New York Rules of Professional Conduct: An Analysis

Chapter 1
Part I: Foundations of Legal Ethics in New York
SYNOPSIS
§ 1.01 The Evolution of Legal Ethics in New York
[1] New York Lawyer’s Code of Professional Responsibility
[2] Adoption/adaptation of the ABA Model Rules
[3] Structure and format of the New York Rules
[a] 1. Overall Structure
[b] 2. Format: Rule and Comment
[c] 3. Network of the Rules
[d] 4. Adoption and Variation by Jurisdictions
[e] 5. The Rules in Legal Ethics and Risk Management
§ 1.02 Regulatory Framework & Enforcement Authorities
[1] Role of the New York Legislature
[2] Role of the New York State Unified Court System
[3] Attorney grievance committees
[4] The Lawyers’ Fund for Client Protection
[5] Fee Dispute Resolution Program
[6] Disciplinary process overview
[7] Interaction with federal courts
§ 1.03 Sources of Ethical Authority
[1] The Rules vs. substantive law
[2] Case law interpretations
[3] Ethics opinions
[4] Divergence from ABA Model Rules
[5] Preamble, Scope and Comments Not Adopted

Chapter 2
Part II: New York The Rules of Professional Conduct
SYNOPSIS
§ 2.01 RULE 1.0: Terminology
[1] Terminology
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.02 RULE 1.1: Competence
[1] Competence
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.03 RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER
[1] SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.04 RULE 1.3: DILIGENCE
[1] DILIGENCE
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.05 RULE 1.4: COMMUNICATION
[1] COMMUNICATION
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.06 RULE 1.5: FEES AND DIVISION OF FEES
[1] FEES AND DIVISION OF FEES
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.07 RULE 1.6: CONFIDENTIALITY OF INFORMATION
[1] CONFIDENTIALITY OF INFORMATION
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.08 RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS
[1] CONFLICT OF INTEREST: CURRENT CLIENTS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.09 RULE 1.8: CURRENT CLIENTS: SPECIFIC CONFLICT OF INTEREST RULES
[1] CURRENT CLIENTS: SPECIFIC CONFLICT OF INTEREST RULES
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.10 RULE 1.9: DUTIES TO FORMER CLIENTS
[1] DUTIES TO FORMER CLIENTS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.11 RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST
[1] IMPUTATION OF CONFLICTS OF INTEREST
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.12 RULE 1.11: SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVERNMENT OFFICERS AND EMPLOYEES
[1] SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVERNMENT OFFICERS AND EMPLOYEES
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.13 RULE 1.12: SPECIFIC CONFLICTS OF INTEREST FOR FORMER JUDGES, ARBITRATORS, MEDIATORS OR OTHER THIRD-PARTY NEUTRALS
[1] SPECIFIC CONFLICTS OF INTEREST FOR FORMER JUDGES, ARBITRATORS, MEDIATORS OR OTHER THIRD-PARTY NEUTRALS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.14 RULE 1.13: ORGANIZATION AS CLIENT
[1] ORGANIZATION AS CLIENT
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.15 RULE 1.14: CLIENT WITH DIMINISHED CAPACITY
[1] CLIENT WITH DIMINISHED CAPACITY
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.16 RULE 1.15: PRESERVING IDENTITY OF FUNDS AND PROPERTY OF OTHERS; FIDUCIARY RESPONSIBILITY; COMMINGLING AND MISAPPROPRIATION OF CLIENT FUNDS OR PROPERTY; MAINTENANCE OF BANK ACCOUNTS; RECORD KEEPING; EXAMINATION OF RECORDS
[1] PRESERVING IDENTITY OF FUNDS AND PROPERTY OF OTHERS; FIDUCIARY RESPONSIBILITY; COMMINGLING AND MISAPPROPRIATION OF CLIENT FUNDS OR PROPERTY; MAINTENANCE OF BANK ACCOUNTS; RECORD KEEPING; EXAMINATION OF RECORDS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.17 RULE 1.16: DECLINING OR TERMINATING REPRESENTATION
[1] DECLINING OR TERMINATING REPRESENTATION
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.18 RULE 1.17: SALE OF LAW PRACTICE
[1] SALE OF LAW PRACTICE
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.19 RULE 1.18: DUTIES TO PROSPECTIVE CLIENTS
[1] DUTIES TO PROSPECTIVE CLIENTS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.20 RULE 2.1: ADVISOR
[1] ADVISOR
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.21 RULE 2.2: [RESERVED]
[1] [RESERVED]
§ 2.22 RULE 2.3: EVALUATION FOR USE BY THIRD PERSONS
[1] EVALUATION FOR USE BY THIRD PERSONS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.23 RULE 2.4: LAWYER SERVING AS THIRD-PARTY NEUTRAL
[1] LAWYER SERVING AS THIRD-PARTY NEUTRAL
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.24 RULE 3.1: NON-MERITORIOUS CLAIMS AND CONTENTIONS
[1] NON-MERITORIOUS CLAIMS AND CONTENTIONS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.25 RULE 3.2: DELAY OF LITIGATION
[1] DELAY OF LITIGATION
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.26 RULE 3.3: CONDUCT BEFORE A TRIBUNAL
[1] CONDUCT BEFORE A TRIBUNAL
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.27 RULE 3.4: FAIRNESS TO OPPOSING PARTY AND COUNSEL
[1] FAIRNESS TO OPPOSING PARTY AND COUNSEL
