MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1990-37
Paralegal Preparing Wills
Your letter poses the following inquiry. Your client has asked you to advise him on the starting of a new business which would provide simple, standard wills at low cost. Preliminarily the company would provide the client with a one hour interview a trained paralegal for the gathering of relevant information. If legal questions are needed to be answered the paralegal would contact an attorney for legal advice which would be relayed by the paralegal to the client. If no legal advice were needed, the paralegal would incorporate the clients' personal information into a "standard" will form and the company would videotape the signing and witnessing of the will.
The proposed company would not hold itself as offering legal advice and would make it clear that it is only offering assistance in preparing a "standard" will. The purpose of the videotape would be to merely provide a more personal method of reading the will to the heirs once the testator dies.
If legal advice is needed, the company would contact any attorney to disclose the pertinent issues and in turn relay that information to the client. Alternatively, if the conveyance of the attorney's advice to the client by the paralegal is too difficult, the company would refer the client to an attorney for assistance with the will.
You asked that the committee review your proposal and contact you with the committee's opinion.
The committee assumes that your client making this proposal is not a lawyer and therefore is not subject to the Maryland Rules of Professional Conduct. Nor would any paralegal who happened to be in the employ of the proposed business be subject to the Rules of Professional Conduct. The Order of the Court of Appeals, dated April 15, 1986, adopting the Maryland Rules of Professional Conduct provides that "the Maryland Rules of Professional Conduct shall govern the conduct of attorneys from and after said date…" (emphasis added).
However, the Committee is concerned that the proposed activities of the new business would be the unauthorized practice of law. For example, the mere determination of whether or not there are legal questions to be answered is in itself the practice of law. See, Kennedy vs. Bar Association of Montgomery County, Inc., 316 Md. 646. 561 A.2d 208 (1989). The question of whether or not the proposed activity constitutes the unauthorized practice of law, however, is a legal question and the Committee on Ethics does not offer opinions on legal questions.
Your assistance in the establishment of a business that may be engaged in the unauthorized practice of law may be a violation of Rule 5.5 of the Maryland Rules of Professional Conduct. That rule states in part as follows:
"A lawyer shall not:
- practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or
- assist a person who is not a member of the Bar in the performance of activity that constitutes unauthorized practice of law."
If the proposed activities of the new business constitute the unauthorized practice of law then you by providing legal advice to that client may be assisting in that unauthorized activity. Moreover, those lawyers who provide advice to the proposed new business with the knowledge that it is being relayed by a non-attorney to the client of the business may also find themselves in violation of Rule 5.5.