and How to Avoid It! N the Attorney...Understanding the Attorney Disciplinary Process – and How to Avoid It! Wednesday, March 16, 2011, 6:00 PM – 8:00 PM The New York State CLE

2 TRANSITIONAL ANd NON-TRANSITIONAL MCLE CREdITS:

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 2 Transitional and Non-Transitional credit hours; 2 Ethics.

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Understanding the attorney disciplinary process –

and How to Avoid It!Prepared in connection with a Continuing Legal Education course presented

at New York County Lawyers’ Association, 14 Vesey Street, New York, NY scheduled for March 16, 2011.

P r o g r A m C o - s P o N s o r :

NYCLA Ethics Institute

P r o g r A m C h A I r :

Pery Krinsky, Krinsky PLLC, Chair, NYCLA Committee on Professional Discipline

F A C u L t Y :

Sharon Gursen Ades, Assistant Counsel, State of NY Grievance Comm., 2d, 11th, 13th Jud. Dists.

Jeremy S. Garber, Special Trial Counsel, Dept. Disciplinary Comm., Sup. Ct., App. Div, 1st Dept.

Jonathan d. Lupkin, Flemming, Zulack Williamson Zauderer LLP, Chair, NYSBA Commercial and Federal Litigation Section

Information Regarding CLE Credits and Certification Understanding the Attorney Disciplinary Process – and How to Avoid It!

Wednesday, March 16, 2011, 6:00 PM – 8:00 PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your

course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at

the end of each day. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iv. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

v. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving . The time will be verified by the Program Assistant. If it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

vi. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Understanding the Attorney Disciplinary Process – and How to Avoid It!

Wednesday, March 16, 2011 6:00PM – 8:00PM

Program Co-Sponsor: NYCLA Ethics Institute Program Chair: Pery Krinsky, Krinsky PLLC; Chair NYCLA Professional

Discipline Committee Panel: Sharon Gursen Ades, Assistant Counsel, State of NY Grievance Comm., 2d, 11th, 13th Jud. Districts;

Jeremy S. Garber, Special Trial Counsel Dept. Disciplinary Comm., Sup. Ct., App. Div, 1st Dept;

Jonathan D. Lupkin, Flemming, Zulack Williamson Zauderer LLP; Chair, NYSBA Commercial and Federal Litigation Section

Agenda

5:30 PM – 6:00 PM Registration 6:00 PM -- 6:10 PM Introductions and Announcements 6:10 PM – 7:45 PM Panel Discussion: The Attorney Disciplinary process and How to Avoid It 7:45 PM – 8:00 PM Questions and Answers

NEW YORK COUNTY LAWYERS’ ASSOCIATION&

NEW YORK COUNTY LAWYERS’ ASSOCIATIONETHICS INSTITUTE

PRESENT:

“UNDERSTANDING THE ATTORNEY DISCIPLINARY PROCESS – AND HOW TO AVOID IT!”

MARCH 16, 20116:00 P.M. TO 8:00 P.M.NEW YORK COUNTY

LAWYERS’ ASSOCIATION

PERY D. KRINSKY, ESQ.KRINSKY, PLLC

WOOLWORTH BUILDING233 BROADWAY • SUITE 707

NEW YORK, NEW YORK 10279(212) 543-1400

[email protected]

COPYRIGHT © 2011BY PERY D. KRINSKY, ESQ.

ALL RIGHTS RESERVED

TABLE OF CONTENTS

INTRODUCTORY COMMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

MATTER OF PAULTER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

OFFICE OF LAWYER REGULATION v. HURLEY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

MATTER OF NISHIKAWARA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

OFFICE OF DISCIPLINARY COUNSEL v. LEPORE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

MATTER OF POSNER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

MATTER OF STUART . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

IN RE BROWN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

PEOPLE V. TERRY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

MATTER OF FRIEDMAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

NEW YORK STATE RULES OF PROFESSIONAL CONDUCT . . . . . . . . . . . . . . . . . . . . . . 82

SPEAKER’S BIOGRAPHY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

NEW YORK COUNTY LAWYERS’ ASSOCIATION&

NEW YORK COUNTY LAWYERS’ ASSOCIATIONETHICS INSTITUTE

PRESENT:

“UNDERSTANDING THE ATTORNEY DISCIPLINARY PROCESS – AND HOW TO AVOID IT”

PERY D. KRINSKY, ESQ.KRINSKY, PLLC

WOOLWORTH BUILDING233 BROADWAY • SUITE 707

NEW YORK, NEW YORK 10279(212) 543-1400

[email protected]

INTRODUCTORY COMMENT.

As the legal profession faces a new and more digital and global decade,litigators, and the judges before whom they appear, are increasingly faced withnovel and sometimes unfamiliar challenges of when, where and how the “practice”and the “business” of law are conducted – in the broader context of evaluatingclaims of ethical impropriety. Some of the most significant of these challengesinvolve the interpretation and application of ethics-related and other rules ofengagement in what has been described as “Rambo”-type lawyering.

Indeed, many of these novel questions will need to be considered, some forthe first time, in the context of the much anticipated, newly adopted New YorkRules of Professional Conduct. This Continuing Legal Education program willaddress new and modified Rules of Professional Conduct, as well as some of thefrequently raised issues relating to aggressive litigation, which should be “spotted”by attorneys for closer examination. Need-to-know, “high-impact” ethics issues tokeep both your client and your law license include: understanding the differencesbetween ethics and morality; questionable investigative techniques; the media’ssensationalism of the “trial lawyer”; the “zealous” advocacy defense; the impact oftechnology inside and outside the courtroom; and understanding the disciplinaryprocess.

Experience has taught litigators (and the attorneys who represent them inethics-related matters) that there are many pitfalls in an overly aggressive litigationstyle. This program will address a number of these issues, as well as the disciplinaryprocess; and will suggest guidelines for analyzing proposed conduct by attorneysinvolved in (sometimes overly) zealous advocacy. Lawyers who face disciplinaryand court inquiries into their conduct typically get in “trouble” not because theymake the “wrong” ethical decisions, but, rather, because they do not see the issuesin making their decisions. Hopefully, this program will sensitize attorneys whoengage in aggressive litigation to problems that may arise in the future – because,once those issues are identified, more often than not the lawyer will make the“right” decision.

PERY D. KRINSKY, ESQ. "UNDERSTANDING THE ATTORNEY DISCIPLINARY PROCESS...." PAGE 1

“UNDERSTANDING THEATTORNEY DISCIPLINARYPROCESS – AND HOW TO

AVOID IT!”


MATTER OF PAULTER


In re Pautler, 47 P.3d 1175 (2002)

© 2011 Thomson Reuters. No claim to original U.S. Government Works. 1

47 P.3d 1175Supreme Court of Colorado,

En Banc.

In the Matter of Mark C.PAUTLER, Attorney-Respondent.

No. 01SA129. May 13, 2002.

In attorney disciplinary proceeding, the Office of thePresiding Disciplinary Judge, 35 P.3d 571, held that attorney'smisconduct in deceiving murder suspect in order to encouragehis surrender warranted three-month suspension, stayedduring 12-month probationary period. Attorney appealed.The Supreme Court, Kourlis, J., held that: (1) no imminentpublic harm exception existed to the ethical principle that alawyer may not engage in deceptive conduct; (2) attorneyviolated the professional conduct rule that provided that, indealing on behalf of a client with a person not represented bycounsel, the attorney was required to state he was representinga client and could not state or imply that the attorney wasdisinterested; and (3) suspension for three months, which wasstayed during twelve months of probation during which theattorney was to take ethics courses and retake the professionalresponsibility examination, was reasonable.

Affirmed.

West Headnotes (7)

1 Attorney and Client Review

The factual findings by the attorney disciplinaryboard are binding on the reviewing court unless,after considering the record as a whole, thefindings are unsupported by substantial evidence.Rules Civ.Proc., Rule 251.27(b).

2 Attorney and Client Review

Questions of law in attorney disciplinaryproceedings receive de novo review as with anyappeal. Rules Civ.Proc., Rule 251.27(b).

3 Attorney and Client Grounds forDiscipline

No imminent public harm exception existed to theethical principle that a lawyer may not engage

in deceptive conduct, and thus deputy districtattorney who deceived a murder suspect in orderto encourage his surrender was not justified inviolating the professional conduct rule prohibitingconduct involving dishonesty, fraud, deceit ormisrepresentation. Rules of Prof.Conduct, Rule8.4(c).

13 Cases that cite this headnote

4 Attorney and Client Defenses

Neither duress nor “choice of evils” defensesapplied in attorney disciplinary proceeding inwhich attorney was charged with deceiving amurder suspect in order to persuade suspect tosurrender to police; attorney was not acting atthe direction of another person who threatenedharm, nor did the attorney engage in criminalconduct to avoid imminent public injury. Rules ofProf.Conduct, Rules 4.1, 8.4(c).


Deputy district attorney's statutory designation asa peace officer did not justify the ethical violationin his use of deception to persuade murder suspectto surrender, where he was acting in his capacityas attorney, rather than as peace officer, at time ofdeception. Rules of Prof.Conduct, Rule 8.4(c).


Deputy district attorney who deceived a murdersuspect in order to encourage his surrenderviolated the professional conduct rule thatprovided that, in dealing on behalf of a clientwith a person not represented by counsel, theattorney was required to state he was representinga client and could not state or imply that theattorney was disinterested; at all times during thedeception the attorney represented the state, butled the murder suspect to believe the attorneywas a public defender who was representing thesuspect. Rules of Prof.Conduct, Rule 4.3.



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In re Pautler, 47 P.3d 1175 (2002)


7 Attorney and Client Conditions

Suspension of deputy district attorney for threemonths, which was stayed during twelve monthsof probation during which the attorney was totake ethics courses and retake the professionalresponsibility examination, was reasonablesanction for attorney's misconduct in deceivingmurder suspect in order to encourage hissurrender; attorney's deceit breached public andprofessional trust, attorney acted intentionally,from which actual, unquantifiable harm resulted,and attorney failed to take steps after theimmediacy of the events waned to correct theblatant deception in which he took part. RulesCiv.Proc., Rule 251.27(b); Rules of Prof.Conduct,Rules 4.3, 8.4(c).


Attorneys and Law Firms

*1176 John Gleason, Attorney Regulation Counsel, NancyL. Cohen, Chief Deputy Regulation Counsel, Denver,Colorado, Attorneys for Petitioner.William A. Tuthill, III, Acting Jefferson County Attorney,Ellen G. Wakeman, Assistant County Attorney, Jennifer O.Pielsticker, Assistant County Attorney, Golden, Colorado,Attorneys for Attorney-Respondent.Ken Salazar, Attorney General, Cheryl Hone, AssistantAttorney General, Appellate Division, Denver, Colorado,Attorneys for Amicus Curiae, for Attorney-Respondent.Linda R. Johnson, Denver, Colorado, Attorney for AmicusCuriae Colorado Organization for Victim Assistance.H. Patrick Furman, Boulder, Colorado, Attorney for AmicusCuriae Colorado Criminal Defense Bar.Colorado District Attorneys Council, Peter A. Weir,Executive Director, Denver, Colorado.M. Katherine Howard, Deputy District Attorney, Pueblo,Colorado, Attorneys for Amicus Curiae for Attorney-Respondent.

Opinion

Justice KOURLIS delivered the Opinion of the Court.

I will employ such means as are consistent with Truth andHonor; I will treat all persons whom I encounter through mypractice of law with fairness, courtesy, respect, and honesty.

Oath of Admission-Colorado State Bar, 2002 1

In this proceeding we reaffirm that members of our professionmust adhere to the highest moral and ethical standards. Thosestandards apply regardless of motive. Purposeful deceptionby an attorney licensed in our state is intolerable, evenwhen it is undertaken as a part of attempting to secure thesurrender of a murder suspect. A prosecutor may not deceivean unrepresented person by impersonating a public defender.We affirm the hearing board's finding that the district attorneyin this case violated the Colorado Rules of ProfessionalConduct, and on somewhat different grounds, including theattorney's failure to disclose his deception immediately afterthe event, we also affirm the discipline imposed by thehearing board.

I.

The hearing board found the following facts by clear andconvincing evidence: On June 8th, 1998, Chief DeputyDistrict Attorney Mark Pautler arrived at a gruesome crimescene where three women lay murdered. All died fromblows to the head with a wood splitting maul. While atthe scene (“Chenango apartment”), Pautler learned that threeother individuals had contacted the sheriff's department withinformation about the murders. Pautler drove to the locationwhere those witnesses waited (“Belleview apartment”). Uponarrival, he learned that the killer was William Neal. Neal hadapparently abducted the three murder victims one at a time,killing the first two *1177 at the Chenango apartment overa three-day period. One of the witnesses at the Belleviewapartment, J.D.Y., was the third woman abducted. Neal alsotook her to the Chenango apartment where he tied her to abed using eyebolts he had screwed into the floor specificallyfor that purpose. While J.D.Y. lay spread-eagled on the bed,Neal brought a fourth woman to the Chenango apartment. Hetaped her mouth shut and tied her to a chair within J.D.Y.'sview. Then, as J.D.Y. watched in horror, Neal split the fourthvictim's skull with the maul. That night he raped J.D.Y. atgunpoint.

The following morning, Neal returned with J.D.Y. to theBelleview apartment. First one friend, a female, and thena second friend, a male, arrived at the apartment. Nealheld J.D.Y. and her two friends in the Belleview apartmentover thirty hours. He dictated the details of his crimes into



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In re Pautler, 47 P.3d 1175 (2002)


a recorder. Finally, he abandoned the apartment, leavinginstructions with J.D.Y. and her friends to contact police, andto page him when the police arrived.

When Pautler reached the Belleview apartment, DeputySheriff Cheryl Moore had already paged Neal according to theinstructions Neal had left. Neal answered the page by phoningthe apartment on a cell-phone. The ensuing conversationlasted three-and-a-half hours, during which Moore listenedto Neal describe his crimes in detail. She took notes of theconversation and occasionally passed messages to Pautlerand other officers at the scene. Sheriff Moore developed arapport with Neal and continuously encouraged his peacefulsurrender. Meanwhile, other law enforcement officers tapedthe conversation with a hand-held recorder set next to asecond phone in the apartment. Efforts to ascertain thelocation of Neal's cell-phone were unsuccessful.

At one point, Neal made it clear he would not surrenderwithout legal representation; Moore passed a message to thateffect to Pautler. Neal first requested an attorney who hadrepresented him previously, Daniel Plattner, but then alsorequested a public defender (PD). Pautler managed to findPlattner's office number in the apartment telephone book.When he called the number, however, Pautler received arecorded message indicating the telephone was no longer inservice. Pautler believed that Plattner had left the practiceof law, and he therefore made no additional attempt tocontact Plattner. Upon learning that Plattner was unavailable,Sheriff Moore agreed with Neal to secure a public defender.However, no one in the apartment made any attempt tocontact a PD or the PD's office.

Pautler later testified that he believed any defense lawyerwould advise Neal not to talk with law enforcement. Pautleralso testified that he did not trust anyone at the PD's office,although on cross-examination he admitted there was at leastone PD he did trust. Law enforcement officials present at theBelleview apartment, testifying in Pautler's defense, said theywould not have allowed a defense attorney to speak with Nealbecause they needed the conversation to continue until theycould apprehend Neal. Instead of contacting the PD's office,or otherwise contacting defense counsel, Pautler offered toimpersonate a PD, and those law enforcement agents at thescene agreed.

When Neal again requested to speak to an attorney, SheriffMoore told him that “the PD has just walked in,” and thatthe PD's name was “Mark Palmer,” a pseudonym Pautler hadchosen for himself. Moore proceeded to brief “Palmer” on

the events thus far, with Neal listening over the telephone.Moore then introduced Pautler to Neal as a PD. Pautlertook the telephone and engaged Neal in conversation. Nealcommunicated to Pautler that he sought three guarantees fromthe sheriff's office before he would surrender: 1) that he wouldbe isolated from other detainees, 2) that he could smokecigarettes, and 3) that “his lawyer” would be present. To thelatter request, Pautler answered, “Right, I'll be present.”

Neal also asked, “Now, um, at this point, I want to know,um, what my rights are-you feel my rights are right now.”Pautler did not answer the question directly, but askedfor clarification. Neal then indicated he sought assurancethat the sheriff's office would honor the promises made.Pautler communicated to Neal that he believed the sheriff'sdepartment would keep him isolated *1178 as requested.Pautler did not explain to Neal any additional rights, nordid Neal request more information on the topic. In laterconversations, it was clear that Neal believed “Mark Palmer”from the PD's office represented him.

Neal eventually surrendered to law enforcement withoutincident. An officer involved in the arrest approached Pautlerwith the news that Neal had asked whether his attorney waspresent. Pautler was at the scene but did not speak with Neal,although he asked the officer to tell Neal that the attorneywas indeed present. Evidence at the hearing indicated thatNeal was put into a holding cell by himself and received hisrequested cigarettes as well as a telephone call.

Pautler made no effort to correct his misrepresentationsto Neal that evening, nor in the days following. JamesAber, head of the Jefferson County Public Defender's office,eventually undertook Neal's defense. Aber only learned ofthe deception two weeks later when listening to the tapes ofthe conversation whereupon he recognized Pautler's voice.Aber testified at Pautler's trial that he was confused whenNeal initially said that a Mark Palmer already representedhim. Aber told the board that he had difficulty establishinga trusting relationship with the defendant after he told Nealthat no Mark Palmer existed within the PD's office. Severalmonths later Neal dismissed the PD's office and continuedhis case pro se, with advisory counsel appointed by the court.Ultimately, Neal was convicted of the murders and receivedthe death penalty. The parties dispute whether Neal dismissedAber out of the mistrust precipitated by Pautler's earlierdeception.

Attorney Regulation Counsel charged Pautler with violatingboth Colo. RPC 8.4(c) and 4.3 of the Colorado Rules of




In re Pautler, 47 P.3d 1175 (2002)


Professional Conduct (“Rules”). The presiding disciplinaryjudge granted summary judgment against Pautler on Rule8.4(c); the 4.3 charge went to a hearing board because thejudge ruled that (1) whether Neal was represented, and (2)whether Pautler gave advice, were disputed questions of fact.The board subsequently found that Pautler violated Rule 4.3.With one dissent, the board set the sanction for both violationsat three months suspension, with a stay granted during twelvemonths of probation. During that period, Pautler was toretake the MPRE, take twenty hours of CLE credits inethics, have a supervisor present whenever he engaged in anyactivity implicating Colo. RPC 4.3, and pay the costs of theproceedings.

We take note of additional facts pertinent to our decisionhere. First, Neal was an unrepresented person at the timePautler spoke with him; the parties stipulated to this fact afterthe PDJ's ruling but before Pautler's trial. Second, Pautler isa peace officer, level Ia, as defined in section 18-1-901(3)(l )(II)(A), 6 C.R.S. (2001), by virtue of his position inthe DA's office. As such, Pautler carries a badge and isauthorized to carry a weapon. He was armed during theseevents. He is further authorized to use lethal force, whennecessary, to apprehend a dangerous felon. § 18-1-707(2)(a)(I), 6 C.R.S. (2001). Also, all parties acknowledged Pautler'sreputation for honesty and high ethical standards. Finally,Pautler testified that given the same circumstance, he wouldnot act differently, apart from informing Neal's defensecounsel of the ruse earlier.

II.

Lawyers, as guardians of the law, play a vital role in thepreservation of society. The fulfillment of this role requiresan understanding by lawyers of their relationship with andfunction in our legal system. A consequent obligation oflawyers is to maintain the highest standards of ethicalconduct.Colo. R.P.C. pmbl.

The jokes, cynicism, and falling public confidence related tolawyers and the legal system may signal that we are not livingup to our obligation; but, they certainly do not signal that theobligation itself has eroded. For example, the profession itselfis engaging in a nation-wide project designed to emphasizethat “truthfulness, honesty and candor are the core of the

core values of the legal *1179 profession.” 2 Lawyersthemselves are recognizing that the public perception thatlawyers twist words to meet their own goals and pay

little attention to the truth, strikes at the very heart of theprofession-as well as at the heart of the system of justice.Lawyers serve our system of justice, and if lawyers aredishonest, then there is a perception that the system, too, mustbe dishonest. Certainly, the reality of such behavior must beabjured so that the perception of it may diminish. With dueregard, then, for the gravity of the issues we confront, we turnto the facts of this case.

III.

1 2 For purposes of our decision, “the board's factualfindings are binding on this court unless, after considering therecord as a whole, the findings are unsupported by substantialevidence.” People v. Bennett, 810 P.2d 661, 665 (Colo.1991);see also C.R.C.P 251.27(b) (mandating a “clearly erroneous”standard of review for findings of fact). Questions of lawin attorney disciplinary proceedings receive de novo reviewas with any appeal. C.R.C.P 251.27(b); see also People v.Reynolds, 933 P.2d 1295, 1303 (Colo.1997).

The complaint charged Pautler with violating Colo. RPC8.4: “It is professional misconduct for a lawyer to: ... (c)engage in conduct involving dishonesty, fraud, deceit ormisrepresentation.” This rule and its commentary are devoidof any exception. Nor do the Rules distinguish lawyersworking in law enforcement from other lawyers, apart fromadditional responsibilities imposed upon prosecutors. SeeColo. RPC 3.8; see also Berger v. United States, 295 U.S.

78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). 3 The twojurisdictions that have created exceptions to this blanket

prohibition limited them to circumstances inapposite here. 4

A. Pautler's Defense

We are unpersuaded by Pautler's assertion that his deceptionof Neal was “justified” under the circumstances, and weunderscore the rationale set forth in People v. Reichman, 819P.2d 1035 (Colo.1991). There, a district attorney sought tobolster a police agent's undercover identity by faking theagent's arrest and then filing false charges against him. Id. at1036. The DA failed to notify the court of the scheme. Id. Weupheld a hearing board's imposition of public censure for the

DA's participation in the ploy. Id. at 1039. 5

To support our holding in Reichman, we cited In reFriedman, 76 Ill.2d 392, 30 Ill.Dec. 288, 392 N.E.2d 1333(1979). There, a prosecutor instructed two police officersto testify falsely in court in an attempt to collar attorneys






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In re Pautler, 47 P.3d 1175 (2002)


involved in bribery. Friedman, 30 Ill.Dec. 288, 392 N.E.2dat 1334. A divided Illinois Supreme Court found suchadvice violated the ethics code despite the undeniably*1180 wholesome motive. Id. 30 Ill.Dec. 288, 392 N.E.2d

at 1336. Similarly, in In re Malone, 105 A.D.2d 455,480 N.Y.S.2d 603 (N.Y.App.Div.1984), a state attorneyinstructed a corrections officer, who was an informant inallegations against correctional officers abusing inmates, tolie to an investigative panel. Id. at 604-05. The instruction waspurportedly to save the testifying officer from retribution bythe other corrections officers. Id. Again, despite the laudablemotive, the New York court upheld Malone's censure forbreaking the code. Id. at 607-08.

Thus, in Reichman, we rejected the same defense to Rule8.4(c) that Pautler asserts here. We ruled that even anoble motive does not warrant departure from the Rules ofProfessional Conduct. Moreover, we applied the prohibitionagainst deception a fortiori to prosecutors:

District attorneys in Colorado owe avery high duty to the public becausethey are governmental officials holdingconstitutionally created offices. This courthas spoken out strongly against misconductby public officials who are lawyers. Therespondent's responsibility to enforce the lawsin his judicial district grants him no license toignore those laws or the Code of ProfessionalResponsibility.

Reichman, 819 P.2d at 1038-39 (citations omitted).

We stress, however, that the reasons behind Pautler's conductare not inconsequential. In Reichman, we also stated, “Whilethe respondent's motives and the erroneous belief of otherpublic prosecutors that the respondent's conduct was ethicaldo not excuse these violations of the Code of ProfessionalResponsibility, they are mitigating factors to be taken intoaccount in assessing the appropriate discipline.” Id. at 1039.Hence, Reichman unambiguously directs that prosecutorscannot involve themselves in deception, even with selflessmotives, lest they run afoul of Rule 8.4(c).

B. Imminent Public Harm Exception

Pautler requests this court to craft an exception to theRules for situations constituting a threat of “imminent publicharm.” In his defense, Pautler elicited the testimony of anelected district attorney from a metropolitan jurisdiction.

The attorney testified that during one particularly difficultcircumstance, a kidnapper had a gun to the head of a hostage.The DA allowed the kidnapper to hear over the telephonethat the DA would not prosecute if the kidnapper releasedthe hostage. The DA, along with everyone else involved,knew the DA's representation was false and that the DA fullyintended to prosecute the kidnapper. Pautler analogizes hisdeceptive conduct to that of the DA in the hostage case andsuggests that both cases give cause for an exception to Rule8.4(c).

3 We first note that no complaint reached this courtalleging that the DA in the kidnapper scenario violatedRule 8.4(c), and therefore, this court made no decisioncondoning that DA's behavior. But assuming arguendo thatthe DA acted in conformity with the Rules, one essentialfact distinguishes the hostage scenario from Pautler's case:the DA there had no immediately feasible alternative. If theDA did not immediately state that he would not prosecute,the hostage might die. In contrast, here Neal was in themidst of negotiating his surrender to authorities. Neal didmake references to his continued ability to kill, which Pautlerdescribed as threats, but nothing indicated that any specificperson's safety was in imminent danger. More importantly,without second guessing crime scene tactics, we do notbelieve Pautler's choices were so limited. Pautler had severalchoices. He had telephone numbers and a telephone and couldhave called a PD. Indeed, he attempted to contact attorneyPlattner, an indication that communicating with a defenseattorney was not precluded by the circumstances. Pautler alsohad the option of exploring with Neal the possibility that noattorney would be called until after he surrendered. Whilewe do not opine, in hindsight, as to which option was best,we are adamant that when presented with choices, at leastone of which conforms to the Rules, an attorney must not

select an option that involves deceit or misrepresentation. 6

*1181 The level of ethical standards to which our professionholds all attorneys, especially prosecutors, leaves no room fordeceiving Neal in this manner. Pautler cannot compromise hisintegrity, and that of our profession, irrespective of the cause.

C. Duress and Choice of Evils

Pautler further argues that the traditional defenses of duress 7

and “choice of evils” 8 provide examples of appropriatedefenses to allegations of ethical misconduct. He also refersthe court to the comment after Rule 4.1 where attorneyspermissibly “misrepresent” their client's position as part of“generally accepted conventions in negotiations.” Colo. RPC


















In re Pautler, 47 P.3d 1175 (2002)


4.1 cmt. Pautler does not assert that any of these exceptionsapply in his case, but that their existence demonstrates thatexceptions are, at times, available to the otherwise strictlyinterpreted ethics rules.

4 This court has never examined whether duress or choice of

evils can serve as defenses to attorney misconduct. 9 We notethat the facts here do not approach those necessary for eitherdefense: Pautler was not acting at the direction of anotherperson who threatened harm (duress), nor did he engage incriminal conduct to avoid imminent public injury (choice ofevils).

