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 has entered an appearance skip a hearing because the client chooses to proceed pro se?
The opinion reached no firm answer; the Commission split on whether skipping the hearing is a 'withdrawal' needing court leave, a question for the court, and advised counsel to notify the court and op…
May a lawyer negotiate a statutory attorney-fee claim before or at the same time as settling the underlying case?
The opinion concluded such negotiations are no longer unethical in Maine; after Evans v. Jeff D. removed the legal basis for the contrary Opinion No. 17, the Commission disapproved that opinion and le…
Which employees or officials of a represented municipality may an opposing lawyer contact directly without going through the municipal attorney?
The opinion concluded Rule 3.6(j) bars contact only with the officials who make decisions on the litigation and those who relay municipal policy to and receive advice from the municipal attorney; othe…
Can a lawyer send a statutorily required document, like a medical-records release request, directly to an adverse party the lawyer knows is represented by counsel?
The opinion concluded a request the statute commands be served personally on the party is 'authorized by law' and does not violate Rule 3.6(j), but counsel must mail a copy to the represented party's …
Can a law firm represent a client in litigation when the firm already owns a small ownership stake in that client?
The opinion concluded that Rule 3.7(c)'s bar on acquiring a proprietary interest in litigation does not reach a firm whose pre-existing interest in the client was acquired for reasons independent of a…
Can a lawyer let a non-law business she co-owns list 'Esq.' after her name on the company letterhead and promotional materials?
The opinion concluded that listing 'Esq.' after the lawyer-shareholder's name on a non-law business corporation's letterhead does not violate the advertising rule, because the designation is truthful …
May a lawyer write directly to the members of a represented municipality's council to protest the legal position it took as amicus curiae in a pending appeal?
The opinion concluded that sending such a communication directly to the council of a represented amicus municipality could violate the no-contact rule, because 'party' reaches any interested participa…
Can a lawyer agree to draft a complaint for a client to sign and file pro se, without entering an appearance, when the lawyer declines the full case?
The opinion concluded the lawyer did not act unethically by limiting the representation to preparing a non-frivolous complaint the client signed and filed pro se, and need not sign it or enter an appe…
If a client receives an unsolicited ex parte letter from a tribunal member favoring the client, must the lawyer disclose it to opposing counsel?
The opinion concluded the Bar Rules did not require disclosure, because the client's receipt of the unsolicited letter was a client 'secret' and no rule expressly required disclosing an administrative…
Can lawyers set up a privately owned, for-profit lawyer referral service funded by fees from participating attorneys or a split of referred-case fees?
The opinion concluded the proposed privately operated referral service violated both the rule allowing referral payments only to a bar-association service and the rule on fee division, so participatio…
Can a solo lawyer add a semi-retired 'of counsel' lawyer's name to the firm name, calling the firm 'A and B'?
The opinion concluded that naming the firm 'A and B' is permissible only if the relationship is in fact more than office-sharing (ongoing consultation and shared responsibility for clients); if so, th…
Can a law firm mail a legal-developments newsletter to non-clients, and does it have to disclose where its lawyers are licensed?
The opinion concluded the newsletter could be distributed to non-clients without violating the advertising or solicitation rules, with one exception: because it discussed several states' law, it had t…
Can a firm represent a wife in collecting child support from her ex-husband when the firm earlier drafted a will for the husband?
The opinion concluded the firm must disclose the prior relationship with the husband to the wife, and if the will work may have produced confidential information bearing on the support matter, the fir…
When a lawyer reasonably believes an elderly client can no longer act rationally in her own interest, may the lawyer tell a family member and suggest a conservatorship?
The opinion concluded that if the lawyer reasonably believes the client cannot act rationally in her own interest, a limited disclosure of that concern to family members is permitted, provided those m…
Can a defense lawyer in a personal injury case talk privately with the plaintiff's treating physician without the plaintiff's lawyer's permission?
The opinion concluded the Maine Bar Rules do not prohibit defense counsel from discussing the plaintiff's medical condition with the plaintiff's treating physician; whether such ex parte contact is ot…
Can a lawyer charge a contingent fee in a case under a statute that lets the court award attorney fees to the winner, and must the fee deal be disclosed to the court?
