Working Through a Problem

Every Rule 8.5(b) problem begins with one question: was the conduct connected with a matter pending before a tribunal? The rule does not limit who may be disciplined. Paragraph (a) already subjects any lawyer licensed or practicing in a state to that state's disciplinary authority, and paragraph (b) supplies the framework for deciding whose substantive rules apply when more than one jurisdiction points at the lawyer.¹

Paragraph (b)(1) reaches conduct in connection with a matter pending before a tribunal and selects the rules of the jurisdiction in which the tribunal sits, unless the tribunal's rules provide otherwise.² Paragraph (b)(2) reaches "any other conduct." It applies the rules of the jurisdiction in which the lawyer's conduct occurred, switches to another jurisdiction's rules if the predominant effect of the conduct is there, and shields a lawyer whose conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect will occur.³ Because (b)(2) covers only what (b)(1) leaves over, the tribunal question must be answered first. The safe harbor comes last because it is a sentence inside (b)(2) and does its work only when the place of the effect is in doubt. A candidate who opens with predominant effect on a stem about a motion filed in court has picked the wrong track, and one who invokes reasonable belief for courtroom conduct has reached for a protection that (b)(1) does not contain.

Exam Analysis Steps

Choice of law only selects the yardstick for a body that already has power over the lawyer, so the sequence assumes some jurisdiction is exercising disciplinary authority under paragraph (a). Each later question presupposes the answer to the earlier one:

Ask whether the conduct was in connection with a matter actually pending before a tribunal when the lawyer acted. A dispute that is merely expected is not yet pending.
If a matter was pending, apply the rules of the jurisdiction in which the tribunal sits, after checking whether the tribunal's own rules direct that other rules apply.⁴
If no matter was pending, start with the rules of the jurisdiction in which the lawyer's conduct occurred, and replace them with another jurisdiction's rules only if the predominant effect of the conduct is in that jurisdiction.⁵
If the location of the effect is uncertain, ask whether the lawyer reasonably believed the predominant effect would occur in a jurisdiction whose rules the conduct actually conformed to. A lawyer who satisfies both conditions is not subject to discipline.⁶

An examiner who wants to test whether you ask the tribunal question first can hold the kind of step constant and vary only the procedural status of the matter, because that single fact decides which track applies. The first scene below never leaves step 2.

The only role paragraph (a) plays here is to place a lawyer who practices in State B within that state's disciplinary reach. Paragraph (b)(1) then tells State B which rules to apply to the step.⁷

Hypothetical Illustration

A State A client expects to be sued by a State B supplier and asks a different lawyer, also admitted only in State A, for advice. The lawyer works in a State A office, no complaint has been filed anywhere, and the advice involves the same kind of step that State A permits and State B forbids. Step 1 finds no matter pending before a tribunal, so paragraph (b)(1) is unavailable. Under step 3 the conduct occurred in State A, so State A's rules apply unless the predominant effect is in State B, and that is arguable, since the client is in State A but the counterparty and the likely forum are in State B. Step 4 resolves the doubt. The lawyer reasonably believed the predominant effect would fall in State A and the advice conformed to State A's rules, so the lawyer is not subject to discipline however a disciplinary body ends up placing the effect.

The two scenes separate at step 1 and nowhere else. The first lawyer is measured by State B's rules without any inquiry into belief. The second lawyer's exposure turns on where the conduct occurred and where its effect falls, and the safe harbor answers any doubt about the effect. A tribunal that already has the matter fixes the governing rules by its location, whereas conduct that precedes any filing has to be placed by looking at where the lawyer acted and where the effect lands.

The placement of the safe harbor explains why it never applies to the first lawyer and how it can fail for the second. It never reaches the first lawyer because the protective sentence sits in paragraph (b)(2), while paragraph (b)(1) selects the rules by the tribunal's location without asking what the lawyer expected.⁸ It fails for the second lawyer if the belief about State A was unreasonable, as it likely would be if the client, the counterparty, and the consequences all sat in State B. It also fails if the step violated State A's own rules, since the clause protects only conduct that conforms to the rules of the jurisdiction where the lawyer reasonably expected the effect. In either case the answer reverts to the place-of-conduct-or-effect analysis in step 3.

The whole sequence matters only when the candidate rule sets differ on the point at issue. The states have widely adopted the Model Rules with mostly minor variations, so a true conflict is unlikely in most cases, and where State A and State B say the same thing the choice between them changes nothing.⁹ An essay stem therefore plants a specific divergence, such as the forbidden step in the two scenes above, and the work is to route that divergence to the right rule set in the right order.

Working Through a Problem

Endnotes10