MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2004-04
Maryland Lawyer's Obligation to Follow Maryland Law When Practicing in Other Jurisdiction
In your letter of September 22, 2003, you raise the question of whether Maryland Rule of Professional Conduct 8.5 would permit an attorney practicing primarily in Maryland, but also licensed in the District of Columbia ("D.C."), to act in accordance with D.C.'s less restrictive rule on communicating with a party opponent's former employee. There is no need to address the potential conflict between the Maryland and D.C. rules on contacting former employees in light of the Committee's conclusions set forth herein.
This question is governed by Rule 8.5(a), which provides:
A lawyer admitted by the Court of Appeals to practice in this State is subject to the disciplinary authority of this State for a violation of these rules in this or any other jurisdiction (emphasis supplied).
The plain language of the Rule suggests that Maryland lawyers must apply Maryland Rules of Professional Conduct in every jurisdiction in which they practice. See Rule 8.5(a). Rule 8.5 differs in this respect from the American Bar Association ("ABA") Model Rule of Professional Conduct, Rule 8.5 (1983 version), from which the Maryland rule was derived. See Attorney Grievance Commission of Maryland v. Hopp, 330 Md. 177, 185 (1993) (stating that Rule 8.5 was derived from ABA Model Rule 8.5). Model Rule 8.5 stated, in relevant part:
A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere.
Model Rule 8.5 thus speaks only to the home state's jurisdiction to punish an attorney's rule violation, without defining which ethical rules apply to the attorney's conduct1. In contrast, Maryland Rule 8.5 grants the Court of Appeals jurisdiction to punish violations of Maryland's Rules of Professional Conduct no matter where the violations occur.
The Court of Appeals exercised its Rule 8.5 jurisdiction to affirm a lower court's disbarment of a licensed Maryland attorney who had not practiced in Maryland since 1962. Hopp, 330 Md. 177. In rejecting the defendant attorney's argument that the Court lacked jurisdiction over him, the Court relied, inter alia, on the language of Rule 8.5. Id. at 184. Though the Court recognized the problems associated with multi-jurisdiction practice, the Court reasoned that lawyers must " . . . remain subject to the governing authority of the jurisdiction in which they are licensed to practice." Id. at 184 n.2.
Applying these principles to the question you raise, the Maryland attorney is bound by the albeit more "restrictive" Maryland Rule. The distinct language of Rule 8.5(a) subjects attorneys admitted in Maryland to discipline for any violation of the Maryland Rules in any jurisdiction. See Rule 8.5(a). The Rule does not exempt attorneys acting in accordance with another jurisdiction's ethics rules. See Rule 8.5(a). Moreover, the Rule does not shield attorneys from discipline for such reliance even if the attorney is licensed in that same jurisdiction. See id.; Hopp, 330 Md. 177 (attorney disbarred for violating Maryland Rules in California even though he did not even have an office in Maryland). Therefore, were the hypothetical attorney presented in your scenario to act under the "less restrictive" D.C. rules, the attorney would remain accountable to the Maryland disciplinary authorities for any violation of the Maryland Rules of Professional Conduct.
We trust that the foregoing has been responsive to your inquiry and we thank you for consulting with the Committee.
1 In 1993, the American Bar Association amended Model Rule 8.5 to address concerns regarding the inconsistency of state ethics rules in light of the modern predominance of multi-jurisdiction practice. See Model Rule 8.5 cmt. and annotation on choice of law. The amended Model Rule 8.5 (b) states:
Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows: (1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and (2) for any other conduct, the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rule of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur
This Committee applied a similar approach in Ethics Docket 86-28, an opinion that predated the adoption of the Maryland Rules of Professional Conduct. The Opinion stated that the Maryland Code of Professional Responsibility in effect at that time, "does not require its attorneys to behave in a manner that is inconsistent or at variance with the code of conduct prescribed by another jurisdiction when practicing law there." That opinion was superceded by the language of Rule 8.5(a), which became effective on January 1, 1987. The Select Committee appointed by the Court of Appeals to study the proposed 2000 Amendments to the American Bar Association Model Rules has recommended the adoption of the American Bar Association's Choice of Law Provision. See, Report of Select Committee (Dec. 16, 2003) at pages 150-151.
REFERENCES:
Maryland Rules of Professional Conduct, Rule 8.5
Ethics Docket 86-28
Attorney Grievance Commission of Maryland v. Hopp, 330 Md. 177, 185 (1993)
American Bar Association Model Rules of Professional Conduct Rule 8.5 (2003)