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Update on the ABA's Ethics 20/20 Commission

The American Bar Association’s Commission on Ethics 20/20, the group commissioned in 2009 by then ABA President Carolyn B. Lamm, to thoroughly review the ABA Model Rules of Professional Conduct and to make necessary recommendations to revise those rules as they apply to the evolution of the legal profession as it relates to advances in technology and the globalization of the practice, has concluded its work and has made significant recommendations for revisions to the Model Rules.

The ABA Commission on Ethics 20/20 met at the ABA 2013 Mid-year meeting in Dallas, Texas in early February and the Commission successfully rallied support for sponsorship for four of its Resolutions (including support from the Young Lawyers Division for the Resolutions involving foreign lawyers).  As a result of the support as evidenced by several co-sponsorships, the ABA House of Delegates on February 11, 2013, adopted all four of the Commission’s final Resolutions. Three of those Resolutions involved a highly controversial issue – the limited practice authority for inbound foreign lawyers to practice in the United States.  The Resolutions are:

Resolution Revised 107A now amends Rule 5.5(d) of the ABA Model Rules of Professional Conduct (Unauthorized Practice of Law; Multijurisdictional Practice of Law) to permit foreign lawyers to serve as in-house counsel in the U.S., but with the added requirement that foreign lawyers not advise on U.S. law except in consultation with a U.S.-licensed lawyer;

Resolution Revised 107B now amends the ABA Model Rule for Registration of In-House Counsel to permit foreign lawyers to serve as in-house counsel in the U.S. but with added requirements ;

Resolution 107C now amends the ABA Model Rule on Pro Hac Vice Admission to provide judges with guidance about whether to grant limited and temporary practice authority to foreign lawyers to appear in U.S. courts; and

Resolution 107D amends the Comment to ABA Model Rule 8.5 to permit lawyers and clients to agree which conflict of interest rules govern the representation.

Congratulations to the Commission for three years of hard work which resulted in phenomenal changes to the rules which governs our conduct. The Commission, in its earlier Resolutions to the House which are now adopted as of August 2012, recommended several changes as they relate to technology and now has addressed the globalization of the practice which will now allow for lawyers to provide more services to clients whose needs may not be limited to our jurisdictional borders.

How does this effect Maryland? We shall soon see if our court adopts similar provisions in the Maryland Lawyers’ Rule of Professional Conduct.

Read more about the work of the Commission on the ABA website.

Dolores Dorsainvil is a Senior Staff Attorney at the Office of Bar Counsel and is an Adjunct Professor of Law at American University’s Washington College of Law where she teaches Legal Ethics.

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Do You Accept Credit and Debit Card Payments from Clients? Important Information For Lawyers Who Do

The Illinois Attorney Registration and Disciplinary Commission (IARDC) reports that the Internal Revenue Service (IRS) has added a new regulation to Section 6050W of the Tax Code that could potentially negatively impact lawyer trust accounts as the recent regulations will take effect on January 1, 2013.

Please read the notice in its entirety posted at https://www.iardc.org/IRSCreditCardWarning.pdf

Lawyers with long firm names who may have abbreviated either with their credit card processing company or with documents filed with the IRS should take care to ensure that the firm names are an EXACT match to avoid the 28% withholding penalty that will result.  Such a penalty on an attorney’s trust account may cause the balance to fall below the entrusted funds amount which could result in an unintentional misappropriation and any overdraft on an attorney’s trust account would trigger a Bar Counsel inquiry.

Please take note and check with your credit card company today to ensure that your information is accurate.

Dolores Dorsainvil is a Senior Staff Attorney with the Office of Bar Counsel.

Tips on How to Deal with a Bar Counsel Complaint

Responding to dreaded lettersFor many attorneys, coming across an envelope with the return address marked “Attorney Grievance Commission ” undoubtedly brings a sinking feeling. After reading the bar complaint, an attorney’s initial reaction may be one of many: anxiety, incredulousness, fear, or even anger. Some attorneys may even view the correspondence from Bar Counsel’s office as a personal attack on their credibility and professionalism as a lawyer.  Whatever the feeling, and however the bar complaint arose,[1] with the hundreds of bar counsel complaints that are lodged every year,[2] attorneys should appreciate and understand not only the serious nature of attorney discipline investigations, but that the process can be managed.

