boy_in_court_picAndrew Schepard and Theo Liebmann, in the March 11th edition of the New York Law Journal, listed three important changes in New York’s new Rules of Professional Conduct as they apply to lawyers representing children in Family Court. (I explored how the new rules would affect conflicts of interest here.)

Schepard and Liebmann’s main focus was on lawyers representing children and how the new rules would clarify an attorney’s guidelines with regard to when they may take a different position from that of their child client. They pointed out the current rule, as layed out by the Chief Judge in Administrative Order § 7.2, is substantially similar to the new Rule 1.14(b). The new rule states that  “[w]hen the lawyer reasonably believes that the client (a) has diminished capacity, (b) is at risk of substantial physical, financial or other harm unless action is taken and (c) cannot adequately act in the client’s own interest, (then) the lawyer may take reasonably necessary protective action…” (emphasis and parentheses added) This “reasonably necessary protective action” includes substituting the law guardian’s judgment for the child’s judgment when those three requirements are met.

These rules set a high bar that a Law Guardian must meet before she may supplant her judgment for her child-client’s judgment. Schepard and Liebmann give the example of 10 year old Amkia P. (684 N.Y.S.2d 761 (Fam. Ct NY 1999)) who required medication for a life-threatening condition. She was in temporary Foster Care, but desired to return to live with her mother, who the Family Court believed would be not be capable of properly caring for her. Despite Amkia’s protestations, her Law Guardian advocated that she remain in temporary foster care.

Under the new rule, the Law Guardian in that case probably would have been allowed to substitute her judgmenet for the judgment of the client under those facts because Amkia appeared to be of diminished capacity (as a 10 year old), “at risk of substantial physical… harm,” and unable to take care of her own interests (again, she was only 10).

As Schepard and Liebmann point out, a Law Guardian in such a situation should think twice and three times before supplanting a client’s judgment with her own because a court will find that she should have advocated for home care to ensure that Amkia received the medicine she needed.

The new rules offer more guidance than attorneys may have had before, but they do not make these difficult judgment calls much easier.

Picture courtesy of George I. Kita.

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aba-rules-cartoonWell, despite my well-reasoned advice that the ABA adopt Recommendation 110, instead it adopted Recommendation 109 at their annual meeting in Boston two weeks ago.

The ABA Model Rules of Ethics for lawyers formerly stated that when an attorney moves from one firm to another, all of the clients of the attorney’s former firm who have an adverse relationship with any of the client’s in the attorney’s new firm create a “conflict of interest” for the new firm’s continuing representation of its “conflicting” client. This imputed conflict was presumed to exist even when the new attorney had no meaningful knowledge about his former firm’s client.  The only way to remove the conflict was to obtain written consent from the new attorney’s former client and the new firm’s client with the adverse relationship to the old firm’s client. 

But now, with the ABA’s new rule, when an attorney joins a new firm, the firm is only required to screen the conflicted attorney from any involvement or fee in relation to clients of the new firm that have an adverse relationship to clients of his old firm. Furthermore, the screening process works even where the new attorney has material and relevant information about his former client. The new firm is only required to give notice of the conflict to both the current client and the adverse client, with an explanation of the screening proceedures that it is using. It need not obtain the adverse clients’ consent.

The interesting question will be whether the New York State Bar Association will be able to successfully make the conflicts rules in New York as lenient as they are in the new ABA Model Rules. New York’s proposed rules take effect on April 1st.  Here is the proposed “Imputation of Conflicts of Interest” rule from the NYS Bar Association’s web site. It appears that New York’s new legal ethics rules will not incorporate this newest change in the ABA’s Model rule regarding imputations of conflicts of interest.

I was looking for an answer to my question regarding the likelihood that New York will adopt the new, more lenient, ABA Model Rules regarding imputed conflicts of interest. Therefore, I sought out someone familiar with these developments in the ethics rules for lawyers in New York. So I sent an inquiry regarding this question to Steven C. Krane of Proskauer Rose. Mr. Krane was instrumental in drafting the new rules for the New York State Bar Association and he is speaking about the effects of New York’s adoption of the substance of most of the ABA Model Rules for the Brooklyn Bar Association on March 10th.

