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

Current Issue, NYLER Archive, NYPRR Archive, Uncategorized

By Roy Simon

[Originally published in NYPRR September 2011]

On June 25, 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 eleven new Comments and significantly amend five other Comments. Last month, I described the new and amended Comments to Rules 1.2, 1.8, and 1.11. This month, I cover the remaining new and amended Comments, which interpret Rules 1.12, 3.3, 3.5, and 6.1. (The June 2011 changes did not affect the Comments to any other Rules.)

Rule 1.12, Comment [1]

Rule 1.12 (“Specific Conflicts of Interest for Former Judges, Arbitrators, Mediators or Other Third-Party Neutrals”) deals with the conflicts of former third-party neutrals. Comment [1] to Rule 1.12 explains Rule 1.12(a) as adopted by the Appellate Divisions. COSAC was forced to amend Comment [1] because the version of Rule 1.12(a) adopted by the Appellate Divisions differed radically from the version proposed by the State Bar. The State Bar’s proposal for the black letter text of Rule 1.12(a), which largely paralleled Rule 1.11(a), had said, in pertinent part:

(a) [U]nless all parties to the proceeding give informed consent, confirmed in writing, a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as:

(1) a judge or other adjudicative officer;

(2) an arbitrator, mediator or other third-party neutral; or

(3) a law clerk to such a person. [Emphasis added.]

The Appellate Divisions rejected that proposal. In its place, the Appellate Divisions reverted verbatim to the language of DR 9-101(A) regarding former judges, and wrote a new Rule 1.12(b) to cover the other types of third-party neutrals and their law clerks. Thus, Rule 1.12(a) and (b), as adopted effective April 1, 2009, provided as follows:

(a) A lawyer shall not accept private employment in a matter upon the merits of which the lawyer has acted in a judicial capacity.

(b) Except as stated in paragraph (e), and unless all parties to the proceeding give informed consent, confirmed in writing, a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as:

(1) an arbitrator, mediator or other third-party neutral; or (2) a law clerk to a judge or other adjudicative officer or an arbitrator, mediator or other third-party neutral.

Proposed Comment [1] to Rule 1.12 did not match this language at all. For some reason, however, COSAC did not pick up that mismatch when it originally reviewed the proposed Comments shortly before the Rules of Professional Conduct took effect on April 1, 2009. In November of 2010, COSAC repaired this oversight by amending Comment [1] to Rule 1.12 to read as follows:

[1] This Rule generally parallels Rule 1.11. The term “personally and substantially” signifies that a A judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate act upon the merits. So also, the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. See Rule 1.11, Comment [4]. The term “adjudicative officer” in paragraphs (b)(2) and (c) includes such officials as judges pro tempore, referees, special masters, hearing officers and other parajudicial officers, and also lawyers who serve as part-time judges.

(As I did in Part I of this article, I am reprinting all of the new and amended Comments in legislative style so that the changes from the original 2009 Comments are readily apparent.) The November 2010 revisions, however, did not go far enough. As COSAC explained in its April 2011 Report, Rule 1.12(a) as proposed by the State Bar in 2008 (set out above) would have prohibited any lawyer from participating in a matter in which the lawyer had participated personally and substantially as a judge or other adjudicative officer, an arbitrator, mediator, third-party neutral, or a law clerk to any such person, unless the former third-party neutral obtained informed consent from all parties to the proceeding, confirmed in writing. As adopted by the Appellate Divisions, however, the Rule retained the “informed consent” provision only for arbitrators, mediators, third-party neutrals, and law clerks, but not for judges. With respect to judges, the COSAC Report noted, the Appellate Divisions substituted an “absolute ban on judges or other adjudicative officers representing a party in a matter upon the merits of which the judge acted in a judicial capacity, which cannot be waived by party consent.” Since the Comments had not previously addressed the distinction between judges and other third-party neutrals, COSAC revised Comment [1] a second time to “clarify that a former judge’s conflict in this scenario is not waivable.” As amended in June of 2011, Comment [1] provides as follows:

[1] A lawyer acts in a “judicial capacity” within the meaning of paragraph (a) when the lawyer serves as a judge or other adjudicative officer. Where a A judge or other adjudicative officer who was a member of in a multimember court and thereafter left leaves judicial office to practice law, the former judge or adjudicative officer is not prohibited from representing a client in a matter that was pending in the court, but in which if the former judge or adjudicative officer did not act upon the merits in that matter. So also, the fact that a former judge or adjudicative officer exercised administrative responsibility in a court does not prevent the former judge or adjudicative officer from acting as a lawyer in a matter where the judge or adjudicative officer had previously exercised remote or incidental administrative responsibility that did not affect the merits. See Rule 1.11, Comment [4] (a former government lawyer is disqualified “only from particular matters in which the lawyer participated personally and substantially”). A former judge or adjudicative officer may not, however, accept private employment in a matter upon the merits of which the judge or adjudicative officer has acted in a judicial capacity, and – unlike conflicts for lawyers who have acted in a capacity listed in Rule 1.12(b) – a conflict arising under paragraph (a) cannot be waived. The term “adjudicative officer” includes such officials as judges pro tempore, referees, special masters, hearing officers and other parajudicial officers.

