1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139-144
145-150
151-156
157-162
163-168
169-174
175-180
181-186
187-192
193-198
199-204
205-210
211-216
217-222
223-228
229-231
[2] A lawyer may be potentially subject to more than one set of rules of professional
conduct which 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 an attorney shall be
subject to only one set of rules or 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 this jurisdiction
shall be subject to
this jurisdictionTennessee 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 in, 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 which 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.
The Committee deleted proposed Paragraph (B)(2)(iii) and Comment [6] that read as
follows:
if lawyers who are licensed in different jurisdictions are jointly
representing a client in a matter, the rules to be applied to each lawyer with respect to
his or her conduct in connection with the representation shall be the rules applicable
to the lawyer who is licensed to practice law in the jurisdiction in which the conduct
occurs, provided, however, that if the conduct clearly has its predominant effect in
another jurisdiction in which one of the lawyers is licensed to practice, the rules of
that jurisdiction shall be applied.
It is increasingly common for lawyers to be part of a “team” of
lawyers who work together to represent a client. The team may consist of lawyers
who are associated together in a firm, but a client may also be served by a team of
lawyers who are not associated with each other in a firm. When all the lawyers on
such a team are licensed in the same jurisdiction, or in an identically matched set of
jurisdictions, an application of Paragraphs (B)(2)(i) and (ii) would enable the
lawyers on the team to identify a single jurisdiction whose rules of professional
conduct would be applicable to all lawyers on the team. Where, however, there is
not complete identity of licensure, an application of Paragraphs (B)(2)(i) and (ii)
could lead to a determination that different rules of professional conduct were
applicable to different members of the team. The lawyers might then find themselves
in the unenviable position in which one lawyer on the team was prohibited from
doing something that another lawyer on the team was required to do. One state, for
example, might prohibit its lawyers from revealing client fraud while another state
might require such disclosure. Paragraph (B)(2)(c) represents a judgment that it is
undesirable for lawyers who are jointly representing a client as part of a team to have
conflicting or inconsistent professional responsibilities. It permits the team to act as
an unit in accordance with a single set of professional rules -- the rules applicable to
the lawyer licensed in the jurisdiction in which the conduct either occurs or has its
predominant effect.
Because the choice of disciplinary law is a relatively new issue and one in which uniformity
among the various jurisdictions is particularly important, the Committee concluded that it would
unwise to depart from the ABA Model Rule and try to resolve at this time the choice of disciplinary
rule to be applied when lawyers who are licensed in different jurisdictions are jointly representing a
single client in a multi-state business transaction.
Made
GOVERNING IMPLEMENTATION OF
TENNESSEE RULES OF PROFESSIONAL CONDUCT
Rule 1.5(c) (governing contingent fee agreements) shall apply only to contingent fee
agreements entered into or amended on or after the effective date of these Rules.
The requirement of a writing contained in Rules 1.7, 1.8(g), 1.9, and 1.12 shall
Rules1.8(a) and (i)shall apply only to transactions entered into or amended on or
Made
1. The Committee added a reference to Rules 1.8(g) and 1.11 in paragraph (b) of the
Transition Rule. There is a new writing requirement in each of these Rules that should be treated
the same as the requirements in Rules 1.7, 1.9, and 1.12.
2. The Committee also added a reference to Rule 1.8(i) in Paragraph (c) of the Transition
Rule. To the extent that this Rule may require client consent in some circumstances in whichsuch
consent is not currently required, and additionally requires that such consent be in writing, the Rule
should not be applied retroactively.