Here are several simple tips that will guide you in responding to an inquiry from Bar Counsel should one ever become subject to a complaint:

1)      Think. Before penning an emotional response to Bar Counsel, take the time to think about the legal matter, the history of the case, and the client that filed the complaint.  Taking this time will aid an attorney in focusing on the issues involved in the complaint and may give that attorney time to give a response based on the facts rather than emotions.  An attorney may even want to take the time to review the file in its entirety to make sure that they are able to recall every detail about the underlying legal matter.

2)      Be timely. Request an extension if needed.  In its cover letter accompanying the bar complaint, Bar Counsel provides a date by which an attorney is required to respond. If for some reason, an attorney is not able to submit a timely response, that attorney may wish to request an extension of time to respond. Bar Counsel will usually grant an initial reasonable request for an extension. The attorney should confirm such a courtesy with a written correspondence. If a circumstance exists that requires a lengthy response period, because as we all know – life happens, i.e. illnesses, deaths, vacations, business or personal matters, it is prudent for an attorney to explain that in writing to Bar Counsel, and provide corroborating documents explaining the lengthy extension request.

3)      Respond. This may seem like an obvious step but there are attorneys that, even when they have not committed misconduct, stick their head in the sand in an effort to avoid dealing with the allegations made in a complaint altogether. The important fact to note is that failing to respond to a lawful inquiry from Bar Counsel is a violation of Rule 8.1 (b).[3] So, even if Bar Counsel is not able to make any findings of a violation of the Maryland Lawyers Rules of Professional Conduct (“the Rules”) in the initial bar complaint, Bar Counsel may pursue and prosecute an attorney for violating Rule 8.1(b).  No matter how distasteful the prospect of being subject to a bar complaint is, every attorney has an affirmative duty under the Rules to respond to requests for information from bar counsel authorities.

4)      Answer the allegations honestly and concisely. An attorney should provide a comprehensive and fair explanation of the facts and circumstances surrounding the allegations made in the complaint. Providing a full picture or history of the representation will assist Bar Counsel render a disposition; however, an attorney should be judicious.  Do not do “lawyer speak.” Providing a thirty (30) page response to a complaint and failing to actually address the allegations of misconduct made in the initial complaint may raise concern.

5)      An attorney should provide the documents Bar Counsel requests but should also provide relevant documents as exhibits if they corroborate an attorney’s version of events. For example, supplying Bar Counsel with a copy of a key pleading of an issue that has already been addressed by a tribunal is helpful. Taking this pro-active step saves time in the investigation process.

6)      Be diligent and comprehensive. An attorney should take the time to explain relevant areas of law as it relates to the underlying legal matter. It is important for an attorney to not assume that Bar Counsel is familiar with every practice area. Providing Bar Counsel with a copy of the applicable rule or statute that the attorney has relied on in the underlying matter is invaluable and can assist Bar Counsel in determining the validity of the bar counsel complaint.

7)      Hire counsel, if necessary.  This is a determination that can only be made by an attorney but there are benefits to hiring representation. Respondent’s counsels are usually more familiar with the attorney disciplinary process and can help navigate the system.

8)      Resolution. If the attorney can and wishes to resolve the issue with his/her client, they are welcome to while the disciplinary matter continues.  Sometimes the issue occurs as a result of a misunderstanding, or sometimes the client wants their client file returned or requests a refund. Bar Counsel will not resolve fee disputes but usually will refer the parties to a voluntary fee dispute committee for further review.

An attorney’s cooperation to a Bar Counsel investigation will contribute to a resolution of the matter in a manner which safeguards the rights of the public and protects attorneys from unfounded complaints.


[1] Bar Counsel has many sources for bar complaints. While the majority of them come from clients, Bar Counsel also receives complaints from the courts, opposing counsel, family members, employees, neighbors, and acquaintances of lawyers. Additionally, it is also common for bar counsel authorities to initiate investigations when Bar Counsel learns information either through the media or through litigation records that would support a finding that an attorney has violated the ethical rules.

[2] The 36th Annual Report of the Attorney Grievance Commission (July 1, 2010 through June 30, 2011) states that that 1,880 bar counsel complaints were filed.

[3] An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:  [f]ail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6.

What is Professionalism?

