NEW YORK RULES OF PROFESSIONAL CONDUCT

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NEW YORK RULES OFPROFESSIONAL CONDUCTEffective April 1, 2009As amended through June 1, 2018With Commentary as amended through June 1, 2018TABLE OF CONTENTSRuleTitle1.01.11.21.161.171.18Terminology .6Competence .11Scope of Representation and Allocation of Authority BetweenClient and Lawyer . 14Diligence . 19Communication . 21Fees and Division of Fees . 24Confidentiality of Information . 29Conflict of Interest: Current Clients. 38Current Clients: Specific Conflict of Interest Rules . 49Duties to Former Clients . 60Imputation of Conflicts of Interest .63Special Conflicts of Interest for Former and Current GovernmentOfficials and Employees . 69Specific Conflicts of Interest for Former Judges, Arbitrators,Mediators, or Other Third-Party Neutrals . 74Organization as Client .77Client with Diminished Capacity .82Preserving Identity of Funds and Property of Others; FiduciaryResponsibility; Commingling and Misappropriation of ClientFunds or Property; Maintenance of Bank Accounts; Record Keeping;Examination of Records .85Declining or Terminating Representation . 90Sale of Law Practice . 94Duties to Prospective Clients .992.12.22.32.4Advisor .103[Reserved] . 105Evaluation for Use by Third Persons .106Lawyer Serving as Third-Party Neutral .1083.13.2Non-Meritorious Claims and Contentions .110Delay of Litigation age1

3.33.43.53.63.73.83.9Conduct Before a Tribunal .112Fairness to Opposing Party and Counsel .117Maintaining and Preserving the Impartiality of Tribunalsand Jurors . 120Trial Publicity .123Lawyer as Witness .126Special Responsibilities of Prosecutors and OtherGovernment Lawyers .129Advocate in Non-Adjudicative Matters . 1324.14.24.34.44.5Truthfulness in Statements to Others .133Communication with Persons Represented by Counsel .134Communicating with Unrepresented Persons .137Respect for Rights of Third Persons .138Communication After Incidents involving Personal Injuryor Wrongful Death .1405.1Responsibilities of Law Firms, Partners, Managers, andSupervisory Lawyers.141Responsibilities of a Subordinate Lawyer . 144Lawyer’s Responsibility for Conduct of Nonlawyers.145Professional Independence of a Lawyer . 147Unauthorized Practice of Law. 149Restrictions on Right to Practice .150Responsibilities Regarding Nonlegal Services .151Contractual Relationship Between Lawyers and NonlegalProfessionals . 1555.25.35.45.55.65.75.86.16.26.36.46.5Voluntary Pro Bono Service .159[Reserved] . 162Membership in a Legal Services Organization .163Law Reform Activities Affecting Client Interests .164Participation in Limited Pro Bono Legal Service Programs . 1657.17.27.37.47.5Advertising .167Payment for Referrals . 175Solicitation and Recommendation of Professional Employment . 179Identification of Practice and Specialty .184Professional Notices, Letterheads, and Signs .1868.18.28.38.48.5Candor in the Bar Admission Process.190Judicial Officers and Candidates.191Reporting Professional Misconduct .192Misconduct . 194Disciplinary Authority and Choice of Law . 1962

NEW YORK RULES OF PROFESSIONAL CONDUCT(Effective April 1, 2009)PREAMBLE:A LAWYER’S RESPONSIBILITIES[1]A lawyer, as a member of the legal profession, is a representative of clients and an officer ofthe legal system with special responsibility for the quality of justice. As a representative of clients, a lawyerassumes many roles, including advisor, advocate, negotiator, and evaluator. As an officer of the legalsystem, each lawyer has a duty to uphold the legal process; to demonstrate respect for the legal system; toseek improvement of the law; and to promote access to the legal system and the administration of justice. Inaddition, a lawyer should further the public’s understanding of and confidence in the rule of law and thejustice system because, in a constitutional democracy, legal institutions depend on popular participation andsupport to maintain their authority.[2]The touchstone of the client-lawyer relationship is the lawyer’s obligation to assert the client’sposition under the rules of the adversary system, to maintain the client’s confidential information except inlimited circumstances, and to act with loyalty during the period of the representation.[3]A lawyer’s responsibilities in fulfilling these many roles and obligations are usuallyharmonious. In the course of law practice, however, conflicts may arise among the lawyer’s responsibilitiesto clients, to the legal system and to the lawyer’s own interests. The Rules of Professional Conduct oftenprescribe terms for resolving such conflicts. Nevertheless, within the framework of the Rules, many difficultissues of professional discretion can arise. The lawyer must resolve such issues through the exercise ofsensitive professional and moral judgment, guided by the basic principles underlying the Rules.[4]The legal profession is largely self-governing. An independent legal profession is animportant force in preserving government under law, because abuse of legal authority is more readilychallenged by a profession whose members are not dependent on government for the right to practice law.To the extent that lawyers meet these professional obligations, the occasion for government regulation isobviated.[5]The relative autonomy of the legal profession carries with it special responsibilities of selfgovernance. Every lawyer is responsible for observance of the Rules of Professional Conduct and alsoshould aid in securing their observance by other lawyers. Neglect of these responsibilities compromises theindependence of the profession and the public interest that it serves. Compliance with the Rules dependsprimarily upon the lawyer’s understanding of the Rules and desire to comply with the professional normsthey embody for the benefit of clients and the legal system, and, secondarily, upon reinforcement by peer andpublic opinion. So long as its practitioners are guided by these principles, the law will continue to be a nobleprofession.SCOPE[6]The Rules of Professional Conduct are rules of reason. They should be interpreted withreference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives,cast in the terms “shall” or “shall not.” These Rules define proper conduct for purposes of professionaldiscipline. Others, generally cast in the term “may,” are permissive and define areas under the Rules in3

