Bar Counsel Notes: Conflicts/prospective clients

May an attorney represent either party if both the husband and the wife in an upcoming divorce matter each independently telephone and contact that attorney (or anyone else at the attorney's law office) about the case?

In Opinion #156 issued by the Professional Ethics Commission on February 5, 1997, the Commission stated that an attorney may represent either party unless, as a result of either of the initial communications, the attorney - or any other attorney or any staff member - obtained any "confidential information or a secret that is material to the representation, disclosed in good faith by (either) adverse party". See M. Bar R. 3.6(h). The opinion stressed the need for the attorney to be certain that the attorney's knowledge of the confidence or secret would never be disadvantageous to the disclosing party. Absent such certainty, the attorney should not represent either party. This opinion also noted that this "confidential communication" issue is not avoided by the fact that a formal attorney/client relationship had not yet been established at the time the parties provided any information to the attorney(s) or staff members at the firm. See also Opinion #61 9/4/85.

*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.