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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VII. INFORMATION ABOUT LEGAL SERVICES

7.1   Rule 7.1 Communications Concerning a Lawyer's Services

7.1:100   Comparative Analysis of Maryland Rule

Primary Maryland References: MD Rule 7.1
Background References: ABA Model Rule 7.1, Other Jurisdictions
Commentary:

7.1:101      Model Rule Comparison

Maryland Rule 7.1 and MR 7.1 are substantively identical. There are some minor differences in the comment sections to the rules (MD Rule 7.1, cmt., MR 7.1, cmt.). The first sentence in the comment to Maryland Rule 7.1 expands the scope of the rule to include not only advertising but "direct personal contact with potential clients permitted by Maryland Rule 7.2 and 7.3." In addition, the comment to Maryland Rule 7.1 adds a paragraph that provides additional examples of false and misleading advertising.

7.1:102      Model Code Comparison

This section has not yet been completed.

7.1:200   Lawyer Advertising--In General

Primary Maryland References: MD Rule 7.1
Background References: ABA Model Rule 7.2, Other Jurisdictions
Commentary:

To the consternation of many members of the Maryland Bar, Maryland's personal injury lawyers were in the forefront of lawyer advertising on television, and were ranked among the top spenders on television commercials. Late night television commercials invited, "Let's talk about it," (Stephen L. Miles, Esquire) and reminded viewers: "If you have a phone, you have a lawyer." (Saiontz & Kirk, P.A.) Early commercials spawned a host of jingles and slogans in radio ads and television commercials by lawyers who advised that, in certain circumstances, the viewer might be entitled to damages for injuries sustained in-utero, in the workplace, from medication, and so on.

By the terms of Maryland Rule 7.1, a lawyer may communicate about his services as long as the content of the communication is truthful and neither misleads nor creates false expectations.

Maryland Rule 7.1, as the comment to it states, "governs all communications about a lawyer's services." More narrowly, Rules 7.2 and 7.3 deal, respectively, with advertising and direct personal contact with potential clients. The clarion note sounded by Maryland Rule 7.1 is that all communications concerning a lawyer's services "should be truthful," See MD Rule 7.1, cmt. To that end, Maryland Rule 7.1 prohibits misleading communications. See Petition for Use of Trade Name, 333 Md. 488, 492 (1994).

7.1:210      Prior Law and the Commercial Speech Doctrine

A change in policy with respect to lawyer advertising and solicitation developed in the wake of Bates v. State Bar, 433 U.S. 350 (1977). Clearly, that case wrought a "change of policy." Attorney Grievance Comm'n v. Willis, 348 Md. 633, 641 (1998). Efforts to curtail solicitations and advertising have been rejected. See, e.g., Ficker v. Curran, 119 F.2d 1150 (4th Cir. 1997). The evolution of the commercial free speech doctrine has been chronicled in a series of opinions by the Maryland Attorney General. See, e.g., Opinion 94-056, 1994 Md. Att'y Gen. LEXIS 56; 70 Op. Att'y Gen. 43 (1985); 63 Op. Att'y Gen. 3 (1978); 62 Op. Att'y Gen. 256 (1977).

7.1:220      False and Misleading Communications

Maryland Rule 7.1(a) bans a lawyer's communication that "contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading."

In Attorney Grievance Commission v. Ficker, 319 Md. 305 (1990), the Court of Appeals of Maryland held that a newspaper advertisement targeting "palimony suits against wealthy men" was tasteless but not a false and misleading communication under Maryland Rule 7.1. The court reasoned that because a cause of action for "palimony" within its broad definition had been recognized in Maryland, the attorney had not advertised falsely or mislead anyone. 319 Md. at 322.

A member of the District of Columbia bar who conducted real estate settlements for a Maryland title company could not hold himself out as a "settlement attorney" in Maryland because the attorney was not licensed in Maryland. MSBA Eth. Op. 98-17 (1998).

An attorney may use a web page to advertise legal services, if the web site contents do not violate Maryland Rule 7.1. For example, the web page should clearly indicate the states in which the attorney is licensed to avoid misleading out-of-state browsers regarding where the attorney may practice. MSBA Eth. Op. 97-26 (1997).

