Ethics Opinion 311
Choice-of-Law Rules for Professional Conduct in Non-Judicial Proceedings
* [NOTE: See how Opinion 311 has been substantively affected by the amendments to the D.C. Rules of Professional Conduct that became effective on February 1, 2007]
When a District of Columbia attorney acts in a non-judicial proceeding outside of the District of Columbia, the rules of professional conduct governing the attorney’s actions are determined by reference to D.C. Rule 8.5(b)(2). If the attorney is licensed only in the District of Columbia, the rules of professional conduct of this jurisdiction will apply. If the attorney is licensed both in the District of Columbia and in another jurisdiction, the rules of the jurisdiction where the attorney has his principal place of practice will apply unless factors relevant to the conduct in question clearly establish that the attorney’s conduct has a predominant effect in the other jurisdiction—in which case the rules of that jurisdiction will apply. When a District of Columbia attorney serves as co-counsel on a matter with an attorney licensed in another jurisdiction, the District of Columbia attorney need only conform his conduct to the rules applicable under the choice-of-law provisions of Rule 8.5(b)(2) and the restrictions of Rule 8.4(a).
Applicable Rules
- Rule 8.5(b) (Choice-of-law)
- Rule 8.4(a) (Misconduct)
Inquiry
The Committee has been asked which rules of professional conduct apply to a member of the District of Columbia Bar participating in a non-judicial proceeding outside the District of Columbia. Consider, for example, an attorney who represents a party to a mediation occurring in State X where the State X version of ABA Model Rule 4.2—the rule relating to contacts with a represented party—varies substantially from the District of Columbia version of Rule 4.2. In such a situation—where the mediation is not in connection with a proceeding pending before a court in State X—will the attorney be subject to discipline in the District of Columbia for failing to comply with the requirements of State X’s rules if they are more limiting than the District of Columbia’s rules? Conversely, will the attorney be subject to discipline for actions that comply with the more lenient requirements of a State X rule but violate a more restrictive District of Columbia rule? Finally, what are the obligations of a District of Columbia attorney who acts as co-counsel in a non-judicial proceeding with an attorney licensed only in State X if a situation arises in which the two attorneys are subject to differing professional conduct requirements?
Discussion
District of Columbia Rule of Professional Conduct 8.5(b) [hereinafter “D.C. Rule”] addresses choice-of-law questions involving the application of the rules of professional conduct to the actions of an attorney both when the conduct relates to a matter that is pending before a court and “for any other conduct.”
As a general matter, D.C. Rule 8.5(b)(1) provides that for conduct in connection with a proceeding before a court in which the attorney has been admitted to practice, the District of Columbia will apply the rules of professional conduct of that apply in that court (typically, those of the jurisdiction where the court sits), unless those rules provide otherwise. Thus, whenever an attorney’s conduct relates to a proceeding before the courts of a jurisdiction outside the District of Columbia (a jurisdiction which, for convenience, we will call State X), the District will apply the rules of professional conduct adopted by State X to District of Columbia lawyers who appear in connection with the proceeding. E.g., In re Gonzalez, 773 A.2d 1026 (D.C. 2001) (subjecting District of Columbia attorney to discipline and applying Virginia rules to his conduct with respect to matter before Virginia court); cf. Md. State Bar Ass’n, Comm. on Ethics Op. 86-28 (1986) (Maryland lawyer appearing in litigation in District of Columbia may follow District’s less restrictive rule in responding to client fraud on the court). This choice-of-law provision is applicable whether an attorney is admitted to practice in State X’s jurisdiction generally or has been specially admitted for the purpose of appearing in a single proceeding. When an attorney appears before a federal court the applicable rules of professional conduct will be those governing the bar of that court.
