Conflicts and Ethics

• Jurisdiction: Maryland

IX. Conflicts and ethics

A. Certain attorney solicitation prohibited

An attorney may not solicit professional employment from a prospective client under the following circumstances:

1. In-person solicitation prohibited in certain circumstances

Solicitation is prohibited in-person, by live telephone, or by real-time electronic means, when a significant motive is pecuniary gain, unless the person solicited is an attorney or has a family, close personal, or prior professional relationship with the soliciting attorney. On the other hand, general advertising and written, recorded, or electronic communications are acceptable because they can be permanently recorded and made available for third-person scrutiny. Attorney Grievance Comm'n v. Gregory, 311 Md. 522, 528 (1988) (attorney censured for approaching criminal defendants as they left the courtroom and handing them solicitation form letters). MRPC 7.3(a).

2. Solicitation prohibited if solicited person cannot exercise judgment because of physical, emotional, or mental condition

Even when solicitation is otherwise permissible, it is prohibited if the attorney knows, or reasonably should know, that the physical, emotional, and/or mental state of the prospective client may preclude that person from exercising reasonable judgment in employing counsel. In Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), the Supreme Court stated: "[I]t need hardly be said that the potential for overreaching is significantly greater when a lawyer, a professional in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person." Id. at 464-65; see MRPC 7.3(b)(1).

3. Solicitation prohibited if person solicited has made it known to the soliciting attorney a desire not to be solicited

If the solicited person has made it known to the soliciting attorney that he or she does not wish to be solicited, solicitation is prohibited. MRPC 7.3(b)(2).

4. Coercion, duress, or harassment

Solicitation by means of coercion, duress, or harassment is prohibited. MRPC 7.3(b)(3).

5. Advertising materials

Every written, recorded, or electronic communication from an attorney soliciting professional employment to a prospective client who is known to be in need of legal services must include the words "Advertising Material" on the outside envelope and at the beginning and ending of any recorded or electronic communication, unless going to a permissible solicitee. MRPC 7.3(c).

6. Constitutional challenge

In Ficker v. Curran, 119 F.3d 1150 (4th Cir. 1997), the Fourth Circuit addressed a Maryland statute that required a 30-day waiting period for soliciting prospective criminal or traffic clients. The Court held that it was unconstitutional to prohibit solicitation of criminal and traffic clients because it was constitutionally protected commercial speech. Id. at 1153. Targeted letters do not invade privacy, and criminal defendants need representation. Id. at 1151. In 2009, the Attorney Grievance Commission of Maryland notified 130 attorneys that their solicitation letters did not comply with the statute and/or MRPC 7.1 to 7.5. Attorney Grievance Comm'n of Maryland 35th Annual Report 1, 25 (July 1, 2009 to June 30, 2010).

B. Entering an attorney-client relationship

If an attorney and client desire to enter into an attorney-client relationship, they should agree, with specificity, to the terms of the relationship and representation. MRPC 1.5(b). It is always advisable to use a written legal services agreement. Id. However, a written agreement is required only if the attorney and client agree that the attorney may take the entire fee at the beginning of the representation, as opposed to taking the fee "as earned."

If there is a court proceeding, defense counsel must enter appearance within five days after the later of (1) acceptance of employment or appointment, or (2) the filing of a Circuit Court charging document. Md. Rule 4-214(a). Entry of appearance in District Court is automatically transferred to Circuit Court if the defendant in District Court prays a jury trial. Id. Otherwise, counsel must re-enter appearance in Circuit Court. Id.

C. Declining to enter an attorney-client relationship

A public defender is obligated to accept a client who qualifies for services from the OPD. Md. Code Ann., Crim. Proc. § 16-207(a). For private counsel, it is optional to accept or reject a client. An attorney is required to decline representation if the attorney reasonably believes that such representation will cause the attorney to violate the MRPC or other laws, MRPC 1.16(a)(1), or if defense counsel's physical or mental condition materially impairs the ability to represent the defendant. MRPC 1.16(a)(2).

