Oregon State Bar Bulletin — OCTOBER 2003

Bar Counsel

THE LONG ARM OF THE LAW
Jurisdiction and choice of law in disciplinary proceedings
By George A. Riemer

As more and more lawyers practice law across state lines, the question arises: if you are not admitted in a particular jurisdiction, can you still be disciplined there? And even if you are licensed there, which disciplinary rules apply, the state of your principal office, the state you are actually handling a matter in or both? This article will explain the current rules in Oregon, Idaho and Washington in these areas and what is on the horizon should Oregon adopt new rules of professional conduct based on the ABA Model Rules of Professional Conduct.

Oregon’s Disciplinary Jurisdiction

The Oregon Supreme Court’s disciplinary jurisdiction is currently set forth in Bar Rule of Procedure 1.4(a). That rule provides as follows:

Jurisdiction. An attorney admitted to the practice of law in Oregon, and any attorney specially admitted by a court or agency in Oregon for a particular case, is subject to the Bar Act and these rules, regardless of where the attorney’s conduct occurs. The Supreme Court’s jurisdiction over matters involving the practice of law by an attorney shall continue whether or not the attorney retains the authority to practice law in Oregon, and regardless of the residence of the attorney. An attorney may be subject to the disciplinary authority of both Oregon and another jurisdiction in which the attorney is admitted for the same conduct.

As can be seen, out-of-state lawyers are presently subject to the disciplinary jurisdiction of Oregon if they are generally or specially admitted to practice in Oregon (see Uniform Trial Court Rule 3.170 on pro hac vice admission). They are not subject to the disciplinary jurisdiction of Oregon if they do not bother with pro hac vice admission or if their work in Oregon does not require pro hac vice admission. Of course, they are subject to the disciplinary jurisdiction of the states in which they are licensed so someone in Oregon could complain to the disciplinary authority in those jurisdictions if they felt the lawyer had engaged in unethical conduct here.

Idaho’s Disciplinary Jurisdiction

Idaho has two rules on disciplinary jurisdiction. Idaho Bar Commission Rule 500(a) provides as follows:

Power of Supreme Court. The Supreme Court of the State of Idaho has the inherent power and the exclusive responsibility within the State of Idaho for the maintenance of appropriate standards of professional conduct and for the structure and administration of the system for the review of the professional conduct of each lawyer admitted to or practicing law in the State of Idaho.

In addition, Idaho Rule of Professional Conduct 8.5 provides as follows:

Jurisdiction. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere. A lawyer admitted to practice in other jurisdictions is subject to the Rules of Professional Conduct as adopted in this state, and may be subject to appropriate enforcement proceedings in this state, with respect to any practice of law conducted in this state.

Idaho’s jurisdiction rules clearly cover out-of-state lawyers who may be practicing there with or without authorization.

Washington’s Disciplinary Jurisdiction

Washington Rule of Professional Conduct 8.5 presently provides as follows:

Jurisdiction
(a) A lawyer licensed or admitted for any purpose to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere.

(b) A lawyer may be subjected to disciplinary sanctions or actions in this jurisdiction on the basis of suspension, disbarment or other disciplinary sanction by competent authority in any other state, federal or foreign jurisdiction.

Washington’s current jurisdictional rules pose the same problem Oregon’s do. Out-of-state lawyers are not subject to Washington’s disciplinary jurisdiction unless they are admitted for some purpose to practice there. This conclusion is reinforced by Washington Rule for Enforcement of Lawyer Conduct 1.2 which provides as follows:

Jurisdiction
Any lawyer admitted, or permitted by rule, to practice law in this state, and any lawyer specially admitted by a court of this state for a particular case, is subject to these Rules for Enforcement of Lawyer Conduct. Jurisdiction exists regardless of the lawyer’s residency or authority to practice law in this state.

Propose New Oregon Rules of Professional Conduct

The proposed new Oregon Rules of Professional Conduct includes new Rule 8.5 which provides, in part, as follows:

(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.

Should this proposed new rule be adopted by the Oregon Supreme Court, any lawyer who provides or offers to provide any legal services in Oregon will be subject to Oregon’s disciplinary jurisdiction. Thus, an out-of-state lawyer who provides legal services in Oregon, whether the authorized or unauthorized practice of law, will be subject to Oregon discipline for engaging in unethical conduct in Oregon.

Unfortunately, no provision has been made for out-of-state lawyers who may provide legal services in Oregon to share in the cost of their regulation in Oregon. Even if Oregon adopts proposed Rule 8.5(a), the Oregon State Bar must bear the cost of the investigation of complaints against unadmitted lawyers engaging in unethical conduct in Oregon and the cost of prosecuting any charges of unethical conduct against them. Of course, if an out-of-state lawyer is sanctioned for misconduct in Oregon, the lawyer could face reciprocal discipline in his or her jurisdictions of admission. In my opinion, this situation should be addressed by adopting a requirement that all out-of-state lawyers seeking to practice on a temporary basis in Oregon must register with the state bar and pay a fee for their regulation by the Oregon State Bar. This should exclude out-of-state lawyers appearing pro hac vice in Oregon as they already pay a fee for the privilege of being able to do so.

