2007 Issue 1 - New York City Bar Association

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R E C E N T C O M M I T T E E R E P O R T S ration Law. Though the committee agrees that the Not-for-Profit Corporation Law warrants substantial revision, it does not agree with many of the proposed changes and modifications in the Business Law Section’s proposal. Professional and Judicial Ethics Formal Opinion 2006-3 concludes that a lawyer may ethically outsource legal support services overseas to a non-lawyer if the lawyer: (a) rigorously supervises the non-lawyer, so as to avoid aiding the non-lawyer in the unauthorized practice of law and to ensure that the non-lawyer’s work contributes to the lawyer’s competent representation of the client; (b) preserves the client’s confidences and secrets when outsourcing; (c) under the circumstances described in this Opinion, avoids conflicts of interest when outsourcing; (d) bills for outsourcing appropriately; and (e) under the circumstances described in this Opinion, obtains the client’s informed advance consent to outsourcing. Formal Opinion 2007-01 considers whether under DR 7-104(A)(1) (the No Contact Rule) counsel representing another party in a matter may communicate directly with an organization’s in-house counsel, without the consent, knowledge, or participation of the organization’s outside counsel. The opinion finds that DR 7-104(A)(1) does not prohibit a lawyer from communicating with an in-house counsel of a party known to be represented in that matter, so long as the lawyer seeking to make that communication has a reasonable, good-faith belief based on objective indicia that such an individual is serving as a lawyer for the entity. Formal Opinion 2007-02 considers under what circumstances a law firm may “second” a lawyer to a host organization without subjecting the law firm to the imputation of conflicts under DR 5-105(D). The opinion finds that a law firm may second a lawyer to a host organization without subjecting the law firm to the imputation of conflicts under DR 5-105(D) if, during the secondment, the lawyer does not remain “associated” with the firm. Professional Responsibility “Comments on Proposed Rule 3.8 (Special Responsibilities of a Prosecutor) of the New York Lawyers Code of Professional Responsibility.” This report considers and responds to comments made by several prosecutors’ organizations on the text of the State Bar’s Committee on Standards of Attorney Conduct (COSAC) proposed Rule 3.8, which outlines the special responsibilities of a prosecutor. T H E R E C O R D 18
R E C E N T C O M M I T T E E R E P O R T S “Comments on the Proposed Ethics Rules Governing Lawyer Advertising and Solicitation Issued by the Presiding Justices of New York State’s Appellate Division.” Though the report supports many of the proposed rules, it notes that the proposal suffers from two major flaws. First, the proposed rules contain content-based restrictions that would impinge on a lawyer’s First Amendment right to engage in commercial speech, and would prevent consumers from obtaining truthful, non-misleading information about the availability of legal services that would be relevant to the consumers’ selection of a lawyer. Second, certain elements of the proposed rules would be unworkable as a practical matter or would create a tremendous burden on lawyers without any evidence that they would further the overall objectives of the rules. Comments on the New York State Bar Association’s Proposed Amendments to the New York Code of Professional Responsibility Rules 1.11, 1.12, 2.1, 2.3, 2.4, 4.2, 4.3, 4.4, and 6.1 - 6.5. Amicus Brief: Muriel Siebert & Co., Inc. v. Intuit Inc. filed with the New York State Court of Appeals. This case, the brief notes, requires the Court to determine whether a corporate “party” within the context of DR 7-104 includes a former employee who had access to attorney-client information about the matter in dispute. In an earlier decision the Court determined that former employees do not fall within the definition of “party” and therefore may be contacted by the opposing counsel without notice to the corporate party’s attorney. The brief urges the Court to follow the same reasoning in this case and not alter the bright line rule that has been in place for over 15 years. State Courts of Superior Jurisdiction Proposed model confidentiality agreement form and commentary. The model confidentiality agreement is meant to reduce the substantial expenditure of time and resources of both the court and of attorneys with regard to negotiating and drafting confidentiality agreements and to promote efficiency in these cases. Copies of the above reports are available to members at the Association’s website, www.nycbar.org, by calling (212) 382-6624, or by e-mail, at gbrown@nycbar.org. 2 0 0 7 V O L. 6 2 , N O. 1 19
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2007 Issue 1 - New York City Bar Association

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