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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1988-63
Zealous Advocacy: Is Defendant's Attorney Prohibited from Advising Plaintiff's New Counsel that His Client's Case Has Been Dismissed When Limitations are about to Run?
You are currently representing a trucking firm that has been sued by an insurance company. When the case was transferred to the Circuit Court in response to your Client's request for a jury trial, the attorney for the insurance company did not file a new Complaint complying with the Circuit rules and subsequently the case was dismissed, on your motion, without a hearing. You noted when you received your copy of the Court's Order that the original attorney for the Plaintiff was properly named. The Plaintiff has since changed attorneys and the new attorney seems to think the lawsuit is till pending in the District Court. Since the statute of limitations will be running shortly, you want our opinion as to whether you are ""required to sit back and watch another competent attorney unknowingly commit malpractice.""
The Committee looked primarily to the Maryland Rules of Professional Conduct that became effective January 1, 1987, in forming a response to your inquiry. Rule 3.4 discusses ""Fairness to Opposing Party and Counsel."" Not pointing out the statute of limitations problem is not prohibited by that rule. Under Rule 1.6 (a):
A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation . . .
Two other rules that bear mentioning, not so much for your benefit, but for the benefit of Plaintiff's new counsel are Rule 1.1, Competence and Rule 1.3, Diligence. In any event your client's consent you may not ethically tell opposing counsel. (You may however, start working on your apology so you will have it ready when all this is over).
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