Opinion #104. Suit by Lawyer Member of Board of Overseers Against Attorney Who Is the Subject of a Grievance

Issued by the Professional Ethics Commission

Date Issued: February 7, 1990

Question

The Board of Overseers of the Bar has requested an advisory opinion in response to the following question:

May a lawyer member of the Board of Overseers of the Bar or that member’s firm accept or continue with employment on behalf of a party who wishes to initiate legal action against a lawyer who is under disciplinary investigation or is subject to disciplinary proceedings before the Grievance Commission?

Opinion

The Commission is of the opinion that the Code of Professional Responsibility, Maine Bar Rule 3, would not be violated by the lawyer or his firm’s acceptance of the employment at issue, provided the lawyer, in his capacity as a member of the Board of Overseers, (1) is not privy to confidential information respecting the person who is subject to disciplinary proceedings and (2) disqualifies and removes him/herself from any involvement with the disciplinary proceedings involved.

Absent compliance with these two provisos, the Commission is of the opinion that under the circumstances presented, the lawyer’s dual capacity, as a member of the Board of Overseers and as counsel for the litigant in question would tend to compromise public confidence in the integrity and impartiality of the Board of Overseers and that the administration of justice would thereby be prejudiced. See Maine Bar Rule 3.2(f)(4) (prohibiting conduct prejudicial to the administration of justice). Accordingly, the Commission concludes that the lawyer or his firm may undertake the employment in question only if the lawyer satisfies the two provisos set forth above. In this manner the Commission believes that the integrity of the Board will be protected without unduly discouraging lawyers from accepting appointment to the Board.


Enduring Ethics Opinion