MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1995-04
Unauthorized Practice of Law – business providing support services to lawyer
In your inquiry you ask the opinion of the Committee as to whether a certain hypothetical type of business activity would constitute the unauthorized practice of law or in any way violated any applicable state statute or ethical rule. Your letter describes in detail the hypothetical business, but in essence, it would provide paralegal and secretarial services to small law firms and sole practitioners in various states including Maryland. Those services would be provided at an office other than the lawyer's office, possibly in a state other than Maryland.
The Committee on Ethics issues opinions on the proper interpretation of the Maryland Rules of Professional Conduct. The Committee does not issue opinions on questions of law. Thus, we will not address your inquiry regarding what constitutes the ""unauthorized practice of law"" or provide an interpretation of state statutes other than to point out that Rule 5.5 of the Rules of Professional Conduct makes it unethical for a lawyer to engage in or assist a person who is not a member of the bar to engage in the unauthorized practice of law. (The Maryland statutory provisions regarding the practice of law without admission to the bar are contained in the Business Occupations and Professions Article of the Maryland Annotated Code, d d 10-601, et seq.)
In addition, it is the policy of the Committee to not opine on or approve the details of a proposed business activity, advertising copy, fee agreements or the like. However, should a Maryland lawyer engage the services of the hypothetical business, there are several ethical issues he or she should consider.
The first relates to Rule 1.6, Confidentiality of Information. That rule states, in part, that ""(a) lawyer shall not reveal information relating to representation of a client unless the client consents after consultation…"" The scope of services that would be provided by the hypothetical business would necessarily routinely result in client confidences being revealed to employees of that business. While your letter states that the business would provide the services under the supervision of the client lawyer, the Committee concluded that the consent required by Rule 1.6 would be necessary from every client for whom the lawyer proposed to use its services. (A related legal issue, which the Committee will not address, is whether or not the attorney-client privilege provided by Maryland law would protect client information after being shared with the hypothetical business.)
Another area of concern to the Committee are the rules regarding conflicts of interest. They are set forth in Rules 1.7, 1.8, 1.9 and 1.10 and are too voluminous to reprint in this response. Generally, however, the members of the Committee question whether a Maryland lawyer could adequately supervise an out-of-state, nonemployee secretarial-paralegal staff so as to avoid conflicts.
Finally, the Committee believes that a Maryland lawyer should carefully review Rule 5.3, Responsibilities Regarding Nonlawyer Assistants, before engaging the services of the hypothetical business. In essence, that rule states that a lawyer is responsible for the acts of nonlawyers working under his or her supervision, including independent contractors. The comments following that rule state, in part, that
""(a) lawyer should give such (nonlawyer assistants appropriate instructions and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product.""