Committee on Ethics
You have requested an opinion regarding your responsibilities under the Rules of Professional Conduct if you establish a practice that provides legal research and “ghost” writing services to attorneys and firms in Maryland and other jurisdictions. Your business would only provide legal research and writing without direct client contact. Your plan would be to provide services only to the attorney or firm who engages you, not specific clients. In large measure, your proposal mimics the relationship of any of the hiring firm’s other independent contractors except, unlike non-lawyers, you are an attorney who can be bound by the Rules of Professional Conduct. You specifically ask the following questions that we describe as follows:
- Will the arrangement result in forming an attorney-client relationship with either the hiring firm, the hiring firm’s client or both?
- Will the arrangement subject the work provided to the Maryland Rules of Professional Conduct (MPRC)?
- Under the MPRC, are you permitted to enter an arrangement with other attorneys where those attorneys re-bill higher fees to their clients and retain the difference in those fees for themselves?
- Under the MPRC, what information are the hiring attorneys required to provide to their clients concerning the use of the services?
Your inquiry noted that you reviewed ABA Formal Opinions No. 08-451 and No. 00-420 and that you placed a call to the MSBA hotline. The ABA opinions cited address the hiring attorney’s responsibility when engaging temporary lawyers at a firm specifically addressing the imputed disqualification issues of Rule 1.10 (ABA Op. No. 00-420) and the responsibility of the hiring attorney and supervising attorneys when outsourcing legal services (ABA Op. No. 08-451). Thus, the opinions look at the Rules from the other side of the engagement (i.e. the hiring attorney’s duties) as opposed to the duties of the temporary or contract lawyer being hired.
The Committee recognizes that the practice of law no longer looks like it did in the 19th or 20th Centuries. The structures of law firms often involve significantly more outsourcing than envisioned when the Rules of Professional Conduct were written. Vast changes in technology and greater reliance on international outsourcing have occurred even since the relatively recent revisions to the Rules in the early part of this Century. At the same time, law schools have been graduating prospective lawyers in numbers much greater than the absorption rates for these professionals, often making their employment prospects with established firms bleak. Those left out try to find new and imaginative ways to expand their value and get a return on the cost of their education. Indeed, this request reflects an inventive way to deal with the issues new lawyers face and allows the Committee an opportunity to evaluate how the current Rules apply, and may inspire changes in the Rules to allow greater opportunities for lawyers to expand legal services without diminishing the Rules’ purpose and policy.
The question of whether your work for a hiring firm creates an attorney client relationship either with the firm or its clients raises a legal question as opposed to an ethical one. Recognizing that the Committee does not opine on legal issues, the Committee nevertheless notes that under the Restatement (3rd) “The Law Governing Lawyers”:
“A relationship of client and lawyer arises when:
(1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either
(a) the lawyer manifests to the person consent to do so; or
(b) the lawyer fails to manifest a lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services…”
The Committee’s members disagree among themselves as to whether what you describe involves an attorney client relationship. The determination as to whether an attorney-client relationship exists is best left for assessment of particular facts. Nevertheless, all Committee members believe that Rule 1.6 applies under the circumstances you describe. In Maryland, Rule 1.6(a) (Rule 19-301.6(a)) provides:
“(a) An attorney shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by section (b) of this Rule.”
Because your work for the hiring firm contemplates work for its client, the Committee construes Rule 1.6(a) to apply and to bar an attorney from revealing information related to the representation of a client.
This Committee, consistent with rule 5.7, has construed the Rules to apply to lawyers providing law related services (1), so it goes without saying that the Rules apply to lawyers providing legal services. The extent to which the Rules apply and how they apply will vary based on the individual facts of each relationship. Suffice it to say, the issue of conflicts can arise and will depend on the facts of the engagement. Under scenarios like those raised by your questions, other committees have addressed the question of imputed disqualification under Rule 1.10 as well as direct conflicts under Rule 1.7 and conflicts associated with the representation of past clients under Rule 1.9. In this regard, the ABA Committee, and the Committees in DC, and Arizona among others have discussed the duties of both hiring firms and temporary lawyers under the Rules all of which add insight to the issues you raise. This Committee believes these opinions offer the correct balance when discussing imputed disqualification.
