Opinion #114. Communication Between Staff of the Office of Advocacy and Clients and Employees of the Department of Mental Health and Mental Retardation

Issued by the Professional Ethics Commission

Date Issued: February 26, 1991

The Chief Advocate of the Office of Advocacy within the Department of Mental Health and Mental Retardation of the State of Maine has requested an advisory opinion relating to the responsibilities of lawyers and non‑lawyers serving as advocates within the Office of Advocacy.

The Office of Advocacy is established within the Department of Mental Health and Mental Retardation (the “Department”) to, among other things, investigate claims and grievances of “clients of the Department,” to investigate allegations of adult and child abuse in state institutions, and to advocate on behalf of “clients of the Department” for compliance with laws relating to the rights and dignity of such persons. (34‑B M.R.S.A. § 1205(1)). The “clients of the Department” are defined by 34‑B M.R.S.A. § § 1001(2) and 1205(6), as persons receiving or seeking services from the Department.

The Office of Advocacy consists of 14 classified state employee positions, including a Chief Advocate, who is a lawyer, and several other advocates, some of whom are lawyers and some of whom are not lawyers. The statute establishing the Office of Advocacy (34‑B M.R.S.A. § 1205) does not require that the Chief Advocate or the other advocates be lawyers. All of the advocates within the Office of Advocacy report to the Chief Advocate (34‑B M.R.S.A. § 1205(2)(B)).

  1. Communication with Parties Represented by Counsel.

In the course of investigating a complaint by a “client of the Department” concerning abuse by an employee of an institution, a lawyer‑advocate is informed by the employee’s lawyer that the employee is represented by counsel in that investigation and that the lawyer‑advocate should not communicate with the employee. Under these circumstances, does Maine Bar Rule 3.6(j) apply, and if so, does that rule also prohibit a non‑lawyer advocate from communicating with the party represented by counsel?

Rule 3.6(j) provides as follows:

(j) **Communicating With Adverse Party.** During the course of representation of a client, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so.

It is the opinion of the Commission that the relationship between the advocates and the “clients of the Department” is not an attorney‑client relationship and that therefore Rule 3.6(j), which applies to lawyers “during the course of representation of a client,” is not applicable to such communications.

  1. Conflict of Interest Issues.

In the course of investigating complaints by “clients of the Department” against other “clients of the Department,” the question is presented as to whether the conflict of interest provisions of Rule 3.4 of the Maine Bar Rules apply to the lawyer‑advocates and the non‑lawyer‑advocates.

It is the opinion of the Commission that those conflict of interest Rules do not apply to the advocates in the particular circumstances presented because the relationship between the advocates and the “clients of the Department” is not an attorney‑client relationship. Although the statute (34‑B M.R.S.A. § 1205(6)) uses the term “client” as referring generally to persons seeking or receiving services of the Department, those persons are not “clients” of the advocates within the meaning of Bar Rules 3.4 and 3.6(j).

In considering the questions presented, the Commission notes that the statute establishing the Office of Advocacy has not required that the advocates be lawyers. The particular responsibilities of the advocates are prescribed by statute. The fact that some of them are lawyers is incidental.

This Opinion concerns only the narrow questions presented under the unique statutory provisions involved and does not address other Bar Rules, such as those requiring honesty, which apply to conduct of a lawyer regardless of whether the lawyer is engaged in the practice of law or whether an attorney‑client relationship exists. See The Professional Ethics Commission Opinion No. 101.

By reason of the conclusions of the Commission in this matter, the Commission need not here address, and therefore does not here address, matters concerning the applicability of Bar Rules 3.4 and 3.6(j) to government lawyers who represent governmental agencies or officials in an attorney‑client relationship.


Enduring Ethics Opinion