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Ethics 20/20 Commission Seeks Feedback on Ethics-Related Choice of Law Issues

Posted Jan 19, 2011 3:03 PM CDT
By James Podgers

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The ABA Commission on Ethics 20/20 is seeking comments on how—or whether—professional conduct rules should be revised to accommodate a growing number of ethics-related choice of law issues arising out of an environment in which more and more lawyers engage in cross-border practice.

A working group of the commission today posted an issues paper on the commission website (PDF) asking that comments about choice of law in cross-border practice be submitted by March 15. This is the seventh issues paper put out by the commission.

In its paper, the commission’s Working Group on Uniformity, Choice of Law, and Conflicts of Interest emphasizes that it has not begun to consider any possible proposals of its own to revise the ABA Model Rules of Professional Conduct, particularly Rule 8.5, which addresses choice of law in disciplinary actions against lawyers.

That process could take some time. Under the commission’s procedures, the working group will consider possible recommendations after receiving comments on the issue. Any draft recommendations also would be put out for public comment before being considered by the full commission. The commission will submit its recommendations for consideration by the ABA’s policymaking House of Delegates. The commission expects to submit the bulk of its recommendations to the House in 2012.

The Ethics 20/20 Commission was created in 2009 to consider possible changes in professional conduct rules that will help lawyers adapt to the increasing impact of globalization and technology.

“The commission has taken no positions about the matters addressed in this paper,” states the working group. “Rather, the Commission expects to use any comments that it receives to supplement the research that the Commission has completed and to facilitate the development of various reports and proposals that the Commission plans to draft during the next year and a half.”

But the issues paper does pinpoint the reasons for concern about choice of law in the context of legal ethics. “Rules of professional conduct vary within the United States and around the world,” the paper states. “These variations create problems for lawyers who engage in cross-border practice, especially when they encounter legal ethics issues that could be resolved differently depending on which jurisdiction’s rules apply.”

It’s a dilemma for both lawyers and regulators, says Andrew M. Perlman, a professor at Suffolk University Law School in Boston who serves as chief reporter for the commission. “There is an increasing amount of cross-border practice across state and national boundaries,” he says. “The question lawyers are asking is, ‘Which set of ethics rules do I need to comply with when I cross these boundaries?’ ”

In its current form, Model Rule 8.5 provides that a lawyer is subject to the disciplinary authority of the jurisdiction where he or she is admitted to practice, regardless of where the conduct in question occurred. Regarding choice of law, Rule 8.5 states that for conduct relating to a matter pending before a tribunal, the conduct rules of the jurisdiction where the tribunal sits should be applied. For any other conduct, the rules of the jurisdiction where the conduct occurred or the jurisdiction where that conduct had its predominant effect, should apply.

But while Model Rule 8.5 is widely followed by the states, there are questions about whether it applies adequately to all the situations that arise for lawyers in cross-border practice. There have been efforts in some jurisdictions to consider variations to the model rule. In New York, for instance, the Committee on Professional Responsibility of the Association of the Bar of the City of New York in 2010 proposed revisions to Rule 8.5 (PDF) in the state’s Rules of Professional Conduct incorporating a stronger presumption that in cases other than those arising out of a matter pending before a tribunal, a lawyer licensed in New York would be subject to the New York ethics rules.

Perlman, however, says it is way to early to predict what position the Ethics 20/20 Commission eventually takes on the issue. Right now, he says, “No kind of proposal is a front-runner.”

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