NY ethics opinion outlines factors for choice of ethics rules when lawyers are admitted in several jurisdictions. Opinion 1027 (10/16/2014).
An attorney admitted in New York and the District of Columbia with offices in both the jurisdictions, dealing with transactional work asked the Committee which “confidentiality, conflicts of interest” and other rules of ethics should govern his conduct.
The relevant Rule of the New York Rules of Professional Conduct is 8.5.
While per Rule Rule 8.5(b)(1), in court proceedings in NY, New York Rules of Professional Conduct apply (“conduct in connection with a proceeding in a court”), “[a]ny other conduct” is regulated by Rule 8.5(b)(2).”
Rule Rule 8.5(b)(2)(i) governs lawyers who are licensed to practice solely in New York, Subparagraph (b)(2)(ii) governs lawyers who are licensed to practice in New York and in at least one other jurisdiction, whether in the United States or a foreign country
Rule 8.5, Cmt. [7] (“The choice-of-law provision applies to lawyers engaged in transnational practice, unless international law, treaties or other agreements between or among competent regulatory authorities in the affected jurisdictions provide otherwise.”)
Based on those rules, the Committee gives the following guidance: “If a lawyer is licensed only in New York, then the New York Rules of Professional Conduct apply to the lawyer’s conduct in all non-court matters. If a lawyer is licensed in New York and one or more other jurisdictions, then the lawyer’s conduct in non-court matters will be governed by the rules of the jurisdiction in which the lawyer “principally practices” unless the “predominant effect” of the lawyer’s conduct clearly will be felt in another jurisdiction in which the lawyer is also licensed to practice.”
As for the jurisdictions in which the lawyer “principally practices”, the Committee advised that we should look at the number of days that the lawyer “the lawyer spends working in each jurisdiction’, the number of billable hours for each, the location of his or her client, the activities performed and special circumstances.
As for “predominant effect” the Committee remarked that “[u]nfortunately, no simple formula is available to determine where the “predominant effect” will occur”.
As Comment [5] to New York Rule 8.5 points out: “When a lawyer is licensed to practice in New York and another jurisdiction and the 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 an admitting jurisdiction other than the one in which the lawyer principally practices.”
The Committee’s advice is to look at factors like the place of residence and work of the clients, the place where the payment is deposited, the place where the contract must be performed and “where any new or expanded business will operate.”
Read the full opinion full
For more information contact Nathan M. Crystal.