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 Maine lawyer pay a non-expert (fact) witness for time spent preparing for and giving testimony?
Yes. A Maine lawyer may pay a non-expert witness's reasonable expenses, lost wages, and the value of time spent testifying, preparing to testify, or otherwise helping prepare the case, so long as the …
What are a Maine lawyer's duties when representing someone selling their structured settlement payments?
The lawyer must satisfy Maine's Structured Settlement Protection Act (24-A M.R.S. § 2241 et seq.): be engaged by the seller (not the purchaser), take no compensation from the purchaser, and have compe…
Can a Maine lawyer put a jury-trial waiver for future lawyer-client disputes in the engagement letter?
Yes, but only with safeguards. The Rules do not prohibit a jury-waiver clause for future lawyer-client disputes, but the client's informed consent must be confirmed in writing and the client must be a…
Can a Maine lawyer pay a client's former non-lawyer Social Security advocate out of the lawyer's fee?
Not as a fee split. Rule 5.4 bars sharing fees with a non-lawyer, so the proper route is for the advocate to file a fee petition with the SSA; if that is not possible, the lawyer may refund part of th…
Can a Maine lawyer take a non-recourse loan from a litigation finance company to fund a contingency-fee case, repayable only if the case wins?
No. The opinion concludes a non-recourse litigation loan, repayable only if the lawyer recovers a fee and carrying a risk-based interest premium, amounts to sharing legal fees with a nonlawyer in viol…
If a lawyer agreed with a legal aid organization to take a case pro bono, can the lawyer later charge the client a fee or use the referral information against the client?
No. The opinion concludes that charging a fee beyond the pro bono agreement, without the organization's consent, is an excessive fee and a fraud on the client, and using the referral information to th…
Can a Maine lawyer accept a referral fee from an investment advisor for sending clients to the advisor?
No. The opinion concludes the arrangement is per se unethical: it is inherently unfair to the client under the rule against a lawyer's acquiring a pecuniary interest adverse to the client, and the fee…
Could a Maine lawyer use a bank line of credit to advance litigation costs and pass the interest on to the client?
Yes, with safeguards. The opinion concluded a lawyer could finance advanced litigation costs and pass the interest to the client when the cost is tied to the specific case, the client gives informed c…
If a bank insists on depositing a credit-card retainer into a lawyer's general business account, can the lawyer leave it there instead of in an IOLTA or trust account?
Only if the funds are truly non-refundable. The opinion concluded that any retainer funds that might still be refunded to the client are client funds and must go into an IOLTA or other identifiable tr…
Can a Maine lawyer require, in the initial engagement agreement, that the client arbitrate any future legal-malpractice claims?
Yes. The opinion concluded a prospective agreement to arbitrate malpractice claims is permitted under the Maine Bar Rules and is not an agreement 'limiting' the lawyer's liability, so long as it prese…
When a lawyer who took on a contingent-fee client leaves the firm, who must keep representing the client and advancing the litigation costs?
The opinion concluded that, under the Maine Bar Rules, a lawyer who assumed responsibility for the client and agreed to advance litigation costs cannot withdraw without complying with the withdrawal r…
Can a lawyer pay a living-trust company for 'document preparation' when the company refers clients to the lawyer to review the trusts it sells?
The opinion concluded it depends on whether the payment is fair compensation for genuine document-preparation services; if the fee is excessive, all or part of it is a disguised reward for the referra…
In an employment case where success might mean reinstatement rather than money, can a contingent fee be the greater of a percentage or an hourly fee, and can the percentage include interest, costs, and future benefits?
The opinion concluded yes on both. An alternative greater-of-percentage-or-hourly contingent fee is permitted, and the percentage may be applied to all amounts collected for the client (interest, cost…
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…
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 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…
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 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…
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…
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…
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…
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…
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 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.
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, …
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…
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…
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…
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 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 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…
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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.