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.28 RULE 3.5: MAINTAINING AND PRESERVING THE IMPARTIALITY OF TRIBUNALS AND JURORS
[1] MAINTAINING AND PRESERVING THE IMPARTIALITY OF TRIBUNALS AND JURORS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.29 RULE 3.6: TRIAL PUBLICITY
[1] TRIAL PUBLICITY
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.30 RULE 3.7: LAWYER AS WITNESS
[1] LAWYER AS WITNESS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.31 RULE 3.8: SPECIAL RESPONSIBILITIES OF PROSECUTORS AND OTHER GOVERNMENT LAWYERS
[1] SPECIAL RESPONSIBILITIES OF PROSECUTORS AND OTHER GOVERNMENT LAWYERS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.32 RULE 3.9: ADVOCATE IN NON-ADJUDICATIVE MATTERS
[1] ADVOCATE IN NON-ADJUDICATIVE MATTERS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.33 RULE 4.1: TRUTHFULNESS IN STATEMENTS TO OTHERS
[1] TRUTHFULNESS IN STATEMENTS TO OTHERS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.34 RULE 4.2: COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL
[1] COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.35 RULE 4.3: COMMUNICATING WITH UNREPRESENTED PERSONS
[1] COMMUNICATING WITH UNREPRESENTED PERSONS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.36 RULE 4.4: RESPECT FOR RIGHTS OF THIRD PERSONS
[1] RESPECT FOR RIGHTS OF THIRD PERSONS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.37 RULE 4.5: COMMUNICATION AFTER INCIDENTS INVOLVING PERSONAL INJURY OR WRONGFUL DEATH
[1] COMMUNICATION AFTER INCIDENTS INVOLVING PERSONAL INJURY OR WRONGFUL DEATH
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.38 RULE 5.1: RESPONSIBILITIES OF LAW FIRMS, PARTNERS, MANAGERS AND SUPERVISORY LAWYERS
[1] RESPONSIBILITIES OF LAW FIRMS, PARTNERS, MANAGERS AND SUPERVISORY LAWYERS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.39 RULE 5.2: RESPONSIBILITIES OF A SUBORDINATE LAWYER
[1] RESPONSIBILITIES OF A SUBORDINATE LAWYER
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.40 RULE 5.3: LAWYER’S RESPONSIBILITY FOR CONDUCT OF NONLAWYERS
[1] LAWYER’S RESPONSIBILITY FOR CONDUCT OF NONLAWYERS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.41 RULE 5.4: PROFESSIONAL INDEPENDENCE OF A LAWYER
[1] PROFESSIONAL INDEPENDENCE OF A LAWYER
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.42 RULE 5.5: UNAUTHORIZED PRACTICE OF LAW
[1] UNAUTHORIZED PRACTICE OF LAW
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.43 RULE 5.6: RESTRICTIONS ON RIGHT TO PRACTICE
[1] RESTRICTIONS ON RIGHT TO PRACTICE
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.44 RULE 5.7: RESPONSIBILITIES REGARDING NONLEGAL SERVICES
[1] RESPONSIBILITIES REGARDING NONLEGAL SERVICES
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.45 RULE 5.8: CONTRACTUAL RELATIONSHIPS BETWEEN LAWYERS AND NONLEGAL PROFESSIONALS
[1] CONTRACTUAL RELATIONSHIPS BETWEEN LAWYERS AND NONLEGAL PROFESSIONALS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.46 RULE 6.1: VOLUNTARY PRO BONO SERVICE
[1] VOLUNTARY PRO BONO SERVICE
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.47 RULE 6.2: [RESERVED]
[1] [RESERVED]
§ 2.48 RULE 6.3: MEMBERSHIP IN A LEGAL SERVICES ORGANIZATION
[1] MEMBERSHIP IN A LEGAL SERVICES ORGANIZATION
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.49 RULE 6.4: LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS
[1] LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.50 RULE 6.5: PARTICIPATION IN LIMITED PRO BONO LEGAL SERVICES PROGRAMS
[1] PARTICIPATION IN LIMITED PRO BONO LEGAL SERVICES PROGRAMS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.51 RULE 7.1: COMMUNICATIONS CONCERNING A LAWYER’S SERVICES
[1] COMMUNICATIONS CONCERNING A LAWYER’S SERVICES
[2] Commentary and comparison to ABA Model Rules
§ 2.52 RULE 7.1: COMMUNICATIONS CONCERNING A LAWYER’S SERVICES
[1] COMMUNICATIONS CONCERNING A LAWYER’S SERVICES
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.53 RULE 7.2: PAYMENT FOR REFERRALS
[1] PAYMENT FOR REFERRALS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.54 RULE 7.3: SOLICITIATION OF CLIENTS
[1] SOLICITIATION OF CLIENTS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.55 RULE 7.4: [RESERVED]
[1] [RESERVED]
§ 2.56 RULE 7.5: PROFESSIONAL NOTICES, LETTERHEADS AND NAMES
[1] PROFESSIONAL NOTICES, LETTERHEADS AND NAMES
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.57 RULE 8.1: CANDOR IN THE BAR ADMISSION PROCESS
[1] CANDOR IN THE BAR ADMISSION PROCESS
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.58 RULE 8.2: JUDICIAL OFFICERS AND CANDIDATES
[1] JUDICIAL OFFICERS AND CANDIDATES
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.59 RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT
[1] REPORTING PROFESSIONAL MISCONDUCT
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.60 RULE 8.4: MISCONDUCT
[1] MISCONDUCT
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices
§ 2.61 RULE 8.5: DISCIPLINARY AUTHORITY AND CHOICE OF LAW
[1] DISCIPLINARY AUTHORITY AND CHOICE OF LAW
[2] Commentary and comparison to ABA Model Rules
[3] Notable ethics opinions and disciplinary decisions
[4] Risk management advice/best practices

