High court dismisses ethics complaint, says lawyer relied on bar counsel

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Maryland’s top court Monday unanimously dismissed bar counsel’s allegation that a District of Columbia attorney had engaged in the unauthorized practice of law in the state, saying the lawyer had in fact followed the Office of Bar Counsel’s instructions to her on permissibly operating a law office in Maryland while licensed elsewhere.

In ruling for attorney Dawn R. Jackson, the Court of Appeals questioned whether the ethical prohibition on attorneys not licensed in Maryland from operating a law office in the state should continue in light of the ubiquity of people working remotely.

Jackson, according to the high court, was told by a senior assistant bar counsel in 2015 that she could keep her Upper Marlboro office so long as she shared the practice with Maryland-licensed attorneys and made it clear to prospective and current clients that she was not licensed in Maryland, according to the Court of Appeals.

Jackson complied with the instructions, which included stating on business cards, letter head, emails and her website that she was not Maryland licensed, the high court stated.

But in 2018, Bar Counsel Lydia E. Lawless notified Jackson of the office’s concern with her operation of the Upper Marlboro office in light of Rule 5.5 of the Maryland Attorneys’ Rules of Professional Conduct. The provision generally bars out-of-state attorneys from establishing “an office or other systematic and continuous presence” in Maryland “for the practice of law.”

Lawless subsequently charged Jackson with violating the rule.

The high court agreed with Lawless that Jackson had violated the rule but said the violation was excused because she had reasonably relied upon what then-Senior Assistant Bar Counsel Dolores Ridgell had told her.

“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,” Judge Brynja M. Booth wrote for the high court.

“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,” Booth added. “Ms. Jackson has, in good faith, attempted to comply with the jurisdictional parameters recommended by the Office of Bar Counsel.”

Jackson’s attorney, Irwin R. Kramer, praised the court’s decision.

“Ms. Jackson is an outstanding professional,” said Kramer, of Kramer & Connolly in Reisterstown.

“At all times, as the court observed, she did all she could to comply with the recommendations of the Office of Bar Counsel,” Kramer added. “In my opinion, there are more constructive ways to provide lawyers with guidance on their ethical obligations than to prosecute them for any perceived infraction. I think the court recognized that.”

Lawless, who has been bar counsel since 2017, declined to comment on the court’s decision.

In its ruling, the high court decried the “rigid” and likely outdated prohibition on out-of-state attorneys operating law offices in Maryland. The court said it would direct the judiciary’s Standing Committee on Rules of Practice and Procedure to examine whether the ban should be relaxed as has been done in other states, including Arizona and New Hampshire.

“Indeed, the events associated with the COVID-19 pandemic have highlighted the benefits of professional portability,” Booth wrote.

“Our current Rule 5.5 does not reflect the reality of a modern, portable profession,” Booth added. “Additionally, in the context of a multi-jurisdictional practice, this case highlights the challenges posed by a professional rule that equates the ‘unauthorized practice of law’ solely with physical presence. As written, the rule might create complications for multi-jurisdictional law firms maintaining an office in Maryland where some lawyers employed by the firm are not licensed in Maryland but are licensed to practice in another jurisdiction.”

Kramer said a review of the rule “makes perfect sense” at this time.

“In this day and age, borders do not mean what they used to mean,” he said. “The law must change with it.”

In its decision, the court agreed with bar counsel that Jackson did engage in the unauthorized practice of law in Maryland by having signed a request that a state court reissue a summons in a civil case being handled by one of her Maryland-licensed associates.

The high court said Jackson’s “pro forma” signature on a document requiring no “degree of legal experience, knowledge, or training to prepare” was a violation “in the most technical sense,” but a violation nevertheless.

The court went on to dismiss the violation, citing a myriad of mitigating factors that included the personal and financial turmoil Jackson was enduring at the time due to a former law partner having committed a securities violation, Jackson’s cooperation with bar counsel and her lack of prior disciplinary action.

The Court of Appeals rendered its decision in Attorney Grievance Commission of Maryland v. Dawn R. Jackson, Misc. Docket AG No. 9, September Term 2020.