CURRENT MONTH (March 2023)
Ethics and Professional Responsibility
New ABA Ethics Opinion on Conflict of Laws and Model Rule 8.5
On March 1, the Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 504, which addresses the question of which jurisdiction’s ethics rules should apply to lawyers handling matters in more than one jurisdiction. The focus of the opinion is Model Rule 8.5, “Disciplinary Authority; Choice of Law.”
Rule 8.5(a) provides that, regardless of where a lawyer’s conduct occurred, the disciplinary rules of the jurisdiction(s) of admission will govern. The choice of law rules for the exercise of the disciplinary authority of the jurisdiction(s) identified in Rule 8.5(a) are set forth in Rule 8.5(b). Formal Opinion 504 addresses itself to that arcane topic.
During the careers of the most seasoned members of the Bar (in which company the author must, regrettably, include himself), the legal profession has been transmogrified in many respects. One of these is a sea change from the predominant model of law practice as being essentially local to one involving representation of clients on a multi-jurisdictional basis. This phenomenon lies on a spectrum ranging from being fully licensed in multiple jurisdictions (which is facilitated by the increased adoption of the Universal Bar Exam), to temporary practice in a jurisdiction in which a lawyer is not licensed, all the way to the traditional pro hac vice admission. Change was accelerated in recent years, moreover, as the COVID-19 pandemic witnessed lawyers holed up in jurisdictions other than where they were licensed and practicing law from there with the assistance of technology.
Formal Opinion 504 provides guidance on the application of Model Rule 8.5, which makes clear that the discipline and conduct rules both of a lawyer’s home jurisdiction and the jurisdiction where the lawyer happens to be practicing may be applied. Scenarios to which the rule applies can include such diverse circumstances as a lawyer in Michigan trying a case in Indiana; a lawyer in D.C. advising a client on a question of California privacy law; the law governing fee agreements; questions of law firm ownership; screening of lateral lawyers; the duty to report professional misconduct; and variations in the confidentiality rules from one jurisdiction to the next. This last topic becomes ever more complex when a lawyer is representing a client in another country, but Formal Opinion 504 does not dare to tread into that quagmire.
The opinion distinguishes between matters in litigation and all other matters. With respect to matters in litigation, the rules of the jurisdiction in which the tribunal is located normally generally will govern, except as may otherwise be provided by the rules of the tribunal itself. Outside the litigation context, however, things can become more complex. The basic rule of thumb, articulated by the Formal Opinion, is that “A lawyer must comply with the ethics rules of the jurisdiction where the lawyer’s conduct occurs or, if different, where the predominant effect of the lawyer’s conduct occurs.”
Model Rule 8.5 provides a safe harbor: “A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.” Application of that safe harbor is not so simple, however, as ascertaining where the predominant effect of the lawyer’s conduct occurs is frequently a non-trivial exercise. According to Formal Opinion 504, “Factors to assess where that ‘predominant effect’ occurs may include the client’s location, where a transaction occurs, which jurisdiction’s substantive law applies to the transaction, the location of the lawyer’s principal office, where the lawyer is admitted, the location of the opposing party, and the jurisdiction with the greatest interest in the lawyer’s conduct.”
The opinion contains an extended discussion of several scenarios. In order of presentation, they are: (1) Fee arrangements; (2) law firm ownership; (3) reporting professional misconduct; (4) duties of confidentiality; and (5) screening for lateral lawyers. These scenarios will repay the reader’s careful attention.
Update on Responding to Negative Online Reviews
Nearly two years, I posted a piece entitled “Yelp Help: Responding to Negative Online Reviews.” That piece compared ABA Formal Opinion 496 (2021) with some earlier state ethics opinions out of New York, Colorado, and D.C. These opinions considered the ethical constraints on lawyers and law firms rebutting or otherwise responding to negative online reviews of their performance by clients.
Recently, Florida weighed in on this topic. In amendments to state legal ethics rules approved by the Florida Supreme Court on March 16, 2023, Florida’s version of Model Rule 1.6 – Fla. R. 4.-1.6 (dealing with confidentiality) was amended to add a new paragraph (7) to section (c), which lists exceptions to the confidentiality requirement. New paragraph (c)(7) is a limited exception dealing with internet allegations by a client that the lawyer “has engaged in criminal conduct punishable by law.” The new provision authorizes revealing confidential information to the extent the lawyer reasonably believes necessary to:
(7) respond to specific allegations published via the internet by a former client (e.g. a negative online review) that the lawyer has engaged in criminal conduct punishable by law.
The comments to the new rule were also amended to clarify that this already limited exception is further limited by subdivision (f) of the Florida rule, such that disclosure of client information will only be permissible under these circumstances if it is “no greater than the lawyer reasonably believes necessary to refute the specific allegations.”
The Indian Bar Council Permits Foreign Lawyers and Firms to Register to Engage in Limited Law Practice in India
On March 10, 2023, the Bar Council of India issued “Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India.” The Rules enable foreign lawyers, essentially lawyers enrolled to practice in jurisdictions outside India, to register to practice foreign law and diverse international and international arbitration matters in India on the principle of reciprocity. Foreign lawyers may not (i) appear before any courts, tribunals, and statutory or regulatory authorities (except for certain kinds of arbitration matters); (ii) engage in issues of Indian law; or (iii) handle matters pertaining to conveyance of property, including title investigation and the like. Foreign lawyers and firms may open law offices in India subject to reporting requirements, engage Indian advocates on subjects relating to Indian law, and hire or enter partnerships with foreign lawyers or law firms registered in India. Registration for individual lawyers costs USD 25,000, not including a USD 15,000 security deposit and USD 10,000 for renewal five years after registration. Firms pay USD 50,000 for registration, a USD 40,000 guarantee at the time of registration, and USD 20,000 for renewal.
Foreign lawyers and firms will be subject to ethical and practice standards laid down under the Indian Advocates Act (1961). As a general matter, the Bar Council refers matters of misconduct to the relevant foreign disciplinary authority. In the case of “substantive misconduct,” the Bar Council may cancel registration. It may also suspend or cancel registration or reprimand or impose costs or monetary penalties on anyone who secures registration under these Rules by misrepresentation, fraud, or undue influence. Notably, the Rules grant no other advantages or rights to foreigners in India, beyond the right to limited practice.
The Rules present a significant change for the legal landscape in India, as prior to these Rules, foreign lawyers could only practice law on a “fly in and fly out” basis. This refers to the ability of foreign lawyers to visit India for a temporary period for the purpose of giving legal advice to clients in India on issues of foreign or international law. In a contentious 2018 decision, discussed in a 2018 month-in-brief, the Supreme Court of India had previously upheld rulings that foreign lawyers and law firms could not practice law in India except on a “fly in and fly out” basis. These Rules do not impact the “fly in and fly out” basis for practicing law in India, which remains valid.