North Carolina Administrative Code › Title 27 - STATE BAR › Chapter 02 - RULES OF PROFESSIONAL CONDUCT OF THE NORTH CAROLINA STATE BAR › Section .0800 - MAINTAINING THE INTEGRITY OF THE PROFESSION › Section 02 RULE 8.05 - DISCIPLINARY AUTHORITY; CHOICE OF LAW

Current through Register Vol. 39, No. 2, July 15, 2024
(a) Disciplinary
				Authority. A lawyer admitted to practice in North Carolina is subject to the
				disciplinary authority of North Carolina, regardless of where the lawyer's
				conduct occurs. A lawyer not admitted in North Carolina is also subject to the
				disciplinary authority of North Carolina if the lawyer renders or offers to
				render any legal services in North Carolina. A lawyer may be subject to the
				disciplinary authority of both North Carolina and another jurisdiction for the
				same conduct.
(b) Choice of Law. In
				any exercise of the disciplinary authority of North Carolina, the rules 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 lawyer'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. A lawyer is not subject to
				discipline if the lawyer's conduct conforms to the rules of a jurisdiction in
				which the lawyer reasonably believes the predominant effect of the lawyer's
				conduct will occur.
Comment
Disciplinary Authority
[1] It is longstanding law that conduct of a
				lawyer admitted to practice in North Carolina is subject to the disciplinary
				authority of North Carolina. Extension of the disciplinary authority of North
				Carolina to other lawyers who render or offer to render legal services in North
				Carolina is for the protection of the citizens of North Carolina.
Choice of Law
[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. Additionally, the
				lawyer's conduct might involve significant contacts with more than one
				jurisdiction.
[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 a lawyer
				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 a safe
				harbor for lawyers who act reasonably in the face of uncertainty.
[4] Paragraph (b)(1) provides that as to a
				lawyer's conduct relating to a proceeding pending before a tribunal, the lawyer
				shall be subject only to the rules of the jurisdiction in which the tribunal
				sits unless the rules of the tribunal, including its choice of law rule,
				provide otherwise. As to all other conduct, including conduct in anticipation
				of a proceeding not yet pending before a tribunal, paragraph (b)(2) provides
				that a lawyer shall be subject to the rules of the jurisdiction in which the
				lawyer 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 a lawyer's
				conduct involves significant contacts with more than one jurisdiction, it may
				not be clear whether the predominant effect of the lawyer's conduct will occur
				in a jurisdiction other than the one in which the conduct occurred. So long as
				the lawyer's conduct conforms to the rules of a jurisdiction in which the
				lawyer reasonably believes the predominant effect will occur, the lawyer is not
				subject to discipline under this Rule. With respect to conflicts of interest,
				in determining a lawyer's reasonable belief under paragraph (b)(2), a written
				agreement between the lawyer and client that reasonably specifies a particular
				jurisdiction as within the scope of that paragraph may be considered if the
				agreement was obtained with the client's informed consent confirmed in the
				agreement.
[6] If North Carolina
				and another admitting jurisdiction 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.
[7] The choice of law provision applies to
				lawyers engaged in transnational practice, unless international law, treaties
				or other agreements between competent regulatory authorities in the affected
				jurisdictions provide otherwise.