The message is now clear. Rule 1.12(a) provides that a lawyer “shall not accept private employment in a matter upon the merits of which the lawyer has acted in a judicial capacity,” and that disqualifying conflict cannot be waived even with the informed consent of all parties. A conflict arising under Rule 1.12(a) is unwaivable, period. Perhaps the Appellate Divisions were correct to make these conflicts unwaivable. If former judges (and part-time judges who go back and forth between judicial activities and private practice) could accept private engagements on matters in which they had acted on the merits from the bench, the public might suspect that some judicial rulings were made with an eye toward future employment by one side or the other. A judge who was planning to retire in the near future, for example, might be tempted to calculate the impact of a ruling on the judge’s prospects for post-employment retirement. Consider a pending motion for summary judgment in a case where millions of dollars are at stake. If the judge grants the motion for summary judgment, the case is over. If the judge denies the motion, the litigation might go on for years, with lucrative fees for the lawyers on both sides. If a former judge’s conflicts were waivable (i.e., if the Appellate Divisions had adopted COSAC’s proposal allowing the informed consent of all parties to cure a former judge’s conflicts), the judge might consider whether one of the parties might want to hire the judge after retirement to assist with the continued judicial proceedings. Every time a judge denied a motion for summary judgment and retired soon afterwards, the public would wonder whether the judge had elevated his own financial interests in future employment above the interests of justice. Any party would be free to withhold consent and thus veto the former judge’s continued involvement in a case after moving to private practice, but objecting to the former judge’s involvement might be socially or politically awkward. Some parties might consent to avoid that social or political discomfort. The result would be constant public suspicion about judicial motives. The judges on the Appellate Divisions know a lot more about judicial behavior and the public perception of judges than I do, so I have to believe that they got it right by making Rule 1.12(a) conflicts unwaivable, even with the informed consent of all parties.

Rule 3.3, Comment [13]

Rule 3.3 (“Conduct Before a Tribunal”) is best known for changing New York’s rule regarding a lawyer’s obligations when confronted with perjury or other wrongdoing, but it also covers a number of other topics related to conduct before a tribunal. Rule 3.3(f) provides as follows:

(f) In appearing as a lawyer before a tribunal, a lawyer shall not:

(1) fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of the intent not to comply;

(2) engage in undignified or discourteous conduct;

(3) intentionally or habitually violate any established rule of procedure or of evidence; or

(4) engage in conduct intended to disrupt the tribunal.

Rule 3.3(f) and its four subparagraphs were not in the State Bar’s 2008 proposals. Rather, the Appellate Divisions based paragraphs (f)(1)-(3) on DR 7-106(C)(5)-(7), and wrote paragraph (f)(4) themselves based on their own ideas. Portions of former ECs 7-36 and 7-37 had addressed these provisions, but nothing in the 2009 Comments did so. Accordingly, COSAC drafted the following new Comment [13] to Rule 3.3 that, according to the COSAC Report, “draws substantially on those ECs.” New Comment [13] provides as follows:

[13] [Reserved.] Judicial hearings ought to be conducted through dignified and orderly procedures designed to protect the rights of all parties. A lawyer should not engage in conduct that offends the dignity and decorum of proceedings or that is intended to disrupt the tribunal. While maintaining independence, a lawyer should be respectful and courteous in relations with a judge or hearing officer before whom the lawyer appears. In adversary proceedings, ill feeling may exist between clients, but such ill feeling should not influence a lawyer’s conduct, attitude, and demeanor towards opposing lawyers. A lawyer should not make unfair or derogatory personal reference to opposing counsel. Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system.

