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2008 Edition: Tennessee Rules of Professional Conduct Download Rules as a PDF | Return to Rules home page |
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Rule 8.5
DISCIPLINARY AUTHORITY; CHOICE OF LAW (a) Disciplinary Authority. A lawyer admitted to practice in Tennessee is subject to the disciplinary authority of the Supreme Court of Tennessee regardless of where the lawyer’s conduct occurs. The same misconduct may subject the lawyer to the disciplinary authority of the Supreme Court of Tennessee and to the disciplinary authority of another jurisdiction where the lawyer is admitted to practice. (b) Choice of Law. In any exercise of the disciplinary authority of the Supreme Court of Tennessee, 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 a lawyer 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, (i) if the lawyer is licensed to practice only in Tennessee, the rules to be applied shall be the Tennessee Rules of Professional Conduct; and (ii) if the lawyer is licensed to practice in Tennessee and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct. COMMENTS Disciplinary Authority [1] Paragraph (a) restates longstanding law. Choice of Law [2] A lawyer may be potentially subject to more than one set of rules of professional conduct that impose different obligations. The lawyer may be licensed to practice in more than one jurisdiction with differing rules or may be admitted to practice before a particular court with rules that differ from those of the jurisdiction or jurisdictions in which the lawyer is licensed to practice. In the past, decisions have not developed clear or consistent guidance as to which rules apply in such circumstances. [3] Paragraph (b) seeks to resolve such potential conflicts. Its premise is that minimizing conflicts between rules, as well as uncertainty about which rules are applicable, is in the best interest of both clients and the profession (as well as the bodies having authority to regulate the profession). Accordingly, it takes the approach of (i) providing that any particular conduct of a lawyer shall be subject to only one set of rules of professional conduct, and (ii) making the determination of which set of rules applies to particular conduct as straightforward as possible, consistent with recognition of appropriate regulatory interests of relevant jurisdictions. [4] Paragraph (b) provides that as to a lawyer’s conduct relating to a proceeding in a court before which the lawyer is admitted to practice (either generally or pro hac vice), the lawyer shall be subject only to the rules of professional conduct of that court. As to all other conduct, paragraph (b) provides that a lawyer licensed to practice only in Tennessee shall be subject to the Tennessee Rules of Professional Conduct and that a lawyer licensed in multiple jurisdictions shall be subject only to the rules of the jurisdiction where he or she (as an individual, not his or her firm) principally practices, but with one exception: if particular conduct clearly has its predominant effect in another admitting jurisdiction, then only the rules of that jurisdiction shall apply. The intention is for the latter exception to be a narrow one. It would be appropriately applied, for example, to a situation in which a lawyer admitted and principally practicing in State A, but also admitted in State B, handled an acquisition by a company whose headquarters and operations were in State B, of another similar such company. The exception would not appropriately be applied, on the other hand, if the lawyer handled an acquisition by a company whose headquarters and operations were in State A, of a company whose headquarters and main operations were in State A, but that also had some operations in State B. [5] If two admitting jurisdictions were to proceed against a lawyer for the same conduct, they should, applying this Rule, identify the same governing ethics rules. They should take all appropriate steps to see that they do apply the same rule to the same conduct and, in all events, should avoid proceeding against a lawyer on the basis of two inconsistent rules. [6] The choice of law provision is not intended to apply to transnational practice. Choice of law in this context should be the subject of agreements between jurisdictions or of appropriate international law. DEFINITIONAL CROSS-REFERENCES None. |
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