Last week I had the privilege of being this year’s recipient of the Edward Shea Professionalism Award given by the Maryland Bar Foundation. The award, created in 1996, was named in honor of Baltimore attorney and past president of the Maryland State Bar Association (MSBA), the late Edward F. Shea, Jr. The award recognizes a MSBA young lawyer who exemplifies the professionalism, civility, integrity, compassion, and commitment to public service embodied by Mr. Shea throughout his career. What an enormous honor! 🙂 In my acceptance speech I talked about what professionalism means to me and how my views of professionalism have been shaped by my work in the MSBA and my experiences with so many of my esteemed colleagues who have exhibited an admirable dedication to our profession through their work in the bar. Here are a few excerpts of my speech that I believe accurately reflect what professionalism means to me:

This award means so much to me because it is such a great honor to serve my profession, and also a real blessing when others recognize my efforts.

As you know, as lawyers we perform many different functions – we are advocates, we are counselors, we are negotiators, and we are conciliators. But perhaps our most significant role is that as members of the legal system, we are officers of the court. As officers, we have a special responsibility to our legal system. Our profession has been granted the power of self-regulation. We are part of an industry where the rules are made by lawyers, enforced by lawyers, and ultimately interpreted and decided by lawyers. It is essential that our profession maintain our ability of self-governance and not be influenced by government entities that may be driven by public opinion or popular issues of the day. Lawyers must demonstrate that we are capable of self-regulation in order to maintain the public’s confidence in the system. How do we do that you ask?

We have the responsibility of making sure that our conduct as lawyers comports with our requirements under the Maryland Lawyers Rules of Professional Conduct. Adherence to these Rules assists us in maintaining a positive public perception of our legal system and further ensures civility and confidence in the legal process. As a legal community we should expect members of our profession to reflect the highest integrity that that we should also expect of ourselves. Neglect of any of these responsibilities would compromise the autonomy that we have enjoyed as well as the public interest which it serves.

Being a lawyer is one of my greatest accomplishments. And being a lawyer means more to me than just completing the work for which I get paid. It is about committing to the values that I swore to uphold. We must all continue in the path and follow in the footsteps of individuals like Mr. Edward Shea, also known as the “Father of Professionalism,” a man who made remarkable contributions to our bar and several others like him by rededicating ourselves to those values, principles, and ideals that we cherish.

Thank you……from the bottom of my heart.

Keep the Maryland Professional Code of Conduct right at your fingertips! Download the FREE MSBA App for iPhone, Android and Blackberry.

Noisy Withdrawals and Rule 1.6 (Confidentiality)

A client stands accused of a violent crime that has caught significant media attention. The case, a sensational one, has the lawyer at odds with his client and, to make matters worse, has provided for a difficult working relationship. The lawyer contemplates terminating the attorney-client relationship but is not certain how to do so.

Then he gets a great idea.  The lawyer will convene a press conference and announce to the several media outlets in attendance that he is parting ways with the accused.  At the press conference, the lawyer goes further, and ends up revealing some of the frustrating aspects of the representation.  The lawyer discloses that his client has gone “rogue,” that he had difficulty communicating with his client and, to illustrate that point, he shares the fact that the client has not returned his telephone calls, e-mail messages, or text messages in several days. The lawyer also states that although he believes in his client’s innocence, he is concerned about the client because he believes the client may suffer from mental health issues.

Harmless enough, right? Wrong.

Here is another scenario:  A lawyer realizes that she has been retained by what some may refer to as “the client from hell.”  In addition to being generally disagreeable, the client will not follow any of the lawyer’s advice or counsel and has taken to a course of action all on her own. To top off this frustrating relationship, the lawyer’s client has failed to pay the lawyer for a great amount of time spent providing legal services, including attendance at several court hearings. The client has not even acknowledged any of the past invoices billed on the legal matter, and has lied to the lawyer about paying the bill.  The lawyer decides that she will terminate the relationship and withdraw from the matter.

The lawyer files a motion to withdraw with the court and in it, she explains, in great detail, her reasons for the withdrawal.  The lawyer does this because she assumes that there is a greater likelihood that the court will grant the motion if the court understands the difficult circumstances which the lawyer faced representing “the client from hell.” The more information that the court has, the more likely that they will grant the relief sought.

Makes sense, right? Wrong.

