End-of-life notice: American Legal Ethics Library
As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.
Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.
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Maryland Legal Ethics
Maryland Rule 1.9 is substantially shorter than MR 1.9, but appears to sacrifice little for the sake of brevity. Paragraph (a) is substantially similar. Maryland Rule 1.9(b) is substantially similar to MR 1.9 (c)(1). The Maryland Rule does not contain a provision similar to paragraph (b) of the Model Rule; however, conceptually, paragraph (b) is closely related to Maryland Rule 1.9(a) and MR 1.9(a). MR 1.9 focuses not only on an individual's representation of a former client, but limits representation by a firm with which the lawyer was formerly associated. Maryland simplifies Maryland Rule 1.9 by relying on imputed disqualification under Maryland Rule 1.10. The comment to Maryland Rule 1.9 reflects the brevity of the Rule as compared to the longer comment to MR 1.9.
There is no counterpart to Maryland Rule 1.9(a) in the Disciplinary Rules of the Model Code. The problem addressed in Maryland Rule 1.9(a) sometimes has been dealt with under the rubric of Canon 9 of the Model Code, which provides that "a lawyer should avoid even the appearance of impropriety." In addition, EC 4-6 recognizes that "the obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment." The exception in the last sentence of Maryland Rule 1.9(b) permits a lawyer to use information relating to a former client provided that it is in the "public domain," a use that also is not prohibited by the Code. Since the scope of Maryland Rule 1.6(a) is much broader than "confidences and secrets," it is necessary to define when a lawyer may make use of information about a client after the client-lawyer relationship has terminated.
The provision for waiver by the former client is in effect similar to DR 5-105(C).
Maryland Rule 1.9 applies to legal representation of a client. Legal representation does not include performing ministerial tasks, such as serving as a resident agent. MSBA Eth. Op. 88- 37 (1988). Thus, Maryland Rule 1.9 would not prevent a lawyer from accepting service of process on behalf of a former client in a suit for unpaid fees maintained by the lawyer against that former client. Id.
Maryland Rule 1.9 applies only to former clients. "Former clients" include prospective clients who reveal confidential information but are not thereafter represented by the lawyer. MSBA Eth. Op. 96-20 (1996).
The scope of the representation, however, is determined on a case-by-case basis. In MSBA Eth. Op. 97-37 (1997), the Maryland State Bar Association Committee on Ethics considered whether a lawyer's brief consultation with an individual concerning a completely unrelated topic precluded the lawyer from representing a current client against the individual. The Committee assumed, without deciding, that the individual was the lawyer's former client. The Committee then pointed out that the lawyer's decision to proceed with the representation should hinge on whether the lawyer had confidential information that could be used to the former client's disadvantage in the current dispute. Id.
Maryland Rule 1.9(a) prohibits a lawyer from representing a client if the lawyer previously represented another client, whose interests are materially adverse to the current client, in the same or a substantially related matter. The Maryland Court of Appeals has not yet addressed Maryland Rule 1.9. However, the United States District Court for the District of Maryland and the Maryland State Bar Association ("MSBA") Committee on Ethics have addressed Maryland Rule 1.9. The Committee's and the federal courts' approaches to the "substantial relationship" test differ slightly. Compare Buckley v. Airshield Corp., 908 F. Supp. 299 (D. Md. 1995) (applying an irrebuttable presumption that relevant confidential information was disclosed in the prior representation once it is established that current and prior representations are substantially related), with MSBA Eth. Op. 91-12 (1991) (applying a rebuttable presumption).