A review board in Illinois examined a similar scenarioand decided against such an exception. In re Chancey, No.91CH348, 1994 WL 929289, at *7 (Ill. Att'y Reg. Disp.Comm'n Apr. 21, 1994). In Chancey, a prosecutor with animpeccable reputation drafted a false appellate court orderfor the sole purpose of deceiving a dangerous felon who hadabducted his own child and taken her abroad. Id. at **2-4.Chancey signed a retired judge's name to the order. Id. at *3.He never intended to file the order and did not file the order,nor was the order ultimately used to deceive the felon. Id.Despite its non-use, and despite Chancey's undeniably worthymotive, the Illinois board reprimanded Chancey for his deceit.Id. at *7. Rather than consider an exception in light of validconcerns over the safety of an abducted child, the boardinsisted on holding attorneys, especially prosecutors, to theletter of the Rules. Further, the board observed, and we agree,that motive evidence was only relevant in the punishmentphase, as either a mitigating or aggravating factor. Id.

Nor does the commentary to Colo. RPC 4.1 persuade usthat an exception to Colo. RPC 8.4(c) is appropriate. Ifanything, the fact that the commentary to Rule 4.1 madeexplicit an already acknowledged exception demonstratesthat, where applicable, the Rules and commentary set forththeir own exceptions. Neither Colo. RPC 8.4(c), nor itscomment, contain any such exception. On a related point, thehearing board noted, “Both of the rules under which Pautlerwas charged are imperative, not permissive in application.Compliance with their mandatory provisions is required andis not subject to the exercise of discretion by the lawyer.”

D. Role of Peace Officer

Finally, Pautler contends that this court has never addressedwhether district attorneys, “while functioning as peaceofficers,” may employ deception to apprehend suspects.*1182 He suggests that because peace officers may employ

lethal force when pursuing a fleeing, dangerous felon, itwould be absurd to sanction an officer who instead usesartifice, simply because that officer is also a licensed attorney.We disagree.

5 The Rules of Professional Conduct apply to anyonelicensed to practice law in Colorado. See In re C de Baca,11 P.3d 426, 429-30 (Colo.2000) (ruling that lawyers mustadhere to the Rules of Professional Conduct even whensuspended from the practice of law). The Rules speak to the“role” of attorneys in society; however, we do not understandsuch language as permitting attorneys to move in and out ofethical obligations according to their daily activities. Pautlercites Higgs v. District Court, 713 P.2d 840 (Colo.1985),for the proposition that this court has provided a test fordistinguishing when prosecutors act as “advocates” and whenthey act as “investigators,” for purposes of governmentalimmunity. Id. at 853. Such test exists, but we hold herethat in either role, the Rules of Professional Conduct apply.The obligations concomitant with a license to practice lawtrump obligations concomitant with a lawyer's other duties,even apprehending criminals. Moreover, this case does notconfront us with the propriety of an attorney using deceitinstead of lethal force to halt a fleeing felon. We limit ourholding to the facts before us. Until a sufficiently compellingscenario presents itself and convinces us our interpretation ofColo. RPC 8.4(c) is too rigid, we stand resolute against anysuggestion that licensed attorneys in our state may deceive orlie or misrepresent, regardless of their reasons for doing so.

IV.

6 The complaint also charges Pautler with violating Rule4.3:

In dealing on behalf of a client with aperson who is not represented by counsel,a lawyer shall state that the lawyer isrepresenting a client and shall not state orimply that the lawyer is disinterested. Whenthe lawyer knows or reasonably should knowthat the unrepresented person misunderstandsthe lawyer's role in the matter, the lawyershall make reasonable efforts to correct themisunderstanding. The lawyer shall not giveadvice to the unrepresented person other thanto secure counsel.

Colo. RPC 4.3. This rule targets precisely the conductin which Pautler engaged. At all times relevant, Pautler


















In re Pautler, 47 P.3d 1175 (2002)


represented the People of the State of Colorado. 10 Theparties stipulated that Neal was an unrepresented person.Pautler deceived Neal and then took no steps to correctthe misunderstanding either at the time of arrest or inthe days following. Pautler's failure in this respect wasan opportunity lost. Where he could have tempered thenegative consequences resulting from the deception, heinstead allowed them to linger.

While it is unclear whether Pautler actually gave advice toNeal, he certainly did not inform Neal to retain counsel.In addition, Pautler went further than implying he wasdisinterested; he purported to represent Neal. Without doubt,Pautler's conduct violated the letter of Colo. RPC 4.3.

For reasons substantially similar to those above, we refuseto graft an exception to this rule that would justify or excusePautler's actions. Instead, we affirm the ruling of the hearingboard finding a violation of Colo. RPC 4.3 and turn now toconsider the sanction imposed.

V.

The hearing board suspended Pautler for three monthsand then stayed that suspension during twelve months ofprobation. During the probationary period, Pautler was tofulfill various conditions including retaking the MPRE.We review this sanction under a reasonableness standard.C.R.C.P 251.27(b).

The board rendered its decision after reviewing the ABAStandards for Imposing *1183 Lawyer Sanctions (1991& Supp.1992) (ABA Standards ). Those standards requireexamination of the duty violated; the lawyer's mentalstate; the potential or actual injury caused by the lawyer'smisconduct; and the existence of aggravating or mitigatingfactors. ABA Standards 3.0.

The board found that Pautler violated duties to the legalsystem, the profession, and the public. It also ruled that hismental state was “not only knowing, it was intentional.”Further, the board found actual injury to the administrationof justice in that Pautler's conduct “contributed to a perceivedlack of trust between Neal and his lawyers, adverselyimpacted subsequent judicial proceedings and resulted inadditional hearings to explore factual and legal issues createdby the deceptive conduct.” The board ruled the harm wasperhaps unquantifiable, but certainly present. The boardalso found substantial “potential injury” because, had Nealdiscovered Pautler's deception, the “negotiating gains made

by Sheriff Moore might be lost, Neal could terminatecommunication and resume or escalate his murderous crimespree.” The board also considered the implications of whetherPautler actually became Neal's lawyer.

Addressing mitigating factors, the board acknowledgedPautler's praiseworthy motive, but also found a “secondary”motive: to keep Neal “talking about his crimes without thebenefit of requested legal representation and thereby gain anadvantage in subsequent legal proceedings.” Other mitigatingfactors included Pautler's full cooperation with the Officeof Attorney Regulation, see ABA Standards 9.32(e), andhis lack of prior discipline, see id. at 9.32(a). Among theaggravators, the board found Pautler's substantial experiencewith the law, see id. at 9.22(i), and, most importantly, hislack of remorse, see id. at 9.22(g). While the board ultimatelyruled that the mitigating factors outweighed the aggravatingfactors, they declined to depart from the presumptive sanctionof suspension.

We conclude that the hearing board's discipline wasreasonable. Pautler violated a duty he owed the public, thelegal system, and the profession. His role of prosecutor makeshim an instrument of the legal system, a representative ofthe system of justice. The fact that he lied for what hethought was a good reason does not obscure the fact that helied-in an important circumstance and about important facts.To the extent Pautler's misconduct perpetuates the public'smisperception of our profession, he breached public andprofessional trust. See generally ABA Standards 5.0-7.0.

Second, the record supports the board's finding that Pautleracted intentionally. He intended to deceive Neal intobelieving not only that the attorney on the telephone was aPD, but that the attorney represented him. Because Pautler'sconscious objective was to accomplish the result, his mentalstate was intentional. See ABA Standards definitions.

Third, we agree that the evidence before the hearing boardsupported the finding of actual, unquantifiable harm. We donot agree, however, that the evidence also supported a finding

of potential harm. 11

As to the aggravating factors, we do not find adequate supportin the record for the board's finding that Pautler harboreda secondary, ulterior motive. While it is undoubtedly truethat Pautler sought to keep Neal on the telephone until hesurrendered, no evidence suggested he did so in an effort togain a tactical advantage in subsequent criminal proceedings.Pautler never attempted to elicit incriminating statements





In re Pautler, 47 P.3d 1175 (2002)


from Neal. Indeed, Neal had already confessed to the crimesin substantial detail, both over the telephone and in the tapedconfession he left at the Belleview apartment; there was littleneed for additional evidence. For purposes of aggravation andmitigation, we conclude that Pautler's only motive was Neal'ssurrender to law enforcement.

*1184 However, we do find an additional aggravatingcircumstance: Pautler's post-incident conduct. An attorney'spost-incident conduct also bears upon aggravation andmitigation. See ABA Standards 9.22(j) (indifference inmaking restitution is an aggravating factor); id. at 9.32(d)(timely good-faith effort to make restitution or to rectifyconsequences of misconduct is a mitigating factor). After theimmediacy of the events waned, Pautler should have takensteps to correct the blatant deception in which he took part.Instead, he dismissed such responsibility believing that thePD's office “would find that out in discovery.” Although wedo not agree that Pautler's subsequent failure to correct thedeception was evidence of a secondary, ulterior motive, asthe hearing board found, we do find that such conduct was anindependent aggravating factor.

In mitigation, we credit Pautler's commendable reputation inthe legal community, his lack of prior misconduct, and his fullcooperation in all these proceedings. In addition, we believePautler's motivation to deceive Neal was in no way selfish orself-serving. He believed he was protecting the public.

7 In light of the various factors bearing on Pautler'sdiscipline, we do not find the hearing board's sanctionunreasonable. See C.R.C.P. 251.27(b). Other attorneysparticipating in deceit and misrepresentation have receivedsuspensions. See, e.g., In the Matter of Gibson, 991 P.2d

277, 279 (Colo.1999) (ordering thirty-day suspension whenattorney deceived client to hide the fact that the attorney hadneglected his client's tort claim); People v. Casey, 948 P.2d1014, 1015 (Colo.1997) (affirming forty-five-day suspensionwhen an attorney “represented” a teenager in criminal chargesknowing the teen was using an assumed name).

In sum, we agree with the hearing board that deceitfulconduct done knowingly or intentionally typically warrantssuspension, or even disbarment. See ABA Standards7.2 (“Suspension is generally appropriate when a lawyerknowingly engages in conduct that is a violation of a dutyowed to the profession ....”); id. at 5.11(b) (“Disbarmentis generally appropriate when ... a lawyer engages inany other intentional conduct involving dishonesty, fraud,deceit, or misrepresentation....”). We further agree that themitigating factors present in Pautler's case outweigh theaggravating factors, and affirm the imposition of a three-month suspension, which shall be stayed during twelvemonths of probation. This sanction reaffirms for all attorneys,as well as the public, that purposeful deception by lawyersis unethical and will not go unpunished. At the same time, itacknowledges Pautler's character and motive.

VI.

Therefore, we affirm the hearing board's ruling that Pautlerviolated Rules 8.4(c) and 4.3 of the Colorado Rules ofProfessional Conduct. We also affirm the hearing board'sprobationary period, with a three-month suspension to beimposed only if Pautler violates the terms of that probation.Finally, Pautler is to pay the costs of this proceeding asordered by the hearing board.

Footnotes

1 The Oath of Admission that Mark Pautler actually took when he was sworn into the Colorado Bar in 1975 read:

“I will ... advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice

of the cause with which I am charged.”

Oath of Admission-Colorado State Bar, 1975

In the intervening years, this court has changed the Oath in a way that more specifically reflects the commitment to the basic precepts

of the profession: fairness, courtesy, respect and honesty.

2 Professional Reform Initiative project of the National Conference of Bar Presidents, 2001.

3 We recall Justice Sutherland's famous rationale behind the heightened ethical standards imposed upon federal prosecutors:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation

to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is

not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law,

the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed,

he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from

improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger, 295 U.S. at 88, 55 S.Ct. 629.











In re Pautler, 47 P.3d 1175 (2002)


4 Only Utah and Oregon have construed or changed their ethics rules to permit government attorney involvement in undercover

investigative operations that involve misrepresentation and deceit. See Utah State Bar Ethics Advisory Opinion Comm., No. 02-05,

3/18/02, and Or. DR 1-102(d), respectively. The recently issued advisory opinion of the Utah Bar Ethics Committee holds that

attorneys may participate in “otherwise lawful” government investigative operations without violating the state's ethics rules. Id.

The Oregon rule is more restrictive. It encompasses similar investigative operations, but limits the attorney's role to “supervising”

or “advising,” not permitting direct participation by attorneys. See Or. DR 1-102(d).

5 Reichman violated DR 1-102(A)(4), the identically worded predecessor to Colo. RPC 8.4(c).

6 We do not address whether, under some unique circumstances, an “imminent public harm” exception could ever apply to the

Colorado Rules of Professional Conduct. We hold only that this is not such case.

7 Duress is available by statute as a complete defense to criminal charges where the defendant engaged in conduct “at the direction

of another person because of the use or threatened use of unlawful force upon him or upon another person” to such degree that a

“reasonable person ... would have been unable to resist.” § 18-1-708, 6 C.R.S. (2001).

8 “Choice of evils” is a statutory defense applicable when the alleged criminal conduct was “necessary as an emergency measure to

avoid an imminent public or private injury which [was] about to occur ... and which [was] of sufficient gravity” that it outweighed

the criminal conduct. § 18-1-702, 6 C.R.S. (2001).

9 Pautler cites Montag v. State Bar, 32 Cal.3d 721, 186 Cal.Rptr. 894, 652 P.2d 1370 (1982), and Trammell v. Disciplinary Board,

431 So.2d 1168 (Ala.1983), as examples where other jurisdictions have indicated that duress may be a defense to ethics violations.

We note that in neither case did the court find facts sufficient to sustain the defense. While they did not reject the defense outright,

the courts ruled that the facts did not warrant its application.

10 The Colorado Attorney General writing as friend of the court asserted that, during these events, Pautler acted on behalf of the police

department “which is not the district attorney's client.” This rationale does not comport with sections 20-1-101 to -102, 6 C.R.S.

(2001), and we therefore decline to adopt it.

11 The board weighed the ramifications of Neal's discovering Pautler's deceit and “resuming or escalating his murderous crime spree.”

We do not view this as “potential harm” under the ABA Standards. The record does not suggest that Neal “probably” would have

resumed his crime spree due to Pautler's deception, but for some intervening factor. Neal might have continued killing regardless,

or he might not have continued even if he discovered Pautler's deception. Hypothetical, worst-case scenarios are not the proper

foundation for imposing discipline.

End of Document © 2011 Thomson Reuters. No claim to original U.S. Government Works.









OFFICE OF LAWYERREGULATION v. HURLEY







Reception

Rectangle






























MATTER OF NISHIKAWARA



OFFICE OF DISCIPLINARYCOUNSEL v. LEPORE








MATTER OF POSNER


Decided on December 16, 2010

SUPREME COURT, APPELLATE DIVISION First Judicial Department David Friedman, Justice Presiding, Eugene Nardelli Leland G. DeGrasse Helen E. Freedman Sallie Manzanet-Daniels, Justices. M3722

[*1]In the Matter of Louis J. Posner (admitted as Louis Joseph Posner), an attorney and counselor-at-law: Departmental Disciplinary Committee for the First Judicial

Department, Petitioner, Louis J. Posner, Respondent.

Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Louis J. Posner, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department on August 6, 1990. Alan W. Friedberg, Chief Counsel, Departmental Disciplinary Committee, New York (Raymond Vallejo, of counsel), for petitioner. Respondent pro se.

Matter of Posner

2010 NY Slip Op 09356

Decided on December 16, 2010

Appellate Division, First Department

Per Curiam

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.


M—3722 - September 20, 2010 In the Matter of Louis J. Posner, an Attorney [*2]

Per Curiam

Respondent Louis J. Posner was admitted to the practice of law in the State of New York by the First Judicial Department on August 6, 1990, as Louis Joseph Posner. At all times relevant to this proceeding, respondent maintained his principal place of business within the First Judicial Department.

On March 23, 2010, respondent pleaded guilty to promoting prostitution in the third degree (Penal Law § 230.25[1]), a class D felony. At the plea hearing, respondent admitted that he had "knowingly advanced and profited from prostitution" by dancers at a night club he owned and managed. Respondent also admitted to "engaging in sexual conduct with dancers in the private rooms in exchange for allowing them to work at the club."

On that same day, March 23, 2010, respondent pleaded guilty to a total of three class A misdemeanors: two counts of falsely reporting an incident in the third degree (Penal Law § 240.50[3][a]) and one count of offering a false instrument for filing in the second degree (Penal Law § 175.30). During his plea allocution, respondent admitted that, among other things, he falsely reported to the New York City Police Department that police officers attempted to extort money from him by threatening to close his night club. Respondent also admitted that he offered the Police Department a document for filing that repeated the false extortion claim.

At the conclusion of his plea allocutions, respondent was sentenced on his misdemeanor conviction to a one-year conditional discharge and ordered to perform 60 hours of community service. On April 22, 2010, respondent was sentenced on his felony conviction to five years probation and a $300 surcharge.

The Departmental Disciplinary Committee now petitions this Court for an order striking respondent's name from the roll of attorneys pursuant to Judiciary Law § 90(4)(b) on the ground that, pursuant to Judiciary Law § 90(4)(a) and (e), he was automatically disbarred upon his conviction of a crime classified as a felony under New York law. Upon pleading guilty to a felony, a person ceases to be an attorney authorized to practice law in


this state (see Matter of Ugweches, 69 AD3d 125 [2009]; Matter of Chilewich, 20 AD3d 109 [2005]). In opposing the petition, respondent, acting pro se, invokes a certificate of relief from civil disabilities that was issued to him pursuant to Article 23 of the Correction Law upon his sentencing. Respondent's reliance on the certificate is unavailing (see Matter of Glucksman, 57 AD2d 205 [1977], lv denied 42 NY2d 804 [1977]; Matter of Sugarman, 51 AD2d 170 [1976], lv denied 39 NY2d 707 [1976]), as is his argument that automatic disbarment violates constitutional standards of due process.

Accordingly, the Committee's petition to strike respondent's name from the roll of attorneys and counselors-at-law in the State of New York should be granted, effective nunc pro tunc to March 23, 2010. All concur. Order filed [December 16, 2010]. Friedman, J.P., Nardelli, DeGrasse, Freedman, and Manzanet-Daniels, JJ.

Respondent disbarred and his name is stricken from the roll of attorneys and counselors-at-law in the State of New York, nunc pro tunc to March 23, 2010. Opinion Per Curiam. All concur. [*3]

Return to Decision List


MATTER OF STUART


In re Stuart, 22 A.D.3d 131 (2005)

803 N.Y.S.2d 577, 2005 N.Y. Slip Op. 06936


View National Reporter System version

22 A.D.3d 131, 803 N.Y.S.2d577, 2005 N.Y. Slip Op. 06936

In the Matter of Claude Nelson Stuart, an Attorney,Respondent. Grievance Committee for the

Second and Eleventh Judicial Districts, Petitioner

Supreme Court, Appellate Division,Second Department, New York

September 26, 2005

CITE TITLE AS: Matter of Stuart

SUMMARY

Disciplinary proceedings instituted by the GrievanceCommittee for the Second and Eleventh Judicial Districts.Respondent was admitted to the bar on January 18, 1989 ata term of the Appellate Division of the Supreme Court inthe Second Judicial Department. By decision and order onapplication of this Court dated April 26, 2004, the GrievanceCommittee was authorized to institute and prosecute adisciplinary proceeding against the respondent, and the issuesraised were referred to John P. Clarke, Esq., as SpecialReferee, to hear and report.

HEADNOTE

Attorney and ClientDisciplinary Proceedings

Respondent attorney, who, while an Assistant DistrictAttorney, gave false information to a Justice of theSupreme Court during a criminal trial, was guilty ofprofessional misconduct. Under the totality of circumstances,including respondent's long legal career, his communityservice, character evidence submitted on his behalf, and hisdisciplinary history, which consisted of a letter of caution,respondent was suspended from the practice of law for aperiod of three years.

TOTAL CLIENT-SERVICE LIBRARY REFERENCES

Am Jur 2d, Attorneys at Law §§ 38, 50, 114.

Carmody-Wait 2d, Officers of Court §§ 3:262, 3:277, 3:279,3:287.

22 NYCRR 1200.3 (a).

NY Jur 2d, Attorneys at Law §§ 373-375, 400, 401, 403.

ANNOTATION REFERENCE

Fabrication or suppression of evidence as ground ofdisciplinary action against attorney. 40 ALR3d 169.

FIND SIMILAR CASES ON WESTLAW

Database: NY-ORCS

Query: suspen! & misrep! false /s court /s criminal & mitigat!

*132 APPEARANCES OF COUNSEL

Diana Maxfield Kearse, Brooklyn (Melissa D. Broder ofcounsel), for petitioner.

Jerome Karp, P.C., Brooklyn, for respondent.

OPINION OF THE COURT

Per Curiam.

The petitioner served the respondent with a petition datedMay 11, 2004, containing one charge of professionalmisconduct. After a prehearing conference on June 23, 2004,and a hearing on August 9, 2004, the Special Refereesustained the charge.

The petitioner now moves to confirm the Special Referee'sreport and to impose such discipline upon the respondent asthe Court deems necessary. The respondent has submittedan affirmation in opposition to the petitioner's motion, inwhich he requests that the Court disaffirm the **2 SpecialReferee's report and refer the matter back to the petitioner forthe imposition of such discipline as it deems appropriate.

Charge One alleges that the respondent gave false informationto a Justice of the Supreme Court during a criminal homicidetrial, in violation of Code of Professional Responsibility DR1-102 (a) (4), (5) and (7) (22 NYCRR 1200.3 [a] [4], [5], [7]).

In or about May 2002, the respondent, as an AssistantDistrict Attorney in Queens County, was the prosecutor inPeople v Johnson, under indictment No. 2002/00, before theHonorable Jaime A. Rios in the Supreme Court, QueensCounty. Prior to jury selection, defense counsel raised anissue regarding a potential Brady violation (see Brady vMaryland, 373 US 83 [1963]) in that he had not received apolice report of a witness. The defense maintained that thewitness's statements were exculpatory.


http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2007390143&pubNum=602&originatingDoc=I0909fe7965ca11da8cc9b4c14e983401&refType=TG&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentToggle&contextData=(sc.UserEnteredCitation)

















In re Stuart, 22 A.D.3d 131 (2005)

803 N.Y.S.2d 577, 2005 N.Y. Slip Op. 06936


On or about May 8, 2002, Justice Rios questioned therespondent about the whereabouts of the witness. Therespondent informed the court that several attempts hadbeen made to contact the witness at her last known addressin Queens. The respondent indicated that attempts wereunderway to track the witness at a Manhattan residence butthat she had not yet been located. On or about May 31, 2002,the respondent ascertained the whereabouts of the witness andmet with her at her place of employment. On or about June4, 2002, Justice Rios revisited the issue of the alleged Bradyviolation and inquired as to the witness's whereabouts. Therespondent falsely indicated on the record that he still had noknowledge of her whereabouts. *133Based on the evidence adduced, the Special Referee properlysustained the charge. Accordingly, the petitioner's motion toconfirm is granted.

In determining an appropriate measure of discipline toimpose, the respondent asks the Court to consider his recordas an Assistant District Attorney in Queens County for morethan 12 years and his handling of over 70 felony trials, thetime he devotes to service for the Dix Hills United MethodistChurch, his service in the United States Army JAG CorpsReserve, and his list of character witnesses, including therespondent's military chaplain, his church pastor, professionaland social acquaintances, and his wife, all of whom testified tohis excellent reputation. In addition, the respondent presentedcharacter letters from two Justices of the Supreme Court,Queens County.

The respondent's prior disciplinary history consists of a letterof caution issued by the Grievance Committee for the NinthJudicial District in 1999 for prosecutorial misconduct whichresulted in this Court's overturning a judgment of conviction(see People v Walters, 251 AD2d 433 [1998]).

As a result of the respondent's misleading response to thecourt, the criminal matter had to be retried. Notwithstandingthe respondent's claims that he lacked venality and themitigation advanced, such conduct strikes at the heart of hiscredibility as a prosecutor and an officer of the court. As theSpecial Referee noted, the respondent had ample opportunity

at the trial to correct or clarify his earlier false statement butopted not to do so. In essence, the respondent made a costlymisrepresentation to the trial court which necessitated theretrial of the criminal action involving a major felony. Underthe totality of circumstances, the respondent is suspendedfrom the practice of law for a period of three years.

Prudenti, P.J., Florio, H. Miller, Schmidt and Adams, JJ.,concur.

Ordered that the petitioner's motion to confirm the report ofthe Special Referee is granted; and it is further,

Ordered that the respondent, Claude Nelson Stuart, issuspended from the practice of law for a period of three years,commencing October 26, 2005, and continuing until thefurther **3 order of this Court, with leave to the respondentto apply for reinstatement no sooner than six months prior tothe expiration of the said three-year period upon furnishingsatisfactory proof that during the said period he (a) refrainedfrom practicing or *134 attempting to practice law, (b) fullycomplied with this order and with the terms and provisionsof the written rules governing the conduct of disbarred,suspended, and resigned attorneys (22 NYCRR 691.10), and(c) otherwise properly conducted himself; and it is further,Ordered that pursuant to Judiciary Law § 90, during the periodof suspension and until the further order of this Court, therespondent, Claude Nelson Stuart, shall desist and refrainfrom (1) practicing law in any form, either as principal oragent, clerk, or employee of another, (2) appearing as anattorney or counselor-at-law before any court, judge, justice,board, commission, or other public authority, (3) giving toanother an opinion as to the law or its application or anyadvice in relation thereto, and (4) holding himself out in anyway as an attorney and counselor-at-law; and it is further,

Ordered that if the respondent, Claude Nelson Stuart, has beenissued a secure pass by the Office of Court Administration,it shall be returned forthwith to the issuing agency and therespondent, Claude Nelson Stuart, shall certify to the same inhis affidavit of compliance pursuant to 22 NYCRR 691.10 (f).

Copr. (c) 2011, Secretary of State, State of New York



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IN RE BROWN


NO. BD-2009-007

IN RE: DEIRDRE L. BROWN

S.J.C. Order of Term Suspension Retro to May 17, 2010, entered by Justice Cowin on January 28, 2011.*

SUMMARY1

Deirdre L. Brown, the respondent, was admitted to the bar of the Commonwealth on January 11, 1994. On December 8, 2006, the respondent used a debit card from a stolen handbag to purchase an iPod hi-fi speaker system for $366.45 and various items at another store totaling $426.27. On December 19, 2008, the respondent admitted to sufficient facts to the crimes of forgery of a document in violation of G. L. c. 267; two counts of uttering a false writing in violation of G. L. c. 267, § 5; two counts of credit card fraud over $250 in violation of G. L. c. 266, § 37C(e); and larceny over $250 in violation of G. L. c. 266, § 30(1). The matters were continued without a finding.

On May 17, 2010, the respondent admitted to sufficient facts to negligent operation of a motor vehicle, and she was found in violation of probation. The respondent was continued on probation until May 18, 2011, with conditions requiring her to remain free of illicit drugs and alcohol and submit to testing.

On March 25, 2009, the Supreme Judicial Court for Suffolk County (Cowin, J.) entered an order temporarily suspending the respondent from the practice of law effective June 1, 2009. The respondent failed to comply with the order of temporary suspension, and bar counsel petitioned to hold the respondent in contempt. On December 16, 2009, the respondent fully complied with the order.

The respondent’s criminal conduct violated Mass. R. Prof. C. 8.4(b), (c), and (h). Her failure to comply with the order of temporary suspension and S. J. C. Rule 4:01, § 17, and her violation of probation violated Mass. R. Prof. C. 3.4(c) and 8.4(d).