(COSAC had previously marked Comment [13] as “Reserved” to reflect the fact that COSAC was not adopting Comment [13] to ABA Model Rule 3.3, because ABA Comment [13] was inconsistent with the text of New York Rule 3.3 as adopted. By marking Comment [13] “Reserved,” COSAC preserved consistency between New York and the ABA regarding the numbering of the remaining two Comments to Rule 3.3. Other Comment numbers throughout the Rules were similarly marked “Reserved” to preserve consistency with the numbering of the ABA Model Rules of Professional Conduct, because national consistency was one of the advantages of changing New York to a Model Rules format instead of a Model Code format.) The new Comment [13] adds relatively little guidance to the plain text of Rule 3.3(f), but at least Comment [13] acknowledges the existence of Rule 3.3(f) and thus fills a small gap in the original COSAC Comments.

Rule 3.5, Comments [4A]–[4C]

Rule 3.5 (“Maintaining and Preserving the Impartiality of Tribunals and Jurors”) proscribes various conduct that would undermine the impartiality of tribunals and jurors. Specifically, Rule 3.5(b), (c), and (d) provide as follows:

(b) During the trial of a case a lawyer who is not connected therewith shall not communicate with or cause another to communicate with a juror concerning the case.

(c) All restrictions imposed by this Rule also apply to communications with or investigations of members of a family of a member of the venire or a juror.

(d) A lawyer shall reveal promptly to the court improper conduct by a member of the venire or a juror, or by another toward a member of the venire or a juror or a member of his or her family of which the lawyer has knowledge.

These provisions were not included in the State Bar’s 2008 proposal, so nothing in the original Comments addressed them. Rather, the Appellate Divisions based them verbatim on DR 7-108(B)(2), (F), and (G). According to COSAC’s April 2011 Report, “Portions of EC 7-29, 7-31, and 7-32 addressed these provisions, restating them but providing little elaboration.” COSAC drew on those ECs by drafting new Comments [4A] through [4C]. The new Comments provide as follows:

[4A] Paragraph (b) prohibits lawyers who are not connected with a case from communicating (or causing another to communicate) with jurors concerning the case.

[4B] Paragraph (c) extends the rules concerning communications with jurors and members of the venire to communications with family members of the jurors and venire members.

[4C] Paragraph (d) imposes a reporting obligation on lawyers who have knowledge of improper conduct by or toward jurors, members of the venire, or family members thereof.

These Comments do little more than repeat the rules, but at least they do not ignore them.

Rule 6.1, Comment [1]

Rule 6.1 governs pro bono work. When it was proposed by COSAC and the State Bar in 2008, the opening sentence of Rule 6.1 stated:

A lawyer has a professional obligation to render public interest and pro bono legal services to benefit poor persons. [Emphasis added.]

As a gloss on this sentence, the State Bar’s 2008 proposals included the following Comment [1] to Rule 6.1:

[1] Pro bono legal service for the public good is an integral part of a lawyer’s professional responsibility. In particular, providing pro bono legal service for the poor is an important part of this responsibility. As our society has become one in which rights and responsibilities are increasingly defined in legal terms, access to legal services has become of critical importance. This is true for all people, rich, poor or of moderate means. However, because the legal problems of the poor often involve areas of basic need, their inability to obtain legal services can have dire consequences. The vast unmet legal needs of the poor in New York have been recognized in several studies undertaken over the past two decades. As an officer of the court, each lawyer – regardless of professional prominence or professional work load — has a professional obligation to provide or to assist in providing pro bono legal services to the poor. This professional obligation applies to all lawyers, including members of the judiciary and government lawyers. [Emphasis added.]

The Appellate Divisions, however, deleted the first sentence in proposed Rule 6.1, replacing it with the following much milder sentence:

Lawyers are strongly encouraged to provide pro bono legal services to benefit poor persons. [Emphasis added.]

Because the State Bar’s proposed Comment [1] referred extensively to the “professional obligation” to render pro bono services, which the Appellate Divisions had rejected, COSAC deleted all of Comment [1] in the initial round of its time-pressured adjustments to the Comments in 2009. (The initial printed versions of the Rules of Professional Conduct published by the State Bar included a Comment [1] to Rule 6.1 that addressed the exemption from conflict checking in Rule 6.5, but that Comment was obviously misplaced – it should have been Comment [1] to Rule 6.5 instead — so COSAC moved it to Comment [1] following Rule 6.5 as part of COSAC’s November 2010 technical changes to the Comments.) The language in the 2008 proposal for Comment [1] regarding a lawyer’s “professional obligation” to provide pro bono services clashed with the aspirational language (“strongly encouraged”) of the Rule as adopted by the Appellate Divisions, so the words “professional obligation” and “professional responsibility” had no place in the Comments to Rule 6.1 as adopted. But, COSAC noted in its April 2011 Report, the rest of the language in the originally proposed Comment elaborated on the black letter of Rule 6.1 and articulated “the State Bar’s interpretation that the Rule applies to all lawyers.” Accordingly, COSAC revived Comment [1] to Rule 6.1 as it had been originally proposed in 2008, but COSAC made three changes:

