MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2003-01
Government lawyer assisting in the unauthorized practice of law by supervisory nonlawyer
You have advised that you are a member of the Maryland Bar currently employed by the federal government as an “attorney adviser” drafting patent application decisions. These decisions include the application of patent statutes, rules and federal regulations as well as patent office precedent and determine whether a patent application petition will be approved or dismissed. Bar membership is a requirement of your job. The final decisions are approved by your supervisor who is not an attorney. You advised that your supervisor can direct you to change both contents and conclusion of a decision if he or she disagrees with it. Your question is two-fold: first, whether your supervisor’s activities constitute the unlawful practice of law and second, if so, are you in violation of the Maryland Rules of Professional Conduct (“the Rules”) by assisting such unlawful practice.
The Committee declines to answer your first question for two reasons. Primarily, your first question is one of law and the Committee does not opine on questions of law. This legal question is particularly thorny because its resolution involves a complete understanding of the patent application process as well as the applicable federal statutes and regulations.1 Such an inquiry is outside the scope of the Committee’s functions. In addition, your first inquiry concerns the activities of another person and the Committee generally does not opine on the conduct of persons other that the inquirer
That being said, however, whether your supervisor is involved in the unauthorized practice of law may impact directly on you. If your supervisor is determined not to be practicing law unlawfully, your actions are not violative of the Rules.2 On the other hand, if it is determined that your supervisor’s activities do constitute the unauthorized practice of law, then there are two Rules that apply directly to you in this situation: Rules 5.2(b) and 5.3(c)(1).
Rule 5.5(b) provides that a lawyer shall not “assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.”
In addition, Rule 5.3(c)(1) provides that
With respect to a nonlawyer employed or retained by associated with a lawyer
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved;
1 This issue also raises questions of whether a federal statute may authorize a nonlawyer to engage in conduct that constitutes the practice of law. See generally ABA/BNA Lawyer’s Manual on Professional Conduct, No. 167, §201:106 (1996) and cases cited therein. Another complicated issue is whether the Supremacy Clause of the United States Constitution, U.S. Constitution, Art. VI, would require that a federal statute that may authorize such a practice supercede any state rules to the contrary.
2 Please refer to the Comment to Rule 5.5 that states that the Rule “does not prohibit lawyers from providing professional advice and instruction to nonlawyers whose employment requires knowledge of law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in governmental agencies.”