On March 1, 2023, The American Bar Association (“ABA”) released guidance concerning which rules of professional conduct should apply to lawyers who practice across multiple jurisdictions. As an experienced business lawyer can explain, these rules govern legal professionals’ conduct and often outline specific regulations for fee agreements, firm ownership, misconduct reporting, and confidentiality duties. Therefore, these rules are critical to the everyday operation of a firm’s practice and must be properly understood by lawyers.
Lawyers are frequently admitted or permitted to practice law in multiple jurisdictions, which often have differing ethical requirements making it difficult to determine which rules should be applied to an attorney’s conduct. These conflicting requirements can confuse ethical compliance for lawyers in multi-jurisdictional litigation that routinely involves multiple clients and crosses state lines.
This issue is something that the ABA has attempted to address before with the ABA Model Rule of Professional Conduct 8.5, and its new piece of guidance, Formal Opinion 504, seeks to clarify how the rule should be applied.
This new guidance clarifies that when a lawyer’s conduct is in connection with a matter pending before a tribunal, they must comply with the rules of professional conduct of the jurisdiction where said tribunal is located.
If the conduct occurs before litigation or does not involve litigation, a lawyer must comply with the rules of the jurisdiction where the conduct occurred. If the conduct involves multiple jurisdictions, then the jurisdiction’s rules in which the “predominant effect” of the conduct occurred apply. The “predominant effect” can include the location of the client, where a transaction occurred, which jurisdiction’s law applies to the transaction, the location of the lawyer’s principal office, the jurisdiction where the lawyer is admitted, the location of the opposing party, and the jurisdiction with the most interest in the lawyer’s conduct.
Notably, the opinion establishes that lawyers should not be disciplined if their conduct conforms to the jurisdiction’s rules in which they believe the predominant effect of their conduct will occur. The opinion also provides that if the predominant effect is not certain, then the lawyer and client may agree that the representation is governed by a state’s conflicts of interest rules, so long as the state has a reasonable relationship to the client’s representation.
Ideally, this jurisdictional guidance from the ABA will ensure that lawyers properly understand their ethical obligations when practicing across multiple jurisdictions. This will allow lawyers to serve their clients better and more efficiently resolve disputes concerning their conduct.
Thanks to our friends at Hoyer Law Group for their insight into these emerging issues.