Bar Counsel Notes: Confidential response to Grievance Complaint filed by non-client

Attorney is the Respondent in a grievance complaint matter filed by her client's adversary in a closed family matter. Bar Counsel's initial docketing letter requests her to respond to the complaint under Maine Bar Rule 7.1(d) for review by a panel of the Grievance Commission. In order to completely respond, however, she believes it is critical for her to discuss and provide Bar Counsel with confidential and privileged information from her client, the complainant's opponent. The complainant is not Respondent Attorney's client, causing the confidence exception allowed by MRPC 1.6(b)(5) to be inapplicable. Since she understands from Bar Counsel's letter that her response will be shared with that complainant, how should she respond?

Professional Ethics Commission Advisory Opinion 55 covers this situation, as implemented in the normal practice of the office of Bar Counsel in such non-client complainant matters. That is, as discussed in Opinion 55 and as referenced in Bar Counsel's docketing letter, in this situation the Respondent Attorney should provide Bar Counsel with two separate responses: 1). A complete one including all relevant confidences from the Respondent's client, with that response then being confidentially provided to and reviewed by the panel, but not provided to the complainant; and 2). A redacted version that contains none of those client confidences, which will be the version provided to the complainant by Bar Counsel.

*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.