The Massachusetts Judicial Branch

Supreme Judicial Court

Notice Inviting Comment

Proposed Revisions to Massachusetts Rule of Professional Conduct 8.5

NOTICE


The Supreme Judicial Court's
Standing Advisory Committee on the Rules of Professional Conduct
Invites Comments on Further Proposed Revisions to
Massachusetts Rule of Professional Conduct 8.5


The Supreme Judicial Court's Standing Advisory Committee on the Rules of Professional Conduct ("Committee") invites comments on its proposal to revise Massachusetts Rule of Professional Conduct 8.5. The Committee welcomes all comments pertaining to the issues raised by its proposals, and will make recommendations to the Supreme Judicial Court after reviewing the comments submitted. Comments should be directed to The Standing Advisory Committee on the Rules of Professional Conduct, c/o Administrative Attorney Barbara Berenson, Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Boston MA 02108 on or before June 30, 2008. Comments may also be sent to: barbara.berenson@sjc.state.ma.us .

The Committee's proposed version of Massachusetts Rule of Professional Conduct Rule 8.5 is based on the current version of the American Bar Association's Model Rule 8.5, but with some important changes. The committee has recommended the adoption of revisions to Rule 8.5 in order to recognize the authority to regulate out-of-state lawyers providing or offering to provide legal services in this jurisdiction, and to incorporate rules on the choice of law.

Given the disparity in ethical rules in the different states and the frequency with which the practice of many lawyers involves them in dealings outside Massachusetts, it becomes increasingly important for lawyers to know whose law of professional responsibility governs their conduct. The issues are not abstract. Lawyers often need to decide which of two or more different rules governs such issues as the ability to reveal confidential information, the ability to avoid a conflict of interest by screening, the ability to represent the affiliate of a corporation against a parent or a subsidiary, or the ability of a party to communicate with an employee or former employee of an opposing party. While such matters have not yet become questions of disciplinary enforcement, they have become important questions for many lawyers trying to figure out an appropriate course of action.

Rule 8.5 of the American Bar Association's Model Rules of Professional Conduct, as originally promulgated in 1983, stated in its entirety only that "A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere." At that time the Massachusetts Disciplinary Rules contained no conflict of laws provision at all. The ABA redrafted its Model Rule 8.5 in 1993 to add a subsection (b) making the governing law the rules of the jurisdiction where a lawyer was licensed to practice or, if licensed to practice in more than one jurisdiction, then the rules of the jurisdiction where the lawyer principally practiced. A proviso, however, stated that "if the particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct." The Supreme Judicial Court, while adopting Model Rule 8.5(a) effective January 1, 1998, declined to adopt Rule 8.5(b), explaining that its application was "problematic" in many instances. In the absence of any specific choice of law provision, the general multi-factor "significant interests" test of conflict of laws has presumably been the governing principle in Massachusetts professional responsibility matters.

In 2002, the ABA's Commission on Multijurisdictional Practice recommended, and the ABA adopted, a major change. It eliminated, in transactional matters and in litigation matters before a suit has been filed, the references to the jurisdiction of licensing and principal practice. Model Rule 8.5(b) now states with respect to such conduct that the governing law is "the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to that conduct." The Rule goes on to provide a partial safe harbor for lawyers by providing that "A lawyer shall not be subject to discipline if the lawyer's conduct conforms to a rule of a jurisdiction in which a lawyer reasonably believes the predominant effect of the lawyer's conduct will occur." In adopting Rule 5.5, Massachusetts has made it clear that out-of-state lawyers who engage in practice in this jurisdiction are subject to the disciplinary authority of this state. A great many states have rules that are similar to, or identical with, Rule 5.5, and Massachusetts lawyers therefore need to be aware that they may become subject to the disciplinary rules of another state in certain circumstances. Rule 8.5 deals with the related question of the conflict of law rules that are to be applied when a lawyer's conduct affects multiple jurisdictions.

It needs to be emphasized, however, that there is no completely satisfactory solution to the choice of law problems so long as different states have different rules of professional conduct. When the lawyer's conduct has its impact in another jurisdiction, that jurisdiction may assert that its law of professional conduct should govern, whether the lawyer was physically present in the jurisdiction or not. Indeed, this jurisdiction might reach the same conclusion that the law of such other jurisdiction applies even in the face of the safe harbor provision that is designed to minimize the danger of applying the wrong state's law. For example, a lawyer who learns from a client that the client or a third party is planning great harm in another jurisdiction may be subject to the confidentiality rules of that jurisdiction rather than this one. By the same token, the current Massachusetts rule, as well as the proposed rule, makes it clear that a lawyer may be subject to the disciplinary authority of this jurisdiction and another jurisdiction for the same conduct.

