MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2018-04

Question Presented:

You request an opinion regarding how the Maryland Attorneys’ Rules of Professional Conduct (MRPC) would affect a firm’s practice that includes representing private parties against the Maryland Department of Transportation (MDOT) while you work as “of counsel” to the firm if you were to run for and serve in the Maryland General Assembly.

Summary Conclusion:

The MRPC does not per se prohibit a member of the General Assembly who is an attorney from representing private clients, and does not contain any such per se prohibitions for a law firm with which he or she is associated. However, several MRPC provisions may limit the circumstances under which a legislator may represent a private client. The legislator also must comply with Maryland Public Ethics Law, General Provisions Article, Conflicts of Interest, section 5-501, et seq. (“Public Ethics Law”), and interpreted and enforced by the Joint Committee on Legislative Ethics of the Maryland General Assembly.

Background:

Your asked about your ethical obligations under the MRPC if you were to run for and serve in the Maryland House of Delegates while concurrently employed as “of counsel” to a Maryland law firm that represents private parties in legal proceedings against the Maryland Department of Transportation (MDOT). You advise that you do not directly participate or otherwise have any involvement in these law firm representations.

Discussion:

This Committee previously addressed a similar inquiry in Ethics Docket 2006-01 regarding a partner employed by a law firm that represented a municipal corporation and where the partner sought office in the Maryland House of Delegates for the district in which the municipality primarily operated. Based on those facts, the Committee generally opined that the MRPC do not impose any per se restriction on the partner running for elected office or serving in the Maryland General Assembly. The Committee further stated that several past and present members of the legislative branch were or are attorneys who actively practice law in Maryland. As in 2006, this continues to be the case for the composition of the General Assembly today and is consistent with public policy goals to avoid imposing a severe deterrent on attorneys entering public service.1 As stated in our prior opinion, the MRPC do not prohibit your firm’s representation of  private clients in actions against or before a state executive agency while you serve in the General Assembly.

However, as this Committee then opined, there are several ethics requirements, now codified at Title 19, Attorneys, Chapter 300, MRPC, for you to consider should you hold elected office. MRPC requirements governing confidentiality of information (Rule 19-301.6), conflicts of interest (Rules 19-301.7), imputation of conflicts of interest (Rule 19-301.10), special conflicts of interest for former and current government officers and employees (Rule 19-301.11), and misconduct (Rule 19-308.4) are each germane to your inquiry.

If you chose to participate in your law firm representations against MDOT while serving as a government official, while the MRPC does not per se prohibit your involvement, certain requirements apply. As an initial matter, the confidentiality requirements of Rule 19-301.6 prescribe a duty of confidentiality on your firm to both former and current clients to protect information in connection with proceedings involving MDOT. This duty of confidentiality extends to any information you acquire or receive regarding these client representations in your “of counsel” role.

The applicability of other MRPC requirements is contingent upon your degree of involvement in such client representations and necessitates a case-by-case analysis. Per Rule 19-301.7, a conflict of interest exists if there is a significant risk that your client representation will be materially limited by your own personal interests, which would include your role as a legislator. In such a case, if there is a risk of conflict, but you reasonably believe that you could provide client representation despite your legislative obligations, Rule 19-301.7 requires you to obtain the client’s informed consent in order to continue the representation.

Under Rule 19-301.11(d)(2), an attorney who is currently serving as a public officer may not “participate in a [legislative] matter in which the attorney participated personally and substantially while in private practice or non-governmental employment, unless the appropriate government agency [including legislative authority] gives its informed consent, confirmed in writing.” A “matter” is defined as “any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties,” and “any other matter covered by the conflict of interest rules of the appropriate government agency.” As applied to your facts, if you have a personal and substantial degree of involvement in a client matter relating to MDOT, the MRPC require you to acquire informed, written consent from the Maryland General Assembly. Specifically, you should request an opinion from the Joint Committee on Legislative Ethics, which has exclusive authority to interpret and enforce rules of conduct for legislative branch officials established under Public Ethics Law.

For purposes of determining whether other attorneys in your firm may represent the client, your legislative role should be considered a “personal interest” that does not impute disqualification so long as it “does not present a significant risk of materially limiting the representation of the client by other attorneys in the firm.” Rule 19-301.10(a). In such circumstances, other attorneys in your firm may continue to represent that client without your personal involvement.3

Finally, you should exercise caution to ensure that neither you nor your firm uses the prestige of your elected office to influence state agencies or courts in resolving a client matter.

Rule 19- 308.4(f) provides that an attorney may not “state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the [MRPC].”

With respect to Public Ethics Law requirements, section 5-504, Employment restriction – Representation or assistance generally prohibits legislators from appearing before state agencies and entities.5 This statute, however, does not directly address the more complex question of whether the prohibition under section 5-404 would disqualify your entire firm, even assuming arguendo, you were screened from the representation and did not receive any share of the pro rata income.

Another question for which we are not in a position to offer advice but which is relevant to your inquiry concerns when an attorney-legislator may participate in voting. As the Arizona Bar opined in Ethics Opinion 93-09 (1993), “the question of when a legislator may or may not vote on legislation, or may or may not have an impermissible [legislative] conflict of interest is reserved to the legislature. It must be resolved, if at all, by reference to legislative rules. It is to those sources and not the State Bar to which the inquiring attorney must look for an answer (emphasis added).” Accordingly, this Committee advises you to request an opinion from the Joint Committee on Legislative Ethics to determine compliance with section 5-504, voting requirements, and other Public Ethics Law provisions.

Upon careful consideration, the Committee reaffirms the opinion imparted in Ethics Docket 2006-01 inasmuch as the MRPC do not outright prohibit an attorney nor members of the  attorney’s firm from representation of a client adverse to an agency of the executive branch notwithstanding the attorney serves in the Maryland legislature. However, this opinion is not determinative of your question and the Committee advises you to consider Public Ethics Law and as necessary, request the Joint Committee on Legislative Ethics for additional guidance.

This opinion is advisory in nature, based on the facts you provided, and is not binding on any court or tribunal.

REFERENCES: Maryland Attorneys’ Rules of Professional Conduct, Rules 19-301.6, 19-301.7, 19-301.10, 19-301.11, 19-308.4 MSBA Ethics Opinion 2006-01 Arizona Bar Ethics Opinion 93-09 Michigan Bar Ethics Opinion RI-306 Maryland Public Ethics Law, §§ 5-501, et seq. Maryland Public Ethics Law, § 5-504 Opinion No. 3, Ethics Guide, Joint Committee on Legislative Ethics, 2015 Report of the General Assembly Compensation Commission, January 2018