Paula J. Frederick Re: Interim Report of the ABA Commission on Multijurisdictional Practice - Center for Professional Responsibility

E. Norman Veasey, Chair
ABA Commission on Evaluation of the Rules of Professional Conduct
c/o Charlotte K. Stretch
541 N. Fairbanks Court
Chicago, IL 60611

March 12, 2002

Dear Norm:

My heartfelt congratulations on your successes in the House of Delegates on the Ethics 2000 Report and my sincere thanks on the effort that you and the Commission undertook. The profession owes much to the Commission's work and will appreciate it as the changes proposed are adopted throughout the country.

The Standing Committee on Professional Discipline looks forward to the House of Delegates debate on the remaining Rules. In that regard, I am enclosing a copy of the Standing Committee on Professional Discipline's comments to the Commission on Multijurisdictional Practice regarding its Interim Report because we comment therein on Ethics 2000's revised Rule 8.5. We appreciate the incorporation of our jurisdictional rule (Rule 6 of the ABA Model Rules for Lawyer Disciplinary Enforcement) in Rule 8.5(a). However, as noted in our letter, the Discipline Committee does not believe that statements about the lawyer's "reasonable belief" are appropriate in Rule 8.5(b) on choice of law or in the Commentary. The Committee understands that Ethics 2000 is attempting to improve the existing Rule but urges Ethics 2000 to clarify the Rule if it cannot delete this phrase.

Please let me know if you wish to discuss this concern further.

Sincerely,

Paula J. Frederick
Chair
ABA Standing Committee on Professional Discipline


Wayne J. Positan, Chair
ABA Commission on Multijurisdictional Practice
c/o John A. Holtaway
541 N. Fairbanks Court
Chicago, IL 60611

March 12, 2002

Dear Wayne:

The ABA Standing Committee on Professional Discipline has carefully reviewed the Interim Report of the ABA Commission on Multijurisdictional Practice dated November 30, 2001 and wishes to commend the Commission on its extraordinary efforts to deal with a complex issue of vital concern to the legal profession and to clients.

The Standing Committee on Professional Discipline is charged by the Section 31.7 of the ABA Bylaws with "… developing, promoting, coordinating, and strengthening professional disciplinary and regulatory programs and procedures throughout the nation, including developing and promoting Association activities relating to professional discipline, model rules for disciplinary enforcement and standards for the imposition of sanctions. The Committee is also responsible for maintaining the ABA National Lawyer Regulatory Data Bank." Pursuant to this charge, the Standing Committee will limit its comments to Recommendation 7 on Disciplinary Enforcement and Reciprocal Discipline of the Interim Report.

The Discipline Committee fully concurs in and supports Recommendation 7.3 that "The ABA should take steps to promote interstate disciplinary enforcement mechanisms" as drafted and has no additional comment upon it.

The Discipline Committee provides the following comments to improve and clarify the work of the Commission's Recommendations 7.1 and 7.2. With respect to Recommendation 7.1 that "The ABA should amend Rule 8.5 of the Model Rules of Professional Conduct in order to better address multijurisdictional law practice," the Discipline Committee concurs. The Commission on Multijurisdictional Practice endorses the addition of a sentence to Rule 8.5(a) to conform to Rule 6 of the ABA Model Rules for Lawyer Disciplinary Enforcement and the addition of a statement on reciprocal enforcement to the end of Comment [1].

However, the Discipline Committee does not support the last sentence ( underlined) below in the amendment of ABA Model Rule of Professional Conduct 8.5(b) proposed by the Ethics 2000 Commission. The amendment of Rule 8.5(b) proposed by Ethics 2000 reads:

(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:

(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and

(2) for any other conduct, 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 shall be applied to the conduct. A lawyer is not 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.

The Discipline Committee understands and concurs in the movement away from an emphasis on the rules of the admitting jurisdiction and the inclusion of contemporary choice-of-law. However, this sentence and its analog in Comment [5] (underlined below) do not clarify this complex area but rather create the potential that every lawyer charged under it will claim a reasonable belief that the predominant effect of the lawyer's conduct was in a jurisdiction where that conduct conformed to the rules. Hence, the Committee recommends also deleting the underlined sentence in the proposed amendment of Comment [5]:

When a lawyer's conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer's conduct will occur in a jurisdiction other than the one in which the conduct occurred. So long as the lawyer's conduct conforms to the rules of jurisdiction in which the lawyer reasonably believes the predominant effect will occur, the lawyer is not subject to discipline under this Rule.

