MARYLAND STATE BAR ASSOCIATION
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2017-01
May an attorney who is licensed out-of-state supervise students at an out-of-state law school who participate in a clinic to assist individuals with preparing and filing an application for the commutation of a sentence or pardon of a conviction for a crime under Maryland law?
Question Presented:
What are the ethical considerations associated with a proposal for an attorney licensed in the District of Columbia to supervise students at a District of Columbia law school participating in a clinic to assist individuals with preparing and filing a request for the commutation of a sentence or pardon of a conviction for a crime under Maryland law?
Summary Conclusion:
The Committee finds that the act of supervising law students in the performance of advisory services relating to the filing of a request for clemency for a crime under Maryland law by an attorney who is not admitted to practice law in Maryland is inconsistent with provisions under the Maryland Rules of Professional Conduct regarding the unauthorized practice of law.
Facts Provided:
A University, located in the District of Columbia, administers a clemency clinic. (“Clinic”). Students participating in the Clinic are responsible for, inter alia, re-investigating cases of individuals convicted of felonies who continue to assert innocence.
The Clinic also advises individuals convicted in federal courts who are seeking a commutation of a sentence or pardon from the President of the United States (“clemency services”).
The Clinic asks this Committee whether clemency services may be offered to individuals convicted of felonies in state courts that include Maryland. The Clinic contends that this proposed arrangement is logical because the clemency services for federal cases are offered as an outgrowth of a partnership between a former Maryland governor and the University. The proposed clemency services for Maryland crimes would consist of a student conducting an interview with a convicted individual, gathering information, and assisting the convicted individual with drafting and filing the appropriate clemency application. All of these services would be performed under the direct supervision of an attorney and a University law professor who retains a license to practice law in the District of Columbia but not Maryland.
Opinion:
The Maryland Rules of Professional Conduct (MRPC) prohibit representative activities which constitute the unauthorized practice of law. Under MRPC Rule 5.5, Unauthorized Practice of Law; Multijurisdictional Practice of Law, section (a) reads as follows:
(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so (emphasis added).
With respect to Rule 5.5a, Maryland Code, Business Occupations and Professions Article, at § 10-206(a), specifically regulates the practice of law in Maryland by imposing the following requirement:
"Except as otherwise provided by law, before an individual may practice law in [Maryland], the individual shall: (1) be admitted to the Bar; and (2) meet any requirement that the Court of Appeals may set by rule."
As referenced in § 10-206(a), the term "practice law" is defined at § section 10-101(h)(1) as follows:
"(i) giving legal advice (ii) representing another person before a unit of the State government or of a political subdivision; or (iii) performing any other service that the Court of Appeals defines as practicing law (emphasis added)."
Further, § 10-101(h)(2) identifies specific examples of the term “practice law” to include the following:
"(iii) preparing of helping in the preparation of any form or document that is filed in a court or affects a case that is or may be filed in a court."
The Clinic proposes to have law students assist with the preparation and filing of a petition for: (1) commutation of a sentence; or (2) pardon of a conviction. As a matter of procedure, a
clemency petition is not filed in state court but rather with the Maryland Parole Commission ("Commission") (1), a unit of the state government. The Commission is responsible for processing the petition and then forwarding it for consideration and approval by Governor. In deciding whether to grant clemency, the Governor relies upon the advice of attorneys from the Office of Legal Counsel.
This Committee does not offer opinions on legal matters, however, we have been asked and have opined in the past on whether a particular activity constitutes the unauthorized practice of law. Based on Business Occupations and Professions Article, §§ 10-206 and 10-101(h) the proposed clemency services appear to constitute the practice of law. Only the Maryland Court of Appeals can definitively answer what activities fall within the definition of the "practice of law," and while the activities of the Clinic display the most ennobling characteristics of the profession and undoubtedly form a rich learning experience for the students, unless a licensed member of the Maryland Bar supervises these activities, they cannot be carried out in Maryland. The Maryland legislature has included several exceptions to what may be allowed without being licensed. The Clinic may wish to consider seeking a similar exception for its program in the unlikely event it cannot find a lawyer licensed in Maryland to supervise program activities.
As noted, the Committee has issued opinions concerning the unauthorized practice of law, including Ethics Docket No. 2007-06 (whether an attorney not licensed in Maryland may conduct a limited immigration practice in Maryland). More recently, the Committee issued Ethics Docket No. 2016-05 (whether an attorney not licensed in Maryland may serve as "Of Counsel" to a law firm and represent Maryland-based clients in federal security clearance proceedings before federal agencies). Copies of Committee opinions are available online at www.msba.org.
Conclusion:
Ethical considerations under Rule 5.5 support this Committee’s opinion that if the Clinic decides to offer clemency services to individuals convicted under Maryland law, then law students should be supervised by a Maryland-barred attorney. The Committee hopes that this opinion is responsive to your inquiry.
Authorities:
Md. Rules of Prof. Conduct 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice of Law)
Maryland Business Occupations and Professions Article, §10-206 (Practicing without admission to Bar) and § 10-101(h).
MSBA Ethics Docket No. 2007-06
MSBA Ethics Docket No. 2016-05
(1) See Maryland Department of Public Safety & Correctional Services website at https://www.dpscs.state.md.us.