Professional Responsibility and Choice of Law: A Client-Based Alternative to the Model Rules of Professional Conduct

Because of the increasingly interstate nature of legal practice during the past few decades, practitioners licensed in multiple jurisdictions have been forced more frequently to confront choice-of-law dilemmas in the area of professional responsibility. Although most states have adopted fairly uniform regulations on professional ethics, only the recently amended American Bar Association’s Model Rules of Professional Conduct contain a specific provision that addresses the choice-of-law problem in the professional responsibility context. This Note outlines certain ethical considerations facing the multistate practitioner and argues that the choice-of-law provision in the Model Rules of Professional Conduct provides insufficient clarity and predictability where a lawyer must determine ex ante which state’s professional responsibility regulations will apply to his actions. Specifically, this Note focuses on the future crime exception to the attorney-client privilege, discussing how the historical motivations for the privilege overlap with the prophylactic goals of the professional responsibility regulations both purport to protect the legally unsophisticated client from the intricacies of the adversarial system and its agents. This Note accordingly proposes a client-based alternative to the choice-of-law provision in the Model Rules of Professional Conduct, holding multistate practitioners accountable to the professional responsibility regulations of the state in which the client is domiciled. The proposed solution admittedly involves certain sacrifices and potential complications. In comparison to the current choice-of-law provision, however, the client-based rule provides a more certain and rational means of resolving choice-of-law dilemmas for the multistate practitioner in the area of professional responsibility.