Ethics Hotline & Opinions

ETHICS DOCKET NO. 2000-05

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2000-05

Whether Estate Planning Services Provided By D.C. Firm Constitute Unauthorized Practice In Maryland

 

You state that you are a tax accountant and attorney admitted in Washington, D.C. and that you are the sole owner of a limited liability company that provides tax preparation, accounting, and estate planning services, with its principal place of business in Washington, D.C. Of the five employee professional staff, you are the only attorney employed by the L.L.C.

  1. You ask whether drafting wills and other estate planning documents on an isolated basis for Maryland residents constitutes the unauthorized practice of law in Maryland. You ask this question with respect to both current tax clients of your firm, and also persons who are not currently clients. Maryland Rule 5.5 states:

Rule 5.5 Unauthorized practice of law.

  A lawyer shall not:  
  1. practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or
  2. assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law. 

The Maryland Rules of Professional Conduct do not define what constitutes the unauthorized practice of law. Instead, the Rules defer to the law of Maryland on what constitutes the unauthorized practice of law. See Ethics Opinion 99-8 ("The Committee does not give advice concerning legal matters and that includes determinations of what does or does not constitute the practice of law in Maryland for purposes of the state's licensing regulations.") MD. CODE ANN., BUSINESS OCCUPATIONS AND PROFESSIONS, title 10 governs the practice of law. See especially sections 10-206, requiring admission tot he bar before practicing law in Maryland, and 10-601, providing penalties for the unauthorized practice of law. You may also wish to review Attorney Grievance Comm'n v. Hallmon 343 Md. 390, 681 A.2d 510 (1996), and Kennedy v. Bar Ass'n, 316 Md. 646, 561 A.2d 200 (1989) (holding that a nonmember of the Maryland Bar cannot practice before the various courts of the State of Maryland), and especially Attorney Grievance Comm'n v. Shaw, 354 Md. 636, 648-50, 732 A.2d 876 (1999) which, while not squarely on point, illustrates the Court of Appeals' interpretation of the unauthorized practice of law.

Whether an attorney licensed in Washington, D.C. can prepare wills or any other estate planning documents for residents of Maryland is a question for which there appears to be no Maryland authority. Although this could be taken to imply that there is no such prohibition, it clearly is a decision for which a practitioner must alone be responsible. Ultimately, it is for the Maryland Court of Appeals to decide if the practitioner's conduct constitutes the unauthorized practice of law. See Shaw, 354 Md. at 648-50; see also MSBA Ethics Opinion 99-31. The Committee suggests that you satisfy yourself that the proposed service to Maryland residents does not violate any rule of ethics of the licensing authorities of Washington, D.C. 

  1.  
    1. You have asked the Committee to review the text of a solicitation which you propose to send to current clients. The Committee cannot opine on the text of a solicitation because whether a given advertisement violates the Rules depends on the facts. For instance, Rule 7.1 provides, in part, that "A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services." The Committee is not in the position to evaluate the facts and determine whether a particular advertisement is or is not misleading. You may wish to review Maryland Rules 7.1, 7.2, and 7.5, which should prove helpful.

 

References: Ethics Docket  1999-8 and  1999-31

 

 

DISCLAIMER: Opinions of the Maryland State Bar Association (MSBA) Ethics Committee are an uncompensated service of the MSBA. This Committee’s opinions are not binding on the Maryland Court of Appeals, Maryland Attorney Grievance Commission, MSBA or this Committee. The reader is advised that subsequent judicial opinions, revisions to the rules of professional conduct, and future opinions of this Committee may render the Opinions stated herein outdated. As such, the Committee’s opinions are advisory only and neither the Committee nor the MSBA assumes any liability whatsoever with respect thereto. Accordingly, reliance upon the opinions of this Committee is solely at the risk of the user.