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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.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

III. ADVOCATE

3.1   Rule 3.1 Meritorious Claims and Contentions

3.1:100   Comparative Analysis of New York Rule

Primary New York References: DR 7-102, DR 2-110(C)(1)(a), EC 7-4
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary:
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 2 and 7, et seq.

3.1:101      Model Rule Comparison

NY DR 7-102, entitled "Representing a Client within the Bounds of the Law," proscribes the same misconduct as Model Rule 3.1, with three subtle differences. First, NY DR 7-102(A)(1) defines wrongful litigation as that which is “merely to harass or maliciously injure another,” while Model Rule 3.1 affirmatively requires that there be a basis for the action which is “not frivolous.” Second, NY DR 7-102(A) includes a subjective test, by proscribing action which the lawyer “knows or when it is obvious” that the litigation is improper, whereas Rule 3.1 articulates a purely objective test. Third, unlike NY DR 7-102(A), Rule 3.1 permits a lawyer in a criminal case to defend the proceeding even without a nonfrivolous basis.

Both Rule 3.1 and NY DR 7-102(A)(2) permit a lawyer to advance a claim or defense that can be supported by a "good faith argument for an extension, modification or reversal of existing law."

In a related vein, NY DR 2-109(A)(2) prohibits a lawyer from accepting a case for a person who wishes to present a claim not warranted under existing law, and NY DR 2-110(C)(1)(a) allows a lawyer to withdraw if a client insists on presenting an unwarranted claim or defense.

See also EC 7-4.

3.1:102      Model Code Comparison

[The discussion of this topic has not yet been written.]

3.1:200   Non-Meritorious Assertions in Litigation

Primary New York References: DR 7-102, DR 2-109(A)(2)
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:101, ALI-LGL § 170, Wolfram § 11.2
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

NY DR 7-102(A)(1) prohibits a lawyer from taking any action in litigation that would serve “merely” to “harass or maliciously injure” another person. The qualifier “merely” means that an action does not violate this rule so long as it has some legitimate purpose other than harassing or injuring another. This subdivision has a broader reach than NY DR 7-102(A)(2)-(5) and (8) because it applies not only to situations where the lawyer engages “knowingly” in the prohibited conduct, but also to situations where it is “obvious” that the suit is malicious or harassing. Thus, a lawyer cannot evade the strictures of DR 7-102(A)(1) through ignorance if a reasonable lawyer would have known that the client is pursuing litigation for improper purposes.

NY DR 7-102(A)(2) prohibits a lawyer from knowingly advancing a claim or defense that is "unwarranted under existing law," unless it can be "supported by good faith argument for an extension, modification or reversal of existing law."

Relevant Ethics Opinions

Drafting Pleadings for Pro Se Litigants: N.Y. State Bar Op. 613 (1990): Under DR 2-109(A)(2), a lawyer may not draft pleadings for a pro se litigant unless the lawyer has adequately investigated the facts and researched the law and has concluded that the suit can be filed in good faith.

Filing Lawsuit after Expiration of Statute of Limitations: N.Y. State Bar Op. 475 (1977): Under DR 2-109(A)(2), a lawyer may file a lawsuit after the statute of limitations has run only if the statutory time period is purely a defense and not an element of the plaintiff's cause of action.

General Counsel's Ability to Eschew Filing Nonmeritorious Suit: N.Y. State Bar Op. 472 (1977): Under DR 2-109(A)(2), the general counsel of a corporation is not required to file a lawsuit that he believes has no merit.

Interposition of General Denial: N.Y. State Bar Op. 469 (1977): Under DR 2-109(A)(2), a lawyer may not properly interpose a general denial if the lawyer knows that the client does not have a valid defense.

Relevant Cases

Lawyer's Obligation to Avoid Frivolous Litigation in General: A lawyer has a professional obligation to the client, the court, and his adversaries to ensure that actions commenced and positions advanced are not frivolous or meritless. Mareno v. Rowe, 910 F.2d 1043, 1047 (2d Cir. 1990) (for a position to be frivolous under Rule 11, it must be clear under existing precedents that there is no chance of success and no reasonable argument to extend, modify or reverse the law as it stands), cert. denied, 498 U.S. 1028 (1991); see also Fontaine v. Ryan, 849 F. Supp. 242, 245 (S.D.N.Y. 1994) (lawyer has obligation to pursue only appropriate actions despite client’s insistence to contrary).

Malicious Settlement Tactics: In In re Wehringer, 135 A.D.2d 279, 525 N.Y.S.2d 604 (1st Dept.), appeal dismissed, 532 N.Y.S.2d 366, cert. denied, 488 U.S. 988 (1988), a client kidnaped his child to gain settlement leverage in a divorce action. The lawyer was disbarred for violating DR 7-102(A)(1) by attempting to force a favorable settlement on that basis, and by helping his client engage in other harassing and malicious tactics.

Excessive Punitive Damages Prayer: In In re Benjamin, 129 A.D.2d 886, 514 N.Y.S.2d 526 (3d Dept. 1987), a lawyer violated DR 7-102(A)(1) by seeking grossly excessive punitive damages in two small contract actions in order to harass and intimidate defendants.

Unsuccessful Contempt Motion: In In re Capoccia, 144 A.D.2d 231, 535 N.Y.S.2d 127 (3d Dept. 1988), a suit to enjoin another lawyer from settling personal injury suits in which respondent was formerly attorney of record, the respondent lawyer did not violate DR 7-102(A)(1) by filing a contempt motion. The fact that the court did not uphold the contempt motion did not prove that the motion was brought to harass or maliciously injure the other attorney.

Withdrawal by Doubting Counsel: In Rindner v. Cannon Mills, Inc., 486 N.Y.S.2d 858, 127 Misc.2d 604 (Sup. Ct. Rockland County 1985), the plaintiff sued the defendant manufacturer for injuries she suffered when her bathrobe caught fire. Trial counsel moved to withdraw after he developed “doubts about the merits of his client’s case.” Specifically, after investigating the facts and consulting with an expert, trial counsel concluded that the plaintiff could not establish a prima facie case against the defendants. The trial court granted the motion. Under DR 2-109(A)(2), “an attorney cannot be compelled to advance a cause which he or she does not believe is legally justified.” See also Bankers Trust Co. v. Hogan, 187 A.D.2d 305, 589 N.Y.S.2d 338 (1st Dep't 1992): A law firm could properly withdraw where the client insisted that the firm pursue legal theories and arguments that the firm believed were directly contrary to law and to the firm's professional judgment.

Sanctions Imposed Under 22 NYCRR § 130.1-1 For Frivolous Motions: In Intercontinental Credit Corp. v. Roth, 78 N.Y.2d 306, 574 N.Y.S.2d 528 (1991), the defendant, facing a judgment against him, moved to appeal to the Court of Appeals. When the court dismissed the motion as untimely, the defendant filed a motion for reargument. The plaintiff cross-moved for sanctions. The Court of Appeals did not cite DR 2-109(A)(2) but did cite 22 NYCRR Section 130.1-1 [providing for sanctions for frivolous conduct; see Section 3.1:300, infra] and awarded sanctions. The court stated, “The utter lack of merit in these motions and the virtual impossibility of affecting the final judgment at this late stage in the litigation confirm plaintiff cross-movant’s contention that this reargument motion was made primarily to delay enforcement of a judgment in Israel.”

3.1:300   Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)

Primary New York References: DR 7-102
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:151, ALI-LGL § 170, Wolfram § 11.2
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Court and Practice Rules

The judicial sanctions provided under Sections 130.1-2.3 of the New York Rules of Court, 22 NYCRR 130.1 and NYCPLR § 8303-a represent New York's counterpart to Fed. R. Civ. P. 11. Consistent with DR 7-102(A)(1) and (A)(2), Section 130-1.1(c) of the NYCRR defines "frivolous" conduct as conduct which is (1) "completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law," or (2) "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or to maliciously injure another." Section 130-1.1(a) grants the court the discretion to (1) award to a party costs and attorneys fees resulting from frivolous conduct by another party, and (2) impose financial sanctions on the party or attorney who engages in frivolous conduct. The total amount of costs awarded and sanctions imposed cannot exceed $10,000 "for any single occurrence of frivolous conduct." See § 130-1.2.

Practitioners should be aware that in September 1997, Part 130 was amended in three significant ways:

First, amended § 130-1.1-a requires an attorney to sign every paper served or filed in a civil action to certify that, "to the best of the lawyer's knowledge information and filing formed after an inquiry reasonable under the circumstances, the presentation of the paper or the contentions therein are not frivolous" and the substance of the factual statements therein is not false. (When this proposal was adopted, 22 NYCRR § 216(e), the certification provision already adopted for domestic relations matters, was amended to specify that Part 130 applies to domestic relations matters as it does to all other matters.)

Second, amended § 130-1.2 removes the $10,000 ceiling on sanctions during a given action and replaces it with a ceiling of $10,000 per incident.

Third, amended § 130-2.1(a) clarifies that a court may award costs and impose sanctions on an attorney who unjustifiably fails to attend a scheduled court appearance.

Financial Sanctions under NYCPLR § 8303-a: CPLR § 8303-a also parallels the Disciplinary Code. CPLR § 8303-a provides for an award of costs and reasonable attorney's fees (not exceeding ten thousand dollars) for frivolous claims and counterclaims in: (a) "actions to recover damages for personal injury, injury to property or wrongful death” and (b) “podiatric, dental and medical malpractice actions.” Harkening back to the definitions of wrongful conduct set forth in DR 7-102(A)(1) and DR 7-102(A)(2), § 8303-a(c) provides that in order to find that an action, claim, counterclaim, defense or cross claim is frivolous, "the court must find one or more of the following: (i) the action, claim, counterclaim, defense or cross claim was commenced, used or continued in bad faith, solely to delay or prolong the resolution of the litigation or to harass or maliciously injure another; [or] (ii) the action, claim, counterclaim, defense or cross claim was commenced or continued in bad faith without any reasonable basis in law or fact and could not be supported by a good faith argument for an extension, modification or reversal of existing law."

Unlike Section 130.1-1(c) of the NYCRR, financial sanctions under § 8303 are mandatory upon a finding of frivolousness. Because of the parallel definitions, a lawyer who violates § 8303-a(c)(i) would probably also be violating DR 7-102(A)(1), (prohibiting actions merely to “harass or maliciously injure another”) and a lawyer who violates § 8303(c)(ii) would usually be violating DR 7-102(A)(2) (prohibiting claims “unwarranted by existing law” absent a good faith argument for the extension, modification, or reversal of existing law).

Relevant Cases

Sanctions Imposed: Public Administrator of the County of New York v. Cohen, 221 A.D.2d 297, 634 N.Y.S.2d 106 (1st Dept. 1995) (imposing sanction of $1500 on attorney who sought mandamus against judge for taking over 60 days to rule on three motions, in case where counsel had permitted claim to languish for 19 years).

3.1:400   Civil Liability for Abusive Litigation Practice [see 1.1:520]

Primary New York References:
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:101, ALI-LGL §§ 77, 170, Wolfram § 11.2

[The discussion of this topic has not yet been written.]

3.1:500   Complying with Law and Tribunal Rulings

Primary New York References:
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 16:1201, ALI-LGL § 165, Wolfram §§ 12.1.3, 13.3.7

[The discussion of this topic has not yet been written.]

3.2   Rule 3.2 Expediting Litigation

3.2:100   Comparative Analysis of New York Rule

Primary New York References: DR 7-101, DR 7-102, EC 7-38, EC 7-39
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary:
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

3.2:101      Model Rule Comparison

NY DR 7-101(A)(1), which sets forth the requirements of zealous representation, is broader than Model Rule 3.2 because it obligates the lawyer to be both prompt and civil. NY DR 7-101 “Representing a Client Zealously” states: “A lawyer shall not intentionally: (1) Fail to seek the lawful objectives of the client through reasonably available means permitted by law and the Disciplinary Rules, except as required by DR 7-101(B). A lawyer does not violate the Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of the client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.”

NY DR 7-102(A)(1), discussed in Section 3.1:101 supra, provides that a lawyer “shall not . . . file a suit, assert a position, conduct a defense [or] delay a trial . . . when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure an other.”

Relevant Ethical Considerations

NY EC 7-38 provides: "A lawyer should be courteous to opposing counsel and should accede 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."

NY EC 7-39 provides: "In the final analysis, proper functioning of the adversary system depends upon cooperation between lawyers and tribunals in utilizing procedures which will preserve the impartiality of tribunals and make their decisional processes prompt and just, without impinging upon the obligation of lawyers to represent their clients zealously within the framework of the law."

New York State Standards of Civility: These precatory principles establish guidelines to promote courtesy, respect and civility between, lawyers and inter alia, other lawyers, litigants, witnesses, court personnel and the court. On the topic of expediting litigation, the standards prescribe that:

"III. A lawyer should respect the schedule and commitments of opposing counsel, consistent with protection of the client's interests.

A. In the absence of a court order, a law yer should agree to reasonable requests for ex tensions of time or for waiver of procedural formalities when the legitimate interests of the client will not be adversely affected.

B. Upon request coupled with the simple representation by counsel that more time is re quired, the first request for an extension to respond to pleadings ordinarily should be granted as a matter of courtesy.