On June 28, 2010, bar counsel filed a petition for discipline. On December 22, 2010, the respondent filed an amended answer to the petition admitting to the allegations. The parties stipulated to a sanction of suspension for three years retroactive to May 17, 2010, the date of the respondent’s last conviction. In mitigation, none of the respondent’s conduct was related to the representation of a client.

On January 10, 2011, the Board of Bar Overseers voted to accept the stipulation of the parties and recommend that the respondent be suspended from the practice of law for three years retroactive to May 17, 2010. On January 28, 2011, the county court entered an order suspending the respondent for three years retroactive to May 17, 2010, the date of the respondent’s last conviction.

FOOTNOTES:


* The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

1 Compiled by the Board of Bar Overseers based on the record filed with the Supreme Judicial Court.

BBO/OBC Privacy Policy. Please direct all questions to [email protected].

Site Index Go!


PEOPLE v. TERRY


People v. Terry, 1 Misc.3d 475 (2003)

764 N.Y.S.2d 592, 2003 N.Y. Slip Op. 23763


764 N.Y.S.2d 592County Court, Monroe County, New York.

The PEOPLE of the State of New York,v.

Roy TERRY.

Sept. 5, 2003.

Defendant, incarcerated pending a retrial on assault and othercharges, applied for appointment of a special prosecutor dueto the district attorney's review of letters addressed to hisattorney but mistakenly sent to the district attorney's office.The Monroe County Court, John J. Connell, J., held that:(1) prosecutor breached defendant's attorney-client privilegeby reviewing and making copies of at least one of the twoletters, and (2) court would forbid prosecutor from usinginformation obtained from letters in retrying defendant, ratherthan appoint special prosecutor.

Application denied.

West Headnotes (7)

1 Privileged Communications andConfidentiality Letters and Correspondence

Prosecutor breached defendant's attorney-clientprivilege by reviewing and making copies of atleast one of two letters written by defendantand addressed to defense counsel but accidentallymailed to district attorney's office; prosecutor hadtime to examine the numerous envelope markingsidentifying defense counsel and defendant byname, identifying the correctional facility fromwhich the letter was sent, and identifying the letteras “legal mail.”

2 Criminal Law Evidence WrongfullyObtained

Criminal Law Disqualification of AssignedProsecutor

Criminal Law Grounds for Employment orAppointment of Special Prosecutor

Court would forbid prosecutor who had violateddefendant's attorney-client privilege by reading atleast one of two letters addressed to defendant'sattorney but mistakenly sent to the district

attorney's office from using any informationobtained from letters in trying defendant, ratherthan appoint special prosecutor to try case.McKinney's County Law § 701.

3 Privileged Communications andConfidentiality Purpose of Privilege

The attorney-client privilege exists to insure thatone seeking legal advice will be able to confidefully and freely in his attorney, secure in theknowledge that his confidences will not later beexposed to public view to his embarrassment orlegal detriment.

4 Privileged Communications andConfidentiality Actions and Proceedings inWhich Privilege Is Applicable

Privileged Communications andConfidentiality Waiver of Privilege

The attorney-client privilege and issuessurrounding its waiver are particularly importantin criminal cases.

5 Estoppel Nature and Elements of Waiver

A “waiver” is the intentional relinquishment of aknown right.

6 Privileged Communications andConfidentiality Objections; Claim ofPrivilege

While it is the burden of the proponent of theattorney-client privilege to show that the privilegewas not waived, formal motions are not necessaryto raise the issue.

7 Privileged Communications andConfidentiality Waiver of Privilege

Two factors to be considered in assessing whetheran inadvertent disclosure waives the attorney-client privilege are whether there was a promptobjection to the disclosure after discovering it


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764 N.Y.S.2d 592, 2003 N.Y. Slip Op. 23763


and whether the party claiming waiver will sufferprejudice if a protective order is granted.

Attorneys and Law Firms

**593 Kenneth Hyland, Assistant District Attorney, forPeople.Brian Shulman, for Defendant.

Opinion

JOHN J. CONNELL, J.

The following constitutes the Opinion, Decision & Order ofthe Court.

*476 The defendant is indicted on charges of Assault 1stand 2nd Degree, Vehicular Assault 2nd Degree, RecklessEndangerment 1st Degree, Grand Larceny 4th Degree,Criminal Possession of Stolen Property 3rd Degree, Leavingthe Scene of an Incident, Unauthorized Use of a MotorVehicle 3rd Degree, and Driving While Ability Impaired. Amistrial was declared on May 21, 2003 when the jury wasunable to reach a verdict. Pending the retrial, the defendantwas returned to a state correctional facility on a sentenceunrelated to this indictment.

On July 21, 2003 the defendant's attorney, Brian Shulman,and Assistant District Attorney Richard Roxin, who is incharge of the prosecution of this case, informed me that Mr.Terry sent a letter addressed to Mr. Shulman, but bearingthe street address of the District Attorney's Office. The letterwas opened by a secretary/receptionist **594 in the DistrictAttorney's Office. She made a determination, based on thefamiliarity of the defendant's name, that it was AssistantDistrict Attorney Rodeman's case. Mr. Rodeman was trialcounsel before it was reassigned to Mr. Roxin for the retrial.She forwarded the letter to Mr. Rodeman who read it andpassed it on to Mr. Roxin. Two copies were made of the letterand retained by the District Attorney's Office. The originalwas forwarded to Mr. Shulman.

The defendant sent a second letter to the District Attorney'sOffice addressed to Mr. Shulman. Again it was openedapparently by a secretary/receptionist who informed Mr.Rodeman that it had not been removed from its envelope. Itwas sealed and passed on to Mr. Roxin, who forwarded theoriginal to Mr. Shulman.

On July 21 this Court directed the District Attorney to sealand forward their copies to me, and retain no other copy ofthe letters. Mr. Roxin assured Court and defense counsel thathe would not use any information at Mr. Terry's retrial whichwas gained from reviewing the letters.

Nonetheless, the defendant requested the appointment of aSpecial Prosecutor pursuant to County Law § 701, citing theDistrict Attorney's improper review of the letters, which heasserts contain privileged information. The District Attorneyopposed that request on several grounds: that fairly newemployees had opened the letters; that it was understandablethat mail addressed to Mr. Shulman would be opened bystaff since he had once been an assistant district attorney,albeit several years ago; and that the letter read by Mr.Rodeman “... was largely unintelligible. We gained nothingfrom it” (Transcript of August 22, 2003 proceedings, p. 10).

*477 With the permission of both parties, this Court hasreviewed in camera the two original letters and both copiesof the first letter. The first letter is postmarked June 16, 2003.The return address on the front of the envelope reads:

LIVINGSTON CORRECTIONAL FACILITY

P.O. Box 1991, Route 36 Sonyea Road

Sonyea, New York 14556

NAME: Roy Terry (handwritten) DIN: 02B2030(handwritten)

“Legal mail” is handwritten in the lower right and lower leftcorners of the envelope. The front of the envelope also bearsa “Star” symbol Postal Stamp, printed in red ink, which readsas follows:


ROUTE, 36, SONYEA ROAD

SONYEA, N.Y. 14556

The return address on the back flap of the envelope reads:

NEW YORK STATE DEPARTMENT OFCORRECTIONAL SERVICES

INMATE CORRESPONDENCE PROGRAM







764 N.Y.S.2d 592, 2003 N.Y. Slip Op. 23763


Legal mail (handwritten)

The second letter, which the District Attorney apparently didnot copy, was postmarked July 7, 2003. It bears the followingreturn address on the front of the envelope:


P.O. Box 1991, Route 36 Sonyea Road

Sonyea, New York 14556


“LAW FIRM LEGAL MAIL” is handwritten in the lowerright corner of the envelope. It also bears the “Star” PostalStamp and return address, printed in red ink, as follows:

**595 LIVINGSTON CORRECTIONAL FACILITY

ROUTE, 36, SONYEA ROAD

SONYEA, N.Y. 14556

The return address on the back flap of the envelope reads:

NEW YORK STATE DEPARTMENT OFCORRECTIONAL SERVICES

INMATE CORRESPONDENCE PROGRAM

*478 NAME: Roy Terry (handwritten) DIN: 02B2030(handwritten)

1 2 3 4 The attorney-client privilege “exists to insurethat one seeking legal advice will be able to confide fullyand freely in his attorney, secure in the knowledge thathis confidences will not later be exposed to public viewto his embarrassment or legal detriment” (Matter of Priestv. Hennessy, 51 N.Y.2d 62, 67-68, 431 N.Y.S.2d 511,409 N.E.2d 983). The attorney-client privilege and issuessurrounding its waiver are particularly important in criminalcases (People v. Cassas, 84 N.Y.2d 718, 622 N.Y.S.2d 228,646 N.E.2d 449).

5 6 A waiver is the “intentional relinquishment ... of aknown right” (Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct.1019, 82 L.Ed. 1461). While it is the burden of the proponentof the privilege to show that the privilege was not waived,formal motions are not necessary to raise the issue. Courtshave held that a simple objection expressed in a letter fromthe client's attorney is sufficient to bring the matter before

a court for that determination (Blair Communications, Inc.v. Reliance Capital Group, 182 A.D.2d 578, 582 N.Y.S.2d720). For purposes of this application, the July 21 conferencesufficiently raised the issue.

Appellate cases on this subject generally involve inadvertentdisclosure of documents contained in hundreds of pages ofmaterials that were intentionally mailed to the opponent inthe pre-trial discovery stages of civil cases. In determiningwhether there was a waiver of the attorney-client privilegeconcerning those documents, courts have looked at thesubjective intent of the client.

7 “Two other factors to be considered in assessingwhether an inadvertent disclosure waives the privilege arewhether there was a prompt objection to the disclosure afterdiscovering it and whether the party claiming waiver willsuffer prejudice if a protective order is granted” (Baliva v.State Farm, 275 A.D.2d 1030, 1032, 713 N.Y.S.2d 376;Kraus v. Brandstetter, 185 A.D.2d 300, 586 N.Y.S.2d 270;Blair, supra, at 578, 582 N.Y.S.2d 720; Manufacturers &Traders Trust Co. v. Servotronics, Inc., 132 A.D.2d 392, 522N.Y.S.2d 999; see also, New York Times v. Lehrer McGovernBovis, Inc., 300 A.D.2d 169, 752 N.Y.S.2d 642).

Courts examining the client's subjective intent have generallyheld that inadvertent disclosure of such materials does notconstitute a waiver of the attorney-client privilege (6340Transit Road, Inc. v. Unigard Security, 209 A.D.2d 922, 619N.Y.S.2d 1015 (4th Dept.) ). Commenting on inadvertentdisclosures, the American Bar Association has stated thata “lawyer who receives materials that on their face *479appeared to be subject to the attorney-client privilege orotherwise confidential, under circumstances where it is clearthey were not intended for the receiving lawyer, shouldrefrain from examining the materials, notify the sendinglawyer and abide by the instructions of the lawyer whosent them” (Formal Opinion 92 368). That opinion is basedon the premise that inadvertent disclosure of otherwiseprivileged material does not constitute a waiver and furthersuggests that the receiving party serves in the position of aconstructive **596 bailee, with a legal duty to return thedocument to opposing counsel (New Insights on Waiver andthe Inadvertent Disclosure of Privileged Materials: AttorneyResponsibility as the Governing Precept, 47 Fla. L.Rev. 159).

Indeed, there is authority for not only suppressing improperlyobtained privileged information at trial, but also disqualifyingcounsel who obtained the information (Matter of Weinberg,129 A.D.2d 126, 517 N.Y.S.2d 474, rearg. 132 A.D.2d 190,


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764 N.Y.S.2d 592, 2003 N.Y. Slip Op. 23763


522 N.Y.S.2d 511, lv. dsmd. 71 N.Y.2d 994, 529 N.Y.S.2d277, 524 N.E.2d 879; Matter of Kochovos, 140 A.D.2d 180,528 N.Y.S.2d 37; CPLR § 3103 and § 4503).

As stated above, most of the reported cases involve privilegedmaterials included in documents intentionally turned over tothe opposing side in a civil lawsuit. The Court of Appeals,however, decided a case with a factual setting more similar tothe instant matter. In Lipin v. Bender, 193 A.D.2d 424, 597N.Y.S.2d 340, aff'd. 84 N.Y.2d 562, 620 N.Y.S.2d 744, 644N.E.2d 1300, the defendant brought privileged documentsto a pre-trial discovery proceeding and left them at counseltable where the plaintiff customarily sat. The top sheet of thedocuments bore the name of the defendant's attorney and thewords “File Memo”. The plaintiff read and copied the papers,and failed to return them to defense counsel.

The plaintiff's attorney maintained that since the materialswere left at the plaintiff's seat at the table, they were obtained“legitimately”, that there was no inadvertent disclosure,and therefore, the defendant had waived the privilege. Thetrial court, after reviewing all the circumstances, took theextreme remedy of dismissing the plaintiff's complaint,finding the plaintiff's and her attorney's actions “egregious”.The Appellate Division and Court of Appeals agreed withthe trial court and held the privilege was not waived byleaving the documents at a pre-trial disclosure conference,notwithstanding their being left at the very seat of theplaintiff.

It is clear that in this case Mr. Terry's attorney-client privilegewas breached by the prosecutor's review of at least one of*480 the letters in question. It may be understandable that a

clerical staff member could in good faith open the first lettersent by the defendant. (However, it perhaps points to the needfor office procedural improvements to more carefully identifythe addressee before correspondence is opened. This point ismade more obvious by the office's opening of the second letterafter having been alerted to their first mistake.)

What is more difficult to understand is the reading (or“scanning” as the prosecutor later characterized) of that letterby the assistant district attorney who had time to examine thenumerous envelope markings identifying defense counsel andthe defendant by name, identifying the correctional facility

from which the letter was sent and identifying the letter as“Legal Mail”. The error in judgement was compounded bymaking multiple copies and retaining them.

An examination of the letters by this Court discloses nothingin the July 7 letter that would prejudice the defendant's retrialeven if they were read by the prosecutor. It simply requestedcopies of transcripts to be forwarded to the defendant. TheJune 16 letter, however, contains several clear references toboth the criminal and civil cases related to this indictment.The letter, while certainly not literary prose, is anythingbut “unintelligible” as described by the prosecutor. Thedefendant highlights discrepancies in the arresting officer'sstatement and Grand Jury testimony, calls into question herphysical **597 description of the suspect, and cites thelack of physical evidence in the case. References are madeto a proposed motion to dismiss as well as physical threatsallegedly received by the defendant which relate to this case.Most significant, however, is the defendant's explanation forhis own injuries at the scene of his arrest. This latter issue wasvery relevant during the first trial.

On July 21 the prosecutor promised not to use any informationobtained from the letters. That may be a difficult assuranceto fulfill, but in lieu of appointing a Special Prosecutor,this Court will hold him to that pledge. If the Peoplehave questions about what areas they are precluded frompursuing, they should seek guidance from the Court outsidethe presence of the jury or before commencement of the trial.Failure to do so runs the risk of a mistrial with prejudice andultimate dismissal of the indictment.

*481 Accordingly, the defendant's application for theappointment of a Special Prosecutor pursuant to County Law§ 701 is in all respects denied.

This case is scheduled for September 12, 2003 at 9:30 A.M.to set a trial date.

Signed this 5th day of September, 2003 at Rochester, NewYork.

Parallel Citations

1 Misc.3d 475, 2003 N.Y. Slip Op. 23763








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MATTER OF FRIEDMAN


Matter of Friedman, 196 A.D.2d 280 (1994)

609 N.Y.S.2d 578


View National Reporter System version

196 A.D.2d 280, 609 N.Y.S.2d 578

In the Matter of Theodore H. Friedman (Admittedas Theodore Herzl Friedman), an Attorney,

Respondent. Departmental Disciplinary Committeefor the First Judicial Department, Petitioner.

Supreme Court, Appellate Division,First Department, New York

March 22, 1994

CITE TITLE AS: Matter of Friedman

SUMMARY

Disciplinary proceedings instituted by the DepartmentalDisciplinary Committee for the First Judicial Department.Respondent was admitted to the Bar on April 1, 1957, at aterm of the Appellate Division of the Supreme Court in theFirst Judicial Department.

HEADNOTES

Attorney and Client--Disciplinary Proceedings(1) Respondent attorney, who knowingly filed a false andmisleading affidavit, gave false testimony at a hearingbefore a Federal Judge, solicited false testimony from afact witness and stood by when another witness gavematerial false testimony which respondent knew to be falsewithout revealing the fraud to the court, is guilty of seriousprofessional misconduct which consisted of a pattern ofconduct which persisted for over a decade, and is disbarred.

Attorney and Client--Disciplinary Proceedings--Standard ofProof(2) Respondent attorney's argument that the application of thefair preponderance of evidence standard of proof in attorneydisciplinary proceedings violates his due process rights underthe New York State and United States Constitutions isrejected. The Court of Appeals has conclusively determinedthat the standard of proof in such proceedings is a fairpreponderance of the evidence, and respondent has set forthno valid reason for adoption of the clear and convincingevidence standard.

TOTAL CLIENT SERVICE LIBRARY REFERENCES

Am Jur 2d, Attorneys at Law, §§ 43, 95.

Carmody-Wait 2d, Officers of Court §§ 3:203, 3:212.

NY Jur 2d, Attorneys at Law, §§16, 19, 27.

ANNOTATION REFERENCES

Fabrication or suppression of evidence as ground ofdisciplinary action against attorney. 40 ALR3d 169.

APPEARANCES OF COUNSEL

Kenneth M. Bernstein and Jonathan K. M. Crawford of *281counsel (Daniel L. Brockett and Hal R. Lieberman, attorneys),for petitioner.Marvin E. Frankel and Michael S. Ross of counsel (Kramer,Levin, Naftalis, Nessen, Kamin & Frankel, attorneys), forrespondent.

OPINION OF THE COURT

Per Curiam.

Respondent, Theodore H. Friedman, was admitted to thepractice of law in New York by the First Judicial Departmenton April 1, 1957 under the name Theodore Herzl Friedman.At all times relevant herein respondent has maintained anoffice for the practice of law within the First JudicialDepartment.

Respondent was served with a notice and statement of chargeswhich allege 23 separate counts of professional misconductstretching over a decade and arising out of respondent'srepresentation of personal injury claimants in three separatematters: (1) Mowen v Yangming Mar. Transp. Corp. (78 Civ5537 [Counts One-Six]); (2) Estate of Krieger v City of NewYork (Sup Ct, NY County, index No. 8228/80 [Counts Seven-Seventeen]); and (3) Hill v Soley (Sup Ct, Bronx County,index No. 18762/82 [Counts Eighteen-Twenty-Three]).

Pursuant to 22 NYCRR 603.4 (b) and (d) and the CommitteeRules, Honorable Donald J. Sullivan was appointed by thisCourt to serve as Special Referee.

Hearings were held before the Special Referee on 26 dayscommencing on July 1, 1990 and ending on May 22, 1992.The transcript of the proceedings runs over 5,000 pages.Thirty witnesses testified, including two preeminent ethicsexperts (one for each side). During the course of the hearingsthe following facts were adduced and conclusions reached.


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609 N.Y.S.2d 578


MOWEN V YANGMING MAR.TRANSP. CORP.--COUNTS ONE-SIX

Respondent represented the plaintiff Lorraine Mowen in awrongful death action arising out of a ship collision in whichher husband, Dennis Mowen, lost his life. The respondentwas assisted in this matter by his then partner, Jethro M.Eisenstein, and by Frederick J. Cuccia of the firm of Cucciaand Oster. The trial took place before the Honorable PierreN. Leval of the United States District Court for the SouthernDistrict of New York in late 1981 and early 1982. Duringthe *282 trial, a report by an expert called by respondentwas marked for identification, as PX-337 (B). Judge Levalwould not allow PX-337 (B) in evidence, but ruled that therespondent could use it argumentatively in his summation.After the jury commenced their deliberation a note wasreceived from them requesting the trial exhibits. The trialcourt instructed the exhibits in evidence be collected anddelivered to the jury and repeated the admonition aboutExhibit 337 (B) which was used in summation but was notin evidence-in-chief. Thereafter, the jury returned a verdictin favor of the plaintiff and shortly after the announcementof the jury's verdict, it was discovered that PX-337 (B) hadbeen given to the jury. Respondent thereafter submitted anaffidavit, sworn to March 8, 1982, in which he placed theentire responsibility for sending PX-337 (B) to the jury roomon his co-counsel, Mr. Cuccia. Respondent stated that Mr.Cuccia had sent the exhibit into the jury room, in the mistakenbelief that it was part of the evidence received. Respondent,however, made no effort to communicate with Mr. Cucciabefore submitting this affidavit, casting the blame on him, andno affidavit was submitted by Mr. Cuccia, who was abroadfrom March 7 to March 17, 1982 and who knew nothing ofrespondent's affidavit at that time.

After a hearing, in an opinion dated December 3, 1982,Judge Leval found respondent to have engaged in the “willfulmisconduct of ... tampering with the evidence transmitted tothe deliberating jury.” Judge Leval stated that respondent had“surreptitiously includ[ed] among the exhibits to be sent tothe jury an exhibit marked for identification that he well knewhad not been received in evidence.” Judge Leval concludedthat when the jurors were deliberating and asked for allevidence in the case, respondent caused the exhibit to be sentto them “intentionally and with full awareness that it wasin violation of the court's order and rulings as to the receiptof the exhibit.” Judge Leval rendered an opinion that, basedupon the transcripts, respondent had lied during the hearingclaiming that he had left the courtroom for lunch and had

entrusted his co-counsel, Mr. Cuccia, to handle the exhibitsthat were sent to the jury. (Red Star Towing & Transp. Co. vCargo Ship “Ming Giant”, 552 F Supp 367, 382-386 [1982].)

Pursuant to a letter of complaint from Judge Leval,four separate charges were filed against respondent in aFederal disciplinary proceeding. Thereafter, at the Federaldisciplinary hearing on January 9, 1985, respondent, pursuantto a plea bargain agreement, admitted the second charge,namely, *283 that he prepared, swore and caused to beserved an affidavit without personal knowledge of the factstherein, in exchange for dismissal of the other Federaldisciplinary charges. On November 4, 1985, the Committeeon Grievances of the Southern District recommended asanction that a formal letter of reprimand be issued torespondent and that this letter be made a matter of publicrecord. A subsequent letter of censure was written anddistributed by Judge Vincent L. Broderick, Chairman of theCommittee on Grievances, on June 23, 1986.Thereafter, the Departmental Disciplinary Committee fileda petition in this Court seeking the imposition of reciprocaldiscipline pursuant to 22 NYCRR 603.3. Respondentobjected to the imposition of discipline greater than thatimposed by the Federal disciplinary committee. By orderentered February 20, 1987, this Court denied the Committee'spetition and directed that the Mowen matter be referred to theDepartmental Disciplinary Committee “for investigation andhearings, if necessary, as to all the issues raised.”

COUNT ONE

The essential elements of Count One are that respondentintentionally caused to be placed into the jury room, duringdeliberations, an exhibit (PX-337 [B]) when he knew thatsame had not been received in evidence, and the placingof said exhibit was done with full awareness that it was inviolation of the court's order and ruling as to the receipt of theexhibit in evidence.

Viewing all of the evidence under a “fair preponderance”standard, the Special Referee found that the Committee hadfailed to establish that respondent intentionally sent Exhibit337 (B) to the jury room. As such, Count One was notsustained.

COUNT TWO

This count concerned false statements made by respondentin his affidavit dated March 8, 1982, which respondentprepared, swore and caused to be filed in the Mowen actionin response to the posttrial motion concerning the discovery




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609 N.Y.S.2d 578


of the unauthorized exhibit in the jury room. Specifically,respondent was charged with swearing to facts, to wit, thatCuccia was responsible for sending the unauthorized exhibitinto the jury room, about which he had no personal knowledge*284 or factual basis, direct or indirect. Thus, it was alleged

that respondent violated Code of Professional ResponsibilityDR 1-102 (A) (5) (engaging in conduct prejudicial to theadministration of justice) and (6) (engaging in conduct thatadversely reflects on his fitness to practice law) and DR7-106 (C) (1) (stating or alluding to any matter that he has noreasonable basis to believe is relevant to the case or that willnot be supported by admissible evidence).

The essential elements of Count Two, except for slightmodification, are word-for-word identical to the secondcharge issued by the Federal Committee on Grievances towhich respondent admitted and for which he was sanctioned.Relying on that admission by respondent, the Special Refereesustained Count Two.

COUNTS THREE AND FOUR

Count Three alleges that respondent acted with recklessdisregard for the truth in making false statements aboutCuccia in his March 8, 1982 affidavit without making anyeffort to verify them with Cuccia. As a result of his actionsrespondent was charged with violating DR 1-102 (A) (5) and(6).

In the alternative, Count Four alleges that respondentknowingly made false statements in his affidavit dated March8, 1982. As a result, respondent was charged with violatingDR 1-102 (A) (4), (5) and (6), DR 7-102 (A) (5) (knowinglymaking a false statement of law or fact in his representationto a client), (6) (participating in the creation or preservationof evidence when he knows or it is obvious that theevidence is false) and (8) (knowingly engaging in other illegalconduct or conduct contrary to a disciplinary rule during hisrepresentation of a client).

Respondent's admission to the second Federal disciplinarycharge that he had no personal knowledge or factual basisfor asserting in his affidavit that Cuccia was responsible forputting Exhibit 337 (B) in the jury room and that Cuccia hadacted in the good-faith belief that it was proper to send in theexhibit was relied upon.

In addition, in May of 1987, respondent waived immunityand testified before a Manhattan Grand Jury concerning theKrieger case. The prosecutor cross-examined respondent onvarious matters including the affidavit he submitted in the

Mowen case. During his testimony before the Grand Jury,*285 respondent admitted that his affidavit blaming Cuccia

was false.

In addition to the false statements about Cuccia, it was allegedthat respondent's affidavit contained numerous other falseor misleading statements of material fact including (i) thatCuccia handled the exhibit marshalling process; (ii) that allof the exhibits going to the jury were made available tocounsel; (iii) that defense counsel had access and opportunityto examine the exhibits before the Clerk moved them into thejury room; (iv) that the Clerk had checked with all counselas to whether the plaintiffs' exhibits had been reviewed, and(v) that all counsel had assented before those exhibits weremoved into the jury room.

These statements were contradicted by the testimony of otherspresent in the Mowen courtroom, who said that respondentwas involved in the exhibit marshalling process--and theClerk of the Court who stated that he relied completelyon respondent in connection with the review of exhibits.Respondent's sworn statements in his affidavit about whattranspired during the period when the exhibits were beingcollected are also directly at odds with his subsequent positionthat he was not present in the courtroom when these eventswere occurring.

Although alternative counts had been alleged againstrespondent of recklessly making false statements in hisaffidavit (Count Three) and knowingly making falsestatements in his affidavit (Count Four), the Special Refereesustained both charges. The Special Referee concluded thatan attorney's submission of an affidavit blaming his co-counsel of so serious an act and purporting to describe his co-counsel's subjective state of mind, without making any effortto confirm the truth with co-counsel, is certainly recklessin the circumstances. Based upon respondent's admittedconversation with Cuccia about the exhibit in question notbeing in evidence and the fact that many of the statements inrespondent's affidavit were contradicted by the testimony ofothers present in the courtroom and the position subsequentlytaken by respondent, the Special Referee concluded thatrespondent knowingly made false statements in the subjectaffidavit.

