MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1991-02
Obligation of public defender to clients whose cases were unknowingly assigned to an unlicensed attorney.
The committee on Ethics of the Maryland state Bar Association has considered your recent inquiry and I have been requested to respond to you on behalf of the committee.
Your inquiry indicates that an apparently unlicensed attorney provided services to a county public defender's office. You indicate he was never sworn in the Maryland Bar. These services consisted of supervising third year law students from a local university pursuant to Rule 18 of the Maryland Annotated Code. This Rule states that a supervising attorney means "an attorney who is a member in good standing of the Bar of the state of Maryland . " In addition, the attorney represented approximately seven clients in court. While your letter details that the attorney passed the Maryland Bar Exam, he has never been admitted to the Bar because his law degree was rescinded by his school. He had been enrolled in a joint degree program. Upon completion of the J.D. requirements, he was given a J.D. Diploma. The Registrar of his school then certified to the Maryland Board of Law Examiners that he had graduated from law school.
After passing the Bar Exam, the Registrar of the attorney's school then informed the Maryland Board of Law Examiners since the attorney had not completed the requirements for the degree he had been pursuing jointly with his law degree, it erred in informing the Board that he graduated from law school. It is the school's policy not to allow its students to graduate before successful completion of both degrees.
The attorney then informed the state Bar he would resolve the certification problem with his school. There has been no further communication between the attorney and the state Bar. You indicate that you have informed your clients of the possible violations and of their appellate and post conviction rights and that the Maryland Court of Appeals, the state Board of Law Examiners, and the Attorney Grievance commission are aware of the situation.
You have asked us to render an opinion as to the duties of your office towards your clients. Specifically, you asked if you should inform your clients that they may possibly have civil claims in negligence against the State of Maryland, the university, or the unlicensed attorney?
The Committee opines that you have presently met your responsibilities in accordance with the rules of professional conduct of the Maryland Lawyers' Rules of Professional Conduct, specifically Rule 8.3, Reporting Professional Misconduct (as may be applicable to an unlicensed attorney) and Rule 5.5, Unauthorized Practice of Law, which prohibits a lawyer from assisting a person who is not a member of the Bar in performing activities that constitute the unauthorized practice of law.
Further, it is the opinion of this Committee that in order to comply with Rule 3.3(a) and (b), you have the duty of making the trial courts, before whom the law students or this lawyer appeared, aware of the situation. Since the lawyer was unlicensed, then false representations have been made to the trial courts involved that he was licensed. Subparagraph (b) of the last Rule cited indicates that such duties to correct misrepresentations continue to the conclusion of proceedings and, thus, may be inferred to continue past their conclusion.
The Committee is not aware of any professional duty or ethical requirements on your office to advise the clients affected concerning civil claims. Also, it may be wise to inform them of their rights to seek independent legal advice from private counsel concerning any potential civil claims.
We trust that the foregoing is responsive to your inquiry.
Respectfully submitted,
COMMITTEE ON ETHICS
Steven Rosen, Chair
Hon. Maurice W. Baldwin, Jr.
Arthur C. Elgin, Jr.
Nathan Feinstein
Glen D. Klakring
Jay Morstein
Ira Lee Oring
Paul D. Raschke
Marc G. Rasinsky
James Noel Schuth
Linda D. Schwartz
Robert E. Sharkey
Donald E. Sharpe
Myrna Siegel
Daniel O. C. Tracy, Jr.