Vt. R. Prof. Cond. 8.5
Comment
Disciplinary Authority
[1] It is longstanding law that the conduct of a lawyer admitted to practice in Vermont is subject to the disciplinary authority of Vermont. Extension of Vermont's disciplinary authority to other lawyers who provide or offer to provide legal services in the state is for the protection of Vermont's citizens. Reciprocal enforcement of a jurisdiction's disciplinary findings and sanctions will further advance the purposes of this rule. See Rules 6 and 22, ABA Model Rules for Lawyer Disciplinary Enforcement. A lawyer who is subject to the disciplinary authority of Vermont under Rule 8.5(a) appoints an official to be designated by this Court to receive service of process in this jurisdiction. The fact that the lawyer is subject to the disciplinary authority of Vermont may be a factor in determining whether personal jurisdiction may be asserted over the lawyer for civil matters.
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. Its premise is that 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, it takes the approach of (i) providing that any particular conduct of a lawyer shall be subject to only one set of rules of professional conduct, (ii) making the determination of which set of rules applies to particular conduct as straightforward as possible, consistent with recognition of appropriate regulatory interests of relevant jurisdictions, and (iii) providing 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. As to all other conduct, including conduct in anticipation of a proceeding not yet pending before a tribunal, paragraph (b)(2) provides that a lawyer shall be subject to the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in another jurisdiction, the rules of that jurisdiction shall be applied to the conduct. In the case of conduct in anticipation of a proceeding that is likely to be before a tribunal, the predominant effect of such conduct could be where the conduct occurred, where the tribunal sits or in another jurisdiction.
[5] When a lawyer's conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer's conduct will occur in a jurisdiction other than the one in which the conduct occurred. So long as the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect will occur, the lawyer shall not be subject to discipline under this rule.
[6] If two admitting jurisdictions were to proceed against a lawyer for the same conduct, they should, applying this rule, identify the same governing ethics rules. They should take all appropriate steps to see that they do apply the same rule to the same conduct, 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.
Vt. R. Prof. Cond. 8.5
Reporter's Notes-2009 Amendment
V.R.P.C. 8.5 is amended to conform to changes in the Model Rule, which incorporate recommendations in the Report of the ABA's Multijurisdictional Practice Commission, adopted by the ABA House of Delegates in August 2002.
The ABA Reporter's Explanation is as follows:
TEXT:
1. Paragraph (a): Expand disciplinary enforcement jurisdiction over lawyer not admitted in adopting jurisdiction "if the lawyer [provides] or offers to [provide] any legal services" in the jurisdiction
Several states have adopted a bracketed provision in Rule 6 of the ABA Model Rules for Lawyer Disciplinary Enforcement that provides disciplinary jurisdiction over "any lawyer not admitted in this state who practices law or renders or offers to render any legal services in this state." The Commission believes that this is an appropriate rule to adopt in the Model Rules of Professional Conduct, given that a jurisdiction in which a lawyer is not admitted may be the one most interested in disciplining the lawyer for improper conduct. There are a number of ways in which discipline might be implemented, including making a disciplinary record and sending it to states in which the lawyer is admitted and having those jurisdictions impose reciprocal discipline. (Alternatively, if disciplinary authorities are ever given a broader range of sanctions, e.g., fines, fee forfeiture or an award of damages, the disciplining jurisdiction could act on the lawyer directly.)
The deleted language in the last sentence of paragraph (a) reflects the substantive change discussed above.
2. Paragraph (b)(1): Change "court" to "tribunal"
Recognizing the increasing use of alternative dispute-resolution processes, the Commission has broadened a number of Rules that formerly applied to "courts" to make them apply to "tribunals," which include binding arbitration and other methods of formally adjudicating the rights of parties. See Rule 1.0 (Terminology). Lawyers who participate in such adjudication, whether as neutrals or as party representatives, should be bound by the Rules of Professional Conduct of the jurisdiction in which the tribunal sits or by the rules of the tribunal itself if they provide otherwise.
3. Paragraph (b)(1): Delete language regarding court admittance This change reflects the substantive change made in paragraph (a). Even if a lawyer has not been admitted generally or pro hac vice, if the lawyer renders legal services in connection with a proceeding before a tribunal, the rules of that tribunal should govern.
4. Paragraph (b)(1): Substitute "matter before" for "proceeding in"
The Commission believes that the term "matter pending before" more clearly reflects that the rules of the tribunal become controlling from the moment the matter can be said to be "before" that tribunal (typically the date the case is filed), even if no specific "proceeding" is pending at the time the conduct occurs. No change in substance is intended.
5. Paragraph (b)(2): New choice of law provision
The theory underlying the [former] Rule appears to be that discipline is the corollary of bar admission, i.e., it is a proceeding to take away the license the state granted because of a violation of that state's rules. Thus, the [former] Rule permits only an admitting jurisdiction to discipline the lawyer (paragraph (a)) and applies that jurisdiction's rules regardless of where the conduct occurred. Moreover, under the [former] Rule, if the lawyer is admitted in more than one jurisdiction, the rules of the admitting jurisdiction in which the lawyer principally practices apply "provided, however, that if 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." Again, even for choice of law purposes, only jurisdictions that have licensed the lawyer may expect the lawyer to follow their rules of professional conduct. Just as the Commission believes that jurisdictions other than an admitting jurisdiction ought to have the authority to discipline the lawyer (see changes to paragraph (a)), the Commission believes that the substantive rules of a jurisdiction other than an admitting jurisdiction should sometimes apply.