IV. A lawyer should promptly return telephone calls and answer correspondence reasonably requiring a response.

VI. A lawyer should not use any aspect of the litigation process, including discovery and motion practice, as a means of harassment or for the purpose of unnecessarily prolonging litigation or increasing litigation expenses.

A. A lawyer should avoid discovery that is not necessary to obtain facts or perpetuate testimony or that is designed to place an undue burden or expense on a party.

B. A lawyer should respond to discovery requests reasonably and not strain to interpret the request so as to avoid disclosure of relevant and non-privileged information."}

3.2:102      Model Code Comparison

NY DR 7-101(A) is virtually identical to Model Code DR 7-101(A).

3.2:200   Dilatory Tactics

Primary New York References:
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary: ABA/BNA § 61:201, ALI-LGL § 166, Wolfram § 11.2.5
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Court and Practice Rules

Section 130-1.1 of the NYCRR provides for financial sanctions against an attorney or party in any civil pro ceeding for frivolous conduct, defined to include conduct which is "undertaken primarily to delay or prolong the resolution of the litigation." See Section 3.1:300, supra. Section 130-2.1 of the NYCRR provides for financial sanctions against an attorney in any criminal action or Family Court proceeding for failure to appear at scheduled hearings.

Section 8303-a of the NY CPLR provides for an award of costs and reasonable attorneys fees in certain types of cases to the prevailing party to be paid by the party or its attorney who has brought an action or asserted a claim, inter alia, "solely to delay or prolong the resolution of the litigation."

3.2:300   Judicial Sanctions for Dilatory Tactics

Primary New York References:
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary: ABA/BNA § 61:201, ALI-LGL § 166, Wolfram § 11.2.5

[The discussion of this topic has not yet been written.]

3.3   Rule 3.3 Candor Toward the Tribunal

3.3:100   Comparative Analysis of New York Rule

Primary New York References: DR 7-102
Background References: ABA Model Rule 3.3, Other Jurisdictions
Commentary:
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

3.3:101      Model Rule Comparison

NY DR 7-102(A)(5), which provides that a lawyer shall not “knowingly make a false statement of law or fact,” is substantially identical to Paragraph (a)(1) of Model Rule 3.3.

NY DR 7-102(A)(3), which provides that “a lawyer shall not conceal or knowingly fail to disclose that which the lawyer is required by law to reveal,” is implicit in paragraph (a)(2) of Model Rule 3.3.

NY DR 7-106(B)(1), which requires a lawyer to disclose “[c]ontrolling legal authority known to the lawyer to be directly adverse to the position of the client and which is not disclosed by opposing counsel,” is substantially identical to paragraph (a)(3) of Model Rule 3.3.

NY DR 7-102(A)(4), which provides that a lawyer shall not “knowingly use perjured testimony or false evidence” is virtually identical to the first sentence of paragraph (a)(4) of Model Rule 3.3.

NY DR 7-102(B)(1), which requires a lawyer “who receives information clearly establishing that . . . [t]he client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a confidence or secret,” is comparable to the second sentence of paragraph (a)(4) of Model Rule 3.3.

NY DR 7-102(B)(2), which specifically requires the lawyer to reveal the fraud to the tribunal if the perjurious witness is not a client, has no direct counterpart in the Model Rules.

NY DR 7-102(A)(4), which prohibits the lawyer from offering evidence the lawyer “knows” is false does not confer on the lawyer the same degree of discretion to refuse to offer evidence as Model Rule 3.3(c), which permits a lawyer to refuse to offer evidence the lawyer "reasonably believes is false.".

The NY Code does not contain any counterpart to paragraph (d) of Model Rule 3.3.

3.3:102      Model Code Comparison

NY DR 7-102(B)(1)-(2) and NY DR 7-106(B)(1) are essentially identical to the corresponding Model Code sections. NY DR 7-102(A)(3)-(7) is virtually identical to the corresponding Model Code sections.

3.3:200   False Statements to a Tribunal

Primary New York References: DR 7-102(A)(5), EC 7-26
Background References: ABA Model Rule 3.3(a)(1) & (2), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 180, Wolfram § 12.5
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

NY DR 7-102(A)(5) prohibits a lawyer from making knowingly false statements of law or fact to anyone - a court, an opposing party, another lawyer, a witness, or a client. The forum is immaterial. Knowing falsehoods are proscribed in negotiations, letters, legal briefs, status conferences and hearings.

Relevant Ethical Considerations

NY EC 7-26 adds: “The law and Disciplinary Rules prohibit the use of fraudulent, false, or perjured testimony or evidence. A lawyer who knowingly participates in introduction of such testimony or evidence is subject to discipline. A lawyer should, however, present any admissible evidence the client desires to have presented unless the lawyer knows, or from facts within the lawyer’s knowledge should know, that such testimony or evidence is false, fraudulent, or perjured.”

Relevant Cases

Falsehoods to Clients: In re Curran, 152 A.D.2d 111, 547 N.Y.S.2d 795 (4th Dept. 1989) (lawyer violated DR 7-102(A)(5) by knowingly making false statements to his clients about the status of their matters and was suspended for two years).

3.3:201   Disclosure to Avoid Assisting Client Crime or Fraud

Relevant Disciplinary Rules

NY DR 7-102(B) provides that a lawyer who receives information "clearly establishing that . . . the client has . . . perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a confidence or secret." Compare ABA Model Rules of Professional Conduct: Rule 3.3(a)(4) and 3.3(b) (requiring lawyer to take "reasonable remedial measures" if lawyer learns that he or she has offered false testimony, even if these measures require the lawyer to violate the duty of confidentiality), Rule 4.1(b) (lawyer shall not "fail to disclose a material fact to a third person" if necessary to avoid assisting client in a fraud, unless information is protected by Rule 1.6).

Disclosure to avoid assisting a client's fraud may be required under NY DR 7-102(A)(3), which prohibits a lawyer from concealing or knowingly failing "to disclose that which the lawyer is required by law to reveal."

In addition, NY DR 4-101(C) specifies certain instances in which a lawyer is ethically permitted (although not re quired) to disclose client confidences, including: (1) when “required” by law or court order,” see NY DR 4-101(C)(2); (2) to report the intention of a client to commit a crime and the information necessary to prevent the crime, see NY DR 4-101(C)(3); and (3) to the extent implicit in the withdrawal of a written or oral opinion or representation by the lawyer which the lawyer discovers is based on false information, or is being "used to further a crime or fraud," see NY DR 4-101(B). See Section 3.3:202 infra.

3.3:202   Prohibition on Counseling or Assisting Fraud on a Tribunal [see also 1.6:350]

Relevant Disciplinary Rules

NY DR 7-102(A)(7) provides that a “lawyer shall not . . . [c]ounsel or assist the client in conduct that the lawyer knows to be illegal or fraudulent.” NY DR 7-102(A)(7) prohibits a lawyer from explaining to a client how to do something illegal or providing legal services that assist a client in accomplishing an illegal purpose. For example, a lawyer may not prepare or file documents or other papers that facilitate a client’s fraudulent scheme. The documents need not be essential to the scheme - it is only necessary that they “assist” the client. Nor do the documents themselves need to be fraudulent or illegal - it is only necessary that the documents assist the client in “conduct” that the lawyer “knows” to be illegal or fraudulent.

Relevant Ethical Considerations

Several NY ECs bear directly on the prohibition against a lawyer advising or assisting a client to commit a crime or fraud. These include: NY EC 7-5 ("A lawyer should never encourage or aid a client to commit criminal acts or counsel the client on how to violate the law ..."); NY EC 7-6 ("[O]bviously the lawyer may not do anything furthering the creation or preservation of false evidence."); and NY EC 7-26 ("A lawyer who knowingly participates in introduction of [fraudulent, false or perjured] testimony or evidence is subject to discipline.")

Relevant Ethics Opinions

Discovery of Embezzlement by Executor: Nassau County Bar Op. 97-10 (1997): Attorneys retained by estate executor learned that the executor has wrongfully deposited the proceeds of the sale of the decedent's home into the executor's own account. Under NY DR 7-102(A)(7) the attorneys may not continue to represent executor so long as he refuses to rectify his fraud in the estate.

Prohibition on Endorsement of Settlement Procured by Fraud: In Nassau County Bar Op. 94-21 (1994), an attorney represented an infant in a personal injury action. When the infant appeared for his deposition, both the infant’s attorney and the opposing attorney concluded that the infant was non compos mentis, so the deposition was not taken. The case then settled, but the infant’s attorney could not obtain a physician’s affidavit needed to obtain court approval of the settlement. The attorney then received information suggesting that the infant who had appeared for the deposition was not the plaintiff but rather the plaintiff’s cousin. If the information is protected as a confidence or secret, then the attorney has no obligation to report the fraud to the tribunal. But, under DR 7-102(A)(7) the lawyer may not “assist the client in conduct that the lawyer knows to be illegal or fraudulent” and thus may not seek court approval for a settlement that the attorney knows has been obtained by fraud. If the client refuses to rectify the fraud, then the attorney must withdraw.

Withdrawal of Attorney to Avoid Aiding Illegal Transaction: In Assoc. of the Bar of the City of New York, Formal Op. No. 1994-8, 1994 WL 780799 (July 27, 1994), without the lawyer’s knowledge, the client paid cash “under the table” as partial payment for a real estate purchase in order to avoid part of the New York City transfer tax for real estate. Before the closing, the lawyer advised the client not to engage in the scheme and advised the buyer of the risks of filing false returns and reports relating to the transfer tax. When the client persisted in the scheme, the lawyer withdrew. The lawyer’s withdrawal was mandatory because it was obvious that continued employment would have led to a violation of NY DR 7-102(A)(7).

3.3:300   Disclosure to Avoid Assisting Client Crime or Fraud

Primary New York References:
Background References: ABA Model Rule 3.3(a)(2), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 180, Wolfram §
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

[The discussion of this topic has not yet been written.]

3.3:310      Prohibition on Counseling or Assisting Fraud on a Tribunal [see also 1.6:350]

[The discussion of this topic has not yet been written.]

3.3:400   Disclosing Adverse Legal Authority

Primary New York References: DR 7-102(A)(4), EC 7-26
Background References: ABA Model Rule 3.3(a)(3), Other Jurisdictions
Commentary: ABA/BNA § 4:301, ALI-LGL § 171, Wolfram § 12.8
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

NY DR 7-102(A)(4) provides that a lawyer shall not “knowingly use perjured testimony or false evidence.” While the phrases “perjured testimony” and “evidence” target statements at judicial proceedings, the rule may be read to encompass everything from false discovery responses to falsehoods in sworn testimony in settlement negotiations. On the other hand, the qualifier "knowingly" greatly cir cumscribes the application of the rule: requiring that a lawyer know his client will in fact lie, even after swearing the oath, if called to the stand.

Relevant Ethical Considerations

NY EC 7-26 states that “[t]he law and Disciplinary Rules prohibit the use of fraudulent, false, or perjured testimony or evidence. A lawyer who knowingly participates in introduction of such testimony or evidence is subject to discipline. A lawyer should, however, present any admissible evidence the client desires to have presented unless the lawyer knows, or from facts within the lawyer’s knowledge should know, that such testimony or evidence is false, fraudulent, or perjured.”

See also NY EC 7-6.

3.3:401   False Evidence in Civil Proceedings

Relevant Disciplinary Rules

See NY DR 7-102(A)(4), NY DR 7-102(A)(6), NY DR 7-102(A)(7); NY DR 7-102(B).

Relevant Ethics Opinions

False Deposition Testimony: N.Y. County Lawyers' Ass'n Op. 712 (1996): A client told his attorney that certain material facts in his deposition testimony were untrue. The client rejected the attorney's advice to correct the tran script or otherwise rectify the fraud. Discovery is complete and the case is on the trial calendar. Under DR 7-102(A)(4), the inquiring attorney "may not directly or indirectly use the client's untrue statement in negotiations or at trial, or otherwise vouch for or affirm the false testimony of the client."

Relevant Cases

Perjured Testimony by Client: In re Malone, 105 A.D.2d 455, 480 N.Y.S.2d 603 (3d Dept. 1984), aff’d, 65 N.Y.2d 772, 492 N.Y.S.2d 947, 482 N.E.2d 565 (1985): An attorney was serving as Inspector General for the New York State Department of Corrections. The attorney's main witness in an arbitration hearing was a corrections officer who had complained that some fellow officers had beaten an inmate without provocation. Before the hearing began, the attorney learned that the officer intended to commit perjury, but nonetheless permitted the officer to testify because he believed the lying officer would be in physical danger if he broke the "code of silence" among corrections officers. The attorney’s conduct was wrong. The ethical requirement of zealous representation cannot overcome the proscription in NY DR 7-102(A)(4) against aiding a client in giving perjured testimony.

Perjury by Non-Client: In re Grievance Comm., 847 F.2d 57 (2d Cir. 1988) (lawyer whose client told him that witness for opposition lied at deposition was not required to inform court, even though lawyer believed witness was indeed lying; suspension reversed, as lawyer did not definitely know that witness perpetrated fraud upon court and therefore lawyer's conduct did not violate DR 7-102(B)(2)).

