skip navigation
search

End-of-life notice: American Legal Ethics Library

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

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

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


New York Legal Ethics

VI. PUBLIC SERVICE

6.1   Rule 6.1 Pro Bono Public Service

6.1:100   Comparative Analysis of New York Rule

Primary New York References:
Background References: ABA Model Rule 6.1, Other Jurisdictions
Commentary:

6.1:101      Model Rule Comparison

There is no counterpart to Model Rule 6.1 in the NY Code.

6.1:102      Model Code Comparison

There is no equivalent to Model Rule 6.1 in the Model Code.

6.1:200   Lawyer's Moral Obligation to Engage in Public Interest Legal Service

Primary New York References: EC 2-16, 2-25, 8-3
Background References: ABA Model Rule 6.1, Other Jurisdictions
Commentary: ABA/BNA § 91:6001, ALI-LGL § , Wolfram § 16.9
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 2 , et seq.

Relevant Ethical Considerations

NY EC 2-16 provides: Persons unable to pay all or a portion of a reasonable fee should be able to obtain necessary legal services, and lawyers should support and participate in appropriate activities designed to achieve that objective.

NY EC 2-25 states: “A lawyer has an obligation to render public interest and pro bono legal service. A lawyer may fulfill this responsibility by providing professional services at no fee or at a reduced fee to individuals of limited financial means or to public service or charitable groups or organizations, or by participation in programs and organizations specifically designed to increase the availability of legal services. In addition, lawyers or law firms are encouraged to supplement this responsibility through the financial and other support of organizations that provide legal services to persons of limited means.”

NY EC 8-3 adds: Those persons unable to pay for legal services should be provided needed services.”

See also NY EC 1-2, 1-4, 2-1, 2-2, 2-24, 6-2, 8-1, 8-2, 8-7 and 8-9.

Cross References

See also NY DR 5-103(B) (“Unless prohibited by law or rule of court, a lawyer representing an indigent client on a pro bono basis may pay court costs and reasonable expenses of litigation on behalf of the client”) discussed in full under Model Rule 1.8(e).

6.2   Rule 6.2 Accepting Appointments

6.2:100   Comparative Analysis of New York Rule

Primary New York References:
Background References: ABA Model Rule 6.2, Other Jurisdictions
Commentary:

6.2:101      Model Rule Comparison

There is no counterpart to Model Rule 6.2 in the NY Code.

6.2:102      Model Code Comparison

There is no equivalent to Model Rule 6.2 in the Model Code.

6.2:200   Duty to Accept Court Appointments Except for Good Cause

Primary New York References:
Background References: ABA Model Rule 6.2, Other Jurisdictions
Commentary: ABA/BNA § 91:6201, ALI-LGL § 26, Wolfram § 16.9
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 2 , et seq.

Relevant Disciplinary Rules

There is no mandatory duty under the Disciplinary Rules to accept a court appointment of a pro bono matter in New York. Unlike many other states, participation in pro bono projects is strictly voluntary.

Relevant Local Court Rules

Model Rule 6.2 is similar to Local Rule 83.3(g) promulgated by the U.S. District Court for the Northern District of New York which provides: “Grounds for Relief From Appointment. After appointment, an attorney may apply to be relieved of an order of appointment only on one or more of the following grounds, or on such other grounds as the appointing judge finds adequate for good cause shown:

1. some conflict of interest precludes the attorney from accepting the responsibilities of representing the party in the action;

2. the attorney does not feel competent to represent the party in the particular type of action assigned;

3. some personal incompatibility exists between the attorney and the party or a substantial disagreement exists between the attorney and the party concerning litigation strategy; or

4. in the attorney’s opinion the party is proceeding for purposes of harassment or malicious injury or the party’s claims or defenses are not warranted under existing law and cannot be supported by a good faith argument for extension, modification or reversal of existing law.”

The First Department Appellate Division has a Pro Bono Special Counsel Program governed by 22 NYCRR 605.20(e) which provides:

1. General. Pro Bono Special Counsel shall be volunteer lawyers appointed by the Court for the purpose of expediting cases.

2. Procedure for Appointment. Upon initial determination by the Chief Counsel that a potential volunteer is qualified, the Chief Counsel shall submit the volunteer’s resume to the Policy Committee. Upon approval by the Policy Committee, the Chief Counsel shall forward the volunteer’s name and descriptive information to the Court, together with a proposed order, requesting the appointment of the volunteer attorney as special counsel.

22 NYCRR 605.20(f) describes “Other Provisions Governing the . . . Pro Bono Special Counsel Program” which include (1) Recruitment; (2) Conflicts; (3) Confidentiality; (4) Supervision and Reporting: and (5) Pro Bono Special Counsel as Volunteers.