(1) COSAC deleted the first two sentences, which had specifically referred to the lawyer’s “professional responsibility” or “responsibility”;

(2) in the next-to-last sentence of Comment [1], COSAC (a) deleted the phrase, “As an officer of the court,” (b) added the phrase “including members of the judiciary and government lawyers,” and (c) replaced the phrase “has a professional obligation” with the phrase “is strongly encouraged,” which mirrors the language of the text of Rule 6.1 as adopted;

(3) in the last sentence, COSAC deleted the reference to a “professional obligation.”

The resulting new Comment [1] to Rule 6.1 thus provides as follows:

[1] [Reserved.] As our society has become one in which rights and responsibilities are increasingly defined in legal terms, access to legal services has become of critical importance. This is true for all people, rich, poor or of moderate means. However, because the legal problems of the poor often involve areas of basic need, their inability to obtain legal services can have dire consequences. The vast unmet legal needs of the poor in New York have been recognized in several studies undertaken over the past two decades. Each lawyer — including members of the judiciary and government lawyers, and regardless of professional prominence or professional work load — is strongly encouraged to provide or to assist in providing pro bono legal services to the poor.

Rule 6.1, Comment [3]

As proposed by COSAC and the State Bar in 2008, Rule 6.1(a) and (b) had stated that lawyers should aspire to provide 20 hours of pro bono services annually to “persons of limited financial means” and organizations that serve them, and should “provide financial support for such organizations to assist in providing legal services to persons of limited financial means.” As a gloss on these paragraphs, COSAC and the State Bar had proposed Comment [3], which discussed how to define “persons of limited financial means” within the meaning of Rule 6.1(a) and (b). The proposed Comment [3] provided as follows:

[3] Persons eligible for legal services under paragraph (a) and persons served by organizations to which lawyers should contribute financially under paragraph (b) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines utilized by such programs but nevertheless cannot afford counsel. Legal services can be rendered to individuals or to organizations such as homeless shelters, battered women’s centers and food pantries that serve those of limited means.

The Appellate Divisions substantially changed the structure of Rule 6.1, and changed the nomenclature by replacing the phrase “persons of limited means” with the more compact phrase “poor persons,” even though the phrase “persons of limited means” had been used in the Ethical Considerations for many years. In light of the changes to the text of Rule 6.1, COSAC deleted Comment [3] in the initial round of adjustments to the Comments in 2009. (COSAC initially replaced Comment [3] to Rule 6.1with a Comment that addressed the difficulty of conducting conflicts checks in the context of some pro bono programs, but that was an error — virtually the identical language was also contained in Comment [3] to Rule 6.5, where it belonged — so COSAC deleted the misplaced Comment to Rule 6.1 as part of its November 2010 technical changes to the Comments.) Despite the changes to the text of Rule 6.1, the 2008 COSAC version of Comment [3] remained “generally applicable” to Rule 6.1 as adopted. Thus, there was no need to change the first sentence in Comment [3], which accurately explained that persons eligible for pro bono services include persons who “qualify for participation in programs funded by the Legal Services Corporation” (“LSC”). COSAC’s April 2011 Report noted that the Legal Services Corporation Act, at 42 U.S.C. § 2996a(3), defines an “eligible client” as “any person financially unable to afford legal assistance.” That language is consistent with the provision in Rule 6.1(b)(1) that qualifying pro bono services include services rendered on behalf of “persons who are financially unable to compensate counsel.” Amended Comment [3] also refers to “those whose incomes and financial resources are slightly above the guidelines utilized by such programs but nevertheless cannot afford counsel.” That language, COSAC noted, “appropriately reflects that although the LSC income guidelines (which are set by regulation at approximately 125% of the poverty level) provide some guidance, there are persons whose income is slightly above the guidelines, but who nevertheless cannot afford counsel.” COSAC therefore believed that those people should qualify as “poor persons” eligible for pro bono representation under Rule 6.1, and amended Comment [3] as adopted in June of 2011 reflects that belief. Rule 6.1(b)(3) as adopted by the Appellate Divisions states that pro bono services can include rendering professional services to “charitable, religious, civic, and educational organizations in matters designed predominantly to address the needs of poor persons.” ABA Model Rule 6.1(a)(2) contains similar language — the ABA list includes “charitable, religious, civic, community, governmental, and educational organizations in matters that are designed primarily to address the needs of persons of limited means.” (Emphasis added to highlight words that appear in ABA Model Rule 6.1 but not New York Rule 6.1). Comment [3] to ABA Model Rule 6.1 provides as follows:

[3] Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines utilized by such programs but nevertheless, cannot afford counsel. Legal services can be rendered to individuals or to organizations such as homeless shelters, battered women’s centers and food pantries that serve those of limited means. The term “governmental organizations” includes, but is not limited to, public protection programs and sections of governmental or public sector agencies.

