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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.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Maryland Legal Ethics

II. COUNSELOR

2.1   Rule 2.1 Advisor

2.1:100   Comparative Analysis of Maryland Rule

Primary Maryland References: MD Rule 2.1
Background References: ABA Model Rule 2.1, Other Jurisdictions
Commentary:

2.1:101      Model Rule Comparison

Maryland Rule 2.1 and its accompanying comment are substantively identical to MR 2.1 and its accompanying comment.

2.1:102      Model Code Comparison

There is no direct counterpart to Maryland Rule 2.1 in the Disciplinary Rules of the Model Code. DR 5-107(B) provides that "a lawyer shall not permit a person who recommends, employs or pays him to render legal services for another to direct or regulate his professional judgements in rendering such legal services." EC 7-8 states that "advice of a lawyer to his client need not be confined to purely legal considerations . . . . In assisting his client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible . . . . In the final analysis, however, . . . the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client . . . ."

2.1:200   Exercise of Independent Judgment

Primary Maryland References: MD Rule 2.1
Background References: ABA Model Rule 2.1, Other Jurisdictions
Commentary: ABA/BNA 31:701, ALI-LGL 151, Wolfram 4.3

This section has not yet been completed.

2.1:300   Non-Legal Factors in Giving Advice

Primary Maryland References: MD Rule 2.1
Background References: ABA Model Rule 2.1, Other Jurisdictions
Commentary: ABA/BNA 31:701, ALI-LGL 151, Wolfram 4.3

This section has not yet been completed.

2.2   Rule 2.2 Intermediary

2.2:100   Comparative Analysis of Maryland Rule

Primary Maryland References: MD Rule 2.2
Background References: ABA Model Rule 2.2, Other Jurisdictions
Commentary:

2.2:101      Model Rule Comparison

MD Rule 2.2 and the accompanying comment are substantively identical to MR 2.2 and its accompanying comment.

2.2:102      Model Code Comparison

There is no direct counterpart to Maryland Rule 2.2 in the Disciplinary Rules of the Model Code. EC 5-20 states that "a lawyer is often asked to serve as an impartial arbitrator or mediator in matters which involve present or former clients. He may serve in either capacity if he first discloses such present or former relationship." DR 5-105(B) provides that a lawyer "shall not continue multiple employment if the exercise of his independent judgment on behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would involve him in representation of differing interests, except to the extent permitted under DR 5-105(C)." DR 5-105(C) provides "a lawyer may represent multiple clients if it obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each."

[See 2.2:500]}

2.2:200   Relationship of Intermediation to Joint Representation

Primary Maryland References: MD Rule 2.2
Background References: ABA Model Rule 2.2, Other Jurisdictions
Commentary: ABA/BNA 51:1501, ALI-LGL 153, Wolfram 8.7, 13.6

This section has not yet been completed.

2.2:300   Preconditions to Becoming an Intermediary

Primary Maryland References: MD Rule 2.2
Background References: ABA Model Rule 2.2, Other Jurisdictions
Commentary: ABA/BNA 51:1501, ALI-LGL 153, Wolfram 8.7, 13.6

The Rule applies when the attorney acts as an intermediary between clients. The lawyer's role is to resolve potentially conflicting interests by developing the parties' mutual interests. MD Rule 2.2, cmt. The opportunity for a lawyer to serve as an intermediary arises most often in real estate, business and family contexts.

Maryland Rule 2.2 does not apply to an attorney who acts as a volunteer mediator for clients of a non- profit family law mediation organization. The Rule "does not apply to a lawyer acting as arbitrator or mediator between or among parties who are not clients of the lawyer, even where the lawyer has been appointed with the concurrence of the parties." MSBA Eth. Op. 97-7 (1997); MD Rule 2.2, cmt.

