Opinion #176. Complaint Justice Conflicts with Client

Issued by the Professional Ethics Commission

Date Issued: July 10, 2001

FACTS

Attorney A is a solo general practitioner in a rural Maine location. The local judge has appointed Attorney A to be a Complaint Justice.[1] One of the Complaint Judge’s duties is to issue search warrants upon the request of law enforcement authorities. Sometimes, their requests are received during the night and on weekends when the lawyer is not in the office. On the occasion at issue, however, law enforcement authorities went to Attorney A’s office during the day during normal business hours to request a search warrant.

Attorney A also is appointed by the courts to represent criminal defendants. Attorney A had been appointed to represent Defendant D on a violation of a Protection from Abuse matter. Although Attorney A had tried to communicate with the client and requested discovery on the case from the District Attorney, the client had not communicated with the attorney and the attorney had never spoken with or met him.

Some two months after the court appointment, law enforcement authorities requested a search warrant for an automobile because of suspected drug possession. Attorney A did not recognize that the owner of the automobile was Defendant D, and after reviewing the officer’s affidavit, Attorney A signed the search warrant. The next day Defendant D visited Attorney A and, at this point, Attorney A realized that the automobile owner for whom the search warrant was issued was Attorney A’s client. Attorney A immediately applied to withdraw from the case and requested that another attorney be appointed to represent Defendant D on the Protection from Abuse charge.

QUESTIONS

Bar Counsel has posed the following questions to us:

  1. Does the Grievance Commission have jurisdiction to decide cases involving conduct by an attorney when that attorney is acting as a Complaint Justice appointed by a judge?

  2. If so, did the attorney violate the conflict rules by failing to recognize that the person against whom the search warrant was issued was also a client?

  3. What Bar Rules would be applicable to an attorney acting as a Complaint Justice?

OPINION

Question 1

In response to the first question, the Commission is of the view that it does not have jurisdiction under Rule 11 of the Maine Bar Rules to answer the inquiry. Maine Bar Rule 11 grants the legal authority and jurisdiction to the Professional Ethics Commission to “render advisory opinions to the Court, Board, Bar Counsel, and to the Grievance Commission on matters involving the interpretation and application of the Code of Professional Responsibility (Rule 3)”. Although the Professional Ethics Commission is authorized upon request of the Bar Counsel or the Grievance Commission to render advisory opinions as to the interpretation of Rule 3 of the Bar Rules, the question posed in this case necessarily entails a determination of the jurisdiction of a coordinate agency established by the Bar Rules. Such a question is we believe outside the authority granted to us. Rather, consideration of the appropriate scope of jurisdiction of a coordinate body such as the Grievance Commission is an issue as to which deference should be accorded to the Grievance Commission. Accordingly, we respectfully decline to answer the question posed to us by Bar Counsel.

Question 2

The second question as posed to us necessarily entails a determination of all the facts in this matter. Under the structure of the Bar Rules, we believe that is a task, which is appropriately assigned to the Grievance Commission. The Professional Ethics Commission has long been careful both to avoid interfering in the jurisdiction of other agencies involved in the disciplinary process and to avoid rendering ethical opinions in circumstances where the answer requires a finding of facts. Thus, in Ethics Opinion 67 (January 7, 1986), the Ethics Commission held that its proper role under the Bar Rules was limited to providing interpretations of Rule 3 with respect to future conduct of attorneys, rather than as to circumstances that required the exercise of fact finding functions. In this case, the question of whether the Bar Rules were violated requires a full evaluation of all the facts and circumstances and the testimonial examination of the parties involved, all of which information is not available to the Ethics Commission. Accordingly, we respectfully decline to answer and defer to the Grievance Commission for its determination after full consideration of the relevant facts and circumstances.

Question 3

Although we have declined to answer the first two questions, we do believe it is appropriate to suggest to the Grievance Commission those Bar Rules, which may be applicable to the conduct, described. In listing these rules, we do not suggest that the attorney has violated them, but rather that the Grievance Commission should evaluate the facts it finds in light of the rules enumerated.

First, we note that we believe that, even though the lawyer was serving as a Complaint Justice, she or he was nonetheless governed by Maine Bar Rule 3. We do not express any view as to whether there may be any applicable provisions of the Code of Judicial Conduct or whether that code even applies.

With the qualification noted in the first paragraph of this section, we believe that several Bar Rules may apply to the facts as presented, including (1) Maine Bar Rule 3.2(f)(4), concerning the prohibition against lawyers engaging in conduct that is prejudicial to the administration of justice; (2) although Bar Rules 3.2(c) and (d) may not by their specific terms apply to activities performed as a complaint justice, they may be helpful analogs in determining under what circumstances undertaking legal representation following the performance of activities as a complaint justice are “prejudicial to the administration of justice, under Bar Rule 3.2(f)(4)”; (3) Maine Bar Rule 3.4(a), imposing a continuing duty on lawyers to disclose any information that, in light of circumstances arising after the commencement of representation, might reasonably give rise to a conflict of interest; (4) Maine Bar Rule 3.4(b)(1), outlining the obligation of lawyers not to commence or to continue representation of a client if there is a substantial risk that the lawyer’s representation of one client would be materially and adversely affected by the lawyer’s duty to a third person; (5) Maine Bar Rule 3.4(e) prohibiting a lawyer from undertaking or continuing representation of a client without informed consent in any matter with respect to which the lawyer has a fiduciary or other legal obligation to another person if the obligation represents a substantial risk of materially and adversely affecting the lawyer’s representation of the client; and (6) Maine Bar Rule 3.6(a) requiring lawyers to employ reasonable care and skill and apply best judgment in the performance of professional services.


Footnote

[1] See 4 M.R.S.A. Section 161 (Justice of the Peace) and 15 M.R.S.A. Section 5


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