State Bar Amends & Adds Comments to Rules of Professional Conduct (Part I)

Current Issue, NYLER Archive, NYPRR Archive, Uncategorized

By Roy Simon

[Originally published in NYPRR August 2011]

On June 25th, 2011, at its meeting in Cooperstown, the New York State Bar Association House of Delegates unanimously approved a Report by the State Bar’s Committee on Standards of Attorney Conduct (COSAC) to add 11 new Comments and to significantly amend five other Comments. As COSAC explained in its April 28, 2011 Report to the Delegates:

In its ongoing review of the Comments, COSAC has identified instances in which the Appellate Divisions’ changes to the proposed Rules resulted in gaps in the Comments — that is, where the Courts adopted Rules that had not been proposed by COSAC and approved by the House of Delegates. COSAC has now prepared the following new Comments or changes to existing Comments in order to address these gaps.

Thus, the 11 new Comments and the five amended Comments explain black-letter provisions in the Rules of Professional Conduct that were not previously addressed anywhere in the Comments. This article, which will be in two parts, describes and sometimes evaluates the new and amended Comments.

Background: Haste Makes Waste

On Dec. 16, 2008, the Appellate Divisions announced that they were adopting the New York Rules of Professional Conduct effective April 1, 2009 — just over 100 days later. The Appellate Divisions did not adopt the Comments proposed by the State Bar, however. That created a problem for COSAC. The Comments that COSAC had proposed interpreted the Rules of Professional Conduct that COSAC had proposed. The Rules adopted by the Appellate Divisions, however, retained many provisions from the old Code of Professional Responsibility that had not been recommended by COSAC, and hence were not addressed by any of the proposed Comments. The Appellate Divisions also rejected many of the innovative provisions proposed by COSAC, leaving language in the Comments that clashed with the Rules as adopted by the Courts.

To get the Comments ready by the time the new Rules of Professional Conduct were to take effect on April 1, 2009, COSAC rushed through a review of the Comments looking for any language in the Comments that was inconsistent with the black-letter Rules approved by the Appellate Divisions. But COSAC had no time before the Rules took effect to write new Comments to interpret provisions adopted by the Courts without COSAC’s recommendation.

The Comment revision effort was not very successful. COSAC met its primary goal of issuing a revised set of Comments by the time the new Rules took effect on April 1, 2009, but it missed a number of instances where the Comments contradicted the black-letter text. COSAC corrected some of these errors before the State Bar published the Rules of Professional Conduct (including its Comments) in October 2009, but the published Comments also drew criticism from various quarters. COSAC responded to those criticisms with an initial round of “technical” corrections approved by the State Bar in November 2010, followed by a round of “substantive” changes approved by the State Bar House of Delegates in January of 2011 (discussed in Roy Simon, N.Y. Rules of Professional Conduct Are Amended (Again), NYPRR, March 2011).

The third and most recent package of amendments to the Comments revised the substance of five Comments that expressed complex ideas, and added 11 new Comments to explain black-letter provisions not previously addressed in the Comments. The 16 new and amended Comments — all of which were approved unanimously by the House of Delegates — complete the process of correcting conflicts between the black-letter Rules and the original Comments, at least for the foreseeable future. As COSAC said in its April 28th Report to the House of Delegates: “This completes COSAC’s planned review of the Comments for the time being.”

I will address the amended Comments in order, starting with the lowest corresponding Rule number.

Rule 1.2, Comments [14]–[16]

Rule 1.2 (“Scope of Representation and Allocation of Authority Between Client and Lawyer”) governs both the scope of a lawyer’s representation of a client and the allocation of decision-making authority between the lawyer and client. Paragraphs (e), (f), and (g) of Rule 1.2, which are similar in substance to DR 7-101(A) and (B) of the former Code of Professional Responsibility, were not proposed by COSAC and the State Bar but were inserted into Rule 1.2 by the Courts. The new Comments are based in part on portions of former Ethical Considerations 7-7, 7-9, and 7-10. I will discuss the new Comments one at a time. (I will reprint all of the new and amended Comments in legislative style, with new wording underscored, and deletions stricken through.)

Comment [14]: Rule 1.2(e) provides as follows:

(e) A lawyer may exercise professional judgment to waive or fail to assert a right or position of the client, or accede to reasonable requests of opposing counsel, when doing so does not prejudice the rights of the client.

