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
Paragraph (b) of the Maryland Rules has no counterpart in the Model Rules. Paragraph (b) deals with an incoming tainted lawyer whose personal disqualification is imputed to the new firm. Whereas the Model Rules address this issue under MR 1.9, specifically MR 1.9(b), Maryland has chosen to address the issue of the incoming tainted lawyer under imputed disqualification.
The comment to Maryland Rule 1.10 is substantially similar to its MR 1.10 counterpart, except that Maryland adds several additional paragraphs. Maryland adds four paragraphs that discuss lawyers moving between firms. It adds a shorter four paragraph section on the issue of confidentiality. Finally, Maryland adds a one paragraph section defining "adverse positions."
Similar to Maryland Rule 1.10, DR 5-105(D) provides that "[i]f a lawyer is required to decline or to withdraw from employment under a Disciplinary Rule, no partner, or associate or affiliate with him or his firm, may accept or continue such employment."
This section has not yet been completed.
Knowledge of one member of a law firm is imputed to other members of that firm. Hence, Maryland Rule 1.10 provides that a conflict of interest for one member of a firm extends to all members.
In Austin v. State, 327 Md. 375 (1992), the Court of Appeals addressed whether a conflict existed when two codefendants were represented by different attorneys from the same firm. In a closed proceeding, outside the presence of the other defendant and his counsel, one codefendant agreed to testify against the other as part of her plea bargain with the state. To protect the testifying defendant, the trial judge imposed a gag order on her attorney, prohibiting him from discussing the case with his law partner. The Court of Appeals held that the gag order adversely affected counsel's representation of the nontestifying defendant, thus requiring reversal of his conviction. 327 Md. at 392-93. In order for the partners to have continued representing codefendants whose interests were directly adverse, a waiver must have been found as in any other case. Id.
However, Maryland Rule 1.10 does not prohibit a firm from representing a client merely because members of the firm will benefit if the other side wins. MSBA Eth. Op. 87-44 (1987). Therefore, a firm is not prohibited from representing a condominium developer against a unit owner's association, in which lawyers in the firm are members. So long as the condominium developer client validly consents, the unit owner's association's objection to the representation is irrelevant. Id. Of course, the unit owner lawyers should not undertake any activity to undermine the unit owner's association's case. Id.
If lawyers merely share office space and are not in partnership with one another, there is no imputation of conflicts. MSBA Eth. Op. 87-43 (1987) . Indeed, lawyers merely sharing office space may represent their respective clients in litigation against one another. Id.
Public defenders, even those who work in the same office, are also not automatically subject to imputed disqualification. In Graves v. State, 94 Md. App. 649, rev'd on other grounds, 334 Md. 30 (1993), Maryland's intermediate appellate court declined to adopt a per se rule that a public defender's office is the same as a private law firm for conflict of interest purposes. Instead, the Graves court offered the following guidance:
[A]ttorneys employed by a public defender who are required to "practice their profession side by side, literally and figuratively" are members of a "firm" for purposes of the rule . . . . [W]here the practice of each attorney is so separate from the other's that the interchange of confidential information can be avoided or where it is possible to create such a separation, there need be no relationship between them analogous to that of a law firm and there would be no inherent ethical bar to their representation of antagonistic interests . . . .
94 Md. App. at 669 (quoting Babb v. Edwards, 400 So. 2d 1239 (Fla. Dist. Ct. App. 1981)). The court held, however, that district offices of the public defender's office are analogous to independent, private law firms to which imputation does not apply. Id. at 670. It further held that adequate screening measures may be taken to avoid the effects of a conflict of interest within the same district office. Id. at 670-71.
Prosecutors, however, are held to a stricter standard than public defenders. The term "firm" includes the County Attorney's Office. MSBA Eth. Op. 89-3 (1989). Likewise, if a member of a law firm acts as a prosecutor for the state by appointment, as a deputy or assistant state's attorney, then lawyers in the same firm may not represent criminal defendants in that state. MSBA Eth. Op. 88-30 (1988). On the other hand, if the lawyer is appointed for a special task and not imbued with all the powers of a state's attorney, then the per se bar does not apply. Id. For example, a private lawyer hired only to prosecute municipal code infractions is not an attorney for the State, but rather the town which employs him. Id. Hence, that lawyer and members of the lawyer's firm would not be barred from representing criminal defendants in the State of Maryland. Id.
Maryland Rule 1.10 does not apply to situations where a lawyer acts as a witness. MSBA Eth. Op. 87-37 (1987). Instead, Maryland Rule 3.7(b) governs such situations. Conversely, Maryland Rule 1.10 applies when an attorney "associated" with a firm is a party to litigation. Indeed, the Committee has opined that this rule applies to "Of Counsel" attorneys. Id. [See also Section 3.7:200, Prohibition of Advocate as Witness.]
Nothing in the Maryland Rules permits a firm to establish a "Chinese wall" to circumvent the proscriptions of Maryland Rule 1.10. MSBA Eth. Op. 89-8 (1989); cf., Austin v. State, 327 Md. 375 (1992) (holding that a court imposed gag order between partners did not cure an imputed conflict). However, if a valid waiver is obtained from the "affected client," the firm should isolate the conflicted lawyer from the matter to avoid any situation where confidential information about the affected client might be inadvertently revealed. MSBA Eth. Op. 89-8 (1989).
No Maryland cases or MSBA Ethics Committee Opinions have addressed this aspect of Maryland Rule 1.10.
Maryland Rule 1.10 merely imputes conflicts; it does not serve as authority for finding a conflict. Thus, client consent must be obtained as in any other case--i.e., as if a single lawyer had a conflict. Austin v. State, 327 Md. 375, 392-93 (1992). However, if a valid waiver is obtained from the "affected client," the firm should isolate the conflicted lawyer from the matter to avoid any situation where confidential information about the affected client might be inadvertently revealed. MSBA Eth. Op. 89-8 (1989).