# REPORT OF THE SELECT COMMITTEE

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URL: https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3A7ce1882108a0035f

## Record

- **Collection:** Court rules
- **Document type:** Court rule

## Text

REPORT OF THE SELECT COMMITTEE
APPPOINTED BY THE COURT OF APPEALS OF
MARYLAND TO STUDY THE ETHICS 2000
AMENDMENTS TO THE ABA MODEL RULES OF
PROFESSIONAL CONDUCT

December 16, 2003

COMMITEE MEMBERS
The Honorable Lawrence F. Rodowsky, Chair
Albert D. Brault, Esq.
Alvin I. Frederick, Esq.
Andrew J. Graham, Esq.
Christopher B. Kehoe, Esq.
Linda H. Lamone, Esq.
Thomas E. Lynch, III, Esq.
M. Peter Moser, Esq.
Midgett S. Parker, Jr., Esq.
Pamela J. White, Esq.
Vera Lynne White, Esq.
Professor Robert J. Rubinson, Reporter

TABLE OF CONTENTS

I.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. The Committee’s Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
C. The Format of This Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. RECOMMENDED MARYLAND RULES OF PROFESSIONAL
CONDUCT WITH MODEL RULES COMPARISON. . . . . . . . . . . . . . . . . 3
Preamble. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Rule 1.0. Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
CLIENT-LAWYER RELATIONSHIP
Rule 1.1. Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Rule 1.2. Scope of Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Rule 1.3. Diligence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
Rule 1.4. Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Rule 1.5. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Rule 1.6. Confidentiality of Information . . . . . . . . . . . . . . . . . . . . . . . . .25
Rule 1.7. Conflict of Interest: General Rule. . . . . . . . . . . . . . . . . . . . . . .31
Rule 1.8. Conflict of Interest: Current Clients: Specific Rules . . . . . . 40
Rule 1.9. Duties to Former Clients. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Rule 1.10. Imputation of Conflicts of Interest: General Rule. . . . . . . . . 50
Rule 1.11. Special Conflicts of Interest for Former and Current
Government Officers and Employees . . . . . . . . . . . . . . . . . . . 53
Rule 1.12. Former Judge, Arbitrator, Mediator Or Other Third-Party
Neutral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Rule 1.13. Organization as Client. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
Rule 1.14. Client With Diminished Capacity. . . . . . . . . . . . . . . . . . . . . . .63
Rule 1.15. Safekeeping Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Rule 1.16. Declining or Terminating Representation. . . . . . . . . . . . . . . . 68
Rule 1.17. Sale of Law Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71
Rule 1.18. Duties to Prospective Client. . . . . . . . . . . . . . . . . . . . . . . . . . . .74
COUNSELOR
Rule 2.1 Advisor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Rule 2.2. [DELETED]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Rule 2.3. Evaluation for Use by Third Parties . . . . . . . . . . . . . . . . . . . . . 79
Rule 2.4. Lawyer Serving as Third-Party Neutral . . . . . . . . . . . . . . . . . . 81

i

ADVOCATE
Rule 3.1. Meritorious Claims and Contentions. . . . . . . . . . . . . . . . . . . . . . 83
Rule 3.2. Expediting Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Rule 3.3. Candor Toward the Tribunal. . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Rule 3.4. Fairness to Opposing Party and Counsel . . . . . . . . . . . . . . . . . . 89
Rule 3.5. Impartiality and Decorum of Tribunal . . . . . . . . . . . . . . . . . . . . 91
Rule 3.6. Trial Publicity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Rule 3.7. Lawyer as Witness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96
Rule 3.8. Special Responsibilities of a Prosecutor . . . . . . . . . . . . . . . . . . . . 98
Rule 3.9. Advocate in Nonadjudicative Proceedings . . . . . . . . . . . . . . . . . .100
TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
Rule 4.1. Truthfulness in Statements to Others . . . . . . . . . . . . . . . . . . . . . .102
Rule 4.2. Communication with Person Represented by Counsel . . . . . . . .104
Rule 4.3. Dealing with Unrepresented Person . . . . . . . . . . . . . . . . . . . . . . . 107
Rule 4.4. Respect for Rights of Third Parties . . . . . . . . . . . . . . . . . . . . . . . 108
LAW FIRMS AND ASSOCIATIONS
Rule 5.1. Responsibilities of Partners, Managers, and Supervisory
Lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Rule 5.2. Responsibilities of a Subordinate Lawyer . . . . . . . . . . . . . . . . . . 111
Rule 5.3. Responsibilities Regarding Nonlawyer Assistants . . . . . . . . . . . 112
Rule 5.4. Professional Independence of a Lawyer . . . . . . . . . . . . . . . . . . . . 113
Rule 5.5. Unauthorized Practice of Law: Multijurisdictional Practice
Of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Rule 5.6. Restrictions on Right To Practice. . . . . . . . . . . . . . . . . . . . . . . . . . 120
Rule 5.7. Responsibilities Regarding Law-Related Services . . . . . . . . . . . . 121
PUBLIC SERVICE
Rule 6.1. Pro Bono Publico Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .124
Rule 6.2. Accepting Appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
Rule 6.3. Membership in Legal Services Organization . . . . . . . . . . . . . . . 127
Rule 6.4. Law Reform Activities Affecting Client Interests . . . . . . . . . . . 128
Rule 6.5. Nonprofit and Court-Annexed Limited Legal Services
Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
INFORMATION ABOUT LEGAL SERVICES
Rule 7.1. Communications Concerning a Lawyer’s Services . . . . . . . . . . 131
Rule 7.2. Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Rule 7.3. Direct Contact with Prospective Clients . . . . . . . . . . . . . . . . . . . 135
Rule 7.4. Communication of Fields of Practice. . . . . . . . . . . . . . . . . . . . . . 138
Rule 7.5. Firm Names and Letterhead . . . . . . . . . . . . . . . . . . . . . . . . . . . . .139
Rule 7.6. Political Contributions To Obtain Government Legal
Engagements or Appointments by Judges [not recommended
for adoption] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

ii

MAINTAINING THE INTEGRITY OF THE PROFESSION
Rule 8.1. Bar Admission and Disciplinary Matters . . . . . . . . . . . . . . . . . 142
Rule 8.2. Judicial and Legal Officials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Rule 8.3 Reporting Professional Misconduct . . . . . . . . . . . . . . . . . . . . . . 146
Rule 8.4. Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
Rule 8.5. Disciplinary Authority: Choice of Law . . . . . . . . . . . . . . . . . . . 150
APPENDIX: MARYLAND STATE BAR ASSOCIATION CODE OF
CIVILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
III. CONCURRING MINORITY REPORT RE: NEWLY PROPOSED RULE
8.4(E) AND COMMENT [5] – LAWYER MANIFESTING BIAS OR
PREJUDICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
IV. RECOMMENDATIONS FOR FURTHER STUDY . . . . . . . . . . . . . . . . . . . 157
A. Admission on Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
B. Pro Hac Vice Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
C. Non-U.S. Lawyers Licensing as Consultants . . . . . . . . . . . . . . . . . . . . 158
D. Temporary Practice for Foreign Lawyers . . . . . . . . . . . . . . . . . . . . . . 159
Exhibit A: Maine’s Draft Rule Regarding Regional Reciprocal
Admission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
Exhibit B: ABA Model Rule for the Licensing of Legal Foreign
Consultants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
Exhibit C: Model Rule for Temporary Practice by Foreign Lawyers . . 167
V. COMPARISON OF RECOMMENDED RULES TO CURRENT MARYLAND
RULES OF PROFESSIONAL CONDUCT
Preamble. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Rule 1.0. Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
CLIENT-LAWYER RELATIONSHIP
Rule 1.1. Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Rule 1.2. Scope of Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
Rule 1.3. Diligence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Rule 1.4. Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Rule 1.5. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
Rule 1.6. Confidentiality of Information . . . . . . . . . . . . . . . . . . . . . . . . . 192
Rule 1.7. Conflict of Interest: General Rule. . . . . . . . . . . . . . . . . . . . . . .200
Rule 1.8. Conflict of Interest: Current Clients: Specific Rules . . . . . . .211
Rule 1.9. Duties to Former Clients. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .219
Rule 1.10. Imputation of Conflicts of Interest: General Rule. . . . . . . . . .223
Rule 1.11. Special Conflicts of Interest for Former and Current
Government Officers and Employees . . . . . . . . . . . . . . . . . . . .229

iii

Rule 1.12. Former Judge, Arbitrator, Mediator Or Other Third-Party
Neutral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .234
Rule 1.13. Organization as Client. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .236
Rule 1.14. Client With Diminished Capacity. . . . . . . . . . . . . . . . . . . . . . . .240
Rule 1.15. Safekeeping Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .244
Rule 1.16. Declining or Terminating Representation. . . . . . . . . . . . . . . . . 246
Rule 1.17. Sale of Law Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .249
Rule 1.18. Duties to Prospective Client. . . . . . . . . . . . . . . . . . . . . . . . . . . . .252
COUNSELOR
Rule 2.1 Advisor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .254
Rule 2.2. [DELETED]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .255
Rule 2.3. Evaluation for Use by Third Parties . . . . . . . . . . . . . . . . . . . . . . .259
Rule 2.4. Lawyer Serving as Third-Party Neutral . . . . . . . . . . . . . . . . . . . 261
ADVOCATE
Rule 3.1. Meritorious Claims and Contentions. . . . . . . . . . . . . . . . . . . . . . .263
Rule 3.2. Expediting Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .264
Rule 3.3. Candor Toward the Tribunal. . . . . . . . . . . . . . . . . . . . . . . . . . . . .265
Rule 3.4. Fairness to Opposing Party and Counsel . . . . . . . . . . . . . . . . . . . 269
Rule 3.5. Impartiality and Decorum of Tribunal . . . . . . . . . . . . . . . . . . . . .271
Rule 3.6. Trial Publicity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .273
Rule 3.7. Lawyer as Witness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
Rule 3.8. Special Responsibilities of a Prosecutor . . . . . . . . . . . . . . . . . . . . .279
Rule 3.9. Advocate in Nonadjudicative Proceedings . . . . . . . . . . . . . . . . . . .281
TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
Rule 4.1. Truthfulness in Statements to Others . . . . . . . . . . . . . . . . . . . . . . 283
Rule 4.2. Communication with Person Represented by Counsel . . . . . . . . 285
Rule 4.3. Dealing with Unrepresented Person . . . . . . . . . . . . . . . . . . . . . . . 288
Rule 4.4. Respect for Rights of Third Parties . . . . . . . . . . . . . . . . . . . . . . . .289
LAW FIRMS AND ASSOCIATIONS
Rule 5.1. Responsibilities of Partners, Managers, and Supervisory
Lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .290
Rule 5.2. Responsibilities of a Subordinate Lawyer . . . . . . . . . . . . . . . . . . 293
Rule 5.3. Responsibilities Regarding Nonlawyer Assistants . . . . . . . . . . . .294
Rule 5.4. Professional Independence of a Lawyer . . . . . . . . . . . . . . . . . . . .295
Rule 5.5. Unauthorized Practice of Law: Multijurisdictional Practice
Of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .297
Rule 5.6. Restrictions on Right To Practice. . . . . . . . . . . . . . . . . . . . . . . . . .302
Rule 5.7. Responsibilities Regarding Law-Related Services . . . . . . . . . . . .303