When the conduct in question does not involve a judicial proceeding in State X—as in, for example, an arbitration, a mediation, an administrative proceeding, a governmental investigation, or a commercial negotiation1 - the choice-of-law rules of the District of Columbia Rules of Professional Conduct provide:
(i) If the lawyer is licensed to practice only in this jurisdiction, the rules to be applied shall be the rules of this jurisdiction, and
(ii) If the lawyer is licensed to practice in this and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; 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 to that conduct.
D.C. Rule 8.5(b)(2).2
Rule 8.5(b)(2)(i)—Choice-of-Law for Lawyers Licensed Only in the District of Columbia
D.C. Rule 8.5(b)(2)(i) provides that, in the context of non-judicial proceedings, if an attorney is licensed to practice only in the District of Columbia, the District of Columbia rules of professional conduct, not the rules of the jurisdiction where the non-judicial proceeding occurred will govern that attorney’s conduct. This choice-of-law provision stems from the recognition that the authority to discipline a lawyer arises from his admission to practice in a territorial jurisdiction—either generally, or for a particular matter. E.g., In re Wade, 526 A.2d 936 (D.C. 1987) (lawyer subject to discipline in District of Columbia for conduct outside of the jurisdiction because he maintains active membership in District of Columbia bar); Rule 6 Commentary, Model Rules for Lawyer Disciplinary Enforcement (ABA 1996) (“Admission to practice triggers the jurisdiction of the disciplinary authority.”). Hence, an attorney licensed only in the District of Columbia will not be subject to discipline here for conduct relating to non-judicial proceedings elsewhere, so long as his conduct conforms to the District’s rules of professional conduct.3
Rule 8.5(b)(2)(ii)—Choice-of-Law for Lawyers Licensed Both in the District of Columbia and Elsewhere
A more analytically difficult question arises under D.C. Rule 8.5(b)(2)(ii) when the attorney is authorized to practice both in the District of Columbia and in State X where the non-judicial proceeding is occurring (or, indeed, in yet a third jurisdiction, State A). In such a situation the District of Columbia choice-of-law provisions first require that the disciplinary authority determine the jurisdiction where the attorney is licensed and principally practices. The rules adopted by the jurisdiction of that “principal place of practice” will generally govern an attorney’s conduct. Our choice-of-law provisions recognize, however, one exception to this general rule—the “predominant effects” exception. This exception is invoked when an attorney’s conduct “clearly has its predominant effect” in State X (if State X is also a jurisdiction where the attorney is licensed to practice), even if State X is not the jurisdiction in which the attorney principally practices. When such a “predominant effect” is clearly established, the professional conduct rules of State X will apply.
Resolving individual fact scenarios in which these choice-of-law questions arise requires balancing two competing principles. On one hand, regulation of the bar historically has been, and remains, a function of the judiciary of each state. See Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432-35 (1982). Each jurisdiction’s regulation of the conduct of attorneys licensed by the state involves, therefore, a matter of significant governmental concern. See ABA Formal Op. 91-360 (July 11, 1991), reprinted in ABA Formal and Informal Ethics Opinions, 1983-1998, at 72, 75 (2000). Because each state has an “extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses,” Middlesex County, 457 U.S. at 424, resolution of choice-of-law questions must be undertaken with due regard for the differing values expressed in conflicting rules of professional conduct adopted by two (or more) separate judicial bodies.
On the other hand, we must be mindful of the intent of those who drafted Rule 8.5(b).4 The choice-of-law provisions were drafted to “minimiz[e] conflicts between rules, as well as uncertainty about which rules are applicable.” D.C. Rule 8.5, comment [3]; see also A Legislative History: The Development of the ABA Model Rules of Professional Conduct, 1982-1998, at 345 (ABA 1999) (Rule 8.5(b) was added to “bring some measure of certainty and clarity” to choice-of-law issues). Rule 8.5(b) is, therefore, intended to ensure that “any particular conduct of an attorney [is] subject to only one set of rules of professional conduct,” and that the “determination of which set of rules applies to particular conduct is as straightforward as possible.” D.C. Rule 8.5, comment [3] (emphasis supplied).
