MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2003-12
May an attorney who is a Baltimore City Associate General Counsel, as part of his private practice, name the City of Baltimore in a complaint to foreclose the rights of redemption on behalf of a private client?
You have requested an opinion of the Maryland State Bar Association Committee on Ethics regarding a possible conflict of interest. You are employed as a lawyer for the City of Baltimore. Your position with the city permits you to have a private legal practice. You ask if your representation of clients in connection with tax sales of properties in the city might be a conflict prohibited by the Rules of Professional Conduct. Specifically, you ask if you may, on behalf of private clients who have purchased properties at tax sale, file suit to foreclose the right of redemption of the property to the Tax-Property Article of the Maryland Annotated Code. You state that the City of Baltimore is named as a defendant in such suits but it is a “moving party.” You further state that “as a rule” you would refrain from representing clients if the Department of Housing and Community Development or the Mayor and City Council is a defendant due to their status as a mortgagee of the property purchased at tax sale. We believe that the representation you propose would be an impermissible conflict. We explain.
The tax sale provisions of the Maryland Annotated Code, include in Tax-Property, §14-808 through §14-854, set forth a complex procedure for the sale of real properties which are the subject of delinquent taxes. Determining legislative intent is beyond the role of the Committee on Ethics, but we believe it is a fair assumption that one purpose of the complex procedure is to protect the interests of property owners while insuring that property taxes are paid.
Section 14-836 requires that the county where the property is located be named as a defendant in any action to foreclose the right of redemption. Thus, the suits in which you propose to represent private clients as plaintiffs, you will have to name as a defendant, your employer and client, the City of Baltimore. We are unsure as to what you mean when you refer to the City as a “moving party” other than the City begins the process by selling specific properties at a tax sale. Thus, you seem to assume in your inquiry that the City is a defendant for notice purposes only and is “indifferent” or even “friendly” to the suit and your concurrent representation of a plaintiff and a defendant in the same suit would not be a conflict.
Rule 1.7 of the Rules of Professional Conduct is as follows:
“Rule 1.7. Conflict of Interest: General Rule
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) 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:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation.
(c) The consultation required by paragraph (a) and (b) shall include explanation of the implications of the common representation and any limitations resulting from the lawyer’s responsibilities to another, of from the lawyer’s own interest, as well as the advantages and risks involved.
In many cases the role of the lawyer in representing a purchaser in a tax sale matter is merely ministerial. That is, the procedures and fees are regulated by law and the lawyer simply shepherds the paperwork. However, the Committee believes that there are circumstances where the interests of the purchaser may be or become adverse to the interests of the defendant taxing authority. The mere complexity of the process could create such circumstances. We further believe that such circumstances are not predictable. Thus you could find yourself in the untenable position of representing two opposing parties. Also, as we stated above, it appears that one governmental objective of the tax sale provision (in addition to collecting the taxes owed) is to protect the interests of property owners. The complex procedure mandated by the Legislature requires that the taxing authority (in this case the City of Baltimore) take numerous steps to insure that property owners do not lose their property without due process. The interest of your government client to protect the rights of the property owners are adverse to the interests of your private clients who have purchased property at a tax sale. We believe that your proposed representation would violate Rule 1.7 (a) and (b).
We reach a similar conclusion in Ethics Docket 02-07 involving a part-time assistant county attorney proposing to represent private clients in matters before a county agency of the same county.