The opinion concluded a contingent fee is barred only if the fee-shifting statute makes the court's fee determination binding on all parties; otherwise the lawyer and client may contract a contingent …
Can a part-time probate judge's law firm represent a party in a case the judge acted on before recusing himself?
The opinion concluded the firm could not, because the probate judge had acted on the merits (appointing a special administrator and denying a transfer petition), and Rule 3.4(g) bars a lawyer from acc…
Can lawyers and an accountant co-own a corporation that markets combined legal and financial services to clients?
The opinion concluded the proposed venture would violate Rule 3.2(a)(2), because a business that holds out lawyers as providing legal services may not share proprietorship with non-lawyers, whether or…
Must a foreclosure lawyer withdraw if the other side will call him to testify about the attorney fees claimed in the judgment?
The opinion concluded withdrawal is not required, because the lawyer's expected testimony relates solely to the legal services he furnished (a Rule 3.4(j) exception), and in any event a partner could …
Can a law firm keep a deceased partner's name in the firm name and letterhead, and must it flag that he is dead?
The opinion concluded a firm may keep a deceased partner's name in the firm name without noting the death, but if his name appears in a letterhead list of active lawyers it must show he is deceased (d…
Can a lawyer refuse court appointments to defend indigent criminal defendants, and does declining violate the ethics rules?
The opinion concluded that accepting criminal appointments is one way to meet the aspirational public-interest-service rule, but because that rule says lawyers 'should' (not 'shall') serve, refusing c…
Can a lawyer agree to be paid only if the client's marital asset is sold at the end of a divorce case?
The opinion concluded a fee payable only upon the successful sale of a marital asset in a divorce is a contingent fee, which Rule 8(c) prohibits in divorce, annulment, and legal-separation cases.
When can a law firm return, destroy, or charge for storing a former client's closed file?
The opinion concluded a firm may return a closed file to a client who can responsibly receive it, may destroy a file only if it has no reasonably useful information for the client, and may not charge …
Can a lawyer who serves on a city council, or the lawyer's partners, litigate against the city or defend criminal cases in which city police officers testify?
The opinion concluded that a lawyer serving as a city councilor (and the lawyer's partners and associates) may not litigate against the city, but may defend criminal cases in which city police officer…
Can an insured direct the lawyer hired by their liability insurer to refuse to defend a claim, and what must the lawyer do if the client wants to feign a defense?
The opinion concluded the insured is the lawyer's client and may insist the lawyer refuse to cooperate with the insurer and assert every honest defense or none, but may not require the lawyer to feign…
Can a law firm offer and advertise a divorce mediation service to both spouses without representing either party?
The opinion concluded that a firm may offer a private divorce mediation service to both spouses if it represents neither, uses no confidences against either, and (where it formerly represented a party…
Can a criminal defense lawyer whose spouse works in the District Attorney's office defend cases prosecuted by that office, and is the DA's consent required?
The opinion concluded that, with full disclosure and the client's informed written consent, the defense lawyer may take the case even though the spouse is an assistant district attorney, so long as th…
Can a lawyer agree to pay a public interest organization a percentage of court-awarded attorney's fees on cases it refers?
The opinion concluded that an agreement to pay a non-lawyer public interest organization a percentage of the lawyer's court-awarded fees is prohibited fee splitting with a non-lawyer under Rule 3.3(e)…
Must a firm refund a retainer after withdrawing for a conflict, and can it make the client release malpractice or misconduct claims?
The opinion concluded the firm had to refund the part of the retainer not earned on the matter it withdrew from, could not require a release of future malpractice or of any ethical-misconduct claims, …
Will the Maine ethics committee issue an advisory opinion about another attorney's past or proposed conduct?
The opinion concluded the Commission declines to opine on conduct that has already occurred or on the proposed conduct of anyone other than the requesting attorney, unless a disciplinary authority ask…
Can a lawyer condition a malpractice settlement on the client withdrawing or not pursuing a disciplinary grievance?
The opinion concluded that a settlement provision requiring the complainant to withdraw or not pursue a grievance accomplishes little, because a settlement does not abate a grievance, and depending on…
Can a lawyer take a contingent fee paid as a share of the real estate that is the subject of the lawsuit?
