, the prosecutor shall (1) disclose the evidence to the defendant and an appropriate court or authority, and (2) investigate the guilt or innocence of the convicted defendant.

Rule 3.8(h), which has no equivalent in the existing Code, provides that when a prosecutor knows of “clear and convincing evidence” that an innocent person has been convicted, the prosecutor must “take appropriate steps to set aside the prior conviction.”

Rule 3.9: Advocate in Nonadjudicative Proceedings. Rule 3.9, whose closest analog in the existing Code is EC 8-4, provides that a lawyer who communicates with a legislative body or administrative agency in a representative capacity in connection with a nonadjudicative matter shall (1) disclose that the appearance is in a representative capacity, and (2) comply with specified Rules of Professional Conduct.

DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.

NYPRR Editor