MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2024-02
Conflict Check Obligations of Law School Clinical Programs
In your letter of December 1, 2023 you requested an opinion concerning the obligations of law school-based Clinical Programs performing conflict checks, specifically seeking to ascertain whether such Clinical Programs had an obligation to include the clients of outside firms or organizations employing students who were also participating in the Clinical Program as a student
attorney. The Committee on Ethics of the Maryland State Bar Association considered and approved the following as our written opinion on the matter you raised.
QUESTION PRESENTED:
Must a law school clinical program perform conflict checks related to the clients of an outside employer who employs or employed a participating student-attorney?
CONCLUSION:
No. The Maryland Attorneys Rules of Professional Conduct (MARPC) conflicts rules pertain to current and former clients of an attorney. Although student-attorneys function as attorneys while performing clinical work, and thus are subject to the MARPC in that capacity, they are non attorneys otherwise, and do not have clients outside of the clinical program. Therefore, because student-attorneys do not represent clients for any outside employer (past or present), the MARPC do not require the clinic to perform conflict checks involving the outside employers’ clients. The MARPC only require the clinic to check conflicts for current and former clinic clients.
However, student-attorneys employed outside the clinic setting have a personal obligation to maintain confidential client information obtained during the course of outside employment, pursuant to MARPC Rule 19-305.3 (“Rule 5.3”). In addition, student-attorneys are obligated to individually ensure that they do not have a personal interest in any clinic matter such that the clinic’s representation of the client would be materially limited pursuant to MARPC Rule 19-301.7 (“Rule 1.7”). Where a student-attorney (a) has a personal interest in a clinic matter, or (b) possesses confidential client information related to the matter, learned from the student’s outside employment, we recommend that the student-attorney be screened from the matter.
BACKGROUND:
You advised that you are the Managing Director at a Maryland law school’s Clinical Law Program (“the clinic”). The program includes several clinics, each led by a different professor. The purpose of the program is to provide legal services to indigent and low-income clients. The various clinics operate as a single law firm - sharing a case management system, file room, and paralegals among other resources. Participating students are admitted to practice law as a student-attorney pursuant to Maryland Rule 19-220 and are subject to the MARPC. See Md. Rule 19-701(b).
In addition to working for the clinic, many of the student-attorneys work or have worked as law clerks, summer associates, interns, and/or paralegals at a variety of private law firms, non-profit legal services organizations, federal and state agencies, for judges, and other law-related employers (together “outside employer”). Although student-attorneys are not engaged in the practice of law during this outside employment, the student-attorneys often have access to confidential client information. It is also possible that an outside employer may be engaged in representation adverse to clinic clients.
For new clinic clients, the clinic runs conflict checks on past and current clinic clients. While enrolled in the clinic, student-attorneys are prohibited from working for certain outside employers that are always adverse to clinic clients (e.g., ICE, U.S. Patent and Trademark Office, Office of the State’s Attorney). Students enrolled in clinic are also required to report all law-related outside employment within the past year, and to identify matters in which the student substantially participated during outside employment. If students continue to work for an outside employer while enrolled in the clinic, that student’s access in the case management system is restricted, and the student is required to continually update the clinic if they become substantially involved in additional cases. Finally, the clinic circulates a bi-weekly memo to all student-attorneys with the names of new clinic clients and asks that any potential conflict of interest be immediately identified to clinic staff.
Several outside employers have expressed concerns that student-attorneys are revealing confidential client information of the outside employer (i.e., name of client and type of matter) when no such disclosure is permitted.
You have inquired whether and how the clinic should screen for conflicts of interest for clients whose matters the student-attorney is currently working on or may have worked on for an outside employer.
DISCUSSION/ANALYSIS:
The rules involving conflicts of interest are primarily concerned with an attorney’s duty of loyalty to their clients, including the duty to protect and preserve confidential information. Pursuant to Rule 1.7(a), a conflict of interest exists if:
“(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the attorney’s responsibilities to another client, a former client or a third person or by a personal interest of the attorney.”
An attorney’s ethical duty of loyalty to clients is not limited solely to themselves, but also extends to other attorneys with whom the attorney is associated within a firm pursuant to MARPC 19-301.10(a)[1]:
“(a) While attorneys are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 19-301.7 (1.7) or 19-301.9 (1.9), unless the prohibition is based on a personal interest of the prohibited attorney and does not present a significant risk of materially limiting the representation of the client by the remaining attorneys in the firm.”