COSAC proposed, and in June the House of Delegates approved, a new Comment [14], headed “Exercise of Professional Judgment,” that explains Rule 1.2(e) as follows:

[14] Paragraph (e) permits a lawyer to exercise professional judgment to waive or fail to assert a right of a client, or accede to reasonable requests of opposing counsel in such matters as court proceedings, settings, continuances, and waiver of procedural formalities, as long as doing so does not prejudice the rights of the client. Like paragraphs (f) and (g), paragraph (e) effectively creates a limited exception to the lawyer’s obligations under Rule 1.1(c) (a lawyer shall not intentionally “fail to seek the objectives of the client through reasonably available means permitted by law and these Rules” or “prejudice or damage the client during the course of the representation except as permitted or required by these Rules”). If the lawyer is representing the client before a tribunal, the lawyer is required under Rule 3.3(f)(1) to comply with known local customs of courtesy or practice of the bar or a particular tribunal unless the lawyer gives opposing counsel timely notice of the intent not to comply.

Comment [14] largely restates the text of Rule 1.2(e), but it puts the rule in context and points out that in litigation Rule 3.3(f)(1) may alter the result.

Comment [15]: Rule 1.2(f) provides as follows:

(f) A lawyer may refuse to aid or participate in conduct that the lawyer believes to be unlawful, even though there is some support for an argument that the conduct is legal.

COSAC has explained paragraph (f) in a new Comment [15], entitled “Refusal to Participate in Conduct a Lawyer Believes to Be Unlawful.” Comment [15] refers to paragraph (d) of Rule 1.2, which says:

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, except that the lawyer may discuss the legal consequences of any proposed course of conduct with a client.

The new Comment [15] states:

[15] In some situations such as those described in paragraph [1.2](d), a lawyer is prohibited from aiding or participating in a client’s improper or potentially improper conduct; but in other situations, a lawyer has discretion. Paragraph (f) permits a lawyer to refuse to aid or participate in conduct the lawyer believes to be unlawful, even if the conduct is arguably legal. In addition, under Rule 1.16(c)(2), the lawyer may withdraw from representing a client when the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent, even if the course of action is arguably legal. In contrast, when the lawyer knows (or reasonably should know) that the representation will result in a violation of law or the Rules of Professional Conduct, the lawyer must withdraw from the representation under Rule 1.16(b)(1). If the client “insists” that the lawyer pursue a course of conduct that is illegal or prohibited under the Rules, the lawyer must not carry out those instructions and, in addition, may withdraw from the representation under Rule 1.16(c)(13). If the lawyer is representing the client before a tribunal, additional rules come into play. For example, the lawyer may be required to obtain the tribunal’s permission to withdraw under Rule 1.16(d), and the lawyer may be required to take reasonable remedial measures under Rule 3.3 with respect to false evidence or other criminal or fraudulent conduct relating to a proceeding. [Italics in original.]

In its April 28th Report, COSAC observed that “Comment [15] supplements the language from the ECs by cross-referencing various Rules pertaining to a lawyer’s duties when a client is engaged in improper or potentially improper conduct.” These cross-references are useful because most lawyers have not yet developed enough familiarity with the new Rules to find the cross-references on their own.

Comment [16]: Rule 1.2(g), which was not explained by any of the original Comments, provides as follows:

(g) A lawyer does not violate this Rule by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, and by treating with courtesy and consideration all persons involved in the legal process.

COSAC added a new Comment [16], headed “Fulfilling Professional Commitments and Treating others with Courtesy.” Comment [16] refers to Rule 1.1(c)(1), which provides as follows:

(c) A lawyer shall not intentionally: (1) fail to seek the objectives of the client through reasonably available means permitted by law and these Rules …

Comment [16] also refers to Rule 1.2(a), which provides as follows:

(a) Subject to the provisions herein, a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to settle a matter. in a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

The new Comment [16] incorporates Rules 1.1(c)(1) and 1.2(a) as follows:

