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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1988-73
Conflict: Law Firm Representing Client Before Board Where Another Client of Law Firm is Member of the Board.
You recite that your firm does administrative law work which requires you to appear before numerous boards and similar administrative bodies. You inquire whether the firm has a conflict of interest when in the course of representing a client you encounter a board whose membership includes an individual who is also a client of your firm.
The Committee has not previously been called upon to render an opinion under the same facts. However, in several similar cases, decided under the Code of Professional Responsibility, we have dealt with similar scenarios.
In Ethics Docket 83-25, we dealt with a question of whether a law firm could represent a judge and at the same time represent a party in a case pending before the judge. We carefully pointed out that under Canons 7 and 9 of the Code. the law firm had an obligation to represent the client before the judge zealously and that the law firm had the burden of satisfactorily dispelling the appearance of impropriety. We opined that, under the circumstances, it would be extremely difficult to avoid the problem of appearance of impropriety and several members of the Committee believed that it was impossible to overcome. Nonetheless, we did not conclude that the representation was per
se improper. Rather, we concluded, that first and foremost, the attorney was obligated to inform opposing counsel of his representation of the judge, but the decision concerning the propriety of the situation was the responsibility of the judge. This being so, once the advice was given to opposing counsel so that an appropriate motion or suggestion of recusal could be made, the decision with respect to the propriety of the judge deciding the case was his, and not the attorney's. Of course, this determination was based upon appearances of impropriety, rather than actual conflicts. It was beyond the mandate of this Committee to opine on a judge's failure to recuse himself under such circumstances.
Effective January 1, 1987, the Code of Professional Conduct was replaced by the Maryland Lawyers' Rules of Professional Conduct. Canon 9 of the former Code, dealing with the appearance
of impropriety, was not carried forward into the new Rules. However, the requirement that opposing counsel be notified of the situation remains.
Rule 1.7(b) prohibits a lawyer from representing a client if the representation of that client may be materially limited by the lawyer's responsibility 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.""
You note in your inquiry that your client appearing before the administrative agency could reach one of two conclusions. That is, he or she could conclude that he or she had a ""leg-up"" based on your credibility and the quality of service you provided to the board member. On the other hand, your client might be fearful that the board member might be dissatisfied with your efforts and have a personal attitude toward the firm that might be unnecessarily adverse to the client's interest. We perceive additionally at least a third problem; that is, that your representation could be limited by a potential unwillingness to be aggressive with the board member that is your client or otherwise cause you to deal with that board member differently. In any of those events, we believe that you have an obligation under Rule 1.7 to notify your client, determine that the representation will not be materially adversely affected, and obtain the consent of the client after consultation before you make undertake the representation.
Obviously, if the mere fact of your representation of the board member is confidential under Rule 1.6, you may not reveal that fact to the client appearing before the board, and therefore cannot obtain the consent required under Rule 1.7.
If your failure to disclose to the tribunal your representation of the board member would constitute a fraudulent act by your client, you must notify the tribunal of such representation pursuant to Rule 3.3 and the opposing side pursuant to Rule 4.1. However, curiously, we find nothing in the Rules which requires you to notify the opposing side of the situation unless such notice is an obligation under the rules of the tribunal, Rule 3.4(c), of a fraudulent omission under Rules 3.3 and 4.1.
This opinion, 88-73 makes references to opinion 88-25.
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