Opinion #33. Disqualification of Public Advocate's Counsel

Issued by the Professional Ethics Commission

Date Issued: September 22, 1982

ADVISORY OPINION 82‑1 RE: COUNSEL TO THE PUBLIC ADVOCATE

Facts

In 1981, by virtue of 35 M.R.S.A. § 1‑A, the Maine Legislature created the office of the Public Advocate for the purpose of representing the interests of the “consuming public” in matters within the jurisdiction of the Public Utilities Commission. Pursuant to that statute, the Public Advocate is entitled to hire staff attorneys to represent him.

Attorney A was hired by the Public Advocate to serve as general counsel. Attorney A had previously been actively practicing before the PUC representing certain clients who sought utility rate “reform” and who generally opposed petitions brought by certain utility companies. In typical cases, Attorney A represented these clients as intervenors opposing rate increases for utility company XYZ. As the result of Attorney A being hired as counsel to the Public Advocate, XYZ’s attorney requested an advisory opinion as to whether the provisions of Rule 3.7(i) of the Maine Bar Rules will be violated by Attorney A if he now participates in cases involving his former client and XYZ utility company.

Specifically, the utility company suggests that Rule 3.7(i)(3) prevents Attorney A from representing the Public Advocate as an intervenor in any case in which A’s former clients are also intervenors if that representation would be against the interests of those former clients. As a corollary, XYZ suggests that Attorney A thus could only represent the Public Advocate in cases in which the latter would take the same side as A’s former clients and, therefore, that the Public Advocate would not receive impartial advice from Attorney A about what position to take as an intervenor in these cases. The utility company concludes that Rule 3.7(i)(3) prevents Attorney A from representing the Public Advocate in any case involving Attorney A’s former clients.

XYZ further suggests that Rule 3.7(i)(4) also prevents Attorney A from representing the Public Advocate in those PUC cases in which A’s former clients are intervenors on the theory that those former clients are “complaining witnesses” against the utility company.

Subsequent to the original request for an advisory opinion being made, the Public Advocate position became vacant and Attorney A was named Acting Public Advocate. The utility company now seeks the Commission’s opinion on the additional question of whether Attorney A’s continuing ethical obligations as a lawyer will disqualify him from acting in his new job in those cases where his former clients are involved as intervenors.

Discussion

The rules cited above read as follows:

Rule 3.7(i)(3). A public prosecutor or other government lawyer shall not conduct a civil or criminal case against any person whom he represents or has represented as a client.

Rule 3.7(i)(4). A public prosecutor or other government lawyer shall not conduct a civil or criminal case against any person relative to a matter in which he represents or has represented the complaining witness.

The Commission concludes that these rules do not, by themselves, bar Attorney A from representing the Public Advocate in matters pending before the PUC involving the former clients of Attorney A.[1] And, since he would not be barred as attorney for the Public Advocate, A also will not be barred from acting while serving as Public Advocate.

The Commission concludes that the word “against” as used in both of the above‑quoted subsections does not apply to the factual situations presented by this inquiry. In a sense, all cases before the Public Utilities Commission are “against” only one party, the utility. Unlike most civil cases, PUC cases do not typically have a plaintiff and a defendant. To the extent that other parties are involved, either in favor of the utility’s petition or in opposition to it, they are intervenors.[2] Those intervenors may take positions and make arguments which are adverse to each other but, to the extent that they are “against” anyone, they are against the utility company only. The Maine Bar Rules recognize a distinction between action which is “adverse” to the interest of a former client and a case which is “against” a former client. See Rule 3.4(e), for example, which prohibits in some situations employment which is “adverse” to a former client without that client’s consent. See also, Rule 3.6(i).

The Commission notes that XYZ has at least implicitly recognized this distinction between being against a former client and acting adversely to a former client’s interest. XYZ’s question to the Commission used the phrase “against the client’s interest” to describe the possibility of the conflict between the Public Advocate and Attorney A’s former client as intervenors in the same PUC hearing. But the Rules do not use this expression. The Rules use either “adverse to a former client” [Rule 3.4(e)] or “against” a former client [Rule 3.7(i)(3) and (4)] We think the phrasing chosen by XYZ in making its inquiry recognizes that normally intervenors before the PUC are not considered “against” but only adverse to each other at most.

The Commission concludes that Attorney A would not be barred solely by virtue of Rule 3.7(i) or 3.7(i)(4) from representing the Public Advocate even in the situation where the Public Advocate’s position was contrary to the position taken by a former client of Attorney A’s. Such representation would be, at worst, adverse to the former client’s interest. This would bring into play the provisions of Rule 3.4(a), 3.4(e), and 3.6(l). (And, those rules would normally be relevant only where the specific subject matter of the former employment was involved.)[3]

The conclusion that Attorney A is not barred by Rules 3.7(i)(3) and (4) from being involved in cases even when his new client’s position would be adverse to his former clients’ interest makes it unnecessary to decide the corollary suggested by XYZ which was that Attorney A must be barred from all cases involving his former clients since he cannot be active in cases against their interests. It is worth noting, however, that the underlying assumption of this proposition is that XYZ and other utilities are entitled to the existence in Maine of a Public Advocate who is totally without bias and whose staff attorneys are equally impartial. Such an idealized concept of the Public Advocate’s office would be difficult to fulfill and, furthermore, was probably not the intent of the Legislature.

In conclusion, the Commission finds that Rules 3.7(i)(3) and (4) are not applicable to the situation presented by this inquiry. However, the rules regarding conflicts of interests and disclosure of confidential information should be considered by Attorney A.


Footnotes

[1] Other rules, such as 3.4(b), 3.4(e) or 3.6(l) may prevent Attorney A from representing the Public Advocate regarding matters in which he formerly represented other clients. Analysis of the possible violation of these rules will depend on more specific facts.

[2] The Commission recognizes that under 34 M.R.S.A. § 291 a combination of ten persons or groups may initiate PUC actions against a utility. Such proceedings, however, are the exception rather than the rule.

[3] For analysis of the limited nature of what is meant by the subject matter of the former employment, see Commission Opinions #79‑2 (10/17/79), #19 (1/15/81), and #22 (1/15/81


Enduring Ethics Opinion