Proposed Rule 8.5(a) follows the text of the model rule. The change from the current Massachusetts Rule 8.5 is the addition of the second sentence confirming that lawyers from other jurisdictions are subject to discipline in Massachusetts if they provide or offer to provide legal services in Massachusetts.

Rule 8.5(b)(1), applicable to matters pending before a tribunal, also follows the text of the model rule. The principle that the rules of the tribunal should govern the conduct of the lawyers in connection with a matter before the tribunal is the customary practice for such matters.

Rule 8.5(b)(2) sets forth a proposed choice of law for all matters not before a tribunal, but does not follow the text of the model rule. In essence, the Committee recommends the adoption of a portion of the pre-2002 Rule, two portions of the current Model Rule, and an additional test relating to the significant interest of this jurisdiction. The basic rule, the default rule, in transactional matters and in litigation matters before a suit has been filed, would make the governing law "the rules of the jurisdiction where the lawyer maintains his or her principal office." For Massachusetts lawyers, that default rule, following the former ABA Model Rule, comports with the natural expectation of practicing lawyers. The Massachusetts Rules of Professional Conduct are the Rules that presumably Massachusetts lawyers will or should know and abide by. As the default rule, Massachusetts law seems highly preferable to the ABA Model Rule's default rule of "the jurisdiction where the lawyer's conduct occurred." In today's legal world, quite often the jurisdiction where a lawyer's conduct occurs is difficult to discern or has only a limited relationship to the transaction, and the ABA Model Rule and its Comments give little guidance to the meaning of the text. Indeed, the Model Rule suggests that different rules might apply if a lawyer licensed in State A gives advice to a client in State B by telephone from an office in State A as opposed to in person in State B. The proposed Rule avoids that problem.

The proposed Rule goes on to follow the principle set forth in the current version of Model Rule 8.5(b) that recognizes that a lawyer's practice in 2008 may primarily affect the interests of another jurisdiction. Following a proviso in the ABA Model Rule, the proposal states that if "the predominant effect of the lawyer's conduct is clearly in another jurisdiction, then the rules of that other jurisdiction shall apply." The focus here is not on the jurisdiction where the lawyer's conduct occurs but on the jurisdiction where the primary effect of that conduct occurs. The formulation of this condition recognizes that the public policy interests of a lawyer's conduct may be so concentrated in another jurisdiction that that jurisdiction's professional responsibility rules should govern the lawyer's conduct. In like manner, Massachusetts professional responsibility rules might well govern the conduct of a State A lawyer who receives confidential information from a client about an impending crime, fraud, or environmental disaster in Massachusetts when State A has adopted Model Rule 8.5(b).

The ABA's recommended proviso in Model Rule 8.5(b)(2), however, has given lawyers a test that appears to mandate a single factor, geographic test that is in sharp contrast to the traditional multi-factor "significant interests" principle of conflict of laws doctrine. Under this single factor geographic test, lawyers engaged in matters that implicate interests in many different states would have to consider whether the predominant effect of their conduct with respect to a specific professional responsibility problem is "clearly" in some other state and, if so, they will have to investigate the professional responsibility law of that other jurisdiction. In order to recognize a more traditional analysis of choice of law, the proposal modifies the model rule by requiring as a condition for the application of the law of another jurisdiction that the lawyer's conduct not implicate a "significant interest" of this jurisdiction. The purpose of this condition is to permit the consideration of multiple factors that traditionally influence choice of law decisions. Therefore, for lawyers for whom the default rule, because their principal offices are in Massachusetts, is the Massachusetts rules, the rules of another jurisdiction will only apply to their conduct if their conduct does not implicate a significant interest in this jurisdiction and the predominant effect of their conduct is clearly in that other jurisdiction.

Finally, the proposal follows the ABA Model Rule in providing in the final sentence of Rule 8.5(b)(2) a partial safe harbor for lawyers by protecting the choice of a lawyer who "acts in accordance with a reasonable application" of these principles.

The comments to the proposed rule have been revised from those under the current rule to incorporate relevant comments from the comments to the ABA Model Rules. Comments 1A and 1B are Massachusetts comments that replace the final three sentences of ABA Model Comment 1. Comments 4A and 4B were added to the ABA Model Comments and Comment 5 of the ABA Model Comments was rewritten to reflect the nonuniform language of proposed Rule 8.5(b)(2). Model Comments 3 and 6 were reworded slightly for clarity. The final sentence was added to Comment 7 to reflect the supremacy of constitutional protections for rights of free speech.

The Standing Advisory Committee's Proposed Rule 8.5
Maintaining The Integrity Of The Profession
Rule 8.5 Disciplinary Authority; Choice Of Law

(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.

(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:


(1) For conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise.

