Ethics Hotline & Opinions

ETHICS DOCKET NO. 2002-06

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2002-06

Duty of Counsel to Notify His/Her Client of Filing of Counterclaim

 

Your inquiry raises the following questions:

  1. If, in representing a client, a counterclaim is filed against your client, do you have an obligation to notify the client?
  2. If the answer to the above is yes, what is the time frame for advising the client?
  3. If another attorney has knowledge that the client has not been notified of the counterclaim, is the attorney required to file a report with Bar Counsel?

Your inquiry does not disclose any underlying facts relating to the three questions that you posed. Nevertheless, it is the view of the Committee that pursuant to Rules 1.3 and 1.4 of the Professional Conduct, an attorney has an obvious duty to advise his client of the filing of a counterclaim against the client and to provide that advice in a reasonably prompt manner. With respect to question no. 3, you have not disclosed the relationship of the hypothetical attorney who has knowledge that another attorney has failed to advise the client concerning the counterclaim. The relationship between and/or the roles of the two attorneys may have an impact on the nature of the duty.

The applicable rule concerning reporting professional misconduct is Rule 8.3. Inviting your attention to subsection (c), the Rule does not require disclosure of information protected by Rule 1.6. Rule 8.3, subject to subsection (c), requires an attorney who has knowledge of misconduct to inform the appropriate professional authority if the alleged conduct raises a "substantial" question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. As we have said on a number of occasions, attorneys with knowledge of alleged misconduct must exercise their own professional judgment to determine whether the alleged conduct violated any of the Rules of Professional Conduct and raises a substantial question as to the other attorney's fitness as a lawyer. See for example, Ethics Docket 01-05.

We trust that the foregoing has been responsive to your inquiry and appreciate your consulting with the Committee.

 

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.