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The American Bar Association Standing Committee on Ethics and Professional Responsibility has released guidance covering which jurisdiction’s ethics rules should apply to lawyers handling matters in more than one jurisdiction.
Formal Opinion 504 explores various scenarios under ABA Model Rule 8.5, which is referred to as “Disciplinary Authority; Choice of Law” in the ABA Model Rules of Professional Conduct.
According to the ABA, as the legal profession changes to meet the demands of clients participating in interstate business and emerging trends in the field, more lawyers are securing a license to practice law in more than one jurisdiction; practicing temporarily in a jurisdiction in which they are not licensed but are allowed to practice; or practicing through pro hac vice approval, which allows lawyers to practice in courts in which they not licensed.
The ethics opinion is intended to help both lawyers and clients better understand how to apply Model Rule 8.5 to determine which jurisdiction’s ethics rules govern a lawyer’s conduct.
It also offers scenarios that cover the rule in fee agreements; law firm ownership; reporting professional misconduct; confidentiality duties; and screening lawyers who leave one firm to join another, generally referred to as “lateral” lawyers.
“… (A) lawyer must comply with the ethics rules of the jurisdiction where the lawyer’s conduct occurs or, if different, where the predominant effect of the lawyer’s conduct occurs,” the opinion said, in reference to matters that do not involve litigation. “Factors to assess where that ‘predominant effect’ occurs may include the client’s location, where a transaction occurs, which jurisdiction’s substantive law applies to the transaction, the location of the lawyer’s principal office, where the lawyer is admitted, the location of the opposing party, and the jurisdiction with the greatest interest in the lawyer’s conduct.”
For matters in litigation, the rules of a tribunal will apply, unless otherwise provided.
The opinion also stated that to avoid ambiguity, a lawyer may want to identify in the fee agreement the lawyer’s belief as to which jurisdiction’s rules of professional conduct will apply to the agreement.
Formal Opinion 504 reminded lawyers that Rule 8.5 includes the statement that “a lawyer will 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.”
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