iv

PUBLIC SERVICE
Rule 6.1. Pro Bono Publico Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
Rule 6.2. Accepting Appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .308
Rule 6.3. Membership in Legal Services Organization . . . . . . . . . . . . . . . 309
Rule 6.4. Law Reform Activities Affecting Client Interests . . . . . . . . . . . 310
Rule 6.5. Nonprofit and Court-Annexed Limited Legal Services
Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
INFORMATION ABOUT LEGAL SERVICES
Rule 7.1. Communications Concerning a Lawyer’s Services . . . . . . . . . . .313
Rule 7.2. Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
Rule 7.3. Direct Contact with Prospective Clients . . . . . . . . . . . . . . . . . . . 317
Rule 7.4. Communication of Fields of Practice. . . . . . . . . . . . . . . . . . . . . . 321
Rule 7.5. Firm Names and Letterhead. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
Rule 7.6. Political Contributions To Obtain Government Legal
Engagements or Appointments by Judges [not recommended
for adoption] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
MAINTAINING THE INTEGRITY OF THE PROFESSION
Rule 8.1. Bar Admission and Disciplinary Matters . . . . . . . . . . . . . . . . . 325
Rule 8.2. Judicial and Legal Officials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327
Rule 8.3 Reporting Professional Misconduct . . . . . . . . . . . . . . . . . . . . . . 329
Rule 8.4. Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
Rule 8.5. Disciplinary Authority: Choice of Law . . . . . . . . . . . . . . . . . . . 333
VI. PUBLIC COMMENTS AND COMMITTEE RESPONSES . . . . . . . . . . . . 335
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335
B. Public Comments and Committee Responses . . . . . . . . . . . . . . . . . . . 335
1. Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335
2. Rule 1.0 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
3. Rule 1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
4. Rule 1.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341
5. Rule 1.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
6. Rule 1.8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354
7. Rule 1.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
8. Rule 1.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
9. Rule 1.16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363
10. Rule 1.18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364
11. Rule 2.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
12. Rule 2.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370
13. Rule 3.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371
14. Rule 4.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372
15. Rule 4.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
16. Rule 5.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
17. Rule 5.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378

v

18. Rule 6.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
19. Rule 8.4(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
20. Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406
20. Further Issue Regarding Limited Representation. . . . . . . . . . 407
21. The MSBA Civility Guidelines. . . . . . . . . . . . . . . . . . . . . . . . . . 408

vi

REPORT OF THE SELECT COMMITTEE
APPOINTED BY THE COURT OF APPEALS OF
MARYLAND TO STUDY THE ETHICS 2000
AMENDMENTS TO THE ABA MODEL RULES
OF PROFESSIONAL CONDUCT
I. Introduction
A. Background
In 1997, the American Bar Association convened “The Commission on
Evaluation of the Rules of Professional Conduct,” better known as the “Ethics 2000
Commission.” This Commission issued recommendations, which were then debated and
adopted in various forms by the ABA House of Delegates. In April 2002, the Maryland
Court of Appeals appointed a Committee to examine the Ethics 2000 changes to the ABA
Model Rules and recommend which changes, if any, would be appropriate for the
Maryland Rules of Professional Conduct. This Report contains this Committee’s
proposed changes.
B. The Committee’s Procedure
The Committee undertook an exhaustive examination of the Maryland Rules of
Professional Conduct and the ABA Model Rules of Professional Conduct. After reaching
consensus on changes the Committee believed were warranted, the Committee solicited
public comment by sending its proposals to interested bar associations and posting its
proposal on the Maryland Judiciary’s website. The Committee received a substantial
number of comments. The Committee carefully reviewed these comments, and, in some
cases, modified its proposal in light of them.
In most instances, the Committee chose either to retain existing Maryland
language or to incorporate language from the Model Rules. Sometimes a proposed Rule
contains both language from the ABA Model Rules while retaining some existing
Maryland language. In addition, given that this review necessitated a wholesale
examination of all the relevant rules and their associated comments, we have on rare
occasions proposed changes different from ABA or existing Maryland language. A
handful of these changes are based upon language not ultimately adopted by the ABA
House of Delegates but that, in the judgment of the Committee, sets forth language
appropriate for this State. On even more rare occasions, the Committee drafted its own
language when existing language did not appear adequate.
The preparation of this proposal has been an exercise in building consensus within
the Committee. Not all Committee members agree with all proposed changes. All
members, however, believe that the proposal on balance achieves greater clarity and more
1

effective guidelines designed to promote conduct that will benefit both the legal
profession and the public it serves. Individual Committee members have had the option
to submit a separate report that reflects their views on individual points of this proposal,
although the absence of such a report should not imply unanimity on the part of the
Committee for any particular change.
C. The Format of this Report
This Report is in six sections. After this Introduction, the next section contains a
“clean” or unmarked version of the Committee’s Proposed Maryland Rules of
Professional Conduct. The third section contains a Concurring Minority Report
regarding Rule 8.4(e). The fourth section contains the Committee’s Recommendations
for Further Study. The fifth section contains a “redlined” version of the Committee’s
Recommended Maryland Rules of Professional Conduct showing changes from existing
Maryland language. The final section contains public comments and Committee
responses to them.
As an aid to the Court, the Committee has included a “Model Rules Comparison”
after the text and Comment for each proposed Rule. This “Model Rules Comparison”
summarizes the origins of the language of the proposed Rule. Depending on the Court’s
ultimate decisions as to which changes, if any, it chooses to adopt, it may wish to include
this “Model Rules Comparison” as a permanent feature of the Maryland Rules of
Professional Conduct.

2

II. RECOMMENDED MARYLAND LAWYERS’
RULES OF PROFESSIONAL CONDUCT
WITH MODEL RULES COMPARISON
PREAMBLE: A LAWYER’S RESPONSIBILITIES
[1] A lawyer, as a member of the legal profession, is a representative of clients, an
officer of the legal system and a public citizen having special responsibility for the
quality of justice.
[2] As a representative of clients, a lawyer performs various functions. As
advisor, a lawyer provides a client with an informed understanding of the client's legal
rights and obligations and explains their practical implications. As advocate, a lawyer
zealously asserts the client's position under the rules of the adversary system. As
negotiator, a lawyer seeks a result advantageous to the client but consistent with
requirements of honest dealing with others. As evaluator, a lawyer acts by examining a
client's legal affairs and reporting about them to the client or to others.
[3] In addition to these representational functions, a lawyers may serve as a thirdparty neutral, a nonrepresentational role helping the parties to resolve a dispute or other
matter. Some of these Rules apply directly to lawyers who are or have served as thirdparty neutrals. See, e.g., Rule 1.12 and 2.4. In addition, there are Rules that apply to
lawyers who are not active in the practice of law or to practicing lawyers even when they
are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in
the conduct of a business is subject to discipline for engaging in conduct involving
dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.
[4] In all professional functions a lawyer should be competent, prompt and
diligent. A lawyer should maintain communication with a client concerning the
representation. A lawyer should keep in confidence information relating to
representation of a client except so far as disclosure is required or permitted by the Rules
of Professional Conduct or other law.
[5] A lawyer's conduct should conform to the requirements of the law, both in
professional service to clients and in the lawyer's business and personal affairs. A lawyer
should use the law's procedures only for legitimate purposes and not to harass or
intimidate others. A lawyer should demonstrate respect for the legal system and for those
who serve it, including judges, other lawyers and public officials. While it is a lawyer's
duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's
duty to uphold legal process.
[6] As a public citizen, a lawyer should seek improvement of the law, access to
the legal system, the administration of justice and the quality of service rendered by the
legal profession. As a member of a learned profession, a lawyer should cultivate
3

knowledge of the law beyond its use for clients, employ that knowledge in reform of the
law and work to strengthen legal education. In addition, a lawyer should further the
public’s understanding of and confidence in the rule of law and the justice system
because legal institutions in a constitutional democracy depend on popular participation
and support to maintain their authority. A lawyer should be mindful of deficiencies in the
administration of justice and of the fact that the poor, and sometimes persons who are not
poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote
professional time and resources and use civic influence to ensure equal access to our
system of justice for all those who because of economic or social barriers cannot afford
or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing
these objectives and should help the bar regulate itself in the public interest.
[7] Many of a lawyer's professional responsibilities are prescribed in the Rules of
Professional Conduct, as well as substantive and procedural law. However, a lawyer is
also guided by personal conscience and the approbation of professional peers. A lawyer
should strive to attain the highest level of skill, to improve the law and the legal
profession and to exemplify the legal profession's ideals of public service.
[8] A lawyer's responsibilities as a representative of clients, an officer of the legal
system and a public citizen are usually harmonious. Thus, when an opposing party is
well represented, a lawyer can be a zealous advocate on behalf of a client and at the same
time assume that justice is being done. So also, a lawyer can be sure that preserving
client confidences ordinarily serves the public interest because people are more likely to
seek legal advice, and thereby heed their legal obligations, when they know their
communications will be private.
[9] In the nature of law practice, however, conflicting responsibilities are
encountered. Virtually all difficult ethical problems arise from conflict between a
lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in
remaining an ethical person while earning a satisfactory living. The Rules of
Professional Conduct often prescribe terms for resolving such conflicts. Within the
framework of these Rules, however, many difficult issues of professional discretion can
arise. Such issues must be resolved through the exercise of sensitive professional and
moral judgment guided by the basic principles underlying the Rules. These principles
include the lawyer’s obligation zealously to protect and pursue a client’s legitimate
interests, within the bounds of the law, while maintaining a professional, courteous and
civil attitude toward all persons involved in the legal system.
[10] The legal profession is largely self-governing. Although other professions
also have been granted powers of self-government, the legal profession is unique in this
respect because of the close relationship between the profession and the processes of
government and law enforcement. This connection is manifested in the fact that ultimate
authority over the legal profession is vested largely in the courts.
[11] To the extent that lawyers meet the obligations of their professional calling,
the occasion for government regulation is obviated. Self-regulation also helps maintain

4

the legal profession's independence from government domination. An independent legal
profession is an important force in preserving government under law, for abuse of legal
authority is more readily challenged by a profession whose members are not dependent
on government for the right to practice.
[12] The legal profession's relative autonomy carries with it special
responsibilities of self-government. The profession has a responsibility to assure that its
regulations are conceived in the public interest and not in furtherance of parochial or selfinterested concerns of the bar. Every lawyer is responsible for observance of the Rules of
Professional Conduct. A lawyer should also aid in securing their observance by other
lawyers. Neglect of these responsibilities compromises the independence of the
profession and the public interest which it serves.
[13] Lawyers play a vital role in the preservation of society. The fulfillment of
this role requires an understanding by lawyers of their relationship to our legal system.
The Rules of Professional Conduct, when properly applied, serve to define that
relationship.
SCOPE
[14] The Rules of Professional Conduct are rules of reason. They should be
interpreted with reference to the purposes of legal representation and of the law itself.
Some of the Rules are imperatives, cast in the terms "shall" or "shall not." These define
proper conduct for purposes of professional discipline. Others, generally cast in the term
"may," are permissive and define areas under the Rules in which the lawyer has
discretion to exercise professional judgment. No disciplinary action should be taken
when the lawyer chooses not to act or acts within the bounds of such discretion. Other
Rules define the nature of relationships between the lawyer and others. The Rules are
thus partly obligatory and disciplinary and partly constitutive and descriptive in that they
define a lawyer's professional role. Many of the Comments use the term "should."
Comments do not add obligations to the Rules but provide guidance for practicing in
compliance with the Rules.
[15] The Rules presuppose a larger legal context shaping the lawyer's role. That
context includes court rules and statutes relating to matters of licensure, laws defining
specific obligations of lawyers and substantive and procedural law in general. The
Comments are sometimes used to alert lawyers to their responsibilities under such other
law.
[16] Compliance with the Rules, as with all law in an open society, depends
primarily upon understanding and voluntary compliance, secondarily upon reinforcement
by peer and public opinion and finally, when necessary, upon enforcement through
disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical
considerations that should inform a lawyer, for no worthwhile human activity can be
completely defined by legal rules. The Rules simply provide a framework for the ethical
practice of law.

