The ‘new era’ of ethics rules: Are they really new?

On March 26, 2009, the Jewish Lawyers Association of Nassau County sponsored a CLE lecture at the Nassau County Bar Association on the new Rules of Professional Conduct that presently govern the practice of law in New York as of April 1, 2009. Speakers at the lecture were Supreme Court Justice Ira Warshawsky and former District Court Judge Kenneth Gartner.
The parallel between ancient Jewish law and present ethics in New York was explored by Justice Warshaw-sky in great depth. The ancient principle of “G’nay vaht da’at,” or the prohibition on the “theft of one’s mind, thoughts or knowledge” rings true to many practitioners, especially in modern times where law and justice conflict and when considering the new Rules of Professional Conduct. Under the ancient principle, words that result in others forming improper opinions, or the diminished ability to make a fair and honest evaluation were inappropriate and not to be used. For example, this can occur when an individual gives a gift but leads the recipient to believe that the quality is higher than anticipated. Or, on a more basic level, this occurs when an individual invites a person to dinner already knowing that the invitee cannot attend. These examples from the ancient world are drawn into the modern world as can be seen in the Uniform Commercial Code which requires defects to be revealed in the selling of goods (a check on the principle of caveat emptor).1 This example is representative of our ideal in the law that deception cannot, and should not, occur.

One deviation from ancient law is the notion that a person who “deceives himself” need not be corrected to alleviate a misapprehension. However, under current law, the seller’s obligation is not only a duty not to mislead but also to disabuse the consumer of improper beliefs.2 There is a parallel between this notion under the Disciplinary Rules and the new Rules of Professional Conduct. One major example exists in a comparison of the now-defunct DR 7-102(b)(1) “permitting” correction of a fraud perpetrated upon a tribunal unless the information is protected as a confidence or secret, effectively eviscerating the rule as the only realistic way such information will be learned would come from an attorney-client communication.3 On the other hand, new Rule 3.3 imposes a sweeping change by not only “permitting” correction but, in some circumstances, requiring the lawyer to reveal the misinformation, even if the information is confidential.4 This, perhaps, is the “new era” of the attorney-client privilege giving way to obtaining the truth which, apparently, is not a new principle at all.

Judge Gartner outlined various distinctions between the new Rules of Professional Conduct that took effect on April 1, 2009, and the prior Disciplinary Rules of the Code of Professional Responsibility. Major areas of interest included the preservation of attorney-client communications, what can be revealed and when an attorney can withdraw from representation. Certain rules did not change; for example, under DR 7-102(A)(5), it was mandated that, “in the representation of a client, a lawyer shall not knowingly make a false statement of law or fact.” This remains in the new Rule 4.1, with almost identical language.

However, as seen by new Rule 3.3, a client’s confidences, and what the attorney “may”, “shall” or “shall not” reveal in the course of representation, has substantially changed. The new rules, additionally, redefine confidential communications and expand what attorneys may now reveal, and, in certain circumstances, apparently must reveal, a broad and sweeping difference from the Disciplin-ary Rules.

For example, under old rule DR 4-101, there was a distinction between a “confidence” and a “secret.” A “confidence” was defined as “information protected by the attorney-client privilege under applicable law.” A “secret” was defined as “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” With these definitions in mind, the lawyer was never able to:
(i) reveal any confidence or secret of the client,
(ii) use a confidence or secret of a client to the disadvantage of the client, and
(iii) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.
On the other hand, under DR 4-101, a lawyer could:
(i) reveal confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them,
(ii) reveal confidences or secrets when permitted under disciplinary rules or required by law or court order,
(iii) reveal the intention of a client to commit a crime and the information necessary to prevent the crime,
(iv) reveal confidences or secrets necessary to establish or collect the lawyer’s fee or to defend the lawyer or his or her employees or associates against an accusation of wrongful conduct, and
(v) reveal confidences or secrets to the extent implicit in withdrawing a written or oral opinion or representation previously given by the lawyer and believed by the lawyer still to be relied upon by a third person where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud.