which the lawyer has discretion to exercise professional judgment. No disciplinary action should be takenwhen the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define thenature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinaryand partly constitutive and descriptive in that they define a lawyer’s professional role. Many of theComments use the term “should.” Comments do not add obligations to the Rules but provide guidance forpracticing in compliance with the Rules. The Rules state the minimum level of conduct below which nolawyer can fall without being subject to disciplinary action.[7]The Rules presuppose a larger legal context shaping the lawyer’s role. That context includescourt rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers, andsubstantive and procedural law in general. The Comments are sometimes used to alert lawyers to theirresponsibilities under such other law.[8]The Rules provide a framework for the ethical practice of law. Compliance with the Rules, aswith all law in an open society, depends primarily upon understanding and voluntary compliance,secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcementthrough disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerationsthat should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules.[9]Furthermore, for purposes of determining the lawyer’s authority and responsibility, principlesof substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of theduties flowing from the client-lawyer relationship attach only after the client has requested the lawyer torender legal services and the lawyer has agreed to do so. But there are some duties, such as that ofconfidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyerrelationship shall be established. See Rule 1.18. Whether a client-lawyer relationship exists for any specificpurpose can depend on the circumstances and may be a question of fact.[10] Under various legal provisions, including constitutional, statutory and common law, theresponsibilities of government lawyers may include authority concerning legal matters that ordinarilyreposes in the client in private client-lawyer relationships. For example, a lawyer for a government agencymay have authority on behalf of the government to decide whether to agree to a settlement or to appeal froman adverse judgment. Such authority in various respects is generally vested in the attorney general and thestate’s attorney in state government, and in their federal counterparts, and the same may be true of othergovernment law officers. Also, lawyers under the supervision of these officers may be authorized torepresent several government agencies in intragovernmental legal controversies in circumstances where aprivate lawyer could not represent multiple private clients. These Rules do not abrogate any such authority.[11] Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invokingthe disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer’s conduct will bemade on the basis of the facts and circumstances as they existed at the time of the conduct in question and inrecognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation.Moreover, the Rules presuppose that whether discipline should be imposed for a violation, and the severityof a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation,extenuating factors and whether there have been previous violations.[12] Violation of a Rule should not itself give rise to a cause of action against a lawyer nor shouldit create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule4

does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer inpending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure forregulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability.Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties asprocedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning alawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateralproceeding or transaction has standing to seek enforcement of the Rule. Nevertheless, because the Rules doestablish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of theapplicable standard of conduct.[13] The Comment accompanying each Rule explains and illustrates the meaning and purpose ofthe Rule. The Preamble and this note on Scope provide general orientation. The Comments are intended asguides to interpretation, but the text of each Rule is authoritative.5

RULE 1.0:TERMINOLOGY(a)“Advertisement” means any public or private communication made by or onbehalf of a lawyer or law firm about that lawyer or law firm’s services, the primarypurpose of which is for the retention of the lawyer or law firm. It does not includecommunications to existing clients or other lawyers.(b)“Belief” or “believes” denotes that the person involved actually believes thefact in question to be true. A person’s belief may be inferred from circumstances.(c)“Computer-accessed communication” means any communication made by oron behalf of a lawyer or law firm that is disseminated through the use of a computer orrelated electronic device, including, but not limited to, web sites, weblogs, search engines,electronic mail, banner advertisements, pop-up and pop-under advertisements, chat rooms,list servers, instant messaging, or other internet presences, and any attachments or linksrelated thereto.(d)“Confidential information” is defined in Rule 1.6.(e)“Confirmed in writing” denotes (i) a writing from the person to the lawyerconfirming that the person has given consent, (ii) a writing that the lawyer promptlytransmits to the person confirming the person’s oral consent, or (iii) a statement by theperson made on the record of any proceeding before a tribunal. If it is not feasible toobtain or transmit the writing at the time the person gives oral consent, then the lawyermust obtain or transmit it within a reasonable time thereafter.(f)“Differing interests” include every interest that will adversely affect eitherthe judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent,diverse, or other interest.(g)“Domestic relations matter” denotes representation of a client in a claim,action or proceeding, or preliminary to the filing of a claim, action or proceeding, in eitherSupreme Court or Family Court, or in any court of appellate jurisdiction, for divorce,separation, annulment, custody, visitation, maintenance, child support or alimony, or toenforce or modify a judgment or order in connection with any such claim, action orproceeding.(h)“Firm” or “law firm” includes, but is not limited to, a lawyer or lawyers in alaw partnership, professional corporation, sole proprietorship or other associationauthorized to practice law; or lawyers employed in a qualified legal assistanceorganization, a government law office, or the legal department of a corporation or otherorganization.(i)“Fraud” or “fraudulent” denotes conduct that is fraudulent under thesubstantive or procedural law of the applicable jurisdiction or has a purpose to deceive,provided that it does not include conduct that, although characterized as fraudulent by6

statute or administrative rule, lacks an element of scienter, deceit, intent to mislead, orknowing failure to correct misrepresentations that can be reasonably expected to inducedetrimental reliance by another.(j)“Informed consent” denotes the agreement by a person to a proposed courseof conduct after the lawyer has communicated information adequate for the person tomake an informed decision, and after the lawyer has adequately explained to the personthe material risks of the proposed course of conduct and reasonably available alternatives.(k)“Knowingly,” “known,” “know,” or “knows” denotes actual knowledge ofthe fact in ques

NEW YORK RULES OF PROFESSIONAL CONDUCT (Effective April 1, 2009) PREAMBLE: A LAWYER’S RESPONSIBILITIES [1] A lawyer, as a member of the legal profession, is a representative of clients and an officer of the legal system with special responsibility for the quality of justice.

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