Maine Board of Overseers of the Bar Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the Maine Board of Overseers of the Bar, with full citations and source links on every page.
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Can a lawyer who regularly represents an adoption agency also represent the birthmother in the same consent or surrender-and-release adoption proceeding?
The opinion concluded the dual representation is not per se barred and is permissible with informed consent, even though a conflict exists, when the lawyer reasonably believes the birthmother can make…
Can a lawyer form a partnership with a non-lawyer to provide government-relations and lobbying services without practicing other law?
The opinion concluded not while the lawyer remains on the active roll, because lobbying is the kind of service lawyers typically provide and so counts as the practice of law; the partnership is permis…
Can a Maine lawyer charge a contingent fee in a post-divorce proceeding to enforce the property division set out in the divorce decree?
The opinion concluded yes; Bar Rule 8(c)'s bans on contingent fees for procuring a divorce and where a fee method is set by statute do not reach a proceeding to enforce an already-decreed property div…
If both spouses separately contacted a lawyer's office about a divorce, can the lawyer still represent one of them?
The opinion concluded the lawyer may represent either party unless she obtained a material confidence or secret from the adverse party, disclosed in good faith; in domestic cases even the fact of the …
Can a Maine lawyer or firm argue opposite sides of the same legal issue for two clients in separate, unrelated cases?
The opinion concluded that an issue (positional) conflict, standing alone, is not a conflict of interest under Maine Bar Rule 3.4(b)(1); Maine declined to follow ABA Formal Op. 93-377.
Can a lawyer represent an injured minor through a parent as next friend when the parent has an adverse or competing claim from the same accident?
The opinion concluded the lawyer may presume a parent acts in the child's best interest, but must withdraw or seek a guardian ad litem once the parent's own claim or conduct creates a conflict the par…
Can a Maine lawyer agree, in a contingent fee contract, that the client will never be responsible for litigation disbursements regardless of outcome?
The opinion concluded yes; Bar Rule 3.7(d) lets a lawyer advance and guarantee litigation expenses without keeping the client ultimately liable, so a lawyer may agree to absorb the disbursements entir…
Can a law firm pledge its accounts receivable to a bank as collateral without violating its duty to protect client confidences?
The opinion concluded a firm may grant a security interest in receivables, but the security agreement must be drafted so it never forces disclosure of client confidences or secrets and never strips a …
Can a Maine lawyer put a binding fee-arbitration clause in the retainer, and can it override the client's right to bar-run fee arbitration?
The opinion concluded a clause that would block the client from invoking Rule 9 bar arbitration is improper, but a clause requiring arbitration while preserving the client's option to use Rule 9 is pe…
Can a divorce lawyer take a contingent referral fee for sending the client's separate civil-rights claim to another lawyer?
The opinion concluded the referral fee is permissible because the civil-rights claim is separate from procuring the divorce, but only if the lawyer meets the strict disclosure, fairness, and written-c…
Can a lawyer form a partnership with a non-lawyer in a firm that offers only mediation services?
The opinion concluded yes; because mediation creates no lawyer-client relationship it is not the practice of law under the no-partnership rule, so neither the partnership nor the fee-splitting it invo…
Can an indigent-defense contract require defense counsel to report a client's financial eligibility information to the court without violating confidentiality?
The opinion concluded the contract term is permissible if 'probative of guilt or innocence' is read to cover any charge, so privileged communications stay protected while non-privileged secrets and fr…
Can a lawyer join a prepaid living-trust referral network whose contract bars criticizing the network's documents or acting against it?
The opinion concluded no; the participating-attorney agreement violates the rule against letting a third party who pays for legal services direct the lawyer's professional judgment.
If a former-client conflict bars a lawyer from taking a case, can she still refer it out and share in the other lawyer's fee?
The opinion concluded no; a compensated referral is itself representation in the matter, so the same former-client conflict that bars the case bars sharing the referred lawyer's fee.
Can a lawyer secure a fee by taking a mortgage or security interest in a client's property that is unrelated to the matter being handled?
