May a lawyer file a class action against a government agency when a different agency of the same government paid the lawyer's fees for the class representatives' related matters?

Plain-English summary

The Commission was asked whether a lawyer would violate the Bar Rules by filing a class action against a government agency when the lawyer had been paid by a different agency of the same government for providing legal services to the plaintiff class representatives in other, somewhat related matters. The lawyer proposed to inform the class representatives that an agency of government had paid his fees in those other matters.

The Commission concluded the described circumstances would not violate the Maine Bar Rules. The class representatives are the lawyer's clients in both the prospective class action and the matters for which the government agency paid fees; the paying agency is not a client. Allowing the paying agency to direct or regulate the lawyer's professional judgment would violate Rule 3.6(h), which provides that a person who recommends, employs, or pays a lawyer to render legal services for another may not be permitted by the lawyer to direct or regulate the lawyer's professional judgment.

Because a conflict of interest arises from an adverse effect on the lawyer's independent professional judgment on behalf of one client caused by representing another, the proposed class action would not violate Rule 3.4 for two reasons: no attorney-client relationship exists between the lawyer and the paying government agency, and Rule 3.6(h) requires the lawyer not to allow the payor to direct or regulate professional judgment. The Commission observed that this conclusion is reinforced by the lawyer's existing representation of individual class members in other matters, where the same conflict would already exist because another agency of the same government is the opposing party in each case. The Commission agreed that disclosure to the client class representatives is required, citing Rule 3.4(f) and Opinion 63.

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 Treat this page as historical context, not current guidance.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: Can a lawyer sue a government agency when another agency of that government paid the lawyer's fees in related matters?

A: The opinion concluded yes. It held the class representatives, not the paying agency, are the clients, so there is no conflict on the described facts.

Q: Does the paying agency become a client by paying the fees?

A: The opinion concluded no. It held no attorney-client relationship exists between the lawyer and the paying agency, which is a third-party payor rather than a client.

Q: What limit applies to the payor's role?

A: The opinion held that, under Rule 3.6(h), the lawyer may not permit the paying agency to direct or regulate the lawyer's professional judgment in rendering services for the class representatives.

Q: Is disclosure to the clients required?

A: Yes. The opinion concluded disclosure to the client class representatives is required, citing Rule 3.4(f) and Opinion 63.

Background and rules framework

The opinion interprets Maine Bar Rule 3.6(h) (a person who recommends, employs, or pays a lawyer to serve another may not direct or regulate the lawyer's professional judgment) and Rule 3.4(f) (disclosure where another pays for the representation), alongside the conflict-of-interest principles of Rule 3.4. These correspond to ABA Model Rule 1.8(f) (compensation from a third party) and Model Rule 5.4(c) (a third-party payor must not direct the lawyer's professional judgment).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.8(f) (third-party compensation); Model Rule 5.4(c) (payor not directing judgment)
• Maine Bar Rule 3.6(h), 3.4(f)

Other opinions cited:

• Maine Professional Ethics Commission Op. 63: disclosure where a third party pays for the representation

See also

• Maine Ethics Op. 122: Notifying the Employer Before Settling a Comp Claim
• ABA Formal Op. 01-421: Insurer Litigation Guidelines
• Maine Ethics Op. 164: Releasing Insured's Confidences to an Auditor

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89875

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Issued by the Professional Ethics Commission

Date Issued: November 14, 1991

QUESTION

The Commission has been asked whether the inquiring attorney would violate any Bar Rule by filing a class action against a government agency if the attorney had received payment from a different agency of the same government for providing legal services to the plaintiff class representatives in matters other than the class action but somewhat related thereto. The inquiring attorney proposes to inform the plaintiff class representatives that his fees in their other matters have been paid by the government agency.

OPINION

The Commission is of the opinion that the circumstances described in the question would not involve a violation of the Maine Bar Rules. It is the plaintiff class representatives who are the clients of the inquiring attorney in both the prospective class action and the matters for which legal fees have been paid by an agency of government. The government agency paying for the legal services is not a client. Moreover, allowing that government agency to direct or regulate the professional judgment applied to the rendition of legal services for the class representatives would violate Bar Rule 3.6(h), which provides:

(h) Avoiding Influence by Others. A person who recommends, employs, or pays a lawyer to render legal services for another shall not be permitted by the lawyer to direct or regulate the lawyer's professional judgment in rendering such legal services.

Since a conflict of interest arises out of an adverse effect on the exercise of a lawyer's independent professional judgment in behalf of one client that is or could be caused by representation of another, the proposed class action would not involve a violation of Rule 3.4 for two reasons: no attorney client relationship exists between the attorney and the government agency paying for legal services, and; Rule 3.6(h) requires that the attorney not allow the exercise of professional judgment to be directed or regulated by the payor. This conclusion is reinforced by the attorney's present arrangements for representation of individual class members in other matters. In the case described by the inquiring attorney, the same conflict on which the inquiry focuses would exist with respect to the very services the attorney has been paid to perform, since another agency of the same government is the opposing party in each case. The Commission agrees that disclosure to the client class representatives is required in the circumstances. Bar Rule 3.4(f); Opinion 63.