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Rules 1 - 12
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RULE 1. SCOPE OF RULES

(a) Jurisdiction. These rules govern the practice of law by attorneys within this State and the conduct of attorneys with respect to their professional activities and as officers of the Court. Any attorney admitted to, or engaging in, the practice of law in this State shall be subject to the Court's supervision and disciplinary jurisdiction and the provisions of these rules, including Maine Bar Rule 1(b). A lawyer admitted to practice in this State is subject to the Court's disciplinary authority, regardless where the lawyer's conduct occurs. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction where the lawyer is admitted for the same conduct. A justice or judge shall be subject to the provisions of these rules as to conduct relevant to that person's position as an attorney and as to conduct prior to becoming, or after ceasing to be, a Justice or Judge. There shall be coordination between the Board and the Committee on Judicial Responsibility and Disability in any investigations or proceedings concerning a Justice or Judge arising out of the same or related conduct in order to avoid unnecessary or inappropriate duplication of any such investigations or proceedings.

(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:

(1) Court Related Conduct. For conduct in connection with a proceeding in a tribunal before which a lawyer has been admitted to practice (either generally or for purposes of that proceeding), including all preparatory and pretrial or prehearing activities required or authorized by statute, rule or custom of the tribunal, the rules to be applied shall be the rules of professional conduct of the tribunal or of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise or neither the tribunal nor the jurisdiction in which it sits have adopted rules of professional conduct applicable to the proceeding; and

(2) Other Conduct. For any other conduct.

(i) if the lawyer is licensed to practice only in this jurisdiction, the rules to be applied shall be the rules of this jurisdiction, and

(ii) if the lawyer is licensed to practice in this and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct.

(c) Amendment. The Board, the Grievance Commission, the Fee Arbitration Commission, the Professional Ethics Commission, or any 10 members of the Bar of this States may submit to the Court written suggestions or proposals for revision or amendment of these rules.

(d) Justices. Except where powers are expressly given to the full Court, or the context indicates clearly that the full Court alone is to have the power, the powers of the Court with respect to these rules may be exercised by a single justice of the Court, subject to appropriate review by the Law Court.

RULE 2. PURPOSE OF RULES

(a) General Construction. These rules are intended to provide appropriate standards for attorneys with respect to their practice of the profession of law, including, but not limited to their relationship with their clients, the general public, other members of the legal profession, the courts and other agencies of this State. A proceeding brought against an attorney under these rules shall be an inquiry to determine the fitness of an officer of the court to continue in that capacity. The purpose of such proceeding is not punishment but protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Further, these rules are intended to provide for a just determination of complaints alleging misconduct on the part of attorneys, and misunderstandings between attorneys and their clients. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense, delay and inconvenience. Whenever the word "Court" appears herein, it shall mean the Supreme Judicial Court. Whenever the word "Board" appears herein, it shall mean the Board of Overseers of the Bar.

(b) Amendment. The Board, the Grievance Commission, the Fee Arbitration Commission, the Professional Ethics Commission, or any 10 members of the Bar of this State may submit to the Court written suggestions or proposals for revision or amendment of these rules.

(c) Grounds for Discipline. Each act or omission by an attorney, individually or in concert with any other person or persons, which violates any of these rules shall constitute misconduct and shall be grounds for appropriate discipline notwithstanding that the act or omission did not occur in the course of an attorney-client relationship or in connection with proceedings in court. The failure without good cause to comply with any rule, regulation or order of the Board or the Grievance Commission or to respond to any inquiry by the Board, the Grievance Commission or Bar Counsel shall constitute misconduct and shall be grounds for appropriate discipline.

(d) Types of Discipline. Discipline of attorneys may be: (1) by disbarment, suspension, or public reprimand by the Court; or (2) by public reprimand by the Board or by a panel of the Grievance Commission.

RULE 2-A. ASPIRATIONAL GOALS FOR LAWYER PROFESSIONALISM

(a) Aspirational Goals for Lawyer Advertising. A lawyer should ensure that any advertising that the lawyer communicates or causes to be communicated by publication, broadcast, or other media is informative to potential clients, is presented in an understandable and dignified fashion, and accurately portrays the serious purpose of legal services and our judicial system. When advertising, though not false or misleading, degenerates into undignified and unprofessional presentations, the public is not served, the reputation of the lawyer who advertises may suffer, and the public’s confidence in the legal profession and the judicial system may be harmed. Lawyers who advertise should recognize their obligation to advance the public’s confidence in the legal profession and our system of justice. In furtherance of these goals, lawyers who advertise should:

(1) Avoid statements, claims, or comparisons that cannot be objectively substantiated;

(2) Avoid representations that demean opposing parties, opposing lawyers, the judiciary, or others involved in the legal process;

(3) Avoid crass representations or dramatizations, hawkish spokespersons, slapstick routines, outlandish settings, unduly dramatic music, sensational sound effects, and unseemly slogans that undermine the serious purpose of legal services and the judicial system;

(4) Avoid representations to potential clients that suggest promises of results or will create unjustified expectations such as “guaranteed results” or “we get top dollar awards”;

(5) Clearly identify the use of professional actors or other spokespersons who may not be providing the legal services advertised unless it is readily apparent from the context of the advertisement that the actor or spokesperson does not provide the advertised legal services (e.g., a radio advertisement in which the speaker does not purport to be the lawyer or a member of the firm);

(6) Avoid the use of simulated scenes, actors who portray lawyers, clients or participants in the judicial system, and dramatizations unless they are clearly identified as such;

(7) Avoid representations that suggest that the ingenuity or prior record of a lawyer, rather than the merits of the claim, are the principal factors likely to determine the outcome of the representation; and

(8) Avoid representations designed to appeal to greed, exploit the fears of potential clients, or promote a suggestion of violence.

These aspirational goals are intended to provide suggested objectives that all lawyers who engage in advertising their services should be encouraged to achieve in order that lawyer advertising may be more effective and reflect the professionalism of the legal community.

(b) Aspirational Goals for 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.

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. § 851. 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

(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 esponsibilities 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"):

a. Legal advice: office visits, telephone calls, fax, mail, e-mail;

b. Advice about availability of alternative means to resolving the dispute, including mediation and arbitration;

c. Evaluation of client self-diagnosis of the case and advising client about legal rights and responsibilities;

d. Guidance and procedural information for filing or serving documents;

e. Review pleadings and other documents prepared by client;

f. Suggest documents to be prepared;

g. Draft pleadings, motions, and other documents;

h. Factual investigation: contacting witnesses, public record searches, in-depth interview of client;

i. Assistance with computer support programs;

j. Legal research and analysis;

k. Evaluate settlement options;

l. Discovery: interrogatories, depositions, requests for document production;

m. Planning for negotiations;

n. Planning for court appearances;

o. Standby telephone assistance during negotiations or settlement conferences;

p. Referring client to expert witnesses, special masters, or other counsel;

q. Counseling client about an appeal;

r. Procedural assistance with an appeal and assisting with substantive legal argument in an appeal;

s. Provide preventive planning and/or schedule legal check-ups:

t. Other:

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:

i. Attorney:

ii. Associate:

iii. Paralegal:

iv. Law Clerk:

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

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