The opinion concluded yes; because the property is not the subject of the litigation, the lawyer may take a secured note if the business-transaction safeguards (fair terms, chance to consult independe…
When a lawyer mediates while staying 'of counsel' to a firm, must the mediator run conflict checks and disclose the affiliation, and does imputed disqualification apply?
The opinion concluded the of-counsel mediator must run conflict checks and disclose the firm tie when a party is connected to the firm, and that imputed disqualification reaches the firm and the media…
What must a solo practitioner arrange in advance so client files and matters are protected if the lawyer suddenly dies or becomes disabled?
The opinion concluded the Bar Rules require a solo to adopt an advance plan that keeps files secure and confidential, notifies clients to retrieve files and find new counsel, and engages a supervising…
Are a firm's real estate closing escrow accounts subject to the lawyer trust-account and IOLTA rules?
The opinion concluded yes; real estate escrow accounts are trust accounts under Rule 3.6(e), so a firm must keep all of them either IOLTA or non-interest-bearing and meet Rule 6 reporting for each.
Must a Maine criminal defense lawyer disclose to the court that the client committed perjury on the stand?
The opinion concluded the Bar Rules do not require disclosure where it would reveal privileged communications, because Rule 3.6(b) excepts privileged information, though disclosure may still be requir…
Can a lawyer bill the client for the time and cost of defending against an opposing party's frivolous bar complaint?
The opinion concluded no; defending oneself against a misconduct complaint is not legal service to the client, so charging the client for it is an unreasonable fee even with the client's written conse…
Can a Maine lawyer finance the payment of legal fees through a third-party finance company by assigning the client's account receivable?
The opinion concluded yes; the Lawcard financing arrangement is permitted under the credit-card-payment rule, provided the client keeps all defenses against the agency, the right to fee arbitration, a…
May a lawyer-mediator draft documents ancillary to a settlement, such as a divorce judgment, promissory note, or deed, not just the settlement agreement itself?
The opinion concluded yes; a lawyer-mediator under Rule 3.4(h) may prepare ancillary documents that merely reflect the parties' resolution, provided the other conditions of the rule, including advisin…
After litigation ends, may a lawyer write directly to the opposing party about a post-judgment matter, or must contact still go through that party's counsel of record?
The opinion concluded the lawyer may not; where the lawyer has actual knowledge the opposing party is still represented by counsel of record in the matter, the communication must go to that counsel, e…
May a lawyer pay dues to join a national directory network that lists members to mortgage companies seeking foreclosure counsel, or is that a barred payment for client referrals?
The opinion concluded a lawyer may join; a network that lists members in a paid directory and supplies their names on request is permissible directory advertising under Rule 3.9(f)(2), not a prohibite…
If a lawyer's nonlawyer staff member discloses a client's confidences to outsiders, can the lawyer or the firm's partners be disciplined for it?
The opinion concluded a lawyer is not automatically disciplined; the lawyer or supervising partners are subject to discipline only if they failed to exercise reasonable care to train, monitor, and dis…
May a bar-association lawyer referral service charge participating lawyers a sliding-scale or percentage-of-fee remittance, and require lawyers to disclose the fee charged to set that amount?
The opinion concluded yes to both; a sliding-scale or percentage-of-fee remittance is a usual and reasonable referral charge under Rule 3.9(f)(2), and limited disclosure of the client's fee to set tha…
Must a law firm remove a suspended attorney's name from its letterhead and firm name while the suspension is in effect?
The opinion concluded yes; Rule 3.9(b) requires dropping a suspended lawyer's name from all of the firm's public communications, including its letterhead, until the lawyer is authorized to resume prac…
May a lawyer represent clients before the probate court when the lawyer's partner has been elected Register of Probate?
The opinion concluded yes; because the Register of Probate performs only clerical and ministerial functions and cannot act on the merits, the partner's election does not disqualify the lawyer from app…
If a firm's associates serve case-by-case as special assistant district attorneys, is the whole firm disqualified from representing municipal clients before the county commissioners?
The opinion concluded no; the imputation rule (Rule 3.4(k)) does not apply to common employment in a government agency, so the associates' prosecutorial work does not impute the District Attorney's ot…
May lawyers contribute to, or solicit donations for, a foundation fund that makes an annual grant to the judiciary for judicial education?