The only case squarely addressing Maryland Rule 1.9 is Buckley, 908 F. Supp. 299. In Buckley, plaintiff, in a breach of licensing agreement and patent infringement case, sought to have defendants' lawyer disqualified. Defendants' lawyer had previously represented plaintiff in patent infringement cases when the lawyer was working at another law firm. Indeed, defendants' lawyer was listed "Of Counsel" on behalf of plaintiff in two prior lawsuits. Defendants' lawyer opposed disqualification on several grounds, including the following: (1) the matters were not substantially related; (2) his role was limited in the prior cases to updating research; and (3) he had no confidential information relating to plaintiff. The court rejected each argument. The court found that the matters were substantially related because the lawyer was now advocating the same position against plaintiff as had defendants in the prior suits in which the defendants' lawyer represented plaintiff. 908 F. Supp. at 305 (noting courts must examine the nature and scope of the prior and present representations and determine whether confidence might have been disclosed during the prior representations that could be relevant to the present action). Next, the court summarily rejected defendants' lawyer's contention that his limited role in the prior representation of plaintiff brought him outside the proscriptions of Maryland Rule 1.9, finding an attorney-client relationship of some sort was established. Id. at 306. Finally, the court rejected the lawyer's argument that there was no conflict because he had no confidential information regarding the plaintiff. Id. The court declared that it is a well-settled that once the attorney-client relationship has been established, "an irrebuttable presumption arises that confidential information was conveyed to the attorney in the prior matter." Id.
Conversely, the MSBA Committee on Ethics has stated the presumption is rebuttable. This is evidenced in the first of two MSBA Ethics Opinions that addressed representing new clients in tort cases regarding defective land conditions against former clients who own the land.
In MSBA Eth. Op. 91-12 (1991), the Committee on Ethics considered whether a lawyer can represent a client in a tort action for injuries sustained in a slip-and-fall occurring on the lawyer's former clients' property. In the prior representation, the lawyer had defended the former clients against a tort claim regarding a different defective condition on the property. The Committee outlined two different approaches to the substantial relationship test developed in the federal circuits: (1) the "similar or related factual context" test, and (2) the "patently clear" test. The Committee concluded that the essence of both approaches was "whether or not it was likely that the attorney had access to confidential information in the course of the prior representation which could be adversely [sic] to the prior client in the second representation." MSBA Eth. Op. 91-12. Concluding that the matters were substantially related, the Committee then implicitly assumed that the presumption--that relevant confidential information was disclosed during the former representation--could be rebutted. Id. Nevertheless, the Committee stated that the presumption cannot be rebutted by a simple denial, but rather the attorney must demonstrate that he or she was not in a position to obtain relevant confidential information during the prior representation. Id.
In the second MSBA Ethics Opinion addressing defective land conditions, the Committee opined that Maryland Rule 1.9 was not violated when a lawyer represented an accident victim against the lawyer's former clients. MSBA Eth. Op. 89-2 (1989). The lawyer had represented the former clients in multiple transactions relating to the property where the accident occurred. However, the prior representation was limited to preparation of documents relating to ownership and title; thus, the lawyer acquired no confidential information of significance to the current litigation. Id. Therefore, the Committee opined the matters were not substantially related. Id.
Applying the now-superseded Canons 4 and 9 of the Maryland Code of Professional Responsibility, the United States District Court for the District of Maryland addressed the substantial relationship test as applied to a former corporate general counsel in Stitz v. Bethlehem Steel Corp., 650 F. Supp. 914 (D. Md. 1987). In Stitz, the defendant corporation sought to have plaintiff's lawyer, who served as a labor lawyer for the defendant corporation until 1985, disqualified from representing plaintiff in an age discrimination suit against the corporation. Plaintiff's lawyer argued that the substantial relationship test was narrow and did not preclude his current representation because his work for the defendant corporation had concerned only hourly and salaried non-exempt employees, not salaried exempt employees, such as plaintiff. Conversely, the defendant corporation argued for a broader interpretation, which would preclude the lawyer from representing adverse parties in disputes against the corporation whenever its personnel policies and procedures are in issue. The court adopted the broader view, thereby requiring disqualification of the lawyer from further participation in the lawsuit despite the subtle differences between the current and former representations. 650 F. Supp. at 917.
