New York Professional Responsibility Developments Since November 2011: Part 1

By Roy D. Simon, Distinguished Professor of Legal Ethics Emeritus

I had the privilege of working with Lazar Emanuel from the time he first conceived of New York Professional Responsibility Reporter (NYPRR). He called me to discuss his idea late in 1997, and I met with him in January 1998 when all he had was the title of the publication and a mock-up with Latin nonsense words where the copy would go. By April 1998 he had published the first issue, and I had the immense pleasure of working with him on an article for every monthly issue for the next 13 years. Spending a few days each month researching and writing a column became a ritual. But that all ended with Lazar’s sudden and saddening death in November 2011. Lazar had spent enormous amounts of time on NYPRR — far more than economically justified — because he loved the publication and he loved and lived professional responsibility. I heard that even on his deathbed he asked how the next issue was coming along. Without Lazar’s unflagging energy and his sense of mission, NYPRR could not continue.

Fortunately, Ron Minkoff of Frankfurt Kurnit Klein & Selz and Susan Fortney of the Maurice A. Deane School of Law at Hofstra University have picked up Lazar’s mantle by founding a new publication, New York Legal Ethics Reporter (NYLER), that will cover professional responsibility developments in New York with the same commitment to quality and relevance, and the same dedication to high professional values, that characterized Lazar Emanuel.

As my first article in this welcome new publication, I will try to make up for lost time by recounting some of the many developments regarding professional responsibility that have occurred in New York since Lazar Emanuel’s death more than three years ago. I will begin with developments at the heart of our regulatory universe: the New York Rules of Professional Conduct. In this issue, I will cover amendments to three rules that took effect in 2012 — Rule 4.2 (the no-contact rule), Rule 3.8 (which regulates prosecutors), and Rule 7.4 (governing claims of specialty certification).

New Rule 4.2(c): Lawyer-Parties and No-Contact Rule

In late September 2011, the New York State Bar ethics committee issued N.Y. State 879, which concluded: “When a lawyer is representing himself pro se or is being represented by his own counsel with respect to a matter, the lawyer’s direct communications with a counterparty are governed by the no-contact rule, Rule 4.2.” This conclusion was consistent with the overwhelming majority of cases and ethics opinions from other jurisdictions. Because the conclusion was not obvious from the text of Rule 4.2, however, the State Bar’s Committee on Standards of Attorney Conduct (COSAC) decided to codify it in Rule 4.2 (“Communication with Person Represented by Counsel”).

In November 2011, while COSAC was busy drafting proposed new language for Rule 4.2, Lazar Emanuel unexpectedly died. Two months later, at the State Bar’s Annual Meeting in January 2012, COSAC proposed a new Rule 4.2(c) (as well as a new explanatory Comment [12A] to explain it). The House of Delegates approved, and the State Bar soon forwarded the black letter text to the Administrative Board of the Courts for approval. On Dec. 20, 2012, effective immediately, the Administrative Board approved the following new paragraph (c) of Rule 4.2:

(c) A lawyer who is acting pro se or is represented by counsel in a matter is subject to paragraph (a), but may communicate with a represented person, unless otherwise prohibited by law and unless the represented person is not legally competent, provided the lawyer or the lawyer’s counsel gives reasonable advance notice to the represented person’s counsel that such communications will be taking place.

Comment [12A], which then took effect automatically based on the State Bar’s prior approval, explained the new language as follows:

[12A] When a lawyer is proceeding pro se in a matter, or is being represented by his or own counsel with respect to a matter, the lawyer’s direct communications with a counterparty are subject to the no-contact rule, Rule 4.2. Unless authorized by law, the lawyer must not engage in direct communications with a party the lawyer knows to be represented by counsel without either (i) securing the prior consent of the represented party’s counsel under Rule 4.2(a), or (ii) providing opposing counsel with reasonable advance notice that such communications will be taking place.

The amendment to the black letter text of Rule 4.2 deserves an important footnote. In April 2012, not long after the Courts received the State Bar’s report recommending the adoption Rule 4.2(c), the Courts did something that is routine in many other jurisdictions but was new in New York — the Courts posted the proposed amendments to the Rule 4.2 for public comment. (The State Bar’s recommendation and report on Rule 4.2 is still available at http://bit.ly/1tfO7SP.) This was the start of something big. Since then, the Courts have regularly posted nearly all of the proposed amendments to the New York Rules of Professional Conduct, as well as to other court rules significantly affecting law practice. The Courts also post public comments on pending proposals. If you have not already visited the site, I strongly urge you to check it out and click around at http://www.nycourts.gov/rules/comments/index.shtml.

Rule 3.8: Post-Conviction Duties for Prosecutors

Effective July 1, 2012, the Courts added three new paragraphs to Rule 3.8 (“Special Responsibilities of Prosecutors and Other Government Lawyers”). The new paragraphs impose certain post-conviction responsibilities on prosecutors, and their adoption in New York has a long back story. In 2008, spurred by a report from the New York City Bar Committee on Professional Responsibility written by Professors Bruce Green of Fordham and Ellen Yaroshefsky of Cardozo, the ABA approved new paragraphs in Rule 3.8. For the first time, those new paragraphs imposed post-conviction duties on prosecutors who learn of “new, credible and material evidence” that a person was convicted of a crime he did not commit. COSAC recommended similar provisions for New York, but when the Courts adopted the New York Rules of Professional Conduct effective April 1, 2009, they did not adopt them.

