Maryland Legal Ethics
V. LAW FIRMS AND ASSOCIATIONS
5.1 Rule 5.1 Responsibilities of a Partner and Supervisory Lawyer
5.1:100 Comparative Analysis of Maryland Rule
¥ Primary Maryland References:
MD Rule 5.1
¥ Background References: ABA
Model Rule 5.1, Other Jurisdictions
¥ Commentary:
5.1:101 Model Rule Comparison
Maryland Rule 5.1 and its accompanying comment are substantively identical to MR 5.1 and its comment.
5.1:102 Model Code Comparison
There is no direct counterpart to Maryland Rule 5.1 in the Model Code. DR 1-103(A) provides that a lawyer "possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to . . . [an] authority empowered to investigate or act upon such violation."
5.1:200 Duty of Partners to Monitor Compliance with Professional Rules
¥ Primary Maryland References:
MD Rule 5.1(a)
¥ Background References: ABA
Model Rule 5.1(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:201, ALI-LGL ¤ 12, Wolfram
¤ 16.2
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5.1:300 Monitoring Duty of Supervising Lawyer
¥ Primary Maryland References:
MD Rule 5.1(b)
¥ Background References: ABA
Model Rule 5.1(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:201, ALI-LGL ¤ 12, Wolfram
¤ 16.2
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5.1:400 Failing to Rectify the Misconduct of a Subordinate Lawyer
¥ Primary Maryland References:
MD Rule 5.1(c)
¥ Background References: ABA
Model Rule 5.1(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:201, ALI-LGL ¤ 5, Wolfram
¤ 16.2
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5.1:500 Vicarious Liability of Partners
¥ Primary Maryland References:
MD Rule 5.1
¥ Background References: ABA
Model Rule 5.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:201, ALI-LGL ¤¤ 8, 10
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5.2 Rule 5.2 Responsibilities of a Subordinate Lawyer
5.2:100 Comparative Analysis of Maryland Rule
¥ Primary Maryland References:
MD Rule 5.2
¥ Background References: ABA
Model Rule 5.2, Other Jurisdictions
¥ Commentary:
5.2:101 Model Rule Comparison
Maryland Rule 5.2 and its accompanying comment are substantively identical to MR 5.2 and its comment.
5.2:102 Model Code Comparison
There is no counterpart to Maryland Rule 5.2 in the Model Code.
5.2:200 Independent Responsibility of a Subordinate Lawyer
¥ Primary Maryland References: MD
Rule 5.2(a)
¥ Background References: ABA Model Rule
5.2(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:201, ALI-LGL ¤ 5, Wolfram ¤ 16.2
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5.2:300 Reliance on a Supervisor's Resolution of Arguable Ethical Issues
¥ Primary Maryland References: MD
Rule 5.2(b)
¥ Background References: ABA Model Rule
5.2(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:201, ALI-LGL ¤ 5, Wolfram ¤ 16.2
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5.3 Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
5.3:100 Comparative Analysis of Maryland Rule
¥ Primary Maryland References:
MD Rule 5.3
¥ Background References: ABA
Model Rule 5.3, Other Jurisdictions
¥ Commentary:
5.3:101 Model Rule Comparison
Maryland Rule 5.3 and its accompanying comment are substantively identical to MR 5.3 and its comment.
5.3:102 Model Code Comparison
There is no direct counterpart to Maryland Rule 5.3 in the Model Code. DR 4-101(D) provides that a lawyer "shall exercise reasonable care to prevent his employees, associates and others whose services are utilized by him from disclosing or using confidences or secrets of the client . . . ." DR 7-107(J) provides that "[a] lawyer shall exercise reasonable care to prevent his employees and associates from making an extrajudicial statement that he would be prohibited from making under DR 7-107."
