Rule 3. Code of Professional Responsibility
3.1 Scope and Effect
(a) This Code shall be binding upon attorneys as provided in Rule 1(a). Violation of these rules shall be deemed to constitute conduct "unworthy of an attorney" for purposes of 4 M.R.S.A. § 851 and Rule 7(e)(6)(A). Nothing in this Code is intended to limit or supersede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation; and the prohibition of certain conduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned.
(b) Although this Code is prospective in application, it may be considered as advisory by the Board of Overseers of the Bar and by the Grievance Commission in their disposition of disciplinary proceedings related to conduct occurring before its effective date.
3.2 Admission, Disclosure and Misconduct
(a) Unauthorized Practice.
(1) A lawyer shall not practice law in a jurisdiction where to do so would be in violation of law or court rule.
(2) A lawyer shall not aid any person, association, or corporation in the unauthorized practice of law.
(b) Misstatements on Admission.
(1) In connection with a lawyer's application for admission to the bar, a lawyer shall not make any statement which the lawyer knows or should know is false or misleading, nor shall the lawyer fail to disclose any fact or information which the lawyer knows or should know is material to such application.
(2) A lawyer shall not further the application for admission to the bar of another person known by the lawyer to be unqualified in respect to character, education, or other relevant attribute.
(c) Judicial Officers.
(1) A lawyer shall not make a false statement of fact, with knowledge that it is false or with reckless disregard as to its truth or falsity, concerning the qualifications or integrity of a judge or other adjudicatory officer in the court system or a candidate for election or appointment to office as a judge or other adjudicatory officer in the court system.
(2) A lawyer who is a candidate for appointment to judicial office or election as judge of probate shall comply with the applicable provisions of Canon 5 of the Maine Code of Judicial Conduct.
(d) Acts as a Public Official. A lawyer who holds public office shall not:
(1) Use that public position to influence, or attempt to influence, a court or other public body or official engaged in adjudicatory proceedings to act in favor of the lawyer, any partner or associate, or any lawyer affiliated with them, or of a client of any of them;
(2) Represent a client before an elected or appointed public body of which the lawyer is a member, or before any committee or subcommittee of that body. If a lawyer is required to decline representation by virtue of this paragraph, Rule 3.4(b)(3) imposes no disqualification upon the partners or associates of the lawyer or upon any other lawyer affiliated with the lawyer or the lawyer's firm, provided that full disclosure of the relationship is made upon the record at or before the commencement of the representation.
(e) Disclosure of Misconduct by Other Lawyers.
(1) A lawyer possessing unprivileged knowledge of a violation of the Maine Bar Rules that raises a substantial question as to another lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall report such knowledge to the appropriate disciplinary or investigative authority.
(2) A lawyer possessing unprivileged knowledge of a violation of the Code of Judicial Conduct that raises a substantial question as to the fitness for judicial office of a judge or other adjudicatory officer of a court system shall report such knowledge to the appropriate disciplinary or investigative authority.
(3) Notwithstanding paragraphs (1) and (2) of this subdivision, a lawyer serving in any capacity in a peer assistance or substance abuse treatment program approved by the Board of Overseers of the Bar shall not report or disclose any knowledge or evidence concerning another lawyer obtained as a result of a communication made by that lawyer while seeking or receiving peer assistance or substance abuse treatment under such program without that lawyer's informed written consent. This provision is not violated by the report or disclosure of that lawyer's intent to commit a crime or the information necessary to prevent the crime or to avoid subjecting others to the risk of harm, or by any report or disclosure otherwise required by law or by order of court.
(f) Other Misconduct. A lawyer shall not:
(1) directly or indirectly violate, circumvent, or subvert any provision of the Maine Bar Rules;
(2) engage in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects;
(3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(4) engage in conduct that is prejudicial to the administration of justice.
(g) Restrictions on Right to Practice. A lawyer shall not participate in offering or making:
(1) a partnership or employment agreement that restricts the right of a lawyer to practice after termination of the relationship, except as a condition of the right to receive post-termination payments or other post-termination benefits; or
(2) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a controversy between private parties.
(h) Responsibilities Regarding Law-Related Services.
(1) A lawyer shall be subject to the Code of Professional Responsibility with respect to the provisions of law-related services, as defined in paragraph (2), if the law-related services are provided:
(i) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal services to clients; or
(ii) by a separate entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services of the separate entity are not legal services and that the protections of the client-lawyer relationship do not exist.
(2) The term "law-related services" denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a non-lawyer.
3.3 Fees; Fee Arbitration; Fee Division
(a) Excessive Fees. A lawyer shall not enter into an agreement for, charge, or collect an illegal or excessive fee. A fee is excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment of the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The responsibility assumed, the amount involved, and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer performing the services;
(8) Whether the fee is fixed or contingent; and
(9) The informed written consent of the client as to the fee agreement.
(b) Credit Cards. A lawyer may accept payment by credit card for legal services.
(c) Fee Arbitration. A lawyer admitted to practice in this State shall submit, upon the request of the client, the resolution of any fee dispute in accordance with Rule 9.
(d) Fee Division. A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of the lawyer's law firm or office; unless:
(1) The client, after full disclosure, consents to employment of the other lawyer and to the terms for the division of the fees; and
(2) The total fee of the lawyers does not exceed reasonable compensation for all legal services they rendered to the client.
This subsection (d) does not prohibit payment to a former partner or associate pursuant to a separation or retirement agreement.
(e) Dividing Fees With Non-lawyers [Abrogated].
3.4 Identifying Commencement, Continuation, and Termination of Representation
(a) Disclosure of Interest, Commencement, and Termination: General Provisions.
(1) Disclosure of Interest. Before commencing any professional representation, a lawyer shall disclose to the prospective client any relationship or interest of the lawyer or of any partner, associate or affiliated lawyer that might reasonably give rise to a conflict of interest under these rules. A lawyer has a continuing duty to disclose to the client any information that, in light of circumstances arising after the commencement of representation, might reasonably give rise to such a conflict of interest.
(2) Commencement. Representation of a client shall be deemed to have commenced when the lawyer and the client, by conduct or communication, would each reasonably understand and agree that representation commences. Commencement of representation shall be judged by an objective, not a subjective, standard. It is the obligation of the attorney to clarify whether representation has commenced. If the client reasonably believes that representation has commenced and the attorney has failed to clarify that it has not, then representation shall have commenced.
(3) Termination. Representation of a client shall be deemed terminated upon the earlier of the following, provided that all conditions and terms of Rule 3.5 have been satisfied:
(i) A date expressly or implicitly stated in an oral or written statement by the client to the lawyer, terminating the representation;
(ii) A date expressly or implicitly communicated by the lawyer to the client, orally or in writing, sent to the client at the client's last known address, withdrawing from or terminating the representation; or
(iii) The completion of the services which were the subject of the representation.
