Can a Maryland State's Attorney or assistant volunteer for free civil legal aid work if the law bans their 'private practice of law'?

Plain-English summary

Montgomery County's State's Attorney asked whether Article 10, §40 of the Maryland Code, which bars State's Attorneys and, in many counties, their deputies and assistants from "the private practice of law," stops them from volunteering unpaid time for civil legal aid, and whether the differences in wording from county to county matter.

Tracing the statute's history back to 1945, the Attorney General found that every private-practice restriction was enacted alongside a substantial salary increase for the office in question, and concluded the whole point of these provisions was to cap total compensation, not to police whether a prosecutor does unpaid public-interest legal work on the side. Courts in other states construing similar prosecutor pay-and-practice statutes reached the same conclusion. Because the restrictions exist to control outside income, the opinion held that uncompensated civil pro bono service falls outside their intended scope in every county, even where the statute's wording is broad. The one wrinkle: a handful of counties (Anne Arundel, Charles, and Harford) have a separate, stricter rule that bars the State's Attorney from appearing before any court or agency at all, not just from earning outside income, and the opinion concluded that stricter language has to be honored on its own terms, so State's Attorneys in those three counties should not make court or agency appearances even for free, pro bono clients.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Article 10, §40 has since been recodified, and individual counties' private-practice and pro bono rules may have been amended since 1990.

Common questions

Does Maryland law stop a State's Attorney from doing free legal aid work?
Generally no, according to this opinion. The AG concluded that Article 10, §40's various bans on the "private practice of law" were enacted to cap total compensation, not to prevent unpaid civil pro bono service, so they don't reach volunteer legal aid work in any Maryland county.

Why do some counties still have a real restriction on pro bono work?
Because a few counties, specifically Anne Arundel, Charles, and Harford, have language going beyond a private-practice ban: it separately bars the State's Attorney from appearing before any court, magistrate, board, commission, or agency at all. The opinion concluded that language has to be given its plain effect, so State's Attorneys there should not make court or agency appearances even in pro bono matters.

Does that mean pro bono representation isn't "the practice of law"?
No, the opinion was explicit that pro bono representation generally is the practice of law, and someone providing even free legal services without being a lawyer or supervised by one would be engaged in the unauthorized practice of law. The point was narrower: these particular compensation-focused statutes shouldn't be read to reach unpaid work.

How does Prince George's County's rule work?
As of legislation effective July 1, 1990, the State's Attorney and staff in Prince George's County may do pro bono work, including court appearances, but only through the Prince George's County Bar Foundation's program specifically, not on their own.

Does a "full-time" service requirement for a State's Attorney block pro bono work?
No. The opinion treated a full-time requirement as applying to normal working hours during the work week, so it does not prohibit pro bono service performed on an attorney's own personal time.

Background and statutory framework

Article 10, §40, first enacted in 1945 as a simple salary schedule, gradually accumulated private-practice restrictions county by county starting in 1965, whenever the General Assembly gave a State's Attorney's office a substantial raise in exchange for full-time, exclusive service. Two basic models emerged: a simpler "shall not engage in the private practice of law" restriction (first used for Montgomery County in 1965), and a more elaborate "shall not appear as counsel ... before any Court, Magistrate, Board, Commission, or Agency" restriction (first used for Prince George's County in 1966 and later adopted, with variations, in Anne Arundel, Charles, Harford, St. Mary's, and Worcester Counties, though several of those were later relaxed or repealed).

Reviewing this legislative history county by county, the opinion concluded the restrictions consistently tracked salary increases, so their legislative purpose was to limit total compensation, consistent with how other states have read similar prosecutor private-practice statutes (County of Madera v. Gendron; Ray v. Hand; State ex rel. Becker v. Wiley). Applying the rule that a statute should be construed consistent with its underlying purpose (Kaczorowski v. City of Baltimore), the opinion held the restrictions do not reach uncompensated civil pro bono work, since that activity does not implicate the compensation concern the Legislature was addressing. The opinion drew a separate line, however, for the handful of counties whose statutes independently bar all court and agency appearances rather than just private compensation; because that stricter language addresses a different concern (possibly undue influence with a tribunal), the opinion declined to read it away and advised State's Attorneys bound by it to avoid pro bono court appearances specifically.

