Bar Counsel Notes: Adverse conduct/deceit

Lawyer practicing real estate inquires about the following: Land tracts were originally incorrectly marked. Since several houses have been occupied for nearly 50 years and no other boundary lines had been recognized, many homeowners are now correcting their respective boundaries. Lawyer, on behalf of her client, has brought an action against an elderly neighbor who is unaware of the survey that delineates the actual boundary. The abutting neighbor is unrepresented. Can Lawyer continue with the lawsuit as her client dictates, since boundary is now known to be incorrect or does Lawyer have to ensure that accurate survey information is used even though the neighbor is unaware and the client wants to keep it that way?

Lawyer cannot engage in misrepresentation or deceit. See M. Bar R. 3.2(f)(3). If her client insists on trying to deceive neighbor, then Lawyer must withdraw. Lawyer is encouraged to show her client the relevant Bar Rules and explain that not only can Lawyer not do what client wants, but no lawyer can act as client directs. Lawyer is reminded and she should remind her client that Lawyer's duties are twofold: to the attorney oath as an officer of the court and to her client, whose goals may conflict with mandates of the attorney's oath. If client insists on going forward and not correcting neighbor's misunderstanding, Lawyer has no choice but to withdraw. See M. Bar R. 3.5.

*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.