In MSBA Eth. Op. 97-27 (1997), the Committee addressed the substantial relationship test as applied in a domestic case, considering whether a lawyer can represent a husband in a domestic matter when the lawyer's firm previously represented both spouses in estate planning. The Committee stated that estate planning ordinarily involves coordination of spouses' wills to conserve finances, and divorce necessarily involves division of the marital assets and alters the legal rights of the spouses in each other's estates. Thus, the Committee concluded that the former estate representation of both spouses and the current domestic representation of the husband were substantially related matters. MSBA Eth. Op. 91-27. Moreover, the Committee concluded that, despite the joint representation, the confidential information disclosed by the wife during the estate representation would still be protected because it did not fall within any of the Maryland Rule 1.6(b) exceptions and was not "generally known." Id. Thus, the Committee concluded that the lawyer could not represent the husband in the current matter without the consent of the wife. Id.
The MSBA Committee on Ethics also considered application of Maryland Rule 1.9 in a domestic case in MSBA Eth. Op. 91-37 (1991). Previously, a lawyer (lawyer A) had represented a client in a pendente lite custody and child support case; practically, however, child support was the only issue. Thereafter, active litigation continued for a number of years without lawyer A being involved. The former client then sued her ex-husband's lawyer (lawyer B), alleging conspiracy to deprive her of custody in the domestic matter. Lawyer B asked lawyer A to represent him in the conspiracy suit. In determining whether the prior domestic representation and current conspiracy suit were substantially related under Maryland Rule 1.9, the Committee reiterated that the essence of the inquiry is whether it was likely that the attorney had access to confidential information during the prior representation that could be used to the detriment of the former client in the current matter. MSBA Eth. Op. 97-37. If the matters are substantially related, the Committee concluded a presumption arose that relevant confidential information was disclosed during the former representation. Id. Nonetheless, the Committee again stated that the presumption of disclosure is rebuttable, but that lawyer A may be required to affirmatively demonstrate that he was not in the position to have obtained relevant confidential information during the prior representation. Id. Without definitively concluding that lawyer A was precluded from continuing the representation under Maryland Rule 1.9, the Committee stated that it is in the best interest of the profession that any doubts be resolved in favor of disqualification unless the former client consents. Id.
In MSBA Eth. Op. 88-29 (1988), the Committee addressed whether a lawyer could represent a physician in a tort action against others in the health care industry when the lawyer previously represented the other parties in "collection" work. The Committee opined that the tort action appeared wholly distinct and unrelated to the collection work, and thus the matters were not substantially related. MSBA Eth. Op. 88-29.
Interestingly, both MSBA Ethics Opinions addressing "material adversity of interests" concern estate administration. In MSBA Eth. Op. 93-33 (1993), the Committee on Ethics considered whether a firm that previously represented co-personal representatives of an estate could represent one of the personal representatives against the other for removal and to compel an accounting. The Committee concluded that the firm may not represent one of the co-personal representatives against the other because the firm had previously represented them as one client--i.e., in their joint capacity as co-personal representatives of the estate. MSBA Eth. Op. 93-33. For the same reason, the Committee concluded that the firm may only represent both co-personal representatives in the administration of the estate, but only with the consent of both. Id. If this were not possible, the firm should withdraw altogether and not represent one against the other in an adversary proceeding arising out of the administration of the estate. Id.
In MSBA Eth. Op. 89-14 (1989), the Committee considered whether Maryland Rule 1.9 prevented a lawyer from representing the estate of a decedent when the lawyer had previously represented the decedent's ex-spouse in a divorce proceeding. In the prior divorce proceeding, the parties agreed that the ex-spouse was to purchase the decedent's interest in the family dwelling for cash and a promissory note payable upon sale of the dwelling. In the current representation, the Committee opined that the ex-spouse and the decedent's estate were not adverse so long as there was not a substantial likelihood that the ex-spouse would refuse to pay the note. MSBA Eth. Op. 89-14. Thereafter, if collection of the note became a problem, the lawyer would have to withdraw from representing the estate unless the ex-spouse consented. Id.
1.9:230 Relevance of "Appearance of Impropriety" Standard [see also 1.7:230]
Though not an explicit directive contained in the Maryland Rules, the appearance of impropriety standard remains a guiding principle for courts considering disqualification of counsel, as opposed to exacting punishment. See, e.g., Buckley v. Airshield Corp., 908 F. Supp. 299, 304 (D. Md. 1995).