[16] Both Rule 1.1(c)(1) and Rule 1.2(a) require generally that a lawyer seek the client’s objectives and abide by the client’s decisions concerning the objectives of the representation; but those rules do not require a lawyer to be offensive, discourteous, inconsiderate or dilatory. Paragraph (g) specifically affirms that a lawyer does not violate Rule 1.2 by being punctual in fulfilling professional commitments, avoiding offensive tactics and treating with courtesy and consideration all persons involved in the legal process. Lawyers should be aware of the new york State Standards of Civility adopted by the courts to guide the legal profession (22 NYCRR Part 1200 Appendix A). Although the Standards of Civility are not intended to be enforced by sanctions or disciplinary action, conduct before a tribunal that fails to comply with known local customs of courtesy or practice, or that is undignified or discourteous, may violate Rule 3.3(f). Conduct in a proceeding that serves merely to harass or maliciously injure another would be frivolous in violation of Rule 3.1. Dilatory conduct may violate Rule 1.3(a), which requires a lawyer to act with reasonable diligence and promptness in representing a client.

Comment [16] will help lawyers to understand the limitations elsewhere in the Rules of Professional Conduct on the duty to seek the client’s objectives and abide by the client’s decisions.

Rule 1.8, Comment [5]

Rule 1.8 (“Current Clients: Specific Conflict of interest Rules”) deals with a number of unusual conflicts, such as business transactions with clients, gifts from clients to lawyers, and literary rights in a client’s story. One of the provisions is Rule 1.8(b), which provides as follows:

A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.

Rule 1.8(b) was not proposed by COSAC but was inserted by the Appellate Divisions. However, COSAC had no objection to the language in Rule 1.8(b). In fact, almost the identical language appears in Rule 1.6(a), which was proposed by COSAC. Rule 1.6(a) says:

A lawyer shall not knowingly reveal confidential information … or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless …: (1) the client gives informed consent; … or (3) the disclosure is permitted by paragraph (b).

Rule 1.6(b)(6), in turn, permits a lawyer to reveal confidential information “when permitted or required under these Rules …” Rule 1.8(b), which expresses almost identical ideas using many of the same words, is thus unobjectionable but redundant. nevertheless, since the Appellate Divisions inserted Rule 1.8(b) and lawyers might not know to look elsewhere (Rule 1.6) for guidance, COSAC drafted a new Comment to Rule 1.8. The new Comment [5], which was previously marked “Reserved” (like many Comment paragraphs) provides as follows:

[5] [Reserved] A lawyer’s use of information relating to the representation to the disadvantage of the client violates the lawyer’s duty of loyalty. Paragraph (b) applies when the information is used to benefit either the lawyer or a third person, such as another client or a business associate of the lawyer, at the expense of a client. For example, if a lawyer learns that a client intends to purchase and develop several parcels of land, the lawyer may not use that information to purchase one of the parcels in competition with the client or to recommend that another client make such a purchase. But the rule does not prohibit uses that do not disadvantage the client. For example, a lawyer who learns a government agency’s interpretation of trade legislation during the representation of one client may properly use that information to benefit other clients. Paragraph (b) prohibits use of client information to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules. Rules that permit or require use of client information to the disadvantage of the client include Rules 1.6, 1.9(c), and 3.3.

New Comment [5] is nearly identical to Comment [5] to ABA model Rule 1.8, except that COSAC slightly modified the last sentence and conformed the citations to the New York Rules of Professional Conduct rather than the ABA model Rules. As COSAC’s Report states, because New York Rule 1.8(b) was based verbatim on ABA Model Rule 1.8(b), the new Comment “follows the Model Rule Comment, with minor modifications for the sake of clarity or to conform to differences elsewhere between the model Rules and the New York rules.” COSAC should eventually amend the Comment to Rule 1.6 to cross-reference Comment [5] because, curiously, the Comment to Rule 1.6 does not explain the prohibition on using confidential information to the disadvantage of a client. Comment [5] now provides that explanation.

Rule 1.11, Comment [4A]

Rule 1.11 (“Special Conflicts of interest for Former and Current Government officers and Employees”) covers lawyers currently or formerly in public service (i.e., those serving in local, state, or federal government). Government lawyers have long been treated differently from lawyers in private practice. See, Armstrong v McAlpin, 625 F.2d 433 (2d Cir. 1980) (allowing screen to cure conflict created by former government lawyer who had joined private firm). That different treatment remains in place today. Good examples are Rule 1.11(b) and (c), the latter of which states:

(c) Except as law may otherwise expressly provide, a lawyer having information that the lawyer knows is confidential government information about a person, acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term “confidential government information” means information that has been obtained under governmental authority and that, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and that is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely and effectively screened from any participation in the matter in accordance with the provisions of paragraph (b).

