When a lawyer also serves as a part-time Complaint Justice and unknowingly issues a search warrant against his own client, can the ethics committee decide whether that violated the conflict rules?

Plain-English summary

Attorney A, a solo general practitioner in a rural area, was appointed a Complaint Justice, a role that includes issuing search warrants at law enforcement's request. Attorney A had also been court-appointed to represent Defendant D on a protection-from-abuse matter, but the client had never communicated with or met the attorney. About two months later, law enforcement sought a search warrant for an automobile suspected of holding drugs; not recognizing that the owner was Defendant D, Attorney A reviewed the affidavit and signed the warrant. The next day, when Defendant D visited, Attorney A realized the connection, immediately moved to withdraw, and asked that new counsel be appointed.

Bar Counsel asked three questions: whether the Grievance Commission has jurisdiction over an attorney's conduct while acting as a Complaint Justice; if so, whether the attorney violated the conflict rules by failing to recognize the warrant target was a client; and what Bar Rules apply to an attorney acting as a Complaint Justice.

The Commission declined to answer the first two questions. On jurisdiction, it concluded that Maine Bar Rule 11 authorizes it to render advisory opinions interpreting the Code of Professional Responsibility (Rule 3), but determining the jurisdiction of a coordinate body like the Grievance Commission is outside that authority and is a matter for the Grievance Commission. On the second question, it reasoned that whether the rules were violated required a full evaluation of the facts and testimony, a fact-finding function the Commission does not perform (citing Opinion 67), so it deferred to the Grievance Commission.

On the third question, the Commission was willing to identify potentially applicable rules without suggesting any violation. It stated that even while serving as a Complaint Justice, the lawyer remained governed by Maine Bar Rule 3, while expressing no view on whether the Code of Judicial Conduct applied. It listed as possibly applicable: Rule 3.2(f)(4) (conduct prejudicial to the administration of justice); Rules 3.2(c) and (d) as helpful analogs; Rule 3.4(a) (continuing duty to disclose information that may create a conflict); Rule 3.4(b)(1) (conflict from a substantial risk that duties to a third person would materially and adversely affect representation); Rule 3.4(e) (representation barred without informed consent where a fiduciary or other legal obligation to another creates such a risk); and Rule 3.6(a) (reasonable care, skill, and best judgment).

Currency note

This opinion was issued in 2001, 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: Did the Commission decide whether the lawyer violated the conflict rules?

A: No. The opinion held that answering would require a full evaluation of the facts and testimony, which is a fact-finding function reserved to the Grievance Commission, so the Ethics Commission declined and deferred.

Q: Did the Commission decide whether the Grievance Commission had jurisdiction over a Complaint Justice's conduct?

A: No. The opinion concluded that determining the jurisdiction of a coordinate body is outside the Ethics Commission's authority under Rule 11, and deference is owed to the Grievance Commission on that question.

Q: Is a lawyer still bound by the Bar Rules while serving as a Complaint Justice?

A: Yes, in the Commission's view. The opinion stated that even while serving as a Complaint Justice the lawyer remained governed by Maine Bar Rule 3, while expressing no view on whether the Code of Judicial Conduct also applied.

Q: Which Bar Rules did the Commission flag as potentially applicable?

A: Several conflict and conduct rules. The opinion listed Rule 3.2(f)(4) (administration of justice), Rules 3.2(c) and (d) as analogs, Rule 3.4(a), 3.4(b)(1), and 3.4(e) (conflicts and the duty to disclose), and Rule 3.6(a) (care and skill), without suggesting any of them were violated.

Background and rules framework

The opinion construes Maine Bar Rule 11 (the Ethics Commission's advisory jurisdiction over the Code of Professional Responsibility) and identifies, as potentially applicable to the conduct, Rules 3.2(f)(4), 3.2(c) and (d), 3.4(a), 3.4(b)(1), 3.4(e), and 3.6(a). The conflict rules correspond to ABA Model Rule 1.7 (concurrent conflicts), the administration-of-justice rule to Model Rule 8.4(d), and the care-and-skill rule to Model Rule 1.1 (competence). The opinion relied on prior Opinion 67 on the limits of the Commission's fact-finding role.

Citations and references

Rules of Professional Conduct:

• Model Rules 1.7, 8.4(d), 1.1
• Maine Bar Rules 11, 3.2(f)(4), 3.2(c), 3.2(d), 3.4(a), 3.4(b)(1), 3.4(e), 3.6(a)

Statutes:

• 4 M.R.S.A. § 161; 15 M.R.S.A. § 5 (Complaint Justice authority).

Other opinions cited:

• Maine Prof. Ethics Comm'n Op. 67 (1986).

See also

• NY State Bar Op. 632: Part-Time Judge Conflicts
• NY State Bar Op. 1243: Public Defender Related to a Part-Time Judge
• Maine Ethics Op. 188: Conflict Analysis for a Lawyer on a Municipal Planning Board

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89489

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: July 10, 2001

FACTS

Attorney A is a solo general practitioner in a rural Maine location. The local judge has appointed Attorney A to be a Complaint Justice.[1] One of the Complaint Judge?s duties is to issue search warrants upon the request of law enforcement authorities. Sometimes, their requests are received during the night and on weekends when the lawyer is not in the office. On the occasion at issue, however, law enforcement authorities went to Attorney A?s office during the day during normal business hours to request a search warrant.

