Concept
Choice of Law Under Rule 8.5(b)
Powers of courts and other bodies to regulate lawyers
Choice of Law Under Rule 8.5(b)
Rule 8.5(a) tells you which jurisdictions may discipline a lawyer. Rule 8.5(b) answers the next question: once a jurisdiction proceeds, whose rules of professional conduct measure what the lawyer did? The paragraph opens, “In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows,” and two numbered tests follow.1
Keep the two questions apart. Paragraph (b) does not limit disciplinary authority; paragraph (a) already confirms that a lawyer licensed or practicing in a state is subject to that state’s authority. Paragraph (b) supplies the framework for deciding which jurisdiction’s substantive rules apply when a lawyer faces conflicting rules from more than one jurisdiction.2 A state therefore keeps its power to discipline even when (b) points to another state’s rules. It proceeds and applies the rules (b) selects. On an exam stem, answer “May this state discipline the lawyer?” first, using (a), and “Which rules decide whether the lawyer did wrong?” second, using (b). Do not answer the second by reference to the first.
The comment names three recurring ways a lawyer ends up under rules that differ. The lawyer may hold licenses in several jurisdictions whose rules differ, may appear before a court whose rules differ from those of the lawyer’s licensing jurisdictions, or may act in a way that has significant contacts with more than one jurisdiction.3
The comment’s premise is that minimizing conflicts between rules, and uncertainty about which rules apply, serves clients, the profession, and the regulators alike. Three design goals follow. Any particular conduct should fall under only one set of rules. The choice of that set should be as straightforward as possible while still respecting the legitimate regulatory interests of the relevant jurisdictions. And a lawyer who acts reasonably in the face of uncertainty should be protected from discipline.4
The goals pull against one another, and the rule’s structure shows how it balances them. A rule that always chose the lawyer’s home state would be simple, but it would ignore a state whose tribunal or residents the conduct actually touched. A simple test will sometimes misjudge a close case, and the third goal exists to cover those misses. Genuine conflicts are uncommon in any event, because the states have widely adopted the Model Rules with mostly minor variations, so the outcome ordinarily does not turn on differences between ethical regimes.5 When a lawyer does land between rules that differ, paragraph (b) ensures that the conduct is subject to a single set.6
Paragraph (b) sorts conduct by one fact: whether it relates to a proceeding pending before a tribunal. Pending-matter conduct takes the first test. All other conduct, including conduct in anticipation of a proceeding not yet pending, takes the second.7 The subsections below teach the first test, the second test, the safe harbor that protects reasonable guesses under the second, and the coordination of regulators who both proceed.
Conduct Before a Tribunal
Rule 8.5(b)(1) governs “conduct in connection with a matter pending before a tribunal.” The rules that apply are “the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise.”8 The comment states the result as exclusivity: the lawyer is subject only to the rules of the tribunal’s jurisdiction, which carries out the goal of one set of rules for any particular conduct.9
The tribunal’s location controls, whatever state licensed the lawyer. A lawyer admitted in State A who practices before State B’s courts follows State B’s rules to the extent they diverge from State A’s.10 Such a lawyer often enters the forum through admission pro hac vice, which Rule 5.5 recognizes as a limited, quasi-licensure form of admission before a tribunal.11 Rule 8.5(a) already makes a lawyer who offers legal services in a jurisdiction subject to its disciplinary authority.12 Paragraph (b)(1) adds that the forum measures the lawyer’s conduct in the pending case against the forum’s own rules.
The forum default keeps a proceeding workable. If every lawyer carried a home-state code into the same courtroom, opposing counsel from two states would stand before one judge under different duties, and the judge would have to apply several codes in a single case. One forum code gives the tribunal, the parties, and every lawyer the same yardstick. That is the single-set-of-rules goal in concrete form.
The exception for the tribunal’s own rules has a separate reason. A tribunal has the strongest interest in regulating its own proceedings, so when it says which rules govern, its choice displaces the default. The comment extends the exception to the tribunal’s choice of law rule: a court that directs lawyers appearing before it to follow another jurisdiction’s code controls the answer.13 Federal tribunals call for particular care, because the governing rules may be those of the state where the federal court sits, the court’s own independently promulgated rules, or some combination of the two. The lawyer must identify which.14
The fact that moved the answer is where the tribunal sits. The lawyer’s license, office, and home all point to State A, and none of them changes the result once the conduct belongs to a case pending in State B. Check first whether the tribunal’s own rules speak to the question, because a rule of that kind overrides the default.