3.3:402   False Evidence in Criminal Proceedings

Mistaken Witnesses: United States v. McKeon, 738 F.2d 26, 33 n.5 (2d Cir. 1984) (“A defendant is free to call witnesses who have personal knowledge of material facts even though defendant believes the witness is mistaken, so long as the witness is believed to be testifying in good faith.”).

Refusal to Permit Perjury Not Ineffective Assistance of Counsel: In People v. Appel, 120 A.D.2d 319, 509 N.Y.S.2d 438 (3d Dept. 1986), appeal denied, 513 N.Y.S.2d 1030 (1987), an attorney refused to allow the client to enter a plea agreement where the client continued to insist he was innocent and the agreement obligated the defendant to testify against a co-defendant. The attorney believed the client would commit perjury in testifying against the co-defendant, and attorney attempted to negotiate an Alford plea so defendant would not have to admit his guilt, but the County Court refused to accept such a plea. The defendant went to trial and was convicted. He moved to vacate his conviction and set aside his sentence on grounds of ineffective assistance of counsel, and the court granted the motion. The Appellate Division reversed and reinstated the conviction and sentence. Under NY DR 7-102(A)(4), the attorney had “an ethical duty not to assist in the presentation of perjured testimony to the court.” See also Nix v. Whiteside, 475 U.S. 157, 106 S. Ct. 988 (1986) (criminal defense lawyer’s threat to withdraw from representation and make disclosure to court if client persisted in his intention to perjure himself did not deprive defendant of Sixth Amendment right to effective assistance of counsel).

Disclosure of Intended Perjury to Court: An attorney may reveal a client’s intention to lie without betraying a confidence. In People v. Salquerro, 107 Misc.2d 155, 433 N.Y.S.2d 711 (Sup. Ct. Trial Term N.Y. County 1980), the defendant unequivocally informed his lawyer on the day before trial that he intended to lie on the witness stand. The attorney immediately informed the court and the prose cutor of his client’s intention to lie, but did not reveal the substance of the anticipated false testimony. The attorney’s revelation of the planned perjury was “highly laudable.”

3.3:403   Offering a Witness an Improper Inducement

Relevant Disciplinary Rules

NY DR 7-109(C) prohibits lawyers from paying or permitting others to pay witnesses compensation which is contingent on the content of the witnesses' testimony or the outcome of the case.

Relevant Ethical Considerations

NY EC 7-28 provides: “Witnesses should always testify truthfully and should be free from any financial inducements that might tempt them to do otherwise. A lawyer should not pay or agree to pay a non-expert witness an amount in excess of reimbursement for expenses and financial loss incident to being a witness; however, a lawyer may pay or agree to pay an expert witness a reasonable fee for services as an expert. But in no event should a lawyer pay or agree to pay a contingent fee to any witness. A lawyer should exercise reasonable diligence to see that the client and lay associates conform to these standards.”

Relevant Ethics Opinions

Contingent Fees For Investigators: N.Y. City Bar Op. 1993-2 (1993): Under DR 7-109(C), a lawyer representing a client in a will contest may not hire a private investigator on a contingent fee basis if the private investigator will be testifying as a witness in the proceeding because DR 7-109(C) prohibits a lawyer from paying, offering to pay, or acquiescing in the payment of a witness contingent on the outcome of a case.

Relevant Cases

Theory Behind Prohibition Against Inducements: As the court explained in In re Robinson, 151 A.D. 589, 600, 136 N.Y.S. 548, 556-57 (1st Dept. 1912), aff’d, 209 N.Y. 354, 103 N.E. 160 (1913), “[t]he prevalence of perjury is a serious menace to the administration of justice . . . But there certainly can be no greater incentive to perjury than to allow a party to make payments to its opponent’s witnesses under any guise or on any excuse, and at least attorneys, who are officers of the court to aid it in the administration of justice, must keep themselves clear of any connection which in the slightest degree tends to induce witness to testify in favor of their clients.”

Expert's Fees in Shareholder Action: In Seigal v. Merrick, 619 F.2d 160 (2d Cir. 1980), a shareholder in Twentieth Century Fox successfully challenged the settlement of a derivative action. The district court awarded the share holder attorney fees and $12,225 to an expert witness for the expert’s fees. Twentieth Century Fox appealed the award of expert witness fees on grounds that the share holder could not have paid the expert unless his challenge was successful. In essence, Fox argued, the expert’s compensation was contingent, in violation of NY DR 7-109(C). The Second Circuit rejected this argument because the expert’s compensation of $150 per hour was “not contin gent on its face.” The court stated that Fox might be right that the expert would not have been paid if the shareholder’s action had failed, but the only contingency is whether the expert would then have tried to collect his fee. No violation of NY DR 7-109(C) was found. See also Pappalardo v. Parklane Hosiery Co., 67 A.D.2d 526, 415 N.Y.S.2d 878 (2nd Dept.), appeal dismissed, 421 N.Y.S.2d 1028 (1979) (expert witness' agreement to accept court awarded fees was not void under public policy against contingency fees).

Cross References

See Model Rule 3.4(b); Section 3.4:310.

3.3:404   Interviewing and Preparing Witnesses

Relevant Disciplinary Rules

See NY DR 7-102(A)(6).

Relevant Ethical Considerations

See NY EC 7-6.

Relevant Ethics Opinions

Guidance on Client Interviewing Techniques: In Nassau County Bar Op. 94-6 (1994), a potential client consulted an attorney about a traffic accident. As the client began to explain the facts in detail, the attorney said, “Before you tell me anything, I want to tell you what you have to show in order to have a case.” The attorney then proceeded to explain the law. Whether the attorney’s technique is proper depends in part on his motive and the client’s motive. Under NY DR 7-102(A)(6)., an attorney may not participate in the creation of false evidence. However, NY EC 7-6 explains that “the lawyer should resolve reasonable doubts in favor of the client.” Moreover, an attorney has an “obligation” to disclose and explain to a client the applicable rules of evidence and facts required to prove a case. Absent a specific Code Provision, an ethics committee should not “mandate or prohibit specific interviewing techniques in an area so subjective.” As long as the attorney in good faith does not believe that he or she is participating in the creation of false evidence, the attorney may resolve reasonable doubts in favor of the client and may explain the law before hearing the facts.

Relevant Cases

General Rule: The lawyer’s “duty is to extract the facts from the witness, not pour them into him.” In re Eldridge, 82 N.Y. 161, 171 (1880).

3.3:405   Remedial Measures Necessary to Correct False

Relevant Disciplinary Rules

NY DR 7-102(B)(1) provides that “[a] lawyer who receives information clearly establishing that . . .[t]he client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud . . . except when the information is protected as a confidence or secret” (emphasis added). Two aspects of the rule severely limit its curative effect. First, the information must “clearly establish” the existence of a fraud to trigger a lawyer's duties under the rule. Second, even if a fraud is clearly established, the lawyer is not required to disclose it where to do so would reveal a confidence or secret.

3.3:406   Duty to Reveal Fraud to the Tribunal

Relevant Disciplinary Rules

NY DR 7-102(B) purports to be a disclosure rule, but the exception for information "protected as a confidence or secret" literally swallows the rule. Given the expansiveness of NY DR 4-101(A)’s definition of “confidence” or “secret,” which embraces information “protected by the attorney-client privilege,” information that the client has requested to be “held inviolate,” or information that is “embarrassing” or “likely to be detrimental” to the client, the disclosure obligation created by NY DR 7-102(B) is very limited. All that remains is the obligation to “promptly call upon the client to rectify” the fraud. But if the client refuses, disclosure is not permitted. The only choices are to remain silent and carry on the representation with full zeal, or to withdraw pursuant to NY DR 2-110(C)(1)(g) on grounds that the client “has used the lawyer’s services to perpetrate a crime or fraud."

Relevant Ethics Opinions

Discovery of Document Tampering in Administrative Proceeding: NY State Bar Op. 700 (1998): A government attorney prosecuting an administrative proceeding learns from a former employee of the defendant's lawyer that certain key records were altered before they were provided to the government agency. If true, the law firms' actions would constitute fraud that must be revealed to the tribunal under NY DR 7-102(B)(2). Therefore, the prosecuting attorney may either (1) notify the hearing officer presiding over the proceeding or (2) bring the matter to the attention of another court or appropriate authority on an ex parte basis.

The Fraud Must Be on a “Tribunal,” Not an Administrative Agency: In Nassau County Bar Op. 94-20 (1994), defendant’s attorney deposed plaintiff who testified that he had entered the United States illegally, remained in the United States illegally, and earned money without paying income tax. The attorney is not obligated to report this information to anyone. Under NY DR 7-102(B)(2), an attorney is obligated to report fraud on a tribunal, but a fraud on an administrative agency such as the INS is not a fraud on a “tribunal” unless the administrative agency was acting as an “adjudicatory body” by conducting “trial-type proceedings,” which was not the case here.

No Fraud Where False Evidence is Presented in Good Faith: Nassau County Bar Op. 94-19 (1994), declared that “[a] discovery by an attorney after a tribunal’s determination of a matter that evidence introduced by him in good faith to the benefit of his client was materially false imposes no ethical obligation upon the attorney to attempt to undo the effects of the false evidence.” Here, an attorney represented a client in a no-fault arbitration for payment of medical bills arising from an auto accident. The attorney presented copies of the client’s supposedly unpaid hospital bills and obtained an award of $15,480. After the arbitration, the attorney discovered that Medicaid had actually paid the hospital bills before the arbitration took place. If neither the client nor the attorney knew that the evidence was false when it was presented, then no “fraud” has occurred. No Disciplinary Rule expressly governs the situation where a tribunal’s decision was based on evidence that was ultimately found to be false but was initially submitted in good faith.

Client's Fraud A "Secret", Protected From Revelation: In Assoc. of the Bar of the City of New York, Formal Op. No. 1994-8, 1994 WL 780799 (July 27, 1994), the client paid cash “under the table” as partial payment for a real estate purchase in order to avoid part of the New York City transfer tax for real estate. Before the closing, the lawyer advised the client not to engage in the scheme and advised the buyer of the risks of filing false returns and reports relating to the transfer tax. When the client persisted in the scheme, the lawyer withdrew. The client obtained new counsel and the transaction closed. Under NY DR 7-102(B)(1), the lawyer may not reveal the fraud because, even if the lawyer has information “clearly establishing” that the client has perpetrated a fraud, the information is protected as a “secret.”

Actual Knowledge or Clear Belief of Fraud Required: Nassau County Bar Op. 93-41 (1993): Under NY DR 7-102(B)(1), an attorney has no obligation to report a suspected fraud on a tribunal unless the attorney has “actual knowledge or a “clear belief” that the fraud has occurred. This determination is to some extent subjective and in all cases fact intensive.

No Duty to Report Attempted Fraud: Nassau County Bar Op. 92-29 (1992): An attorney represented the defendant in a personal injury action. Several of the plaintiff’s relatives contacted the defendant and asked him to change his story at trial, i.e., to lie, but the defendant refused. Since no fraud on a tribunal occurred, NY DR 7-102(B)(2) does not require the attorney to report the attempted fraud to the tribunal.

Relevant Cases

Withdrawal to Prevent Perjury Denied: In People v. Salquerro, 107 Misc.2d 155, 433 N.Y.S.2d 711 (Sup. Ct. Trial Term N.Y. County 1980), after the defendant unequivocally informed his lawyer that he intended to lie on the witness stand, the lawyer immediately informed the court and the prosecutor but did not reveal the substance of the anticipated false testimony, and then moved to withdraw. The court denied the motion explaining that substituting a new lawyer “would effectively cloak the problem; however, this ostrich-like approach would do little to resolve it.” A defendant bent on perjury may find another attorney who has lower ethical standards and “who may readily present his client’s falsified story, or who at the very least would not impede its telling.”

Clear Knowledge of Fraud Required to Trigger Reporting Duty: Doe v. Federal Grievance Committee, 847 F.2d 57 (2d Cir. 1988): Under DR 7-102(B), disclosure of fraud is required only if the lawyer has knowledge that he or she "reasonably knows to be a fact" and which would "clearly establish" the existence of a fraud. The rule does not require "proof beyond a moral certainty," but the lawyer must "clearly know, rather than suspect" the fraud before reporting it.

3.3:500   Offering False Evidence

Primary New York References: DR 7-102(A)(4), EC 7-26
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL §§ 175-180, Wolfram §§ 12.3, 12.43, 12.5
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

NY DR 7-102(A)(4) prohibits a lawyer from “knowingly” using perjured testimony or false evidence. Unlike Rule 3.3(c) of the Model Rules, there is no provision in the NY Code which permits a lawyer to withhold evidence he “reasonably believes” to be false.

Relevant Ethical Considerations

NY EC 7-26 provides: “The law and Disciplinary Rules prohibit the use of fraudulent, false, or perjured testimony or evidence. A lawyer who knowingly participates in introduction of such testimony or evidence is subject to discipline. A lawyer should, however, present any admissible evidence the client desires to have presented unless the lawyer knows, or from facts within the lawyer’s knowledge should know, that such testimony or evidence is false, fraudulent, or perjured.” (emphasis added).

