1. Scope Of Rules

(a) Jurisdiction. These rules govern the practice of law by attorneys within this State and the conduct of attorneys with respect to their professional activities and as officers of the Court. Any attorney admitted to, or engaging in, the practice of law in this State shall be subject to the Court's supervision and disciplinary jurisdiction and the provisions of these rules, including Maine Bar Rule 1(b). A lawyer admitted to practice in this State is subject to the Court's disciplinary authority, regardless where the lawyer's conduct occurs. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction where the lawyer is admitted for the same conduct. A justice or judge shall be subject to the provisions of these rules as to conduct relevant to that person's position as an attorney and as to conduct prior to becoming, or after ceasing to be, a Justice or Judge. There shall be coordination between the Board and the Committee on Judicial Responsibility and Disability in any investigations or proceedings concerning a Justice or Judge arising out of the same or related conduct in order to avoid unnecessary or inappropriate duplication of any such investigations or proceedings.

(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:

(1) Court Related Conduct. For conduct in connection with a proceeding in a tribunal before which a lawyer has been admitted to practice (either generally or for purposes of that proceeding), including all preparatory and pretrial or prehearing activities required or authorized by statute, rule or custom of the tribunal, the rules to be applied shall be the rules of professional conduct of the tribunal or of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise or neither the tribunal nor the jurisdiction in which it sits have adopted rules of professional conduct applicable to the proceeding; and

(2) Other Conduct. For any other conduct.

(i) if the lawyer is licensed to practice only in this jurisdiction, the rules to be applied shall be the rules of this jurisdiction, and

(ii) if the lawyer is licensed to practice in this and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct.

(c) Amendment. The Board, the Grievance Commission, the Fee Arbitration Commission, the Professional Ethics Commission, or any 10 members of the Bar of this States may submit to the Court written suggestions or proposals for revision or amendment of these rules.

(d) Justices. Except where powers are expressly given to the full Court, or the context indicates clearly that the full Court alone is to have the power, the powers of the Court with respect to these rules may be exercised by a single justice of the Court, subject to appropriate review by the Law Court.

(e) Definitions.

The following terms shall have the following meanings when used in the Maine Bar Rules:

(1) "Board." "Board shall mean the Board of Overseers of the Bar.

(2) "Client." "Client refers to a person, public officer, or corporation, association or other organization or entity, either public or private, who is being rendered professional legal services by a lawyer.

(3) "Court." "Court" shall mean the Maine Supreme Judicial Court.

(4) "Former Client." "Former client" refers to a client for whom the lawyer previously rendered and then terminated professional legal services, and for whom the lawyer is not currently rendering any such legal services.

(5) "Law Firm." Unless the context requires a narrower meaning, "law firm" shall mean any legal entity or group associated by contract, however designated, that in fact provides legal services through lawyers, but shall not include a government agency or lawyers organized as a department within a government agency.

(6) "Partner." Unless the context requires a narrower meaning, "partner" shall mean a member of a group, however designated, that exercises ultimate authority over the activites of a legal entity or contractual association through which legal services are provided by lawyers.

(7) "Prospective Client." "Prospective client" refers to a person, public officer, or corporation, association or other organization or entity, either public or private, who consults a lawyer with the view of obtaining professional legal services from the lawyer.

(8) "These Rules." Unless the context requires a narrower meaning, the term "these rules," when it appears in the Maine Bar Rules, shall be deemed to refer to the Maine Bar Rules, shall be deemed to refer to the Maine Bar Rules and the Maine Rules of Professional Conduct.

2. Purpose of Rules

(a) General Construction. These rules are intended to provide appropriate standards for attorneys with respect to their practice of the profession of law, including, but not limited to their relationship with their clients, the general public, other members of the legal profession, the courts and other agencies of this State. A proceeding brought against an attorney under these rules shall be an inquiry to determine the fitness of an officer of the court to continue in that capacity. The purpose of such proceeding is not punishment but protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Further, these rules are intended to provide for a just determination of complaints alleging misconduct on the part of attorneys, and misunderstandings between attorneys and their clients. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense, delay and inconvenience. Whenever the word "Court" appears herein, it shall mean the Supreme Judicial Court. Whenever the word "Board" appears herein, it shall mean the Board of Overseers of the Bar.

(b) Amendment. The Board, the Grievance Commission, the Fee Arbitration Commission, the Professional Ethics Commission, or any 10 members of the Bar of this State may submit to the Court written suggestions or proposals for revision or amendment of these rules.

(c) Grounds for Discipline. Each act or omission by an attorney, individually or in concert with any other person or persons, which violates any of these rules shall constitute misconduct and shall be grounds for appropriate discipline notwithstanding that the act or omission did not occur in the course of an attorney-client relationship or in connection with proceedings in court. The failure without good cause to comply with any rule, regulation or order of the Board or the Grievance Commission or to respond to any inquiry by the Board, the Grievance Commission or Bar Counsel shall constitute misconduct and shall be grounds for appropriate discipline.

(d) Types of Discipline. Discipline of attorneys may be: (1) by disbarment, suspension, or public reprimand by the Court; or (2) by public reprimand by the Board or by a panel of the Grievance Commission.

2-A. [ABROGATED] Aspirational Goals for Lawyer Professionalism

Text of Rule effective until August 1, 2009.

(a) Aspirational Goals for Lawyer Advertising. A lawyer should ensure that any advertising that the lawyer communicates or causes to be communicated by publication, broadcast, or other media is informative to potential clients, is presented in an understandable and dignified fashion, and accurately portrays the serious purpose of legal services and our judicial system. When advertising, though not false or misleading, degenerates into undignified and unprofessional presentations, the public is not served, the reputation of the lawyer who advertises may suffer, and the public?s confidence in the legal profession and the judicial system may be harmed. Lawyers who advertise should recognize their obligation to advance the public?s confidence in the legal profession and our system of justice. In furtherance of these goals, lawyers who advertise should:

(1) Avoid statements, claims, or comparisons that cannot be objectively substantiated;

(2) Avoid representations that demean opposing parties, opposing lawyers, the judiciary, or others involved in the legal process;

(3) Avoid crass representations or dramatizations, hawkish spokespersons, slapstick routines, outlandish settings, unduly dramatic music, sensational sound effects, and unseemly slogans that undermine the serious purpose of legal services and the judicial system;

(4) Avoid representations to potential clients that suggest promises of results or will create unjustified expectations such as ?guaranteed results? or ?we get top dollar awards?;

(5) Clearly identify the use of professional actors or other spokespersons who may not be providing the legal services advertised unless it is readily apparent from the context of the advertisement that the actor or spokesperson does not provide the advertised legal services (e.g., a radio advertisement in which the speaker does not purport to be the lawyer or a member of the firm);

(6) Avoid the use of simulated scenes, actors who portray lawyers, clients or participants in the judicial system, and dramatizations unless they are clearly identified as such;

(7) Avoid representations that suggest that the ingenuity or prior record of a lawyer, rather than the merits of the claim, are the principal factors likely to determine the outcome of the representation; and

(8) Avoid representations designed to appeal to greed, exploit the fears of potential clients, or promote a suggestion of violence.

These aspirational goals are intended to provide suggested objectives that all lawyers who engage in advertising their services should be encouraged to achieve in order that lawyer advertising may be more effective and reflect the professionalism of the legal community.

(b) Aspirational Goals for Public Interest Legal Service. A lawyer engaged in active practice in the State of Maine should render unpaid public interest legal service of a type and amount reasonable in all the circumstances. For purposes of this rule, ?unpaid public interest legal service? means:

(1) The provision of professional services at no fee or a reduced fee to persons of limited means;

(2) Participation in a program under which free legal services to the indigent are provided by individual lawyers upon referral from a central agency;

(3) The provision of professional services at no fee or a reduced fee to charitable organizations that provide services or support for the indigent; or

(4) Service in activities for improving the law, the legal system, or the legal profession.

3. [ABROGATED] Code of Professional Responsibility

The Code of Professional Responsibility is abrogated and the Maine Rules of Professional Conduct are adopted effective August 1, 2009.

3.1 [ABROGATED] Scope and Effect

Text of Rule effective until August 1, 2009

(a) This Code shall be binding upon attorneys as provided in Rule 1(a). Violation of these rules shall be deemed to constitute conduct "unworthy of an attorney" for purposes of 4 M.R.S. ? 851. Nothing in this Code is intended to limit or supersede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation; and the prohibition of certain conduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned.

(b) Although this Code is prospective in application, it may be considered as advisory by the Board of Overseers of the Bar and by the Grievance Commission in their disposition of disciplinary proceedings related to conduct occurring before its effective date.

3.2 [ABROGATED] Admission, Disclosure and Misconduct

Text of Rule effective until August 1, 2009

(a) Unauthorized Practice.

(1) A lawyer shall not practice law in a jurisdiction where to do so would be in violation of law or court rule.

(2) A lawyer shall not aid any person, association, or corporation in the unauthorized practice of law.

(b) Misstatements on Admission.

(1) In connection with a lawyer's application for admission to the bar, a lawyer shall not make any statement which the lawyer knows or should know is false or misleading, nor shall the lawyer fail to disclose any fact or information which the lawyer knows or should know is material to such application.

(2) A lawyer shall not further the application for admission to the bar of another person known by the lawyer to be unqualified in respect to character, education, or other relevant attribute.

(c) Judicial Officers.

(1) A lawyer shall not make a false statement of fact, with knowledge that it is false or with reckless disregard as to its truth or falsity, concerning the qualifications or integrity of a judge or other adjudicatory officer in the court system or a candidate for election or appointment to office as a judge or other adjudicatory officer in the court system.

(2) A lawyer who is a candidate for appointment to judicial office or election as judge of probate shall comply with the applicable provisions of Canon 5 of the Maine Code of Judicial Conduct.

(d) Acts as a Public Official. A lawyer who holds public office shall not:

(1) Use that public position to influence, or attempt to influence, a court or other public body or official engaged in adjudicatory proceedings to act in favor of the lawyer, any partner or associate, or any lawyer affiliated with them, or of a client of any of them;

(2) Represent a client before an elected or appointed public body of which the lawyer is a member, or before any committee or subcommittee of that body. If a lawyer is required to decline representation by virtue of this paragraph, Rule 3.4(b)(3) imposes no disqualification upon the partners or associates of the lawyer or upon any other lawyer affiliated with the lawyer or the lawyer's firm, provided that full disclosure of the relationship is made upon the record at or before the commencement of the representation.

(e) Disclosure of Misconduct by Other Lawyers.

(1) A lawyer possessing unprivileged knowledge of a violation of the Maine Bar Rules that raises a substantial question as to another lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall report such knowledge to the appropriate disciplinary or investigative authority.

(2) A lawyer possessing unprivileged knowledge of a violation of the Code of Judicial Conduct that raises a substantial question as to the fitness for judicial office of a judge or other adjudicatory officer of a court system shall report such knowledge to the appropriate disciplinary or investigative authority.

(3) Notwithstanding paragraphs (1) and (2) of this subdivision, a lawyer serving in any capacity in a peer assistance or substance abuse treatment program approved by the Board of Overseers of the Bar shall not report or disclose any knowledge or evidence concerning another lawyer obtained as a result of a communication made by that lawyer while seeking or receiving peer assistance or substance abuse treatment under such program without that lawyer's informed written consent. This provision is not violated by the report or disclosure of that lawyer's intent to commit a crime or the information necessary to prevent the crime or to avoid subjecting others to the risk of harm, or by any report or disclosure otherwise required by law or by order of court.

(f) Other Misconduct. A lawyer shall not:

(1) directly or indirectly violate, circumvent, or subvert any provision of the Maine Bar Rules;

(2) engage in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects;

(3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

(4) engage in conduct that is prejudicial to the administration of justice.

(g) Restrictions on Right to Practice. A lawyer shall not participate in offering or making:

(1) a partnership or employment agreement that restricts the right of a lawyer to practice after termination of the relationship, except as a condition of the right to receive post-termination payments or other post-termination benefits; or

(2) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a controversy between private parties.

(h) Responsibilities Regarding Law-Related Services.

(1) A lawyer shall be subject to the Code of Professional Responsibility with respect to the provisions of law-related services, as defined in paragraph (2), if the law-related services are provided:

(i) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal services to clients; or

(ii) by a separate entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services of the separate entity are not legal services and that the protections of the client-lawyer relationship do not exist.

(2) The term "law-related services" denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a non-lawyer.

3.3 [ABROGATED] Fees; Fee Arbitration; Fee Division

Text of Rule effective until August 1, 2009

(a) Excessive Fees. A lawyer shall not enter into an agreement for, charge, or collect an illegal or excessive fee. A fee is excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment of the lawyer;

(3) The fee customarily charged in the locality for similar legal services;

(4) The responsibility assumed, the amount involved, and the results obtained;

(5) The time limitations imposed by the client or by the circumstances;

(6) The nature and length of the professional relationship with the client;

(7) The experience, reputation, and ability of the lawyer performing the services;

(8) Whether the fee is fixed or contingent; and

(9) The informed written consent of the client as to the fee agreement.

(b) Credit Cards. A lawyer may accept payment by credit card for legal services.

(c) Fee Arbitration. A lawyer admitted to practice in this State shall submit, upon the request of the client, the resolution of any fee dispute in accordance with Rule 9.

(d) Fee Division. A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of the lawyer's law firm or office; unless:

(1) The client, after full disclosure, consents to employment of the other lawyer and to the terms for the division of the fees; and

(2) The total fee of the lawyers does not exceed reasonable compensation for all legal services they rendered to the client.

This subsection (d) does not prohibit payment to a former partner or associate pursuant to a separation or retirement agreement.

(e) Dividing Fees With Non-lawyers [Abrogated].

3.4 [ABROGATED] Identifying Commencement, Continuation, and Termination of Representation

Text of Rule effective until August 1, 2009.

(a) Disclosure of Interest, Commencement, and Termination: General Provisions.

(1) Disclosure of Interest. Before commencing any professional representation, a lawyer shall disclose to the prospective client any relationship or interest of the lawyer or of any partner, associate or affiliated lawyer that might reasonably give rise to a conflict of interest under these rules. A lawyer has a continuing duty to disclose to the client any information that, in light of circumstances arising after the commencement of representation, might reasonably give rise to such a conflict of interest.

(2) Commencement. Representation of a client shall be deemed to have commenced when the lawyer and the client, by conduct or communication, would each reasonably understand and agree that representation commences. Commencement of representation shall be judged by an objective, not a subjective, standard. It is the obligation of the attorney to clarify whether representation has commenced. If the client reasonably believes that representation has commenced and the attorney has failed to clarify that it has not, then representation shall have commenced.

(3) Termination. Representation of a client shall be deemed terminated upon the earlier of the following, provided that all conditions and terms of Rule 3.5 have been satisfied:

(i) A date expressly or implicitly stated in an oral or written statement by the client to the lawyer, terminating the representation;

(ii) A date expressly or implicitly communicated by the lawyer to the client, orally or in writing, sent to the client at the client's last known address, withdrawing from or terminating the representation; or

(iii) The completion of the services which were the subject of the representation.

Termination of representation does not relieve the lawyer of any obligation of confidentiality imposed by Rule 3.6(h) or of any other obligation imposed under these rules to prevent disclosure of information protected by that rule.

(4) Retention of Client Files. Upon termination of representation, a lawyer, or a lawyer?s successor, shall return to the client or retain and safeguard in a retrievable format all information and data in the lawyer?s possession to which the client is entitled. Unless information and data is returned to the client or as otherwise ordered by a court, the lawyer shall retain and safeguard such information and data for a minimum of eight (8) years, except for client records in the lawyer?s possession that have intrinsic value in the particular version, such as original signed documents, which must be retained and safeguarded until such time as they are out of date and no longer of consequence. A lawyer may enter into a voluntary written agreement with the client for a different period. In retaining and disposing of files, a lawyer shall employ means consistent with all other duties under these rules, including the duty to preserve confidential client information.

(b) Conflict of Interest: General Provisions.

(1) Basic Rule. A lawyer shall not commence or continue representation of a client if the representation would involve a conflict of interest, except as permitted by this rule. Representation would involve a conflict of interest if there is a substantial risk that the lawyer's representation of one client would be materially and adversely affected by the lawyer's duties to another current client, to a former client, or to a third person, or by the lawyer's own interests.

(2) Informed Consent. Whether a client has given informed consent to representation, when required by this rule, shall be determined in light of the mental capacity of the client to give consent, the explanation of the advantages and risks involved provided by the lawyer seeking consent, the circumstances under which the explanation was provided and the consent obtained, the experience of the client in legal matters generally, and any other circumstances bearing on whether the client has made a reasoned and deliberate choice.

(3) Imputed Disqualification.

(i) Except as otherwise provided in these rules, if a lawyer is required to decline or withdraw from representation under these rules for reasons other than health, no partner or associate, and no lawyer affiliated with the lawyer or the lawyer's firm, may commence or continue such representation.

(ii) If a lawyer or law student affiliated both with a law school legal clinic and with one or more lawyers outside the clinic is required to decline representation of any client solely by virtue of this paragraph (3), this paragraph imposes no disqualification on any other lawyer or law student who would otherwise be disqualified solely by reason of an affiliation with that individual, provided that the originally disqualified individual is screened from all participation in the matter at and outside the clinic and that full disclosure of the disqualifying circumstances and the screening measures is given to all affected parties.

(c) Conflict of Interest: Simultaneous Representation.

(1) Representation Prohibited. Notwithstanding the consent of each affected client, a lawyer may not simultaneously represent, or continue to represent, more than one client in the same matter or group of substantially related matters when the matter or matters are the subject of litigation or any other proceeding for dispute resolution and the clients are opposing parties.

(2) Representation Permitted With Consent. In all other cases, if a conflict of interest exists, a lawyer may not undertake or continue simultaneous representation of more than one client except with the informed consent of each affected client to representation of the others. Consent is required even though representation will not occur in the same matter or in substantially related matters. Simultaneous representation in the same matter or substantially related matters is undertaken subject to the following additional conditions:

(i) The lawyer must reasonably believe (A) that each client will be able to make adequately informed decisions, and (B) that a disinterested lawyer would conclude that the risk of inadequate representation is not substantial, considering any special circumstances affecting the lawyer's ability to provide adequate representation of each client, such as the fact that the clients may seek incompatible results or pursue mutually disadvantageous tactics, or that their adverse interests may outweigh their common interests.

(ii) While engaged in simultaneous representation, the lawyer shall consult with each client concerning the decisions to be made and the considerations relevant in making them, so that each client can make adequately informed decisions.

(iii) The lawyer shall terminate the simultaneous representation upon request of any client involved, or if any condition described in this paragraph (2) can no longer be met, and upon withdrawal shall cease to represent any of the clients in the matter or matters on which simultaneous representation was undertaken or in any substantially related matter, except with the consent of any clients who will no longer be represented.

(3) Settling Similar Claims. A lawyer who represents two or more clients shall not make or participate in the making of an aggregate settlement of the claims of or against those clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client has consented after being advised of the existence and nature of all the claims or pleas involved, and of the share of each person and the total amount of the settlement of a civil matter, or the participation of each person in the agreement in a criminal case.

(d) Conflict of Interest: Successive Representation.

(1) Interests of Former Clients.

(i) Except as permitted by this rule, a lawyer shall not commence representation adverse to a former client without that client's informed written consent if such new representation is substantially related to the subject matter of the former representation or may involve the use of confidential information obtained through such former representation.

(ii) When a lawyer becomes affiliated with a firm, the firm shall not accept or continue representation adverse to a former client of the lawyer, or the lawyer's previous law firm, without that client's informed written consent, if:

(A) Such representation involves the subject matter of former representation on which the lawyer personally worked; or

(B) The lawyer personally had acquired information protected by Rule 3.6(h) that is material to the new matter.

(iii) After a lawyer has terminated an affiliation with a firm, the firm shall not commence representation adverse to a former client represented by the formerly affiliated lawyer while affiliated with the firm without that client's informed written consent, if:

(A) The subject matter of the proposed representation is substantially related to the subject matter of the representation in which the formerly affiliated lawyer represented the client while affiliated with the firm; or

(B) Any lawyer remaining in the firm personally has information protected by Rule 3.6(h) that is material to the new matter.

(2) Successive Government and Private Representation.

(i) A lawyer shall not commence private representation in a matter in which the lawyer formerly represented the government of a state, or the United States, or any agency, entity, or political subdivision of the state or of the United States as client, or in which the lawyer participated personally and substantially as a public officer or employee, or when such private representation may involve the use of confidential information obtained through the former governmental representation or employment.

(ii) A lawyer shall not commence representation on behalf of the government of a state, or of the United States, or any agency, entity, or political subdivision of the state or of the United States, or participate as a public officer or employee, in a matter in which the lawyer participated personally and substantially on behalf of a former client or employer, or which may involve the use of confidential information obtained through such former representation, unless:

(A) Under applicable law, no one is or by lawful delegation may be authorized to act in the lawyer's stead in the matter, or

(B) Such new representation or participation is adverse to the interests of the former client or employer and the former client gives informed written consent.

(iii) If a lawyer is required to decline representation by virtue of subparagraph (i) of this paragraph, a disqualification imposed by Rule 3.4(b)(3)(i) may be waived by the informed written consent of the appropriate governmental officer or agency upon a showing that the lawyer required to decline representation will be screened from any participation in the matter and will be directly apportioned no part of the fees therefrom, and a finding that such waiver is not contrary to the public interest.

(iv) If a lawyer is required to decline representation or participation by virtue of subparagraph (ii) of this paragraph, Rule 3.4(b)(3)(i) imposes no disqualification on lawyers employed with the lawyer in a governmental agency unless the subsequent representation is adverse. If a lawyer is required to decline representation because a former client would not give the consent provided by subparagraph (ii)(B) of this paragraph, a disqualification imposed by Rule 3.4(b)(3)(i) may be waived by the informed written consent of the former client. Alternatively, Rule 3.4(b)(3)(i) does not apply to lawyers employed in a governmental agency with the lawyer required to decline representation if that lawyer is screened from any participation in the matter and if written notice is given to the former client to enable the client to ascertain compliance with the provisions of this subparagraph.

(e) Conflict of Interest: Fiduciary or Other Legal Obligation to Another. Without the client's informed consent, a lawyer may not undertake or continue to represent a client in any matter with respect to which the lawyer has a fiduciary or other legal obligation to another person if the obligation presents a substantial risk of materially and adversely affecting the lawyer's representation of the client.

(f) Conflict of Interest: Lawyer's Own Interest.

(1) General Rule. Except with the informed written consent of the client, a lawyer shall not commence representation if there is a substantial risk that any financial interest or significant personal relationship of the lawyer will materially and adversely affect the lawyer's representation of the client.

(2) Avoiding Adverse Interest.

(i) A lawyer shall not knowingly acquire a property or pecuniary interest adverse to a client, or enter into any business transaction with a client, unless:

(A) The transaction and terms in which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted to the client in manner and terms which should have reasonably been understood by the client;

(B) The client is advised and given a reasonable opportunity to seek independent professional advice of counsel of the client's choice on the transaction; and

(C) The client consents in writing thereto.