5.3:200 Duty to Establish Safeguards
¥ Primary Maryland References:
MD Rule 5.3(a)
¥ Background References: ABA
Model Rule 5.3(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:201, ALI-LGL ¤¤ 4, 5, Wolfram
¤ 16.3
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5.3:300 Duty to Control Nonlawyer Assistants
¥ Primary Maryland References:
MD Rule 5.3(b)
¥ Background References: ABA
Model Rule 5.3(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 21:8601, ALI-LGL ¤¤ 4, 5,
Wolfram ¤ 16.3
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5.3:400 Responsibility for Misconduct of Nonlawyer Assistants
¥ Primary Maryland References:
MD Rule 5.3(c)
¥ Background References: ABA
Model Rule 5.3(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:201, ALI-LGL ¤¤ 4, 5, Wolfram
¤ 16.3
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5.4 Rule 5.4 Professional Independence of a Lawyer [Restrictions on Form of Practice]
5.4:100 Comparative Analysis of Maryland Rule
¥ Primary Maryland References:
MD Rule 5.4
¥ Background References: ABA
Model Rule 5.4, Other Jurisdictions
¥ Commentary:
5.4:101 Model Rule Comparison
Maryland Rule 5.4 and MR 5.4 are substantively identical, except with respect to paragraph (a)(2). Maryland's paragraph (a)(2) is much narrower in scope. MR 5.4(a)(2) broadly provides that "a lawyer who purchases the practice of a deceased, disabled or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed upon purchase price." The Maryland Rule reads that "a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that portion of the total compensation which fairly represents the services rendered by the deceased lawyer." The comment sections of each rule (MD Rule 5.4, cmt., MR 5.4, cmt.) are substantively identical.
5.4:102 Model Code Comparison
Paragraph (a) is substantially similar to DR 3-102(A).
Paragraph (b) is substantially identical to DR 3-103(A).
Paragraph (c) is substantially identical to DR 5-107(B).
Paragraph (d) is substantively identical to DR 5-107(C). Also with respect to paragraph (d), see EC 5-24.
5.4:200 Sharing Fees with a Nonlawyer
¥ Primary Maryland References:
MD Rule 5.4(a)
¥ Background References: ABA
Model Rule 5.4(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 41:801, ALI-LGL ¤ 60, Wolfram
¤¤ 16.4, 16.5
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5.4:300 Forming a Partnership with Nonlawyers
¥ Primary Maryland References:
MD Rule 5.4(b)
¥ Background References: ABA
Model Rule 5.4(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:401, ALI-LGL ¤ 60, Wolfram
¤¤ 16.4, 16.5
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5.4:400 Third Party Interference with a Lawyer's Professional Judgment
¥ Primary Maryland References:
MD Rule 5.4(c)
¥ Background References: ABA
Model Rule 5.4(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:901, ALI-LGL ¤ 60, Wolfram
¤ 8.8
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5.4:500 Nonlawyer Ownership in or Control of Profit-Making Legal Service Organizations
¥ Primary Maryland References:
MD Rule 5.4(d)
¥ Background References: ABA
Model Rule 5.4(d), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:401, ALI-LGL ¤ 60, Wolfram
¤ 16.4, 16.5
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5.4:510 Group Legal Services
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5.4:520 Nonprofit Organizations Delivering Legal Services
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5.5 Rule 5.5 Unauthorized Practice of Law
5.5:100 Comparative Analysis of Maryland Rule
¥ Primary Maryland References:
MD Rule 5.5
¥ Background References: ABA
Model Rule 5.5, Other Jurisdictions
¥ Commentary:
5.5:101 Model Rule Comparison
Maryland Rule 5.5 and MR 5.5 are substantively identical. Similarly, the comment sections of each Rule (MD Rule 5.5, cmt., MR 5.5, cmt.) are substantively identical.
5.5:102 Model Code Comparison
With regard to paragraph (a), DR 3-101(B) of the Model Code provides that "[a] lawyer shall not practice in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction."
With regard to paragraph (b), DR 3-101(A) of the Model Code provides that "[a] lawyer shall not aid a non-lawyer in the unauthorized practice of law."
5.5:200 Engaging in Unauthorized Practice
¥ Primary Maryland References:
MD Rule 5.5(a)
¥ Background References: ABA
Model Rule 5.5(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 21:8001, ALI-LGL ¤¤ 3, 4,
Wolfram ¤ 15.1
To determine whether an individual has engaged in the practice of law, the focus of the inquiry should be on whether the activity in question required legal knowledge and skill in order to apply legal principles and precedent. Attorney Grievance Comm'n v. Hallmon, 343 Md. 390 (1996); Attorney Grievance Comm'n v. James, 340 Md. 318 (1995) (holding that the practice of law includes utilizing legal education, training, and experience to apply the special analysis of the profession to a client's problem). Section 10-101(h)(1) of the Business Occupations and Professions Article of the Maryland Annotated Code defines "Practice law" to mean "to engage in any of the following activities: (i) giving legal advice; (ii) representing another person before a unit of the State government or of a political subdivision; or (iii) performing any other service that the Court of Appeals defines as practicing law."