As COSAC noted in its Report, the ABA version of Comment [3] “is, in relevant part, identical to the Comment that the State Bar proposed to accompany its original proposed Rule 6.1.” Taking all of this into account, COSAC proposed to “reinstate the substance” of the version of Comment [3] that COSAC had proposed in 2008, “with some modifications to reflect the Court’s revisions to the Rule.” The House of Delegates accepted this recommendation, so new Comment [3] provides as follows:

[3] [Reserved.] “Poor persons” under paragraphs (a)(1) and (a)(2) include both (i) individuals who qualify for participation in programs funded by the Legal Services Corporation and (ii) individuals whose incomes and financial resources are slightly above the guidelines utilized by Legal Services Corporation programs but nevertheless cannot afford counsel. To satisfy the goal of paragraph (a) (1), lawyers may provide legal services to individuals in either of those categories, or, pursuant to paragraph (b)(3), may provide legal services to organizations such as homeless shelters, battered women’s centers, and food pantries that serve persons in either of those categories.

Rule 6.1, Comments [2B], [5]-[8]

As proposed by COSAC and the State Bar 2008, Rule 6.1(c) provided as follows:

(c) In addition to meeting the aspirational goals set forth above [to render 20 hours of pro bono service to persons of limited financial means], a lawyer should render public-interest and pro bono legal service:

(1) where the payment of standard legal fees would significantly deplete the recipient’s economic resources or would be otherwise inappropriate, by providing legal services at no fee or substantially reduced fees to individuals, organizations seeking to secure or protect civil rights, civil liberties or public rights or to not-forprofit, government or public-service organizations in matters in furtherance of their organization purposes;

(2) by providing legal services at a substantially reduced fee to a person of limited financial means;

(3) by participating without compensation in activities for improving the law, the legal system or the legal profession; or

(4) by providing legal services without compensation or at substantially reduced compensation in aid or support of the judicial system (including services as an arbitrator, mediator or neutral in court-annexed alternative dispute resolution).

In the New York Rules of Professional Conduct as adopted effective April 1, 2009, the Appellate Divisions omitted all of those provisions. “While some of the concepts were incorporated into the Rule as adopted,” COSAC’s April 2011 Report said, “they were all tied to the rendering of legal services to poor persons …” COSAC’s observation is entirely accurate. Rule 6.1(b) as adopted by the Appellate Divisions provides as follows:

(b) Pro bono legal services that meet this goal [of providing at least 20 hours of pro bono legal services each year to poor persons] are:

(1) professional services rendered in civil matters, and in those criminal matters for which the government is not obliged to provide funds for legal representation, to persons who are financially unable to compensate counsel;

(2) 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; and

(3) professional services to charitable, religious, civic and educational organizations in matters designed predominantly to address the needs of poor persons. [Emphasis added.]

Comments [5] to [8] as originally proposed by COSAC and the State Bar in 2008 addressed the provisions of Rule 6.1(c) that were proposed but not ultimately adopted. In early 2009, when it initially revised the Comments to eliminate inconsistencies with the Rules as adopted, COSAC “made several changes that reflected the incorporation of certain of the concepts in proposed Rule 6.1(c) into the final Rule.” Some of those changes “did not, however, accurately reflect the structure of the Rule as adopted.” COSAC therefore proposed amended versions of Comments [2B] and Comments [5]–[8] to “align the Comments more closely to the Rules as adopted and eliminate repetition.” The amended versions, which the House of Delegates approved, provides as follows:

[2B] Paragraphs (a)(1) and (a)(2) recognize the critical need for legal services that exists among poor persons. Legal services under these paragraphs consist of a full range of activities, including individual and class representation, the provision of legal advice, legislative lobbying, administrative rulemaking and the provision of free training or mentoring to those who represent poor persons of limited means. The variety of these activities should facilitate participation by government lawyers, even when restrictions exist on their engaging in the outside practice of law.