Maryland Rule 2.2 may govern the representation by an attorney of a trade association and its individual members. The Maryland State Bar Association ("MSBA") Committee on Ethics was asked whether an attorney's representation of a trade association created a relationship between the attorney and its individual members that was sufficiently similar to a direct attorney-client relationship as to preclude the attorney's simultaneous representation of one of the individual members. MSBA Eth. Ops. 88-11 and 88-17 (1988). The Committee on Ethics opined that whether a de facto attorney-client relationship existed with the member of the organization, or whether the attorney would be deemed to have a fiduciary relationship with the member, is a factual question dependent on all the circumstances of the situation. If the facts establish that such a lawyer-client relationship exists with the member, Maryland Rule 2.2, as well as Maryland Rules 1.7, 1.8(b) and (g), and 1.9 would apply. MSBA Eth. Ops. 88-11 and 88-17.

In the context of a real estate transaction, when the proper disclosures are made, a settlement attorney may collect a fee from both the buyer and the seller of real estate. Attorney Grievance Comm'n v. Lockhart, 285 Md. 586 (1979).

More recently, the MSBA Committee on Ethics addressed the issue of whether an attorney, who represents and is a family member of the seller of property, may conduct the property settlement, draft the deed for the buyer, and collect a fee from the buyer. MSBA Eth. Op. 91-30 (1991). The Committee concluded that the situation was governed by Maryland Rule 2.2. Id. The representation would be proper as long as the attorney could be truly impartial, the family relationship is disclosed to the buyer, and all of the elements of Maryland Rule 2.2 are satisfied: i.e., disclosure to both parties of the risks and advantages of common representation, and the potential effect on the attorney-client privilege; both the buyer and the seller consent; the attorney reasonably believes that both parties' best interests can be represented adequately; there is little risk of material prejudice to the interest of either party if the transaction is not concluded; and the interests of both parties can be represented impartially and without improper effect. Id.

2.2:400   Communication During Intermediation

Primary Maryland References: MD Rule 2.2
Background References: ABA Model Rule 2.2, Other Jurisdictions
Commentary: ABA/BNA 51:1501, ALI-LGL 153, Wolfram 8.7, 13.6

There are no reported Maryland cases or Ethics Opinions on this issue.

2.2:500   Consequences of a Failed Intermediation

Primary Maryland References: MD Rule 2.2
Background References: ABA Model Rule 2.2, Other Jurisdictions
Commentary: ABA/BNA 51:1501, ALI-LGL 153, Wolfram 8.7, 13.6

A failed representation as an intermediary may result in the attorney's inability to represent either party in the matter at issue. In MSBA Eth. Op. 93-33 (1993), the MSBA Committee on Ethics was presented with a dispute between co-representatives who were formerly represented by the same counsel. The attorney acted as counsel for two siblings in their capacity as co-personal representatives of their mother's estate. A dispute arose between the siblings, and the attorney questioned whether it would be ethical to continue representing the son, who was contemplating filing petitions to compel an accounting and to remove his sister as co-personal representative. The sister consulted with separate counsel but did not expressly discharge the first attorney. The attorney inquired whether it would be ethical to continue representing the brother without the consent of the sister, notwithstanding the potential adversity created by the sister's failure to heed the attorney's advice and consultation with other counsel. The Committee concluded that the attorney was prohibited by Maryland Rule 1.9 from representing the brother in any action against the sister relating to the estate, but that if the sister consented, the attorney could ethically continue to represent both siblings in their joint capacity as co- personal representatives of the estate.

2.3   Rule 2.3 Evaluation for Use by Third Persons

2.3:100   Comparative Analysis of Maryland Rule

Primary Maryland References: MD Rule 2.3
Background References: ABA Model Rule 2.3, Other Jurisdictions
Commentary:

2.3:101      Model Rule Comparison

Maryland Rule 2.3 and MR 2.3 and their accompanying comments (MD Rule 2.3, cmt. and MR 2.3, cmt.) are substantively identical.

2.3:102      Model Code Comparison

There is no counterpart to Maryland Rule 2.3 in the Model Code.

