Current through Register Vol. 54, No. 44, November 2, 2024
(a)
Disciplinary Authority.
A lawyer admitted to practice in this jurisdiction is subject to the
disciplinary authority of this jurisdiction, regardless of where the lawyer's
conduct occurs. A lawyer not admitted in this jurisdiction is also subject to
the disciplinary authority of this jurisdiction if the lawyer provides or
offers to provide any legal services in this jurisdiction. A lawyer may be
subject to the disciplinary authority of both this jurisdiction and another
jurisdiction for the same conduct.
(b)
Choice of Law. In any
exercise of the disciplinary authority of this jurisdiction, the rules of
professional conduct to be applied shall be as follows:
(1) for conduct in connection with a matter
pending before a tribunal, the rules of the jurisdiction in which the tribunal
sits shall be applied, unless the rules of the tribunal provide otherwise;
and
(2) for any other conduct, the
rules of the jurisdiction in which the lawyer's conduct occurred, or, if the
predominant effect of the conduct is in a different jurisdiction, the rules of
that jurisdiction shall be applied to the conduct. 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.
Comment
Disciplinary Authority
(1) It is longstanding law that the conduct
of a lawyer admitted to practice in this jurisdiction is subject to the
disciplinary authority of this jurisdiction. Extension of the disciplinary
authority of this jurisdiction to other lawyers who provide or offer to provide
legal services in this jurisdiction is for the protection of the citizens of
this jurisdiction. Reciprocal enforcement of a jurisdiction's disciplinary
findings and sanctions will further advance the purposes of this Rule. See
Pennsylvania Rules of Disciplinary Enforcement 201(a)(6) and 216(d). A lawyer
who is subject to the disciplinary authority of this jurisdiction under Rule
8.5(a) appoints
an official to be designated by this Court to receive sevice of process in this
jurisdiction. The fact that the lawyer is subject to the disciplinary authority
of this jurisdiction may be a factor in determining whether personal
jurisdiction may be asserted over the lawyer for civil matters.
Choice of Law
(2) A lawyer may be potentially subject to
more than one set of rules of professional conduct which impose different
obligations. The lawyer may be licensed to practice in more than one
jurisdiction with differing rules, or may be admitted to practice before a
particular court with rules that differ from those of the jurisdiction or
jurisdictions in which the lawyer is licensed to practice. Additionally, the
lawyer's conduct may involve significant contacts with more than one
jurisdiction.
(3) Paragraph (b)
seeks to resolve such potential conflicts. Its premise is that minimizing
conflicts between rules, as well as uncertainty about which rules are
applicable, is in the best interest of both clients and the profession (as well
as the bodies having authority to regulate the profession). Accordingly, it
takes the approach of (i) providing that any particular conduct of a lawyer
shall be subject to only one set of rules of professional conduct, (ii) making
the determination of which set of rules applies to particular conduct as
straightforward as possible, consistent with recognition of appropriate
regulatory interests of relevant jurisdictions, and (iii) providing protection
from discipline for lawyers who act reasonably in the face of
uncertainty.
(4) Paragraph (b)(1)
provides that as to a lawyer's conduct relating to a proceeding pending before
a tribunal, the lawyer shall be subject only to the rules of the jurisdiction
in which the tribunal sits unless the rules of the tribunal, including its
choice of law rule, provide otherwise. As to all other conduct, including
conduct in anticipation of a proceeding not yet pending before a tribunal,
paragraph (b)(2) provides that a lawyer shall be subject to the rules of the
jurisdiction in which the lawyer's conduct occurred, or, if the predominant
effect of the conduct is in another jurisdiction, the rules of that
jurisdiction shall be applied to the conduct. In the case of conduct in
anticipation of a proceeding that is likely to be before a tribunal, the
predominant effect of such conduct could be where the conduct occurred, where
the tribunal sits or in another jurisdiction.
(5) When a lawyer's conduct involves
significant contacts with more than one jurisdiction, it may not be clear
whether the predominant effect of the lawyer's conduct will occur in a
jurisdiction other than the one in which the conduct occurred. So long as the
lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer
reasonably believes the predominant effect will occur, the lawyer shall not be
subject to discipline under this Rule.
(6) If two admitting jurisdictions were to
proceed against a lawyer for the same conduct, they should, applying this rule,
identify the same governing ethics rules. They should take all appropriate
steps to see that they do apply the same rule to the same conduct, and in all
events should avoid proceeding against a lawyer on the basis of two
inconsistent rules.
(7) The choice
of law provision applies to lawyers engaged in transnational practice, unless
international law, treaties or other agreements between competent regulatory
authorities in the affected jurisdictions provide
otherwise.
The provisions of this §
81.4 amended November 4, 1988,
effective 11/5/1988, 18 Pa.B.
4940; amended November 7, 1988, effective 11/7/1988, 18 Pa.B. 5245; amended November 7,
1988, effective 11/25/1988, 18
Pa.B. 5245; amended October 27, 1992, effective immediately, 22 Pa.B. 5516;
amended April 18, 1994, effective immediately, 24 Pa.B. 2383; amended May 16,
1994, effective 6/4/1994, 24
Pa.B. 2792; amended December 15, 1994, effective immediately, 24 Pa.B. 6554;
amended April 11, 1995, effective 4/29/1995, 25 Pa.B. 1670; amended July 17,
1996, effective 9/1/1996, 26
Pa.B. 3624; amended August 14, 1996, effective 8/31/1996, 26 Pa.B. 4213; amended October 15,
1998, effective immediately, 28 Pa.B. 5479; amended June 28, 2001, effective
7/14/2001, 31 Pa.B. 3728;
amended December 22, 2003, effective 1/3/2004, 33 Pa.B. 9; amended April 30, 2004,
effective upon publication, governs matters thereafter commenced and, insofar
as just and practicable, matters then pending, 34 Pa.B. 2537; amended August
23, 2004, effective 1/1/2005, 34
Pa.B. 4818; amended January 6, 2005, effective immediately and shall govern
matters thereafter commenced and, insofar as just and practicable, matters then
pending; amended March 17, 2005, effective 9/1/2005, 35 Pa.B. 1972; amended April 5, 2005,
effective upon publication, 35 Pa.B. 2386; amended December 30, 2005, effective
7/1/2006, 36 Pa.B.
173.
