Opinion #67. Advisory Opinions Regarding Past Conduct by Other Attorneys

Issued by the Professional Ethics Commission

Date Issued: January 7, 1986

Question

A Maine attorney has asked the Commission whether it is proper for a law firm, one of the members of which is the town attorney of a municipality, to represent a real estate developer in acquiring permits, special exceptions and zoning changes from the appropriate agencies of the town, assuming that the town attorney member continues to advise and represent the town: a) in connection with the developer’s permit and zoning requests; b) on other matters, but not in connection with the developer’s requests.

Opinion

For the following reasons the Commission declines to answer the question.

Advisory opinions interpreting the Bar Rules were previously issued by the Grievance Commission. The Professional Ethics Commission was established by the Maine Supreme Court on February 15, 1985, under new Bar Rule 11 to assume this function. As an independent body the Commission must be careful not to interfere with the jurisdiction of other agencies involved in the disciplinary process. Its function is solely to issue advisory opinions.

The mandatory duties of the Commission include responding to opinion requests from the Court, Bar Counsel, the Grievance Commission and the Board of Overseers. [Bar Rule 11(c)(2)]. The Commission is authorized, but is not required, to respond to inquiries from members of the Bar. The Commission recognizes that this discretionary function, properly exercised, can be of considerable assistance to the Bar. The experience of the Grievance Commission in rendering advisory opinions however, revealed an occasional tendency on the part of attorneys to seek advisory opinions concerning past conduct of other attorneys as an alternative to filing a grievance.

The authorities empowered to investigate and act on questions as to whether the past conduct of an attorney violates the Bar Rules are Bar Counsel and the Grievance Commission, not the Ethics Commission. While a request for an advisory opinion may seem to be a less drastic way of dealing with perceived violations of the Bar Rules, there are several reasons why the Ethics Commission should not act on such requests.

First, the Ethics Commission proceeds ex parte and without investigating the facts. Consequently, an ostensibly advisory opinion, when applied to the real case, may be one‑sided and inaccurate.

Second, if the Ethics Commission were to issue an opinion regarding past conduct, the attorney requesting the opinion might later seek to use it to suggest publicly that his adversary had been guilty of unethical conduct. He is quite likely to use the opinion this way in a non‑public encounter. The target attorney naturally then will ask to have the matter reconsidered in light of different facts and additional arguments. Before long, the Ethics Commission would be embroiled in a fact finding process it is neither equipped nor authorized to conduct.

Faced with a similar problem the ABA Standing Committee on Professional Ethics adopted two limiting policies. Unless the request for an opinion comes from a disciplinary authority, such as a Grievance Commission, the ABA Committee will not render an opinion on conduct that has already occurred and generally will not render an opinion on the proposed conduct of anyone other than the requesting attorney. We adopt both these restrictions. In determining whether these restrictions apply, the Ethics Commission will use all the information that may be available to it and will not rely solely on the inquiry itself.

The Commission has concluded that the present inquiry does not concern future conduct of the inquiring attorney. Rather it seems to inquire about past, and perhaps anticipated, conduct of another person. Accordingly we decline to respond.

Although declining to answer the present request for an advisory opinion, the commission remains interested in receiving appropriate inquiries from members of the Bar, and is anxious to render opinions that will aid attorneys in faithfully adhering to their obligations. It should also be noted that even where deferral to bodies of coordinate jurisdiction is called for, Rule 11 authorizes those bodies to request opinions of the Ethics Commission, and such opinions are mandatory rather than discretionary.


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