RULE 2. Bar Counsel

(a)      Appointment. The Board, subject to the Court’s approval, shall appoint a lawyer admitted to practice in Maine to serve as Bar Counsel. The Board may also appoint Assistant Bar Counsel or Deputy Bar Counsel as deemed necessary. Neither Bar Counsel nor any attorney employed on a full-time basis as an Assistant or Deputy Bar Counsel shall engage in the private practice law, or participate in activities that (1) will lead to Bar Counsel’s frequent disqualification or (2) would appear, to a reasonable person, to undermine Bar Counsel’s integrity. As needed, the Board has the power to employ Special Counsel, who shall not be subject to the prohibition of the private practice of law.

(b)       Powers and Duties. Bar Counsel shall perform all prosecutorial functions on behalf of the Court and the Board hereunder, and have the following powers and duties:

(1)  to evaluate all information coming to the attention of the office of Bar Counsel to determine whether such information concerns a lawyer subject to the jurisdiction of the Board;

(2)  to investigate all information coming to the attention of the office of Bar Counsel that, if true, would be grounds for discipline, and to investigate all facts pertaining to petitions for reinstatement;

(3)  to make referrals to the Central Intake Office, to issue stays, dismiss complaints, recommend dismissals with a warning, refer respondent to the Alternatives to Discipline Program pursuant to Rule 13(c), or file formal charges with respect to each matter brought to the attention of the Board;

(4)  to prosecute before Grievance Commission panels, the Board, and/or the Court any appropriate discipline and reinstatement proceedings;

(5)  to supervise staff needed for the performance of prosecutorial functions;

(6)  to notify the complainant and the respondent when Bar Counsel dismisses a complaint, including but not limited to providing to the complainant:

        (A)  a copy of any written communication from the respondent to Bar Counsel relating to the matter except information that is subject to the privilege of one other than the complainant; and

        (B)  a concise written statement of the facts and reasons supporting a dismissal at the conclusion of Bar Counsel's investigation and a copy of the written guidelines for dismissal issued pursuant to Rule 3(a)(5), provided that the complainant shall be given a reasonable opportunity to rebut statements of the respondent before the complaint is dismissed;

(7)   to issue written guidelines for use by the Central Intake Office and Bar Counsel to determine which matters shall be dismissed for failure to allege facts that, if true, would constitute grounds for disciplinary action;

(8)   to seek reciprocal discipline when informed of any public discipline imposed in any other jurisdiction; and

(9)   to encourage and promote competent and ethical practice by members of the Maine Bar by organizing, participating in, and presenting CLE programs.

(c)      Advisory Opinions. Upon request by an attorney licensed to practice law in Maine, Bar Counsel may render confidential, informal, non-binding advisory opinions to such attorney concerning interpretation or applicability of these Rules or the Maine Rules of Professional Conduct, provided that (1) the facts describe and involve the conduct of the particular inquiring attorney, or another attorney at that attorney's law firm and (2) at the time of any such informal advisory opinion, the inquiring attorney is informed by Bar Counsel that such an opinion is not binding and may be subject to eventual revision or reversal by either the Grievance Commission or the Professional Ethics Commission. Such opinions may be provided orally or in writing. Bar Counsel may also assist the Professional Ethics Commission in performing its duties under these Rules.

Should a complaint be filed involving the subject matter and the attorney who requested the advisory opinion, the Bar Counsel who rendered the opinion shall be recused from any investigation and prosecution of the complaint.

(d)      Ex Parte Communication.

(1)   Members of a Grievance Commission panel, the Board, the Court or Single Justices shall not communicate ex parte with Bar Counsel regarding a pending or impending investigation or disciplinary matter except as explicitly provided for by Rule 13(d), other law, or for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits provided that:

        (A)   it is reasonable to believe that no party will gain a procedural or tactical advantage as a result of the ex parte communication; and

        (B)   all other parties are notified of the substance of the ex parte communication and provided an opportunity to respond.

(2)   A violation of this rule shall be a ground for lawyer or judicial discipline, as appropriate, and cause for removal from the Grievance Commission panel or the Board.

(e)      Successive Employment. A former Bar Counsel shall comply with Rule 1.11 of the Maine Rules of Professional Conduct regarding successive government and private employment.

(f)      Recusal.

