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Bar Counsel Notes: Commencement and Withdrawal from Representation
S has been representing P in his two year family matter, including (unfortunately) directly helping P in the sale of his residence and certain items of personal property at the end of his divorce. Litigation is now likely to be filed against P regarding the terms of the negotiations and resulting agreement in P's sale of certain rare gems and minerals. S is the only lawyer P trusts and wants her to represent him. Can S handle that litigation for P despite the possibility of her being called as a witness?
If S decides to take on this representation, she must inform P that she is at risk of violating M. R. Prof. Conduct 3.7 (lawyer as a witness). However, she may be able to still serve as his attorney if the conditions of Rule 3.7(a)(3) and/or 3.7(b) are applicable. S should first assert that given her extensive and long-term involvement with P's peculiar needs and circumstances, her removal or disqualification from service as P's attorney would cause a "substantial hardship" on him (see Comment [4] to M. R. Prof. Conduct 3.7(a)(3), noting that conflict Rules 1.7, 1.9 and 1.10 are inapplicable in such matters). As an alternative, S may also have a basis to proceed under Rule 3.7(b),allowing her to handle this matter if she is able to do so in association with another attorney, (Q) at her firm. That is, as long as neither S nor Q is disqualified under Rule 1.7 or Rule 1.9, S is not prohibited from appearing as P's attorney, provided that Q handles the matter during the portion of which S is called as a witness.
*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.
