Ethical Considerations That Plaintiff s Counsel Must Address In A Multi-Plaintiff Settlement

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1 Ethical Considerations That Plaintiff s Counsel Must Address In A Multi-Plaintiff Settlement By Jon W. Green, Esq. Researched and drafted by Dylan C. Dindial, Esq. Green Savits, LLC Florham Park, N.J. What is an Aggregate Settlement? ABA definition (2006): when two or more clients who are represented by the same lawyer together resolve their claims or defenses or pleas. It is not necessary that all of the lawyer s clients having claims against the same parties, or having defenses against the same claims, participate in the matter s resolution for it to be an aggregate settlement. ABA & American Law Institute: Any settlement of a group of related claims that involves some element of collective allocation of funds or a collective condition for the settlement to be effective. Most think of aggregate settlements as lump sum, all or nothing settlements. In other words, Defendant offers a certain amount of money for all the Plaintiffs, Plaintiffs have to figure out how to divide it up and, if any Plaintiffs decline, all Plaintiffs decline. However, other types of settlement can still be aggregate settlements and trigger the rule. Settlements with characteristics of group conditionality or allocation are aggregate settlements. If the settlement agreement allocates the money to Plaintiffs in the following ways, it should be treated as an aggregate settlement: (1) lump sum settlement to settle entire group of claims, allocation determined by plaintiffs and their lawyer; (2) individual amounts negotiated for each Plaintiff within a capped total amount; (3) determining each Plaintiff s share by a formula or matrix based on factors such as injury, age, risk characteristics, etc.; (4) providing a fixed per capita amount for each Plaintiff; or (5) setting up a claims mechanism or arbitration process to determine what each individual plaintiff receives. If the settlement agreement provides for group conditions for acceptance in the following ways, it should be treated as an aggregate settlement: (1) all-or-nothing deal; (2) all-ornothing with Defendant right to walk away; or (3) subgroups with different conditions with differing conditions for right to walk away by subgroup. 1 P age

2 ABA Model Rules to Consider before entering into an Aggregate Settlement ABA Model Rule 1.7 (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. In all multi-plaintiff litigation, it is likely that at some point during the course of the representation a significant risk that the representation of one or more clients will be materially limited by the lawyer s responsibilities to another client will arise. It is important to consider whether Rule 1.7(a)(2) applies (even if an aggregate settlement complied with Rule 1.8(g)) and whether it can be waived by the client (see Rule 1.7(b) to determine if a conflict of interest can be waived). Therefore, at the outset of the representation, clients should be informed that the lawyer represents a large number of similarly situated plaintiffs, that there are both advantages and disadvantages to litigating with groups of plaintiffs, and that various conflicts might arise and how the lawyer plans to handle them. At this stage, it is also helpful to inform the client that an aggregate settlement might be negotiated and of the risks/conflicts that might arise from settlements of this kind, and get client consent to negotiate an aggregate agreement. Early disclosures help with rule compliance, help manage client expectations, and lessen the likelihood that a client will feel pressured later on because the attorney just wants to get paid. It does not, however, relieve plaintiffs counsel of the obligation to obtain informed consent once an aggregate settlement has been reached. ABA Model Rule 1.2(a) Subject to paragraphs (c) and (d),... [a] lawyer shall abide by a client's decision whether to settle a matter. 2 P age

3 ABA Model Rule 1.4(a) A lawyer shall: 1. promptly inform the client of any decision or circumstance with respect to which the client s informed consent, as defined in Rule 1.0(e), is required by these Rules. If these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and secure the client's consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. ABA Model Rule 1.8(g) & Comment as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. Differences in willingness to make or accept an offer of settlement are among the risks of common representation of multiple clients by a single lawyer. Under Rule 1.7, this is one of the risks that should be discussed before undertaking the representation, as part of the process of obtaining the clients' informed consent. In addition, Rule 1.2(a) protects each client's right to have the final say in deciding whether to accept or reject an offer of settlement and in deciding whether to enter a guilty or nolo contendere plea in a criminal case. The rule stated in this paragraph is a corollary of both these Rules and provides that, before any settlement offer or plea bargain is made or accepted on behalf of multiple clients, the lawyer must inform each of them about all the material terms of the settlement, including what the other clients will receive or pay if the settlement or plea offer is accepted. See also Rule 1.0(e) (definition of informed consent). Lawyers representing a class of plaintiffs or defendants, or those proceeding derivatively, may not have a full client-lawyer relationship with each member of the class; nevertheless, such lawyers must comply with applicable rules regulating notification of class members and other procedural requirements designed to ensure adequate protection of the entire class. 3 P age

