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Abstract

“The purposes of this Article are to describe the significant changes to the 1970 (New York) Code (of Professional Responsibility) and to give a firsthand account of the amendment process. Part I explains the process by which the Appellate Divisions adopt Disciplinary Rules promulgated by the New York State Bar Association. Part II discusses the specific amendments to the 1970 Code which became effective September 1, 1990. Part III summarizes the overall results of the amendments to the Code. “The principal changes reflected in the 1990 Code include: making a lawyer subject to discipline for unlawfully discriminating in the practice of law (including hiring, promoting and determining conditions of employment), provided that there has been a final determination of discrimination by a tribunal other than a Departmental Disciplinary Committee, DR 1-102(A)(6); limiting the obligation of a lawyer to report Code violations by another lawyer to conduct that affects the lawyer's honesty, trustworthiness or fitness to practice law, DR 1-103; making a supervisory lawyer responsible for misconduct of another lawyer when the supervisor knows or should know of the misconduct, at a time when the consequences of such misconduct may be avoided or mitigated, and fails to take action, DR 1-104; prohibiting a lawyer from charging a contingency fee in a domestic relations matter involving a divorce or the amount of maintenance, support, equitable distribution or property settlement, DR 2-106(C); authorizing forwarding fees not in proportion to the work done on the matter, where the client consents to the employment of a new lawyer, the total fees are not unreasonable and each lawyer assumes joint responsibility for the representation, DR 2-107(A); allowing a lawyer to withdraw an opinion after discovering that it was based on inaccurate information or is being used in furtherance of a crime or fraud, notwithstanding the fact that such a withdrawal may implicitly reveal a confidence or secret of the client, DR 4-101(C)(5); providing guidelines regarding when a lawyer should reveal a client's intention to commit a crime, EC 4-7; authorizing a law firm to continue representing a client where one of the firm's partners or associates is disqualified from further representation because he or she may be a witness in the proceeding, DRs 5-101(B), 5-102; codifying the "substantial relationship" test for determining conflicts of interest between a current and former client, DR 5-108; changing the standards for trial publicity from a listing of generally permitted communications to a prohibition of only those communications that a lawyer reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding, DR 7-107; codifying the principles governing conflicts of interest when a lawyer moves between government and private practice, DR 9-102(B); and making the 1990 Code gender neutral.” Included with the article, are the following appendices: Appendix A – Excerpts from the Lawyer’s Code of Professional Responsibility, adopted by the New York State Bar Association, effective January 1, 1970, as amended effective September 1, 1990. Appendix B – Excerpts from the Lawyer’s Code of Professional Responsibility, adopted by the New York State Bar Association, effective January 1, 1970, as amended effective April 29, 1978.

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