Conduct Before a Tribunal

Paragraph (b) of Rule 8.5 does not decide whether a jurisdiction may discipline a lawyer, because paragraph (a) already settles that any lawyer licensed or practicing law in a state is subject to that state's disciplinary authority. Paragraph (b) answers a different question: when more than one jurisdiction's rules could apply, which one supplies the standard? It is designed to name a single ethical regime for any particular occasion of professional conduct.¹ It does so on two tracks, and this unit covers the first.

The first track governs conduct in connection with a matter pending before a tribunal. The rules of the jurisdiction in which the tribunal sits apply, unless the rules of the tribunal provide otherwise.² Comment [4] restates the track from the lawyer's side. The lawyer is subject only to the rules of the tribunal's jurisdiction, subject to any contrary provision in the tribunal's own rules, including its choice of law rule.³

The drafters pointed to the courthouse because lawyers often face competing rule sets. A lawyer may be licensed in several jurisdictions with differing rules, or may be admitted before a court whose rules differ from those of the lawyer's home jurisdictions.⁴ Comment [3] answers by building paragraph (b) on the premise that minimizing conflicts between rules, and uncertainty about which rules apply, serves clients, the profession, and the regulators. Any particular conduct is therefore subject to only one set of rules, and the choice is made as straightforward as possible while respecting the regulatory interests of the jurisdictions involved.⁵ The location of a tribunal is a fixed fact once a case is before it, which makes it a natural anchor for that single set.

Three questions, asked in order, resolve any problem on this track. Where does the tribunal sit? Do the tribunal's own rules provide otherwise? Is the matter actually pending? The subsections below take them in that order.

Where the Tribunal Sits

Rule 8.5(b)(1) sends a disciplining jurisdiction to the rules of the jurisdiction in which the tribunal sits whenever the conduct is connected with a pending matter.⁶ The inquiry is geographic. Locate the court or agency where the matter is pending, identify the jurisdiction in which it sits, and that jurisdiction's conduct rules measure what the lawyer did. The rule's text says nothing about where the lawyer is licensed, where the lawyer's office is, or where the client lives, and none of those facts enters the analysis. Comment [4] makes the point with the word only: conduct relating to a pending proceeding is subject only to the rules of the tribunal's jurisdiction.⁷

That word carries the policy of the whole paragraph, which is one set of rules for any particular conduct.⁸ It also gives the out-of-state lawyer a predictable answer. A lawyer with several licenses would otherwise have to guess which license's rules a disciplinary body would later apply to what happened in court. The location of the tribunal, by contrast, is known on the day the appearance is entered.

The result follows directly from the rule. State B's rules control to the extent they diverge from State A's, whatever the lawyer's state of licensure.⁹ The choice of rule set matters only when the codes actually differ on the point at issue, so a good analysis identifies the divergence first. The exam skill is to resist the pull of the lawyer's home license and ask where the tribunal sits.

A federal tribunal is still a tribunal, but finding its rules takes one more step. The lawyer must identify the ethical rules the federal court has adopted, which may be the rules of the state in which it sits, its own independently promulgated rules, or some combination of the two.¹⁰ The search still begins at the courthouse, whatever the lawyer's license says. What the tribunal's own rules provide can also change the answer, as the next subsection explains.

The trigger for all of this is a matter actually pending before a tribunal. A dispute that is merely expected does not qualify, and conduct in anticipation of a proceeding not yet pending is evaluated under the alternative provision in Rule 8.5(b)(2).¹¹

Rule 8.5(b)(1) also answers a narrower question than students sometimes assume. It selects the rules that measure a lawyer's conduct for discipline, and it does not decide whether the lawyer may appear before the tribunal at all. Paragraph (b) is not a jurisdictional limitation on disciplinary authority. It supplies the framework for choosing among rules.¹² Permission to appear is a question of authorization, and Rule 5.5 recognizes admission pro hac vice before a tribunal as a limited form of admission.¹³ A stem can raise both questions. One decides whether the lawyer may practice in the forum, and the other decides which rules judge what the lawyer did there.