5

[17] Furthermore, for purposes of determining the lawyer's authority and
responsibility, principles of substantive law external to these Rules determine whether a
client-lawyer relationship exists. Most of the duties flowing from the client-lawyer
relationship attach only after the client has requested the lawyer to render legal services
and the lawyer has agreed to do so. But there are some duties, such as that of
confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a
client-lawyer relationship shall be established. See Rule 1.18. Whether a client-lawyer
relationship exists for any specific purpose can depend on the circumstances and may be
a question of fact.
[18] Under various legal provisions, including constitutional, statutory and
common law, the responsibilities of government lawyers may include authority
concerning legal matters that ordinarily reposes in the client in private client-lawyer
relationships. For example, a lawyer for a government agency may have authority on
behalf of the government to decide upon settlement or whether to appeal from an adverse
judgment. Such authority in various respects is generally vested in the attorney general
and the state's attorney in state government, and their federal counterparts, and the same
may be true of other government law officers. Also, lawyers under the supervision of
these officers may be authorized to represent several government agencies in
intragovernmental legal controversies in circumstances where a private lawyer could not
represent multiple private clients. These Rules do not abrogate any such authority.
[19] Failure to comply with an obligation or prohibition imposed by a Rule is a
basis for invoking the disciplinary process. The Rules presuppose that disciplinary
assessment of a lawyer's conduct will be made on the basis of the facts and circumstances
as they existed at the time of the conduct in question and in recognition of the fact that a
lawyer often has to act upon uncertain or incomplete evidence of the situation.
Moreover, the Rules presuppose that whether or not discipline should be imposed for a
violation, and the severity of a sanction, depend on all the circumstances, such as the
willfulness and seriousness of the violation, extenuating factors and whether there have
been previous violations.
[20] Violation of a Rule should not itself give rise to a cause of action against a
lawyer nor should it create any presumption in such a case that a legal duty has been
breached. In addition, violation of a Rule does not necessarily warrant any other
nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The
Rules are designed to provide guidance to lawyers and to provide a structure for
regulating conduct through disciplinary agencies. They are not designed to be a basis for
civil liability. Furthermore, the purpose of the Rules can be subverted when they are
invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis
for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a
disciplinary authority, does not imply that an antagonist in a collateral proceeding or
transaction has standing to seek enforcement of the Rule. Nevertheless, in some
circumstances, a lawyer’s violation of a Rule may be evidence of breach of the applicable
standard of conduct.

6

[21] The Comment accompanying each Rule explains and illustrates the meaning
and purpose of the Rule. The Preamble and this note on Scope provide general
orientation. The Comments are intended as guides to interpretation, but the text of each
Rule is authoritative.
[22] In May 1997, the Maryland State Bar Association’s Board of Governors
approved an aspirational Code of Civility for all lawyers and judges in Maryland. All
Maryland lawyers and judges should honor and voluntarily adhere to the standards set
forth in this Code. Civility is a cornerstone of the legal profession. The principles in the
Code of Civility are not intended to replace, but supplement all existing codes, rules and
statutes concerning lawyers’ and judges’ professional conduct. The Code of Civility is
reprinted as an Appendix to these Rules.
Model Rules Comparison.-With the exception of wording changes to Comment
[20] and the substantial retention of Comment [22] from pre-existing language, the Scope
and Preamble are substantially similar to the language of the Ethics 2000 Amendments to
the ABA Model Rules of Professional Conduct.

7

Rule 1.0. Terminology.
(a) "Belief" or "believes" denotes that the person involved actually supposed the
fact in question to be true. A person's belief may be inferred from circumstances.
(b) “Confirmed in writing,” when used in reference to the informed consent of a
person, denotes informed consent that is given in writing by the person or a writing that a
lawyer promptly transmits to the person confirming an oral informed consent. See
paragraph (f) for the definition of “informed consent.” If it is not feasible to obtain or
transmit the writing at the time the person gives informed consent, then the lawyer must
obtain or transmit it within a reasonable time thereafter.
(c) “Consult” or “consultation” denotes communication of information reasonably
sufficient to permit the client to appreciate the significance of the matter in question.
(d) "Firm" or "law firm" denotes a lawyer or lawyers in a law partnership,
professional corporation, sole proprietorship or other association authorized to practice
law; or lawyers employed in a legal services organization or the legal department of a
corporation, government or other organization.
(e) "Fraud" or "fraudulent" denotes conduct that is fraudulent under the
substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.
(f) “Informed consent” denotes the agreement by a person to a proposed course of
conduct after the lawyer has communicated adequate information and explanation about
the material risks of and reasonably available alternatives to the proposed course of
conduct.
(g) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in
question. A person's knowledge may be inferred from circumstances.
(h) “Law firm.” See Rule 1.0(d).
(i) "Partner" denotes a member of a partnership, a shareholder in a law firm
organized as a professional corporation, or a member of an association authorized to
practice law.
(j) "Reasonable" or "reasonably" when used in relation to conduct by a lawyer
denotes the conduct of a reasonably prudent and competent lawyer.
(k) "Reasonable belief" or "reasonably believes" when used in reference to a
lawyer denotes that the lawyer believes the matter in question and that the circumstances
are such that the belief is reasonable.
(l) "Reasonably should know" when used in reference to a lawyer denotes that a
lawyer of reasonable prudence and competence would ascertain the matter in question.

8

(m) “Screened” denotes the isolation of a lawyer from any participation in a
matter through the timely imposition of procedures within a firm that are reasonably
adequate under the circumstances to protect information that the isolated lawyer is
obligated to protect under these Rules or other law.
(n) "Substantial" when used in reference to degree or extent denotes a material
matter of clear and weighty importance.
(o) “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding or
a legislative body, administrative agency or other body acting in an adjudicative capacity.
A legislative body, administrative agency or other body acts in an adjudicative capacity
when a neutral official, after the presentation of evidence or legal argument by a party or
parties, will render a binding legal judgment directly affecting a party’s interests in a
particular matter.
(p) “Writing” or “written” denotes a tangible or electronic record of a
communication or representation, including handwriting, typewriting, printing,
photostating, photography, audio or videorecording and e-mail. A “signed” writing
includes an electronic sound, symbol or process attached to or logically associated with a
writing and executed or adopted by a person with the intent to sign the writing.
COMMENT
[1] Confirmed in Writing. – If it is not feasible to obtain or transmit a written
confirmation at the time the client gives informed consent, then the lawyer must obtain or
transmit it within a reasonable time thereafter. If a lawyer has obtained a client’s
informed consent, the lawyer may act in reliance on that consent so long as it is
confirmed in writing within a reasonable time thereafter.
[2] Firm.–Whether two or more lawyers constitute a firm within paragraph (c) can
depend on the specific facts. For example, two practitioners who share office space and
occasionally consult or assist each other ordinarily would not be regarded as constituting
a firm. However, if they present themselves to the public in a way that suggests that they
are a firm or conduct themselves as a firm, they should be regarded as a firm for purposes
of the Rules. The terms of any formal agreement between associated lawyers are relevant
in determining whether they are a firm, as is the fact that they have mutual access to
information concerning the clients they serve. Furthermore, it is relevant in doubtful
cases to consider the underlying purpose of the Rule that is involved. A group of lawyers
could be regarded as a firm for purposes of the Rule providing that the same lawyer
should not represent opposing parties in litigation, while it might not be so regarded for
purposes of the Rule that information acquired by one lawyer is attributed to another.
[3] With respect to the law department of an organization, including the
government, there is ordinarily no question that the members of the department constitute
a firm within the meaning of the Rules of Professional Conduct. There can be

9

uncertainty, however, as to the identity of the client. For example, it may not be clear
whether the law department of a corporation represents a subsidiary or an affiliated
corporation, as well as the corporation by which the members of the department are
directly employed. A similar question can arise concerning an unincorporated
association and its local affiliates.
[4] Similar questions can also arise with respect to lawyers in legal aid and legal
services organizations. Depending upon the structure of the organization, the entire
organization or different components of it may constitute a firm or firms for purposes of
these Rules.
[5] Fraud.-When used in these Rules, the terms “fraud” or “fraudulent” refer to
conduct that is characterized as such under the substantive or procedural law of the
applicable jurisdiction and has a purpose to deceive. This does not include merely
negligent misrepresentation or negligent failure to apprise another of relevant
information. For purposes of these Rules, it is not necessary that anyone has suffered
damages or relied on the misrepresentation or failure to inform.
[6] Informed Consent.-Many of the Rules of Professional Conduct require the
lawyer to obtain the informed consent of a client or other person (e.g., a former client or,
under certain circumstances, a prospective client) before accepting or continuing
representation or pursuing a course of conduct. See, e.g., Rules 1.2(c), 1.6(a) and 1.7(b).
The communication necessary to obtain such consent will vary according to the Rule
involved and the circumstances giving rise to the need to obtain informed consent. The
lawyer must make reasonable efforts to ensure that the client or other person possesses
information reasonably adequate to make an informed decision. Ordinarily, this will
require communication that includes a disclosure of the facts and circumstances giving
rise to the situation, any explanation reasonably necessary to inform the client or other
person of the material advantages and disadvantages of the proposed course of conduct
and a discussion of the client’s or other person’s options and alternatives. In some
circumstances it may be appropriate for a lawyer to advise a client or other person of
facts or implications already known to the client or other person to seek the advice of
other counsel. A lawyer need not inform a client or other person of facts or implications
already known to the client or other person; nevertheless, a lawyer who does not
personally inform the client or other person assumes the risk that the client or other
person is inadequately informed and the consent is invalid. In determining whether the
information and explanation provided are reasonably adequate, relevant factors include
whether the client or other person is experienced in legal matters generally and in making
decisions of the type involved, and whether the client or other person is independently
represented by other counsel in giving the consent. Normally, such persons need less
information and explanation than others, and generally a client or other person who is
independently represented by other counsel in giving the consent should be assumed to
have given informed consent.
[7] Obtaining informed consent will usually require an affirmative response by
the client or other person. In general, a lawyer may not assume consent from a client’s or

