(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the Rules of Professional Conduct to be applied shall be as follows:
(1) For conduct in connection with a matter pending before a tribunal, the rules to be applied shall be the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise, and
(2) For any other conduct,
(i) If the lawyer is licensed to practice only in this jurisdiction, the rules to be applied shall be the rules of this jurisdiction, and
(ii) If the lawyer is licensed to practice in this and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct.
Comment
Disciplinary Authority
[1] Paragraph (a) restates long-standing law.
Choice of Law
[2] A lawyer may be potentially subject to more than
one set of rules of professional conduct which impose different obligations.
The lawyer may be licensed to practice in more than one jurisdiction
with differing rules, or may be admitted to practice before a particular
court with rules that differ from those of the jurisdiction or jurisdictions
in which the lawyer is licensed to practice. In the past, decisions
have not developed clear or consistent guidance as to which rules apply
in such circumstances.
[3] Paragraph (b) seeks to resolve such potential
conflicts. Its premise is that minimizing conflicts between rules, as
well as uncertainty about which rules are applicable, is in the best
interest of both clients and the profession (as well as the bodies having
authority to regulate the profession). Accordingly, it takes the approach
of (i) providing that any particular conduct of an attorney shall be
subject to only one set of rules of professional conduct, and (ii) making
the determination of which set of rules applies to particular conduct
as straightforward as possible, consistent with recognition of appropriate
regulatory interests of relevant jurisdictions.
[4] Paragraph (b) provides that as to a lawyer’s
conduct relating to a matter pending before a tribunal the lawyer shall
be subject only to the rules of professional conduct of that tribunal.
As to all other conduct, paragraph (b) provides that a lawyer licensed
to practice only in this jurisdiction shall be subject to the rules
of professional conduct of this jurisdiction, and that a lawyer licensed
in multiple jurisdictions shall be subject only to the rules of the
jurisdiction where he or she (as an individual, not his or her firm)
principally practices, but with one exception: if particular conduct
clearly has its predominant effect in another admitting jurisdiction,
then only the rules of that jurisdiction shall apply. The intention
is for the latter exception to be a narrow one. It would be appropriately
applied, for example, to a situation in which a lawyer admitted in,
and principally practicing in, State A, but also admitted in State B,
handled an acquisition by a company whose headquarters and operations
were in State B of another similar such company. The exception would
not appropriately be applied, on the other hand, if the lawyer handled
an acquisition by a company whose headquarters and operations were in
State A of a company whose headquarters and main operations were in
State A, but which also had some operations in State B.
[5] 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. They should take all appropriate
steps to see that they do apply the same rule to the same conduct, and
in all events should avoid proceeding against a lawyer on the basis
of two inconsistent rules.
[6] 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.