D. Duty to former clients

There is a potential conflict of interest based on the attorney's representation of a former client or the attorney's present or former law firm's former representation of that client. MRPC 1.9(c). An attorney who formerly represented a client may not use or reveal information relating to such representation to the disadvantage of the former client, unless the information is publicly known. MRPC 1.9(c)(1). An attorney who formerly represented a client may not thereafter represent another individual in the same or a substantially related matter in which that individual's interest is materially adverse to the interest of the former client, unless the former client gives written informed consent. MRPC 1.9(a).

E. Duty to prospective client

An attorney who has discussed forming an attorney-client relationship with a prospective client may not reveal information learned when consulting with the prospective client, even if an attorney-client relationship does not result. MRPC 1.18(b). An attorney may not represent a prospective client if that individual has an interest that is materially adverse to the interests of a present client in the same or a substantially related matter. MRPC 1.18(c). Representation is permissible if both the present client and the prospective client give informed written consent. MRPC 1.18(d).

F. Confidentiality of information

1. Defense counsel may not reveal certain information

An attorney may not reveal information related to, or learned during, the representation, unless the client gives written informed consent. MRPC 1.6(a).

2. Exceptions

Defense counsel may reveal information if reasonably believed necessary to the representation. Disclosure of confidential information may be necessary to (a) prevent reasonably certain death or substantial bodily harm; (b) prevent the client from committing a crime or fraud with substantial injury to persons, property, and/or financial interests, particularly, if the client has used the attorney's services to further that harm; or (c) prevent, mitigate, or rectify substantial injury to financial interests or property reasonably certain to result in, or has resulted from, the defendant's commission of a crime or fraud, if the defendant used defense counsel's services to further that harm. MRPC 1.6(b)(1)-(3).

3. Attorney defending self

Disclosure of attorney-client information may be permitted for counsel to defend against (a) an allegation of ineffective assistance of counsel; (b) an allegation of legal malpractice; (c) a civil claim; (d) criminal charges; or (e) a disciplinary complaint. MRPC 1.6(b)(5).

4. Attorney's fees are usually not protected under attorney-client privilege

In In Re Criminal Investigation No. 1/296X in Circuit Court for Anne Arundel County, 336 Md. 1, 4 (1994), during a criminal tax investigation, a grand jury issued a subpoena duces tecum for the attorney's records of attorney's fees paid. The attorney filed a motion to quash. The Court of Appeals held that the attorney-client privilege protects only confidential communications, which does not include attorney's fees paid. Id. at 11. The Court recognized that disclosure of potentially incriminating fee records may have a chilling effect on the attorney-client relationship, but that alone does not justify refusal to comply with a lawful grand jury subpoena for non-privileged information.

In Chaudhry v. Gallerizzo, 174 F.3d 394, 402-03 (4th Cir. 1999), the Fourth Circuit held that billing information is protected by the attorney-client privilege if that information would reveal counsel's strategy.

G. Attorney as advocate

1. Meritorious claims or contentions

Under MRPC 3.1, neither defense counsel nor the prosecutor may assert a frivolous position, including a lack of good faith in arguing for an extension, modification, or overruling of existing law. In Attorney Grievance Comm'n v. Culver, 381 Md. 241, 263 (2004), the Court of Appeals held that an attorney violated MRPC 3.1 by filing a defamation suit and a bankruptcy petition as diversionary tactics.

In Attorney Grievance Comm'n v. Richardson, 350 Md. 354, 363 (1998), the Court of Appeals held that an attorney violated MRPC 3.1 when, after an unsuccessful attempt to overturn a court order to reimburse an estate based on excessive fees, the attorney filed a federal lawsuit against the judge, the attorneys who succeeded, and the personal representative of the estate and his spouse.

Regardless of the weakness of a criminal defendant's case, defense counsel may always require the prosecution to prove every element of the case beyond a reasonable doubt. MRPC 3.1.

2. Extra-judicial statements

General rule

Neither the prosecutor nor defense counsel may make extra-judicial statements, reasonably knowing they will be disseminated to the public, with a substantial likelihood of materially prejudicing the adjudicative process, i.e., attorneys may not "try their case" in the media. MRPC 3.6(a).

The prosecutor should refrain from and should ensure that staff refrains from, making extra-judicial statements that have a substantial likelihood of heightening the public condemnation of the defendant. MRPC 3.8(e). The prosecutor should avoid public statements with no legitimate law enforcement...