3.3:510      False Evidence in Civil Proceedings

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3.3:520      False Evidence in Criminal Proceedings

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3.3:530      Offering a Witness an Improper Inducement

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3.3:540      Interviewing and Preparing Witnesses

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3.3:600   Remedial Measures Necessary to Correct False Evidence

Primary New York References: DR 7-106(B)(1)
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary: ABA/BNA § 61:401 et seq., ALI-LGL § 117A-B, Wolfram §§ 12.5, 12.6, 13.3.6
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

The NY Code contains no provision similar to Model Rule 3.3(d).

Relevant Cases

Duty to Disclose Adverse Authority in Ex Parte Proceedings: See Time-Warner Entertainment Co. v. Jane Does Nos. 1-2, 876 F. Supp. 407 (E.D.N.Y. 1994) (lawyers for copyright and trademark owners seeking ex parte seizure of allegedly infringing products violated duty under DR 7-106(B)(1) to disclose adverse authority to court.)

3.3:610      Duty to Reveal Fraud to the Tribunal

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3.3:700   Discretion to Withhold Evidence Believed to Be False

Primary New York References: EC 7-24, EC 7-25
Background References: ABA Model Rule 3.3(c), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 180, Wolfram § 12.5

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3.3:800   Duty of Disclosure in Ex Parte Proceedings

Primary New York References: EC 7-24, EC 7-27
Background References: ABA Model Rule 3.3(d), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 172 , Wolfram § 12.7

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3.4   Rule 3.4 Fairness to Opposing Party and Counsel

3.4:100   Comparative Analysis of New York Rule

Primary New York References: DR 7-102, DR 7-109, DR 7-106
Background References: ABA Model Rule 3.4, Other Jurisdictions
Commentary:
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

3.4:101      Model Rule Comparison

Three New York rules accomplish the objectives of paragraph (a) of Model Rule 3.4: (1) NY DR 7-109(A), which provides that “[a] lawyer shall not suppress any evidence that the lawyer or the client has a legal obligation to reveal or produce;” (2) NY DR 7-109(B), which provides that a lawyer “shall not advise or cause a person to hide or to leave the jurisdiction of a tribunal for the purpose of making the person unavailable as a witness therein;” and (3) NY DR 7-106(C)(7), which prevents a lawyer from “intentionally or habitually” violating “any established rule of procedure or of evidence.”

Two New York Rules express the proscriptions embodied in paragraph (b) of Model Rule 3.4. NY DR 7-102(A)(6) provides that a lawyer shall not “[p]articipate in the creation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false.” Second, NY DR 7-109(C) provides that a lawyer “shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his or her testimony or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of: (1) Expenses reasonably incurred by a witness in attending or testifying; (2) Reasonable compensation to a witness for the loss of time in attending or testifying; (3) A reasonable fee for the professional services of an expert witness.”

NY DR 7-106(A), which provides that “[a] lawyer shall not disregard or advise the client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but the lawyer may take appropriate steps in good faith to test the validity of such rule or ruling” is substantially the same as paragraph (c) of Model Rule 3.4.

NY DR 7-106(C)(1), (2), (3), (4) and (5), which list types of conduct that are ethically improper, are in the aggregate similar to paragraph (e) of Model Rule 3.4. The NY Code has no direct counterpart to paragraph (d) of Model Rule 3.4.

NY DR 7-104(A)(2), which provides that a lawyer shall not “[g]ive advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client” is similar to paragraph (f) of Model Rule 3.4.

3.4:102      Model Code Comparison

NY DR 7-102(A), NY DR 7-104(A)(2), DR 7-109(A), (B) and (C), and DR 7-106(A) and (C)(1)-(7) are virtually identical to the corresponding provisions of the ABA Model Code.

3.4:103      Overview

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3.4:200   Unlawful Destruction and Concealment of Evidence

Primary New York References: DR 7-109, EC 7-27
Background References: ABA Model Rule 3.4(a), Other Jurisdictions
Commentary: ABA/BNA § 61:701, ALI-LGL §§ 178, 179, Wolfram § 12.3, 12.4
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

NY DR 7-109(A) prohibits lawyers from illegally suppressing evidence which they are obligated to reveal. NY DR 7-109(B) prohibits lawyers from advising anyone either to hide or to leave a jurisdiction in order to become unavail able as a witness.

Relevant Ethical Considerations

NY EC 7-27 explains that “[b]ecause it interferes with the proper administration of justice, a lawyer should not suppress evidence that the lawyer or the client has a legal obligation to reveal or produce. In like manner, a lawyer should not advise or cause a person to hide or to leave the jurisdiction of a tribunal for the purpose of being unavailable as a witness therein.”

Relevant Ethics Opinions

Advice to Criminal Complainant: N.Y. County Lawyers' Op. 711 (1996): A lawyer for a criminal defendant may contact the complaining witness without the prosecutor's consent to discuss dropping the charges. However, under DR 7-109(B), the defense lawyer may not ethically recommend or suggest to the complaining witness that the witness fail to appear at a scheduled hearing, and may not advise or cause the witness to hide or leave the jurisdiction - see EC 7-27.

Simultaneous Settlement of Civil and Criminal Charges: N.Y. City Bar. Op. 1995-3 (1995): An attorney represents a client against whom both a civil suit and criminal charges may be brought. If the client offers to settle the civil claim on the condition that the adversary agree not to report the criminal matter, the attorney may ethically negotiate such a settlement. However, under DR 7-109(A), the defendant's attorney is forbidden from suppressing any evidence that the lawyer or the client has a legal obligation to reveal or produce.

Relevant Cases

"Missing" Documents in Attorney's Possession: Berkey Photo, Inc. v. Eastman Kodak Corp., 74 F.R.D. 613 (S.D.N.Y. 1977): During the deposition of an economic expert, a partner at a law firm casually mentioned that certain documents "had not been retained." The same partner re peated this assertion in a subsequent affidavit. During the expert's trial testimony, however, a "missing" document turned up and the trial judge demanded an explanation. It turned out that the "missing" documents had been sitting in a suitcase in the partner's closet. Based on the partner's false statements under oath in his affidavit, the court convicted him of contempt of court, whereupon the law firm forced him to resign from the firm.

Denial of Attorney's Fees to Prevailing Party For Concealment of Evidence: In Litton Systems, Inc. v. A.T. & T. Co., 700 F.2d 785 (2d Cir. 1983), cert. denied, 464 U.S. 1073 (1984), the Second Circuit found that the trial court properly denied successful plaintiffs recovery of all costs and attorney fees to which it would otherwise have been entitled where plaintiff's attorneys had engaged in a pattern of intentional concealment of evidence.

Preclusion of Evidence: In Ferraro v. Koncal Assocs., 97 A.D.2d 429, 467 N.Y.S.2d 284 (2d Dept. 1983), the court barred defendant from offering any evidence at trial in support of pleaded defense due to destruction of highly material and relevant evidence which the court considered deliberately dilatory, evasive and obstructive of plaintiff's discovery rights.

3.4:210      Physical Evidence of Client Crime

[The discussion of this topic has not yet been written.]

3.4:300   Falsifying Evidence

Primary New York References: DR 7-102(A)(6), DR 7-109(C), EC 7-6
Background References: ABA Model Rule 3.4(b), Other Jurisdictions
Commentary: ABA/BNA §§ 61:601, 61:701, ALI-LGL § 178, Wolfram § 12.3
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

NY DR 7-102(A)(6) prohibits a lawyer from participating in the creation or preservation of evidence which is known to be, or is obviously, false.

Relevant Ethical Considerations

NY EC 7-6 proscribes a lawyer from doing "anything furthering the creation or preservation of false evidence."

Relevant Ethics Opinions

Guidance on Interviewing Techniques: In Nassau County Bar Op. 94-6 (1994), a potential client consulted an attorney about a traffic accident. As the client began to explain the facts in detail, the attorney said, “Before you tell me anything, I want to tell you what you have to show in order to have a case.” The attorney then proceeded to explain the law. Whether the attorney’s technique is proper depends in part on his motive and the client’s motive. Under NY DR 7-102(A)(6), an attorney may not participate in the creation of false evidence. However, NY EC 7-6 explains that “the lawyer should resolve reasonable doubts in favor of the client.” Moreover, an attorney has an “obligation” to disclose and explain to a client the applicable rules of evidence and facts required to prove a case. Absent a specific Code Provision, an ethics committee should not “mandate or prohibit specific interviewing techniques in an area so subjective.”

3.4:310      Prohibited Inducements

Relevant Disciplinary Rules

NY DR 7-109(C) prohibits lawyers from paying witnesses to testify in a certain way or from giving witnesses a contin gent stake in the outcome of a case, or from allowing others to do so. Thus, a lawyer may not pay a witness, promise to pay a witness, or allow a client insurer or other person to pay a witness if the payments depend in any way on the “content” of the witness’ testimony or on the “outcome” of the case.

The three subdivisions in NY DR 7-109(C) allow a lawyer to “advance, guarantee, or acquiesce in” a payment to a witness for expenses or lost time at work or, in the case of expert witnesses, reasonable fees for their professional services. NY DR 7-109(C)(1) allows a lawyer to pay “[e]xpenses reasonably incurred by a witness in attending or testifying” which may include such expenses as bus fare, train fare, plane fare, or car fare for traveling to court or to a deposition.

NY DR 7-109(C)(2) allows a lawyer to pay “[r]easonable compensation to a witness for the loss of time in attending or testifying.” As long as the testimony causes the witness to lose income, a lawyer may compensate the witness for the loss. If a witness is a salaried employee who does not lose any income by testifying, no payment for the lost time is appropriate.

NY DR 7-109(C)(3) allows a lawyer to pay “[a] reasonable fee for the professional services of an expert witness.” As long as the fee is not contingent on the outcome and does not depend on the content of the expert’s testimony, any fee that reflects the expert’s usual fees for professional services should be acceptable.

Relevant Ethical Considerations

NY EC 7-28 further provides: “Witnesses should always testify truthfully and should be free from any financial inducements that might tempt them to do otherwise. A lawyer should not pay or agree to pay a non-expert witness an amount in excess of reimbursement for expenses and financial loss incident to being a witness; however, a lawyer may pay or agree to pay an expert witness a reason able fee for services as an expert. But in no event should a lawyer pay or agree to pay a contingent fee to any witness. A lawyer should exercise reasonable diligence to see that the client and lay associates conform to these standards.”

Relevant Ethics Opinions

Contingent Fee For Private Investigator: Assoc. of the Bar of the City of New York, Formal Op. No. 1993-2, 1993 WL 765495 (December 15, 1993): A lawyer representing a client in a will contest may not hire a private investigator on a contingent fee basis if the private investigator will be testifying as a witness in the proceeding because NY DR 7-109(C) prohibits a lawyer from paying, offering to pay, or acquiescing in the payment of a witness contingent on the outcome of a case.

Relevant Cases

Disbarment Imposed: In re Schapiro, 144 A.D. 1, 128 N.Y.S. 852 (1st Dept. 1911) (disbarment for paying contingent fees to witnesses).

Disqualification of Interested Lawyer: In Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72-73 (2d Cir. 1990), aff'd, 962 F.2d 2 (2d Cir.), cert. denied, 505 U.S. 1222 (1992), a lawyer was disqualified from representing plaintiffs in a suit against a law firm because the lawyer was a necessary witness and had entered into a contract to receive one-sixth of funds recovered from the law firm.

Award of Expert Fees by Court Not Deemed "Contingent": In Seigal v. Merrick, 619 F.2d 160 (2d Cir. 1980), a share holder in Twentieth Century Fox successfully challenged the settlement of a derivative action. The district court awarded the shareholder attorney fees and $12,225 in expert’s fees. Twentieth Century Fox appealed the award of expert witness fees on grounds that the shareholder could not have paid the expert unless his challenge was successful. In essence, Fox argued, the expert’s compensation was contingent, in violation of NY DR 7-109(C). The Second Circuit rejected this argument because the expert’s compensation of $150 per hour was “not contingent on its face.” The court stated that although it might be true that the expert would not have been paid if the shareholder’s action had failed, the only contingency was whether the expert would then have tried to collect his fee. No violation of NY DR 7-109(C) was found. See also Pappalardo v. Parklane Hosiery Co., 67 A.D.2d 526, 415 N.Y.S.2d 878 (2nd Dept.), appeal dismissed, 421 N.Y.S.2d 1028 (1979) (expert witness' agreement to accept court awarded fees was not void under public policy against contingency fees).

Ban on Contingent Experts Fees Upheld: In Person v. Association of the Bar of the City of New York, 554 F.2d 534 (2d Cir.), cert. denied, 434 U.S. 924, 98 S. Ct. 403, (1977), plaintiff was an attorney representing ten plaintiffs in a $300 million antitrust suit against General Motors. He sought a declaratory judgment asserting that as a result of NY DR 7-109(C) he was unable to prosecute the suit because neither he nor his clients could afford adequate experts on accounting, franchising, financing, and economics unless they were permitted to retain experts on a contingent fee basis. The district court agreed and declared NY DR 7-109(C) unconstitutional under the Fourteenth Amendment. The Second Circuit reversed, holding that the legislature had made a rational judgment that contingent fees could lead to false testimony and unfair results.