This need for clarity and certainty is particularly acute “in the District of Columbia, whose Bar members frequently practice in other jurisdictions and are admitted in more than one jurisdiction.” Report to the Board of Governors of the District of Columbia Bar: Proposed Amendments to the District of Columbia Rules of Professional Conduct, at 65 (F. Whitten Peters, Chair) (1993) [hereinafter “Peters Committee Report”]. In short, “for any choice of law system to be effective in guiding members of the Bar, it is essential that [it] be as uniform as possible.” Id.; see also ABA, Report of the Committee on Ethics and Professional Responsibility (1993) (“The basic thesis of the proposal [to revise Rule 8.5] is that what it achieves in certainty and simplicity is worth much more than whatever regulatory interest it sacrifices.”), reprinted in Peters Committee Report at 69.5
Given the intent of D.C. Rule 8.5(b) to foster both clarity and regularity in the choice of conflicting rules, the proper interpretation of that Rule should rely, to the maximum extent practical, on bright line determinations that will bring certainty to the interpretation of Rule 8.5(b)(2)(ii) and provide guidance to the members of the Bar. Cf. Ross v. Creighton Univ., 740 F. Supp. 1319, 1330 (N.D. Ill. 1990) (“Rules serve little purpose if they are not reasonably predictable and if they do not apply across the board, for one cannot conform behavior to the unknowable.”); Restatement (Third) of the Law Governing Lawyers § 5, comment h (2000) (characterizing Model Rule 8.5(b) as intended to “provide [for] more rigid, per se rules” relating to choice-of-law issues and distinguishing it from the more contextual “significant effects” test adopted by the Restatement). Put another way, “[r]ule 8.5(b) attempts to set out choice-of-law rules conforming in some respects to those in [the Restatement], but as per se and unexcepted rules rather than presumptions.” Restatement (Third) § 5, Reporter’s Note to Comment h (citing Roach, The Virtues of Clarity: The ABA’s New Choice-of-Law Rule for Legal Ethics, 36 So. Tex. L. Rev. 907 (1995)).
To be sure, bright line rules cannot identify the appropriate resolution of choice-of-law questions for each and every situation, which must, in the end, be resolved on a case-by-case basis. Nonetheless, the following factors should, to the maximum extent possible, be used to determine the ultimate resolution of the choice-of-law question.
Principal Place of Practice—Under D.C. Rule 8.5(b)(2)(ii) the initial inquiry is the identification of the principal place of practice of a lawyer. We are aware of no commentary or case law that addresses the question of how this identification may be accomplished. We believe that the rule envisions a common-sense understanding of the phrase “principal place of practice” that encompasses the following components:
First, the phrase “principal place of practice” refers to the place of practice of the individual attorney whose conduct is at issue, not to the principal place of practice of his or her law firm. Typically, it is the individual lawyer’s conduct that is at issue; any sanctions to be considered by the disciplinary authority generally will run against an individual attorney, not the firm. Moreover, it would be administratively unworkable (and in some cases virtually impossible, given the multijurisdictional nature of many major firms and the difficulty in some instances of identifying a firm’s “principal” office6) to oblige individual attorneys to conform their conduct to the ethical rules of the jurisdiction where the principal office of the firm exists. This is especially true given that lawyers affiliated with a firm often will not be licensed to practice law in the jurisdiction of the firm’s principal office. Hence, we do not believe that Rule 8.5(b)(2)(ii) requires attorneys to look to the rules of professional conduct of a jurisdiction where they do not practice simply because they have affiliated with the branch office of a law firm whose principal office is outside the District of Columbia.