[5] While a lawyer may fulfill the annual goal to perform pro bono service exclusively through activities described in paragraphs (a)(1) and (a)(2), all lawyers are urged to render public-interest and pro bono service in addition to assistance to the poor. This responsibility can be met in a variety of ways as set forth in paragraph (b). Constitutional, statutory or regulatory restrictions may prohibit or impede government and public sector lawyers and judges from performing the pro bono service outlined in paragraph (a)(1)(b)(1). Accordingly, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by making financial contributions to organizations that help meet the legal and other basic needs of the poor, as described in paragraphs (a)(2), (c)(1) and (c)(2) or by performing some of the services outlined in paragraph (b)(2) or (b)(3).

[6] [Reserved.] Paragraph (b)(1) includes the provision of legal services to those whose incomes and financial resources place them above limited means but are yet unable to meet the financial burdens of a given civil or criminal matter.

[7] Paragraphs (b)(2) and (b)(3) recognize the value of lawyers’ engaging in activities that improve the law, the legal system or the legal profession. Examples of the many activities that fall within this paragraph include: (i) serving on bar association committees, (ii) serving on boards of pro bono or legal services programs, (iii) taking part in Law Day activities, (iv) acting as a continuing legal education instructor, a mediator or an arbitrator, and (v) engaging in legislative lobbying to improve the law, the legal system or the profession. In addition to rendering pro bono services directly to the poor and making financial contributions, lawyers may fulfill the goal of rendering pro bono services by serving on the boards or giving legal advice to organizations whose mission is helping the poor persons. While a lawyer may fulfill the annual goal to perform pro bono service exclusively through activities described in paragraphs (a)(1) and (a) (2), all lawyers are urged to render public-interest and pro bono service in addition to assisting the poor.

[8] Paragraphs (b)(1)(c)(1) and (b)(2)(c)(2) essentially reiterate the goal as set forth in (a)(2) with the further provision that the lawyer should seek to insure ensure that the donated money be directed to providing legal assistance to the poor rather than the general charitable objectives of such organizations.

Conclusion: The Amended Comments Are Improved But Not Ideal

COSAC’s most recent amendments to the Comments improve the Comments in two ways. First, they fill in gaps in the Comments by inserting new Comments to explain provisions in the Rules that the Comments previously did not address at all. Second, the amended Comments eliminate inconsistencies between the Comments and the black letter Rules — sometimes subtle inconsistencies — that may have been misleading to New York lawyers. The June 2011 amendments represent the third wave of COSAC changes to the Comments over the past year. They come on top of the November 2010 “technical” changes and the January 2011 “substantive” changes approved by the House of Delegates. They also come on top of the Appellate Divisions’ helpful amendment to Rule 6.4 in May of 2010 and their amendments to Rule 7.1(c), (d), (e), and (g) effective April 15, 2011 to bring those provisions into line with the decisions of the Northern District of New York and the Second Circuit in Alexander v. Cahill, 598 F.3d 79 (2d Cir.), cert. denied, 131 S.Ct. 820 (2010) (striking down various provisions of New York’s advertising rules as unconstitutional under the First Amendment). To help readers keep track of all of the changes, I have compiled a chart showing the date of each change to a Rule or Comment, the specific provision of the black letter Rules that each new or amended Comment explains, and the nature of the change (i.e., new Comment, substantive amendment, technical amendment, or deletion). The amended Comments now provide significantly more and better guidance than they did before the three rounds of amendments. Thus, in COSAC’s Report recommending the June 2011 changes — which was adopted without any opposition in the House of Delegates — COSAC Chair Joseph Neuhaus of Sullivan & Cromwell said: “This completes COSAC’s planned review of the Comments for the time being.” COSAC’s members, who come from around the state and practice in many areas of law and in many different practice settings, deserve enormous credit for making the time and effort to study the problems and bring about the changes. But COSAC’s work is not done. The Comments and Rules are improved but not ideal. I continue to believe that many of the Rules that COSAC proposed were preferable to the Rules that the Appellate Divisions adopted. As time moves on, more attorneys will get used to the ABA Model Rules format and forget about the old New York Code of Professional Responsibility. One day, in the not-too-distant future, COSAC can resurrect some of its old proposals (with improvements, of course) and move closer to an ideal set of ethics rules for New York lawyers.

