Letter From The President Of The New York County Lawyers' Association

2005-12-01 01:00

To The Readers Of The Metropolitan Corporate Counsel:

Sometimes it's good to be different. Try things your own way. Swim against the tide.That is what the New York legal profession has done in its approach to the rules of professional ethics. However, in the coming years, all that may change. And New York lawyers would be well advised to closely heed a process that is just now unfolding. Ethics reform may be coming and, with it, a complete overhaul of New York's Code of Professional Responsibility.

Since 1970, New York lawyers have been governed by the Code of Professional Responsibility. Its familiar Disciplinary Rules ("DRs") and Ethical Considerations ("ECs") are well known, or should be, to every lawyer practicing in New York State. In 1983, the Model Rules of Professional Conduct were adopted by the American Bar Association's House of Delegates. New York considered and rejected a proposal to adopt the Model Rules in 1985. At that time, only one other state, New Jersey, had adopted them. But now, New York is about to become the last holdout in clinging to the old Code. A committee of the New York State Bar Association is proposing to change that.

Under the able leadership of a distinguished former President of the New York State Bar Association, Steven C. Krane, the Committee on Standards of Attorney Conduct ("COSAC") has issued a voluminous report urging the profession to adopt the Model Rules, albeit with many variations from the ABA model, some of which are quite significant. COSAC believes that it is time for New York to jettison what it terms "the outmoded format of the Model Code."Indeed, compelling arguments are advanced in support of the reform. The structure of the Model Rules is far more user friendly, providing greater accessibility to ethical guidance sources for attorneys.In addition, the Model Rules are more comprehensive than the current Code, covering key areas that are presently addressed either in the non-binding, aspirational Ethical Considerations or not at all.

Another argument in support of reform is that the nationwide adoption of the Model Rules has spawned a body of law that is largely inaccessible to New York lawyers because of the difference in format. Thus, adoption of the Model Rules format would facilitate ethical research by New York lawyers and lawyers outside of New York would have a far easier time locating New York precedents.

Whether the arguments for New York to join the rest of the nation will prove irresistible remains to be seen. Under the current schedule, the New York State Bar Association's House of Delegates will consider the question to adopt the Model Rules format at its meeting in April 2006. Thereafter, if the effort is approved, the House will consider the content of every Model Rule in a process that will play out over the course of the next two years.Finally, after approval by the State Bar, the proposals will be forwarded to the court system with a request that the new format and content be adopted.

It is no exaggeration to say that this process will affect virtually every lawyer in New York State. The comprehensive ambit of the Model Rules is such that every aspect of law practice will be governed by them. As all lawyers know, the precise language adopted may have far-reaching consequences. It behooves all New York lawyers to acquaint themselves with this critical process and offer their views and insights on the proposed rules to the members of the New York State Bar Association's House of Delegates, whose recommendation may well be adopted by the court system.

Sincerely,

Norman Reimer