A group of independent lawyers who on occasion work together on a case may not use the phrase "Affiliated with the Smith Law Group," on its firm letterhead because the phrase implies that the Smith Law Group is a partnership when, in fact, it is not. The implication of a partnership, therefore, would violate Maryland Rule 7.1 as well as Maryland Rule 7.5(d). See also ABA Formal Op. 94-388, which concluded that use of the words "associated," "affiliated," "correspondent," or "network" without explanation in a firm name, on letterhead, or otherwise, could be misleading and should be used only subject to ABA guidelines. MSBA Eth. Op. 96-49 (1996). Compare, MSBA Eth. Op. 88-10 (1988). Attorneys sharing office space may not advertise their location in a way that would lead potential clients to believe that they are in partnership. For example, a listing of attorneys under the title "law offices" at a certain location would likely violate Maryland Rule 7.1.

An attorney may designate on business cards and letterhead the designation "of counsel" to a law firm. In addition, an attorney trading as a "P.C." must so indicate on both the letterhead and business cards to avoid making a misleading communication about the nature of the practice. MSBA Eth. Op. 96-33 (1996).

A lawyer who engages in lobbying activities may send out announcements concerning his law practice and reference the legislative representation as an area of practice. MSBA Eth. Op. 95-25 (1995).

A communication may create unjustifiable expectations when it suggests that a prospective client may receive results similar to those the lawyer obtained for a previous client. MSBA Eth. Op. 91-35 (1991). The Maryland State Bar Association Committee on Ethics reviewed a solicitation letter that was sent by a law firm to property owners notifying them that their property may have been overassessed for tax purposes by the State of Maryland. The law firm stated it had previously been in "dozens of real estate tax appeal matters," and could help the property owners. Attached to the letter were three examples of "actual tax savings" resulting from the efforts of the law firm, as well as a proposed retainer agreement. The Committee on Ethics stated that the letter violated Maryland Rule 7.1 because it was misleading in at least two respects: (i) it would lead the recipient to mistakenly believe that he or she could receive similar tax savings; and (ii) the retainer agreement did not disclose that the client could be responsible for expenses associated with the tax appeal. MSBA Eth. Op. 91-35 (1991).

The Committee on Ethics addressed a similar set of facts in MSBA Eth. Op. 88-48 (1988). A solicitation letter to an organization referred to the attorney's employment history and the amount of two recent favorable jury verdicts. The letter stated that the information concerning the jury verdicts was provided to the organization solely for the purpose of providing "a barometer" by which it could judge the attorney's abilities. The Committee opined that the amount of the jury verdict, without more information, was "not necessarily a measure of competency," and could create unjustifiable expectations in violation of Maryland Rule 7.1(b). Id.

7.1:230      Creating Unjustifiable Expectations

Maryland Rule 7.1(b) prohibits a lawyer's communications that "create an unjustified expectation about results the lawyer can achieve." Consequently, see MSBA Eth. Op 98-19 (1998). A disclaimer relating to language in an attorney's brochure concerning his "record" in a specific field must be printed in the brochure. Making the disclaimer in a cover letter that accompanies the brochure may cause the contents of the brochure to create unjustifiable expectations.

A lawyer, however, does not commit a per se violation of Maryland Rule 7.1. by publicizing a recent litigation victory, if the client consents. MSBA Eth. Op. 97-28 (1997).

The Maryland State Bar Association Committee on has also concluded that a law firm that represented several property owners in the path of a proposed new road, could contact other non-client affected property owners in an effort to obtain additional clients who would share in the associated litigation costs. The Committee stated that written solicitation of the property owners was permissible in light of Shapero v. Kentucky Bar Association 486 U.S. 466, 108 S. Ct. 1916 (1988), as long as the content complied with Maryland Rule 7.1. MSBA Eth. Op. 89-50 (1989).