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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Table of New, Amended, and Deleted Rules and Comments Since the New York Rules of Professional Conduct Took Effect on April 1, 2009 (Table updated August 1, 2011)
New or Amended Rule or Comment (Effective Date)	Provision Affected by New or Amended Comment	Nature of Change
Rule 1.2, cmt. [14] (June 2011)	Rule 1.2(e)	New Comment
Rule 1.2, cmt. [15] (June 2011)	Rule 1.2(d)	New Comment
Rule 1.2, cmt. [16] (June 2011)	Rule 1.1(c)(1) and Rule 1.2(a)	New Comment
Rule 1.5, cmt. [1B] (Nov. 2010)	Rule 1.5(d)(3)	Technical Amendment
Rule 1.6, cmt. [1] (Nov. 2010)	Rule 1.6	Technical Amendment
Rule 1.6, cmt. [4A] (Nov. 2010)	Rule 1.6(a)	Technical Amendment
Rule 1.6, cmt. [5] (Nov. 2010)	Rule 1.6(a)(2)	Technical Amendment
Rule 1.6, cmt. [6B] (Nov. 2010)	Rule 1.6(b)(1)	Technical Amendment
Rule 1.6, cmt. [10] (Nov. 2010)	Rule 1.6(b)(5)	Technical Amendment
Rule 1.8, cmt. [5] (June 2011)	Rule 1.8(b)	Substantive Amendment
Rule 1.8, cmt. [8] (Jan. 2011)	Rule 1.8(c)	Substantive Amendment
Rule 1.10, cmt. [4] (Nov. 2010)	Rule 1.10(a)	Technical Amendment
Rule. 1.11, cmt. [2] (Nov. 2010)	Rule 1.10 and Rule 1.11(a)(2), (d) & (f)	Technical Amendment
Rule 1.11, cmt. [3] (Nov. 2010)	Rule 1.11(a)(2), (d) & (f)	Technical Amendment
Rule 1.11, cmt. [4A] (Jan. 2011)	Rule 1.10 and Rule 1.11(a)(1) & (c)	Substantive Amendment
Rule 1.11, cmt. [6] (Nov. 2010)	Rule 1.11(b) & (c)	Technical Amendment
Rule 1.11, cmt. [7B] (Nov. 2010)	Rule 1.11(b)	Technical Amendment
Rule 1.11, cmt. [9A] (June 2011)	Rule 1.11(d)(1)	New Comment
Rule 1.11, cmt. [9B] (June 2011)	Rule 1.11(d)(1)	New Comment
Rule 1.12, cmt. [1] (Nov. 2010)	Rule 1.12(a)	Substantive Amendment
Rule 1.12, cmt. [2] (Nov. 2010)	Rule 1.12(b)(1)	Technical Amendment
Rule 1.12, cmt. [5] (Nov. 2010)	Rule 1.12(d)(1)(ii)	Technical Amendment
Rule 1.15, cmt. [3] (Jan. 2011)	Rule 1.15(b)(4)	Substantive Amendment
Rule 1.15, cmt. [4] (Jan. 2011)	Rule 1.15(c)(4)	Substantive Amendment
Rule 1.16, cmt. [9] (Nov. 2010)	Rule 1.16(c)	Technical Amendment
Rule 1.17, cmt. [4] (Nov. 2010)	Rule 1.17(a)	Technical Amendment
Rule 1.18, cmt. [5] (Nov. 2010)	Rule 1.18(c)	Technical Amendment
Rule 1.18, cmt. [7] (Nov. 2010)	Rule 1.18(d)	Technical Amendment
Rule 2.1, cmt. [1] (Nov. 2010)	Rule 2.1	Technical Amendment
Rule 2.3, cmt. [1] (Nov. 2010)	Rule 2.3(a)	Technical Amendment
Rule 2.3, cmt. [4] (Nov. 2010)	Rule 2.3	Technical Amendment
Rule 2.3, cmt. [5] (Nov. 2010)	Rule 1.6 and Rule 2.3(b)	Technical Amendment
Rule 3.1, cmt. [2] (Nov. 2010)	Rule 3.1(b)	Technical Amendment
Rule 3.3, cmt. [6A] (Nov. 2010)	Rule 3.3(a) & (b)	Technical Amendment
Rule 3.3, cmt. [7] (Nov. 2010)	Rule 3.3(a) & (b)	Technical Amendment
Rule 3.3, cmt. [8] (Nov. 2010)	Rule 3.3(a)(3)	Technical Amendment
Rule 3.3, cmt. [13] (June 2010)	Rule 3.3(f)	Substantive Amendment
Rule 3.5, cmt. [4A] (June 2010)	Rule 3.5(b)	New Comment
Rule 3.5, cmt. [4B] (June 2010)	Rule 3.5(c)	New Comment
Rule 3.5, cmt. [4C] (June 2010)	Rule 3.5 (d)	New Comment
