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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


New York Legal Ethics

1.3   Rule 1.3 Diligence

1.3:100   Comparative Analysis of New York Rule

Primary New York References: DR 6-101(A)(3) & 7-101, EC 6-4, Canon 7
Background References: ABA Model Rule 1.3 & 3.2, Other Jurisdictions
Commentary:
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canons 6 and 7, et seq.

1.3:101      Model Rule Comparison

In contrast to ABA Model Rule 1.3 which requires a lawyer to act with "reasonable diligence and promptness in representing a client", the relevant provisions of the New York Code state the diligence requirement in negative terms. NY DR 6-101(A)(3) cautions a lawyer "not to neglect a legal matter entrusted" to him or her.

NY DR 7-101(A)(1) further states that a lawyer "shall not intentionally . . . fail to seek the lawful objectives of [his or her] client through reasonably available means permitted by law and the Disciplinary Rules. NY DR 7-101(A)(3) prohibits a lawyer from "intentionally . . . prejudic[ing] or damag[ing] [his or her] client during the course of the relationship."

In more affirmative terms, NY EC 7-38 states that a lawyer "should be punctual in fulfilling all professional commitments.

NY EC 6-4 further advises a lawyer to "give appropriate attention to [his or her] legal work."

Canon 7 does not use the term diligence at all. Instead, it describes a lawyer’s obligation to the client as one of zealousness. "[A] lawyer should represent a client zealously within the bounds of the law." This direction is reiterated in NY EC 7-1.

1.3:102      Model Code Comparison

NY DR 6-101(A) & 7-101(A) are substantively identical to the ABA Model Code.

1.3:200   Diligence and "Zeal"

Primary New York References: DR 7-101(A)&(B), DR 6-101(A), DR 7-102, EC 2-30, 7-10, 7-37, 7-38
Background References: ABA Model Rule 1.3, 3.3(a) & (b), 3.8(d) & 4.1(b), Other Jurisdictions
Commentary: ABA/BNA § 31:401, ALI-LGL § 28, Wolfram § 10.3
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canons 2, 6 and 7, et seq.

Relevant Disciplinary Rules

Several New York rules expound on the lawyer’s duty of "diligence" and "promptness", which the New York Code refers to as "zealousness": NY DR 7-101,-102 & -103.

NY DR 7-101(A), entitled Representing a Client Zealously, identifies restrictions on a lawyer’s zealous conduct. Sub section (A)(1) prohibits a lawyer from intentionally failing to seek the client’s objectives through reasonably available means. The rest of subsection (A)(1) limits the requirements of zealous representation. It allows a lawyer, without violating the duty of zealousness, to accede to opposing counsel’s reasonable requests as long as the client’s position is not impaired. It also advises a lawyer to be punctual in fulfilling commitments, avoid offensive tactics and treat all people involved in the legal process with courtesy and consideration. Subsection (A)(2) prohibits a lawyer from intention ally failing to carry out a contract of employment with a client. The lawyer is, however, permitted to withdraw from employment pursuant to NY DR 2-110, 5-102, and 5-105. Subsection (A)(3) provides that a lawyer cannot prejudice or damage a client during the relationship, except as required under NY DR 7-101(B). A lawyer cannot violate NY DR 7-101(A) through negligent behavior -- the lawyer's conduct must be intentional.

NY DR 6-101(A)(3), prohibiting neglect of a legal matter entrusted to the lawyer, is closely related to NY DR 7-101(A)(2), which prohibits failing to carry out a contract of employment. If one violates NY DR 7-101(A)(2) by failing to finish a matter, one is also violating NY DR 6-101(A)(3). If, however, a lawyer violates NY DR 6-101(A)(3) by neglecting a matter for a period of time, the lawyer is not necessarily violating NY DR 7-101(A)(2) because the lawyer might finish the matter properly or withdraw from employment in the pre scribed manner.

NY DR 7-101(B)(1) provides yet another discretionary limitation on the lawyer’s obligation to represent a client zealously. It allows a lawyer to, in the exercise of professional judgment, waive or fail to assert a client’s right or position. Subsection (B)(2) permits a lawyer to refuse to participate in conduct that the lawyer believes is unlawful, even if there is some indication that the proposed activity is legal.