On the other hand, several proposed ads or solicitations have been rejected as violative of Maryland Rule 7.1(b). See, e.g., MSBA Eth. Op. 95-18 (1995) (proposed advertisement that questioned "Were you arrested?", followed by the phrase "If your life depends on it. . . call us!" was deemed likely to create unjustified expectations that the attorney would be able to achieve a specific result on behalf of a person who has been arrested.) See also MSBA Eth. Op. 91-16 (1991) (the use of client testimonials in advertisements also was held likely to create "unjustified expectations" in violation of Maryland Rule 7.1(b)) and MSBA Eth. Op. 88-48 (1988 (a solicitation letter relating to the amount of the jury verdict, without more information, was "not necessarily a measure of competency," and could create unjustifiable expectations in violation of Maryland Rule 7.1(b)).

7.1:240      Comparison with Other Lawyers

Maryland Rule 7.1(c) bars communications that compare a lawyer's services with another lawyer's services "unless the comparison can be factually substantiated." There are no reported cases or Ethics Opinions on this topic.

7.2   Rule 7.2 Advertising

7.2:100   Comparative Analysis of Maryland Rule

Primary Maryland References: MD Rule 7.2
Background References: ABA Model Rule 7.2, Other Jurisdictions
Commentary:

7.2:101      Model Rule Comparison

Maryland Rule 7.2(a) is slightly different from MR 7.2(a), in that the last clause in paragraph (a) of the Maryland rule states that legal advertising is permitted "through communications not involving in person contact." The same clause in MR 7.2(a) permits legal advertising "through written or recorded communication." Maryland Rule 7.2 (b) and MR 7.2(b) differ only in that the Maryland Rule requires the lawyer to maintain a copy of the advertising for three years, whereas the Model Rule requires that a copy of the advertisement be kept for only two years.

Maryland Rule 7.2(c) and MR 7.2(c) are substantially the same, except that MR 7.2(c) includes a sub-paragraph (3) which allows a lawyer to "pay for a law practice in accordance with MR 1.17." (The Maryland Rules do not include a Maryland Rule 1.17.)

Maryland Rule 7.2 (d) and MR 7.2(d) are substantively identical.

Maryland Rule 7.2 also includes paragraphs (e) and (f), which are not included in the Model Rule. Maryland Rule 7.2(e) requires that if an advertisement indicates that no fee will be charged in the absence of recovery, it must also disclose whether the client will be held liable for expenses. Maryland Rule 7.2(f) requires that any lawyer, including a participant in an advertising group or lawyer referral service or other program, "shall be personally responsible for compliance with the provisions of Rules 7.1, 7.2, 7.3, 7.4 and 7.5 . . . ."

The comment sections of each rule (MD Rule 7.2, cmt.; MR 7.2, cmt.) are substantively similar, except to the extent that the differences in the Rules, discussed above, are reflected.

7.2:102      Model Code Comparison

With regard to paragraph (a), DR 2-101(B) provides that a lawyer "may publish or broadcast, subject to DR 2-103, . . . in print media . . . or television or radio . . . ."

With regard to paragraph (b), DR 2-101(B) provides that if the advertisement is "communicated to the public over television or radio, . . . a recording of the actual transmission shall be retained by the lawyer."

With regard to paragraph (c), DR 2-103(C) provides that a lawyer "shall not compensate or give anything of value to a person or organization to recommend or secure his employment . . . except that he may pay the usual and reasonable fees or dues charged by any organization listed in DR 2-103(D)." (DR 2-103(D) refers to legal aid and other legal services organizations.) DR 2-101(I) provides that a lawyer "shall not compensate or give anything of value to representatives of the press, radio, television, or other communication media in anticipation of or in return for professional publicity in a news item."

There is no counterpart to paragraph (d) in the Model Code.

There is no counterpart to paragraph (e) in the Model Code.

7.2:200   Permissible Forms of Lawyer Advertising

Primary Maryland References: MD Rule 7.2(a)
Background References: ABA Model Rule 7.2(a), Other Jurisdictions
Commentary: ABA/BNA 81.201, Wolfram 14.2

Maryland Rule 7.2 authorizes advertising through "public media" and specifies, as proper, ads in "a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television advertising" but precludes, as improper, communications involving personal contact.