Termination of representation does not relieve the lawyer of any obligation of confidentiality imposed by Rule 3.6(h) or of any other obligation imposed under these rules to prevent disclosure of information protected by that rule.
(4) Retention of Client Files. Upon termination of representation, a lawyer, or a lawyer’s successor, shall return to the client or retain and safeguard in a retrievable format all information and data in the lawyer’s possession to which the client is entitled. Unless information and data is returned to the client or as otherwise ordered by a court, the lawyer shall retain and safeguard such information and data for a minimum of eight (8) years, except for client records in the lawyer’s possession that have intrinsic value in the particular version, such as original signed documents, which must be retained and safeguarded until such time as they are out of date and no longer of consequence. A lawyer may enter into a voluntary written agreement with the client for a different period. In retaining and disposing of files, a lawyer shall employ means consistent with all other duties under these rules, including the duty to preserve confidential client information.
(b) Conflict of Interest: General Provisions.
(1) Basic Rule. A lawyer shall not commence or continue representation of a client if the representation would involve a conflict of interest, except as permitted by this rule. Representation would involve a conflict of interest if there is a substantial risk that the lawyer's representation of one client would be materially and adversely affected by the lawyer's duties to another current client, to a former client, or to a third person, or by the lawyer's own interests.
(2) Informed Consent. Whether a client has given informed consent to representation, when required by this rule, shall be determined in light of the mental capacity of the client to give consent, the explanation of the advantages and risks involved provided by the lawyer seeking consent, the circumstances under which the explanation was provided and the consent obtained, the experience of the client in legal matters generally, and any other circumstances bearing on whether the client has made a reasoned and deliberate choice.
(3) Imputed Disqualification.
(i) Except as otherwise provided in these rules, if a lawyer is required to decline or withdraw from representation under these rules for reasons other than health, no partner or associate, and no lawyer affiliated with the lawyer or the lawyer's firm, may commence or continue such representation.
(ii) If a lawyer or law student affiliated both with a law school legal clinic and with one or more lawyers outside the clinic is required to decline representation of any client solely by virtue of this paragraph (3), this paragraph imposes no disqualification on any other lawyer or law student who would otherwise be disqualified solely by reason of an affiliation with that individual, provided that the originally disqualified individual is screened from all participation in the matter at and outside the clinic and that full disclosure of the disqualifying circumstances and the screening measures is given to all affected parties.
(c) Conflict of Interest: Simultaneous Representation.
(1) Representation Prohibited. Notwithstanding the consent of each affected client, a lawyer may not simultaneously represent, or continue to represent, more than one client in the same matter or group of substantially related matters when the matter or matters are the subject of litigation or any other proceeding for dispute resolution and the clients are opposing parties.
(2) Representation Permitted With Consent. In all other cases, if a conflict of interest exists, a lawyer may not undertake or continue simultaneous representation of more than one client except with the informed consent of each affected client to representation of the others. Consent is required even though representation will not occur in the same matter or in substantially related matters. Simultaneous representation in the same matter or substantially related matters is undertaken subject to the following additional conditions:
(i) The lawyer must reasonably believe (A) that each client will be able to make adequately informed decisions, and (B) that a disinterested lawyer would conclude that the risk of inadequate representation is not substantial, considering any special circumstances affecting the lawyer's ability to provide adequate representation of each client, such as the fact that the clients may seek incompatible results or pursue mutually disadvantageous tactics, or that their adverse interests may outweigh their common interests.
(ii) While engaged in simultaneous representation, the lawyer shall consult with each client concerning the decisions to be made and the considerations relevant in making them, so that each client can make adequately informed decisions.
(iii) The lawyer shall terminate the simultaneous representation upon request of any client involved, or if any condition described in this paragraph (2) can no longer be met, and upon withdrawal shall cease to represent any of the clients in the matter or matters on which simultaneous representation was undertaken or in any substantially related matter, except with the consent of any clients who will no longer be represented.
(3) Settling Similar Claims. A lawyer who represents two or more clients shall not make or participate in the making of an aggregate settlement of the claims of or against those clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client has consented after being advised of the existence and nature of all the claims or pleas involved, and of the share of each person and the total amount of the settlement of a civil matter, or the participation of each person in the agreement in a criminal case.
(d) Conflict of Interest: Successive Representation.
(1) Interests of Former Clients.
(i) Except as permitted by this rule, a lawyer shall not commence representation adverse to a former client without that client's informed written consent if such new representation is substantially related to the subject matter of the former representation or may involve the use of confidential information obtained through such former representation.
(ii) When a lawyer becomes affiliated with a firm, the firm shall not accept or continue representation adverse to a former client of the lawyer, or the lawyer's previous law firm, without that client's informed written consent, if:
(A) Such representation involves the subject matter of former representation on which the lawyer personally worked; or
(B) The lawyer personally had acquired information protected by Rule 3.6(h) that is material to the new matter.
(iii) After a lawyer has terminated an affiliation with a firm, the firm shall not commence representation adverse to a former client represented by the formerly affiliated lawyer while affiliated with the firm without that client's informed written consent, if:
(A) The subject matter of the proposed representation is substantially related to the subject matter of the representation in which the formerly affiliated lawyer represented the client while affiliated with the firm; or
(B) Any lawyer remaining in the firm personally has information protected by Rule 3.6(h) that is material to the new matter.
(2) Successive Government and Private Representation.
(i) A lawyer shall not commence private representation in a matter in which the lawyer formerly represented the government of a state, or the United States, or any agency, entity, or political subdivision of the state or of the United States as client, or in which the lawyer participated personally and substantially as a public officer or employee, or when such private representation may involve the use of confidential information obtained through the former governmental representation or employment.
(ii) A lawyer shall not commence representation on behalf of the government of a state, or of the United States, or any agency, entity, or political subdivision of the state or of the United States, or participate as a public officer or employee, in a matter in which the lawyer participated personally and substantially on behalf of a former client or employer, or which may involve the use of confidential information obtained through such former representation, unless:
(A) Under applicable law, no one is or by lawful delegation may be authorized to act in the lawyer's stead in the matter, or
(B) Such new representation or participation is adverse to the interests of the former client or employer and the former client gives informed written consent.
(iii) If a lawyer is required to decline representation by virtue of subparagraph (i) of this paragraph, a disqualification imposed by Rule 3.4(b)(3)(i) may be waived by the informed written consent of the appropriate governmental officer or agency upon a showing that the lawyer required to decline representation will be screened from any participation in the matter and will be directly apportioned no part of the fees therefrom, and a finding that such waiver is not contrary to the public interest.