10

other person’s silence. Consent may be inferred, however, from the conduct of the client
or other person who has reasonably adequate information about the matter. A number of
Rules require that a person’s consent be confirmed in writing. See Rules 1.7(b) and
1.9(a). For a definition of “writing” and “confirmed in writing,” see paragraphs (p) and
(b). Other Rules require that a client’s consent be obtained in a writing signed by the
client. See, e.g., Rules 1.5(c) and 1.8(a). For a definition of “signed,” see paragraph (p).
[8] Screened.-This definition applies to situations where screening of a personally
disqualified lawyer is permitted to remove imputation of a conflict of interest under Rules
1.11, 1.12 or 1.18.
[9] The purpose of screening is to assure the affected parties that confidential
information known by the personally disqualified lawyer remains protected. The
personally disqualified lawyer should acknowledge the obligation not to communicate
with any of the other lawyers in the firm with respect to the matter. Similarly, other
lawyers in the firm who are working on the matter should be informed that the screening
is in place and that they may not communicate with the personally disqualified lawyer
with respect to the matter. Additional screening measures that are appropriate for the
particular matter will depend on the circumstances. To implement, reinforce and remind
all affected lawyers of the presence of the screening, it may be appropriate for the firm to
undertake such procedures as a written undertaking by the screened lawyer to avoid any
communication with other firm personnel and any contact with any firm files or other
materials relating to the matter, written notice and instructions to all other firm personnel
forbidding any communication with the screened lawyer relating to the matter, denial of
access by the screened lawyer to firm files or other materials relating to the matter and
periodic reminders of the screen to the screened lawyer and all other firm personnel.
[10] In order to be effective, screening measures must be implemented as soon as
practical after a lawyer or law firm knows or reasonably should know that there is a need
for screening.
Model Rules Comparison.-Rule 1.0 is substantially similar to the language of
the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct except
for the retention of the definition of “consult” and “consultation,” the addition of a crossreference to “law firm,” and the appropriate redesignation of subsections.

11

CLIENT-LAWYER RELATIONSHIP.
Rule 1.1. Competence.
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.
COMMENT
[1] Legal Knowledge and Skill – In determining whether a lawyer employs the
requisite knowledge and skill in a particular matter, relevant factors include the relative
complexity and specialized nature of the matter, the lawyer's general experience, the
lawyer's training and experience in the field in question, the preparation and study the
lawyer is able to give the matter and whether it is feasible to refer the matter to, or
associate or consult with, a lawyer of established competence in the field in question. In
many instances, the required proficiency is that of a general practitioner. Expertise in a
particular field of law may be required in some circumstances.
[2] A lawyer need not necessarily have special training or prior experience to
handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted
lawyer can be as competent as a practitioner with long experience. Some important legal
skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are
required in all legal problems. Perhaps the most fundamental legal skill consists of
determining what kind of legal problems a situation may involve, a skill that necessarily
transcends any particular specialized knowledge. A lawyer can provide adequate
representation in a wholly novel field through necessary study. Competent representation
can also be provided through the association of a lawyer of established competence in the
field in question.
[3] In an emergency a lawyer may give advice or assistance in a matter in which
the lawyer does not have the skill ordinarily required where referral to or consultation or
association with another lawyer would be impractical. Even in an emergency, however,
assistance should be limited to that reasonably necessary in the circumstances, for illconsidered action under emergency conditions can jeopardize the client's interest.
[4] A lawyer may accept representation where the requisite level of competence
can be achieved by reasonable preparation. This applies as well to a lawyer who is
appointed as counsel for an unrepresented person. See also Rule 6.2.
[5] Thoroughness and Preparation – Competent handling of a particular matter
includes inquiry into and analysis of the factual and legal elements of the problem, and
use of methods and procedures meeting the standards of competent practitioners. It also
includes adequate preparation. The required attention and preparation are determined in
part by what is at stake; major litigation and complex transactions ordinarily require more

12

extensive treatment than matters of lesser complexity. An agreement between the lawyer
and the client regarding the scope of the representation may limit the matters for which
the lawyer is responsible. See Rule 1.2(c).
[6] Maintaining Competence – To maintain the requisite knowledge and skill, a
lawyer should keep abreast of changes in the law and its practice, engage in continuing
study and education and comply with all continuing legal education requirements to
which the lawyer is subject.
Model Rules Comparison.-Rule 1.0 is substantially similar to the language of
the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct.

13

Rule 1.2. Scope of Representation and Allocation of Authority between Client and
Lawyer.
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions
concerning the objectives of the representation and, when appropriate, shall consult with
the client as to the means by which they are to be pursued. A lawyer may take such
action on behalf of the client as is impliedly authorized to carry out the representation. A
lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the
lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea
to be entered, whether to waive jury trial and whether the client will testify.
(b) A lawyer's representation of a client, including representation by appointment,
does not constitute an endorsement of the client's political, economic, social or moral
views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is
reasonable under the circumstances and the client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that
the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal
consequences of any proposed course of conduct with a client and may counsel or assist a
client to make a good faith effort to determine the validity, scope, meaning or application
of the law.
COMMENT
[1] Scope of Representation – Both lawyer and client have authority and
responsibility in the objectives and means of representation. The client has ultimate
authority to determine the purposes to be served by legal representation, within the limits
imposed by law and the lawyer's professional obligations. Within those limits, a client
also has a right to consult with the lawyer about the means to be used in pursuing those
objectives. At the same time, a lawyer is not required to pursue objectives or employ
means simply because a client may wish that the lawyer do so. A clear distinction
between objectives and means sometimes cannot be drawn, and in many cases the clientlawyer relationship partakes of a joint undertaking. In questions of means, the lawyer
should assume responsibility for technical and legal tactical issues, but should defer to the
client regarding such questions as the expense to be incurred and concern for third
persons who might be adversely affected.
[2] On occasion, however, a lawyer and a client may disagree about the means to
be used to accomplish the client’s objectives. Because of the varied nature of the matters
about which a lawyer and client might disagree and because the actions in question may
implicate the interests of a tribunal or other persons, this Rule does not prescribe how
such disagreements are to be resolved. Other law, however, may be applicable and
should be consulted by the lawyer. The lawyer should also consult with the client and
seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing

14

and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw
from the representation. See Rule 1.16(b)(4). Conversely, the client may resolve the
disagreement by discharging the lawyer. See Rule 1.16(a)(3).
[3] At the outset of a representation, the client may authorize the lawyer to take
specific action on the client’s behalf without further consultation. Absent a material
change in circumstances and subject to Rule 1.4, a lawyer may rely on such an advance
authorization. The client may, however, revoke such authority at any time.
[4] In a case in which the client appears to be suffering diminished capacity, the
lawyer's duty to abide by the client's decisions is to be guided by reference to Rule 1.14.
[5] Independence from Client's Views or Activities – Legal representation should
not be denied to people who are unable to afford legal services, or whose cause is
controversial or the subject of popular disapproval. By the same token, representing a
client does not constitute approval of the client's views or activities.
[6] Agreements Limiting Scope of Representation – The scope of services to be
provided by a lawyer may be limited by agreement with the client or by the terms under
which the lawyer's services are made available to the client. When a lawyer has been
retained by an insurer to represent an insured, for example, the representation may be
limited to matters related to the insurance coverage. A limited representation may be
appropriate because the client has limited objectives for the representation. In addition,
the terms upon which representation is undertaken may exclude specific means that might
otherwise be used to accomplish the client’s objectives. Such limitations may exclude
actions that the client thinks are too costly or that the lawyer regards as repugnant or
imprudent.
[7] Although this Rule affords the lawyer and client substantial latitude to limit
the representation, the limitation must be reasonable under the circumstances. If, for
example, a client’s objective is limited to securing general information about the law the
client needs in order to handle a common and typically uncomplicated legal problem, the
lawyer and client may agree that the lawyer’s services will be limited to a brief telephone
consultation. Such a limitation, however, would not be reasonable if the time allotted
was not sufficient to yield advice upon which the client could rely. Although an
agreement for a limited representation does not exempt a lawyer form the duty to provide
competent representation, the limitation is a factor to be considered when determining the
legal knowledge, skill, thoroughness and preparation reasonably necessary for the
representation. See Rule 1.1.
[8] All agreements concerning a lawyer’s representation of a client must accord
with the Rules of Professional Conduct and other law. See, e.g., Rule 1.1, 1.8 and 5.6.
[9] Criminal, Fraudulent and Prohibited Transactions –Paragraph (d) prohibits a
lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This
prohibition, however, does not preclude the lawyer from giving an honest opinion about

15

the actual consequences that appear likely to result from a client's conduct. The fact that
a client uses advice in a course of action that is criminal or fraudulent does not, of itself,
make a lawyer a party to the course of action. There is a critical distinction between
presenting an analysis of legal aspects of questionable conduct and recommending the
means by which a crime or fraud might be committed with impunity.
[10] When the client's course of action has already begun and is continuing, the
lawyer's responsibility is especially delicate. The lawyer is required to avoid assisting the
client, for example, by drafting or delivering documents that the lawyer knows are
fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not
continue assisting a client in conduct that the lawyer originally supposed was legally
proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw
from the representation of the client in the matter. See Rule 1.16(a). In some cases
withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice
of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like.
See Rules 1.6, 4.1.
[11] Where the client is a fiduciary, the lawyer may be charged with special
obligations in dealings with a beneficiary.
[12] Paragraph (d) applies whether or not the defrauded party is a party to the
transaction. Hence, a lawyer must not participate in a transaction to effectuate criminal
or fraudulent avoidance of tax liability. Paragraph (d) does not preclude undertaking a
criminal defense incident to a general retainer for legal services to a lawful enterprise.
The last clause of paragraph (d) recognizes that determining the validity or interpretation
of a statute or regulation may require a course of action involving disobedience of the
statute or regulation or of the interpretation placed upon it by governmental authorities.
[13] If a lawyer comes to know or reasonably should know that a client expects
assistance not permitted by the Rules of Professional Conduct or other law or if the
lawyer intends to act contrary to the client’s instructions, the lawyer must consult with
the client regarding the limitations on the lawyer’s conduct. See Rule 1.4(a)(4).
Model Rules Comparison.-Rule 1.2 is substantially similar to the language of
the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct except
for wording changes in Rule 1.2(a) and the retention of existing Maryland language in
Comment [1].