In Attorney Grievance Commission v. Gregory, 311 Md. 522 (1988), which was decided under the predecessor Maryland Code of Professional Responsibility, the attorney was suspended from the practice of law for 90 days for engaging in prohibited in-person solicitations. The attorney would follow criminal defendants from the courtroom, speak to them briefly, and hand them a form letter that offered his legal services. This practice is also prohibited under the current rules.

Direct mail solicitations are not prohibited as long as the content does not violate the guidelines in Maryland Rules 7.1 - 7.5. Note, however, that the constitutionality of Maryland Rule 7.3(b)(1) has been questioned. MSBA Eth. Op. 98-24 (1998). See Unnamed Attorney v. Attorney Grievance Comm'n, 313 Md. 357 (1988).

Direct mail solicitations to people who have been charged with a criminal/traffic offense are not per se violations, even if a target client has already retained counsel. MSBA Eth. Op. 98-33 (1998).

A real estate salesperson may not disclose, during cold calls to solicit real estate business, that he is also an attorney. However, that information may be included in direct mail advertising. MSBA Eth. Op. 95-10 (1995).

An attorney may purchase a license to use the phone number 1-800-COLLISION, and the like. MSBA Eth. Op. 95-27 (1995).

Attorneys also are not prohibited from purchasing prepared advertisements, such as television commercials, together with the right to use an 800 number such as "1-800-4-INJURY." The phone calls would ring directly to the subscribing attorney's office, whose name would appear in the commercial. The Committee on Ethics cautioned, however, that the compensation paid to the advertising agency must be a flat rate that is not dependent on the amount of fees generated by the advertisements. MSBA Eth. Op. 90-46 (1990).

An attorney may place business cards in a card holder and prominently display it at a business location other than the attorney's office. MSBA Eth. Op. 91-36 (1991). An attorney or an attorney's employee may place written advertisements on the windshields of automobiles in parking lots, as long as there is no in-person contact in making the distributions. MSBA Eth. Op. 87-2 (1987).

An attorney may advertise the areas of law in which the attorney has been certified as a specialist, as well as areas of non-legal expertise (such as a CPA degree) that may directly reflect on the attorney's ability to serve clients. MSBA Eth. Op. 90-36 (1990).

During the course of litigation alleging fraudulent inducement to purchase a franchise, the attorneys discovered that approximately fifty-percent of the franchised businesses had failed. The attorneys proposed to send a letter to the franchisees, who had sustained economic losses, advising them that they may have a cause of action against the company depending upon certain circumstances. The attorneys would offer to discuss the matter with the franchisees at no charge. The Committee on Ethics opined that the proposed contact was permissible, but cautioned the attorneys to retain copies of any of the communications pursuant to Maryland Rule 7.2(b). MSBA Eth. Op. 89-20 (1989). [See 7.2:300.]

7.2:300   Retaining Copy of Advertising Material

Primary Maryland References: MD Rule 7.2(b)
Background References: ABA Model Rule 7.2(b), Other Jurisdictions
Commentary: ABA/BNA 81:401, Wolfram 14.2

Maryland Rule 7.2(b) requires that an attorney keep a copy of advertising material and a record of "when and where it was used" for three years after its last dissemination.

An attorney proposed to write a column in newsletters published by retirement communities and nursing homes on topics relating to estate planning. The attorney would not be paid for the articles. The Committee on Ethics opined that the proposed newsletter would not violate the Rules, but cautioned the attorney that if the column "is advertising," a record of the newsletters should be kept for at least three years, along with a record of where and when it was used. In addition, the newsletters must include the name of at least one attorney who is responsible for its content. MSBA Eth. Op. 89-22 (1989).

7.2:400   Paying to Have Services Recommended

Primary Maryland References: MD Rule 7.2(c)
Background References: ABA Model Rule 7.2(c), Other Jurisdictions
Commentary: ABA/BNA 81.301, Wolfram 14.2

Under Maryland Rule 7.2(c), a lawyer may not "give anything of value to a person for recommending the lawyer's services . . . ."

