Will the Maine ethics committee issue an advisory opinion about another attorney's past or proposed conduct?

Plain-English summary

An attorney asked whether a law firm, one of whose members is a town's attorney, could represent a developer seeking permits and zoning changes from the town while the town-attorney member continued to advise the town. Rather than answer, the Commission declined, explaining the limits of its advisory function.

The Commission, created by the Supreme Court in 1985 under Bar Rule 11, issues advisory opinions but must not interfere with the disciplinary process run by Bar Counsel and the Grievance Commission. It must respond to opinion requests from the Court, Bar Counsel, the Grievance Commission, and the Board of Overseers, but responding to inquiries from individual attorneys is discretionary. Drawing on the Grievance Commission's experience, the Commission noted that attorneys sometimes seek advisory opinions about another lawyer's past conduct as an alternative to filing a grievance.

The Commission gave two reasons not to act on such requests: it proceeds ex parte without investigating facts, so an opinion applied to a real case may be one-sided and inaccurate; and an opinion about past conduct could be used to suggest publicly that an adversary acted unethically, drawing the Commission into fact-finding it is neither equipped nor authorized to conduct. Following the ABA Standing Committee's practice, the Commission adopted two limits: unless the request comes from a disciplinary authority, it will not opine on conduct that has already occurred, and generally will not opine on the proposed conduct of anyone other than the requesting attorney. Because the inquiry concerned the past and anticipated conduct of another person, the Commission declined to respond, while emphasizing it remains willing to answer proper inquiries and that bodies of coordinate jurisdiction may still request mandatory opinions.

Currency note

This opinion was issued in 1986, 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 Treat this page as historical context, not current guidance.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: Will the ethics committee tell me whether another lawyer's conduct was proper?

A: The opinion concluded no. Unless a disciplinary authority requests it, the Commission will not opine on conduct that has already occurred, and it directed such questions to Bar Counsel and the Grievance Commission.

Q: Why won't the committee opine on a third party's conduct?

A: The opinion explained the Commission proceeds ex parte without investigating facts, so an opinion could be one-sided and inaccurate, and could be misused to brand an adversary unethical, pulling the Commission into fact-finding it is not authorized to do.

Q: Whose conduct can the committee opine on?

A: The opinion concluded the Commission generally opines only on the requesting attorney's own proposed (future) conduct, except that a disciplinary authority may request an opinion on other matters, and such requests are mandatory rather than discretionary.

Background and rules framework

The opinion interprets the Commission's own jurisdiction under Maine Bar Rule 11(c), which makes opinions requested by the Court, Bar Counsel, the Grievance Commission, or the Board of Overseers mandatory, and opinions requested by individual attorneys discretionary. It does not interpret a substantive Model Rule of Professional Conduct; it states the Commission's policy, modeled on the ABA Standing Committee on Ethics and Professional Responsibility, of confining advisory opinions to the requesting attorney's own future conduct.

Citations and references

Rules of Professional Conduct:

• Maine Bar Rule 11(c) (advisory-opinion jurisdiction of the Professional Ethics Commission)

Other authority:

• Practice of the ABA Standing Committee on Professional Ethics (declining opinions on past conduct and on non-requesting attorneys' conduct)

See also

• Maine Ethics Op. 66: Settling a Malpractice Claim by Withdrawing a Grievance
• ABA Formal Op. 04-433: Reporting a Non-Practicing Lawyer

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91111

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: January 7, 1986

Question

A Maine attorney has asked the Commission whether it is proper for a law firm, one of the members of which is the town attorney of a municipality, to represent a real estate developer in acquiring permits, special exceptions and zoning changes from the appropriate agencies of the town, assuming that the town attorney member continues to advise and represent the town: a) in connection with the developer's permit and zoning requests; b) on other matters, but not in connection with the developer's requests.

Opinion

For the following reasons the Commission declines to answer the question.

Advisory opinions interpreting the Bar Rules were previously issued by the Grievance Commission. The Professional Ethics Commission was established by the Maine Supreme Court on February 15, 1985, under new Bar Rule 11 to assume this function. As an independent body the Commission must be careful not to interfere with the jurisdiction of other agencies involved in the disciplinary process. Its function is solely to issue advisory opinions.

The mandatory duties of the Commission include responding to opinion requests from the Court, Bar Counsel, the Grievance Commission and the Board of Overseers. [Bar Rule 11(c)(2)]. The Commission is authorized, but is not required, to respond to inquiries from members of the Bar. The Commission recognizes that this discretionary function, properly exercised, can be of considerable assistance to the Bar. The experience of the Grievance Commission in rendering advisory opinions however, revealed an occasional tendency on the part of attorneys to seek advisory opinions concerning past conduct of other attorneys as an alternative to filing a grievance.

The authorities empowered to investigate and act on questions as to whether the past conduct of an attorney violates the Bar Rules are Bar Counsel and the Grievance Commission, not the Ethics Commission. While a request for an advisory opinion may seem to be a less drastic way of dealing with perceived violations of the Bar Rules, there are several reasons why the Ethics Commission should not act on such requests.

First, the Ethics Commission proceeds ex parte and without investigating the facts. Consequently, an ostensibly advisory opinion, when applied to the real case, may be one-sided and inaccurate.

Second, if the Ethics Commission were to issue an opinion regarding past conduct, the attorney requesting the opinion might later seek to use it to suggest publicly that his adversary had been guilty of unethical conduct. He is quite likely to use the opinion this way in a non-public encounter. The target attorney naturally then will ask to have the matter reconsidered in light of different facts and additional arguments. Before long, the Ethics Commission would be embroiled in a fact finding process it is neither equipped nor authorized to conduct.

Faced with a similar problem the ABA Standing Committee on Professional Ethics adopted two limiting policies. Unless the request for an opinion comes from a disciplinary authority, such as a Grievance Commission, the ABA Committee will not render an opinion on conduct that has already occurred and generally will not render an opinion on the proposed conduct of anyone other than the requesting attorney. We adopt both these restrictions. In determining whether these restrictions apply, the Ethics Commission will use all the information that may be available to it and will not rely solely on the inquiry itself.

The Commission has concluded that the present inquiry does not concern future conduct of the inquiring attorney. Rather it seems to inquire about past, and perhaps anticipated, conduct of another person. Accordingly we decline to respond.

Although declining to answer the present request for an advisory opinion, the commission remains interested in receiving appropriate inquiries from members of the Bar, and is anxious to render opinions that will aid attorneys in faithfully adhering to their obligations. It should also be noted that even where deferral to bodies of coordinate jurisdiction is called for, Rule 11 authorizes those bodies to request opinions of the Ethics Commission, and such opinions are mandatory rather than discretionary.