Court Also Instructs Rules Committee to Address Issue of Prohibition on Out-of-State Attorneys
The Maryland Court of Appeals recently ruled that even though a lawyer violated Rule 5.5 of the Maryland Code of Professional Conduct prohibiting the unlicensed practice of law, no sanctions would be imposed. Attorney Grievance Commission of Maryland v. Dawn R. Jackson, Misc. AG No. 9-2020 (Md. Jan. 31, 2022). The case involved a lawyer, Dawn Jackson, who has never been licensed to practice law in the state of Maryland, but is licensed in the District of Columbia and New Jersey.
Jackson’s firm, formerly known as Baylor & Jackson, included another partner (Baylor) who was licensed in D.C. and Maryland, as well as two associates licensed in Maryland. After the U.S. Securities and Exchange Commission (SEC) began an investigation into Baylor’s practices, Jackson formed Jackson & Associates Law Firm, PLLC, which she operated inside the boundaries of D.C. from 2011 until sometime in 2014. In 2014, Jackson & Associates moved its physical location from D.C. to Maryland. Throughout that period and at both office locations, Jackson focused on cases arising in D.C., performed administrative responsibilities for the firm and other miscellaneous matters. The Maryland lawyers employed by the firm focused on Maryland cases.
As part of its investigation into Baylor, the Maryland Office of Bar Counsel met with Jackson and Jackson’s counsel at her firm on two separate occasions. During one of those meetings, in June 2015, Bar Counsel and Jackson discussed the fact that Jackson was operating her law practice from an office located in Maryland even though she was not licensed in Maryland. Bar Counsel made several specific suggestions to Jackson for maintaining an office in Maryland. By way of example, Bar Counsel recommended Jackson always have a Maryland attorney on staff, and ensure that her business cards and letterhead clearly stated she was not licensed in Maryland, but rather D.C. Subsequently, Jackson followed Bar Counsel’s advice and placed a disclaimer on her firm’s letterhead, website profile, email signature, and business card. More than three years after Bar Counsel’s visit to Jackson’s Maryland law office, Bar Counsel opened an investigation into Jackson’s law practice in response to an anonymous complaint. Bar Counsel eventually accused Jackson of violating ethics rules by maintaining a Maryland office without being licensed in Maryland.
Bar Counsel focused on the fact that even though Jackson didn’t handle any Maryland cases, she signed two documents seeking re-issuance of summonses in a divorce case filed in Maryland handled by lawyers working at her firm and licensed in Maryland. Jackson signed the documents during a tumultuous period in which her partner, Baylor, was under investigation by the SEC. The judge presiding over the ethics hearing determined Respondent admitted to the authenticity of her signature on the summonses and found as a matter of law that Jackson “did to the lowest degree engage in the unauthorized practice of law by signing a [l]ine,” which constitutes a violation of Rule 5.5(a).
Rule 5.5 — The Unauthorized Practice of Law
The critical issue in this attorney grievance case involves Rule 5.5 of the Maryland Attorneys’ Rules of Professional Conduct, which states that an attorney who is not licensed in Maryland cannot “establish an office or other systematic and continuous presence” in Maryland for the practice of law, with some exceptions. The rule generally bars out-of-state attorneys from establishing “an office or other systematic and continuous presence” in Maryland “for the practice of law.”
Court of Appeals
Maryland’s high court ruled that Jackson technically violated Rule 5.5, but that she had reasonably relied upon former Bar Counsel’s recommendations for maintaining an office in Maryland. The Court aptly stated:
We cannot ignore the fact that any violation . . . arising from Ms. Jackson’s continuous and systematic presence in the state since 2015 was undertaken with knowledge by the Office of Bar Counsel, and its express recommendations concerning how to maintain her office in a manner that purported to comply with the professional rules.”
Id. at 37–38.
The Court also deemed Jackson’s actions were reasonable under the circumstances, adding:
“Additionally, by visiting with Ms. Jackson at her office, suggesting safeguards to comply with the professional rules, and then failing to follow up with Ms. Jackson in any manner for three and one-half years, a reasonable person in Ms. Jackson’s position would have taken those suggestions as either explicit or tacit approval that her conduct in maintaining an office in Maryland complied with the professional rules.”
Id. at 38.
Finally, the court ruled that factoring in all of these circumstances and “other considerable mitigating factors,” no sanctions are warranted.
The Future of Rule 5.5
“In its ruling, the Court questioned the outdated prohibition on out-of-state attorneys operating law offices in Maryland. The Court directed the judiciary’s Standing Committee on Rules of Practice and Procedure to examine whether the prohibition on out-of state attorneys practicing in Maryland should be modified in order to conform to the new virtual professional portability highlighted by the COVID-19 pandemic. Judge Booth added, “[o]ur current Rule 5.5 does not reflect the reality of a modern, portable profession.”