This Rule was discussed at length in Attorney Grievance Comm'n v. Wills, 348 Md. 633 (1998), where the petition for disciplinary action was dismissed. During the course of the opinion, Judge Rodowsky wrote, for the Court of Appeals, that while "a lawyer may not hire" a person to "solicit on behalf of the lawyer," 348 Md. at 640, a lawyer would not be disciplined for hiring an individual to "market" the lawyer or firm. Id. at 641-2. Specifically:

In Rule 7.2(c) the prohibited "recommending" of the lawyer's services by one to whom the lawyer has given something of value cannot include permissible advertising. . . . "However, the assistant would always act for the lawyer and the employing attorney would be responsible for any actions of the assistant which violated the professional rules of ethics or statutes of the state. This responsibility includes the duty to train and supervise the assistant."

Id. at 641 (quoting F.C. Moss, The Ethics of Law Practice Marketing, 61 Notre Dame L. Rev. 601, 693 (1986)).

In Wills, 348 Md. 633, the Court of Appeals held that a paralegal's "unreasonable compensation" of $80,000.00 a year in and of itself was not enough evidence of a violation of Maryland Rule 7.2(c). The paralegal was hired by a divorce/criminal defense attorney on the basis of her assurances that she could help him establish a successful personal injury practice because of her substantial experience and contacts in that area. Announcements were sent to, among others, approximately 100 former personal injury clients of the paralegal's previous employer. The trial court had ruled that the $80,000.00 annual salary paid to the paralegal was akin to fees paid to "runners" or "bird dogs" for referrals, which were prohibited by Maryland Rule 7.2(c). The trial court reasoned that the paralegal "brought no specific qualifications that would justify such an exorbitant compensation package; thus, it is clear that she was being compensated for her services in bringing in clients." Wills, 348 Md. at 639. The Court of Appeals disagreed, finding that the trial court's conclusion was not supported by the evidence; for example, no evidence had been introduced to establish "reasonable compensation" for a paralegal in the geographic area. This case raised other civil and criminal causes of action, which were addressed in other proceedings. Wills, 348 Md. at 642.

Maryland Rules 7.2(c) and 7.3(a) prohibit a bail bondsman and an attorney from laminating their business cards back to back and distributing them to the public. The Committee on Ethics opined that the proposal had the effect of an exchange of value between the attorney and bail bondsman. MSBA Eth. Op. 98-30 (1998). In addition, the bail bondsman may not solicit clients for the attorney by means that the attorney is prohibited from employing. Id. Further, an attorney may not perform legal services at a nominal rate for a bail bondsmen in consideration of client referrals to the attorney. MSBA Eth. Op. 90-6 (1990).

A non-legal corporation offered a training program on how to set up small businesses. The corporation could not ethically refer students to outside attorneys with whom the corporation had arranged for the preparation of corporate documents at a reduced fee. The Committee on Ethics opined that the discounted fee agreement would be used as an inducement by the corporation to increase enrollment and profits. MSBA Eth. Op. 95-37 (1995). The attorneys, therefore, would be providing the corporation with "value" in return for the referrals. In addition, even if there was no discounted fee agreement, referrals to attorneys raised other concerns such as risk of compromise of the attorney's independent judgement, client confusion as to the provider of services, potential loss of confidentiality, and the issue of sharing of fees with non-lawyers. Id.

An attorney may participate in a lawyer referral service only if the service is operated by a "not for profit" organization. MSBA Eth. Op. 95-35 (1995). See also MSBA Eth. Ops. 95-11; 92-28; 88-65; 87-41; 87-17. Thus, an organization that proposed to charge an "advertising fee" to an attorney for each client obtained through the referral service was actually an illegal referral fee prohibited by Maryland Rule 7.2(c) . MSBA Eth. Op. 95-35 (1995).

Payment of a flat "monthly fee" to an organization that advertised an "injury help line" that referred callers to a local subscribing attorney also violated Maryland Rule 7.2(c). MSBA Eth. Op. 87-41 (1987). However, a group of independent attorneys may establish a joint advertising program whereby the person handling phone calls would refer to callers to a participating attorney based on a predetermined criteria, such as the caller's address. MSBA Eth. Op. 88-65 (1988). The Committee cautioned, however, that the advertisement must contain the name of at least one of the individual lawyers rather than a group name such as "The Litigation Group." [See also 7.2:200 for a discussion of MSBA Eth. Op. 90-46 (1990).]