Citations and references

Statutes:

• Article 10, §40 of the Maryland Code (county-by-county private-practice restrictions on State's Attorneys and staff)
• Chapter 185 (House Bill 881), Laws of Maryland 1990 (Prince George's County pro bono authorization)
• Rule 6.1 of the Maryland Rules of Professional Conduct (lawyers' pro bono service obligation)

Cases:

• County of Madera v. Gendron, 59 Cal. 2d 798 (1963) (prosecutor private-practice restrictions are a matter of compensation policy)
• Kaczorowski v. City of Baltimore, 309 Md. 505 (1987) (statutes are construed consistent with their underlying legislative purpose)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 438-450 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

STATE'S ATTORNEYS

"Private Practice of Law" -- Pro Bono Activities -- Statutory Restrictions on the "Private Practice of Law" Do Not Prohibit Uncompensated Civil Pro Bono Activities

May 25, 1990

The Honorable Andrew L. Sonner
State's Attorney for Montgomery County

You have requested our opinion on the scope and applicability of provisions in Article 10, §40 of the Maryland Code prohibiting the "private practice of law" by State's Attorneys and members of their staff. Specifically, you pose the following two questions:

1. Does the phrase "the private practice of law" forbid the volunteering of time for civil pro bono activities by State's Attorneys and their deputies and assistants?

2. Do the variations in language from section to section within [Article 10, §40] have any bearing on whether personal time may be volunteered for civil pro bono activities by State's Attorneys and their deputies and assistants?

For the reasons stated below, we conclude as follows: Those State's Attorneys (and, in some counties, Deputy and Assistant State's Attorneys) who are prohibited by Article 10, §40 from engaging in "the private practice of law" are not thereby barred from performing uncompensated civil pro bono service. However, language in Article 10, §40(c)(1)(ii), (i)(1), and (m)(1) further prohibiting appearances before any court or other entity should cause the State's Attorneys for Anne Arundel, Charles, and Harford Counties to refrain from such appearances, even in pro bono matters. Finally, under legislation effective July 1, 1990, the State's Attorney, Deputy State's Attorneys, and Assistant States Attorneys for Prince George's County may engage in pro bono activity, including court and other appearances, but only under the auspices of the Prince George's County Bar Foundation.

I

Pro Bono Obligations

Rule 6.1 of the Maryland Rules of Professional Conduct, entitled "Pro Bono Publico Service," provides as follows:

    A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, or by financial support for organizations that provide legal services to persons of limited means.

The comment to the rule goes on to say that "[e]very lawyer, regardless of professional prominence or professional workload, should find time to participate in or otherwise support the provision of legal services to the disadvantaged." Although not previously embodied in a rule, the pro bono obligation of lawyers has long been a part of the ethical precepts of the profession. See Ethical Considerations 2-25, 8-3, and 8-9 of the former Code of Professional Responsibility.

Leaders of the Maryland Bar have been especially active recently in encouraging greater pro bono participation by this State's lawyers. A commission chaired by Representative Benjamin Cardin produced a number of recommendations for more effective provision of legal services to the poor. The Maryland State Bar Association has launched its "People's Pro Bono" program, designed to encourage pro bono activities by members of that association. And this office became the first Attorney General's office in the country to adopt a pro bono program for its lawyers.

As your letter points out, many State's Attorneys and the lawyers who work for them would like to volunteer to provide civil pro bono representation. They are concerned, however, by seemingly restrictive language in many of the subsections of Article 10, §40.[1] Your request asks us to clarify the extent of the restrictions.

II

Private Practice Restrictions In Article 10, §40

A. Legislative History

Article 10, §40 was originally enacted in 1945. Chapter 791, Laws of Maryland 1945. Originally codified as §37A, the provision's title indicated that it "relate[d] to the salaries and expenses of the State's Attorneys and Assistant State's Attorneys of the several Counties." The statute was simply a laundry list of salaries. It contained no provisions regarding the private practice of law.