This section has not yet been completed.
1.9:320 Former Government Lawyer or Officer [see 1.11:200]
Generally, Maryland Rule 1.11 governs conflict situations arising from government lawyers or officers leaving or entering public service. Nonetheless, Maryland Rule 1.9 was considered by the MSBA Committee on Ethics when it addressed whether a former government attorney could represent a client challenging the constitutionality of a statute. MSBA Eth. Op. 90-8 (1990). The former government attorney had helped promulgate the statute and defend it against previous constitutional challenges while employed by the government. Because the Committee concluded that Maryland Rule 1.11 inadequately defined the term "matter," the Committee looked to the comment to Maryland Rule 1.9, which indicates that the scope of "matter" depends on the facts of a particular situation and can be a question of degree. The Committee noted that it did not have enough information to make a final conclusion, but cautioned that the lawyer should not undertake the representation if the lawyer has information derived from work as a government employee that is not generally known and could be used to the disadvantage of the government. Id.
Disqualification analysis under Maryland Rule 1.9 involves a factual inquiry, requiring a nexus between the present, adverse representation and the earlier representation. See, e.g., Blumenthal Power Co. v. Browning-Ferris Inc., 903 F. Supp. 901, 902 (D. Md. 1995). Thus, generalized assertions that a former client's confidences were shared regarding such matters as overall litigation philosophy and strategy were held insufficient to require disqualification of counsel. Id. at 902.
Maryland Rule 1.9 applies only to former clients. "Former clients" includes prospective clients who reveal confidential information but are not thereafter represented by the lawyer. MSBA Eth. Op. 96-20 (1996). The scope of the representation, however, is determined on a case-by-case basis. In MSBA Eth. Op. 97-37 (1997), the Committee on Ethics considered whether a lawyer's brief consultation with an individual concerning a completely unrelated topic precluded the lawyer from representing the current client against the individual. The Committee assumed, without deciding, that the individual was the lawyer's former client. The Committee then pointed out that the lawyer's decision to proceed with the representation should hinge on whether the lawyer had confidential information that could be used to the former client's disadvantage in the current dispute. Id.
Numerous Ethics Opinions have addressed Maryland Rule 1.9 as applied to lawyers representing clients in domestic cases. In MSBA Eth. Op. 96-42 (1996), the Committee considered whether a long-time family lawyer could represent the husband in a divorce. The lawyer had represented the husband in drafting an antenuptial agreement, and the lawyer had represented the wife in a child support matter against her former spouse. The Committee concluded that Maryland Rule 1.9 did not per se bar representation of the husband in the current matter, but cautioned that any confidential information obtained from the wife during the prior representation was still protected and, if relevant to the divorce, would preclude representation. Id.
In MSBA Eth. Op. 96-14 (1996), the Committee considered whether prior representation of a wife in a juvenile matter precludes representation of the husband in a custody case against the wife. The juvenile delinquency matter occurred twelve years earlier. The Committee concluded the matters were not substantially related, but noted that the lawyer may have acquired relevant confidential information during the prior representation. MSBA Eth. Op. 96-14. The Committee noted the lawyer would be precluded from using such confidential information against the former client, which may in turn inhibit the lawyer's ability to represent the current client. Id.
In MSBA Eth. Op. 87-22 (1987), the Committee opined that, under the peculiar facts presented, representation of a husband in a divorce proceeding when the lawyer had formerly represented the wife in a tort matter was prohibited under Maryland Rule 1.9. The tort matter concerned an incident in which the wife intentionally drove a car into her boyfriend's van. Notably, the husband did not intend to rely in the current representation on previous instances of adultery that were acknowledged by the wife during the prior representation. Nonetheless, the Committee concluded that there was a substantial likelihood that confidential information would or could be used in the current representation of the husband--e.g., during the anticipated custody dispute--and continued representation would be in violation of Maryland Rule 1.9 absent consent of the wife. Id.
In MSBA Eth. Op. 98-22 (1998), the Committee considered whether representing a mother in a child custody dispute when a lawyer formerly represented the mother's child in a juvenile proceeding would be a violation of Maryland Rule 1.9. The Committee opined that the representation would place the lawyer in jeopardy of violating Maryland Rule 1.9.
