Concept
Disciplinary Authority Under Rule 8.5(a)
Powers of courts and other bodies to regulate lawyers
Disciplinary Authority Under Rule 8.5(a)
Model Rule 8.5(a) answers one question: which jurisdictions may discipline a given lawyer? It answers in three sentences, each of which supplies a separate basis of power. The first reaches a lawyer admitted to practice in the jurisdiction, wherever the lawyer’s conduct occurs. The second reaches a lawyer who is not admitted there but provides or offers to provide any legal services there. The third accepts that a lawyer may answer to more than one jurisdiction for the same conduct.1
The two bases protect different interests. The admitting jurisdiction regulates its own licensee, and the comment to the rule calls that authority longstanding law. A jurisdiction where an outside lawyer serves clients has issued no license, so the comment grounds its authority in the protection of that jurisdiction’s citizens.2 Between them, the two bases keep a lawyer’s interstate practice within reach of the regulators who have a stake in it.
Rule 8.5(a) says who may act, and it leaves open whose rules of professional conduct measure the lawyer’s conduct. Paragraph (b) is not a jurisdictional limitation on disciplinary authority. When a lawyer is potentially subject to conflicting rules from more than one jurisdiction, paragraph (b) supplies the framework for choosing which jurisdiction’s rules apply.3 Keep the two questions apart. The power to proceed comes first, and the choice of governing rules, the subject of the next section, comes second. A common error is to read the content of a conduct rule and conclude from it that a state has power over the lawyer.
Admitted Lawyers
The first sentence of Rule 8.5(a) supplies the most basic tie: a lawyer admitted to practice in a jurisdiction is subject to that jurisdiction’s disciplinary authority, regardless of where the lawyer’s conduct occurs.4 The comment calls this longstanding law,5 and the other two sentences of the rule build outward from it. A lawyer licensed in a state falls under that state’s disciplinary authority, as paragraph (a) confirms.6
Two phrases carry the sentence. The word admitted supplies the hook, because the jurisdiction’s tie to the lawyer is the license it issued. The clause regardless of where the lawyer’s conduct occurs removes any territorial limit. A licensing state that could reach only conduct inside its borders would lose its hold on a lawyer the moment the lawyer crossed the state line, and misconduct would simply migrate to wherever the licensing state cannot see it. Because the authority attaches to the license, it travels with the lawyer.
Courts state the rule in the same terms. In Ackerman v. Sobol Family Partnership, LLP, the court noted in a footnote that attorneys risk disciplinary proceedings if they fail to comply with the rules, and it cited two provisions together. Rule 8.4 makes it professional misconduct to violate or attempt to violate the Rules of Professional Conduct, to knowingly assist or induce another to do so, or to do so through the acts of another. Rule 8.5(a) provides that “[a] lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction.”7 One rule defines the misconduct, and the other identifies the lawyers who answer for it.
A lawyer admitted in two states answers to both. Each state’s authority holds wherever the misconduct occurred, so when one state finds a violation and imposes a sanction, the other needs no fresh misconduct within its own borders in order to act. The comment says that reciprocal enforcement of a jurisdiction’s disciplinary findings and sanctions advances the purposes of the rule, and it points to Rules 6 and 22 of the ABA Model Rules for Lawyer Disciplinary Enforcement.8 Reciprocal enforcement lets the second state build on the first state’s findings and sanction instead of starting over.
Admission decided the first answer, and the place of the conduct played no part. State A reaches Lena through the license it issued even though every act occurred in State B. State B may have its own basis for acting against her, because she performed legal work there, and the next section develops that basis. For Marcus, the missing fact is any provision or offer of services in State A. An exam stem that puts the misconduct in another state and asks whether the admitting state may act tests whether you let the location of the conduct decide. The license alone settles it.
Lawyers Not Admitted Locally
The second sentence of Rule 8.5(a) reaches a lawyer who holds no license in the jurisdiction at all. A lawyer not admitted there is also subject to its disciplinary authority if the lawyer “provides or offers to provide any legal services in this jurisdiction.”11 The first sentence rested on a license the jurisdiction had issued. This sentence rests on something the jurisdiction can observe without any license: the lawyer’s decision to serve people inside its borders.
The comment states the purpose of the extension: it exists for the protection of the citizens of the jurisdiction.12 That purpose explains why a license cannot be the only hook. If authority followed licensure alone, an out-of-state lawyer could mishandle a local client’s matter and answer to no local regulator, because the state never issued the license and the lawyer’s home state may be distant and slow to learn of the problem. The words “offers to provide” close a second gap, because a lawyer who solicits clients in a state exposes them to the risk the state means to guard against before any service is performed.
The comment attaches two practical consequences to this authority. A lawyer who is subject to a jurisdiction’s authority under Rule 8.5(a) appoints an official, designated by that jurisdiction’s court, to receive service of process there. And the lawyer’s being subject to the jurisdiction’s disciplinary authority may be a factor in deciding whether personal jurisdiction may be asserted over the lawyer in civil matters.13 The word may matters: disciplinary status is one factor a court weighs, and it does not by itself establish personal jurisdiction.
