In this article we examine the proposed new Rule of Professional Conduct (RPC) 5.9 drafted and approved by the New York State Bar Association’s Committee on Standards of Attorney Conduct (COSAC). In the normal course, this would now go to the House of Delegates before being presented (if adopted there) to the courts for adoption into New York’s RPCs. However, in a most unusual intramural disagreement, the New York State Bar Association’s very own Committee on Professional Ethics (the Committee) issued a report on March 16, 2022 opposing the adoption of the proposed rule. We will review the proposed rule and broadly consider its merits in the light of the Committee’s opposition.
The proposed RPC 5.9 is completely new and would not replace any existing rule. It addresses two sometimes related—but nevertheless separate—subjects, procedures for lawyers leaving firms, and procedures for dissolving law firms. Like the proposed new rule itself, neither of these subjects is covered in any existing rule. Although both topics are addressed by the proposed new rule, we will discuss only the first subject here—and will suggest that for clarity’s sake, and because some different considerations arise in the two different situations, each topic should be the subject of a separate new rule, which could be accomplished easily by splitting the proposal into new rules 5.9 and 5.10. As presently drafted, subsections (a), (b) and (d) relate to lawyers departing law firms, and subsections (c) and (e), which might usefully form new rule 5.10, relate to dissolving law firms. (Subsection (f) has some application to both parts of the proposed rule, and is discussed below in connection with its application to departing lawyers.) We will focus on subsections (a), (b) and (d), and leave for a future article discussion of the proposed rules relating to dissolving law firms.