In MSBA Eth. Op. 95-14 (1995), the Committee opined that an attorney who owns a collection agency may not provide "free legal services" for the collection agency's customers, because the donation of legal services would be for the obvious purpose of "feeding" the collection agency and the attorney would therefore, in effect, receive a fee in the form of additional profits.

7.2:500   Identification of a Responsible Lawyer

Primary Maryland References: MD Rule 7.2(d)
Background References: ABA Model Rule 7.2(d), Other Jurisdictions
Commentary: ABA/BNA 81.201, 81:301, Wolfram 14.2

Use of a generic trade name is prohibited. Maryland Rule 7.2(d) requires that the name of at least one of the attorneys be identified in any "trade name" or advertisement. MSBA Eth. Op. 91-10 (1991).

In addition, a newsletter column that is considered advertising must include the name of at least one attorney who is responsible for its content. MSBA Eth. Op. 89-22 (1989).

7.3   Rule 7.3 Direct Contact with Prospective Client

7.3:100   Comparative Analysis of Maryland Rule

Primary Maryland References: MD Rule 7.3
Background References: ABA Model Rule 7.3, Other Jurisdictions
Commentary:

7.3:101      Model Rule Comparison

There are numerous substantial differences between Maryland Rule 7.3 and MR 7.3. MR 7.3(a) prohibits in-person or telephone contact with a prospective client for solicitation of employment if a lawyer has no family or prior professional relationship with the prospective client when a significant motive for the contact is the lawyer's pecuniary gain. Maryland Rule 7.3(a), on the other hand, permits a lawyer to initiate in-person contact with a prospective client:

(1)   if the prospective client is a close friend, relative, former client or one whom the lawyer believes to be a client;

(2)   under the auspices of a public or charitable legal services organization; or

(3)   under the auspices of a bona fide political, social, civic, fraternal, employee or trade organization whose purposes include but are not limited to providing or recommending legal services, if the legal services are related to the principal purposes of the organization.

Maryland Rule 7.3(b)(2) and (3) are substantively identical to MR 7.3(b)(1) and (2). The Model Rule does not have a counterpart to Maryland Rule 7.3(b)(1), which prohibits in-person contact or communication if "the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer. . . ."

MR 7.3(c) and (d) do not have counterparts under Maryland Rule 7.3.

The comment sections (MR 7.3, cmt.; MD Rule 7.3, cmt.) accompanying each Rule are also substantially different from one another. The Maryland comment contains only two paragraphs, the latter of which concerns the prohibition against in-person contact because the prospective client's physical, emotional or mental state is not conducive to making a reasonable judgment in employing a lawyer. As stated above, this Rule is not included in MR 7.3. In contrast to Maryland's comment, which consists of only two paragraphs, the comment section to MR 7.3 is eight paragraphs long.

7.3:102      Model Code Comparison

DR 2-104(A) provides, with certain exceptions, that "[a] lawyer who has given in person unsolicited advice to a layperson that he should obtain counsel or take legal action shall not accept employment resulting from that advice . . . ." The exceptions include DR 2-104(A)(1), which provides that a lawyer "may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one who the lawyer reasonably believes to be a client." DR 2-104(A)(2)-(5) provide other exceptions relating, respectively, to employment resulting from public educational programs, recommendation by legal assistance organizations, public speaking or writing and representing members of a class in class action litigation.

7.3:200   Prohibition of For-Profit In-Person Solicitation

Primary Maryland References: MD Rule 7.3(a)
Background References: ABA Model Rule 7.3(a), Other Jurisdictions
Commentary: ABA/BNA 81:2001, Wolfram 14.2.5

Maryland Rule 7.3 circumscribes and clearly limits an attorney's initiation of in person contact with a prospective client. The Court of Appeals, however, in Unnamed Attorney v. Attorney Grievance Commission, 313 Md. 357, 368, 545 A.2d 685, 692 (1988), emphasized that the Rule's scope beyond solicitation has "questionable validity."

