SUPREME COURT OF WISCONSIN
_________________________________________________________________
In the Matter of the
Amendment of
Supreme Court
Rules: SCR 20:8.5 -- ORDER
Jurisdiction in
Disciplinary No.
96-01
Proceedings
_________________________________________________________________
The court held a public hearing March 27,
1996 on the petition of the State Bar of Wisconsin filed October 5, 1995
seeking the amendment of the rule, SCR 20:8.5, regarding disciplinary
jurisdiction over attorneys admitted to practice in Wisconsin to make provision
for the application of the rules of professional conduct in cases where more
than one jurisdiction have disciplinary authority over the lawyer. The court has considered the presentations
at that public hearing and the material filed with the court in the
matter.
IT IS ORDERED that, effective the date of
this order, Supreme Court Rule 20:8.5 is repealed and recreated to read:
SCR 20:8.5 Disciplinary
authority; choice of law
(a) Disciplinary
Authority. A lawyer admitted to the bar
of this state is subject to the disciplinary authority of this state regardless
of where the lawyer's conduct occurs. A
lawyer allowed by a court of this state to appear and participate in a
proceeding in that court is subject to the disciplinary authority of this state
for conduct that occurs in connection with that proceeding. For the same conduct, a lawyer may be
subject to the disciplinary authority of both this state and another
jurisdiction where the
lawyer is admitted to
the bar or allowed to appear in a court proceeding.
(b) Choice
of Law.
In the exercise of the disciplinary authority of this state, 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 authorized to appear, either by admission to the bar in the jurisdiction
or by the court specifically 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.
(2) for
any other conduct,
(i) if
the lawyer is admitted to the bar of only this state, the rules to be applied
shall be the rules of this state.
(ii) if
the lawyer is admitted to the bars of this state and another jurisdiction, the
rules to be applied shall be the rules of the admitting jurisdiction in which
the lawyer principally practices, except that if particular conduct clearly has
its predominant effect in another jurisdiction in which the lawyer is admitted
to the bar, the rules of that jurisdiction shall be applied to that
conduct.
COMMENT
Disciplinary Authority
Paragraph (a) restates longstanding
law.
Choice of Law
[1]
A lawyer may be potentially subject to more than one set of rules of
professional conduct which imposes 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 in a jurisdiction 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.
[2]
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.
[3]
Paragraph (b) provides that as to a lawyer's conduct relating to a
proceeding in a court before which the lawyer is authorized to appear (either
by bar admission in the jurisdiction or by the court pro hac vice), the lawyer
shall be subject only to the rules of professional conduct of the jurisdiction
in which the court sits. As to all
other conduct, paragraph (b) provides that a lawyer admitted to the bar of only
this jurisdiction shall be subject to the rules of professional conduct of this
jurisdiction, and that a lawyer admitted to the bars of 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 to the bar in, and
principally practicing in, State A, but also admitted to the bar 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 which also had some operations in State B.
[4]
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.
[5]
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.
IT IS FURTHER ORDERED that the Comment submitted
with the petition is not adopted but shall be printed for information
purposes.
IT IS FURTHER ORDERED that notice of this
amendment of the Supreme Court Rules shall be given by a single publication of
a copy of this order in the official state newspaper and in an official publication
of the State Bar of Wisconsin.
Dated at Madison, Wisconsin, this 26th day
of June, 1996.
BY THE COURT:
________________________________
Marilyn L. Graves, Clerk