16

Rule 1.3. Diligence.
A lawyer shall act with reasonable diligence and promptness in representing a
client.
COMMENT
[1] A lawyer should pursue a matter on behalf of a client despite opposition,
obstruction or personal inconvenience to the lawyer, and may take whatever lawful and
ethical measures are required to vindicate a client's cause or endeavor. A lawyer must
also act with commitment and dedication to the interests of the client and with zeal in
advocacy upon the client's behalf. A lawyer is not bound, however, to press for every
advantage that might be realized for a client. For example, a lawyer may have authority
to exercise professional discretion in determining the means by which a matter should be
pursued. See Rule 1.2. The lawyer’s duty to act with reasonable diligence does not
require the use of offensive tactics or preclude the treating of all persons involved in the
legal process with courtesy and respect.
[2] A lawyer's workload must be controlled so that each matter can be handled
competently.
[3] Perhaps no professional shortcoming is more widely resented than
procrastination. A client's interests often can be adversely affected by the passage of time
or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of
limitations, the client's legal position may be destroyed. Even when the client's interests
are not affected in substance, however, unreasonable delay can cause a client needless
anxiety and undermine confidence in the lawyer's trustworthiness. A lawyer’s duty to act
with reasonable promptness, however, does not preclude the lawyer from agreeing to a
reasonable request for a postponement that will not prejudice the lawyer’s client.
[4] Unless the relationship is terminated as provided in Rule 1.16, a lawyer should
carry through to conclusion all matters undertaken for a client. If a lawyer's employment
is limited to a specific matter, the relationship terminates when the matter has been
resolved. If a lawyer has served a client over a substantial period in a variety of matters,
the client sometimes may assume that the lawyer will continue to serve on a continuing
basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer
relationship still exists should be clarified by the lawyer, preferably in writing, so that the
client will not mistakenly suppose the lawyer is looking after the client's affairs when the
lawyer has ceased to do so. For example, if a lawyer has handled a judicial or
administrative proceeding that produced a result adverse to the client and the lawyer and
client have not agreed that the lawyer will handle the matter on appeal, the lawyer must
consult with the client about the possibility of appeal before relinquishing responsibility
for the matter. See Rule 1.4. Whether the lawyer is obligated to prosecute the appeal for
the client depends on the scope of the representation the lawyer has agreed to provide to
the client. See Rule 1.2.

17

[5] To prevent neglect of client matters in the event of a sole practitioner’s death
or disability, the duty of diligence may require that each sole practitioner prepare a plan,
in conformity with applicable rules, that designates another competent lawyer to review
client files, notify each client of the lawyer’s death or disability, and determine whether
there is a need for immediate protective action. C.f. Md. Rule 16-777 (providing for
appointment of a conservator to inventory the files of an attorney who is deceased or has
abandoned the practice of law, and to take other appropriate action to protect the
attorney’s clients in the absence of a plan to protect clients’ interests).
Model Rules Comparison.-Rule 1.3 is substantially similar to the language of
the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct except
for Comment [5], which incorporates Maryland law.

18

Rule 1.4. Communication.
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with
respect to which the client’s informed consent, as defined in Rule
1.0(f), is required by these Rules;
(2) keep the client reasonably informed about the status of the matter;
(3) promptly comply with reasonable requests for information; and
(4) consult with the client about any relevant limitation on the lawyer’s
conduct when the lawyer knows that the client expects assistance not permitted by
the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit
the client to make informed decisions regarding the representation.
COMMENT
[1] Reasonable communication between the lawyer and the client is necessary for
the client effectively to participate in the representation.
[2] Communicating with Client. – If these Rules require that a particular decision
about the representation be made by the client, paragraph (a)(1) requires that the lawyer
promptly consult with and secure the client’s consent prior to taking action unless prior
discussions with the client have resolved what action the client wants the lawyer to take.
For example, a lawyer who receives from opposing counsel an offer of settlement in a
civil controversy or a proffered plea bargain in a criminal case must promptly inform the
client of its substance unless the client has previously indicated that the proposal will be
acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer.
See Rule 1.2(a).
[3] Under Rule 1.2(a), a lawyer is required, when appropriate, to consult with the
client about the means to be used to accomplish the client’s objectives. In some
situations – depending on both the importance of the action under consideration and the
feasibility of consulting with the client – this duty will require consultation prior to taking
action. In other circumstances, such as during a trial when an immediate decision must
be made, the exigency of the situation may require the lawyer to act without prior
consultation. In such cases the lawyer must nonetheless act reasonably to inform the
client of actions the lawyer has taken on the client’s behalf. Additionally, paragraph
(a)(2) requires that the lawyer keep the client reasonably informed about the status of the
matter, such as significant developments affecting the timing or the substance of the
representation.

19

[4] A lawyer’s regular communication with clients will minimize the occasions on
which a client will need to request information concerning the representation. When a
client makes a reasonable request for information, however, paragraph (a)(3) requires
prompt compliance with the request, or if a prompt response is not feasible, that the
lawyer, or a member of the lawyer’s staff, acknowledge receipt of the request and advise
the client when a response may be expected. Client telephone calls should be promptly
returned or acknowledged.
[5] Explaining Matters. - The client should have sufficient information to
participate intelligently in decisions concerning the objectives of the representation and
the means by which they are to be pursued, to the extent the client is willing and able to
do so. Adequacy of communication depends in part on the kind of advice or assistance
that is involved. For example, where there is time to explain a proposal made in a
negotiation, the lawyer should review all important provisions with the client before
proceeding to an agreement. In litigation a lawyer should explain the general strategy
and prospects of success and ordinarily should consult the client on tactics that are likely
to result in significant expense or to injure or coerce others. On the other hand, a lawyer
ordinarily will not be expected to describe trial or negotiation strategy in detail. The
guiding principle is that the lawyer should fulfill reasonable client expectations for
information consistent with the duty to act in the client's best interests, and the client's
overall requirements as to the character of representation. In certain circumstances, such
as when a lawyer asks a client to consent to a representation affected by a conflict of
interest, the client must give informed consent, as defined in Rule 1.0(f).
[6] Ordinarily, the information to be provided is that appropriate for a client who
is a comprehending and responsible adult. However, fully informing the client according
to this standard may be impracticable, for example, where the client is a child or suffers
from diminished capacity. See Rule 1.14. When the client is an organization or group, it
is often impossible or inappropriate to inform every one of its members about its legal
affairs; ordinarily, the lawyer should address communications to the appropriate officials
of the organization. See Rule 1.13. Where many routine matters are involved, a system
of limited or occasional reporting may be arranged with the client.
[7] Withholding Information – In some circumstances, a lawyer may be justified
in delaying transmission of information when the client would be likely to react
imprudently to an immediate communication. Thus, a lawyer might withhold a
psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure
would harm the client. A lawyer may not withhold information to serve the lawyer's own
interest or convenience or the interests or convenience of another person. Rules or court
orders governing litigation may provide that information supplied to a lawyer may not be
disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.
Model Rules Comparison.-Rule 1.4 is substantially similar to the language of
the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct except
for the deletion of Model Rule 1.4(a)(2) and the redesignation of subsections as
appropriate, and wording changes to Comment [3].

20

Rule 1.5. Fees.
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable
fee or an unreasonable amount for expenses. The factors to be considered in determining
the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment of the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses
for which the client will be responsible shall be communicated to the client, preferably in
writing, before or within a reasonable time after commencing the representation, except
when the lawyer will charge a regularly represented client on the same basis or rate. Any
changes in the basis or rate of the fee or expenses shall also be communicated to the
client.
(c) A fee may be contingent on the outcome of the matter for which the service is
rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or
other law. A contingent fee agreement shall be in a writing signed by the client and shall
state the method by which the fee is to be determined, including the percentage or
percentages that shall accrue to the lawyer in the event of settlement, trial or appeal;
litigation and other expenses to be deducted from the recovery; and whether such
expenses are to be deducted before or after the contingent fee is calculated. The
agreement must clearly notify the client of any expenses for which the client will be
responsible whether or not the client is the prevailing party. Upon conclusion of a
contingent fee matter, the lawyer shall provide the client with a written statement stating
the outcome of the matter, and, if there is a recovery, showing the remittance to the client
and the method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:

21

(1) any fee in a domestic relations matter, the payment or amount of which
is contingent upon the securing of a divorce or custody of a child or upon the
amount of alimony or support or property settlement, or upon the amount of an
award pursuant to Sections 8-201 through 213 of Md. Code Ann., Fam. Law; or
(2) a contingent fee for representing a defendant in a criminal case.
(e) A division of a fee between lawyers who are not in the same firm may be
made only if:
(1) the division is in proportion to the services performed by each lawyer
or each lawyer assumes joint responsibility for the representation;
(2) the client agrees to the joint representation and the agreement is
confirmed in writing; and
(3) the total fee is reasonable.
COMMENT
[1] Reasonableness of Fee and Expenses. – Paragraph (a) requires that lawyers
charge fees that are reasonable under the circumstances. The factors specified in (1)
through (8) are not exclusive. Nor will each factor be relevant in each instance.
Paragraph (a) also requires that expenses for which the client will be charged must be
reasonable. A lawyer may seek reimbursement for the cost of services performed inhouse, such as copying, or for other expenses incurred in-house, such as telephone
charges, either by charging a reasonable amount to which the client has agreed in
advance or by charging an amount that reasonably reflects the cost incurred by the
lawyer.
[2] Basis or Rate of Fee – When the lawyer has regularly represented a client,
they ordinarily will have evolved an understanding concerning the basis or rate of the fee
and the expenses for which the client will be responsible. In a new client-lawyer
relationship, however, an understanding as to fees and expenses must be promptly
established. Generally, it is desirable to furnish the client with at least a simple
memorandum or copy of the lawyer’s customary fee arrangements that states the general
nature of the legal services to be provided, the basis, rate, or total amount of the fee and
whether and to what extent the client will be responsible for any costs, expenses or
disbursements in the course of representation. A written statement concerning the terms
of the engagement reduces the possibility of misunderstanding.
[3] Contingent fees, like any other fees, are subject to the reasonableness standard
of paragraph (a) of this Rule. In determining whether a particular contingent fee is
reasonable, or whether it is reasonable to charge any form of contingent fee, a lawyer
must consider the factors that are relevant under the circumstances. Applicable law may

