ABA Releases Model Rule Addressing Jurisdiction of Attorney Regulation Authorities

On March 1, the ABA Standing Committee on Ethics and Professional Responsibility issued an opinion addressing “Choice of Law” and ABA Model Rule 8.5. The opinion first examines the presumptive jurisdiction attorney regulation authorities have over licensed attorneys and then the opinion analyzes five different scenarios under the rule. 

“Rule 8.5(b)(2) provides a safe harbor for a lawyer’s ‘predominant effect’ determination: ‘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,’” the opinion says. But the opinion notes the safe harbor provision isn’t without limits. 

“The lawyer’s belief about the jurisdiction of the predominant effect of the lawyer’s conduct must be a reasonable belief.” The opinion explains reasonable belief “denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.”

The opinion goes over different scenarios in which a predominant effect can be ascertained and how to tell what the factors are to determine it in each situation. Scenarios cover fee agreements, law firm ownership, reporting professional misconduct, confidentiality duties and screening for lateral-hire lawyers. 

“Model Rule 8.5 provides guidance for determining which jurisdiction’s rules of professional conduct apply to a lawyer’s conduct,” the opinion states. “When a lawyer’s conduct is in connection with a matter pending before a tribunal, the lawyer must comply with the ethics rules of the jurisdiction in which the tribunal sits, unless otherwise provided.”

The opinion notes that for all other conduct, “including conduct in anticipation of litigation not yet filed and conduct not involving litigation, 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 explains factors to assess where the “predominant effect” occurs can “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.”

According to the opinion, a lawyer won’t be subject to discipline if their conduct is in line with the rules of a jurisdiction the lawyer “reasonably believes the predominant effect of [their] conduct will occur.” 

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