The limiting word in the rule is pending. A lawyer preparing a case not yet filed is acting in anticipation of a proceeding, and that conduct falls outside paragraph (b)(1) and into (b)(2).15 The reason follows from the reason for the default. Before filing, no tribunal has the matter, so there is no proceeding in which one forum code could spare everyone confusion. The expected forum also does not win automatically, because for conduct in anticipation of a proceeding likely to be before a tribunal, the predominant effect could lie where the conduct occurred, where the tribunal sits, or in another jurisdiction.16
A stem that says a lawyer is “planning to sue” or “expects to litigate” in another state is testing the word pending. The expected forum’s rules govern only when the conduct connects with a matter already before the tribunal.
Other Conduct and Predominant Effect
Rule 8.5(b)(2) governs every piece of lawyer conduct that paragraph (b)(1) leaves behind. Its first sentence directs the disciplinary authority to apply “the rules of the jurisdiction in which the lawyer’s conduct occurred,” and adds that if “the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct.”19 Predominant effect is the place where the consequences of the conduct chiefly fall, which can differ from the place where the lawyer was sitting. The comment fixes the paragraph’s reach: all conduct other than conduct relating to a pending proceeding, including conduct in anticipation of a proceeding not yet pending.20 That makes (b)(2) the test for the large body of nonadjudicative work, such as counseling, drafting, and negotiating, that no court supervises as it happens.21
The paragraph runs in two steps, a default and an exception, and each has its reason. The default is the place of the conduct. A lawyer always knows where the lawyer is when acting, so the governing rules can be identified before the act, without any prediction about its consequences. The exception is the place of predominant effect. The spot where a lawyer happens to sit may have little connection to the spot where the conduct matters, and the jurisdiction whose citizens bear the consequences has the stronger regulatory interest. By looking only at these two places, the rule stays simple while balancing the disciplinary interests of the states involved against the lawyer’s reasonable expectations.22
Both lawyers work from State A, so the lawyer’s location cannot separate the two outcomes. What separates them is where the consequences land: the lease advice stays within State A, while the results of the transaction fall in State B. State A keeps its authority to discipline both lawyers under Rule 8.5(a), and the second lawyer’s conduct is simply measured against State B’s rules.23
A lawyer who prepares a suit not yet filed shows the same test at work. The comment lists three candidates for the predominant effect of such pre-filing conduct: where the conduct occurred, where the tribunal sits, and another jurisdiction.24 Pre-filing work can touch the lawyer’s own office, the forum where suit will land, and a third place where witnesses, property, or the client’s operations are located. The answer depends on where the effect of the particular conduct predominantly falls.
The choice matters most where two jurisdictions impose opposite duties on the same facts, and two neighboring states’ confidentiality rules show how far apart those duties can sit.25 Iowa requires a lawyer to disclose confidential information to the extent the lawyer reasonably believes necessary to prevent imminent death or substantial bodily harm. South Dakota permits disclosure only to prevent the client from committing a criminal act the lawyer believes is likely to result in that harm.26 Under Iowa’s rule, silence in the face of such a threat is a violation. Under South Dakota’s rule, as quoted here, the lawyer has discretion when the client is the source of the threat and no permission when the harm would come from someone else’s act. The details of the confidentiality rule belong elsewhere. The point here is that the choice-of-law answer can decide which of two opposite instructions binds the lawyer.
The comment recognizes that conduct with significant contacts in more than one jurisdiction may leave it unclear whether the predominant effect lies somewhere other than where the conduct occurred.27 The second sentence of Rule 8.5(b)(2) answers that uncertainty, and the next subsection takes it up. For now, the working method is to start from the place of conduct and ask whether the consequences fall chiefly somewhere else.
Reasonable Belief Safe Harbor
Rule 8.5(b)(2) ends with a sentence that works as a shield: “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.”30 A safe harbor protects conduct from sanction when the conduct meets stated conditions. The rule needs one because predominant effect depends on where consequences will fall, and a lawyer must act before those consequences exist. The comment concedes the difficulty: when conduct has significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect will occur somewhere other than where the conduct took place.31 The safe harbor carries out the third design goal, protection from discipline for lawyers who act reasonably in the face of uncertainty.32
Picture the rule without it. A lawyer studies a matter, concludes that its effects will fall in State B, and follows State B’s rules on a point where State A’s rules are stricter. Years later a disciplinary body weighs the contacts differently and decides that State A’s rules governed. Without a safe harbor, the lawyer’s compliance would depend on predicting the conclusion of a regulator who has not yet looked at the matter, and no amount of care could guarantee a correct prediction. The safe harbor changes the question. The disciplinary authority no longer asks whether the lawyer matched its eventual view of predominant effect. It asks whether the lawyer’s own belief about where the effect would fall was reasonable, and whether the conduct conformed to that jurisdiction’s rules.