Paragraph (b) of Rule 1.11, in turn, allows a firm to continue representation if it screens the personally disqualified former government lawyer and can avoid the appearance of impropriety. Specifically, Rule 1.11(b) will not impute the former government lawyer’s conflict to the other lawyers in the firm if:

(1) the firm acts promptly and reasonably to:

(i) notify, as appropriate, lawyers and nonlawyer personnel within the firm that the personally disqualified lawyer is prohibited from participating in the representation of the current client;

(ii) implement effective screening procedures to prevent the flow of information about the matter between the personally disqualified lawyer and the others in the firm;

(iii) ensure that the disqualified lawyer is apportioned no part of the fee therefrom; and

(iv) give written notice to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule; and

(2) there are no other circumstances in the particular representation that create an appearance of impropriety.

Comment [4A] to Rule 1.11 explained Rule 1.11(c), but the original Comment did not address the relationship between non-imputation under the specialized provisions of Rule 1.11(b) and (c), on the one hand, and incurable imputation (absent client informed consent) under the general imputation provision in Rule 1.10(a), on the other hand. The original COSAC Comment [4A] to Rule 1.11 stated, in relevant part, as follows:

[4A] … Paragraph (c) [of Rule 1.11] prohibits a lawyer who has information about a person acquired when the lawyer was a public officer or employee, that the lawyer knows is confidential government information, from representing a private client whose interests are adverse to that person in a matter in which the information could be used to that person’s material disadvantage. A firm with which the lawyer is associated may undertake or continue representation in the matter only if the lawyer who possesses the confidential government information is timely and effectively screened. Thus, the purpose and effect of the prohibitions contained in Rule 1.11(c) are to prevent the lawyer’s subsequent private client from obtaining an unfair advantage because the lawyer has confidential government information about the client’s adversary. [Emphasis added.]

The italicized sentence may have confused some lawyers. As noted above, Rule 1.11(c) contains a special anti-imputation provision that allows screening of conflicted lawyers to substitute for client consent, but with respect to most conflicts the New York Rules of Professional Conduct (like the former Code of Professional Responsibility) do not permit screening to cure conflicts of interest. Rule 1.10(a), the general rule governing imputation of conflicts, says:

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8 or 1.9, except as otherwise provided therein.

Under Rule 1.10, therefore, screening a personally disqualified lawyer does not avoid imputation unless the client gives informed consent, confirmed in writing. However, Rule 1.10(a) does not mention conflicts arising under Rule 1.11, so Rule 1.10(a) does not impute the conflicts addressed by Rule 1.11(c). COSAC’s Report expresses its intention to “make this clear” in revised Comment [4A]. As amended, Comment [4A] to Rule 1.11 now provides as follows:

Paragraph (c) prohibits a lawyer who has information about a person acquired when the lawyer was a public officer or employee, that the lawyer knows is confidential government information, from representing a private client whose interests are adverse to that person in a matter in which the information could be used to that person’s material disadvantage. A firm with which the lawyer is associated may undertake or continue representation in the matter only if the lawyer who possesses the confidential government information is timely and effectively screened. Because Rule 1.11 is not among the Rules enumerated in Rule 1.10, Rule 1.10 is not applicable to (and therefore does not impute) conflicts arising under Rule 1.11. Thus, the purpose and effect of the prohibitions contained in Rule 1.11(c) are to prevent the lawyer’s subsequent private client of a law firm with which the former public officer or official is associated from obtaining an unfair advantage because by using the lawyer’s has confidential government information about the private client’s adversary.

The amended Comment [4A] seems plain enough to me.

Rule 1.11, Comment [9A]

New Comments [9A] and [9B] explain Rule 1.11(d)(1), which concerns current rather than former government lawyers. New Comments were necessary here because the version of Rule 1.11(d)(1) adopted by the Appellate Divisions differed significantly from the version proposed by the State Bar in 2008. A little background will be helpful.

The question confronting COSAC when it reviewed the Code of Professional Responsibility from 2003 through 2005 was a difficult one. When a lawyer moves from private practice to a government law office (such as a District Attorney’s office or a County Attorney’s office) may the lawyer work on a matter in which he participated personally and substantially while in private practice? When the movement is in the opposite direction — when a government lawyer moves from government to private practice — the former government lawyer is personally disqualified from participating at the private firm in any matter in which he participated “personally and substantially” while in public service, “unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.” (Emphasis added.) Should the same rule apply when lawyers move in the opposite direction, from private practice to public service?