Chapter 3
Part III: Practice Contexts and Specialized Applications
SYNOPSIS
§ 3.01 Ethics in Focus
§ 3.02 A. Criminal Defense
§ 3.03 B. Civil Litigation
§ 3.04 C. Insurance Defense
§ 3.05 D. Transactional Practice
§ 3.06 Legal Malpractice and Ethics Overlap

Chapter 4
Part IV: Select Ethics Opinions & Matter of Chittur
SYNOPSIS
§ 4.01 NYC Bar Formal Opinion 2024-5—Generative AI in the Practice of Law (August 7, 2024)
§ 4.02 ABA Formal Opinion 512 (July 29, 2024) Generative Artificial Intelligence Tools
§ 4.03 NYC Bar Formal Opinion 2024-1: Ethical Issues Arising from the Representation of Two or More Bidders Competing for the Same Asset (January 3, 2024)
§ 4.04 NYSBA Ethics Opinion 1192 (June 9, 2020): Retention and Destruction of Closed Files
§ 4.05 NYCLA Formal Opinion 754-2020
§ 4.06 NYC Bar Formal Opinion 2015-7: LinkedIn and Attorney Advertising (December 27, 2015)
§ 4.07 The case of Krishnan S. Chittur provides a valuable opportunity for NY practitioners to review a disciplinary case out of NY’s Second Department, which contains an impressive 21 alleged Rule violations, resulting in a 2 year suspension.
§ 4.08 Seven Trends in the NY Rules of Professional Conduct
[1] Trend 1: AI Competence and Candor: Enough is Enough
[2] Trend 2: AI Recording & Client Communications: Consent Is Not Optional
[3] Trend 3: Trust Accounting in the Digital Era: Venmo, Zelle& Bitcoin Dangers
[4] Trend 4: Lateral Departures: The Long Arm of Rule 5.6
[5] Trend 5: Litigation Funding: Rule 5.4’s Fault Line
[6] Trend 6: Qui Tam Whistleblower Bounties: Rule 1.6 Prohibits Attorney Relators Using Former Client Info
[7] Trend 7: Confidential Disciplinary Proceedings Not All That Confidential: A Constitutional Challenge To Backroom Attorney Discipline

Chapter 5
Appendices
SYNOPSIS
§ 5.01 Sample Engagement Agreements, Withdrawal Letters, and Conflict Waivers
§ 5.02 Full text of NY Rules
§ 5.03 Cross-reference chart: NY Rules vs. ABA Model Rules
§ 5.04 Index of key cases and authorities
§ 5.05 Glossary of terms