The first such restriction, enacted in 1965, applied to the State's Attorney for Montgomery County. The General Assembly increased the salary of the State's Attorney by 60 percent and, at the same time, added the following language: "The State's Attorney shall devote his full time and attention to the duties of his office as State's Attorney and shall not engage in the private practice of law at any time in any jurisdiction during his tenure of office." Chapter 397, Laws of Maryland 1965, then codified at §40(p)(1). The bill also doubled the salaries of the Deputy State's Attorney and four Assistant State's Attorneys and imposed the same private practice restriction on them. Chapter 397, then codified at §40(p)(2).[2]

The next year, the General Assembly raised the salary of the State's Attorney for Prince George's County and also provided "that the State's Attorney shall not engage in the private practice of law in any matter whatsoever." Chapter 732, Laws of Maryland 1966, codified at §40(q)(1). This language was not significantly different from that enacted the year before regarding Montgomery County. However, the General Assembly also imposed a more exacting version of the restriction: "The State's Attorney ... shall not, except in connection with and in the performance of his duties as such State's Attorney, appear as counsel or represent any party professionally before any Court, Magistrate, Board, Commission, or Agency of this State or any County or political subdivision of this State." Id. The General Assembly chose somewhat different wording to express essentially the same thought with respect to the Deputy State's Attorney and three full-time Assistant State's Attorneys for Prince George's County, who also got large raises:

    The Deputy State's Attorney and the three full-time Assistant State's Attorneys ... shall not, except in connection with and in the performance of their duties ..., appear as Counsel or represent any party professionally before any Court, Magistrate, Board, Commission or Agency of this State or any County or political subdivision of this State. It is intended by the provisions herein that the Deputy State's Attorney and the full-time Assistant State's Attorneys shall devote their full time and attention to the duties of their office as required, and shall not represent any client or receive any professional fee of any kind in connection with any matter which is pending or which is appropriate to be pending before any Court, Magistrate, Board, Commission or Agency.

Chapter 732, Laws of Maryland 1966, then codified at §40(q)(2).[3]

Three years later, when the General Assembly increased the salary of the State's Attorney for Harford County by 50 percent, it also adopted the same restrictive language as had been enacted for the State's Attorney for Prince George's County. See Chapter 118, Laws of Maryland 1969, codified at §40(n)(1).

In 1970, the General Assembly again followed the language of the Prince George's County restriction when it created two full-time Assistant State's Attorney positions for Anne Arundel County, at a significantly increased salary. Chapter 718, Laws of Maryland 1970. However, that same year, when the General Assembly more than doubled the salaries of the State's Attorney and Deputy State's Attorney of Frederick County, it adopted a restriction tracking a portion of the simpler Montgomery County language: "It is intended ... that the State's Attorney and deputy State's attorney shall not engage in the private practice of law in any matter whatsoever." Chapter 213, Laws of Maryland 1970, codified at §40(k)(3).[4]

In 1972, the General Assembly created the position of Deputy State's Attorney for Charles County, at a salary greater than that of the State's Attorney. The legislation provided that the Deputy State's Attorney "shall devote full time to the duties of the office and shall not engage in the private practice of law at any time in any jurisdiction, during the tenure of office." Chapter 328, Laws of Maryland 1972, codified at §40(i)(2).[5]

In 1974, in four separate pieces of legislation, the General Assembly raised the salaries of the State's Attorneys for Baltimore, St. Mary's, Washington, and Worcester Counties and imposed corresponding restrictions on private practice. Again, however, the General Assembly did not use consistent language in enacting these restrictions.

For two jurisdictions, Baltimore and Washington Counties, the General Assembly essentially followed the Montgomery County model. The State's Attorney for Baltimore County, the Deputy State's Attorneys, and certain full-time Assistant State's Attorneys, "shall serve full-time and may not engage in the private practice of law." Chapter 723, Laws of Maryland 1974, codified at §40(d)(1), (2), and (3). For the State's Attorney for Washington County, the phrasing was slightly different: "The State's Attorney may not engage in the private practice of law at any time in any jurisdiction during his tenure of office." Chapter 547, Laws of Maryland 1974, codified at §40(v)(5).

