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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

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

This section has not yet been completed.

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

This section has not yet been completed.

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

This section has not yet been completed.

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

This section has not yet been completed.

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

This section has not yet been completed.

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

This section has not yet been completed.

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

This section has not yet been completed.

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

This section has not yet been completed.

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

This section has not yet been completed.

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

This section has not yet been completed.

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

This section has not yet been completed.

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

This section has not yet been completed.

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

This section has not yet been completed.

5.4:510      Group Legal Services

This section has not yet been completed.

5.4:520      Nonprofit Organizations Delivering Legal Services

This section has not yet been completed.

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

This section has not yet been completed.

5.5:230      Pro Hac Vice Admission [see also 8.1:240]

This section has not yet been completed.

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

This section has not yet been completed.

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

This section has not yet been completed.

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

This section has not yet been completed.

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