Authority Versus Choice of Law

Choice of Law in Discipline

Authority Versus Choice of Law

Rule 8.5 answers two different questions in two different paragraphs, and every discipline problem goes more smoothly once you keep them apart. Paragraph (a) asks which jurisdictions may discipline a lawyer.¹ Paragraph (b) asks something that comes up only after a jurisdiction is exercising that authority: which rules of professional conduct should it apply to the conduct in front of it?² The first question concerns power over the lawyer. The second concerns the yardstick used once that power exists.

Paragraph (a) gives a jurisdiction two independent grounds for authority. A lawyer admitted to practice there is subject to its disciplinary authority regardless of where the conduct occurs. A lawyer not admitted there is subject to it as well if the lawyer provides or offers to provide any legal services in the jurisdiction. And a single act of conduct can place a lawyer under the authority of this jurisdiction and another at the same time.³ The two grounds rest on different interests. Authority over admitted lawyers is longstanding law, and extending it to other lawyers who provide or offer services in the jurisdiction protects the jurisdiction's citizens.⁴ One treatise adds that lawyers increasingly practice across state lines, whether licensed in more than one state or not, so Rule 8.5 confirms a state's power over its own admitted lawyers wherever they act and over unadmitted lawyers who choose to provide or offer legal services in the state.⁵

Because each ground stands alone, several jurisdictions can claim the same conduct, and their rules may differ. A lawyer may hold licenses in jurisdictions with different rules, may be admitted 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.⁶ If every disciplinary body applied only its own rules, one act could be proper under one body's rules and sanctionable under another's. The lawyer could not conform to inconsistent commands or predict which one would later be enforced. The commentary therefore tells two admitting jurisdictions that proceed against a lawyer for the same conduct to identify the same governing rules and to avoid proceeding on the basis of two inconsistent rules.⁷

Paragraph (b) is the device that prevents that result. Its premise is that minimizing conflicts between rules, and uncertainty about which rules apply, serves clients, the profession, and the bodies that regulate it. It therefore subjects any particular conduct to only one set of rules, makes the choice of that set as straightforward as it can while respecting the regulatory interests of the jurisdictions involved, and protects from discipline lawyers who act reasonably in the face of uncertainty.⁸ The rule works by selecting among rule sets, not by limiting jurisdiction. A state with authority under (a) keeps that authority and consults (b) only to decide which rules it applies in exercising it.⁹ Choice of law thus presupposes authority and can neither create nor remove it.

How often does this matter? Less often than the alarm about multistate practice suggests. The states have widely adopted the Model Rules with mostly minor variations, so a true conflict, in which different jurisdictions impose contradictory duties, is likely to be rare, and the outcome ordinarily does not turn on differences between regimes.¹⁰ Professor Geoffrey Moulton likewise concludes that the calls to alarm are exaggerated. Few state rules are in direct and irreconcilable conflict, and the work of many, or even most, lawyers is confined to one state.¹¹ Rarity does not make the framework optional. Rule 8.5 is designed to specify the single ethical regime that governs any particular occasion of professional conduct, and a lawyer caught between rules that point in different directions needs exactly that.¹²

To decide whether a fact pattern raises a choice-of-law problem, ask the questions in order. First, does more than one jurisdiction have authority under paragraph (a)? Second, if so, which rules does paragraph (b) select? Two lawyers, neither of them licensed in State B, show how the first question comes out on each side.

The single fact that separates the two lawyers is whether the lawyer provided or offered services in State B. A lawyer admitted in two states presents the overlap from the other direction, because each admission supplies authority on its own, wherever the conduct occurs. When authorities overlap, the lawyer faces competing claims, and paragraph (b) resolves them.