Those two requirements are the working parts of the sentence. Run them in order.
The third step does the real work, and the word reasonably explains why. A purely subjective test would let a lawyer choose the most permissive code available and then claim to have believed its jurisdiction would feel the effects. The reasonableness requirement ties the belief to the facts of the matter: where the client is located, where the property or parties are, and what the transaction is meant to accomplish. Where that inquiry produces a genuine disagreement, the rule gives the lawyer some room. If the disciplinary body finds that reasonable lawyers could disagree about where the predominant effect would be felt, the lawyer’s own expectation receives appropriate deference.33 Deference matters only in the middle ground. Where the facts point clearly to one jurisdiction, a lawyer who chose another has no disagreement to lean on.
The contrasting case is the lawyer who simply picks the most convenient code.
What separates the two lawyers is the connection between the matter and the jurisdiction whose rules each followed. Both conformed to some code, and both could say they believed the chosen jurisdiction applied. Only the first lawyer’s belief rested on facts that made it reasonable. A stem that says only that a lawyer “believed” a particular jurisdiction’s rules governed does not trigger the protection, because the belief must also be reasonable on the facts given.
The comment adds a point for conflicts of interest. In judging the reasonableness of a lawyer’s belief under paragraph (b)(2), a written agreement between lawyer and client that reasonably specifies a particular jurisdiction as within the scope of that paragraph may be considered, if the client gave informed consent and the agreement confirms it.34 Each phrase limits the agreement’s effect. The verb may makes it one factor in the reasonableness inquiry, so it feeds the analysis without replacing it. The phrase “reasonably specifies” means the named jurisdiction must be one that could sensibly be the place of predominant effect, so a clause naming a jurisdiction with no connection to the matter adds little. Informed consent, confirmed in the agreement itself, keeps the clause from being boilerplate the client never weighed. A client’s considered agreement is evidence that the lawyer’s belief was reasonable and not a justification invented after the fact.
Two boundaries remain. The protection shields the lawyer from discipline; it does not decide which jurisdiction’s rules govern. A disciplinary authority may find that the predominant effect was elsewhere and still decline to sanction a lawyer who conformed to the rules of the place the lawyer reasonably expected. The protection also sits inside paragraph (b)(2), which covers conduct other than conduct connected with a pending matter.35 For a pending matter, paragraph (b)(1) fixes the rules by an objective fact, the location of the tribunal, so the lawyer has no prediction about effects to get wrong.
Coordinating Multiple Regulators
The third sentence of Rule 8.5(a) lets a lawyer be subject to the disciplinary authority of both the admitting jurisdiction and another jurisdiction for the same conduct, and nothing in the rule makes one jurisdiction step aside for the other.38 Two regulators with independent power over one lawyer create a risk: each could reach its own conclusion about which rules the lawyer had to follow. The comment answers that risk directly. If two admitting jurisdictions proceed against a lawyer for the same conduct, they should apply Rule 8.5(b) to identify the same governing ethics rules, take all appropriate steps to apply the same rule to the same conduct, and in all events avoid proceeding on the basis of two inconsistent rules.39
The instruction rests on the premise behind paragraph (b), that any particular conduct should be subject to only one set of rules.40 That aim can be met only if every regulator that proceeds runs the same selection test and reaches the same answer. If each regulator applied its own preference, a lawyer admitted in two states would face two yardsticks for one act, and compliance with one regulator’s rule could draw a sanction under the other’s. The comment speaks in terms of what regulators should do and leaves each jurisdiction’s authority under Rule 8.5(a) in place. Rule 8.5(a) says who may proceed, and the coordination instruction keeps the several proceedings from contradicting one another.
The corrected version of those facts is the one the comment describes. Each agency identifies State B’s rules as governing, each retains its authority, and neither proceeds on an inconsistent rule.41 The location of the pending tribunal fixes the result. The two licenses explain why both states may proceed, and they say nothing about whose rules apply. Reciprocal enforcement of a jurisdiction’s disciplinary findings and sanctions also furthers the purposes of the rule, since a second jurisdiction that builds on the first one’s findings is less likely to reach a conflicting result.42
A stem that shows two states proceeding against one lawyer therefore asks two questions in order. The first is whether each state has authority under Rule 8.5(a), which is usually yes. The second is whether the states are applying the same rule to the conduct. An answer in which each state simply applies its own code is wrong whenever the tests in paragraph (b) point to a single jurisdiction. The same choice-of-law provision also governs lawyers engaged in transnational practice, unless international law, treaties, or agreements between competent regulatory authorities in the affected jurisdictions provide otherwise.43