Do the no-contact and conflict-of-interest rules apply to lawyer and nonlawyer advocates in a state Office of Advocacy when they investigate complaints by agency clients?

Plain-English summary

The Chief Advocate of the Office of Advocacy within Maine's Department of Mental Health and Mental Retardation asked about the responsibilities of the lawyers and non-lawyers who serve as advocates. The Office, established by 34-B M.R.S.A. § 1205, investigates claims and grievances of "clients of the Department" (persons receiving or seeking Department services), investigates abuse allegations in state institutions, and advocates for compliance with laws protecting such persons. Its 14 positions include a Chief Advocate (a lawyer) and other advocates, some lawyers and some not; the statute does not require any of them to be lawyers.

On communication with represented parties, the inquiry posited a lawyer-advocate investigating an abuse complaint who is told by an institution employee's lawyer that the employee is represented and should not be contacted. The Commission concluded Rule 3.6(j), which applies to a lawyer "during the course of representation of a client," does not apply, because the relationship between the advocates and the Department's clients is not an attorney-client relationship. For the same reason, the Commission concluded the conflict-of-interest provisions of Rule 3.4 do not apply when advocates investigate complaints by Department clients against other Department clients: although the statute uses "client" to mean persons seeking or receiving Department services, those persons are not "clients" of the advocates within the meaning of Rules 3.4 and 3.6(j).

The Commission noted that the statute does not require advocates to be lawyers and prescribes their duties by statute, so the fact that some are lawyers is incidental. It emphasized that the opinion concerns only the narrow questions under these unique statutory provisions and does not address other Bar Rules, such as those requiring honesty, that apply to a lawyer's conduct regardless of whether an attorney-client relationship exists (citing Opinion No. 101). It also declined to address how Rules 3.4 and 3.6(j) apply to government lawyers who do represent agencies or officials in an attorney-client relationship.

Currency note

This opinion was issued in 1991, 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: Does the no-contact rule bar a state advocate from contacting a represented employee during an investigation?

A: The opinion concluded no on these facts. Because the advocates have no attorney-client relationship with the Department's clients, Rule 3.6(j) (which applies during representation of a client) does not apply.

Q: Do the conflict-of-interest rules apply when advocates investigate one Department client against another?

A: The opinion concluded no. It held the Department's "clients" are not "clients" of the advocates within Rules 3.4 and 3.6(j), so the conflict rules do not apply to that statutory work.

Q: Does it matter that some advocates are lawyers?

A: The opinion treated that as incidental. The statute does not require advocates to be lawyers and prescribes their duties, so a lawyer-advocate's status does not bring the representation-based rules into play here.

Q: Are lawyer-advocates free of all Bar Rules in this role?

A: No. The opinion stressed it did not address rules that apply to a lawyer's conduct regardless of an attorney-client relationship, such as those requiring honesty (citing Opinion No. 101).

Background and rules framework

The opinion interprets Maine Bar Rule 3.6(j) (the no-contact rule, applicable "during the course of representation of a client") and Rule 3.4 (conflicts of interest), holding both inapplicable absent an attorney-client relationship between the advocates and the Department's clients. These correspond to ABA Model Rule 4.2 (communication with represented persons) and Model Rule 1.7 (conflicts of interest).

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 (communication with represented persons); Model Rule 1.7 (conflicts of interest)
• Maine Bar Rule 3.6(j), 3.4

Statutes:

• 34-B M.R.S.A. § 1205 (Office of Advocacy); 34-B M.R.S.A. §§ 1001(2), 1205(6) (definition of "clients")

Other opinions cited:

• Maine Professional Ethics Commission Op. 101: rules applying to a lawyer's conduct regardless of an attorney-client relationship

See also

• Maine Ethics Op. 125: Contacting an Insurance Carrier's Claims Adjuster
• Maine Ethics Op. 94: Communication With a Municipality's Employee or Official
• ABA Formal Op. 97-408: Contacting a Represented Government Agency

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89881

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 26, 1991

The Chief Advocate of the Office of Advocacy within the Department of Mental Health and Mental Retardation of the State of Maine has requested an advisory opinion relating to the responsibilities of lawyers and non-lawyers serving as advocates within the Office of Advocacy.

The Office of Advocacy is established within the Department of Mental Health and Mental Retardation (the "Department") to, among other things, investigate claims and grievances of "clients of the Department," to investigate allegations of adult and child abuse in state institutions, and to advocate on behalf of "clients of the Department" for compliance with laws relating to the rights and dignity of such persons. (34-B M.R.S.A. § 1205(1)). The "clients of the Department" are defined by 34-B M.R.S.A. § § 1001(2) and 1205(6), as persons receiving or seeking services from the Department.

The Office of Advocacy consists of 14 classified state employee positions, including a Chief Advocate, who is a lawyer, and several other advocates, some of whom are lawyers and some of whom are not lawyers. The statute establishing the Office of Advocacy (34-B M.R.S.A. § 1205) does not require that the Chief Advocate or the other advocates be lawyers. All of the advocates within the Office of Advocacy report to the Chief Advocate (34-B M.R.S.A. § 1205(2)(B)).

• Communication with Parties Represented by Counsel.

In the course of investigating a complaint by a "client of the Department" concerning abuse by an employee of an institution, a lawyer-advocate is informed by the employee's lawyer that the employee is represented by counsel in that investigation and that the lawyer-advocate should not communicate with the employee. Under these circumstances, does Maine Bar Rule 3.6(j) apply, and if so, does that rule also prohibit a non-lawyer advocate from communicating with the party represented by counsel?

Rule 3.6(j) provides as follows:

(j) Communicating With Adverse Party. During the course of representation of a client, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so.

It is the opinion of the Commission that the relationship between the advocates and the "clients of the Department" is not an attorney-client relationship and that therefore Rule 3.6(j), which applies to lawyers "during the course of representation of a client," is not applicable to such communications.

• Conflict of Interest Issues.

In the course of investigating complaints by "clients of the Department" against other "clients of the Department," the question is presented as to whether the conflict of interest provisions of Rule 3.4 of the Maine Bar Rules apply to the lawyer-advocates and the non-lawyer-advocates.

It is the opinion of the Commission that those conflict of interest Rules do not apply to the advocates in the particular circumstances presented because the relationship between the advocates and the "clients of the Department" is not an attorney-client relationship. Although the statute (34-B M.R.S.A. § 1205(6)) uses the term "client" as referring generally to persons seeking or receiving services of the Department, those persons are not "clients" of the advocates within the meaning of Bar Rules 3.4 and 3.6(j).

In considering the questions presented, the Commission notes that the statute establishing the Office of Advocacy has not required that the advocates be lawyers. The particular responsibilities of the advocates are prescribed by statute. The fact that some of them are lawyers is incidental.

This Opinion concerns only the narrow questions presented under the unique statutory provisions involved and does not address other Bar Rules, such as those requiring honesty, which apply to conduct of a lawyer regardless of whether the lawyer is engaged in the practice of law or whether an attorney-client relationship exists. See The Professional Ethics Commission Opinion No. 101.

By reason of the conclusions of the Commission in this matter, the Commission need not here address, and therefore does not here address, matters concerning the applicability of Bar Rules 3.4 and 3.6(j) to government lawyers who represent governmental agencies or officials in an attorney-client relationship.