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.

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.