Maryland Bar Bulletin
Publications : Bar Bulletin : November 2007

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Did you know that the Maryland State Bar Association’s (MSBA) Ethics Committee offers a free hotline service to any member encountering an ethical dilemma and provides a written response to all written inquiries about ethical problems? MSBA’s Ethics Committee offers this valuable membership service to support members who are experiencing difficulties. Contact the Ethics Committee if you need guidance with an ethical concern.

The MSBA Committee on Ethics has assisted members for more than 40 years in addressing professional challenges. Unfortunately, the Committee is largely unknown to many members and too few know when, or how, to approach it. The following discussion is intended to dispel the mystery shrouding the Committee’s operations.

The Committee on Ethics

The MSBA bylaws provide that there shall be a Standing Committee on Ethics “to render and publish opinions on the proper interpretation of the Maryland Rules of Professional Conduct and the Code of Judicial Conduct in its discretion, either on its own initiative or upon the request of any person, judge, court, corporation or association.” Article VII, Section 3, MSBA Bylaws. Currently, the Committee operates with approximately 25 members, including several judges. It has two principal functions: it authors written opinions and it staffs an Ethics Hotline.

The Ethics Hotline

The Ethics Hotline was designed to answer questions carrying some immediacy. Each month the hotline is staffed by three members. Their names and phone numbers are published in the Bar Bulletin (see Page 3) and on the MSBA website. They are practicing lawyers, like yourselves, and consequently they are not sitting by a red phone at Bar Headquarters that flashes ominously when you call. Rather, you place your call directly to one of the three individuals serving that month at his or her office. The Committee member you call may be busy or out of the office. If your issue cannot wait for a return call, we recommend you try one of the other two lawyers.

Generally, we prefer to answer settled questions on the hotline. We restrict ourselves as much as possible to questions directly addressed by the Rules of Professional Conduct or that have been addressed in prior ethics opinions. Committee guidelines expressly state that advice received through the hotline represents the interpretation of the individual Committee member and shall not be considered the opinion of the Committee.

The Opinion-Writing Process

Our second function is more deliberative. The Committee prepares and publishes ethics opinions in response to your written inquiries. Inquiries should be directed by mail or e-mail to the Chair of the Committee and addressed to Bar Headquarters or directly to the Chair’s office. When your request is received, the Chair will docket it, send you an acknowledgment letter, and assign the inquiry to an individual Committee member to draft a proposed opinion.

The Committee has monthly meetings and the draft opinion will be discussed at the next scheduled meeting. The process is both collegial and contentious. Twenty-five lawyers do not readily agree on much of anything. Accordingly, our deliberations on a particular opinion often require more than a single meeting, and it can take some time to generate a final opinion. However, unlike the opinions you receive from the hotline, written opinions represent the considered judgment of the full committee after thorough debate. The Committee’s written opinions necessarily carry greater force.

Your written request for an opinion should contain a concise statement of the essential facts needed to address the issue and a statement of the Rules you believe are implicated. Names are unnecessary and, in fact, if you refer to parties by name we will replace these references with fictitious designations in our published opinion. We accept inquiries made in hypothetical form, but we must insist you not use the hypothetical inquiry as a subterfuge for obtaining an opinion regarding the past conduct of another lawyer. If you have reason to believe a Committee member should recuse himself from participation, please highlight this request in your inquiry.

There are self-imposed restrictions on the kinds of inquiries we will answer. The Committee refrains from rendering opinions on questions of law, because our mandate is to interpret the Rules of Professional Conduct, not to give legal advice. We generally decline to answer inquiries that may become, or are, the subject of litigation because we do not want to interfere with the judicial process. We will, however, answer such an inquiry if the Court so requests.

Also, we generally decline to answer inquiries regarding past violations of the Rules by another lawyer, because we do not want to interfere with the disciplinary process. We also refrain from “approving” advertising copy, because we have no authority to do so. We will, however, address an inquiry that asks if a particular statement in proposed advertising copy would, in our judgment, violate a specific Rule.

The Ethics Committee is not a branch of the judiciary or state government. Accordingly, committee opinions do not have the force of law and are not binding precedent. That said, Ethics Opinions do have real influence. The Maryland Court of Appeals noted in Attorney Grievance Commission of Maryland v. Gregory, 311 Md. 522, 531, 536 A.2d 646, 651 (1988):

[A]n opinion of the Ethics Committee of the Bar Association is advisory, and is not binding on this Court. As a practical matter, however, where an attorney can demonstrate reasonable reliance upon an ethics opinion on point, that fact is likely to have a significant effect on the initial decision of the Attorney Grievance Commission concerning the filing of a complaint, as well as upon the determination or disposition of those charges that may be filed.

Now that you know how, we invite you to consult the Committee on Ethics when you next face an ethical quandary.


 

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Publications : Bar Bulletin: November  2007