Multijurisdictional practice can make any lawyer’s head spin, especially for lawyers licensed in multiple jurisdictions. The ABA Standing Committee of Ethics and Professional Responsibility, (the “Committee”) recently issued Formal Opinion 504, which breaks down the choice-of-law rules found in Model Rule 8.5.
Litigation
Model Rule 8.5(b)(1) provides that, for conduct in connection with a matter pending before a tribunal[1], ethics rules of the jurisdiction in which the tribunal sits shall apply.
- Scenario: State A allows firms to have nonlawyer partners. State B adopted Model Rule 5.4, prohibiting firms from having nonlawyer partners. Lawyer is only admitted in State A. Lawyer’s office is in State A. Lawyer will appear pro hac vice before a State B tribunal. Will ethics rules in State B prevent Lawyer from sharing fees earned on the case with nonlawyer partners?
- Answer: The ethics rules of the tribunal (State B) would apply to conduct in that tribunal’s matter, including conduct in representing the client in the proceeding and in dealings with the tribunal, opposing counsel, and opposing party. However, law firm structure is not “conduct in connection with a matter pending before a tribunal.” Accordingly, Lawyer would conduct that analysis through Rule 8.5(b)(2), which is discussed in the next section.
Non-litigation
Model Rule 8.5(b)(2) provides that for any other conduct (i.e., not connected with a matter before a tribunal), ethics rules of the jurisdiction where the lawyer’s conduct occurred will govern. However, if the “predominant effect” is in a different jurisdiction than where the conduct occurs, the rules of that jurisdiction apply.
- Scenario: Lawyer is admitted and works out of State X, but is also admitted in State Y. Client lives in State X and hires Lawyer to file litigation in State Y. When drafting the fee agreement, which state’s ethics rules apply?
- Answer: “Securing a fee agreement is “conduct in anticipation of a proceeding not yet pending before a tribunal” and, therefore, Rule 8.5(b)(2) applies.” The predominant effect would be in State X, so State X’s Rule 1.5 governs.
The Opinion offers factors to determine where the “predominant effect” of the lawyer’s conduct occurs, including: (1) client’s location, residence, and/or principal place of business; (2) where the transaction may occur; (3) which jurisdiction’s substantive law applies to the transaction; (4) location of the lawyer’s principal office; (5) where the lawyer is admitted; (6) location of opposing party and relevant third parties (residence and/or principal place of business); and (7) jurisdiction with greatest interest in the lawyer’s conduct.
- Scenario: Lawyer is licensed in State A and B. Lawyer’s office is in State A, which follows Model Rule 1.6. Conversely, State B does not follow Model Rule 1.6 and therefore requires a lawyer to disclose information relating to the representation to the extent the lawyer reasonably believes necessary “to prevent reasonably certain death or substantial bodily harm. State A permits but does not require the revelation of such information. Lawyer is representing Client/Buyer, who lives in State B, with the purchase of State A real estate. Negotiations occurred at Buyer’s place of business in State B. Client/Buyer threatened to seriously physically harm Seller at the next meeting if Seller won’t accept Buyer’s terms. Lawyer reasonably believes Client will act on his threat.
- Answer: This matter is not before a tribunal, and therefore Rule 8.5(b)(2) applies. Lawyer must look to the “rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction.” Lawyer must weigh the aforementioned factors. Both States are involved. But ethics rules from State B would likely govern as Client/Buyer resides in State B, the threat was made in State B, and the next meeting where the threat would be carried out would likely occur in State B, as that is where past meetings have been held.
Safe Harbor
The Committee highlighted the safe-harbor provision in Model Rule 8.5(b)(2). The last sentence provides “A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.”
Summary
While many states have adopted Model Rule 8.5, others have their own variations. As the Committee points out, in reference to Massachusetts, variations of the Rule may lead to a different analysis. The ABA provides a state-by state guide simplifying Rule 8.5 distinctions. Be sure to check your jurisdiction(s) and think not just about what you are doing, but also where the predominant effect of your conduct may occur.
[1] ABA Model Rule 1.0 (m): “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter”.