Rule 3.8, cmt. [6B] (Nov. 2010)	Rule 3.8(a)	Technical Amendment
Rule 3.8, cmt. [6C] (Nov. 2010)	Rule 3.8(b)	Technical Amendment
Rule 3.8, cmt. [6E] (Nov. 2010)	Rule 3.8(a) & (b)	Technical Amendment
Rule 4.2, cmt. [2] (Nov. 2010)	Rule 4.2(a)	Technical Amendment
Rule 4.2, cmt. [8] (Nov. 2010)	Rule 4.2(a)	Technical Amendment
Rule 4.5, cmt. [1] (Nov. 2010)	Rule 4.5(a)	Technical Amendment
Rule 5.7, cmt. [5A] (Nov. 2010)	Rule 1.7(a)(2)	Technical Amendment
Rule 6.1, cmt. [1] (Nov. 2010)	Rule 6.1	Substantive Amendment
Rule 6.1, cmt. [2] (Nov. 2010)	Rule 6.1(a)	Technical Amendment
Rule 6.1, cmt. [2B] (Jan. 2011)	Rule 6.1(a)(1) & (2)	Substantive Amendment
Rule 6.1, cmt. [3] (Nov. 2010)	Rule 6.1(a)(1) & (2) and Rule 6.1 (b)	Substantive Amendment
Rule 6.1, cmt. [5] (Jan. 2011)	Rule 6.1(b)(1)	Substantive Amendment
Rule 6.1, cmt. [6] (Jan. 2011)	N/A	Substantive Amendment
Rule 6.1, cmt. [7] (Jan. 2011)	Rule 6.1(a)(1) & (2)	Substantive Amendment
Rule 6.1, cmt. [8] (Nov. 2010)	Rule 6.1(c)(1) & (2)	Substantive Amendment
Rule 6.4 (May 4, 2010)	N/A	Courts deleted original last sentence of Rule 6 .4 and replaced it with new language
Rule 6.5, cmt. [1] (Nov. 2010)	Rule 6.5	Technical Amendment
Rule 6.5, cmt. [3] (Nov. 2010)	Rule 6.5(a)	Technical Amendment
Rule 6.5, cmt. [4] (Nov. 2010)	Rule 6.5(a)(2) & (b)	Technical Amendment
Rule 7.1(c)(1) (April 15, 2011)	N/A	Courts deleted original Rule 7.1(c)(1) and filled the void with former Rule 7.1(c)(2)
Rule 7.1(c)(2) (April 15, 2011)	N/A	Courts renumbered original Rule 7.1(c)(2) as Rule 7.1(c)(1)
Rule 7.1(c)(3) (April 15, 2011)	N/A	Courts amended original Rule 7.1(c) (3) by deleting ban on “the portrayal of a judge,” then renumbered the amended rule as Rule 7.1(c)(2)
Rule 7.1(c)(4) (April 15, 2011)	N/A	Courts amended original Rule 7.1(c) (4) by adding a reference to “a judge,” and then renumbered it as Rule 7.1(c)(3)
Rule 7.1(c)(5) (April 15, 2011)	N/A	Courts deleted original Rule 7.1(c)(5) and then filled the void with former Rule 7.1(c)(6)
Rule 7.1(c)(6) (April 15, 2011)		Courts renumbered original Rule 7.1(c)(6) as Rule 7.1(c)(5)
Rule 7.1(c)(7) (April 15, 2011)		Courts deleted Rule 7.1(c)(7) but did not fill the void, so today there is no Rule 7.1(c)(7)
Rule 7.1(d)(3) (April 15, 2011)	N/A	Courts amended Rule 7.1(d)(3) by deleting the phrase “where not prohibited by paragraph (c)(1),“ since former Rule 7.1(c)(1) has been deleted
Rule 7.1(e)(4) (April 15, 2011)	N/A	New Rule – Courts added Rule 7.1(e) (4) as a new provision
Rule 7.1(g) (April 15, 2011)	N/A	Courts deleted former Rule 7.1(g)(1)
Rule 7.1, cmt. [5] (Nov. 2010)	Rule 7.1(f)	Technical Amendment
Rule 8.4, cmt. [2] (Jan. 2011)	Rule 8.4(b)	Substantive Amendment
Rule 8.4, cmt. [4] (Jan. 2011)	Rule 3.4(c) and Rule 8.4	Substantive Amendment
Rule 8.5, cmt. [1] (Nov. 2010)	Rule 8.5(a)	Technical Amendment
Rule 8.5, cmt. [3] (Nov. 2010)	Rule 8.5(b)	Technical Amendment
Rule 8.5, cmt. [4] (Nov. 2010)	Rule 8.5(b)(1) & (2)	Technical Amendment
Rule 8.5, cmt. [5] (Nov. 2010)	Rule 8.5(b)(2)	Technical Amendment