City Bar Proposes Amendments to New York State Rules of Professional Conduct Regarding Multi-Jurisdictional Practice

FOR IMMEDIATE RELEASE

Contact:
Eric Friedman
(212) 382-6754
Kathryn Inman
212-382-6656

City Bar Proposes Amendments to New York State Rules of Professional Conduct Regarding Multi-Jurisdictional Practice

New York, July 28, 2010 – The New York City Bar Association recommends revisions to the New York Rules of Professional Conduct designed to address certain anomalies regarding multi-jurisdictional practice, particularly in the context of concurrent representations being handled by different lawyers affiliated in a firm and practicing in more than one jurisdiction. The City Bar proposes amendments to Rules 8.5 (Disciplinary Authority and Choice of Law) and 1.10 (Imputation of Conflicts of Interest) because, as its report states, “non-New York lawyers should not be required to comply with New York ethics rules solely by virtue of their affiliation with a New York lawyer, nor should a client who has engaged a lawyer on a matter with no nexus to New York” be deprived of its choice of counsel.

The report, authored by the City Bar’s Professional Responsibility Committee, suggests several changes to the Rules of Professional Conduct. Among the changes, Rule 8.5 would be amended to provide that for matters other than those pending before a tribunal (for which the rules applied primarily will be those of the jurisdiction in which the tribunal sits), the New York Rules of Professional Conduct would apply, but “if a lawyer reasonably believes that the services for which the lawyer or the lawyer’s firm has been retained have their predominant effect in another jurisdiction, such lawyer may rely on the rules of professional conduct of such other jurisdiction.”

In addition, Rule 1.10 would be amended so that no conflict will be imputed “where (i) a conflict arises under these rules from the conduct of lawyers practicing in another jurisdiction in accordance with such jurisdiction’s rules of professional conduct, and (ii) such conduct is permitted by the rules of professional conduct of that other jurisdiction.” These changes would bring the New York Rules closer to the ABA Model Rules of Professional Conduct, and would limit the extraterritorial application of New York rules that impose unnecessary restrictions on client choice.

One example of the need for change is that under an interpretation of the New York Rules, a London-based lawyer in a firm with a New York office would be precluded from undertaking a representation in London to be governed by U.K. law if that representation, while permitted under the Solicitor’s Code governing U.K. lawyers, is not permitted under New York’s Rules. Such a representation would be permitted under the amendments proposed by the City Bar’s Report. In the Committee’s view, the clients of many large, international law firms “both want and expect” their lawyers to analyze conflicts so as to permit multijurisdictional practice in accordance with local rules of conduct.

The Committee makes clear, however, that “lawyers have a duty to inform their clients of all material issues affecting their representation—including the applicable ethics rules and the possibility that the applicable conflicts of interest rules may vary by the nature of the matters they refer.” In addition, the Committee cautions that when undertaking adverse representation of current clients, lawyers at all times must be mindful of the nature of the confidential information they have acquired in the course of representing their respective clients.

The report may be read here: http://bit.ly/bz2IGE

About the Association

The New York City Bar Association (www.nycbar.org) was founded in 1870, and since then has been dedicated to maintaining the high ethical standards of the profession, promoting reform of the law, and providing service to the profession and the public. The Association continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities.