1.2.1Regulatory authority and choice of law (Rule 8.5)

State supreme courts hold ultimate authority over admission and discipline; the ABA writes model rules but holds no enforcement power. A lawyer crossing state lines can face discipline in every admitting state and every state where services are provided, under rules determined by where the conduct occurs or where its predominant effect falls.

Lawyers cross state lines; their licenses do not travel with them. A client hurt in one state should not lose protection because the lawyer sat in another, and a lawyer should not have to guess which of two rulebooks governs a single act. Rule 8.5 allocates the power to discipline and picks one governing set of rules.

Any state that admitted a lawyer, and any state where the lawyer provides or offers legal services, may discipline; both may proceed on the same conduct. For conduct in connection with a matter pending before a tribunal, the rules of the state where the tribunal sits govern, unless the rules of the tribunal provide otherwise.

For other conduct, the rules of the state where the conduct occurred govern, unless the predominant effect falls in a different state; there is no discipline where the lawyer's conduct conforms to the rules of the jurisdiction in which the lawyer reasonably believed the predominant effect would occur.

Regulatory authority and Rule 8.5 — disciplinary authority and choice of law

Eleven points, and three of them carry the choice-of-law label:

• State power: the highest state court of each state holds ultimate authority over admission and discipline within that state — the power is the court's own, and legislation does not displace it; state ethics rules, case law, court rules, and statutes all apply.
• Integrated bar: most states require mandatory bar membership as a condition of practicing.
• Federal courts: each federal court maintains its own bar; separate admission required for each.
• Federal government lawyers: subject to ethics rules of each state where they perform duties; federal statutes (including Sarbanes-Oxley for certain lawyers) may impose additional obligations.
• Tribunal: a court, an arbitrator in a binding arbitration, or a legislative body or administrative agency acting in an adjudicative capacity, meaning a neutral official will hear evidence or argument and then issue a binding judgment affecting a party; an EEOC proceeding qualifies at the formal adjudicative hearing stage, not during intake or investigation.
• Disciplinary jurisdiction — who may discipline: every admitting state, at any time; every state where the lawyer provides or offers to provide legal services, even without admission there.
• Choice of law — conduct in connection with a matter pending before a tribunal: the rules of the state where the tribunal sits, unless the rules of the tribunal provide otherwise.
• Choice of law — all other conduct: rules of the state where the conduct occurred, unless the predominant effect falls in a different state — then that state's rules apply.
• Safe harbor: no discipline if the lawyer's conduct conforms to the rules of the jurisdiction where the lawyer reasonably believed the predominant effect would occur.
• Choice of law — advance written agreement for conflicts: a lawyer and client may agree in advance, in writing, which jurisdiction's rules govern conflict-of-interest questions; that agreement may be considered in deciding whether the lawyer's belief about predominant effect was reasonable, if obtained with the client's informed consent confirmed in the agreement.
• The MPRE tests ABA Model Rules — not any state's modified version.