Conduct Outside a Tribunal

Conduct Outside a Tribunal

Rule 8.5(b)(2) governs every piece of a lawyer’s conduct that paragraph (b)(1) does not reach. It applies the rules of the jurisdiction where the conduct occurred, or the rules of a different jurisdiction if the predominant effect of the conduct is there.¹ Paragraph (b)(1) takes only conduct in connection with a matter pending before a tribunal,² so (b)(2) is the residual track. It covers conduct in anticipation of a proceeding that is not yet pending,³ along with advisory, drafting, and negotiating work.

The rule settles a question of substance, not of power. Paragraph (b) does not limit who may discipline a lawyer; paragraph (a) confirms that any lawyer licensed or practicing in a state is subject to that state’s disciplinary authority. Paragraph (b) instead says which jurisdiction’s rules supply the substantive standard when a lawyer is potentially subject to conflicting rules from more than one jurisdiction.⁴ Two states may therefore hold authority over the same lawyer while only one state’s rules measure a particular act.

The tribunal track has a forum to anchor it; this track has none. A courthouse sits in one identifiable place. A lawyer who drafts a contract may work in one state, for a client in a second, on a deal whose consequences fall in a third, and no single fact settles whose rules govern. The rule answers in layers, and each layer repairs a weakness in the one before. The place of conduct is the fact the lawyer knows when acting, but the state where she happened to sit may have little interest in consequences felt elsewhere. The shift to predominant effect follows regulatory interests more closely, but it asks the lawyer to forecast how a diffuse set of contacts will be weighed. The reasonable-belief protection answers that difficulty by sparing the lawyer who forecast reasonably and followed the rules of the jurisdiction she forecast. The commentary names the aims these layers serve: a determination as straightforward as possible, consistent with the regulatory interests of the relevant jurisdictions, and protection from discipline for lawyers who act reasonably in the face of uncertainty.⁵

The subsections follow the layers in the order the rule states them: the place of conduct, the shift to predominant effect, the reasonable-belief protection, and, last, what a written choice-of-law agreement adds in a conflict-of-interest setting. The order matters, because each layer presupposes the one before it. You cannot ask whether the effect was felt elsewhere until you know where the conduct occurred, and you cannot test a belief about effect until you know what the effect question is.

Where the Conduct Occurred

The first instruction of Rule 8.5(b)(2) is to apply the rules of the jurisdiction in which the lawyer’s conduct occurred.⁶ Comment [4] states the same sequence. For all conduct other than conduct relating to a pending proceeding, including conduct in anticipation of a proceeding not yet pending, the place of conduct supplies the rules, and another jurisdiction’s rules displace them only if the predominant effect is there.⁷ The place of conduct is therefore the default, the answer you reach when nothing in the facts pushes elsewhere. Read the remaining clauses of paragraph (b)(2) as modifications of that default: fix the starting point first, then ask whether anything displaces it.

The default sits at the place of conduct because a lawyer can identify that fact with the most confidence. She knows where she is when she acts, so the location is knowable on the day of the work, which serves the commentary’s aim of making the choice of rules as straightforward as possible.⁸ The jurisdiction where the work takes place also has a natural interest in what happens inside its borders. The competing candidate, the place where the effects land, can turn on how a deal develops, and the commentary acknowledges that conduct with significant contacts in several jurisdictions may leave it unclear where the predominant effect will occur.⁹

The default settles the matter when conduct and effect fall in the same place.

Outside a pending matter, that is the ordinary outcome. A divergence between two states’ rules is resolved by asking where the lawyer acted, unless the effect is elsewhere, and the answer is the same whichever states have licensed her. A second license gives the second state authority over her, but authority and choice of law are separate questions.¹⁰

The costly mistake is to apply this default to everything a lawyer does merely because paragraph (b)(2) states it first. The paragraph reaches only “any other conduct,” meaning conduct that paragraph (b)(1) has not already assigned to the tribunal track.¹¹

For conduct connected with a pending matter, then, the tribunal’s location and rules control and the lawyer’s desk decides nothing.¹² For other conduct, the desk supplies only a starting point. When a stem puts the lawyer in one state and the client, counterparty, or consequences in another, the rule’s own wording shows the analysis is unfinished: the place-of-conduct rules apply “or, if the predominant effect of the conduct is in a different jurisdiction,” the rules of that jurisdiction apply instead.¹³ The next layer takes up that clause.

