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44th Street Notes


Pursuing High Ethical Standards


Apr 2004

One of the Association’s founding missions was to elevate the standard of integrity in the legal profession. We are proud that the name of the Association has been synonymous with high ethical standards. As legal practice becomes more complex, the ethical challenges multiply, and our responsibility to provide guidance to the Bar becomes all the more important.

For the past 80 years, our Committee on Professional and Judicial Ethics, currently chaired by Barbara Gillers, has been responding to ethics-related questions.

The Committee issues formal opinions as guidance to the profession (more on these later), and provides informal opinions to individual inquirers. The members of the Committee staff an ethics hot-line, which is available to answer calls from any New York lawyer with regard to his or her own prospective conduct. The hot-line can be reached by calling 212-382-6624. Callers will then be given the committee member handling the hot line that week. The hot-line receives approximately 30 calls per week, and serves a vital function in the New York legal community. Our Committee on Professional Responsibility, chaired by Richard Maltz, addresses issues of attorney-client privilege and other professional responsibility topics, both related to the code and arising under law or other court rule. Our Professional Discipline Committee, chaired by Hal Lieberman, examines the disciplinary process and the interface between lawyer discipline and ethical requirements. These three committees often collaborate to consider major ethical policy issues, and in that vein will be working with the State Bar in the harmonizing of the New York Lawyer’s Code of Professional Responsibility with the American Bar Association’s Model Rules. These committees do not limit themselves to issues facing New York, and have weighed in on such national issues as multidisciplinary practice and multijurisdictional practice. As law practice has become more national and international, lawyers are more likely to need to conduct business in states other than those in which they are admitted to practice. Therefore, our horizon must be broad, and we must monitor ethical developments nationwide and worldwide. In addition to those committees that focus on issues relating to professional conduct, many of our substantive committees address ethical issues as they pertain to their areas of practice. Dozens of our continuing legal education programs each year are either devoted to ethics in specific fields or contain an ethics component. Beyond their attention to CLE, a number of committees collaborated over the past year to address the ethical implications of rules implementing the Sarbanes-Oxley Act regarding standards of professional conduct for lawyers who represent issuers of securities. The Association also plays a role in the handling of complaints against lawyers regarding ethical misconduct. Our Complaint Mediation Panel consists of volunteer mediators who seek to resolve disputes between lawyer and client, referred by the Departmental Disciplinary Committee, regarding alleged lawyer misconduct. The matters that are referred are generally perceived by the Disciplinary Committee as those which are more appropriately handled by resolving the problems between lawyer and client than pursuing ethical discipline.

The recent formal opinions of our Professional and Judicial Ethics Committee present an excellent cross-section of vexing ethical issues in modern law practice. In summary form, these opinions advised as follows:

— A lawyer or law firm may use a domain name that does not include or embody the firm’s name or that of any individual lawyer, under certain conditions: the web site bearing the domain name must clearly and conspicuously identify the actual law firm name; the domain name must not be false, deceptive or misleading; the name must not imply any special expertise or competence, or suggest a particular result; and, it must not be used in advertising as a substitute identifier of the firm.

— A lawyer may not, as a matter of routine practice, tape record conversations without disclosing that the conversation is being taped. A lawyer may, however, engage in the undisclosed taping of a conversation if the lawyer has a reasonable basis for believing that the disclosure of the taping would impair pursuit of a generally accepted societal good.

— When a lawyer receives a fax, email or other communication containing confidences or secrets that the lawyer knows or reasonably should know were transmitted by mistake, the lawyer (1) has obligations to promptly notify the sending attorney, to refrain from review of the communication, and to return or destroy the communication if so requested, but, (2) in limited circumstances, may submit the communication for in camera review by a tribunal, and (3) is not ethically barred from using information gleaned prior to knowing or having reason to know that the communication contains confidences or secrets not intended for the receiving lawyer. However, it is essential as an ethical matter that the receiving attorney promptly notify the sending attorney of the disclosure in order to give the sending attorney a reasonable opportunity to promptly take whatever steps he or she feels are necessary.

In addition, the committee recently issued extensive guidelines with regard to recordkeeping policies and systems that should be utilized to check for conflicts.

These and all formal ethics opinions from 1986 to the present are posted on the Association’s website, www.abcny.org, on the Reports/Publications page. We encourage you to take advantage of the resources the Association provides to address ethical issues that arise in your practice.

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