When a lawyer practices across states with different ethics rules, which state's rules of professional conduct apply to the lawyer's conduct?
ABA Formal Opinion 504: Choice of Law Under Model Rule 8.5
Short answer: The opinion concludes that under Model Rule 8.5(b), a lawyer whose conduct is connected to a matter pending before a tribunal must follow the ethics rules of the jurisdiction where the tribunal sits, while for all other conduct the lawyer must follow the rules of the jurisdiction where the conduct occurs, or, if different, where the conduct's predominant effect occurs; a lawyer is not subject to discipline if the conduct conforms to the rules of the jurisdiction in which the lawyer reasonably believes the predominant effect will occur.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the American Bar Association's Model Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The opinion addresses which jurisdiction's rules of professional conduct govern when a lawyer practices the law of more than one jurisdiction with differing ethical requirements. It applies Model Rule 8.5 to five scenarios: fee agreements, law firm ownership, reporting another lawyer's misconduct, confidentiality, and screening laterally moving lawyers.
The opinion starts with Rule 8.5(a), which subjects a lawyer to the disciplinary authority of every jurisdiction where the lawyer is licensed and every jurisdiction where the lawyer offers or provides legal services, regardless of where the conduct occurred; a lawyer can be subject to discipline in more than one jurisdiction for the same conduct. Rule 8.5(b) then draws a litigation versus non-litigation line. Under 8.5(b)(1), conduct in connection with a matter pending before a tribunal is governed by the rules of the jurisdiction where the tribunal sits, unless the tribunal's rules provide otherwise. Under 8.5(b)(2), "any other conduct" is governed by the rules of the jurisdiction where the conduct occurred, or where its predominant effect occurred; Comment [4] confirms that "any other conduct" includes conduct in anticipation of a proceeding not yet pending.
Because the predominant-effect inquiry has no factors in the rule text, the opinion lists factors to weigh, including the client's location, where a transaction occurs, which substantive law applies, the location of the lawyer's principal office, where the lawyer is admitted, and which jurisdiction has the greatest interest. The opinion then applies the framework. For a fee agreement, "securing a fee agreement is 'conduct in anticipation of a proceeding not yet pending before a tribunal' and, therefore, Rule 8.5(b)(2) applies," so a lawyer admitted in and working from State X for a State X client may reasonably apply State X's Rule 1.5 even if suit will be filed elsewhere. For firm ownership, "even if the Lawyer is admitted before a tribunal in State B, pro hac vice, Lawyer's law firm ownership in State A is governed by State A's ethics rules and not State B's." For reporting misconduct connected to a pending matter, 8.5(b)(1) applies and the forum's Rule 8.3 governs. For confidentiality in a non-tribunal matter, 8.5(b)(2) applies and the predominant-effect jurisdiction's Rule 1.6 controls.
The opinion underscores the safe harbor: per its conclusion, "a lawyer will 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."
In practice
Under this opinion, a lawyer practicing across jurisdictions identifies, for each piece of conduct, whether it is connected to a matter pending before a tribunal. The opinion holds that if it is, the rules of the tribunal's jurisdiction apply under Rule 8.5(b)(1); if it is not, including conduct in anticipation of litigation not yet filed and transactional conduct, the rules of the jurisdiction where the conduct occurs or has its predominant effect apply under Rule 8.5(b)(2). For the lateral-screening scenario, the opinion notes that a litigation conflict follows the forum's screening rule, while a transactional conflict follows the predominant-effect factors, and that where the analysis is unclear it is prudent to follow the more restrictive rule and obtain informed consent confirmed in writing. The opinion also notes that lawyers may, per Comment [5], address predominant-effect uncertainty by a written choice-of-law agreement on conflicts.
Common questions
Q: If I file suit in another state, do that state's ethics rules govern everything I do on the case?
A: Per the opinion, the rules of the tribunal's jurisdiction govern conduct in connection with the matter pending before that tribunal under Rule 8.5(b)(1). Conduct that is not connected to the pending matter is governed under Rule 8.5(b)(2) instead.
Q: Which state's rules govern my fee agreement?
A: The opinion treats securing a fee agreement as conduct in anticipation of a proceeding not yet pending, so Rule 8.5(b)(2) applies, and a lawyer admitted in and working from the client's state may reasonably apply that state's fee rule even if suit is later filed elsewhere.
Q: Can another state reach my firm's ownership structure because I appeared there pro hac vice?
A: Per the opinion, no. Firm ownership is not conduct in connection with the pending matter, so under Rule 8.5(b)(2) the home state's Rule 5.4 governs the ownership structure.
Q: What protects a lawyer who has to guess which rules apply?
A: The opinion points to the Rule 8.5(b)(2) safe harbor: a lawyer is not subject to discipline if the conduct conforms to the rules of the jurisdiction in which the lawyer reasonably believes the predominant effect will occur.
Background and rules framework
The opinion interprets Model Rule 8.5 (disciplinary authority and choice of law), including 8.5(a), 8.5(b)(1), and 8.5(b)(2) and Comments [4] and [5]. It applies that framework to several substantive rules across the five scenarios: Rule 1.5 (fees), Rule 5.4 (firm ownership and fee sharing), Rule 8.3 (reporting misconduct), Rule 1.6 (confidentiality), and Rules 1.9 and 1.10 (former-client conflicts and lateral screening). It references the ABA Model Rules on Pro Hac Vice Admission and Formal Opinion 464 on fee sharing.
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 8.5 (disciplinary authority; choice of law), 8.5(a), 8.5(b)(1), 8.5(b)(2)
- ABA Model Rule 1.5 (fees), 5.4 (firm ownership), 8.3 (reporting misconduct)
- ABA Model Rule 1.6 (confidentiality), 1.9 and 1.10 (conflicts; lateral screening)
- ABA Model Rule 5.5 (multijurisdictional practice), 1.0(i) (reasonable belief)
Cases:
- Bernick v. Frost, 510 A.2d 56 (N.J. 1986)
- In re Schiller, 808 S.E.2d 378 (S.C. 2017)
Other opinions cited:
- ABA Formal Op. 464 (2013): fee sharing between firms
- NY State Bar Op. 1027 (2014): predominant-effect factors
- Massachusetts Bar Op. 12-02 (2012): different conclusion on fee-agreement choice of law
See also
- ABA Formal Op. 505: Fees Paid in Advance
- ABA Formal Op. 507: Office Sharing Arrangements
- ABA Formal Op. 509: Confidential Government Information
Source
- Landing page: ABA Formal Ethics Opinions index
- Original PDF: aba-formal-opinion-504.pdf