Ethics Hotline & Opinions

ETHICS DOCKET NO. 1987-35

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MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1987-35

Private practice by investigator employed by State


In your letter, you state that you were admitted to the Maryland Bar on May 10, 1980 and you have been employed since March 1975, as an investigator for the State Attorney's Office. When the State's Attorney for your county was Mr. X., you asked Mr. X whether or not you could practice part-time law, handling civil matters only. Mr. X. informed you that that would be acceptable and you did so from 1980 through 1985, apparently not interfering with you Job as investigator for the State's Attorney's Office. In October of 1985, you were given an ultimatum by Mr. X. to either close down your civil practice or quit your Job as an investigator. Now, you are faced with a new State's Attorney for your county and inquire as to whether or not you can resume civil practice on weekends and after working hours.

We have dealt with a similar inquiry concerning the practice of law by a police officer in Ethics Docket 81-29 before the new Maryland Rules of Professional Conduct had been adopted. In Docket 81-29, a copy of which is attached, we cautioned the police officer that his practice of law could not include criminal defense nor defense of traffic violations.

We further cautioned the police officer that his second profession (in your case the investigator employment) may not ""feed"" his law practice. We cited Ethics Docket 78-7 concerning the prohibition against ""feeding"" a law practice with another profession. I enclose a copy of Docket 78-7 for your review.

Turning first to the consideration of ""feeding"" your law practice by your employment as a State investigator, the old Code of Professional Responsibility and the Canons of Professional Ethics did not refer to the term ""feeding"" specifically. However, please note that in Docket 78-7, we strongly suggested that the circumstances under which an individual could conduct a non-lawyer profession and be a lawyer at the same time were extremely limited. Further, it is clear that in that instance the lawyer's non-law practice would be governed by the Code of Professional Responsibility.

Under the new Maryland Rules of Professional Conduct, the focus has changed to whether or not a conflict of interest exists which is the second issue in Docket 81-29. Under Rule 1.7 of the Maryland Rules of Professional Conduct, as they are currently in effect,

(b) a lawyer shall not represent a client if the representation of that client may be

materially limited by the lawyer's responsibilities to another client or to a third

person, or by the lawyer's own interest, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation.

It would be virtually impossible for the county for which you work as an investigator to consent to any conflict you may face. Therefore, your representation of clients as a lawyer must be limited to a civil practice and should be made only within the confines of the Maryland Rules of Professional Conduct, specifically those concerning the conflict of interest rules just described.


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