Relevant Ethical Considerations

NY EC 2-29 provides: “When a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, the lawyer should not seek to be excused from undertaking the representation except for compelling reasons. Compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case.”

NY EC 2-30 provides, inter alia: [A] lawyer should decline employment if the intensity of personal feelings, as distinguished from a community attitude, may impair effective representation of a prospective client."

6.3   Rule 6.3 Membership in Legal Services Organization

6.3:100   Comparative Analysis of New York Rule

Primary New York References: DR 5-110
Background References: ABA Model Rule 6.3, Other Jurisdictions
Commentary:
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 5 , et seq.

6.3:101      Model Rule Comparison

NY DR 5-110(A)(1) is substantively identical to Model Rule 6.3(a). NY DR 5-110(A)(2) is substantively identical to Model Rule 6.3(b).

6.3:102      Model Code Comparison

There is no counterpart in the Model Code to NY DR 5-110.

6.3:200   Conflicts of Interest of Lawyers Participating in a Legal Services Organization

Primary New York References: DR 5-110(A), EC 5-13
Background References: ABA Model Rule 6.3, Other Jurisdictions
Commentary: ABA/BNA § 91:6401, ALI-LGL § 216, Wolfram § 16.7.4
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 5 , et seq.

Relevant Disciplinary Rules

NY DR 5-110(A), entitled “Membership in Legal Services Organization”, provides: “A lawyer may serve as a director, officer or member of a not-for-profit legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests that differ from those of a client of the lawyer or the lawyer’s firm, provided that the lawyer shall not knowingly participate in a decision or action of the organization:

1. If participating in the decision or action would be incompatible with the lawyer’s duty of loyalty to a client under Canon 5; or

2. Where the decision or action could have a material adverse effect on the representation of a client of the organization whose interests differ from those of a client of the lawyer or the lawyer’s firm.”

Relevant Ethical Considerations

NY EC 5-13 adds: “A lawyer should not maintain membership in or be influenced by any organization of employees that undertakes to prescribe, direct, or suggest when or how to fulfill his or her professional obligations to a person or organization that employs the lawyer. Although it is not necessarily improper for a lawyer employed by a corporation or similar entity to be a member of an organization of employees, the lawyer should be vigilant to safeguard his or her fidelity as a lawyer to the employer, free from outside influences.”

Relevant Ethics Opinion

Various Conflicts Issues for Legal Services Organization: NYSBA Comm. on Prof. Ethics, Op. No. 643, 1993 WL57240 (February 16, 1993): Consistent with NY DR 5-110, a legal services organization may assemble a panel of volunteer lawyers to represent clients that the legal services organization is unable to represent due to conflicts of interest. In addition, it is ethically permissible for the legal services organization to cover the volunteer attorneys under its legal malpractice insurance policy. Also, a lawyer who is a member of the legal services organization’s governing board may oppose a client of the organization on behalf of a paying or pro bono client.

6.4   Rule 6.4 Law Reform Activities Affecting Client Interests

6.4:100   Comparative Analysis of New York Rule

Primary New York References:
Background References: ABA Model Rule 6.4, Other Jurisdictions
Commentary:

6.4:101      Model Rule Comparison

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

6.4:102      Model Code Comparison

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

6.4:200   Conflicts of Interest of Lawyers Participating in Law Reform Organizations

Primary New York References:
Background References: ABA Model Rule 6.4, Other Jurisdictions
Commentary: ABA/BNA § 91:6401, ALI-LGL § , Wolfram § 13.8

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

6.5   Rule 6.5 Nonprofit and Court-Annexed Limited Legal Service Programs

6.5:100   Comparative Analysis of New York Rule

Primary New York References:
Background References: ABA Model Rule 6.5, Other Jurisdictions
Commentary:

MR 6.5 was added in February 2002. The Reporter's explanation of the change reads as follows:

Rule 6.5 is a new Rule in response to the Commission's concern that a strict application of the conflict-of-interest rules may be deterring lawyers from serving as volunteers in programs in which clients are provided short-term limited legal services under the auspices of a nonprofit organization or a court-annexed program. The paradigm is the legal-advice hotline or pro se clinic, the purpose of which is to provide short-term limited legal assistance to persons of limited means who otherwise would go unrepresented.

6.5:101      Model Rule Comparison

New York has not adopted the new model rule.

6.5:200   Scope of Rule

Primary New York References:
Background References: ABA Model Rule 6.5, Other Jurisdictions
Commentary:

New York has not adopted the new model rule.

6.5:300   Special Conflict of Interest Rule

Primary New York References:
Background References: ABA Model Rule 6.5, Other Jurisdictions
Commentary:

New York has not adopted the new model rule.