Academic journal article Texas Law Review

The Choice of Rules Clause: A Solution to the Choice of Law Problem in Ethics Proceedings*

Academic journal article Texas Law Review

The Choice of Rules Clause: A Solution to the Choice of Law Problem in Ethics Proceedings*

Article excerpt

When a legal transaction has ties to multiple jurisdictions there is a choice of law problem in determining which jurisdiction's ethics rules govern the conduct of the lawyers involved. The current choice of law system for ethics proceedings is insufficient. The current regime suffers from imperfect rules and a lack of uniformity across states. Consequently, it is often difficult to determine which jurisdiction's ethics rules will govern a legal transaction. Most of the scholarship in this area has focused on finding the perfect choice of law rule for ethics proceedings and developing strategies for uniform adoption of this rule by the states. This Note takes a different path. Learning lessons from the field of conflict of laws and its experience with choice of law clauses, this Note proposes that lawyers and clients should be allowed to specify which jurisdiction's ethics rules will govern their legal transaction: a choice of rules clause. With appropriate safeguards in place, choice of rules clauses have the potential to remedy many of the problems created by the current inadequate choice of law system for ethics proceedings.

Client A, the CEO of a corporation, hires two lawyers at a firm to defend him against an anticipated claim of breach of fiduciary duty. One of the lawyers is licensed to practice in both the District of Columbia and Maryland. The other is licensed to practice in Virginia.1 Both lawyers work in the firm's Virginia office. The client's corporation is incorporated in Maryland but has its principle place of business in Virginia. Client A resides in the District of Columbia. During the course of the representation, but before any action against Client ? is filed, Client ? informs the two lawyers that he plans to hire someone to intimidate the plaintiffs to prevent them from filing the action. The ethics rules of Virginia require the lawyers to disclose their client's intention to commit a crime.2 The ethics rules of the District of Columbia and Maryland prohibit disclosure in this situation.3 What must each lawyer do to comply with the ethics rules?

Under the current system of choice of law for ethics proceedings, neither lawyer in the hypothetical has clear direction on the course of action he should take. This dilemma occurs because the choice of law rules for ethics proceedings rely on vague terms, such as where the "predominant effect" of the conduct will be felt.4 In the above hypothetical, it is unclear whether the predominant effect of this conduct would be felt in the District of Columbia, Maryland, or Virginia because of numerous connections to all three jurisdictions. Accordingly, both of the lawyers must merely guess about which state's ethics rules they will ultimately be held to. Worse yet, it is possible that a lawyer in this situation could be held to two conflicting ethics rules in two parallel ethics proceedings, thus creating a situation where compliance is impossible.5

There is a serious choice of law problem in ethics proceedings. The rules for choosing which state's ethics rules to apply to a lawyer's conduct are inadequate. Making matters worse, there is a lack of uniformity among the states in both ethics rules and choice of law rules for ethics proceedings.6 There has been much debate about how best to remedy the problems of the current system.7 Scholars have focused their efforts on developing a perfect choice of law rule for ethics proceedings and then ensuring its uniform adoption by every state.8 Perhaps this emphasis on finding the best choice of law rule is misplaced.

The field of conflict of laws has been dealing with choice of law problems for over 200 years.9 Yet in all this time, no one has discovered the perfect choice of law rule.10 The problems caused by this inadequate choice of law system have, however, been ameliorated by allowing parties to specify which state's law applies to their transaction using choice of law clauses.11 Similarly, much of the confusion and chaos wrought by the current choice of law system for ethics proceedings can be eliminated by allowing lawyers and clients to specify which state's ethics rules apply to their relationship: a choice of rules clause. …

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