I'm licensed in both Rhode Island and New York. As a former general counsel to a New York nonprofit, I made representations to a New York regulator that I now believe are no longer true. Which state's ethics rules govern whether I can disclose this to the regulator?

Plain-English summary

The inquiring attorney, licensed in both New York and Rhode Island, formerly served as general counsel for a New York charitable organization that sold gift annuities and was regulated by New York's insurance regulator. After the regulator threatened to revoke the organization's license for noncompliance, the attorney represented the organization in negotiations and made representations to the regulator, true at the time, that led the regulator to preserve the license. Months after resigning as general counsel, the attorney came to believe those representations might no longer be accurate and that the organization might be in default of its commitments to the regulator and its fiduciary obligations to annuitants. The attorney asked the panel whether disclosure to the New York regulator was permissible.

The panel explained it would ordinarily decline to opine and refer the inquiry to the New York ethics committee, but issued the opinion to highlight recently adopted amendments to Rhode Island Rule 8.5, effective April 15, 2007. Rule 8.5(b) provides that for conduct connected to a matter before a tribunal, the rules of the jurisdiction where the tribunal sits apply; for other conduct, the rules of the jurisdiction where the lawyer's conduct occurs apply, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction apply. Applying this framework, the panel found that because the attorney's proposed disclosure concerns a New York client under a New York license, and both the conduct and its predominant effect are in New York, New York's ethics rules govern the disclosure question, and the panel accordingly limited itself to identifying the applicable rule set rather than resolving the underlying confidentiality question.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, a dually admitted lawyer's proposed disclosure of information relating to a former client is governed by the ethics rules of the jurisdiction where the conduct occurs or, if different, the jurisdiction where the conduct's predominant effect is felt, per Rule 8.5(b). Because the panel's own jurisdiction is limited to interpreting the Rhode Island rules, it directed the attorney to the New York ethics committee for guidance on the disclosure itself.

Common questions

Q: I'm licensed in two states. Which state's ethics rules apply when I'm deciding whether to disclose information about a former client to an out-of-state regulator?

A: Per this opinion's application of Rule 8.5(b), it depends on where the conduct occurs or, if different, where the predominant effect of the conduct is felt, not simply where the lawyer happens to also be licensed.

Q: If a matter is pending before a tribunal, does the same choice-of-law analysis apply?

A: No. The opinion notes that Rule 8.5(b)(1) applies a different test for conduct connected to a matter pending before a tribunal: the rules of the jurisdiction where the tribunal sits govern, unless the tribunal's own rules provide otherwise.

Q: Will the Rhode Island panel decide whether my proposed disclosure is permissible if another state's rules govern?

A: Not according to this opinion. The panel stated its jurisdiction is limited to interpreting the Rhode Island Rules of Professional Conduct and directed the attorney to seek guidance from the ethics committee of the state whose rules govern the conduct.

Background and rules framework

The opinion interprets Rhode Island Rule 8.5(b) (Choice of Law), which tracks Model Rule 8.5(b) and was amended effective April 15, 2007. Rule 8.5(b) resolves which jurisdiction's ethics rules apply to a lawyer's conduct when the lawyer may be subject to more than one set of rules: for conduct connected to a matter pending before a tribunal, the rules of the jurisdiction where the tribunal sits apply (unless the tribunal's rules provide otherwise); for other conduct, the rules of the jurisdiction where the conduct occurs apply, or, if the predominant effect of the conduct is felt in a different jurisdiction, the rules of that jurisdiction apply. As the opinion quotes from the Comment, this framework is meant to subject any particular conduct to only one set of rules and to protect a lawyer from discipline who reasonably identifies the jurisdiction of predominant effect.

Citations and references

Rules of Professional Conduct:

• MR 8.5(b) (choice of law; conduct before a tribunal versus other conduct; predominant-effect test)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• NYSBA Op. 750: Application of Disciplinary Authority and Choice of Law Rules
• DC Bar Op. 311: Choice-of-Law Rules for Professional Conduct in Non-Judicial Proceedings
• NYSBA Op. 1054: Choice of Law for a Virtual Law Office in Another State
• ABA Formal Op. 504: Choice of Law

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202007-10.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

               Rhode Island Supreme Court Ethics Advisory Panel
                              Opinion No. 2007-10
                             Issued August 9, 2007

Facts:

    The inquiring attorney is licensed to practice law in New York and in Rhode Island.