For two other jurisdictions, St. Mary's and Worcester Counties, the General Assembly followed the Prince George's County model. Thus, for the State's Attorney for St. Mary's County, the restrictive language was as follows: "During his term of office, the State's Attorney may not appear as counsel or represent any party professionally before any Court, Board, Commission or Agency of the State or any County or political subdivision in this State, except in connection with and in the performance of his duties as the State's Attorney." Chapter 284, Laws of Maryland 1974, then codified at §40(s).[6] An ever more elaborate formulation was that applicable to the State's Attorney for Worcester County: "[T]he State's Attorney, during his term of office, may not, except in connection with and in the performance of his duties as such State's Attorney, appear as counsel or represent any party professionally before any Court, Magistrate, Board, Commission on Agency of the State, or any County or political subdivision of the State or any other state. It is intended by the provisions of this subsection that the State's Attorney may not engage in the private practice of law in any manner whatsoever ...." Chapter 112, Laws of Maryland 1974, then codified at §40(x)(1).[7]

Also in 1974, the General Assembly adopted a restriction on the private practice of the State's Attorney for Allegany County nearly identical in wording to that adopted for the State's Attorney for Worcester County. Chapter 857, Laws of Maryland 1974, then codified at §40(b)(1). The unusual aspect of the Allegany County legislation is that the restriction was not linked to a salary increase.

In 1976, when the General Assembly doubled the salary of the State's Attorney for Wicomico County, it added the following restriction: "The State's Attorney shall serve full time and may not engage in the private practice of law." Chapter 824, Laws of Maryland 1976.[8]

Also, in 1976, when the General Assembly raised the salary of the State's Attorney for Anne Arundel County to that of a circuit court judge, it imposed on the State's Attorney the same restriction on appearances as had previously been enacted for the full-time Assistant State's Attorneys in that office. Chapter 533, Laws of Maryland 1976, codified at §40(c)(1).

In 1979, the General Assembly rewrote the restriction applicable to the Deputy State's Attorney and certain Assistant State's Attorneys for Anne Arundel County. Instead of the language prohibiting both court and other appearances and private practice, the 1979 legislation simply precluded "the private practice of criminal law" for the deputies and some assistants and "the private practice of law" for other assistants. Chapter 21, Laws of Maryland 1979, then codified at §40(c)(3)(i) and (4)(i).[9]

In 1980, the General Assembly increased the salary of the State's Attorney for Howard County from a flat $25,000 to a salary equal to that of District Court judges. By amendment, the bill set out the following simple restriction: "He may not engage in the private practice of law." Chapter 492, Laws of Maryland 1980, codified at §40(n)(1).

Also in 1980, when it raised the salary of the State's Attorney for Allegany County to 75 percent of that of a District Court judge, the General Assembly replaced the previously adopted "no appearances" language with the simpler "no private practice" restriction: "During his term of office, the State's Attorney may not engage in the private practice of law." Chapter 875, Laws of Maryland 1980, codified at §40(b)(1).

In 1981, however, when the General Assembly raised the salary of the State's Attorney for Charles County, it reverted to the "no appearances" language of the Prince George's County model. Chapter 305, Laws of Maryland 1981, codified at §40(i)(1).[10]

In 1985, the General Assembly increased the salary of the State's Attorney for Calvert County from $28,090 to 90 percent of that of a District Court judge. In the same legislation, the General Assembly provided as follows: "While in office, the State's Attorney shall serve full time and may not engage in the private practice of law." Chapter 419, Laws of Maryland 1985, codified at §40(e)(1)(iii).

In 1989 the General Assembly increased the salary of the State's Attorney for Somerset County from $24,000 to $60,000. Coupled with the raise was the following restriction: "The State's Attorney may not engage in the private practice of law at any time in any jurisdiction during the State's Attorney's tenure of office." Chapter 403, Laws of Maryland 1989.