Having moved away from an undue emphasis on the rules of the admitting jurisdiction, the Commission believes that there is no single test that can be applied to determine the appropriate choice-of-law rule in each case. Rather, the Commission believes that there are two factors that are most important to the determination-the place where the conduct occurred and the place where the predominant effect of the conduct occurs. This approach is not as simple as the present Rule, but neither is it as openended as in other areas where conflicts of law are an issue. A lawyer who acts reasonably in the face of uncertainty about which jurisdiction's rules apply will not be subject to discipline.
COMMENT:
[1] This Comment has been expanded to explain the extension of disciplinary authority beyond the traditional realm of lawyers admitted to practice in the jurisdiction.
[2] The last sentence of the [former] Comment has been deleted because it inaccurately implies that the proposed formulation of the Rule will bring certainty.
[3] The new language points out that paragraph (b) now includes a safe harbor for a lawyer who acts reasonably where it is uncertain which jurisdiction's rules apply.
[4] The term "court" has been changed to "tribunal" to reflect changes made to paragraph (b). The Commission has deleted language seeking to explain the standards previously established by this Rule and added language reflecting the proposed change.
[5] This new Comment explains the rationale for the proposed safe harbor provision in paragraph (b)(2).
[7] This is a modification of [former] Comment [6]. The Commission believes that lawyers engaged in transnational practice ought to be governed by this Rule's choice of law provision, unless international law or other agreements between countries or competent regulatory authorities provide otherwise. Moreover, the Commission believes that such lawyers will benefit from the guidance provided in this Rule, as well as from the safe harbor provision.
The Report of the Multijurisdictional Practice Commission, ABA Report 201C (August 2002), provided in pertinent part as follows (footnotes omitted):
It is important that state regulatory authorities acknowledge the increasing prevalence of cross-border law practice and respond appropriately. Allowances must be made for effectively regulating lawyers who practice law outside the states in which they are licensed. Sanctions must be available both against lawyers who do unauthorized work outside their home states and against those who violate rules of professional conduct when they engage in otherwise permissible multijurisdictional law practice.
The Ethics 2000 Commission proposed amending Rule 8.5(a) (Disciplinary Authority) to make clear that a jurisdiction in which a lawyer engages in disciplinary misconduct may sanction the lawyer regardless of whether the lawyer is licensed to practice law in that jurisdiction. Most significantly, a sentence would be added to provide that: "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." The proposal is consistent with existing ABA policy, as embodied in Rule 6 of the ABA Model Rules for Lawyer Disciplinary Enforcement. As the Ethics 2000 Commission noted, "this is an appropriate Rule to adopt in the Model Rules of Professional Conduct, given that a jurisdiction in which a lawyer is not admitted may be the one most interested in disciplining the lawyer for improper conduct." As a further enhancement to this Rule, the MJP Commission recommends that the following statement be added to the end of Comment [1]: "Reciprocal enforcement of a jurisdiction's disciplinary findings and sanctions will further advance the purposes of this Rule. See Rules 6 and 22, ABA Model Rules for Lawyer Disciplinary Enforcement."
Additionally, the Ethics 2000 Commission proposed amending Rule 8.5(b) (Choice of Law) in two principal respects. First, a number of changes would clarify the choice of law rule applicable to lawyers participating in adjudications. It would provide that a lawyer who participates in a formal adjudication before any "tribunal"-and not only a "court"-is bound by the rules of professional conduct of the jurisdiction in which the tribunal sits or by the rules of the tribunal itself if they provide otherwise.
Second, the Ethics 2000 Commission proposed changing the choice of law rule applicable to legal work outside the context of adjudications. The [former] rule provides that a lawyer is governed by the rules of professional conduct of the jurisdiction in which the lawyer is licensed. When a lawyer is licensed in multiple jurisdictions, it identifies a principle to determine which of the jurisdictions' rules apply. The proposed amendment recognizes that when lawyers engage in multijurisdictional practice, the jurisdiction in which they practice has an interest in enforcing compliance with its Rules of Professional Conduct. Under the proposed amendment, the applicable rules would be those of the jurisdiction in which lawyer's conduct had its predominant effect or, where the conduct did not have its predominant effect in a single jurisdiction, the rules of the jurisdiction in which the conduct occurred. However, a lawyer who acts reasonably in the face of uncertainty about which jurisdiction's rules apply would not be subject to discipline. Rule 1.0 (Terminology) of the ABA Model Rules of Professional Conduct provides that reasonable, when used in reference to a lawyer's actions, denotes the conduct of a reasonably prudent and competent lawyer.
Reporter’s Notes
This rule has no counterpart in the present Vermont Code. Rule 8.5(b)(2)(iii) has been added to the ABA Model Rule. The provision is intended to reach conduct such as telephone solicitation by out-of-state lawyers that violates the Vermont rules. See Rotunda, ‘‘West Virginia Provides Model for Lawyer Discipline across State Lines,’’ 2 Vt. Bar News, No.8,p. 10 (July 1997).
These rules replace the Vermont Code of Professional Responsibility, adopted by the Court on February 10, 1971, and amended thereafter. These rules apply to lawyer conduct after their effective date. The Code of Professional Responsibility continues to apply to conduct prior to the effective date of these rules.