Model Rule 8.5: Disciplinary Authority; Choice of Law

When it applies

This comes up when a lawyer is licensed in one state but works on a matter connected to another state (e.g., litigation, transactions, or admitted pro hac vice), raising questions about which jurisdiction can discipline the lawyer and whose ethics rules govern the conduct. On the MPRE, it appears in fact patterns testing whether a lawyer can be disciplined by their home state, a host state, or both, and which state's rules control a specific act.

What the rule requires

• A lawyer admitted in a jurisdiction is subject to that jurisdiction's disciplinary authority for conduct anywhere, including conduct occurring outside that jurisdiction.
• A lawyer not admitted in a jurisdiction but who provides or offers to provide legal services there is also subject to that jurisdiction's disciplinary authority.
• For conduct connected to a matter pending before a tribunal, the rules of the jurisdiction where the tribunal sits apply, unless the tribunal's rules provide otherwise.
• For conduct not connected to a matter before a tribunal, the rules of the jurisdiction where the lawyer's conduct occurred apply, unless the predominant effect of the conduct is in a different jurisdiction, in which case that jurisdiction's rules apply.
• For conduct not connected to a matter before a tribunal, a lawyer will not be subject to discipline if the lawyer's conduct conforms to the rules of the jurisdiction in which the lawyer reasonably believes the predominant effect of the conduct will occur.
• Disciplinary authority under this rule is concurrent, meaning more than one jurisdiction may have authority over the same lawyer for the same conduct.

Exceptions

• If a tribunal's own rules specify a different choice-of-law rule for conduct in connection with a proceeding before it, those tribunal-specific rules control instead of the general 'tribunal's jurisdiction' default.
• The safe harbor for reasonable belief about predominant effect protects the lawyer from discipline even if, in hindsight, a different jurisdiction's rules technically applied.

How the MPRE tests Model Rule 8.5

• Students often assume only the lawyer's home/admitting jurisdiction can discipline them, forgetting that a jurisdiction where the lawyer is not admitted but provides or offers to provide legal services can also assert disciplinary authority, whether or not that practice is authorized under Rule 5.5.
• Students confuse the tribunal-matter rule (jurisdiction where tribunal sits) with the non-tribunal rule (jurisdiction of conduct or predominant effect); MPRE questions test whether the matter is litigation-connected or transactional.
• The 'reasonably believes' safe harbor is often overlooked; students think the lawyer is strictly liable for picking the wrong jurisdiction's rule, when good-faith reasonable belief about predominant effect actually protects them.
• Students confuse concurrent disciplinary authority with choice of law: more than one jurisdiction may discipline a lawyer for the same act, but the choice-of-law rules are designed so that only one jurisdiction's ethics rules govern any particular conduct.