The opinion concluded no; contributing to or soliciting for a fund that grants money to the Judicial Department is an indirect gift to judges barred by Rule 3.7(h)(1), regardless of motive or donor an…
May a lawyer serve on the board of directors of a nonprofit corporation that, among other things, provides legal services to indigents?
The opinion concluded yes; serving as a director of a nonprofit, nonproprietary corporation whose property and activities do not inure to its directors does not violate the rule barring lawyer-nonlawy…
Must a lawyer pay settlement proceeds to a client when those proceeds were already legally assigned to a third party?
The opinion concluded the lawyer must not; once a client legally assigns away the right to the proceeds, the funds are no longer the client's property, so paying them to the client does not satisfy (a…
In a workers' compensation case, may the employee's lawyer communicate directly with a claims adjuster employed by the insurance carrier when the carrier is a represented party?
The opinion concluded no; an insurance adjuster is responsible for making or assisting litigation decisions, so the anti-contact rule bars opposing counsel from contacting the adjuster without the car…
May a lawyer accept a contingent-fee client referred by an independent nonlawyer paralegal advisor who has a separate contract for 17% of the client's recovery?
The opinion concluded yes on these facts; if the lawyer and the advisor are genuinely independent with no cooperative arrangement, the lawyer's own customary contingent fee is not improper, and there …
May a lawyer pay a marketing company that runs seminars, and how the company is compensated, when attendees also get a private consultation with the lawyer?
The opinion concluded paying the marketer per attendee is permitted as public communication, but paying it based on the number of private consultations the lawyer books violates the rule against payin…
Must a lawyer retained by a workers'-compensation insurer notify the employer before settling a comp claim, when the insurer pays the settlement?
The opinion concluded yes; because the employer is also a client of the insurer-retained lawyer and the settlement concerns the employer's affairs, the duty to keep the client informed requires commun…
When a lawyer withdraws, must the lawyer pay to mail the client's file, or is making it available for pickup at the office enough?
The opinion concluded that making the file available for pickup at the office ordinarily satisfies the duty to deliver; if the client will not pick it up, the client bears the cost of mailing or other…
May a lawyer file a class action against a government agency when a different agency of the same government paid the lawyer's fees for the class representatives' related matters?
The opinion concluded yes; the class representatives, not the paying agency, are the clients, so there is no conflict as long as the payor does not direct the lawyer's judgment and the payment is disc…
May lawyers co-own a public-relations and lobbying corporation with non-lawyers if the corporation employs no lawyers and the lawyers perform none of its services?
The opinion concluded yes; Rule 3.2(a)(2) bars lawyer-nonlawyer entities only where the entity offers the lawyers' legal services, so a PR and lobbying corporation that employs no lawyers and offers n…
May a divorce lawyer take a mortgage on the client's former marital home to secure fees, if the mortgage is taken after the divorce judgment dividing the property is final?
The opinion concluded that once the divorce judgment is final the litigation has ended, so the ban on acquiring a proprietary interest in the subject of litigation is generally inapplicable, though re…
When a client owes settlement money to a third party, must the lawyer withhold the proceeds from the client, or pay them over as the client directs?
The opinion concluded the lawyer must pay the client who owns the claim, even knowing the client may not pay the third party, unless the lawyer made an authorized promise to hold the funds; in that ca…
May a court-appointed criminal defense lawyer accept a gift from the indigent client, such as cookies, an oil change, or a small amount of cash?
The opinion concluded that unsolicited nominal gifts (a box of cookies, an oil change) are not compensation barred by the appointed-counsel rules, but a cash gift of any amount should be refused becau…
Do the no-contact and conflict-of-interest rules apply to lawyer and nonlawyer advocates in a state Office of Advocacy when they investigate complaints by agency clients?
The opinion concluded no; because the advocates do not have an attorney-client relationship with the Department's clients, the no-contact rule and the conflict rules do not apply to their statutory ad…
May a lawyer who expects to testify as a witness refer the case to other counsel and still take a share of the contingent fee?
The opinion concluded no; a lawyer likely to be called as a witness may not accept employment in the case, and taking a contingent fee while testifying makes the fee an improper payment to a witness c…
May a law firm that runs a title company advertise in the yellow pages under the 'title companies' heading?
