Me. R. Prof. Cond. 8.5
Me. R. Prof. Cond. 8.5
COMMENT
Disciplinary Authority
[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. 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 this jurisdiction 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 this jurisdiction 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.
REPORTER'S NOTES:
Model Rule 8.2 (2002) addresses the issue of the appropriate disciplinary authority and choice of law rules. Before the 2002 Model Rule amendments, the Model Rule governing multi-jurisdictional practice was substantially similar to Maine Bar Rules 1(b) and 2(ii). For reasons similar to those supporting the Commission's 2002 recommendation to modify Model Rule 8.5, the Task Force recommended the adoption of the 2002 changes to Model Rule 8.5. In substance, these changes recognize that the practice of law is increasingly multi-jurisdictional. It may be the case that the jurisdiction with the greatest interest in disciplining a lawyer for improper conduct is a jurisdiction in which the lawyer is not admitted.
With respect to paragraph (b)(2), the choice of law provision, the ABA Reporter's Explanation of Changes to the 2002 amendments to Model Rule 8.5 reads as follows:
Just as the Commission believes that jurisdictions other than an admitting jurisdiction ought to have the authority to discipline the lawyer . . . 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 [old] . . . Rule, but neither is it as open-ended 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.
The Task Force agreed with the approach taken by the 2002 revision to Model Rule 8.5 and recommended adoption of the Model Rule 8.5 (2002) language.