Courts Amend Rule 6.4, Removing Big Chill

By Roy Simon

[Originally published in NYPRR June 2010]

On May 4, 2010, effective immediately, the Administrative Board of the Courts amended Rule 6.4 of the New York Rules of Professional Conduct. This column discusses the scope and history of Rule 6.4, which is entitled “Law Reform Activities Affecting Client Interests,” and then discusses what the Courts did, why they did it, and how the amended version of Rule 6.4 may affect the participation of lawyers in law reform organizations such as bar association committees.

In brief, the original version of New York Rule 6.4 included a sentence that said: “When the lawyer knows that the interests of a client may be adversely affected by a decision [of a law reform organization] in which the lawyer actively participates, the lawyer shall disclose that fact to the client.” That disclosure requirement created what I call a “big chill,” discouraging many lawyers from participating in bar association decisions so that they would not have to disclose to their clients. The Courts have now replaced that sentence with a new one that I believe will not chill participation in law reform activities: “In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other rules, particularly Rule 1.7.” (Rule 1.7 governs conflicts of interest.)

What Does Rule 6.4 Cover?

Let’s begin by establishing the context of Rule 6.4. The rule addresses a lawyer’s participation in “an organization involved in reform of the law or its administration.” I will refer to these organizations in this article simply as “law reform organizations.” neither the rules nor the Comments define these organizations, but I am using the phrase “law reform organization” as an umbrella category for any group that studies or proposes amendments to the law or suggests improvements to the system of justice. most bar association committees are law reform organizations because from time to time they propose amendments to statutes, rules, or regulations (or comment on amendments proposed by others), or they propose new programs or higher levels of funding or new sources of funding to expand rights or improve the quality of judges or ensure swifter justice or more accurate results. Many non-profit organizations, such as civil rights groups, environmental groups, and religious groups, also propose or support improvements in our laws or justice system, and thus fall within the category of law reform organizations.

Rule 6.1 (Voluntary Pro Bono Service) identifies one subset of these organizations. Specifically, Rule 6.1(b)(2) says that pro bono activities meeting the annual 20-hour goal include “activities related to improving the administration of justice by simplifying the legal process for, or increasing the availability and quality of legal services to, poor persons.” Rule 6.4 also encompasses organizations that engage in such activities, but Rule 6.4 is broader than Rule 6.1(b)(2) because Rule 6.4 also covers organizations that engage in law reform activities to benefit society generally, or some group within society other than the poor.

Rule 6.4 apparently does not address a lawyer’s work as a court-appointed lawyer. That subject is addressed in most jurisdictions by a version of ABA Model Rule 6.2 (Accepting Appointments). New York did not adopt Rule 6.2 despite the State Bar’s recommendation, but court appointments are plainly beyond the scope of Rule 6.4. (The State Bar’s proposed version of Rule 6.2, which was much shorter than the ABA version, said simply: “A lawyer shall not seek to avoid appointment by a court to represent a person, except for good cause.” What did the Courts find objectionable about that?)

Nor does Rule 6.4 address a lawyer’s services as a director, officer, or member of a not-for-profit legal services organization. Those services are addressed by Rule 6.3 (Membership in a Legal Services Organization). Nor does Rule 6.4 address a lawyer’s work in most short-term limited legal services programs sponsored by courts, bar associations, or non-profit legal services organizations. Those activities are governed by Rule 6.5 (Participation in Limited Pro Bono Legal Services Programs).

Rather, Rule 6.4 focuses narrowly on a twin set of problems — one problem for lawyers and one problem for organizations — that may arise when lawyers participate in the activities of law reform organizations. The problem for lawyers is that a lawyer’s clients might disagree with or even actively oppose a law reform organization’s proposals. The problem for law reform organizations is that a lawyer’s clients might use their lawyer to steer an organization to recommend or support reforms that the lawyer does not believe in. In other words, a client may use a lawyer as a secret agent (a “mole”) within an organization to persuade the organization to do what the client wants, whether or not that is consistent with the mission and goals of the organization or the beliefs of the lawyer. Rule 6.4 addresses both of these problems.

