ANALYSIS: Rule 8.5

NEW RULES OF PROFESSIONAL CONDUCT

When the new Rules of Professional Conduct take effect on Nov. 1, they will result in a significant change regarding when California will apply its own rules of professional conduct as opposed to the rules of another jurisdiction. In some circumstances, the conduct of California lawyers will be regulated by the rules of another jurisdiction. Because California's substantive rules of professional conduct (both the current and the new rules alike) differ in important respects from those in many other states, this change is one to keep top of mind.

Currently, Rule 1-100(D) provides that a California lawyer must comply with the California rules everywhere in the world, unless while "lawfully practicing outside this state" the lawyer is "specifically required by a jurisdiction in which they are practicing to follow Rules of Professional Conduct different from these rules." This would mean, for example, that a lawyer admitted both in California and in another state could remain bound by California's strict confidentiality rules even while practicing in the other state. As a result, if the lawyer wished to invoke a discretionary exception to confidentiality recognized in the other state, such as making a disclosure to prevent a client from committing a financial crime or fraud (see ABA Model Rule 1.6(b)(2)), the lawyer could not do so because California's confidentiality rule is not subject to such an exception.

The new Rules adopt the ABA approach to choice-of-law issues. New Rule 8.5 will provide that in litigation matters, "the rules of the jurisdiction in which the tribunal sits" govern, "unless the rules of the tribunal provide otherwise." New Rule 8.5(b)(1) (asterisks omitted). In all other matters, the "rules of the jurisdiction in which the lawyer's conduct occurred" control, unless "the predominant effect of the conduct is in a different jurisdiction," in which case the rules of that jurisdiction apply. New Rule 8.5(b)(2).

The new approach affords more respect to the policy choices of other jurisdictions and assures a more level playing field because California lawyers practicing in other jurisdictions, whether on a permanent or temporary basis, will be subject to the same rules as other lawyers with whom they are dealing.