(ii) A lawyer shall not directly or indirectly purchase property at a probate, foreclosure, or judicial sale in an action or proceeding in which the lawyer or any partner or associate appears as attorney for a party or is acting as executor, trustee, administrator, guardian, conservator, or other personal representative.

(iii) Prior to conclusion of all aspects of the matter giving rise to representation of a client, the lawyer shall not enter into any arrangement or understanding with a client or a prospective client by which the lawyer acquires an interest in publication rights with respect to the subject matter of the representation or proposed representation.

(iv) A lawyer shall not prepare an instrument giving the lawyer or a parent, child, sibling, or spouse of the lawyer any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.

(v) A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice; nor shall a lawyer settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith. This rule shall not prevent a lawyer from settling or defending a malpractice claim.

(3) Familial Relations. A lawyer related to another lawyer as parent, child, sibling or spouse shall not, in the same or a substantially related matter, undertake or continue representation adverse to a person who the lawyer knows is represented by the related lawyer or a lawyer affiliated with that lawyer without the client's informed consent.

(4) Exception to Imputed Disqualification. If a lawyer is required to decline representation by virtue of a familial relationship under paragraph (3) of this subdivision or any other significant personal relationship under paragraph (1) of this subdivision, Rule 3.4(b)(3)(i) imposes no disqualification upon the partners or associates of the lawyer or upon any other lawyer affiliated with the lawyer or the lawyer's firm.

(g) Other Restrictions.

(1) When Lawyer May Be Called as Witness.

(i) A lawyer shall not commence representation in contemplated or pending litigation if the lawyer knows, or should know, that the lawyer is likely or ought to be called as a witness. This rule does not apply where the predictable testimony will relate solely to uncontested matters or to legal services furnished by the lawyer, or where the distinctive value of the lawyer in the particular case would make denial a substantial hardship on the client.

(ii) A lawyer may commence representation in contemplated or pending litigation if another lawyer in the lawyer's firm is likely or ought to be called as a witness, unless such representation is precluded by subdivisions (b), (c), (d), (e), or (f) of this rule.

(2) Prior Judicial Activity.

(i) A lawyer shall not commence representation in a matter in which the lawyer participated personally and substantially as a judge or judicial law clerk. A lawyer shall not commence representation in a matter in which the lawyer participated personally and substantially as a nonjudicial adjudicative officer, arbitrator (other than a party's chosen member of a multi-member panel), or law clerk to such a person, unless all parties to the proceeding give informed consent.

(ii) If a lawyer is required to decline representation by virtue of this paragraph, Rule 3.4(b)(3)(i) imposes no disqualification upon the partners or associates of the lawyer or upon any other lawyer affiliated with the lawyer or the lawyer's firm, provided that the lawyer required to decline representation is screened from any participation in the matter and will be directly apportioned no part of the fees therefrom, and full disclosure of the circumstances and the measures taken to screen the lawyer required to decline representation is given to all affected parties.

(3) Non-payment of Prior Lawyer. A lawyer shall not refuse to commence or continue representation on the ground that the client's prior lawyer has not been paid.

(4) Other Violations. A lawyer may not commence or continue representation that the lawyer knows or should know would lead to a violation of other provisions of these rules.

(h) Mediation. A lawyer may act as mediator for multiple parties in any matter, whether or not their interests are opposing or adverse and whether or not they are represented by independent counsel, subject to the following conditions:

(1) The lawyer must clearly inform the parties of the nature and limits of the lawyer's role as mediator and should disclose any interest or relationship likely to affect the lawyer's impartiality or that might create an appearance of partiality or bias. The parties must consent to the arrangement unless they are in mediation pursuant to a legal mandate.

(2) The role of mediator does not create a lawyer-client relationship with any of the parties and does not constitute representation of any of them. The lawyer shall not attempt to advance the interests of any of the parties at the expense of any other party.

(3) While acting as mediator, the lawyer may not represent any of the parties in court or in the matter under mediation or any related matter. The lawyer must reasonably believe that the mediation can be undertaken impartially and without improper effect on any other esponsibilities that the lawyer may have to any of the parties.

(4) The lawyer may draft a settlement agreement or instrument reflecting the parties' resolution of the matter but must advise and encourage any party represented by independent counsel to consult with that counsel, and any unrepresented party to seek independent legal advice, before executing it.

(5) The lawyer shall withdraw as mediator if any of the parties so requests, or if any of the conditions stated in this subdivision (h) is no longer satisfied. Upon withdrawal, or upon conclusion of the mediation, the lawyer shall not represent any of the parties in the matter that was the subject of the mediation, or in any related matter.

(6) The lawyer shall not use any conduct, discussions, or statements made by any party in the course of the mediation to the disadvantage of any party to the mediation or, without the informed consent of the parties, to the advantage of the lawyer or a third person.

(7) If a lawyer is required to decline representation by virtue of this paragraph, Rule 3.4(b)(3)(i) imposes no disqualification upon the partners or associates of the lawyer or upon any other lawyer affiliated with the lawyer or the lawyer's firm, provided that the lawyer required to decline representation is screened from any participation in the matter and will be directly apportioned no part of the fees therefrom, and full disclosure of the circumstances and the measures taken to screen the lawyer required to decline representation is given to all affected parties.

(i) Limited Representation. A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client provides informed consent after consultation. If, after consultation, the client consents in writing (the general form of which is attached to these Rules), an attorney may enter a limited appearance on behalf of an otherwise unrepresented party involved in a court proceeding. A lawyer who signs a complaint, counterclaim, cross-claim or any amendment thereto which is filed with the court, may not thereafter limit representation as provided in this rule.

(j) Non-Profit and Court-Annexed Limited Legal Service Programs. A lawyer who, under the auspices of a non-profit organization or a court-annexed program, provides limited representation to a client without expectation of either the lawyer or the client that the lawyer will provide continuing representation in the matter is subject to the requirements of Rules 3.4(a)-(e) only if the lawyer knows that the representation of the client involves a conflict of interest.

LIMITED REPRESENTATION AGREEMENT

(Used in conjunction with Rule 3.4(i) the following form shall be sufficient to satisfy the rule. The authorization of this form shall not prevent the use of other forms consistent with this rule.)

To Be Executed in Duplicate

Date: __________, 20__

1. The client,__________, retains the attorney, _________, to perform limited legal services in the following matter: __________ v. __________.

2. The client seeks the following services from the attorney (indicate by writing "yes" or "no"):

a. ____ Legal advice: office visits, telephone calls, fax, mail, e-mail;

b. ____ Advice about availability of alternative means to resolving the dispute, including mediation and arbitration;

c. ____ Evaluation of client self-diagnosis of the case and advising client about legal rights and responsibilities;

d. ____ Guidance and procedural information for filing or serving documents;

e. ____ Review pleadings and other documents prepared by client;

f. ____ Suggest documents to be prepared;

g. ____ Draft pleadings, motions, and other documents;

h. ____ Factual investigation: contacting witnesses, public record searches, in-depth interview of client;

i. ____ Assistance with computer support programs;

j. ____ Legal research and analysis;

k. ____ Evaluate settlement options;

l. ____ Discovery: interrogatories, depositions, requests for document production;

m. ____ Planning for negotiations;

n. ____ Planning for court appearances;

o. ____ Standby telephone assistance during negotiations or settlement conferences;

p. ____ Referring client to expert witnesses, special masters, or other counsel;

q. ____ Counseling client about an appeal;

r. ____ Procedural assistance with an appeal and assisting with substantive legal argument in an appeal;

s. ____ Provide preventive planning and/or schedule legal check-ups:

t. ____ Other:

1. The client shall pay the attorney for those limited services as follows:

a. Hourly Fee:

The current hourly fee charged by the attorney or the attorney's law firm for services under this agreement are as follows:

i. Attorney: $__________

ii. Associate: $__________

iii. Paralegal: $__________

iv. Law Clerk: $__________

Unless a different fee arrangement is established in clause b.) of this paragraph, the hourly fee shall be payable at the time of the service. Time will be charged in increments of one-tenth of an hour, rounded off for each particular activity to the nearest one-tenth of an hour.

b. Payment from Deposit:

For a continuing consulting role, client will pay to attorney a deposit of $ ____ , to be received by attorney on or before ____ , and to be applied against attorney fees and costs incurred by client. This amount will be deposited by attorney in attorney trust account. Client authorizes attorney to withdraw funds from the trust account to pay attorney fees and costs as they are incurred by client. The deposit is refundable. If, at the termination of services under this agreement, the total amount incurred by client for attorney fees and costs is less than the amount of the deposit, the difference will be refunded to client. Any balance due shall be paid within thirty days of the termination of services.

c. Costs:

Client shall pay attorney out-of-pocket costs incurred in connection with this agreement, including long distance telephone and fax costs, photocopy expense and postage. All costs payable to third parties in connection with client case, including filing fees, investigation fees, deposition fees, and the like shall be paid directly by client. Attorney shall not advance costs to third parties on client behalf.

1. The client understands that the attorney will exercise his or her best judgment while performing the limited legal services set out above, but also recognizes:

a. the attorney is not promising any particular outcome.

b. the attorney has not made any independent investigation of the facts and is relying entirely on the client limited disclosure of the facts given the duration of the limited services provided, and

c. the attorney has no further obligation to the client after completing the above described limited legal services unless and until both attorney and client enter into another written representation agreement.

1. If any dispute between client and attorney arises under this agreement concerning the payment of fees, the client and attorney shall submit the dispute for fee arbitration in accordance with Rule 9(e)-(k) of the Maine Bar Rules. This arbitration shall be binding upon both parties to this agreement.

WE HAVE EACH READ THE ABOVE AGREEMENT BEFORE SIGNING IT.

Signature of client

Signature of attorney

3.5 [ABROGATED] Withdrawal From Employment

Text of Rule effective until August 1, 2009.

(a) General Rules.

(1) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.

(2) A lawyer shall not withdraw from employment until the lawyer has taken reasonable steps to avoid foreseeable prejudice to the rights of the lawyer's client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.

(3) Withdrawal shall not be conditioned upon payment by the client for services to date; and a lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.

(4) It shall not be a violation of 3.5(a) to cease or limit representation in accordance with Rule 3.4(i).

(b) Mandatory Withdrawal.

(1) If a lawyer knows, or should know, that the lawyer or a lawyer in the lawyer's firm is likely or ought to be called as a witness in litigation concerning the subject matter of the lawyer's employment, the lawyer and the lawyer's firm shall withdraw from representation at the trial unless the court otherwise orders. This rule does not apply to situations in which the lawyer would not be precluded from accepting employment under Rule 3.4(g)(1)(ii).

(2) A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment if:

(i) The lawyer knows, or should know, that the client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken, merely for the purpose of harassing or maliciously injuring any person;

(ii) The lawyer knows, or should know, that the lawyer's continued employment will result in violation of these Rules;

(iii) The lawyer's mental or physical condition renders it unreasonably difficult for the lawyer to carry out the employment effectively; or

(iv) The lawyer is discharged by the client.

(c) Permissive Withdrawal. Other than as provided in these rules a lawyer may not request permission to withdraw in matters pending before a tribunal, and the lawyer may not withdraw in other matters, unless:

(1) The client insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law;

(2) The client personally seeks to pursue an illegal course of conduct;

(3) The client insists that the lawyer pursue a course of conduct that is illegal or that is prohibited under these rules;

(4) The client by other conduct renders it unreasonably difficult for the lawyer to carry out the lawyer's responsibilities;

(5) The client insists that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer even though not prohibited by these rules;

(6) The client deliberately disregards an agreement with, or obligation to, the lawyer as to expenses or fees;

(7) The lawyer's continued employment is likely to result in a violation of these rules;

(8) The lawyer's inability to work with the client or with co-counsel indicates that the best interests of the client likely will be served by withdrawal;

(9) The lawyer's mental or physical condition renders it difficult for the lawyer to carry out the employment effectively;

(10) The client knowingly and freely assents to termination of the employment; or

(11) The lawyer believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.

3.6 [ABROGATED] Conduct During Representation

Text of Rule effective until August 1, 2009.

(a) Standards of Care and Judgment. A lawyer must employ reasonable care and skill and apply the lawyer's best judgment in the performance of professional services. A lawyer shall be punctual in all professional commitments. A lawyer shall take reasonable measures to keep the client informed on the status of the client's affairs. A lawyer shall not

(1) handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle, without first associating with another lawyer who is competent to handle it;

(2) handle a legal matter without preparation adequate in the circumstances, provided that, with respect to the provision of limited representation, the lawyer may rely on the representations of the client and the preparation shall be adequate within the scope of the limited representation; or

(3) neglect a legal matter entrusted to the lawyer.

(b) [Deleted and relocated to (h)(5).]

(c) Threatening Prosecution. A lawyer shall not present, or threaten to present, criminal, administrative, or disciplinary charges solely to obtain an advantage in a civil matter.

(d) Advising Violation of Law. A lawyer shall not counsel or assist a client in the violation of any law, rule, or order of a tribunal; but a lawyer may take appropriate steps in good faith to test the validity of any law, rule, or order of a tribunal.

(e) Preserving Identity of Funds and Property.

(1) All funds of clients paid to a lawyer or law firm, other than retainers and advances for costs and expenses, shall be deposited in one or more identifiable accounts maintained in the state in which the law office is situated at a financial institution authorized to do business in such state. No funds belonging to the lawyer or law firm shall be deposited therein except as follows:

(i) Funds reasonably sufficient to pay institutional service charges may be deposited therein; and

(ii) Funds belonging in part to a client and in part presently or potentially to a lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive the funds is disputed by the client; in that event the disputed portion shall not be withdrawn until the dispute is finally resolved.

(iii) For purposes of this rule, "retainer" means a fee paid to an attorney for professional services that is earned upon the attorney's engagement. A retainer payment is the property of the attorney when received. "Retainer" does not include a payment by a client as an advance payment that will be credited toward fees for professional services as the attorney earns the fees.

(2) A lawyer shall:

(i) Promptly notify a client of the receipt of the client's funds, securities, or other properties;

(ii) Identify and label securities and properties of a client promptly upon receipt and place them in a safe-deposit box or other place of safekeeping as soon as practicable;

(iii) Maintain complete records of all funds, securities and other properties of a client coming into possession of the lawyer and render prompt and appropriate accounts to the client regarding them; and

(iv) Promptly pay or deliver to the client, as requested by the client, the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.

(3) Unless the client directs otherwise, when a lawyer or law firm reasonably expects that client funds will earn interest or dividends for the client in excess of the costs incurred to secure such income, such funds shall be deposited in a client trust account that may be either

(i) A separate trust account for the particular client or client's matter, on which the earnings net of any transaction costs or other account-related charges will be paid or credited to the client; or

(ii) A pooled trust account with subaccounting which will provide for computation of earnings accrued on each client's funds and the payment thereon, net of any transaction costs or other account-related charges to the client.

(4) All funds of any client held by the lawyer or law firm that are small in amount or held for a short period of time so that they cannot earn interest or dividends for the client in excess of the costs incurred to secure such income shall be deposited in an Interest on Lawyer's Trust Account (IOLTA) account and shall be subject to the following conditions:

(i) The financial institution in which the account is established shall be authorized to do business in Maine , shall be insured by the Federal Deposit Insurance Corporation or National Credit Union Share Insurance Fund, and shall be an eligible institution selected by the lawyer in the exercise of ordinary prudence. "Eligible Institution" is one determined by the Maine Bar Foundation in accordance with Rule 6(a)(2), (3) and (4);

(ii) Funds deposited in the account shall be subject to withdrawal upon request and without delay;

(iii) Within 30 days after the opening of any IOLTA account that is to be maintained hereunder, the lawyer or law firm shall file with the Board of Overseers of the Bar an order directing the financial institution to remit any net interest or dividends that may accrue on the account to the Maine Bar Foundation, a nonprofit corporation incorporated under the laws of the State of Maine that has in force a determination letter from the Internal Revenue Service that it qualifies as an exempt organization under Section 501(c)(3) of the Internal Revenue Code of 1954 as from time to time amended;

(iv) No interest or dividends on the account shall be paid to the lawyer or law firm, and the lawyer or law firm shall not receive any direct or indirect pecuniary benefit by reason of the remittance of interest in accordance with subparagraph (iii); and

(v) The determination of whether funds are small in amount or held for a short period of time so that they cannot earn interest or dividends for the client in excess of the costs incurred to secure such income, shall rest in the sound judgment of the lawyer or law firm. No lawyer shall be charged with an ethical impropriety or other breach of professional conduct based on the good faith exercise of such judgment.

(5) A lawyer or a law firm, holding funds of the United States government that by law may not earn interest shall deposit those funds in one or more insured, non-interest bearing accounts, whether or not the lawyer or firm has made the election provided by this paragraph for other client funds.

(6) If the circumstances on which a lawyer or law firm has based a determination to deposit client funds in an account under paragraph (4) of this subdivision change, so that interest or dividends in excess of costs may reasonably be expected to be earned on such funds, the lawyer or law firm shall transfer the principal amount originally deposited to the appropriate account established under paragraph (3) of this subdivision.

(7) For purposes of this rule, the term "interest or dividends in excess of costs" means the net of interest or dividends earned on a particular amount of one client's funds over the administrative costs allocable to that amount. In estimating the gross amount of interest or dividends to be earned, the lawyer or law firm shall consider the principal amount involved; available interest or dividend rates; and the time the funds are likely to be held, taking into account the likelihood of delay in any relevant proceeding or transaction.

(8) For purposes of this rule, the term "administrative costs" means that portion of the following costs properly allocable to a particular amount of one client's funds paid to a lawyer or law firm:

(i) Financial institutional service charges for opening, maintaining, or closing an account, or accounting for the deposit and withdrawal of funds and payment of interest or dividends.

(ii) Reasonable charges of the lawyer or law firm for opening, maintaining or closing an account; accounting for the deposit and withdrawal of funds and payment of interest or dividends; and obtaining information and preparing or forwarding any returns or reports that may be required by a revenue taxing agency as to the interest or dividends earned on a client's funds.

(f) Communicating With Adverse Party. During the course of representation of a client, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so. An otherwise unrepresented party to whom limited representation is being provided or has been provided in accordance with Rule 3.4(i) is considered to be unrepresented for purposes of this rule, except to the extent the limited representation attorney provides other counsel written notice of a time period within which other counsel shall communicate only with the limited representation attorney.

(g) Implying Improper Influence. A lawyer shall not state or imply that the lawyer is able to influence improperly, or upon irrelevant grounds, any tribunal, legislative body, or public official.

(h) Confidentiality of Information.

(1) Except as permitted by these rules, or when authorized in order to carry out the representation, or as required by law or by order of the court, a lawyer shall not, without informed consent, knowingly disclose or use information (except information generally known) that:

(i) Is protected by the attorney-client privilege in any jurisdiction relevant to the representation;

(ii) Is information gained in the course of representation of a client or former client for which that client or former client has requested confidential treatment;

(iii) Is information gained in the course of representation of the client or former client and the disclosure of which would be detrimental to a material interest of the client or former client; or

(iv) Is information received from a prospective client, the disclosure of which would be detrimental to a material interest of that prospective client, when the information is provided under circumstances in which the prospective client has a reasonable expectation that the information will not be disclosed.

(2) A lawyer shall exercise reasonable care to prevent lawyers and non-lawyers employed or retained by or associated with the lawyer from improperly disclosing or using information protected by paragraph (1) of this subdivision.

(3) This Rule is not violated by the disclosure or use of information described in paragraph (1) of this subdivision that the lawyer reasonably believes is necessary to the defense of the lawyer, the lawyer?s partners, employees, or associates against an accusation of wrongful conduct presented to the Board or any tribunal.

(4) A lawyer may disclose information gained in the course of representation of a former client or client, or learned from a prospective client, to the extent that the lawyer reasonably believes disclosure is necessary:

(i) To prevent the commission of a criminal act that is likely to result in death or bodily harm to another person; or

(ii) To avoid the furthering of a criminal act.

(5) A lawyer who receives information clearly establishing that a client or former client has, during the representation, perpetrated a fraud upon any person or tribunal shall promptly call upon the client or former client to rectify the same; and if the client or former client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a privileged communication. If a person other than a client or former client has perpetrated a fraud upon a tribunal, the lawyer shall promptly reveal the fraud to the tribunal.

(i) Avoiding Misreliance. If a lawyer knows or should know that the lawyer's advice or opinion may be communicated to a person other than the lawyer's client, the lawyer shall take reasonable steps to prevent that person from believing that the lawyer represents that person's interests as well as the interests of the client.

(j) Client With Diminished Mental Capacity.

(1) When a client's ability to make adequately considered decisions in connection with the representation is impaired because of mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(2) When a lawyer reasonably believes that a normal client-lawyer relationship cannot be maintained as provided in paragraph (1) of this subdivision because the client lacks sufficient understanding or capacity to communicate or to make adequately considered decisions in connection with the representation, the lawyer may consult family members, adult protective agencies, or other individuals or entities that have the ability to take action to protect the client, provided that

(i) The lawyer reasonably believes that the client is at risk of physical harm or substantial financial loss;

(ii) The lawyer does not consult any individual or entity that the lawyer knows or reasonably should know has an interest adverse to an interest of the client; and

(iii) The lawyer consults only those individuals or entities reasonably necessary to protect the client's interests.

(3) In consulting individuals and entities as provided in paragraph (2) of this subdivision, the lawyer may disclose confidences and secrets of the client to the extent that disclosure is necessary to protect the client's interests.

3.7 [ABROGATED] Conduct During Litigation

Text of Rule effective until August 1, 2009.

(a) Improper Legal Action. A lawyer shall not file a suit, assert a position, delay a trial, or take other action on behalf of a client when the lawyer knows, or should know, that such action would merely serve to harass or maliciously injure another.

(b) Improper Concealment, Statement or Evidence. A lawyer shall not knowingly make a false statement, conceal information legally required to be revealed, or participate in the creation or preservation of false evidence.

(c) Interest in Litigation. A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

(1) Assert a lien granted by law against the proceeds of such action or litigation to secure the lawyer's fee or expenses. This paragraph does not authorize an attorney to assert a lien on a client's file in order to secure payment of a fee. The assertion of such a lien (if any exists) is improper; and

(2) Contract with a client for a reasonable contingent fee as provided in Rule 8.

(d) Financial Assistance. While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client, except that a lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and expenses of obtaining and presenting evidence.

(e) Adversary Conduct.

(1) In appearing in a professional capacity before a tribunal, a lawyer shall:

(i) Employ, for the purpose of maintaining the causes confided to the lawyer, such means only as are consistent with truth, and shall not seek to mislead the judge, jury, or tribunal by any artifice or false statement of fact or law;

(ii) Disclose, unless privileged or irrelevant, the identities of all the clients the lawyer represents.

