Ethics Hotline & Opinions

ETHICS DOCKET NO. 1987-47

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MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1987-47

Communications with non-lawyers: when represented by counsel


Your inquiry sets forth the following factual circumstances. Lawyer X represented Mr. A in his estate planning. Following the death of Mr. A, Lawyer X and Mrs. A performed the duties of co-trustees under various testamentary trusts, with Lawyer X maintaining all of the books and records of the trust.

  After three years of this arrangement, Mrs. A, not being certain that she was receiving everything to which she was entitled, engaged Lawyer Y to represent her and to review the transactions. Lawyer Y requested Lawyer X to provide a complete accounting, which Lawyer X proceeded to do. The accounting indicated that Mrs. A had not received her one-half share of trustees' commissions. This prompted Lawyer Y to make demand on Lawyer X for the payment to Mrs. A of her share of the commissions. Several months following this demand, Lawyer X wrote a letter to Lawyer Y advising that Lawyer X had discussed the matter with Mrs. A and that the matter was going to be dropped.

  Your inquiry raises two questions. First, should Lawyer X have advised Mrs. A of her right to commissions. Second, whether Lawyer X could negotiate with Mrs. A concerning her demand once she was represented by Lawyer Y.

  Lawyer X clearly had an affirmative obligation under the Rules of Professional Conduct to keep Mrs. A advised as to co-trustee commissions in the control of Lawyer X. Rule 1.15(b) provides that ""upon receiving funds ... in which a client or third person has an interest, a lawyer shall promptly notify the client or third person ... [and] a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.""

  With respect to the second aspect of your inquiry, Lawyer X should not have communicated directly with Mrs. A about the commission issue once Lawyer X was aware of the fact that Lawyer Y represented Mrs. A with respect to this issue. Rule 4.2 provides that ""a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.""


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