NY DR 7-102, entitled Representing a Client Within the Bounds of the Law, further defines the bounds of zealous representation. NY DR 7-102(A) precludes a lawyer from (1) filing a suit, asserting a position, conducting a defense, delaying a trial, or taking other action on behalf of a client when the lawyer knows or it is obvious that the action would harass or maliciously injure another; (2) knowingly advancing a claim or defense that is unwarranted under existing law, except that the lawyer can advance such a claim or defense if it can be supported by a good faith argument for a change of existing law; (3) concealing or knowingly failing to disclose that which the law requires the lawyer to disclose; (4) knowingly using perjured testimony or false evidence; (5) knowingly making a false statement of law or fact; (6) participating in the creation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false; (7) counseling or assisting the client in conduct that the lawyer knows to be illegal or fraudulent; and (8) knowingly engaging in other illegal conduct or conduct that is violative of the Disciplinary Rules.

Relevant Ethical Considerations

NY EC 2-30 provides that a lawyer should refuse employment if his or her personal feelings are so strong that they would impair effective representation.

NY EC 7-10 cautions that a lawyer’s duty to represent the client zealously does not mean that the lawyer should not treat others with consideration or that the lawyer should not avoid inflicting needless harm.

NY EC 7-37 warns that even where there is animosity between the respective parties, it does not mean that a lawyer should feel ill will towards opposing lawyers. "A lawyer should not make unfair or derogatory personal reference to opposing counsel."

NY EC 7-38 similarly requires a lawyer to be courteous to opposing counsel. (S)he should agree to "reasonable requests regarding court proceedings, settings, continuances, waiver of procedural formalities, and similar matters which do not prejudice the rights of the client. A lawyer should follow local customs of courtesy or practice unless he or she gives timely notice to opposing counsel of the intention not to do so. A lawyer should be punctual in fulfilling all professional commitments."

New York Standards of Civility

On September 17, 1997, effective immediately, the New York courts adopted Standards of Civility, a non-binding set of "guidelines intended to encourage lawyers, judges and court personnel to observe principles of civility and decorum..." The Standards of Civility are not intended to be enforced through sanctions and do not in any way modify the Code of Professional Responsibility or other rules governing lawyers.

According to the Preamble to the Standards of Civility, these standards "set forth principles of behavior to which the bar, the bench and court employees should aspire. They are not intended as rules to be enforced by sanction or disciplinary action, nor are they intended to supplement or modify the Rules Governing Judicial Conduct, the Code of Professional Responsibility and its Disciplinary Rules, or any other applicable rule or requirement governing conduct. Instead they are a set of guidelines intended to encourage lawyers, judges and court personnel to observe principles of civility and decorum, and to conform the legal profession's rightful status as an honorable and respected profession where courtesy and civility are observed as a matter of course. The Standards are divided into four parts: lawyers' duties to other lawyers, litigants and witnesses; lawyers' duties to the court and court personnel; court's duties to lawyers, parties and witnesses; and court personnel's duties to lawyers and litigants."

Relevant Ethics Opinions

No Ethical Duty to File Appeal: Nassau County Bar Op. No. 94-1 (1994): Under NY DR 7-101(A)(2), when the attorney’s retainer agreement does not expressly obligate him or her to prosecute an appeal, the attorney is not ethically obligated to file a notice of appeal. The lawyer can fulfill the ethical duty to safeguard the client’s interests by "fully advising the client, sufficiently in advance to allow the client to act, of the client’s options, of the deadlines which must be met, of the consequences of missing a deadline, and of any other pertinent information, so that the client has sufficient opportunity to make an informed decision as to how to proceed." (emphasis in original).

Relevant Cases

Running Afoul of a Statute of Limitations: See In re Gajewski, 217 A.D.2d 90, 634 N.Y.S.2d 704 (1st Dept. 1995) (lawyer suspended for one year for, among other neglectful behavior, allowing the statute of limitations to expire on a case).

Ignoring Pleadings: See Gigliotti v. Morasco, 2 A.D.2d 653, 152 N.Y.S.2d 45 (4th Dept. 1956) (court opined that a lawyer who was so dilatory as to ignore a bill of particulars until a motion to preclude is made might subject himself to disciplinary proceedings.)

Attempt to Cover-up Lack of Diligence: In In re Foley, 194 A.D.2d 111, 604 N.Y.S.2d 467 (4th Dept. 1993), the lawyer lied to the client by telling him that settlement offers were made on his personal injury case. The lawyer then sent the client a check drawn on the lawyer’s own funds which the lawyer represented as the settlement offer.

