We defend various professionals in Maryland, the District of Columbia and Virginia, including lawyers and law firms. Many of these cases are ethics matters involving bar counsel. In litigating and trying cases against bar counsel in Maryland, we often see claims under Maryland Rule 19-305.3 that center on alleged “law-related activities” undertaken by suspended lawyers. If you are a suspended lawyer who’s been accused of engaging in improper law-related activities during your suspension, this brief article provides some insights on what you need to know to defend yourself.
Quick Takeaways About "Law-Related Activities"
- As it relates to Maryland Rule 19-305.3, the phrase “law-related activities” is not specifically defined;
- Bar counsel views the term broadly;
- The courts take a narrower view, and their inquiry will generally focus on whether the activities at issue required legal knowledge and skill, as opposed to something more administrative or ministerial in nature that a paralegal, law clerk, or office staffer could do.
The Problem
You are a suspended lawyer working in the same law firm that employed you when you engaged in the acts that led to the suspension. What kind of activities are you permitted to engage in as a suspended lawyer?
The Law Concerning “Law-Related Activities”
While the rule does not define the term “law-related activity,” and there does not appear to be any caselaw or other authority specifically interpreting it, the prior iteration of the rule, Maryland Rule 5.3(d)(2)(G), was derived in part from the Pennsylvania rules of Disciplinary Enforcement. Indeed, the Comments to Maryland Rule 5.3 reveal that subpart (d) was adopted in 2006 and is “in part derived from Rule 217(j) of the Pennsylvania Rules of Disciplinary Enforcement and [is] in part new.” See Attorney Grievance Comm’n v. Thompson, 367 Md. 315, 322-23(2001) (where the court relies in part on comment to Maryland Rule 8.4 for its interpretation of the Rule).
Importantly (and as mentioned to Bar Counsel before), the Pennsylvania Rules provide some guidance. More specifically, Pennsylvania Rule 217(j)(4)(i) prohibits a suspended attorney from performing any “law-related activity” for the firm in which the suspended attorney was associated while engaging in the acts that led to the suspension. According to the notes accompanying the Pennsylvania rules:
Note: Subdivision (j) was adopted by the Court to limit and regulate the law-related activities performed by formerly admitted attorneys regardless of whether those formerly admitted attorneys are engaged as employees, independent contractors or in any other capacity. Subdivision (j) requires that a notice be filed with the Disciplinary Board when any law-related activities are performed by a formerly admitted attorney and when the engagement is terminated. Subdivision (j) is addressed only to the special circumstance of formerly admitted attorneys engaging in law-related activities and should not be read more broadly to define the permissible activities that may be conducted by a paralegal, law clerk, investigator, etc. who is not a formerly admitted attorney. Subdivision (j) is also not intended to establish a standard for what constitutes the unauthorized practice of law. Finally, subdivision (j) is not intended to prohibit a formerly admitted attorney from performing services that are not unique to law offices, such as physical plant or equipment maintenance, courier or delivery services, catering, typing or transcription or other similar general office support activities.
See Pa. Rule 217 Comment (emphasis added).
Although neither the Maryland Rules nor the Pennsylvania Rules (from which the Maryland Rule was derived) defines what constitutes a “law-related activity,” the comments from Pennsylvania’s rule make clear that a suspended lawyer is not prohibited from performing “services that are not unique to law offices.” See Pa. Rule 217 Comments; see also Philadelphia Bar Association Ethics Opinion 2007-3 (March 2007) (opining that a formerly admitted attorney may perform services for his former law firm that are “administrative” or “not unique to law offices, such as physical plant or equipment maintenance, courier or delivery services, catering, typing or transcription or other similar general office support activities.”)
The Bottom Line Concerning "Law-Related Activities"
The Maryland Court of Appeals has found that Pennsylvania Rule 217 provides useful guidance when analyzing the issue of what constitutes a law-related activity. See AGC v. Sperling, 459 Md. 194, 247-48, 185 A.3d 107 (2018). Importantly, what the Court of Appeals has found to be significant is whether the conduct at issue is administrative or ministerial in nature. Id. At 248-49, 185 A.3d 107. The bottom line is, if the conduct is administrative or ministerial, then it will likely not be considered law-related activity. If the conduct is something that requires specific legal training or expertise, however, it may be considered law-related activity. While each case is unique factually, in our experience, activity that may constitute law-related activities could include: drafting pleadings that contain legal analysis; drafting motions; drafting corporate documents; taking depositions; and appearing in court for hearings.
If you are a suspended lawyer with questions about your law-related activities, we can help. George Mahaffey has extensive experience handing these cases and is available to answer address your concerns. If your organization is interested in a presentation from a legal malpractice or professional malpractice expert at your next event, contact us today.
[1] See Maryland Rule 19-305.3.