How the Courts Amended Rule 6.4

Now let’s look at a legislative style version of Rule 6.4 so we can see exactly how the amended version of Rule 6.4 differs from the version adopted on April 1, 2009. The legislative style version of the amended New York Rule reads as follows:

Rule 6.4 Law Reform Activities Affecting Client Interests

A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration, notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer actively participates, the lawyer shall disclose that fact to the organization, but need not identify the client. When the lawyer knows that the interests of a client may be adversely affected by a decision in which the lawyer actively participates, the lawyer shall disclose that fact to the client. In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other Rules, particularly Rule 1.7.

Why did the Courts change the last sentence or Rule 6.4, and what does the change mean to lawyers and the law reform organizations that they serve? To help answer those questions, I will first explore the history of Rule 6.4.

The History of Rule 6.4

The Disciplinary rules in the old Code of Professional responsibility did not contain any direct equivalent of Rule 6.4. However, EC 8-4 covered the same ground. It provided, in relevant part, as follows:

EC 8-4 … Lawyers involved in organizations seeking law reform generally do not have a lawyer-client relationship with the organization. In determining the nature and scope of participation in law reform activities, a lawyer should be mindful of obligations under Canon 5, particularly DR 5-101 through DR 5-110. A lawyer is professionally obligated to protect the integrity of the organization by making an appropriate disclosure within the organization when the lawyer knows a private client might be materially affected. [Emphasis added.]

When the Committee on Standards of attorney Conduct (COSAC) was developing New York’s Proposed Rules of Professional Conduct, it first examined ABA Model Rule 6.4, which provides as follows:

A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client. [Emphasis added.]

By 2005, when COSAC was considering Rule 6.4, forty jurisdictions (including the District of Columbia) had adopted ABA Model Rule 6.4 verbatim. Of the remaining eleven jurisdictions, three states (Ohio, Texas and Virginia) had not adopted Rule 6.4 in any form; two states (Kentucky and Illinois) had adopted versions of Rule 6.4 that were very close to ABA Model Rule 6.4; two jurisdictions (California and Maine) had their own unique rules not based on the ABA Model Rules; three states (Florida, New Hampshire, and Oklahoma) had replaced the ABA phrase “materially benefitted” with the phrase “materially affected,” thus matching EC 8-4; and the 11th jurisdiction — New York — had adopted EC 8-4 but had no Disciplinary Rule on the subject.

COSAC recommended that New York adopt ABA Model Rule 6.4 verbatim, with one minor change — in the second sentence, COSAC substituted the word “affected” for the word “benefitted.” As explained in the COSAC Commentary:

Proposed New York Rule 6.4 is identical to the ABA Model Rule, except that it broadens the circumstance in which disclosure by the lawyer is required from those where a client’s interests may be “materially benefitted” (as in the ABA version) to those in which a client’s interest may be “materially affected” (as currently provided in EC 8-4).

Whatever the precise content of the rule, in my view its main purpose is to provide guidance to lawyers working with law reform organizations, not to impose professional discipline on lawyers who violate its terms. Like Rule 6.1 (Voluntary Pro Bono Service), which expressly is “not intended to be enforced through the disciplinary process,” Rule 6.4 seems more precatory than mandatory. Not surprisingly, therefore, the ABA says that “there are no reported decisions disciplining a lawyer for violating the operative part of Rule 6.4.” [ABA Center for Professional Responsibility, Annotated Model Rules of Professional Conduct 508 (ABA, 6th ed. 2007).]

The Comment to Rule 6.4: ABA vs. New York

Before I go further with the text of Rule 6.4, I will discuss the Comment, which illuminates the meaning and purpose of the rule. COSAC recommended slight changes to the ABA Comment to Rule 6.4, which consists of only one paragraph, and the Comment was further altered in minor ways as it worked its way up through the State Bar process. To save space, I will present the ABA Comment in legislative style to show the additions (in underlined) and deletions (stricken through) made by COSAC and others. The current New York Comment (which was not affected by the amendment to the text) provides as follows:

[1] Lawyers involved in organizations seeking law reform generally do not have a client-lawyer relationship with the organization. Otherwise, it might follow that a lawyer could not be involved in a bar association law reform program that might indirectly affect a client. See also Rule 1.2(b). For example, a lawyer specializing concentrating in antitrust litigation might be regarded as disqualified from participating in drafting revisions of rules governing that subject. In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients. A lawyer’s identification with the organization’s aims and purposes, under some circumstances, may give rise to a personal-interest conflict with client interests implicating the lawyer’s obligations under other Rules, particularly Rule 1.7. A lawyer is also professionally obligated to protect the integrity of the program by making an appropriate disclosure within the organization when the lawyer knows a private client might be materially benefitted affected.

