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Oct. 17, 2016
News Picks from NYSDA Staff
News Picks
Uniform Disciplinary Rules Effective; Other Court Rules Governing Attorneys Amended. The Uniform Rules of the Appellate Division on Attorney Discipline (22 NYCRR Part 1240) took effect on Oct. 1, 2016. The uniform rules address issues regarding, among other things, "standards of jurisdiction and venue; appointment of disciplinary committees and staff; screening and investigation of complaints; proceedings before the Appellate Division; rules of discovery; the name and nature of available disciplinary sanctions and procedural remedies for further review; expanded options for diversion to monitoring programs; reinstatement; and confidentiality." Professional misconduct is defined in 1240.2(a):
A violation of any of the Rules of Professional Conduct, as set forth in Part 1200 of this Title, including the violation of any rule or announced standard of the Appellate Division governing the personal or professional conduct of attorneys, shall constitute professional misconduct within the meaning of Judiciary Law § 90(2)."
Attorneys should be aware that some Departments have additional rules that must be read in conjunction with the new uniform rules. For example, the Third Department has revised 22 NYCRR Part 806 and the Fourth Department has promulgated 22 NYCRR Part 1020. More information about the new Fourth Department rule is available here.
The Fourth Department has also enacted new rules governing attorney admissions and certain attorney conduct (22 NYCRR Part 1015). Of particular note to criminal defense attorneys, the new 22 NYCRR 1015.7(a) requires that, in cases where there has been a conviction or adverse decision in certain criminal proceedings and the defendant wishes to appeal or apply for permission to appeal, trial counsel assigned or retained for the defendant must "when appropriate, move for permission to proceed as a poor person and assignment of counsel on the appeal, pursuant to section 1000.14 of this Title (22 NYCRR 1000.14)." Under the previous Fourth Department rule, 22 NYCRR 1022.11(a), defense counsel was only required to inform the client of their appellate rights and, if the client wanted to go forward with the appeal, serve and file the necessary notice of appeal or request for permission to appeal. This rule change dovetails with the NYS Office of Indigent Legal Services' statewide Criteria and Procedures for Determining Assigned Counsel Eligibility, issued earlier this year, which instruct appellate courts to "assign appellate counsel to appellants who were deemed eligible for assigned counsel by their trial court." Criteria II.D; see also NYSBA Revised Standards for Providing Mandated Representation, I-7(j).

Family Court Rule Amendment Proposed to Give DOCCS and Probation Access to Article 10 Records. The Office of Court Administration is seeking comments on a proposed amendment to 22 NYCRR 205.5 (Privacy of Family Court records) to expand access to certain family court records to:
the department of corrections and community supervision or a local department of probation when the department is supervising the parent or other person legally responsible for the care of a child who is the subject of a proceeding under [Family Court Act article 10 or 10-a]; provided, however, that access under this subdivision shall be limited to temporary and final orders in effect that relate to such parent or other person legally responsible and provided further that court orders disclosed pursuant to this subdivision must be retained as confidential and may not be redisclosed except as necessary for such supervision.
According to the memorandum announcing the proposal, the amendment was proposed by the New York City Administration for Children's Services and has been endorsed by the Chief Administrative Judge's Family Court Advisory and Rules Committee. The memo notes that "[t]he goal of the amendment is to promote a safer environment for children through enhanced information sharing between child welfare and parole/probation systems. ... It is believed that providing the New York State Department of Corrections and Community Supervision and local probation departments direct access to additional court records under this rule will beneficially inform decisions about continued supervision of the child." The current version of 22 NYCRR Part 205, Uniform Rules for the Family Court, is available here.
Comments on the proposed amendment should be sent by email to rulecomments@nycourts.gov or mailed to John W. McConnell, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, New York 10004. Comments must be received by Dec. 5, 2016.

City Bar Issues Opinion on Prosecutors' Ethical Obligations to Disclose Information Favorable to the Defense. The Professional Ethics Committee of the New York City Bar has issued a formal opinion regarding prosecutors' ethical obligations to disclose information favorable to the defense. The digest to Formal Opinion 2016-3 states:
Rule 3.8(b) requires a prosecutor to "make timely disclosure . . . of the existence of evidence or information known to the prosecutor or other government lawyer that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence, except when relieved of this responsibility by a protective order of a tribunal." Unlike the federal constitutional duty of disclosure in Brady v. Maryland, 373 U.S. 83 (1963), and decisions that followed, Rule 3.8(b) obligates a prosecutor to disclose to the accused any relevant information known to the prosecutor that tends to negate the defendant's guilt or mitigate the charges or sentence regardless of the extent of its significance. Furthermore, once favorable information becomes known, its disclosure under Rule 3.8(b) must be "timely." If the evidence or information would be useful prior to trial (e.g., in conducting investigation or advising the defendant about a plea offer or potential guilty plea) the information must ordinarily be disclosed as soon as reasonably practicable, absent a court order authorizing delay or nondisclosure.
The Opinion emphasizes that Rule 3.8(b) "does not contain the materiality limitation of state or federal constitutional case law." See also ABA Formal Opinion 09-454 (Prosecutor's Duty to Disclose Evidence and Information Favorable to the Defense).

OASAS Treatment Availability Dashboard Updated. Originally released in February 2016, the New York State Office of Alcoholism and Substance Abuse Services (OASAS) has updated its Treatment Availability Dashboard to include all outpatient, opioid treatment, and gambling treatment programs. The Dashboard continues to provide real-time information about the bed availability for inpatient alcohol and substance use disorder treatment programs. Those with questions and comments about the Dashboard can email StateWideFO@oasas.ny.gov or call 518-485-0488.

Updated Versions of Quick Reference Materials on the Interstate Compact for Adult Offender Supervision in New York. The New York State Division of Criminal Justice Services has released updated versions of two quick reference materials on the Interstate Compact for Adult Offender Supervision, codified in New York at Executive Law 259-mm:
Additional information about the Interstate Compact is available on the website of the Interstate Commission for Adult Offender Supervision, including a directory of the New York State compact staff, conditions of parole and probation supervision for most compact states, and the Interstate Compact Offender Tracking System Public Web Portal.

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