After New York required conflict consents to be 'confirmed in writing' on April 1, 2009, does a lawyer need to re-obtain consents that clients validly gave before that date?

Plain-English summary

New York's Rules of Professional Conduct took effect April 1, 2009, and for the first time required that a client's consent to a conflict of interest be "confirmed in writing." A lawyer who had represented a client for years under a retainer agreement containing an advance conflict waiver asked whether he needed to obtain a new consent and execute a new retainer agreement to satisfy the new requirement.

The committee concludes he does not. It explains that Rule 1.7(b) lets a lawyer proceed despite a conflict if "each affected client gives informed consent, confirmed in writing," that Rule 1.0(j) defines "informed consent," and that Rule 1.0(e) defines "confirmed in writing" (a writing from the client, a writing the lawyer promptly transmits confirming oral consent, or an on-the-record statement). These provisions are broadly similar to the old Code except that the writing requirement is new; the old Code specified no particular form.

The committee reasons that when the Appellate Divisions adopted the new Rules they provided no transitional rules, and there is no basis to treat consents given before the change as impaired or invalid. The new "confirmed in writing" requirement "modifies the giving of consent," so only consents given on or after April 1, 2009 must be confirmed in writing; this is supported by the second sentence of Rule 1.0(e), which ties the writing to the time the person gives oral consent. The committee adds that the Rules do not require the client to sign anything (Rule 1.0(e)(ii)), and that any writing, even an email, confirming an oral consent suffices (citing the Rule 1.0(x) definition of "writing"). Because the inquirer's consent was already in a retainer agreement, it satisfied the new requirement, but the same conclusion would apply to validly given oral consents.

In practice

The opinion holds that, under the New York rules as adopted in 2009, the confirmed-in-writing requirement is prospective: it governs only consents given on or after April 1, 2009, and a conflict consent that was valid when given before that date, and that by its terms continues to apply, need not be re-obtained merely because the Rules changed. The committee expressly limits its holding to the effect of the rule change and does not address other respects in which a particular consent or advance waiver might or might not be valid.

Common questions

Q: Do I have to re-paper conflict waivers my clients signed before April 1, 2009?

A: No. The opinion concludes that consents validly given before that date do not need to be re-obtained solely because the Rules began requiring consents to be confirmed in writing.

Q: Does the confirmed-in-writing requirement apply to old oral consents?

A: No. The opinion explains the requirement modifies the giving of consent, so it applies only to consents given on or after April 1, 2009; a validly given earlier oral consent stands.

Q: For new consents, does the client have to sign a document?

A: No. The opinion notes the Rules do not require the client to sign, and that any writing confirming an oral consent, even an email, is sufficient under the definitions in Rule 1.0(e) and 1.0(x).

Background and rules framework

The opinion interprets New York Rules 1.7 (concurrent conflicts) and 1.9 (former-client conflicts), the analogues of ABA Model Rules 1.7 and 1.9, together with the Rule 1.0(j) definition of "informed consent," the Rule 1.0(e) definition of "confirmed in writing," and the Rule 1.0(x) definition of "writing." It applies the presumption that newly adopted rules operate prospectively.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest); MR 1.9 (duties to former clients)
• NY RPC 1.7(b), 1.9; 1.0(e), 1.0(j), 1.0(x)
• Former Code DR 5-101(A), DR 5-105(C)

Cases:

• Hays v. Ward, 179 A.D.2d 427 (1st Dep't 1992); Murphy v. Board of Education, 104 A.D.2d 796 (2d Dep't 1984), aff'd 64 N.Y.2d 856 (1985), statutes effective on a stated date are construed prospectively

See also

• NY State Bar Op. 826: Representing and opposing the same insurance carrier
• NY State Bar Op. 847: Conflicts and a lawyer's responsibilities to third parties
• NY State Bar Op. 1063: Conflict when fees are paid by a third-party relative

Source

• Landing page: https://nysba.org/ethics-opinion-829/