(iv) If a lawyer is required to decline representation or participation by virtue of subparagraph (ii) of this paragraph, Rule 3.4(b)(3)(i) imposes no disqualification on lawyers employed with the lawyer in a governmental agency unless the subsequent representation is adverse. If a lawyer is required to decline representation because a former client would not give the consent provided by subparagraph (ii)(B) of this paragraph, a disqualification imposed by Rule 3.4(b)(3)(i) may be waived by the informed written consent of the former client. Alternatively, Rule 3.4(b)(3)(i) does not apply to lawyers employed in a governmental agency with the lawyer required to decline representation if that lawyer is screened from any participation in the matter and if written notice is given to the former client to enable the client to ascertain compliance with the provisions of this subparagraph.
(e) Conflict of Interest: Fiduciary or Other Legal Obligation to Another. Without the client's informed consent, a lawyer may not undertake or continue to represent a client in any matter with respect to which the lawyer has a fiduciary or other legal obligation to another person if the obligation presents a substantial risk of materially and adversely affecting the lawyer's representation of the client.
(f) Conflict of Interest: Lawyer's Own Interest.
(1) General Rule. Except with the informed written consent of the client, a lawyer shall not commence representation if there is a substantial risk that any financial interest or significant personal relationship of the lawyer will materially and adversely affect the lawyer's representation of the client.
(2) Avoiding Adverse Interest.
(i) A lawyer shall not knowingly acquire a property or pecuniary interest adverse to a client, or enter into any business transaction with a client, unless:
(A) The transaction and terms in which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted to the client in manner and terms which should have reasonably been understood by the client;
(B) The client is advised and given a reasonable opportunity to seek independent professional advice of counsel of the client's choice on the transaction; and
(C) The client consents in writing thereto.
(ii) A lawyer shall not directly or indirectly purchase property at a probate, foreclosure, or judicial sale in an action or proceeding in which the lawyer or any partner or associate appears as attorney for a party or is acting as executor, trustee, administrator, guardian, conservator, or other personal representative.
(iii) Prior to conclusion of all aspects of the matter giving rise to representation of a client, the lawyer shall not enter into any arrangement or understanding with a client or a prospective client by which the lawyer acquires an interest in publication rights with respect to the subject matter of the representation or proposed representation.
(iv) A lawyer shall not prepare an instrument giving the lawyer or a parent, child, sibling, or spouse of the lawyer any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.
(v) A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice; nor shall a lawyer settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith. This rule shall not prevent a lawyer from settling or defending a malpractice claim.
(3) Familial Relations. A lawyer related to another lawyer as parent, child, sibling or spouse shall not, in the same or a substantially related matter, undertake or continue representation adverse to a person who the lawyer knows is represented by the related lawyer or a lawyer affiliated with that lawyer without the client's informed consent.
(4) Exception to Imputed Disqualification. If a lawyer is required to decline representation by virtue of a familial relationship under paragraph (3) of this subdivision or any other significant personal relationship under paragraph (1) of this subdivision, Rule 3.4(b)(3)(i) imposes no disqualification upon the partners or associates of the lawyer or upon any other lawyer affiliated with the lawyer or the lawyer's firm.
(g) Other Restrictions.
(1) When Lawyer May Be Called as Witness.
(i) A lawyer shall not commence representation in contemplated or pending litigation if the lawyer knows, or should know, that the lawyer is likely or ought to be called as a witness. This rule does not apply where the predictable testimony will relate solely to uncontested matters or to legal services furnished by the lawyer, or where the distinctive value of the lawyer in the particular case would make denial a substantial hardship on the client.
(ii) A lawyer may commence representation in contemplated or pending litigation if another lawyer in the lawyer's firm is likely or ought to be called as a witness, unless such representation is precluded by subdivisions (b), (c), (d), (e), or (f) of this rule.
(2) Prior Judicial Activity.
(i) A lawyer shall not commence representation in a matter in which the lawyer participated personally and substantially as a judge or judicial law clerk. A lawyer shall not commence representation in a matter in which the lawyer participated personally and substantially as a nonjudicial adjudicative officer, arbitrator (other than a party's chosen member of a multi-member panel), or law clerk to such a person, unless all parties to the proceeding give informed consent.
(ii) If a lawyer is required to decline representation by virtue of this paragraph, Rule 3.4(b)(3)(i) imposes no disqualification upon the partners or associates of the lawyer or upon any other lawyer affiliated with the lawyer or the lawyer's firm, provided that the lawyer required to decline representation is screened from any participation in the matter and will be directly apportioned no part of the fees therefrom, and full disclosure of the circumstances and the measures taken to screen the lawyer required to decline representation is given to all affected parties.
(3) Non-payment of Prior Lawyer. A lawyer shall not refuse to commence or continue representation on the ground that the client's prior lawyer has not been paid.
(4) Other Violations. A lawyer may not commence or continue representation that the lawyer knows or should know would lead to a violation of other provisions of these rules.
(h) Mediation. A lawyer may act as mediator for multiple parties in any matter, whether or not their interests are opposing or adverse and whether or not they are represented by independent counsel, subject to the following conditions:
(1) The lawyer must clearly inform the parties of the nature and limits of the lawyer's role as mediator and should disclose any interest or relationship likely to affect the lawyer's impartiality or that might create an appearance of partiality or bias. The parties must consent to the arrangement unless they are in mediation pursuant to a legal mandate.
(2) The role of mediator does not create a lawyer-client relationship with any of the parties and does not constitute representation of any of them. The lawyer shall not attempt to advance the interests of any of the parties at the expense of any other party.
(3) While acting as mediator, the lawyer may not represent any of the parties in court or in the matter under mediation or any related matter. The lawyer must reasonably believe that the mediation can be undertaken impartially and without improper effect on any other responsibilities that the lawyer may have to any of the parties.
(4) The lawyer may draft a settlement agreement or instrument reflecting the parties' resolution of the matter but must advise and encourage any party represented by independent counsel to consult with that counsel, and any unrepresented party to seek independent legal advice, before executing it.
(5) The lawyer shall withdraw as mediator if any of the parties so requests, or if any of the conditions stated in this subdivision (h) is no longer satisfied. Upon withdrawal, or upon conclusion of the mediation, the lawyer shall not represent any of the parties in the matter that was the subject of the mediation, or in any related matter.
(6) The lawyer shall not use any conduct, discussions, or statements made by any party in the course of the mediation to the disadvantage of any party to the mediation or, without the informed consent of the parties, to the advantage of the lawyer or a third person.