22

impose limitations on contingent fees, such as a ceiling on the percentage allowable, or
may require a lawyer to offer clients an alternative basis for the fee. Applicable law may
also apply to situations other than a contingent fee, for example, government regulations
regarding fees in certain tax matters.
[4] Terms of Payment – A lawyer may require advance payment of a fee, but is
obliged to return any unearned portion. See Rule 1.15(c); Comment [3] to Rule 1.15;
Rule 1.16(d). A lawyer may accept property in payment for services, such as an
ownership interest in an enterprise, providing this does not involve acquisition of a
proprietary interest in the cause of action or subject matter of the litigation contrary to
Rule 1.8(i). However, a fee paid in property instead of money may be subject to the
requirements of Rule 1.8(a) because such fees often have the essential qualities of a
business transaction with the client.
[5] An agreement may not be made whose terms might induce the lawyer
improperly to curtail services for the client or perform them in a way contrary to the
client's interest. For example, a lawyer should not enter into an agreement whereby
services are to be provided only up to a stated amount when it is foreseeable that more
extensive services probably will be required, unless the situation is adequately explained
to the client. Otherwise, the client might have to bargain for further assistance in the
midst of a proceeding or transaction. However, it is proper to define the extent of
services in light of the client's ability to pay. A lawyer should not exploit a fee
arrangement based primarily on hourly charges by using wasteful procedures.
[6] Prohibited Contingent Fees – Paragraph (d) prohibits a lawyer from charging
a contingent fee in a domestic relations matter when payment is contingent upon the
securing of a divorce or upon the amount of alimony or support or property settlement to
be obtained. This provision does not preclude a contract for a contingent fee for legal
representation in connection with the recovery of post-judgment balances due under
support, alimony or other financial orders because such contracts do not implicate the
same policy concerns.
[7] Division of Fee – A division of fee is a single billing to a client covering the
fee of two or more lawyers who are not in the same firm. A division of fee facilitates
association of more than one lawyer in a matter in which neither alone could serve the
client as well, and most often is used when the fee is contingent and the division is
between a referring lawyer and a trial specialist. Paragraph (e) permits the lawyers to
divide a fee on either the basis of the proportion of services they render or by agreement
between the participating lawyers if all assume responsibility for the representation as a
whole and the client agrees to the joint representation, which is confirmed in writing.
Contingent fee agreements must be in a writing signed by the client and must otherwise
comply with paragraph (c) of this Rule. Joint responsibility for the representation entails
financial and ethical responsibility for the representation as if the lawyers were associated
in a partnership. A lawyer should only refer a matter to a lawyer whom the referring
lawyer reasonably believes is competent to handle the matter. See Rule 1.1.

23

[8] Paragraph (e) does not prohibit or regulate division of fees to be received in
the future for work done when lawyers were previously associated in a law firm.
[9] Disputes over Fees – If a procedure has been established for resolution of fee
disputes, such as an arbitration or mediation procedure established by the bar, the lawyer
must comply with the procedure when it is mandatory, and even when it is voluntary, the
lawyer should conscientiously consider submitting to it. Law may prescribe a procedure
for determining a lawyer's fee, for example, in representation of an executor or
administrator, a class or a person entitled to a reasonable fee as part of the measure of
damages. The lawyer entitled to such a fee and a lawyer representing another party
concerned with the fee should comply with the prescribed procedure.
Cross references. — See Post v. Bregman, 349 Md. 142 (1998) and Son v.
Margolius, 349 Md. 441 (1998).
Model Rules Comparison.-Rule 1.5 is substantially similar to the language of
the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct except
that it retains existing Maryland language in Rule 1.5(d)(1) and adds wording changes to
Rule 1.5(e)(2) and Comment [7].

24

Rule 1.6. Confidentiality of Information.
(a) A lawyer shall not reveal information relating to representation of a client
unless the client gives informed consent, the disclosure is impliedly authorized in order to
carry out the representation, or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to
the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is
reasonably certain to result in substantial injury to the financial interests or
property of another and in furtherance of which the client has used or is using the
lawyer’s services;
(3) to prevent, mitigate, or rectify substantial injury to the financial
interests or property of another that is reasonably certain to result or has resulted
from the client’s commission of a crime or fraud in furtherance of which the client
has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules,
a court order or other law;
(5) to establish a claim or defense on behalf of the lawyer in a controversy
between the lawyer and the client, to establish a defense to a criminal charge, civil
claim, or disciplinary complaint against the lawyer based upon conduct in which
the client was involved or to respond to allegations in any proceeding concerning
the lawyer's representation of the client; or
(6) to comply with these Rules, a court order or other law.
COMMENT
[1] This Rule governs the disclosure by a lawyer of information relating to the
representation of a client during the lawyer's representation of the client. See Rule 1.18
for the lawyer's duties with respect to information provided to the lawyer by a
prospective client, Rule 1.9(c)(2) for the lawyer's duty not to reveal information relating
to the lawyer's prior representation of a former client and Rules 1.8(b) and 1.9(c)(1) for
the lawyer's duties with respect to the use of such information to the disadvantage of
clients and former clients.
[2] A fundamental principle in the client-lawyer relationship is that, in the
absence of the client's informed consent, the lawyer must not reveal information relating
to the representation. See Rule 1.0(f) for the definition of informed consent. This
contributes to the trust that is the hallmark of the client-lawyer relationship. The client is
thereby encouraged to seek legal assistance and to communicate fully and frankly with
25

the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs
this information to represent the client effectively and, if necessary, to advise the client to
refrain from wrongful conduct. Almost without exception, clients come to lawyers in
order to determine their rights and what is, in the complex of laws and regulations,
deemed to be legal and correct. Based upon experience, lawyers know that almost all
clients follow the advice given, and the law is upheld.
[3] The principle of client-lawyer confidentiality is given effect by related bodies
of law: the attorney-client privilege, the work product doctrine and the rule of
confidentiality established in professional ethics. The attorney-client privilege and workproduct doctrine apply in judicial and other proceedings in which a lawyer may be called
as a witness or otherwise required to produce evidence concerning a client. The rule of
client-lawyer confidentiality applies in situations other than those where evidence is
sought from the lawyer through compulsion of law. The confidentiality rule, for
example, applies not only to matters communicated in confidence by the client but also to
all information relating to the representation, whatever its source. A lawyer may not
disclose such information except as authorized or required by the Rules of Professional
Conduct or other law. See also Scope.
[4] Paragraph (a) prohibits a lawyer from revealing information relating to the
representation of a client. This prohibition also applies to disclosures by a lawyer that do
not in themselves reveal protected information but could reasonably lead to the discovery
of such information by a third person. A lawyer's use of a hypothetical to discuss issues
relating to the representation is permissible so long as there is no reasonable likelihood
that the listener will be able to ascertain the identity of the client or the situation involved.
[5] Implied Authority to Disclose - Except to the extent that the client's
instructions or special circumstances limit that authority, a lawyer is impliedly authorized
to make disclosures about a client when appropriate in carrying out the representation. In
some situations, for example, a lawyer may be impliedly authorized to admit a fact that
cannot properly be disputed, or to make a disclosure that facilitates a satisfactory
conclusion to a matter. Lawyers in a firm may, in the course of the firm's practice,
disclose to each other information relating to a client of the firm, unless the client has
instructed that particular information be confined to specified lawyers.
[6] Disclosure Adverse to Client – Although the public interest is usually best
served by a strict rule requiring lawyers to preserve the confidentiality of information
relating to the representation of their clients, the confidentiality rule is subject to limited
exceptions. Paragraph (b), however, permits disclosure only to the extent the lawyer
reasonably believes the disclosure is necessary to accomplish one of the purposes
specified. Where practicable, the lawyer should first seek to persuade the client to take
suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the
client's interest should be no greater than the lawyer reasonably believes necessary to
accomplish the purpose. If the disclosure will be made in connection with a judicial
proceeding, the disclosure should be made in a manner that limits access to the
information to the tribunal or other persons having a need to know it and appropriate

26

protective orders or other arrangements should be sought by the lawyer to the fullest
extent practicable.
[7] Paragraph (b) permits, but does not require the disclosure of information
relating to a client's representation to accomplish the purposes specified in paragraphs
(b)(1) through (b)(6). In exercising the discretion conferred by this Rule, the lawyer may
consider such factors as the nature of the lawyer's relationship with the client and with
those who might be injured by the client, the lawyer's own involvement in the transaction
and factors that may extenuate the conduct in question. A lawyer's decision not to
disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may be
required, however, by other Rules regardless of whether the disclosure is permitted by
Rule 1.6. See Rules 1.2(d), 3.3(a)(4), 4.1(b), 8.1 and 8.3. A lawyer representing an
organization may in some circumstances be permitted to disclose information regardless
of whether the disclosure is permitted by Rule 1.6(b). See Rule 1.13(c).
[8] Paragraph (b)(1) recognizes the overriding value of life and physical integrity
and permits disclosure reasonably believed necessary to prevent reasonably certain death
or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered
imminently or if there is a present and substantial threat that a person will suffer such
harm at a later date if the lawyer fails to take action necessary to eliminate the threat.
Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a
town's water supply may reveal this information to the authorities if there is a present and
substantial risk that a person who drinks the water will contract a life-threatening or
debilitating disease, and the lawyer reasonably believes disclosure is necessary to
eliminate the threat or reduce the number of victims.
[9] Paragraph (b)(2) is a limited exception to the rule of confidentiality that
permits the lawyer to reveal information to the extent necessary to enable affected
persons or appropriate authorities to prevent the client from committing a crime or a
fraud, as defined in Rule 1.0(e), that is reasonably certain to result in substantial injury to
the financial or property interests of another and in furtherance of which the client has
used or is using the lawyer's services. Such a serious abuse of the client-lawyer
relationship by the client forfeits the protection of this Rule. The client can, of course,
prevent such disclosure by refraining from the wrongful conduct. Although paragraph
(b)(2) does not require the lawyer to reveal the client's misconduct, the lawyer may not
counsel or assist the client in conduct the lawyer knows is criminal or fraudulent. See
Rule 1.2(d). See also Rule 1.16 with respect to the lawyer's obligation or right to
withdraw from the representation of the client in such circumstances. Where the client is
an organization, the lawyer should consult Rule 1.13(b).
[10] Paragraph (b)(3) addresses the situation in which the lawyer does not learn
of a client's criminal or fraudulent act in furtherance of which the lawyer's services were
used until after the act has occurred. Although the client no longer has the option of
preventing disclosure by refraining from the wrongful conduct, there will be situations in
which the loss suffered by the affected person can be prevented, rectified or mitigated. In
such situations, the lawyer may disclose information relating to the representation to the
extent necessary to enable the affected persons to prevent or mitigate reasonably certain
27

losses or to attempt to recoup their losses. Paragraph (b)(3) does not apply when a person
who has committed a crime or fraud thereafter employs a lawyer for representation
concerning that offense.
[11] A lawyer's confidentiality obligations do not preclude a lawyer from securing
confidential legal advice about the lawyer's personal responsibility to comply with these
Rules, a court order or other law. In most situations, disclosing information to secure
such advice will be impliedly authorized for the lawyer to carry out the representation.
Even when the disclosure is not impliedly authorized, paragraph (b)(4) permits such
disclosure because of the importance of a lawyer's compliance with the law.
[12] Withdrawal – If the lawyer knows that the lawyer's services will be used by
the client in materially furthering a course of criminal or fraudulent conduct, the lawyer
must withdraw, as stated in Rule 1.16 (a)(1). After withdrawal the lawyer is required to
refrain from making disclosure of the client's confidences, except as otherwise provided
in Rule 1.6 or in other Rules.
[13] If the lawyer knows that despite the withdrawal the client is continuing in
conduct that is criminal or fraudulent, and is making use of the fact that the lawyer was
involved in the matter, the lawyer may have to take positive steps to avoid being held to
have assisted the conduct. See Rules 1.2(d) and 4.1(b). In other situations not involving
such assistance, the lawyer has discretion to make disclosure of otherwise confidential
information only in accordance with Rules 1.6 and 1.13(c). Neither this Rule nor Rule
1.8(b) nor Rule 1.16(d) prevents the lawyer from giving notice of the fact of withdrawal,
and the lawyer may also withdraw or disaffirm any opinion, document, affirmation, or the
like.
[14] Dispute Concerning Lawyer's Conduct – Where a legal claim or disciplinary
charge alleges complicity of the lawyer in a client's conduct or other misconduct of the
lawyer involving representation of the client, the lawyer may respond to the extent the
lawyer reasonably believes necessary to establish a defense. The same is true with
respect to a claim involving the conduct or representation of a former client. Such a
charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on
a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a
third person, for example, a person claiming to have been defrauded by the lawyer and
client acting together. The lawyer's right to respond arises when an assertion of such
complicity has been made. Paragraph (b)(5) does not require the lawyer to await the
commencement of an action or proceeding that charges such complicity, so that the
defense may be established by responding directly to a third party who has made such an
assertion. The right to defend also applies, of course, where a proceeding has been
commenced.
[15] A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the
services rendered in an action to collect it. This aspect of the rule expresses the principle
that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the
fiduciary.

