MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2002-07
Conflicts of Interest: Potential Conflict of Interest When Part-Time Assistant County Attorney Assists Private Practice Clients with Application for Medical Home and Community Based Services Waivers
The facts set forth in your inquiry are as follows. You are a member of a law firm whose practice includes elder law. In that practice you assist clients for Medical Assistance, including the Medicaid Home and Community Based Services Waiver. You also serve as a part-time Assistant County Attorney to the "X" County Department of Aging.
Application for the waiver program is made to the area agency on aging in the jurisdiction in which the clients reside. For residents of "X" County, their applications are made to the "X" County Department of Aging. That Department provides a local coordinator who serves as the in-take worker, as well as the case manager. The "X" County Department of Aging arranges for the Adult Evaluation Review Service (AERS") to conduct an assessment and develops a care plan in conjunction with AERS. The coordinator/case manager of the "X" County Department of Aging, then forwards the appropriate information to another entity "Y" for a medical level of care determination. The "X" County Department of Aging also coordinates the financial application process by gathering the required information and forwarding it to the Waiver Unit of the State Department of Human Resources ("DHR") for final determination. In turn, both "Y" and DHR forward the medical and financial determinations to the Maryland Department of Aging. The Maryland Department of Aging assures cost effectiveness and determines whether to place an applicant on the waiver.
The eligibility decision-making authority when it comes to granting or denying medical assistance waiver eligibility is made by the Maryland Department of Aging and not by the "X" County Department of Aging.
You have requested that the Committee advise you as to the propriety of your serving as both an Assistant Attorney for the "X" County Department of Aging, as well as assisting private clients who make applications for the Medicaid Home and Community Based Service Waiver with the "X" County Department of Aging.
Rule 1.7 of the Rules of Professional Conduct is entitled: Conflict of Interest: General rule. It states as follows:
A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and each client consents after consultation.
A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
the lawyer reasonably believes the representation will not be adversely affected; and the client consents after consultation.
The consultation required by paragraphs (a) and (b) shall include explanation of the implications of the common representation and any limitations resulting from the lawyer's responsibilities to another, or from the lawyer's own interests, as well as the advantages and risks involved.
Thus, Rule 1.7 limits a lawyer's activity, and that of the lawyer's firm, in any manner in which the lawyer's personal interest or the interest of another client would conflict with the lawyer's obligation to another client.1
After reviewing this matter, the Committee finds that there would be a conflict in your undertaking to represent private clients who file applications through a governmental agency which you represent. While the Committee accepts your representation that the ultimate determination as to waiver eligibility rests with the Maryland Department of Aging and not with your county client, it is of the view that the ultimate disposition of an application does not address all of the possible conflicts which may arise during your representation of the County agency and your clients who have applied for benefits through it. In that regard, the "X" County Department of Aging is a part of the established administrative process. In the Committee's opinion you cannot provide advice to an applicant within that system as well as give independent advice to your governmental client.
As noted in one of the comments to Rule 1.7, conflicts of interest in contexts other than litigation sometimes may be difficult to assess. Relevant factors in determining whether there is potential for adverse effect include the duration and intimacy of the lawyer's relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that actual conflict will arise and the likely prejudice to the client from the conflict if it does arise. Balancing those factors under the circumstances presented in your request result in the Committee's conclusion that dual representation is not appropriate or permissible. Representation of the individual client may involve obtaining confidential information from the client and providing advice as to how the waiver may be obtained. On the other hand, questions may arise with respect to representation of the County agency relating to the application and factors surrounding it which places an attorney in a conflict situation. While the ultimate determination is made by the state agency, that does not mean that procedural or related issues will not arise during the course of the application which would present competing interests on the part of the individual and the "X" County Department of Aging. For example, an attorney could not scrutinize an application for a government client which he prepared for his personal client. Accordingly, the Committee determines that it is not appropriate for you to represent private clients before an agency which you represent.2
1 Rule 1.10 is entitled: "Imputed disqualification - General rule." Under that rule, no attorney in a firm shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so under Rule 1.7.
2 The Committee's opinions and an index of them are found on the Maryland State Bar Association's web site at www.msba.org.