Lawyers are routinely admitted or authorized to practice in multiple jurisdictions, whether by bar admission, pro hac vice admission or other circumstances. But not all jurisdictions share the same ethical rules. Where conflicts arise, attorneys may be faced with a difficult question: Which ethical rules must the lawyer follow?

On March 1, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 504, which provides guidance. The opinion relies on ABA Model Rule 8.5, which provides that, 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 the rules of the tribunal provide otherwise.

For all other conduct, including conduct in anticipation of litigation not yet filed, Model Rule 8.5(b)(2) imposes what is essentially a most significant relationship test: The lawyer must comply with the ethics rules of the jurisdiction in which the lawyer’s conduct occurs, unless the “predominant effect” of the lawyer’s conduct is in a different jurisdiction, in which case the lawyer must comply with the ethics rules of that jurisdiction.

The model rule also provides grace for lawyers who engage in a good faith choice-of-law analysis, even if they get it wrong: “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.” 

Because these choice-of-law issues can be complex, ABA Opinion 504 is a helpful touchpoint. Here are a number of different scenarios that can provide guidance to practitioners who engage in a multijurisdictional practice.

The Fee Agreement

Consider this scenario: A lawyer, admitted and practicing from one state, drafts a fee agreement for a client living in the same state concerning a litigation matter that will be filed in a different state. In determining what ethical rules govern the preparation of the fee agreement, should the lawyer be looking at the state where she is admitted and where the client resides or the state in which the anticipated litigation will be filed?

Opinion 504 suggests that, although the lawyer will be subject to the ethical rules of the state in which the litigation is pending once it is filed, before that occurs, the lawyer’s preparation of the fee agreement is likely “conduct in anticipation of a proceeding not yet pending before a tribunal.”

That means that the agreement and the lawyer’s conduct are probably subject to the rules of the jurisdiction where the agreement was drafted (or else where the “predominant effect” of the fee agreement is).

Reporting Professional Misconduct

As another example, consider what might happen where a lawyer admitted in States A and B with an office in State B is hired by a client residing in State A for litigation in State A. If the lawyer learns that the client’s prior counsel forged the client’s signature on a document that was filed in the litigation, what state’s rules apply to the lawyer’s duty to report misconduct?
Determining which state’s ethical rules apply can be critical because states vary over whether they are “mandatory reporting” jurisdictions, that is, jurisdictions that require the lawyer to report attorney misconduct irrespective of client consent.

Opinion 504 reviews a similar scenario and explains that, where the purported misconduct occurred in the context of pending litigation, Model Rule 8.5(b)(1) likely provides that State A’s rules govern. If State A’s rules require that the lawyer must report the misconduct, regardless of client consent, the lawyer may be required to follow that rule (even if State B’s rules are different).

As a practical matter and a matter of client relations, it still can be helpful for a lawyer in this scenario to explain their reporting obligation to their client to keep the client informed.

Imputed Conflicts

In this scenario, Lawyer A, who is licensed in State A, laterally joins a firm’s office in State A. In joining, Lawyer A brings a conflict of interest through its representation of a former client that impacts Lawyer B, who is licensed in State B and practices from the firm’s office in State B. The rules of State A would permit the firm to screen off Lawyer A without first obtaining consent from affected clients, while State B’s rules would require the firm to obtain consent from affected clients. What rules apply?

In reviewing related issues, Opinion 504 suggests that if the imputed conflict relates to a matter pending before a tribunal, then the ethics rules in the tribunal’s jurisdiction will govern. But if the imputed conflict relates to any other matter (including a transactional matter), the firm could then consider the other “predominant effect” factors referenced in Model Rule 8.5(b)(2).

This could include a review of where all parties are located. The opinion suggests that if the affected parties to the transaction reside in State A, the “predominant effect” of the imputed conflict could be in State A (even though Lawyer B practices from an office in State B).

It is very common (and expected, under the ethical rules) that practitioners’ work could have contacts with multiple jurisdictions, depending on the scope of the legal services, the location of the parties and the jurisdiction where any litigation is pending. In these common scenarios, choice-of-law analysis can become complex.

But the ABA’s opinion does provide helpful guidance to practitioners, particularly in nonlitigation matters where the lawyer may have to consider the “predominant effect” factors, including where the client is located, where the client’s actions might occur, which jurisdiction’s substantive law would be applied to the client’s actions and where the lawyer is admitted.

The Model Rules generally provide protection to lawyers who engage in this sort of complex choice-of-law analysis and are reasonable in their consideration of factors. Thus, by being mindful of these rules and the guidance provided in Opinion 504, lawyers can assess which ethical rules govern their conduct.