4 NOTE: Not all states have adopted Model Rule 1.8(g) or its exact language. States Using this Version: Alaska, Arizona, Arkansas, Colorado, Delaware, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Missouri, Montana (no comments), Nebraska, Nevada (no comments), New Hampshire (no comments), New Mexico, North Carolina, Oklahoma, Oregon (no comments), Rhode Island, South Carolina, South Dakota, Utah, Vermont, Virgin Islands (no comments), Washington, Wisconsin, Wyoming Georgia uses this rule, but has different comment: Paragraph (g) requires informed consent. This requirement is not met by a blanket consent prior to settlement that the majority decision will rule. Kentucky uses this rule, but has a different comment: Differences in willingness to make or accept an offer of settlement are among the risks of common representation of multiple clients by a single lawyer. Under Rule 1.7, this is one of the risks that should be discussed before undertaking the representation, as part of the process of obtaining the clients' informed consent. In addition, Rule 1.2(a) protects each client's right to have the final say in deciding whether to accept or reject an offer of settlement and in deciding whether to enter a guilty or nolo contendere plea in a criminal case. The Rule stated in this paragraph is a corollary of both these Rules and provides that, before any settlement offer or plea bargain is made or accepted on behalf of multiple clients, the lawyer must inform each of them about all the material terms of the settlement, as described herein. A non-certified, non-class aggregate settlement is a settlement of the claims of two or more individual claimants in which the resolution of the claims is interdependent. The resolution of claims in a non-class aggregate settlement is interdependent if the defendant s acceptance of the settlement is contingent upon the acceptance by a specified number or percentage of the claimants or specified dollar amount of claims; or the value of each claim is not based solely on individual case-by-case facts and negotiations. In such situations potential conflicts of interest stemming from interdependency exist, thus posing a risk of unfairness to individual claimants. When the terms of an aggregate settlement do not determine individual amounts to be distributed to each client, detailed disclosures are required. For example, if a lump sum is offered in an aggregate settlement and the claimants attorney is involved in dividing the settlement sum, that attorney must disclose to each client the number of his or her clients participating, specifics of each client s claim relevant to the settlement, and the method of dividing the lump sum. In addition, the attorney must disclose the total attorney fees and costs to be paid, payments to be made other than to clients, to their attorneys and for costs, the method by 4 P age

5 which the costs are to be apportioned among the clients and ultimately the amount each client receives. By contrast, if the terms of the aggregate settlement establish the method of calculating and distributing payments to each claimant, based upon the individual claim for liability and/or damages, the disclosures to each client represented by the same attorney do not need to be as detailed. In that instance, each client should be generally informed of the terms of the aggregate settlement offer, how such terms apply specifically to such client, the fact that the attorney represents multiple clients in the settlement and, if applicable, any contingency in the settlement requiring a percentage of claimants to accept the settlement. The claimants attorney must also disclose fees and costs to each client (including how costs are apportioned among the joint clients) but attorney fees may be stated as a percentage of the total recovery as opposed to a specific dollar amount. Louisiana Version (no comments): settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client, or a court approves a settlement in a certified class action. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. Minnesota: deletes references to criminal matters or pleas, but uses the rest of the Model Rule and comment. Version that does not require written consent in the rule: as to guilty or nolo contendere pleas, unless each client consents after consultation, including disclosure of the existence and nature of all claims or pleas involved and of the participation of each person in the settlement. States using this version: Alabama (no comment for 1.8(g)), District of Columbia (comment the same), Massachusetts (no comments), Michigan (no comment for 1.8(g)), Mississippi (no comment for 1.8(g)), Texas (no comments), Virginia (no comments) 5 P age

6 California does not follow the Model Rules. This is their rule with respect to aggregate settlement: Rule 3-310(D): A member who represents two or more clients shall not enter into an aggregate settlement of the claims of or against the clients without the informed written consent of each client. Comment: Paragraph (D) is not intended to apply to class action settlements subject to court approval. Connecticut Version of 1.8(g) (comment is the same): as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer s disclosure shall include the existence and nature of all claims or pleas involved and of the participation of each person in the settlement. Subject to revocation by the client and to the terms of the contract, such informed consent shall be implied and need not be in writing where the lawyer is retained to represent a client by a third party obligated under the terms of the contract to provide the client with a defense and indemnity for the loss and the third party elects to settle a matter without contribution by the client. Hawai ian Version (comment is the same as Model Rule): as to guilty or nolo contendere pleas, unless each client consents in a writing signed by the client after consultation. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. Maryland Version (comment is the same as Model Rule): as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client or confirmed on the record before a tribunal. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. New York Version (no comments): settlement of the claims of or against the clients, absent court approval, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the 6 P age

