Md. R. Att'y 19-305.7
Md. R. Att'y 19-305.7
COMMENT
[1] When an attorney performs law-related services or controls an organization that does so, there exists the potential for ethical problems. Principal among these is the possibility that the person for whom the law-related services are performed fails to understand that the services may not carry with them the protections normally afforded as part of the client-attorney relationship. The recipient of the law-related services may expect, for example, that the protection of client confidences, prohibitions against representation of persons with conflicting interests, and obligations of an attorney to maintain professional independence apply to the provision of law-related services when that may not be the case.
[2] Rule 19-305.7 (5.7) applies to the provision of law-related services by an attorney even when the attorney does not provide any legal services to the person for whom the law-related services are performed and whether the law-related services are performed through a law firm or a separate entity. The Rule identifies the circumstances in which all of the Maryland Attorneys' Rules of Professional Conduct apply to the provision of law-related services. Even when those circumstances do not exist, however, the conduct of a attorney involved in the provision of law-related services is subject to those Rules that apply generally to attorney conduct, regardless of whether the conduct involves the provision of legal services. See, e.g., Rule 19-308.4 (8.4).
[3] When law-related services are provided by an attorney under circumstances that are not distinct from the attorney's provision of legal services to clients, the attorney in providing the law-related services must adhere to the requirements of the Maryland Attorneys' Rules of Professional Conduct as provided in subsection (a)(1) of this Rule. Even when the law-related and legal services are provided in circumstances that are distinct from each other, for example through separate entities or different support staff within the law firm, the Maryland Attorneys' Rules of Professional Conduct apply to the attorney as provided in subsection (a)(2) of this Rule unless the attorney takes reasonable measures to assure that the recipient of the law-related services knows that the services are not legal services and that the protections of the client-attorney relationship do not apply.
[4] Law-related services also may be provided through an entity that is distinct from that through which the attorney provides legal services. If the attorney individually or with others has control of such an entity's operations, the Rule requires the attorney to take reasonable measures to assure that each person using the services of the entity knows that the services provided by the entity are not legal services and that the Maryland Attorneys' Rules of Professional Conduct that relate to the client-attorney relationship do not apply. An attorney's control of an entity extends to the ability to direct its operation. Whether an attorney has such control will depend upon the circumstances of the particular case.
[5] An attorney is not required to comply with Rule 19-301.8(a) (1.8) when referring a person to a separate law-related entity owned or controlled by the attorney for the purpose of providing services to the person. If the attorney also is providing legal services to the person, the attorney must exercise independent professional judgment in making the referral. See Rule 19-302.1 (2.1). Moreover, the attorney must explain the matter to the person to the extent necessary for the person to make an informed decision to accept the attorney's recommendation. See Rule 19-301.4(b) (1.4).
[6] In taking the reasonable measures referred to in subsection (a)(2) of this Rule to assure that a person using law-related services understands the practical effect or significance of the inapplicability of the Maryland Attorneys' Rules of Professional Conduct, the attorney should communicate to the person receiving the law-related services, in a manner sufficient to assure that the person understands the significance of the fact, that the relationship of the person to the business entity will not be a client-attorney relationship. The communication should be made before entering into an agreement for provision of or providing law-related services, and preferably should be in writing.
[7] The burden is upon the attorney to show that the attorney has taken reasonable measures under the circumstances to communicate the desired understanding. For instance, a sophisticated user of law-related services, such as a publicly held corporation, may require a lesser explanation than someone unaccustomed to making distinctions between legal services and law-related services, such as an individual seeking tax advice from a attorney-accountant or investigative services in connection with a lawsuit.
[8] Regardless of the sophistication of potential recipients of law-related services, an attorney should take special care to keep separate the provision of law-related and legal services in order to minimize the risk that the recipient will assume that the law-related services are legal services. The risk of such confusion is especially acute when the attorney renders both types of services with respect to the same matter. Under some circumstances the legal and law-related services may be so closely entwined that they cannot be distinguished from each other, and the requirement of disclosure and consultation imposed by subsection (a)(2) of this Rule of the Rule cannot be met. In such a case an attorney will be responsible for assuring that both the attorney's conduct and, to the extent required by Rule 19-305.3 (5.3), that of non-attorney employees in the distinct entity that the attorney complies in all respects with the Maryland Attorneys' Rules of Professional Conduct.
[9] A broad range of economic and other interests of clients may be served by attorneys' engaging in the delivery of law-related services. Examples of law-related services include providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical or environmental consulting.
[10] When an attorney is obliged to accord the recipients of such services the protections of those Rules that apply to the client-attorney relationship, the attorney must take special care to heed the proscriptions of the Rules addressing conflict of interest (Rules 19-301.7 (1.7) through 19-301.11 (1.11), especially Rules 19-301.7(a)(2) (1.7) and 19-301.8 (b) and (f) (1.8), and to scrupulously adhere to the requirements of Rule 19-301.6 (1.6) relating to disclosure of confidential information. The promotion of the law-related services must also in all respects comply with Rules 19-307.1 (7.1) through 19-307.3 (7.3), dealing with advertising and solicitation. In that regard, attorneys should take special care to identify the obligations that may be imposed as a result of a jurisdiction's decisional law.
[11] When the full protections of all of the Maryland Attorneys' Rules of Professional Conduct do not apply to the provision of law-related services, principles of law external to the Rules, for example, the law of principal and agent, govern the legal duties owed to those receiving the services. Those other legal principles may establish a different degree of protection for the recipient with respect to confidentiality of information, conflicts of interest and permissible business relationships with clients. See also Rule 19-308.4 (8.4) (Misconduct).
[12] Regarding an attorney's referrals of clients to non-attorney professionals, see Rule 19-307.2(c) (7.2) and related Comment.
Model Rules Comparison: This Rule, newly added to the Model Rules by the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct, is substantially similar to the ABA Rule, with the exception of changes to Comment [5] and the addition of Comment [12].