I will now explain each of these five changes to the ABA Comment.

Striking “See also Rule 1.2 (b)”: ABA Model Rule 1.2(b) says: “a lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” a cross-reference to that language does not fit with Rule 6.4. On one hand, a lawyer’s involvement with a law reform organization generally does imply a lawyer’s endorsement of the organization’s views or activities — otherwise, the lawyer would not have gotten involved. On the other hand, the first sentence of the Comment correctly notes that lawyers involved in law reform organizations “generally do not have a client-lawyer relationship with the organization,” so the analogy to client representation in Rule 1.2(b) also does not fit. New York therefore deleted the reference to Rule 1.2(b).

Replacing “specializing” with “concentrating”: This change has no great import. It merely reflects the general prohibition in New York Rule 7.4 (Identification of Practice and Specialty) that a lawyer or law firm “shall not state that the lawyer or law firm is a specialist or specializes in a particular field of law” except under narrow circumstances that seldom applied in New York.

Elaborating on Rule 1.7 conflicts: The ABA treatment of conflicts of interest was a single cryptic sentence: “In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other rules, particularly Rule 1.7.” This sentence — which the Courts have now imported verbatim into the text of New York Rule 6.4 — is ambiguous. When would the “nature and scope” of participation in law reform activities create a conflict under Rule 1.7? COSAC added an example to the Comment: “a lawyer’s identification with the organization’s aims and purposes, under some circumstances, may give rise to a personal-interest conflict with client interests …” COSAC’s own Commentary, in its 2005 proposals, explained that “a sentence has been added highlighting the idea expressed less explicitly in the ABA version …” (I will explore the meaning of COSAC’s new sentence later, when I discuss the language of the Courts’ recent amendment to Rule 6.4.)

Adding “also” in the last sentence: The New York Comment begins by saying that a lawyer is “also professionally obligated to protect the integrity of the program …” (Emphasis added.) The word “also” conveys that this duty to protect the program itself is different from, and in addition to, the lawyer’s duty under Rule 1.7 to protect the lawyer’s clients from adverse effects stemming from the lawyer’s participation in the program.

Changing the law phrase from “materially benefitted” to “materially affected”: Logically, there is no difference between a lawyer’s support for a law reform organization’s decision that may benefit a client and a lawyer’s opposition to a decision that may harm a client. Yet the ABA version of Rule 6.4 requires a lawyer to disclose a client’s interests to the organization only when a client may be materially “benefitted.” COSAC recommended changing “benefitted” to “affected,” in line with old EC 8-4. (Fact: The title of Rule 6.4 from the beginning was “Law Reform Activities Affecting Client Interests,” and it remains so.)

The Courts Rewrite Proposed Rule 6.4 — and the State Bar Objects

When the Courts adopted Rule 6.4 effective April 1, 2009, they changed the COSAC/State Bar proposal in two ways. In one change, the Courts kept the narrower ABA phrase “materially benefitted” instead of COSAC’s broader recommended phrase “materially affected.” Thus, a lawyer in New York had an obligation to disclose to a law reform organization when a decision might help a client but not when a decision might harm a client. In another change, the Courts added a third sentence, written by the Courts, which said: “When the lawyer knows that the interests of a client may be adversely affected by a decision in which the lawyer actively participates, the lawyer shall disclose that fact to the client.” no other jurisdiction in the united States had such a sentence in Rule 6.4 — and no other jurisdiction required lawyers to disclose their law reform activities to clients. Nor had the old Code of Professional responsibility required disclosure to clients. EC 8-4, like the second sentence of New York Rule 6.4, required disclosure only within the organization, not to clients, and even then only when a client’s interests might be materially affected by a decision of the organization.

