Summary: When a suit to recover
damages for personal injuries incurred on tribal lands in State
X is contemplated, the ethics rules governing a contingent fee
agreement between a Massachusetts attorney and her Massachusetts
client are those of State X or the tribal court in State X and not
the Massachusetts Rules of Professional Conduct.
Facts: Attorney's client, a
Massachusetts resident injured on Native American tribal land in
State X, hired Attorney, a Massachusetts lawyer, to represent him
in a suit in the tribal court in State X against the tribal-owned
business in which he was injured. Recognizing that the seriousness
of the injuries meant that Attorney was going to have to do more
work than usual, client agreed to a contingent fee of 40% of the
recovery. The State X lawyer whom Attorney associated with her
reported that State X would not permit a contingent fee of more
than 33 1/3% in the matter. Attorney inquires whether she may enter
into a contingent fee agreement of 33 1/3% with client and the
State X lawyer and then enter into an additional contingent fee
agreement with client that when added to the State X net fee and
her initial referral fee would not exceed 40% of the recovery.
Discussion: This inquiry raises a
question of interpretation of Rule 8.5(b) as it was recently
adopted by the Supreme Judicial Court. That Rule provides:
(b) Choice of Law. In any exercise of the disciplinary authority
of this jurisdiction, the rules of professional conduct to be
applied shall be as follows:
(1) for conduct in connection with a matter pending before a
governmental 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 principal office is located shall be applied,
unless the predominant effect of the conduct is in a different
jurisdiction, in which case the rules of that jurisdiction shall be
applied. A lawyer shall not be 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.
Comments 4, 4A, and 4B to that Rule go on to discuss the
provisions relevant to this inquiry as follows:
[4] Paragraph (b)(1) provides that as to a lawyer's conduct
relating to a proceeding pending before a government tribunal, the
lawyer shall be subject only to the rules of the government
tribunal, if any, or of the jurisdiction in which the government
tribunal sits unless the rules of that tribunal, including its
choice of law rule, provide otherwise. By limiting application of
the rule to matters before a government tribunal, e.g., a court or
administrative agency, parties may establish which disciplinary
rules will apply in private adjudications such as arbitration.
[4A] As to all other conduct, including conduct in anticipation
of a proceeding not yet pending before a tribunal, the choice of
law is governed by paragraph (b)(2). Paragraph (b)(2) creates a
"default" choice of the rules of the jurisdiction in which the
lawyer's principal office is located. There are several reasons for
identifying such a default rule. First, the jurisdiction where the
lawyer principally practices has a clear regulatory interest in the
conduct of such lawyer, even in situations where the lawyer's
conduct affects other jurisdictions. Second, lawyers are likely to
be more familiar with the rules of the jurisdiction where they
principally practice than with rules of another jurisdiction, even
if licensed in that other jurisdiction. Indeed, most lawyers will
be licensed in the jurisdiction where they principally practice,
and familiarity with a jurisdiction's ethical rules is commonly
made a condition of licensure. Third, in many situations, a
representation will affect many jurisdictions, such as a
transaction among multiple parties who reside in different
jurisdictions involving performance in yet other jurisdictions. The
selection of any of the jurisdictions that are affected by the
representation will often be problematic.
[4B]There will be some circumstances, however, where the
predominant effect of the lawyer's conduct will clearly be in a
jurisdiction other than the jurisdiction in which the lawyer
maintains his or her principal office. Accordingly, paragraph
(b)(2) provides that when the predominant effect of the lawyer's
conduct is in a jurisdiction other than the jurisdiction in which
the lawyer's principal office is located, the ethical rules of such
other jurisdiction apply to such conduct. For example, when
litigation is contemplated but not yet instituted in another
jurisdiction, a lawyer whose principal office is in this
jurisdiction may well find that the rules of that jurisdiction
govern the lawyer's ability to interview a former employee of a
potential opposing party in that jurisdiction. Likewise, under Rule
8.5(b), when litigation is contemplated and not yet begun in this
jurisdiction, a lawyer whose principal office is in another
jurisdiction may well find that the rules of this jurisdiction
govern the lawyer's ability to interview a former employee of a
potential opposing party in this jurisdiction.
The question raised by the inquiry is whether Massachusetts
professional responsibility law on the one hand or State X or
tribal professional responsibility law on the other governs
questions about the proposed fee contract. We do not have to reach
a conclusion on the issue whether Rule 8.5(b)(1) should be read
literally to provide that no conduct falls within its terms until a
complaint has actually been filed. The same outcome, that the rules
of the litigation jurisdiction control, would result under Rule
8.5(b)(2). Under that provision, the default rule is that
Massachusetts professional responsibility law governs unless the
"predominant effect" of the lawyer's conduct is in State X, where
the litigation will occur. Comment 4B suggests that the ability to
interview former employees of an opposing party may well be
governed by the litigation jurisdiction under the "predominant
effect" rule. The lawyer's conduct at issue in this inquiry - the
collection of a fee after litigation services have been rendered --
properly belongs with the litigation jurisdiction even though the
fee agreement was signed before the complaint was filed. Typically,
the litigation court claims jurisdiction to judge the
reasonableness of a fee for litigation conducted in its court. It
would be peculiar to say that the Massachusetts version of Rule 1.5
applies until suit is filed but then the law of another
jurisdiction governs compensation arrangements relating to the
litigation. For the same reason, we believe that Massachusetts law
should govern a fee contract entered into in another state relating
to litigation in a Massachusetts court.
Having reached this conclusion about the meaning of Rule 8.5,
this committee may not advise about the law of another
jurisdiction. Attorney perhaps needs to consult further with the
State X lawyer about State X and/or tribal law relating to
attorneys' fee contracts depending on the respective jurisdictions
of the State X or tribal courts under the relevant federal
legislation.
This opinion was approved for publication by the
Massachusetts Bar Association's House of Delegates on May 17,
2012.