May 9, 2008
Choice Of Disciplinary Law
The Massachusetts Supreme Judicial Court has proposed amendments to its Rule 8.5, governing choice of law in the application of rules of professional conduct. Noting that there is no completely satisfactory solution to choice of ethics law so long as there are state variations of the rules, the court states:
The proposed Rule goes on to follow the principle set forth in the current version of Model Rule 8.5(b) that recognizes that a lawyer's practice in 2008 may primarily affect the interests of another jurisdiction. Following a proviso in the ABA Model Rule, the proposal states that if "the predominant effect of the lawyer's conduct is clearly in another jurisdiction, then the rules of that other jurisdiction shall apply." The focus here is not on the jurisdiction where the lawyer's conduct occurs but on the jurisdiction where the primary effect of that conduct occurs. The formulation of this condition recognizes that the public policy interests of a lawyer's conduct may be so concentrated in another jurisdiction that that jurisdiction's professional responsibility rules should govern the lawyer's conduct. In like manner, Massachusetts professional responsibility rules might well govern the conduct of a State A lawyer who receives confidential information from a client about an impending crime, fraud, or environmental disaster in Massachusetts when State A has adopted Model Rule 8.5(b).
As the example from the above excerpt suggests, the choice of law issue may present itself in evaluating the appropriate response to client fraud. This is an area where the state bar rules vary in significant ways. (Mike Frisch)
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If a lawyer renders advice on a question that is governed exclusively by Federal law and concerning which a remedy could be pursued only in Federal courts, in which State (if any) does his or her conduct have its "predominant effect" - the State in which the client is organized? the State in which the client has its principal office? the State in which a person to whom the client owes a duty resides? If the residence of persons other than the client matters, would a fact that 70% of those persons reside in State A mean that the lawyer's conduct (which usually would be his or her decision about whether to reveal a confidence or secret without the client's consent) has its "predominant effect" in State A?
Posted by: Peter Gulia | May 13, 2008 8:25:09 AM