3.4:400   Knowing Disobedience to Rules of Tribunal

Primary New York References: DR 7-106, EC 7-22, 9-4, 7-25, 7-38
Background References: ABA Model Rule 3.4(c), Other Jurisdictions
Commentary: ABA/BNA § 61:1231, ALI-LGL § 165, Wolfram § 12.1
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

NY DR 7-106(A) prohibits a lawyer from disregarding a tribunal’s standing rules or its ruling in a particular case, or from advising a client to do so, but allows a lawyer to bring a good faith challenge to any such rule or ruling. A court or other tribunal that is aware of such a violation can take whatever action it considers appropriate under its own authority, so violations of NY DR 7-106 are seldom reported to disciplinary authorities.

NY DR 7-106(C)(5) provides that a lawyer shall not "[f]ail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of the intent not to com ply.” The purpose of this rule is to prevent unfair ambushes based on violations of established but unwritten rules. This rule refers only to customs that are not written into court rules, since violating a court’s written rules is covered by NY DR 7-106(A).

NY DR 7-106(C)(7) prohibits a lawyer from "[i]ntentionally or habitually violat[ing] any rule of procedure or evidence."

Relevant Ethical Considerations

NY EC 7-22 provides: "Respect for judicial rulings is essential to the proper administration of justice; however, a litigant or lawyer may, in good faith and within the framework of the law, take steps to test the correctness of a ruling of a tribunal."

NY EC 9-4 provides: "Because the very essence of the legal system is to provide procedures by which matters can be presented in an impartial manner so that they may be decided solely upon the merits, any statement or suggestion by a lawyer that the lawyer can or would attempt to circum vent those procedures is detrimental to the legal system and tends to undermine public confidence in it."

NY EC 7-25 provides, in pertinent part: "Rules of evidence and procedure are designed to lead to just decisions and are part of the framework of the law. Thus while a lawyer may take steps in good faith and within the framework of the law to test the validity of rules, the lawyer is not justified in consciously violating such rules and should be diligent in his or her efforts to guard against unintentional violations of them.

NY EC 7-38 provides in pertinent part: "The lawyer should follow local customs of courtesy and practice unless he or she gives timely notice to opposing counsel of the intention not to do so."

3.4:500   Fairness in Pretrial Practice

Primary New York References:
Background References: ABA Model Rule 3.4(d), Other Jurisdictions
Commentary: ABA/BNA § 61:701, ALI-LGL § 166, Wolfram § 12.4
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

There is no direct counterpart to Rule 3.4(d) in the NY Code. However, on September 17, 1997, the New York Courts adopted Standards of Civility, a nonbinding set of "guide lines intended to encourage lawyers, judges and court personnel to observe principles of civility and decorum..." With respect to fairness in pretrial discovery practice, these Standards declare:

"II.   When consistent with their clients' interests, lawyers should cooperate with opposing counsel in an effort to avoid litigation and to resolve litigation that has already commenced.

A. Lawyers should avoid unnecessary motion practice or other judicial intervention by negotiating and agreeing with other counsel whenever it is practicable to do so.

B. Lawyers should allow themselves sufficient time to resolve any dispute or disagreement by communicating with one another and imposing reasonable and meaningful deadlines in light of the nature and status of the case.

   * * *

VI. A lawyer should not use any aspect of the litigation process, including discovery and motion practice, as a means of harassment or for the purpose of unnecessarily prolonging litigation or increasing litigation expenses.

A. A lawyer should avoid discovery that is not necessary to obtain facts or perpetuate testimony or that is designed to place an undue burden or expense on a party.

B. A lawyer should respond to discovery requests reasonably and not strain to interpret the request so as to avoid disclosure of relevant and non-privileged information."

3.4:600   Improper Trial Tactics

Primary New York References: DR 7-106(C), DR 5-101(B), DR 5-102(A)-(B), EC 7-24, EC 7-25
Background References: ABA Model Rule 3.4(e), Other Jurisdictions
Commentary: ABA/BNA § 61:1361, ALI-LGL § 167, Wolfram § 12.1
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

NY DR 7-106(C) lists seven kinds of conduct that are ethically improper. A court that is aware of such conduct has power to punish it, so it is unlikely that a court would refer such conduct to a disciplinary authority except in cases of egregious or repeated violations. Accordingly, there are few reported disciplinary cases based solely on NY DR 7-106(C).

NY DR 7-106(C)(1)-(4) discussed below, identify four specific potential trial abuses. Specifically, NY DR 7-106(C)(1)-(4) provides:

In appearing as a lawyer before a tribunal, a lawyer shall not:

1. State or allude to any matter that he or she has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.

2.Ask any question that he or she has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person.

3. Assert personal knowledge of the facts in issue, except when testifying as a witness.

4. Assert a personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but the lawyer may argue, upon analysis of the evidence, for any position or conclusion with respect to the matters stated herein.

NY DR 7-106(C)(1) bolsters the rules of evidence by prohibiting lawyers from using irrelevant or inadmissible evidence. However, it should not be a violation of this subdivision to discuss such matters in an informal setting, such as a settlement conference in a judge’s chambers.

NY DR 7-106(C)(2) extends the reach of subdivision (1) by making it a separate violation to ask irrelevant questions to embarrass or degrade a witness or anyone else. Usually, this subdivision applies to cross-examination, but it could also apply to direct examination.

NY DR 7-106(C)(3) prohibits an attorney from using the attorney’s personal credibility to bolster the credibility of his or her clients unless the attorney is sworn as a witness. However, a lawyer who is sworn as a witness must comply with NY DR 5-101(B) and NY DR 5-102(A)-(B), which may disqualify a lawyer-witness from continuing to represent the client.

NY DR 7-106(C)(4) is related to subdivision (3) but applies to statements of personal opinion rather than to facts.

In addition, with respect to trial practice generally, NY DR 7-106(C)(5)-(7) proscribe the failure to follow "known local customs" [NY DR 7-106(C)(5)]; engaging in "undignified or discourteous conduct" [(C)(6)] or intentionally or habitually violating any rule of procedure or evidence [(C)(7)]. See Section 3.4:400 supra.

Relevant Ethical Considerations

NY EC 7-24 provides: "In order to bring about just and informed decisions, evidentiary and procedural rules have been established by tribunals to permit the inclusion of relevant evidence and argument and the exclusion of all other considerations. The expression by a lawyer of a personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused is not a proper subject for argument to the trier of the fact. It is improper as to factual matters because admissible evidence possessed by a lawyer should be presented only as sworn testimony. It is improper as to all other matters because, were the rule otherwise, the silence of a lawyer on a given occasion could be construed unfavorably to the client. However, a lawyer may argue, based on the lawyer’s analysis of the evidence, for any position or conclusion with respect to any of the foregoing matters."

NY EC 7-25 provides: "Rules of evidence and procedure are designed to lead to just decisions and are part of the framework of the law. Thus, while a lawyer may take steps in good faith and within the framework of the law to test the validity of rules, the lawyer is not justified in consciously violating such rules and should be diligent in his or her efforts to guard against unintentional violation of them. As examples, a lawyer should subscribe to or verify only those pleadings that the lawyer believes are in compliance with applicable law and rules; a lawyer should not make any prefatory statement before a tribunal in regard to the purported facts of the case on trial unless the lawyer believes that the statement will be supported by admissible evidence; a lawyer should not ask a witness a question solely for the purpose of harassment or embarrassment; and a lawyer should not by subterfuge put before a jury matters which it cannot properly consider."

Relevant Cases

Lending Credibility to Client: In a personal injury case, Caraballo v. City of New York, 86 A.D.2d 580, 446 N.Y.S.2d 318 (1st Dept. 1982), the court reversed the judgment in favor of plaintiff because of the grossly improper and inflammatory summation by plaintiff's attorney. The summation included personal attacks on appellant's attorney, unsubstantiated charges of perjury and subordination of perjury, racial overtones, and assertions of personal knowledge and personal opinion as to the case and the credibility of witnesses. Plaintiff’s lawyer violated NY DR 7-106(C)(3) by vouching for his client’s expert, “I am familiar with Dr. Budabin and his reputation as an eminent neurologist.” The lawyer also violated NY DR 7-106(C)(4) several times during his closing argument. Vouching for a former drug-addict who testified for his client, the lawyer said, “I would invite him to my home for dinner. I see nothing wrong with him.” About the opposing expert, he said, “They bring in a phony doctor for a price . . . How much do you charge for perjury, doctor?”

3.4:700   Advising Witness Not to Speak to Opposing Parties

Primary New York References: DR 1-102(A)(5), DR 7-104(A)(2), DR 7-109(B), EC 7-18
Background References: ABA Model Rule 3.4(f), Other Jurisdictions
Commentary: ABA/BNA § , ALI-LGL § 176, Wolfram § 12.4.2
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

Two NY Disciplinary rules capture the prohibition in Model Rule 3.4(f) against advising a witness not to speak to opposing parties. First, NY DR 7-104(A)(2) provides that “[d]uring the course of the representation of a client a lawyer shall not . . . [g]ive advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client.” Second, NY DR 7-109(B) prohibits a lawyer from advising anyone, client or non-client, to hide or leave the jurisdiction in order to avoid appearing as a witness. See also NY DR 1-102(A)(5) (forbidding a lawyer from engaging in conduct "prejudicial to the administration of justice.")

Relevant Ethical Considerations

NY EC 7-18 provides that "[i]f one is not represented by counsel, a lawyer representing another may have to deal directly with the unrepresented person; in such an instance, a lawyer should not undertake to give advice to the person who is not represented by a lawyer, except to advise the person to obtain a lawyer."

Cross References

See also Model Rule 4.3 (“Dealing with Unrepresented Persons”).

3.5   Rule 3.5 Impartiality and Decorum of the Tribunal

3.5:100   Comparative Analysis of New York Rule

Primary New York References: DR 7-106(C)(6), DR 7-108, DR 7-110(B)
Background References: ABA Model Rule 3.5, Other Jurisdictions
Commentary: ABA/BNA § , ALI-LGL § 176, Wolfram § 12.4.2
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

NY DR 7-108(A) and (B), which govern an attorney’s communications with or investigation of jurors before, during, or after a trial, and NY DR 7-110(B), which prohibits lawyers from improperly influencing judges or court personnel, incorporate the principles expressed in paragraphs (a) and (b) of Model Rule 3.5.

NY DR 7-106(C)(6), which prohibits “undignified or discourteous conduct that is degrading to a tribunal,” is similar to paragraph (c) of Model Rule 3.5.

3.5:101 Model Rule Comparison

NY DR 7-108, NY DR 7-110 and NY DR 7-106(C)(6) are identical to the Model Code.

3.5:102      Model Code Comparison

[The discussion of this topic has not yet been written.]

3.5:200   Improperly Influencing a Judge, Juror, or Other Court Official

Primary New York References: DR 7-110(A), EC 7-34
Background References: ABA Model Rule 3.5(a), Other Jurisdictions
Commentary: ABA/BNA § 61:801, 101:702, ALI-LGL §§ 173, 175, Wolfram §§ 11.3, 11.4
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

[The discussion of this topic has not yet been written.]

3.5:210      Improperly Influencing a Judge

Relevant Disciplinary Rules

NY DR 7-110(A) provides: “A lawyer shall not give or lend anything of value to a judge, official, or employee of a tribunal except as permitted by § C(4) of Canon 5 of the Code of Judicial Conduct, but a lawyer may make a contribution to the campaign fund of a candidate for judicial office in conformity with § B(2) under Canon 7 of the Code of Judicial Conduct.”

The first provision of the Code of Judicial Conduct to which NY DR 7-110(A) refers is Canon 5, § C(4), which provides as follows:

Neither a judge nor a member of the judge’s family residing in the judge’s household should accept a gift, bequest, favor, or loan from anyone except as follows:

1. a judge may accept a gift incident to public testimonial to him or her; books supplied by publishers on a complimentary basis for official use; or an invitation to the judge and his or her spouse to attend a bar-re lated function or activity devoted to the improvement of the law, the legal system, or the administration of justice;

2. a judge or a member of the judge’s family residing in the judge’s household may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a wedding or engagement gift; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants;

3. a judge or a member of his or her family residing in his or her household may accept any other gift, bequest, favor, or loan only if the donor is not a party or other person whose interests have come or are likely to come before him or her, and, if its value exceeds $100, the judge reports it in the same manner as the judge reports compensation in Canon 6C.

Section C(4) of Canon 5 is broader than NY DR 7-110(A) because Section C(4) prohibits gifts or loans not only to a judge but also to “a member of his or her family residing in his or her household.”

The next provision of the Code of Judicial Conduct to which NY DR 7-110(A) refers is Canon 7, § B(2), which provides as follows:

A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates should not himself or herself solicit or accept campaign funds, or solicit publicly stated support, but he or she may establish committees of responsible persons to secure and manage the expenditure of funds for his or her campaign and to obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from lawyers. A candidate’s committees may solicit funds for the candidate’s campaign no earlier than six months before a primary election and no later than six months after the last election in which the candidate participates during the election year. A candidate should not use or permit the use of campaign contributions for the private benefit of himself or herself or members of his or her family.

The bounds of Canon 7, § B(2) are more fully explained in Section 100.7 of the Rules of the Chief Administrator of the New York Courts. NY DR 7-110(A) should also be read in conjunction with state and federal statutes that prohibit bribery, because some gifts or loans to judges might resemble bribes.