The second change — the new and unique third sentence — was the troublesome one. I criticized it harshly in NYPRR because it discourages lawyers from fully participating in law reform activities — see Roy Simon on the New Rules: Rule 4.1 Through Rule 8.4 (Dec. 2009). I wrote:

The price exacted by Rule 6.4 may be high. Lawyers do not want to say to their clients, “I want you to know that I am working with a law reform organization and am actively participating in formulating a decision that could adversely affect your interests.” How will the client respond? Will the client say: “Gee, Roy, that’s great. We admire your civic spirit — … it’s about time someone amended the law and cracked down on us.” I … don’t … think … so. The client is much more likely to say, “Why are you doing that? You know how competitive our business is and how tough the economic climate is right now, and you know how much we contribute to the country — jobs, innovation, products and services that people want, sponsorship of charitable events. We would prefer that you not participate in the debate over that decision. In fact, if you think our company is doing something wrong, maybe you don’t want us as a client anymore.”

No doubt most clients will respond somewhere in between — maybe something like, “Thanks for telling us. We hope you will convey to the organization how much our company contributes to the world, and how much we are already struggling under the weight of government regulations” — but many lawyers will not want to find out the client’s response. Instead, the lawyers will recuse themselves from participating in decisions that could harm the client, or will resign from the committee or organization altogether to avoid getting into such an awkward situation. Either way, law reform organizations will be deprived of a lot of legal talent as lawyers restrict their law reform activities to avoid uncomfortable conversations with clients.

I should have added that the disclosure requirement might cause some lawyers to shift their views within the law reform organization to support an adversely affected client’s positions. That way, when the lawyer disclosed the participation and the client asked, “Which side are you on?” the lawyer could cheerfully reply, “I’m on your side!” This might be a subconscious shift, but the danger to law reform work was real.

The State Bar also criticized the last sentence and asked the Courts to amend the rule. The State Bar’s criticisms fell into three main categories. First, the State Bar pointed out that the final sentence of Rule 6.4 chilled lawyers from participating in law reform activities. As soon as the rule took effect, on April 1, 2009, some members of the New York State Bar Association’s House of Delegates concluded that Rule 6.4 mandated that their recusal not only from voting on certain reports prepared by the association’s sections and committees, but also from participating in debates over those reports. For example, at the April 2009 House of Delegates meeting, which took place immediately after Rule 6.4 took effect, the House considered the report of the Task Force on Global Warming recommending measures for reducing greenhouse gas emissions. Eight members of the House of Delegates specifically requested to be listed as abstaining from participation in the debate and vote. If they had participated, these delegates apparently believed, the last sentence of Rule 6.4 would have required them to disclose to certain clients that they had participated in discussing and voting upon a report that contained recommendations that might (if adopted) have an adverse impact on those clients.

Second, Rule 1.7 (Conflict of Interest: Current Clients) was already adequate to address the problem of law reform activities that could harm client interests. The State Bar recognized that in some situations a lawyer’s participation in law reform activities might give rise to a personal conflict of interest with a client, but — as expressly noted in the Comment to Rule 6.4 — those conflicts were governed by Rule 1.7. If a personal conflict existed, then Rule 1.7 would require the lawyer not merely to disclose the conflict to the client, but also to obtain the client’s informed consent, confirmed in writing. Because personal conflicts arising from law reform activities were already governed by Rule 1.7, the blanket disclosure requirement in Rule 6.4 was unnecessary.

Third, if Rule 6.4 seemed one-sided because it required disclosure to a law reform organization only when a client might be “benefitted” by a decision but not when a client might be harmed by a decision, that problem could be remedied by reverting to the language originally proposed by COSAC, which would require lawyers to disclose to the organization (but not to the client) when a client’s interest might be materially “affected,” positively or negatively. (The Courts never publicly voiced a concern about the one-sided nature of Rule 6.4. I’m just speculating about what might have led the Courts to add the third sentence in Rule 6.4 as originally adopted.)

The Courts Amend Rule 6.4

The State Bar engaged in discussions with the Courts for many months, and draft language for amending the rule slowly worked its way through the administrative Board of the Courts. Eventually, on May 4, 2010, the Courts announced an amendment to Rule 6.4. The amendment deletes the existing third sentence of Rule 6.4 and replaces it with the following sentence, which is taken verbatim from a sentence in the ABA Comment to Model Rule 6.4: “In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other rules, particularly Rule 1.7.” In other words, the problem of potentially adverse effects on clients arising out of a lawyer’s law reform work is now left entirely to Rule 1.7, as it should be.

