MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2006-20
Requirement to Engage Interpreter; monitoring of telephone calls from clients
Your recent request for an opinion has been considered by the Committee on Ethics of the Maryland State Bar Association, and I have been assigned to respond to you on behalf of the Committee.
In your request you state that your firm is the Maryland “provider firm for an issuer of pre-paid legal services policies.” The firm considers the “issuer” [“Company X”] as your direct client and recognizes each of the policyholders as your indirect clients. All policyholders, when they are enrolled by Company X, receive material, directly from the insurer, which identifies your firm and your telephone number “as the provider of the pre-paid legal services.”
You state that: “Whenever any member calls us, they instantly become our client…[t]he vast majority of our client contact comes when our attorneys return the policy holders’ calls within an hour or so of the initial intake entry” of a call.
You have also advised that the firm has a “TTY phone.” We understand that such a phone system is a “text telephone” which permits individuals who have hearing or speech impairments to communicate by text messaging with your firm. The system requires a TTY phone at both ends of the conversation.
Company X has requested that all incoming and outgoing calls involving the provider’s business be monitored by your firm (typically by a partner or a managing attorney).
Your inquiry submits two basic questions:
- Does either Maryland statutory, common law or rules of professional conduct require a law firm to hire an interpreter to communicate with hearing impaired clients? If so, who is responsible for the cost?
- Does disclosure to Company X of any portion of the recorded conversation “violate attorney-client privilege ethics rules even if it is non-substantive information?”
As to Question 1, it is our understanding that, in the TTY device system, the hearing impaired client and you would communicate by typing messages instead of talking. There should be no need for “an interpreter.” However, even assuming such an interpreter were needed, your inquiry poses a legal, not an ethical, question. The Committee does not provide legal opinions.
With respect to Question 2, in an earlier opinion requested by you (Ethics Docket 04-03), this Committee, inter alia, expressed the view that, if Company X, an insurer of pre-paid legal services, received confidential information directly from a member and e-mailed the information to you as counsel, that would likely be a waiver of the attorney-client privilege. Similarly, it was the Committee’s view that, if you received the confidential information directly from the member (client) and communicated the information to Company X, there likely would be a violation of Rule 1.6. See Ethics Docket 04-03; see also Docket 01-03. We believe the same response would apply here, assuming the information is confidential.
Monitoring of your calls to and from members of the plan by members of your office would not adversely impact the confidentiality of the communications.
The Committee expresses no opinion concerning what effect the Maryland Wiretap Statute or other statutory provisions would have in the factual scenario you have advanced.
For members of the Maryland State Bar Association, opinions of the Committee may be found on the Committee’s website at www.msba.org.
We thank you for consulting the Committee on this matter. We trust the foregoing is responsive to your inquiry.