THE RECORD - New York City Bar Association

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P R O P O S E D F E D E R A L R U L E S O F A T T O R N E Y C O N D U C T thereafter remanded). These uncertainties raise serious questions about the wisdom of having a set of rules for lawyers “in the district courts,” as the proposed amendment to Federal Rule of Civil Procedure 83(c) would state. Specific problems that would be created include the following: • Can the lawyer accept the representation if it would be permissible to do so under state conflict of interest standards, even though the lawyer would have to decline the representation under the federal ethics rules? If disqualification is going to be determined by reference to the federal rule, must the lawyer decline the matter at the outset if it is at all conceivable that the dispute could end up in federal litigation? • To what extent may a lawyer communicate with a represented person prior to the institution of what becomes a federal lawsuit? What if the lawyer reasonably believes that the matter will result in federal litigation, and engages in conduct that would be permitted by the federal ethics rule, and only later determines that the action must be commenced in state court where the very same communications are prohibited? • Can a lawyer disclose confidential information necessary to prevent a client being represented in federal litigation from committing a non-criminal fraudulent act outside the context of that litigation that is likely to result in substantial injury to the financial interests or property of another? The lawyer would be permitted to do so under the draft Federal Rule of Attorney Conduct 2, but prohibited from doing so under New York’s DR 7-102(B)(1), for example. Such not-so-subtle differences between federal and state rules would create confusion even for lawyers who do not engage in multistate practice, 30 and could affect federal-state forum selection. 30. The Committee on Professional Responsibility of this Association previously recommended that any set of federal rules include an express safe harbor that would dictate that the conduct of a lawyer prior to the initiation of federal litigation is subject to regulation pursuant to the rules in effect in, and as applied in, the state in which the lawyer primarily practices. See Association of the Bar of the City of New York, Committee on Professional Responsibility, “Uniform Ethics Rules in Federal Court: Jurisdictional Issues in Professional Regulation,” 50 The Record 842-43 (1995). If the Standing Committee proposes rules that would regulate matters affecting the acceptance of employment by a lawyer, a decision that may be made long T H E R E C O R D 230
F E D E R A L C O U R T S, P R O F E S S I O N A L D I S C I P L I N E, P R O F E S S I O N A L A N D J U D I C I A L E T H I C S, P R O F E S S I O N A L R E S P O N S I B I L I T Y Lastly, even if uniformity in both rule and application could be achieved without the complications described above, the fact remains that federal district courts generally have only the most minimal disciplinary infrastructures. For the most part, federal courts adjudicate few original disciplinary proceedings, and rely on state disciplinary agencies to police attorney conduct in federal courts. 31 Inadequate consideration has been given to the effect that the adoption of a federal set of ethics rules would have on the needs of federal district courts to maintain disciplinary staffs and conduct disciplinary proceedings on their own, or if they do not, to the willingness and capability of already understaffed, underfunded and overburdened state disciplinary authorities to prosecute lawyers for violations of rules that differ significantly from their own. In the absence of adequate enforcement, a set of purely federal rules of attorney conduct would be largely cosmetic. CONCLUSIONS The best solution to the problem perceived by the Standing Committee, in our view, would be to adopt a rule that requires each district court to apply the professional conduct rules of the state in which the district court sits, as amended from time to time. This approach, the so-called “Erie rule” or “dynamic conformity,” creates no more confusion and conflict than is currently present in the attorney regulatory system solely by virtue of the existence of 51 different sets of rules of attorney conduct. It also eliminates the problems caused by individual federal district courts deviating from the rules governing lawyers in the state in which they sit by requiring them to defer to those rules (and perhaps also to interpretations of those rules issued by the highest court of the state) in regulating the conduct of lawyers who appear before them. 32 before a determination has or could be made as to the forum of potential litigation, such a safe harbor proposal would not go far enough to cure the problem. 31. See generally Association of the Bar of the City of New York, Council on Judicial Administration, “Lawyer Discipline in the Southern District of New York,” at 3-6 (June 1998); Working Papers at 345-57. 32. We are mindful of the fact that federal prosecutors contend that, in view of special circumstances surrounding their practice, they should not be bound by certain of the generally applicable rules of professional conduct. Whether and how to address the concerns of federal prosecutors are matters well beyond the scope of this report. Assuming, however, that a need exists for the adoption of a different set of ethics rules for federal prosecutors, it is our strongly held view that such a goal should not be accomplished by subjecting all lawyers practicing in federal court to an additional set of ethics rules. M A R C H / A P R I L 1 9 9 9 ◆ V O L. 5 4, N O. 2 231
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THE RECORD - New York City Bar Association

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