Under the Code of Professional Responsibility, that question was addressed in DR 9-103(B)(3), which provided that (except as law may otherwise permit):

3. A lawyer serving as a public officer or employee shall not:

a. Participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter.

The DR 9-101(B)(3) approach is called the “rule of necessity,” because it allows a government lawyer who would ordinarily be disqualified to overcome the disqualification if the lawyer’s participation is necessary in the sense that no other lawyer in the office is legally available to handle the matter.

COSAC did not like the rule of necessity. In the Reporters’ notes to proposed Rule 1.11(d), COSAC said the “rule of necessity” had been omitted from proposed Rule 1.11(d) on grounds that it was “an undesirable way to resolve the disqualification and imputed disqualification problem of current government lawyers because it left the decision to invoke the rule within the unreviewed discretion of the affected government lawyer …” COSAC therefore took a different approach. The COSAC/State Bar proposal for Rule 1.11(d)(1) would generally have prohibited a lawyer currently serving as a public officer or employee from participating in a matter in which the lawyer participated while in private practice “unless the appropriate government agency gives its informed consent, confirmed in writing.” (Emphasis added.) The italicized phrase in proposed Rule 1.11(d)(1) was thus identical to the equivalent consent phrase in Rule 1.11(a) for lawyers moving from government to private practice. Thus, under the State Bar proposal, a government lawyer could ordinarily have participated in a matter in which the lawyer participated while in private practice if and only if the government consented.

In its proposed Comment [9A], COSAC explained why it rejected the prior “rule of necessity” in DR 9-101(B)(3). COSAC also offered another route besides government consent for a government law office to continue a representation despite an imputed conflict. Proposed Comment [9A] provided, in pertinent part, as follows:

[9A] … Under the previous new york rule, the lawyer was permitted to participate notwithstanding the otherwise disqualifying conflict of interest if the lawyer determined that under applicable law no one else was, or by lawful designation could be, authorized to act in the lawyer’s stead. Thus, the decision to proceed was made by the individual government lawyer claiming necessity.

Under Rule 1.11(e), if on account of the lawyer’s personal disqualification under paragraph (d) or the imputation of the lawyer’s disqualification to the other lawyers in the same government office, agency or department under paragraph (e), there is no lawyer authorized to handle the matter, the appropriate course of action for the government agency is to seek the authority to act from an appropriate tribunal, where the matter can be reviewed in an open and objective forum. Courts and other tribunals have the inherent authority to authorize continued representation notwithstanding an otherwise disqualifying conflict of interest.

That was an ingenious piece of drafting because it brought in a neutral — the “appropriate tribunal” — to decide whether to appoint the otherwise-disqualified government lawyer or instead to appoint special counsel from outside the government office. The Appellate Divisions, however, rejected the COSAC formulation. Instead, the final version of Rule 1.11(d)(1) crafted by the Courts reverted to the rule of necessity as articulated in DR 9-101(B)(3). Thus, Rule 1.11(d)(1) as adopted provided as follows:

(d) Except as law may otherwise expressly provide, a lawyer currently serving as a public officer or employee shall not:

(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter … [Emphasis added.]

As a result, a conflict arising under Rule 1.11(d) cannot be cured by obtaining informed consent from a government agency.

The Appellate Divisions’ rejection created a gap in the Comments, because the original Comment [9A] interpreted the COSAC proposal (allowing government consent to cure the conflict) rather than the Rule as adopted by the Appellate Divisions (which did not require or recognize government consent). COSAC has now filled this gap with a new Comment [9A] that explains Rule 1.11(d)(1) as adopted. New Comment [9A] says:

[9A] Paragraph (d)(1) prohibits a lawyer currently serving as a government officer or employee from participating in a matter in which the lawyer participated personally and substantially while in private practice or other non-governmental employment, unless under applicable law no one else is, or by lawful designation could be, authorized to act in the lawyer’s stead. Informed consent on the part of the government agency is not required where such necessity exists. Conversely, informed consent does not suffice to overcome the conflict in the absence of necessity. [Emphasis added.]

