MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1995-25
Law Related Profession: Lobbying as a partner with a non-lawyer
Your inquiry asks a variety of questions of the propriety of an association that you are considering with a non-lawyer in which you intend to engage in lobbying activities. The primary focus of your inquiry, although set forth in separately numbered questions, is whether your lobbying work would constitute the practice of law. Whether the lobbying activities contemplated, whether alone or in association with a non-lawyer constitutes the practice of law is a legal question that this Committee cannot address because to do so is outside the Committee's scope of authority to provide ethics advisory opinions.
You additionally inquire whether it would be ethical to engage in lobbying activities in association with a non-lawyer. Rule 3.9 focuses on the lawyer as a lobbyist and provides that
A lawyer representing a client before a legislative or administrative tribunal in a non-adjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rule 3.3 {a} through {c}, 3.4 {a} through {c}, and 3.5.
The Committee has previously opined that ""whatever the lawyer's function in a specific matter, a lawyer performing professional services as a lawyer is subject to all of the provisions of the Maryland Rules of Professional Conduct."" See Ethics Docket 93-19.
Regarding the permissibility of an association with a non-lawyer, Rule 5.4 {b} prohibits the formation of a business partnership with a non-lawyer if ""any of the activities of the partnership consist of the practice of law.""
You additionally ask whether it is permissible to send out announcements of your law practice including reference t legislative representation as a feature of your practice. The Committee has previously dealt with the question of whether an attorney can designate areas of practice. See Ethics Docket 80-10, 85-5 and 88-85. As noted in Docket 88-85, Rule 7.1 discusses communications concerning a lawyer's services and states
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:
{a} Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
{b) Is likely t create an unjustified expectation about results the lawyer can achieve, or states of implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law; or
{c} Compares the lawyer's services with other lawyer's services, unless the comparison can be factually substantiated.
Rule 7.4 states:
A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law, subject to the requirements of Rule 7.1. A lawyer shall not hold himself or herself out publicly as a specialist.
Assuming compliance with these Rules, the Committee believes that there is no prohibition against an attorney making reference to legislative representation as an area of his or her practice.
As to your inquiry regarding the sharing of fees with a principal of the business who is a non-lawyer, Rule 5.4 prohibits the sharing of fees with a non-lawyer except in circumstances that do not appear to apply in this situation. The same Rule applies if the non-lawyer is your employee.
References: Ethics Dockets 1980-10, 1985-5 and 1988-85