(2) In appearing in a professional capacity before a tribunal, a lawyer shall not:

(i) Intentionally misquote to a judge, jury, or tribunal the language of a book, statute, or decision or, with knowledge of its invalidity and without disclosing such knowledge, cite as authority, a decision that has been overruled or a statute that has been repealed or declared unconstitutional;

(ii) State or allude to any matter that the lawyer has no reasonable basis to believe is relevant to the case or will not be supported by admissible evidence;

(iii) Ask any question that the lawyer has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person;

(iv) Assert personal knowledge of the facts at issue, except when testifying as a witness;

(v) Assert a personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but a lawyer may argue, on the lawyer's analysis of the evidence, for any position or conclusion with respect to the matters stated therein; or

(vi) Engage in undignified or discourteous conduct that is degrading to a tribunal. (back to top)

(f) Communication With Jurors.

(1) At no time shall a lawyer connected with the trial of a case communicate extrajudicially, directly or indirectly, with a juror, with anyone the lawyer knows to be a member of the pool from which the jury will be selected, or with any member of such person's family.

(2) After discharge of a juror from further jury service, a lawyer may ask or answer questions and make comments to the former juror provided the questions or comments are not intended to harass or embarrass the juror or influence the juror's action in future jury service.

(3) A lawyer shall reveal promptly to the court knowledge of improper conduct by a juror or member of the jury pool, or by another toward a juror or member of the jury pool, or a member of the juror's or jury-pool member's family.

(g) Contact With Witnesses. A lawyer shall not:

(1) Suppress any evidence that the lawyer or a client has a legal obligation to reveal or produce;

(2) Advise, or directly or indirectly cause, a person to hide or to leave the jurisdiction of a tribunal for the purpose of making that person unavailable as a witness therein; or

(3) Directly or indirectly pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the testimony of the witness or the outcome of the case; but unless prohibited by law, a lawyer may advance, guarantee, or acquiesce in payment of:

(i) Expenses reasonably incurred by a witness in attending or testifying;

(ii) Reasonable compensation to a witness for his loss of time in attending or testifying; and

(iii) A reasonable fee for the professional services of an expert witness.

(h) Contact With Officials.

(1) A lawyer shall not directly or indirectly give or lend anything of value to a judge, official, or employee of a tribunal unless the personal or family relationship between the lawyer and the judge, official, or employee is such that gifts are customarily given and exchanged. This paragraph does not preclude contributions to election campaigns of public officers.

(2) In the absence of opposing counsel, a lawyer shall not directly or indirectly communicate with or argue before a judge or tribunal upon the merits of a contested matter pending before such judge or tribunal, except in open court; nor shall the lawyer, without furnishing opposing counsel with a copy thereof, address a written communication to a judge or tribunal concerning the merits of a contested matter pending before such judge or tribunal. This paragraph does not preclude communications permitted by rule of court. For purposes of this paragraph the term "opposing counsel" includes a party who has no counsel.

(i) Duty of Public Prosecutor.

(1) A lawyer shall not institute or cause to be instituted criminal charges when the lawyer knows, or it is obvious, that the charges are not supported by probable cause.

(2) A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to a defendant without counsel, of the existence of evidence that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.

(3) A public prosecutor or other government lawyer shall not conduct a civil or criminal case against any person whom the lawyer represents or has represented as a client.

(4) A public prosecutor or other government lawyer shall not conduct a civil or criminal case against any person relative to a matter in which the lawyer represents or has represented the complaining witness.

(j) Extra-Judicial Publicity. A lawyer involved in the prosecution or defense of a criminal matter or in representing a party to a civil cause shall not make or participate in making any extra-judicial statement which poses a substantial danger of interference with the administration of justice.

3.8 [ABROGATED] Advertising Fields of Practice

Text of Rule effective until August 1, 2009.

A lawyer may communicate, publicly and otherwise, truthful statements identifying fields of law in which the lawyer practices, refrains from practice, concentrates, or specializes, or to which the lawyer's practice is limited. In doing so a lawyer may use phrases and titles recognized by established custom, such as "Trademark Attorney" or "Admiralty Lawyer". A lawyer shall not represent publicly or imply that the lawyer has recognized, designated or certified expertise in a field of law, except that:

(a) Practice Before Agencies and Courts. A lawyer may identify the government agencies and courts before which the lawyer is admitted to practice, using appropriate language such as "member, U.S. Supreme Court bar", or customary phrases such as "Patent Attorney." (back to top)

(b) Other Permissible Communications. A lawyer may communicate truthful statements reporting certification or other recognition of expertise conferred by a named organization that has been approved by the Maine Board of Overseers of the Bar as a certifying organization for the field of law to which the statement pertains.

3.9 [ABROGATED] Publicity, Advertising and Solicitation

Text of Rule effective until August 1, 2009.

(a) False Advertising Forbidden. A lawyer shall not, on behalf of the lawyer or any affiliated lawyer, knowingly use, or assist or participate in the use of, any form of public communication containing a false, fraudulent, misleading, or deceptive statement or claim. A public communication is any communication, through mass media, direct mail, or other means including professional cards, announcements, letterheads, office signs, and similar accoutrements of a law practice.

(b) False Advertising Defined. Without limitation, a false, fraudulent, misleading, or deceptive statement or claim includes a statement or claim that:

(1) Contains a material misrepresentation of fact or law;

(2) Omits to state any material fact necessary to make the statement, in the light of all circumstances, not misleading;

(3) Is intended or is likely to create an unjustified expectation;

(4) Violates Rule 3.8;

(5) Is intended, or is likely, to convey the impression that the lawyer is in a position to influence improperly any court, tribunal, or other public body or official; or

(6) Contains a representation or implication that is likely to cause an ordinary prudent person to misunderstand or be deceived thereby, or fails to contain reasonable warnings or disclaimers necessary to make the representation or implication not deceptive.

(c) Other Improper Public Communication. A lawyer shall not, on behalf of the lawyer or any affiliated lawyer, knowingly use, or assist, or participate in the use of, any form of public communication that:

(1) Is intended or is likely to result in a legal action being taken, or a legal position being asserted, merely to harass or maliciously injure another; or

(2) Appeals primarily to fear, greed, desire for revenge, or similar emotion.

(d) Paid Publicity. A lawyer shall not compensate or give anything of value to a representative of the press, radio, television, or other communication medium in anticipation of, or in return for, professional publicity in a news item. A paid advertisement must be identified as such unless it is apparent from the context that it is a paid advertisement. If a paid advertisement is communicated to the public by use of radio or television, it shall be prerecorded, approved for broadcast by the lawyer, and the prerecording as approved shall be retained by the lawyer for two years. If a public communication is transmitted through the mails, a copy of such communication shall be retained by the lawyer for two years following the mailing.

(e) Multi-jurisdictional Disclosure. A multi-jurisdictional partnership shall disclose, in all public communications containing the names of affiliated lawyers, jurisdictional limitations of those lawyers not licensed to practice in the jurisdiction in which the communication is published.

(f) Recommendation or Solicitation of Employment.

(1) A lawyer shall not solicit employment on behalf of the lawyer or any affiliated lawyer through any form of personal contact:

(i) By using any statement, claim, or device that would violate this rule if part of a public communication;

(ii) By using any form of duress or intimidation, unwarranted suggestions or promises of benefits, or engaging in deceptive, vexatious, or harassing conduct; or

(iii) When the circumstances create an appreciable risk of undue influence by the lawyer or ill-considered action by the person being solicited. Without limitation, such circumstances will be deemed to exist as to the person solicited if that person is in the custody of a law enforcement agency or under treatment in a hospital, convalescent facility, or nursing home, or if that person's mental faculties are impaired in any way or for any reason. Notwithstanding the foregoing, such circumstances shall be deemed not to exist when a lawyer is discussing employment with any person who has, without solicitation by the lawyer or anyone acting for the lawyer, sought the lawyer's advice regarding employment of a lawyer.

(2) A lawyer shall not compensate, or give anything of value to, a person or organization to recommend or secure employment by a client, or as a reward for having made a recommendation resulting in employment by a client, except that a lawyer may pay for public communication permitted by these rules and may pay the usual and reasonable fees or dues charged by a lawyer referral service operated, sponsored, or approved by a bar association.

(3) A lawyer shall not knowingly assist or authorize any other person or organization to engage in conduct that would violate this rule if engaged in by the lawyer personally, nor shall a lawyer accept employment when the lawyer knows, or it is obvious, that the person who seeks the lawyer's services does so as a result of conduct prohibited under this rule.

(4) Notwithstanding the other limitations of this rule, a lawyer may participate in, and announce the availability of, an approved courthouse legal assistance program that offers free representation to unrepresented clients.

(g) Suggestion of Need for Legal Services. A lawyer who has given unsolicited advice to a person that the person should obtain counsel or take legal action shall not accept employment resulting from that advice if:

(1) The advice embodies or implies a statement or claim that is false, fraudulent, misleading, or deceptive within the meaning of Rule 3.9(b), or that violates the regulations contained in Rule 3.9(c);

(2) The advice involves the use by the lawyer of any form of duress or intimidation, unwarranted suggestions or promises of benefits, or deceptive, vexatious, or harassing conduct; or

(3) The advice is given under circumstances that create an appreciable risk of undue influence by the lawyer or ill-considered action by the person being advised, within the meaning of Rule 3.9(f)(1)(iii).

(h) Definition. As used in Rule 3.9, "affiliated lawyer" refers to any kind of affiliation for the practice of law and includes, without limitation, partners and associates of a lawyer, lawyers employing a lawyer, lawyers "of counsel" to a lawyer or law firm, lawyers or law firms toward whom a lawyer is "of counsel," and lawyers with whom a lawyer shares offices or any expense or facility of a law practice, whether or not a partnership or any other affiliation exists.

3.10 [ABROGATED] Public Interest Legal Service [DELETED]

3.11 [ABROGATED] [Reserved]

In light of the promulgation of M. Bar R. 12 (Continuing Legal Education), M. Bar R. 3.11 (Continuing Legal Education) is abrogated.

3.12 [ABROGATED] Professional Independence of a Lawyer

Text of Rule effective until August 1, 2009.

(a) Dividing Fees With Non-lawyers. A lawyer or law firm shall not share legal fees with a non-lawyer, except that:

(1) An agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons.

(2) A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer.

(3) A lawyer or law firm may include non-lawyer employees in a retirement or compensation plan, even though the plan is based in whole or in part upon a profit-sharing arrangement; provided that the amounts paid to non-lawyer employees in addition to fixed salary 1) are not based upon business brought to the law firm by such employees, 2) are not based upon services performed by such employees in a particular case, and 3) do not constitute the greater part of the total remuneration of such employees.

(b) 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 unless direction or regulation occurs in the course of supervision by another lawyer who participates in the attorney-client relationship with the supervised lawyer.

(c) Partnership With Non-lawyers. A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.

(d) Co-ownership With Non-lawyers. A lawyer shall not practice law with or in the form of a corporation, limited liability company or other legal entity authorized to practice law for a profit, if:

(1) a non-lawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2) a non-lawyer is a corporate director or officer thereof; or

(3) a non-lawyer has the right to direct or control the professional judgment of a lawyer.

3.13 [ABROGATED] Responsibility for Compliance With the Maine Bar Rules

Text of Rule effective until August 1, 2009.

(a) Responsibilities of a Partner or Supervisory Lawyer.

(1) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Code of Professional Responsibility.

(2) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Code of Professional Responsibility.

(3) A lawyer shall be responsible for another lawyer's violation of the Code of Professional Responsibility if:

(i) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(ii) the lawyer is a partner in the law firm, in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

(b) Responsibilities of a Subordinate Lawyer.

(1) A lawyer is bound by the Code of Professional Responsibility notwithstanding that the lawyer acted at the direction of another person.

(2) A subordinate lawyer does not violate the Code of Professional Responsibility if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

(c) Responsibilities Regarding Non-lawyer Assistants. With respect to a non-lawyer employed or retained by or associated with a lawyer:

(1) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(2) A lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

(3) A lawyer shall be responsible for conduct of such a person that would be a violation of the Code of Professional Responsibility if engaged in by a lawyer if:

(i) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(ii) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

3.14 [ABROGATED] Sale or Cessation of Law Practice

Text of Rule effective until August 1, 2009.

A lawyer or law firm may sell or purchase a law practice, including goodwill, if the selling attorney or each attorney in the selling firm has retired, become disabled or has died; or the selling attorney or each attorney in the selling firm has ceased to engage in the private practice of law in the State of Maine. The purchaser, who must be registered with the Board as an active member of the Bar of the State of Maine, assumes the obligations of an attorney to the client or clients whose files are transferred. The parties to the sale and purchase must comply with the other applicable provisions of these rules, and must satisfy the conditions of this rule. The estate of a deceased lawyer may be a seller.

(a) If the seller is or was a solo practitioner, then the entire law practice must be sold as a single unit. If the seller is or was a law firm, then the entire practice of the firm must be sold as a single unit. The entire law practice, for purposes of this rule, shall mean all client files, for open and closed engagements, excepting only those cases in which a conflict of interest is present or may arise.

(b) Written notice shall be given the Board of Overseers of the Bar and to each of the seller's clients (meaning those with whom the attorney then has open engagements) regarding:

(1) The proposed sale, including the name of the purchasing attorney or the names of the attorneys who practice within the purchasing firm;

(2) The terms of any proposed change in the fee arrangement authorized by paragraph (d);

(3) The client's right to retain other counsel or to take possession of the client's file; and

(4) That the client's consent to the transfer of the client's file to and representation by the purchaser will be presumed if the client does not take any action or does not otherwise object within ninety days of receipt of the notice.

If a client cannot be given notice, the transfer of the client's file and assumption of representation of that client may occur only after entry of an order by a single justice of the Maine Supreme Judicial Court which shall not issue without the Board of Overseers of the Bar having been given notice and an opportunity to be heard. The seller may disclose to the Board and the court, in camera, information relating to the representation only to the extent necessary to obtain an order authorizing the transfer of the client's file and of representation of the client.

(c) Further notice shall be given by publication in a newspaper of general circulation in each county in which seller has engaged in the practice of law, at least thirty days before the anticipated transfer of files. Such notice shall include the anticipated date of sale and identification of the purchasing lawyer or firm.

(d) The fees charged clients shall not be increased by the purchasing lawyer or firm by reason of the sale. The purchaser may, however, refuse to undertake the representation unless the client consents to pay the purchaser fees at a rate not exceeding the fees charged by the purchaser for rendering substantially similar services prior to the initiation of the purchase negotiations.

(e) Admission to or withdrawal from a partnership or professional corporation, retirement plans, and similar arrangements for a sale limited to the tangible assets of a law practice is not sale or purchase for the purposes of this Rule 3.14.

3.15 [ABROGATED] Definitions

Text of Rule effective until August 1, 2009.

(a) ?Law Firm.? Wherever used in these rules, unless the context requires a narrower meaning, "law firm" shall mean any legal entity or group associated by contract, however designated, that in fact provides legal services through lawyers, but shall not include a government agency or lawyers organized as a department within a government agency.

(b) ?Partner?. Wherever used in these rules, unless the context requires a narrower meaning, "partner" shall mean a member of a group, however designated, that exercises ultimate authority over the activities of a legal entity or contractual association through which legal services are provided by lawyers.

(c) ?Client.? Wherever used in these rules, ?client? refers to a person, public officer, or corporation, association or other organization or entity, either public or private, who is being rendered professional legal services by a lawyer.

(d) ?Prospective Client.? Wherever used in these rules, ?prospective client? refers to a person, public officer, or corporation, association or other organization or entity, either public or private, who consults a lawyer with the view of obtaining professional legal services from the lawyer.

(e) ?Former Client.? Wherever used in these rules, ?former client? refers to a client for whom the lawyer previously rendered and then terminated professional legal services, and for whom the lawyer is not currently rendering any such legal services.

4. Board of Overseers of the Bar

(a) The Board of Overseers of the Bar. The Court shall appoint a Board of Overseers of the Bar to act, as provided by these rules, with respect to the conduct and discipline of attorneys. The Board shall be composed of 9 members to be selected by the Court, of whom 3 shall be lay persons and 6 shall be members of the Bar of this State. The lay members shall be appointed by the Court on the recommendation of the Governor. The Court shall from time to time designate one member of the Board as Chair and another as Vice Chair. The Vice Chair shall perform the duties of the Chair in the absence or incapacity of the Chair.

(b) Term. Initial members of the Board shall serve as follows: three (one lay person and two attorneys) shall be appointed for a term of 3 years; three (one lay person and two attorneys) for a term of 2 years; and three (one lay person and two attorneys) for a term of 1 year. Appointments thereafter shall be for terms of 3 years. No member shall be appointed to more than 2 consecutive full terms but a member appointed for less than a full term (originally or to fill a vacancy) may serve 2 full terms in addition to such part of a full term, and a former member shall again be eligible for appointment after a lapse of 1 year.

(c) Board Action and Quorum. Five members shall constitute a quorum for any meeting of the Board. The Board may act through the concurrence or vote of a majority of the members present at a duly constituted meeting. After reasonable notice to all members and with the consent of all participating members, a meeting may be duly constituted and action taken by means of a conference telephone or similar communications equipment enabling all members participating in the meeting to hear one another. Meetings of the Board of Overseers shall be open to the public, except those portions of the meetings wherein the Board (i) consults with counsel pertaining to contemplated or pending litigation, proceedings pending before the Grievance Commission, the Fee Arbitration Commission, and/or the Court; (ii) considers matters pertaining to the personnel of the Board and/or appointments to the Board or its components; and/or (iii) considers other matters made confidential or private by these rules, court order, or law.

(d) Responsibilities and Authority. The Board of Overseers of the Bar:

(1) shall, subject to the Court's approval, appoint and compensate Bar Counsel and the Executive Director;

(2) may appoint and compensate such deputy, assistant and special counsel and administrative and secretarial personnel as are needed to assist the Board in the performance of its duties;

(3) shall, consistent with Rule 6, establish procedures for and supervise the registration of all attorneys admitted to the practice of law in this State;

(4) shall compile and keep current a register for the Court of all persons admitted as members of the Bar of the State of Maine, and a record of the death, or termination or suspension of the right of any such person to practice law in this State;

(5) shall recommend to the Court the amount of the annual fee to be assessed pursuant to Rule 10;

(6) shall enforce compliance by attorneys with these Rules and the procedures and regulations adopted thereunder;

(7) may investigate, through the office of the Bar Counsel, and act with respect to the conduct of any attorney within the Court's jurisdiction upon the complaint or request of the Court, upon its own motion or upon the complaint of any person, including any justice or judge. In furtherance hereof:

(A) The Board may conduct hearings on formal charges of misconduct and make findings and issue its recommendations with respect thereto; and

(B) The Chair of the Board, or in the absence of the Chair, the Vice Chair, may designate two attorney members and one lay member to sit and act for the Board in the exercise of its authority hereunder, notwithstanding the provisions of subdivision (c) of this Rule 4;

(8) may issue public reprimands to attorneys for misconduct and, in any case where suspension or disbarment of an attorney is to be sought or recommended, shall file an information with the Court;

(9) shall appoint at least 12 persons, not less than one-third of whom shall be lay persons and the balance (as close to two-thirds as may be) of whom shall be members of the Bar of this State, as a Grievance Commission, to conduct such hearings and to perform such other functions as may be provided for under these rules or assigned by the Board with reference to charges of misconduct;

(10) may refer to the Grievance Commission any grievance other than one involving a member of the Grievance Commission or a grievance which the Board, in its judgment, deems to be a matter of grave public concern;

(11) [Abrogated.]

(12) shall appoint at least 15 persons, not less than one third of whom shall be lay persons and the balance (as close to two-thirds as may be) of whom shall be attorneys who are admitted to the Bar of this State, as a Fee Arbitration Commission, to perform such functions as may be assigned to it by the Board with reference to fee disputes, consistent with Rule 9 hereof. In addition, the Board may appoint any number of lay alternate members to the Fee Arbitration Commission;

(13) may consult with State and local Bar Associations and their officers concerning any appointments which it is herein authorized to make;

(14) may, subject to the Court's approval, lease, purchase, improve or acquire equipment, supplies, office space, and real property, and make contracts and arrangements for the performance of administrative and other services required or appropriate in the performance of the Board's duties.

(14)(A) may, subject to the Court's approval, finance the acquisition and improvement of real property and, in furtherance thereof, execute and deliver promissory notes to evidence the Board's indebtedness and mortgages and related financing documents to secure the Board's debts. The Board Chair, or such other designee of the Board, in that capacity, at the time of such lease, purchase, or financing shall have the authority to execute any such documents on behalf of the Board.

(15) may invest or direct the investment of the fees or any portion thereof, received pursuant to these rules, and may cause funds to be deposited in any federally insured bank or financial institution in this State, provided, however, that the Board shall have no obligation to cause such fees or any portion thereof to be invested;

(16) shall prepare and file with the Court for approval in May of each year its budget for the next fiscal year, with its recommendation as to the amount of annual fee to be assessed pursuant to Rule 10;

(17) shall have the responsibility for establishing procedures for, and supervising, a continuous study of the Bar in its relation to the public and the courts for the purpose of making recommendations to the Court with respect to changes, additions or deletions in these rules or for such other action by the Court as it may deem advisable in its superintendence of the Bar. In furtherance hereof, the Board may establish or designate such commissions, agencies, or persons, to assist its study as it shall deem advisable;

(18) may adopt and publish its own rules of procedure and such regulations as are not inconsistent with these rules;

(19) may perform other acts necessary or proper in the performance of the Board's duties under these rules;

(20) shall appoint 8 attorneys who are admitted to the Bar of this State, as a Professional Ethics Commission, to perform such functions as may be assigned to it by the Board consistent with Rule 11;

(21) shall adopt the fiscal year used by the Judicial Department;

(22) shall, subject to the Court's approval, adopt personnel and financial policies and procedures, including accounting controls, purchasing, expense vouchering, and capital equipment inventories;

(23) shall, by April 1st of each year, furnish to the State Tax Assessor the names, addresses, social security or federal identification numbers, and other identifying information as the State Tax Assessor, may by rule require, of all attorneys registered with the Board.

(24) Shall receive and act on applications of organizations for approval to recognize, designate or certify attorneys admitted to practice in the State of Maine as having expertise in one or more areas of law. In furtherance hereof:

(A) The Board shall by regulation provide a procedure for the submission of applications for approval by organizations desiring to certify expertise, or by one or more attorneys admitted to practice in this State who seek approval for such an organization. The Board shall approve an organization if it finds that the organization:

(i) Accepts and impartially decides on applications for certification from all lawyers licensed to practice in the jurisdictions served by the organization;

(ii) Applies to all applicants objective and consistent standards relevant to the determination of special competence in one or more particular fields of law;

(iii) Bases its decisions on an examination, investigation, or other procedures offering reasonable assurance of accuracy in ascertaining whether the standards have been met; and

(iv) Is governed or managed by attorneys possessed of expertise equivalent to the expertise certified or otherwise recognized by that organization.

