To The Readers of The Metropolitan Corporate Counsel:
Update On NYCLA Ethics Institute
In the fall of 2008, NYCLA's Board of Directors approved the establishment of an Ethics Institute to act as an umbrella entity for NYCLA's ethics activities. The Institute was also charged with:
• Serving as a liaison to the ethics-related committees of other bar associations;
• Enhancing the ethical components of continuing legal education programming;
• Advising NYCLA regarding the positions it should take on matters of ethics and professional responsibility; and
• Promoting publication opportunities for NYCLA and the members of the Ethics Institute's Board of Advisors.
I am grateful for the dedication and hard work of Lewis Tesser, Ethics Institute director, Bari Chase, CLE director, and the members of the Ethics Institute's Board of Advisors, comprising judges, academics, disciplinary committee members and practitioners, all of whom have contributed to the Institute's success.
Umbrella to NYCLA Committees
The Ethics Institute serves as an umbrella entity to the:
Task Force on Professionalism: In January, NYCLA issued its Task Force Report on Professionalism, identifying themes, problems and recommended solutions. The Report noted, "One predominant theme was an expressed need and desire for mentoring."As a result, a sub-committee of the Task Force and CLE Institute launched a Pilot Mentoring Program, pairing seasoned attorneys with mentees. Participants receive CLE credits through their involvement in educational programs. Additionally, mentors meet with their mentees in person, via phone and by email on an as-needed basis. Based on participants' feedback, plans are underway to institutionalize the program beyond the pilot stage in early 2011. The Task Force's new chair, Ronald C. Minkoff, looks forward to expanding the program and exploring professionalism initiatives.
Professional Discipline Committee: The Committee has studied theappropriateness and feasibility of performing pre-licensure criminal background checks on applicants for admission to the bar and the comparative penalties and settlement options among the various state agencies regulating professional licensure.
Professional Ethics Committee: The Committee, under Chair Barry Temkin, continues to issue thoughtful, cutting edge opinions, as well as provide emergency guidance to New York lawyers responding to hotline calls.
Continuing Legal Education
Since its inception, the Ethics Institute has sponsored 17 CLE programs, all with legal ethics as their foundation. On October 25, a program will feature prosecutors and defense attorneys exploring the provocative issue of "Is Criminal Lawyering About Truth?" The 2010/2011 programming calendar will continue to focus on the ethical obligations applicable to such substantive fields as employment law, alternative dispute resolution and immigration law.
Advice on NYCLA Positions
The Ethics Institute has advised the NYCLA Board on (or is currently researching):
• ABA's proposalto amend Rule 1.10(e) of the Model Rules re the screening of attorneys moving laterally from one law firm to another and avoiding the imputation of conflicts;
• FTC's proposed Red Flags rule;
• A proposed amendment to the New York Lien Law (authorizing an attorney to attach a charging lien to awards and settlement proceeds that clients receive through ADR and settlement negotiations);
• The relationship between age discrimination against attorney job applicants and the Rules of Professional Conduct, i.e., What should lawyers do when online employment forms ask questions they think are impermissible?;
• A recommendation that Rule 3.8 "Special Responsibilities of Prosecutors and Other Government Lawyers" be amended to govern the conduct of prosecutors in criminal matters where they learn of new, credible and material evidence indicating that the convicted defendant is likely innocent;
• Reforming New York State's financial disclosure requirements for attorney-legislators;
• Whether Professional Ethics Committee opinions should incorporate public comment; and
• Whether the New York Court of Appeals should adopt rules regarding the registration of in-house lawyers who are licensed and in good standing elsewhere.
Liaison with Ethics Committees of Other Bar Associations
The Ethics Institute has worked or is currently working with other bar associations on:
• the ABA Ethics 20/20 Commission;
• development of an approach for coordinating with other New York bars in advocating change and responding to proposed legislation or professional responsibility rules affecting the practice of law;
• the lack of a uniform system of attorney disciplinary among the departments in New York; and
• the proposal of rules to permit in-house counsel to serve their clients in New York when admitted elsewhere and agreeing to be subject to the disciplinary rules of New York.
Publications to Help Practicing Lawyers
A sub-committee of the Ethics Institute's Board of Advisors has prepared the just released The New York Rules of Professional Conduct, Rules and Commentary , Oxford University Press, 2010. This will be a major, practical and easily researchable guide for ethics questions for New York lawyers. Ethics Institute Board members have published articles in Bloomberg Law Reports , including: "The New New York Rules of Professional Conduct,""Who Is the 'Lawyer' Governed by New York's Disciplinary Rules" and "When a Client Wants to Give Something of Value to the Attorney," which was nominated as "one of the best contributed articles in the fourth quarter of 2009."
The Ethics Institute is building on NYCLA's history of keeping ethics and professionalism at the forefront of its activities and providing resources, practical guidance and role models for its members and the New York legal profession.
James B. Kobak, Jr.