Opinion 2008-3
(April 2008)

The inquirer, a Pennsylvania lawyer, asks about his conduct as regards two matters in Florida. It would seem clear that, in these circumstances, the inquirer would want to get advice under Florida ethics law. However, the Committee understands that despite the inquirer’s admission to the Florida court pro hac vice, the Florida Bar Committee which offers such guidance opinions has declined to offer such advice because the inquirer is not admitted to the Florida bar. Without commenting on the Committee’s view of this fact, it does not negate the inquirer's need to get Florida ethics advice, for which it appears he now must pay. The Committee's rationale follows.

The facts of the inquirer's situation concern litigation that has already been started in the Florida courts as well as another litigation that will be brought in the Florida courts. Matter #1 concerns injuries received in Florida in 2005-2006 by current clients. The inquirer has been admitted pro hac vice to the Florida court in which the matter is pending. In February 2007, while in Florida for depositions of the inquirer’s current clients, the inquirer received a phone call from one of the current clients that she learned from a friend about another Pennsylvania resident, who at that time was in a Florida hospital, allegedly suffering from the same harm caused once again by H.

The inquirer retained an investigator who went on his own to the hotel where the wife of the injured individual was staying but could not find her there. He then went to the hospital and conducted an interview with the wife and son of the injured individual. The inquirer advises that he specifically instructed the investigator to
1) conduct the interview for purposes only of obtaining witness information for the cases currently being litigated, and 2) not to try and sign the Pennsylvania wife or husband as clients. The investigator was only paid for the actual time expended in finding the wife and husband and then interviewing the wife and son.

Letters were sent to the wife subsequently which reiterated that the husband and wife were only witnesses for the case already being litigated. One of the above letters contained HIPAA forms which enabled the inquirer to get the husband’s medical records to see what tests were performed regarding his injuries and those test results to see if this would make him a better witness for the current cases.

In October 2007, approximately eight months later, the wife for the first time expressed an interest in her husband becoming a litigant, and the inquirer advises it was strictly her decision whether to enter into litigation. This was confirmed in a subsequent letter to the wife which she countersigned when the inquirer visited with her, her husband and son. It was at that meeting that the wife and her son advised the inquirer that the wife was talking with another attorney about representation, which appeared to be the reason why the wife did not meet with the inquirer earlier.

The inquirer now seeks to represent the wife and her husband. He asks whether there are any ethical issues regarding solicitation of clients or conflicts of interest given the interaction he and his investigator had with the couple prior to this time. The inquirer notes that the insurance policy for the new case against H is for a different coverage period from the matters currently pending.

The Committee assumes, for purposes of its analysis, that this second action (Matter #2) against H would also have to be brought in Florida.

Pennsylvania Rule of Professional Conduct (the "Rules") 8.5 Disciplinary Authority; Choice of Law provides in subsection (a) that the inquirer's conduct anywhere is subject to the disciplinary authority of Pennsylvania, but also further provides that in the given situation, the inquirer may also be subject to the disciplinary rules of Florida.

However, Rule 8.5 (b) Choice of Law provides as follows:

"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 tribunal, the rules of the jurisdiction in which the tribunal sits shall be applied, 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 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." [emphasis added]

Comment [3] to Rule 8.5 notes that 8.5(b) seeks to resolve the potential conflicts between ethics rules. The comment provides in part that the Rule "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 protection from discipline for lawyers who act reasonably in the face of uncertainty."

Comment [4] to Rule 8.5 provides that,

"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'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." [emphasis added]

As to Matter #1, as provided by Rule 8.5(b)(1), to the extent that the inquirer's conduct is determined to be evaluated as part of Matter #1, Florida's ethics rules apply.

As to Matter #2, although it is not presently pending before a Florida tribunal, it is likely to be once filed. Given the provisions of Rule 8.5(b)(2), the Committee believes again that Florida Rules will apply. If there is a solicitation issue, that would be in Florida given that the inquirer’s agent, the investigator, made the original contact with the wife and husband. As regards where the "predominant effect of the conduct" will be felt, the Committee believes that the predominant effect of any solicitation issues (if in fact any at all are present), which result in an out of state lawyer handling matters which could easily be handled by in state counsel, in this case to have occurred in Florida.

Thus based upon the Committee's analysis under Rule 8.5 of the facts as given, the inquirer must seek guidance regarding Florida ethics rules, including the choice of law precepts of that state’s ethics decisions, and that such guidance must be provided by competent Florida counsel. If, under the Florida choice of law analysis, that counsel advises in an opinion that Florida ethics rules mandate that the inquirer's conduct is to be evaluated under Pennsylvania law, then this inquiry would be appropriate for substantive guidance by this Committee.

1) The Committee notes that the inquirer consistently refers to conversations with the wife and son, and not with the husband. This raises some confusion in the Committee’s mind as to the identity of the actual client(s). The Committee suggests that the inquirer consider this issue under both Florida substantive and ethical rules as well.

2)We here leave aside the possibility that the Florida court's own choice of law rule, may refer the inquirer back to Pennsylvania’s Rules (see Rule 8.5 comment 4 above).

CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it.