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Rule 8.5. Disciplinary Authority; Choice ofLaw.

(a) Disciplinary Authority. A lawyeradmitted to practice in this jurisdiction is subject to the disciplinaryauthority of this jurisdiction, regardless of where the lawyer?s conductoccurs. A lawyer not admitted in this jurisdiction is also subject to thedisciplinary authority of this jurisdiction if the lawyer provides or offers toprovide any legal services in this jurisdiction. A lawyer may be subject to thedisciplinary authority of both this jurisdiction and another jurisdiction forthe same conduct.

(b) Choice of Law. In any exercise of thedisciplinary authority of this jurisdiction, the rules of professional conductto be applied shall be as follows:

(b)(1) for conduct in connection with amatter pending before a tribunal, the rules of the jurisdiction in which thetribunal sits, unless the rules of the tribunal provide otherwise; and

(b)(2) for any other conduct, the rules ofthe jurisdiction in which the lawyer?s conduct occurred, or, if the predominanteffect of the conduct is in a different jurisdiction, the rules of thatjurisdiction shall be applied to the conduct. A lawyer shall not be subject todiscipline if the lawyer?s conduct conforms to the rules of a jurisdiction inwhich the lawyer reasonably believes the predominant effect of the lawyer?sconduct will occur.


Disciplinary Authority

[1] It is longstanding law that the conductof a lawyer admitted to practice in this jurisdiction is subject to thedisciplinary authority of this jurisdiction. Extension of the disciplinaryauthority of this jurisdiction to other lawyers who provide or offer to providelegal services in this jurisdiction is for the protection of the citizens ofthis jurisdiction. Reciprocal enforcement of a jurisdiction?s disciplinaryfindings and sanctions will further advance the purposes of this Rule. SeeRules 6 and 22, Utah Rules of Lawyer Discipline and Disability.

[1a] Utah has declined to adopt the portionof ABA Model Rule 8.5 Comment [1] providing that a lawyer who is subject toUtah disciplinary authority under Rule 8.5(a) is deemed to have appointed acourt-designated official to receive service of process. This would be asubstantive procedural rule that is not appropriate for these Rules. The lastsentence of ABA Comment [1] is an unnecessary comment on jurisdiction in civilmatters, and Utah has declined to adopt it.

Choice of Law

[2] A lawyer may be potentially subject tomore than one set of rules of professional conduct that impose differentobligations. The lawyer may be licensed to practice in more than onejurisdiction with differing rules or may be admitted to practice before aparticular court with rules that differ from those of the jurisdiction orjurisdictions in which the lawyer is licensed to practice. Additionally, thelawyer?s conduct may involve significant contacts with more than onejurisdiction.

[3] Paragraph (b) seeks to resolve suchpotential conflicts. Its premise is that minimizing conflicts between rules, aswell as uncertainty about which rules are applicable, is in the best interest ofboth clients and the profession (as well as the bodies having authority toregulate the profession). Accordingly, it takes the approach of (i) providingthat any particular conduct of a lawyer shall be subject to only one set ofrules of professional conduct, (ii) making the determination of which set ofrules applies to particular conduct as straightforward as possible, consistentwith recognition of appropriate regulatory interests of relevant jurisdictions,and (iii) providing protection from discipline for lawyers who act reasonablyin the face of uncertainty.

[4] Paragraph (b)(1) provides that, as to alawyer?s conduct relating to a proceeding pending before a tribunal, the lawyershall be subject only to the rules of the jurisdiction in which the tribunalsits unless the rules of the tribunal, including its choice of law rule,provide otherwise. As to all other conduct, including conduct in anticipationof a proceeding not yet pending before a tribunal, paragraph (b)(2) providesthat a lawyer shall be subject to the rules of the jurisdiction in which thelawyer?s conduct occurred, or, if the predominant effect of the conduct is inanother jurisdiction, the rules of that jurisdiction shall be applied to theconduct. In the case of conduct in anticipation of a proceeding that is likelyto be before a tribunal, the predominant effect of such conduct could be wherethe conduct occurred, where the tribunal sits or in another jurisdiction.

[5] When a lawyer?s conduct involvessignificant contacts with more than one jurisdiction, it may not be clearwhether the predominant effect of the lawyer?s conduct will occur in ajurisdiction other than the one in which the conduct occurred. So long as thelawyer?s conduct conforms to the rules of a jurisdiction in which the lawyerreasonably believes the predominant effect will occur, the lawyer shall not besubject to discipline under this Rule. With respect to conflicts of interest,in determining a lawyer?s reasonable belief under paragraph (b)(2), a writtenagreement between the lawyer and client that reasonably specifies a particularjurisdiction as within the scope of that paragraph may be considered if theagreement was obtained with the client?s informed consent confirmed in theagreement.

[6] If two admitting jurisdictions were toproceed against a lawyer for the same conduct, they should, applying this Rule,identify the same governing ethics rules. They should take all appropriatesteps to see that they do apply the same rule to the same conduct and in allevents should avoid proceeding against a lawyer on the basis of two inconsistentrules.

[7] The choice-of-law provision applies tolawyers engaged in transnational practice, unless international law, treatiesor other agreements between competent regulatory authorities in the affectedjurisdictions provide otherwise.