City Bar Proposes Amendments to New York State Rules of Professional Conduct Regarding Multi-Jurisdictional Practice
The City Bar has recommended revisions of the New York Rules of Professional Conduct designed to address certain anomalies regarding multi-jurisdictional practice, particularly in the context of concurrent representations being handled by different lawyers affiliated in a firm and practicing in more than one jurisdiction. The City Bar proposes amendments to Rules 8.5 (Disciplinary Authority and Choice of Law) and 1.10 (Imputation of Conflicts of Interest) so that, as the report states, “non-New York lawyers should not be required to comply with New York ethics rules solely by virtue of their affiliation with a New York lawyer, nor should a client who has engaged a lawyer on a matter with no nexus to New York be deprived of their choice of counsel.”
The report suggests several changes to the Rules of Professional Conduct. Among the changes, Rule 8.5 would be amended to provide that for matters other than those pending before a tribunal, the New York Rules of Professional Conduct would apply; “provided, however, if a lawyer reasonably believes that the services for which the lawyer or the lawyer’s firm has been retained have their predominant effect in another jurisdiction, such lawyer may rely on the rules of professional conduct of such other jurisdiction.”
Rule 1.10 would be amended so that “no conflict will be imputed where 1) a conflict arises under these rules from the conduct of lawyers practicing in another jurisdiction in accordance with such jurisdiction’s rules of professional conduct, and 2) such conduct is permitted by the rules of professional conduct of that other jurisdiction.” These changes would bring the New York Rules closer to the ABA Model Rules of Professional Conduct, and would limit the extraterritorial application of New York rules that impose unnecessary restrictions on client choice.
One example of the need for change is that under an interpretation of the New York Rules, a London-based lawyer in a firm with a New York office would be precluded from undertaking a representation in London to be governed by U.K. law if that representation, while permitted under the Solicitor’s Code governing U.K. lawyers, is not permitted under New York’s Rules.
The Committee makes clear that “lawyers have a duty to inform their clients of all material issues affecting their representation—including the applicable ethics rules and the possibility that the applicable conflicts of interest rules may vary by the nature of the matters they refer.” In addition, lawyers must be mindful, when undertaking adverse representation of current clients, of the nature of the confidential information they have acquired in the course of representing their respective clients.