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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What confidentiality and conflict duties arise when a pro bono referral project's lay staff and volunteer lawyers screen and refer clients?
The opinion concluded the referral project itself is not a client or an attorney, but its lay staff handle client confidences a supervising lawyer must protect; the screening 'lawyer of the day' forms…
Can a lawyer who sits on a corporation's board of directors or trustees also serve as the corporation's lawyer?
The opinion concluded that serving as both director (or trustee) and corporate counsel is not, by itself, a violation of any bar rule, because only one client (the entity) is involved. Rule 3.4(f) cau…
Is there a conflict when one firm has partners volunteering on a city's planning and appeals boards while another partner serves as the city solicitor?
The opinion concluded no conflict inherently arises. Because the firm represents no private clients before either board, the city solicitor's independent judgment is not adversely affected by his part…
Can a lawyer represent his own law partner as a party in litigation where the partner will testify as a witness?
The opinion concluded the lawyer-witness rule prohibits it. Rule 3.4(j) bars a lawyer from accepting employment when he or a firm lawyer is likely to be a witness, and it draws no exception for a lawy…
May a part-time assistant district attorney (or his private firm) represent a town or taxpayer in a tax abatement appeal heard by the county commissioners?
The opinion concluded no. Because an assistant district attorney's sole function is to assist the district attorney, he always represents the county, so neither he nor his firm may represent a party o…
When a lawyer jointly represents two feuding co-personal representatives of an estate and learns one is abusing her position, must the lawyer withdraw and can she act against the wrongdoer?
Assuming the lawyer represents the co-personal representatives jointly, the opinion concluded she should resign under Rule 3.5(a) if she cannot deal constructively with the accused co-representative, …
What city-related matters may the law firm of a lawyer who sits on the city council take on, and which are barred by the lawyer's public office?
The opinion concluded the answer turns on the type of matter. The firm may not defend criminal cases prosecuted by city police, sue the city, or represent municipal employees in grievances or collecti…
Can one lawyer represent both an injured claimant and the health insurer that paid benefits and is subrogated to the claimant's recovery?
The opinion concluded a lawyer may represent both the insured and the subrogated insurer, but only with safeguards. Their interests are identical in establishing the tortfeasor's liability, so joint r…
Can an assistant district attorney prosecute cases defended by her husband's law firm, and can the government consent to that conflict?
Revising Opinion #36, the opinion concluded that responsible government officials can consent to such a representation. An assistant district attorney may prosecute cases defended by her husband's fir…
When two lawyers share office space and a secretary, can they take opposite sides of a case, and can one refer a client to the other in a matter where the referring lawyer will testify?
The opinion concluded that office-sharing lawyers who share a secretary may not take opposite sides of a matter, because their mutual financial dependence and the shared employee's exposure to both cl…
If a lawyer also acts as the agent who issues the title insurance policy in a real estate deal, can the lawyer keep the part of the premium that pays for title work the client has already been billed for separately?
The opinion concluded that a lawyer who acts as agent for a title insurance company may receive compensation out of the premium the client pays, but must credit the client for the portion of the premi…
If one lawyer in a firm becomes a part-time assistant district attorney, can the firm's other lawyers keep representing criminal defendants in the state's courts?
The opinion concluded no, at least as to pending criminal cases. Maine Rule of Criminal Procedure 53A bars any attorney for the State, and anyone holding himself out as that attorney's partner or asso…
Does a lawyer who also serves as a county commissioner have a conflict of interest when he sues towns located within his county on behalf of private clients?
The opinion concluded that no conflict of interest existed. Under Maine Bar Rule 3.4(b) a conflict arises when a lawyer's independent judgment for a client is likely to be adversely affected or when h…
Can a law firm that represents a retailer suing a manufacturer over defective goods also represent the retailer's unhappy customers and join them as plaintiffs in the same suit?
The opinion concluded no. There is an inherent conflict of interest in representing both the retailer (suing the manufacturer over defects) and the purchasers, because each purchaser has a potential c…
Can an assistant district attorney prosecute a criminal case when the defendant is represented by a lawyer whose law partner is the prosecutor's spouse?
The opinion concluded no. The Maine Bar Rules forbid an assistant district attorney from prosecuting a criminal case against a person represented by a lawyer whose partner is the prosecutor's spouse, …
Does a lawyer who previously represented intervenors before the Public Utilities Commission have to be disqualified from serving as counsel to (or as) the Public Advocate in cases where those former clients are also intervenors?
The opinion concluded that Maine Bar Rule 3.7(i)(3) and (4), which bar a government lawyer from conducting a case 'against' a person he represents or has represented, did not disqualify Attorney A, be…
If a bank's collection lawyer later does unrelated deed work for the very person the bank once asked him to collect from, can he take a new collection case against that person for the bank?
The opinion concluded that the lawyer's later deed work created an ongoing attorney-client relationship with the debtor, so the new collection suit was against a present client, not a former one. The …
Can a lawyer who chairs the county commissioners keep defending criminal cases that the sheriff's office investigated, when the commissioners oversee the sheriff, and must the district attorney withdraw from cases against that lawyer's clients?
