Ethics Committee Guidelines

Over many years, the Committee on Ethics of the Maryland State Bar Association, has developed and relied upon a set of Guidelines, the purpose of which has been to delineate the parameters of those matters for which the Committee is responsible and to establish procedures for meeting its responsibilities.

At its November 2001 meeting, the Committee approved a revised set of Guidelines which are intended to address a number of changes that have occurred since 1997, when the Guidelines were last updated. For example, since 1997, the Committee has developed an index of its opinions, making it possible to locate previous Committee opinions by reference to subject matter and specific Rules of the Maryland Rules of Professional Conduct. In addition, with the advent of MSBA’s website, both the index and the Committee’s prior opinions are available online to MSBA members. And since 1997, the Committee has noted an increase in requests for opinions via e-mail, which occasionally omit necessary information that typically are included in a letterhead format.

In the past, the Committee’s Guidelines were used internally by the group’s members. To the knowledge of the present members, the complete Guidelines have never before been published for the general MSBA membership. Instead, specific provisions of the Guidelines were occasionally referred to in Committee opinions or in letters from the Committee’s Chair in order to explain why a specific opinion was limited to certain issues, or in some instances, to explain why the Committee had declined to provide an opinion.

Accordingly, in the course of revising and updating its Guidelines to address the foregoing developments, the Committee concluded that it might be beneficial to both the Committee and the MSBA’s membership to publish the Guidelines in the Bar Bulletin and on the MSBA website. Members of the MSBA are encouraged to retain a hard copy of the current Guidelines for future reference when they have an inquiry to submit to the Committee or require assistance from the assigned members of the Committee hotline. The Guidelines are as follows:

MARYLAND STATE BAR ASSOCIATION, INC. COMMITTEE ON ETHICS GUIDELINES
(Approved as of 11/28/01)

The following principles have been adopted by the Committee on Ethics to govern its operations and activities. These principles have been drawn from the Bylaws of the Maryland State Bar Association, Inc., the Rules of Procedure adopted by the ABA Standing Committee on Ethics and Professional Responsibility and have otherwise evolved over the years from the operations of the Committee on Ethics. With the exception of item number 1, these principles are not intended to be “carved in stone” and the Committee may revise them from time to time.

1. The Committee issues opinions solely on the proper interpretation of the Maryland Lawyers’ Rules of Professional Conduct (the “Rules”). Because the Committee is a standing committee of the Maryland State Bar Association, its opinions are advisory only.

a. The Committee does not issue opinions on questions of law, issues likely to be decided by a Court or tribunal in existing or threatened litigation, or the propriety of past conduct which may be the subject of disciplinary proceedings or litigation (except in connection with prospectively rectifying such conduct).

b. The Committee does not usually issue opinions regarding the conduct of someone other than the person requesting the opinion, but may do so upon the request of a professional organization or a Court having jurisdiction over the conduct, which is the subject of the request.

c. The Committee does not approve proposed advertising copy, fee agreements, or the text of other legal or law-related documents, but may opine whether such materials contain statements or appear to contemplate transactions, which might violate the Rules.

2. The Committee may, in its discretion, issue an opinion on its own initiative or upon the request of a member of the Bar or from a professional organization or a Court, or upon a request from a member of the public.

3. Requests for opinions must be submitted in writing and should be addressed to the Chair of the Committee. Requests may be transmitted by e-mail provided that the e-mail contains the information normally included in business or professional letterhead - for example, the inquirer’s full name; and the name, address and telephone number of the inquirer’s firm or business; and any relevant information re. the inquirer’s licensure.

4. The Committee is not a finder-of-fact, and its opinions are necessarily limited to the facts presented by the inquirer. Consequently, requests for opinions should contain sufficient facts to allow adequate consideration by the Committee.

5. Whether requesting a written opinion of the Committee or oral advice via the “hotline” (see Guideline 8 below), inquirers are strongly encouraged to locate, review and cite any relevant Rules and prior Opinions of the Committee (now indexed and available online via the Bar Association’s website, www.msba.org).

6. Upon receipt, the Chair will promptly acknowledge each request for a written opinion, will assign each request an identifying number and will then assign the request to one or more members of the Committee for the preparation of a draft opinion for consideration by the Committee. Assignments will generally be made on a rotational basis; however, the Chair may take into consideration the urgency, substantive context and complexity of the inquiry, the status of then outstanding assignments, as well as any particular member’s previous authorship of relevant opinions.

7. The Committee will issue an opinion as promptly as circumstances permit, but only after consideration at a meeting and with the concurrence of a majority of the Committee. Opinions will not identify the person requesting the opinion or whose conduct is the subject of the opinion. In most instances, the Committee will restrict its opinions to the facts and issues posed by the inquirer. Members of the Committee may express a dissent or a special concurrence, which will be appended to the opinion upon request. Any new Opinion issued by the Committee overrules any previously issued Opinion to the extent of a conflict.

8. Individual members of the Committee also provide oral advice on the interpretation and application of the Rules through the operation of a telephone hotline service, which advice constitutes the interpretation of the individual member alone and not the opinion of the Committee. (Committee members serving on the hotline rotate each month and their names may be obtained from the Maryland Bar Journal, the Bar Association’s website, www.msba.org or by contacting the Bar Association.) Hotline inquiries should be limited to matters whose simplicity may not warrant a written opinion by the Committee or whose urgency may not allow the Committee time to issue such an opinion. Guidelines 1, 4, and 5, above, apply equally to hotline inquiries. The Committee member receiving the call may advise the inquirer to seek a written opinion from the Committee.

9. Information contained in the Committee’s files relating to requests for opinions which would disclose the identity of the inquirer or the person whose conduct is the subject of the opinion will not voluntarily be disclosed without the consent of the affected persons, unless required by law to do so.