(B) The Board may provide for the investigation of applications submitted to it under this paragraph by, or under the direction of, Bar Counsel and may invite public comment on any application.

(C) The Board may conduct hearings on applications for approval either as a committee of the whole or by delegation to three or more of its members.

(D) The Board may approve without further investigation an organization that has been approved by the American Bar Association (ABA), if the Board finds that the ABA has applied criteria similar to those set forth in subparagraph (A).

(E) The Board may at any time revoke its approval of any application upon finding that the organization no longer meets the requirements of subparagraph (A).

(e) Immunity. Members of the Board, its staff and its Commissions shall be immune from liability for any conduct in the course of their official duties under any provision of the Maine Bar Rules.

5. Bar Counsel

(a) Qualifications. Bar Counsel shall be admitted to the Bar of this State and a full-time employee of the Board. Bar Counsel shall not be otherwise engaged in the practice of law, directly or indirectly, while so employed. As used anywhere in the Bar Rules, the term Bar Counsel includes any Deputy Bar Counsel, Assistant Bar Counsel or special counsel approved by the Court under Bar Rule 4(d)(1) for such appointment.

(b) Duties; Grievance.

(1) Investigation. Bar Counsel shall investigate all matters involving alleged misconduct by an attorney subject to these rules.

(2) Disposition. Bar Counsel shall dispose of all matters involving alleged misconduct by an attorney in accordance with these rules and such additional rules and regulations as may be issued by the Board.

(3) Appeal. Bar Counsel may appeal to the Board from action of the Grievance Commission if inconsistent with Bar Counsel's recommendations.

(4) Prosecution. Bar Counsel shall prosecute all disciplinary proceedings before the Grievance Commission, the Board, and the Court.

(5) Hearings. Bar Counsel shall appear at hearings conducted with respect to motions for reinstatement by suspended or disbarred attorneys, with full rights to participate as a party.

(c) Duties; Other. Bar Counsel shall perform such administrative and professional services as the Board may request on behalf of itself, the Fee Arbitration Commission or the Professional Ethics Commission.

(d) Records. Bar Counsel shall permanently retain all orders, reports and letters imposing any sanction against an attorney and all reports on decisions issued after any disciplinary hearing, as well as all fee awards and dismissal orders in matters docketed with the Fee Arbitration Commission, and all petitions, orders, decisions or reports concerning petitions for reinstatement. Initial complaints shall be retained for 10 years from the final disposition date in all disbarment, suspension or resignation matters, and for 6 years from the final disposition date in all other grievance complaints heard or reviewed that resulted in any other disposition except dismissal. Petitions for fee disputes that proceed to hearing with an award being issued by the Fee Arbitration Commission shall be retained for 6 years from the date of the award. After 2 years from the final disposition date, Bar Counsel shall expunge all file documents or other evidence of the existence of grievance complaints dismissed pursuant to either Rule 7.1(c), 7.1(d)(3), 7.1(e)(3)(A), 7.2(b)(5) or fee petitions dismissed pursuant to Rule 9. Such expungement of records shall also occur 1 year after the date of the death of an attorney having any record of grievance complaints. Notwithstanding any required expungement of documents, the Board shall permanently maintain a summary of all docketed complaint matters processed by Bar Counsel containing the name of the complainant and respondent-attorney, the disposition, and the respective dates the matter was opened and closed. After a complaint file has been so expunged, any Board response to an inquiry from the complainant or respondent will be that the file contents have been expunged and only non-substantive docketing and disposition information has been retained; any Board response to any other inquiry about the matter shall state that there is no public record of such matter.

(e) Delegation. Bar Counsel may delegate any duties or functions to any duly appointed deputy or assistant counsel acting under Bar Counsel's general supervision.

(f) Matters Referred by the Attorney General. Bar Counsel shall keep the Attorney General informed of the result of all investigations, and any action taken thereon, relating to any matter referred to either the Board or Bar Counsel by the Attorney General.

(g) Immunity. Bar Counsel, any Deputy Bar Counsel, Assistant Bar Counsel, special counsel and the Board?s staff shall be immune from liability for any conduct in the course of their official duties under any provision of the Maine Bar Rules.

6. Registration; List of Trust Accounts

a) Required Filings.

(1) Registration Statement. Every attorney admitted to practice in this State, except attorneys who have notified the Board that they are members of the armed forces of the United States who are on active duty outside of the state of Maine, shall upon admission and each year thereafter, file with the Board a registration statement setting forth the attorney's current residence and office addresses, Social Security or federal identification number, and such other identifying information as the State Tax Assessor may by rule require; the date of the attorney's admission to the Bar of the Court; the facts concerning the attorney's admission to practice in any other jurisdiction including each federal court and administrative body where admitted; and such other information as the Court or the Board may direct. The statement shall disclose whether the attorney is in good standing in each jurisdiction to which admitted and, if the attorney is not in good standing in any jurisdiction, it shall contain an explanation of the circumstances. In addition to such registration statement, every attorney shall file a supplemental statement of any change in the information previously submitted within 30 days of such change. Within 30 days of the receipt of a registration statement or supplement thereto filed by an attorney, the Board shall acknowledge receipt thereof in order to enable the attorney on request to demonstrate compliance with the requirement of this rule. Registration statements shall be filed and payment of requisite fees imposed by Rule 10 shall be made on or before August 31 by every attorney admitted to practice in this state except that if the following July is fewer than four months from the date of admission, the next filing shall be the second July following the date of admission. With the registration statement every attorney admitted to practice in this state shall submit a signed written report documenting compliance with the continuing legal education requirements of Rule 12(a) by providing the Annual Report statement required by Rule 12(b)(1). Registration statements, Annual Report statements, and payments postmarked after August 31 will be considered late causing a $25.00 surcharge per statement to be assessed upon and payable by the attorney.

Justices of the Maine Supreme Judicial Court, Justices of the Maine Superior Court, Judges of the Maine District Court, Maine Family Law Magistrates, Judges and Magistrates of the United States District Court of Maine, Maine Judges of the United States Court of Appeals for the First Circuit, and Judges of the United States Bankruptcy Court District of Maine shall not be required to file a registration statement or pay an annual fee during their tenure in office, but they shall remain on the roll of attorneys in judicial status, and may retire in judicial status or resume active practice upon completion of their tenure in office by filing a registration statement and paying the annual fee required for the year in which active practice is resumed.

(2) IOLTA Accounts. Every lawyer admitted to practice in this State shall annually certify to the Board of Overseers of the Bar in connection with the annual renewal of the lawyer's registration, that:

(A) To the lawyer's knowledge after reasonable investigation:

(1) the lawyer or the lawyer's law firm maintains at least one IOLTA account, and

(2) the lawyer has taken reasonable steps to ensure that all client funds are held in client trust accounts meeting the requirements of these Rules, or

(B) That the lawyer is exempt from maintaining an IOLTA or other trust account because the lawyer:

(1) is not engaged in the private practice of law;

(2) does not have an office within the state of Maine;

(3) is (i) a judge or other judicial officer employed full time by the United States Government, the State of Maine or another state government, (ii) on active duty with the armed services, or (iii) employed full time as an attorney by a local, state, or federal government, and is not otherwise engaged in the private practice of law;

(4) is counsel for a corporation or non-profit organization or a teacher or professor employed by an educational institution, and is not otherwise engaged in the private practice of law;

(5) has been exempted by an order of the Court which is cited in the certification; or

(6) holds no client fund other than retainers or advances for costs and expenses.

(3) IOLTA Account Defined. An IOLTA account is a pooled trust account earning interest or dividends at an eligible institution in which a lawyer or law firm holds funds on behalf of client(s), which funds are small in amount or held for a short period of time such that they cannot earn interest or dividends for the client in excess of the costs incurred to secure such income and the account is:

(A) an interest-bearing checking or share draft account;

(B) a money market account with or tied to check-writing;

(C) an account whose funds are invested solely in repurchase agreements; or

(D) an account whose funds are invested solely in qualified money market funds.

A ?qualified money market fund? is an open-end investment company registered under the Investment Company Act of 1940 that is regulated as a money market fund under Rule 270.2a-7 thereof (or any successor regulation) and that, at the time of the investment, has total assets of at least $250,000,000, substantially all of which are invested in U.S. Government Securities. A ?repurchase agreement? is a daily overnight repurchase agreement which must be fully collateralized by U.S. Government Securities and may be established only with a bank or other depository institution that is deemed to be ?well capitalized? or ?adequately capitalized? under applicable regulations of the Federal Deposit Insurance Corporation and National Credit Union Share Insurance Fund. U.S. Government Securities, for the purpose of this section, include securities of Government Sponsored Entities, including but not limited to Federal National Mortgage Association Securities, Government National Mortgage Association Securities, and Federal Home Loan Mortgage Corporation Securities.

(4) Account Qualifications. An IOLTA account must meet all of the following conditions:

(A) the account is held in an eligible institution which is required to:

(i) remit the interest and dividends on this account, net of any allowable reasonable fees, at least quarterly to the Maine Bar Foundation;

(ii) transmit with each remittance a report on a form approved by the Maine Bar Foundation that shall identify each lawyer or law firm for whom the remittance is sent, the amount of remittance attributable to each IOLTA account, the rate and type of interest and dividends applied, the amount of interest and dividends, the amount and type of account-related charges deducted, if any, and the average account balance for the period in which the report is made; and

(iii) transmit to the depositing lawyer or law firm a report in accordance with normal procedures for reporting to its depositors.

(B) the account meets the requirements of paragraph 3 above as a client trust account.

(C)(1) An ?Eligible Institution? for IOLTA accounts is a bank, trust company, savings bank, credit union, or savings and loan association authorized by federal or state law to do business in Maine, the deposits of which are insured by an agency of the federal government, and which has been designated by the Maine Bar Foundation as meeting the conditions of this subsection (C).

(2) To qualify as an eligible institution, the institution must pay on IOLTA accounts interest or dividends no less than the highest interest rate or dividend generally available from the institution to its non-IOLTA customers on accounts having similar minimum balances and other eligibility qualifications. Interest or dividends and fees shall be calculated in accordance with the eligible institution?s standard practice. In determining the highest interest rate or dividend generally available from the institution to its non-IOLTA customers, an institution may consider in addition to the balance in the IOLTA account, factors customarily considered by the institution when setting interest rates or dividends for its non-IOLTA customers, provided that such factors do not discriminate between IOLTA accounts and other accounts and that these factors do not include the fact that the account is an IOLTA account. The eligible institution shall calculate interest and dividends in accordance with its standard practice for non-IOLTA customers. The eligible institution may choose to pay the higher interest rate or dividend on an IOLTA account in lieu of establishing it as a higher rate product. Nothing contained in this Rule will be deemed to prohibit an institution from paying a higher interest rate or dividend on IOLTA accounts than required by this Rule or from electing to waive any fees and service charges on an IOLTA account. Lawyers may only maintain IOLTA accounts at eligible institutions which meet this Rule?s requirements, as determined from time to time by the Maine Bar Foundation.

(3) Eligible institutions may comply with the rate requirements of this Rule by electing to pay an amount on funds which would otherwise qualify for the options noted above, equal to 65% of the Federal Funds Target Rate in effect on July 1 of each year, which rate remains in effect for twelve months, and which amount is deemed to be already net of allowable reasonable fees. The Federal Funds Target Rate as of January 1, 2008, shall be in effect until July 1, 2008.

(4) "Allowable reasonable fees" for IOLTA accounts are per check charges, per deposit charges, sweep fees, a fee in lieu of a minimum balance, federal deposit or share insurance fees, and a reasonable IOLTA account administrative or maintenance fee. All other fees are the responsibility of, and may be charged to the lawyer maintaining the IOLTA account. Fees or charges in excess of the interest or dividends earned on the account for any month or quarter shall not be taken from interest or dividends earned on other IOLTA accounts or from the principal of the amount.

(5) Maine Bar Foundation Actions.

(A) The Maine Bar Foundation shall publish annually a list of eligible institutions that may hold IOLTA accounts.

(B) By March 1 of each year, beginning in 2009, the Maine Bar Foundation shall complete a financial report of the IOLTA funds received and distributed by it for the previous calendar year. The financial report shall be conducted according to generally accepted accounting principles and shall include indication of the purposes for which IOLTA funds have been expended in the previous year. Copies of the financial report shall be provided to the Court.

(6) Receipt of Voluntary Contributions. As part of its notification to attorneys to file annual registration statements, the Board may invite attorneys to make a voluntary contribution to the Campaign for Justice to assist in the funding of legal services for low income individuals. The Board may also provide a means for making the voluntary contribution at the same time that the annual fee is paid and is authorized to utilize its administrative staff and facilities to receive these voluntary contributions and forward them to the Campaign for Justice. (back to top)

(b) Failure to File Registration Statement, to File State Tax Returns, to Comply With a Support Order, to File an Unemployment Tax Return, to Pay an Unemployment Tax Assessment or to Comply With an Award of the Fee Arbitration Commission.

(1) Failure to File Registration Statement. Any attorney who fails to file the registration statement or any supplement thereto in accordance with the requirements of (a) above by August 31 is automatically suspended. Notice of the suspension shall be given by the Board by registered or certified mail, and return receipt requested, addressed to the office or home address last known to the Board. Such suspension for failure to file the statement or supplement thereto shall not be effective until thirty (30) days after the date of mailing the notice thereof. The failure to file shall not be considered a violation of the Code of Professional Responsibility per se, and the suspension for failure to file shall not constitute the imposition of discipline. An attorney who, after the date of the mailing of such notice of suspension but before the effective date of such suspension, files the statement or any supplement thereto as required by subdivision (a) of this rule shall be deemed to be in compliance with this rule and shall not be suspended for failure to file such statement or supplement or certificate; otherwise the attorney shall be subject to Maine Bar Rules 7.3(i)(2) and (j). An attorney aggrieved as a result of a suspension under this paragraph may apply to the Board Chair for summary relief for good cause shown.

(2) Failure to File State Tax Returns. Whenever, pursuant to section 175 of Title 36 of the Maine Revised Statutes, the State Tax Assessor notifies the Board of the Assessor's finalized determination to prevent renewal or reissuance of a "license or certificate of authority" for an attorney to practice law, the Board shall refuse to process any registration statement filed by such attorney after such notification from the State Tax Assessor and such attorney is automatically suspended. The failure to file such a state tax return or to pay any tax liability due as referred to in such notification from the State Tax Assessor shall not be considered a violation of the Code of Professional Responsibility per se and the suspension due to the reported failure to file such return or to pay any overdue tax liability shall not constitute the imposition of discipline. Notice of the receipt of such notification from the State Tax Assessor of such finalized determination and of the suspension shall be given by the Board to the attorney by registered or certified mail, and return receipt requested, addressed to the office or home address last known to the Board of Overseers of the Bar. Such suspension for reported failure to file the state tax return or to pay any overdue tax liability shall not be effective until thirty (30) days after the date of mailing the notice thereof. An attorney who, after the date of the mailing of such notice of notification and suspension but before the effective date of such suspension, files with the Board a certificate issued by the State Tax Assessor that the attorney is currently in good standing with respect to any and all returns and tax liability due shall be deemed to be in compliance with this rule and shall not be suspended for failure to file such state tax returns or to pay any overdue tax liability; otherwise the attorney shall be subject to Maine Bar Rules 7.3(i)(2) and (j). An attorney aggrieved as a result of a suspension under this paragraph may apply to the Board Chair for summary relief for good cause shown.

(3) Failure to File List of Trust Accounts. Any attorney practicing alone who fails to file a list of trust accounts in accordance with paragraph (2) of subdivision (a) of this rule, or any attorney who is a member of a law firm that fails to file such a list, is automatically suspended in the manner and on the terms and conditions provided in paragraph (1) of this subdivision for failure to file a registration statement.

(4) Failure to Comply with a Support Order. Whenever, pursuant to section 2201 of Title 19-A of the Maine Revised Statutes, the Department of Human Services certifies in writing to the Board that, in compliance with the statutory procedure: A) the Department has determined that an attorney is in noncompliance with a support order: and B) the attorney has failed to appeal the Department's decision; or C) a final judgment has been entered against the attorney on the attorney's petition for judicial review, the Board shall refuse to process any registration statement filed by such an attorney after such notification from the Department, and such attorney is automatically suspended. Certification by the Department of an attorney's failure to comply with a support order shall not constitute violation of the Code of Professional Conduct per se, although the Board may institute separate proceedings to determine whether discipline is appropriate. Suspension after certification of noncompliance by the Department shall not constitute the imposition of discipline. Notice of the receipt of such certification from the Department and of the suspension shall be given by the Board to the attorney by registered or certified mail, and return receipt requested, addressed to the office or home address last known to the Board of Overseers of the Bar. Such suspension for reported failure to comply with a support order shall not be effective until thirty (30) days after the date of mailing the notice thereof. An attorney who, after the date of mailing of such notice of certification and suspension but before the effective date of such suspension, files with the Board written confirmation by the Department of compliance with the support order shall not be suspended for failure to comply; otherwise the attorney shall be subject to Maine Bar Rules 7.3(i)(2) & (j). An attorney aggrieved as a result of a suspension under this paragraph may apply to the Board Chair for summary relief for good cause shown.

(5) Failure to File an Unemployment Tax Return or to Pay an Unemployment Tax Assessment. Whenever, pursuant to section 1232 of Title 26 of the Maine Revised Statutes, the State Commissioner of Labor or Director of Employment Security certifies in writing to the Board that: (1) the Commission has determined in compliance with the statutory procedure that an attorney is in noncompliance with the unemployment compensation statute, and (2) the attorney has either failed to pursue an appeal from the Commission's decision or a judgment has been entered against the attorney on the attorney's petition for judicial review; the Board shall refuse to process any registration statement filed by such an attorney after such notification from the Commission and such attorney is automatically suspended. Certification by the Commission of an attorney's failure to comply with the unemployment compensation statute shall not constitute violation of the Code of Professional Conduct per se, although the Board may institute separate proceedings to determine whether discipline is appropriate. Suspension after certification of noncompliance by the Commission shall not constitute the imposition of discipline. Notice of the receipt of such certification from the Commission and of the suspension shall be given by the Board to the attorney by registered or certified mail, and return receipt requested, addressed to the office or home address last known to the Board of Overseers of the Bar. Such suspension for reported failure to comply with the unemployment compensation statute shall not be effective until thirty (30) days after the date of mailing the notice thereof. An attorney who, after the date of mailing of such notice of certification and suspension but before the effective date of such suspension, files with the Board written confirmation by the Commission of compliance with the statute shall not be suspended for failure to comply; otherwise the attorney shall be subject to Maine Bar Rules 7.3(i)(2) & (j). An attorney aggrieved as a result of a suspension under this paragraph may apply to the Board Chair for summary relief for good cause shown.

(6) Failure to Comply With an Award of the Fee Arbitration Commission. When a matter involving an award of a panel of the Fee Arbitration Commission is referred to Bar Counsel under Rule 9(i) because of the attorney's failure to make an awarded refund to the petitioner within 30 days of receipt of the arbitration award, the Board, upon request of Bar Counsel and after affording the attorney an opportunity to respond in writing, may refer the matter to the Court for appropriate disciplinary action. (back to top)

(c) Notification of Discontinuance of the Practice of Law, Request for Reinstatement, and Arrearage Registration Payment.

(1) Notification of Discontinuance of the Practice of Law. Any Maine attorney not the subject of disciplinary investigation under Rule 7.1(d) or of disciplinary proceedings as authorized or pending under Rule 7.1(e) may advise the Board in writing of a desire to completely discontinue the practice of law in Maine and be placed on inactive status. Upon the filing of such notice, the attorney shall no longer be eligible to practice law in Maine or allowed in any manner to indicate or advertise an authority to so practice in Maine, but shall be required to file annual registration statements with the Board for three (3) years thereafter in order that the attorney can be located by the Board of Bar Counsel. During that three (3) year period the attorney shall remit to the Board an annual registration fee in an amount equal to one-half the fee required of a similarly situated active attorney under Rule 10. The attorney shall also comply with the provisions of Rule 7.3(i)(2).

(2) Withdrawal from Maine practice. Any Maine attorney currently registered in good standing under Rule 6(a) and not the subject of any investigation under Rule 7.1(c) or (d) or of any disciplinary proceedings under Rule 7.1(e), may provide written notice to the Board of withdrawal from Maine practice. Such notice shall include a current mailing address and telephone number of the attorney, and the effective date of that withdrawal. The withdrawing attorney shall also comply with the provisions of Rule 7.3(i)(2), and shall not subsequently return to the practice of law in Maine without first complying with the requirements of subsection (c)(3) of this Rule and applicable portions of Maine Bar Admission Rule 10.

(3) Request for Reinstatement. Prior to resuming active practice in Maine, an inactive attorney or an attorney who has withdrawn from practice in Maine must petition the Board Chair and provide persuasive evidence of compliance with the factors as enumerated under Rule 7.3(j)(5)(A), (B), (D), (E) & (F).

(4) Arrearage Registration Payment. In addition to all other requirements, an inactive attorney or an attorney who has withdrawn from practice now seeking reinstatement shall remit to the Board a $ 125.00 reinstatement fee and an arrearage registration payment equal to the total fee that the attorney would have been obligated to pay the Board under Rule 10 had the attorney remained actively registered to practice in Maine during that period of inactive or withdrawn status, minus a credit for the total payment made by the attorney for the first three years of the inactive period but not more than $1,000.00. (back to top)

(d) Emeritus Attorney Status.

(1) Purpose. To provide a licensing status to allow attorneys retired from the active practice of law to provide pro bono publico services to the indigent through recognized legal services organizations.

(2) Application. Any attorney who has discontinued the practice of law and who has given the notice required by Maine Bar Rule 6(c)(1) but who wishes to provide pro bono publico legal services without compensation or expectation of compensation shall advise the Board by filing an emeritus status statement indicating he or she will limit his or her active legal practice to providing pro bono publico legal services under the auspices of an approved legal service organization, as defined below. The emeritus status statement shall be signed by an authorized representative of the approved legal services organization under whose auspices the attorney will provide such legal services. Unless the Board of Overseers of the Bar objects within 30 days, the attorney may begin providing pro bono services after filing such a statement. An attorney who has assumed emeritus attorney status shall not be relieved of his or her obligation under Maine Bar Rule 6(c)(1) to file annual registration statements and remit annual registration fees pursuant to Maine Bar Rule 6(c)(1).