Nevertheless, if there are other unexplained reasons for the provision of a "reasonable belief" exception, the Discipline Committee urges that examples of such situations be provided or that the burden be clearly placed upon the lawyer to prove that the belief was reasonable under the circumstances.

The Discipline Committee commends the Commission’s inclusion of language in Recommendation 7.2 regarding the need for states to adopt Rule 22 of the ABA Model Rules of Disciplinary Enforcement. As aptly stated in Recommendation 7.2, Rule 22 requires the licensing jurisdiction, unless certain circumstances exist, to "…accept and reciprocally enforce another jurisdiction’s disciplinary decision." These five circumstances, set forth in Section D of Rule 22, are consistent with longstanding precedent. See Selling V. Radford, 243 U.S. 46, 37 S. Ct. 377 (1917). The Committee believes that Rule 22 is clear in its intent that, in reciprocal discipline cases, including those involving the type of multijurisdictional practice contemplated by the Commission, the imposition of some sanction by the licensing jurisdiction is presumed; the only issue is the nature and extent of that sanction.

In an attempt to clarify the application of the provisions of Rule 22 to lawyers engaged in multijurisdictional practice and enhance reciprocal enforcement, the Commission recommends amendments to Section D of that Rule. Specifically, the proposed amendments provide:

D. Discipline D. Discipline to be Imposed. Upon the expiration of [thirty] days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline or disability inactive status unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:

(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

(2) There Based on the record created by the jurisdiction which imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or

(3) The imposition of the same discipline by the court imposed would result in grave injustice or is offensive to the public policy of the jurisdiction; or

(4) The misconduct established warrants substantially different discipline in this state; or

(5) (4) The reason for the original transfer to disability inactive status no longer exists.

If this court determines that any of those elements exists, this court shall enter such other order as it deems appropriate. The burden is on the party seeking different discipline in this jurisdiction to demonstrate that the imposition of the same discipline is not appropriate.

The Discipline Committee has some concerns regarding the Commission’s proposed amendments and believes that they would not necessarily increase effective reciprocal disciplinary enforcement. First, the Committee does not believe that there exists any confusion as to whether the Rule provides that the licensing jurisdiction must impose a reciprocal sanction at all. As noted above, the language of the Rule indicates that even if certain criteria exist, a sanction will be imposed. Depending on the circumstances, that sanction may be greater or less severe than that imposed by the host jurisdiction. The Committee understands the frustration of disciplinary agencies with what they see as ineffective reciprocal enforcement. The Committee believes that most states do impose appropriate reciprocal discipline and that a six-month study of matters submitted to the ABA National Lawyer Regulatory Data Bank would bear this out. If the Commission feels that confusion does exist regarding whether the imposition of some reciprocal sanction is assumed, the Committee suggests adding a clarifying statement to the Comment to the Rule.

The Discipline Committee also recommends that the original subparagraph (4) of Section D be reinstated. The Committee believes that the Commission’s proposal to remove language allowing the court to exercise its inherent regulatory authority by not imposing an identical reciprocal sanction if the "misconduct established warrants substantially different discipline in this state…" does not help achieve the desired effect of having states adopt the Model Rule. State supreme courts must guard their inherent regulatory authority over the profession. Any suggestion that they may not exercise that authority when deemed appropriate will likely be viewed negatively. The original language of subparagraph 4 acknowledges that power while appropriately guiding the courts to reach the correct result.

Finally, the Discipline Committee is concerned with the language in the Commission’s proposed amendment to subparagraph (3) of Section D, stating that a court shall impose identical discipline unless it finds that it would result in grave injustice or is offensive to the public policy of the jurisdiction. The Committee believes that the standard created by using the term "offensive to public policy" is too strict and would unduly impinge upon the licensing court’s inherent regulatory authority. The Committee would recommend the use of the term "inconsistent" instead in lieu of "offensive."

The Standing Committee on Professional Discipline stands ready to be of any further assistance you wish.

Sincerely,

 

Paula J. Frederick
Chair
ABA Standing Committee on Professional Discipline
cc: E. Norman Veasey
Charlotte K. Stretch