Preamble: An attorney's responsibilities
[1] An attorney, 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, an attorney performs various functions. As advisor, an attorney provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, an attorney zealously asserts the client's position under the rules of the adversary system. As negotiator, an attorney seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As evaluator, an attorney 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, an attorney may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to attorneys who are or have served as third-party neutrals. See, e.g., Rules 19-301.12 and 19-302.4 (1.12 and 2.4). In addition, there are Rules that apply to attorneys who are not active in the practice of law or to practicing attorneys even when they are acting in a nonprofessional capacity. For example, an attorney 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 19-308.4 (8.4).
[4] In all professional functions an attorney should be competent, prompt and diligent. An attorney should maintain communication with a client concerning the representation. An attorney should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Maryland Attorneys' Rules of Professional Conduct or other law.
[5] An attorney's conduct should conform to the requirements of the law, both in professional service to clients and in the attorney's business and personal affairs. An attorney should use the law's procedures only for legitimate purposes and not to harass or intimidate others. An attorney should demonstrate respect for the legal system and for those who serve it, including judges, other attorneys and public officials. While it is an attorney's duty, when necessary, to challenge the rectitude of official action, it is also an attorney's duty to uphold legal process.
[6] As a public citizen, an attorney 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, an attorney should cultivate 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, an attorney 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. An attorney 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 attorneys 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 advice or representation. An attorney should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.
[7] Many of an attorney's professional responsibilities are prescribed in the Maryland Attorneys' Rules of Professional Conduct, as well as substantive and procedural law. However, an attorney is also guided by personal conscience and the approbation of professional peers. An attorney 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] An attorney'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, an attorney can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, an attorney 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 an attorney's responsibilities to clients, to the legal system and to the attorney's own interest in remaining an ethical individual while earning a satisfactory living. The Maryland Attorneys' 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 attorney'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 attorneys meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain 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 self-interested concerns of the bar. Every attorney is responsible for observance of the Maryland Attorneys' Rules of Professional Conduct. An attorney should also aid in securing their observance by other attorneys. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.
[13] Attorneys play a vital role in the preservation of society. The fulfillment of this role requires an understanding by attorneys of their relationship to our legal system. The Maryland Attorneys' Rules of Professional Conduct, when properly applied, serve to define that relationship.
Scope
[14] The Maryland Attorneys' 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 attorney has discretion to exercise professional judgment. No disciplinary action should be taken when the attorney chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the attorney and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a attorney'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 attorney's role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of attorneys and substantive and procedural law in general. The Comments are sometimes used to alert attorneys 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 an attorney, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.
[17] Furthermore, for purposes of determining the attorney's authority and responsibility, principles of substantive law external to these Rules determine whether a client-attorney relationship exists. Most of the duties flowing from the client-attorney relationship attach only after the client has requested the attorney to render legal services and the attorney has agreed to do so. But there are some duties, such as that of confidentiality under Rule 19-301.6 (1.6), that attach when the attorney agrees to consider whether a client-attorney relationship shall be established. See Rule 19-301.18 (1.18). Whether a client-attorney 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 attorneys may include authority concerning legal matters that ordinarily reposes in the client in private client-attorney relationships. For example, an attorney 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, attorneys under the supervision of these officers may be authorized to represent several government agencies in intra-governmental legal controversies in circumstances where a private attorney 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 an attorney'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 an attorney 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 does not itself give rise to a cause of action against an attorney nor does it create any presumption that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other non-disciplinary remedy, such as disqualification of an attorney in pending litigation. The Rules are designed to provide guidance to attorneys 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 an attorney's self-assessment, or for sanctioning an attorney 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, an attorney's violation of a Rule may be evidence of breach of the applicable standard of conduct. Nothing in this Preamble and Scope is intended to detract from the holdings of the Supreme Court in Post v. Bregman, 349 Md. 142 (1998) and Son v. Margolius, Mallios, Davis, Rider & Tomar, 349 Md. 441 (1998).
[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.
Citation of Rules
[22] Rather than continue the practice of having all of the Maryland Attorneys' Rules of Professional Conduct (MARPC) incorporated into one Maryland Rule, each Rule is made a separate Maryland Rule, as each relates to a different topic. They all follow the numbering format of the American Bar Association Model Rules, however, and, for consistency, may be cited in that format, with the Maryland Rule designation in parenthesis. As an example, Rule 19-301.3 may be cited as MARPC 1.3 (Md. Rule 19-301.3).