(3) Definition of Approved Legal Services Organization. For purposes of this Rule, an approved legal services organization shall include a pro bono publico legal services program sponsored by a court-annexed program, the Maine State Bar Association, the University of Maine School of Law, or a not-for-profit organization that provides legal services to persons of limited means and that receives funding from the federal Legal Services Corporation, the Maine Bar Foundation, or the Maine Civil Legal Services Fund, and in addition, shall include any not-for-profit legal services organization designated as an approved legal services organization after petition to the Supreme Judicial Court. (back to top)

(e) Register of Attorneys. Based upon the information made available to the Board by the filing of the statements provided for under this rule, or otherwise, and upon such other investigatory procedures as may be established by the Board, consistent with these rules, the Board shall compile and keep current a register for the Court of all persons admitted as members of the Bar of this state, and records of the death or other termination or suspension of the right of any attorney to practice law in this state. The Board shall assign a Bar Number to every admitted attorney. When attorneys change their business or home contact information, the updated information must be supplied by the attorney within 30 days to the Board and to the Office of Information Technology of the Administrative Office of the Courts. An attorney?s social security number shall not be made available by the Board to the public. For the protection of the public, the Board's records must contain an address, which may be a post office box address, for every attorney, which address shall be made available to the public. The Board will only disclose an attorney's home address if no current office address or post office box address is provided. All other information contained in such register and records shall be available to the public subject to Board Regulations and policies. (back to top)

(f) Removal From Register. Upon the filing of a notice that an attorney wishes to assume inactive status, the attorney shall be removed from the roll of those classified as active until and unless the attorney requests reinstatement to the active roll and pays for the year of reinstatement the fee imposed by Rule 10. (back to top)

(g) Forms. The Board shall prepare and make available through its offices approved registration statement forms and change of address forms which shall be used by attorneys in complying with this rule.

7. Grievance Commission, Procedures and Discipline

(a) Term. Initial members of the Grievance Commission shall serve as follows: 3 of its members (one lay person and two attorneys) shall be appointed for a term of 4 years; 3 of its members (one lay person and two attorneys) for a term of 3 years; 3 of its members (one lay person and two attorneys) for a term of 2 years; and 3 of its members (one lay person and two attorneys) for a term of 1 year. Appointments thereafter shall be for terms of 4 years. No member shall be appointed to more than 2 consecutive full terms but a member appointed for less than a full term (originally or to fill a vacancy) may serve two full terms in addition to such part of a full term, and a former member shall again be eligible for appointment after a lapse of one year. The Board shall appoint the Chair and the Vice Chair of the Grievance Commission each year from among the members of the Commission.

(b) Quorum and Action by Panels.

(1) Except as provided in paragraph (2) of this subdivision, a quorum shall exist for the purposes of the Commission's exercise of its authority and duties when a majority of its members are present. The concurrence of a majority of such members present shall be sufficient for any action taken.

(2) The Commission shall be divided by its Chair or Vice Chair into panels of three members each, one of whom in each panel shall be a lay member, to sit and act for the Grievance Commission in the exercise of the authority and duties of the Commission. The Chair or Vice Chair shall designate one member of each panel as Panel Chair, or Acting Chair, as needed. The Grievance Commission panels shall be separately designated and assigned to perform their functions under Rules 7.1(d), (e) on a rotating basis approved by the Chair or Vice Chair.

(3) On a rotating basis with lay members of the Board, lay members of the Commission shall review matters submitted under Rule 7.1(c)(1).

(4) In the event of unavailability of any of the named panel members, the Chair, Vice Chair or a designated Board staff member may assign other members of the Commission to serve on a panel at a preliminary review or public disciplinary proceeding.

(5) If in agreement as to disposition, a majority of two panel members, one of whom being the lay member, may act for the panel on matters considered at a preliminary review, due to reasons of conflict or disqualification of the other panel member.

(6) One attorney member and one lay member of a panel may conduct a public disciplinary proceeding for the panel with the consent of both Bar Counsel and the respondent attorney.

(7) After reasonable notice to all members of the Grievance Commission, or to all members of one of its respective panels, as applicable, and with the consent of all participating members therein, a meeting of the Grievance Commission or a preliminary review by one of its respective panels may be duly constituted and action taken by means of a conference call or similar communications equipment enabling all members participating to hear one another.

(c) Authority and Duties. Panels of the Commission:

(1) shall review and may approve or modify recommendations to it by Bar Counsel for dismissals, dismissals with warnings, and public disciplinary proceedings by Commission panels to consider the issuance of public reprimands or the institution of formal charges;

(2) shall conduct public disciplinary proceedings on charges of misconduct and make findings and issue recommendations with respect thereto; may issue public reprimands for attorney misconduct; and, in any case where discipline of an attorney by the court is found to be required, shall direct Bar Counsel to file an information with the court; and

(3) shall have such other powers, authority and duties not inconsistent with these Rules, as shall be delegated or granted by the Board.

(d) Board Jurisdiction. Any authority or duty of the Grievance Commission or a panel thereof may at any time be assumed and acted upon by the Board on its own motion or at the direction of the Court. The Board may adopt or modify any action recommended directly to it by Bar Counsel or by the Grievance Commission, or direct that a proceeding be instituted before the Grievance Commission.

(e) Procedure [Abrogated].

7.1 Disciplinary Proceedings Before the Commission and the Board

(a) Complaint. Any person may submit to the Board a signed, written complaint alleging misconduct by an attorney subject to these rules.

(b) Investigation. Bar Counsel shall investigate all complaints of attorney misconduct submitted in accordance with Rule 7.1(a). In addition, if the Board or Bar Counsel become aware of information or allegations, in a manner other than receipt of a complaint, involving an attorney which, if true, raise a good faith belief that an attorney's conduct may have violated the Code of Professional Responsibility, Bar Counsel may initiate an investigation under Rule 7.1(a) in the absence of a complaint under the circumstances. However, any such complaint alleging or involving misconduct by an attorney member of the Board or Grievance Commission, or by any attorney employed at the office of Bar Counsel, shall be forwarded directly to the Chair of the Board, or the Vice Chair of the Board, or the Chair of the Grievance Commission in those cases when the Chair and Vice Chair are not able, to act in place of Bar Counsel for conducting an investigation and subsequent disposition pursuant to this Rule or such other Court Rules and Board Regulations governing the Board and Grievance Commission in the processing of grievance complaints.

(c) Dismissal by Bar Counsel.

(1) Dismissal and Review. Bar Counsel shall dismiss any complaint if Bar Counsel concludes, with or without investigation, that the matter does not constitute misconduct subject to sanction under these rules. Bar Counsel shall notify the complainant and the attorney of the dismissal in writing. The notification shall briefly and generally state the reasons for dismissal and shall advise the complainant that, upon written request made within 14 days of receipt of the notification, the dismissal will be reviewed by a lay member of the Board or of the Grievance Commission. The reviewing lay person shall approve, disapprove, or modify the terms of the dismissal. Bar Counsel shall notify the complainant and the attorney in writing of the reviewing lay person's action, with a general statement of the reasons therefor and any further action to be taken by Bar Counsel under these rules. If Bar Counsel elects to investigate the matter and in so doing receives a written response from the involved attorney, Bar Counsel may provide that response to the complainant.

(2) Bar Counsel Files. Except as provided and authorized by Rule 7.3(k)(3), information contained in Bar Counsel Files shall not be reported in response to inquiries made to the Board as to the good standing or disciplinary record of any attorney and shall not be used in any subsequent proceedings before the Board or Grievance Commission, or the Court.

(d) Preliminary Grievance Panel Review.

(1) Bar Counsel Action.

(A) If a complaint is not dismissed pursuant to Rule 7.1(c)(1), Bar Counsel shall present the complaint and a recommended disposition to a panel of the Grievance Commission selected as provided in Rule 7(b)(2) for preliminary review pursuant to this subdivision (d). Any attorney who is the subject of the complaint shall be given a copy of the complaint and upon Bar Counsel's request, shall submit to Bar Counsel an informal response for consideration by the reviewing panel. Bar Counsel may submit the response to the complainant for reply. Bar Counsel shall recommend either dismissal of the complaint, dismissal of the complaint with a warning, or commencement of public disciplinary proceedings before a different panel of the Grievance Commission pursuant to Rule 7.1(e)(1)-(5). The attorney and complainant shall be notified of Bar Counsel's recommended disposition.

(B) The attorney may, within 14 days of receipt of notification of the recommended disposition, submit in writing a waiver of preliminary review and a demand that Bar Counsel commence public disciplinary proceedings. Bar Counsel shall thereupon prepare and present a formal petition for disciplinary action before a panel of the Grievance Commission pursuant to Rule 7.1(e)(1)-(5). The complainant shall be notified of Bar Counsel's action.

(2) Grievance Commission Panel Review. Preliminary review before a panel of the Grievance Commission shall not be open to the public and shall be confidential. Neither the complainant nor the attorney shall be present. The panel shall review the complaint, any response submitted by the attorney, any reply submitted by the complainant, the results of Bar Counsel's investigation, and Bar Counsel's recommended disposition.

(3) Same: Dismissal. If the reviewing panel does not find probable cause to believe that misconduct subject to sanction under these rules has occurred, the panel shall dismiss the complaint. Bar Counsel shall notify the complainant and the attorney of the dismissal in writing, briefly and generally stating the reasons for the dismissal. All complaints dismissed pursuant to this paragraph shall be retained on file by Bar Counsel on the terms and conditions provided by Rule 7.1(c)(2) for complaints dismissed by Bar Counsel.

(4) Same: Dismissal With a Warning.

(A) If the reviewing panel finds probable cause to believe that misconduct subject to sanction under these rules has occurred; that the misconduct is minor; that there is little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by the attorney, the panel may direct Bar Counsel to dismiss the complaint with a warning. Bar Counsel shall deliver notice of the dismissal and the terms of the warning in writing personally or by mail to the attorney and shall notify the complainant of the fact that the complaint has been dismissed with a warning, briefly and generally stating the reasons for that disposition.

(B) Dismissal with a warning is not discipline. A complaint dismissed with a warning shall not be reported in response to inquiries made to the Board as to the good standing or disciplinary record of an attorney, nor need an attorney report or disclose the same in any inquiry made to or of such attorney with respect to the imposition of any disciplinary action. The fact that a previous complaint was dismissed with a warning may be used in subsequent preliminary panel reviews or public disciplinary proceedings only after a finding of misconduct in the subsequent matter, and only as evidence of prior misconduct bearing upon the gravity of the sanction to be imposed in the subsequent review or proceedings.

(C) A dismissal with a warning after preliminary review under this paragraph (4) may not be appealed to the Board by the attorney, the complainant, or Bar Counsel and is not subject to judicial review. The attorney may, within 14 days after receipt of notice of dismissal with a warning, demand in writing that Bar Counsel commence public disciplinary proceedings. The dismissal with warning shall thereupon be vacated, and Bar Counsel shall prepare and present a formal petition for disciplinary action before a different panel of the Grievance Commission pursuant to Rule 7.1(e)(1)-(5). The complainant shall be notified of Bar Counsel's action.

(5) Same: Probable Cause for Further Proceedings. If the reviewing panel finds probable cause to believe that misconduct subject to sanction under these rules has occurred for which a public reprimand should be issued or an information seeking suspension or disbarment should be filed, the panel shall direct Bar Counsel to prepare and present a formal petition for disciplinary action before a different panel of the Grievance Commission pursuant to Rule 7.1(e)(1)-(5). The complainant shall be notified of the reviewing panel's action.

(e) Public Disciplinary Proceedings Before a Grievance Commission Panel.

(1) Petition; Service and Answer. Bar Counsel shall commence public disciplinary proceedings by filing a petition for disciplinary action before a panel of the Grievance Commission selected as provided in Rule 7(b)(2). The petition shall set forth specific charges of alleged misconduct. A copy of the petition, together with a notice setting a time for answer that shall be not less than 20 days after service, shall be served by Bar Counsel upon the respondent attorney either by registered or certified mail, with return receipt requested, or by any method provided in Rule 4 of the Maine Rules of Civil Procedure. The respondent attorney shall file an answer within the stated time. In the event that the respondent attorney fails to file an answer, the facts set forth and the misconduct alleged in the petition shall be taken as admitted, but the respondent attorney may be heard on the question of sanctions.

(2) Hearing.

(A) The disciplinary panel shall hold a hearing on the petition. The Board shall serve notice of the time and place of hearing on the respondent attorney and the complainant either by regular mail or by registered or certified mail, with return receipt requested, at least 15 days in advance of the date thereof.

(B) The hearing shall be open to the public, except that to protect the interests of a complainant, witness, third party or respondent attorney, the panel may, upon application and for good cause shown, issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential and direct that the proceedings be conducted so as to implement that order. The deliberations of the panel following any hearing under this subdivision shall not be open to the public. The decision of the panel following any hearing under this subdivision shall be made available to the public.

(C) At the hearing, Bar Counsel shall present such evidence as Bar Counsel deems appropriate and may cross-examine witnesses. The respondent attorney may be represented by counsel, may cross-examine witnesses, and may present evidence. Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The panel may exclude irrelevant or unduly repetitious evidence. The Board shall cause all proceedings before the panel to be stenographically or electronically recorded in a form that will readily permit transcription.

(D) The Chair of the Panel of the Grievance Commission conducting the hearing shall preside and have the power to control the course of proceedings and regulate the conduct of those individuals appearing as counsel, parties, or witnesses. The failure of an attorney participating in such a hearing as a party, counsel for a party, or as a witness to obey an order of the Chair shall constitute a violation of Maine Bar Rule 3.2(f), and if committed by a respondent attorney may be duly considered by the panel in its disposition of the matter before it.

(E) Subject to approval by the Chair of the Panel, all of the hearing formalities of this Rule may be waived by a signed, stipulated agreement of the parties. When such a waiver includes or incorporates the parties? submission of an agreed proposed sanction order, that waiver shall also contain the respondent attorney?s signed waiver of the right to file a petition for review under Rule 7.2.(a).

(3) Grievance Commission Panel Determination.

(A) Dismissal. The disciplinary panel shall dismiss the petition if it finds, on the evidence and arguments presented, that no misconduct subject to sanction under these rules occurred.

(B) Dismissal With A Warning. If the disciplinary panel finds that misconduct subject to sanction under these rules has occurred; that the misconduct is minor; that there is little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by the attorney, the panel may dismiss the complaint with a warning having the effect and consequences provided in Rule 7.1(d)(4)(B). The attorney may obtain review by the Board of any objection to the warning or its terms as provided in Rule 7.1(e)(5).

(C) Public Reprimand or Information. If the disciplinary panel finds that misconduct subject to sanction under these rules has occurred and that none of the conditions set forth in subparagraph (B) of this paragraph is present, the panel shall either issue a public reprimand to the respondent attorney or, upon a finding of probable cause for suspension or disbarment, shall direct Bar Counsel to commence an attorney discipline action by filing an information pursuant to Rule 7.2(b). In determining the appropriate sanction, the panel shall consider the following factors among others: (i) whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession; (ii) whether the attorney acted intentionally, knowingly, or negligently; (iii) the amount of actual or potential injury caused by the attorney's misconduct; and (iv) the existence of any aggravating or mitigating factors. In the event that the panel determines that any proceedings should be concluded by public reprimand, it shall arrange through Bar Counsel for delivery of the reprimand to the respondent attorney in person or otherwise. The respondent attorney may petition the Court for review of the reprimand as provided in Rule 7.2(a).

(4) Report of Findings and Actions. The disciplinary panel shall report promptly to the Board its findings, determinations and actions, together with a record of the proceedings before it. A copy of the report shall be forwarded to the respondent attorney, and counsel, if any.

(5) Objections to the Panel Report.

(A) By Respondent Attorney. Within 21 days after delivery of notice of a dismissal of a complaint with a warning, the respondent attorney may file with the Board an objection to the warning or its terms, giving notice to Bar Counsel.

(B) By Bar Counsel. Within 21 days of receipt of the report of the disciplinary panel, Bar Counsel may file with the Board an objection to the findings and recommendations of the report, giving notice to the respondent attorney.

(C) Procedure Upon Objections. The Board shall set dates for submission of oral arguments, unless waived, by Bar Counsel and the respondent attorney, and shall thereupon proceed, through a panel of at least three members of the Board (no one of whom shall have been a member of a Grievance Commission reviewing or disciplinary panel on the matter), to be designated by the Board or by the Chair or Vice Chair, to determine the issue. The Board panel may deny the objection; order dismissal with any warning expunged; remand the matter to the disciplinary panel for further consideration; dismiss the complaint with a warning having the effect provided in Rule 7.1(e)(3)(B); enter a public reprimand having the effect provided in Rule 7.1(e)(3)(C); or, upon a finding of probable cause for suspension or disbarment, direct Bar Counsel to commence an attorney discipline action by filing an information pursuant to Rule 7.2(b). If the Board denies the objection, that action shall be final as to the party presenting it.

7.2 Disciplinary Proceedings Before the Court

(a) Petition for Review of Public Reprimand.

(1) Petition and Answer. Within 21 days after delivery of a public reprimand, a respondent attorney may file a petition for review of the action of the disciplinary or Board panel by a single justice of the Court. The petition for review shall be filed with the Executive Clerk of the Court by the respondent attorney and shall be served by the respondent attorney at the same time upon Bar Counsel by registered or certified mail. The petition for review shall include copies of the petition and answer filed with the Commission and of the reprimand and shall contain a concise statement of the grounds upon which the respondent attorney seeks relief and a demand for the specific relief sought. Within 21 days after receipt of the petition for review, Bar Counsel shall file an answer with the Executive Clerk of the Court and shall transmit a copy thereof to the respondent attorney and the complainant.

(2) Preparation of Record. Within 21 days after filing the answer, Bar Counsel shall prepare and file the complete record of the proceedings and shall furnish a copy thereof to the respondent attorney. If the respondent attorney believes that the record filed by Bar Counsel is either incomplete or over-inclusive, the respondent attorney shall serve notice upon Bar Counsel within 10 days after the record is filed. This notice shall include specific proposals by the respondent attorney regarding additions or deletions from the record filed by Bar Counsel. Bar Counsel and the respondent attorney shall attempt to agree upon the contents of the record. If the parties cannot agree, the respondent attorney may request that the court modify the contents of the record.

(3) Motion for Trial of the Facts. If, on motion, the court finds in its discretion that the respondent attorney ought to have a trial of the facts, the court may order a hearing to permit the introduction of evidence that does not appear in the record of the proceedings before the Grievance Commission disciplinary panel and that has not been stipulated. A motion for a trial of the facts shall be filed within 21 days after the petition is filed. The failure of a respondent attorney to file such a motion shall constitute a waiver of any right to a trial of the facts. With the motion the respondent attorney shall also file a detailed statement, in the nature of an offer of proof, of the evidence to be introduced at the hearing. That statement must be sufficient to permit the court to make a proper determination as to whether any trial of the facts as presented in the motion and offer of proof is appropriate and if so to what extent. After hearing, the court shall issue an appropriate order specifying the future course of proceedings. The court on its own motion may order that additional evidence be taken.

(4) Scope of Review. Except where otherwise provided by order of court pursuant to subsections (3) or (5) hereof, review of the decision of a Grievance Commission disciplinary panel or Board panel to impose a public reprimand shall be based upon the record of the proceedings before the panel. The judgment entered after such review may affirm, vacate or modify the decision of the panel. Any findings of fact of the Grievance Commission disciplinary panel shall not be set aside unless clearly erroneous. Either party may appeal to the Law Court within 10 days from entry of the judgment of the single justice.

(5) Finding of Probable Cause. If at any stage of the proceedings on petition for review, the court determines that there is probable cause that the matter be concluded by suspension or disbarment, the court shall direct Bar Counsel to file an information and the matter shall be conducted as an attorney discipline action in accordance with subdivision (b) of this rule.

(b) Attorney Discipline Actions Before the Court.

(1) Commencement. An attorney discipline action authorized pursuant to Rule 7.1(e)(3)(C) or (5)(C) shall be commenced by the filing of an information with the Executive Clerk of the Court. The information shall allege that the respondent is an attorney subject to these rules and has conducted herself or himself in a manner unworthy of an attorney admitted to the Bar of this State for the reasons specified in the information. The Board shall be responsible for serving the information, together with a summons, upon the respondent attorney in the manner provided by Rule 4 of the Maine Rules of Civil Procedure.

(2) Procedure. An attorney discipline action shall be heard by a single justice of the Supreme Judicial Court assigned by the Chief Justice to hear the action. To the extent appropriate, and except as otherwise provided in these rules, the Maine Rules of Civil Procedure and the Maine Rules of Evidence shall govern attorney discipline actions. The Board shall be treated as the plaintiff and the respondent attorney as the defendant; and the action shall be captioned "The Board of Overseers of the Bar v. [name of respondent attorney]." In applying those rules, and in this subdivision, the word "court" shall mean the single justice of the Supreme Judicial Court assigned to hear the action; and the word "clerk" shall mean the Executive Clerk of the Supreme Judicial Court.

Rules 12(c), 13, 14, 16, 26 through 37, and 56 of the Maine Rules of Civil Procedure shall not apply to attorney discipline actions; provided, however, that:

(A) Bar Counsel shall furnish to the respondent attorney, within a reasonable time after the filing of the information, copies of all exhibits presented to the Grievance Commission disciplinary panel or the Board in the proceedings leading to the information. The stenographic or electronic record, as required by Maine Bar Rule 7.1(e)(2)(c), and any other matter within Bar Counsel's possession or control that is discoverable under Rule 26 of the Maine Rules of Civil Procedure shall be made available to the respondent attorney at the office of Bar Counsel at any reasonable time for inspection and copying at the respondent attorney's expense.

(B) Discovery pursuant to Maine Rules of Civil Procedure 26 through 37 may be had, upon a showing of good cause, by order of court.

(C) The court may in its discretion hold a prehearing conference with the attorneys for the parties to consider such matters as may aid in the disposition of the action and may by written order limit the issues to be tried.

(3) De Novo Proceedings. The trial of an attorney discipline action shall be de novo.

(4) Burden of Proof. In an attorney discipline action the Board shall have the burden of proving by a preponderance of the evidence the charges specified in the information.

(5) Judgment and Appeal. The judgment entered in an attorney discipline action may impose a reprimand, suspension for a definite period or disbarment, or may dismiss the information. Either party may appeal to the Law Court within 21 days from the entry of the judgment of the single justice.

(6) Attorney's Status Pending Appeal. Pending appeal to the Law Court, a judgment of suspension or disbarment shall, unless stayed in whole or in part by the single justice or by the Law Court, be given full force and effect in accordance with the provisions of Rule 7.3(i).

(7) Bypassing Complete Grievance Commission Preliminary Review When Another Matter Pending Against the Respondent. Whenever a respondent attorney is the subject of a disciplinary proceeding either authorized or instituted pursuant to Rule 7.1(e) or 7.2(a), (b), Bar Counsel may, with the consent of the Grievance Commission panel, commence a disciplinary action before the Court, pursuant to Rule 7.2(b), concerning any allegations of misconduct by the same respondent attorney that have subsequently come to the attention of Bar Counsel, and have been investigated by Bar Counsel pursuant to Rules 7.1(b) and (c), and reviewed by the Grievance Commission pursuant to Rule 7.1(d), even though there has been no hearing before the Grievance Commission as to those subsequent allegations of misconduct as is usually required under the provisions of Rule 7.1(e)(1)-(5).