Rather, an individual attorney’s principal place of practice is presumptively to be determined by identifying the physical location of the office from or at which the attorney conducts the largest portion of his practice. Cf. Pa. Bar Ass’n Comm. on Legal Ethics and Professional Responsibility, Op. 96-147 (1997) (South Carolina Rules of Professional Conduct govern conduct, in South Carolina, of Pennsylvania lawyer also admitted in South Carolina, “where he currently resides and practices”).7 In those rare instances where the initial inquiry yields ambiguous results—as where an attorney splits his time almost equally between an office in the District of Columbia and an office in State X—then the disciplinary authority should look, secondarily, to the jurisdiction where the attorney resides (if the attorney resides in a jurisdiction where he is licensed) to determine his principal place of practice.8
Once the principal place of practice of an attorney is determined, the rules of that jurisdiction should be applied to evaluate the attorney’s conduct in non-judicial settings, unless the “predominant effect” exception requires application of the rules of a different jurisdiction.9
The Predominant Effect Exception—On rare occasions the “predominant effect” exception may lead the disciplinary authority to apply the rules of professional conduct of State X, where the conduct occurred and where the attorney is also licensed, even though the attorney whose conduct is under examination has a principal place of practice in the District of Columbia (or another jurisdiction, State A). We anticipate, however, that this exception will be invoked only in those infrequent situations where the interests of the other jurisdiction are manifestly greater than those of the District of Columbia or State A where the principal place of practice is located. Cf. Restatement (Third) of the Law Governing Lawyers § 5, comment h (2000) (predominant effects test is a “rigid” and “per se” test); id. § 5, Reporter’s Note to comment h (predominant effects test involves “per se” rules more restrictive than “presumptions”).10
Thus, the Commentary to Rule 8.5 advises that the predominant effect exception to Rule 8.5(b)(2)(ii) is “a narrow one.” D.C. Rule 8.5, comment [4]. And the Rule’s requirement that a lawyer’s conduct “clearly” have a predominant effect in another jurisdiction strongly suggests that the facts establishing such a predominant effect must be more than speculative or uncertain; rather they must be concrete and clearly established.
It is beyond the ability of the Committee to offer a comprehensive list of factors that will or will not suffice to invoke the “predominant effects” exception. Indeed, as the exception is intended to provide for the treatment of unusual and unique cases that ought not to be resolved by the application of the “principal place of practice” test, it is inconsistent with the purpose of the exception to suggest a rigid definition of what constitutes a “predominant effect.” Rather, invocation of the exception will be guided by the Rule’s intent to apply the exception narrowly, yet render it useful in those rare circumstances where it is appropriate. Thus, for example, the exception
would be appropriately applied . . . to a situation in which a lawyer admitted in and principally practicing in, State A, but also admitted in State B, handled an acquisition by a company whose headquarters and operations were in State B of another, similar such company. The exception would not appropriately be applied, on the other hand, if the lawyer handled an acquisition by a company whose headquarters and operations were in State A of a company whose headquarters and main operations were in State A, but which also had some operations in State B.
D.C. Rule 8.5, comment [4].11 In short, the predominant effect exception properly will be invoked in the narrow set of cases where the factors relevant to the particular conduct in question clearly establish that State X manifestly has a substantially greater interest in the resolution of the question to that of the principal place of practice.12
Action by Attorneys Involved in Joint Representation—One additional issue needs to be addressed—the situation in which an attorney who is a member of the District of Columbia bar and whose conduct would, under the foregoing analysis, be subject to District of Columbia rules, is jointly representing a client with another attorney who is subject to a different jurisdiction’s authority. A District of Columbia attorney acting in State X will often act in coordination with an attorney licensed to practice only in State X—either a lawyer who is local co-counsel from a different law firm or a lawyer who is associated in a single firm with the District of Columbia lawyer but has a principal place of practice in State X.13