Many lawyers who are not admitted locally are in the state with its permission. Rule 5.5 recognizes that a client’s right to the counsel of his choice, or the interstate nature of a matter, can justify limited and usually temporary permission for an out-of-state lawyer to provide services in the forum state. The rule reduces barriers to interstate practice while accounting for the state’s interest in the quality and ethical behavior of lawyers practicing within its borders.14 That interest does not lapse when permission is granted. A lawyer who wishes, even on a temporary basis, to provide legal services in the jurisdiction must recognize the jurisdiction’s interest in disciplining misconduct in connection with those services.15
The second sentence reaches non-admitted lawyers in several postures, running from those the state has formally allowed in to those it never invited:
- A lawyer with formal permission to practice there, such as pro hac vice admission (a court’s permission to appear in a particular matter) or registration as house counsel.16
- A lawyer practicing temporarily as Rule 5.5 permits.17
- A lawyer who offers legal services in the state, for instance by directing advertising at prospective clients located there, even before any client has retained the lawyer.18
- A lawyer who practices there with no permission of any kind.19
The last posture can look odd, since the lawyer had no right to be in the state. But the sentence turns on what the lawyer does, and it does not ask whether the lawyer was entitled to do it: the trigger is providing or offering legal services in the jurisdiction.20 A rule that excluded unauthorized practitioners would shield the lawyers who ignore a state’s admission system while binding those who follow it.
What must an exam stem show before a state can claim authority over a lawyer licensed only elsewhere? It must show that the lawyer provided or offered legal services in that state. The location of the lawyer’s license, office, or home does not substitute for that showing.
The offer moved the answer. Priya need not have won a single State B client, while Tom stays outside State B’s authority however much his client’s affairs may later touch that state.
Authority over a lawyer is one question, and the sanctions available are another, because a state can act only through what it can reach. A state can suspend or disbar a license it issued, and it has issued none to this lawyer. If the lawyer holds a local permission such as pro hac vice admission or house counsel registration, the court has a privilege it can withdraw. If the lawyer holds neither, the state cannot withdraw any privileges, although the misconduct would be a matter of record on any later application for regular admission, pro hac vice admission, or house counsel registration.21 That leaves three responses:
- Withdraw a local permission the lawyer holds, such as pro hac vice admission or house counsel registration.22
- Enjoin the lawyer from continuing to practice in the state.23
- Refer the matter to the lawyer’s home jurisdiction for reciprocal discipline.24
The second and third responses require no privilege to withdraw. In Attorney Disciplinary Board v. Carpenter, the Iowa Supreme Court explained that its authority to discipline lawyers not licensed in Iowa includes the ability, through its injunctive and equitable powers, to fashion practice limitations equivalent to license suspension, disbarment, or other sanctions related to an attorney’s license.25 An injunction does the work a suspension would have done, and it requires no license to suspend. Referral completes the picture, because the home jurisdiction holds the license and can act on it.
A question that asks which sanction a state may impose on a lawyer it never admitted therefore tests whether the remedy fits what the state can reach. Disbarment and license suspension are available only against a lawyer the state licensed. Against everyone else, the answers are withdrawal of a limited permission where one exists, an injunction against continued practice, and referral to the home jurisdiction.
Authority of Several Jurisdictions
The third sentence of Rule 8.5(a) says that a lawyer “may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.”29 It adds no new basis of authority. It confirms that the first two bases, a license issued by the jurisdiction and the provision or offer of legal services there, each stand on their own, so no jurisdiction’s claim excludes another’s. Overlap arises in two ordinary ways. A lawyer licensed in two states answers to both, and a lawyer licensed in one state who provides or offers services in a second answers to the admitting state and to the service state.30
Concurrent authority follows from the fact that each jurisdiction’s power rests on its own interest. The admitting jurisdiction’s authority rests on the license it issued, and the service jurisdiction’s rests on the protection of its own citizens.31 Because the interests are independent, one jurisdiction’s action does not satisfy the other’s. If authority were exclusive, a state whose residents were harmed would have to rely on a regulator elsewhere, one that might never learn of the harm or might decline to act.
Overlapping authority invites a practical problem, because several regulators could each investigate the same facts. The comment’s answer is reciprocal enforcement, which it says advances the purposes of the rule.32 Where a lawyer is admitted in both jurisdictions, the second jurisdiction can act on the first one’s findings and sanction instead of rebuilding the case, and a sanction in one state does not leave the lawyer untouched in another.
Concurrent authority settles who may proceed against a lawyer, and it leaves open whose rules measure the lawyer’s conduct once a jurisdiction does proceed. State rules may differ from the ABA Model Rules and from one another,33 so the choice can decide the outcome.
An exam stem that stresses a second state’s authority over a lawyer is therefore testing only the first half of the problem. The second half belongs to Rule 8.5(b), the choice-of-law provision taken up in the next section.