(8) Expenses of Proceedings. In addition to any discipline imposed by the court, the court may, when it deems it appropriate, also require the respondent attorney to pay the reasonable expenses incurred by the Board in the investigation of the matter or in the conduct of hearings before the Grievance Commission or before the court. The court may make such orders as are just concerning the payment of such expenses including ordering that the respondent attorney be suspended from the practice of law until such expenses are paid.

(9) Intervention by the Attorney General. [Abrogated]

(c) Temporary Suspension.

(1) Pending final determination by the Grievance Commission of any disciplinary proceeding, Bar Counsel, with the approval of the Board, may petition the Court for an order temporarily suspending any member of the Bar from the practice of law in this State if there is a substantial probability that the attorney has committed a violation of the Code of Professional Responsibility that threatens irreparable injury to any client, the public or to the administration of justice.

(2) The petition for temporary suspension shall set forth a plain and concise statement of the grounds therefor, shall be verified and supported by affidavit, and shall be served upon the respondent attorney by sending it by certified or registered mail to the address furnished by the respondent attorney in the last registration statement filed in accordance with Rule 6, or to the respondent attorney's last known business address or home address if no registration statement has been filed. The Court, after affording the respondent attorney an opportunity to be heard, may make such order, including temporary suspension, as it deems appropriate.

7.3 Disciplinary Proceedings: Other Provisions

(a) Immunity.

(1) Complainants and Witnesses. In the absence of malice, the complainant and any witness shall be immune from liability based upon the filing of a complaint or the giving of any testimony in a proceeding hereunder.

(2) Members of the Board, Commission, etc. [Deleted effective January 1, 1995.]

(b) Refusal of Complainant to Proceed; Compromise; Restitution. Abatement of an investigation or related proceedings shall not be required by the failure of the complainant to sign a complaint or to testify, or by any settlement, compromise or restitution.

(c) Pending Civil or Criminal Litigation.

(1) The investigation or prosecution of complaints involving material allegations which are substantially similar to the material allegations of pending criminal or civil litigation shall not be deferred unless the Board or the Court shall order such deferment as to which either the Court or the Board may impose conditions.

(2) The acquittal of the respondent attorney on criminal charges, or a verdict or judgment in the respondent attorney's favor in a civil litigation involving substantially similar material allegations, shall not require abatement of a disciplinary investigation or proceeding predicated upon the same material allegations.

(d) Conviction of Crimes.

(1) Upon the filing with the Court by Bar Counsel of a certificate of the clerk of any court establishing that an attorney has been convicted of a crime demonstrating unfitness to engage in the practice of law, whether the conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial or otherwise, the Court shall, if satisfied that the crime demonstrates unfitness to practice law, enter an order to show cause why the attorney should not be immediately suspended from the practice of law, regardless of the pendency of an appeal of the conviction, pending final disposition of any disciplinary proceeding commenced upon such conviction. The Court, after affording the attorney opportunity to be heard, may make such order of suspension as may be advisable in the interest of the public, the Bar and the Court.

(2) A certificate of final judgment of conviction of any attorney for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding based upon the conviction subject to the provisions of paragraph (5) below.

(3) Upon the receipt of a certificate of conviction of an attorney for a crime covered by (1) above, Bar Counsel, in addition to any suspension of the attorney imposed by the Court, shall institute formal proceedings before a panel of the Grievance Commission, or, with the consent of the Chair or Vice Chair of the Grievance Commission, may, in lieu of a proceeding before the panel, commence a disciplinary action before the Court pursuant to Rule 7.2(b). A disciplinary proceeding so instituted need not be brought to hearing until all appeals from the conviction are concluded.

(4) Upon receipt of a certificate of a final judgment of conviction of an attorney for a crime not included within (1) above, the Court may refer the matter to the Board to take appropriate action, which may include investigation by Bar Counsel or a proceeding before the Grievance Commission.

(5) An attorney suspended hereunder will be reinstated immediately upon the filing of a certificate that the underlying conviction for a crime has been reversed or set aside, but the reinstatement need not terminate any formal proceeding then pending against the attorney.

(6) It is the duty of an attorney admitted to practice in this State who is convicted in any court of any crime to notify Bar Counsel in writing within 30 days of the entry of the judgment of conviction. Such notification shall include a certificate from the respective court clerk establishing the conviction, and shall be required regardless of the pendency of an appeal or other post-conviction proceeding.

(7) Upon being advised that an attorney has been convicted of a crime covered by paragraph (1) above within this State and that no certificate has been filed under paragraph (6) above, or of such a crime in another jurisdiction, Bar Counsel shall obtain a certificate of the final judgment of conviction and transmit it or a copy thereof to the Court.

(e) Proceedings Where an Attorney Is Declared to Be Incompetent or Is Alleged to Be Incapacitated.

(1) Where an attorney has been judicially declared incompetent, or acquitted of a crime by reason of mental illness, or committed to a mental hospital after a judicial hearing, or where an attorney has been placed by court order under guardianship or conservatorship, the Board, on reference from any court or on its own motion, may, in its discretion, give the attorney the opportunity to resign or to agree to such a suspension, the Court, upon petition of the Board or upon its own motion, may enter an order to show cause why the attorney should not be suspended from the practice of law. A copy of such order shall be served upon the attorney, the attorney's personal representative, if any, and the director of the mental hospital to which the attorney is committed, if any, in such manner as the Court may direct.

(2)(A) Bar Counsel may, after investigation, seek a determination by the Board, or a panel thereof, after hearing, whether an attorney is incapacitated from continuing practice by reason of mental infirmity or addiction to drugs or intoxicants. Upon so finding, the Board shall, promptly petition the court to determine whether the attorney is so incapacitated. The Court after due notice and hearing may make any orders necessary or appropriate to protect the public interest, including an order suspending the attorney.

(B) The Chair of the Board of Overseers, or in the absence of the Chair, the Vice Chair, upon an application by Bar Counsel alleging such incapacity of an attorney together with an allegation that the continued practice of such attorney poses a substantial threat of irreparable harm to the public, may direct that such petition seeking the suspension of the attorney be filed directly with the Court. The Court may order such action as it deems appropriate, including an expedited hearing. The Court may enter an interim order suspending the attorney pending such expedited hearing. With notice to Bar Counsel, the attorney may move for dissolution or modification of the interim order of suspension.

(3) If during a disciplinary proceeding the respondent-attorney claims to be suffering from disability by reason of mental or physical infirmity or illness, or because of addiction to drugs or intoxicants, which makes it impossible to present an adequate defense, the Court may suspend the respondent attorney from continuing to practice law until a determination has been made concerning the respondent attorney's capacity to continue to practice law, and may take other appropriate action.

(4) Any attorney who has resigned or has been suspended under the provision of this subdivision may apply for reinstatement in accordance with Rule 7.3(j) after the expiration of 1 year and annually thereafter, or at such shorter intervals as the Court may permit. The Court may enter any appropriate order or orders in connection with an application, including an order for a medical and mental examination of the attorney, at the attorney's expense or at public expense. Where an attorney suspended under this subdivision, has been judicially declared to be competent, the Court may dispense with further evidence that the disability has been removed.

(f) Appointment of a Proxy to Protect Clients' Interests When Attorney Is Disabled, Missing or Deceased.

(1) Whenever an attorney is disabled, missing or deceased, and no associated lawyer (see M. Bar R. 3.15(a)) or lawyer designated in the disabled missing or deceased attorney?s annual registration statement under M. Bar R. 6(a)(1) is available to act to protect the interests of clients and conclude the law practice, the Court may appoint a Proxy who is a licensed Maine attorney in good standing with the duties described in this Rule. A Proxy shall be authorized by Court order to take some or all of the following actions:

(i) Secure the professional files, client data and client property in an appropriate location and notify the Board of Overseers of that location;

(ii) Create an inventory of the open and closed client files;

(iii) Give priority attention to client matters that are identified as open, active and apparently time sensitive, including notifying clients of the need to seek new counsel or to represent themselves; if necessary the Proxy may seek protection for certain clients by giving notice to tribunals or others concerning the circumstances giving rise to the Proxyship, without entering an appearance for the client.

(iv) Notify all clients that the law practice is concluding and invite clients to retrieve their client files. Such notice may be by letter, phone, email, newspaper advertisement in a newspaper in general circulation in the county where the law practice was located and/or such other method as will effect notice. Notice to clients with open matters should be made by as direct means as possible;

(v) Guide the personal representative or conservator of the deceased, missing or disabled attorney in prudently utilizing the operating accounts to effect the conclusion of the practice, including the temporary retention of office staff or hiring other personnel as necessary and appropriate;

(vi) Guide the personal representative or conservator of the deceased, missing or disabled attorney in the appropriate distribution of client funds and property held in trust;

(vii) Submit to the Court a record of hours worked and disbursements made to allow in some cases for payment of legal fees at the State court appointment rate. The assets or estate of the deceased, missing or incapacitated attorney shall be the first choice for source of payment to the Proxy. A Proxy may serve in a pro bono capacity. Otherwise, a Proxy may be compensated from another source ordered by the Court.

(viii) Continue to act as Proxy until discharged by the Court in accordance with paragraph 3 of this Rule;

(ix) Take any and all other appropriate action consistent with the discretion vested in the Proxy by the Court and/ or as specifically ordered by the Court.

(2) Prior to petition for discharge, the Proxy shall formulate for the approval of the Court a plan for the custody, care, appropriate release and ultimate destruction of client files. The plan will identify a file caretaker (who may be the Proxy) who will maintain and appropriately release the client files to clients subsequent to the discharge of the Proxy. The plan must provide for confidential destruction of all client files and data, regardless of content, eight (8) years from the date of the discharge of the Proxy. The destruction date may be earlier if so ordered by the Court. The plan must include the requirement that the file caretaker provide written notice to the Board of Overseers confirming the confidential destruction of files and data immediately after it has occurred.

(3) The Proxy shall serve until discharged by the Court. The Proxy may petition the Court for discharge from appointment upon completion of duties or sooner for other good cause. With the petition for discharge the Proxy shall file a report of services rendered. With the approval of the court, the report or any part thereof may be filed under seal. The report should include:

(i) The inventory of files and the status of each file as released or retained;

(ii) The plan for the security and handling of the retained client files;

(iii) An accounting from the personal representative or conservator of the law practice operating accounts during the period of Proxyship;

(iv) An accounting from the personal representative or conservator of the law practice client trust fund accounts during the period of Proxyship; and

(v) Any other information deemed by the Proxy or the Court to be necessary and appropriate;

(4) Any Proxy so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under this Rule. Any Proxy may be engaged by any former client of the deceased, missing or disabled attorney, provided that the Proxy informs any such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order under section (2) of this Rule does not mandate or recommend employment by the client of the Proxy. The Proxy is subject to all Bar Rules, including Bar Rule 3.4 on conflicts of interest. However the client?s retention of the Proxy as successor counsel is not a per se conflict of interest solely by reason of the Proxy?s appointment under this Rule.

(5) The Proxy shall be protected from liability for professional services rendered in accordance with this Rule to the extent permitted by law.

(6) In every case, the Proxy shall provide copies of all pleadings and orders under this Rule to the Board of Overseers of the Bar.

(g) Resignations by Attorneys Under Disciplinary Investigation.

(1) An attorney who is the subject of an investigation under these rules may submit to the Board a letter of resignation, supported by an affidavit that:

(A) the resignation is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress and is fully aware of the implications of submitting the resignation;

(B) the attorney is aware that there is presently pending an investigation into allegations of misconduct, the nature of which allegations the attorney shall specifically set forth; and

(C) the attorney acknowledges that the material facts, or specified material portions of them, underlying the allegations are true.

(2) Upon receipt of such resignation, the Board shall file it, together with its recommendation thereon, with the Court, which after hearing shall enter such order as it deems appropriate.

(3) Any order accepting such resignation under this section shall be a matter of public record unless otherwise ordered by the Court; but the supporting affidavit required under the provisions of subsection (1) shall be impounded, whether or not such resignation is accepted, and shall not be made available for use in any other proceeding unless otherwise ordered by the Court.

(h) Reciprocal Discipline.

(1) Upon the receipt of a certified copy of an order that an attorney admitted to practice in this State has been subject to discipline in another jurisdiction (including any federal court or any state or federal administrative body or tribunal), the Court shall enter an order of notice containing a copy of the order from the other jurisdiction and directing the respondent attorney to inform the Court within 30 days from service of the order of notice of any claim that the imposition of the identical discipline in this State would be unwarranted and the reasons therefor. Bar Counsel shall cause this order of notice to be served upon the respondent attorney by registered or certified mail, with restricted delivery and return receipt requested.

(2) In the event that the discipline imposed in the other jurisdiction has been stayed there, any reciprocal discipline imposed in this State may, but need not, be deferred.

(3) Upon the expiration of 30 days from service of the notice under subsection (1) above, the Court, after reasonable notice and hearing, may enter such order as the evidence warrants and may impose the identical discipline unless Bar Counsel or the respondent attorney established, or the Court concludes, that (i) the procedure in the other jurisdiction did not provide reasonable notice or opportunity to be heard; (ii) there was significant infirmity of proof establishing the misconduct; (iii) imposition of the same discipline would result in grave injustice; or (iv) the misconduct established does not justify the same discipline in this State.

(4) A final adjudication in another jurisdiction that an attorney had been guilty of misconduct may be treated as establishing the misconduct for purposes of a disciplinary proceeding in this State.

(i) Action by Disbarred or Suspended Attorneys or Attorneys Who Resign Under Rule 7.3(g) or Attorneys Who Assume Inactive Status Under Rule 6(c).

(1) Action by Disbarred Attorneys or Attorneys Suspended for Disciplinary Reasons or Attorneys Who Resign Under Rule 7.3(g).

(A) Unless the Court orders otherwise, orders imposing suspension or disbarment or accepting the resignation of an attorney under Rule 7.3(g) shall be effective 30 days after entry. The disbarred or suspended attorney or an attorney whose resignation has been accepted under Rule 7.3(g), after entry of the disbarment or suspension order or order accepting the resignation, shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. During the period from the entry date of the order to its effective date, however, the attorney may wind up and complete, on behalf of any client, all matters which were pending on the entry date, unless the Court orders otherwise. The Court may make such orders for assistance by co-counsel or supervision during the period from the entry date of the order to its effective date as are appropriate to protect the interests of the clients.

(B) A disbarred or suspended attorney or an attorney who has resigned under Rule 7.3(g) shall take action (i) to notify all clients (meaning those with whom the attorney then has open engagements) of the disbarment, resignation or suspension and the attorney's consequent inability to act as an attorney after the effective date of the disbarment, resignation or suspension; (ii) to notify each client who is involved in pending litigation or administrative proceedings, and the attorney or attorneys for each adverse party in such matter or proceeding, of the disbarment, resignation or suspension and the attorney's consequent inability to act as an attorney after the effective date of the disbarment, resignation or suspension; (iii) to advise each client promptly to substitute another attorney or attorneys or to seek legal advice elsewhere, and (iv) to give such notice of the Court's action as the Court may direct in the public interest. A disbarred, resigned or suspended attorney shall file with the Clerk and also with the Board within 30 days of the effective date of the disbarment, resignation or suspension order an affidavit attesting compliance with the provisions of the preceding sentence and the provisions of Rule 7.3(i)(1)(C). Such affidavit shall include a list of the names and addresses of all clients, attorneys, courts, and agencies to whom notice was sent as required by the rules, together with a copy of the text of the notices sent.

(C) It shall be the responsibility of the disbarred or suspended attorney or an attorney who has resigned under Rule 7.3(g) to give notice of the disbarment, resignation or suspension forthwith to each court or agency in which the attorney appears for any party. Any notice of the disbarment, resignation or suspension thus given to the court or agency (or to the attorney or attorneys for an adverse party). Any notice of the disbarment, resignation or suspension thus given to the court or agency (or to the attorney or attorneys for an adverse party) shall state the place of residence of the client of the disbarred, resigned or suspended attorney, and shall identify the particular proceeding by docket number as well as by names of parties.

(D) Whenever the Court deems it necessary, it may appoint an attorney admitted to the Bar of this State to take appropriate action in lieu of, or in addition to, the action directed in subparagraphs (B) and (C) above.

(E) The Board shall promptly transmit a copy of the order of suspension or disbarment or of the order accepting the resignation to the clerk of each court and to each administrative body, state or federal, in which it has reason to believe the disciplined attorney has been admitted to practice.

(F) Any failure by a disbarred, resigned or suspended attorney to comply with any of the provisions of this rule, may be found to constitute a contempt of court and thereupon subject said attorney to such sanctions as the Court may further order, including but not limited to, an extension of the time period of any order of suspension from the practice of law.

(2) Action by Attorneys Suspended for Failure to Register, to Pay the Annual Fee, to Satisfy Mandatory CLE Requirements, or by Attorneys Who Assume Inactive Status.

(A) An attorney who has been suspended for failing to file a registration statement under Rule 6 of the Maine Bar Rules, for failure to satisfy the mandatory CLE requirements imposed by Rule 12, or an attorney who assumes inactive status under Rule 6(c) shall:

(i) not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature;

(ii) notify each client (meaning those with whom the attorney then has open engagements) of the attorney?s suspension or assumption of inactive status and the consequent inability to act as an attorney after the effective date of the suspension or assumption of inactive status;

(iii) notify each client who the attorney is advising or representing in pending litigation or administrative proceedings, and the attorney or attorneys or other representative for each other party in such matter or proceeding, of the attorney?s suspension and consequent inability to act as an attorney after the effective date of the suspension or assumption of inactive status;

(iv) advise each client promptly to substitute another attorney or attorneys or to seek legal advice elsewhere;

(v) notify each court or federal, state or local administrative agency or private arbitration, mediation or alternative dispute resolution forum in which the attorney appears for any party of the attorney?s suspension and consequent inability to act as an attorney after the effective date of the suspension or assumption of inactive status; and any notice of the suspension or assumption of inactive status given to a court, administrative agency or private dispute resolution forum shall state the place of residence of the client of the attorney, and shall identify the particular proceeding by docket number as well as by names of parties, with copies of the notice sent to each party to the proceeding, and

(vi) give such other notice of the Court's action as the Court may direct in the public interest.

(B) Within 30 days of the effective date of the suspension or when filing the notice of the attorney's desire to assume inactive status, the attorney shall file with the Clerk and also with the Board an affidavit attesting compliance with the provisions of the preceding paragraph (A). The affidavit shall include a list of the names and addresses of all clients, attorneys, courts, administrative agencies and private dispute resolution forums to whom notice was sent as required by the rules, together with a copy of the text of the notices sent. If an attorney has no clients or attorneys to notify, a statement to that effect shall be included in the affidavit.

(C) Whenever the Court deems it necessary, it may appoint an attorney admitted to the Bar of this State to take appropriate action in lieu of, or in addition to, the action directed in subparagraphs (A) and (B) above.

(D) The Board shall promptly transmit notice of the suspension or of the assumption of inactive status to the Clerk of each court and to each administrative body, state or federal, in which it has reason to believe the attorney has been admitted to practice.

(j) Reinstatement.

(1) An attorney who has resigned pursuant to subdivision (g) of this rule, or who has been suspended for more than six months or who has been disbarred may not be reinstated otherwise than upon petition filed in the Court after the expiration of the suspension or at least 5 years from the effective date of the resignation or of the order of disbarment, unless otherwise ordered by the Court.

(2) An attorney who has been suspended for a specific period of six months or less need not petition for reinstatement, but shall, upon the expiration of the period and before resuming practice, comply with Rule 6.

(3) An attorney who has been suspended indefinitely or resigned due to disability under the provisions of subdivision (e) may petition for reinstatement as therein provided:

(A) If applicable to the initial suspension or resignation, in addition to the factors required under Section (5) of this Rule, petitioner must also present evidence that:

(i) The disability or infirmity has been removed;

(ii) The attorney has pursued appropriate rehabilitative treatment and continues to do so;

(iii) The attorney has abstained from the use of alcohol or other drugs for at least 1 year; and

(iv) The attorney is likely to continue to abstain from alcohol or other drugs.

(B) The Court may enter any appropriate order or orders in connection with an application, including an order for a medical and mental examination of the attorney, at the attorney's expense or at public expense.

(C) Where an attorney has been suspended or has resigned under this subdivision, and has been subsequently judicially declared to be competent, the Court may dispense with further evidence that the disability has been removed.

(D) The petitioner shall identify every psychiatrist, psychologist and physician by whom, and every hospital or clinic in which, the attorney has been examined or treated since suspension, and upon request shall furnish to the Court written consent to each to divulge such information and records as requested by the Court.

(4) An attorney who has been suspended for non-disciplinary reasons under Rules 6 or 10 of the Maine Bar Rules may petition to the Court for reinstatement.

The Court may enter any appropriate order or orders in connection with such application.

(5) Petitions for reinstatement (including those under subdivision (e)) shall be filed with the Executive Clerk of the Court and also with the Board of Overseers of the Bar accompanied by a $ 200.00 filing fee payable to the Board of Overseers of the Bar. The petitioner shall also provide a completed Board reinstatement questionnaire to Bar Counsel at the same time as the filing of the petition. Upon review and conclusion that the petition and questionnaire have been properly completed and filed, Bar Counsel shall, with or without investigation, either agree with or oppose the petition.

If Bar Counsel agrees that reinstatement is appropriate, the petitioner shall be so informed and the matter shall be placed before the Board for consideration at its next available meeting for the petitioner, petitioner's counsel, if any, and Bar Counsel to appear to allow the Board to confirm that the petitioner's reinstatement should be recommended for approval by the Court, or to direct Bar Counsel to oppose the petition.

If Bar Counsel opposes the petition, the petitioner shall be so informed and the matter shall be immediately referred to the Grievance Commission Chair or Vice Chair for hearing which will ordinarily be by a hearing panel of that Commission.

On any petition referred for hearing, the Grievance Commission shall promptly and on reasonable notice (including reasonable notice to the Attorney General, the Maine State Bar Association and appropriate local bar association and District Attorneys) hear the petitioner who shall have the burden of presenting clear and convincing evidence demonstrating the moral qualifications, competency, and learning in law required for admission to practice law in this State. The petitioner shall also offer clear and convincing evidence that it is likely that reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest. Factors to be considered as to the petitioner's meeting that burden include evidence that:

(A) The petitioner has fully complied with the terms of all prior disciplinary orders;

(B) The petitioner has neither engaged nor attempted to engage in the unauthorized practice of law;

(C) The petitioner recognizes the wrongfulness and seriousness of the misconduct;

(D) The petitioner has not engaged in any other professional misconduct since resignation, suspension or disbarment;

(E) The petitioner has the requisite honesty and integrity to practice law;

(F) The petitioner has met the continuing legal education requirements of Rule 12(a)(1) for each year the attorney has been inactive, withdrawn or prohibited from the practice of law in Maine, but need not complete more than 22 credit hours of approved continuing legal education for that entire period of absence from practice, provided that: (1) no more than one half of the credits are earned through in-office courses, self-study, or a combination thereof; and (2) at least two credit hours are primarily concerned with the issues of ethics or professional responsibility.