Predominant Effect

The second clause of Rule 8.5(b)(2) moves the analysis. When the predominant effect of the conduct is in a different jurisdiction, that jurisdiction’s rules apply to the conduct in place of the rules of the place where the lawyer acted.¹⁵ The clause leaves the default alone whenever conduct and effect land together. When the effect lands elsewhere, it replaces the default and does not add to it, because paragraph (b) rests on the premise that any particular conduct is subject to only one set of rules.¹⁶ A lawyer is never measured by the place-of-conduct rules and the effect-state rules at once.

The place where a lawyer happens to sit can poorly predict who will live with her work. The jurisdiction where clients, third parties, or the public feel the consequences has the stronger interest in setting the standard, and the commentary asks that the choice of rules be consistent with the regulatory interests of the relevant jurisdictions.¹⁷ If the place of conduct always controlled, a lawyer’s choice of office could set the standard for consequences borne elsewhere. Tying the rules to predominant effect aligns the standard with the jurisdiction that absorbs the outcome.

The effect can fall in more than one kind of place. For conduct in anticipation of a proceeding likely to come before a tribunal, the predominant effect could be where the conduct occurred, where the tribunal sits, or in another jurisdiction.¹⁸

Two neighboring states show the shift most clearly when their rules actually collide.

Nothing is pending, so paragraph (b)(2) controls, and the lawyer is subject to only one of the two rules.¹⁹ Where she sat points to South Dakota. The shift clause points to wherever the predominant effect lies, and the natural candidate is where the person at risk lives, since that is where disclosure would prevent a death. Three variations differ in only one fact, that person’s location:

• If the person is in Iowa, Iowa’s rules apply, and the lawyer must disclose.
• If the person is in South Dakota, South Dakota’s rules apply on either test, and the lawyer may not disclose. Had she worked from an Iowa office, the shift clause would still have sent her to South Dakota’s rules, so her office drops out of the analysis.
• If the person is in a third state, the rule text does not dictate an answer. The place of conduct and the third state each have a plausible claim.

The third variation is hard because conduct with significant contacts in several jurisdictions may leave it unclear where the predominant effect will fall.²⁰ That uncertainty explains why the rule pairs the shift clause with a protection for reasonable forecasting, taken up next: a lawyer whose conduct conforms to the rules of a jurisdiction where she reasonably believes the predominant effect will occur is not subject to discipline.²¹

Keep the example in proportion. True conflicts between states’ rules are likely to be rare, and Rule 8.5 is designed to specify the single ethical regime that governs any occasion of professional conduct.²² In most cases the contacts all point the same way, and the default decides.

An examiner who builds a question on the shift clause must separate the effect from the conduct, so the stem usually puts the lawyer’s work in one state and the affected people or property in another. When you see that split, locate the effect before reaching for the rules of the lawyer’s office or license. The place of conduct decides the question only when the effect is in the same place or cannot fairly be located elsewhere, and a lawyer’s additional licenses add no rule set of their own.

Reasonable Belief Safe Harbor

The second sentence of Rule 8.5(b)(2) protects the lawyer who forecasts well: she “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.”²⁴ Comment [5] explains the need. When conduct has significant contacts with more than one jurisdiction, it may be unclear whether the predominant effect will fall outside the place of conduct, and so long as the conduct conforms to the rules of a jurisdiction where the lawyer reasonably believes it will, she is not disciplined under the rule.²⁵ The clause sits in paragraph (b)(2), so it speaks to conduct outside a pending tribunal matter, where the location of the effect can genuinely be in doubt. Paragraph (b)(1) fixes the rules by the tribunal’s location, a fact the lawyer can identify on the day of filing.

