Bar Counsel Notes: Reporting Professional Misconduct
Attorney represents a client who sought guardianship of a young family member. Client was not successful in that matter. Attorney's law firm is closing the case but client has requested that they provide her with the transcript from an earlier hearing. Attorney sought and received a copy of the transcript, without first finding out why client requested it. Attorney believes that was an error on her part because when she discussed with the client the kind of transcript received by the court (i.e. not certified), client became upset and insistent Attorney obtain a certified copy as client intends to "use it" for something else. Can and should the law firm obtain a certified copy of the transcript for the client to add to her file before returning that property?
No, since this guardianship hearing was a closed proceeding, the firm should not provide a transcript without a court order permitting it to do so. As an officer of the court, the Attorney cannot violate a statute or court rule even if the client requests that she do so. Unlike family matter cases, this probate proceeding is protected by confidentiality and disclosure of information is only authorized by the court, not by a client's directive. (See MRPC 3.4(c); 8.4(a)(d)) In addition, the transcript would not ordinarily be "client property" as Attorney doesn't actually have a certified transcript within the client's file.
*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.