28

[16] Disclosures Otherwise Required or Authorized – As noted in Comment 7,
Rules 3.3(b) and 4.1(b) require disclosure in some circumstances regardless of whether
the disclosure is permitted by Rule 1.6. Circumstances may be such that disclosure is
required under other Rules, for example, Rule 1.2(d), in order to avoid assisting a client
to perpetrate a crime or fraud.
[17] Other law may require that a lawyer disclose information about a client.
Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these
Rules. When disclosure of information relating to the representation appears to be
required by other law, the lawyer must discuss the matter with the client to the extent
required by Rule 1.4. If, however, the other law supersedes this Rule and requires
disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as are necessary
to comply with the law.
[18] A lawyer may be ordered to reveal information relating to the representation
of a client by a court or by another tribunal or governmental entity claiming authority
pursuant to other law to compel the disclosure. Absent informed consent of the client to
do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that
the order is not authorized by other law or that the information sought is protected against
disclosure by the attorney-client privilege or other applicable law. In the event of an
adverse ruling, the lawyer must consult with the client about the possibility of appeal to
the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(6)
permits the lawyer to comply with the court's order.
[19] Acting Competently to Preserve Confidentiality – A lawyer must act
competently to safeguard information relating to the representation of a client against
inadvertent or unauthorized disclosure by the lawyer or other persons who are
participating in the representation of the client or who are subject to the lawyer's
supervision. See Rules 1.1, 5.1 and 5.3.
[20] When transmitting a communication that includes information relating to the
representation of a client, the lawyer must take reasonable precautions to prevent the
information from coming into the hands of unintended recipients. This duty, however,
does not require that the lawyer use special security measures if the method of
communication affords a reasonable expectation of privacy. Special circumstances,
however, may warrant special precautions. Factors to be considered in determining the
reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the
information and the extent to which the privacy of the communication is protected by law
or by a confidentiality agreement. A client may require the lawyer to implement special
security measures not required by this Rule or may give informed consent to the use of a
means of communication that would otherwise be prohibited by this Rule.
[21] Former Client – The duty of confidentiality continues after the client-lawyer
relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition
against using such information to the disadvantage of the former client.

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Model Rules Comparison.-Rule 1.6 retains elements of existing Md. Rule 1.6
language, incorporates some changes from the Ethics 2000 Amendments to the ABA
Model Rules, and incorporates further revisions.

30

Rule 1.7. Conflict of Interest: General Rule.
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a conflict of interest. A conflict of interest exists if:
(1) the representation of one client will be directly adverse to another
client; or
(2) there is a significant risk that the representation of one or more clients
will be materially limited by the lawyer's responsibilities to another client, a
former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a conflict of interest under paragraph (a), a
lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one
client against another client represented by the lawyer in the same litigation or
other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
COMMENT
[1] General Principles.- Loyalty and independent judgment are essential elements
in the lawyer's relationship to a client. Conflicts of interest can arise from the lawyer's
responsibilities to another client, a former client or a third person or from the lawyer's
own interests. For specific Rules regarding certain conflicts of interest, see Rule 1.8. For
former client conflicts of interest, see Rule 1.9. For conflicts of interest involving
prospective clients, see Rule 1.18. For definitions of "informed consent" and "confirmed
in writing," see Rule 1.0(f) and (b).
[2] Resolution of a conflict of interest problem under this Rule requires the lawyer
to: 1) clearly identify the client or clients; 2) determine whether a conflict of interest
exists; 3) decide whether the representation may be undertaken despite the existence of a
conflict, i.e., whether the conflict is consentable; and 4) if so, consult with the clients
affected under paragraph (a) and obtain their informed consent, confirmed in writing. The
clients affected under paragraph (a) include both of the clients referred to in paragraph
(a)(1) and the one or more clients whose representation might be materially limited under
paragraph (a)(2).
[3] A conflict of interest may exist before representation is undertaken, in which

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event the representation must be declined, unless the lawyer obtains the informed consent
of each client under the conditions of paragraph (b). To determine whether a conflict of
interest exists, a lawyer should adopt reasonable procedures, appropriate for the size and
type of firm and practice, to determine in both litigation and non-litigation matters the
persons and issues involved. See also Comment to Rule 5.1. Ignorance caused by a
failure to institute such procedures will not excuse a lawyer's violation of this Rule. As to
whether a client-lawyer relationship exists or, having once been established, is
continuing, see Comment to Rule 1.3 and Scope.
[4] If a conflict arises after representation has been undertaken, the lawyer
ordinarily must withdraw from the representation, unless the lawyer has obtained the
informed consent of the client under the conditions of paragraph (b). See Rule 1.16.
Where more than one client is involved, whether the lawyer may continue to represent
any of the clients is determined both by the lawyer's ability to comply with duties owed
to the former client and by the lawyer's ability to represent adequately the remaining
client or clients, given the lawyer's duties to the former client. See Rule 1.9. See also
Comments [5] and [29].
[5] Unforeseeable developments, such as changes in corporate and other
organizational affiliations or the addition or realignment of parties in litigation, might
create conflicts in the midst of a representation, as when a company sued by the lawyer
on behalf of one client is bought by another client represented by the lawyer in an
unrelated matter. Depending on the circumstances, the lawyer may have the option to
withdraw from one of the representations in order to avoid the conflict. The lawyer must
seek court approval where necessary and take steps to minimize harm to the clients. See
Rule 1.16. The lawyer must continue to protect the confidences of the client from whose
representation the lawyer has withdrawn. See Rule 1.9(c).
[6] Identifying Conflicts of Interest: Directly Adverse.- Loyalty to a current client
prohibits undertaking representation directly adverse to that client without that client's
informed consent. Thus, absent consent, a lawyer may not act as an advocate in one
matter against a person the lawyer represents in some other matter, even when the matters
are wholly unrelated. The client as to whom the representation is directly adverse is likely
to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to
impair the lawyer's ability to represent the client effectively. In addition, the client on
whose behalf the adverse representation is undertaken reasonably may fear that the
lawyer will pursue that client's case less effectively out of deference to the other client,
i.e., that the representation may be materially limited by the lawyer's interest in retaining
the current client. Similarly, a directly adverse conflict may arise when a lawyer is
required to cross-examine a client who appears as a witness in a lawsuit involving
another client, as when the testimony will be damaging to the client who is represented in
the lawsuit. On the other hand, simultaneous representation in unrelated matters of clients
whose interests are only economically adverse, such as representation of competing
economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of
interest and thus may not require consent of the respective clients.

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[7] Directly adverse conflicts can also arise in transactional matters. For example,
if a lawyer is asked to represent the seller of a business in negotiations with a buyer
represented by the lawyer, not in the same transaction but in another, unrelated matter,
the lawyer could not undertake the representation without the informed consent of each
client.
[8] Identifying Conflicts of Interest: Material Limitation. – Even where there is no
direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's
ability to consider, recommend or carry out an appropriate course of action for the client
will be materially limited as a result of the lawyer's other responsibilities or interests. For
example, a lawyer asked to represent several individuals seeking to form a joint venture
is likely to be materially limited in the lawyer's ability to recommend or advocate all
possible positions that each might take because of the lawyer's duty of loyalty to the
others. The conflict in effect forecloses alternatives that would otherwise be available to
the client. The mere possibility of subsequent harm does not itself require disclosure and
consent. The critical questions are the likelihood that a difference in interests will
eventuate and, if it does, whether it will materially interfere with the lawyer's independent
professional judgment in considering alternatives or foreclose courses of action that
reasonably should be pursued on behalf of the client.
[9] Lawyer's Responsibilities to Former Clients and Other Third Persons. – In
addition to conflicts with other current clients, a lawyer's duties of loyalty and
independence may be materially limited by responsibilities to former clients under Rule
1.9 or by the lawyer's responsibilities to other persons, such as fiduciary duties arising
from a lawyer's service as a trustee, executor or corporate director.
[10] Personal Interest Conflicts. – The lawyer's own interests should not be
permitted to have an adverse effect on representation of a client. For example, if the
probity of a lawyer's own conduct in a transaction is in serious question, it may be
difficult or impossible for the lawyer to give a client detached advice. Similarly, when a
lawyer has discussions concerning possible employment with an opponent of the lawyer's
client, or with a law firm representing the opponent, such discussions could materially
limit the lawyer's representation of the client. In addition, a lawyer may not allow related
business interests to affect representation, for example, by referring clients to an
enterprise in which the lawyer has an undisclosed financial interest. See Rule 1.8 for
specific Rules pertaining to a number of personal interest conflicts, including business
transactions with clients. See also Rule 1.10 (personal interest conflicts under Rule 1.7
ordinarily are not imputed to other lawyers in a law firm).
[11] When lawyers representing different clients in the same matter or in
substantially related matters are closely related by blood or marriage, there may be a
significant risk that client confidences will be revealed and that the lawyer's family
relationship will interfere with both loyalty and independent professional judgment. As a
result, each client is entitled to know of the existence and implications of the relationship
between the lawyers before the lawyer agrees to undertake the representation. Thus, a
lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may

