MSBA Ethics Opinion 2025-01

ETHICS | ETHICS OPINION

Maryland State Bar Association, Inc.

Committee on Ethics MSBA ETHICS OPINION 2025-01 PROVIDING LEGAL SERVICES THROUGH ACCOUNTING FIRMS WITH NON-ATTORNEY OWNERSHIP

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On February 27, 2025, the Maryland State Bar Association (MSBA) Ethics Committee (the committee) was requested to draft an opinion identifying the restrictions and requirements under the Maryland Attorneys’ Rules of Professional Conduct (MARPC) applicable to Maryland attorneys employed by accounting firms (such as KPMG, Deloitte, etc.) that also provide legal services in jurisdictions where nonattorney ownership of law firms is not prohibited. The Committee approved the following as our written opinion: QUESTIONS PRESENTED 1. Can an accounting firm that has an office in a state that allows nonattorney ownership of law firms provide legal services in Maryland?

2. Could the same accounting firm hire a Maryland attorney to work remotely from that jurisdiction and provide legal services in Maryland?

BRIEF CONCLUSION No. An accounting firm with nonattorney ownership cannot provide legal services in Maryland, even if such services are permitted in other jurisdictions. Nor could the firm hire a Maryland attorney to work remotely (from the jurisdiction where nonattorney ownership of law firms is permitted) to provide legal services in Maryland.

While a Maryland attorney could work for such a firm to provide legal services in other jurisdictions where non-attorney ownership is permitted, if the attorney is licensed to practice in that jurisdiction, the attorney cannot share fees from Maryland legal services with non-attorneys. Any legal services provided in Maryland would need to be structured to comply with Maryland’s prohibition on non-attorney ownership of law firms and fee-sharing.

ANALYSIS/DISCUSSION The disciplinary authority and choice of law provisions within Maryland Rule 19-308.5 provide guidance on these issues: Rule 8.5. Disciplinary Authority; Choice of Law (a) Disciplinary Authority. (1) An attorney admitted by the Court of Appeals to practice in this State is subject to the disciplinary authority of this State, regardless of where the attorney’s conduct occurs. (2) An attorney not admitted to practice in this State is also subject to the disciplinary authority of this State if the attorney: (A) provides or offers to provide any legal services in this State, (B) holds himself or herself out as practicing law in this State, or (C) has an obligation to supervise or control another attorney practicing law in this State whose conduct constitutes a violation of these Rules.

(3) An attorney may be subject to the

a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and (2) for any other conduct, the rules of the jurisdiction in which the attorney’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. An attorney shall not be subject to discipline if the attorney’s conduct conforms to the rules of a jurisdiction in which the attorney reasonably believes the predominant effect of the attorney’s conduct will occur.

What Constitutes the Practice of Law in Maryland In determining whether an accounting firm would be engaging in the practice of law in Maryland, we must consider Maryland’s statutory definition.

Under MD Business Occupations and Professions Code § 10-101(h), “practice

An accounting firm with non-attorney ownership cannot provide legal services in Maryland, even if such services are permitted in other jurisdictions. disciplinary authority of both this State and another jurisdiction for the same conduct. (b) Choice of Law. In any exercise of the disciplinary authority of this State, the rule of professional conduct to be applied shall be as follows: (1) for conduct in connection with

law” is defined as “giving legal advice; representing another person before a unit of the State government or of a political subdivision; or performing any other service that the Supreme Court of Maryland defines as practicing law.”

The statute further specifies that the practice of law includes “advising in

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the administration of probate of estates of decedents in an orphans’ court of the State; preparing an instrument that affects title to real estate; preparing or helping in the preparation of any form or document that is filed in a court or affects a case that is or may be filed in a court; and giving advice about a case that is or may be filed in a court.” This broad definition encompasses many services that accounting firms might be tempted to offer as adjuncts to their traditional accounting services.1

or other systematic and continuous presence in Maryland for the practice of law and from holding out to the public or making other representations that he or she is admitted to practice law in this State . As noted in Ethics Docket No. 2019-01 , an attorney not admitted to practice in this State is subject to the disciplinary authority of this State if the attorney provides or offers to provide any legal services in this State or holds himself or herself out as practicing law in this State.2

the MARPC because the other state’s ethics rules would take precedence for services provided in that jurisdiction.

Question 2: Could the same accounting firm hire a Maryland attorney to work remotely from that jurisdiction and provide legal services in Maryland?

As recognized in Ethics Docket No. 2019-01, an attorney admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may

Maryland prohibits non-attorney ownership of law firms and the sharing of legal fees with non-attorneys.

