On April 4, 2025, the Maryland State Bar Association (MSBA) Ethics Committee was requested to draft an opinion regarding whether the Maryland Volunteer Legal Service’s (MVLS) payment of its clients’ property bills and deed recordation fees in connection with clearing title to their homes is a violation of Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) Rule 19-301.8(e). The Committee approved the following as our written opinion on the matter you raised:
QUESTION PRESENTED
Does Rule 19-301.8(e) bar MVLS volunteer attorneys from using MVLS funds to pay deed recordation fees and property bills while helping clients obtain clear title to their homes, or would such payments violate the Rule’s prohibition on providing “financial assistance” – other than court costs and litigation expenses – in connection with pending or contemplated litigation?
BRIEF CONCLUSION
Such payments are permissible. MVLS volunteer attorneys only handle uncontested title clearing matters processed through administrative probate. The representation does not relate to “litigation” within the meaning of Rule 19-301.8(e) and its prohibition on financial assistance would not apply.
STATEMENT OF FACTS
Among its volunteer services, MVLS attorneys represent low-income clients in obtaining clear title to their homes. In a typical scenario, the client inherited a home but a new deed was never recorded meaning that the client lacks legal homeowner status. MVLS attorneys assist such clients by initiating administrative probate and thereafter recording an appropriate deed. You state that before a new deed can be recorded fees and property bills must be paid, most notably utility bills, property taxes and liens on the property. The MVLS has funds available for this purpose.[1] Your inquiry is whether MVLS’ payment of these fees and bills would constitute impermissible “financial assistance to a client” per Rule 19-301.8(e).
ANALYSIS/DISCUSSION
Rule 19-301.8(e) states:
An attorney shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) an attorney may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
(2) an attorney representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
Comment 10 to the Rule further explains:
Attorneys may not subsidize lawsuits or administrative proceedings brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, because to do so would encourage clients to pursue lawsuits that might not otherwise be brought and because such assistance gives attorneys too great a financial stake in the litigation.
When does an administrative proceeding constitute “litigation?”
“Pending or contemplated litigation” is the only area of practice that falls within the scope of Rule 19-301.8(e). If the representation relates to litigation then financial assistance to a client, other than for court costs and litigation expenses, is forbidden even if motivated by altruistic reasons such as a longstanding friendship. Attorney Grievance v. Eisenstein, 333 Md. 464, 484-86 (1994).
Once pending litigation has ended, so long as the requirements of Rule 19-301.8(a) (business transactions with a client) are met, Rule 19-301.8(e) does not prohibit an attorney from advancing funds to a client. Attorney Grievance v. Kandel, 317 Md. 274, 281 (1989). Likewise an attorney is not prohibited from making a gift to a non-litigation client. See Ethics Docket No. 1993-25 (attorney may pay pro bono client’s heating bill where there was no pending or contemplated litigation).
The title clearing tasks that you identify are (a) initiating administrative probate, and (b) recording a deed. Clearly, recording a deed is not litigation and does not implicate the Rule. The focus of your inquiry is whether initiating administrative probate falls within the meaning of “litigation” given that Comment 10 to the Rule suggests that “administrative proceedings” may be a form of “litigation.”
The MARPC distinguish between administrative proceedings that are adjudicatory and those that are non-adjudicatory. Per Rule 19-301.0(p), an administrative agency acts in an adjudicative capacity when it renders a binding decision after the presentation of evidence or argument. Conversely, the Comments to Rule 19-303.9 (Advocate in Non-Adjudicative Proceedings) provide examples of non-adjudicatory administrative proceedings such as representation before a rule-making or policy-making body, and purely ministerial acts such as assisting with a client’s application for a license.
Administrative probate is not “litigation” within the meaning of Rule 19-301.8(e).
You state that the only property title clearing clients referred to MVLS pro bono attorneys are those whose claims are uncontested. Administrative probate is an administrative proceeding initiated by filing a petition with Register of Wills. Md. Est. & Trusts Code Ann. §5-301 et seq. Unlike judicial probate, initiated by filing a petition with the Orphan’s Court per Md. Est. & Trusts Code Ann. §5-401 et seq., administrative probate is limited to uncontested matters.
In our view administrative probate is not “litigation” as that term is used in Rule 19-301.8(e). By design, administrative probate is uncontested. It does not involve the presentation of evidence or argument to a tribunal. Therefore, the Rule is not violated if, while representing clients in obtaining clear title through administrative probate, MVLS funds are advanced or donated to pay required fees and bills.
We add two caveats. First, although only uncontested claims are referred to MVLS attorneys, unanticipated controversies may arise. If a request for judicial probate is made, either by an interested person or sua sponte by the Register of Wills, then the MVLS attorney’s representation would relate to litigation under Rule 19-301.8(e) and the prohibition on financial assistance would apply. Second, if MVLS clients are obligated to repay the financial advancements at any point then the arrangement is a business transaction between attorney and client for which the requirements of Rule 19-301.8(a) must be satisfied.
CONCLUSION
The MARPC 19-301.8(e) does not prohibit MVLS attorneys representing clients in title clearing matters from using MVLS funds to pay required fees and outstanding property bills. The Rule applies solely to representation in connection with “pending or contemplated litigation” and the scope of MVLS representation is limited to administrative probate which falls outside of the meaning of litigation.
We hope this response is helpful. Thank you for contacting the Committee on Ethics.
Very truly yours,
MSBA COMMITTEE ON ETHICS
REFERENCES:
- Rules cited: MPRC 19-301.0(o), 19-301.8(a), 19-301.8(e), 19-303.9
- Cases cited: Attorney Grievance v. Eisenstein, 333 Md. 464, 484-86 (1994)
Attorney Grievance v. Kandel, 317 Md. 274, 281 (1989)
- Ethics Dockets cited: Ethics Docket No. 1993-25
- Other authority cited: Md. Est. & Trusts Code Ann. §5-301 et seq.
Md. Est. & Trusts Code Ann. §5-401 et seq.
[1] For purposes of MARPC 19-301.8(e), we assume that the MVLS acts as both an attorney for the client and as payor of its client’s deed recordation and property bills from its own funds (as distinguished from obtaining payment from a separately administered fund).