(7) If a lawyer is required to decline representation by virtue of this paragraph, Rule 3.4(b)(3)(i) imposes no disqualification upon the partners or associates of the lawyer or upon any other lawyer affiliated with the lawyer or the lawyer's firm, provided that the lawyer required to decline representation is screened from any participation in the matter and will be directly apportioned no part of the fees therefrom, and full disclosure of the circumstances and the measures taken to screen the lawyer required to decline representation is given to all affected parties.
(i) Limited Representation. A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client provides informed consent after consultation. If, after consultation, the client consents in writing (the general form of which is attached to these Rules), an attorney may enter a limited appearance on behalf of an otherwise unrepresented party involved in a court proceeding. A lawyer who signs a complaint, counterclaim, cross-claim or any amendment thereto which is filed with the court, may not thereafter limit representation as provided in this rule.
(j) Non-Profit and Court-Annexed Limited Legal Service Programs. A lawyer who, under the auspices of a non-profit organization or a court-annexed program, provides limited representation to a client without expectation of either the lawyer or the client that the lawyer will provide continuing representation in the matter is subject to the requirements of Rules 3.4(a)-(e) only if the lawyer knows that the representation of the client involves a conflict of interest.
[The 2001 Advisory Note provides significant explanation of the rule changes to accomplish limited representation. They are included at this point to clarify application of the rule. The Advisory Notes are not part of the rule.]
Advisory Notes--2001
Both lawyer and client have authority and responsibility to determine the objectives and means of representation. The scope of services to be provided by a lawyer may be limited by agreement with the client. In situations where the lawyer will not be providing limited representation in court, the limited representation agreement need not be in writing, but must be reasonable under the circumstances. If, for example, a client's objective is limited to securing general information about the law and the client's needs in order to handle a common and typically uncomplicated legal problem, the lawyer and the client may agree that the lawyer's services will be limited to a brief telephone consultation or office visit. Such a limitation, however, will not be reasonable if the time allotted was not sufficient to yield advice upon which the client can rely. Although an agreement for limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. A lawyer's advice may be based upon the scope of the representation agreed upon by the lawyer and client, and the client's representation of the facts.
The reasons a writing memorializing the agreement is not required in all contexts include (by way of example) the problem non-profit and court annexed legal services programs face in securing such a writing from their clients, and the time entering into the agreement takes in proportion to the time consumed by the limited representation itself. Nevertheless, to the extent a writing may be obtained, it is a better practice to do so for both the lawyer and the client.
In situations involving limited representation in court of an otherwise unrepresented party, a written memorandum of the scope of representation is required. A lawyer providing limited representation in court proceedings should include in the consultation with the client an explanation of the risks and benefits of the limited representation. The general form of the agreement is attached to the Code of Professional Responsibility.
Limited representation may not be provided by a lawyer who signs a complaint, counterclaim, cross-claim or any amendment thereto, which is filed with the court.
Legal service organizations, courts, and various non-profit organizations have established programs through which lawyers provide limited legal services--typically advice--that will assist persons with limited means to address their legal problems without further representation by a lawyer. In these programs, such as legal advice hotlines, advice-only clinics, lawyer for the day programs in criminal or civil matters, or unrepresented party counseling programs, an attorney-client relationship is established, but there is no expectation that the lawyer representation of the client will continue beyond the limited consultation. It is the purpose of this Rule to provide guidance to lawyers about their professional responsibilities when serving a client in this capacity.
Because a lawyer who is representing a client in the circumstances addressed by this Rule is not able to check systematically for conflicts of interest, paragraph (j) only requires compliance with Rules 3.4(a)-(e) if the lawyer knows, based on reasonable recollection and information provided by the client in the ordinary course of the consultation, that the representation presents a conflict of interest. A conflict of interest that would otherwise be imputed to a lawyer because of the lawyer association with a firm will not preclude the lawyer from representing a client in a limited services program. Nor will the lawyer participation in such a program preclude the lawyer's firm from undertaking or continuing the representation of clients with interests adverse to a client being represented under the program's auspices.
LIMITED REPRESENTATION AGREEMENT
(Used in conjunction with Rule 3.4(i) the following form shall be sufficient to satisfy the rule. The authorization of this form shall not prevent the use of other forms consistent with this rule.)
To Be Executed in Duplicate
Date: , 20
1. The client, , retains the attorney, , to perform limited legal services in the following matter: v. .
2. The client seeks the following services from the attorney (indicate by writing "yes" or "no"):
-
3. The client shall pay the attorney for those limited services as follows:
a. Hourly Fee:
The current hourly fee charged by the attorney or the attorney's law firm for services under this agreement are as follows:
-
Unless a different fee arrangement is established in clause b.) of this paragraph, the hourly fee shall be payable at the time of the service. Time will be charged in increments of one-tenth of an hour, rounded off for each particular activity to the nearest one-tenth of an hour.
b. Payment from Deposit:
For a continuing consulting role, client will pay to attorney a deposit of $ , to be received by attorney on or before , and to be applied against attorney fees and costs incurred by client. This amount will be deposited by attorney in attorney trust account. Client authorizes attorney to withdraw funds from the trust account to pay attorney fees and costs as they are incurred by client. The deposit is refundable. If, at the termination of services under this agreement, the total amount incurred by client for attorney fees and costs is less than the amount of the deposit, the difference will be refunded to client. Any balance due shall be paid within thirty days of the termination of services.
c. Costs:
Client shall pay attorney out-of-pocket costs incurred in connection with this agreement, including long distance telephone and fax costs, photocopy expense and postage. All costs payable to third parties in connection with client case, including filing fees, investigation fees, deposition fees, and the like shall be paid directly by client. Attorney shall not advance costs to third parties on client behalf.
4. The client understands that the attorney will exercise his or her best judgment while performing the limited legal services set out above, but also recognizes:
a. the attorney is not promising any particular outcome.
b. the attorney has not made any independent investigation of the facts and is relying entirely on the client limited disclosure of the facts given the duration of the limited services provided, and
c. the attorney has no further obligation to the client after completing the above described limited legal services unless and until both attorney and client enter into another written representation agreement.
5. If any dispute between client and attorney arises under this agreement concerning the payment of fees, the client and attorney shall submit the dispute for fee arbitration in accordance with Rule 9(e)-(k) of the Maine Bar Rules. This arbitration shall be binding upon both parties to this agreement.
WE HAVE EACH READ THE ABOVE AGREEMENT BEFORE SIGNING IT.
Signature of client Signature of attorney
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3.5 Withdrawal From Employment
(a) General Rules.
(1) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.
(2) A lawyer shall not withdraw from employment until the lawyer has taken reasonable steps to avoid foreseeable prejudice to the rights of the lawyer's client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.
(3) Withdrawal shall not be conditioned upon payment by the client for services to date; and a lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.