Relevant Ethical Considerations

NY EC 7-34 provides: "The impartiality of a public servant in our legal system may be impaired by the receipt of gifts or loans. A lawyer, therefore, is never justified in making a gift or a loan to a judge, a hearing officer, or an officer or employee of a tribunal except as permitted by § C(4) of Canon 5 of the Code of Judicial Conduct, but a lawyer may make a contribution to the campaign fund of a candidate for judicial office in conformity with § B(2) under Canon 7 of the Code of Judicial Conduct."

Relevant Ethics Opinions

Hosting Holiday Party for Judges: N.Y. State Bar Op. 706 (1998): Under NY DR 7-110(A), which prohibits a lawyer from lending anything of value to a judge, official or employee except as permitted by Canon § 5C(4) of the old Code of Judicial Conduct, a lawyer may not ethically host a holiday party for all judges of the local court and their law clerks where the only the guests invited are attorneys of the lawyer's law firm. Although Canon § 5C(4) permitted a judge to accept ordinary social hospitality, which has been deemed to include invitations to events such as a lunch, law office opening, an attorney's birthday party or a golf outing, the proposed affair is "out of the ordinary in expense and lavishness and is not permissible."

Relevant Cases

Payment to Court Employee to Expedite Proceeding: In In re Goffen, 103 A.D.2d 197, 479 N.Y.S.2d 222 (1st Dept. 1984), an attorney, while representing the plaintiff in an Article 78 proceeding, met with an employee of the Supreme Court of New York County and offered to pay the employee $250 if he would expedite a decision in the matter. The court reached a decision about two months later and the attorney paid the court employee $75. The payment was not intended to influence the court’s decision. Nevertheless, the attorney’s conduct violated NY DR 7-110(A) and he was suspended for two years, even though he was 74 years old and had been practicing for 43 years without facing any previous disciplinary charges. (The Hearing Panel had recommended disbarment and the dissent would have followed that recommendation.)

3.5:220      Improperly Influencing a Juror

Relevant Disciplinary Rules

NY DR 7-108 governs an attorney’s communications with or investigation of jurors before, during, or after a trial. Specifically, NY DR 7-108 provides:

1. Before the trial of a case a lawyer connected therewith shall not communicate with or cause another to communicate with anyone the lawyer knows to be a member of the venire from which the jury will be selected for the trial of the case.

2. During the trial of the case:

a. A lawyer connected therewith shall not com municate with or cause another to communicate with any member of the jury.

b. A lawyer who is not connected therewith shall not communicate with or cause another to communicate with a juror concerning the case.

3. DR 7-108(A) or (B) do not prohibit a lawyer from communicating with members of the venire or jurors in the course of official proceedings.

4. After discharge of the jury from further consideration of a case with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence the juror’s actions in future jury service.

5. A lawyer shall not conduct or cause, by financial support or otherwise, another to conduct a vexatious or harassing investigation of either a member of the venire or a juror.

6. All restrictions imposed by DR 7-108 upon a law yer also apply to communications with or investigations of members of a family of a member of the venire or a juror.

7. A lawyer shall reveal promptly to the court improper conduct by a member of the venire or a juror, or by another toward a member of the venire or a juror or a member of his or her family of which the lawyer has knowledge.

All of the provisions of NY DR 7-108 apply equally to civil and criminal jury trials. The rule has no application to non-jury matters. In addition, NY DR 7-108 should be read in conjunction with any applicable court rules regarding communications with and investigation of jurors.

Relevant Ethical Considerations

NY EC 7-29 provides: "To safeguard the impartiality that is essential to the judicial process, members of the venire and jurors should be protected against extraneous influences. When impartiality is present, public confidence in the judicial system is enhanced. There should be no extra judicial communication with members of the venire prior to trial or with jurors during trial or on behalf of a lawyer connected with the case. Furthermore, a lawyer who is not connected with the case should not communicate with or cause another to communicate with a member of the venire or a juror about the case. After the trial, communication by a lawyer with jurors is permitted so long as the lawyer refrains from asking questions or making comments that tend to harass or embarrass the juror or to influence actions of the juror in future cases. Were a lawyer to be prohibited from communication after trial with a juror, the lawyer could not ascertain if the verdict might be subject to legal challenge, in which event the invalidity of a verdict might go undetected. When an extrajudicial communication by a lawyer with a juror is permitted by law, it should be made considerately and with deference to the personal feelings of the juror."

NY EC 7-30 provides: "Vexatious or harassing investigations of members of the venire or jurors seriously impair the effectiveness of our jury system. For this reason, a lawyer or anyone on the lawyer’s behalf who conducts an investigation of members of the venire or jurors should act with circumspection and restraint."

NY EC 7-31 provides: "Communications with or investigations of members of families of members of the venire or jurors by a lawyer or by anyone on the lawyer’s behalf are subject to the restrictions imposed upon the lawyer with respect to communications with or investigations of members of the venire and jurors."

NY EC 7-32 provides: "Because of the duty to aid in pre serving the integrity of the jury system, a lawyer who learns of improper conduct by or towards a member of the venire, a juror, or a member of the family of either should make a prompt report to the court regarding such conduct."

Relevant Ethics Opinions

Post-Trial Interviews of Jurors: Nassau County Bar Op. 96-3 (1996): During voir dire at a jury trial, the attorney learned the full name and the town or village in which each juror resided. Now that the trial is over, the inquiring attorney wishes to send a letter to the jurors asking them to meet with him to discuss the trial and the jury's deliberations. The purpose of the interviews with the jurors is to obtain information for use in a book or other publication that the inquiring attorney intends to write concerning the particular trial. The letter to the jurors would advise them that they have the right not to communicate with the attorney. May the attorney carry out this plan? Yes, subject to any applicable statutes, court rules, or court customs. Under DR 7-108(D)-(G), an attorney may send a letter to jurors after they are discharged asking them to talk with him about the trial, provided he does not harass or embarrass the jurors or attempt to influence their actions in future jury service. However, if the inquiring attorney obtains knowledge of any improper conduct by or toward a juror, a venireman, or a member of the family of a juror or venire member, DR-7-108(G) will obligate the attorney to report that misconduct.

Scope of Permissible Post-Trial Inquiry: N.Y. State Bar Op. 246 (1972): Under NY DR 7-108 and NY EC 7-29, an attorney was permitted, following the discharge of a jury to "question a juror concerning the views of the juror or the panel as a whole about the case or any other matter relating to the jury's verdict."

3.5:300   Improper Ex Parte Communication

Primary New York References: DR 7-110(B)
Background References: ABA Model Rule 3.5(b), Other Jurisdictions
Commentary: ABA/BNA § 61:801, 61:903, ALI-LGL § 172, Wolfram § 11.3.3
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

NY DR 7-110(B) expresses the traditional ban on ex parte communications with a judge about the merits of a case. The four subdivisions of NY DR 7-110(B) delineate four instances in which a lawyer may properly communicate with a judge about the merits of a case.

NY DR 7-110(B) provides:

In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending, except:

1.In the course of official proceedings in the cause.

2. In writing if the lawyer promptly delivers a copy of the writing to opposing counsel or to an adverse party who is not represented by a lawyer.

3. Orally upon adequate notice to opposing counsel or to an adverse party who is not represented by a lawyer.

4. As otherwise authorized by law, or by Section A(4) under Canon 3 of the Code of Judicial Conduct.

NY DR 7-110(B)(2) allows lawyers to communicate with the court in writing as long as a copy is promptly given to the other parties. It thus echoes court rules that allow lawyers to file motions as long as they serve copies on other parties. NY DR 7-110(B)(4) allows lawyers to argue the merits of their cases to judges outside of “official proceedings” and apart from writings and oral arguments permitted under subdivisions (B)(2) and (B)(3) if the communications are otherwise “authorized by law” or are permitted under Canon 3, § A(4) of the Code of Judicial Conduct which provides:

A judge should accord to every person who is legally interested in a proceeding, or his or her lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.

Relevant Ethical Considerations

NY EC 7-35 provides: "All litigants and lawyers should have access to tribunals on an equal basis. Generally, in adversary proceedings a lawyer should not communicate with a judge relative to a matter pending before, or which is to be brought before, a tribunal over which the judge presides in circumstances which might have the effect or give the appearance of granting undue advantage to one party. For example, a lawyer should not communicate with a tribunal by a writing unless a copy thereof is promptly delivered to opposing counsel or to the adverse party if such party is not represented by a lawyer. Ordinarily an oral communication by a lawyer with a judge or hearing officer should be made only upon adequate notice to opposing counsel, or if there is none, to the opposing party. A lawyer should not condone or participate in private importunities by another with a judge or hearing officer on behalf of the lawyer or the client."

Relevant Ethics Opinion

Contact with Government Agencies: Assoc. of the Bar of the City of New York, Comm. on Prof. Ethics, Op. 1988-8 (1988) (under NY DR 7-104(A)(1), a lawyer whose client is in a dispute with a government agency may contact the agency head if the lawyer notifies the government’s counsel of the intended contact and furnishes copies of the communication to government counsel).

Relevant Cases

Failure to Provide Opposing Counsel Copy of Memorandum: In B.G. Equipment Co. v. American Insurance Co., 61 A.D.2d 247, 402 N.Y.S.2d 479 (4th Dept.), aff'd, 413 N.Y.S.2d 922 (1978), plaintiff won a judgment exceeding $104,000 in an action on a bond. The defendant appealed, partly on grounds that the plaintiff’s counsel submitted a trial memorandum to the court without furnishing a copy to the defendant. The plaintiff argued that his conduct was in accordance with local custom and practice, but under NY DR 7-110(B)(2) “a copy should have been furnished to the defendant.” However, the plaintiff’s failure to give a copy to the defendant was not grounds for a mistrial be cause the court did not consider the trial memorandum in reaching its decision, and the defendant had ample time to respond before the court reached its decision. But see People v. Gregorio, 110 Misc.2d 1058, 443 N.Y.S.2d 589 (Sup. Ct. N.Y. County 1981) (statutory procedure permitted defendant to submit ex parte presentence material to influence judge’s sentencing decision).

3.5:400   Intentional Disruption of a Tribunal

Primary New York References: DR 7-106(C)(6)
Background References: ABA Model Rule 3.5(c), Other Jurisdictions
Commentary: ABA/BNA § 61:901, ALI-LGL § 165, Wolfram § 12.1.3
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

NY DR 7-106(C)(6) prohibits lawyers from engaging “in undignified or discourteous conduct which is degrading to a tribunal.”

Relevant Cases

Sanctions for Abusive Conduct: See Matter of Pollack, 238 A.D.2d 1, 664 N.Y.S.2d 772 (1st Dep't 1997) ("by characterizing opposing counsel as a 'pimp' and stating a desire, thwarted only by age, to 'beat the living daylights' out of counsel, respondent engaged in undignified conduct which was degrading to a tribunal" in violation of NY DR 7-106(C)(6)); Corsini v. U-Haul International, Inc., 212 A.D.2d 288, 630 N.Y.S.2d 45 (1st Dept. 1995) (pro se litigant’s behavior, preceding and during pretrial deposition, including making personal attacks against defense counsel, refusing to answer numerous relevant and appropriate questions, and giving argumentative responses, was so lacking in professionalism and civility that dismissal was only appropriate remedy); In re Schiff, 190 A.D.2d 293, 599 N.Y.S.2d 242 (1st Dept. 1993) (lawyer publicly censured for directing vulgar, obscene and sexist epithets to opposing counsel at deposition); In re Kavanagh, 189 A.D.2d 521, 597 N.Y.S.2d 24 (1st Dept. 1993) (remarks in court papers attempting to link opposing counsel to organized crime constituted undignified or discourteous conduct degrading to tribunal and warranted public censure); Candolfi v. New York City Transit Authority, 156 Misc.2d 964, 595 N.Y.S.2d 656 (Civ. Ct. Kings County 1992) (attorney’s abusive behavior toward court and opposing counsel undertaken primarily to harass and maliciously injure warranted monetary sanction).

3.6   Rule 3.6 Trial Publicity

3.6:100   Comparative Analysis of New York Rule

Primary New York References: DR 7-107
Background References: ABA Model Rule 3.6, Other Jurisdictions
Commentary:
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

3.6:101      Model Rule Comparison

NY DR 7-107(A) is very similar to Rule 3.6(a): both adopt the identical standard of "a substantial likelihood of materials prejudicing an adjudicature proceeding" to de scribe impermissible conduct. NY DR 7-107(B), however, retains the examples of six kinds of materially prejudicial statements, which were deleted from Rule 3.6 as amended on August 10, 1994. NY DR 7-107(C), which describes various statements that a lawyer ordinarily may make about civil and criminal matters, is substantially the same as Rule 3.6(b). However, NY DR 7-107(C)(7), unlike Model Rule 3.6(b)(7), permits a lawyer in a criminal matter to de scribe the "physical evidence seized, other than as contained only in a confession, admission or statement." There is no New York corollary to the provision for a limited reply to adverse publicity contained in Rule 3.6(c). NY DR 7-107(A), which covers any lawyer participating in or "associated with" a criminal or civil matter, effectively incorporates the provisions of Rule 3.6(d).

