MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1995-20
Attorneys: Responsibility of attorney to client upon receipt of communication from another attorney claiming to represent client on same matter
In your letter, you advise that you represented two elderly sisters in various estate planning matters. One of the two clients died some time ago, but even as recently as one month ago, you continue to respond to inquiries by the surviving client. You did not request that the surviving client sign a written retainer agreement for the continuing nature of your representation.
Recently, you received a letter from another attorney stating that the surviving client asked him to ""sort out her financial situation"". You further advised that immediately upon receipt, you called your client to inquire whether she wished to use the services of another attorney. Her response was that she was satisfied with your relationship and that she thought (mistakenly) that you were the person who suggested that she consult with the new attorney to assist her with her finances. The client also advised she had not signed a retainer agreement with the new attorney. You further advised that you related these facts to the new attorney in a letter, a photocopy of which you simultaneously sent to your client. In response to your letter, new attorney has advised you that he had a signed retainer agreement and that you were directed to have no further communication with his client.
As a result of the foregoing facts and your statement that you are uncertain as to whether the client understood that she was engaging a new attorney, you inquired whether you are precluded under the Rules of Professional Conduct from communicating with the client. For purposes of this opinion, we have assumed that the client is not under a disability. If this is not the case, we direct your attention to Rule 1.14.
Rule 1.16 of the Maryland Rules of Professional Conduct permits a client to discharge an attorney without cause, and that Rule mandates that the discharged attorney must withdraw from representation immediately upon discharge. In the instant situation, an attorney has been engaged to provide services to your client without your having been discharged. In fact, as a result of your discussion with the client it would appear that you have not been discharged; but rather, uncertainty has arisen to the extent and scope of your representation. Therefore, pursuant to Rule 1.4, you should undertake to explain the situation to your client in a manner reasonably necessary to permit the client to make an informed decision regarding the status of your representation.
While we are sensitive to the awkwardness between you and the new attorney in resolving this dilemma, the client must be advised by both you and new attorney that there may be some controversy regarding the nature and scope of the representation to be provided by you and new attorney. However, until you receive notice of discharge and directions from your client, you must continue to respond to her inquiries and protect all attorney-client privileged materials and confidences. See, Rule 1.6.
In addition, although not required but to avoid any miscommunication, we recommend that you obtain written instructions from your client as to the nature and scope of your future representation and the compensation to be paid to you for any services rendered.
Finally, while you may feel compelled to refrain from communicating with the client under Rule 4.2, we believe that Rule 4.2 does not apply in this situation because that Rule requires that a lawyer already representing a client shall not communicate about the subject matter of the representation with another party known to be represented by another lawyer in the matter without the consent of the other lawyer. Since the client may desire to engage more than one counsel, you are not precluded from communicating with the client unless your services have been terminated as set forth in Rule 1.16.