In a non-judicial matter outside D.C. such as a mediation or arbitration, whose rules of professional conduct govern a D.C. lawyer, and what happens when co-counsel is bound by different rules?

Plain-English summary

Opinion 311 (adopted January 15, 2002) addressed which jurisdiction's rules of professional conduct governed a D.C. Bar member acting in a non-judicial proceeding outside the District, such as a mediation, arbitration, administrative proceeding, government investigation, or commercial negotiation. The governing provision was D.C. Rule 8.5(b), the choice-of-law rule. (For conduct connected to a court proceeding, Rule 8.5(b)(1) applied the rules of the jurisdiction where the court sits.)

For non-judicial conduct, Rule 8.5(b)(2) drew two lines. If the lawyer was licensed only in D.C., D.C.'s rules governed wherever the conduct occurred, because disciplinary authority flows from admission to practice. If the lawyer was licensed in D.C. and another jurisdiction, the rules of the jurisdiction where the lawyer "principally practices" governed, unless the conduct "clearly has its predominant effect" in another jurisdiction where the lawyer was licensed, in which case that jurisdiction's rules applied. The opinion read "principal place of practice" as the physical office from which the individual lawyer (not the firm) does the largest part of the practice, with the lawyer's residence as a secondary tiebreaker, and treated the "predominant effect" exception as a narrow, bright-line-favoring test reserved for rare cases where another jurisdiction's interest is manifestly greater.

On co-counsel, the opinion concluded that a D.C. lawyer need only conform his own conduct to the rules applicable to him under these choice-of-law principles. A D.C. lawyer does not violate the rules merely because co-counsel, governed by another jurisdiction's rules, does something the D.C. lawyer could not, and the D.C. lawyer's permitted conduct is not made improper because co-counsel could not do it. The opinion grounded this in the mandatory language of Rule 8.5(b)(2)(i) and the absence of any general rule imputing one lawyer's conduct rules to another, subject to Rule 8.4(a), which still forbids a lawyer from violating the rules through the acts of another.

Currency note

The D.C. Bar flags this opinion with the note: "See how Opinion 311 has been substantively affected by the amendments to the D.C. Rules of Professional Conduct that became effective on February 1, 2007." Rule 8.5(b)'s choice-of-law provisions were among the rules revised in that amendment. Treat this page as historical context, not current guidance, and verify against the current D.C. Rules of Professional Conduct before relying on any specific provision described here.

Common questions

Q: In a mediation or arbitration outside D.C., whose ethics rules governed a D.C.-only lawyer?

A: The opinion concluded D.C.'s rules governed. Because disciplinary authority comes from admission, a lawyer licensed only in D.C. was subject to D.C.'s rules for non-judicial conduct wherever it occurred (Rule 8.5(b)(2)(i)).

Q: What governed a lawyer licensed in D.C. and another state?

A: The opinion concluded the rules of the jurisdiction where the lawyer principally practiced applied, unless the conduct clearly had its predominant effect in another jurisdiction where the lawyer was also licensed, in which case that jurisdiction's rules applied (Rule 8.5(b)(2)(ii)).

Q: How did the opinion identify a lawyer's "principal place of practice"?

A: The opinion concluded it was the physical office from which the individual lawyer (not the firm) conducts the largest portion of the practice, looking to the lawyer's residence as a secondary tiebreaker in the rare ambiguous case.

Q: Did a D.C. lawyer have to follow co-counsel's stricter rules?

A: The opinion concluded no. A D.C. lawyer needed only to conform his own conduct to the rules applicable to him and was not bound by a co-counsel's different rules, subject to Rule 8.4(a)'s bar on violating the rules through another's acts.

Background and rules framework

The opinion interpreted D.C. Rule 8.5(b) (choice of law), adopted in November 1996 and then identical to ABA Model Rule 8.5, together with Rule 8.4(a) (misconduct, including acting through another). It relied on the rule's stated goal of subjecting particular conduct to only one set of rules, and on commentary describing the "predominant effect" exception as narrow. As the Currency note records, Rule 8.5(b) was revised effective February 1, 2007.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 8.5(b) / Model Rule 8.5 (choice of law; revised effective Feb. 1, 2007)
• D.C. RPC 8.4(a) / Model Rule 8.4 (misconduct; violating the rules through another)

Cases:

• In re Gonzalez, 773 A.2d 1026 (D.C. 2001) (D.C. lawyer disciplined under Virginia rules for conduct before a Virginia court)
• In re Wade, 526 A.2d 936 (D.C. 1987) (discipline for out-of-jurisdiction conduct based on D.C. membership)
• Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982) (state interest in regulating its bar)

Other opinions cited:

• D.C. Ethics Opinions 167, 264, 278
• ABA Formal Opinions 91-360 (1991) and 01-423 (2001)
• Restatement (Third) of the Law Governing Lawyers Section 5

See also

• ABA Formal Op. 504: Choice of Law Under Rule 8.5
• ABA Formal Op. 91-360: Extrajurisdictional Effect of Nonlawyer Partnerships
• ABA Formal Op. 01-423: Partnerships With Foreign Lawyers
• RI EAP Op. 2007-10: Disclosure to Out-of-State Regulator by RI/NY-Admitted Lawyer Is Governed by New York's Rules Under Rule 8.5

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-311