Maryland Legal Ethics

1.8 Rule 1.8 Conflict of Interest: Prohibited Transactions

1.8:100 Comparative Analysis of Maryland Rule

¥ Primary Maryland References: MD Rule 1.8
¥ Background References: ABA Model Rule 1.8, Other Jurisdictions
¥ Commentary:

1.8:101 Model Rule Comparison

The comment to Maryland Rule 1.8 contains some stylistic, non-substantive differences. With regard to paragraph (a), the Maryland comment states that transactions between attorney and client "must be fair"; whereas, the comment to MR 1.8 states that such transactions "should be fair."

1.8:102 Model Code Comparison

Similar to Maryland Rule 1.8 (a), DR 5-104(A) provides that "[a] lawyer shall not enter into a business transaction with the client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure." EC 5-3 states that "a lawyer should not seek to persuade his client to permit him to invest in an undertaking of his client nor make improper use of his professional relationship to influence his client to invest in an enterprise in which the lawyer is interested."

Similar to Maryland Rule 1.8(b), DR 4-101(B)(3) provides that a lawyer shall not "use a confidence or secret of his client for the advantage of himself, or of a third person, unless the client consents after full disclosure." There is no counterpart to Maryland Rule 1.8(c) in the Disciplinary Rules of the Model Code. However, EC 5-5 recognizes that although a lawyer should not suggest to a client that a gift be made to himself or for his benefit, the lawyer may accept the gift if the client is urged to secure disinterested advice from an independent, competent person preferrably a disinterested lawyer.

Maryland Rule 1.8(d) is substantially similar to DR 5-104(B), but refers to both "literary or media" rights, a more generally inclusive term than "publication" rights.

Maryland Rule 1.8(e)(1) is similar to DR 5-103(B), but eliminates the requirement that "the client remain ultimately liable for such expenses."

Maryland Rule 1.8(e)(2) has no counterpart in the Model Code.

Maryland Rule 1.8(f) is substantially identical to DR 5-107(A)(1).

Maryland Rule 1.8(g) is substantially identical to DR 5-106.

The first clause of Maryland Rule 1.8(h) deals with the same subject as DR 6-102(A). There is no counterpart in the Model Code to the second clause of Maryland Rule 1.8(h).

Maryland Rule 1.8(i) has no counterpart in the Model Code.

Maryland Rule 1.8(j) is substantially identical to DR 5-103(A).

1.8:200 Lawyer's Personal Interest Affecting Relationship

¥ Primary Maryland References: MD Rule 1.8(a)
¥ Background References: ABA Model Rule 1.8(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:501 et seq., ALI-LGL ¤ 207, Wolfram ¤¤ 7.6, 8.11