(2) For any other conduct, the rules of the jurisdiction in which the lawyer maintains his or her principal office shall apply; provided, however, if the lawyer's principal office is in this jurisdiction, the lawyer's conduct does not implicate a significant interest of this jurisdiction, and the predominant effect of the lawyer's conduct is clearly in another jurisdiction, then the rules of that other jurisdiction shall apply. A lawyer shall not be subject to discipline if the lawyer acts in accordance with a reasonable application of the foregoing principles.
Comment

[1] It is longstanding law that the conduct of a lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction. Extension of the disciplinary authority of this jurisdiction to other lawyers who provide or offer to provide legal services in this jurisdiction is for the protection of the citizens of this jurisdiction.

[1A] In adopting Rule 5.5, Massachusetts has made it clear that out-of-state lawyers who engage in practice in this jurisdiction are subject to the disciplinary authority of this state. A great many states have rules that are similar to, or identical with, Rule 5.5, and Massachusetts lawyers therefore need to be aware that they may become subject to the disciplinary rules of another state in certain circumstances. Rule 8.5 deals with the related question of the conflict of law rules that are to be applied when a lawyer's conduct affects multiple jurisdictions. Comments 2-7 state the particular principles that apply.

[1B] There is no completely satisfactory solution to the choice of law question so long as different states have different rules of professional responsibility. When a lawyer's conduct has its impact in another jurisdiction, that jurisdiction may assert that its law of professional responsibility should govern, whether the lawyer was physically present in the jurisdiction or not.

Choice of Law

[2] 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.

[3] Paragraph (b) seeks to resolve such potential conflicts. 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, paragraph (b) provides that any particular act of a lawyer shall be subject to only one set of rules of professional conduct, makes the determination of which set of rules applies to particular conduct as straightforward as possible, consistent with recognition of the appropriate regulatory interests of relevant jurisdictions, and provides protection from discipline for lawyers who act reasonably in the face of uncertainty.

[4] Paragraph (b)(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.

[4A] As to all other conduct, including conduct in anticipation of a proceeding not yet pending before a tribunal, the choice of law is governed by paragraph (b)(2). Paragraph (b)(2) creates a "default" choice of the rules of the jurisdiction in which the lawyer's principal office is located. There are several reasons for identifying such a default rule. First, the jurisdiction where the lawyer principally practices has a clear regulatory interest in the conduct of such lawyer, even in situations where the lawyer's conduct affects other jurisdictions. Second, lawyers are likely to be more familiar with the rules of the jurisdiction where they principally practice. Indeed, most lawyers will be licensed in the office where they principally practice and familiarity with a jurisdiction's ethical rules is commonly made a condition of licensure. Third, in many situations, a representation will affect many jurisdictions, such as a transaction among multiple parties who reside in different jurisdictions involving performance in yet other jurisdictions. The selection of any of the jurisdictions that are affected by the representation will often be problematic. Where no jurisdiction has an interest in regulating the lawyer's conduct that is clearly superior to the default jurisdiction's, the choice of the latter will reduce complexity and indeterminacy in identifying the pertinent rule of conduct.

[4B] There will be some circumstances, however, where a jurisdiction other than the jurisdiction in which the lawyer maintains his or her principal office will have a clearly more significant interest in regulating the lawyer's conduct. Accordingly, the proviso of the first sentence of paragraph (b)(2) provides that when the predominant effect of the lawyer's conduct is in a jurisdiction other than this jurisdiction, the ethical rules of such other jurisdiction apply to such conduct unless the lawyer's conduct implicates a significant interest of this jurisdiction. If this jurisdiction has a significant interest in the lawyer's conduct, even if the predominant effect of the conduct may be in another jurisdiction, this rule still would apply the Massachusetts rules to the lawyer's conduct if the lawyer's principal office is in Massachusetts.

[5] The application of these rules will often involve the exercise of judgment in situations in which reasonable people may disagree. So long as the lawyer's conduct reflects an objectively reasonable application of the choice of law principles set forth in paragraph (b), the lawyer shall not be subject to discipline under this Rule.

[6] If this jurisdiction and another jurisdiction were to proceed against a lawyer for the same conduct, they should identify and apply the same governing ethics rules. Disciplinary authorities in this jurisdiction should take all appropriate steps to see that they do apply the same rule to the same conduct as authorities in other jurisdictions, and in all events should avoid proceeding against a lawyer on the basis of two inconsistent rules.

[7] 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. Moreover, no lawyer should be subject to discipline in this jurisdiction for violating the regulations governing advertising or solicitation of a non-U.S. jurisdiction where the conduct would be constitutionally protected if performed in this jurisdiction.




Page updated: Jul 22 2008 02:56PM