by Justin Kelly, ADRWorld.com

Maryland's highest court has approved an amendment to the state's Rules of Procedure that encourages lawyers to inform clients of alternative dispute resolution options when a new case is likely to be headed to court.

[T] Hon. Joseph F. Murphy, Jr. . . . said that the change would "highlight for counsel what they should be doing if ADR could work in their case," explaining . . . . the comment . . . that "where ADR is appropriate, lawyers should advise their clients of that fact." 

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Rule 2.1, which addresses the lawyer's role as a counselor, states, "In representing a client, a lawyer should exercise independent judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation."

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The amendment adds the following new sentence to Comment 5: "[W]hen a matter is likely to involve litigation, and in the opinion of the lawyer, one or more forms of alternative dispute resolution are reasonable alternatives to litigation, the lawyer should advise the client about those reasonable alternatives." 

"The amended Comment is intended to encourage informed discourse between the lawyer and client whenever ADR may be an appropriate option," the Reporter's Note says.

An earlier proposal to amend Comment 5 had suggested requiring lawyers to inform clients about ADR options. But a mandatory requirement was dropped out of concern that it would lead to litigation by clients against their attorneys.

Murphy noted that Comment 5 says that attorneys "should advise," instead of "shall advise," and that this was a "compromise." He said that as revised, Comment 5 imposes no "automatic" requirement to inform clients about ADR options.

Some other states have ADR-related provisions in their rules of professional conduct. Vermont has the "shall advise" language, while Alaska, Colorado, Hawaii, Massachusetts, Tennessee, and Virginia have the "should advise" language.

The change in Comment 5 will take effect July 1, 2007.