(4) It shall not be a violation of 3.5(a) to cease or limit representation in accordance with Rule 3.4(i).
(b) Mandatory Withdrawal.
(1) If a lawyer knows, or should know, that the lawyer or a lawyer in the lawyer's firm is likely or ought to be called as a witness in litigation concerning the subject matter of the lawyer's employment, the lawyer and the lawyer's firm shall withdraw from representation at the trial unless the court otherwise orders. This rule does not apply to situations in which the lawyer would not be precluded from accepting employment under Rule 3.4(g)(1)(ii).
(2) A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment if:
(i) The lawyer knows, or should know, that the client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken, merely for the purpose of harassing or maliciously injuring any person;
(ii) The lawyer knows, or should know, that the lawyer's continued employment will result in violation of these Rules;
(iii) The lawyer's mental or physical condition renders it unreasonably difficult for the lawyer to carry out the employment effectively; or
(iv) The lawyer is discharged by the client.
(c) Permissive Withdrawal. Other than as provided in these rules a lawyer may not request permission to withdraw in matters pending before a tribunal, and the lawyer may not withdraw in other matters, unless:
(1) The client insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law;
(2) The client personally seeks to pursue an illegal course of conduct;
(3) The client insists that the lawyer pursue a course of conduct that is illegal or that is prohibited under these rules;
(4) The client by other conduct renders it unreasonably difficult for the lawyer to carry out the lawyer's responsibilities;
(5) The client insists that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer even though not prohibited by these rules;
(6) The client deliberately disregards an agreement with, or obligation to, the lawyer as to expenses or fees;
(7) The lawyer's continued employment is likely to result in a violation of these rules;
(8) The lawyer's inability to work with the client or with co-counsel indicates that the best interests of the client likely will be served by withdrawal;
(9) The lawyer's mental or physical condition renders it difficult for the lawyer to carry out the employment effectively;
(10) The client knowingly and freely assents to termination of the employment; or
(11) The lawyer believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.
3.6 Conduct During Representation
(a) Standards of Care and Judgment. A lawyer must employ reasonable care and skill and apply the lawyer's best judgment in the performance of professional services. A lawyer shall be punctual in all professional commitments. A lawyer shall take reasonable measures to keep the client informed on the status of the client's affairs. A lawyer shall not
(1) handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle, without first associating with another lawyer who is competent to handle it;
(2) handle a legal matter without preparation adequate in the circumstances, provided that, with respect to the provision of limited representation, the lawyer may rely on the representations of the client and the preparation shall be adequate within the scope of the limited representation; or
(3) neglect a legal matter entrusted to the lawyer.
(b) [Abrogated]
(c) Threatening Prosecution. A lawyer shall not present, or threaten to present, criminal, administrative, or disciplinary charges solely to obtain an advantage in a civil matter.
(d) Advising Violation of Law. A lawyer shall not counsel or assist a client in the violation of any law, rule, or order of a tribunal; but a lawyer may take appropriate steps in good faith to test the validity of any law, rule, or order of a tribunal.
(e) Preserving Identity of Funds and Property.
(1) All funds of clients paid to a lawyer or law firm, other than retainers and advances for costs and expenses, shall be deposited in one or more identifiable accounts maintained in the state in which the law office is situated at a financial institution authorized to do business in such state. No funds belonging to the lawyer or law firm shall be deposited therein except as follows:
(i) Funds reasonably sufficient to pay institutional service charges may be deposited therein; and
(ii) Funds belonging in part to a client and in part presently or potentially to a lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client; in that event the disputed portion shall not be withdrawn until the dispute is finally resolved.
(2) A lawyer shall:
(i) Promptly notify a client of the receipt of the client's funds, securities, or other properties;
(ii) Identify and label securities and properties of a client promptly upon receipt and place them in a safe-deposit box or other place of safekeeping as soon as practicable;
(iii) Maintain complete records of all funds, securities and other properties of a client coming into possession of the lawyer and render prompt and appropriate accounts to the client regarding them; and
(iv) Promptly pay or deliver to the client, as requested by the client, the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.
(3) Unless the client directs otherwise, when a lawyer or law firm reasonably expects that client funds will earn net interest, as defined in paragraph (7) of this subdivision, such funds shall be deposited in a client trust account that may be either
(i) A separate, insured, interest-bearing account for the particular client or client's matter, the net interest on which will be paid or credited to the client; or
(ii) A pooled, insured, interest-bearing account with subaccounting by the financial institution or the lawyer or law firm, which will provide for computation of the interest earned by each client's funds and the payment or crediting of each client's net interest to the client.
(4) Unless a lawyer practicing alone, or a law firm, has made an annual election, or holds United States government funds, as provided in paragraph (5) of this subdivision, all funds of any client held by the lawyer or law firm that the lawyer or law firm reasonably and in good faith expects will not earn net interest as defined in paragraph (7) of this subdivision shall be deposited in one or more pooled, insured, interest-bearing accounts, each of which shall be subject to the following conditions:
(i) The financial institution in which the account is established shall be authorized to do business in
Maine
and shall be insured by either the Federal Deposit Insurance Corporation or the National Credit Union Administration Share Insurance Fund.
(ii) Funds deposited in the account shall be subject to withdrawal upon request and without delay.
(iii) The lawyer or law firm shall file with the Board of Overseers of the Bar an order directing the financial institution to remit any net interest that may accrue on the account to the Maine Bar Foundation, a nonprofit corporation incorporated under the laws of the State of Maine that has in force a determination letter from the Internal Revenue Service that it qualifies as an exempt organization under Section 501(c)(3) of the Internal Revenue Code of 1954 as from time to time amended. Such an order shall be filed by
July 31, 1994
, for any account maintained by the lawyer or law firm under this paragraph (4) as of
July 1, 1994
, and within 30 days after the subsequent opening of any account that is to be maintained hereunder.
(iv) No interest on the account shall be paid to the lawyer or law firm, and the lawyer or law firm shall not receive any direct or indirect pecuniary benefit by reason of the remittance of interest in accordance with subparagraph (iii).
(v) The lawyer or law firm shall give the public notice, by a prominently displayed sign or other reasonable means, of the lawyer's or firm's standing practice to use such an account and that the Maine Bar Foundation is the recipient of the net interest therefrom.
(5) A lawyer practicing alone, or a law firm, may elect to deposit all client funds that are reasonably and in good faith not expected to earn net interest, as defined in paragraph (7) of this subdivision, in one or more insured, non-interest bearing accounts, instead of in the interest-bearing account or accounts required by paragraph (4) of this subdivision. Such election shall be effective only upon written notice to the Board of Overseers of the Bar given not later than
July 31, 1994
, and thereafter annually in conjunction with the filing of the list of trust accounts required by Rule 6(a)(2). A lawyer practicing alone, or a law firm, holding funds of the
United States
government that by law may not earn interest shall deposit those funds in one or more insured, non-interest bearing accounts, whether or not the lawyer or firm has made the election provided by this paragraph for other client funds.
