May a lawyer who serves on the bar's Board of Overseers, or that lawyer's firm, sue a lawyer who is under disciplinary investigation?
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This page answers the general question as of 1990. Ezel answers yours: whether it's allowed on your facts, under the current Maine Rules of Professional Conduct, with citations.
Plain-English summary
The Board of Overseers of the Bar asked whether a lawyer member of the Board, or that member's firm, may accept or continue representing a party who wishes to bring legal action against a lawyer who is under disciplinary investigation or subject to proceedings before the Grievance Commission.
The Commission concluded the Code of Professional Responsibility would not be violated, provided the Board-member lawyer (1) is not privy to confidential information about the lawyer subject to the disciplinary proceedings and (2) disqualifies and removes himself from any involvement with those proceedings. Absent both conditions, the Commission concluded the lawyer's dual capacity, as a Board member and as counsel suing the lawyer under discipline, would tend to compromise public confidence in the integrity and impartiality of the Board, and would thereby prejudice the administration of justice, citing Rule 3.2(f)(4). The Commission framed the two provisos as protecting the integrity of the Board without unduly discouraging lawyers from accepting appointment to it.
Currency note
This opinion was issued in 1990, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a Board of Overseers member's firm sue a lawyer who is under disciplinary investigation?
A: The opinion concluded yes, but only if the member holds no confidential information about the lawyer under discipline and removes himself entirely from the disciplinary proceeding.
Q: Why is the member's involvement in the disciplinary proceeding a problem?
A: The opinion concluded the dual role would tend to compromise public confidence in the Board's integrity and impartiality, prejudicing the administration of justice under Rule 3.2(f)(4).
Q: What two conditions must the Board member satisfy?
A: The opinion held the member must not be privy to confidential information about the lawyer under discipline, and must disqualify and remove himself from any involvement with the disciplinary proceedings.
Background and rules framework
The opinion interprets Maine Bar Rule 3.2(f)(4), which prohibits conduct prejudicial to the administration of justice. The conduct it addresses, a lawyer's overlapping roles as a disciplinary-board member and as adverse counsel, implicates ABA Model Rule 1.7 (concurrent conflicts of interest, including the lawyer's own conflicting responsibilities) and Model Rule 8.4 (misconduct, including conduct prejudicial to the administration of justice).
Citations and references
Rules of Professional Conduct:
- Model Rule 1.7 (concurrent conflicts); Model Rule 8.4(d) (conduct prejudicial to the administration of justice)
- Maine Bar Rule 3.2(f)(4)
See also
- Maine Ethics Op. 130: Vicarious Disqualification, Special Assistant DA
- Maine Ethics Op. 111: Former Agency Board Member in Private Practice
Source
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
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.
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