2.3:200   Undertaking an Evaluation for a Client

Primary Maryland References: MD Rule 2.3
Background References: ABA Model Rule 2.3, Other Jurisdictions
Commentary: ABA/BNA 71:701, ALI-LGL 152, Wolfram 13.4

There are no reported Maryland cases or Ethics Opinions relating to an attorney's ethical obligation to a third party under Maryland Rule 2.3. The comment to the Rule may be helpful; there it is made clear that an "evaluation may be performed at the client's direction but for the primary purpose of establishing information for the benefit of third parties." For example, Maryland Rule 2.3 applies to (1) title opinions rendered at the vendor's request for the benefit of the purchaser or borrower's lender, (2) evaluations for government agencies, and (3) due diligence investigations for third party purchasers of a business. MD Rule 2.3, cmt.

2.3:300   Duty to Third Persons Who Rely on Lawyer's Opinion [see also 1.1:420]

Primary Maryland References: MD Rule 2.3
Background References: ABA Model Rule 2.3, Other Jurisdictions
Commentary: ABA/BNA 71:701, ALI-LGL 152, Wolfram 13.4.4

There are no reported Maryland cases or Ethics Opinions relating to Maryland Rule 2.3. According to the comment, whether an attorney owes a legal duty to third parties based on conduct covered by this Rule is "beyond the scope" of the Rule. But, for a good discussion of Maryland law governing attorney liability to third parties, see Ferguson v. Cramer, 349 Md. 760 (1998) (beneficiaries of a will did not have standing to sue personal representative's attorney); Noble v. Bruce, 349 Md. 730 (1998) (nonclient testamentary beneficiary could not bring malpractice action against attorney for negligent estate planning advice to testator or negligent drafting of will where there was no privity between beneficiary and attorney and third party beneficiary theory deemed inapplicable); and Flaherty v. Weinberg, 303 Md. 116 (1985) (third party beneficiary theory is sole exception to strict privity otherwise required for action for attorney malpractice).

2.3:400   Confidentiality of an Evaluation

Primary Maryland References: MD Rule 2.3
Background References: ABA Model Rule 2.3, Other Jurisdictions
Commentary: ABA/BNA 71:701, ALI-LGL 152, Wolfram 13.4.3

There are no reported Maryland cases or Ethics Opinions relating to Maryland Rule 2.3. The comment to the Rule may be helpful. The comment distinguishes between an "evaluation" and an "investigation." MD Rule 2.3, cmt. An evaluation is performed by a lawyer who has been retained by the person whose affairs are being examined. In that scenario, the "general rules concerning loyalty to client and preservation of confidences apply." Id. On the other hand, an investigation, performed by an attorney representing a third party (the State for example) is not encompassed within the scope of Maryland Rule 2.3, and the rules concerning client confidentiality do not apply to the lawyer and the investigated party. Accordingly, the comment stresses that it is important to identify by whom the lawyer is retained and to fully disclose to all concerned to whom the attorney is loyal. MD Rule 2.3, cmt.

2.4   Rule 2.4 Lawyer Serving as a Third-Party Neutral

2.4:100   Comparative Analysis of Maryland Rule

Primary Maryland References:
Background References: ABA Model Rule 2.4, Other Jurisdictions
Commentary:

MR 2.4 was added in February 2002. The Reporter's explanation of the change reads as follows:

The role of third-party neutral is not unique to lawyers, but the Commission recognizes that lawyers are increasingly serving in these roles. Unlike nonlawyers who serve as neutrals, lawyers may experience unique ethical problems, for example, those arising from possible confusion about the nature of the lawyer's role. The Commission notes that there have been a number of attempts by various organizations to promulgate codes of ethics for neutrals (e.g., aspirational codes for arbitrators or mediators or court enacted rules governing court-sponsored mediators), but such codes do not typically address the special problems of lawyers. The Commission's proposed approach is designed to promote dispute resolution parties' understanding of the lawyer-neutral's role.

2.4:101      Model Rule Comparison

Maryland has not adopted the new model rule.

2.4:200   Definition of "Third-Party Neutral"

Primary Maryland References:
Background References: ABA Model Rule 2.4, Other Jurisdictions
Commentary:

Maryland has not adopted the new model rule.

2.4:300   Duty to Inform Parties of Nature of Lawyer's Role

Primary Maryland References:
Background References: ABA Model Rule 2.4, Other Jurisdictions
Commentary:

Maryland has not adopted the new model rule.

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