He/she was the general counsel for several years for a New York charitable organization
that sold gift annuities as a fund raising mechanism. The organization therefore was
subject to the jurisdiction of New York's insurance regulatory agency and its rules and
regulations. The insurance regulatory agency had notified the organization that it was in
noncompliance with certain regulations, and had threatened to revoke the organization's
license to sell annuities.

    The inquiring attorney represented the organization in discussions and negotiations

with the insurance regulator in an effort to prevent the revocation of the organization's
license. On the basis of representations that the organization authorized the inquiring
attorney to make to the regulator, the regulator did not revoke the organization's license to
sell annuities.

    The inquiring attorney later resigned as general counsel for the organization.

Several months after resigning, the inquiring attorney learned that representations that
he/she had made to the regulatory agency relating to the organization's compliance, though
true when he/she made them, may not be true now. The inquiring attorney believes that
the organization may have reneged on some of the commitments it made to the regulatory
agency as conditions to retaining its license. He/she also believes that the organization
may be in default of its fiduciary obligations to annuitants. The inquiring attorney asks if
he/she is permitted to alert the New York regulatory agency.

Issue Presented:

   The inquiring attorney asks this Panel whether it is permissible for him/her to

disclose to a New York insurance regulatory agency information relating to the
representation of a New York client.

Opinion:

    Pursuant to the recently adopted choice of law provisions of Rule 8.5 of the Rhode

Island Supreme Court Rules of Professional Conduct, the permissibility of the proposed
disclosure is governed by the ethics rules of the jurisdiction in which the conduct will
occur; or if the predominant effect of the conduct is in a different jurisdiction, then the
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ethics rules of that jurisdiction shall apply. The Panel advises the inquiring attorney to
seek guidance on the permissibility of the proposed disclosure from the New York ethics
committee.

Reasoning:

    Under these facts, the Panel would ordinarily decline to render an advisory opinion

and would refer the inquiring attorney to its counterpart in New York. However, the Panel
issues this opinion to highlight recent additions to Rule 8.5 of the Rhode Island Supreme
Court Rules of Professional Conduct, effective April 15, 2007, relating to choice of law.
In pertinent part, Rule 8.5 states as follows:

   (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 of the jurisdiction in which the tribunal
            sits, unless the rules of the tribunal provide otherwise; and

            (2) for any other conduct, the rules of the jurisdiction in
            which the lawyer's conduct occurred, or, if the predominant
            effect of the conduct is in a different jurisdiction, the rules
            of that jurisdiction shall be applied to the conduct. A
            lawyer shall 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.

The Comment to Rule 8.5 explains:

              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 different 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. Additionally, the
         lawyer's contact may involve significant contacts with
         more than one jurisdiction.

             Paragraph (b) seeks to resolve such potential conflicts.
         Its premise is that minimizing conflicts between rules, as

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          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 a lawyer shall be subject to only one
          set of rules of professional conduct, (ii) making the
          determination of which set of rules applies to particular
          conduct as straightforward as possible with recognition of
          appropriate regulatory interests of relevant jurisdictions,
          and (iii) providing protection from discipline for lawyers
          who act reasonably in the face of uncertainty.

     The inquiring attorney, who is licensed to practice law in Rhode Island and in

New York, proposes to disclose to a New York regulatory agency information relating to
the representation of a New York client under a New York license. Pursuant to Rule 8.5
(b)(3), the rules of the jurisdiction in which a lawyer's conduct occurs shall apply to the
conduct. If the predominant effect of the conduct is in a different jurisdiction, then the
rules of that jurisdiction shall apply.

    The Panel is of the opinion that under the facts presented in this inquiry, and in

accordance with Rule 8.5(b)(2), the permissibility of the proposed disclosure is governed
by the ethics rules of the State of New York. Inasmuch as this Panel's jurisdiction is
limited to interpreting the Rhode Island Rules of Professional Conduct, the Panel advises
the inquiring attorney to seek guidance on the permissibility of the proposed disclosure
from the New York ethics committee.