At the end of the representation, the lawyer must, as far as reasonably possible, take steps to avoid any foreseeable interference with the client`s rights, including giving the client reasonable notice, giving the client time to engage another lawyer, handing over all documents and property to which the client is entitled, promptly reimbursing all prepaid fees, which have not been earned, and compliance with applicable laws and regulations. DR5-105(A) prohibited a lawyer from accepting or continuing to be represented if the lawyer`s independent professional judgment was “prejudiced or likely to be adversely affected” by the representation, or if the representation “would be likely to involve the lawyer in representing different interests.” Rule 1.7(a)(1) prohibits a lawyer from making or continuing informed representation without the client`s consent if the representation “involves the lawyer in representing different interests”. [Emphasis added.] What happened to the “probable” standard in DR5-105(A)? Here we go. Nor does it reappear in the definition of “competing interests” in Rule 1.0(f), which states that “informed consent” means an individual`s consent to proposed conduct after the lawyer has provided information that will enable him or her to make an informed decision and after counsel for the person has identified the significant risks of the proposed conduct and has reasonably explained the available alternatives. Q. What are the rules for attorneys` deposits and solicitations under the New York Code of Professional Conduct? (5) to assert a claim or defence on behalf of the advocate in a dispute between the advocate and the client, to establish a defence against a criminal complaint or a civil action against the advocate based on the conduct in which the client was involved, or to respond to allegations in proceedings involving the representation of the client by the lawyer; Thirdly, the practice of a lawyer or counsel must not constitute an illegal exercise of law abroad. N.Y. City Formal op. cit.
2013-3; see also Rule 5.5(b) (“A lawyer shall not assist a non-lawyer in the unlawful practice of the law”). Whether the conduct of a lawyer constitutes an unlawful exercise of this right is a matter of substantive law and therefore outside the competence of the Committee. Therefore, if rule 1.7(a)(1) is read verbatim, a lawyer may represent a client without the client`s consent, even if the representation could interfere with the lawyer`s independent professional judgment on behalf of another client or if the representation is likely to involve the lawyer in representing different interests. I do not think the courts wanted that result. Nor would I advise a lawyer to take over such representation without the client`s consent. But Rule 1.7(a)(1) does not regulate conflicts that are merely “likely” to arise – it only regulates conflicts that “will arise”. Ethics assessments and case law will likely correct this mistake soon, but it`s disappointing to find such a serious omission in the new rules – it`s like having to pull your shiny new car into your driveway and take it straight back to the dealership for a major repair. A period of public comment on the new rules would have avoided that. The registration requirement does not apply to requests addressed to a close friend, relative, former client or existing client; a website, unless it is directed to a potential customer affected by an identifiable actual event or identifiable potential defendant; or business cards or other notices permitted under Rule 7.5(a).
However, in New York Rule 1.6(a)(2), the courts decided to expand the ABA`s language regarding implied authority. Pursuant to New York Rule 1.6(a)(2), disclosure of Confidential Information is implicitly permitted only if the disclosures are both “in the best interests of the Client” and are either (a) “customary in the professional community” or (b) “appropriate in the circumstances”. The courts themselves developed this additional language – it was not included in the prosecutor`s proposals or COSAC`s drafts. The language added is both ambiguous and strange. It is ambiguous because what is “usual” is not defined and may vary from jurisdiction to jurisdiction and geographical area to geographical area. The wording is strange because it means that while the implied power of disclosure is “customary in the professional world,” it does not have to be “appropriate in the circumstances.” Are there customs in New York that allow for the inappropriate disclosure of confidential information? The courts obviously think so, because otherwise the “either” structure of the implied power of attorney clause would make no sense. Unfortunately, the courts do not suggest what customs they are talking about, and I am not aware of any. I don`t think New York lawyers have inappropriate practices that implicitly grant the power to disclose confidential information. “Reasonable” or “reasonable” when used in connection with the conduct of a lawyer means the conduct of a reasonably prudent and competent lawyer. In the context of conflict of interest determination, “reasonable counsel” means a lawyer who acts from the perspective of a reasonably prudent and competent lawyer who has no personal interest in being represented or continuing to be represented. (Rule 1.0(q)) A lawyer`s possession of confidential information about a client that may be relevant to a matter he or she is handling for another client does not automatically create a conflict of interest. The existence or absence of a conflict depends on the lawyer`s ability to avoid the use of a client`s confidential information when representing another client, and whether the possession of that information can reasonably influence the lawyer`s independent professional judgment in representing the other client.
See N.Y. City 2005-2. Under the Rules, lawyers or law firms may impersonate “counsel” for another solicitor or law firm, provided that: (1) they have “an ongoing relationship with [that] solicitor or law firm, other than as a partner or partner” (Rule 7.5(a)(4)); and (2) the use of the title “lawyer” is not incorrect or misleading.