Rule 1.11, Comment [9B]

COSAC has also drafted a new Comment [9B] to explain the imputation of a former private lawyer’s conflict of interest within a government law office. The State Bar’s 2008 proposal for Rule 1.11(d)(1) had expressly stated that a lawyer currently serving as a public officer or employee “shall comply with Rules 1.7 and 1.9 but is not subject to Rule 1.10.” Because the general imputation provision in Rule 1.10 did not apply, the State Bar proposed a special imputation provision — Rule 1.11(e), which was tailored to Rule 1.11(d). The proposed Rule 1.11(e) provided as follows:

(e) When a lawyer is disqualified from representation under paragraph (d), no lawyer serving in the same government office, agency or department may knowingly undertake or continue representation in the matter unless:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation; and

(2) the office, agency or department acts promptly and reasonably to:

(i) notify, as appropriate, lawyers and non-lawyer personnel within the office, agency or department that the personally disqualified lawyer is prohibited from participating in the matter; and

(ii) implement effective screening procedures to prevent the flow of information about the matter between the personally disqualified lawyer and the other lawyers in the office; and

(iii) where the disqualification is based on the application of Rule 1.9, advise the personally disqualified lawyer’s former client in writing of the circumstances that warranted implementation of the screening procedures required by this Rule and of the actions taken to comply with this Rule, unless notice to the former client is prohibited by law or Rule 1.6.

The State Bar’s proposal in Rule 1.11(e) for avoiding imputation of conflicts within a government agency thus paralleled the State Bar’s proposal in Rule 1.11(b) for avoiding imputation of conflicts within a private law firm. Like Rule 1.11(b), proposed Rule 1.11(e) allowed timely and effective screening to overcome conflicts of interest. The proposed rule balanced the right to use screening with a duty to notify the dis-

Qualified lawyer’s former client in writing about the conflict and the screening procedures, unless notice to the former client was “prohibited by law or Rule 1.6.” The original version of Comment [9C] (which no longer exists) explained the exception:

[9C] Where the conflict arises from the government lawyer’s prior representation of a client, the office, agency or department is required to notify the former client of the circumstances warranting the use of screens and the actions that have been taken to comply with the requirements of this Rule, unless providing notice would be in violation of law or Rule 1.6. The requirement that the government lawyer’s former client be notified is suspended under circumstances where notice would make public information that the agency is required to keep secret. For example, a prosecutor’s office would not be required to notify a personally disqualified lawyer’s former client who is the subject of a pending grand jury investigation.

Proposed Comment [9C] was a nuanced and sensible approach, carefully balancing the rights of the former private client with the need for efficiency in government offices. The Appellate Divisions, however, did not like it. They approved Rule 1.11(b) (allowing screening to negate imputation within private firms), but they rejected proposed Rule 1.11(d) and (e) (which would have allowed screening to negate imputation within government offices). The screening proposal for negating imputation within government agencies thus died on the operating table. That left no guidance at all regarding imputation of conflicts within a government law office.

COSAC has now filled this gap with the following new Comment [9B]:

[9B] Unlike paragraphs (a) and (c), paragraph (d)(1) contains no special rules providing for imputation of the conflict addressed in paragraph (d)(1) to other lawyers in the same agency. Moreover, Rule 1.10 by its terms does not apply to conflicts under paragraph (d)(1). Thus, even where paragraph (d)(1) bars one lawyer in a government law office from working on a matter, other lawyers in the office may ordinarily work on the matter unless prohibited by other law. Where a government law office’s representation is materially adverse to a government lawyer’s former private client, however, the representation would, absent informed consent of the former client, also be prohibited by Rule 1.9. Rule 1.10 remains applicable to that former client conflict so as to impute the conflict to all lawyers associated in the same government law office. In applying Rule 1.10 to such conflicts, see Rule 1.0(h) (defining “firm” and “law firm”).

Rule 1.0(h), which is cross-referenced in the last sentence of Comment [9B], provides as follows:

(h) Firm” or “law firm” includes, but is not limited to, a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a qualified legal assistance organization, a government law office, or the legal department of a corporation or other organization. [Emphasis added.]

Thus, it is beyond question that a government law office is a “law firm.” Every law firm needs clear guidance regarding imputation of conflicts, and new Comment [9B] supplies that guidance.

Next month, I will publish Part II of this article, which will cover changes in the Comments to Rules 1.12, 3.3, 3.5, and 6.1.

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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