5.5:210 Practice of Law by Nonlawyers
When nonlawyer title company employees sell a package of services that includes the examination of documents and other services performed by attorneys who are minority owners in the title company, the nonlawyer title company employees are engaged in the unauthorized practice of law. MSBA Eth. Op. 90-22 (1990). In effect, the title company employees would sell legal advice and services to be obtained from lawyers. Id. Therefore, any lawyers who participate in such an activity would be in violation of Maryland Rule 5.5. Id. Moreover, when lawyers are engaged in a second occupation, particularly when the second occupation is law-related, the spector of an improper "feeding" of a law practice is raised. Id.
A nonlawyer who prepares "standard" wills for clients, and who refers legal issues to a lawyer when such issues arise, may be engaging in the unauthorized practice of law because the mere determination of whether or not there are legal questions to be answered is in itself the practice of law. MSBA Eth. Op. 90-37 (1990). Moreover, those lawyers who provide advice to the nonlawyer with the knowledge that such advice is being relayed by the nonlawyer to clients may be in violation of Maryland Rule 5.5. Id.
5.5:220 Admission and Residency Requirements for Out-of-State Lawyers
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5.5:230 Pro Hac Vice Admission [see also 8.1:240]
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5.5:240 Performing Legal Services in Another Jurisdiction
A Florida attorney, who is not admitted in Maryland and who represents a Florida corporation that obtained a judgment in Florida against a Maryland corporation, may not undertake collection efforts in Maryland to the extent that the collection efforts constitute the "practice of law." MSBA Eth. Op. 98-4 (1998).
5.5:300 Assisting in the Unauthorized Practice of Law
¥ Primary Maryland References:
MD Rule 5.5(b)
¥ Background References: ABA
Model Rule 5.5(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 21:8201, ALI-LGL ¤ 4, Wolfram
¤ 15.1
Maryland Rule 5.5 and case law allow a lawyer to employ law clerks and paralegals without the lawyer being found to have assisted in the unauthorized practice of law. Attorney Grievance Comm'n v. Hallmon, 343 Md. 390, 397 (1996). However, the lawyer must supervise the delegated work and retain responsibility for the work product. Id. "The level of supervision may vary, depending on the type of work involved and the competence of the legal assistant, but it must always be present." Id. Law clerks and paralegals perform a variety of services for attorneys, but they may not give legal advice, accept cases, set fees, appear in court, plan strategy, make legal decisions, or chart the direction of the case. Id.
It is permissible for a disbarred or suspended lawyer to work as a paralegal, provided that proper procedures and constraints are in place to assure that the public in general, and clients in particular, are not confused as to the person's status as a paralegal. Attorney Grievance Comm'n v. Brennan, 350 Md. 489 (1998); Attorney Grievance Comm'n v. James, 340 Md. 318 (1995); In re Murray, 316 Md. 303 (1989)
5.6 Rule 5.6 Restrictions on Right to Practice
5.6:100 Comparative Analysis of Maryland Rule
¥ Primary Maryland References:
MD Rule 5.6
¥ Background References: ABA
Model Rule 5.6, Other Jurisdictions
¥ Commentary:
5.6:101 Model Rule Comparison
Maryland Rule 5.6 and the accompanying comment are substantively identical to MR 5.6 and its comment.
5.6:102 Model Code Comparison
Maryland Rule 5.6 is substantively similar to DR 2-108.
5.6:200 Restrictions on Lawyers Leaving a Firm
¥ Primary Maryland References:
MD Rule 5.6(a)
¥ Background References: ABA
Model Rule 5.6(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:1201 ALI-LGL ¤ 10
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5.6:300 Settlements Restricting a Lawyer's Future Practice
¥ Primary Maryland References:
MD Rule 5.6(b)
¥ Background References: ABA
Model Rule 5.6(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:1201, ALI-LGL ¤ 10, Wolfram
¤ 16.2.3
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5.7 Rule 5.7 Responsibilities Regarding Law-Related Services
5.7:100 Comparative Analysis of Maryland Rule
¥ Primary Maryland References:
¥ Background References: ABA
Model Rule 5.7, Other Jurisdictions
¥ Commentary:
5.7:101 Model Rule Comparison
There is no Maryland Rule 5.7. There is no rule within the Maryland Rules of Professional Conduct that is similar to MR 5.7.
5.7:102 Model Code Comparison
There is no Maryland Rule 5.7.
5.7:200 Applicability of Ethics Rules to Ancillary Business Activities
¥ Primary Maryland References:
¥ Background References: ABA
Model Rule 5.7, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 101:2101, ALI-LGL ¤, Wolfram
¤
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