What does the amendment mean? How will it apply in practice? In keeping with their tradition, the Courts did not issue any guidance on this meaning of the amendment. I am writing this column in the hope of providing some guidance, illuminating the meaning of the amendment for lawyers who serve on law reform organizations, or are thinking about serving on them.

Since the problem has now been left to Rule 1.7, let’s look at Rule 1.7, and then at situations that lawyers might encounter in their work with law reform groups. Rule 1.7(a) addresses two kinds of conflicts: (1) “differing interests” (which arise when the interests of two clients may conflict), and (2) “personal interests” conflicts (which arise when a lawyer’s personal interests may conflict with a client’s interests). Since a lawyer’s involvement with a law reform organization generally does not create an attorney-client relationship with the organization (see the first sentence of Comment 1 to Rule 6.4), we are interested only in personal interest conflicts. (of course, if a lawyer actually represents a law reform organization — e.g., provides legal services to form the organization, advises the organization on employment matters, or represents the organization as an entity in litigation — then the organization is a client like any other organizational client and the “differing interests” branch of Rule 1.7 will apply to the organization as it would to any other client. But that is a relatively rare situation and is not the focus or Rule 6.4 or this column.)

The “personal interests” branch of Rule 1.7(a) provides as follows:

Except as provided in paragraph (b), a lawyer shall not represent a client if a reasonable lawyer would conclude that …

(2) there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s financial, business, property or other personal interests.

When would a reasonable lawyer perceive a “significant risk” that the lawyer’s professional judgment on a client’s behalf will be “adversely affected” by the lawyer’s “personal interests” arising from service on a law reform organization? The Comment to New York Rule 6.4 provides useful guidance: “a lawyer’s identification with the organization’s aims and purposes may under some circumstances give rise to a personal interest conflict with client interests …”

Let’s apply this to the global warming example that vexed the State Bar at its April 2009 House of Delegates meeting.

Suppose a lawyer represents the energy company BP whenever litigation is brought against the company after accidents occur at the company’s facilities (e.g., blow-outs at offshore oil drilling operations, refinery explosions, pipeline leaks). In the House of Delegates, the lawyer’s role is simply to participate in the discussion and debate and to vote up or down on the report. Under Rule 1.7(a)(2), the only question is whether there is a “significant risk” that the lawyer’s “professional judgment” on behalf of the client will be “adversely affected” by the lawyer’s participation in the discussion and vote on the global warming report. If the lawyer views her role as that of a public citizen who desires to improve the world by improving the law, her mere participation in the House of Delegates debate and vote is unlikely to have any effect on her professional judgment in her day-to-day work for BP. In that case, her participation does not create a personal interest conflict under Rule 1.7(a)(2) and she has no duty to disclose her participation to her client or to obtain her client’s informed consent.

Now let’s change the facts a bit. Suppose that instead of being one of hundreds of members of the House of Delegates, the lawyer in our scenario has been named Chair of the New York State Bar association Global Warming Task Force, whose mission includes “review[ing] New York State statutes and regulations, taking into account the existing and pending federal laws and local initiatives, in order to address the current global warming crisis.” [See www.nysba.org/global-warmingtaskforcereport.] At the outset, perhaps the lawyer is neutral, or even a skeptic, about global warming, and she sees no significant risk that her personal interests in leading the Task Force will adversely affect her independent professional judgment in representing BP.

After a few months of studying global warming, however, the scientific evidence on climate change causes the lawyer to believe that global warming is a serious threat to the planet. She begins to feel less enthusiastic about her role as a litigator defending the company’s fossil fuel operations against liability. At that point, she may indeed have begun to “identif[y] with the organization’s aims and purposes” (Rule 6.4, Cmt. 1) to the point where there is a “significant risk that the lawyer’s professional judgment on behalf of a client [BP] will be adversely affected by the lawyer’s … personal interests” in her work on the Task Force (Rule 1.7). In other words, the lawyer has a personal interest conflict. The lawyer therefore may not continue the representation of BP unless the lawyer meets the criteria of Rule 1.7(b). If the lawyer “reasonably believes” that she “will be able to provide competent and diligent representation” to BP per Rule 1.7(b)(1), then she must obtain BP’s “informed consent, confirmed in writing” before continuing to represent BP. That is a big hassle.

