I will focus tonight only on the 1999 Amendments to the Ethical Considerations ("ECs") in New York's Code of Professional Responsibility. There has not been a lot of attention paid to these Amendments, partly because the ECs are adopted only by the New York State Bar Association. They are not adopted by the courts. As such, they do not have Part 1200 numbers and are not part of the official compilation of New York Codes, Rules and Regulations ("NYCRR"). Therefore, when the stories came out in mid-July about the Amendments to the Code of Professional Responsibility, they generally did not cover anything about the ECs. Although, as Steve Krane mentioned, the ECs are formally considered aspirational and are not mandatory, they are very influential nevertheless. The courts like to look at them to interpret what the Disciplinary Rules ("DRs") mean and to give a little more "pizzazz" and a little more of a lofty feeling to opinions in cases about malpractice, breach of fiduciary duty, and motions to disqualify counsel. I do not know how many lawyers have ever been the target of a motion to disqualify but it is very disconcerting. Essentially, a lawyer is being told that he is unethical. A great deal of guidance on conflicts of interest can be found in the ECs.
"The 1999 Amendments to the Ethical Considerations in New York's Code of Professional Responsibility,"
Hofstra Law Review: Vol. 29
, Article 8.
Available at: https://scholarlycommons.law.hofstra.edu/hlr/vol29/iss1/8