The opinion concluded that a lawyer's outright ownership interest in property in litigation violates the bar on acquiring a proprietary interest in the subject of the litigation, but a properly drawn …
Can a lawyer defend criminal cases prosecuted by a District Attorney who is the lawyer's brother- or sister-in-law?
The opinion concluded that a lawyer may defend cases prosecuted by an in-law District Attorney's office whether or not the DA participates, but must disclose the relationship to every prospective clie…
When an insurer hires a lawyer to defend its insured, who is the client, and what can the lawyer do about coverage disputes and multiple insureds?
The opinion concluded the insured, not the insurer, is the lawyer's client even though the insurer pays; the lawyer may represent multiple insureds only if it is obvious he can adequately represent ea…
Can a lawyer who collects a debt referred by a collection agency pay the agency a share of what is collected?
The opinion concluded that paying the collection agency its own client-authorized commission, separate from the lawyer's legal fee, is not prohibited fee sharing with a non-lawyer; what the rules forb…
At what point does an attorney-client relationship form for purposes of the ethics rules, even without a signed fee agreement?
The opinion concluded that an attorney-client relationship can exist for ethical purposes even without a contract; on these facts it arose when the prospective client supplied the documents the lawyer…
If a criminal client gives a lawyer physical evidence of the crime, may the lawyer take and keep it, or must it be turned over to the prosecution?
The opinion concluded the Commission could not definitively answer, because the duty turns on the Maine Criminal Code, which the Commission lacks authority to interpret; it laid out the competing argu…
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…
In a criminal case, may defense counsel raise an insanity defense without the client's consent, or over the client's objection?
The opinion concluded the lawyer may not enter a not-guilty-by-reason-of-insanity plea without the client's consent. Once the court finds the client competent to stand trial, the decision to assert th…
Can a lawyer charge a guaranteed reasonable fee plus a higher bonus fee contingent on successfully obtaining the client's commercial development permits?
A majority of the Commission concluded the arrangement is permissible. The 'subject matter of litigation' in the proprietary-interest rule reaches administrative permit work, and a fee that is conting…
Does filing his own affidavit in a case disqualify a lawyer from continuing to appear as counsel under the lawyer-witness rule?
The opinion concluded that merely filing his own affidavit does not by itself violate the lawyer-witness disqualification rules, because an affidavit ordinarily fills an evidentiary gap on a necessary…
When a client files a grievance accusing a lawyer of mishandling another client's matter, may the lawyer reveal the other (non-complaining) client's confidences to defend himself?
The opinion concluded the self-defense exception reaches a third-party complaint, so the lawyer may disclose the non-complaining client's confidences as necessary to defend the grievance, but only wit…
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…
Can separate solo lawyers who share some cases describe their relationship on a letterhead as practicing 'in association with' each other without being partners?
The opinion concluded that a sole practitioner's letterhead reading 'An individual, general practice in association with [two named attorneys]' is not misleading under Rule 3.9. The phrase 'an individ…
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…
After withdrawing, may a lawyer hold back a deposition and other file materials from a former client until the client repays the costs the lawyer advanced for them?
The opinion concluded no. A lawyer may not condition turning over the former client's file, including a deposition and data whose costs the lawyer advanced, on reimbursement of those costs, because Ru…
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…
Can a lawyer be disciplined under the bar rules for violating the Maine Medical-Legal Cooperation Code, and did adopting Rule 3 make that Code unenforceable?
The opinion concluded that a violation of the Medical-Legal Cooperation Code is not automatically a violation of Rule 3. But because a lawyer can be guilty of conduct unworthy of an attorney even when…
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, …
Can a lawyer run a newspaper ad for personal injury work that asks 'INJURED?', promises to 'fight for you,' and offers a free consultation?
The opinion concluded the advertisement is permissible. It is not false, misleading, or deceptive under Rule 3.9(a) or (b): it makes no material misrepresentation, hedges with 'you may have a good cas…
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…
When a real estate closing check is routed through the seller's lawyer's trust account and that account turns out to be short, has the seller's lawyer committed an ethics violation, and did the buyer's lawyer?
The opinion concluded no ethical infraction was shown on the given facts, which did not reveal how or how quickly the seller was paid. The seller's lawyer had a duty to deliver the full purchase price…
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…
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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.