Concept

Consistency Across Jurisdictions

Choice of law for discipline under Rule 8.5(b)

Consistency Across Jurisdictions

A choice-of-law rule that picks one rule set for each act keeps its promise only if every body with power over the lawyer applies it the same way. Rule 8.5(b) selects the rules of the tribunal's jurisdiction for conduct in connection with a pending matter, and the rules of the place of conduct or predominant effect for everything else.¹ The rule is designed to specify the single ethical regime that governs any particular occasion of professional conduct.² A lawyer admitted in two states, however, answers to two disciplinary bodies, and each must run the analysis for itself. Comment [6] speaks to that situation: if two admitting jurisdictions were to proceed against a lawyer for the same conduct, they should, applying this rule, identify the same governing ethics rules.³

The instruction follows from what paragraph (b) promises. Its premise is that minimizing conflicts between rules, and uncertainty about which rules apply, serves clients, the profession, and the regulators alike. It therefore provides that any particular conduct of a lawyer is subject to only one set of rules.⁴ Even a sound text can fail in application. Two bodies could each start from paragraph (b) and still disagree about where the predominant effect of the conduct lies, because Comment [5] concedes that the answer may not be clear when the conduct has significant contacts with several jurisdictions.⁵ One body might also skip the analysis and measure the lawyer against its own code. Either way, a single act is judged by two standards. One body finds the lawyer compliant and the other finds a violation, and the lawyer cannot conform to commands that point in opposite directions. Comment [6] asks the bodies to treat the choice-of-law answer as a shared one, so that the one-rule-set aim is met across the whole system and not merely inside each separate proceeding.

The comment gives the bodies three instructions, each a step beyond the last.⁶

Each body should apply the choice-of-law rule and identify the same governing ethics rules for the conduct.
Each body should take all appropriate steps to see that it does apply the same rule to the same conduct. That is an obligation to coordinate, and it goes beyond hoping the answers happen to match.
In all events, neither body should proceed against the lawyer on the basis of two inconsistent rules. This is the floor that remains even when coordination falls short.

The comment constrains the disciplinary bodies and gives the lawyer no rule of decision. The lawyer's own protection when the location of the effect is uncertain is the reasonable-belief clause of paragraph (b)(2), covered above, and Comment [6] works from the opposite side by binding the bodies that will later review the lawyer's forecast. The text refers to two admitting jurisdictions, the clearest case of overlapping authority, but the underlying design is a single regime for each occasion of conduct, so the identified rules set the standard wherever the lawyer is disciplined.⁷

Hypothetical Illustration

A lawyer licensed in both Iowa and South Dakota learns from a client that a person faces an imminent threat to life, and the threat does not come from any criminal act by the client. The person at risk is in Iowa. Suppose each licensing board simply applied its own confidentiality rule. South Dakota's rule permits revealing information only to prevent a criminal act by the client, so it would bar disclosure. Iowa's rule would compel it. A lawyer who disclosed would face South Dakota discipline, and a lawyer who stayed silent would face Iowa discipline, so nothing the lawyer did could satisfy both bodies. Now suppose both boards run paragraph (b)(2) as Comment [6] directs. Each locates the predominant effect in Iowa, where the person at risk is, and each identifies Iowa's confidentiality rule as the governing one. The lawyer who disclosed is then judged by that single standard in both proceedings.⁸

The lawyer, the client, and the disclosure are identical in both versions of the story. Only the bodies' choice of yardstick differs, and that choice decides whether the lawyer can comply at all.

An essay stem that puts two licensing states in separate proceedings against one lawyer invites the answer that each state applies its own rules because each has authority over its own licensee. That answer merges two questions the chapter separated at the start. Each state's authority is real, but authority does not decide which rules measure the conduct. Paragraph (b) decides that, and Comment [6] directs both bodies to the same answer.

The same logic crosses national borders. Comment [7] provides that the choice of law provision applies to lawyers engaged in transnational practice, unless international law, treaties, or other agreements between competent regulatory authorities in the affected jurisdictions provide otherwise.⁹ The exception echoes paragraph (b)(1), where a tribunal's own rules can displace the default. Regulators who have already agreed among themselves on which rules govern have answered the question the default exists to answer. Applying the default over their agreement could recreate the very inconsistency the rule is meant to prevent.

Consistency Across Jurisdictions

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