A client may terminate the attorney-client relationship at any time for any reason. However, a lawyer may terminate the representation only for the reasons set forth in Rule 1.16(a) and 1.16(b) (Declining or Terminating Representation) of the Maryland Lawyers’ Rules of Professional Conduct.  When deciding whether a lawyer can safely withdraw from a representation, or to better understand the instances when a withdrawal from a representation is a mandatory duty placed on the lawyer or whether it is permissive, a lawyer should read this Rule as it delineates the proper procedure for withdrawing from a representation.  It is imperative for a lawyer who is contemplating ending a relationship, even an antagonistic one, to remember, to take care to protect the client’s interests.  If a lawyer chooses to end the relationship by way of either course of action described above, he or she has engaged in ethical misconduct.   Maryland Rule 1.16(b) states, in pertinent part, “…[a] lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client . . . .”  The Rules prohibit a lawyer from painting a client in a negative light (even if the information is technically true) and/or revealing the intricacies of the attorney-client relationship as this could cause a material adverse effect on the client’s interests.  Further, this conduct may also violate Maryland Rule 1.6 (Confidentiality of Information) which prohibits a lawyer from disclosing a client’s confidence or secret. As you know, trust is the hallmark of an attorney-client relationship, therefore, in the example of calling for a press conference, the lawyer’s conduct is fraught with peril in that, by doing so, in addition to violating a client’s trust and confidence, negative attention could be brought to the client’s legal matter which may cause legal harm to the client.

The second scenario mentioned is what is referred to as a “noisy withdrawal” – the filing of a motion with a court that reveals a client’s confidence or secret.  Comment [3] to Maryland Rule 1.16 provides guidance to practitioners who may find themselves in an unenviable situation where they may have to file a motion to withdraw from a matter. A lawyer may cite “irreconcilable differences” between the lawyer and the client as the basis for the need to terminate the relationship.  If the court requires further explanation for the withdrawal, a lawyer should think about ways to ensure the that he/she keeps the client’s confidentiality as well as comply with the ethical Rules by either filing a motion under seal or requesting an in camera review.[1]

Determining whether or not to terminate a representation can be a very tough decision. But when faced with this tough decision,  a lawyer should always consult the Maryland Lawyers’ Rules of Professional Conduct because a lawyer’s duty to preserve the client’s interests and confidences continues even when the representation does not.  See also Maryland Rule 1.9 which discusses duties owed to former clients.


[1] When a matter is pending before a court, a lawyer must get the permission of the court as a prerequisite to withdraw. See Maryland Rule 1.16(c).

Former Drinker Biddle Partner Disbarred for Falsifying D.C. Bar Application

The Maryland Court of Appeals disbarred Darlene H. Smith, a former partner in the Washington D.C. law firm of  Drinker Biddle & Reath for altering documents as part of her application for admission to the D.C. Bar. The court’s opinion was released on Monday, March 19, 2012, and can be found at http://mdcourts.gov/opinions/coa/2012/10a11ag.pdf.

Ms. Smith was admitted to the Maryland bar in 1997 and was admitted to practice before the U.S. District Court for the District of Columbia, but was never a member of the D.C. Bar.  Smith initially worked as a judicial clerk for the Chief Judge of the District of Columbia Court of Appeals.  She subsequently practiced law at a number of firms in the District of Columbia and Maryland, including as a solo practitioner, before she joined the firm of Drinker Biddle & Reath in December 2008 as a partner in the labor and employment practice group.  Although Smith had practiced law for over 10 years, she had never sought admission to the D.C. bar until January 2009, when she formally applied for admission. Under D.C.local rules, she was allowed to practice in the District of Columbia federal court as long as she made certain disclosures that her practice was limited to the federal court and Maryland courts only. She was also allowed to practice for a year in D.C. under the supervision of a D.C. licensed attorney, assuming she applied to the D.C. Bar within 90 days of starting her practice in the District.

When asked by the Committee on Admissions, whether she had complied with the requirements of D.C. Rule 49 regarding notice to the public, Smith stated that she did and submitted to the Committee on Admissions altered documents such as business cards, promotional materials and letterhead from her firm, of Drinker Biddle & Reath, as well as three of her previous law firms’ letterhead, spanning a decade, that included legends stating that she had been admitted only in Maryland and that she limited herself to federal practice. These disclosures did not appear on the original versions of those documents and were altered by Smith shortly before she submitted them to the Admissions Committee.

Maryland Court of Appeals Judge Robert McDonald wrote in the court’s opinion that Smith’s actions involved “dishonesty, fraud, deceit, and misrepresentation.”  “The obstruction of a bar inquiry through the submission of fabricated evidence by an experienced member of the bar is an instance of dishonesty that incorporates a number of factors that we have deemed aggravating,” McDonald wrote.  Noting that Smith’s misconduct was a detailed scheme involving fraud, Judge McDonald wrote, “[t]he nature of the violation, coupled with the aggravating factors, makes disbarment appropriate.”

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