Bar Counsel Notes: Conflicts

Lawyer represents a client concerning DHHS Maine Care cut-off issues. The client had a business but it's now without assets due to some wrongful conduct by a co-owner. Lawyer has now discovered an old matter where a former employee of that employer client had consulted Lawyer regarding a possible defamation against the employer some 10 years ago. After that consultation, except for sending Lawyer an email stating that "I will get back in touch with you," the prospective client never further followed-up after that discussion. As a result, the prospective client never became an actual client of Lawyer. Does Lawyer now have a conflict in his continued representation of employer?

M. R. Prof. Conduct 1.18 (Duties to Prospective Client) is the relevant Rule and would appear to not create any conflict as long as the employee remains as only a potential and not an actual client of Lawyer. That is, that employee's confidential discussion of possibly bringing a defamation action is unrelated to Lawyer's current representation of the employer regarding Maine Care issues. Should that employee now follow-up and seek to become Lawyer's actual client in such a defamation action, however, Lawyer would then have a conflict and be barred from taking on such an action by Rule 1.7 (Conflict of Interest: Current Clients). In addition, it would have been a better practice if Lawyer had clearly and quickly responded to the prospective client's email and confirmed that Lawyer was not undertaking any representation of him against the employer.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.