7 existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. New Jersey Version (no comments): as to guilty or nolo contendere pleas, unless each client gives informed consent after a consultation that shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. North Dakota Version (comment is the same as Model Rule): A lawyer who represents two or more clients, other than in class actions, shall not participate in making an aggregate settlement of the claims of or against the clients, or an aggregated agreement as to guilty pleas in a criminal case, unless, after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement, each client consents. Ohio Version (comment is the same as Model Rule): as to guilty or nolo contendere pleas, unless the settlement or agreement is subject to court approval or each client gives informed consent, in a writing signed by the client. The lawyer s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement or agreement. Pennsylvania Version (comment is the same as Model Rule): as to guilty or nolo contendere pleas, unless each client gives informed consent. The lawyer s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. Tennessee Version (comment is the same as Model Rule): as to guilty or nolo contendere pleas, unless: (1) each client is given a reasonable opportunity to seek the advice of independent legal counsel in the transaction; and 7 P age

8 (2) each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. West Virginia Version: or mass tort settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. Comment: A non-class action aggregate or mass tort settlement is a settlement of the cases of two or more individuals in which the settlement of the cases is not based solely on individual case-by-case settlement negotiations. In such situations potential conflicts of interest exist, thus posing a risk of unfairness to individual litigants. Differences in the willingness of multiple clients to make or accept an offer of settlement or plea bargain are among the risks of common representation of multiple clients by a single lawyer or law firm. Under Rule 1.7, this is one of the risks that must be discussed before undertaking the representation, as part of the process of obtaining the clients' informed consent. In addition, Rule 1.2(a) protects each client's right to have the final say in deciding whether to accept or reject an offer of settlement in a civil case or a plea deal in a criminal case. Rule 1.8(g) is a corollary of both these Rules and provides that, before any settlement or plea offer is made or accepted on behalf of multiple clients, the lawyer must inform each multiple client about all the material terms of the proposed settlement. When the terms of an aggregate or mass tort settlement in civil litigation do not determine individual amounts to be distributed to, or paid by, each client, or are not based upon individual case-by-case negotiations, detailed disclosures are required before obtaining each client s consent to settle. For example, if a lump sum is offered in an aggregate or mass tort settlement, an attorney must, before obtaining the client's consent to the settlement, disclose to each client the number of his or her clients participating, specifics of each client's claims relevant to the settlement, the method of dividing the lump sum, and the settlement amount each client is to receive. In addition, the attorney must disclose, to each client, prior to obtaining the client's consent, the total attorney fees and costs to be paid, payments to be made other than to clients, the method by which the costs are to be apportioned among the clients, and the settlement amount each client is to receive. The shared lawyer must obtain court approval of the settlement, including attorney s fees and expenses, to assure the settlement s fairness and reasonableness to the clients. 8 P age

