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 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, …
When a judge asks the winning lawyer to draft the final decree or judgment, must that lawyer send opposing counsel a copy of the proposed draft?
The opinion concluded yes. Maine Bar Rule 3.7(h)(2) bars a written communication to a judge about the merits of a contested matter pending before that judge without furnishing opposing counsel a copy.…
Can a law firm list its non-lawyer office manager, by name and titled 'office manager,' on the firm's letterhead?
The opinion concluded yes. Nothing in the Maine advertising rule or the other ethics rules specifically prohibits listing a non-lawyer on a lawyer's letterhead, so it is barred only if false, fraudule…
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 law firm pay its non-lawyer secretaries quarterly bonuses out of firm profits, on top of salary, without that counting as improper fee-sharing with non-lawyers?
The opinion concluded that an incentive compensation plan paying lay employees a share of firm profits on top of a fixed salary does not constitute improper sharing of legal fees under Maine Bar Rule …
Can a Maine lawyer keep the client trust account in an out-of-state bank that is closer to the office than any in-state bank?
The opinion concluded no. Maine Bar Rule 3.6(f)(1) requires client funds to be deposited in one or more bank accounts maintained in the state where the law office is situated, and it contains no excep…
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 lawyer promised a client's creditor that a debt would be paid from a settlement, and the client then wants to renegotiate, can the lawyer pay the creditor instead of the client?
The opinion concluded that whether the lawyer must turn the settlement proceeds over to the client or to the creditor depends on legal questions, such as the common law of agency, that fall outside th…
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 …
Is it unethical for a lawyer to bill in minimum time increments, like a tenth or a quarter of an hour, even when a task took less time than the full unit?
The opinion concluded that billing in reasonably accurate minimum time units is not an ethical impropriety. The Commission found that the small deviations from exact precision are de minimis in substa…
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…
Can a lawyer put a dollar cap or time limit on the firm's liability in a title opinion to limit malpractice exposure?
The opinion concluded no. Maine Bar Rule 3.6(b) forbids a lawyer from attempting to exonerate himself from, or limit, liability to a client for the lawyer's own malpractice or that of partners or sala…
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…
If a court orders a lawyer to reveal a client's confidential whereabouts, does complying violate the duty to preserve client confidences?
The opinion concluded no. Maine Bar Rule 3.6(l)(1) expressly excepts disclosures required by a court order from the duty to preserve client confidences, so a valid court order requiring the attorney t…
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…
Can a Maine lawyer mail a letter to an accident victim's relative soliciting the victim's personal injury case?
The opinion concluded that such a letter is treated as an indirect solicitation of the accident victim, even though addressed to a relative, and is not a per se violation; the letter here was carefull…
If a lawyer advertises a flat fee for an uncontested divorce, when can the lawyer depart from that fee without the ad being misleading?
The opinion concluded that an advertised flat fee for an uncontested divorce must be honored for any divorce the court hears as an uncontested matter, no matter how much negotiation it took to get the…
Can two lawyers who keep separate practices but share some cases hold themselves out to the public as 'Law Associates' on a joint letterhead?
The opinion concluded that using 'Law Associates' on a joint letterhead for this arrangement would be misleading and violate Rule 3.9(b). The two attorneys kept separate practices in separate towns an…
When a partner leaves a law firm to become a public official, can the firm keep using his name in the firm name if his name is dropped from the letterhead?
The opinion concluded no. Continuing to use the firm name A, B & C while Lawyer A serves as a public official and is no longer a member would be misleading under Rule 3.9, because it implies A is stil…
Does a lawyer violate the rule against limiting malpractice liability by denying that he made an error and refusing to correct it?
The opinion concluded no. Rule 3.6(b), which bars a lawyer from attempting to exonerate or limit his liability to a client for malpractice, is not violated when an attorney takes the position that he …
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 charge a contingent fee for enforcing a divorce judgment, based on the alimony or child support arrearage recovered?
The Commission declined to answer, because the question turns on a point of law (how to construe 19 M.R.S.A. section 722) rather than on interpreting the Maine Bar Rules. Rule 8(c) bars contingent fee…
Can a lawyer charge a contingent fee in a divorce based on the size of the property settlement obtained for the client?
The opinion concluded no. Maine Bar Rule 8(c)(2) specifically prohibits a contingent fee agreement in respect of procuring a divorce, and that bar applies even when the fee is tied to the property set…
If a prosecutor or an assistant DA is likely to be a witness in a case, must the whole District Attorney's office step aside from prosecuting it?
The opinion concluded yes. Under Maine Court Rule 3.5(b)(1), the entire District Attorney's office should be recused for trial when either the District Attorney or any of his assistants is likely to b…
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.