The opinion concluded yes; nothing in the Bar Rules bars the listing, which states a true fact and is not a prohibited designation of a specialty.
When may a lawyer who served on a state administrative agency board later represent clients before that board?
The opinion concluded the lawyer, and the lawyer's firm, are disqualified only from specific matters the board adjudicated on the merits during the lawyer's tenure, not from every party or matter that…
May one lawyer represent a group of potentially responsible parties jointly in Superfund cost-allocation negotiations?
The opinion concluded yes; the lawyer's client is the group, and representing it poses no inherent conflict, but representing an individual member at the same time triggers the multiple-representation…
Can the law partners of a lawyer who serves as mayor represent clients before, or in litigation against, the city?
The opinion concluded the firm may appear freely before city bodies the mayor does not sit on, may appear before bodies he sits on only with on-record disclosure under the vicarious-disqualification r…
When a lawyer is named as a witness or party, may another lawyer in her firm continue to handle the case?
The opinion concluded the firm may continue, even though the lawyer is disqualified as an advocate once she is likely to be a witness, as long as a non-witness lawyer in the firm controls the litigati…
May a lawyer who serves on a corporation's board disclose a client's financial trouble to the corporation?
The opinion concluded that if the lawyer learned of the trouble in the professional relationship, the confidentiality rule bars disclosure to the corporation; whether non-disclosure conflicts with his…
Can a law firm act as a neutral 'escrow agent' preparing closing documents for both the buyer and seller of a business?
The opinion concluded no; drafting closing documents requires independent judgment for both sides whose interests diverge, and it is not 'obvious' the firm can adequately represent each, so the arrang…
Must a real estate lawyer tell a new buyer-client that he once drafted the broker's standard purchase-and-sale form?
The opinion concluded no; the lawyer's past authorship of the broker's form and occasional unrelated advice to the broker were not connections he should reasonably have known would influence the clien…
May a lawyer who serves on the bar's Board of Overseers, or that lawyer's firm, sue a lawyer who is under disciplinary investigation?
The opinion concluded yes, but only if the Board member holds no confidential information about the lawyer under discipline and removes himself entirely from the disciplinary proceeding; otherwise the…
Can a lawyer who refers a case and does no further work still collect a share of the contingent fee?
The opinion concluded yes; Maine's fee-division rule was deliberately written to drop the 'proportion to services and responsibility' requirement, so a pure referral split is permitted if the client c…
Does one law-clinic student's conflict of interest disqualify the other students in the same clinic?
The opinion concluded yes; the clinic's student-attorneys are 'affiliated' lawyers whose work the supervising attorneys are professionally responsible for, so the vicarious-disqualification rule imput…
May a lawyer represent buyers or sellers referred by her attorney-spouse who is the broker, and must she disclose the relationship?
The opinion concluded that if the spouses are law partners they may not represent both buyer and seller; if they keep separate practices, the lawyer may represent a referred client only with disclosur…
Can a lawyer threaten to file a bar grievance against another lawyer to gain leverage in settling a malpractice claim?
The opinion concluded no; threatening to present a disciplinary charge solely to gain advantage in a civil matter violates the rule, the lawyer need not report misconduct he does not himself believe o…
May a lawyer collect a bar referral service's fee from the client and pay the service's own fee without violating the fee-sharing rule?
The opinion concluded the fees are permitted; collecting the referral service's client fee is not sharing a legal fee, and paying the service's own fee is expressly allowed for a bar-operated referral…
Is it commingling for a lawyer to leave fees she has already earned sitting in her client trust account?
The opinion concluded no; the rule permits but does not require withdrawing earned fees when due, so simply leaving them in trust, without misappropriation or poor record-keeping, is not commingling.
Can a lawyer take a mortgage on the client's marital home to secure fees in the client's divorce case?
The opinion concluded no; acquiring a mortgage on the marital home gives the lawyer a proprietary interest in the subject matter of the divorce litigation, which the rule forbids, so the Commission di…
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Legal ethics opinions from the Maine Board of Overseers of the Bar interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.