The clause exists because of a timing gap. Predominant effect is a judgment the lawyer must make while acting, before the consequences play out, and a disciplinary body makes the same judgment later, with a full record and knowledge of the outcome. Without protection, a lawyer who weighed the contacts sensibly, chose the jurisdiction that looked most affected, and followed its rules would still face discipline whenever the body placed the effect elsewhere. That result would punish a forecast reasonable people could have made either way, which is why the commentary lists protection for lawyers who act reasonably in the face of uncertainty among the aims of paragraph (b).²⁶ The clause measures the lawyer by her reasonable view when she acted, not by the body’s later view. The conformity requirement guards against the opposite risk: a lawyer who breaks the rules of the jurisdiction she chose gets no shelter, and a claimed belief cannot become an all-purpose excuse.

The two conditions answer different questions. Reasonableness concerns the lawyer’s forecast about where the effect will fall; conformity concerns her behavior measured against one rule set. The usual error is to treat the protection as automatic whenever the lawyer followed some state’s rules. That skips step 3, because following a rule set helps only when the belief that tied the lawyer to that jurisdiction was itself reasonable.

A lawyer with the same reasonable belief about State B who breaches State B’s rules gets nothing from the clause, because the clause protects conformity to those rules. Reasonableness fails in a different way, and examiners usually build that version by making the chosen state’s code the lenient one and its connection to the matter thin.

The clause does its heaviest work where the facts leave the effect genuinely open. In the confidentiality example, a person at risk in a third state leaves the place of conduct and the third state both plausible. A lawyer who reasonably foresaw the effect in one of them and followed its rules is protected, even if the disciplinary body later picks the other. When the body could defensibly choose either, there is no single correct answer the lawyer failed to find, and discipline would punish a reasonable judgment call. The protection ends where reasonableness ends, which is why the State C lawyer gets none, and it never relaxes the conformity requirement. For conflicts of interest, Comment [5] adds that a written client agreement may be considered in assessing reasonableness.²⁸

Choice-of-Law Agreements

Rule 8.5(b)(2) protects a lawyer whose conduct conforms to the rules of a jurisdiction where she reasonably believes the predominant effect will occur.³⁰ Comment [5] names one source of evidence about that belief. For conflicts of interest, a written agreement between lawyer and client that reasonably specifies a particular jurisdiction as within the scope of paragraph (b)(2) may be considered in determining the lawyer’s reasonable belief, if the agreement was obtained with the client’s informed consent confirmed in the agreement.³¹ The sentence works inside the reasonable-belief inquiry from the last subsection. It bears on step 3, whether the belief was reasonable, and leaves the other steps where they were.

The operative word in the comment is “may.” A qualifying agreement is something a disciplinary body is permitted to weigh, one fact among the others bearing on whether the forecast about predominant effect was reasonable. It selects no governing rules. Paragraph (b)(2) still points to the place of conduct or the place of predominant effect, and the protection still requires conduct that actually conforms to the rules of the jurisdiction the lawyer reasonably expected. Reading the agreement as a contractual choice of law that binds the disciplinary body assumes a rule the comment does not state.

The comment’s evident use is practical. On a multistate matter, a firm must decide at the outset whether to take on a representation and what waivers to seek, long before any disciplinary body reviews the choice, so it needs some basis for predicting which conflict standard will later measure its conduct. A written specification, made with the client’s informed consent, gives lawyer and client a shared basis for that prediction and leaves a record of what both understood when the forecast was made. The comment’s conditions keep the device honest. If any boilerplate sentence naming the most lenient state could settle the question, a firm could choose its own conflict standard by drafting. Requiring informed consent confirmed in the agreement points to a client who actually weighed the choice, and requiring a reasonable specification ties the named jurisdiction to the matter.

What does an engagement letter naming a jurisdiction add to an essay stem? When every condition is met, it adds weight to the lawyer’s side of the reasonableness inquiry.

An agreement that fails the conditions gets a different reception. Examiners often build that version by hiding the clause and attaching it to a state with no tie to the matter.

The common error is to treat the clause as self-executing, as though naming a state in a signed letter picked the rule set. The comment makes the agreement a matter the body may consider when judging reasonableness, and it ties that consideration to a conflict-of-interest setting, a reasonable specification, and informed consent confirmed in the writing.