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Model rule change aims to help lawyers confronting conflicts issues involving multiple jurisdictions

Posted Feb 11, 2013 4:21 PM CDT
By Debra Cassens Weiss

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Lawyers are increasingly called on to handle matters for their clients that involve multiple jurisdictions both here and abroad. These lawyers face difficult choice-of-law problems when confronting ethics issues, particularly issues involving conflicts of interest.

The ABA Commission on Ethics 20/20 provides a way to make the task easier, with an amendment to Rule 8.5 of the ABA Model Rules of Professional Conduct. The current model rule provides that lawyers weighing the choice of law issue may have to determine the jurisdiction where his or her conduct has its “predominant effect.” The amendment to the model rule’s commentary says the lawyer and client may enter into an agreement specifying the “predominant effect” jurisdiction for conflicts matters.

The ABA House of Delegates approved Resolution 107D on Monday. The new commentary says any such agreements should be in writing and the client must provide informed consent.

A report accompanying the resolution gives an example of how such an agreement could be worded. It might say, “Client and Lawyer anticipate that the predominant effect of the lawyer’s conduct will be in Ohio and agree that the Ohio Rules of Professional Conduct and law concerning conflicts of interest should govern Lawyer’s work on this matter.”

Related coverage:

ABA Journal: "Closing Act: Ethics 20/20 Proposals Crack Open the Door for Foreign Lawyers"

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