When a lawyer is admitted in New York and another state, which state's ethics rules govern non-litigation work like contracts and agency filings?

Plain-English summary

The inquirer is licensed in both New York and the District of Columbia, with offices in both, and handles only non-court matters: negotiating commercial contracts and real estate deals, and representing clients before federal agencies such as the USPTO and the IRS. Ethics questions had arisen in his work and he wanted to know which jurisdiction's ethics rules govern. The committee addressed only choice of law, not the underlying ethics questions (¶¶ 1-3).

The committee parsed Rule 8.5. Subdivision (a) makes a New York lawyer subject to New York discipline regardless of where the conduct occurs, but does not say which jurisdiction's rules apply. That is answered by Rule 8.5(b). Rule 8.5(b)(1) applies only to "conduct in connection with a proceeding in a court," and the committee held that "court" is narrower than "tribunal" as defined in Rule 1.0(w); matters before federal agencies are not before a "court." Because the inquirer practices in no court, the committee proceeded to Rule 8.5(b)(2), which governs "any other conduct" (¶¶ 4-10).

Under Rule 8.5(b)(2)(i), a lawyer licensed only in New York is governed by New York's rules. Under Rule 8.5(b)(2)(ii), a lawyer licensed in New York and another jurisdiction is governed by the rules of the admitting jurisdiction in which the lawyer "principally practices," subject to an exception where particular conduct "clearly has its predominant effect" in another jurisdiction in which the lawyer is licensed. The committee explained that neither the rule nor its comments define "principally practices," and identified relevant factors: days worked and hours billed in each jurisdiction, where the clients are, the activities performed, and special circumstances (¶¶ 11-14).

The committee then explained the "predominant effect" exception, noting there is no simple formula and listing factors such as where clients reside and work, where payments are deposited, and where contracts are performed. The exception applies only if the predominant effect is in another jurisdiction where the lawyer is also licensed; if the effect is felt where the lawyer is not licensed, the rules of the principal-practice jurisdiction still control. Finally, the committee noted that a federal agency's own conduct rules might preempt state rules under the Supremacy Clause, but treated that as a question of law beyond its jurisdiction (¶¶ 15-19).

In practice

Under the New York rules as they stood at the time of the opinion, the opinion holds that a New York-only lawyer follows New York's rules for all non-court matters. Per the opinion, a lawyer admitted in New York and at least one other jurisdiction follows the rules of the admitting jurisdiction where the lawyer principally practices, unless particular conduct clearly has its predominant effect in another admitting jurisdiction. The committee treated both "principally practices" and "predominant effect" as fact-intensive questions, supplying factor lists rather than a formula, and noted that a federal agency's professional-conduct rules may preempt state rules in matters before that agency, a point of law it did not decide.

Common questions

Q: Do federal-agency matters count as conduct "in connection with a proceeding in a court"?

A: No. The committee held that "court" is narrower than "tribunal," so matters before agencies like the USPTO or IRS fall under Rule 8.5(b)(2)'s "any other conduct," not Rule 8.5(b)(1) (¶ 9).

Q: Which rules govern a lawyer admitted only in New York?

A: New York's rules govern all of that lawyer's non-court conduct under Rule 8.5(b)(2)(i) (¶ 12).

Q: How is the jurisdiction where a lawyer "principally practices" determined?

A: The committee listed factors: calendar days worked and hours billed in each jurisdiction, the location of clients, the activities performed, and special circumstances such as a recent move; it called the determination fact-specific (¶ 14).

Q: When do another state's rules apply even though the lawyer principally practices in New York?

A: When particular conduct "clearly has its predominant effect" in another jurisdiction where the lawyer is also licensed; if the effect is felt where the lawyer is not licensed, the principal-practice jurisdiction's rules still control (¶¶ 15-17).

Background and rules framework

The opinion interprets New York Rule 8.5 (disciplinary authority and choice of law), corresponding to ABA Model Rule 8.5, and uses the definition of "tribunal" in Rule 1.0(w) to distinguish a "court" from other adjudicative bodies. The committee noted that New York omitted the ABA's "reasonable belief" safe harbor in Model Rule 8.5(b)(2), instead limiting the exception to effects that "clearly" occur in another admitting jurisdiction.

Citations and references

Rules of Professional Conduct:

• MR 8.5 / NY RPC 8.5(a), 8.5(b) (disciplinary authority and choice of law)
• NY RPC 1.0(w) (definition of "tribunal")

Other opinions cited:

• N.Y. State 1011 (2014); N.Y. State 968 (2013): "court" excludes administrative tribunals under Rule 8.5(b)(1)
• N.Y. County 746 (2013): New York lawyer may not disclose confidential information under permissive SEC regulations

See also

• NY State Bar Op. 1042: Choice of law while a DC bar admission is pending
• NY State Bar Op. 1038: NY lawyer joining a DC firm with a nonlawyer partner
• NY State Bar Op. 1041: Foreign practice and a nonlawyer partnership abroad
• NY State Bar Op. 1054: Choice of law for a virtual law office in another state

Source

• Landing page: https://nysba.org/ethics-opinion-1027/