Bar Counsel Notes: Conflict of Interest
Attorney A represents H in his pending divorce (divorce #1). Prospective client X is married to the GAL in divorce #1. She would like to retain Attorney to handle a divorce matter (divorce #2) against the GAL in divorce #1. H and X have never met. May Attorney represent X in divorce #2?
Attorney first needs to ask prospective client X to provide Attorney with consent to tell current client H about X's prospective client status and that her divorce #2 will be against the GAL in H's case matter, divorce # 1. If X declines to provide that consent, then Attorney cannot take her case. Alternatively, if X provides that consent, and Attorney then discloses the issue to H but H does not agree to Attorney taking on X as a client, then Attorney cannot accept X as a client and must decline without giving X any reason for that declination. Please note, the relevant MRPC: 1.6(a)(confidences); 1.7(a)(b)(conflict of interests - current clients); and 1.18 (duties to prospective client).
*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.