COUNT FIVE

Count Five concerned respondent's testimony at the July 20,1982 hearing before Judge Leval held for the express purpose*286 of taking evidence on the subject of the unauthorized

exhibit in the jury room. Respondent testified that he wasPERY D. KRINSKY, ESQ. "UNDERSTANDING THE ATTORNEY DISCIPLINARY PROCESS...." PAGE 75

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609 N.Y.S.2d 578


not present in the courtroom during the exhibit marshallingprocess. Based upon this conduct respondent was chargedwith intentionally making a false and misleading statementwhile testifying under oath in violation of DR 1-102 (A) (4),(5) and (6) and DR 7-102 (A) (5), (6) (erroneously cited asDR 1-702 [A] [6] [participating in the creation or preservationof evidence knowing or when it is obvious that the evidenceis false]) and (8) (erroneously cited as DR 1-702 [A] [8][knowingly engaging in other illegal conduct or conductcontrary to a disciplinary rule]).

Upon the evidence presented, the Special Referee foundthat respondent intentionally made false and misleadingstatements while testifying under oath and as such sustainedCount Five.

COUNT SIX

Count Six alleges that respondent failed to advise the courtof inaccuracies in his affidavit, once having been informedthrough Mr. Cuccia that portions of the affidavit wereinaccurate. As such, respondent was charged with violatingDR 1-102 (A) (4), (5) and (6) and DR 7-102 (A) (3)(concealing or knowingly failing to disclose that which he isrequired by law to reveal) and (6).

The record indicates that Mr. Cuccia returned from Europeon or about March 17, 1982 and when made aware of thecontents of the affidavit submitted by respondent to JudgeLeval challenged the contents of the affidavit. At no pointprior to, during or subsequent to Judge Leval's hearing, didrespondent take any steps to inform Judge Leval of Mr.Cuccia's position.

Based upon the evidence presented the Special Refereeconcluded that respondent knew or should have known of theinaccuracies of the allegations as set forth in the affidavit andin failing to rectify the record he violated the disciplinary rulescharged. As such, Count Six was sustained.

ESTATE OF KRIEGER V CITY OF NEWYORK--COUNTS SEVEN-SEVENTEEN

The respondent represented Miriam Krieger and the Estate ofAaron Krieger in a civil negligence lawsuit filed in SupremeCourt, New York County. The plaintiff sought monetary*287 damages for the death of Aaron Krieger, who fell down

an elevator shaft on April 4, 1979. Named as defendants in thecase were the City of New York which owned the buildingand Universal Elevator Company which had been retained bythe City to maintain the repair of the elevator. Stanton Trading

Corporation, a tenant of the building, and Aaron Krieger'semployer at the time of his fatal fall, was impleaded as a third-party defendant.

A central issue in the plaintiff's claim against the City waswhether the safety devices on the elevator were workingproperly at the time of Aaron Krieger's death. To establishits defense, the City, represented by Laura Shapiro of theCorporation Counsel's office, intended to call Michael Cohen,a Stanton employee at the time of the accident, to testify aboutthe manner in which Stanton employees operated the elevator.

The respondent retained Mr. Elliot Goldman, a privateinvestigator, to investigate the accident and prepare witnessesfor trial. Respondent performed no background investigationof Mr. Goldman prior to retaining him. Mr. Goldmanwas given authority to compensate witnesses without priorapproval from respondent or anyone in respondent's office.Respondent did not give Mr. Goldman any guidelines tofollow with respect to the interviewing of witnesses and thetaking of statements.

Under the terms of the agreement with respondent, Mr.Goldman was promised only 50% of Goldman's hourly rateon billing but an additional 100% of this rate on accumulatedhours if the case was successful.

During the course of the trial, Michael Cohen told Ms.Shapiro that respondent's investigator, Goldman, was tryingto bribe him. Thereafter, the New York City Departmentof Law and Department of Investigation commenced aninvestigation.

Cohen met with Goldman and respondent and secretlytape recorded their conversation. During the course of theconversation respondent asked Cohen to testify falsely aboutvarious matters, including whether he had ever met withrespondent and whether Cohen had been offered or paid anymoney.

During the course of the trial, respondent failed to discloseto the court that another witness, Arthur Eilets, had testifiedfalsely about significant credibility matters which respondentknew were false. Eilets also stated to Cohen in tape recorded*288 conversations that respondent had “clued” him to give

false testimony about certain substantive issues as well. Thecase eventually resulted in a mistrial, declared in January1986.Arthur Eilets and Elliot Goldman were indicted in February1986 in connection with these incidents. Goldman was triedand convicted in April 1987 of bribery of a witness and








609 N.Y.S.2d 578


solicitation of perjury. Respondent was also indicted forsubornation of perjury and other crimes for his role in theKrieger case, but was eventually acquitted of these criminalcharges.

COUNTS SEVEN THROUGH TEN

Respondent was charged with soliciting or requestingMichael Cohen, a prospective witness for the City of NewYork in the Krieger case, to (a) give false testimony at trialthat his only meeting with respondent consisted entirely ofthe discussion as to whether he, Cohen, was required tomeet with the Assistant Corporation Counsel (Count Seven)and (b) give false testimony at trial that no one had paidor had offered to pay Cohen money in connection with hisprospective appearance as a witness (Count Eight). It wasalleged that by his actions, respondent violated DR 1-102(A) (4), (5) and (6) and DR 7-102 (A) (4) (knowingly usingperjured testimony or false evidence), (6) and (8).

In the alternative, respondent was charged with (a) requestingMichael Cohen, a prospective witness for the City of NewYork, to make false statements to opposing counsel, LauraShapiro of the Corporation Counsel's office, that Cohen's onlymeeting with respondent consisted entirely of a discussionas to whether he, Michael Cohen, was required to meetwith the Assistant Corporation Counsel (Count Nine) and(b) requesting Michael Cohen to make false statements toopposing counsel, Laura Shapiro, that no one had paid or hadoffered to pay Michael Cohen money in connection with hisprospective appearance as a witness (Count Ten). As a resultit was alleged that respondent violated DR 1-102 (A) (4), (5)and (6), DR 7-102 (A) (3) (concealing or knowingly failingto disclose that which he is required by law to reveal) andDR 7-109 (A) (prohibits suppression of any evidence thatthe lawyer or his client has a legal obligation to reveal orproduce).

Although Counts Nine and Ten were charged as alternativesto Counts Seven and Eight, the Special Referee sustained allfour counts. The Special Referee concluded after a reading ofthe tape and surrounding circumstances that it was clear thatrespondent was preparing Mr. Cohen to give false testimony*289 at the Krieger civil trial. According to the Special

Referee, the meeting met the test of coaching and instructingMr. Cohen as to what to say on the witness stand, and further,offering Mr. Cohen a theory to reconcile any conflictingstatements that he may have given.

The Special Referee further found that a directmisrepresentation of material fact to opposing counsel made

at the direction of respondent with the intent to induce reliancethereon is unethical professional conduct.

COUNT ELEVEN

This count alleges that respondent solicited and requestedMichael Cohen to give false testimony that he had been andrecalled being present when Wilhemina Oliver, a Managerfor the City of New York, was told of dangerous conditionsconcerning the elevator which was the site of the accidentand that she promised to have those conditions corrected.Respondent was charged with violating DR 1-102 (A) (4), (5)and (6) and DR 7-102 (A) (4), (6) and (8).

The Special Referee concluded that although the evidencesubmitted in reference to this charge was at timescontradictory, the credible evidence established thatrespondent asked Mr. Cohen to testify falsely aboutWilhemina Oliver, or at least, that respondent asked Mr.Cohen to say things which Cohen did not know or believe tobe true. As such, the Special Referee sustained Count Eleven.

COUNT TWELVE

Count Twelve alleges that respondent solicited and requestedArthur Eilets, a witness for the plaintiff in the Krieger case,to give false testimony. As a result, respondent was chargedwith violating DR 1-102 (A) (4), (5) and (6) and DR 7-102(A) (4), (6) and (8).

There was no direct evidence to support this charge.What was relied upon was circumstantial evidence, thatis, conversations between Cohen and Eilets, and Goldmanand Eilets and the Special Referee found that the essentialelements of this charge were not established by apreponderance of the evidence. As such, Count Twelve wasnot sustained.

COUNT THIRTEEN

This count alleges that respondent was present when a *290witness for the plaintiff, Arthur Eilets, gave material falsetestimony, which respondent knew to be false and he took nosteps to reveal the fraud to the court or the parties. As a result,respondent was charged with violating DR 7-102 (B) (2) (alawyer who receives information clearly establishing that aperson other than his client has perpetrated a fraud upon atribunal shall promptly reveal the fraud to the tribunal).

Respondent admits that he knew Eilets was lying when hetestified at the Krieger trial; however, he did not believe thathe was obliged to make some corrective disclosure to the

















609 N.Y.S.2d 578


court. Respondent's position was that his duty was excusedin this case because Eilets' false testimony went to collateralmatters and because it was elicited on cross-examination, asopposed to direct examination, and thus the false testimonywas not a fraud upon the tribunal within the meaning of thedisciplinary rule.

Counsel from the Departmental Disciplinary Committee,however, pointed out that Eilets' testimony was pivotal to therespondent's case. Eilets was respondent's lead-off witness,he was on the stand for four days, he was prepared for saidtestimony by respondent, and he was paid $1,900 plus a suitand transportation.

The Special Referee concluded that Eilets gave material falsetestimony which respondent knew to be false and took nosteps to reveal said facts to the court or parties and thusviolated DR 7-102 (B) (2). As such Count Thirteen wassustained.

COUNT FOURTEEN

This count alleges that respondent failed to supervise and giveappropriate instructions to his investigator, Elliot Goldman,with respect to, among other cases, the Krieger case. Itwas further alleged that respondent failed to take reasonableremedial action after it became apparent that Goldmanwas engaged in unethical and illegal behavior. As a resultrespondent was charged with violating DR 1-102 (A) (5) and(6).

The record indicates that respondent began using Goldman'sservices as a private investigator in 1979. Goldman eventuallybecame respondent's primary investigator, working on 90%of respondent's cases. Respondent performed no backgroundinvestigation of Goldman and never discussed any guidelinesfor conducting interviews of witnesses or compensating themfor expenses. A routine background check would *291 haverevealed that in 1972 Goldman had been indicted for bribinga witness in a personal injury case and that he had pleadedguilty to a lesser included charge.

Even assuming that respondent had no obligation to do abackground check on Goldman, there came a point in timewhen respondent should have been alerted that Goldman wasengaged in questionable activities and he should have takenaction. In 1985, Goldman backdated a witness statementin the Krieger case and brought this fact to respondent'sattention. Respondent was also made aware of the contentsof a tape of a November 21, 1985 meeting between Goldmanand Cohen wherein Goldman stated that Cohen was delighted

with the money and that he (Goldman) can get him (Cohen)to sign anything. Respondent was also aware in February1986 that Goldman was indicted for bribery of a witnessbased on the November 21, 1985 meeting with Cohen, yethe continued to use Goldman's services. Respondent claimedthat it was not improper to continue to employ Goldman afterhe was indicted since there was no evidence of misconductby Goldman after that point.

The Special Referee concluded that once respondent wasmade aware of Goldman's questionable activities, he had anaffirmative duty to take reasonable remedial action to rein inand control Goldman as a private investigator. The SpecialReferee sustained Count Fourteen insofar as it alleged thatrespondent violated DR 1-102 (A) (5).

COUNT FIFTEEN

This count alleges that respondent improperly acquiesced inthe payment of compensation to a witness in the Krieger case,namely, one Arthur Eilets, contingent on the content of Eilets'testimony. Respondent was charged with violating DR 7-109(C).

The Special Referee found that the amount of compensationpaid to Mr. Eilets appeared to be generous, but he failedto find that the record substantiated the position thatthe payments were contingent on the contents of Eilets'testimony. As such, Count Fifteen was not sustained.

COUNT SIXTEEN

This count alleges that respondent entered into a contingencyfee arrangement with Mr. Goldman, a nonlawyer, under*292 which respondent agreed to pay Goldman an hourly

rate and he would receive additional compensation over andabove that rate contingent on the success of the litigation.Respondent was charged with violating DR 3-102 whichprohibits fee splitting with a nonlawyer.

The Special Referee found that it was clear that respondent'sfee arrangement with Goldman was contingent on theoutcome of the Krieger case, and it created an incentivefor Goldman to make that outcome eventually beneficial tohim and created the incentive to influence the testimonyof a witness. As such, the Special Referee sustained CountSixteen.

COUNT SEVENTEEN

This count alleged that respondent offered and paid, andacquiesced in the payment of, unreasonable and excessive










609 N.Y.S.2d 578


sums of money and other benefits to witnesses andprospective witnesses, in particular, fees to Joseph Ferranti,an elevator inspector employed by the New York CityDepartment of Buildings, and payments to MordechaiMargolese, a co-worker of Aaron Krieger and Mr. Eilets.Respondent was charged with violating DR 7-109 (C) (1).

Since the record indicated that payments were made to thesewitnesses without any consideration for their lost time andexpense incurred, the Special Referee concluded that suchwere unreasonable and excessive. As such, Count Seventeenwas sustained.

With respect to Hill v Soley (Sup Ct, Bronx County), theSpecial Referee did not sustain any of Counts Eighteenthrough Twenty-Three relating to this litigation.

The Special Referee sustained 14 of the 23 charges as set forthabove.

Respondent is a graduate of Harvard Law School and becamea partner in the Manhattan firm which is today known asPhillips Nizer. He left Phillips Nizer in the 1960's to form hisown firm where he has specialized in personal injury cases.He has submitted a plethora of references and letters attestingto his probity, character and skill.

On March 16, 1993, Special Referee Donald J. Sullivanissued his written report recommending that respondentshould be suspended from the practice of law for a period oftwo years.

By petition dated April 23, 1993, the DepartmentalDisciplinary *293 Committee now seeks an orderconfirming the findings of the Special Referee and imposingwhatever sanction the Court deems just and equitable, but noless severe than the two-year suspension recommended by theSpecial Referee.

Respondent cross-moves for an order disaffirming theSpecial Referee's report as it relates to the findings ofmisconduct against respondent and dismissing all charges. Inthe alternative, respondent requests that if any charges aresustained, no more than a censure should be imposed as thesanction.

(1) A review of the evidence presented to the SpecialReferee indicates that there is ample support for the SpecialReferee's findings that respondent is guilty of multiple seriousviolations of the Code of Professional Responsibility.

During the course of his representation of the plaintiff inthe Mowen case, respondent made false statements withoutpersonal knowledge or factual basis in an affidavit toJudge Leval (the charge respondent admitted in the Federaldisciplinary hearing); respondent knowingly made falsestatements of fact in his affidavit to Judge Leval; respondentgave false and misleading testimony under oath to JudgeLeval at a hearing; and respondent failed to notify the courtof the false statements in the affidavit once he was informedby Cuccia that the affidavit was false. Respondent's actionsin the Mowen case were detrimental to his client in that suchresulted in the jury's award for certain losses being reduced,or in the alternative, if plaintiff did not agree to the reduction,a new trial would be ordered.

In view of the fact that Count Three (which alleges thatrespondent acted with reckless disregard for the truth inmaking false statements in his affidavit) and Count Four(which alleges that respondent made false statements inhis affidavit knowing that such statements were false)were charged and argued in the alternative, we find theReferee's sustaining both counts to be inconsistent. Inview of the admissions by respondent in Count Two, andthe testimony of others present in the Mowen courtroomwhich clearly indicated that respondent was involved in theexhibit marshalling process, we conclude that respondentintentionally made false statements in his affidavit and assuch, we dismiss Count Three and sustain Count Four. Theact of respondent is either intended or not intended, it cannotsimultaneously be both. (People v Gallagher, 69 NY2d 525,529.)

Respondent's claim that the evidence fails to establish that*294 he intentionally gave false testimony to Judge Leval

at the hearing on July 20, 1982 (Count Five) is without merit.Respondent's testimony at the hearing that he was not presentin the courtroom during the exhibit marshalling process wascontradicted by the Mowen trial transcript which placed himin the courtroom throughout that period.

Respondent's claim that he had no duty to inform the courtof the false statements in his affidavit (Count Six) becausehe was only made aware of the fact that it was false onthe eve of the hearing, is also lacking in merit. The recordestablished that at some point after Cuccia returned fromabroad on March 17, 1982 and prior to Judge Leval's hearingon July 20, 1982, respondent's partner, Eisenstein, learnedfrom Cuccia that Cuccia was outraged by the accusationsmade by respondent in the affidavit and communicated this



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609 N.Y.S.2d 578


information to respondent on July 9, 1982. On repeatedoccasions prior to the hearing, Eisenstein stated that he askedrespondent to discuss this issue but to no avail. Moreover,prior to learning of the falsity of the affidavit from Cuccia,respondent could not have believed what he wrote aboutCuccia's state of mind since respondent admitted that he hadconversations with Cuccia prior to the exhibit marshalling inwhich Cuccia acknowledged that Exhibit 337 (B) was not togo to the jury.

As such, respondent clearly had a duty to inform Judge Levalof the false statements and he failed to do so.

With respect to the Krieger case, respondent solicitedand requested Cohen, a prospective witness, to give falsetestimony at the trial; respondent solicited and requestedCohen, a prospective witness, to make false statements toopposing counsel; respondent failed to disclose to the courtthat one of the witnesses for the plaintiff gave materialfalse testimony; respondent failed to supervise his privateinvestigator; respondent engaged in fee splitting with anonlawyer; and respondent paid unreasonable and excessivecompensation to witnesses. As a result of respondent's actionsa mistrial was declared in the Krieger case.

Counts Seven, Eight, Nine and Ten were respectively chargedand argued in the alternative, but all were sustained by theReferee. However, the fact that respondent solicited Cohento give false testimony at trial does not preclude the fact thatrespondent also solicited Cohen to make false statements toopposing counsel. Accordingly, the Special Referee properlysustained all four counts. *295

The balance of respondent's claims with respect to thesufficiency of the evidence supporting the remaining Kriegercounts are without merit. The tape-recorded conversationsbetween respondent and Cohen voluntarily made by Cohen,as part of a police investigation, were stipulated into evidenceby respondent and did not touch upon any attorney-client orwork product privilege.

(2) Finally, respondent's argument that the application of thefair preponderance of evidence standard of proof in attorneydisciplinary proceedings violates his due process rights underthe United States and New York State Constitutions has beenrejected by the New York Court of Appeals. That Courthas conclusively determined that the standard of proof inattorney disciplinary proceedings is a fair preponderance ofthe evidence. (Matter of Capoccia, 59 NY2d 549 [1983].) Ofcourse, there is no requirement of a criminal conviction tosustain a charge in an attorney disciplinary proceeding. While

respondent argues that the clear and convincing evidencestandard should be adopted by this Court he has set forth novalid reason why this Court should entertain a change of thelaw in New York and apply a different standard.

(1) The sanction of suspension from the practice of lawfor a period of two years recommended by the SpecialReferee is far too lenient given the serious violations ofthe Code of Professional Responsibility involved, which asthe Special Referee noted, go to the heart of the ethicalresponsibility of a practicing lawyer. Respondent's violationsinclude several acts of intentional dishonesty, including thefiling of a knowingly false and misleading affidavit, thegiving of false testimony at a hearing before then SouthernDistrict Judge Pierre N. Leval, and the solicitation of falsetestimony from a fact witness.

Any one of these many serious violations would be a groundfor removal of respondent from the roll of attorneys. Thefact that there were many discrete acts of misconduct leadsineluctably to the conclusion that the only just punishmentfor respondent must be disbarment. (See, e.g., Matter ofKleiman, 107 AD2d 241.) As we noted over 70 years ago,false testimony, even if not technical perjury, and the makingof false affidavits should result in disbarment (Matter ofPopper, 193 App Div 505). “The giving of false testimonystrikes at the very heart of the judicial system. That an officerof the court should countenance it in another is intolerable.That he *296 should himself be guilty of such an offenseagainst good morals and the public weal is not to be condoned.By such conduct he has forfeited the confidence of the courtand his right to its continued certificate of good character andintegrity” (supra, at 512).In a similar case, in which we disbarred an attorney, we noted:“The concededly false answers given and respondent's lackof candor, whether technically perjurious or not, breachedthe standards of professional ethics” (Matter of Dougherty, 7AD2d 163, 165; see also, Matter of Kunstler, 248 App Div393). To the same effect, in Matter of Schildhaus (23 AD2d152, 155-156), we held: “An attorney is to be held strictlyaccountable for his statements or conduct which reasonablycould have the effect of deceiving or misleading the court inthe action to be taken in a matter pending before it. The courtis entitled to rely upon the accuracy of any statement of arelevant fact unequivocally made by an attorney in the courseof judicial proceedings. So, a deliberate misrepresentation byan attorney of material facts in open court constitutes seriousprofessional misconduct. (See Matter of Rotwein, 20 A D 2d428, 430. See, further, Drinker, Legal Ethics, p. 74; 7 C. J. S.,Attorney and Client, § 23, p. 741.)”


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In the instant case, respondent was found to have lied at ahearing held by a Judge of the Federal Court and to havesubmitted a knowingly false affidavit which unfairly andreprehensibly cast his own guilt upon a blameless fellowmember of the Bar. In addition, respondent, inter alia,solicited and requested a witness to give false testimony ata trial and stood by when another witness gave materialfalse testimony which respondent knew to be false withoutrevealing the fraud to the court or the parties.

These acts constitute a pattern of conduct by respondentwhich demonstrate a contempt for the legal and judicialprocess as well as for the profession. “One need not be alawyer to recognize the impropriety of such conduct. Foran attorney practicing for nearly 40 years in this State, suchmisconduct is inexcusable, notwithstanding an impressivearray of character witnesses who testified in mitigation”(Matter of Cohn, 118 AD2d 15, 48).

In view of these serious acts of misconduct which had theeffect of perverting the administration of justice, we rejectthe recommended suspension of respondent and find thatdisbarment of the respondent is the only proper punishment.*297

The violations of the canons of ethics by the respondent werenot simply inadvertent or solitary peccadillos. They consistedof a pattern of professional misconduct persisted in as a courseof conduct for at least several years. For this Court to imposeany other sanction would ignore our responsibility to the legalprofession and the public.

Accordingly, the Disciplinary Committee's petition toconfirm the Special Referee's report is granted to the extent

that the findings of the Special Referee sustaining CountsTwo, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven,Thirteen, Fourteen, Sixteen and Seventeen are confirmed; theSpecial Referee's finding with respect to Count Three, as wellas the recommended sanction of suspension for a period oftwo years are disaffirmed. Respondent's cross motion for anorder disaffirming the Special Referee's report as it relates tothe findings of misconduct against respondent is granted onlyto the extent of disaffirming the finding as to Count Threeand in all other respects respondent's cross motion is denied.Respondent is disbarred and his name ordered stricken fromthe roll of attorneys in the State of New York.

Murphy, P. J., Sullivan, Carro, Asch and Rubin, JJ., concur.The application is granted to the extent that the findingsof the Special Referee sustaining Counts Two, Four, Five,Six, Seven, Eight, Nine, Ten, Eleven, Thirteen, Fourteen,Sixteen and Seventeen are confirmed; the Special Referee'sfinding with respect to Count Three, as well as therecommended sanction of suspension for a period of twoyears are disaffirmed; respondent's cross motion for an orderdisaffirming the Special Referee's report as it relates to thefindings of misconduct against respondent is granted onlyto the extent of disaffirming the finding as to Count Threeand in all other respects respondent's cross motion is denied;and respondent is disbarred and his name ordered strickenfrom the roll of attorneys and counselors-at-law in the Stateof New York, all effective April 22, 1994. [As amended byunpublished order entered June 7, 1994.] *298

Copr. (c) 2011, Secretary of State, State of New York




NEW YORK STATE RULES OFPROFESSIONAL CONDUCT


RULES OFPROFESSIONAL CONDUCT

APRIL 1, 2009

N E W Y O R K S TAT E U N I F I E D C O U R T S Y S T E M

PART 1200 –


RULES OFPROFESSIONAL CONDUCT

APRIL 1, 2009

N E W Y O R K S TAT E U N I F I E D C O U R T S Y S T E M

PART 1200 –

These Rules of Professional Conduct were promulgated as joint rulesof the Appellate Divisions of the Supreme Court, effective April 1, 2009.They supersede the former Part 1200 (Disciplinary Rules of the Code ofProfessional Responsibility).


P A R T 1 2 0 0 - R U L E S O F P R O F E S S I O N A L C O N D U C T

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TABLE OF CONTENTS

RULE 1.0: Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

RULE 1.1: Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

RULE 1.2: Scope of Representation and Allocation of Authority Between Client And Lawyer . . . . . . 3

RULE 1.3: Diligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

RULE 1.4: Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

RULE 1.5: Fees and Division of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

RULE 1.6: Confidentiality of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

RULE 1.7: Conflict of Interest: Current Clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

RULE 1.8: Current Clients: Specific Conflict of Interest Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

RULE 1.9: Duties to Former Clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

RULE 1.10: Imputation of Conflicts of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

RULE 1.11: Special Conflicts of Interest for Former and Current Government Officers and Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

RULE 1.12: Specific Conflicts of Interest for Former Judges, Arbitrators, Mediators or Other Third-Party Neutrals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

RULE 1.13: Organization As Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

RULE 1.14: Client With Diminished Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

RULE 1.15: Preserving Identity of Funds and Property of Others; Fiduciary Responsibility; Commingling and Misappropriation of Client Funds or Property; Maintenance of Bank Accounts; Record Keeping; Examination of Records . . . . . . . . . . . . . . . . . . . . . . . . . 12

RULE 1.16: Declining or Terminating Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

RULE 1.17: Sale of Law Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

RULE 1.18: Duties to Prospective Clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

RULE 2.1: Advisor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

RULE 2.2: [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

RULE 2.3: Evaluation for Use by Third Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18


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RULE 2.4: Lawyer Serving as Third-Party Neutral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

RULE 3.1: Non-Meritorious Claims And Contentions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

RULE 3.2: Delay of Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

RULE 3.3: Conduct Before a Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

RULE 3.4: Fairness to Opposing Party and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

RULE 3.5: Maintaining and Preserving the Impartiality of Tribunals and Jurors . . . . . . . . . . . . . . . 20

RULE 3.6: Trial Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

RULE 3.7: Lawyer As Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

RULE 3.8: Special Responsibilities of Prosecutors and Other Government Lawyers . . . . . . . . . . . . . 22

RULE 3.9: Advocate In Non-Adjudicative Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

RULE 4.1: Truthfulness In Statements To Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

RULE 4.2: Communication With Person Represented By Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

RULE 4.3: Communicating With Unrepresented Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

RULE 4.4: Respect for Rights of Third Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

RULE 4.5: Communication After Incidents Involving Personal Injury or Wrongful Death . . . . . . . 23

RULE 5.1: Responsibilities of Law Firms, Partners, Managers and Supervisory Lawyers . . . . . . . . . . 24

RULE 5.2: Responsibilities of a Subordinate Lawyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

RULE 5.3: Lawyer’s Responsibility for Conduct of Nonlawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

RULE 5.4: Professional Independence of a Lawyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

RULE 5.5: Unauthorized Practice of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

RULE 5.6: Restrictions On Right To Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

RULE 5.7: Responsibilities Regarding Nonlegal Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

RULE 5.8: Contractual Relationship Between Lawyers And Nonlegal Professionals . . . . . . . . . . . . 26

RULE 6.1: Voluntary Pro Bono Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

RULE 6.2: [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

RULE 6.3: Membership in a Legal Services Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

RULE 6.4 Law Reform Activities Affecting Client Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

RULE 6.5: Participation in Limited Pro Bono Legal Service Programs . . . . . . . . . . . . . . . . . . . . . . . . . 28

RULE 7.1: Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29



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RULE 7.2: Payment for Referrals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

RULE 7.3: Solicitation and Recommendation of Professional Employment . . . . . . . . . . . . . . . . . . . . 33

RULE 7.4: Identification of Practice and Specialty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

RULE 7.5: Professional Notices, Letterheads, and Signs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

RULE 8.1: Candor in the Bar Admission Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

RULE 8.2: Judicial Officers and Candidates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

RULE 8.3: Reporting Professional Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

RULE 8.4: Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

RULE 8.5: Disciplinary Authority and Choice Of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37



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RU LE 1 .0 :

Terminology

(a) “Advertisement” means any public or private com-munication made by or on behalf of a lawyer or lawfirm about that lawyer or law firm’s services, theprimary purpose of which is for the retention of thelawyer or law firm. It does not include communi-cations to existing clients or other lawyers.

