In today’s legal economy, lawyers commonly cross state borders in the course of their practice. Whenever a client, a third party or the subject matter of the representation is in a state oth
In today’s legal economy, lawyers commonly cross state borders in the course of their practice. Whenever a client, a third party or the subject matter of the representation is in a state other than the state in which a lawyer is admitted to practice, the lawyer has engaged in multi-state practice. Many attorneys are licensed to practice in more than one state, and many law firms have offices in several states where they represent clients who do business in several states. As a consequence, state bar associations have struggled with the issue of determining which state’s attorney disciplinary rules should apply to alleged lawyer misconduct. When the standards of professional responsibility differ from state to state, the governing law can determine whether the attorney is subject to sanction or disbarment as a result of his or her behavior. State standards increasingly differ as more states have felt free to create local variations on the American Bar Association’s Model Code and Rules. Today, state standards differ on matters such as confidentiality, advertising, permissible fee structures, and permissible law firm structure.
Your state’s legislature has delegated to the state bar association the authority to designate the rules of professional conduct that will apply in your state. In turn, the state bar association has delegated the drafting of proposed rules to a rules committee. As a prominent lawyer in good standing with the state bar association, you have been appointed to serve on the committee.
The current choice-of-law rule followed by the state bar association is patterned after the Model Rules of Professional Conduct. It provides:
If the alleged breach of a disciplinary rule is related to litigation in the forum, then
forum rules apply so long as the lawyer is admitted to practice in the forum state.
In all other cases, whether the lawyer’s conduct is related to litigation or to
negotiating or counseling, the law of the state in which the lawyer is admitted to practice governs. If the lawyer is admitted to practice in two or more states, then the law of the state in which the lawyer principally practices governs unless conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed.
The rules committee is considering whether to change the rule to be more in line with the Restatement (Third) of the Law Governing Lawyers. It provides:
The rules of the jurisdiction with the most significant relationship to the charged
offensive conduct apply. In determining the jurisdiction with the most significant
relationship to the charged conduct, the following factors should be considered:
(1) the nature of the charged offense;
(2) the nature of the lawyer’s work;
(3) the impact of the questioned conduct on the interests of third persons and on public institutions such as tribunals, administrative agencies, or legislative bodies;
(4) the residence and place of business of any client or third person whose interests are materially affected by the lawyer’s actions;
(5) the place where the affected conduct occurred;
(6) the nature of the regulatory interests reflected in the different provisions in question.
Because you took a course in Conflicts in law school, the chair of the committee has asked you to draft a memorandum explaining to the rest of the committee whether you think the proposed modification represents an improvement over the current treatment of choice of law in the state’s rules. Please explain
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