Despite that initial rejection, the City Bar continued its efforts to persuade the Courts to adopt post-conviction provisions. The negotiations were not public, and for a long time it seemed that nothing was happening. But in Spring 2012 the Courts announced, to surprise and applause, that it had approved new language in New York Rule 3.8 generally modeled on ABA Model Rule 3.8(g)–(h) (with some differences). The new paragraphs, which took effect on July 1, 2012, provide as follows:

(c) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall within a reasonable time:

(1) disclose that evidence to an appropriate court or prosecutor’s office; or

(2) if the conviction was obtained by that prosecutor’s office,

(A) notify the appropriate court and the defendant that the prosecutor’s office possesses such evidence unless a court authorizes delay for good cause shown;

(B) disclose that evidence to the defendant unless the disclosure would interfere with an ongoing investigation or endanger the safety of a witness or other person, and a court authorizes delay for good cause shown; and

(C) undertake or make reasonable efforts to cause to be undertaken such further inquiry or investigation as may be necessary to provide a reasonable belief that the conviction should or should not be set aside.

(d) When a prosecutor knows of clear and convincing evidence establishing that a defendant was convicted, in a prosecution by the prosecutor’s office, of an offense that the defendant did not commit, the prosecutor shall seek a remedy consistent with justice, applicable law, and the circumstances of the case.

(e) A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (c) and (d), though subsequently determined to have been erroneous, does not constitute a violation of this rule.

Rule 3.8(e) is taken verbatim from Comment [9] to ABA Model Rule 3.8, which does not include it in the text. Prosecutors pressed to elevate the “good faith” language to the text of New York’s version of Rule 3.8, because they were concerned that they could be disciplined for deciding in good faith not to investigate new evidence. Prosecutors still have to act in good faith, but as long as they do they cannot be disciplined under Rule 3.8(c) or (d).

Of course, the adoption of new black letter paragraphs (c), (d), and (e) in New York Rule 3.8 triggered the need for amendments to the Comments to New York Rule 3.8. The Comments were a problem from the beginning. Even though the New York Courts did not adopt post-conviction provisions in 2009, COSAC took an aggressive position with the Comments. For example, the original Comment [6B] to New York Rule 3.8 provided as follows:

[6B] The prosecutor’s duty to seek justice has traditionally been understood not only to require the prosecutor to take precautions to avoid convicting innocent individuals, but also to require the prosecutor to take reasonable remedial measures when it appears likely that an innocent person was wrongly convicted. Accordingly, though not required by these Rules, when a prosecutor comes to know of new and material evidence creating a reasonable likelihood that a person was wrongly convicted, the prosecutor should examine the evidence and undertake such further inquiry or investigation as may be necessary to determine whether the conviction was wrongful. ***.

Comment [6B] and others like it came under fire in 2010, so the State Bar added qualifying phrases such as “though not required by these Rules …” But effective July 1, 2012, post-conviction steps were required by the Rules. COSAC therefore went back to the drawing board to revise the Comments to take the new black letter text into account. But after negotiating with prosecutors, COSAC settled on a rather bland version of the Comments patterned very closely on the equivalent ABA Comments. At its November 2012 quarterly meeting, the State Bar House of Delegates deleted former Comments [6B]–[6E] and replaced them with new Comments [7]–[9], effective immediately.

Rule 7.4: Claims and Disclaimers Regarding Specialization

Claims of specialization have long been a sore point in New York. According to the ABA Standing Committee on Specialization (http://bit.ly/1rmzQD2), 11 states have programs that (i) offer specialty certification to lawyers in various fields of law, and/or (ii) accredit private specialty certification programs. Another seven states accredit private specialty certification programs but do not offer them.

New York is not one of the states offering or accrediting specialty certification programs, and never has been. On the contrary, until 1999, New York did not permit lawyers to claim specialty certification at all. Until June 30, 1999, the relevant provision in the New York Code of Professional Responsibility, DR 2-105(B), provided as follows:

A lawyer who is certified as a specialist in a particular area of law or law practice by the authority having jurisdiction under the laws of this state over the subject of specialization by lawyers may hold himself or herself out as a specialist, but only in accordance with the rules prescribed by that authority. [Emphasis added.]

The problem was that there was no New York “authority” with jurisdiction over specialization by lawyers. Thus, New York neither granted specialty certification directly nor recognized specialty certifications conferred directly by other states or conferred by private organizations accredited by the ABA or by other states.

In 1999, however, the Courts adopted new Disciplinary Rules drafted by the Krane Committee, including a new DR 2-105(C) providing that a lawyer “may state that the lawyer has been recognized or certified as a specialist only as follows:”

1. A lawyer who is certified as a specialist in a particular area of law or law practice by a private organization approved for that purpose by the American Bar Association may state the fact of certification if, in conjunction therewith, the certifying organization is identified and the following statement is prominently made: “The [name of the private certifying organization] is not affiliated with any governmental authority. Certification is not a requirement for the practice of law in the State of New York and does not necessarily indicate greater competence than other attorneys experienced in this field of law.” *** [Emphasis added.]