(1)   Bar Counsel and staff attorneys must be sensitive to familial or close personal or professional relationships between themselves and respondents, complainants, or other related parties which may result in a conflict of interest, or the appearance of a conflict of interest, or which could otherwise interfere with the proper performance of their duties.

(2)   Staff attorneys who become aware of the existence of such a relationship in a particular case shall immediately report the nature and circumstances of that relationship to Bar Counsel who will review the matter, including all relevant information brought to his or her attention to determine whether the staff attorney should be disqualified.

(3)   In determining whether to make a report to Bar Counsel under this policy, a staff attorney shall consider, and be guided by, the provisions of the Maine Rules of Professional Conduct as well as the factors for judicial disqualification listed in the Maine Judicial Code of Conduct.

(4)   In determining whether a staff attorney should be recused from a particular case, Bar Counsel shall likewise consider all provisions of the Maine Rules of Professional Conduct as well as the factors for judicial disqualification listed in the Maine Judicial Code of Conduct.

(5)   If Bar Counsel concludes that a staff attorney should be recused from a particular case under this policy, the matter shall be reassigned to another staff attorney, or if no other staff attorney is available, to Bar Counsel personally, or to Special Counsel pursuant to Rule 14(c)(1).

(6)   In the event that the case is reassigned under this policy, the disqualified attorney shall have no involvement in the case, or any interaction with the assigned attorney regarding the case.

(7)   In the event that Bar Counsel concludes that he, or she, personally has such a relationship described above, Bar Counsel shall immediately apprise the Board Chair of the potential conflict of interest, and the investigation shall be assigned to Special Counsel pursuant to Rule 14(c)(1).

(8)   Neither Bar Counsel nor staff attorneys may testify voluntarily in any proceedings under these Rules or as an expert witness in any court proceeding in the field of ethics.

(g)      Continuing Legal Education Lectures. Bar Counsel may lecture at continuing legal education seminars on topics relating to ethics or professionalism provided that Bar Counsel shall do so without compensation. Bar Counsel may be reimbursed for travel and ancillary expenses.


Reporter’s Notes – June 2015

Rule 2(a) is based on Model Rule 4. The committee considered former Maine Bar Rules 4(d)(1) and (2), and 5(a) and language contained in the Board’s Personnel Manual. The revised rule retains the “Bar Counsel” name, rejecting the Model Rules’ nomenclature of “Disciplinary Counsel.” The members of the committee determined that the Maine Bar was accustomed to the “Bar Counsel” name, and that the term more accurately described the functions of the office. The revised rule follows the current Maine practice. The committee also rejected the Model Rules’ prohibition on former Bar Counsel from representing a respondent in any disciplinary proceeding for a period of one year following completion of the Bar Counsel’s service. The committee felt that the Model Rule was too inflexible and was inappropriate for a small state like Maine.

Rule 2(b) is based upon Model Rule 4(B) and is similar to former Maine Bar Rule 7.1(b)(c)(d)(e). Rule 2(b)(3) provides Bar Counsel with duties not currently included for that position, e.g., making referrals to the Central Intake Office, issuance of stays and use of the Alternatives to Discipline Program (see Rule 13(c)). While Maine Bar Rule 7.1(c) and (d) provide Bar Counsel with discretion to provide a complainant with the respondent’s informal response letter, Rule 2(b)(6)(A) requires Bar Counsel to always promptly provide a complainant with “a copy of any written communication from the respondent to Bar Counsel relating to the matter (unless subject to another individual’s privilege claim).” Rule 2(b)(6)(B) and (7) also requires Bar Counsel to issue and provide to complainants the “dismissal guidelines” for use by the Central Intake Office and Bar Counsel. The former Maine Bar Rules include no such comparable guidelines.

Rule 2(c) is based upon former Board Regulation 28 and Model Rule 4(C). The committee rejected the Model Rule’s prohibition of the issuance of advisory opinions by Bar Counsel. Instead, the committee retained current Maine practice which permits Bar Counsel to render advisory opinions. The members of the committee concluded that members of the bar had come to rely on informal advisory opinions rendered by Bar Counsel. The committee felt that so long as the opinions are informal and non-binding, and the requesting attorney is so advised, a complete ban on such opinions was unwarranted.

Rule 2(d) is derived from Model Rule 4(D) and Board Regulation No. 57. The revised rule is substantially in accord with the Model Rule.

Rule 2(e) is derived from Model Rule 4(E). There is no equivalent former Maine Bar Rules.