A lurking issue for lawyers who live and/or work in multiple jurisdictions is which ethics rules apply to their conduct. A lawyer who lives, works, and serves clients whose interests are confined to a single jurisdiction need not read on. But the lawyers who fit that description are a shrinking part of our profession. While multijurisdictional practice was certainly common before the pandemic, it is increasingly so today. The next time you have an ethics issue, be sure you consider first which rules apply to your situation so you can be sure you are complying with the right rules. That inquiry should take you to what is in most jurisdictions Rule of Professional Conduct 8.5.
The American Bar Association Standing Committee on Ethics and Professional Responsibility recently issued Formal Opinion 504 concerning choice of law issues under Model Rule 8.5. Opinion 504 provides examples of common situations in which a lawyer should consider which state’s professional rules govern their ethical responsibilities, and also provides practical guidance regarding the same. Modern lawyers should be aware of how Model Rule 8.5 functions in the jurisdictions in which they practice. This article summarizes Model Rule 8.5, and the ABA’s Opinion 504 concerning the same.
Model Rule 8.5(a) provides that:
A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.
Therefore, under the Rule, a lawyer is always subject to the disciplinary authority of the jurisdiction(s) in which they are licensed. The Rule also expressly provides that a lawyer may be subject to the disciplinary authority of multiple jurisdictions for the same conduct: for example, where the conduct occurs and where the lawyer is admitted to practice. Subpart (b) then provides choice of law rules (i.e., what laws will govern the disciplinary action) “in any exercise of disciplinary authority” of the applicable jurisdiction. That means that an Oregon disciplinary authority that receives a complaint about a lawyer licensed in Oregon for conduct that occurred before a Washington tribunal may discipline that lawyer in Oregon for violation of the Washington RPCs.
Finally, we get to the focus of Opinion 504: determining which RPCs apply to a lawyer’s conduct. Subpart(b)(1) provides that the location of the tribunal determines choice of law when conduct is in connection with a matter pending before a tribunal. This portion of the rule is straightforward enough, and likely what many lawyers intuitively expect. However, the Rule also goes on to provide which jurisdiction’s RPCs are applied to “any other conduct” in subpart (b)(2):
[F]or 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 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.
It can be difficult to determine what constitutes “any other conduct” and where “the predominant effect” of conduct occurs for the purposes of Model Rule 8.5(b)(2). To determine where the “predominant effect” of the lawyer’s conduct will or has occurred, Opinion 504 says to consider the following:
- “the client’s location, residence, and/or principal place of business;”
- “where the transaction may occur;”
- “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 other relevant third parties (residence and/or principal place of business);”
- “the jurisdiction with the greatest interest in the lawyer’s conduct”; and
- under certain circumstances, the ethics rules referenced in a written fee agreement.
Opinion 504 also provides practical examples of how Rule 8.5 should apply when a lawyer may be subject to the ethics rules of multiple jurisdictions. For example, the rules that govern a lawyer’s fee agreement for a litigation matter may be different than the rules that govern the lawyer’s conduct in the litigation. Fee agreements are considered “conduct in anticipation of a proceeding not yet before a tribunal,” and therefore the rules governing a lawyer’s conduct are those where the conduct occurred, or those where the predominant effects of the conduct occurred (if different). Thus, if a lawyer in State X enters into a fee agreement with a client in State X, for litigation to be filed in State Y, the predominant effect of the lawyer’s conduct surrounding the fee agreement will occur in State X, notwithstanding the litigation will occur in State Y. Practically, the ABA also points out that “[t]o 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 fee agreement. That fee agreement may list the factors considered by the lawyer in reasonably concluding where the lawyer’s conduct will occur and where the predominant effect of the fee agreement will occur.” If the lawyer specifies which rules will apply, however, there should be a reasonable relationship between the state chosen and the conduct.
Other scenarios examined in Opinion 504 include (1) fee sharing with non-lawyer owners when a lawyer permitted to do so in one jurisdiction takes on a litigation matter in a jurisdiction where such fee sharing is prohibited, (2) reporting professional misconduct of prior counsel when the prior lawyer is licensed in a state where reporting is not required but the conduct occurred in litigation in a state where reporting is required, and (3) confidentiality obligations when a client’s threatening conduct occurs or is expected to occur in a state that requires revealing confidential information but the lawyer is licensed and sits in a jurisdiction that would prohibit such a revelation. Briefly, Opinion 504 concludes that the fee sharing remains permissible, the new lawyer is required to report the misconduct, and the lawyer is required to disclose the client’s threat.
Oregon and Washington’s Rule 8.5 mirror the Model Rule, and thus the above provides practical advice for Oregon and Washington lawyers as well. In 2022, the Oregon State Bar also issued Formal Opinion No. 2022-200 concerning “Remote Work and Unlawful Practice of Law.” While the Oregon opinion focuses on Oregon Rule 5.5, which addresses the unauthorized practice of law, it also touches on choice of law issues, and is consistent with Opinion 504. Under the Oregon opinion, a lawyer who is licensed in another state, but works remotely in Oregon, is not engaged in the unauthorized practice of law so long as they only practice the law of the jurisdiction in which they are licensed (an eminently reasonable conclusion). However, and consistent with Formal Opinion 504, an Oregon lawyer who lives in another state but solely practices “in” Oregon may be engaged in the unauthorized practice of law by virtue of sitting in a jurisdiction in which they are not licensed depending on the rules of the other state.
Bottom line, choice of law issues can and do arise for lawyers practicing across jurisdictional borders. When a lawyer should consider whether the ethics rules of another jurisdiction apply may not be obvious, but Opinion 504 provides helpful guidance on this issue.
This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.
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