Many issues in legal ethics are resolved by application of state specific Rules of Professional Conduct. While every state now uses the ABA Model Rules numbering scheme, the actual wording of each rule varies widely among the states. This can yield wildly inconsistent results when an issue is resolved differently because two states address the issue with differently worded rules. In this article, we will examine the way in which these differences are supposedly reconciled, at least in part, when the rules of two states differ but the conduct in question may implicate two states’ divergently worded rules.
Choice of law in professional responsibility is governed by Rule 8.5. A naïve observer may imagine that this is one area where we might anticipate consistency among the states, and, indeed, ABA Model Rule 8.5 is in fact more uniformly adopted among the states than many of the rules. To that extent, new ABA Formal Opinion 504 is a very useful discussion of how choice of law is supposed to operate. However, as is often the case, we have to note an important caveat, namely that New York’s version of Rule 8.5 differs in a significant way from the Model Rule, and this may materially affect which state’s rules apply when a New York lawyer is involved. This article will examine the major elements of the opinion, and will discuss the differences in New York’s Rule 8.5, and how this can affect New York lawyers caught in a matter involving both the rules of New York and another jurisdiction.