Effectively, except when necessary to protect the attorney, the only time a confidence or secret could be revealed without the client’s permission under DR 4-101 was when necessary to reveal the client’s intention to commit a future crime and to correct a prior misrepresentation made to a tribunal.5 Notably, DR 4-101 must be read in conjunction with DR 7-102(b)(1), which, interestingly, requires the correction of a misrepresentation.6 However, practically speaking, that could never realistically occur, as DR 7-102(b)(1) contained a very important exception: to wit, that an attorney could not reveal the information if it “was protected as a confidence or secret.”7 Thus, this exception effectively swallowed the rule, as it was highly unlikely that the information would come to the attorney’s attention by a means other than via an attorney-client communication. DR 7-102(b)(1) reads as follows: “A lawyer who receives information clearly establishing that the client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a confidence or secret.”8

Under new Rule 1.6, the distinction between a confidence and a secret is abandoned, opting instead for the all-inclusive “confidential information” which, effectively, combines the old definitions of confidence and secret. Confidential information is defined as “information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential.” In addition to defining the extent of what confidential information is, the rule further provides a definition of what confidential information is not, as follows: “confidential information does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.”

Regarding the extent of what can be revealed under Rule 1.6, the vestiges of prior law largely apply but the language is more user-friendly. The real changes occur in Rule 3.3. Under Rule 1.6, the attorney is not permitted to reveal confidential information or use confidential information to the disadvantage of a client, or for the advantage of the lawyer or third person, unless:
(i) the client gives informed consent,
(ii) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community, or
(iii) the disclosure is permitted under the Rule 1.6 (b).

Under Rule 1.6(b), a lawyer is now permitted to reveal or use confidential information:
(1) to prevent reasonably certain death or substantial bodily harm,
(2) to prevent the client from committing a crime,
(3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud,
(4) to secure legal advice about compliance with the Rules or another law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm,
(5)(i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct or (ii) to establish or collect a fee, and
(6) when permitted or required by the Rules or to comply with another law or court order.

A close reading of this redefined rule, however, shows that nothing much has changed, except that, in addition to stopping the commission of a crime, the lawyer can reveal information to prevent reasonably certain death or substantial bodily harm.9 So as not to render the rule’s language superfluous, it is likely that this information may be disclosed when, although not criminal, the information can be utilized to prevent bodily harm or death as a civil wrong. That creates a whole new class of communications that can potentially be revealed, for example, where a tortious act could occur and bodily harm or death could result. The possibilities in this regard are seemingly limitless.

More extensive changes occur under the new Rule 3.3, when considering what can be revealed to a tribunal when the attorney learns his client may have perpetrated a fraud. Rule 3.3 mandates that the attorney shall not knowingly fail to correct a materially false statement, and further take “remedial measures” to correct a known fraud on the Court, including disclosure to the tribunal “if necessary.”10 As if this change were not sweeping enough, Rule 3.3 further requires that disclosure to the tribunal must occur even if the information is otherwise privileged under Rule 1.6.11 Thus, this far-reaching rule envisions revealing confidential information a lawyer could never reveal in the past. Possible negative effects of this rule include a client’s less-than-truthful disclosure to the attorney and the attorney’s diminished independent investigation of the disclosed information from the client.

Moreover, when Rule 3.3 is considered along with Rule 1.16, the provisions for when an attorney can withdraw from representation, it appears clients and practitioners will be approaching an entirely uncertain landscape. Although Rule 1.16 is almost exactly the same in substance as the former DR 2-110, the effect of Rule 3.3 may affect the attorney’s ability to seek withdrawal, or the client’s ability to discharge the attorney, as a means to avoid disclosure of information that Rule 3.3 may mandate disclosure of. Again, this may result in clients being less than truthful or in attorneys not fully investigating information learned from the client.

The import of these new rules, and the broad-brush changes in potential disclosure of client confidences further complicates the interplay between the sacrosanct attorney-client relationship and the search for the truth. However, as noted by Justice Warshawsky, these “new” rules may really just be a reintroduction of ancient principles of equity and fairness into our modern, more complex world.

Michael J. Langer, an associate in the Law Offices of Kenneth J. Weinstein, is a former law clerk in the United States Court of Appeals for the Second Circuit, and a former Deputy County Attorney in the Office of the Nassau County Attorney. Mr. Langer’s practice focuses on matrimonial and family law, criminal defense and general civil litigation.

1. See, e.g., UCC §§ 2-313; 2-314.
2. Id.
3. See 22 N.Y.C.R.R. § 1200.33(b)(1).
4. Rule 3.3(a), (b), (c).
5. See 22 N.Y.C.R.R. § 1200.19(c).
6. See 22 N.Y.C.R.R. § 1200.33(b)(1).
7. See 22 N.Y.C.R.R. § 1200.33(b)(1).
8. See 22 N.Y.C.R.R. § 1200.33(b)(1) (emphasis added).
9. Rule 1.6(b).
10. Rule 3.3(a), (b), (c).
11. Rule 3.3(c).