Comment [2] to MARPC 19-301.10 (“Rule 1.10”) explains:
“The rule of imputed disqualification stated in section (a) gives effect to the principle of loyalty to the client as it applies to attorneys who practice in a law firm. Such situations can be considered from the premise that a firm of attorneys is essentially one attorney for purposes of the rules governing loyalty to the client, or from the premise that each attorney is vicariously bound by the obligation of loyalty owed by each attorney with whom the attorney is associated.”
In addition to other attorneys with whom an attorney is associated, an attorney’s duty of loyalty to clients also extends to non-attorney staff. Rule 5.3 requires that attorneys ensure that non-attorney employees, including law students, are aware of, and comply with, the employer’s duty of loyalty to clients, including the obligation to maintain clients’ confidences. Comment [1] to Rule 5.3 provides:
“An attorney must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product.”
Inherent in this inquiry is the interplay between two related, but distinct, sets of ethical obligations: (1) those of law school clinic programs, and (2) the distinct individual ethical obligations of student-attorneys practicing within such programs. The limited nature of student-attorneys’ licensure makes it particularly difficult to analyze their individual ethical obligations, especially with regard to confidences obtained during the course of concurrent outside employment as a non attorney.
MD Rule 19-220(d) provides a very limited scope within which a student-attorney may be licensed to practice, specifically limiting any licensure to actions taken in connection with a clinical program or externship:
“(d) Practice. In connection with a clinical program or externship, a law student for whom a certification is in effect may appear in any trial court or the Appellate Court, or before any administrative agency, and may otherwise engage in the practice of law in Maryland, provided that the supervising attorney (1) is satisfied that the student is competent to perform the duties assigned, (2) assumes responsibility for the quality of the student's work, (3) directs and assists the student to the extent necessary, in the supervising attorney's professional judgment, to ensure that the student's participation is effective on behalf of the client the student represents, and (4) accompanies the student when the student appears in court or before an administrative agency. The law student shall neither ask for nor receive personal compensation of any kind for service rendered under this Rule, but may receive academic credit pursuant to the clinical program or externship.”
Given the limited scope of licensure, it is the opinion of this Committee student-attorneys are not attorneys outside the clinical program and/or externship, and thus do not represent outside employers’ clients as part of their outside employment. Consequently, there can be no traditional conflict between a clinic client on the one hand and an outside employer’s client or former client on the other hand.
Given that no attorney-client relationship can exist between student-attorneys and the clients of outside employers, the only direct conflict that may exist pursuant to Rule 1.7 is if a student attorney has a personal interest in a matter that would materially limit their representation of the client. Whether representation would be materially limited depends upon whether the student attorney’s personal interests “materially interfere with the [student-]attorney’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.” See Rule 1.7, Comment [8]. What constitutes a “personal interest” is not defined and is fact specific.[2] Given the subjective nature of such conflicts, it is necessarily the individual obligation of student-attorneys themselves to assess whether such a personal interest exists, not the clinic.
Moreover, even if a personal interest exists that would materially limit an individual student attorney’s representation of a client, such a conflict will ordinarily not be imputed to the clinic or other student-attorneys practicing therein. Imputation of a conflict pursuant to Rule 1.10(a) requires knowledge of the existence of such a conflict. Rule 1.10(a) also states that a conflict under Rule 1.7 is generally imputed to a firm unless it “is based on a personal interest of the prohibited attorney and does not present a significant risk of materially limiting the representation of the client by the remaining attorneys in the firm.” Thus, the mere existence of an unknown conflict for a student-attorney within a clinic, secondary to outside employment or a personal interest, will not be imputed to the clinic or other student-attorneys unless it presents a significant risk of materially limiting the representation of the client.
Comment [4] to Rule 1.10 explains:
“The rule in section (a) of this Rule also does not prohibit representation by others in the law firm where the individual prohibited from involvement in a matter is a non-attorney, such as a paralegal or legal secretary. Nor does section (a) of this Rule prohibit representation if the attorney is prohibited from acting because of events before the individual became an attorney, for example, work that the individual did while a law student. Such individuals, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the non-attorneys and the firm have a legal duty to protect.”