(b) “Belief” or “believes” denotes that the person in-volved actually believes the fact in question to betrue. A person’s belief may be inferred from cir-cumstances.

(c) “Computer-accessed communication” means anycommunication made by or on behalf of a lawyeror law firm that is disseminated through the use ofa computer or related electronic device, including,but not limited to, web sites, weblogs, search en-gines, electronic mail, banner advertisements, pop-up and pop-under advertisements, chat rooms, listservers, instant messaging, or other internet pres-ences, and any attachments or links related thereto.

(d) “Confidential information” is defined in Rule 1.6.

(e) “Confirmed in writing” denotes (i) a writing fromthe person to the lawyer confirming that the personhas given consent, (ii) a writing that the lawyerpromptly transmits to the person confirming theperson’s oral consent, or (iii) a statement by theperson made on the record of any proceeding be-fore a tribunal. If it is not feasible to obtain ortransmit the writing at the time the person givesoral consent, then the lawyer must obtain or trans-mit it within a reasonable time thereafter.

(f ) “Differing interests” include every interest that willadversely affect either the judgment or the loyaltyof a lawyer to a client, whether it be a conflicting,inconsistent, diverse, or other interest.

(g) “Domestic relations matter” denotes representationof a client in a claim, action or proceeding, or pre-

liminary to the filing of a claim, action or proceed-ing, in either Supreme Court or Family Court, orin any court of appellate jurisdiction, for divorce,separation, annulment, custody, visitation, main-tenance, child support or alimony, or to enforce ormodify a judgment or order in connection with anysuch claim, action or proceeding.

(h) “Firm” or “law firm” includes, but is not limitedto, a lawyer or lawyers in a law partnership, profes-sional corporation, sole proprietorship or other as-sociation authorized to practice law; or lawyersemployed in a qualified legal assistance organiza-tion, a government law office, or the legal depart-ment of a corporation or other organization.

(i) “Fraud” or “fraudulent” denotes conduct that isfraudulent under the substantive or procedural lawof the applicable jurisdiction or has a purpose todeceive, provided that it does not include conductthat, although characterized as fraudulent bystatute or administrative rule, lacks an element ofscienter, deceit, intent to mislead, or knowing fail-ure to correct misrepresentations that can be rea-sonably expected to induce detrimental reliance byanother.

(j) “Informed consent” denotes the agreement by aperson to a proposed course of conduct after thelawyer has communicated information adequatefor the person to make an informed decision, andafter the lawyer has adequately explained to the per-son the material risks of the proposed course ofconduct and reasonably available alternatives.

(k) “Knowingly,” “known,” “know,” or “knows” de-notes actual knowledge of the fact in question. Aperson’s knowledge may be inferred from circum-stances.

(l) “Matter” includes any litigation, judicial or admin-istrative proceeding, case, claim, application, re-quest for a ruling or other determination, contract,controversy, investigation, charge, accusation, ar-

PART 1200 - RULES OF PROFESSIONAL CONDUCT



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rest, negotiation, arbitration, mediation or anyother representation involving a specific party orparties.

(m) “Partner” denotes a member of a partnership, ashareholder in a law firm organized as a professionallegal corporation or a member of an association au-thorized to practice law.

(n) “Person” includes an individual, a corporation, anassociation, a trust, a partnership, and any other or-ganization or entity.

(o) “Professional legal corporation” means a corpora-tion, or an association treated as a corporation, au-thorized by law to practice law for profit.

(p) “Qualified legal assistance organization” means anoffice or organization of one of the four types listedin Rule 7.2(b)(1)-(4) that meets all of the require-ments thereof.

(q) “Reasonable” or “reasonably,” when used in relationto conduct by a lawyer, denotes the conduct of areasonably prudent and competent lawyer. Whenused in the context of conflict of interest determi-nations, “reasonable lawyer” denotes a lawyer actingfrom the perspective of a reasonably prudent andcompetent lawyer who is personally disinterested incommencing or continuing the representation.

(r) “Reasonable belief” or “reasonably believes,” whenused in reference to a lawyer, denotes that the lawyerbelieves the matter in question and that the circum-stances are such that the belief is reasonable.

(s) “Reasonably should know,” when used in referenceto a lawyer, denotes that a lawyer of reasonable pru-dence and competence would ascertain the matterin question.

(t) “Screened” or “screening” denotes the isolation ofa lawyer from any participation in a matter throughthe timely imposition of procedures within a firmthat are reasonably adequate under the circum-stances to protect information that the isolatedlawyer or the firm is obligated to protect underthese Rules or other law.

(u) “Sexual relations” denotes sexual intercourse or the

touching of an intimate part of the lawyer or an-other person for the purpose of sexual arousal, sex-ual gratification or sexual abuse.

(v) “State” includes the District of Columbia, PuertoRico, and other federal territories and possessions.

(w) “Tribunal” denotes a court, an arbitrator in an ar-bitration proceeding or a legislative body, adminis-trative agency or other body acting in anadjudicative capacity. A legislative body, adminis-trative agency or other body acts in an adjudicativecapacity when a neutral official, after the presenta-tion of evidence or legal argument by a party or par-ties, will render a legal judgment directly affectinga party’s interests in a particular matter.

(x) “Writing” or “written” denotes a tangible or elec-tronic record of a communication or representation,including handwriting, typewriting, printing, pho-tocopying, photography, audio or video recordingand email. A “signed” writing includes an electronicsound, symbol or process attached to or logically as-sociated with a writing and executed or adopted bya person with the intent to sign the writing.

RU LE 1 .1 :

Competence

(a) A lawyer should provide competent representationto a client. Competent representation requires thelegal knowledge, skill, thoroughness and prepara-tion reasonably necessary for the representation.

(b) A lawyer shall not handle a legal matter that thelawyer knows or should know that the lawyer is notcompetent to handle, without associating with alawyer who is competent to handle it.

(c) lawyer shall not intentionally:

(1) fail to seek the objectives of the client throughreasonably available means permitted by lawand these Rules; or

(2) prejudice or damage the client during the courseof the representation except as permitted or re-quired by these Rules.


RU LE 1 .2 :

Scope of Representation and Allocationof Authority Between Client and Lawyer

(a) Subject to the provisions herein, a lawyer shallabide by a client’s decisions concerning the objec-tives of representation and, as required by Rule 1.4,shall consult with the client as to the means bywhich they are to be pursued. A lawyer shall abideby a client’s decision whether to settle a matter. Ina criminal case, the lawyer shall abide by the client’sdecision, after consultation with the lawyer, as to aplea to be entered, whether to waive jury trial andwhether the client will testify.

(b) A lawyer’s representation of a client, including rep-resentation by appointment, does not constitute anendorsement of the client’s political, economic, so-cial or moral views or activities.

(c) A lawyer may limit the scope of the representationif the limitation is reasonable under the circum-stances, the client gives informed consent andwhere necessary notice is provided to the tribunaland/or opposing counsel.

(d) A lawyer shall not counsel a client to engage, or as-sist a client, in conduct that the lawyer knows is il-legal or fraudulent, except that the lawyer maydiscuss the legal consequences of any proposedcourse of conduct with a client.

(e) A lawyer may exercise professional judgment towaive or fail to assert a right or position of theclient, or accede to reasonable requests of opposingcounsel, when doing so does not prejudice therights of the client.

(f ) A lawyer may refuse to aid or participate in conductthat the lawyer believes to be unlawful, even thoughthere is some support for an argument that the con-duct is legal.

(g) A lawyer does not violate this Rule by being punc-tual in fulfilling all professional commitments, byavoiding offensive tactics, and by treating withcourtesy and consideration all persons involved inthe legal process.

RU LE 1 .3 :

Diligence

(a) A lawyer shall act with reasonable diligence andpromptness in representing a client.

(b) A lawyer shall not neglect a legal matter entrustedto the lawyer.

(c) A lawyer shall not intentionally fail to carry out acontract of employment entered into with a clientfor professional services, but the lawyer may with-draw as permitted under these Rules.

RU LE 1 . 4 :

Communication

(a) A lawyer shall:

(1) promptly inform the client of:

(i) any decision or circumstance with respectto which the client’s informed consent, asdefined in Rule 1.0(j), is required by theseRules;

(ii) any information required by court rule orother law to be communicated to a client;and

(iii) material developments in the matter in-cluding settlement or plea offers.

(2) reasonably consult with the client about themeans by which the client’s objectives are to beaccomplished;

(3) keep the client reasonably informed about thestatus of the matter;

(4) promptly comply with a client’s reasonable re-quests for information; and

(5) consult with the client about any relevant lim-itation on the lawyer’s conduct when the lawyerknows that the client expects assistance not per-mitted by these Rules or other law.

(b) A lawyer shall explain a matter to the extent rea-sonably necessary to permit the client to make in-formed decisions regarding the representation.


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RU LE 1 .5:

Fees and Division of Fees

(a) A lawyer shall not make an agreement for, charge,or collect an excessive or illegal fee or expense. Afee is excessive when, after a review of the facts, areasonable lawyer would be left with a definite andfirm conviction that the fee is excessive. The factorsto be considered in determining whether a fee is ex-cessive may include the following:

(1) the time and labor required, the novelty anddifficulty of the questions involved, and theskill requisite to perform the legal service prop-erly;

(2) the likelihood, if apparent or made known tothe client, that the acceptance of the particularemployment will preclude other employmentby the lawyer;

(3) the fee customarily charged in the locality forsimilar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client orby circumstances;

(6) the nature and length of the professional rela-tionship with the client;

(7) the experience, reputation and ability of thelawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

(b) A lawyer shall communicate to a client the scopeof the representation and the basis or rate of the feeand expenses for which the client will be responsi-ble. This information shall be communicated to theclient before or within a reasonable time after com-mencement of the representation and shall be inwriting where required by statute or court rule.This provision shall not apply when the lawyer willcharge a regularly represented client on the samebasis or rate and perform services that are of thesame general kind as previously rendered to andpaid for by the client. Any changes in the scope ofthe representation or the basis or rate of the fee or

expenses shall also be communicated to the client.

(c) A fee may be contingent on the outcome of thematter for which the service is rendered, except ina matter in which a contingent fee is prohibited byparagraph (d) or other law. Promptly after a lawyerhas been employed in a contingent fee matter, thelawyer shall provide the client with a writing statingthe method by which the fee is to be determined,including the percentage or percentages that shallaccrue to the lawyer in the event of settlement, trialor appeal; litigation and other expenses to be de-ducted from the recovery; and whether such ex-penses are to be deducted before or, if notprohibited by statute or court rule, after the con-tingent fee is calculated. The writing must clearlynotify the client of any expenses for which theclient will be liable regardless of whether the clientis the prevailing party. Upon conclusion of a con-tingent fee matter, the lawyer shall provide theclient with a writing stating the outcome of thematter and, if there is a recovery, showing the re-mittance to the client and the method of its deter-mination.

(d) A lawyer shall not enter into an arrangement for,charge or collect:

(1) a contingent fee for representing a defendant ina criminal matter;

(2) a fee prohibited by law or rule of court;

(3) fee based on fraudulent billing;

(4) a nonrefundable retainer fee; provided that alawyer may enter into a retainer agreement witha client containing a reasonable minimum feeclause if it defines in plain language and setsforth the circumstances under which such feemay be incurred and how it will be calculated;or

(5) any fee in a domestic relations matter if:

(i) the payment or amount of the fee is con-tingent upon the securing of a divorce orof obtaining child custody or visitation oris in any way determined by reference to



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the amount of maintenance, support, eq-uitable distribution, or property settle-ment;

(ii) a written retainer agreement has not beensigned by the lawyer and client settingforth in plain language the nature of therelationship and the details of the feearrangement; or

(iii) the written retainer agreement includes asecurity interest, confession of judgmentor other lien without prior notice beingprovided to the client in a signed retaineragreement and approval from a tribunalafter notice to the adversary. A lawyer shallnot foreclose on a mortgage placed on themarital residence while the spouse whoconsents to the mortgage remains the ti-tleholder and the residence remains thespouse’s primary residence.

(e) In domestic relations matters, a lawyer shall providea prospective client with a statement of client’srights and responsibilities at the initial conferenceand prior to the signing of a written retainer agree-ment.

(f ) Where applicable, a lawyer shall resolve fee disputesby arbitration at the election of the client pursuantto a fee arbitration program established by theChief Administrator of the Courts and approvedby the Administrative Board of the Courts.

(g) A lawyer shall not divide a fee for legal services withanother lawyer who is not associated in the samelaw firm unless:

(1) the division is in proportion to the services per-formed by each lawyer or, by a writing given tothe client, each lawyer assumes joint responsi-bility for the representation;

(2) the client agrees to employment of the otherlawyer after a full disclosure that a division offees will be made, including the share eachlawyer will receive, and the client’s agreementis confirmed in writing; and

(3) the total fee is not excessive.

(h) Rule 1.5(g) does not prohibit payment to a lawyerformerly associated in a law firm pursuant to a sep-aration or retirement agreement.

RU LE 1 .6 :

Confidentiality of Information

(a) A lawyer shall not knowingly reveal confidential in-formation, as defined in this Rule, or use such in-formation to the disadvantage of a client or for theadvantage of the lawyer or a third person, unless:

(1) the client gives informed consent, as defined inRule 1.0(j);

(2) the disclosure is impliedly authorized to ad-vance the best interests of the client and is ei-ther reasonable under the circumstances orcustomary in the professional community; or

(3) the disclosure is permitted by paragraph (b).

“Confidential information” consists of informationgained during or relating to the representation of aclient, whatever its source, that is (a) protected bythe attorney-client privilege, (b) likely to be embar-rassing or detrimental to the client if disclosed, or(c) information that the client has requested bekept confidential. “Confidential information” doesnot ordinarily include (i) a lawyer’s legal knowledgeor legal research or (ii) information that is generallyknown in the local community or in the trade, fieldor profession to which the information relates.

(b) A lawyer may reveal or use confidential informationto the extent that the lawyer reasonably believesnecessary:

(1) to prevent reasonably certain death or substan-tial bodily harm;

(2) to prevent the client from committing a crime;

(3) to withdraw a written or oral opinion or repre-sentation previously given by the lawyer andreasonably believed by the lawyer still to be re-lied upon by a third person, where the lawyerhas discovered that the opinion or representa-



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tion was based on materially inaccurate infor-mation or is being used to further a crime orfraud;

(4) to secure legal advice about compliance withthese Rules or other law by the lawyer, anotherlawyer associated with the lawyer’s firm or thelaw firm;

(5) (i) to defend the lawyer or the lawyer’s em-ployees and associates against an accusa-tion of wrongful conduct; or

(ii) to establish or collect a fee; or

(6) when permitted or required under these Rulesor to comply with other law or court order.

(c) A lawyer shall exercise reasonable care to preventthe lawyer’s employees, associates, and otherswhose services are utilized by the lawyer from dis-closing or using confidential information of aclient, except that a lawyer may reveal the informa-tion permitted to be disclosed by paragraph (b)through an employee.

RU LE 1 .7:

Conflict of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shallnot represent a client if a reasonable lawyer wouldconclude that either:

(1) the representation will involve the lawyer inrepresenting differing interests; or

(2) there is a significant risk that the lawyer’s pro-fessional judgment on behalf of a client will beadversely affected by the lawyer’s own financial,business, property or other personal interests.

(b) Notwithstanding the existence of a concurrent con-flict of interest under paragraph (a), a lawyer mayrepresent a client if:

(1) the lawyer reasonably believes that the lawyerwill be able to provide competent and diligentrepresentation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the asser-tion of a claim by one client against anotherclient represented by the lawyer in the same lit-igation or other proceeding before a tribunal;and

(4) each affected client gives informed consent,confirmed in writing.

RU LE 1 .8 :

Current Clients: Specific Conflict ofInterest Rules

(a) A lawyer shall not enter into a business transactionwith a client if they have differing interests thereinand if the client expects the lawyer to exercise pro-fessional judgment therein for the protection of theclient, unless:

(1) the transaction is fair and reasonable to theclient and the terms of the transaction are fullydisclosed and transmitted in writing in a man-ner that can be reasonably understood by theclient;

(2) the client is advised in writing of the desirabilityof seeking, and is given a reasonable opportu-nity to seek, the advice of independent legalcounsel on the transaction; and

(3) the client gives informed consent, in a writingsigned by the client, to the essential terms ofthe transaction and the lawyer’s role in thetransaction, including whether the lawyer isrepresenting the client in the transaction.

(b) A lawyer shall not use information relating to rep-resentation of a client to the disadvantage of theclient unless the client gives informed consent, ex-cept as permitted or required by these Rules.

(c) A lawyer shall not:

(1) solicit any gift from a client, including a testa-mentary gift, for the benefit of the lawyer or aperson related to the lawyer; or

(2) prepare on behalf of a client an instrument giv-ing the lawyer or a person related to the lawyer



7

any gift, unless the lawyer or other recipient ofthe gift is related to the client and a reasonablelawyer would conclude that the transaction isfair and reasonable.

For purposes of this paragraph, related persons in-clude a spouse, child, grandchild, parent, grandpar-ent or other relative or individual with whom thelawyer or the client maintains a close, familial rela-tionship.

(d) Prior to conclusion of all aspects of the matter giv-ing rise to the representation or proposed represen-tation of the client or prospective client, a lawyershall not negotiate or enter into any arrangementor understanding with:

(1) a client or a prospective client by which thelawyer acquires an interest in literary or mediarights with respect to the subject matter of therepresentation or proposed representation; or

(2) any person by which the lawyer transfers or as-signs any interest in literary or media rights withrespect to the subject matter of the representa-tion of a client or prospective client.

(e) While representing a client in connection with con-templated or pending litigation, a lawyer shall notadvance or guarantee financial assistance to theclient, except that:

(1) a lawyer may advance court costs and expensesof litigation, the repayment of which may becontingent on the outcome of the matter;

(2) a lawyer representing an indigent or pro bonoclient may pay court costs and expenses of liti-gation on behalf of the client; and

(3) a lawyer, in an action in which an attorney’s feeis payable in whole or in part as a percentage ofthe recovery in the action, may pay on thelawyer’s own account court costs and expensesof litigation. In such case, the fee paid to thelawyer from the proceeds of the action may in-clude an amount equal to such costs and ex-penses incurred.

(f ) A lawyer shall not accept compensation for repre-

senting a client, or anything of value related to thelawyer’s representation of the client, from one otherthan the client unless:

(1) the client gives informed consent;

(2) there is no interference with the lawyer’s inde-pendent professional judgment or with theclient-lawyer relationship; and

(3) the client’s confidential information is protectedas required by Rule 1.6.

(g) A lawyer who represents two or more clients shallnot participate in making an aggregate settlementof the claims of or against the clients, absent courtapproval, unless each client gives informed consentin a writing signed by the client. The lawyer’s dis-closure shall include the existence and nature of allthe claims involved and of the participation of eachperson in the settlement.

(h) A lawyer shall not:

(1) make an agreement prospectively limiting thelawyer’s liability to a client for malpractice; or

(2) settle a claim or potential claim for such liabilitywith an unrepresented client or former clientunless that person is advised in writing of thedesirability of seeking, and is given a reasonableopportunity to seek, the advice of independentlegal counsel in connection therewith.

(i) A lawyer shall not acquire a proprietary in-terest in the cause of action or subject mat-ter of litigation the lawyer is conductingfor a client, except that the lawyer may:

(1) acquire a lien authorized by law to secure thelawyer’s fee or expenses; and

(2) contract with a client for a reasonable contin-gent fee in a civil matter subject to Rule 1.5(d)or other law or court rule.

(j) (1) A lawyer shall not:

(i) as a condition of entering into or continu-ing any professional representation by thelawyer or the lawyer’s firm, require or de-mand sexual relations with any person;


(ii) employ coercion, intimidation or undueinfluence in entering into sexual relationsincident to any professional representationby the lawyer or the lawyer’s firm; or

(iii) in domestic relations matters, enter intosexual relations with a client during thecourse of the lawyer’s representation of theclient.

(2) Rule 1.8(j)(1) shall not apply to sexual relationsbetween lawyers and their spouses or to ongo-ing consensual sexual relationships that predatethe initiation of the client-lawyer relationship.

(k) Where a lawyer in a firm has sexual relations witha client but does not participate in the representa-tion of that client, the lawyers in the firm shall notbe subject to discipline under this Rule solely be-cause of the occurrence of such sexual relations.

RU LE 1 .9 :

Duties to Former Clients

(a) A lawyer who has formerly represented a client ina matter shall not thereafter represent another per-son in the same or a substantially related matter inwhich that person’s interests are materially adverseto the interests of the former client unless the for-mer client gives informed consent, confirmed inwriting.

(b) Unless the former client gives informed consent,confirmed in writing, a lawyer shall not knowinglyrepresent a person in the same or a substantially re-lated matter in which a firm with which the lawyerformerly was associated had previously representeda client:

(1) whose interests are materially adverse to thatperson; and

(2) about whom the lawyer had acquired informa-tion protected by Rules 1.6 or paragraph (c) ofthis Rule that is material to the matter.

(c) A lawyer who has formerly represented a client ina matter or whose present or former firm has for-

merly represented a client in a matter shall notthereafter:

(1) use confidential information of the formerclient protected by Rule 1.6 to the disadvantageof the former client, except as these Ruleswould permit or require with respect to a cur-rent client or when the information has becomegenerally known; or

(2) reveal confidential information of the formerclient protected by Rule 1.6 except as theseRules would permit or require with respect toa current client.

RU LE 1 .10 :

Imputation of Conflicts of Interest

(a) While lawyers are associated in a firm, none ofthem shall knowingly represent a client when anyone of them practicing alone would be prohibitedfrom doing so by Rule 1.7, 1.8 or 1.9, except asotherwise provided therein.

(b) When a lawyer has terminated an association witha firm, the firm is prohibited from thereafter rep-resenting a person with interests that the firmknows or reasonably should know are materiallyadverse to those of a client represented by the for-merly associated lawyer and not currently repre-sented by the firm if the firm or any lawyerremaining in the firm has information protected byRule 1.6 or Rule 1.9(c) that is material to the mat-ter.

(c) When a lawyer becomes associated with a firm, thefirm may not knowingly represent a client in a mat-ter that is the same as or substantially related to amatter in which the newly associated lawyer, or afirm with which that lawyer was associated, for-merly represented a client whose interests are ma-terially adverse to the prospective or current clientunless the newly associated lawyer did not acquireany information protected by Rule 1.6 or Rule1.9(c) that is material to the current matter.

(d) A disqualification prescribed by this Rule may be


8


waived by the affected client or former client underthe conditions stated in Rule 1.7.

(e) A law firm shall make a written record of its en-gagements, at or near the time of each new engage-ment, and shall implement and maintain a systemby which proposed engagements are checkedagainst current and previous engagements when:

(1) the firm agrees to represent a new client;

(2) the firm agrees to represent an existing client ina new matter;

(3) the firm hires or associates with another lawyer;or

(4) an additional party is named or appears in apending matter.

(f ) Substantial failure to keep records or to implementor maintain a conflict-checking system that com-plies with paragraph (e) shall be a violation thereofregardless of whether there is another violation ofthese Rules.

(g) Where a violation of paragraph (e) by a law firm isa substantial factor in causing a violation of para-graph (a) by a lawyer, the law firm, as well as theindividual lawyer, shall be responsible for the vio-lation of paragraph (a).

(h) A lawyer related to another lawyer as parent, child,sibling or spouse shall not represent in any mattera client whose interests differ from those of anotherparty to the matter who the lawyer knows is repre-sented by the other lawyer unless the client con-sents to the representation after full disclosure andthe lawyer concludes that the lawyer can adequatelyrepresent the interests of the client.

RU LE 1 .11 :

Special Conflicts of Interest for Formerand Current Government Officers andEmployees

(a) Except as law may otherwise expressly provide, alawyer who has formerly served as a public officeror employee of the government:

(1) shall comply with Rule 1.9(c); and

(2) shall not represent a client in connection with amatter in which the lawyer participated person-ally and substantially as a public officer or em-ployee, unless the appropriate government agencygives its informed consent, confirmed in writing,to the representation. This provision shall notapply to matters governed by Rule 1.12(a).

(b) When a lawyer is disqualified from representationunder paragraph (a), no lawyer in a firm withwhich that lawyer is associated may knowingly un-dertake or continue representation in such a matterunless:

(1) the firm acts promptly and reasonably to:

(i) notify, as appropriate, lawyers and non-lawyer personnel within the firm that thepersonally disqualified lawyer is prohibitedfrom participating in the representation ofthe current client;

(ii) implement effective screening proceduresto prevent the flow of information aboutthe matter between the personally disqual-ified lawyer and the others in the firm;

(iii) ensure that the disqualified lawyer is ap-portioned no part of the fee therefrom;and

(iv) give written notice to the appropriate gov-ernment agency to enable it to ascertaincompliance with the provisions of thisRule; and

(2) there are no other circumstances in the partic-ular representation that create an appearance ofimpropriety.

(c) Except as law may otherwise expressly provide, alawyer having information that the lawyer knowsis confidential government information about aperson, acquired when the lawyer was a public of-ficer or employee, may not represent a private clientwhose interests are adverse to that person in a mat-ter in which the information could be used to thematerial disadvantage of that person. As used in


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this Rule, the term “confidential government in-formation” means information that has been ob-tained under governmental authority and that, atthe time this Rule is applied, the government isprohibited by law from disclosing to the public orhas a legal privilege not to disclose, and that is nototherwise available to the public. A firm withwhich that lawyer is associated may undertake orcontinue representation in the matter only if thedisqualified lawyer is timely and effectively screenedfrom any participation in the matter in accordancewith the provisions of paragraph (b).

(d) Except as law may otherwise expressly provide, alawyer currently serving as a public officer or em-ployee shall not:

(1) participate in a matter in which the lawyer par-ticipated personally and substantially while inprivate practice or nongovernmental employ-ment, unless under applicable law no one is, orby lawful delegation may be, authorized to actin the lawyer’s stead in the matter; or

(2) negotiate for private employment with any per-son who is involved as a party or as lawyer fora party in a matter in which the lawyer is par-ticipating personally and substantially.

(e) As used in this Rule, the term “matter” as definedin Rule 1.0(l) does not include or apply to agencyrulemaking functions.

(f ) A lawyer who holds public office shall not:

(1) use the public position to obtain, or attempt toobtain, a special advantage in legislative mattersfor the lawyer or for a client under circum-stances where the lawyer knows or it is obviousthat such action is not in the public interest;

(2) use the public position to influence, or attemptto influence, a tribunal to act in favor of thelawyer or of a client; or

(3) accept anything of value from any person whenthe lawyer knows or it is obvious that the offeris for the purpose of influencing the lawyer’s ac-tion as a public official.

RU LE 1 .12 :

Specific Conflicts of Interest for FormerJudges, Arbitrators, Mediators or OtherThird-Party Neutrals

(a) A lawyer shall not accept private employment in amatter upon the merits of which the lawyer hasacted in a judicial capacity.

(b) Except as stated in paragraph (e), and unless all par-ties to the proceeding give informed consent, con-firmed in writing, a lawyer shall not representanyone in connection with a matter in which thelawyer participated personally and substantially as:

(1) an arbitrator, mediator or other third-partyneutral; or

(2) a law clerk to a judge or other adjudicative of-ficer or an arbitrator, mediator or other third-party neutral.

(c) A lawyer shall not negotiate for employment withany person who is involved as a party or as lawyerfor a party in a matter in which the lawyer is par-ticipating personally and substantially as a judge orother adjudicative officer or as an arbitrator, medi-ator or other third-party neutral.

(d) When a lawyer is disqualified from representationunder this Rule, no lawyer in a firm with whichthat lawyer is associated may knowingly undertakeor continue representation in such a matter unless:

(1) the firm acts promptly and reasonably to:

(i) notify, as appropriate, lawyers and non-lawyer personnel within the firm that thepersonally disqualified lawyer is prohibitedfrom participating in the representation ofthe current client;

(ii) implement effective screening proceduresto prevent the flow of information aboutthe matter between the personally disqual-ified lawyer and the others in the firm;

(iii) ensure that the disqualified lawyer is ap-portioned no part of the fee therefrom;and


(iv) give written notice to the parties and anyappropriate tribunal to enable it to ascer-tain compliance with the provisions of thisRule; and

(2) there are no other circumstances in the partic-ular representation that create an appearance ofimpropriety.

(e) An arbitrator selected as a partisan of a party in amultimember arbitration panel is not prohibitedfrom subsequently representing that party.

RU LE 1 .13 :

Organization As Client

(a) When a lawyer employed or retained by an organ-ization is dealing with the organization’s directors,officers, employees, members, shareholders or otherconstituents, and it appears that the organization’sinterests may differ from those of the constituentswith whom the lawyer is dealing, the lawyer shallexplain that the lawyer is the lawyer for the organ-ization and not for any of the constituents.

(b) If a lawyer for an organization knows that an offi-cer, employee or other person associated with theorganization is engaged in action or intends to actor refuses to act in a matter related to the represen-tation that (i) is a violation of a legal obligation tothe organization or a violation of law that reason-ably might be imputed to the organization, and (ii)is likely to result in substantial injury to the organ-ization, then the lawyer shall proceed as is reason-ably necessary in the best interest of theorganization. In determining how to proceed, thelawyer shall give due consideration to the serious-ness of the violation and its consequences, the scopeand nature of the lawyer’s representation, the re-sponsibility in the organization and the apparentmotivation of the person involved, the policies ofthe organization concerning such matters and anyother relevant considerations. Any measures takenshall be designed to minimize disruption of the or-ganization and the risk of revealing information re-

lating to the representation to persons outside theorganization. Such measures may include, amongothers:

(1) asking reconsideration of the matter;

(2) advising that a separate legal opinion on thematter be sought for presentation to an appro-priate authority in the organization; and

(3) referring the matter to higher authority in theorganization, including, if warranted by the se-riousness of the matter, referral to the highestauthority that can act in behalf of the organi-zation as determined by applicable law.

(c) If, despite the lawyer’s efforts in accordance withparagraph (b), the highest authority that can act onbehalf of the organization insists upon action, or arefusal to act, that is clearly in violation of law andis likely to result in a substantial injury to the or-ganization, the lawyer may reveal confidential in-formation only if permitted by Rule 1.6, and mayresign in accordance with Rule 1.16.

(d) A lawyer representing an organization may also rep-resent any of its directors, officers, employees,members, shareholders or other constituents, sub-ject to the provisions of Rule 1.7. If the organiza-tion’s consent to the concurrent representation isrequired by Rule 1.7, the consent shall be given byan appropriate official of the organization otherthan the individual who is to be represented, or bythe shareholders.

RU LE 1 .14 :

Client With Diminished Capacity

(a) When a client’s capacity to make adequately con-sidered decisions in connection with a representa-tion is diminished, whether because of minority,mental impairment or for some other reason, thelawyer shall, as far as reasonably possible, maintaina conventional relationship with the client.

(b) When the lawyer reasonably believes that the clienthas diminished capacity, is at risk of substantial


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physical, financial or other harm unless action istaken and cannot adequately act in the client’s owninterest, the lawyer may take reasonably necessaryprotective action, including consulting with indi-viduals or entities that have the ability to take ac-tion to protect the client and, in appropriate cases,seeking the appointment of a guardian ad litem,conservator or guardian.

(c) Information relating to the representation of aclient with diminished capacity is protected byRule 1.6. When taking protective action pursuantto paragraph (b), the lawyer is impliedly authorizedunder Rule 1.6(a) to reveal information about theclient, but only to the extent reasonably necessaryto protect the client’s interests.

RU LE 1 .15:

Preserving Identity of Funds andProperty of Others; FiduciaryResponsibility; Commingling andMisappropriation of Client Funds orProperty; Maintenance of BankAccounts; Record Keeping; Examinationof Records

(a) Prohibition Against Commingling and Misappro-priation of Client Funds or Property.

A lawyer in possession of any funds or other prop-erty belonging to another person, where such pos-session is incident to his or her practice of law, is afiduciary, and must not misappropriate such fundsor property or commingle such funds or propertywith his or her own.

(b) Separate Accounts.

(1) A lawyer who is in possession of funds belong-ing to another person incident to the lawyer’spractice of law shall maintain such funds in abanking institution within New York State thatagrees to provide dishonored check reports inaccordance with the provisions of 22N.Y.C.R.R. Part 1300. “Banking institution”means a state or national bank, trust company,

savings bank, savings and loan association orcredit union. Such funds shall be maintained,in the lawyer’s own name, or in the name of afirm of lawyers of which the lawyer is a mem-ber, or in the name of the lawyer or firm oflawyers by whom the lawyer is employed, in aspecial account or accounts, separate from anybusiness or personal accounts of the lawyer orlawyer’s firm, and separate from any accountsthat the lawyer may maintain as executor,guardian, trustee or receiver, or in any other fi-duciary capacity; into such special account oraccounts all funds held in escrow or otherwiseentrusted to the lawyer or firm shall be de-posited; provided, however, that such fundsmay be maintained in a banking institution lo-cated outside New York State if such bankinginstitution complies with 22 N.Y.C.R.R. Part1300 and the lawyer has obtained the priorwritten approval of the person to whom suchfunds belong specifying the name and addressof the office or branch of the banking institu-tion where such funds are to be maintained.

(2) A lawyer or the lawyer’s firm shall identify thespecial bank account or accounts required byRule 1.15(b)(1) as an “Attorney Special Ac-count,” “Attorney Trust Account,” or “AttorneyEscrow Account,” and shall obtain checks anddeposit slips that bear such title. Such title maybe accompanied by such other descriptive lan-guage as the lawyer may deem appropriate, pro-vided that such additional languagedistinguishes such special account or accountsfrom other bank accounts that are maintainedby the lawyer or the lawyer’s firm.

(3) Funds reasonably sufficient to maintain the ac-count or to pay account charges may be de-posited therein.

(4) Funds belonging in part to a client or third per-son and in part currently or potentially to thelawyer or law firm shall be kept in such specialaccount or accounts, but the portion belonging


1 2


to the lawyer or law firm may be withdrawnwhen due unless the right of the lawyer or lawfirm to receive it is disputed by the client orthird person, in which event the disputed por-tion shall not be withdrawn until the dispute isfinally resolved.

(c) Notification of Receipt of Property; Safekeeping;Rendering Accounts; Payment or Delivery of Prop-erty.

A lawyer shall:

(1) promptly notify a client or third person of thereceipt of funds, securities, or other propertiesin which the client or third person has an in-terest;

(2) identify and label securities and properties of aclient or third person promptly upon receiptand place them in a safe deposit box or otherplace of safekeeping as soon as practicable;

(3) maintain complete records of all funds, securi-ties, and other properties of a client or thirdperson coming into the possession of the lawyerand render appropriate accounts to the clientor third person regarding them; and

(4) promptly pay or deliver to the client or thirdperson as requested by the client or third personthe funds, securities, or other properties in thepossession of the lawyer that the client or thirdperson is entitled to receive.

(d) Required Bookkeeping Records.

(1) A lawyer shall maintain for seven years after theevents that they record:

(i) the records of all deposits in and with-drawals from the accounts specified inRule 1.15(b) and of any other bank ac-count that concerns or affects the lawyer’spractice of law; these records shall specifi-cally identify the date, source and descrip-tion of each item deposited, as well as thedate, payee and purpose of each with-drawal or disbursement;

(ii) a record for special accounts, showing thesource of all funds deposited in such ac-counts, the names of all persons for whomthe funds are or were held, the amount ofsuch funds, the description and amounts,and the names of all persons to whomsuch funds were disbursed;

(iii) copies of all retainer and compensationagreements with clients;

(iv) copies of all statements to clients or otherpersons showing the disbursement offunds to them or on their behalf;

(v) copies of all bills rendered to clients;

(vi) copies of all records showing payments tolawyers, investigators or other persons, notin the lawyer’s regular employ, for servicesrendered or performed;

(vii) copies of all retainer and closing state-ments filed with the Office of Court Ad-ministration; and

(viii)all checkbooks and check stubs, bankstatements, prenumbered canceled checksand duplicate deposit slips.

(2) Lawyers shall make accurate entries of all finan-cial transactions in their records of receipts anddisbursements, in their special accounts, intheir ledger books or similar records, and in anyother books of account kept by them in the reg-ular course of their practice, which entries shallbe made at or near the time of the act, condi-tion or event recorded.

(3) For purposes of Rule 1.15(d), a lawyer may sat-isfy the requirements of maintaining “copies”by maintaining any of the following items:original records, photocopies, microfilm, opti-cal imaging, and any other medium that pre-serves an image of the document that cannotbe altered without detection.

(e) Authorized Signatories.

All special account withdrawals shall be made only


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to a named payee and not to cash. Such with-drawals shall be made by check or, with the priorwritten approval of the party entitled to the pro-ceeds, by bank transfer. Only a lawyer admitted topractice law in New York State shall be an author-ized signatory of a special account.

(f ) Missing Clients.

Whenever any sum of money is payable to a clientand the lawyer is unable to locate the client, thelawyer shall apply to the court in which the actionwas brought if in the unified court system, or, if noaction was commenced in the unified court system,to the Supreme Court in the county in which thelawyer maintains an office for the practice of law,for an order directing payment to the lawyer of anyfees and disbursements that are owed by the clientand the balance, if any, to the Lawyers’ Fund forClient Protection for safeguarding and disburse-ment to persons who are entitled thereto.

(g) Designation of Successor Signatories.

(1) Upon the death of a lawyer who was the solesignatory on an attorney trust, escrow or specialaccount, an application may be made to theSupreme Court for an order designating a suc-cessor signatory for such trust, escrow or specialaccount, who shall be a member of the bar ingood standing and admitted to the practice oflaw in New York State.

(2) An application to designate a successor signa-tory shall be made to the Supreme Court in thejudicial district in which the deceased lawyermaintained an office for the practice of law. Theapplication may be made by the legal represen-tative of the deceased lawyer’s estate; a lawyerwho was affiliated with the deceased lawyer inthe practice of law; any person who has a ben-eficial interest in such trust, escrow or specialaccount; an officer of a city or county bar asso-ciation; or counsel for an attorney disciplinarycommittee. No lawyer may charge a legal feefor assisting with an application to designate a

successor signatory pursuant to this Rule.

(3) The Supreme Court may designate a successorsignatory and may direct the safeguarding offunds from such trust, escrow or special ac-count, and the disbursement of such funds topersons who are entitled thereto, and may orderthat funds in such account be deposited withthe Lawyers’ Fund for Client Protection forsafeguarding and disbursement to persons whoare entitled thereto.

(h) Dissolution of a Firm.

Upon the dissolution of any firm of lawyers, theformer partners or members shall make appropriatearrangements for the maintenance, by one of themor by a successor firm, of the records specified inRule 1.15(d).

(i) Availability of Bookkeeping Records: Records Sub-ject to Production in Disciplinary Investigationsand Proceedings.

The financial records required by this Rule shall belocated, or made available, at the principal NewYork State office of the lawyers subject hereto, andany such records shall be produced in response toa notice or subpoena duces tecum issued in con-nection with a complaint before or any investiga-tion by the appropriate grievance or departmentaldisciplinary committee, or shall be produced at thedirection of the appropriate Appellate Division be-fore any person designated by it. All books andrecords produced pursuant to this Rule shall bekept confidential, except for the purpose of the par-ticular proceeding, and their contents shall not bedisclosed by anyone in violation of the attorney-client privilege.

(j) Disciplinary Action.

A lawyer who does not maintain and keep the ac-counts and records as specified and required by thisRule, or who does not produce any such recordspursuant to this Rule, shall be deemed in violationof these Rules and shall be subject to disciplinaryproceedings.


RU LE 1 .16 :

Declining or Terminating Representation

(a) A lawyer shall not accept employment on behalf ofa person if the lawyer knows or reasonably shouldknow that such person wishes to:

(1) bring a legal action, conduct a defense, or asserta position in a matter, or otherwise have stepstaken for such person, merely for the purposeof harassing or maliciously injuring any person;or

(2) present a claim or defense in a matter that is notwarranted under existing law, unless it can besupported by a good faith argument for an ex-tension, modification, or reversal of existinglaw.

(b) Except as stated in paragraph (d), a lawyer shallwithdraw from the representation of a client when:

(1) the lawyer knows or reasonably should knowthat the representation will result in a violationof these Rules or of law;

(2) the lawyer’s physical or mental condition ma-terially impairs the lawyer’s ability to representthe client;

(3) the lawyer is discharged; or

(4) the lawyer knows or reasonably should knowthat the client is bringing the legal action, con-ducting the defense, or asserting a position inthe matter, or is otherwise having steps taken,merely for the purpose of harassing or mali-ciously injuring any person.

(c) Except as stated in paragraph (d), a lawyer maywithdraw from representing a client when:

(1) withdrawal can be accomplished without ma-terial adverse effect on the interests of the client;

(2) the client persists in a course of action involvingthe lawyer’s services that the lawyer reasonablybelieves is criminal or fraudulent;

(3) the client has used the lawyer’s services to per-petrate a crime or fraud;

(4) the client insists upon taking action with whichthe lawyer has a fundamental disagreement;

(5) the client deliberately disregards an agreementor obligation to the lawyer as to expenses orfees;

(6) the client insists upon presenting a claim or de-fense that is not warranted under existing lawand cannot be supported by good faith argu-ment for an extension, modification, or reversalof existing law;

(7) the client fails to cooperate in the representa-tion or otherwise renders the representation un-reasonably difficult for the lawyer to carry outemployment effectively;

(8) the lawyer’s inability to work with co-counselindicates that the best interest of the clientlikely will be served by withdrawal;

(9) the lawyer’s mental or physical condition ren-ders it difficult for the lawyer to carry out therepresentation effectively;

(10)the client knowingly and freely assents to ter-mination of the employment;

(11)withdrawal is permitted under Rule 1.13(c) orother law;

(12)the lawyer believes in good faith, in a matterpending before a tribunal, that the tribunal willfind the existence of other good cause for with-drawal; or

(13)the client insists that the lawyer pursue a courseof conduct which is illegal or prohibited underthese Rules.

(d) If permission for withdrawal from employment isrequired by the rules of a tribunal, a lawyer shallnot withdraw from employment in a matter beforethat tribunal without its permission. When or-dered to do so by a tribunal, a lawyer shall continuerepresentation notwithstanding good cause for ter-minating the representation.

(e) Even when withdrawal is otherwise permitted orrequired, upon termination of representation, a


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lawyer shall take steps, to the extent reasonablypracticable, to avoid foreseeable prejudice to therights of the client, including giving reasonable no-tice to the client, allowing time for employment ofother counsel, delivering to the client all papers andproperty to which the client is entitled, promptlyrefunding any part of a fee paid in advance that hasnot been earned and complying with applicablelaws and rules.

RU LE 1 .17:

Sale of Law Practice

(a) A lawyer retiring from a private practice of law; alaw firm, one or more members of which are retir-ing from the private practice of law with the firm;or the personal representative of a deceased, dis-abled or missing lawyer, may sell a law practice, in-cluding goodwill, to one or more lawyers or lawfirms, who may purchase the practice. The sellerand the buyer may agree on reasonable restrictionson the seller’s private practice of law, notwithstand-ing any other provision of these Rules. Retirementshall include the cessation of the private practice oflaw in the geographic area, that is, the county andcity and any county or city contiguous thereto, inwhich the practice to be sold has been conducted.

(b) Confidential information.

(1) With respect to each matter subject to the con-templated sale, the seller may provide prospec-tive buyers with any information not protectedas confidential information under Rule 1.6.

(2) Notwithstanding Rule 1.6, the seller may pro-vide the prospective buyer with information asto individual clients:

(i) concerning the identity of the client, ex-cept as provided in paragraph (b)(6);

(ii) concerning the status and general natureof the matter;

(iii) available in public court files; and

(iv) concerning the financial terms of the

client-lawyer relationship and the paymentstatus of the client’s account.

(3) Prior to making any disclosure of confidentialinformation that may be permitted under para-graph (b)(2), the seller shall provide theprospective buyer with information regardingthe matters involved in the proposed sale suffi-cient to enable the prospective buyer to deter-mine whether any conflicts of interest exist.Where sufficient information cannot be dis-closed without revealing client confidential in-formation, the seller may make the disclosuresnecessary for the prospective buyer to deter-mine whether any conflict of interest exists,subject to paragraph (b)(6). If the prospectivebuyer determines that conflicts of interest existprior to reviewing the information, or deter-mines during the course of review that a con-flict of interest exists, the prospective buyershall not review or continue to review the in-formation unless the seller shall have obtainedthe consent of the client in accordance withRule 1.6(a)(1).

(4) Prospective buyers shall maintain the confiden-tiality of and shall not use any client informa-tion received in connection with the proposedsale in the same manner and to the same extentas if the prospective buyers represented theclient.

(5) Absent the consent of the client after full dis-closure, a seller shall not provide a prospectivebuyer with information if doing so would causea violation of the attorney-client privilege.

(6) If the seller has reason to believe that the iden-tity of the client or the fact of the representationitself constitutes confidential information in thecircumstances, the seller may not provide suchinformation to a prospective buyer without firstadvising the client of the identity of theprospective buyer and obtaining the client’sconsent to the proposed disclosure.

(c) Written notice of the sale shall be given jointly by


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the seller and the buyer to each of the seller’s clientsand shall include information regarding:

(1) the client’s right to retain other counsel or totake possession of the file;

(2) the fact that the client’s consent to the transferof the client’s file or matter to the buyer will bepresumed if the client does not take any actionor otherwise object within 90 days of the send-ing of the notice, subject to any court rule orstatute requiring express approval by the clientor a court;

(3) the fact that agreements between the seller andthe seller’s clients as to fees will be honored bythe buyer;

(4) proposed fee increases, if any, permitted underparagraph (e); and

(5) the identity and background of the buyer orbuyers, including principal office address, baradmissions, number of years in practice in NewYork State, whether the buyer has ever been dis-ciplined for professional misconduct or con-victed of a crime, and whether the buyercurrently intends to resell the practice.

(d) When the buyer’s representation of a client of theseller would give rise to a waivable conflict of in-terest, the buyer shall not undertake such represen-tation unless the necessary waiver or waivers havebeen obtained in writing.

(e) The fee charged a client by the buyer shall not beincreased by reason of the sale, unless permitted bya retainer agreement with the client or otherwisespecifically agreed to by the client.

RU LE 1 .18 :

Duties to Prospective Clients

(a) A person who discusses with a lawyer the possibilityof forming a client-lawyer relationship with respectto a matter is a “prospective client.”

(b) Even when no client-lawyer relationship ensues, alawyer who has had discussions with a prospective

client shall not use or reveal information learned inthe consultation, except as Rule 1.9 would permitwith respect to information of a former client.

(c) A lawyer subject to paragraph (b) shall not repre-sent a client with interests materially adverse tothose of a prospective client in the same or a sub-stantially related matter if the lawyer received in-formation from the prospective client that could besignificantly harmful to that person in the matter,except as provided in paragraph (d). If a lawyer isdisqualified from representation under this para-graph, no lawyer in a firm with which that lawyeris associated may knowingly undertake or continuerepresentation in such a matter, except as providedin paragraph (d).

(d) When the lawyer has received disqualifying infor-mation as defined in paragraph (c), representationis permissible if:

(1) both the affected client and the prospectiveclient have given informed consent, confirmedin writing; or

(2) the lawyer who received the information tookreasonable measures to avoid exposure to moredisqualifying information than was reasonablynecessary to determine whether to represent theprospective client; and

(i) the firm acts promptly and reasonably tonotify, as appropriate, lawyers and non-lawyer personnel within the firm that thepersonally disqualified lawyer is prohibitedfrom participating in the representation ofthe current client;

(ii) the firm implements effective screeningprocedures to prevent the flow of informa-tion about the matter between the disqual-ified lawyer and the others in the firm;

(iii) the disqualified lawyer is apportioned nopart of the fee therefrom; and

(iv) written notice is promptly given to theprospective client; and

(3) a reasonable lawyer would conclude that the


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law firm will be able to provide competent anddiligent representation in the matter.

(e) A person who:

(1) communicates information unilaterally to alawyer, without any reasonable expectation thatthe lawyer is willing to discuss the possibility offorming a client-lawyer relationship; or

(2) communicates with a lawyer for the purpose ofdisqualifying the lawyer from handling a mate-rially adverse representation on the same or asubstantially related matter, is not a prospectiveclient with the meaning of paragraph (a).

RU LE 2.1 :

Advisor

In representing a client, a lawyer shall exercise inde-pendent professional judgment and render candid ad-vice. In rendering advice, a lawyer may refer not onlyto law but to other considerations such as moral, eco-nomic, social, psychological, and political factors thatmay be relevant to the client’s situation.

RU LE 2.2 :

[Reserved]

RU LE 2.3 :

Evaluation for Use by Third Persons

(a) A lawyer may provide an evaluation of a matter af-fecting a client for the use of someone other thanthe client if the lawyer reasonably believes thatmaking the evaluation is compatible with other as-pects of the lawyer’s relationship with the client.

(b) When the lawyer knows or reasonably should knowthat the evaluation is likely to affect the client’s in-terests materially and adversely, the lawyer shall notprovide the evaluation unless the client gives in-formed consent.

(c) Unless disclosure is authorized in connection witha report of an evaluation, information relating tothe evaluation is protected by Rule 1.6.

RU LE 2. 4 :

Lawyer Serving as Third-Party Neutral

(a) A lawyer serves as a “third-party neutral” when thelawyer assists two or more persons who are notclients of the lawyer to reach a resolution of a dis-pute or other matter that has arisen between them.Service as a third-party neutral may include serviceas an arbitrator, a mediator or in such other capac-ity as will enable the lawyer to assist the parties toresolve the matter.

(b) A lawyer serving as a third-party neutral shall in-form unrepresented parties that the lawyer is notrepresenting them. When the lawyer knows or rea-sonably should know that a party does not under-stand the lawyer’s role in the matter, the lawyershall explain the difference between the lawyer’srole as a third-party neutral and a lawyer’s role asone who represents a client.

RU LE 3.1 :

Non-Meritorious Claims andContentions

(a) A lawyer shall not bring or defend a proceeding, orassert or controvert an issue therein, unless there isa basis in law and fact for doing so that is not friv-olous. A lawyer for the defendant in a criminal pro-ceeding or for the respondent in a proceeding thatcould result in incarceration may nevertheless sodefend the proceeding as to require that every ele-ment of the case be established.

(b) A lawyer’s conduct is “frivolous” for purposes ofthis Rule if:

(1) the lawyer knowingly advances a claim or de-fense that is unwarranted under existing law,except that the lawyer may advance such claimor defense if it can be supported by good faithargument for an extension, modification, or re-versal of existing law;

(2) the conduct has no reasonable purpose otherthan to delay or prolong the resolution of liti-gation, in violation of Rule 3.2, or serves merely


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to harass or maliciously injure another; or

(3) the lawyer knowingly asserts material factualstatements that are false.

RU LE 3.2 :

Delay of Litigation

In representing a client, a lawyer shall not use meansthat have no substantial purpose other than to delay orprolong the proceeding or to cause needless expense.

RU LE 3.3 :

Conduct Before a Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribu-nal or fail to correct a false statement of materialfact or law previously made to the tribunal bythe lawyer;

(2) fail to disclose to the tribunal controlling legalauthority known to the lawyer to be directly ad-verse to the position of the client and not dis-closed by opposing counsel; or

(3) offer or use evidence that the lawyer knows tobe false. If a lawyer, the lawyer’s client, or a wit-ness called by the lawyer has offered materialevidence and the lawyer comes to know of itsfalsity, the lawyer shall take reasonable remedialmeasures, including, if necessary, disclosure tothe tribunal. A lawyer may refuse to offer evi-dence, other than the testimony of a defendantin a criminal matter, that the lawyer reasonablybelieves is false.

(b) A lawyer who represents a client before a tribunaland who knows that a person intends to engage, isengaging or has engaged in criminal or fraudulentconduct related to the proceeding shall take reason-able remedial measures, including, if necessary, dis-closure to the tribunal.

(c) The duties stated in paragraphs (a) and (b)apply even if compliance requires disclosure of in-

formation otherwise protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform thetribunal of all material facts known to the lawyerthat will enable the tribunal to make an informeddecision, whether or not the facts are adverse.

(e) In presenting a matter to a tribunal, a lawyer shalldisclose, unless privileged or irrelevant, the identi-ties of the clients the lawyer represents and of thepersons who employed the lawyer.

(f ) In appearing as a lawyer before a tribunal, a lawyershall not:

(1) fail to comply with known local customs ofcourtesy or practice of the bar or a particulartribunal without giving to opposing counseltimely notice of the intent not to comply;

(2) engage in undignified or discourteous conduct;

(3) intentionally or habitually violate any estab-lished rule of procedure or of evidence; or

(4) engage in conduct intended to disrupt the tri-bunal.

