Proposal to Enact a Statute Providing Confidentiality Protection to Ethics Hotline Calls

SUMMARY

The Professional Ethics Committee (Michael E. Salzman, Chair) issued a report proposing legislation to provide confidentiality protection for calls to legal ethics hotlines. Bar associations serving primarily lawyers licensed in New York offer three types of programs to help members of the legal profession or members of the public: lawyer assistance programs, legal referral services, and lawyers’ ethics hotlines. The goals of all three are to assure the proper functioning of the legal system and the public’s trust in that system. New York statutes recognize that, to ensure the first two of these programs function effectively, communications with their representatives, although not creating an attorney-client relationship, need to be confidential and those operating the program must be immune from civil liability arising from their actions in that capacity. No statute, however, addresses legal ethics hotlines’ confidentiality or immunity. The City Bar proposes amending New York’s Judiciary Law to extend to lawyers’ ethics hotlines the same confidentiality and immunity protections provided to lawyer assistance programs and legal referral services. The Committee has been working to obtain support for the proposal from other bar associations and is seeking the bill’s introduction into the New York State Legislature. This is a 2026 New York State Legislative Agenda item.

REPORT

REPORT BY THE PROFESSIONAL ETHICS COMMITTEE

PROPOSAL TO ENACT A STATUTE PROVIDING CONFIDENTIALITY PROTECTION TO ETHICS HOTLINE CALLS

Bar associations serving primarily lawyers licensed in New York offer three types of programs to help members of the legal profession or members of the public: lawyer assistance programs, legal referral services, and lawyers’ ethics hotlines. The goals of all three are to assure the proper functioning of the legal system and the public’s trust in that system. New York statutes recognize, that to ensure the first two of these programs function effectively, communications with their representatives, although not creating an attorney-client relationship, need to be confidential and those operating the program must be immune from civil liability arising from their actions in that capacity. No statute, however, addresses legal ethics hotlines’ confidentiality or immunity. The New York City Bar Association (“City Bar”), through its Professional Ethics Committee, proposes amending New York’s Judiciary Law to extend to lawyers’ ethics hotlines the same confidentiality and immunity protections provided to lawyer assistance programs and legal referral services.  A copy of the proposed statute is appended to this report.

BACKGROUND – BAR ASSISTANCE PROGRAMS

Lawyer Assistance Programs. These programs operate hotlines that provide advice and support to New York lawyers, judges and law students facing personal issues, such as alcohol and drug addiction, stress, anxiety, depression, and other mental health concerns at no charge. The confidentiality of such consultations and immunity for those providing the advice and support are assured by New York Judiciary Law §499.

Legal Referral Services. New York bar associations operate these programs to provide information and guidance to members of the public who believe they may require legal advice or assistance. The services offer legal information and make referrals to lawyers, legal aid societies, and government and social services that can help resolve issues the inquirers have at no charge. New York Judiciary Law §498 extends the attorney-client privilege to communications with lawyer referral services as well as civil immunity to the services.[1]

Lawyers’ Ethics Hotlines. Bar association ethics committees operate hotlines that, although not intended to establish an attorney-client relationship, provide lawyers guidance on how to resolve questions about their own obligations under the New York Rules of Professional Conduct, 22 N.Y.C.R.R. Part 1200. These programs are staffed by volunteers, and inquiring lawyers are not charged. Unlike the other programs, there currently is no assurance of confidentiality for lawyers’ ethics hotline calls, and no immunity is afforded to the services and volunteers that provide the ethics advice.

THE NEED FOR CONFIDENTIALITY AND IMMUNITY FOR ETHICS HOTLINES

We believe that lawyers’ ethics hotlines are no less important than lawyer assistance programs and legal referral services in assuring the proper functioning of the legal system. Indeed, the New York Rules of Professional Conduct specifically include an exception to lawyers’ confidentiality obligations to permit lawyers to disclose client confidences as necessary to obtain ethics advice. Rule 1.6(b)(4) states that “[a] lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary … to secure legal advice about compliance with these Rules by the lawyer, another lawyer associated with the lawyer’s firm or the law firm.” If the lawyer retains counsel to provide this ethics advice, the communications are protected by the attorney-client privilege, New York Civil Practice Law and Rules§4503. But when an attorney calls an ethics hotline, the inquiring lawyer must be told that the attorney-client privilege does not apply to the communication and the hotline cannot guarantee that the communication will be kept confidential. This is an obvious gap that should be addressed. People seeking legal advice, including lawyers seeking ethics counseling, cannot be open about the problems they face unless they can be assured confidentiality. Indeed, the attorney-client privilege rests on the principle that if a person cannot be open with their lawyer, then the lawyer cannot provide proper advice. Although an attorney-client relationship is not established between the inquiring lawyer and the lawyer staffing the ethics hotline, the same principle applies.

Like the members of the public that use the services of lawyer assistance programs and the legal referral services, lawyers who call the lawyers’ ethics hotlines are not charged for the advice and assistance they receive. Further, those who operate the lawyers’ ethics hotlines are unpaid volunteers. However, unlike the other two types of bar association services lawyers’ ethics hotlines do not have civil immunity, so the ethics advice must be qualified to reflect this.

PROPOSED STATUTE

We propose that New York adopt a new statute in its Judiciary Law affording confidentiality to communications with lawyers’ ethics hotlines and immunity to those who provide the hotline services.  This proposal is modeled on New York Judiciary Law §499, which provides such protections to lawyer assistance programs. Under the proposed statute, the confidentiality protection could be waived only by the lawyer seeking advice. For example, if in a grievance matter or in response to questions about the lawyer’s conduct raised by a tribunal, opposing counsel or a client, the lawyer states that the lawyer was acting in accordance with advice given by an ethics hotline, confidentiality would be waived. Those on the bar association lawyers’ ethics hotlines who provide advice as well as the bar association that operates that hotline also would be immune from civil liability.  A copy of the proposed statute is appended to this report.

CONCLUSION

The City Bar supports the introduction and passage of the attached draft bill to ensure that communications between a lawyer and a legal ethics guidance program sponsored by a bar association are legally protected, just like the communications between attorney and client. This protection should apply even though no attorney-client relationship exists. New York should take a leading role nationally by addressing this important issue before any volunteer lawyers staffing the hotlines or inquiring lawyers relying on the ethics hotline are forced to face this issue without any protections.

Professional Ethics Committee
Michael E. Salzman, Chair

*Draft Bill language is available on request.