N.D. R. Prof. Cond. 8.5
N.d. R. Prof. Cond. 8.5
Comment
[1] In modern practice lawyers frequently act outside the territorial limits of the jurisdiction in which they are licensed to practice, either in another state or outside the United States. In doing so, they remain subject to the governing authority of the jurisdiction in which they are licensed to practice and may also become subject to the authority of the other jurisdiction. Their activity in another jurisdiction may also constitute the unauthorized practice of law in that jurisdiction. See Rule 5.5. When this jurisdiction exercises its authority over persons eligible to practice elsewhere but not here, although there is no license or certificate of admission against which to act the disciplinary authority may enter findings of violations of these rules and enter, as relief, prohibitions from applying for admission here, pro hac vice or otherwise, for a period, and report the action to the jurisdiction in which the person is eligible.
[2] Lawyers not licensed here may lawfully practice here within the safe harbors identified in Rule 5.5 or when registered or admitted pro hac vice pursuant to applicable rules. Such lawyers are not, by virtue of that limited admission, licensed to practice law in this jurisdiction, but are nonetheless subject to discipline here.
Choice of Law
[3] 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 differing 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 conduct may involve significant contacts with more than one jurisdiction.
[4] Paragraph (b) seeks to resolve such potential conflicts. Its premise is that minimizing conflicts between rules, as 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, consistent 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.
[5] Paragraph (c)(1) provides that as to a lawyer's conduct relating to a proceeding pending before a tribunal, the lawyer shall be subject only to the rules of the jurisdiction in which the tribunal sits unless the rules of the tribunal, including its choice of law rule, provide otherwise. As to all other conduct, including conduct in anticipation of a proceeding not yet pending before a tribunal, paragraph ( c)(2) provides that a lawyer shall be subject to the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in another jurisdiction, the rules of that jurisdiction shall be applied to the conduct. In the case of conduct in anticipation of a proceeding that is likely to be before a tribunal, the predominant effect of such conduct could be where the conduct occurred, where the tribunal sits or in another jurisdiction.
[6] When a lawyer's conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer's conduct will occur in a jurisdiction other than the one in which the conduct occurred. So long as the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect will occur, the lawyer shall not be subject to discipline under this Rule. With respect to conflicts of interest, in determining a lawyer's reasonable belief under paragraph ( c)(2), an agreement, preferably in writing, between the lawyer and client that reasonably specifies a particular jurisdiction as within the scope of that paragraph may be considered if the agreement was obtained with the client's consent confirmed in the agreement.
[7] If two admitting jurisdictions were to proceed against a lawyer for the same conduct, they should, applying this rule, identify the same governing ethics rules. They should take all appropriate steps to see that they do apply the same rule to the same conduct, and in all events should avoid proceeding against a lawyer on the basis of two inconsistent rules. [8] The choice of law provision applies to lawyers engaged in transnational practice, unless international law, treaties or other agreements between competent regulatory authorities in the affected jurisdictions provide otherwise.
.Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 12/13/85 and 01/10/86; Minutes of the Joint Committee on Attorney Standards on 06/24/03, 09/25/03, 11/14/03, 04/16/04, 08/06/04, 09/24/04, 04/08/05. .