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By Joan C. Rogers
New York lawyers taking part in law reform activities that could potentially harm a client's interests are normally not required to notify or obtain consent from the client, the New York County bar's ethics committee has advised (New York County Lawyers Ass'n Comm. on Professional Ethics, Op. 744).
The opinion makes clear, however, that a lawyer participating in a law reform organization must not divulge any confidential information about a client, and must discontinue the activity or stop representing the client if the lawyer's personal stake in the activity poses a serious conflict.
In addition, the committee said, the organization must be informed when the lawyer knows that a client's interests may be materially aided by a decision in which the lawyer takes an active part.
The opinion addresses lawyers' public speaking on law reform activities under New York Rule of Professional Conduct 6.4, as amended in May 2010. The rule largely follows ABA Model Rule 6.4 but adds a final sentence drawn from the comment to the model rule. (See box.)
The purpose of the rule, the committee said, is to provide guidance to lawyers working with law reform organizations and to encourage lawyers to take part in law reform activities that will improve the legal system and the legal profession.
The committee said that no ethics opinions had interpreted the amended New York rule, and that it had found only two brief opinions from other jurisdictions on Rule 6.4.
See Illinois Ethics Op. 91-27 (1991) (lawyer who as assistant state's attorney represents county clerk's office may, as president of local organization, privately advocate legislative amendment that is opposed by county clerk's office); Pennsylvania Ethics Op. 93-176 (group of attorneys may form organization devoted to adoption reform without violating Rule 6.4).
The committee gave an expansive reading of what groups count as “law reform organizations” under Rule 6.4. “A ‘law reform organization' is any group that studies or proposes amendments to the law or suggests improvements to the system of justice,” it stated. The panel listed civil rights groups, environmental groups, and religious groups as examples, as well as the committee itself and the county bar association.
Rule 6.4 applies not just to organizations that aim to reform the law itself but also to those concerned with reforming the “administration” of the law, the committee added.
For example, the opinion explains, the rule applies to an organization's activities directed at improving the operation of courts, legislative bodies, or executive agencies, or bettering the operation of administrative agencies such as public boards and commissions concerned with zoning, education, historic landmarks, parks, arts and culture, elections, and public finance.
Unlike the previous rule, the committee noted, the amended rule no longer requires a lawyer to tell a client about the lawyer's participation in a law reform organization's decision that could harm the client's interests.
“It is permissible for a lawyer to participate in law reform activities even if the client objects, provided the attorney does not divulge any confidential information,” the opinion states.
On the other hand, it noted, Rule 1.6 requires a lawyer to get a client's consent in writing before disclosing to a law reform organization anything that would directly or indirectly identify the client or reveal confidential client information.
A client's confidential information may not be used in a law reform activity without the client's consent, the committee added, citing Oasis W. Realty LLC v. Goldman, 250 P.3d 1115, 27 Law. Man. Prof. Conduct 315 (Cal. 2011).
The committee also advised that under Rule 1.7, a lawyer would have to stop representing a client, or else drop the law reform activity, if a reasonable attorney would conclude that the lawyer's personal investment in the reform activity poses a significant risk of impairing the lawyer's professional judgment.
Regarding a lawyer's duties to a law reform organization, the committee pointed out that Rule 6.4 imposes a disclosure obligation on a lawyer who plays any active part in the organization's decision that would benefit a client or avoid harm to a client.
The lawyer must disclose that fact but need not identify the client, the committee advised. It made clear that this disclosure duty applies even if the lawyer is not actually motivated by an intent to help the client.
Although Rule 6.4 restricts the disclosure requirement to situations in which the lawyer “actively participates” in a reform organization's “decision,” the committee took the position that these terms should be construed broadly.
Speaking at a meeting, informally expressing an opinion to other members, or otherwise contributing to the organization's decision would count as “active” participation, and any action by the organization or its members could constitute a “decision,” according to the opinion.
New York Rule on Law Reform Activities
“Rule 6.4: Law reform activities affecting client interests.
“A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration, notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer actively participates, the lawyer shall disclose that fact to the organization, but need not identify the client. In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other Rules, particularly Rule 1.7.”
Copyright 2011, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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