Which state's ethics rules govern a Massachusetts-licensed civilian Navy lawyer advising the Navy from a base outside Massachusetts?

Plain-English summary

Several Massachusetts-licensed lawyers working as civilian Navy employees outside Massachusetts asked whether the fact that they themselves faced furlough affected their ability to advise the Navy on furlough policy and other matters. The Navy General Counsel's office had directed them to seek guidance from their licensing jurisdictions about potential conflicts. The opinion's threshold question is which jurisdiction's professional-responsibility law the Supreme Judicial Court would apply.

The opinion applies the Massachusetts version of Model Rule 8.5(b), which the committee describes as a nonstandard choice-of-law rule. For conduct before a governmental tribunal, the rules of the tribunal's jurisdiction apply; for other conduct, the rules of the jurisdiction of the lawyer's principal office apply unless the conduct's predominant effect is elsewhere. The committee reasons it is difficult to view Massachusetts as the principal office for these lawyers, and that the predominant effect of their conduct is wherever they operate or the Navy's nerve center, not Massachusetts.

The opinion notes the conflict question would likely turn on the validity under federal law of the Secretary of the Navy's conflict waiver and the lawyers' ability to meet its conditions, matters of substantive and other-jurisdiction law on which the committee may not advise. It concludes that the best advice it can give is that, under the Massachusetts rules, federal rather than Massachusetts professional-responsibility law governs the lawyers' conduct in giving the furlough advice; Massachusetts law would apply only if a professional-responsibility issue arose in relevant Massachusetts litigation.

In practice

Under this opinion, the choice-of-law analysis for a Massachusetts-licensed lawyer practicing elsewhere runs through Rule 8.5(b): the rules of the principal-office jurisdiction apply unless the predominant effect of the conduct is in another jurisdiction. The opinion concludes that, for the inquiring Navy lawyers, neither the principal office nor the predominant effect points to Massachusetts, so federal professional-responsibility law governs the furlough advice.

The opinion also marks the limits of the committee's role: it does not advise on substantive law, on another jurisdiction's law, or on the validity of the Navy's federal conflict waiver, which it identifies as the likely crux of the conflict question.

Common questions

Q: Why doesn't Massachusetts law apply to a Massachusetts-licensed lawyer here?

A: The opinion applies Rule 8.5(b) and concludes that neither the lawyers' principal office nor the predominant effect of their conduct is in Massachusetts, so Massachusetts rules do not govern.

Q: What would the conflict question actually turn on?

A: Per the opinion, it would likely turn on whether the Secretary of the Navy's conflict waiver is valid under federal law and whether the lawyers can meet the waiver's conditions, which are federal-law questions the committee cannot resolve.

Q: When could Massachusetts rules come into play?

A: The opinion states Massachusetts law would apply to the furlough inquiries only if a professional-responsibility issue arose in the course of relevant litigation in a Massachusetts court.

Background and rules framework

The opinion interprets the Massachusetts version of Rule 8.5(b) (choice of law / disciplinary authority), which it characterizes as nonstandard, and references Rule 1.7 (conflicts of interest) as the substantive concern underlying the furlough inquiries. Rule 8.5 corresponds to ABA Model Rule 8.5.

Citations and references

Rules of Professional Conduct:

• MR 8.5 / Mass. R. Prof. C. 8.5(b) (choice of law; disciplinary authority)
• MR 1.7 / Mass. R. Prof. C. 1.7 (conflicts of interest)

See also

• ABA Ethics Op. 504: choice of law under Rule 8.5

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-2014-opinion-14-1/opinion-14-1