An attorney may not establish a pro bono debt counseling clinic as a source of for profit referrals. MSBA Eth. Op. 98-15 (1998). An attorney who "lures" potential clients to his law office with the offer of free credit counseling service may not then pick among those clients to offer services for hire in violation of Maryland Rule 7.3(a). Id.

A lawyer's spouse, who is a real estate agent, may not act as the lawyer's agent to solicit prospective clients for the lawyer. MSBA Eth. Op. 96-26 (1996).

A financial planner and an attorney proposed to make the attorney available to the clients of the financial planner for estate planning advice. MSBA Eth. Op. 95-39 (1995). The financial planner would schedule the appointments in his office and would attend all meetings. No fees would be exchanged between the attorney and financial planner. The Committee on Ethics opined that although not a per se violation of the Rules, the proposal was "fraught with the potential for violations" under several Rules. Moreover, the proposal could violate Maryland Rule 7.3(a), because an attorney may not use a non-attorney to initiate in-person contact with a prospective client.

An attorney is not automatically prohibited from sending solicitation letters to persons whose names appear on a public list of newly filed foreclosure actions. Repeated correspondence to the same addressees, however, may cross the line from permissible contact to harassment or over-reaching. This also applies to persons identified in other public notices, such as recorded judgments. MSBA Eth. Op. 93-27 (1993).

An attorney may not randomly hand out legal services brochures to employees at the entrance and exit gates of a company, if even the attorney does not speak with the employees. MSBA Eth. Op. 87-2 (1987).

7.3:210      Solicitation by Non-Profit Public Interest Organization

Maryland Rule 7.3 provides an exception from the prohibition of in-person solicitation in situations where harassment and over-reaching by attorneys is less likely to occur, for example, where there is a prior family or professional relationship. In addition, the free association clause of the First Amendment protects solicitation of individuals in need of legal services who are served by legal service organizations. MSBA Eth. Op. 88-48 (1988).

Employees of a not-for-profit legal services program may notify homeowners that they may have claims against a home improvement contractor accused of illegal practices. They also may initiate follow-up telephone calls to the homeowners to discuss their rights. The telephone calls may be made by either legal or non-legal employees of the non-profit organization, who may offer the homeowners the opportunity to consult with an attorney associated with the organization. MSBA Eth. Op. 90-46 (1990).

7.3:220      Solicitation of Firm Clients by a Departing Lawyer

There are no reported Maryland cases or Ethics Committee opinions on this topic in the context of Maryland Rule 7.3.

7.3:300   Regulation of Written and Recorded Solicitation

Primary Maryland References: MD Rule 7.3(b)
Background References: ABA Model Rule 7.3(b), Other Jurisdictions
Commentary: ABA/BNA 81:2001, Wolfram 14.2.5

Effective October 1, 1998 restraints are placed on mailed, audio, video, faxed, and other co communications by an attorney if the communication "concerns" either "personal injury or wrongful death or otherwise relates to an accident or disaster" or "a criminal prosecution" or an "incarcerable traffic violation. Ch. 478, 1998 Laws of Maryland. Communications that fall into those categories are required to "include the words 'this is an advertisement' in a prominent place at the beginning and end of each communication." Further, if the communication is mailed, the requisite language must appear "on the outside of the envelope." Other precise constraints are placed on these categories of communications. The new law will be codified as Maryland Code Ann., Bus. Occ. & Prof. 10-605.2.

[See 7.2:300 regarding the retention of advertising material.] There are no additional regulations governing solicitation by attorneys.}

7.3:400   Disclaimers for Written and Recorded Solicitation

Primary Maryland References:
Background References: ABA Model Rule 7.3(c), Other Jurisdictions
Commentary: ABA/BNA 81:401, Wolfram 14.2.5

[See 7.1:230 for a discussion of MSBA Eth. Op. 98-19 (1998); and Section 7.3:300 for limitations on solicitation in certain types of cases.]