(6) If the circumstances on which a lawyer or law firm has based a determination to deposit client funds in an account under either paragraph (4) or paragraph (5) of this subdivision change, so that net interest may reasonably be expected to be earned on such funds, the lawyer or law firm shall transfer the principal amount originally deposited to the appropriate account established under paragraph (3) of this subdivision.
(7) For purposes of this rule, the term "net interest" means the net of interest earned on a particular amount of one client's funds over the administrative costs allocable to that amount. In estimating the gross amount of interest to be earned, the lawyer or law firm shall consider the principal amount involved; available interest rates; and the time the funds are likely to be held, taking into account the likelihood of delay in any relevant proceeding or transaction.
(8) For purposes of this rule, the term "administrative costs" means that portion of the following costs properly allocable to a particular amount of one client's funds paid to a lawyer or law firm:
(5) A lawyer who receives information clearly establishing that a client or former client has, during the representation, perpetrated a fraud upon any person or tribunal shall promptly call upon the client or former client to rectify the same; and if the client or former client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a privileged communication. If a person other than a client or former client has perpetrated a fraud upon a tribunal, the lawyer shall promptly reveal the fraud to the tribunal.
(i) Avoiding Misreliance. If a lawyer knows or should know that the lawyer's advice or opinion may be communicated to a person other than the lawyer's client, the lawyer shall take reasonable steps to prevent that person from believing that the lawyer represents that person's interests as well as the interests of the client.
(j) Client With Diminished Mental Capacity.
(1) When a client's ability to make adequately considered decisions in connection with the representation is impaired because of mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(2) When a lawyer reasonably believes that a normal client-lawyer relationship cannot be maintained as provided in paragraph (1) of this subdivision because the client lacks sufficient understanding or capacity to communicate or to make adequately considered decisions in connection with the representation, the lawyer may consult family members, adult protective agencies, or other individuals or entities that have the ability to take action to protect the client, provided that
(i) The lawyer reasonably believes that the client is at risk of physical harm or substantial financial loss;
(ii) The lawyer does not consult any individual or entity that the lawyer knows or reasonably should know has an interest adverse to an interest of the client; and
(iii) The lawyer consults only those individuals or entities reasonably necessary to protect the client's interests.
(3) In consulting individuals and entities as provided in paragraph (2) of this subdivision, the lawyer may disclose confidences and secrets of the client to the extent that disclosure is necessary to protect the client's interests.
3.7 Conduct During Litigation
(a) Improper Legal Action. A lawyer shall not file a suit, assert a position, delay a trial, or take other action on behalf of a client when the lawyer knows, or should know, that such action would merely serve to harass or maliciously injure another.
(b) Improper Concealment, Statement or Evidence. A lawyer shall not knowingly make a false statement, conceal information legally required to be revealed, or participate in the creation or preservation of false evidence.
(c) Interest in Litigation. A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
(1) Assert a lien granted by law against the proceeds of such action or litigation to secure the lawyer's fee or expenses. This paragraph does not authorize an attorney to assert a lien on a client's file in order to secure payment of a fee. The assertion of such a lien (if any exists) is improper; and
(2) Contract with a client for a reasonable contingent fee as provided in Rule 8.
(d) Financial Assistance. While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client, except that a lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and expenses of obtaining and presenting evidence.
(e) Adversary Conduct.
(1) In appearing in a professional capacity before a tribunal, a lawyer shall:
(i) Employ, for the purpose of maintaining the causes confided to the lawyer, such means only as are consistent with truth, and shall not seek to mislead the judge, jury, or tribunal by any artifice or false statement of fact or law;
(ii) Disclose, unless privileged or irrelevant, the identities of all the clients the lawyer represents.
(2) In appearing in a professional capacity before a tribunal, a lawyer shall not:
(i) Intentionally misquote to a judge, jury, or tribunal the language of a book, statute, or decision or, with knowledge of its invalidity and without disclosing such knowledge, cite as authority, a decision that has been overruled or a statute that has been repealed or declared unconstitutional;
(ii) State or allude to any matter that the lawyer has no reasonable basis to believe is relevant to the case or will not be supported by admissible evidence;
(iii) Ask any question that the lawyer has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person;
(iv) Assert personal knowledge of the facts at issue, except when testifying as a witness;
(v) Assert a personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but a lawyer may argue, on the lawyer's analysis of the evidence, for any position or conclusion with respect to the matters stated therein; or
(vi) Engage in undignified or discourteous conduct that is degrading to a tribunal.
(f) Communication With Jurors.
(1) At no time shall a lawyer connected with the trial of a case communicate extrajudicially, directly or indirectly, with a juror, with anyone the lawyer knows to be a member of the pool from which the jury will be selected, or with any member of such person's family.
(2) After discharge of a juror from further jury service, a lawyer may ask or answer questions and make comments to the former juror provided the questions or comments are not intended to harass or embarrass the juror or influence the juror's action in future jury service.
(3) A lawyer shall reveal promptly to the court knowledge of improper conduct by a juror or member of the jury pool, or by another toward a juror or member of the jury pool, or a member of the juror's or jury-pool member's family.
(g) Contact With Witnesses. A lawyer shall not:
(1) Suppress any evidence that the lawyer or a client has a legal obligation to reveal or produce;
(2) Advise, or directly or indirectly cause, a person to hide or to leave the jurisdiction of a tribunal for the purpose of making that person unavailable as a witness therein; or
(3) Directly or indirectly pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the testimony of the witness or the outcome of the case; but unless prohibited by law, a lawyer may advance, guarantee, or acquiesce in payment of:
(i) Expenses reasonably incurred by a witness in attending or testifying;
(ii) Reasonable compensation to a witness for his loss of time in attending or testifying; and
(iii) A reasonable fee for the professional services of an expert witness.
(h) Contact With Officials.
(1) A lawyer shall not directly or indirectly give or lend anything of value to a judge, official, or employee of a tribunal unless the personal or family relationship between the lawyer and the judge, official, or employee is such that gifts are customarily given and exchanged. This paragraph does not preclude contributions to election campaigns of public officers.
(2) In the absence of opposing counsel, a lawyer shall not directly or indirectly communicate with or argue before a judge or tribunal upon the merits of a contested matter pending before such judge or tribunal, except in open court; nor shall the lawyer, without furnishing opposing counsel with a copy thereof, address a written communication to a judge or tribunal concerning the merits of a contested matter pending before such judge or tribunal. This paragraph does not preclude communications permitted by rule of court. For purposes of this paragraph the term "opposing counsel" includes a party who has no counsel.
