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44th Street Notes


Elevating the Standard of Integrity, Honor and Courtesy in the Profession


Dec 1998

Ethical issues have been central to the mission of this Association from its founding in 1870. One of the Association’s declared objects, recited in its original charter and in Article II of its Constitution, is “elevating the standard of integrity, honor and courtesy in the legal profession.?The Association in recent decades has pursued this branch of its mission principally through three of its committees: the Committee on Professional and Judicial Ethics, the Committee on Professional Responsibility and the Committee on Professional Discipline.

The work of these committees, always important, has never been more so than it is today, for the changing face of our profession and the breathtaking pace of technological change have raised new ethical issues and presented old ones in new settings.

*Law firms are structurally less stable than they were in times past. Then, lawyers commonly began and ended their careers with the same firm, firms continued in the same form for decades, and lawyers were hired for indefinite periods of time. Now, in contrast, firms merge, partners move from one firm to another, and firms supplement their staffs with “temporary?lawyers. Each of these phenomena presents a number of ethical questions.

*The lines between different professions are becoming blurred, prompting this Association and others (specifically the ABA and the New York State Bar) to create task forces to study the phenomenon commonly called “multidisciplinary practice.?

*The changing face of corporate America has raised new and thorny conflict of interest questions. When may an attorney on behalf of one client take a position adverse to the interests of an affiliate of another client? That question so vexed the ABA Standing Committee on Professional Ethics that its l995 pronouncement on the subject (Opinion 95-390) cannot be called a unitary “opinion?because the ten members of the Committee issued four separate opinions, including two dissenting opinions and one opinion concurring in part and dissenting in part. Such a profusion of views does not provide clear guidance to the Bar.

*In a world of instant electronic communication, what steps must a lawyer take to preserve a client’s confidences and secrets, and how do disciplinary authorities deal with deceptive advertising and solicitations on the internet?

What have the Association’s three profession-oriented committees done and what are they currently doing to address these and other issues that the changing face of our society and our profession pose? The Committee on Professional and Judicial Ethics issues formal written opinions, which are now printed in The Record and placed on the Association’s website to broaden their availability. The Committee also issues informal written opinions, which are not published and may not be relied on by anyone other than the inquiring lawyer. (The decision to address some inquiries “informally?was made in the mid-eighties when the Committee had an enormous backlog of unanswered inquiries, and fact-specific responses, not expressed in language of generality that would necessarily provide guidance to the profession, were resorted to in order to work down the backlog.) The current Chair, Professor Mary Daly of Fordham Law School, anticipates that the Committee will issue more formal, published opinions before the end of the year. The Ethics Committee also maintains a telephone “hot line,?which any lawyer may call if an ethical question arises that must be resolved promptly. The Committee members field between 25 and 40 telephone inquiries each week. The lawyer managing the hot line can reached by calling (212) 382-6624.

The Committee on Professional Responsibility, chaired by John Harris, has been addressing some of the difficult questions presented by changes in the way law is practiced. In recognition of the increasingly multi-state character of the practice of law in general and litigation in particular, the Committee issued a report this past March calling for relaxation of the local counsel rules in state court, the abolition of those rules in federal court and the adoption of uniform pro hac vice state court rules. These reforms may have been against the economic self-interest of the Committee’s members, but they placed the interests of our clients first, in the very best tradition of the Bar. The Committee on Professional Responsibility is also addressing other issues of multi-state practice, including a controversial decision of the California Supreme Court on the unauthorized practice of law by lawyers admitted in other states, and an ethics committee opinion (since stayed) in New Jersey that would restrict the right of out-of-state lawyers to represent New Jersey bond issuers.

The third of our committees devoted to professional matters is the Committee on Professional Discipline, the successor to the Grievance Committee, whose investigative and prosecutorial responsibilities in the First Department were transferred in 1975 to the Departmental Disciplinary Committee. The Committee on Professional Discipline, chaired by Ron Minkoff, has collaborated with the Departmental Disciplinary Committee in redrafting the brochure which explains the disciplinary process and continues its advocacy of a broader and more flexible array of sanctions than those currently available. The Committee intends to examine the disciplinary procedures employed in the federal courts, and will evaluate the substantial changes made in the First Department disciplinary procedures earlier this year.

The jurisdictions of these three committees overlap in several respects. Their collaborative efforts, in considering and commenting on proposed changes in the Code of Professional Responsibility and in studying the draft federal rules of attorney conduct that are being considered by the advisory committees of the Judicial Conference of the United States, have been models of inter-committee collaboration.

It is a commonplace that lawyers are held in lesser regard today than in the past. We cannot rehabilitate the Bar in the public eye without a recommitment to our shared ethical standards, which in New York are embodied in the Lawyer’s Code of Professional Responsibility (and in other states in the Model Rules of Professional Conduct). That recommitment must include adaptation of long-standing ethical norms to new circumstances in our profession and in society at large. The Association has institutionally made that recommitment. Each of us must do so individually as well.



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