MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2016-05

Do the Maryland Rules of Professional Conduct permit an attorney licensed in District of Columbia and Illinois to work with a law firm as “Of Counsel” representing clients in various locations -including California, Maryland, Virginia, and the District of Columbia -in Federal Security Clearance matters, which are administrative proceedings before federal agencies such as the U.S. Department of Defense, the National Security Agency, and other agencies

Question Presented:  

Do the Maryland Rules of Professional Conduct permit an attorney licensed in District of Columbia and Illinois to work with a law firm as “Of Counsel” representing clients in various locations – including California, Maryland, Virginia, and the District of Columbia – in Federal Security Clearance matters, which are administrative proceedings before federal agencies such as the U.S. Department of Defense, the National Security Agency, and other agencies.

Summary Conclusion:  

If the lawyer is permitted to appear before the federal agencies in accordance with federal law and the lawyer’s practice is limited to those federal matters, that practice would be permitted the Maryland Rules of Professional Conduct. However, the Committee emphasizes that this opinion is subject to several limitations and caveats, which are discussed below.

Facts Provided:

In your inquiry you pose the following scenario:

You would like to have an individual who is an active member in good standing of the District of Columbia Bar (and an inactive member of the Illinois Bar) who is NOT a member of the Maryland Bar work with your law firm on matters involving federal agencies and federal regulations as Of Counsel from his home in Maryland. He would not meet with his clients at his home, but would meet with them in a public place or government building prior to any hearing or appearance, and those meetings might take place in Maryland.

Current members of your firm are licensed in California and the District of Columbia and none are members of the Maryland Bar. All current members work from their homes in California and the District of Columbia.

The firm does exclusively Federal Security clearance appeal matters –which are administrative proceedings before Federal Departments and Agencies such as the Department of Defense, National Security Agency and others. There is no right to judicial review in these matters; administrative rulings are final.

The firm does its work and contact with clients electronically (a “virtual law office”) and members physically appear at various locations with clients in California, Maryland, Virginia, the District of Columbia and various other states where the Federal Agencies may conduct a hearing. Clients never come to the home offices and are met in person only at the hearing locations (or, on rare occasions, in a public place).

The individual whom you propose to add to the firm as Of Counsel would work in the same fashion. His home office in Maryland would NOT be listed as a firm location, nor would it be advertised and no clients would meet with him at his home in Maryland. He would maintain a private home office in Maryland for the purpose of writing, electronic research and communications.

You have represented that all advertising of your firm prominently advises that your practice is limited exclusively to matters and proceedings pertaining to denial or revocation of Federal personnel security clearances (and, as an ancillary matter, “Common Access Cards”). Publicly-available mailing addresses for your firm are in Washington, D.C. and California only, but you do advertise that your federal security clearance practice is nationwide.

The security clearances are needed for access to Federal classified information or performance of sensitive duties affecting the national security, and Federal Common Access Cards are needed for access to Federal Buildings or computer systems. Denial or revocation of these personnel security clearances and Common Access Cards are governed exclusively by Federal law.

Opinion:

The Committee first notes that the unauthorized practice of law in Maryland is governed not only by the Rules of Professional Conduct, but also by statute.

Maryland Code, Business Occupations and Professions Article, § 10-601, Practicing without admission to Bar, provides that, “[e]xcept as otherwise provided by law, a person may not practice, attempt to practice, or offer to practice law in the State unless admitted to the Bar. (Emphasis added). In addition, with respect to advertising and other communications, Section 10-602. Misrepresentation as authorized practitioner, provides that “[u]nless authorized by law to practice law in the State, a person may not represent to the public, by use of a title, including “lawyer”, “attorney at law”, or “counselor at law”, by description of services, methods, or procedures, or otherwise, that the person is authorized to practice law in the State.” The “practice” of law is defined in Section 10­101, which provides that the practice of law includes: (i) giving legal advice; (ii) representing another person before a unit of the State government or of a political subdivision; or (iii) performing any other service that the Court of Appeals defines as practicing law.

The practice of law is also governed by the Maryland Rules of Professional Conduct. Under Rule 5.5, Unauthorized Practice of Law; Multijurisdictional Practice of Law:

(b) A lawyer who is not admitted to practice in this jurisdiction shall not:

(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. ….