3.6:102      Model Code Comparison

NY DR 7-107(A) and (B) generally track the Model Code but include some additional provisions and some different wording. NY DR 7-107 was substantially changed in 1990 to conform to the text of Model Rule 3.6. The older version was much longer, more detailed and more similar to ABA Model Code 7-107.

For example, unlike NY DR 7-107, the ABA Model Code DR 7-107 does not explicitly adopt the standard of "substantial likelihood of materially influencing an adjudicative pro ceeding." Instead, the ABA Model Code DR 7-107(A), (B) and (C) lists several types of statements that are permissible and impermissible. These particular examples are substantially similar to the examples set forth in NY DR 7-107(B) and (C).

3.6:200   Improper Extrajudicial Statements

Primary New York References: DR 7-107(B)
Background References: ABA Model Rule 3.6(a), Other Jurisdictions
Commentary: ABA/BNA § 61:1001, ALI-LGL § 169, Wolfram § 12.2
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

NY DR 7-107(A) and (B) define and describe the types of statements which constitute impermissible trial publicity. NY DR 7-107(A) states the general principle concerning trial publicity as follows:

[A] lawyer participating in or associated with a criminal or civil matter shall not make an extra judicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding. (emphasis added).

NY DR 7-107(B) provides:

A statement ordinarily is likely to prejudice materially an adjudicative proceeding when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement relates to:

1. The character, credibility, reputation, or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness.

2. In a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or con tents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement.

3. The performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence ex pected to be presented.

4. Any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration.

5. Information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial.

6. The fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.

NY DR 7-107(B) does not reach as broadly as Section (A). Section A applies to any “criminal or civil matter,” but Section (B) applies only to “a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration.” Thus, Section (B) does not restrict a lawyer handling a civil matter not before a jury.

Relevant Ethical Considerations

NY EC 7-33 provides: "A goal of our legal system is that each party shall have his or her case, criminal or civil, adjudicated by an impartial tribunal. The attainment of this goal may be defeated by dissemination of news or comments which tend to influence judge or jury. Such news or comments may prevent prospective jurors from being impartial at the outset of the trial and may also interfere with the obligation of jurors to base their verdict solely upon the evidence admitted in the trial. The release by a lawyer of out-of-court statements regarding an anticipated or pending trial may improperly affect the impartiality of the tribunal. For these reasons, standards for permissible and prohibited conduct of a lawyer with respect to trial publicity have been established."

Relevant Ethics Opinions

Prosecutor's Statements Concerning Evidence Seized: NYSBA Comm. on Prof. Ethics, Op. No. 620, 1991 WL 164534 (March 21, 1991) permits a prosecutor to issue a press release reporting the physical evidence seized, but under NY DR 7-107(B)(3), the prosecutor may not issue a press release stating how the prosecution intends to use the seized evidence at trial. Such a statement lies outside the safe harbor of NY DR 7-107(C) and is ordinarily likely to materially prejudice the adjudicative proceedings.

3.6:300   Permissible Statements

Primary New York References: DR 7-107
Background References: ABA Model Rule 3.6(b), Other Jurisdictions
Commentary: ABA/BNA § 69:1001, ALI-LGL § 169, Wolfram § 12.2
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

NY DR 7-107(C) creates a “safe harbor” for attorneys who wish to communicate with the press about their cases. The rule identifies six kinds of statements that are usually permissible under NY DR 7-107(A) in civil and criminal matters and law, and four kinds of statements that will usually pass muster in criminal cases. Specifically, NY DR 7-107(C) states:

Provided that the statement complies with [NY] DR 7-107(A), a lawyer involved with the investigation or litigation of a matter may state the following without elaboration:

1. The general nature of the claim or de fense.

2. The information contained in a public record.

3. That an investigation of the matter is in progress.

4. The scheduling or result of any step in litigation.

5. A request for assistance in obtaining evidence and information necessary thereto.

6. A warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest.

7. In a criminal case:

a. The identity, age, residence, occupation, and family status of the accused.

b. If the accused has not been apprehended, information necessary to aid in apprehension of that person.

c. The fact, time and place of arrest, resistance, pursuit, use of weapons, and a description of physical evidence seized, other than as contained only in a confession, admission, or statement.

d. The identity of investigating and arresting officers or agencies and the length of the investigation.

Relevant Ethics Opinions

Prosecutor's Statement Concerning Evidence Seized: NYSBA Comm. on Prof. Ethics, Op. No. 620, 1991 WL 164534 (March 21, 1991) permits a prosecutor to issue a press release reporting the physical evidence seized under NY DR 7-107(C)(7)(c), provided the statement complies with the general rule of NY DR 7-107(A). However, a press release stating how the prosecutor intends to use the seized evidence at trial would fall outside the safe harbor of NY DR 7-107(C).

Relevant Cases

Information Already in the Public Domain: See In re Sullivan 185 A.D.2d 440, 586 N.Y.S.2d 322 (3d Dept. 1992) (dismissing disciplinary charges against lawyer whose lawyer's televised statement merely recapitulated testimony already before jury and jury was frequently instructed not to view broadcast).

3.6:400   Responding to Adverse Publicity

Primary New York References:
Background References: ABA Model Rule 3.6(c), Other Jurisdictions
Commentary: ABA/BNA § 61:100l, ALI-LGL § 169, Wolfram § 12.2
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

There is no New York counterpart to this Model Rule.

3.7   Rule 3.7 Lawyer as Witness

3.7:100   Comparative Analysis of New York Rule

Primary New York References: DR 5-101, DR 5-102
Background References: ABA Model Rule 3.7, Other Jurisdictions
Commentary:
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

3.7:101      Model Rule Comparison

NY DR 5-101 and DR 5-102, together, offer a direct counter part to Model Rule 3.7. NY DR 5-101(B) and (C) restrict a lawyer’s right to accept a case where the lawyer may be called as a witness. NY DR 5-102 restricts a lawyer’s right to continue working on a case where the lawyer may be called as a witness.

Specifically NY DR 5-101(B) provides:

A lawyer shall not act, or accept employment that contemplates the lawyer’s acting, as an advocate before any tribunal if the lawyer knows or it is obvious that the lawyer ought to be called as a witness on behalf of the client, except that the lawyer may act as an advocate and also testify:

1. If the testimony will relate solely to an uncontested issue.

2. If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.

3. If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or the lawyer’s firm to the client.

4. As to any matter, if disqualification as an advocate would work a substantial hardship on the client because of the distinctive value of the law yer as counsel in the particular case.

NY DR 5-101(C) prohibits a lawyer or his firm from accepting employment when the lawyer knows or it is obvious that the lawyer will be called as a witness in a manner prejudicial to the client.

NY DR 5-102(A) applies when a lawyer who has already been retained learns that he or she may be called as a witness on behalf of a client and provides as follows: “If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer ought to be called as a witness on behalf of the client, the lawyer shall withdraw as an advocate before the tribunal, except that the lawyer may continue as an advocate and may testify in circumstances enumerated in [NY] DR 5-101(B)(1)-(4).”

NY DR 5-102(B) applies where a lawyer may be called as a witness against the client and provides as follows: “If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer or a lawyer in his or her firm may be called as a witness other than on behalf of the client, the lawyer may continue the representation until it is apparent that the testimony is or may be prejudicial to the client at which point the lawyer and the firm must withdraw from acting as an advocate before the tribunal.”

3.7:102      Model Code Comparison

NY DR 5-101(B) is virtually identical to the Model Code. There is no equivalent Section in the Model Code to NY DR 5-101(C). NY DR 5-102(A) is similar to the Model Code except that NY DR 5-102(A), unlike its Model Code counter part, does not disqualify an entire firm in the event that one attorney may be called to testify on behalf of the client. NY DR 5-102(B) is virtually identical to the Model Code.

3.7:200   Prohibition of Advocate as Witness

Primary New York References: DR 5-102
Background References: ABA Model Rule 3.7(a), Other Jurisdictions
Commentary: ABA/BNA § 61:501, ALI-LGL § 168, Wolfram § 7.5
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

NY DR 5-101(B) prohibits a lawyer from accepting a case where it is obvious that the lawyer should be called as a witness, except concerning certain enumerated matters, e.g., uncontested issues, matters of family or legal services rendered, or where disqualification would work a "substantial hardship" on the client. NY DR 5-102(A) requires a lawyer to “withdraw as an advocate before the tribunal” if it becomes apparent, after the case has been accepted, that the lawyer may be called as a witness in favor of a client.

NY DR 5-102(B) requires a lawyer and his firm to withdraw from acting as an advocate before a tribunal where it becomes apparent that the lawyer or his firm may be called as a witness and his testimony may be prejudicial to the client.

Relevant Ethical Considerations

See NY EC 5-9 and NY EC 5-10 .

Relevant Ethical Opinions

Arbitration Proceedings: NYSBA Comm. on Prof. Ethics, Op. No. 642, 1993 WL 57238 (February 12, 1993): (NY DR 5-101(B) also applies in arbitration proceedings.

Representation of Client of Former Firm in Malpractice Action Against Firm: NYSBA Comm. on Prof. Ethics, Op. No. 635, 1992 WL 348747 (September 23, 1992) (a lawyer may not represent a client of his former law firm in a legal malpractice action against his former firm if the lawyer might be called as a witness on behalf of the client).

Relevant Cases

Lawyer's Disqualification Not Waivable: MacArthur v. Bank of New York, 524 F. Supp. 1205 (S.D.N.Y. 1981): A client may not waive the protection of NY DR 5-101(B) by promising not to call the attorney as a witness. The "ostensible paternalism of disregarding such waivers" is justified by the circumstances, including the fact that the client will be guided in his decision by the very attorney whose continued representation is in question.

Disqualification Ordered Where Lawyer Was Potential Witness: See Kubin v. Miller, 801 F. Supp. 1101 (S.D.N.Y. 1992) (under NY DR 5-102(A), lawyer who personally drafted written agreements relevant to the action and had unique knowledge of the situation underlying the dispute was disqualified from representing corporate and individual defendants in action for fraud, conversion, breach of contract, and breach of fiduciary duty because the lawyer "ought to be called as a witness"); Fairview v. Old Westfield, L.P. v. European American Bank, 186 A.D.2d 238, 588 N.Y.S.2d 339 (2d Dept. 1992) (under DR 5-102(b), trial court properly disqualified law firm representing plaintiffs in action for breach of loan agreement, where partner in firm played major role in negotiation of loan agreement and would be called by witness for defendants, and where his testimony might be prejudicial to plaintiffs).

Disqualification Where Lawyer-Engineer Was Potential Witness: In Poughkeepsie v. W.R. Grace & Co., 158 A.D.2d 647, 552 N.Y.S.2d 35 (2d Dept. 1990), a law firm represented a city in litigation to recover the expenses of removing asbestos. A member of the law firm was also a structural engineer and had been previously hired as an engineer to supervise removal of asbestos from a city building. The defendant moved to disqualify the law firm pursuant to NY DR 5-101(B). The court granted motion because the lawyer-engineer was obviously a potential witness in the action.

Disqualified Lawyer May Conduct Settlement Negotiations: In Matter of O’Malley, 141 Misc.2d 863, 534 N.Y.S.2d 854 (Surr. Ct. Rensselaer County 1988), opposing counsel in probate proceedings was an essential subscribing witness to a contested will. Under NY DR 5-101(B), the lawyer-witness must be disqualified before pretrial discovery begins. However, the disqualified lawyer-witness may continue to conduct settlement negotiations up to the time that pre trial discovery begins.

Disqualification Denied Where Lawyer Not Shown to be Potential or Necessary Witness: In Johnson v. Johnson, 180 A.D.2d 530, 580 N.Y.S.2d 250 (1st Dept. 1992), a husband sought to modify a separation agreement. Pursuant to NY DR 5-102(B), the husband moved to disqualify the wife’s attorney on grounds that the husband and wife had met with the attorney before they signed the separation agreement. The court denied the motion because there was no reason to expect that the wife’s attorney would be called as a witness to clarify any prior dealings with the attorney on her behalf. In Matter of Moccio, 177 A.D.2d 627, 576 N.Y.S.2d 333 (2d Dept. 1991), the court refused to disqualify the lawyer for a party in a contested will case. The party had not waived the attorney-client privilege regarding her conversations with the attorney and the attorney’s testimony was not necessary.

Disqualification Denied Where Potential Testimony Not Demonstrated To Be Prejudicial: In Kirshon, Shron, Cornell & Teitelbaum, P.C. v. Savarese, 182 A.D.2d 911, 581 N.Y.S.2d 487 (3d Dept. 1992), an accounting firm sued its former clients for fees arising from the sale of two corporations. The accounting firm then subpoenaed an attorney in the defendants’ law firm (and his billing and telephone log) because the attorney had worked closely with one of the accounting firm’s principals in closing the underlying sale. The accounting firm also moved under NY DR 5-102(B) to disqualify the defendants’ law firm on grounds that the subpoenaed attorney would be a witness against his own client. The court denied the motion. The accounting firm failed to show that the subpoenaed attorney’s testimony was necessary to establish its cause of action, that the attorney’s records and testimony regarding his work on the underlying transaction would not be cumulative of other evidence to be presented by the accounting firm itself, and that the subpoenaed attorney’s testimony would be prejudicial to his clients.

