Letter From Lewis Tesser, Director Of The NYCLA Ethics Institute

2009-01-01 00:00

To The Readers Of The Metropolitan Corporate Counsel:

Ethics Institute Established At NYCLA

This fall, NYCLA established the NYCLA Ethics Institute, offering monthly CLE programs emphasizing how to deal with the ethical questions arising in diverse practice areas. The Institute's Board of Advisors comprises judges, academics, disciplinary committee members and practitioners, each of whom will play a key role in contributing to the programs.

The Institute was launched at a reception where program chairs Andral Bratton and Alan Friedberg, First Department Disciplinary Committee, and Gordon Eng, Debevoise & Plimpton, conducted a program, The Disciplinary Concept in New York. The inaugural Ethics Institute program was Confronting Ethical Issues Arising During Litigation, chaired by Robert Kelner, Kelner & Kelner, and myself. Hypotheticals focused on issues in commercial litigation, e-discovery and contested matrimonial disputes. Program Chairs Michael Ross and Pery Krinsky, Law Offices of Michael S. Ross, and Hon. Laura Ward, NYC Criminal Court, participated in the November panel, The Search for the Truth: Zealous Advocacy vs. Zealous Ethics in Criminal Law, which also included Elliott Jacobson, U.S. Attorney's Office, Jeffrey Schwartz, Esq.; and Gerald Shargel, Esq. Attendees from the criminal defense bar, Legal Aid, prosecutors, DA's, court attorneys and a criminal court judge discussed the compelling issues relating to aggressive representation. In December, Professor Richard Abel, UCLA Law School, drew on three chapters of his book, Lawyers in the Dock, for Learning Legal Ethics from New York Disciplinary Proceedings. Course materials were posted on NYCLA's website for download before the program, which was interactive and focused on a discussion of how and why lawyers betrayed the trust of clients, adversaries and the legal system.

Upcoming Programs

On January 29, the Institute will offer Dealing with Ethical Issues Confronting Matrimonial Attorneys, chaired by Stephen I. Silberfein, Esq., and on February 12, the program will be Ethical Issues in Tax Practice, chaired by L. William Fishman, McCarthy Fingar LLP. Panels of practitioners and ethicists in both programs will use a series of hypotheticals to explore the myriad of issues lawyers face in these two practice areas.

Most Ethics Institute programs will be available in NYCLA's Audio Reference CD/DVD Library or downloadable through NYCLA's online course offerings on Lawline.com (www.lawline.com).

NYCLA's Professional Ethics Committee

NYCLA was the nation's first bar association to issue ethics opinions and its Professional Ethics Committee has issued advisory opinions on many subjects. Recent opinions concern diverse issues. Opinion 738 discussed the question of searching inadvertently sent metadata in opposing counsel's electronic documents. Although authority is divided, the Opinion concluded that the search was impermissible. Opinion 739 concluded that fees for specialized counsel retained to negotiate a plaintiff's complex Medicare, Medicaid or private health insurance lien may be charged to a settlement as a disbursement under certain conditions. Opinion 740 considered whether an attorney described as a "partner" must be a partner under New York partnership law and the relevant partnership agreement.

Last year, Opinion 737 garnered widespread comment for its discussion of whether there were any circumstances under which a non-government attorney could use an investigator who would dissemble in an investigation. While it is generally unethical for a non-government lawyer to utilize and/or supervise an investigator who will employ dissemblance in an investigation, under certain exceptional conditions, dissemblance by a non-attorney investigator supervised by an attorney is ethically permissible. For example, to obtain evidence of unlawful housing discrimination, it may be necessary to use "testers" posing as potential tenants or purchasers.

The NYCLA Ethics Institute and its Professional Ethics Committee are examples of NYCLA's resolve to remain on the cutting edge in serving the needs of the legal community.

Lewis Tesser

Lewis Tesser, a founding partner of Tesser, Ryan & Rochman, LLP, is also a member of the NYCLA Board of Directors. Bari Chase, director of NYCLA's CLE Institute, assisted in the preparation of this article.