(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:

(2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

(Emphasis added). With respect to your inquiry, several of the “COMMENTS” to Rule 5.5 are also instructive.

COMMENT [18] Paragraph (d)(2) recognizes that a lawyer may provide legal services in a jurisdiction in which the lawyer is not licensed when authorized to do so by federal or other law, which includes statute, court rule, executive regulation or judicial precedent. (Emphasis added).

COMMENT [19] A lawyer who practices law in this jurisdiction pursuant to paragraph (c) or (d) or otherwise is subject to the disciplinary authority of this jurisdiction. See Rule 8.5(a) and Md. Rules 16-701 and 16-731.

COMMENT [21] Paragraphs (c) and (d) do not authorize communications advertising legal services to prospective clients in this jurisdiction by lawyers who are admitted to practice in other jurisdictions. Rules 7.1 to 7.5 govern whether and how lawyers may communicate the availability of their services to prospective clients in this jurisdiction.1

Based on these rules and the related comments, if federal law permits the attorney to practice before the federal department or agency, then subject to the caveats below, the attorney may work from his home in Maryland on matters relating to that federal practice.

Caveats:  

First, as noted above, in order to do what you propose to do, the lawyer in question would have to be authorized by federal law or executive order to represent, or to provide legal services to, clients regarding federal security clearance appeal matters.

If that caveat is met, an attorney who is licensed in a jurisdiction other than Maryland, who is registered and authorized to practice before a federal security clearance appeal Administrative Judge or Board, and who is a member of a law firm can provide legal services and representation related to federal security clearance appeals to all clients needing such services and representation regardless of where the clients are located. These services and representation may include rendering legal advice and/or written opinions for clients on issues related to a federal security clearance appeal. The attorney can conduct this practice and provide these services while physically in Maryland and without the supervision or association of a Maryland licensed attorney, so long as the attorney limits his/her activity to the practice of a federal security clearance appeal law and is not in any manner attempting to practice Maryland law, or holding him or herself out as a Maryland attorney.

Provided the attorney’s practice is limited as described herein, he or she may also maintain an office in Maryland to conduct that limited practice. The attorney would also be permitted to provide advice and counsel regarding a federal security clearance appeal matter to a Maryland client from a location outside of Maryland, without running afoul of unauthorized practice in Maryland. However, the extent to which the attorney can conduct his/her practice outside of Maryland will depend upon the unauthorized practice rules and/or rules of professional conduct in those other jurisdictions.

While a non-Maryland security clearance attorney can fully engage in a federal security clearance appeal practice from an office in Maryland, Rules 7.1 and 7.5 would require that an attorney who is not licensed in Maryland exercise caution regarding public information concerning his or her practice. Specifically, the attorney would need to confirm that all information on the internet (as well as letterhead, business cards, etc.)clearly indicate his/her limitations of practice. This can be accomplished either by denoting the jurisdiction(s) where the attorney is licensed, stating that the attorney is “not licensed in Maryland” and by indicating that the attorney’s practice is limited to an area of federal law by permitted federal law, which does not require Maryland State Bar membership.

See e.g., Attorney violated Maryland statute and Rules 5.5 and 7.1 regarding unauthorized practice by failing to indicate on his business cards, stationery or office signs that his practice was limited to the federal courts in Maryland, by representing clients in the Maryland State courts, even though he had not been admitted to practice in those courts, and by leading clients, the court, and the general public to believe that he was admitted to practice in the State courts of Maryland. Att’y Griev. Comm’n v. Alsafty, 379 Md. 1, 838 A.2d 1213 (2003).

Conclusion:  

Based the information you have provided, if the caveats set forth above are met, and there is a federal statute, rule or executive regulation that permits attorneys to appear before the ALJ and/or Appeal Board, the arrangement you propose would be consistent with the Maryland Rules of Professional Conduct. We hope this opinion has been responsive to your inquiry.

 

1. Rule 7.1. Communications Concerning a Lawyer’s Services, provides that [a]lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it: (a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. Rule 7.5. Firm Names and Letterheads, provides that (a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1, and (b) A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers must indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.