The opinion concluded that the district attorney need not withdraw from any case, because the DA represents the county as a governmental body, not any individual commissioner, and prosecuting the chai…
What conflict and disclosure duties does a lawyer who serves in the legislature, and the lawyer's firm, owe to clients affected by legislation, and can a partner serve as a paid lobbyist?
The opinion concluded that the rule on lawyers in public office (Rule 3.2(d)) is not a blanket bar on representing clients affected by legislation; it reaches only the use of public position for a spe…
If a prosecutor convicts a drunk driver, can the prosecutor's law partner sue that driver in a personal injury case for the passenger who was a witness in the criminal case?
The opinion concluded no; the lawyer had to withdraw from the civil case. Maine Bar Rule 3.4(h) bars private employment in a matter where the lawyer (here the prosecutor partner) held substantial and …
A lawyer watched police search his office and his clients' files; can he testify for those clients at a suppression hearing without withdrawing, and can he still try the case?
The opinion concluded that the lawyer may not testify at the motion-to-dismiss hearing without first withdrawing as counsel, because his eyewitness testimony about the search would be on a contested m…
When a law firm has lobbied for one client, can it switch sides and lobby for an opposing interest group, and how broadly does the former-client conflict reach?
The opinion concluded that lobbying by a lawyer is the practice of law and is governed by the former-client conflict rule (Bar Rule 3.4(e)), but that the bar reaches only particular legislative matter…
Can one lawyer represent both the driver and the injured passengers (here, a married couple and their deceased child's estate) in a car-accident suit when the driver has been brought in as a third-party defendant?
The opinion concluded no. Maine Bar Rules 3.4(b) and (c) bar multiple representation where the lawyer would represent differing interests or where independent judgment for one client is likely to be a…
When a former government lawyer enters private practice, which prior matters is the lawyer barred from, and is the new firm automatically disqualified too?
The opinion concluded that the former government lawyer is personally barred only from matters in which he held 'substantial and relevant responsibility,' adopting ABA Formal Opinion 342's narrow defi…
Can a lawyer act as both attorney and title insurance agent for a client, and keep the insurance sales commission on top of charging for the title search?
The opinion concluded that a lawyer may serve in the dual capacity of title insurance agent and attorney, but only with complete disclosure of the financial relationship and written consent, obtained …
In a class action where the defendant pays the plaintiffs' statutory attorney's fees, can plaintiffs' counsel negotiate those fees with the defendant before the underlying case is settled?
The opinion concluded no. Because the client and the attorney have competing interests in dividing a settlement fund, plaintiffs' counsel must abstain from any fee discussions with the defendant until…
If a husband consults a lawyer about divorcing his wife, not knowing that the lawyer's associate already represents the wife, must the wife's lawyer withdraw?
The opinion concluded yes. A prospective client who consults a lawyer for advice is a 'client' for the confidentiality rule (Rule 3.6(l)) even if the lawyer later declines the case, so the associate (…
Can a District Attorney defend county officers in a prisoner's civil rights suit while also prosecuting that same prisoner in a criminal case?
The opinion concluded no. A District Attorney may not represent the County Sheriff and a County Commissioner as defendants in a prisoner's civil rights action while simultaneously prosecuting that pri…
In a residential mortgage closing, who is the lawyer's client, and can one lawyer represent both the bank and the borrower on a title examination and loan documents?
The opinion concluded that the client's identity is set by the parties' agreement, and the borrower's payment of the fee does not by itself make the borrower the client (Rule 3.6(h)). The Commission r…
Can a lawyer who is also a marriage and family counselor use the title 'doctor,' combine the two practices on one letterhead, and coin a new name like 'juropsychotherapist'?
The opinion concluded that the attorney may not call himself 'doctor' on the basis of a J.D. or a master's in counseling, because 32 M.R.S.A. section 3270 controls the title and a lay person would ass…
Can a lawyer keep handling a case against a town after his law partner becomes the town's counsel, and is he required to stay in the case if he can?
The opinion concluded that the lawyer was in 'multiple employment' under Rule 3.4(c) because his partner now represented the town on an ongoing basis. He could continue the appeal only if, under Rule …
When two lawyers on opposite sides of a matter are spouses, partners, siblings, or other relatives, what must they and their firms do about the conflict?
The opinion concluded that Rule 3.4(a) requires disclosure to both clients in every such situation whenever the two lawyers have one of the listed relationships. Whether written consent is also requir…
Can a lawyer's firm sue a former client in a matter that may overlap with the firm's earlier representation of that client?
The opinion concluded that the Commission could not resolve, in an advisory opinion, the disputed factual question of whether the new suit shared subject matter with the firm's earlier representation …
Can a city's police legal advisor move into the city corporation counsel's office without creating a conflict of interest with the police officers he previously advised?
The opinion concluded yes. The Commission found the police legal advisor's client had always been the city itself, not the individual officers, so the transfer into the corporation counsel's office cr…
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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.