What, if any, are the obligations and responsibility of the District of Columbia lawyer faced with this “dual jurisdiction/dual professional obligation” situation? Put another way, we assume that for at least one of the attorneys certain conduct may comply with the rules of professional conduct that govern his actions, while for the other the same conduct does not. May the restricted attorney engage in a representation of a client with an unrestricted attorney who may act in a situation where the restricted attorney’s own actions would be impermissible?14
In our judgment D.C. Rule 8.5 is best interpreted to require that the District of Columbia attorney faced with a dual jurisdiction/dual professional obligation situation act so that his own personal conduct is consistent with the rules of professional conduct applicable to him under the choice-of-law principles outlined above. In other words, a District of Columbia attorney does not violate the rules of professional conduct if his co-counsel engages in conduct that is permissible for that co-counsel under the rules of professional conduct applicable to that co-counsel, even if the District of Columbia attorney could not undertake the conduct in question. And, conversely, if the District of Columbia attorney acts in a manner permitted him under our choice-of-law principles, that act is not rendered impermissible simply because his co-counsel would not be permitted to engage in the conduct by virtue of the rules of professional conduct applicable to the co-counsel.15
The structure and language of the rules of professional conduct support this interpretation of Rule 8.5(b). A contrary interpretation (one, for example, holding that an attorney licensed only in the District of Columbia could not act in a manner that was permissible for him because the action was impermissible for his co-counsel) would, in many circumstances, create a result directly contrary to the mandatory language of D.C. Rule 8.5(b)(2)(i): “If the lawyer is licensed to practice only in this jurisdiction, the rules to be applied shall be the rules of this jurisdiction.” Id. (emphasis supplied). An interpretation that imputed to a District of Columbia attorney, licensed only in this jurisdiction, the rules of professional conduct of another jurisdiction applicable to his co-counsel would contravene the express directive of Rule 8.5 that the District of Columbia attorney be governed only by the rules of this jurisdiction.
This construction of Rule 8.5 is also more generally consistent with the structure of the rules of professional conduct. Where the drafters wished to require an individual attorney to act on the basis of or in respect of the professional obligations of another attorney they made that requirement express. Thus, for example, the rules provide that a disqualifying conflict of interest for one attorney is imputed to all members of his law firm. See D.C. Rule 1.10(a). And they provide special rules governing conflicts arising from prior government service of an attorney and their effect on members of his law firm. See D.C. Rule 1.11. By contrast, there is no general mandate requiring every attorney to comport his conduct with the professional conduct rules applicable to all of his colleagues within a law firm, much less with the rules applicable to unaffiliated co-counsel in a particular matter. It would be unwarranted to read such an obligation into the rules based on the choice-of-law provisions of D.C. Rule 8.5(b).
Finally, our understanding of Rule 8.5(b) is consistent with the assumptions that, at least implicitly, underlie the resolution of other professional conduct issues. For example, the ABA Standing Committee on Ethics and Professional Responsibility recently considered whether American lawyers may form partnerships with foreign lawyers. See ABA Formal Op. 01-423 (Sept. 22, 2001); see also D.C. Ethics Op. 278 (1998) (approving partnerships with foreign lawyers). In approving such partnerships the ABA Committee noted that the “law and ethical standards applicable to the legal profession in foreign countries will differ from some of the law and ethical standards that apply to U.S. lawyers.” Formal Op. 01-423 at 8; see also D.C. Ethics Op. 278 (same). Rather than concluding that the U.S. lawyers might be bound by the variant professional conduct standards applicable to their foreign partners, the ABA Committee counseled that the resolution to the problem posed by the differing standards lies in an explanation of the differing standards to any client potentially affected by them so that the client can make an informed decision on the matter. See Formal Op. 01-423 at 8; cf. D.C. Ethics Op. 278 (D.C. attorney “must ensure that the proposed association [with foreign attorney] does not in any way impair or frustrate his ability to meet his ethical obligations”). Thus, the ABA Committee recognized, without deciding (see Formal Op. 01-423 at 9 n.21), that the choice-of-law provisions of the rules do not necessarily require U.S. lawyers to adhere to the professional conduct standards of their foreign colleagues.
