Ethics and Professional Responsibility
New ABA Ethics Opinion Conflict of Laws and Model Rule 8.5
By Keith R. Fisher
On March 1, the Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 504, which addresses the question of which jurisdiction’s ethics rules should apply to lawyers handling matters in more than one jurisdiction. The focus of the opinion is Model Rule 8.5, “Disciplinary Authority; Choice of Law.”
Rule 8.5(a) provides that, regardless of where a lawyer’s conduct occurred, the disciplinary rules of the jurisdiction(s) of admission will govern. The choice of law rules for the exercise of the disciplinary authority of the jurisdiction(s) identified in Rule 8.5(a) are set forth in Rule 8.5(b). Formal Opinion 504 addresses itself to that arcane topic.
During the careers of the most seasoned members of the Bar (in which company the author must, regrettably, include himself), the legal profession has been transmogrified in many respects. One of these is a sea change from the predominant model of law practice as being essentially local to one involving representation of clients on a multi-jurisdictional basis. This phenomenon lies on a spectrum ranging from being fully licensed in multiple jurisdictions (which is facilitated by the increased adoption of the Universal Bar Exam), to temporary practice in a jurisdiction in which a lawyer is not licensed, all the way to the traditional pro hac vice admission. Change was accelerated in recent years, moreover, as the COVID-19 pandemic witnessed lawyers holed up in jurisdictions other than where they were licensed and practicing law from there with the assistance of technology.
Formal Opinion 504 provides guidance on the application of Model Rule 8.5, which makes clear that the discipline and conduct rules both of a lawyer’s home jurisdiction and the jurisdiction where the lawyer happens to be practicing may be applied. Scenarios to which the rule applies can include such diverse circumstances as a lawyer in Michigan trying a case in Indiana; a lawyer in D.C. advising a client on a question of California privacy law; the law governing fee agreements; questions of law firm ownership; screening of lateral lawyers; the duty to report professional misconduct; and variations in the confidentiality rules from one jurisdiction to the next. This last topic becomes ever more complex when a lawyer is representing a client in another country, but Formal Opinion 504 does not dare to tread into that quagmire.
The opinion distinguishes between matters in litigation and all other matters. With respect to matters in litigation, the rules of the jurisdiction in which the tribunal is located normally generally will govern, except as may otherwise be provided by the rules of the tribunal itself. Outside the litigation context, however, things can become more complex. The basic rule of thumb, articulated by the Formal Opinion, is that “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.”
Model Rule 8.5 provides a safe harbor: “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.” Application of that safe harbor is not so simple, however, as ascertaining where the predominant effect of the lawyer’s conduct occurs is frequently a non-trivial exercise. According to Formal Opinion 504, “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.”
The opinion contains an extended discussion of several scenarios. In order of presentation, they are: (1) Fee arrangements; (2) law firm ownership; (3) reporting professional misconduct; (4) duties of confidentiality; and (5) screening for lateral lawyers. These scenarios will repay the reader’s careful attention.