Attorney A also is appointed by the courts to represent criminal defendants. Attorney A had been appointed to represent Defendant D on a violation of a Protection from Abuse matter. Although Attorney A had tried to communicate with the client and requested discovery on the case from the District Attorney, the client had not communicated with the attorney and the attorney had never spoken with or met him.

Some two months after the court appointment, law enforcement authorities requested a search warrant for an automobile because of suspected drug possession. Attorney A did not recognize that the owner of the automobile was Defendant D, and after reviewing the officer?s affidavit, Attorney A signed the search warrant. The next day Defendant D visited Attorney A and, at this point, Attorney A realized that the automobile owner for whom the search warrant was issued was Attorney A?s client. Attorney A immediately applied to withdraw from the case and requested that another attorney be appointed to represent Defendant D on the Protection from Abuse charge.

QUESTIONS

Bar Counsel has posed the following questions to us:

• Does the Grievance Commission have jurisdiction to decide cases involving conduct by an attorney when that attorney is acting as a Complaint Justice appointed by a judge?

• If so, did the attorney violate the conflict rules by failing to recognize that the person against whom the search warrant was issued was also a client?

• What Bar Rules would be applicable to an attorney acting as a Complaint Justice?

OPINION

Question 1

In response to the first question, the Commission is of the view that it does not have jurisdiction under Rule 11 of the Maine Bar Rules to answer the inquiry. Maine Bar Rule 11 grants the legal authority and jurisdiction to the Professional Ethics Commission to ?render advisory opinions to the Court, Board, Bar Counsel, and to the Grievance Commission on matters involving the interpretation and application of the Code of Professional Responsibility (Rule 3)?. Although the Professional Ethics Commission is authorized upon request of the Bar Counsel or the Grievance Commission to render advisory opinions as to the interpretation of Rule 3 of the Bar Rules, the question posed in this case necessarily entails a determination of the jurisdiction of a coordinate agency established by the Bar Rules. Such a question is we believe outside the authority granted to us. Rather, consideration of the appropriate scope of jurisdiction of a coordinate body such as the Grievance Commission is an issue as to which deference should be accorded to the Grievance Commission. Accordingly, we respectfully decline to answer the question posed to us by Bar Counsel.

Question 2

The second question as posed to us necessarily entails a determination of all the facts in this matter. Under the structure of the Bar Rules, we believe that is a task, which is appropriately assigned to the Grievance Commission. The Professional Ethics Commission has long been careful both to avoid interfering in the jurisdiction of other agencies involved in the disciplinary process and to avoid rendering ethical opinions in circumstances where the answer requires a finding of facts. Thus, in Ethics Opinion 67 (January 7, 1986), the Ethics Commission held that its proper role under the Bar Rules was limited to providing interpretations of Rule 3 with respect to future conduct of attorneys, rather than as to circumstances that required the exercise of fact finding functions. In this case, the question of whether the Bar Rules were violated requires a full evaluation of all the facts and circumstances and the testimonial examination of the parties involved, all of which information is not available to the Ethics Commission. Accordingly, we respectfully decline to answer and defer to the Grievance Commission for its determination after full consideration of the relevant facts and circumstances.

Question 3

Although we have declined to answer the first two questions, we do believe it is appropriate to suggest to the Grievance Commission those Bar Rules, which may be applicable to the conduct, described. In listing these rules, we do not suggest that the attorney has violated them, but rather that the Grievance Commission should evaluate the facts it finds in light of the rules enumerated.

First, we note that we believe that, even though the lawyer was serving as a Complaint Justice, she or he was nonetheless governed by Maine Bar Rule 3. We do not express any view as to whether there may be any applicable provisions of the Code of Judicial Conduct or whether that code even applies.

With the qualification noted in the first paragraph of this section, we believe that several Bar Rules may apply to the facts as presented, including (1) Maine Bar Rule 3.2(f)(4), concerning the prohibition against lawyers engaging in conduct that is prejudicial to the administration of justice; (2) although Bar Rules 3.2(c) and (d) may not by their specific terms apply to activities performed as a complaint justice, they may be helpful analogs in determining under what circumstances undertaking legal representation following the performance of activities as a complaint justice are ?prejudicial to the administration of justice, under Bar Rule 3.2(f)(4)?; (3) Maine Bar Rule 3.4(a), imposing a continuing duty on lawyers to disclose any information that, in light of circumstances arising after the commencement of representation, might reasonably give rise to a conflict of interest; (4) Maine Bar Rule 3.4(b)(1), outlining the obligation of lawyers not to commence or to continue representation of a client if there is a substantial risk that the lawyer?s representation of one client would be materially and adversely affected by the lawyer?s duty to a third person; (5) Maine Bar Rule 3.4(e) prohibiting a lawyer from undertaking or continuing representation of a client without informed consent in any matter with respect to which the lawyer has a fiduciary or other legal obligation to another person if the obligation represents a substantial risk of materially and adversely affecting the lawyer?s representation of the client; and (6) Maine Bar Rule 3.6(a) requiring lawyers to employ reasonable care and skill and apply best judgment in the performance of professional services.

Footnote

[1] See 4 M.R.S.A. Section 161 (Justice of the Peace) and 15 M.R.S.A. Section 5