As discussed in the ABA Opinion 88-356, regardless of imputation, the temporary attorney or contract attorney “who works on matters for a client of the firm with whom the temporary lawyer is temporarily associated ‘represents’ that client for purposes of Rule 1.7 and Rule 1.9.” Thus, the contract lawyer could not work simultaneously on matters in conflict with the work for that client or on matters prohibited under Rule 1.9 for other clients after work for the firm and client end. In discussing confidentiality, the ABA points out that the Rule extends to all information gained in the representation of a client and in the context of a contract lawyer requires that any information the contract lawyer gains from representing a firm’s client, even information regarding other clients of the firm, falls under the protection of Rule 1.6. The District of Columbia Committee has addressed conflicts and imputed disqualification as has the Arizona Committee and each add valuable insight to the analysis. You can turn to DC Ethics Opinion 352 and Arizona Ethics Opinion 97-09 to help analyze your responsibilities under the Rules regarding conflicts.
Based on the foregoing and in response to your second question, the work you plan to provide to the hiring attorney is subject to the Maryland Rules of Professional Conduct (MPRC). In this regard, the facts you describe raise the troubling question of whether work you do for attorneys that are not admitted to the Maryland Bar violate the restrictions on the unauthorized practice of law. Specifically, if you do not accept responsibility for the client and the out of state attorney provides legal services to the client in a state where the attorney is not licensed, that activity may violate MPRC 5.5 (a) (“An attorney shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.”). Thus, you must inquire or confirm that the hiring attorney is not engaged in the unauthorized practice of law either by being appropriately licensed or fits into an exception outlined in 5.5 (c) below:
“Rule 5.5 – Unauthorized Practice of Law; Multijurisdictional Practice of Law
(c) A Lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with an attorney who is admitted to practice in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the attorney, or a person the attorney is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the attorney’s practice in a jurisdiction in which the attorney is admitted to practice and are not services for which the forum requires pro hac vice admission; or
(4) are not within subsections (c)(2) or (c)(3) of this Rule and arise out of or are reasonably related to the attorney’s practice in a jurisdiction in which the attorney is admitted to practice.”
Your third question asks whether the hiring attorney can bill for your services at a rate higher than what you have charged. A prior opinion of the Committee, 92-19, concluded that a lawyer could not “bill the client for any amount greater than that which it actually paid for the contractual services” and also concluded that the fee of a contract attorney should be billed as a cost and not as a legal fee. The ABA provided a much more extensive analysis of the issue in ABA Opinion 88-356. That opinion reached a different conclusion allowing a lawyer to bill these expenses either as costs or as fees, but differentiated the method for doing so and the responsibilities of the lawyer to the client. In essence, ABA Opinion 88- 356 provides that an attorney who bills the client for a contract attorney’s work as legal services can include its costs for assuming the responsibility of the work and time to review it; whereas when the firm bills the client for the services of the contracting lawyer as an expense and not as legal services then the firm could not attach a surcharge, but must pass the expense along to the client in the amount incurred. This Committee followed with its opinion 2001-31 regarding how a hiring attorney can structure billing arrangements for a contract attorney and commends that opinion to your attention. But, in answer to your question, you do not have a duty to inquire into the hiring attorney’s arrangements with the client for billing your services.
As to your last question, the Committee’s opinion in Docket No. 2001-31 discusses the hiring attorney’s responsibilities vis a vis the client and answers your question.
To conclude, the Committee believes that
- Your proposal to provide legal services to a law firm requires the Committee to opine on factual scenarios and answer a legal question; i.e., does an attorney client relationship exist. Under our operating structure we do not offer legal advice, but attempt to apply the Rule of Professional Conduct to inquiries and offer advice based on interpretation of the Rules.
- Your work will be subject to the Rules of Professional Conduct;
- You are permitted to enter into a relationship with an attorney to perform legal services where the hiring attorney bills the client for your services and imposes a surcharge (Ethics Docket 2001-31); and
- Our opinion 2001-31 addresses the question of the hiring firm’s obligation to the client and fully answers this aspect of your inquiry.
(1) For example, in Docket No. 17-03, this Committee recently opined that a lawyer providing financial services to clients under the dual practice provisions of Rule 5.7 was subject to the Rule when providing “law related services” as defined in Rule 5.7(b).