Lawyer's Testimony Merely Cumulative: Parke-Hayden, Inc. v. Loews Theatre Management Corp., 794 F. Supp. 525 (S.D.N.Y. 1992): Pursuant to DR 5-102(B), defendant moved to disqualify the law firm representing the plaintiff on grounds that a lawyer in the firm ought to be called as a defense witness at trial regarding a material element of the plaintiff's case. The court denied the motion. The defendant failed to show that the lawyer-witness's testimony would be prejudicial to his client or that the lawyer-witness's testimony was necessary rather than merely cumulative.

Disqualification Denied for Lack of Proof of Prejudice: Martinez v. Suozzi, 186 A.D.2d 378, 588 N.Y.S.2d 175 (1st Dept. 1992): Under DR 5-102(B), there was no basis to disqualify the entire law firm representing the defendants simply because the plaintiff might call as a witness a member of the firm who represented the defendants at the closing of the transaction that led to the litigation. The plaintiff failed to identify the subject matter of the opposing lawyer's expected testimony and failed to show that the testimony would be prejudicial to the defendants.

Disqualification of Entire Law Firm Unnecessary: Kaplan v. Maytex Mills, Inc., 187 A.D.2d 565, 590 N.Y.S.2d 136 (2d Dept. 1992) As revised in 1990, NY DR 5-102(A) no longer disqualifies an entire law firm even if one attorney in the firm must testify on behalf of the client.

Lawyer's Testimony Regarding Matters of Formality Permitted: In Nadel & Sons Toy Corp. v. William Shaland Corp., 657 F. Supp. 133 (S.D.N.Y. 1987), an attorney was not disqualified under NY DR 5-101(B) from representing the plaintiff in a copyright trial just because the attorney might have been required to testify at trial concerning the registration of the plaintiff’s copyright. The registration of a copyright is ministerial in nature and the attorney’s testimony would relate solely to a formality.

3.7:300   An Affiliated Lawyer as Advocate (Imputed Disqualification)

Primary New York References: DR 5-101(C)
Background References: ABA Model Rule 3.7(b), Other Jurisdictions
Commentary: ABA/BNA § 61:501, ALI-LGL § 168, Wolfram § 7.5, 7.6
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

NY DR 5-101(C) bars an entire law firm from taking a case if any other party in the case may call any lawyer in the firm to give testimony that “might” harm the client. Specifically, NY DR 5-101(C) provides:

Neither a lawyer nor the lawyer’s firm shall accept employment in contemplated or pending litigation if the lawyer knows or it is obvious that the lawyer or another lawyer in the lawyer’s firm may be called as a witness other than on behalf of the client, and it is apparent that the testimony would or might be prejudicial to the client.

However, if a firm has accepted a case before learning that one of its lawyers may be called as a witness against the client, then the situation is governed by NY DR 5-102(B). NY DR 5-102(B) requires a lawyer to “withdraw from acting as an advocate before the tribunal” if, after the lawyer has already accepted a matter, it becomes apparent that either the lawyer or any other lawyer in the firm “may” be called by another party to testify in a way that “may” harm the client.

Relevant Ethical Considerations:

See NY EC 5-9 and NY EC 5-10.

Relevant Cases

Disqualification of Entire Firm Denied: Owen & Mandolfo, Inc. v. Davidoff of Geneva, Inc., 197 A.D.2d 370, 602 N.Y.S.2d 369 (1st Dept. 1993) (no disqualification of law firm in arbitration proceeding even though firm lawyer, who was closely involved in design and construction project at issue, would be testifying and colleague, who was of counsel to firm, would be handling proceeding). See also Parke-Hayden, Inc. v. Loews Theatre Management Corp., 794 F. Supp. 525 (S.D.N.Y. 1992) (denying motion pursuant to NY DR 5-102(B) to disqualify the law firm representing the plaintiff on grounds that a lawyer in the firm ought to be called as a defense witness at trial regarding a material element of the plaintiff’s case, where movant failed to show that the lawyer-witness’s testimony would be prejudicial to his client or that the lawyer-witness’s testimony was necessary rather than merely cumulative); Martinez v. Suozzi, 186 A.D.2d 378, 588 N.Y.S.2d 175 (1st Dept. 1992) (finding no basis to warrant disqualification of entire law firm under NY DR 5-102(B) where plaintiff might call as a witness a member of the firm who represented defendants at the closing of the transaction that led to the litigation; the plaintiff failed to identify the subject matter of the opposing lawyer’s expected testimony and failed to show that the testimony would be prejudicial to the defendants); Kubin v. Miller, 801 F. Supp. 1101 (S.D.N.Y. 1992) (declining to disqualify entire firm even though one of its lawyers was disqualified under NY DR 5-102(A)).

Disqualification of Law Firm Ordered: Fairview v. Old Westfield, L.P. v. European American Bank, 186 A.D.2d 238, 588 N.Y.S.2d 339 (2d Dept. 1992), the court properly disqualified the law firm representing the plaintiffs in an action alleging breach of a loan agreement. A partner in the disqualified law firm played a major role in negotiating the loan agreement at issue and would therefore be called as a witness for the defendants. Because the lawyer had made statements in various documents demonstrating that his testimony might be prejudicial to the plaintiffs, both he and his law firm were disqualified.

3.8   Rule 3.8 Special Responsibilities of a Prosecutor

3.8:100   Comparative Analysis of New York Rule

Primary New York References: DR 7-103(A), EC 7-13
Background References: ABA Model Rule 3.8, Other Jurisdictions
Commentary:
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

3.8:101      Model Rule Comparison

NY DR 7-103(A) and NY DR 7-103(B) contain two of the substantive provisions of Model Rule 3.8. Specifically, NY DR 7-103(A) sets forth the same probable cause requirement enunciated in Model Rule 3.8(a). EC's 7-13 and 7-14 also elucidate the ethical constraints on a prosecutor's discretion to institute charges. NY DR 7-103(B) enunciates the same disclosure requirements set forth in Model Rule 3.8(d). These disclosure obligations are also acknowledged in EC 7-13. The New York Code does not contain any direct counterpart to Model Rule 3.8(b), (c) or (e).

3.8:102      Model Code Comparison

NY DR 7-103(A) and (B) are identical to the Model Code.

3.8:200   The Decision to Charge

Primary New York References: DR 7-103(A)
Background References: ABA Model Rule 3.8(a), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

NY DR 7-103(A) prohibits a prosecutor from instituting criminal charges when he or she "knows or it is obvious that the charges are not supported by probable cause."

Relevant Cases

Good Faith Questioned Upon Dismissal of Indictment: People v. Gelfand, 131 Misc.2d 268, 499 N.Y.S.2d 573 (Sup. Ct. Kings County 1986) (granting the defendant’s motion to dismiss the indictment, court questioned the good faith of prosecutors and stated that under NY DR 7-103(A), as “officers of the Court, they had the responsibility of ensuring that a valid indictment was obtained in accordance with the applicable law.”)

3.8:300   Efforts to Assure Accused's Right to Counsel

Primary New York References:
Background References: ABA Model Rule 3.8(b), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10

The NY Code has no counterpart to this provision of Model Rule 3.8.

3.8:400   Seeking Waivers of Rights from Unrepresented Defendants

Primary New York References:
Background References: ABA Model Rule 3.8(c), Other Jurisdictions
Commentary: ABA/BNA § 6:601, ALI-LGL § 156, Wolfram § 13.10

The NY Code has no counterpart to this provision of Model Rule 3.8.

3.8:500   Disclosing Evidence Favorable to the Accused

Primary New York References: DR 7-103(B)
Background References: ABA Model Rule 3.8(d), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10.5

Relevant Disciplinary Rules

NY DR 7-103(B) requires the prosecutor to disclose to the defense the existence of any evidence known to negate the defendant's guilt, mitigate the degree of the offense or reduce the punishment.

Relevant Cases

Disclosure of Death of Complainant: In People v. Jones, 87 Misc.2d 931, 387 N.Y.S.2d 779 (Sup. Ct. Bronx County 1976), aff’d, 395 N.Y.S.2d 983 1977, aff’d, 404 N.Y.S.2d 85, cert. denied, 439 U.S. 846, 99 S. Ct. 145 (1978), defendants moved to withdraw their guilty pleas. At issue was whether the prosecutor was obligated to inform the defendants during plea negotiations that he had received a telephone call four days before the pleas were entered informing him that the complaining witness was dead. Under NY DR 7-103(B) and case law, the court held that the withheld information was not material to guilt or punishment.

Relevant Ethical Considerations

See NY EC 7-13

3.8:600   Monitoring Extrajudicial Statements by Law Enforcement Officials

Primary New York References:
Background References: ABA Model Rule 3.8(e), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10

The NY Code has no counterpart to this provision of Model Rule 3.8.

3.8:700   Issuing a Subpoena to a Lawyer

Primary New York References:
Background References: ABA Model Rule 3.8(f), Other Jurisdictions
Commentary: ABA/BNA § 55:1301, ALI-LGL § 156, Wolfram §

Relevant Commentary

See generally: Committee on Criminal Advocacy of the Bar Association of the City of New York, Issuance of Subpoenas upon Lawyers in Criminal Cases by State and Federal Prosecutors: A Call for Immediate Remedial Action (July 1985) (report).

3.8:800   Making Extrajudicial Statements

Primary New York References:
Background References: ABA Model Rule 3.8(g), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 169, Wolfram § 12.2.2

This subject is more fully discussed in Section 3.6:200, Improper Extrajudicial Statements.

3.8:900   Peremptory Strikes of Jurors

Primary New York References: EC 7-13
Background References: Other Jurisdictions
Commentary:

3.8:901   Prosecutorial Misconduct

Relevant Cases

Improper Prosecutorial Argument: In People v. Miller, 149 A.D.2d 439, 539 N.Y.S.2d 782 (2d Dept. 1989), the court reversed a defendant’s conviction on multiple counts of rape and sodomy based on the trial judge’s improper conduct. However, the prosecutor’s conduct could also have served as grounds for reversal. The prosecutor’s closing argument exceeded the bounds of legitimate advocacy, and the prosecutor’s improper attack on the defendant’s life style went beyond the evidence in the case. Citing NY EC 7-13, the court stated, “[w]e would remind prosecutors that their fundamental obligation is to seek justice, not merely to obtain a conviction.”

3.9   Rule 3.9 Advocate in Nonadjudicative Proceedings

3.9:100   Comparative Analysis of New York Rule

Primary New York References: DR 7-106(B)(2), DR 9-101(c), EC 7-15, EC 7-16, EC 8-4, EC 8-5
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary:
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canons 7and 9, et seq.

3.9:101      Model Rule Comparison

The requirements of Model Rule 3.9 are addressed by an ensemble of New York Rules and Ethical Considerations. NY DR 7-106(B)(2), which states that when representing a matter to a tribunal, "unless privileged or irrelevant, a lawyer shall disclose the identities of the clients the lawyer represents and of the persons who employed the lawyer" captures the disclosure requirement set forth in Model Rule 3.9. In addition, NY EC 7-15 states that "[i]n all appearances before administrative agencies, a lawyer should identify the lawyer, the client, if identity of the client is not privileged, and the representative nature of the lawyer's appearance. It is not improper, however, for a lawyer to seek from an administrative agency information available to the public without identifying the client." NY EC 7-16 extends the lawyer's obligation to disclose the lawyer's and client's identities to appearances in connection with proposed legislation. And EC 8-4 reiterates this requirement where an attorney seeks legislative or administrative changes. More generally, EC 8-5 prohibits any "fraudulent, deceptive, or otherwise illegal conduct by a participant in a proceeding before a tribunal or legislative body." Finally DR 9-101(C) prohibits a lawyer from stating or implying that he is able to improperly influence any tribunal, legislative body or public official.

3.9:102      Model Code Comparison

NY DR 7-106(B) is virtually identical to ABA Model Code DR 7-106(B).

3.9:200   Duties of Advocate in Nonadjudicative Proceedings

Primary New York References: DR 7-106(B)(2)
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary: ABA/BNA § , ALI-LGL § 164, Wolfram § 13.8

Relevant Cases

Privilege Exception to NY DR 7-106(B)(2): Ordinarily, the identity of a client is not privileged. United States v. Pape, 144 F.2d 778 (2d Cir.), cert. denied, 323 U.S. 752, 65 S. Ct. 86 (1944) (fact of retainer or identity of client are not privileged). However, a client's identity may be privileged if disclosure of the client's identity would reveal the client's possible involvement in a crime. For example, in D'Alessio v. Gilberg, 205 A.D.2d 8, 617 N.Y.S.2d 484 (2d Dept. 1994), a hit-and-run driver struck and killed the plaintiff's father. The driver hired an attorney who refused to reveal the client's name. The Supreme Court ordered the attorney to reveal his client's name, but the appellate court reversed, holding that an attorney whose client consulted him in confidence regarding a past crime could not be compelled to reveal the client's identity. If revealing a client's identity "would reveal the client's possible involvement in a crime in connection with that accident, which is the precise situation for which he sought legal advice," then the client's identity is protected by the attorney-client privilege.