He responded that “[i]n Feb 2008, the NYSBA proposed a screening rule that was narrower than 109. The proposal was presented to the NY courts last year and rejected in December. While it is possible that the recent ABA action may prompt reconsideration of that decision by the NY courts, it is doubtful.” (emphasis & links added)

According to Mr. Krane, if the New York Appellate Division was not even willing to approve of screening rules that were more stringent than those just adopted by the ABA, it would be even more unlikely that they would approve of the ABA’s current rules, which are even more permissive with regard to screening “conflicted” attorneys.

Cartoon courtesy of Stu’s Views.

angel-devil-shoulderOne of the major sources for ethics rules for lawyers is the American Bar Association(“ABA”) Model Rules. The ABA’s Model Rules define the proper conduct of an attorney where there is, or may be, a conflict of interest between an attorney’s representation of a current client and that attorney’s, or any attorney at his/her firm’s, former client. In the ABA Model Rules, this is Rule 1.9.  These rules are especially relevant in New York because in two months, on Apr. 1, 2009, New York will adopt these rules as binding on attorneys in New York.

The Model Rules currently state that when an attorney moves to a new firm, all of that attorney’s former clients become “conflicted” with all of the new firm’s clients that have an adverse relationship with the old firms clients. For those “conflicted” clients in the new firm, written consent must be gathered, in order to remove the conflict of interest.

Furthermore, the current rules only allow “screening” (segregating conflicted attorneys from any involvement with a client or case with which they are “conflicted”) with regard to attorneys who used to work for the government. But attorneys that were in private practice before joining the new firm cannot be “screened” from the “conflicting” client’s case without also getting written consent from the new firm’s clients.

That seems to be changing. The ABA is meeting in Boston in about a week to discuss changing this rule in order to make it easier for the growing number of attorneys who are shifting laterally between firms to avoid the inconveniences involved in conflicts of interest. Here are the two proposed changes that are on the table, as explained by Leigh Jones at Law.com:

Recommendation 109 — eases the conflict of interest rule by allowing a law firm to “screen” an incoming attorney from the rest of its attorneys and to enable the firm to continue representing its client without the consent of the incoming attorney’s former client.

Recommendation 110… adds to the existing Model Rule, which does not permit firm-to-firm screening and instead requires client consent. The change would allow a lawyer, whose participation with a client at a previous firm was not significant and who did not learn material confidential information, to work for an adversary law firm without client consent, so long as the transferring lawyer was screened and provided certification of compliance with screening.

Although, as a future attorney, I would definitely like the prospect of not being inconvenienced by “conflicts of interest” law, I’m not sure I see why Recommendation 109 is necessary or advisable. If indeed it permits all attorneys in a lateral transferee’s new firm to represent their clients whose interests conflict with the former clients of the new transferee without obtaining waivers (as long as the new attorney is “screened” from those matters), that may be going too far. This sounds like it is allowing “screening” and waiver-less representation of conflicting clients even where the new attorney had material knowledge about his former client!

I think the current rule which does not allow “screening” of new attorneys is based on the idea that even if an attorney is not actually working with a client because they are “screened,” much of the communication between conflicted and non-conflicted attorneys can go on “under the table,” unofficially.  “Screening” without informed consent, where the new attorney in a firm had actual or material knowledge about a former client, opens the door to the unofficial exchange of relevant information about that client between a conflicted  attorney and his/her new colleagues, who represent some adverse party to that former client.

Recommendation 110 makes much more sense to me because it is not over-broad. Instead of permitting screening even where a new attorney had actual and relevant knowledge about a former client that has some adverse interest with the current client of the new attorney’s firm, it only permits consent-less “screening” when the new attorney in the firm didn’t have any actual or material knowledge about his former client. To go further than this puts attorney’s convenience above the actual interests of their clients unnecessarily.

Other than making things easier for attorneys who transfer laterally between firms, what’s the justification for allowing consent-less “screening” even when an attorney in a firm some former representation that givfes him actual and material knowledge about a colleage’s client’s adversary???