RU LE 3. 4 :

Fairness to Opposing Party and Counsel

A lawyer shall not:

(a) (1) suppress any evidence that the lawyer or the client has a legal obligation to reveal or produce;

(2) advise or cause a person to hide or leave the ju-risdiction of a tribunal for the purpose of mak-ing the person unavailable as a witness therein;

(3) conceal or knowingly fail to disclose that whichthe lawyer is required by law to reveal;

(4) knowingly use perjured testimony or false evi-dence;

(5) participate in the creation or preservation of ev-idence when the lawyer knows or it is obviousthat the evidence is false; or

(6) knowingly engage in other illegal conduct or


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conduct contrary to these Rules;

(b) offer an inducement to a witness that is prohibitedby law or pay, offer to pay or acquiesce in the pay-ment of compensation to a witness contingentupon the content of the witness’s testimony or theoutcome of the matter. A lawyer may advance,guarantee or acquiesce in the payment of:

(1) reasonable compensation to a witness for theloss of time in attending, testifying, preparingto testify or otherwise assisting counsel, and rea-sonable related expenses; or

(2) a reasonable fee for the professional services ofan expert witness and reasonable related ex-penses;

(c) disregard or advise the client to disregard a standingrule of a tribunal or a ruling of a tribunal made inthe course of a proceeding, but the lawyer may takeappropriate steps in good faith to test the validityof such rule or ruling;

(d) in appearing before a tribunal on behalf of a client:

(1) state or allude to any matter that the lawyerdoes not reasonably believe is relevant or thatwill not be supported by admissible evidence;

(2) assert personal knowledge of facts in issue ex-cept when testifying as a witness;

(3) assert a personal opinion as to the justness of acause, the credibility of a witness, the culpabil-ity of a civil litigant or the guilt or innocenceof an accused but the lawyer may argue, uponanalysis of the evidence, for any position orconclusion with respect to the matters statedherein; or

(4) ask any question that the lawyer has no reason-able basis to believe is relevant to the case andthat is intended to degrade a witness or otherperson; or

(e) present, participate in presenting, or threaten topresent criminal charges solely to obtain an advan-tage in a civil matter.

RU LE 3.5:

Maintaining and Preserving theImpartiality of Tribunals and Jurors

(a) A lawyer shall not:

(1) seek to or cause another person to influence ajudge, official or employee of a tribunal bymeans prohibited by law or give or lend any-thing of value to such judge, official, or em-ployee of a tribunal when the recipient isprohibited from accepting the gift or loan buta lawyer may make a contribution to the cam-paign fund of a candidate for judicial office inconformity with Part 100 of the Rules of theChief Administrator of the Courts;

(2) in an adversarial proceeding communicate orcause another person to do so on the lawyer’sbehalf, as to the merits of the matter with ajudge or official of a tribunal or an employeethereof before whom the matter is pending, ex-cept:

(i) in the course of official proceedings in thematter;

(ii) in writing, if the lawyer promptly deliversa copy of the writing to counsel for otherparties and to a party who is not repre-sented by a lawyer;

(iii) orally, upon adequate notice to counsel forthe other parties and to any party who isnot represented by a lawyer; or

(iv) as otherwise authorized by law, or by Part100 of the Rules of the Chief Administra-tor of the Courts;

(3) seek to or cause another person to influence ajuror or prospective juror by means prohibitedby law;

(4) communicate or cause another to communicatewith a member of the jury venire from whichthe jury will be selected for the trial of a case or,during the trial of a case, with any member of


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the jury unless authorized to do so by law orcourt order;

(5) communicate with a juror or prospective jurorafter discharge of the jury if:

(i) the communication is prohibited by lawor court order;

(ii) the juror has made known to the lawyer adesire not to communicate;

(iii) the communication involves misrepresen-tation, coercion, duress or harassment; or

(iv) the communication is an attempt to influ-ence the juror’s actions in future jury serv-ice; or

(6) conduct a vexatious or harassing investigationof either a member of the venire or a juror or,by financial support or otherwise, cause anotherto do so.

(b) During the trial of a case a lawyer who is not con-nected therewith shall not communicate with orcause another to communicate with a juror con-cerning the case.

(c) All restrictions imposed by this Rule also apply tocommunications with or investigations of membersof a family of a member of the venire or a juror.

(d) A lawyer shall reveal promptly to the court im-proper conduct by a member of the venire or ajuror, or by another toward a member of the venireor a juror or a member of his or her family of whichthe lawyer has knowledge.

RU LE 3.6 :

Trial Publicity

(a) A lawyer who is participating in or has participatedin a criminal or civil matter shall not make an ex-trajudicial statement that the lawyer knows or rea-sonably should know will be disseminated bymeans of public communication and will have asubstantial likelihood of materially prejudicing anadjudicative proceeding in the matter.

(b) A statement ordinarily is likely to prejudice mate-rially an adjudicative proceeding when it refers toa civil matter triable to a jury, a criminal matter orany other proceeding that could result in incarcer-ation, and the statement relates to:

(1) the character, credibility, reputation or criminalrecord of a party, suspect in a criminal investi-gation or witness, or the identity of a witnessor the expected testimony of a party or witness;

(2) in a criminal matter that could result in incar-ceration, the possibility of a plea of guilty to theoffense or the existence or contents of any con-fession, admission or statement given by a de-fendant or suspect, or that person’s refusal orfailure to make a statement;

(3) the performance or results of any examinationor test, or the refusal or failure of a person tosubmit to an examination or test, or the iden-tity or nature of physical evidence expected tobe presented;

(4) any opinion as to the guilt or innocence of adefendant or suspect in a criminal matter thatcould result in incarceration;

(5) information the lawyer knows or reasonablyshould know is likely to be inadmissible as evi-dence in a trial and would, if disclosed, create asubstantial risk of prejudicing an impartial trial;or

(6) the fact that a defendant has been charged witha crime, unless there is included therein a state-ment explaining that the charge is merely an ac-cusation and that the defendant is presumedinnocent until and unless proven guilty.

(c) Provided that the statement complies with para-graph (a), a lawyer may state the following withoutelaboration:

(1) the claim, offense or defense and, except whenprohibited by law, the identity of the personsinvolved;

(2) information contained in a public record;


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(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidenceand information necessary thereto;

(6) a warning of danger concerning the behavior ofa person involved, when there is reason to be-lieve that there exists the likelihood of substan-tial harm to an individual or to the publicinterest; and

(7) in a criminal matter:

(i) the identity, age, residence, occupationand family status of the accused;

(ii) if the accused has not been apprehended,information necessary to aid in apprehen-sion of that person;

(iii) the identity of investigating and arrestingofficers or agencies and the length of theinvestigation; and

(iv) the fact, time and place of arrest, resist-ance, pursuit and use of weapons, and adescription of physical evidence seized,other than as contained only in a confes-sion, admission or statement.

(d) Notwithstanding paragraph (a), a lawyer may makea statement that a reasonable lawyer would believeis required to protect a client from the substantialprejudicial effect of recent publicity not initiatedby the lawyer or the lawyer’s client. A statementmade pursuant to this paragraph shall be limited tosuch information as is necessary to mitigate the re-cent adverse publicity.

(e) No lawyer associated in a firm or governmentagency with a lawyer subject to paragraph (a) shallmake a statement prohibited by paragraph (a).

RU LE 3.7:

Lawyer As Witness

(a) A lawyer shall not act as advocate before a tribunalin a matter in which the lawyer is likely to be a wit-

ness on a significant issue of fact unless:

(1) the testimony relates solely to an uncontestedissue;

(2) the testimony relates solely to the nature andvalue of legal services rendered in the matter;

(3) disqualification of the lawyer would work sub-stantial hardship on the client;

(4) the testimony will relate solely to a matter offormality, and there is no reason to believe thatsubstantial evidence will be offered in opposi-tion to the testimony; or

(5) the testimony is authorized by the tribunal.

(b) A lawyer may not act as advocate before a tribunalin a matter if:

(1) another lawyer in the lawyer’s firm is likely tobe called as a witness on a significant issue otherthan on behalf of the client, and it is apparentthat the testimony may be prejudicial to theclient; or

(2) the lawyer is precluded from doing so by Rule1.7 or Rule 1.9.

RU LE 3.8 :

Special Responsibilities of Prosecutorsand Other Government Lawyers

(a) A prosecutor or other government lawyer shall notinstitute, cause to be instituted or maintain a crim-inal charge when the prosecutor or other govern-ment lawyer knows or it is obvious that the chargeis not supported by probable cause.

(b) A prosecutor or other government lawyer in crim-inal litigation shall make timely disclosure to coun-sel for the defendant or to a defendant who has nocounsel of the existence of evidence or informationknown to the prosecutor or other governmentlawyer that tends to negate the guilt of the accused,mitigate the degree of the offense, or reduce thesentence, except when relieved of this responsibilityby a protective order of a tribunal.


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RU LE 3.9 :

Advocate In Non-Adjudicative Matters

A lawyer communicating in a representative capacitywith a legislative body or administrative agency in con-nection with a pending non-adjudicative matter or pro-ceeding shall disclose that the appearance is in arepresentative capacity, except when the lawyer seeks in-formation from an agency that is available to the public.

RU LE 4.1 :

Truthfulness In Statements To Others

In the course of representing a client, a lawyer shall notknowingly make a false statement of fact or law to athird person.

RU LE 4.2 :

Communication With Person RepresentedBy Counsel

(a) In representing a client, a lawyer shall not commu-nicate or cause another to communicate about thesubject of the representation with a party the lawyerknows to be represented by another lawyer in thematter, unless the lawyer has the prior consent ofthe other lawyer or is authorized to do so by law.

(b) Notwithstanding the prohibitions of paragraph (a),and unless otherwise prohibited by law, a lawyermay cause a client to communicate with a repre-sented person unless the represented person is notlegally competent, and may counsel the client withrespect to those communications, provided thelawyer gives reasonable advance notice to the rep-resented person’s counsel that such communica-tions will be taking place.

RU LE 4.3 :

Communicating With UnrepresentedPersons

In communicating on behalf of a client with a personwho is not represented by counsel, a lawyer shall not

state or imply that the lawyer is disinterested. When thelawyer knows or reasonably should know that the un-represented person misunderstands the lawyer’s role inthe matter, the lawyer shall make reasonable efforts tocorrect the misunderstanding. The lawyer shall not givelegal advice to an unrepresented person other than theadvice to secure counsel if the lawyer knows or reason-ably should know that the interests of such person areor have a reasonable possibility of being in conflict withthe interests of the client.

RU LE 4. 4 :

Respect for Rights of Third Persons

(a) In representing a client, a lawyer shall not usemeans that have no substantial purpose other thanto embarrass or harm a third person or use methodsof obtaining evidence that violate the legal rightsof such a person.

(b) A lawyer who receives a document relating to therepresentation of the lawyer’s client and knows orreasonably should know that the document was in-advertently sent shall promptly notify the sender.

RU LE 4.5:

Communication After IncidentsInvolving Personal Injury or WrongfulDeath

(a) In the event of a specific incident involving poten-tial claims for personal injury or wrongful death,no unsolicited communication shall be made to anindividual injured in the incident or to a familymember or legal representative of such an individ-ual, by a lawyer or law firm, or by any associate,agent, employee or other representative of a lawyeror law firm representing actual or potential defen-dants or entities that may defend and/or indemnifysaid defendants, before the 30th day after the dateof the incident, unless a filing must be made within30 days of the incident as a legal prerequisite to theparticular claim, in which case no unsolicited com-munication shall be made before the 15th day after


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the date of the incident.

(b) An unsolicited communication by a lawyer or lawfirm, seeking to represent an injured individual orthe legal representative thereof under the circum-stance described in paragraph (a) shall comply withRule 7.3(e).

RU LE 5.1 :

Responsibilities of Law Firms, Partners,Managers and Supervisory Lawyers

(a) A law firm shall make reasonable efforts to ensurethat all lawyers in the firm conform to these Rules.

(b) (1) A lawyer with management responsibility in alaw firm shall make reasonable efforts to ensurethat other lawyers in the law firm conform tothese Rules.

(2) A lawyer with direct supervisory authority overanother lawyer shall make reasonable efforts toensure that the supervised lawyer conforms tothese Rules.

(c) A law firm shall ensure that the work of partnersand associates is adequately supervised, as appro-priate. A lawyer with direct supervisory authorityover another lawyer shall adequately supervise thework of the other lawyer, as appropriate. In eithercase, the degree of supervision required is thatwhich is reasonable under the circumstances, takinginto account factors such as the experience of theperson whose work is being supervised, the amountof work involved in a particular matter, and thelikelihood that ethical problems might arise in thecourse of working on the matter.

(d) A lawyer shall be responsible for a violation of theseRules by another lawyer if:

(1) the lawyer orders or directs the specific conductor, with knowledge of the specific conduct, rat-ifies it; or

(2) the lawyer is a partner in a law firm or is alawyer who individually or together with other

lawyers possesses comparable managerial re-sponsibility in a law firm in which the otherlawyer practices or is a lawyer who has supervi-sory authority over the other lawyer; and

(i) knows of such conduct at a time when itcould be prevented or its consequencesavoided or mitigated but fails to take rea-sonable remedial action; or

(ii) in the exercise of reasonable managementor supervisory authority should haveknown of the conduct so that reasonableremedial action could have been taken ata time when the consequences of the con-duct could have been avoided or miti-gated.

RU LE 5.2 :

Responsibilities of a Subordinate Lawyer

(a) A lawyer is bound by these Rules notwithstandingthat the lawyer acted at the direction of anotherperson.

(b) A subordinate lawyer does not violate these Rulesif that lawyer acts in accordance with a supervisorylawyer’s reasonable resolution of an arguable ques-tion of professional duty.

RU LE 5.3 :

Lawyer’s Responsibility for Conduct ofNonlawyers

(a) A law firm shall ensure that the work of nonlawyerswho work for the firm is adequately supervised, asappropriate. A lawyer with direct supervisory au-thority over a nonlawyer shall adequately supervisethe work of the nonlawyer, as appropriate. In eithercase, the degree of supervision required is thatwhich is reasonable under the circumstances, takinginto account factors such as the experience of theperson whose work is being supervised, the amountof work involved in a particular matter and the like-


lihood that ethical problems might arise in thecourse of working on the matter.

(b) A lawyer shall be responsible for conduct of a non-lawyer employed or retained by or associated withthe lawyer that would be a violation of these Rulesif engaged in by a lawyer, if:

(1) the lawyer orders or directs the specific conductor, with knowledge of the specific conduct, rat-ifies it; or

(2) the lawyer is a partner in a law firm or is alawyer who individually or together with otherlawyers possesses comparable managerial re-sponsibility in a law firm in which the non-lawyer is employed or is a lawyer who hassupervisory authority over the nonlawyer; and

(i) knows of such conduct at a time when itcould be prevented or its consequencesavoided or mitigated but fails to take rea-sonable remedial action; or

(ii) in the exercise of reasonable managementor supervisory authority should haveknown of the conduct so that reasonableremedial action could have been taken ata time when the consequences of the con-duct could have been avoided or miti-gated.

RU LE 5. 4 :

Professional Independence of a Lawyer

(a) A lawyer or law firm shall not share legal fees witha nonlawyer, except that:

(1) an agreement by a lawyer with the lawyer’s firmor another lawyer associated in the firm mayprovide for the payment of money, over a rea-sonable period of time after the lawyer’s death,to the lawyer’s estate or to one or more specifiedpersons;

(2) a lawyer who undertakes to complete unfin-ished legal business of a deceased lawyer maypay to the estate of the deceased lawyer that

portion of the total compensation that fairlyrepresents the services rendered by the deceasedlawyer; and

(3) a lawyer or law firm may compensate a non-lawyer employee or include a nonlawyer em-ployee in a retirement plan based in whole orin part on a profit-sharing arrangement.

(b) A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnershipconsist of the practice of law.

(c) Unless authorized by law, a lawyer shall not permita person who recommends, employs or pays thelawyer to render legal service for another to director regulate the lawyer’s professional judgment inrendering such legal services or to cause the lawyerto compromise the lawyer’s duty to maintain theconfidential information of the client under Rule1.6.

(d) A lawyer shall not practice with or in the form ofan entity authorized to practice law for profit, if:

(1) a nonlawyer owns any interest therein, exceptthat a fiduciary representative of the estate of alawyer may hold the stock or interest of thelawyer for a reasonable time during administra-tion;

(2) a nonlawyer is a member, corporate director orofficer thereof or occupies a position of similarresponsibility in any form of association otherthan a corporation; or

(3) a nonlawyer has the right to direct or controlthe professional judgment of a lawyer.

RU LE 5.5:

Unauthorized Practice of Law

(a) A lawyer shall not practice law in a jurisdiction inviolation of the regulation of the legal profession inthat jurisdiction.

(b) A lawyer shall not aid a nonlawyer in the unautho-rized practice of law.


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RU LE 5.6 :

Restrictions On Right To Practice

(a) A lawyer shall not participate in offering or mak-ing:

(1) a partnership, shareholder, operating, employ-ment, or other similar type of agreement thatrestricts the right of a lawyer to practice aftertermination of the relationship, except an agree-ment concerning benefits upon retirement; or

(2) an agreement in which a restriction on alawyer’s right to practice is part of the settle-ment of a client controversy.

(b) This Rule does not prohibit restrictions that maybe included in the terms of the sale of a law practicepursuant to Rule 1.17.

RU LE 5.7:

Responsibilities Regarding NonlegalServices

(a) With respect to lawyers or law firms providing non-legal services to clients or other persons:

(1) A lawyer or law firm that provides nonlegalservices to a person that are not distinct fromlegal services being provided to that person bythe lawyer or law firm is subject to these Ruleswith respect to the provision of both legal andnonlegal services.

(2) A lawyer or law firm that provides nonlegalservices to a person that are distinct from legalservices being provided to that person by thelawyer or law firm is subject to these Rules withrespect to the nonlegal services if the person re-ceiving the services could reasonably believethat the nonlegal services are the subject of aclient-lawyer relationship.

(3) A lawyer or law firm that is an owner, control-ling party or agent of, or that is otherwise affil-iated with, an entity that the lawyer or law firmknows to be providing nonlegal services to aperson is subject to these Rules with respect to

the nonlegal services if the person receiving theservices could reasonably believe that the non-legal services are the subject of a client-lawyerrelationship.

(4) For purposes of paragraphs (a)(2) and (a)(3), itwill be presumed that the person receiving non-legal services believes the services to be the sub-ject of a client-lawyer relationship unless thelawyer or law firm has advised the person re-ceiving the services in writing that the servicesare not legal services and that the protection ofa client-lawyer relationship does not exist withrespect to the nonlegal services, or if the interestof the lawyer or law firm in the entity providingnonlegal services is de minimis.

(b) Notwithstanding the provisions of paragraph (a), alawyer or law firm that is an owner, controllingparty, agent, or is otherwise affiliated with an entitythat the lawyer or law firm knows is providing non-legal services to a person shall not permit any non-lawyer providing such services or affiliated withthat entity to direct or regulate the professionaljudgment of the lawyer or law firm in renderinglegal services to any person, or to cause the lawyeror law firm to compromise its duty under Rule1.6(a) and (c) with respect to the confidential in-formation of a client receiving legal services.

(c) For purposes of this Rule, “nonlegal services” shallmean those services that lawyers may lawfully pro-vide and that are not prohibited as an unauthorizedpractice of law when provided by a nonlawyer.

RU LE 5.8 :

Contractual Relationship BetweenLawyers and Nonlegal Professionals

(a) The practice of law has an essential tradition ofcomplete independence and uncompromised loy-alty to those it serves. Recognizing this tradition,clients of lawyers practicing in New York State areguaranteed “independent professional judgmentand undivided loyalty uncompromised by conflicts


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of interest.” Indeed, these guarantees represent thevery foundation of the profession and allow andfoster its continued role as a protector of the systemof law. Therefore, a lawyer must remain completelyresponsible for his or her own independent profes-sional judgment, maintain the confidences and se-crets of clients, preserve funds of clients and thirdparties in his or her control, and otherwise complywith the legal and ethical principles governinglawyers in New York State.

Multi-disciplinary practice between lawyers andnonlawyers is incompatible with the core values ofthe legal profession and therefore, a strict divisionbetween services provided by lawyers and thoseprovided by nonlawyers is essential to protect thosevalues. However, a lawyer or law firm may enterinto and maintain a contractual relationship witha nonlegal professional or nonlegal professionalservice firm for the purpose of offering to the pub-lic, on a systematic and continuing basis, legal serv-ices performed by the lawyer or law firm as well asother nonlegal professional services, notwithstand-ing the provisions of Rule 1.7(a), provided that:

(1) the profession of the nonlegal professional ornonlegal professional service firm is included ina list jointly established and maintained by theAppellate Divisions pursuant to Section 1205.3of the Joint Appellate Division Rules;

(2) the lawyer or law firm neither grants to thenonlegal professional or nonlegal professionalservice firm, nor permits such person or firm toobtain, hold or exercise, directly or indirectly,any ownership or investment interest in, ormanagerial or supervisory right, power or posi-tion in connection with the practice of law bythe lawyer or law firm, nor, as provided in Rule7.2(a)(1), shares legal fees with a nonlawyer orreceives or gives any monetary or other tangiblebenefit for giving or receiving a referral; and

(3) the fact that the contractual relationship existsis disclosed by the lawyer or law firm to anyclient of the lawyer or law firm before the client

is referred to the nonlegal professional servicefirm, or to any client of the nonlegal profes-sional service firm before that client receiveslegal services from the lawyer or law firm; andthe client has given informed written consentand has been provided with a copy of the“Statement of Client’s Rights In CooperativeBusiness Arrangements” pursuant to section1205.4 of the Joint Appellate Divisions Rules.

(b) For purposes of paragraph (a):

(1) each profession on the list maintained pursuantto a Joint Rule of the Appellate Divisions shallhave been designated sua sponte, or approvedby the Appellate Divisions upon application ofa member of a nonlegal profession or nonlegalprofessional service firm, upon a determinationthat the profession is composed of individualswho, with respect to their profession:

(i) have been awarded a bachelor’s degree orits equivalent from an accredited collegeor university, or have attained an equiva-lent combination of educational creditfrom such a college or university and workexperience;

(ii) are licensed to practice the profession by anagency of the State of New York or theUnited States Government; and

(iii) are required under penalty of suspensionor revocation of license to adhere to a codeof ethical conduct that is reasonably com-parable to that of the legal profession;

(2) the term “ownership or investment interest”shall mean any such interest in any form of debtor equity, and shall include any interest com-monly considered to be an interest accruing toor enjoyed by an owner or investor.

(c) This Rule shall not apply to relationships consistingsolely of non-exclusive reciprocal referral agree-ments or understandings between a lawyer or lawfirm and a nonlegal professional or nonlegal pro-fessional service firm.


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RU LE 6.1 :

Voluntary Pro Bono Service

Lawyers are strongly encouraged to provide pro bonolegal services to benefit poor persons.

(a) Every lawyer should aspire to:

(1) provide at least 20 hours of pro bono legal serv-ices each year to poor persons; and

(2) contribute financially to organizations that pro-vide legal services to poor persons.

(b) Pro bono legal services that meet this goal are:

(1) professional services rendered in civil matters,and in those criminal matters for which thegovernment is not obliged to provide funds forlegal representation, to persons who are finan-cially unable to compensate counsel;

(2) activities related to improving the administra-tion of justice by simplifying the legal processfor, or increasing the availability and quality oflegal services to, poor persons; and

(3) professional services to charitable, religious,civic and educational organizations in mattersdesigned predominantly to address the needs ofpoor persons.

(c) Appropriate organizations for financial contribu-tions are:

(1) organizations primarily engaged in the provi-sion of legal services to the poor; and

(2) organizations substantially engaged in the pro-vision of legal services to the poor, providedthat the donated funds are to be used for theprovision of such legal services.

(d) This Rule is not intended to be enforced throughthe disciplinary process, and the failure to fulfill theaspirational goals contained herein should be with-out legal consequence.

RU LE 6.2 :

[Reserved]

RU LE 6.3 :

Membership in a Legal ServicesOrganization

A lawyer may serve as a director, officer or member ofa not-for-profit legal services organization, apart fromthe law firm in which the lawyer practices, notwith-standing that the organization serves persons having in-terests that differ from those of a client of the lawyer orthe lawyer’s firm. The lawyer shall not knowingly par-ticipate in a decision or action of the organization:

(a) if participating in the decision or action would beincompatible with the lawyer’s obligations to aclient under Rules 1.7 through 1.13; or

(b) where the decision or action could have a materialadverse effect on the representation of a client ofthe organization whose interests differ from thoseof a client of the lawyer or the lawyer’s firm.

RU LE 6. 4

Law Reform Activities Affecting ClientInterests

A lawyer may serve as a director, officer or member ofan organization involved in reform of the law or its ad-ministration, notwithstanding that the reform may af-fect the interests of a client of the lawyer. When thelawyer knows that the interests of a client may be ma-terially benefitted by a decision in which the lawyer ac-tively participates, the lawyer shall disclose that fact tothe organization, but need not identify the client. Whenthe lawyer knows that the interests of a client may beadversely affected by a decision in which the lawyer ac-tively participates, the lawyer shall disclose that fact tothe client.

RU LE 6.5:

Participation in Limited Pro Bono LegalService Programs

(a) A lawyer who, under the auspices of a programsponsored by a court, government agency, bar as-sociation or not-for-profit legal services organiza-tion, provides short-term limited legal services to a


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client without expectation by either the lawyer orthe client that the lawyer will provide continuingrepresentation in the matter:

(1) shall comply with Rules 1.7, 1.8 and 1.9, con-cerning restrictions on representations wherethere are or may be conflicts of interest as thatterm is defined in these Rules, only if the lawyerhas actual knowledge at the time of commence-ment of representation that the representationof the client involves a conflict of interest; and

(2) shall comply with Rule 1.10 only if the lawyerhas actual knowledge at the time of commence-ment of representation that another lawyer as-sociated with the lawyer in a law firm is affectedby Rules 1.7, 1.8 and 1.9.

(b) Except as provided in paragraph (a)(2), Rule 1.7and Rule 1.9 are inapplicable to a representationgoverned by this Rule.

(c) Short-term limited legal services are services pro-viding legal advice or representation free of chargeas part of a program described in paragraph (a) withno expectation that the assistance will continue be-yond what is necessary to complete an initial con-sultation, representation or court appearance.

(d) The lawyer providing short-term limited legal serv-ices must secure the client’s informed consent tothe limited scope of the representation, and suchrepresentation shall be subject to the provisions ofRule 1.6.

(e) This Rule shall not apply where the court beforewhich the matter is pending determines that a con-flict of interest exists or, if during the course of therepresentation, the lawyer providing the services be-comes aware of the existence of a conflict of interestprecluding continued representation.

RU LE 7.1 :

Advertising

(a) A lawyer or law firm shall not use or disseminateor participate in the use or dissemination of any ad-

vertisement that:

(1) contains statements or claims that are false, de-ceptive or misleading; or

(2) violates a Rule.

