Ethics Hotline & Opinions

ETHICS DOCKET NO. 1988-49

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MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1988-49

Fee - Acceptance of Fee Constituting Retention of Attorney


In your inquiry you raise two questions:

1. Whether accepting a ""consultation fee"" constitutes being ""retained"" so as to require an attorney to enter his appearance under Maryland Rule 4-214?

2. If an attorney agrees to accept periodic payments toward a fee at what point has the attorney been ""retained"" so as to require the attorney to enter his appearance under Maryland Rule 4-214?

As concerns your first question, it is the Committee's opinion that the fee for consultation means only that the attorney has been retained for consultation. The attorney is not retained for representation in the pending case simply by paying the fee for consultation. It should be made clear to the client as your inquiry presumes, that the initial fee is for consultation and that the attorney is not representing and is not ""retained: until the fee for representation is paid in full"".

The same reasoning applies to the second issue you raise. If it is clear to the client that the attorney is not representing the client until the fee is paid in full then the attorney is not ""retained"" and therefore, not required to enter his appearance pursuant to rule 4-214 until the fee is paid in full.

The Committee would point out that representation and being ""retained"" may in fact, be based on something other than receiving a fee whether paid in full or not. Should the attorney take action which is ""representing"" the client then the payment or non payment of the fee is irrelevant. Should the attorney begin negotiations with the States Attorney's Office or begin an investigation he could well be ""representing"" a client at that time. It may well be that requesting a postponement is in itself representing a client. In short, representation does not depend on the payment of a fee. 

With this in mind then it should be obvious that even though an attorney says he or she is not representing someone until the fee is paid in full that there may be representation if the attorney has done something else indicative of representation.

The Committee is not here detailing what constitutes representation or when representation occurs.


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