Opinion aimed at attorneys working in various jurisdictions

The American Bar Association Standing Committee on Ethics and Professional Responsibility this week issued a formal opinion that provides guidance covering which jurisdiction’s ethics rules should apply to lawyers handling matters in more than one jurisdiction.

Formal Opinion 504 explores various scenarios under ABA Model Rule 8.5, which is referred to as “Disciplinary Authority; Choice of Law” in the ABA Model Rules of Professional Conduct.

The opinion is intended to help both lawyers and clients better understand how to apply Model Rule 8.5 to determine which jurisdiction’s ethics rules govern a lawyer’s conduct. It also offers scenarios that cover the rule in fee agreements; law firm ownership; reporting professional misconduct; confidentiality duties; and screening lawyers who leave one firm to join another, generally referred to as “lateral” lawyers.

For matters that do not involve 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 said. “Factors to assess where that ‘predominant effect’ occurs may 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.”

For matters in litigation, the rules of the tribunal will apply, unless otherwise provided.

Formal Opinion 504 concluded by reminding lawyers that Rule 8.5 includes the statement that “a lawyer will 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 ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.