(6) The Grievance Commission shall transmit to the Board and to the petitioner its findings and recommendations by written report, and provide the Board with any record it has made. If no timely objection to the report is filed by either party, the Board shall adopt the Commission's findings and recommendations, and so inform the Court. After consideration of a party's timely objection to the report the Board shall file its recommendations and findings with the Court, together with any record that has been made. The Court shall, with or without hearing, grant or deny the petition for reinstatement by written order which may include such conditions to be met by a specific date on the petitioner's reinstatement as the Court deems necessary to protect the public interest. The Court may, before granting the petition, require that by a specific date the petitioner take and pass the modified bar examination (or its then equivalent) as administered by the Board of Bar Examiners of this State.

(7) The petitioner shall pay for any stenographic transcription(s) of the reinstatement proceedings, and the Court in its discretion may direct that the petitioner pay any additional expenses incurred in connection with a petition for reinstatement.

(k) Confidentiality.

(1) All inquiries, letters, replies, records, documents and files relating to any complaints alleging misconduct by an attorney shall be kept confidential by the Board, except for any disciplinary pleading and exhibits as filed under Rule 7.1(e) or 7.2.

(2) In the event a grievance complaint is predicated upon the conviction of the respondent attorney for a crime, or the Board determines that the matter is based upon allegations that have become generally known to the public, the existence and status of that complaint may be publicly commented upon by the Board but shall otherwise be governed by section (1) of this Rule. In all instances, a complainant of interest shall be informed of the disposition by the Grievance Commission of the complaint as provided in Rule 7.1.

(3) The provisions of this subdivision shall not be construed to deny access to relevant information to authorized agencies investigating the qualifications of judicial candidates, or to other jurisdictions investigating qualifications for admission to practice or considering reciprocal disciplinary action, or to law enforcement agencies investigating qualifications for government employment or to the National Discipline Data Bank of the American Bar Association where discipline under these rules has been imposed, or to the Committee on Judicial Responsibility and Disability, in accordance with Rule 1(a) or to the Lawyers' Fund for Client Protection under LFCP Rule 12(d).

(4) The provisions of this section shall not be construed to prevent Bar Counsel or any other person from notifying i) the appropriate law enforcement agency of complaints that accuse the respondent attorney of conduct in violation of a criminal law, or ii) a lawyer serving in a substance abuse program approved by the Board, of the name of any lawyer whom Bar Counsel determines should be contacted concerning that program.

(5) The provisions of this section shall not be construed to prohibit Bar Counsel's use of relevant information in the investigation or prosecution of complaints pursuant to Rules 7.1(c), (d) or 7.2.

(6) Notwithstanding any other provisions of these Rules, any person, including but not limited to members of the Board, Grievance Commission and Board staff may notify governmental officials of actual or threatened criminal conduct by any individual.

(l) Substituted Service. In the event a respondent attorney cannot be located and served in hand with any notice required so to be served under these rules, such notice may be served upon the respondent attorney by addressing it by certified, registered or first-class mail, as the court or the Board may direct, to the address furnished by the respondent attorney in the last registration statement filed in accordance with Rule 6 (or to the respondent attorney's last known business or home address if no registration statement has been filed), and by such publication as the Court may direct.

(m) Subpoena Power.

(1) At any stage of an investigation or formal proceeding, a witness or respondent attorney may be summoned by subpoena to appear before Bar Counsel, the Grievance Commission or a panel thereof, the Board or a panel thereof, or the Court. Any member of the Board or of the Grievance Commission, a notary public, or the Clerk of the Superior Court in any county may issue subpoenas for witnesses and subpoenas duces tecum to compel the production of books, papers and photographs. The Board, the Grievance Commission or the Chair of any panel thereof, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may quash or modify any subpoena issued for appearance before Bar Counsel, the Board, the Grievance Commission or panels thereof, if the subpoena is unreasonable or oppressive. Witness fees in all proceedings under this rule shall be the same as for witnesses before the Superior Court. When a witness who has been subpoenaed fails to appear without reasonable excuse, the Supreme Judicial Court or any justice thereof, or the Superior Court or any justice thereof, may, on application of Bar Counsel or other interested person, invoke the provisions of Rule 45(f) of the Maine Rules of Civil Procedure for such failure.

(2) Whenever a subpoena is sought in this state pursuant to the law of another jurisdiction for use in lawyer discipline or disability proceedings, and where the subpoena has been duly issued under the law of the other jurisdiction, any member of the Board or of the Grievance Commission, a notary public, or the clerk of the Superior Court in any county, may for good cause shown issue a subpoena or subpoena duces tecum as provided in this section to compel the attendance of witnesses and the production of books, papers and photographs but only in the county where the witness resides or is employed or elsewhere within this state as fixed by any member of the Board or of the Grievance Commission. Service, enforcement, or challenges to this subpoena shall be as elsewhere provided in this rule.

(n) Required Records; Audit. Every attorney subject to these rules shall maintain complete records of the handling, maintenance and disposition of all funds, securities and other properties of a client at any time in the attorney's possession, from the time of receipt to the time of final distribution, and shall preserve such records for a period of 6 years after final distribution of such funds, securities or other properties, or any portion thereof. Where formal disciplinary proceedings have been instituted pursuant to Rule 7.1(e), the Board shall have the power to audit all of the records, files, books of account, bank accounts, vault boxes and other records and depositories which relate to, directly or indirectly, such funds, securities and other properties of a consenting client at any time in the attorney's possession; and every attorney subject hereto shall cooperate fully with respect to the orders of the Board, Bar Counsel and their agents, including certified public accountants appointed by them, with respect to such audit procedures, including the time and place thereof. In furtherance hereof, the Board or Bar counsel may petition for, and any justice of the court may, for good cause shown, enter an ex parte order to such attorney or others, with respect to the exercise of the audit powers and authorities of the board or Bar Counsel hereunder.

(o) Privilege for Peer Assistance or Substance Abuse Communications. In any proceeding under this rule, a respondent attorney has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made by the respondent attorney while seeking or receiving peer assistance or substance abuse treatment under a program approved by the Board of Overseers of the Bar. A "confidential communication" is a communication not intended to be disclosed to third persons other than those to whom disclosure is made in the course of seeking or receiving peer assistance or substance abuse treatment.

8. [ABROGATED] Contingent Fees

Text of Rule effective until August 1, 2009.

(a) Definition. In this rule, the term "contingent fee agreement" means an agreement, express or implied, for legal services of an attorney or attorneys (including any associated counsel), under which compensation, contingent in whole or in part upon the successful accomplishment or disposition of the subject matter of the agreement, is to be in an amount which either is fixed or is to be determined under a formula. The term "contingent fee agreement" shall not include an arrangement with a client, express or implied, that the client in any event is to pay to the attorney the reasonable value of the attorney's services and the attorney's reasonable expenses and disbursements.

(b) Good Faith Effort to Comply. Unless expressly prohibited by this rule, no written contingent fee agreement shall be regarded as champertous if made in an effort in good faith reasonably to comply with this rule.

(c) Proceedings or Claims to Which Applicable. No contingent fee agreement shall be made (1) in respect of the procuring of an acquittal upon or any favorable disposition of a criminal charge, (2) in respect of the procuring of a divorce, annulment of marriage, or legal separation, or (3) in connection with any proceeding where the method of determination of attorneys' fees is otherwise expressly provided by statute or administrative regulations. Contingent fee arrangements concerning the collection of commercial accounts and of insurance company subrogation claims made in accordance with usual practices in respect of such cases shall not be regarded as champertous, and shall not be subject to subdivisions (d) and (e).

(d) Formal Requirements. Each contingent fee agreement shall be in writing and in duplicate. Each duplicate copy shall be signed both by the attorney and by each client. One signed duplicate copy shall be mailed or delivered to each client within a reasonable time after the making of the agreement. One such copy (and proof that the duplicate copy has been delivered or mailed to the client) shall be retained by the attorney for a period of three years after the completion or settlement of the litigation or the termination of the services, whichever event first occurs.

(e) Contents of Agreement. Each contingent fee agreement shall contain (1) the name and mail address of each client; (2) the name and mail address of the attorney or attorneys to be retained; (3) a statement of the nature of the claim, controversy, and other matters with reference to which the services are to be performed; (4) a statement of the contingency upon which compensation is to be paid, and whether and to what extent the client is to be liable to pay compensation otherwise than from amounts collected for that client by the attorney; (5) a statement that reasonable contingent compensation is to be paid for such services, which compensation is not to exceed stated maximum percentages of the amount collected; and (6) a statement regarding the attorney's anticipated expenses and disbursements, if any, for which the client, is to be liable. These may include the following:

A. Litigation Costs. Costs of the action, including:

1. Filing fees paid to the clerk of courts;

2. Fees for service of process and other documents;

3. Attendance fees and travel costs paid to witnesses;

4. Expert witness fees and expenses;

5. Costs of medical reports;

6. Costs of visual aids; and

7. Costs of taking depositions.

B. Travel Expenses. Expenses for travel by the attorney on behalf of the client.

C. Telephone. Disbursements for long-distance telephone calls made by the attorney on behalf of the client.

D. Postage. Postage paid by the attorney for mailings on behalf of the client.

E. Copying. Costs of photocopying and facsimile telecopying done by the attorney on behalf of the client.

F. Other: (Specify).

(f) Fee Arbitration. Disputes concerning contingent fee agreements shall be subject to review in accordance with Rule 9.

(The following form may be used (in connection with Rule 8) and shall be sufficient. The authorization of this form shall not prevent the use of other forms consistent with this rule.)

CONTINGENT FEE AGREEMENT

To Be Executed In Duplicate

Date ____,20__.

The client,__________ (Name) (Street & Number) (City or Town)

retains the attorney _____ (Name) (Street & Number) ______ (City or Town) to perform the legal services mentioned in par. (1) below. The attorney agrees to perform them faithfully and with due diligence.

(1) The claim, controversy, and other matters with reference to which the services are to be performed are:

(2) The contingency upon which compensation is to be paid is:

(3) The client is not to be liable to pay compensation otherwise than from amounts collected for the client by the attorney, except as follows:

(4) Reasonable compensation on the foregoing contingency is to be paid by the client to the attorney, but such compensation (including that of any associated counsel) to be paid by the client shall not exceed the following maximum percentages of the gross (net) (indicate which) amount collected. Here insert the maximum percentages to be charged in the event of collection. These may be on a flat basis or in a descending scale in relation to amount collected.)

(5) The client is to be liable to the attorney for the attorney's reasonable expenses and disbursements as hereinafter specified.

A. Litigation costs. Costs of the action, including:

1. Filing fees paid to the clerk of courts;

2. Fees for service of process and other documents;

3. Attendance fees and travel costs paid to witnesses;

4. Expert witness fees and expenses;

5. Costs of medical reports;

6. Costs of visual aids; and

7. Costs of taking depositions.

B. Travel expenses. Expenses for travel by the attorney on behalf of the client.

C. Telephone. Disbursements for long-distance telephone calls made by the attorney on behalf of the client.

D. Postage. Postage paid by the attorney for mailings on behalf of the client; and

E. Copying. Costs of photocopying and facsimile telecopying done by the attorney on behalf of the client.

F. Other: (Specify).

(6) This agreement and its performance are subject to Rule 8 of the Maine Bar Rules.

WE HAVE EACH READ THE ABOVE AGREEMENT BEFORE SIGNING IT.

Witnesses to signatures

To client: _____

---

Signature of Client

To attorney: _____

---

Signature of Attorney

(If more space is needed, separate sheets may be attached and initialed.)

9. Fee Arbitration

(a) Commission.

(1) The Fee Arbitration Commission shall consist of at least 15 regular members plus such alternate members as may be appointed by the Board. Not less than one-third of the regular members shall be lay persons and the balance (as close to two-thirds as may be) shall be attorneys, each to be appointed by the Board for 3-year terms. Initially 1/3 of the regular members of the Commission shall be appointed for a period of 1 year, 1/3 for a period of 2 years, and 1/3 for a period of 3 years. As each regular member's term of office on the Commission expires, a successor shall be appointed for no more than 2 consecutive full terms but a regular member appointed for less than a full term (originally or to fill a vacancy) may serve two full terms in addition to such part of a full term. A former regular member shall again be eligible for appointment after a lapse of one year. The term of any member which expires while an arbitration is pending before that member or before a panel that includes that member, shall with reference to that arbitration, be extended until such arbitration is concluded, but such extension shall not interfere with the Board's power to appoint a successor to the Commission. The Board shall appoint the Chair of the Commission each year from among the regular members of the Commission. The alternate members shall be appointed by the Board for 3-year terms to serve pursuant to the directions of the Chair of the Commission as substitutes for any regular member who is unable to serve for any particular arbitration. Except with the consent of the parties pursuant to Rule 9(g)(1) or (2), each panel assembled for a particular arbitration shall include at least one attorney member.

(2) Attorney members of the Commission shall have been admitted to the Bar of this State, shall have practiced law for not less than 5 years and shall be selected to provide reasonable geographic representation within this State consistent with subdivision (c) hereof.

(3) Lay members of the Commission shall be residents of this State and shall possess such additional qualifications, including geographic representation consistent with subdivision (c) hereof, as shall seem appropriate to the Board.

(4) The Commission shall be divided by its Chair into 5 panels of 3 members each, at least one of whom in each panel shall be a lay member. The Chair of the Commission shall designate 1 member of each such panel as Panel Chair, and the panel chairs, together with the Chair of the Commission, shall constitute the Executive Council of the Commission.

(b) Executive Council. The Executive Council shall be charged with the responsibility of overseeing the work of the Commission, developing forms to implement the procedure prescribed herein and may formulate procedural regulations not inconsistent with these rules.

(c) Fee Arbitration Panels. The Fee Arbitration Panels shall be separately designated and shall perform their functions by such designation and within the following geographic areas except as otherwise directed by the Chair of, or Secretary to, the Commission:

Panel 1A--within York county

Panel 1B--within Cumberland county

Panel 2--within Androscoggin, Franklin, Lincoln, Oxford and Sagadahoc counties

Panel 3--within Kennebec, Knox, Somerset, and Waldo counties

Panel 4--within Aroostook, Hancock, Penobscot, Piscataquis and Washington counties

In instances where a complainant and a respondent attorney are domiciled or otherwise located in counties which may involve the geographic area of more than 1 panel, the Chair of, or Secretary to, the Commission shall have the authority to direct which of such panels shall hear the dispute in question.

(d) Secretary. The Board may appoint a Secretary to the Commission and to the several panels. The Secretary shall not be responsible for attending panel hearings, nor for providing secretarial or recording services at or during such hearings. The Secretary shall keep and maintain records of all petitioners and respondents, as well as all proceedings, determinations and awards of the Commission and its respective panels.

The Secretary shall perform such additional duties and have such additional responsibilities as may be assigned by the Board or the Commission.

The Secretary shall have the authority to designate one or more Assistant Secretaries or Secretaries pro tempore for the purpose of performing duties of the Secretary hereunder and any other duties assigned or requested by the Commission or one of the panels, including attendance at panel hearings and the taking and reporting of a stenographic or recorded transcription thereof.

(e) Procedures.

(1) Initiation of Proceedings. Upon receiving a complaint from any source regarding legal fees paid to or charged by an attorney admitted to the Bar of this State, the Secretary shall forward to such complainant a copy of these procedures and any relevant regulations or rules adopted by the Board or the Commission with respect to fee arbitration, together with the blank form captioned "Petition for Arbitration of Fee Disputes". Proceedings before a Fee Arbitration Panel of the Commission shall be initiated by the completion and forwarding to the Secretary of the petition, in which the petitioner shall:

(A) Set forth the petitioner's full name and current address and the attorney with whom the petitioner has a dispute;

(B) Agree to be bound by the decision of a Fee Arbitration Panel;

(C) Represent that the petitioner has made a good faith effort to resolve the dispute with the attorney involved before filing the petition; and

(D) State whether the dispute is the present subject of legal action and certify that the matter has not been finally adjudicated by a court or administrative agency. If the dispute is the subject of other judicial or administrative proceedings, such proceedings shall be identified in the petition.

(2) Informal Arbitration. After the petition is filed with the Secretary to the Commission, it shall be expeditiously reviewed by Bar Counsel, who may endeavor to resolve the dispute informally, and for such purposes may communicate directly with the petitioner and the attorney against whom the claim is being made. If the Respondent attorney named in a filed petition is a member of the Board or the Fee Arbitration Commission, the petition shall be immediately referred to the Board Chair or Vice Chair for such action as deemed appropriate including appointment of a panel of the Board to act in place of the Fee Arbitration Commission as provided by M. Bar R. 4(d)(7).

If the dispute is resolved informally, the petition shall be deemed to have been withdrawn, and the petitioner shall be so advised in writing.

(3) Preliminary Review by Chair. If Bar Counsel determines that there is no just ground for the complaint or dispute, or that the matter is moot, or that the arbitration has not been commenced within six years from the time the bill in dispute was rendered or the fee paid in whole or in part, whichever occurs first, or that action by the Commission is otherwise unwarranted, Bar Counsel may refer the matter to the Chair of the Commission, together with a brief written report setting forth the facts and Bar Counsel's recommendations.

(A) If the Chair concurs with Bar Counsel's recommendations, the matter shall be closed and the complainant so advised.

(B) If the Chair disapproves Bar Counsel's recommendations, the matter shall be returned to the Secretary for further proceedings.

(4) Notice to Respondent.

(A) If the matter is not informally resolved, or has not been closed as a result of the preliminary action by the Chair within 30 days after the filing of the petition, a copy of the petition, together with the blank form captioned "Respondent's Reply and Submission to Arbitration" and a copy of these procedures and any relevant rules and regulations, shall be forwarded, by certified mail, return receipt requested, to the attorney with whom the petitioner is in dispute.

(B) The Secretary shall, upon receipt of a reply by an attorney, forward a copy of the same to the petitioner.

(C) When a petition is filed by a non-client of the named Respondent attorney, prior to notifying the attorney, the Secretary shall provide the client with notice of the petition and request that within 21 days the client consent in writing to the filing and processing of the petition under Rule 9. Should the client fail to provide consent, the Secretary shall refer the matter to the Chair for determination whether any action under Rule 9 is appropriate for the Commission or if dismissal is required pursuant to Rule 3.3(c).

(5) Referral to Arbitration Panel.

(A) The Secretary shall forward a copy of the petition with the attorney's reply, if any, to the chair and each member of the arbitration panel responsible for conducting the hearing.

(B) The chair of the arbitration panel shall make every effort to assign the matter for hearing not later than 60 days after the date of receipt of the copy of the petition from the Secretary.

(C) The petitioner and the attorney shall be notified by the Secretary as to the date, time and place of hearing, as well as the names of the members of the arbitration panel appointed to arbitrate the dispute which is the subject matter of the petition. In the event of the unavailability of any of the named members, the Chair or the Secretary of the Commission may designate other members of the Commission to serve at the hearing. Such notice of hearing will, in addition, notify the petitioner and the attorney of their right to present witnesses and documentary evidence in support of their positions, and at their own expense, to have a record of the proceedings made.

(D) If there is then pending before a court or agency of this State an action instituted by either petitioner or respondent involving the disputed fees, then such action shall, upon motion of the petitioner, be stayed until such dispute is resolved pursuant to this rule; and the award hereunder shall be determinative of the action so stayed.

(E) Notice of Client's Right to Arbitrate Legal Fees. At least 30 days before service or filing of a complaint in a civil action against an attorney's client or former client (hereinafter client) to recover fees for professional services previously rendered and/or costs incurred for which no judgment has previously been obtained, an attorney must mail to the client at the client's last known address a written notice of right to arbitrate, which must include at least the following language:

You currently owe the sum of $ in legal fees (and costs) to (name of attorney or firm). If you dispute the fact that you owe any part of the amount claimed to be due, you have the right to have the matter resolved without additional expense to you by arbitration before a panel of the Fee Arbitration Commission. Forms and instructions for filing a petition for arbitration are available from the Board of Overseers of the Bar, 97 Winthrop Street, PO Box 527, Augusta, Maine 04332-0527. Telephone: (207) 623-1121.

(F) Failure to Give Notice. No attorney shall seek to enforce a judgment against a client for attorney fees or costs which has been entered without the required notice of right to arbitrate having been given.

(G) If not earlier resolved pursuant to Rule 9(e)(3), a petition shall later be dismissed by the Secretary upon i.) the petitioner's submission of a written request for dismissal prior to the attorney's filing of a reply to the dispute, or ii.) the filing with the Secretary of a stipulation of dismissal signed by the petitioner and the respondent. A petition shall not otherwise be dismissed except by order of the Chair of the assigned hearing panel or the Chair of the Commission for good cause shown upon such terms and conditions as may be deemed appropriate by that Chair.

(6) Right to Counsel. Each party to a dispute shall have the right to be represented at the party's own expense by an attorney at any stage of the arbitration. For cause shown, or on its own motion, an arbitration panel may, in its discretion, obtain the volunteer services of and assign an attorney to represent either the petitioner or the attorney being complained against in any proceeding before the panel.

(7) Any notice or other communication required by this Rule 9 to be given to a petitioner shall be sufficient if mailed in accordance with these rules to the address set forth by petitioner in the petition. Any notice or other communication required to be given to an attorney shall be sufficient if mailed in accordance with these rules to an office or residence address set forth by the attorney on the most current registration statement filed pursuant to Rule 6(a) hereof.

(f) Failure of the Attorney to Reply. If the attorney fails, without good cause, to file a reply within 30 days next after the mailing of the copy of the petition, form of reply and the copy of the procedures and regulations; or if the attorney fails to appear in the proceedings without good cause, the panel may proceed to hear the petition and make its findings and award upon the evidence produced by the petitioner, and the attorney shall be bound by the findings and award of the panel in the same manner, and with the same effect, as on a default judgment entered by the Superior Court of this State.

(g) Arbitration Hearing.

(1) If, at the time set for a hearing before a panel, 3 members are not present, the chair of the panel, or in the event of the chair's unavailability, the other members or member present, may decide either to postpone the hearing, or, with the written consent of those parties present, to proceed with the hearing with two arbitrators, one of whom shall be a lay member.

(2) If any member of a panel dies or becomes unable to continue to act while the matter is pending and before an award has been made, the proceedings to that point shall be declared null and void and the matter assigned to a new panel for rehearing unless the parties, with the consent of the panel chair, or in the event of the chair's unavailability, the Chair of the Commission, consent to proceed with one or both of the remaining members of the panel.

(3) The members of the arbitration panels shall be vested with all of the powers, and shall assume all of the relevant duties granted and imposed upon neutral arbitrators by the Uniform Arbitration Act, 14 M.R.S.A. § 5927 et seq., to the extent that the same is not in conflict with these rules.

(4) On the hearing date, the arbitration panel shall meet, take testimony, receive other evidence and otherwise conduct an impartial, fair and expeditious hearing on the matter.

(5) Upon request of a party to the arbitration or upon its own determination, an arbitration panel or its chair may, for good cause shown, adjourn or postpone the hearing from time to time.