Oregon’s Choice of Disciplinary Law Rule

Oregon’s existing rule on choice of law in disciplinary proceeding is contained in Rule of Procedure 1.4(b) which provides as follows:

(b) Choice of Law. In any exercise of the disciplinary authority of Oregon, the rules of professional conduct to be applied shall be as follows:

(1) For conduct in connection with a proceeding in a court before which an attorney has been admitted to practice, either generally or for purposes of that proceeding, the rules to be applied shall be the rules of the jurisdiction in which the court sits, unless the rules of the court provide otherwise; and

(2) For any other conduct,

(A) If the attorney is licensed to practice only in Oregon, the rules to be applied shall be the Oregon Code of Professional Responsibility and the Bar Act; and

(B) If the attorney is licensed to practice in Oregon and another jurisdiction, the rules to be applied shall be the rules of the jurisdiction in which the attorney principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the attorney is licensed to practice, the rules of that jurisdiction shall be applied to that conduct.

Under the existing rule, the disciplinary rules applicable to a matter pending before a tribunal would be those of the jurisdiction in which the court sits unless the rules of the tribunal provide otherwise.1 For out-of-court work, the applicable rules would be those of the jurisdiction in which the lawyer principally practices unless the particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed in which case the rules of that jurisdiction would apply.

If Oregon adopts the proposed new Rules of Professional Conduct, the foregoing rules would be changed to the following:

Proposed Oregon Rule of Professional Conduct 8.5(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, 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.

The rules applicable to matter pending before a tribunal would remain the same, but for any other conduct, the applicable rules would be those of the jurisdiction in which the lawyer’s conduct occurred unless the predominant effect of the conduct was in a different jurisdiction, in which case the rules of that jurisdiction would apply. One significant change between the current rule and the proposed rule is the addition of the last sentence. A lawyer is not subject to being disciplined 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.

Idaho and Washington Choice of Law Rules

Neither Idaho nor Washington presently have a choice of disciplinary law rule, but they are both actively considering adoption of ABA Model Rule of Professional Conduct 8.5(b) in toto. If they do, all three northwest states will have the same choice of disciplinary law rule.

Conclusion

Oregon is working on the modernization of its disciplinary jurisdiction and choice of law rules. Out-of-state lawyers should be subject to Oregon’s disciplinary jurisdiction whether practicing law in this state legally or illegally. Idaho and Washington are working on similar changes. Hopefully, all three states will have similar jurisdiction and choice of law rules in the near future. The next big issue is how to ensure that out-of-state lawyers pay for the regulation of their conduct. I recommend out-of-state lawyers seeking to practice here on a temporary basis2 be required to register (using as simple a process as possible) and that they pay a registration fee to help defray the cost of disciplinary investigations and prosecutions regarding their conduct. Oregon State Bar members should not be shouldered with the entire financial responsibility for policing the conduct of out-of-state lawyers temporarily practicing law in Oregon.

ABOUT THE AUTHOR
George A. Riemer is general counsel and deputy director of the Oregon State Bar. He can be reached at (503) 620-0222, ext. 405, or toll-free in Oregon at (800) 452-8260, ext. 405, or by e-mail at griemer@osbar.org.

Endnotes

1. A recent example of the application of an identical rule is In the Matter of Marks, 2003 Wisc. LEXIS 617 (2003)(Wisconsin Supreme Court held that Wisconsin Office of Lawyer Regulation was authorized to proceed with a complaint against a Wisconsin lawyer, who was also admitted in Michigan, alleging violations of the Michigan Rules of Professional Conduct for alleged misconduct that occurred in a proceeding before a Michigan court).

2. Senate Bill 43, which the Legislative Assembly recently passed and the governor has signed, provides, in part, as follows: 'Notwithstanding ORS 9.160, the Supreme Court may adopt rules pursuant to the procedures established by ORS 9.490 that allow attorneys who have not been admitted to practice law in this state to practice law in Oregon on a temporary basis, including performing transactional or pre-litigation work.' The bar is in the process of considering the adoption of new rules of professional conduct modeled after the ABA Model Rules of Professional Conduct which include temporary practice rules based on ABA Model Rule of Professional Conduct 5.5. Oregon’s version of the rule tracks ABA Model Rule 5.5 in most respects. One significant deviation is due to the fact that Oregon has a corporate counsel admission rule. ABA Model 5.5 allows this practice without the need for a corporate counsel license. The OSB House of Delegates approved adopting new rules of professional conduct on Sept. 20, 2003, including rules based on ABA Model Rules 5.5 and 8.5 and on the ABA’s Model Rule for Temporary Practice by Foreign Lawyers. These rules are now before the Oregon Supreme Court for final action.

© 2003 George A. Riemer


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