Rule 5.5 (Unauthorized Practice of Law) and Rule 8.5 (Disciplinary Authority; Choice of Law) of the Idaho Rules of Professional Conduct encompass the Multijurisdictional Rules (MJP) in Idaho (not including rules relating to attorneys licensed in foreign countries). For general information about MJP, please see the MJP General page.
Rule 5.5 provides safe harbors for legal practices that out-of-state attorneys may perform in Idaho without engaging in the unauthorized practice of law. Rule 8.5 recognizes that attorneys practicing in more than one jurisdiction will likely be subject to conflicting admission rules, court rules, or rules of professional conduct. Rule 8.5 attempts to minimize such conflicts and the uncertainty regarding which rules are applicable by establishing the set of rules governing the attorney’s conduct. Attorneys should consult both of the MJP rules, as well as the other Idaho admission rules and the rules regulating the attorney’s home jurisdiction, in order to avoid the unauthorized practice of law.
Rule 5.5, particularly 5.5(b), and the applicable comments allow active attorneys licensed in other jurisdictions who regularly practice law, and who are not disbarred or suspended from the practice of law, to practice in Idaho and to practice as Idaho House Counsel.
Rule 5.5 generally prohibits attorneys from practicing law in a jurisdiction in a way that would violate the regulation of the legal profession in that jurisdiction. Attorneys generally cannot establish an office or other permanent presence in Idaho. (Comment 2).
The permitted practices include:
Comment 3 provides the example of factual investigations and discovery for practice where the lawyer reasonably expects to be admitted pro hac vice.
Comment 6 states that the Idaho lawyer cannot serve merely as a conduit for an out-of-state lawyer, but he or she must actively participate in and share responsibility for the representation of the client. If the Idaho lawyer’s involvement is merely pro forma, then both lawyers are subject to discipline.
Comment 5 states that applicable conduct may involve negotiations with private parties, as well as negotiations with government officers or employees, and participation in alternative dispute-resolution procedures. The provision also applies to witness interviews or other activities in Idaho in preparation for litigation or other proceeding that will occur in another jurisdiction where the lawyer is admitted generally or expects to be admitted pro hac vice.
House attorneys may practice under the Idaho House Counsel Rules. Idaho’s MJP Rule 5.5 also exempts house attorneys from the unauthorized practice of law and the prohibition against establishing an office or other systematic and permanent presence in Idaho. (Comment 2).
Disciplinary Authority. A lawyer admitted to practice in Idaho is subject to the disciplinary authority of Idaho, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in Idaho is also subject to the disciplinary authority of Idaho if the lawyer provides or offers to provide any legal services in Idaho. A lawyer may be subject to the disciplinary authority of both Idaho and another jurisdiction for the same conduct. (8.5(a)).
Choice of Law. The Idaho Rules of Professional Conduct are applied as follows:
For conduct in connection with a matter pending before a tribunal, the applicable rules are those of the jurisdiction where the tribunal sits, unless the rules of the tribunal provide otherwise. (8.5(b)(1)).
For any other conduct, the applicable rules are those of the jurisdiction where the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction will be applied to the conduct. A lawyer is not subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction where the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur. (8.5(b)(2)).
As discussed above, Comment 2 states that a lawyer may be potentially subject to more than one set of rules of professional conduct and those rules may 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(s) where the lawyer is licensed. The lawyer’s conduct may also involve significant contacts with more than one jurisdiction.
Comment 3 states that 8.5(b) seeks to resolve the potential conflicts, because minimizing conflicts and uncertainty is in the best interests of the client, profession, and the regulating authorities. The MJP rules take the approach of providing that any particular conduct of a lawyer should be subject to only one set of rules of professional conduct, making the determination of which set of rules applies to a particular conduct as straightforward as possible, and providing protection from discipline for lawyers who act reasonably in the face of uncertainty.
Comment 4 states that all other conduct not pending before a tribunal, including conduct in anticipation of a proceeding not yet pending before a tribunal, subjects the lawyer to (b)(2). For 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.
Comment 5 states that 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 where the conduct occurred. So long as the lawyer’s conduct conforms to the rules of a jurisdiction where the lawyer reasonably believes the predominant effect will occur, the lawyer will not be subject to discipline under this Rule.
Comment 6 states that if two admitting jurisdictions were to proceed against a lawyer for the same conduct, the jurisdictions should, applying this rule, identify the same governing ethics rules. The jurisdictions should take all appropriate steps to see that they 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.
Comment 7 states that 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.