ETHICS DOCKET NO. 2020-03

Does a Discharged Lawyer Owe a Duty to a Former Client to Inform the Former Client Regarding Ethics Issues Involving the Client's New Lawyer?

Ethics Docket No. 2020-03

  You advised that you have filed both a lawsuit and a complaint with the Maryland Attorney Grievance Commission against a particular Maryland attorney for several alleged ethical lapses, including mishandling trust accounts and billing irregularities. You recently learned that one of your clients, a condominium association, has terminated you as counsel and retained this same attorney. As part of the transition, the attorney has contacted you to coordinate the transfer. You inquired with the Committee regarding whether you have an obligation to report the allegations of misconduct against this attorney to your former client. In short, several rules in the Maryland Attorneys’ Rules of Professional Conduct (MARPC) touch on the issue you have raised, and while none provide a definitive answer, taken together they suggest that you should not contact your former client directly regarding your allegations against their new counsel. What follows is our analysis and application of these rules to the question you have presented. MARPC 19-301.4 Communication (1.4):

• An attorney shall:
  • promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 19-301.0 (f) (1.0), is required by these Rules;
  • keep the client reasonably informed about the status of the matter;
  • promptly comply with reasonable requests for information; and
  • consult with the client about any relevant limitation on the attorney's conduct when the attorney knows that the client expects assistance not permitted by the Maryland Attorneys' Rules of Professional Conduct or other law.
• An attorney shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation

As noted above, the client has terminated your representation and retained new counsel, so they are no longer considered to be your client. Of course, you are still obligated to protect the client’s interests and facilitate a smooth transition (1) but much of the substance of this rule no longer applies with respect to your former client. Even if you still represented the client, the Rule 19- 301.4 (a)(1) or (b) would only suggest that you might have an obligation to inform them of your allegations against their new attorney if the representation involved you providing advice on retaining counsel. We note that in several instances, the MARPC requires a client’s informed consent, but the decision on hiring other counsel is not one of them. (2) MRPC 19-301.16 Declining or Terminating Representation (1.16):

• Except as stated in section (c) of this Rule, an attorney shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
  • the representation will result in violation of the Maryland Attorneys' Rules of Professional Conduct or other law;
  • the attorney's physical or mental condition materially impairs the attorney's ability to represent the client; or
  • the attorney is discharged.
• Except as stated in section (c) of this Rule, an attorney may withdraw from representing a client if:
  • withdrawal can be accomplished without material adverse effect on the interests of the client;
  • the client persists in a course of action involving the attorney's services that the attorney reasonably believes is criminal or fraudulent;
  • the client has used the attorney's services to perpetrate a crime or fraud;
  • the client insists upon action or inaction that the attorney considers repugnant or with which the attorney has a fundamental disagreement;
  • the client fails substantially to fulfill an obligation to the attorney regarding the attorney's services and has been given reasonable warning that the attorney will withdraw unless the obligation is fulfilled;
  • the representation will result in an unreasonable financial burden on the attorney or has been rendered unreasonably difficult by the client; or
  • other good cause for withdrawal exists.
• An attorney must comply with applicable law requiring notice to or permission of a tribunal when terminating representation. When ordered to do so by a tribunal, an attorney shall continue representation notwithstanding good cause for terminating the representation.
• Upon termination of representation, an attorney shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of another attorney, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The attorney may retain papers relating to the client to the extent permitted by other law.

This Rule, at 19-301.16 (a)(3), requires you to cease representing a client when you have been discharged, as has happened here, but as noted above, consistent with 19-301.16 (d), you are under a continuing obligation to protect the client’s interests during the transition to new counsel and assist with transferring their case. The Rule at 19-301.16 (d) has a broad requirement in this regard, but it does not impose any positive obligation on you to report allegations of misconduct involving new counsel. The provisions of (d) are mainly focused on protecting the client’s interests by ensuring a smooth transition to new counsel, not on whether the client should retain particular counsel. MRPC 19-302.1 Advisor (2.1):

In representing a client, an attorney shall exercise independent professional judgment and render candid advice. In rendering advice, an attorney may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

This rule provides you with significant latitude to inform your clients about non-legal factors that may be relevant to their situation, and as noted in the comments to the rule, it may occasionally be appropriate to provide unsolicited advice to the client, if you determine that doing so is their best interest. (3) However, this rule generally assumes that you are dealing with and representing a current client, and the latitude given therein would not appear to extend to former clients. Moreover, given that you have filed a lawsuit and a bar complaint against your former client’s new counsel, it’s probably fair to question whether you can truly provide objective advice to them regarding their new counsel. MRPC 19-304.2 Communications with Persons Represented by an Attorney (4.2):

• Except as provided in section (c) of this Rule, in representing a client, an attorney shall not communicate about the subject of the representation with a person who the attorney knows is represented in the matter by another attorney unless the attorney has the consent of the other attorney or is authorized by law or court order to do so.
• If the person represented by another attorney is an organization, the prohibition extends to each of the organization's (1) current officers, directors, and managing agents and (2) current agents or employees who supervise, direct, or regularly communicate with the organization's attorneys concerning the matter or whose acts or omissions in the matter may bind the organization for civil or criminal liability. The attorney may not communicate with a current agent or employee of the organization unless the attorney first has made inquiry to ensure that the agent or employee is not an individual with whom communication is prohibited by this section and has disclosed to the individual the attorney's identity and the fact that the attorney represents a client who has an interest adverse to the organization.
• An attorney may communicate with a government official about matters that are the subject of the representation if the government official has the authority to redress the grievances of the attorney's client and the attorney first makes the disclosures specified in section (b) of this Rule.

This rule, at 19-304.2 (a), generally prohibits you from contacting represented parties in connection with representation of a client unless the other attorney consents. Here, you are no longer representing the client, and presumably your representation of them did not involve your allegation against their new counsel, but given that the client has retained new counsel and discharged you, we believe that you should abide by this rule and not contact them regarding your allegations without their new counsel’s consent. We note that this rule, at 19-304.2 (b), applies in this instance given that the former client is an organization. Also, you advised that you have filed a law suit against your former client’s new counsel. If the attorney is represented in this matter, this rule would also prohibit you from contacting them directly about this matter, absent consent of their counsel or unless otherwise authorized by law or court order. ###

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1. MRPC 19-301.16 (d): “Upon termination of representation, an attorney shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of another attorney, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The attorney may retain papers relating to the client to the extent permitted by other law.”
2. See MRPC 19-301.6 Confidentiality of Information; 19-301.7 Conflict of Interest- General Rule, 19-301.8 Conflict of Interest; Current Clients, Specific Rules; and, 19-301.18 Duties to Prospective Clients for instances where the client’s informed consent is required.
3. MRPC 19-302.1 Comment 5.