A companion provision, DR 2-105(C)(2), imposed nearly identical disclaimer requirements on a lawyer who was certified as a specialist in a particular area of law or law practice by “the authority having jurisdiction over specialization under the laws of another state… .”

This was a distinct improvement — at least it granted legitimacy to New York lawyers certified as specialist by state-recognized or ABA-accredited organizations — but the required disclaimer was a damper. In 2000, it was challenged in federal court by a Buffalo personal injury lawyer named Michael Hayes (http://www.jmichaelhayes.com/), who had been investigated by the grievance committee for advertising his specialty certification on a billboard even though he had put the required disclaimer in six-inch-high letters, and had been threatened for failing to include the disclaimer. Hayes lost in the federal district court, but in March 2012, in Hayes v. New York Attorney Grievance Committee of the Eighth Judicial District, 672 F.3d 158 (2d Cir. 2012) (Jon Newman, J.), the Second Circuit struck down the disclaimer on First Amendment grounds, and held that the “prominently made” requirement was unconstitutional as applied.

The New York State Courts responded to the Hayes decision in two steps. First, effective July 1, 2012, the Courts formally deleted the disclaimer language in Rule 7.4(c)(1) and (2) that had been held unconstitutional in Hayes. Second, on May 31, 2013, the courts circulated for public comment two alternative proposals for a new Rule 7.4(c)(3) that would set forth specific criteria for determining whether a lawyer had “prominently made” the remaining required disclaimer making clear that the authority granting specialty certification either was not a governmental entity or was not from New York.

The alternatives proposed by the Courts covered both written and spoken disclaimers.

For spoken disclaimers, the Courts offered only one choice:

(ii) when spoken aloud, it [the disclaimer] is intelligible to the average person, and is in a cadence no faster, and a level of audibility no lower, than the cadence and level of audibility used to state the fact of certification.

But if the disclaimer was written, then it would be considered “prominently made” only if it was “clearly legible and capable of being read by the average person” and, in addition, was either “in bold type face and upper case letters in a font size at least as large as the largest text used to state the fact of the certification” (Alternative 1) or “at least two font sizes larger than the largest text used to state the fact of certification” (Alternative 2).

During the public comment period, COSAC protested. COSAC said:

[O]btaining a specialty certification *** is both difficult and commendable. In our view, lawyers wishing to advertise their accomplishment should not face an undue regulatory burden.

COSAC therefore recommends that the requirement of legibility and audibility be confined to requiring that the disclaimers be in the same font size as the statement of certification itself or, if spoken, the same cadence and volume. …

COSAC also argued for shortening the required disclaimer. The Courts gave COSAC half a loaf — they shortened the disclaimer but imposed Alternative 2 on lawyers advertising a specialty certification, whether the certification is granted by “a private organization approved for that purpose by the American Bar Association” or by “the authority having jurisdiction over specialization under the laws of another state … .” Amended Rule 7.4(c)(1)–(2) now requires a lawyer claiming specialty certification from an ABA-accredited private organization to “prominently” state the following disclaimer: “This certification is not granted by any governmental authority” — or if the certification is from another state, the lawyer must “prominently” state: “This certification is not granted by any governmental authority within the State of New York.” As for whether the disclaimer is “prominently made,” Rule 7.4(c)(3) as adopted provides as follows:

(c)(3) A statement is prominently made if: (i) when written, it is clearly legible and capable of being read by the average person, and is in a font size at least two font sizes larger than the largest text used to state the fact of the certification; and (ii) when spoken aloud, it is intelligible to the average person, and is at a cadence no faster, and a level of audibility no lower, than the cadence and level of audibility used to state the fact of certification.

The Courts sorted out the public comments relatively quickly. Both the shortened disclaimers and the new subparagraph (c)(3) took effect on Jan. 1, 2014.

Conclusion: Process Is Getting Better

New York has always been active in the area of lawyer regulation, and the time since 2011 is no exception. The overarching story in the three rule amendments I covered this month is that the process for amending the rules is generally getting better. The Courts seem more receptive to input from the bar, and the Courts now actively seek public comment on rule changes before putting them into effect. In my view, a better process leads to a better product. But sometimes the Courts get out ahead of the bar and the public — which seems to have happened in the area of pro bono rules. Next month, I will discuss the flurry of recent efforts by Courts to increase the amount of pro bono work that New York lawyers perform, as well as the bitter backlash from many members of the bar.

Professor Roy Simon is the author of Simon’s New York Rules of Professional Conduct Annotated. The brand new 2015 edition consists of more than 2,000 pages of commentary concerning the New York Rules, including a phrase-by-phrase analysis of each rule, plus summaries of related ethics opinions and cases, historical context, underlying policies, and practical advice. The 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.

Get CLE Credit for this month’s articles (Jan. 2015).

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