Md. R. Att'y 19-301.0
Md. R. Att'y 19-301.0
COMMENT
Confirmed in Writing--[1] If it is not feasible to obtain or transmit a written confirmation at the time the client gives informed consent, then the attorney must obtain or transmit it within a reasonable time thereafter. If an attorney has obtained a client's informed consent, the attorney may act in reliance on that consent so long as it is confirmed in writing within a reasonable time thereafter.
Diminished Capacity - [2] When an attorney is presented with signs that a client is or appears to be struggling with the ability to receive, understand, or process information, a "decreased ability" may be present. Examples of factors that could impede an individual's decision-making include a minor's age, a temporary or permanent mental impairment, addiction, and physical or emotional trauma. In some cases, a decreased ability may be alleviated or eliminated by the use of supports and accommodations that maximize the ability to make, communicate, or effectuate the client's own decisions. Examples of supports and accommodations include effective communication devices or services, using assistance of appropriate third parties, providing an environment supportive of the client's abilities, and modifying the attorney's communication and counseling technique with the client. See generally Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. Diminished capacity can be situational in nature, varying in degree, or affect some but not all decisions. See Rule 19-301.14 (1.14).
Firm--[3] Whether two or more attorneys constitute a firm within section (e) of this Rule can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way that suggests that they are a firm or conduct themselves as a firm, they should be regarded as a firm for purposes of the Rules. The terms of any formal agreement between associated attorneys are relevant in determining whether they are a firm, as is the fact that they have mutual access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the Rule that is involved. A group of attorneys could be regarded as a firm for purposes of the Rule providing that the same attorney should not represent opposing parties in litigation, while it might not be so regarded for purposes of the Rule that information acquired by one attorney is attributed to another.
[4] With respect to the law department of an organization, including the government, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Maryland Attorneys' Rules of Professional Conduct. There can be uncertainty, however, as to the identity of the client. For example, it may not be clear whether the law department of a corporation represents a subsidiary or an affiliated corporation, as well as the corporation by which the members of the department are directly employed. A similar question can arise concerning an unincorporated association and its local affiliates.
[5] Similar questions can also arise with respect to attorneys in legal aid and legal services organizations. Depending upon the structure of the organization, the entire organization or different components of it may constitute a firm or firms for purposes of these Rules.
Fraud--[6] When used in these Rules, the terms "fraud or "fraudulent refer to conduct that is characterized as such under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these Rules, it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform.
Informed Consent--[7] Many of the Maryland Attorneys' Rules of Professional Conduct require the attorney to obtain the informed consent of a client or other person (e.g., a former client or, under certain circumstances, a prospective client) before accepting or continuing representation or pursuing a course of conduct. See, e.g., Rules 19-301.2(c) (1.2), 19-301.6 (a) (1.6) and 19-301.7 (b) (1.7). The communication necessary to obtain such consent will vary according to the Rule involved and the circumstances giving rise to the need to obtain informed consent. The attorney must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client's or other person's options and alternatives. In some circumstances it may be appropriate for an attorney to advise a client or other person of facts or implications already known to the client or other person to seek the advice of another attorney. An attorney need not inform a client or other person of facts or implications already known to the client or other person; nevertheless, an attorney who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid. In determining whether the information and explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in legal matters generally and in making decisions of the type involved, and whether the client or other person is independently represented by another attorney in giving the consent. Normally, such persons need less information and explanation than others, and generally a client or other person who is independently represented by another attorney in giving the consent should be assumed to have given informed consent.
[8] Obtaining informed consent will usually require an affirmative response by the client or other person. In general, an attorney may not assume consent from a client's or other person's silence. Consent may be inferred, however, from the conduct of the client or other person who has reasonably adequate information about the matter. A number of Rules require that a person's consent be confirmed in writing. See Rules 19-301.7(b) (1.7) and 19-301.9 (a) (1.9). For a definition of "writing and "confirmed in writing, see sections (q) and (b) of this Rule. Other Rules require that a client's consent be obtained in a writing signed by the client. See, e.g., Rules 19-301.5(c) (1.5) and 19-301.8 (a) (1.8). For a definition of "signed, see section (q) of this Rule.
Screened--[9] This definition applies to situations where screening of a personally disqualified attorney is permitted to remove imputation of a conflict of interest under Rules 19-301.10 (1.10), 19-301.11 (1.11), 19-301.12 (1.12) or 19-301.18 (1.18).
[10] The purpose of screening is to assure the affected parties that confidential information known by the personally disqualified attorney remains protected. The personally disqualified attorney should acknowledge the obligation not to communicate with any of the other attorneys in the firm with respect to the matter. Similarly, other attorneys in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified attorney with respect to the matter. Additional screening measures that are appropriate for the particular matter will depend on the circumstances. To implement, reinforce and remind all affected attorneys of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened attorney to avoid any communication with other firm personnel and any contact with any firm files or other materials relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened attorney relating to the matter, denial of access by the screened attorney to firm files or other materials relating to the matter and periodic reminders of the screen to the screened attorney and all other firm personnel.
[11] In order to be effective, screening measures must be implemented as soon as practical after an attorney or law firm knows or reasonably should know that there is a need for screening.
Model Rules Comparison: Rule 19-301.0 (1.0) is substantially similar to the language of the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct except for the retention of the definition of "consult and "consultation, the addition of the definition of "diminished capacity," the addition of a cross reference to "law firm," and the appropriate redesignation of subsections sections.