9 If the terms of an aggregate or mass tort civil settlement establish the method or formula of calculating and distributing the settlement payments to each claimant, based upon each individual liability claim and/or damages, the disclosures to each multiple client do not need to be as detailed. In that instance, each client should be informed of the aggregate settlement offer, and how the settlement terms apply specifically to each client. There must also be a disclosure of attorney fees and costs to each client prior to obtaining each client's consent, including how costs are apportioned among the joint clients. The shared lawyer must obtain court approval of the settlement, including attorney s fees and expenses, to assure the settlement s fairness and reasonableness to the clients. Before the receipt of an offer proposing an aggregate or mass tort settlement, individual clients may enter into an allocation agreement through their shared lawyer allowing each client to be bound by a super-majority (75%) or greater percentage of all clients voting to accept a settlement offer. Before voting on a settlement offer, each client must be provided with the applicable disclosures in paragraph 15 or 16 of this Comment. A client s consent to an allocation agreement must be in writing and signed after full disclosure that the authority to accept the settlement remains with the collective clients and not the lawyer of the clients. The shared lawyer must obtain court approval of the settlement, including attorney s fees and expenses, to assure the settlement s fairness and reasonableness to the clients. In the circumstances of representation of multiple clients in a criminal or juvenile case, like in civil litigation the risks of multiple representation should be discussed prior to engaging in the representation, and informed consent in writing obtained from the clients. Thereafter, before any plea bargain is offered or accepted on behalf of multiple clients, the lawyer must inform each of them of the terms of the offer for every client and the material ramifications if it is accepted. Federal Courts Aggregate Settlement Rule: Unfortunately, there are no uniform rules of professional conduct across the federal courts. Each court chooses to abide by the state rules, the ABA Model Code, the ABA Model Rules, or their own rule. Districts that refer to the State Rule: Alaska, Arizona, W.D./E.D. Arkansas, N.D. California, Colorado, Connecticut, District of Columbia, S.D./N.D. Florida, N.D. Georgia, Hawai i, Idaho, N.D./S.D./C.D. Illinois, S.D. Indiana, S.D./N.D. Iowa, Kansas, E.D./M.D./W.D. Louisiana, Maine, Maryland, Massachusetts, W.D. Michigan, Minnesota, N.D./S.D. Mississippi, W.D./E.D. Montana, Nevada, New Hampshire, New Mexico, N.D./S.D./W.D. New York, E.D./M.D. North Carolina, N.D./S.D. Ohio, E.D./N.D./W.D. Oklahoma, Oregon, E.D./M.D./W.D. Pennsylvania, Rhode Island, South 9 P age

10 Carolina, E.D./W.D. Tennessee, E.D./N.D./S.D. Texas, Utah, Vermont, E.D. Virginia, E.D. Washington, E.D. Wisconsin, & Wyoming. Districts that refer to the ABA Model Rule: Puerto Rico, Delaware, & Virgin Islands. Districts that refer to the State Rules and the ABA Model Code: E.D. & S.D. California. Districts that refer to the State Rules and the ABA Model Rule: M.D./N.D./S.D. Alabama, C.D. California, M.D. Florida, M.D. & S.D. Georgia, Guam, N.D. Illinois, Montana, New Jersey, W.D. Texas, W.D. Washington, and N.D. & S.D. West Virginia. E.D. New York, W.D. North Carolina, W.D. Virginia, M.D. Tennessee, W.D. Wisconsin, North Dakota, Nebraska, and South Dakota have either adopted their own version of the rules or permit the court to determine on case-by-case basis. See of Moore s Federal Practice for a chart detailing the difference of the Rules of Professional Conduct in the Federal district court. INFORMED CONSENT, generally Requirements of the Aggregate Settlement Rule Under ABA Model Rule 1.8(g), the lawyer must disclose the existence and nature of all the claims or please involved and of the participation of each person in the settlement. Rule 1.8(g) commentary requires each client is informed about all the material terms of the settlement, including what the other clients will receive or pay if the settlement is accepted. See ABA Formal Opinion : Lawyer must disclose: (1) total amount of the aggregate settlement, (2) existence and nature of all claims involved in the settlement, (3) details of every other client s participation in the settlement, (4) total fees and costs to be paid to the lawyer, and (5) method by which the costs are to be apportioned among the clients. While 1.8(g) and commentary speak to the requirements of informed consent, attorneys are additionally bound to other RPC that discuss informed consent. Model Rule 1.0(e) definition of informed consent: the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. Rule 1.7 commentary: informed consent requires each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. ABA Ethical Guidelines for Settlement Negotiations (2002): informed consent should include an explanation of the implications of the group settlement and a discussion of the 10 P age