(i) Duty of Public Prosecutor.
(1) A lawyer shall not institute or cause to be instituted criminal charges when the lawyer knows, or it is obvious, that the charges are not supported by probable cause.
(2) A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to a defendant without counsel, of the existence of evidence that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.
(3) A public prosecutor or other government lawyer shall not conduct a civil or criminal case against any person whom the lawyer represents or has represented as a client.
(4) A public prosecutor or other government lawyer shall not conduct a civil or criminal case against any person relative to a matter in which the lawyer represents or has represented the complaining witness.
(j) Extra-Judicial Publicity. A lawyer involved in the prosecution or defense of a criminal matter or in representing a party to a civil cause shall not make or participate in making any extra-judicial statement which poses a substantial danger of interference with the administration of justice.
3.8 Advertising Fields of Practice
A lawyer may communicate, publicly and otherwise, truthful statements identifying fields of law in which the lawyer practices, refrains from practice, concentrates, or specializes, or to which the lawyer's practice is limited. In doing so a lawyer may use phrases and titles recognized by established custom, such as "Trademark Attorney" or "Admiralty Lawyer". A lawyer shall not represent publicly or imply that the lawyer has recognized, designated or certified expertise in a field of law, except that:
(a) Practice Before Agencies and Courts. A lawyer may identify the government agencies and courts before which the lawyer is admitted to practice, using appropriate language such as "member, U.S. Supreme Court bar", or customary phrases such as "Patent Attorney."
(b) Other Permissible Communications. A lawyer may communicate truthful statements reporting certification or other recognition of expertise conferred by a named organization that has been approved by the Maine Board of Overseers of the Bar as a certifying organization for the field of law to which the statement pertains.
3.9 Publicity, Advertising and Solicitation
(a) False Advertising Forbidden. A lawyer shall not, on behalf of the lawyer or any affiliated lawyer, knowingly use, or assist or participate in the use of, any form of public communication containing a false, fraudulent, misleading, or deceptive statement or claim. A public communication is any communication, through mass media, direct mail, or other means including professional cards, announcements, letterheads, office signs, and similar accoutrements of a law practice.
(b) False Advertising Defined. Without limitation, a false, fraudulent, misleading, or deceptive statement or claim includes a statement or claim that:
(1) Contains a material misrepresentation of fact or law;
(2) Omits to state any material fact necessary to make the statement, in the light of all circumstances, not misleading;
(3) Is intended or is likely to create an unjustified expectation;
(4) Violates Rule 3.8;
(5) Is intended, or is likely, to convey the impression that the lawyer is in a position to influence improperly any court, tribunal, or other public body or official; or
(6) Contains a representation or implication that is likely to cause an ordinary prudent person to misunderstand or be deceived thereby, or fails to contain reasonable warnings or disclaimers necessary to make the representation or implication not deceptive.
(c) Other Improper Public Communication. A lawyer shall not, on behalf of the lawyer or any affiliated lawyer, knowingly use, or assist, or participate in the use of, any form of public communication that:
(1) Is intended or is likely to result in a legal action being taken, or a legal position being asserted, merely to harass or maliciously injure another; or
(2) Appeals primarily to fear, greed, desire for revenge, or similar emotion.
(d) Paid Publicity. A lawyer shall not compensate or give anything of value to a representative of the press, radio, television, or other communication medium in anticipation of, or in return for, professional publicity in a news item. A paid advertisement must be identified as such unless it is apparent from the context that it is a paid advertisement. If a paid advertisement is communicated to the public by use of radio or television, it shall be prerecorded, approved for broadcast by the lawyer, and the prerecording as approved shall be retained by the lawyer for two years. If a public communication is transmitted through the mails, a copy of such communication shall be retained by the lawyer for two years following the mailing.
(e) Multi-jurisdictional Disclosure. A multi-jurisdictional partnership shall disclose, in all public communications containing the names of affiliated lawyers, jurisdictional limitations of those lawyers not licensed to practice in the jurisdiction in which the communication is published.
(f) Recommendation or Solicitation of Employment.
(1) A lawyer shall not solicit employment on behalf of the lawyer or any affiliated lawyer through any form of personal contact:
(i) By using any statement, claim, or device that would violate this rule if part of a public communication;
(ii) By using any form of duress or intimidation, unwarranted suggestions or promises of benefits, or engaging in deceptive, vexatious, or harassing conduct; or
(iii) When the circumstances create an appreciable risk of undue influence by the lawyer or ill-considered action by the person being solicited. Without limitation, such circumstances will be deemed to exist as to the person solicited if that person is in the custody of a law enforcement agency or under treatment in a hospital, convalescent facility, or nursing home, or if that person's mental faculties are impaired in any way or for any reason. Notwithstanding the foregoing, such circumstances shall be deemed not to exist when a lawyer is discussing employment with any person who has, without solicitation by the lawyer or anyone acting for the lawyer, sought the lawyer's advice regarding employment of a lawyer.
(2) A lawyer shall not compensate, or give anything of value to, a person or organization to recommend or secure employment by a client, or as a reward for having made a recommendation resulting in employment by a client, except that a lawyer may pay for public communication permitted by these rules and may pay the usual and reasonable fees or dues charged by a lawyer referral service operated, sponsored, or approved by a bar association.
(3) A lawyer shall not knowingly assist or authorize any other person or organization to engage in conduct that would violate this rule if engaged in by the lawyer personally, nor shall a lawyer accept employment when the lawyer knows, or it is obvious, that the person who seeks the lawyer's services does so as a result of conduct prohibited under this rule.
(g) Suggestion of Need for Legal Services. A lawyer who has given unsolicited advice to a person that the person should obtain counsel or take legal action shall not accept employment resulting from that advice if:
(1) The advice embodies or implies a statement or claim that is false, fraudulent, misleading, or deceptive within the meaning of Rule 3.9(b), or that violates the regulations contained in Rule 3.9(c);
(2) The advice involves the use by the lawyer of any form of duress or intimidation, unwarranted suggestions or promises of benefits, or deceptive, vexatious, or harassing conduct; or
(3) The advice is given under circumstances that create an appreciable risk of undue influence by the lawyer or ill-considered action by the person being advised, within the meaning of Rule 3.9(f)(1)(iii).
(h) Definition. As used in Rule 3.9, "affiliated lawyer" refers to any kind of affiliation for the practice of law and includes, without limitation, partners and associates of a lawyer, lawyers employing a lawyer, lawyers "of counsel" to a lawyer or law firm, lawyers or law firms toward whom a lawyer is "of counsel," and lawyers with whom a lawyer shares offices or any expense or facility of a law practice, whether or not a partnership or any other affiliation exists.