33

not represent a client in a matter where that lawyer is representing another party, unless
each client gives informed consent. The disqualification arising from a close family
relationship is personal and ordinarily is not imputed to members of firms with whom the
lawyers are associated. See Rule 1.10.
[12] A sexual relationship with a client, whether or not in violation of criminal
law, will create an impermissible conflict between the interests of the client and those of
the lawyer if (1) the representation of the client would be materially limited by the sexual
relationship and (2) it is unreasonable for the lawyer to believe the lawyer can provide
competent and diligent representation. Under those circumstances, informed consent by
the client is ineffective. See also Rule 8.4.
[13] Interest of Person Paying for a Lawyer's Service. – A lawyer may be paid
from a source other than the client, including a co-client, if the client is informed of that
fact and consents and the arrangement does not compromise the lawyer's duty of loyalty
or independent judgment to the client. See Rule 1.8(f). If acceptance of the payment from
any other source presents a significant risk that the lawyer's representation of the client
will be materially limited by the lawyer's own interest in accommodating the person
paying the lawyer's fee or by the lawyer's responsibilities to a payer who is also a coclient, then the lawyer must comply with the requirements of paragraph (b) before
accepting the representation, including determining whether the conflict is consentable
and, if so, that the client has adequate information about the material risks of the
representation.
[14] Prohibited Representations .- Ordinarily, clients may consent to
representation notwithstanding a conflict. However, as indicated in paragraph (b), some
conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for
such agreement or provide representation on the basis of the client's consent. When the
lawyer is representing more than one client, the question of consentability must be
resolved as to each client.
[15] Consentability is typically determined by considering whether the interests of
the clients will be adequately protected if the clients are permitted to give their informed
consent to representation burdened by a conflict of interest. Thus, under paragraph (b)(1),
representation is prohibited if in the circumstances the lawyer cannot reasonably
conclude that the lawyer will be able to provide competent and diligent representation.
See Rule 1.1 (competence) and Rule 1.3 (diligence).
[16] Paragraph (b)(2) describes conflicts that are nonconsentable because the
representation is prohibited by applicable law. For example, in some states substantive
law provides that the same lawyer may not represent more than one defendant in a capital
case, even with the consent of the clients, and under federal criminal statutes certain
representations by a former government lawyer are prohibited, despite the informed
consent of the former client. In addition, decisional law in some states limits the ability of
a governmental client, such as a municipality, to consent to a conflict of interest.

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[17] Paragraph (b)(3) describes conflicts that are nonconsentable because of the
institutional interest in vigorous development of each client's position when the clients
are aligned directly against each other in the same litigation or other proceeding before a
tribunal. Whether clients are aligned directly against each other within the meaning of
this paragraph requires examination of the context of the proceeding. Although this
paragraph does not preclude a lawyer's multiple representation of adverse parties to a
mediation (because mediation is not a proceeding before a "tribunal" under Rule 1.0(o)),
such representation may be precluded by paragraph (b)(1).
[18] Informed Consent. – Informed consent requires that each affected client be
aware of the relevant circumstances and of the material and reasonably foreseeable ways
that the conflict could have adverse effects on the interests of that client. See Rule 1.0(f)
(informed consent). The information required depends on the nature of the conflict and
the nature of the risks involved. When representation of multiple clients in a single
matter is undertaken, the information must include the implications of the common
representation, including possible effects on loyalty, confidentiality and the attorneyclient privilege and the advantages and risks involved. See Comments [30] and [31]
(effect of common representation on confidentiality).
[19] Under some circumstances it may be impossible to make the disclosure
necessary to obtain consent. For example, when the lawyer represents different clients in
related matters and one of the clients refuses to consent to the disclosure necessary to
permit the other client to make an informed decision, the lawyer cannot properly ask the
latter to consent. In some cases the alternative to common representation can be that each
party may have to obtain separate representation with the possibility of incurring
additional costs. These costs, along with the benefits of securing separate representation,
are factors that may be considered by the affected client in determining whether common
representation is in the client's interests.
[20] Consent Confirmed in Writing. – Paragraph (b) requires the lawyer to obtain
the informed consent of the client, confirmed in writing. Such a writing may consist of a
document executed by the client or one that the lawyer promptly records and transmits to
the client following an oral consent. See Rule 1.0(b). See also Rule 1.0(p) (writing
includes electronic transmission). If it is not feasible to obtain or transmit the writing at
the time the client gives informed consent, then the lawyer must obtain or transmit it
within a reasonable time thereafter. See Rule 1.0(b). The requirement of a writing does
not supplant the need in most cases for the lawyer to talk with the client, to explain the
risks and advantages, if any, of representation burdened with a conflict of interest, as well
as reasonably available alternatives, and to afford the client a reasonable opportunity to
consider the risks and alternatives and to raise questions and concerns. Rather, the
writing is required in order to impress upon clients the seriousness of the decision the
client is being asked to make and to avoid disputes or ambiguities that might later occur
in the absence of a writing.
[21] Revoking Consent. – A client who has given consent to a conflict may revoke
the consent and, like any other client, may terminate the lawyer's representation at any

35

time. Whether revoking consent to the client's own representation precludes the lawyer
from continuing to represent other clients depends on the circumstances, including the
nature of the conflict, whether the client revoked consent because of a material change in
circumstances, the reasonable expectations of the other client and whether material
detriment to the other clients or the lawyer would result.
[22] Consent to Future Conflict. – Whether a lawyer may properly request a client
to waive conflicts that might arise in the future is subject to the test of paragraph (b). The
effectiveness of such waivers is generally determined by the extent to which the client
reasonably understands the material risks that the waiver entails. The more
comprehensive the explanation of the types of future representations that might arise and
the actual and reasonably foreseeable adverse consequences of those representations, the
greater the likelihood that the client will have the requisite understanding. Thus, if the
client agrees to consent to a particular type of conflict with which the client is already
familiar, then the consent ordinarily will be effective with regard to that type of conflict.
If the consent is general and open-ended, then the consent ordinarily will be ineffective,
because it is not reasonably likely that the client will have understood the material risks
involved. On the other hand, if the client is an experienced user of the legal services
involved and is reasonably informed regarding the risk that a conflict may arise, such
consent is more likely to be effective, particularly if, e.g., the client is independently
represented by other counsel in giving consent and the consent is limited to future
conflicts unrelated to the subject of the representation. In any case, advance consent
cannot be effective if the circumstances that materialize in the future are such as would
make the conflict nonconsentable under paragraph (b).
[23] Conflicts in Litigation. – Paragraph (b)(3) prohibits representation of
opposing parties in the same litigation, regardless of the clients' consent. On the other
hand, simultaneous representation of parties whose interests in litigation may conflict,
such as coplaintiffs or codefendants, is governed by paragraph (a)(2). A conflict may
exist by reason of substantial discrepancy in the parties' testimony, incompatibility in
positions in relation to an opposing party or the fact that there are substantially different
possibilities of settlement of the claims or liabilities in question. Such conflicts can arise
in criminal cases as well as civil. The potential for conflict of interest in representing
multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline
to represent more than one codefendant. On the other hand, common representation of
persons having similar interests in civil litigation is proper if the requirements of
paragraph (b) are met.
[24] Ordinarily a lawyer may take inconsistent legal positions in different
tribunals at different times on behalf of different clients. The mere fact that advocating a
legal position on behalf of one client might create precedent adverse to the interests of a
client represented by the lawyer in an unrelated matter does not create a conflict of
interest. A conflict of interest exists, however, if there is a significant risk that a lawyer's
action on behalf of one client will materially limit the lawyer's effectiveness in
representing another client in a different case; for example, when a decision favoring one
client will create a precedent likely to seriously weaken the position taken on behalf of

36

the other client. Factors relevant in determining whether the clients need to be advised of
the risk include: where the cases are pending, whether the issue is substantive or
procedural, the temporal relationship between the matters, the significance of the issue to
the immediate and long-term interests of the clients involved and the clients' reasonable
expectations in retaining the lawyer. If there is significant risk of material limitation, then
absent informed consent of the affected clients, the lawyer must refuse one of the
representations or withdraw from one or both matters.
[25] When a lawyer represents or seeks to represent a class of plaintiffs or
defendants in a class-action lawsuit, unnamed members of the class are ordinarily not
considered to be clients of the lawyer for purposes of applying paragraph (a)(1) of this
Rule. Thus, the lawyer does not typically need to get the consent of such a person before
representing a client suing the person in an unrelated matter. Similarly, a lawyer seeking
to represent an opponent in a class action does not typically need the consent of an
unnamed member of the class whom the lawyer represents in an unrelated matter.
[26] Nonlitigation Conflicts. – Conflicts of interest under paragraphs (a)(1) and
(a)(2) arise in contexts other than litigation. For a discussion of directly adverse conflicts
in transactional matters, see Comment [7]. Relevant factors in determining whether there
is significant potential for material limitation include the duration and intimacy of the
lawyer's relationship with the client or clients involved, the functions being performed by
the lawyer, the likelihood that disagreements will arise and the likely prejudice to the
client from the conflict. The question is often one of proximity and degree. See Comment
[8].
[27] For example, conflict questions may arise in estate planning and estate
administration. A lawyer may be called upon to prepare wills for several family
members, such as husband and wife, and, depending upon the circumstances, a conflict of
interest may be present. In estate administration the identity of the client may be unclear
under the law of a particular jurisdiction. Under one view, the client is the fiduciary;
under another view the client is the estate or trust, including its beneficiaries. In order to
comply with conflict of interest rules, the lawyer should make clear the lawyer's
relationship to the parties involved.
[28] Whether a conflict is consentable depends on the circumstances. For
example, a lawyer may not represent multiple parties to a negotiation whose interests are
fundamentally antagonistic to each other, but common representation is permissible
where the clients are generally aligned in interest even though there is some difference in
interest among them. Thus, a lawyer may seek to establish or adjust a relationship
between clients on an amicable and mutually advantageous basis; for example, in helping
to organize a business in which two or more clients are entrepreneurs, working out the
financial reorganization of an enterprise in which two or more clients have an interest or
arranging a property distribution in settlement of an estate. The lawyer seeks to resolve
potentially adverse interests by developing the parties' mutual interests. Otherwise, each
party might have to obtain separate representation, with the possibility of incurring
additional cost, complication or even litigation. Given these and other relevant factors,

37

the clients may prefer that the lawyer act for all of them.
[29] Special Considerations in Common Representation. – In considering
whether to represent multiple clients in the same matter, a lawyer should be mindful that
if the common representation fails because the potentially adverse interests cannot be
reconciled, the result can be additional cost, embarrassment and recrimination.
Ordinarily, the lawyer will be forced to withdraw from representing all of the clients if
the common representation fails. In some situations, the risk of failure is so great that
multiple representation is plainly impossible. For example, a lawyer cannot undertake
common representation of clients where contentious litigation or negotiations between
them are imminent or contemplated. Moreover, because the lawyer is required to be
impartial between commonly represented clients, representation of multiple clients is
improper when it is unlikely that impartiality can be maintained. Generally, if the
relationship between the parties has already assumed antagonism, the possibility that the
clients' interests can be adequately served by common representation is not very good.
Other relevant factors are whether the lawyer subsequently will represent both parties on
a continuing basis and whether the situation involves creating or terminating a
relationship between the parties.
[30] A particularly important factor in determining the appropriateness of
common representation is the effect on client-lawyer confidentiality and the attorneyclient privilege. With regard to the attorney-client

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3A7ce1882108a0035f. Public record. Not legal advice.