MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2005-02
Division of Fees with Out-of-State Lawyers; Assisting in the Authorized Practice of Law by a Lawyer Not Admitted in Maryland State Bar Association, Inc.
Your inquiry states you are a newly admitted attorney to the Maryland Bar. You indicate that since you speak Chinese, there are several attorneys admitted in New York, but practicing in Maryland (dealing with mostly immigration cases) who have approached you to work on Maryland cases that they could not accept. You have several questions relating to that potential relationship.
You ask whether you can accept cases from those New York attorneys if they interview clients, and sign agreements with the clients on your behalf when you are not present and, if not, would it legitimize the situation if these New York attorneys made you “of counsel” to their firms. You ask whether there would be paperwork that the New York attorneys need to prepare to have you as their “of counsel”. You ask whether you can have a fee arrangement of one-third or one-half, with these New York attorneys while their involvement with the case primarily consists of interviewing the clients. If not, can these New York attorneys work on the case with you, such as drafting legal documents and conducting legal research. You ask whether you would need to disclose your fee arrangements with the New York attorneys to the clients. Lastly, you inquire as to whether you may be involved with non-Chinese speaking Maryland attorneys who occasionally approach you to be involved in their cases when they have Chinese-speaking clients. You ask whether you can have a fee arrangement with these Maryland attorneys, such as one-third or one-half, if your involvement consists of tasks, such as being the interpreter, collecting information and advising the clients in their native language.
Your inquiry raises several issues which are disturbing to the Committee. Your introductory paragraph indicates that the attorneys that you are dealing with are admitted to practice law in New York, but are “practicing in Maryland” dealing “mostly with immigration cases”. If these attorneys are actually practicing law within the State of Maryland, they are involved in the unauthorized practice of law in violation of Rule 5.5(a) of the Maryland Lawyers’ Rules of Professional Conduct. Your assistance to any of these attorneys, who are not members of the Maryland Bar, to aid them in performing activities that constitute the unauthorized practice of law in the State of Maryland would constitute a violation on your part of Rule 5.5(b). Rule 5.5 states as follows:
A lawyer shall not:
(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in hat jurisdiction; or
(b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.
If these attorneys are actually practicing law in Maryland, you may not, ethically, associate with them in any manner and you would, in fact, have a duty to report their unauthorized practice of law under Rule 8.3
Assuming that you have misstated the fact that they are actually practicing law within the State of Maryland, and assuming that they have approached you to work on Maryland cases that they could not accept because they are not admitted in Maryland, the Committee will attempt to answer the remainder of your questions.
Your questions revolve around the arrangements that you may enter into with these clients and your rights and duties regarding the sharing of fees with the New York attorneys. The Committee refers you to Rule 1.5 which governs matters relating to fees. Rule 1.5(e) provides:
(e) a division of fee between lawyers who are not in the same firm may be made only if:
(1) the division is in the proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation.
(2) the client is advised of and does not object to the participation of all the lawyers involved; and
(3) the total fee is reasonable.
The client must be advised of, and consent to, the participation of all the lawyers involved and the total fee must be reasonable. You may divide the work with the New York attorneys provided those New York attorneys are not practicing law in the State of Maryland and the fee division does not violate Rule 1.5(e). The client must be made aware of the relationship between you and the New York attorneys. This Committee has previously issued many opinions regarding the sharing of fees between attorneys. We particularly cite you to Ethics Opinion 93-38 which addresses the division of fees with an out-of-state lawyer and also addresses the issues of joint responsibility and the unauthorized practice of law. That opinion also reviews the interrelationship between Rule 5.1 (responsibilities of a partner or supervisory lawyer) and 8.5 (jurisdiction) of the Maryland Lawyers’ Rules of Professional Conduct.
You also ask some questions regarding your entering into an “of counsel” relationship with the New York attorneys. This Committee has, in the past, addressed the meaning of that relationship. We would cite you to our previous opinions as follows: 87-37, 94-49, 96-33, 96-49 and 97-02.
The Committee is not in a position to opine on the propriety of such an “of counsel” relationship under New York ethical rules which must also be considered.
Your last question regards your providing interpreter services for Chinese speaking clients of other Maryland attorneys. Once again, Rule 1.5 would control any fees that you charge. If the fees that you would be charging are not for legal services, but are merely for interpreter services, it is the opinion of the Committee that the charge for such services would have to be in line with the charges for similar services provided by other interpreters.