Accordingly, it is the opinion of this Committee that the MARPC do not require that a clinic conduct conflict checks for clients of student-attorneys’ outside employers. Rather, a clinic is obligated only to run conflict checks on its current and former clients pursuant to Rules 1.7 and 1.9.
Notwithstanding any obligation to conduct a conflicts check against outside employers’ clients, pursuant to Rule 1.10, where questions of loyalty or concerns for the protection of confidences are present, the clinic should ordinarily screen[3] affected student-attorney from any participation in the matter. Thus, whenever a student-attorney becomes aware of a direct conflict under Rule 1.7 or an imputed conflict secondary to the possession of confidential information under 1.10, without revealing the nature of the personal interest or confidential information, the student-attorney should immediately disclose the issue, and the clinic should timely screen any student-attorney who may have a personal conflict of interest or who possesses confidential information obtained during the course of outside employment.[4]
We recognize that the clinic’s ability to timely screen student-attorneys pursuant to Rule 1.10 is necessarily dependent upon the student-attorneys’ ability to recognize and disclose either (a) the existence of questions of loyalty (including conflicting personal interests), or (b) the possession of confidential information obtained during outside employment. Consequently, we encourage both clinic programs and outside employers to educate student-attorneys regarding their individual ethical obligations under Rules 1.6, 1.7, 1.9, 1.10, and 5.3, and assist student-attorneys in ensuring compliance with those obligations to the extent practicable.
We believe that the practices outlined in your inquiry: (1) restricting the case management system access of student-attorneys who are also employed outside the clinic, and (2) requiring student attorneys to review a bi-weekly memo with the names of new clinic clients, with the intent of identifying conflicts, operate to assist student-attorneys in the manner suggested.
However, requiring student-attorneys to disclose all matters in which they are, or have recently been, “substantially involved” during outside employment may inadvertently induce student attorneys to breach confidentiality obligations owed to outside employers’ clients pursuant to Rule 5.3. We would instead encourage clinic programs to ask students to disclose the existence of any ethical concerns, without revealing the nature of the concern, thereby complying with Rule 5.3 while allowing for the timely screening of the affected student-attorney(s) pursuant to Rule 1.10.
We hope this response is helpful. Thank you for contacting the Committee on Ethics.
Very truly yours,
MSBA COMMITTEE ON ETHICS
[1] See Rule 1.0(e) defining firm” or “law firm” as: "(1) an association of an attorney or attorneys in a law partnership, professional corporation, sole proprietorship or other association formed for the practice of law; or (2) a legal services organization or the legal department of a corporation, government, or other organization."
[2] See Rule 1.7, Comment [10] (personal conflict may exist where the probity of the attorney’s own conduct is at issue or where the attorney is discussing employment with the client’s opponent or the law firm representing the opponent); see also Rule 1.7, Comment [11] (attorney’s familial relationship may give rise to a conflict of interest); see also Podieh v. State, 470 Md. 272, 296 (2020) (concluding defense counsel had personal conflict of interest when he was “embroiled as a defendant in on-going litigation and one of the witnesses in that litigation is also the arresting officer in an unrelated criminal case involving counsel’s client.”); see also Taylor v. State, 428 Md. 386 (2012) (defense counsel had personal conflict of interest where attorney sued defendant for unpaid attorney’s fees prior to trial); see also Rubin v. Gee, 292 F.3d 396 (4th Cir. 2002) (after defendant shot her husband, attorneys arrived at scene, took possession of evidence, and instructed client in evasive tactics in furtherance of their personal interest in securing a retainer fee).
[3] “‘Screened’ denotes the isolation of an attorney from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated attorney is obligated to protect under these Rules or other law.” See MARPC 19-301.0(m).
[4] Comments [10] and [11] to Rule 1.10 provide guidance on when and how to screen an affected individual.
REFERENCES:
Rules cited
• MARPC 19-301.0(m),
• MARPC 19-301.7,
• MARPC 19-301.9,
• MARPC 19-301.10,
• MARPC 19-305.3,
• Md. Rule 19-220,
• Md. Rule 19-701(b)
Cases cited
• Podieh v. State, 470 Md. 272, 296 (2020)
• Taylor v. State, 428 Md. 386 (2012)
• Rubin v. Gee, 292 F.3d 396 (4th Cir. 2002)