The most recent pertinent enactment is the only one that addresses pro bono activity. In Chapter 185 (House Bill 881) of the Laws of Maryland 1990, the General Assembly clarified its intention about the "no appearances" version of the private practice ban previously adopted for the State's Attorney for Prince George's County and the staff of that office. Article 10, §40(q)(1) and (q)(5) provide as follows, effective July 1, 1990: "However it is not intended that these [restrictive] provisions will preclude the State's Attorney [and Deputy and Assistant State's Attorneys] from participating in the pro bono program administered by the Prince George's County Bar Foundation."

B. Assessment of Legislative Objective

We set out this tedious litany in an effort to draw from the history of §40 some sense of the legislative purpose. We believe that we understand the legislative objective, taken as a whole, although we are uncertain about the significance of the variations in wording.

The restrictions on private practice are inextricably linked to compensation. When §40 was first enacted in 1945, all State's Attorneys were permitted to augment their limited statutory salaries through private practice. Then, as the population of many of the jurisdictions grew and so, correspondingly, did the work of the State's Attorneys' offices, the General Assembly perceived the need for those offices to be led or staffed by lawyers concerned solely with that work. But if it wanted a State's Attorney or staff member who would be so occupied with the work of the office as to preclude a practice on the side, the General Assembly would have to set a commensurate salary. Hence, with but a single exception, all of the restrictions on private practice, however phrased, were enacted as components of legislation significantly increasing the salary of the State's Attorney or staff member in question. Indeed, sometimes the titles of bills raising a salary and imposing a corresponding private practice restriction referred to the salary only, without specific reference to the restriction; the latter was evidently understood to be a mere detail of the subject of salary. See, e.g., Chapter 328, Laws of Maryland 1972; Chapter 112, Laws of Maryland 1974; Chapter 875, Laws of Maryland 1980.

Pertinent cases from other jurisdictions confirm our view that the private practice restrictions are a matter of compensation policy, and do not address other public policy issues. County of Madera v. Gendron, 59 Cal. 2d 798, 31 Cal. Rptr. 302, 305, 382 P.2d 342 (1963) (the "effect of [such] legislation is to limit [the prosecutor's] compensation to the official figure"). See also Ray v. Hand, 225 Ga. 589, 170 S.E.2d 692, 694 (1969); State ex rel. Becker v. Wiley, 133 P.2d 507, 514 (Wash. 1943).[11]

We cannot offer a satisfactory explanation for the variations in wording from one provision to another. Perhaps they merely reflect the vagaries of drafting, rather than policy choices that differ from one jurisdiction to the next. Essentially, there are two models: the relatively simple "shall not engage in the private practice of law" language first enacted in 1965 for the State's Attorney for Montgomery County; and the more elaborate "shall not appear before any court" language, first enacted, in addition to "no private practice" language, for the State's Attorney for Prince George's County in 1966. Later drafters may have happened upon one or the other of these two models and then sometimes added variations of their own. We really cannot tell.

Nevertheless, we cannot ignore the more stringent "no appearances" language or simply assume that it means the same thing as the "no private practice" restriction. Perhaps the General Assembly was concerned that a State's Attorney might have, or be perceived to have, undue influence with a tribunal, and so decided to bar all court and other appearances, compensated or not. Cf. Aldridge v. Capps, 56 Okla. 678, 156 P. 624 (1916). In any event, we have no basis for advising that the "no appearances" restriction should not be given the effect that its wording unmistakably conveys.

III

Applicability To Pro Bono Activities

Because we have concluded that the General Assembly's enactment of private practice restrictions was intended solely to regulate the compensation of State's Attorneys and staff members affected by the restrictions, it follows that these restrictions should not be construed to prohibit uncompensated civil pro bono activities. To extend the prohibition beyond its intended scope would be inconsistent with the legislative goal. See Kaczorowski v. City of Baltimore, 309 Md. 505, 514-15, 525 A.2d 628 (1987).[12]

We do not mean to suggest that, as a general matter, pro bono representation is not "the practice of law." In other contexts, of course it is. See §10-101(h) of the Business Occupations & Professions Article ("BOP" Article). Cf. 52 Opinions of the Attorney General 244, 245 (1967) ("it seems to be clear that a person might 'practice law' gratuitously ..."). If someone is neither a lawyer nor acting under a lawyer's supervision and is providing even uncompensated legal services, that person would be engaged in the unauthorized practice of law. See BOP §10-601(a). See also 42 Opinions of the Attorney General 338, 339 (1957) ("One may be guilty of the 'practice of law' without a license even though he receives no fee for the services performed.").