11 possible advantages and disadvantages in settling the client s claim along with the claims of the others and should include an explanation of what the other clients are paying or being paid. Does Informed Consent Include Client Names & Identifiers? While the language of Rule 1.8(g) does not require names and identifying information as part of the disclosure, some courts have held that they are necessary to obtain full informed consent. See Quintero v. Jim Walter Homes, Inc., 709 S.W.2d 225 (Ct. of App. Tx. 1985). But see, Williamson v. Edmunds, 880 So.2d 310 (Miss. 2004) (permitting redaction of identifying information, but requiring information that affected the amount of settlement and the amount of settlement). In re Anonymous Member of the S.C. Bar, 377 S.E.2d 567 (S.C. 1989): requires the disclosure of the names and amounts to be received by each participant in the settlement. In re Hoffman, 883 So.2d 425 (La. 2004): all the details of the proposed settlement, including information about each client s claim and share of the proposed settlement ALI Principles of the Law of Aggregate Litigation proposals urge that client names/identifying information should not be required in all instances, especially mass tort litigation. Problem with identifying client names: Rule 1.6(a) says [a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. Avoid problems with this rule by including a statement in a retainer agreement that the disclosure of confidential information might be necessary to reach an aggregate settlement. Does Informed Consent Include the Exact Amount Each Claimant Will Receive? Rule 1.8(g) also does not explicitly require allocation of particular sum to each client in order to satisfy the informed consent rule. See Scamardella v. Illiano, 126 Md.App. 76 (1999) (finding no violation of the Rule when [a] method for formulating the apportionment was agreed upon, and any resulting apportionment either would be disclosed or would be transparent ). In Scamardella, Plaintiffs were not given a list of names and amounts to be received by the other settling plaintiffs. Attorney did not withhold the information, but rather the settlement agreement did not make any allocation. Instead, the plaintiffs agreed they would attempt to agree on a division of settlement. If they were unable to agree, the plaintiffs agreed to each hire separate lawyers and submit the problem to the court for resolution. This was permissible because it was not a large, mass tort lawsuit and the plaintiffs all knew each other. Process used in Scamardella would not work in a lawsuit with hundreds of Plaintiffs or Plaintiffs unknown to each other. 11 P age

12 But see, Tilzer v. Davis, Bethune & Jones, LLC, 288 Kan. 477 (2009) (because the settlement did not provide information re how much each participant would receive, it was impossible for the attorney to obtain informed consent under the Rule). Under the settlement agreement in Tilzer, the defendants would establish a settlement fund of not less than a specified amount and not more than a specified amount, with the exact amount to be determined through binding arbitration. Also see, G.H. v. Eli Lilly & Co., 412 S.W.3d 326 (Missouri 2013) (Rule was meant to protect clients from situations where an attorney fails to disclose information known to him or her ). In G.H. v. Eli Lilly, attorney did not know the exact amount each client would receive under the agreement. The court determined that it was not the purpose of the rule to deny clients the opportunity to accept a settlement simply because the attorney did not have access to all of the information needed to give informed consent. If the client demanded that the attorney accepts the settlement agreement and the attorney refused [citing 1.8(g)], then the attorney would violate Rule 1.2(a). Use of Advanced Consent or a Steering Committee of Plaintiffs Advanced consent and agreements to follow the majority or a committee decision regarding settlement do not comply with 1.8(g) and other RPC discussing informed consent and/or settlement. No state allows either. Hayes v. Eagle-Picher Industries, Inc., 513 F.2d 892 (10 th Cir.1975) ( an agreement that authorized settlement of a case contrary to the wishes of a client and without his approving the terms of the settlement is opposed to the basic fundamentals of the attorney-client relationship ) In re Hoffman, 883 So.2d 425 (La. 2004) ( The requirement of informed consent cannot be avoided by obtaining client consent in advance to a future decision by the attorney or by a majority of the clients about the merits of an aggregate settlement. ) The Tax Auth., Inc. v. Jackson Hewitt, 898 A.2d 512 (N.J. 2006) ( RPC 1.8(g) forbids an attorney from obtaining consent in advance from multiple clients that each will abide by a majority decision in respect of an aggregate settlement. Abbott v. Kidder Peabody & Co., Inc., 42 F.Supp.3d 1046 (D.Colo.1999) ( Representation Contract gives counsel the ability to negotiate settlement for each plaintiff without providing him or her with personalized advisement and without obtaining individual authority to enter into a settlement arrangement [rather, allowing a steering committee to control whether to settle]. Colorado law states that any provision of an attorney-client agreement which deprives a client of the right to control their case is void as against public policy. ) Under ALI Principles of the Law of Aggregate Litigation proposed change, claimants would be permitted to agree in advance to accept an aggregate settlement offer approved 12 P age

13 by a supermajority of similarly situated claimants. ( 3.17(b)) However, no jurisdiction has adopted this rule change. Choice of Law: ABA Model Rule 8.5(b) 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, 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. Almost all states have adopted a rule identical or similar to the ABA Model Rule. Exceptions: Hawai i, Alabama & Texas (have committees studying the issue), Mississippi (recommendation to adopt pending in highest court). The following states have different choice of law rules: Alabama and Kansas use the original Rule 8.5 which states a lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere. Florida, Indiana and New Jersey omit the reasonable belief provision of (b)(2). Montana s rules states only that a temporarily practicing lawyer will be bound by Montana s RPC in his or her practice of law in this State and will be subject to the disciplinary authority of this state. 13 P age