Tribunal's Own Rules

The default in Rule 8.5(b)(1) carries its own qualifier: the rules of the jurisdiction where the tribunal sits govern conduct in a pending matter ‘unless the rules of the tribunal provide otherwise.’¹⁵ Comment [4] adds that the tribunal's rules, including its choice of law rule, can supply that different answer.¹⁶ The clause is a deference clause. It asks nothing new about the lawyer or the conduct. It asks only whether the tribunal has said which rules govern lawyers who appear before it, and a disciplining jurisdiction that finds such a directive follows it.

Deference avoids exactly the conflict that paragraph (b) exists to prevent. Suppose a court directs that its own standard governs lawyers in its proceedings, and a disciplinary body applies the location default anyway. The lawyer then receives two commands about one act. Paragraph (b) rests on the premise that any particular conduct is subject to only one set of rules, and following the tribunal's own directive keeps that premise intact.¹⁷

Federal tribunals show why the clause deserves a look before the default is assumed. A lawyer practicing before a federal tribunal must identify the ethical rules that tribunal has adopted, which may be the rules of the state in which the court sits, the court's own independently promulgated rules, or some combination of the two.¹⁸ If the court has adopted the local state's code, the result matches the default. If it has adopted rules of its own, those displace the default to whatever extent they diverge. The answer comes from the court's rules and not from the map.

What should an examinee do first when a stem places a lawyer in a federal courthouse in State B? The quick answer is that State B's code governs because the court sits there. That answer is right only when the court has adopted State B's rules or has said nothing on the subject, as the facts below show.

In practice the inquiry runs in order. Read what the tribunal itself provides before assuming that the local state's rules apply, and treat the tribunal's directive as controlling for conduct in the pending matter. Only where the tribunal is silent does the default of the jurisdiction in which it sits do the work, and only conduct tied to a matter actually pending is sorted this way at all.

Pending Versus Anticipated Matters

Rule 8.5(b)(1) reaches only conduct ‘in connection with a matter pending before a tribunal,’ and the word pending marks the outer edge of the first track.²⁰ Comment [4] draws the contrast itself. All other conduct goes to paragraph (b)(2), expressly including conduct in anticipation of a proceeding not yet pending before a tribunal.²¹ The sorting question for any stem is therefore about the status of the matter when the lawyer acted. Does a tribunal actually have it? The lawyer's license, the client's residence, and the kind of task the lawyer was doing do not matter.

Students often sort by the kind of work, and that instinct misleads. Interviewing witnesses, collecting documents, sending a demand letter, and negotiating a settlement are all litigation work in the ordinary sense, and they can all come before any filing. The comment also reaches a proceeding that is likely to be before a tribunal. It treats that conduct as anticipation too, so a high probability of suit does not turn anticipation into pendency.²² A complaint drafted and waiting on the lawyer's desk leaves the lawyer on the (b)(2) side, because the test asks whether the matter is before a tribunal and gives no credit for being about to put it there. An examiner probing this boundary will describe litigation preparation and ask which state's rules govern, expecting an answer drawn from the matter's status and not from the flavor of the work.

The line falls there because the justifications for the tribunal track depend on a tribunal that already has the matter. A tribunal's location is a settled fact only once the matter is before it, and a tribunal can supply its own conduct rules only for a proceeding that is before it. Before then, the future forum may not be settled. The suit might be filed in a different state than the lawyer expected, might settle first, or might never be filed. The drafters acknowledged as much. For conduct in anticipation of a proceeding likely to be before a tribunal, Comment [4] says the predominant effect could be where the conduct occurred, where the tribunal sits, or in another jurisdiction.²³ They did not default pre-filing work to the future courthouse.

Paragraph (b)(2) takes over the spring scene. It directs the disciplining body to the rules of the jurisdiction in which the lawyer's conduct occurred, or to the rules of a different jurisdiction if the predominant effect of the conduct is there.²⁴ State A (where the lawyer worked), State B (where the suit will be filed), or a third state could each be the answer, and the text does not pick among them in advance. That is the cost of not tying pre-filing work to a forum that does not yet exist. What this section settles is the sorting. The question belongs to (b)(2), and the future courthouse does not answer it by default. The next section develops how (b)(2) is applied.