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RULE 19-308.5. DISCIPLINARY AUTHORITY; CHOICE OF LAW (8.5)

West's Annotated Code of MarylandMaryland Rules

West's Annotated Code of Maryland
Maryland Rules
Title 19. Attorneys
Chapter 300. Maryland Attorneys' Rules of Professional Conduct
Maintaining the Integrity of the Profession [Rules 19-308.1 to 19-308.5]
MD Rules Attorneys, Rule 19-308.5
RULE 19-308.5. DISCIPLINARY AUTHORITY; CHOICE OF LAW (8.5)
(a) Disciplinary Authority.
(1) An attorney admitted by the Court of Appeals to practice in this State is subject to the disciplinary authority of this State, regardless of where the attorney's conduct occurs.
(2) An attorney not admitted to practice in this State is also subject to the disciplinary authority of this State if the attorney:
(A) provides or offers to provide any legal services in this State,
(B) holds himself or herself out as practicing law in this State, or
(C) has an obligation to supervise or control another attorney practicing law in this State whose conduct constitutes a violation of these Rules.
Cross reference: Md. Rule 19-701 (a).
(3) An attorney may be subject to the disciplinary authority of both this State and another jurisdiction for the same conduct.
(b) Choice of Law. In any exercise of the disciplinary authority of this State, the rule of professional conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and
(2) for any other conduct, the rules of the jurisdiction in which the attorney's conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. An attorney shall not be subject to discipline if the attorney's conduct conforms to the rules of a jurisdiction in which the attorney reasonably believes the predominant effect of the attorney's conduct will occur.
COMMENT
Disciplinary Authority.--[1] It is longstanding law that the conduct of an attorney admitted to practice in this State is subject to the disciplinary authority of this State. Extension of the disciplinary authority of this State to other attorneys who provide or offer to provide legal services in this State is for the protection of the citizens of this State. Reciprocal enforcement of a jurisdiction's disciplinary findings and sanctions will further advance the purposes of this Rule. An attorney who is subject to the disciplinary authority of this State under Rule 19-308.5 (a) (8.5) appoints an official to be designated by this Court to receive service of process in this State.
Choice of Law.--[2] An attorney may be potentially subject to more than one set of rules of professional conduct that impose different obligations. The attorney 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 attorney is licensed to practice. Additionally, the attorney's conduct may involve significant contacts with more than one jurisdiction.
[3] Section (b) of this Rule 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 of professional conduct, (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, and (iii) providing protection from discipline for attorneys who act reasonably in the face of uncertainty.
[4] Subsection (b)(1) of this Rule provides that as to an attorney's conduct relating to a proceeding pending before a tribunal, the attorney shall be subject only to the rules of professional conduct of that tribunal. As to all other conduct, including conduct in anticipation of a proceeding not yet pending before a tribunal, subsection (b)(2) of this Rule provides that an attorney shall be subject to the rules of the jurisdiction in which the attorney's conduct occurred, or, if the predominant effect of the conduct is in another jurisdiction, the rules of that jurisdiction shall be applied to the conduct. In the case of conduct in anticipation of a proceeding that is likely to be before a tribunal, the predominant effect of such conduct could be where the conduct occurred, where the tribunal sits or in another jurisdiction.
[5] When an attorney's conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the attorney's conduct will occur in a jurisdiction other than the one in which the conduct occurred. So long as the attorney's conduct conforms to the rules of a jurisdiction in which the attorney reasonably believes the predominant effect will occur, the attorney shall not be subject to discipline under this Rule.
[6] If two admitting jurisdictions were to proceed against attorney 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 an attorney on the basis of two inconsistent rules.
[7] The choice of law provision applies to attorneys engaged in transnational practice, unless international law, treaties or other agreements between competent regulatory authorities in the affected jurisdiction provide otherwise.
Model Rules Comparison: Rule 19-308.5 (a) (8.5) combines the substance of former Rules 8.5 (a) and 8.5 (b). Rule 19-308.5 (b) (8.5) is substantially similar to ABA Model Rule 8.5 (b). The Comments are substantially similar to the ABA Comments with the exception of omitting the final sentence of ABA Comment [1].

Credits

[Adopted June 6, 2016, eff. July 1, 2016.]
MD R Attorneys, Rule 19-308.5, MD R ATTORNEYS Rule 19-308.5
Current with amendments received through December 15, 2019.
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