Duty of Diligence Continues Despite Non-Payment of Attorneys' Costs: See, e.g., In re Pines, 26 A.D.2d 424, 275 N.Y.S.2d 122 (1st Dept. 1966) (client's failure to reimburse attorney for disbursements did not excuse attorney's failure to prose cute personal injury action for over 3 years).

Delegation of Responsibility: Kleeman v. Rheingold, 81 N.Y.2d 270, 598 N.Y.S.2d 149 (1993): Under DR 6-101, an attorney cannot delegate the duty to exercise care in handling a client's legal matter. Accordingly, an attorney cannot escape liability for negligent service of process by delegating that task to an independent process server.

Neglect: Matter of Sorid, 189 A.D.2d 377, 596 N.Y.S.2d 125 (2nd Dept. 1993): An attorney violated DR 6-101 by failing to forward a settlement check to a client for two months, failing to retrieve file in an estate matter after a former employee removed it from the attorney's offices, and by failing to probate an estate within four years. See also In re Lowenthal, 132 A.D.2d 117, 521 N.Y.S.2d 721 (2d Dept. 1987), appeal dismissed, 71 N.Y.2d 888 (1988) (lawyer that violated DR 6-101(A)(3) by neglecting an estate matter for more than seven years was suspended for two years for this and various other rules violations).

Family Problems No Excuse For Neglect: Matter of Sexton, 231 A.D.2d 832, 647 N.Y.S.2d 587 (3d Dep't 1996) (acknowledging that "attorneys must attend to their clients' interest punctually and with vigor despite distracting and stressful intrusions from personal and family problems or advise their clients of their option to obtain other counsel" and suspending neglectful counsel for 6 months).

Illness Not an Excuse: Matter of Whitbread, 183 A.D.2d 347, 591 N.Y.S.2d 117 (4th Dept. 1992) (Under DR 6-101, an attorney's illness and divorce do not justify the attorney's neglect of legal matters and abandonment of clients. Sanction: Suspended for one year).

Depression May be Mitigating Factor: Matter of Chikofsky, 239 A.D.2d 86, 668 N.Y.S.2d 586 (1st Dep't 1998) (sanction of public censure only penalty despite attorney's neglect and misrepresentations about status of client's criminal appeal, and his refusal to refund unearned fees, where mitigating factors included attorney's severe depression).

1.3:300   Promptness

Primary New York References: DR 6-101(A)(3), EC 6-4
Background References: ABA Model Rule 1.3 & 3.2, Other Jurisdictions
Commentary: ABA/BNA § 31:401, ALI-LGL § 28, Wolfram § 10.3
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 6, et seq.

Relevant Disciplinary Rules

Unlike ABA Rule 1.3, the New York code does not contain an obligation termed "promptness." However, NY DR 6-101(A)(3), warns a lawyer not to neglect a client’s matter, deeming this a form of incompetence. NY EC 6-4 likewise requires a lawyer to pay adequate attention to his or her legal work.

Relevant Cases

Sanctions Imposed for Neglect: See, e.g., In re Gajewski, 217 A.D.2d 90, 634 N.Y.S.2d 704 (1st Dept. 1995) (suspending lawyer for one year after he allowed the statute of limitations to run on one case, allowed a disbarred lawyer to sign court papers, and persistently neglected two civil matters); Matter of Whitbread, 183 A.D.2d 347, 591 N.Y.S.2d 117 (4th Dept. 1992) (rejecting the attorney’s excuse of illness and divorce and suspending attorney for one year because he neglected legal matters and abandoned clients); In re Lowenthal, 132 A.D.2d 117, 521 N.Y.S.2d 721 (2d Dept. 1987), appeal dismissed, 71 N.Y.2d 888, 527 N.Y.S.2d 766 (1988) (suspending attorney for two years for neglecting an estate matter for more than seven years and violating other disciplinary rules).

Pre-Code Common Law Antecedents: A lawyer’s obligation not to neglect a client’s matters is a long-standing one. See, e.g., Gigliotti v. Morasco, 2 A.D.2d 653, 152 N.Y.S.2d 45 (4th Dept. 1956) (declaring that a lawyer who is conspicuously lax by ignoring a bill of particulars until a motion to preclude is made might subject himself to disciplinary proceedings).