(b) Subject to the provisions of paragraph (a), an ad-vertisement may include information as to:

(1) legal and nonlegal education, degrees and otherscholastic distinctions, dates of admission toany bar; areas of the law in which the lawyer orlaw firm practices, as authorized by these Rules;public offices and teaching positions held; pub-lications of law related matters authored by thelawyer; memberships in bar associations orother professional societies or organizations, in-cluding offices and committee assignmentstherein; foreign language fluency; and bona fideprofessional ratings;

(2) names of clients regularly represented, providedthat the client has given prior written consent;

(3) bank references; credit arrangements accepted;prepaid or group legal services programs inwhich the lawyer or law firm participates; non-legal services provided by the lawyer or law firmor by an entity owned and controlled by thelawyer or law firm; the existence of contractualrelationships between the lawyer or law firmand a nonlegal professional or nonlegal profes-sional service firm, to the extent permitted byRule 5.8, and the nature and extent of servicesavailable through those contractual relation-ships; and

(4) legal fees for initial consultation; contingent feerates in civil matters when accompanied by astatement disclosing the information requiredby paragraph (p); range of fees for legal andnonlegal services, provided that there be avail-able to the public free of charge a written state-ment clearly describing the scope of eachadvertised service; hourly rates; and fixed feesfor specified legal and nonlegal services.

(c) An advertisement shall not:


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(1) include an endorsement of, or testimonialabout, a lawyer or law firm from a client withrespect to a matter still pending;

(2) include a paid endorsement of, or testimonialabout, a lawyer or law firm without disclosingthat the person is being compensated therefor;

(3) include the portrayal of a judge, the portrayalof a fictitious law firm, the use of a fictitiousname to refer to lawyers not associated togetherin a law firm, or otherwise imply that lawyersare associated in a law firm if that is not thecase;

(4) use actors to portray the lawyer, members of thelaw firm, or clients, or utilize depictions of fic-tionalized events or scenes, without disclosureof same;

(5) rely on techniques to obtain attention thatdemonstrate a clear and intentional lack of rel-evance to the selection of counsel, including theportrayal of lawyers exhibiting characteristicsclearly unrelated to legal competence;

(6) be made to resemble legal documents; or

(7) utilize a nickname, moniker, motto or tradename that implies an ability to obtain results ina matter.

(d) An advertisement that complies with paragraph (e)may contain the following:

(1) statements that are reasonably likely to createan expectation about results the lawyer canachieve;

(2) statements that compare the lawyer’s serviceswith the services of other lawyers;

(3) testimonials or endorsements of clients, wherenot prohibited by paragraph (c)(1), and of for-mer clients; or

(4) statements describing or characterizing thequality of the lawyer’s or law firm’s services.

(e) It is permissible to provide the information setforth in paragraph (d) provided:

(1) its dissemination does not violate paragraph (a);

(2) it can be factually supported by the lawyer orlaw firm as of the date on which the advertise-ment is published or disseminated; and

(3) it is accompanied by the following disclaimer:“Prior results do not guarantee a similar out-come.”

(f ) Every advertisement other than those appearing ina radio, television or billboard advertisement, in adirectory, newspaper, magazine or other periodical(and any web sites related thereto), or made in per-son pursuant to Rule 7.3(a)(1), shall be labeled “At-torney Advertising” on the first page, or on thehome page in the case of a web site. If the commu-nication is in the form of a self-mailing brochureor postcard, the words “Attorney Advertising” shallappear therein. In the case of electronic mail, thesubject line shall contain the notation “ATTOR-NEY ADVERTISING.”

(g) A lawyer or law firm shall not utilize:

(1) a pop-up or pop-under advertisement in con-nection with computer-accessed communica-tions, other than on the lawyer or law firm’sown web site or other internet presence; or

(2) meta tags or other hidden computer codes that,if displayed, would violate these Rules.

(h) All advertisements shall include the name, principallaw office address and telephone number of thelawyer or law firm whose services are being offered.

(i) Any words or statements required by this Rule toappear in an advertisement must be clearly legibleand capable of being read by the average person, ifwritten, and intelligible if spoken aloud. In thecase of a web site, the required words or statementsshall appear on the home page.

(j) A lawyer or law firm advertising any fixed fee forspecified legal services shall, at the time of fee pub-lication, have available to the public a written state-ment clearly describing the scope of each advertisedservice, which statement shall be available to theclient at the time of retainer for any such service.Such legal services shall include all those services


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that are recognized as reasonable and necessaryunder local custom in the area of practice in thecommunity where the services are performed.

(k) All advertisements shall be pre-approved by thelawyer or law firm, and a copy shall be retained fora period of not less than three years following itsinitial dissemination. Any advertisement containedin a computer-accessed communication shall be re-tained for a period of not less than one year. A copyof the contents of any web site covered by this Ruleshall be preserved upon the initial publication ofthe web site, any major web site redesign, or ameaningful and extensive content change, but inno event less frequently than once every 90 days.

(l) If a lawyer or law firm advertises a range of fees oran hourly rate for services, the lawyer or law firmshall not charge more than the fee advertised forsuch services. If a lawyer or law firm advertises afixed fee for specified legal services, or performsservices described in a fee schedule, the lawyer orlaw firm shall not charge more than the fixed feefor such stated legal service as set forth in the ad-vertisement or fee schedule, unless the client agreesin writing that the services performed or to be per-formed were not legal services referred to or impliedin the advertisement or in the fee schedule and, fur-ther, that a different fee arrangement shall apply tothe transaction.

(m)Unless otherwise specified in the advertisement, ifa lawyer publishes any fee information authorizedunder this Rule in a publication that is publishedmore frequently than once per month, the lawyershall be bound by any representation made thereinfor a period of not less than 30 days after such pub-lication. If a lawyer publishes any fee informationauthorized under this Rule in a publication that ispublished once per month or less frequently, thelawyer shall be bound by any representation madetherein until the publication of the succeedingissue. If a lawyer publishes any fee information au-thorized under this Rule in a publication that hasno fixed date for publication of a succeeding issue,

the lawyer shall be bound by any representationmade therein for a reasonable period of time afterpublication, but in no event less than 90 days.

(n) Unless otherwise specified, if a lawyer broadcastsany fee information authorized under this Rule, thelawyer shall be bound by any representation madetherein for a period of not less than 30 days aftersuch broadcast.

(o) A lawyer shall not compensate or give any thing ofvalue to representatives of the press, radio, televi-sion or other communication medium in anticipa-tion of or in return for professional publicity in anews item.

(p) All advertisements that contain information aboutthe fees charged by the lawyer or law firm, includ-ing those indicating that in the absence of a recov-ery no fee will be charged, shall comply with theprovisions of Judiciary Law §488(3).

(q) A lawyer may accept employment that results fromparticipation in activities designed to educate thepublic to recognize legal problems, to make intelli-gent selection of counsel or to utilize available legalservices.

(r) Without affecting the right to accept employment,a lawyer may speak publicly or write for publicationon legal topics so long as the lawyer does not un-dertake to give individual advice.

RU LE 7.2 :

Payment for Referrals

(a) A lawyer shall not compensate or give anything ofvalue to a person or organization to recommend orobtain employment by a client, or as a reward forhaving made a recommendation resulting in em-ployment by a client, except that:

(1) a lawyer or law firm may refer clients to a non-legal professional or nonlegal professional serv-ice firm pursuant to a contractual relationshipwith such nonlegal professional or nonlegalprofessional service firm to provide legal and


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other professional services on a systematic andcontinuing basis as permitted by Rule 5.8, pro-vided however that such referral shall not oth-erwise include any monetary or other tangibleconsideration or reward for such, or the sharingof legal fees; and

(2) a lawyer may pay the usual and reasonable feesor dues charged by a qualified legal assistanceorganization or referral fees to another lawyeras permitted by Rule 1.5(g).

(b) A lawyer or the lawyer’s partner or associate or anyother affiliated lawyer may be recommended, em-ployed or paid by, or may cooperate with one ofthe following offices or organizations that promotethe use of the lawyer’s services or those of a partneror associate or any other affiliated lawyer, or requestone of the following offices or organizations to rec-ommend or promote the use of the lawyer’s servicesor those of the lawyer’s partner or associate, or anyother affiliated lawyer as a private practitioner, ifthere is no interference with the exercise of inde-pendent professional judgment on behalf of theclient:

(1) a legal aid office or public defender office:

(i) operated or sponsored by a duly accreditedlaw school;

(ii) operated or sponsored by a bona fide,non-profit community organization;

(iii) operated or sponsored by a governmentalagency; or

(iv) operated, sponsored, or approved by a barassociation;

(2) a military legal assistance office;

(3) a lawyer referral service operated, sponsored orapproved by a bar association or authorized bylaw or court rule; or

(4) any bona fide organization that recommends,furnishes or pays for legal services to its mem-bers or beneficiaries provided the followingconditions are satisfied:

(i) Neither the lawyer, nor the lawyer’s part-ner, nor associate, nor any other affiliatedlawyer nor any nonlawyer, shall have ini-tiated or promoted such organization forthe primary purpose of providing financialor other benefit to such lawyer, partner, as-sociate or affiliated lawyer;

(ii) Such organization is not operated for thepurpose of procuring legal work or finan-cial benefit for any lawyer as a privatepractitioner outside of the legal servicesprogram of the organization;

(iii) The member or beneficiary to whom thelegal services are furnished, and not suchorganization, is recognized as the client ofthe lawyer in the matter;

(iv) The legal service plan of such organizationprovides appropriate relief for any memberor beneficiary who asserts a claim that rep-resentation by counsel furnished, selectedor approved by the organization for theparticular matter involved would be un-ethical, improper or inadequate under thecircumstances of the matter involved; andthe plan provides an appropriate proce-dure for seeking such relief;

(v) The lawyer does not know or have causeto know that such organization is in vio-lation of applicable laws, rules of court orother legal requirements that govern itslegal service operations; and

(vi) Such organization has filed with the ap-propriate disciplinary authority, to the ex-tent required by such authority, at leastannually a report with respect to its legalservice plan, if any, showing its terms, itsschedule of benefits, its subscriptioncharges, agreements with counsel and fi-nancial results of its legal service activitiesor, if it has failed to do so, the lawyer doesnot know or have cause to know of suchfailure.


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RU LE 7.3 :

Solicitation and Recommendation ofProfessional Employment

(a) A lawyer shall not engage in solicitation:

(1) by in-person or telephone contact, or by real-time or interactive computer-accessed commu-nication unless the recipient is a close friend,relative, former client or existing client; or

(2) by any form of communication if:

(i) the communication or contact violatesRule 4.5, Rule 7.1(a), or paragraph (e) ofthis Rule;

(ii) the recipient has made known to thelawyer a desire not to be solicited by thelawyer;

(iii) the solicitation involves coercion, duressor harassment;

(iv) the lawyer knows or reasonably shouldknow that the age or the physical, emo-tional or mental state of the recipientmakes it unlikely that the recipient will beable to exercise reasonable judgment in re-taining a lawyer; or

(v) the lawyer intends or expects, but does notdisclose, that the legal services necessary tohandle the matter competently will be per-formed primarily by another lawyer whois not affiliated with the soliciting lawyeras a partner, associate or of counsel.

(b) For purposes of this Rule, “solicitation” means anyadvertisement initiated by or on behalf of a lawyeror law firm that is directed to, or targeted at, a spe-cific recipient or group of recipients, or their familymembers or legal representatives, the primary pur-pose of which is the retention of the lawyer or lawfirm, and a significant motive for which is pecu-niary gain. It does not include a proposal or otherwriting prepared and delivered in response to a spe-cific request of a prospective client.

(c) A solicitation directed to a recipient in this State

shall be subject to the following provisions:

(1) A copy of the solicitation shall at the time of itsdissemination be filed with the attorney disci-plinary committee of the judicial district or ju-dicial department wherein the lawyer or lawfirm maintains its principal office. Where nosuch office is maintained, the filing shall bemade in the judicial department where the so-licitation is targeted. A filing shall consist of:

(i) a copy of the solicitation;

(ii) a transcript of the audio portion of anyradio or television solicitation; and

(iii) if the solicitation is in a language otherthan English, an accurate English-lan-guage translation.

(2) Such solicitation shall contain no reference tothe fact of filing.

(3) If a solicitation is directed to a predeterminedrecipient, a list containing the names and ad-dresses of all recipients shall be retained by thelawyer or law firm for a period of not less thanthree years following the last date of its dissem-ination.

(4) Solicitations filed pursuant to this subdivisionshall be open to public inspection.

(5) The provisions of this paragraph shall not applyto:

(i) a solicitation directed or disseminated toa close friend, relative, or former or exist-ing client;

(ii) a web site maintained by the lawyer or lawfirm, unless the web site is designed forand directed to or targeted at a prospectiveclient affected by an identifiable actualevent or occurrence or by an identifiableprospective defendant; or

(iii) professional cards or other announcementsthe distribution of which is authorized byRule 7.5(a).

(d) A written solicitation shall not be sent by a method


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that requires the recipient to travel to a locationother than that at which the recipient ordinarily re-ceives business or personal mail or that requires asignature on the part of the recipient.

(e) No solicitation relating to a specific incident in-volving potential claims for personal injury orwrongful death shall be disseminated before the30th day after the date of the incident, unless a fil-ing must be made within 30 days of the incidentas a legal prerequisite to the particular claim, inwhich case no unsolicited communication shall bemade before the 15th day after the date of the in-cident.

(f ) Any solicitation made in writing or by computer-accessed communication and directed to a pre-de-termined recipient, if prompted by a specificoccurrence involving or affecting a recipient, shalldisclose how the lawyer obtained the identity of therecipient and learned of the recipient’s potentiallegal need.

(g) If a retainer agreement is provided with any solici-tation, the top of each page shall be marked “SAM-PLE” in red ink in a type size equal to the largesttype size used in the agreement and the words “DONOT SIGN” shall appear on the client signatureline.

(h) Any solicitation covered by this section shall in-clude the name, principal law office address andtelephone number of the lawyer or law firm whoseservices are being offered.

(i) The provisions of this Rule shall apply to a lawyeror members of a law firm not admitted to practicein this State who shall solicit retention by residentsof this State.

RU LE 7. 4 :

Identification of Practice and Specialty

(a) A lawyer or law firm may publicly identify one ormore areas of law in which the lawyer or the lawfirm practices, or may state that the practice of thelawyer or law firm is limited to one or more areas

of law, provided that the lawyer or law firm shallnot state that the lawyer or law firm is a specialistor specializes in a particular field of law, except asprovided in Rule 7.4(c).

(b) A lawyer admitted to engage in patent practice be-fore the United States Patent and Trademark Officemay use the designation “Patent Attorney” or asubstantially similar designation.

(c) A lawyer may state that the lawyer has been recog-nized or certified as a specialist only as follows:

(1) A lawyer who is certified as a specialist in a par-ticular area of law or law practice by a privateorganization approved for that purpose by theAmerican Bar Association may state the fact ofcertification if, in conjunction therewith, thecertifying organization is identified and the fol-lowing statement is prominently made: “The[name of the private certifying organization] isnot affiliated with any governmental authority.Certification is not a requirement for the prac-tice of law in the State of New York and doesnot necessarily indicate greater competencethan other attorneys experienced in this field oflaw;”

(2) A lawyer who is certified as a specialist in a par-ticular area of law or law practice by the author-ity having jurisdiction over specialization underthe laws of another state or territory may statethe fact of certification if, in conjunction there-with, the certifying state or territory is identi-fied and the following statement is prominentlymade: “Certification granted by the [identifystate or territory] is not recognized by any gov-ernmental authority within the State of NewYork. Certification is not a requirement for thepractice of law in the State of New York anddoes not necessarily indicate greater compe-tence than other attorneys experienced in thisfield of law.”


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RU LE 7.5:

Professional Notices, Letterheads andSigns

(a) A lawyer or law firm may use internet web sites,professional cards, professional announcementcards, office signs, letterheads or similar profes-sional notices or devices, provided the same do notviolate any statute or court rule and are in accor-dance with Rule 7.1, including the following:

(1) a professional card of a lawyer identifying thelawyer by name and as a lawyer, and giving ad-dresses, telephone numbers, the name of thelaw firm, and any information permitted underRule 7.1(b) or Rule 7.4. A professional card ofa law firm may also give the names of membersand associates;

(2) a professional announcement card stating newor changed associations or addresses, change offirm name, or similar matters pertaining to theprofessional offices of a lawyer or law firm orany nonlegal business conducted by the lawyeror law firm pursuant to Rule 5.7. It may statebiographical data, the names of members of thefirm and associates, and the names and dates ofpredecessor firms in a continuing line of suc-cession. It may state the nature of the legal prac-tice if permitted under Rule 7.4;

(3) a sign in or near the office and in the buildingdirectory identifying the law office and anynonlegal business conducted by the lawyer orlaw firm pursuant to Rule 5.7. The sign maystate the nature of the legal practice if permittedunder Rule 7.4; or

(4) a letterhead identifying the lawyer by name andas a lawyer, and giving addresses, telephonenumbers, the name of the law firm, associatesand any information permitted under Rule7.1(b) or Rule 7.4. A letterhead of a law firmmay also give the names of members and asso-ciates, and names and dates relating to deceasedand retired members. A lawyer or law firm may

be designated “Of Counsel” on a letterhead ifthere is a continuing relationship with a lawyeror law firm, other than as a partner or associate.A lawyer or law firm may be designated as“General Counsel” or by similar professionalreference on stationery of a client if the lawyeror the firm devotes a substantial amount of pro-fessional time in the representation of thatclient. The letterhead of a law firm may give thenames and dates of predecessor firms in a con-tinuing line of succession.

(b) A lawyer in private practice shall not practice undera trade name, a name that is misleading as to theidentity of the lawyer or lawyers practicing undersuch name, or a firm name containing names otherthan those of one or more of the lawyers in thefirm, except that the name of a professional corpo-ration shall contain “PC” or such symbols permit-ted by law, the name of a limited liability companyor partnership shall contain “LLC,” “LLP” or suchsymbols permitted by law and, if otherwise lawful,a firm may use as, or continue to include in itsname the name or names of one or more deceasedor retired members of the firm or of a predecessorfirm in a continuing line of succession. Such termsas “legal clinic,” “legal aid,” “legal service office,”“legal assistance office,” “defender office” and thelike may be used only by qualified legal assistanceorganizations, except that the term “legal clinic”may be used by any lawyer or law firm providedthe name of a participating lawyer or firm is incor-porated therein. A lawyer or law firm may not in-clude the name of a nonlawyer in its firm name,nor may a lawyer or law firm that has a contractualrelationship with a nonlegal professional or nonle-gal professional service firm pursuant to Rule 5.8to provide legal and other professional services ona systematic and continuing basis include in its firmname the name of the nonlegal professional servicefirm or any individual nonlegal professional affili-ated therewith. A lawyer who assumes a judicial,legislative or public executive or administrative postor office shall not permit the lawyer’s name to re-


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main in the name of a law firm or to be used inprofessional notices of the firm during any signifi-cant period in which the lawyer is not actively andregularly practicing law as a member of the firmand, during such period, other members of the firmshall not use the lawyer’s name in the firm name orin professional notices of the firm.

(c) Lawyers shall not hold themselves out as having apartnership with one or more other lawyers unlessthey are in fact partners.

(d) A partnership shall not be formed or continued be-tween or among lawyers licensed in different juris-dictions unless all enumerations of the membersand associates of the firm on its letterhead and inother permissible listings make clear the jurisdic-tional limitations on those members and associatesof the firm not licensed to practice in all listed ju-risdictions; however, the same firm name may beused in each jurisdiction.

(e) A lawyer or law firm may utilize a domain namefor an internet web site that does not include thename of the lawyer or law firm provided:

(1) all pages of the web site clearly and conspicu-ously include the actual name of the lawyer orlaw firm;

(2) the lawyer or law firm in no way attempts toengage in the practice of law using the domainname;

(3) the domain name does not imply an ability toobtain results in a matter; and

(4) the domain name does not otherwise violatethese Rules.

(f ) A lawyer or law firm may utilize a telephone num-ber which contains a domain name, nickname,moniker or motto that does not otherwise violatethese Rules.

RU LE 8.1 :

Candor in the Bar Admission Process

(a) A lawyer shall be subject to discipline if, in connec-

tion with the lawyer’s own application for admis-sion to the bar previously filed in this state or inany other jurisdiction, or in connection with theapplication of another person for admission to thebar, the lawyer knowingly:

(1) has made or failed to correct a false statementof material fact; or

(2) has failed to disclose a material fact requestedin connection with a lawful demand for infor-mation from an admissions authority.

RU LE 8.2 :

Judicial Officers and Candidates

(a) A lawyer shall not knowingly make a false state-ment of fact concerning the qualifications, conductor integrity of a judge or other adjudicatory officeror of a candidate for election or appointment to ju-dicial office.

(b) A lawyer who is a candidate for judicial office shallcomply with the applicable provisions of Part 100of the Rules of the Chief Administrator of theCourts.

RU LE 8.3 :

Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has com-mitted a violation of the Rules of Professional Con-duct that raises a substantial question as to thatlawyer’s honesty, trustworthiness or fitness as alawyer shall report such knowledge to a tribunal orother authority empowered to investigate or actupon such violation.

(b) A lawyer who possesses knowledge or evidence con-cerning another lawyer or a judge shall not fail torespond to a lawful demand for information froma tribunal or other authority empowered to inves-tigate or act upon such conduct.

(c) This Rule does not require disclosure of:

(1) information otherwise protected by Rule 1.6;


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or

(2) information gained by a lawyer or judge whileparticipating in a bona fide lawyer assistanceprogram.

RU LE 8. 4 :

Misconduct

A lawyer or law firm shall not:

(a) violate or attempt to violate the Rules of Profes-sional Conduct, knowingly assist or induce anotherto do so, or do so through the acts of another;

(b) engage in illegal conduct that adversely reflects onthe lawyer’s honesty, trustworthiness or fitness as alawyer;

(c) engage in conduct involving dishonesty, fraud, de-ceit or misrepresentation;

(d) engage in conduct that is prejudicial to the admin-istration of justice;

(e) state or imply an ability:

(1) to influence improperly or upon irrelevantgrounds any tribunal, legislative body or publicofficial; or

(2) to achieve results using means that violate theseRules or other law;

(f ) knowingly assist a judge or judicial officer in con-duct that is a violation of applicable rules of judicialconduct or other law;

(g) unlawfully discriminate in the practice of law, in-cluding in hiring, promoting or otherwise deter-mining conditions of employment on the basis ofage, race, creed, color, national origin, sex, disabil-ity, marital status or sexual orientation. Wherethere is a tribunal with jurisdiction to hear a com-plaint, if timely brought, other than a Departmen-tal Disciplinary Committee, a complaint based onunlawful discrimination shall be brought beforesuch tribunal in the first instance. A certified copyof a determination by such a tribunal, which hasbecome final and enforceable and as to which the

right to judicial or appellate review has been ex-hausted, finding that the lawyer has engaged in anunlawful discriminatory practice shall constituteprima facie evidence of professional misconduct ina disciplinary proceeding; or

(h) engage in any other conduct that adversely reflectson the lawyer’s fitness as a lawyer.

RU LE 8.5:

Disciplinary Authority and Choice of Law

(a) A lawyer admitted to practice in this state is subjectto the disciplinary authority of this state, regardlessof where the lawyer’s conduct occurs. A lawyermay be subject to the disciplinary authority of boththis state and another jurisdiction where the lawyeris admitted for the same conduct.

(b) In any exercise of the disciplinary authority of thisstate, the rules of professional conduct to be appliedshall be as follows:

(1) For conduct in connection with a proceedingin a court before which a lawyer has been ad-mitted to practice (either generally or for pur-poses of that proceeding), the rules to beapplied shall be the rules of the jurisdiction inwhich the court sits, unless the rules of thecourt provide otherwise; and

(2) For any other conduct:

(i) If the lawyer is licensed to practice only inthis state, the rules to be applied shall bethe rules of this state, and

(ii) If the lawyer is licensed to practice in thisstate and another jurisdiction, the rules tobe applied shall be the rules of the admit-ting jurisdiction in which the lawyer prin-cipally practices; provided, however, thatif particular conduct clearly has its pre-dominant effect in another jurisdiction inwhich the lawyer is licensed to practice,the rules of that jurisdiction shall be ap-plied to that conduct.



SPEAKER’S BIOGRAPHY


PERY D. KRINSKY, ESQ.WOOLWORTH BUILDING

233 BROADWAY, SUITE 707NEW YORK, NEW YORK 10279

TELEPHONE (212) [email protected]

WWW.KRINSKYPLLC.COM

PERY D. KRINSKY is the principal of KRINSKY, PLLC, where he focuses his practiceon ethics-based defense litigation. Before forming his own law firm, Mr. Krinskywas associated with the law firm of LaRossa & Ross, and then the Law Offices OfMichael S. Ross.

MR. KRINSKY’S ethics-based defense litigation practice focuses on:

• Federal & State Attorney Ethics Matters, including: representing attorneysand law firms under investigation by disciplinary authorities and othergovernment agencies; providing guidance to lawyers concerning theday-to-day practice of law; representing disbarred and suspended attorneysseeking reinstatement; and assisting law school graduates in the admissionsprocess.

• Federal & State Criminal Defense Matters, including: defending clientsagainst law-enforcement actions such as claims of securities fraud, antitrust,investment advisory fraud, health care fraud, tax issues, money laundering,RICO, and narcotics trafficking, among others; helping conduct internalinvestigations; addressing compliance issues; and responding to regulatoryinquiries.

• Art Law Ethics & Litigation Matters, including: allegations of businessfraud; art-related disputes; fraudulent transactions; provenance andauthenticity; fraudulent inducement to sell; and sales tax evasion.

MR. KRINSKY is a frequent lecturer on topics involving ethics in litigation, personaland professional responsibility and academic integrity, including at: the N.Y. StateJudicial Institute; the Appellate Divisions, First and Second Judicial Departments;the N.Y. State Bar Association; the N.Y. City Bar; the N.Y. County Lawyers’Association; the N.Y. State Academy of Trial Lawyers; the N.Y. State Trial LawyersAssociation; the Practicing Law Institute; the Bay Ridge Lawyers Association; theQueens County Bar Association; Sotheby’s Institute of Art; and law schools such asBrooklyn Law School, Columbia Law School and Fordham Law School.

MR. KRINSKY serves as the Chair of the Ethics Committee of the Entertainment, Arts& Sports Law Section of the N.Y. State Bar Association; and the Chair of theCommittee on Professional Discipline of the N.Y. County Lawyers’ Association.Mr. Krinsky serves on the Board of Advisors of the N.Y. County Lawyers’Association Institute of Legal Ethics; and is a Member of the Institute’s Task Forceto advise on the “ABA Commission on Ethics 20/20.” Mr. Krinsky is also a Memberof: the Brooklyn Bar Association; the N.Y. State Bar Association’s Committee onAttorney Professionalism; the N.Y. City Bar Association’s ProfessionalResponsibility Committee; and the N.Y. County Lawyers’ Committee onProfessional Ethics.

mailto:[email protected]

http://www.krinskypllc.com

Documents

and How to Avoid It! N the Attorney...Understanding the Attorney Disciplinary Process – and How to Avoid It! Wednesday, March 16, 2011, 6:00 PM – 8:00 PM The New York State CLE