The Committee on Ethics has most often opined that prior joint representation would preclude subsequent representation of only one joint client in the same matter. However, in MSBA Eth. Op. 95-36 (1995), the Committee implicitly recognized that confidential information regarding a former client may fall within the "generally known" category if the same information is known to the current client because of the prior joint representation.
In MSBA Eth. Op. 91-45 (1991), the Committee addressed whether a lawyer representing both an insurance carrier and its insured must withdraw from the representation if the lawyer believes the insured is attempting to perpetrate a fraud on the carrier. The Committee concluded the lawyer must withdraw from representing both parties because, inter alia, Maryland Rule 1.9 prohibits the use of information gained in the representation to the disadvantage of either client, except as allowed under Maryland Rule 1.6. MSBA Eth. Op. 91-45.
In MSBA Eth. Op. 97-27 (1997), the Committee concluded that the former representation of both spouses in estate matters and the current domestic representation of the husband were substantially related matters. Moreover, the Committee concluded that, despite the joint representation, the confidential information disclosed by the wife during the prior joint representation would still be protected because it does not fall within any of the Maryland Rule 1.6(b) exceptions and is not "generally known." MSBA Eth. Op. 97-27. Thus, the Committee concluded that the lawyer could not represent the husband in the current matter without the consent of the wife. Id.
The Committee on Ethics originally concluded that continuing representation when the lawyer knows of a potential to cross-examine a former client is improper absent consent of the former client. In MSBA Eth. Op. 92-42 (1992), the Committee addressed whether a lawyer could represent a client in a domestic case when the lawyer's former client was going to be called as an adverse witness. The Committee concluded that the lawyer could continue the current representation only if the former client gave an intelligent, knowing, and voluntary waiver of the confidentiality privilege after full and complete explanations of the legal ramifications of such a waiver. MSBA Eth. Op. 92-42. More recently, however, the Committee stated that a practical alternative to withdrawal would be to hire an independent lawyer solely for the purpose of cross-examining the former client. MSBA Eth. Op. 98-33 (1998) (citing ABA Formal Op., 92-367 (Oct. 16, 1992)).
Valid consent by a former client circumscribes the prohibitions in Maryland Rule 1.9. The consultation required for consent under Maryland Rule 1.9 can be satisfied by consultation and advice from an independent lawyer. MSBA Eth. Op. 97-17 (1997). Moreover, consent does not have to be evidenced in writing, though obtaining written consent is a prudent course of conduct. Id. Further, consent is final and binding once a party or counsel has detrimentally relied thereon. Id.
In MSBA Eth. Op. 97-24 (1997), the Committee pointed out that acquiescence by silence of the former client does not constitute consent. MSBA Eth. Op. 97-24. Instead, the burden is on the attorney to obtain consent. Id. In that opinion, the Committee considered Maryland Rule 1.9 in the context of a conflict arising from prior representation of an adverse party to a current domestic action. The lawyer previously represented the wife in a criminal matter and bankruptcy, and had also represented both parties in the purchase of a home. The lawyer was now retained to represent the husband in a divorce action, and the wife objected. Applying Maryland Rule 1.9(b), the Committee concluded that the lawyer was not per se prohibited from taking on the current representation. Id. However, the Committee noted that doing so was fraught with peril and the lawyer should determine whether it was reasonable to believe that the prior representation concerning financial aspects of marriage and bankruptcy would not adversely affect the wife. Id. Moreover, because of the likelihood that relevant confidential information was disclosed in the prior representation, the lawyer would have to obtain the husband's informed consent to limitations on the current representation, disclosing that the lawyer may be forced to withdraw if relevant confidential information gained from the wife in the prior representation were to become relevant to the current dispute. Id.
Creating a grantor retained income trust and an insurance trust for a former client gives a lawyer detailed information regarding the assets and holdings of the former client that would be relevant in connection with executing a judgment. MSBA Eth. Op. 96-15 (1996).