Taking the questions in order: Question 1: Can an accounting firm that has an office in a state that allows non-attorney ownership of law firms provide legal services in Maryland?

The answer depends on the nature and scope of the services being offered.

Maryland prohibits non-attorney ownership of law firms and the sharing of legal fees with non-attorneys.

Therefore, an accounting firm with non-attorney ownership would not be permitted to directly provide legal services in Maryland, particularly where “the predominant effect of the attorney’s conduct will occur in Maryland” (Rule 19-308.5(b)(2)).

Except as otherwise permitted by the MARPC or law, an attorney who is not admitted to practice in Maryland is prohibited from establishing an office 1

However, the mere fact that an accounting firm provides accounting services in Maryland, while also having offices in other jurisdictions that provide legal services where non-attorney ownership is permitted, would not necessarily subject them to Maryland Rules of Professional Conduct for those out-of-state legal services. This is because the predominant impact of those services would be in jurisdictions that allow non-attorney ownership.

If the Maryland attorney is either admitted to practice in the other state, associates with attorneys who are licensed in the other state, or expects to be admitted pro hac vice in the other state in conjunction with the representation, then those legal services being offered outside of Maryland would not be prohibited by

provide legal services on a temporary basis in Maryland in certain limited circumstances . However, this principle does not extend to allowing attorneys to circumvent Maryland’s prohibition on non-attorney ownership by establishing permanent remote work arrangements specifically designed to evade Maryland’s ethical requirements.

An attorney working for the accounting firm cannot provide legal services in Maryland through the accounting firm, as they would not be allowed to share any fees resulting from those Maryland legal services with nonattorneys. Therefore, such services would likely need to be offered outside the employment relationship with the accounting firm to avoid any inappropriate fee sharing.

Additionally, Maryland attorneys should be aware of their reporting obligations regarding the unauthorized

Attorneys should be particularly vigilant with regards to overlapping professional boundaries such as with Certified Public Accountants (CPAs) and other related professionals. When in doubt about whether a particular service constitutes the practice of law, attorneys should err on the side of caution to avoid inadvertent violations of professional conduct rules.

2 The physical location of the attorney is not a determinative factor when assessing which ethics rules apply. (See ABA Formal Opinion 495) Rather, whether the MARPC is applicable to an attorneys conduct with conflicting ethical rules will depend upon the factors set forth in MD Rule 19-305.5.)

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practice of law. As clarified in Ethics Docket No. 2019-01, an attorney who knows that another attorney has committed a violation of the MARPC that raises a substantial question as to that attorney’s honesty, trustworthiness or fitness as an attorney in other respects, shall inform the appropriate professional authority .

This would include reporting instances where non-attorney owned firms attempt to provide legal services in Maryland in violation of Maryland’s rules.

Maryland attorneys should be aware of their reporting obligations regarding the unauthorized practice of law.

Importantly, 19-01 also emphasized that prior to reporting misconduct, Rule 1.6 requires the Maryland attorney to consult with his or her client about the consequences of revealing information learned during representation . If the client consents, then the attorney may disclose the information to the Attorney Grievance Commission. Without consent, the attorney may, but is not required to, report professional misconduct if doing so falls into one of the exceptions under Rule 1.6(b).

MRPC 19-308.5, 19-305.5, 19-308.3, 19-301.6

CONCLUSION Maryland attorneys considering arrangements with accounting firms should be careful to ensure that their organizational structure and fee arrangements comply with the MARPC, particularly with respect to fee-sharing prohibitions and conflicts of interest.

Additionally, they should be clear with clients about which entity is providing which services and ensure proper informed consent is obtained where necessary.3

REFERENCES: RULES CITED:

Ethics Dockets cited: Ethics Docket No. 2019-01 Other authority cited: MD CODE ANN., BUS. OCC. & PROF. § 10601(a), § 10-101(h) (1) MD. RULE 19-305.5(b); MD CODE ANN., BUS. OCC. & PROF. § 10-601(a) (2) MD. RULE 19-308.5(a)(2) (3) MD. RULES 19-305.5(c)(1)–(4), (d)(2); see also, Ethics Docket 2016-05 (4) MD. RULE 19-308.3(a) (5) MD. RULE 19-301.6 (6) MD. RULE 19-301.6(b); Ethics Docket 89-46; Ethics Docket 9246; Ethics Docket 94-26

We hope this response is helpful.

Thank you for contacting the Committee on Ethics.

Very truly yours, MSBA COMMITTEE ON ETHICS

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As Mark Twain aptly noted, “It is easier to stay out than get out.” This wisdom is particularly relevant for Attorneys contemplating employment with accounting firms that may inadvertently lead to ethical entanglements.

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