Now the problem becomes tricky. What if BP will not consent to the conflict? Can the lawyer resolve the conflict by resigning from the Global Warming Task Force? Probably not. The source of the conflict is not her work on the Task Force per se, but rather the doubts she has developed by studying global warming. As long as these doubts remain strong enough to create a significant risk of adversely affecting her professional judgment on behalf of BP, she has a conflict. Moreover, New York’s version of Rule 1.10 (Imputation of Conflicts of Interest) — unlike the ABA’s version — imputes personal interest conflicts to all other lawyers associated with the firm. Therefore, if she cannot cure her conflict (and she probably cannot, short of brainwashing), then no other lawyer in the firm may represent BP without obtaining its informed consent, confirmed in writing.

Fortunately, I think this conflict scenario is pretty farfetched. I doubt that many lawyers will get so caught up in their law reform work that they consider their professional judgment on behalf of clients to be at significant risk. I doubt that more than a tiny handful of lawyers will conclude that their law reform work creates a personal interest conflict under Rule 1.7(a)(2), any more than a lawyer’s personal beliefs based on watching An Inconvenient Truth or reading newspaper and magazine articles about global warming create personal interest conflicts. Remember, the question is not whether the lawyer will pull punches when working with the law reform organization, but rather whether the lawyer will pull punches when representing the client (BP). Thus, while lawyers ought to keep Rule 1.7 in mind when participating in law reform activities, I will be surprised if I ever hear that a lawyer has resigned from representing a client because of a Rule 1.7 conflict arising out of work with a law reform organization.

Of course, Rule 6.4 will still sometimes require lawyers to make disclosures to law reform organizations. Per the second sentence of Rule 6.4, “When the lawyer knows that the interests of a client may be materially benefited by a decision in which the lawyer actively participates, the lawyer shall disclose that fact to the organization, but need not identify the client.” And law reform organizations remain free to promulgate their own internal policies that go even further. For example, a law reform organization can require lawyers to disclose whenever a client will be materially “affected” by a decision in which the lawyer participates. But at least lawyers will now be well insulated against professional discipline for failing to inform clients that they are participating in law reform work that might harm a client’s interests. Lawyers are once again free to express their heartfelt personal beliefs in their work with bar associations and other law reform organizations that are so crucial to our society, without the need to disclose those activities to clients.

Conclusion: A Major Improvement

The amendment to Rule 6.4 represents a major change from the original version of Rule 6.4. Under the disclosure language of the original last sentence of Rule 6.4, the question was not whether the lawyer’s participation might have a potential adverse impact on the lawyer’s professional judgment but rather whether participation might have a potential adverse impact on the client’s interests. Even if a lawyer had the ability simultaneously to participate in a law reform organization’s decision that might adversely affect a client and to continue representing the client competently and diligently, the last sentence of original Rule 6.4 required the lawyer to notify the client. Client consent was not needed to satisfy Rule 6.4, but if a lawyer were taking positions within an organization that were contrary to a client’s wishes, the client could always say to its lawyer, “We’d feel more comfortable working with lawyers who agree with our company’s goals and philosophy, and who see our company as a positive force in the world. If you want to keep working with that organization against the interests of our company, we’ll have to find another lawyer.”

A lawyer could avoid this awkward confrontation with a client either by recusing herself from participation in the law reform organization’s decisions (diminishing her value to the organization) or by participating only in ways that would advance the interests of the client (which would please the client but might also diminish the lawyer’s value to the law reform organization). In any event, under the amendment to Rule 6.4, lawyers are no longer faced with the dilemma that was created by the original Rule 6.4. The problem has now been shifted to Rule 1.7(b)(2), and I think it will be rare that participation in law reform work will create personal interest conflicts for New York’s lawyers under that rule. Thus, the amendment to Rule 6.4 is a helpful one, and it recognizes the immense value of lawyer participation in law reform organizations. Hats off to the Courts for making this change.

Professor Roy Simon is the author of Simon’s New York Rules of Professional Conduct Annotated. The brand new 2015 edition analyzes more than 100 new cases, ethics opinions, and other developments critical to New York practice. It’s the legal ethics bible for all New York-area lawyers. To purchase, click here.

In addition, Professor Simon advises lawyers and law firms on questions of professional conduct and serves as an expert witness in cases raising issues of lawyer conduct. You may reach Professor Simon at 516-463-5289 or Roy.Simon@hofstra.edu.

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