In light of these considerations, we believe that under D.C. Rule 8.5(b) the rules of professional conduct applicable to a District of Columbia attorney are not imputed to his co-counsel who may be subject to differing rules. The converse also holds—subject to the strictures of D.C. Rule 8.4(a), a District of Columbia attorney is not by virtue of the relationship made subject to the rules of professional conduct applying to his State X co-counsel and need follow only the rules of professional conduct dictated by the principal place of practice and predominant effects choice-of-law considerations outlined above.
Inquiry No. 01-09-20
Adopted: January 15, 2002
Published: May 2002
1. When an arbitration or mediation occurs in connection with ongoing litigation or at the order of a court, then the choice-of-law rules applicable to “conduct in connection with a proceeding in court” under D.C. Rule 8.5(b)(1) may control. The choice-of-law rules addressed in this opinion are limited, therefore, those to be applied to non-judicial proceedings that do not occur in connection with a proceeding in a court.
2. The choice-of-law questions addressed in this opinion also apply to government attorneys who are members of the District of Columbia Bar, yet frequently appear on behalf of the United States in non-judicial proceedings outside of the District. The choice-of-law principles enunciated in this opinion apply equally to government attorneys. Those who are members only of the District of Columbia Bar will, in reference to their conduct in non-judicial matters outside of the District, be subject only to the District’s rules of professional conduct. Those who are members of both this Bar and another will have their conduct evaluated based upon the rules of the jurisdiction that is their principal place of practice (which may often be the District of Columbia) unless the conduct in question has a predominant effect in another jurisdiction where they are also licensed to practice law.
3. The attorney should, nonetheless, exercise caution when acting in, or in respect of, another jurisdiction where differing rules exist, even though not licensed to practice there. Some activity in State X may be deemed by State X to be the unauthorized practice of law. In addition, the Committee offers no opinion as to the possibility that another jurisdiction may seek to apply its own rules to the attorney’s conduct based upon its own choice-of-law and disciplinary authority rules. Some states assert disciplinary authority over lawyers acting within the state even though neither licensed in that jurisdiction nor appearing before courts of that jurisdiction. E.g., Md. R. Prof. Conduct Rule 8.5(b); see also D.C. Ethics Op. 167 (1986) (cautioning that extra-territorial representation may subject attorney to jurisdiction of foreign locale). Many states have choice-of-law provisions different from those of the District of Columbia, and application of those rules may produce results inconsistent with those arising from the District’s choice-of-law rules.
4. D.C. Rule 8.5, adopted in November 1996, is identical to ABA Model Rule 8.5, which was adopted by the ABA in August 1993.
5. Consequently, though different jurisdictions may retain independent disciplinary authority over the conduct of an individual attorney licensed in more than one jurisdiction, the District of Columbia rules seek to “take all appropriate steps to [ensure] that [differing jurisdictions] apply the same rule to the same conduct, and in all events [to] avoid proceeding against a lawyer on the basis of two inconsistent rules.” D.C. Rule 8.5, comment [5].
6. For example, is a firm founded in Texas, and practicing as a Texas limited liability corporation, yet with its single largest office in the District of Columbia, a Texas or a District of Columbia firm?
7. In this era of multijurisdictional practice, multiple offices, and attorneys who telecommute to their offices from distant locations or their homes, even the relatively straightforward question of where an attorney’s office is located may, in some instances, be difficult to determine. We anticipate, however, that the disciplinary authority will look to extrinsic indicia of an attorney’s principal physical location: Where is his mail received? What address is listed on his letterhead, professional listing, and business cards? Which office is registered with the relevant federal, state, and local regulatory (e.g. license and taxation) authorities as his business location? While assuredly the resolution of these factual questions will not always be free from doubt, the Committee anticipates that uncertain cases will be exceedingly infrequent.
8. It is theoretically possible that an attorney splits his time exactly equally between two principal offices in different jurisdictions and that he resides in neither jurisdiction. There may, therefore, be rare instances in which it may be impossible to unambiguously determine a “principal place of practice.” In that event the predominant effects test will guide the choice of the applicable rules of professional conduct.