Rather, our point is that the provisions of Article 10, §40 should be construed to conform to the legislative goal underlying these particular provisions. In our view, that goal was to limit the total compensation of a State's Attorney or staff members to a salary specified in the statute, not to prohibit those lawyers from carrying out their professional obligation to render uncompensated pro bono service.

At the same time, we cannot advise those who are governed by language prohibiting their appearance before courts and other bodies that they may ignore that language in carrying out pro bono activities. Until the General Assembly addresses itself specifically to pro bono activities by these State's Attorneys, we advise that the State's Attorneys for Anne Arundel, Charles, and Harford Counties should refrain from court and other prohibited appearances if they undertake pro bono activities.

Our conclusions are not undermined by Chapter 185 of the Laws of Maryland 1990, the recently enacted legislation expressly authorizing certain pro bono activities by the State's Attorney for Prince George's County and his staff. As we have pointed out, the Prince George's County provisions were the most rigorous of any, and the Prince George's County Delegation, the sponsor of the legislation, might reasonably have thought that these restrictions, unless clarified, would effectively preclude any meaningful pro bono service. Moreover, Chapter 185 limits pro bono activities to those under the aegis of a particular program. For these reasons, we do not regard Chapter 185 as implicitly conveying any legislative understanding of provisions apart from those affecting the State's Attorney's Office for Prince George's County. We do think, however, that Chapter 185 underscores the need for more general legislation authorizing pro bono activities.

Finally, the analysis in this opinion is directed only to the restrictive language in the statute. We do not address the limitations that a State's Attorney might, as a matter of office policy, choose to impose.

IV

Conclusion

In summary, it is our opinion that in all counties, State's Attorneys and the members of their staff are not prohibited by Article 10, §40 from engaging in uncompensated civil pro bono activities.[13] However, the State's Attorneys for Anne Arundel, Charles, and Harford should not engage in the representation of pro bono clients before any State court or any other State or local agency. We recommend that either the General Assembly by statute or the Court of Appeals by rule adopt an express authorization for uncompensated civil pro bono representation in every jurisdiction.

                                          J. Joseph Curran, Jr.
                                          Attorney General

                                          Jack Schwartz
                                          Chief Counsel
                                            Opinions & Advice

[1] Language of one kind or another restricting private civil practice by State's Attorneys or, in some instances, by staff members appears in subsections addressing the following counties: Allegany (§40(b)), Anne Arundel (§40(c)), Baltimore (§40(d)), Calvert (§40(e)), Charles (§40(i)), Frederick (§40(k)), Harford (§40(m)), Howard (§40(n)), Montgomery (§40(p)), Prince George's (§40(q)), St. Mary's (§40(s)), Somerset (§40(t)), Washington (§40(v)), Wicomico (§40(w)), and Worcester (§40(x)). No pertinent language appears in subsections addressing the following counties: Caroline (§40(f)), Carroll (§40(g)), Cecil (§40(h)), Dorchester (§40(j)), Kent (§40(o)), Queen Anne's (§40(r)), and Talbot (§40(u)). We note that the State's Attorney for Garrett County is to serve "full-time." §40(e)(1). However this office has advised that a requirement for full-time service applies only to "regular working hours during the work week ... and does not prohibit ... the private practice of law outside the normal work period." Thus, such language does not prohibit pro bono service on personal time. Letter of advice to Delegate Michael J. Sprague from Assistant Attorney General Robert A. Zarnoch (March 12, 1979). No provision of Article 10, §40 applies to the State's Attorney for Baltimore City. As far as we are aware, no other statute or ordinance imposes a private practice restriction on that office. However, as a policy matter, the State's Attorney for Baltimore City generally prohibits private practice, except for certain pro bono activities.