3.10 Public Interest Legal Service
A lawyer engaged in active practice in the State of
Maine
should render unpaid public interest legal service of a type and amount reasonable in all the circumstances. For purposes of this rule, "unpaid public interest legal service" means
(1) the provision of professional services at no fee or a reduced fee to persons of limited means;
(2) participation in a program under which free legal services to the indigent are provided by individual lawyers upon referral from a central agency;
(3) the provision of professional services at no fee or a reduced fee to charitable organizations that provide services or support for the indigent; or
(4) service in activities for improving the law, the legal system, or the legal profession.
3.11 [Reserved].
3.12 Professional
Independence
of a Lawyer
(a) Dividing Fees With Non-lawyers. A lawyer or law firm shall not share legal fees with a non-lawyer, except that:
(1) An agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons.
(2) A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer.
(3) A lawyer or law firm may include non-lawyer employees in a retirement or compensation plan, even though the plan is based in whole or in part upon a profit-sharing arrangement; provided that the amounts paid to non-lawyer employees in addition to fixed salary 1) are not based upon business brought to the law firm by such employees, 2) are not based upon services performed by such employees in a particular case, and 3) do not constitute the greater part of the total remuneration of such employees.
(b) Avoiding Influence by Others. A person who recommends, employs, or pays a lawyer to render legal services for another shall not be permitted by the lawyer to direct or regulate the lawyer's professional judgment in rendering such legal services unless direction or regulation occurs in the course of supervision by another lawyer who participates in the attorney-client relationship with the supervised lawyer.
(c) Partnership With Non-lawyers. A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.
(d) Co-ownership With Non-lawyers. A lawyer shall not practice law with or in the form of a corporation, limited liability company or other legal entity authorized to practice law for a profit, if:
(1) a non-lawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) a non-lawyer is a corporate director or officer thereof; or
(3) a non-lawyer has the right to direct or control the professional judgment of a lawyer.
3.13 Responsibility for Compliance With the
Maine
Bar Rules.
(a) Responsibilities of a Partner or Supervisory Lawyer.
(1) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Code of Professional Responsibility.
(2) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Code of Professional Responsibility.
(3) A lawyer shall be responsible for another lawyer's violation of the Code of Professional Responsibility if:
(i) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(ii) the lawyer is a partner in the law firm, in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
(b) Responsibilities of a Subordinate Lawyer.
(1) A lawyer is bound by the Code of Professional Responsibility notwithstanding that the lawyer acted at the direction of another person.
(2) A subordinate lawyer does not violate the Code of Professional Responsibility if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.
(c) Responsibilities Regarding Non-lawyer Assistants. With respect to a non-lawyer employed or retained by or associated with a lawyer:
(1) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;
(2) A lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
(3) A lawyer shall be responsible for conduct of such a person that would be a violation of the Code of Professional Responsibility if engaged in by a lawyer if:
(i) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(ii) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
3.14
Sale
or Cessation of Law Practice
A lawyer or law firm may sell or purchase a law practice, including goodwill, if the selling attorney or each attorney in the selling firm has retired, become disabled or has died; or the selling attorney or each attorney in the selling firm has ceased to engage in the private practice of law in the State of
Maine
. The purchaser, who must be registered with the Board as an active member of the Bar of the State of
Maine
, assumes the obligations of an attorney to the client or clients whose files are transferred. The parties to the sale and purchase must comply with the other applicable provisions of these rules, and must satisfy the conditions of this rule. The estate of a deceased lawyer may be a seller.
(a) If the seller is or was a solo practitioner, then the entire law practice must be sold as a single unit. If the seller is or was a law firm, then the entire practice of the firm must be sold as a single unit. The entire law practice, for purposes of this rule, shall mean all client files, for open and closed engagements, excepting only those cases in which a conflict of interest is present or may arise.
(b) Written notice shall be given the Board of Overseers of the Bar and to each of the seller's clients (meaning those with whom the attorney then has open engagements) regarding:
(1) The proposed sale, including the name of the purchasing attorney or the names of the attorneys who practice within the purchasing firm;
(2) The terms of any proposed change in the fee arrangement authorized by paragraph (d);
(3) The client's right to retain other counsel or to take possession of the client's file; and
(4) That the client's consent to the transfer of the client's file to and representation by the purchaser will be presumed if the client does not take any action or does not otherwise object within ninety days of receipt of the notice.
If a client cannot be given notice, the transfer of the client's file and assumption of representation of that client may occur only after entry of an order by a single justice of the Maine Supreme Judicial Court which shall not issue without the Board of Overseers of the Bar having been given notice and an opportunity to be heard. The seller may disclose to the Board and the court, in camera, information relating to the representation only to the extent necessary to obtain an order authorizing the transfer of the client's file and of representation of the client.
(c) Further notice shall be given by publication in a newspaper of general circulation in each county in which seller has engaged in the practice of law, at least thirty days before the anticipated transfer of files. Such notice shall include the anticipated date of sale and identification of the purchasing lawyer or firm.
(d) The fees charged clients shall not be increased by the purchasing lawyer or firm by reason of the sale. The purchaser may, however, refuse to undertake the representation unless the client consents to pay the purchaser fees at a rate not exceeding the fees charged by the purchaser for rendering substantially similar services prior to the initiation of the purchase negotiations.
(e) Admission to or withdrawal from a partnership or professional corporation, retirement plans, and similar arrangements for a sale limited to the tangible assets of a law practice is not sale or purchase for the purposes of this Rule 3.14.
3.15. Definitions
(a) "Law Firm." Wherever used in these rules, unless the context requires a narrower meaning, "law firm" shall mean any legal entity or group associated by contract, however designated, that in fact provides legal services through lawyers, but shall not include a government agency or lawyers organized as a department within a government agency.
(b) "Partner". Wherever used in these rules, unless the context requires a narrower meaning, "partner" shall mean a member of a group, however designated, that exercises ultimate authority over the activities of a legal entity or contractual association through which legal services are provided by lawyers.
(c) "Client." Wherever used in these rules, "client" refers to a person, public officer, or corporation, association or other organization or entity, either public or private, who is being rendered professional legal services by a lawyer.
(d) "Prospective Client." Wherever used in these rules, "prospective client" refers to a person, public officer, or corporation, association or other organization or entity, either public or private, who consults a lawyer with the view of obtaining professional legal services from the lawyer.
(e) "Former Client." Wherever used in these rules, "former client" refers to a client for whom the lawyer previously rendered and then terminated professional legal services, and for whom the lawyer is not currently rendering any such legal services.