7.3:500   Solicitation by Prepaid and Group Legal Services Plans

Primary Maryland References:
Background References: ABA Model Rule 7.3(d), Other Jurisdictions
Commentary: ABA/BNA 81:2501, Wolfram 16.5.5

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

7.4   Rule 7.4 Communication of Fields of Practice

7.4:100   Comparative Analysis of Maryland Rule

Primary Maryland References: MD Rule 7.4
Background References: ABA Model Rule 7.4, Other Jurisdictions
Commentary:

7.4:101      Model Rule Comparison

Maryland Rule 7.4 is substantively similar to MR 7.4, with the significant exception that the Maryland Rule does not provide any exceptions to a lawyer's designation as a "specialist." MR 7.4(c) provides exceptions to the general prohibition against a lawyer's designation as a "specialist." Maryland Rule 7.4 does not expressly allow for patent and maritime designations as permitted by MR 7.4(a) and (b). But Maryland Rule 7.4 does not expressly prohibit such designations, nor is there any known instance in which Maryland has prohibited such designations.

7.4:102      Model Code Comparison

Maryland Rule 7.4 is substantially the same as former DR 2-105.

7.4:200   Regulation of Claims of Certification and Specialization

Primary Maryland References: MD Rule 7.4
Background References: ABA Model Rule 7.4, Other Jurisdictions
Commentary: ABA/BNA 21:4001, 81:501, Wolfram 14.2.4

There are no Maryland cases or MSBA Ethics Committee Opinions on this subject. Note, however, that more than a decade ago, the MSBA voted down a proposal that would have allowed a lawyer to identify specialized practices.

7.5   Rule 7.5 Firm Names and Letterheads

7.5:100   Comparative Analysis of Maryland Rule

Primary Maryland References: MD Rule 7.5
Background References: ABA Model Rule 7.5, Other Jurisdictions
Commentary:

7.5:101      Model Rule Comparison

Maryland Rule 7.5 and MR 7.5 are substantively identical. However, Maryland has considerably expanded its comment. It is six paragraphs longer than the comment accompanying MR 7.5. The Maryland comment permits a law firm name to contain the names of deceased, retired and existing members, whereas the comment to MR 7.5 does not expressly permit a law firm to use the proper name of a retired member.

7.5:102      Model Code Comparison

With regard to paragraph (a), DR 2-102(A) provides that "[a] lawyer . . . shall not use . . . professional announcement cards . . . letterheads, or similar professional notices or devices, except . . . if they are in dignified form . . . ." DR 2-102(B) provides that "[a] lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm except that . . . a firm may use as . . . its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession."

With regard to paragraph (b), DR 2-102(D) provides that a partnership "shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however, the same firm name may be used in each jurisdiction."

With regard to paragraph (c), DR 2-102(B) provides that "[a] lawyer who assumes a judicial, legislative, or public executive or administrative post or office shall not permit his name to remain in the name of a law firm . . . during any significant period in which he is not actively and regularly practicing law as a member of the firm. . . ."

7.5:200   Firm Names and Trade Names

Primary Maryland References: MD Rule 7.5(a)
Background References: ABA Model Rule 7.5(a), Other Jurisdictions
Commentary: ABA/BNA 81:3001, Wolfram 14.2.4

[See Sections 7.2:400, 7.2:500]

7.5:300   Law Firms with Offices in More Than One Jurisdiction

Primary Maryland References: MD Rule 7.5(b)
Background References: ABA Model Rule 7.5(b), Other Jurisdictions
Commentary: ABA/BNA 81:3001, Wolfram 15.4

There are no Maryland cases or Ethics Opinions discussing this topic. There are no reported cases or MSBA Ethics Committee Opinions relating to this aspect of Rule 7.5.

7.5:400   Use of the Name of a Public Official

Primary Maryland References: MD Rule 7.5(c)
Background References: ABA Model Rule 7.5(c), Other Jurisdictions
Commentary: ABA/BNA 81:3001, Wolfram 14.2.4

There are no Maryland cases or Ethics Opinions discussing this topic. There are no reported cases or MSBA Ethics Committee Opinions relating to this aspect of Rule 7.5.

7.5:500   Misleading Designation as Partnership, etc.

Primary Maryland References: MD Rule 7.5(d)
Background References: ABA Model Rule 7.5(d), Other Jurisdictions
Commentary: ABA/BNA 81:3001, ALI-LGL 79, Wolfram 14.2.4

[See 7.1:220]

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