[2] The restrictions were later combined and are now codified at §40(p)(7).

[3] This restriction is now codified at §40(q)(5).

[4] This provision is now worded as follows: "The State's Attorney and Deputy State's Attorney may not engage in the private practice of law."

[5] This provision is now worded as follows: "The deputy State's Attorney shall serve full time and may not engage in the private practice of law."

[6] In 1980, the restriction applicable to the State's Attorney for St. Mary's County was relaxed in several respects. The prior language prohibiting court and other appearances was modified so that the prohibition applied only to bodies sitting in St. Mary's County. Also, the State's Attorney was permitted a limited civil practice. Chapter 690, Laws of Maryland 1980. The next year, however, the General Assembly raised the State's Attorney's salary and adopted the following restriction: "During his term of office, the State's Attorney may not engage in the private practice of law in any matter whatsoever." Chapter 82, Laws of Maryland 1981, codified at §40(s)(1)(i).

[7] Later, the General Assembly repealed this restriction and expressly authorized the State's Attorney for Worcester County to engage in "the private practice of law provided that the private practice does not in any manner interfere with the performance of his duties as State's Attorney." Chapter 587, Laws of Maryland 1979. Finally, the General Assembly repealed this language and simply provided that "the State's Attorney's salary shall be as set by the County Commissioners," without further reference to a private practice ban. Chapter 749, Laws of Maryland 1982, codified at §40(x)(1).

[8] A year earlier, the General Assembly coupled a raise for the Assistant State's Attorneys for Wicomico County with the following restriction: "The Assistant State's Attorneys shall devote their full time and attention to the duties of their office as Assistant State's Attorneys and may not engage in the private practice of law at any time in any jurisdiction during their tenure of office." Chapter 158, Laws of Maryland 1975, then codified at §40(w)(5). This restriction was repealed by Chapter 123, Laws of Maryland 1980.

[9] Then, in 1981, the General Assembly simplified the language to provide that "[t]he Deputy State's Attorney and the Assistant State's Attorneys shall be precluded from the private practice of criminal law and, with the exception of one Assistant, shall serve full time." Chapter 127, Laws of Maryland 1981, codified at §40(c)(5).

[10] "Except in connection with and in the performance of duties as State's Attorney," the State's Attorney for Charles County "shall serve full time, and may not appear as counsel or present any party professionally before any court, board, commission, or agency of this State or of any of its political subdivisions, or otherwise engage in the private practice of law."

[11] This conclusion does not require us to revisit prior advice on whether a restriction on private practice is within the scope of Article III, §35 of the Maryland Constitution, which provides, in part, that the "salary or compensation of any public officer" serving a term of four years or less may not be "increased or diminished during his term of office." This office has previously advised that Article III, §35 does not prohibit the imposition of a ban on private practice during a State's Attorney's term. The crux of the reasoning is that "the prohibition of [Article III, §35] plainly refers to the public compensation of an officer." Letter of advice to Senator Joseph J. Long, Sr. from Assistant Attorney General Richard E. Israel (Jan. 12, 1979). See also letter of advice to Delegate Philip Carey Foster from Assistant Attorney General Robert A. Zarnoch (March 20, 1990); letter of advice to Delegate Daniel A. Long from Assistant Attorney General Linda H. Lamone (Feb. 19, 1987). Although a ban on private practice does not affect public compensation, and therefore does not invoke Article III, §35, such a ban surely addresses compensation as a whole, for it limits the State's Attorney to the level of public compensation. The point of the present opinion is that these bans should not be taken to have prohibited uncompensated pro bono service, for that is a matter beyond their scope.

[12] Nor does a "full-time" requirement prohibit pro bono activities on a lawyer's personal time. See the second paragraph of note 1 above.

[13] The State's Attorney for Prince George's County and his deputies and assistants may engage only in pro bono activities under the program of the Prince George's County Bar Foundation.