Major Differences Between COSAC Proposals & Current N.Y. Lawyer’s Code of Professional Responsibility (Pt. 5)

[Originally published in NYPRR April 2006]

[Editor’s Note: The last four issues of NYPRR (Dec. 2005, Jan., Feb., and March 2006) contained COSAC’s proposals for changes in Model Rules 1 to 7.6. This issue concludes the series by reporting the proposed changes to Model Rule 8.1 through 8.5. Model Rule 8 is entitled Maintaining the Integrity of the Profession.]

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 8.1: Truthfulness in Bar Admission Matters. Rule 8.1(a) generally tracks DR 1-101(A) by prohibiting a bar admission applicant from making a “false statement of material fact” in connection with an application for bar admission. Rule 8.1(b) adds that an applicant shall not “fail to disclose a material fact requested in connection with a lawful demand for information from an admissions authority,” which parallels a requirement in DR 1-103(B) that currently applies only to lawyers. Rule 8.3(c) adds that the rule “does not require disclosure of information protected by Rule 1.6” (the basic confidentiality rule), thus making clear that the rule does not mandate disclosures by a lawyer for a bar admission applicant.

Rule 8.2: Judicial Officers. Rule 8.2(a) is substantially similar to DR 8-102(A) and (B), but replaces the term “knowingly” with the phrase “knows to be false or with reckless disregard for its truth or falsity,” a standard based on First Amendment opinions written by the United States Supreme Court.

Rule 8.3: Reporting Professional Misconduct. Rule 8.3generally tracks DR 1-103. However, Rule 8.3(b) explicitly extends the reporting requirement to a lawyer who “knows that a judge has committed a violation of the applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office” whereas DR 1-103(B) requires a lawyer to reveal such knowledge only “upon proper request of a tribunal or other authority…”

Rule 8.4: Misconduct. Rule 8.4 generally tracks DR 1-102, but Rule 8.4(f) adds that a lawyer or law firm shall not “knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.” In addition, COSAC has deleted the prohibition in DR 1-102(A)(7) on “conduct that adversely reflects on the lawyer’s fitness as a lawyer” because most such conduct is already covered by specific subparagraphs, especially Rule 8.4(b), which prohibits “illegal conduct that adversely reflects on the lawyer’s … fitness as a lawyer.”

Rule 8.5: Disciplinary Authority and Choice of Law. Rule 8.5 is identical to the version of DR 1-105 that was approved by the House of Delegates on June 21, 2003. That proposal is now pending before the Appellate Division. [Editor’s note: The proposal adopted by the House of Delegates and still pending before the Appellate Division would subject out-of-state attorneys who provide any legal services in New York to the disciplinary authority of New York, and would also control conflicts-of-law issues arising in disciplinary proceedings involving New York lawyers, or out-of-state lawyers who render legal services in New York.]

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NYPRR Editor