MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2006-13
MSBA Committee forwarding to its members unsolicited requests by third parties for advice concerning animal rights law; legal advice by member who is in-house corporate attorney
Your e-mail requesting an opinion of the Ethics Committee of the Maryland State Bar Association has been considered by the Committee, and I have been designated to respond to you on its behalf.
Your e-mail indicates that you are the Chairman of the Maryland State Bar Association’s Animal Law Committee and that from time to time the Animal Law Committee receives unsolicited requests by third parties which may seek legal advice. Based on further communication between this Committee and the Chairman of the Animal Law Committee, the Animal Law Committee would like to circulate such requests to its Committee members through the Email List. Thereafter, any member of the Animal Law Committee would be free to contact the third party in the member’s capacity as a private attorney and not on behalf of the Animal Law Committee because the Animal Law Committee does not, as an entity, render legal advice in response to such inquiries. Any individual member of the Animal Law Committee who contacts such an inquirer would proceed with the inquirer on the same basis as any attorney/client relationship. Thus, while it might be desirable if the Animal Law Committee member volunteered to render legal advice on a pro bono basis, the member and inquirer would be free to establish an attorney/client relationship on a fee basis as well. Based on the foregoing, your inquiry to the Ethics Committee is whether there are any ethical problems associated with such a procedure.
As long as an Animal Law Committee member’s initial contact with the inquirer is not in person, by telephone or real-time electronic contact, the Ethics Committee believes that the Animal Law Committee member can otherwise contact the third party inquirer as permitted in Rule 7.1. The member must make clear to the inquirer that the member is not acting on behalf of the Animal Law Committee, but instead is acting as a private attorney. The member must adhere to all applicable Rules of Professional Conduct that would apply in such an instance to govern a private attorney/client relationship. 1
Included in your inquiry to the Ethics Committee was an e-mail from one of the Animal Law Committee members who was receptive to assisting a third party inquirer seeking legal advice, but expressing concerns over the fact that this member works as in-house corporate counsel, does not have a private office, does not carry malpractice insurance and does not otherwise engage in the private practice of law. It is not clear whether this member is admitted to practice law in the State of Maryland. If the member is not admitted to practice law in Maryland, but is admitted to practice law in another United States jurisdiction, then such a person would be permitted to practice law for that person’s employer, but would not be permitted to engage in any private practice of law unrelated to her corporate employment. See Rule 5.5(d); Maryland Occupation & Business Code §10-206(d). Even if the member in question is admitted to practice law in the State of Maryland, such a member would have to comply with all applicable statutes and rules (including, but not limited to, compliance with Rule 16-601 et seq. pertaining to the establishment of attorney trust accounts) before that member could engage in any private practice, whether on a fee or pro bono basis. Even if the member were to so comply, the member would have to ascertain whether there would be any conflict between the member’s duties to the corporate employer and the legal assistance sought to be rendered to the inquirer to the Animal Law Committee.
Finally, the Committee understands that the MSBA neither operates nor supports any lawyer referral programs. If the current activities of your committee constitute a lawyer referral program, then you are required to obtain the prior approval of the Board of Governors before continuing these activities.
For members of the Maryland State Bar Association, Opinions of the Committee may be obtained from the Committee’s web site: www.MSBA.org.
We hope the foregoing is responsive to your inquiry, and we thank you for consulting the Committee on this matter.
COMMITTEE ON ETHICS
By: __________________________
Jay I. Morstein
Member of Committee
1 If an attorney/client relationship is established, and should there be a fee arrangement, the member should make clear to the inquirer that no part of the fee will be shared with the Animal Law Committee. Of course, it would be more laudatory should the member render services on a pro bono basis. See generally Rule 6.1 of the Rules of Professional Conduct.
REFERENCES:
Rules of Professional Conduct 5.5(d); 6.1; 7.3; Md. Occupation & Business Code §10-206(d);
Rule 16-601