9. As should be evident, this analysis also applies if the attorney’s principal place of practice is in State A, a state that is neither the District of Columbia (where the attorney is licensed), nor State X (where the conduct occurred), and the attorney is a member of the Bar of State A. If the attorney whose conduct in State X is in question has a principal place of practice in a third jurisdiction, State A, where he is also licensed, the District of Columbia will apply the rules of professional conduct of State A unless the predominant effects exception requires otherwise.
10. The analysis reflected in this section will also apply in the converse situation, involving an attorney subject to discipline in the District of Columbia by virtue of his license from this jurisdiction whose principal place of practice is in State X. The ethical rules of State X will apply to the attorney’s conduct in non-judicial proceedings unless the District of Columbia disciplinary authority determines that the predominant effect of the attorney’s conduct lies in another jurisdiction where the attorney is also licensed (whether the District of Columbia or State A).
11. D.C. Ethics Op. 264 identified a number of variables that might factor into a choice-of-law decision. Opinion 264 was issued, however, prior to the District’s adoption of the current version of Rule 8.5.
12. Without addressing any concerns that these situations may raise relating to the unauthorized practice of law, for completeness sake, we note three unlikely scenarios: 1) In the unusual case that an attorney’s principal place of practice is in a state, State A, that is not a jurisdiction where the attorney is licensed, the District of Columbia disciplinary authority will apply the professional conduct rules of the jurisdiction, State X, where the conduct in question occurred, if the attorney is licensed in State X; 2) In the even more unlikely circumstance that the attorney has a principal place of practice in State A (where he is not licensed), engages in conduct in State X (where he is also not licensed), and the disciplinary authority must choose between the rules of either the District of Columbia or the attorney’s second state of licensure, State M, the disciplinary authority should apply the rules of the jurisdiction of licensure that has the predominant contact with the conduct in question (by virtue, for example, of the residence of one of the clients); and 3) If neither jurisdiction of licensure has any contact with the conduct in question and if both the conduct and the principal place of practice lie in jurisdictions where the attorney is not licensed—the disciplinary authority should presumptively apply the more limiting of the competing rules of the two states of licensure (the District of Columbia and State M), as the case may be.
13. The analysis in this section is equally applicable if co-counsel is licensed to practice in a third jurisdiction, State A.
14. D.C. Rules 5.1(c) (1) and 8.4(a) do not cover this situation, as they address only the issue of an attorney’s responsibility for the unethical acts of another attorney. Here the underlying action by the unrestricted attorney is, for that attorney, conduct in compliance with his jurisdiction’s rules. The question here is the more nuanced one of when (if ever) the attorney with greater restrictions on his professional conduct may continue to participate in a matter when the unrestricted attorney has acted in a manner permissible for him, yet in a manner that the restricted attorney could not have.
15. We recognize that this interpretation raises the specter that a District of Columbia attorney may be chosen to perform acts in State X in order to evade the ethical restrictions that might apply to his State X colleague who is subject to that jurisdiction’s rules. Conversely, the State X attorney may be called upon to perform acts that would be prohibited to the District of Columbia attorney under the choice-of-law analysis set forth above. We doubt that such deliberate evasion of professional conduct limitations is commonplace and note that the District attorney is expressly prohibited from such willful action. See D.C. Rule 8.4(a) (“It is professional misconduct for a lawyer to . . . violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another.”) (emphasis supplied).
The Committee is also cognizant of the possibility that a client may attempt to secure advantage and evade the applicable ethical restrictions by retaining counsel unencumbered by certain locally applicable ethical rules. In the absence of empirical evidence that large numbers of clients are making such strategic choices we discount that possibility, believing that far more salient factors (such as quality of representation, price, experience, and reputation) will much more significantly influence the choice of counsel. In our view the choice-of-law questions posed in this opinion are far more likely to be disclosed by the course of events well after the choice of counsel has been made than to be the motivating force for that choice.
