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End-of-life notice: American Legal Ethics Library

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

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

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

New York Legal Ethics

1.4   Rule 1.4 Communication

1.4:100   Comparative Analysis of New York Rule

Primary New York References: DR 6-101(A)(3), DR 9-102(C)(1), EC 7-8 & 9-2
Background References: ABA Model Rule 1.4, Other Jurisdictions
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canons 6, 7 and 9, et seq.

1.4:101      Model Rule Comparison

The New York Code has no direct counterpart to Model Rule 1.4(a). The most analogous rules are NY DR 6-101 (A)(3) and NY DR 9-102(C)(1). NY DR 6-101 (A)(3) mandates that a lawyer not neglect a client’s matters. NY DR 9-102(C)(1) requires a lawyer to inform a client or third person promptly of the receipt of funds or other property in which they might have an interest. In addition, the need to communicate with the client is captured more generally by NY DR 7-101(A)(2), which prohibits a lawyer from intentionally failing to carry out a contract of employment with a client for professional services, and by NY DR 7-101(A)(3), which prohibits a lawyer from prejudicing or damaging the client in the course of the professional relationship.

Nor does the New York Code have any direct counterpart to Model Rule 1.4(b). NY EC 7-8 provides that a lawyer shall consult with a client so that the client can make informed decisions. The obligation is also read into the lawyer’s duty to handle the client’s matters competently and not neglect them. See NY DR 6-101. It is also implied in the rules regarding the division of authority between a client and lawyer. See NY DR 7-101 and NY EC 7-7. Since the client has ultimate authority on decisions involving the overall goals and purposes of the representation, (s)he needs to be informed of all relevant information in order to make the best decision.

In addition, NY EC 9-2 specifically urges a lawyer to "fully and promptly inform [the] client of material developments in the matters being handled for the client."

1.4:102      Model Code Comparison

NY DR 6-101(A)(3), NY DR 9-102(C)(1) and NY DR 7-101 are virtually identical to the ABA Model Code rules.

1.4:200   Duty to Communicate with Client

Primary New York References: DR 9-102(C)(1), EC 9-2
Background References: ABA Model Rule 1.4(a), Other Jurisdictions
Commentary: ABA/BNA § 31.501, ALI-LGL §§ 31, Wolfram §§ 4.5, 4.6
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 9, et seq.

Relevant Ethics Opinions

Duty To Retain Interpreter: N.Y. City Bar Op. 1995-12 (1995): DR 7-101(A)(3) and EC 7-1 embody "the concept that a lawyer must actively assist the client 'to secure and protect available legal rights and benefits.'" When a lawyer fails to hire an interpreter to "bridge a communication barrier with a client, . . . it is reasonable to expect that the client will be damaged or prejudiced by this inaction."

Duty to Notify Deceased Partner's Former Clients of Partner's Death: N.Y. County Lawyers' Ass'n Op. 709 (1995): The inquiring attorney is a partner in a law firm, and is also the legal representative of one of the firm's partners who recently died. The deceased partner was named as a fiduciary in several wills prepared by the firm, and had "responsibility for ongoing matters" that the firm was handling when he died. Is the inquirer ethically obligated to give notice of his former partner's death to former clients who named the deceased attorney as a fiduciary in their wills, or to clients for whom the deceased partner was rendering legal services at the time of his death? With respect to former clients who named the deceased attorney as a fiduciary, "there is no ongoing attorney-client relationship between the testator-former-clients and the law firm that might require the firm or its remaining members (including the legal representative) to notify the testator of the death." However, with respect to ongoing matters, "the firm has continuing responsibility" and the firm "should notify clients of the death of the member handling particular matters." Such notification is the law firm's obligation, not the obligation of the deceased lawyer's legal representative. (Note: The Committee did not cite any ethical provisions in its opinion but it would find support in DR 7-101(A)(2).)

Duty to Notify Client of Appeal Deadline: Nassau County Bar Op. 94-1 (1994): Under DR 7-101(A)(2), when an attorney's retainer agreement does not expressly obligate the attorney to prosecute an appeal, the attorney has no ethical obligation to file a notice of appeal. The attorney may fulfill her ethical duty to safeguard the client's interests by "fully advising the client, sufficiently in advance to allow the client to act, of the client's options, of the deadlines with must be met, of the consequences of missing a deadline, and of any other pertinent information, so that the client has sufficient opportunity to make an informed decision as to how to proceed." (Emphasis in original.)

Relevant Cases

Obligation to Notify Client of Important Information: See Vollgraf v. Block, 117 Misc.2d 489, 458 N.Y.S.2d 437 (Sup. Ct. Suffolk Co. 1982) (holding lawyer liable for his failure to disclose the dissolution of the firm); In re Riccio, 131 A.D.2d 973, 517 N.Y.S.2d 791 (3d Dept. 1987) (suspending lawyer for various acts of neglect, including failing to respond to client’s requests for information about her case); and Spector v. Mermelstein, 361 F. Supp. 30 (S.D.N.Y. 1972) (lawyer obligated to inform the client of facts raising questions about a loan the client was contemplating making), aff'd in part, rev'd in part, 485 F.2d 474 (2d Cir. 1973).

1.4:300   Duty to Consult with Client

Primary New York References: EC 7-8
Background References: ABA Model Rule 1.4(b), Other Jurisdictions
Commentary: ABA/BNA § 31.501, ALI-LGL §§ 31, Wolfram §§ 4.5

Relevant Ethical Considerations

NY EC 7-8 requires a lawyer to use best efforts to insure that the client makes decisions after the client has been made aware of relevant considerations. This includes initiating discussions with the client if the client does not do so.

1.4:400   Duty to Inform the Client of Settlement Offers

Primary New York References: EC 7-7
Background References: ABA Model Rule 1.4, Other Jurisdictions
Commentary: ABA/BNA § 31.501, ALI-LGL §§ 31, Wolfram §§ 4.5
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Ethical Considerations

NY EC 7-7 gives the client sole authority to determine whether to accept a settlement offer or a plea bargain.