(6) The chair of the panel shall preside at the hearing. For purposes of admissibility, the chair shall be the judge of the relevance and materiality of the evidence offered and shall rule on questions of procedure. The chair shall exercise all powers relating to the conduct of the hearing. Conformity to the Maine Rules of Evidence shall not be necessary.

(7) The petitioner and the attorney, or counsel representing them, shall be entitled to be heard, to present evidence and to cross-examine parties and witnesses appearing at the hearing. In addition, any panel member shall be entitled to make inquiries of any party or witness at the hearing.

(8) On request of the petitioner or the attorney or any member of the panel, the testimony of witnesses shall be given under oath. When so requested, the chair of the panel may administer oaths to witnesses testifying at the hearing.

(9) If a petitioner who has been notified of the time, date and place of the hearing in accordance with these procedures, fails to appear at the hearing, an arbitration panel or its chair may either postpone the hearing or proceed with the hearing and determine the controversy upon the petition, reply, and other evidence produced.

(10) Either the petitioner or the attorney may have the hearing reported at that party's own expense, but a party having the hearing reported must provide a copy of the transcript, free of charge, to the panel. Further, in such event, any other party to the arbitration shall be likewise entitled to a copy of the transcript, at that other party's own expense, by arrangements made directly with the reporter.

(11) In the event of the death or incompetency of a party to the arbitration proceeding prior to the close of the hearing, the proceeding shall abate without prejudice to either party to proceed in a court of proper jurisdiction to seek such relief as may be warranted. In the event of death or incompetency of a party after the close of the hearing but prior to a decision, the decision rendered shall be binding upon the heirs, administrators, or executors of the deceased and upon the estate or guardian of the incompetent.

(12) A witness or party may be summoned by subpoena to appear before a Fee Arbitration Commission panel. Any member of a Fee Arbitration Commission panel assigned to hear a dispute, a notary public or the clerk of the Superior Court in any county may issue subpoenas for witnesses and subpoenas duces tecum to compel the production of books, papers, photographs or other documents. The Fee Arbitration Commission Chair or any Chair of a panel, upon motion made promptly, and in any event at or before the time specified in the subpoena for compliance therewith, may quash or modify any subpoena issued for appearance before a Fee Arbitration Commission panel, if the subpoena is unreasonable or oppressive. Witness fees in all proceedings under this rule shall be the same as for witnesses before the Superior Court. When a subpoenaed witness fails to so appear without reasonable excuse, the Supreme Judicial Court or any justice thereof, or the Superior Court or any justice thereof, may, upon application of a member of the Fee Arbitration Commission, Bar Counsel, or other interested person, invoke the provisions of Rule 45(f) of the Maine Rules of Civil Procedure for such failure.

(13) In the event there is no written agreement or engagement letter between the parties concerning fees and expenses as to the particular matter in dispute, the arbitration panel shall require that the attorney bear the burden of proof of an agreement, or other basis for recovery of fees and expenses, and of the reasonableness of the fees and expenses.

(h) Arbitration Award.

(1) The decision of the arbitration panel shall be expressed in a written award, signed by all of the panelists hearing the matter, and thereupon filed with the Secretary. If there is a dissent, it shall be signed separately, but the award shall be binding if signed by a majority of the arbitrators. An award may also be entered on consent of the parties. Once the award is signed and filed, the hearing may not be reopened except upon consent of all parties and a majority of the arbitrators serving on the arbitration panel which heard the matter.

(2) The decision of the arbitrators and their award need not be in any particular form, but shall contain, as a minimum, a statement of the amount or nature of the award, if any, and the terms of payment, if applicable.

(3) The award and determination of the arbitration panel shall be rendered within 20 days after the close of the hearing, unless otherwise extended by the Chair of the Commission.

(4) A copy of the decision containing the award shall be forwarded by the Secretary to the petitioner, the respondent attorney, their respective counsel if any, the Chair of the Commission, and the Board as soon as reasonably possible after the same has been filed.

(i) Enforcement of the Award. Whenever an arbitration panel finds by its award that all or part of the fee paid by the petitioner should be refunded by the attorney, the attorney shall make the awarded refund within 30 days of receipt of the award. If the attorney fails to make the awarded refund within 30 days, the Board shall refer the matter to Bar Counsel for action pursuant to Rule 6(b)(6). The award rendered by an arbitration panel may be enforced in accordance with the Uniform Arbitration Act, 14 M.R.S.A. § 5927 et seq. Section 5928 of Title 14, relating to proceedings to compel or stay arbitration is not applicable to proceedings under this rule.

(j) Confidentiality. With the exception of the award itself, all petitions, replies, records, documents, files, proceedings, and hearings pertaining to arbitrations of any fee dispute under these procedures and regulations shall be confidential, and, unless otherwise ordered by the Court, shall not be open to the public, press, or any person not involved in the dispute, excepting only the staff and members of the Commission, the Board, the Committee on Judicial Responsibility and Disability in connection with any complaint within its jurisdiction, and any justice of the Court. Notwithstanding that confidentiality, any person, including but not limited to members of the Board, Fee Arbitration Commission and Board staff may notify governmental officials of actual or threatened criminal conduct by any individual.

(k) Immunity.

(1) In the absence of malice, the petitioner and any witness shall be immune from liability based upon the filing of a fee complaint or petition and the giving of any testimony in any proceeding hereunder.

(2) [Deleted effective January 1, 1995.].

10. Assessment of Attorneys for Expenses of Administration

(a) Annual Fee. Every attorney required to register in accordance with these rules, other than judicial law clerks, members of the armed forces of the United States who are on active duty outside of the State of Maine, and suspended attorneys, shall pay an annual fee as established by the Court, which shall be paid to the Board with the registration statement on or before August 31 as required by Rule 6(a)(1). Judicial law clerks and members of the armed forces of the United States who are on active duty outside of the State of Maine must file a registration statement and pay the annual fee required for the year in which active or inactive practice is resumed within 30 days of completion of their service. In addition to any registration fee required under the provisions of Maine Bar Rule 6(c)(1), the registration fee for attorneys registering in emeritus status under Rule 6(d) shall be $25.00 per year until otherwise ordered by the Court.

(b) Failure of Payment. Any attorney who fails to pay the fee required under subdivision (a) of this rule with the annual registration statement by August 31 is automatically suspended. Notice of the suspension shall be given by the Board by registered or certified mail, and return receipt requested, addressed to the office or home address last known to the Board. Such suspension shall not be effective until thirty (30) days after the date of mailing the notice thereof. The failure to pay shall not be considered a violation of the Maine Rules of Professional Conduct per se and the suspension for failure to pay shall not constitute the imposition of discipline. Any suspension pursuant to this subdivision shall be subject to Maine Bar Rules 7.3(i)(2) and 7.3(j)(4). An attorney who, after the date of the mailing of such notice of suspension but before the effective date of such suspension, pays the annual fee as required under subdivision (a) of this rule and receives from the Board acknowledgement of such payment, shall be deemed to be in compliance with this rule and shall not be suspended for failure to pay such fee. An attorney aggrieved as a result of a suspension may apply to the Board Chair for summary relief for good cause shown.

(c) Reinstatement Fees. Any attorney suspended under the provisions of subdivision (b) of this rule shall, prior to reinstatement, pay all arrears due from the date of the attorney's last payment to the date of the request for reinstatement, and shall also pay in addition to the $25.00 late fee imposed by Rule 6(a)(1) a reinstatement assessment of $125.00 unless excused from such reinstatement assessment by the Board as a result of its determination that to impose the same would result in a grave injustice under the circumstances. Attorneys who have been suspended within the previous five (5) years for non-compliance with M. Bar R. 12, shall be assessed an additional $50.00 reinstatement fee.

(d) Amount of Fees. The annual fees for the following categories shall be established from time to time by order of the Court on recommendation of the Board:

(1) Attorneys admitted to the practice of law in this State but conducting their practice primarily in another jurisdiction, and not maintaining an office here.

(2) Attorneys admitted to the bar of this State or any other jurisdiction for 3 or fewer years as of January 1 of that year.

(3) Attorneys admitted to the bar of this State or any other jurisdiction for more than 50 years as of such date.

(4) All other attorneys.

(e) Use of Fees Paid. The fees so paid, pursuant to the foregoing sections, together with any other source of funds made available to the Board, shall be used to defray the costs of attorney registration, disciplinary investigation, hearings and enforcement, expenses of fee arbitrations and for such other purposes as the Board, with the approval of the Court, may determine.

(f) Audit. The Board shall annually obtain an independent audit by a certified public accountant of the funds entrusted to it and their disposition, and shall file a copy of such audit with the Court.

11. Professional Ethics Commission

(a) Term. Initial members of the Professional Ethics Commission shall serve as follows: Two of its members shall be appointed for a term of 4 years; two of its members for a term of 3 years; two of its members for a term of 2 years; and two of its members for a term of 1 year. Appointments thereafter shall be for terms of 4 years, or where appropriate, for the balance of an unexpired term. No member shall be appointed to more than 2 consecutive full terms, but a member appointed for less than a full term (originally or to fill a vacancy) may serve 2 full terms in addition to such part of a full term, and a former member shall again be eligible for appointment after a lapse of 1 year. The Board shall appoint the Chair of the Professional Ethics Commission each year from among its members.

(b) Quorum and Action. A quorum shall exist for the purposes of the Commission's exercise of its authority and duties when a majority of its members are present. The concurrence of a majority of such members present shall be sufficient for any action taken.

(c) Authority and Duties. The Professional Ethics Commission shall be subject to such rules and procedures as shall be adopted or approved by the Board. The Professional Ethics Commission:

(1) Shall 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);

(2) May render advisory opinions on ethical questions posed by attorneys involving the Code of Professional Responsibility (Rule 3);

(3) Shall maintain, at a location within this State approved by the Board, a library containing opinions on ethical questions which have been rendered by the Professional Ethics Committee of the American Bar Association and by other ethics committees in other jurisdictions, such library to be available for the benefit of the Court, the Board, Bar Counsel, the Grievance Commission, and interested attorneys admitted to the Bar of this State;

(4) May make recommendations to the Board regarding amendments to the Code of Professional Responsibility (Rule 3); and

(5) Shall maintain indexed and up-to-date compilations of its opinions in such manner as shall permit the same to be available to the Court, the Board, Bar Counsel, the Grievance Commission, and to such others as the Board shall determine.

(d) Opinions as Evidence. Opinions of the Professional Ethics Commission shall be admissible in any proceeding in which the interpretation or application of a provision of the Code of Professional Responsibility (Rule 3) is in issue.

(e) Immunity. [Deleted effective January 1, 1995.]

(f) Confidentiality. With the exception of an advisory opinion finally rendered pursuant to this Rule, all inquiries, replies, records, documents, files, and proceedings pertaining to the interpretation of ethical rules and the rendering of advisory opinions with respect thereto shall be confidential, and, unless otherwise ordered by the Court, shall not be opened to the public, press or any person not involved in the rendering of the advisory opinions, excepting only the staff and members of the Professional Ethics Commission and their professional associates actively involved in working on an advisory opinion for such member, the staff and members of the Grievance Commission, Bar Counsel, the staff and members of the Board, and any justice of the Court. No person shall publicly disclose the identity of another individual whose conduct was the subject of an advisory opinion without the consent of that individual.

12. Continuing Legal Education

(a) Continuing Legal Education Requirement.

(1) Except as otherwise provided in this subdivision, every attorney required to register in accordance with these rules of this state shall complete 11 credit hours of approved continuing legal education in each calendar year beginning January 1, 2001. At least one credit hour in each calendar year shall be primarily concerned with professionalism education. Qualifying professionalism education topics include professional responsibility, legal ethics, substance abuse and mental health issues, diversity awareness in the legal profession, and malpractice and bar complaint avoidance topics including law office and file management, client relations, and client trust account administration. If an attorney is subject to this rule for more than 3 months of a calendar year but for less than the entire year, the number of credits required for that year shall be prorated according to the number of full months of the year in which the attorney is subject to this rule. However, an attorney who has registered in emeritus attorney status is required to complete only seven credit hours of approved continuing legal education in each calendar year beginning January 1, 2005, unless exempted from the requirements of continuing legal education as provided by Maine Bar Rule 12(a)(5)(F).

(2) An attorney who completes more than 11 credit hours in a calendar year may carry forward up to 10 such additional hours to satisfy the requirement of the following year, provided that the ethics or professional responsibility requirement of paragraph (1) of this subdivision is satisfied for each calendar year.

(3) The requirement of paragraph (1) of this subdivision may be met only by teaching (as provided in subsection (8)), attending courses or completing any continuing legal education activity entitled to credit as provided in subdivisions (d) and (e) of this rule; provided that no more than one half of the credit hours required in any reporting period may be earned through in-office courses, self-study, or a combination thereof.

(4) An attorney subject to this rule who is a member of the bar of another state which has a mandatory CLE requirement, and who is regularly engaged in the practice of law in that state, satisfies the requirement of paragraph (1) of this subdivision if the attorney is in compliance with a continuing legal education requirement established by court rule or statute in that state. If the other state does not require the equivalent of at least one credit hour per year in ethics or professional responsibility, the attorney must complete at least one approved credit hour in ethics or professional responsibility in each calendar year. An attorney subject to this rule who is a member of the bar of another state must meet the requirement of paragraph (1) of this subdivision if continuing legal education is not mandated by court rule or statute in the other state.

(5) The following individuals otherwise subject to this rule are exempted from its requirements:

(A) Attorneys in inactive status pursuant to Rule 6(c);

(B) Full-time judges in any state or federal jurisdiction;

(C) Full-time teachers in any law school approved by the American Bar Association;

(D) Members of the armed forces of the United States who are on active duty outside the State of Maine;

(E) Residents of another country unless they are practicing law in Maine;

(F) Attorneys who have practiced 40 years or more, attained the age of 65 years, and are engaged in less than the full-time practice of law;

(G) In the discretion of the Board, any individual may be exempted from all or part of the requirements of this rule upon a showing of hardship, disability or for other good cause.

(H) Legislators and members of Congress.

(I) Attorneys serving as judicial law clerks.

(6) An attorney subject to this rule will be exempted from the requirements of paragraph (1) of this subdivision during the year in which the attorney is admitted to the bar of this state and during the following calendar year, if during the year of admission the attorney completes the Bridging the Gap program or other practical skills course approved as provided in subdivisions (d) and (e) of this rule.

(7) Except as provided in paragraphs (8) and (9) of this subdivision, credit is earned for the time of actual participation in an approved course or activity.

(8) An attorney subject to this rule who makes a presentation in an approved course or activity not offered for academic credit by the sponsoring institution will earn two credit hours for every 30 minutes of actual presentation if the attorney has prepared substantial written materials to accompany the presentation. If substantial written materials have not been prepared, the attorney will earn one credit hour for every 30 minutes of actual presentation. An attorney who teaches a regularly scheduled law-related course offered for academic credit at an accredited post secondary educational institution will earn six credit hours under this rule for every hour of academic credit awarded by the institution for the course. An attorney who assists or participates in such a regularly scheduled course will earn one credit hour for every hour of actual participation, up to a maximum of six hours.

(9) An attorney subject to this rule who formally takes for credit or officially audits a regularly scheduled course offered for academic credit at a law school approved by the American Bar Association will earn four credit hours under this rule for every hour of academic credit awarded by the institution for the course, provided that the attorney attends at least 75% of the classes in the course and, if enrolled for academic credit, receives a passing grade.

(b) Reporting Continuing Legal Education Credit.

(1) An attorney subject to this rule shall annually in connection with the filing of the registration statement required by Rule 6(a), sign and submit the Annual Report to the Board providing the course title, date, location, sponsor, and number of credit hours of all courses or other activities taken for credit pursuant to subdivision (a) of this rule during the preceding calendar year, or carried over from a prior year as provided in paragraph (2) of subdivision (a). If a reported course or other activity has not previously been approved in accordance with subdivisions (d) and (e) of this rule, the attorney shall also submit the information required under subdivision (e) to support a request for such approval. An attorney claiming exemption in accordance with paragraphs (4)-(6) of subdivision (a) of this rule shall state the ground of exemption in lieu of reporting the foregoing information.

(2) The Board may at any time ask an attorney to provide documentation supporting any information reported in accordance with paragraph (1) of this subdivision.

(c) Sanctions and Appeal.

Any attorney subject to the requirements of this rule who fails to sign and submit the Annual Report Statement demonstrating compliance with, or exemption from, those requirements by August 31 is automatically suspended. Notice of the suspension shall be given by the Board by registered or certified mail, return receipt requested addressed to the office or home address last known to the Board. Such suspension for failure to comply with this rule shall not be effective until thirty (30) days after the date of mailing the notice thereof. The failure to file shall not be considered a violation of the Code of Professional Responsibility per se, and the suspension for failure to file shall not constitute the imposition of discipline. An attorney who, after the date of the mailing of such notice of suspension but before the effective date of such suspension, reports compliance with this rule, takes steps satisfactory to the Board to meet the requirements of the rule for the year in question or applies for a waiver on the basis of hardship, disability or for other good cause shall not be suspended for failure to comply with this rule; otherwise the attorney shall be subject to Maine Bar Rules 7.3(i)(2) and (j). An attorney aggrieved as a result of a suspension under this paragraph may apply to the Board Chair for summary relief for good cause shown.

(d) Reinstatement Fees.

An attorney suspended under provisions of subdivision (c) of this rule shall, prior to reinstatement, demonstrate compliance with or exception from the requirements of M. Bar R. 12. The suspended attorney shall pay, in addition to the $25.00 late fee imposed by Rule 6(a)(1), a reinstatement fee of $125.00 unless excused from such reinstatement fee by the Board as a result of its determination that to impose the fee would result in a grave injustice under the circumstances. An attorney who has been suspended within the previous five (5) years for non-compliance with M. Bar R. 12, shall be assessed an additional $50.00 reinstatement fee.

(e) Courses and Other Activities Entitled to Credit.

(1) All publicly available courses or other publicly available continuing legal education activities offered by the following sponsors are deemed automatically approved and entitled to credit upon payment of the requisite fees for purposes of subdivision (a) of this rule: any national, state or county bar association, American Trial Lawyers' Association; Maine Prosecutors' Association; Maine Association of Criminal Defense Lawyers; Maine Trial Lawyers Association; Maine or American Civil Liberties Union; National Association of Attorneys General; National Legal Aid and Defenders' Association; Practicing Law Institute; Probate Judges Assembly; governmental units or agencies; public bar admission, bar registration or discipline, continuing legal education, or similar agencies created by court rule or statute in any state; law schools approved by the American Bar Association; providers affiliated with such an association, agency, or law school; or other organizations approved by the Board.

(2) All courses or other continuing legal education activities sponsored or presented by any other individual or organization are entitled to credit for purposes of subdivision (a) of this rule if the sponsor or the individual course or activity has been approved by the Board in accordance with subdivision (e) of this rule.

(3) The Board may delegate all approval and other functions under this subdivision and subdivision (e) of this rule to Bar Counsel. The Board shall, by regulation, provide for Board review of any decision of Bar Counsel denying approval of any sponsor, individual course, or other continuing legal education activity. The Board's determination of any such issue shall be final.

(f) Approval Procedure.

(1) Sponsor Approval. A sponsor may be approved by the Board upon payment of the requisite fees and submission of evidence establishing to the satisfaction of the Board:

(A) That the sponsor has been approved or accredited by a continuing legal education accrediting authority established by court rule or statute in another state; or

(B) That, during the immediately preceding three years, the sponsor has sponsored at least six separate courses that comply with the requirements for individual course approval under paragraph (2) of this subdivision.

Approval granted pursuant to this paragraph must be renewed every three years by submission of the evidence required in subparagraph (A) or (B). The Board may at any time review the status of a sponsor approved under subparagraph (A) or specific courses offered by a sponsor approved under subparagraph (B) and may revoke approval if the status has changed or the courses offered by the sponsor do not comply with the requirements of paragraph (2) of this subdivision. Requests for approval may be submitted using the Application form contained in the Appendix to these Rules, supplemented by such supporting information as would assist the Board in determining whether the sponsor meets the requirements of this Rule.

(2) Individual Course Approval. The Board may approve individual courses for credit under subdivision (a) of this rule upon written application from a non-approved sponsor or the submission of supporting documentation from an approved sponsor, together with the requisite fee. An approved sponsor or a non-approved sponsor that seeks approval of a course must file a request for approval accompanied by a full description of the course with the Board at least 30 days before the course is to be presented.

An attendee may file such a request together with the requisite fee at any time up to and including the filing of the annual report under subdivision (b) of this rule for the year for which credit is sought for the course. The Board shall grant the request if the Board is satisfied that the course meets the following criteria:

(A) The course or activity must contribute directly to the professional competence or skills of attorneys, or to their education with respect to their professional or ethical obligations and, where possible, should include an ethics or professional responsibility component.

(B) Course leaders or lecturers and the authors of written materials must be persons sufficiently competent to accomplish the educational goals of the course.

The Board may, prior to granting approval, request any approved sponsor, non-approved sponsor, or attendee to submit further information concerning a course, including the brochure describing the course, a description of the method or manner of presentation of course materials, a statement as to the actual date and place of presentation and the number of persons in attendance, and a copy of the course materials.

(3) In-office and Self-study Continuing Legal Education. Courses offered by law firms, either individually or jointly with other law firms, by corporate legal departments, or by similar entities which employ attorneys, if such courses are provided primarily for the education of the sponsor's members or employees, and group or individual self-study courses involving the use of written materials, audio or video tapes, computers, or other teaching methods and materials may be approved for credit under subdivision (a) of this rule upon submission of evidence establishing to the satisfaction of the Board that:

(A) The course complies with the standards set forth in paragraph (2) of this subdivision;

(B) Experienced lawyers will contribute to the development or teaching of the course;

(C) The course or self-study will be scheduled at a time and location that will be free of interruption.

Information describing the course, activity or program and a request for approval shall be filed by the offering firm or other entity, by an individual attendee or by any other individual seeking approval within the time limits provided in paragraph (2) of this subdivision. Requests for approval may be submitted using the Application form contained in the Appendix to these Rules, supplemented by such supporting information as would assist the Board in determining whether the course, activity or program meets the requirements of this Rule. If a course or a program of self-study consists of listening to or watching the electronic replay of a previously presented continuing legal education program, the Board shall allocate credit hours to the course in the same manner as for a live program. For other courses or self-study activities, the Board shall determine the amount of credit hours on the basis of program content and the likely duration of the activity.

View Complete List of Maine Bar Rules

RULE 1. SCOPE OF RULES

(a) Jurisdiction.?These rules govern the practice of law by attorneys within this State and the conduct of attorneys with respect to their professional activities and as officers of the Court.?Any attorney admitted to, or engaging in, the practice of law in this State shall be subject to the Court's supervision and disciplinary jurisdiction and the provisions of these rules, including Maine Bar Rule 1(b).?A lawyer admitted to practice in this State is subject to the Court's disciplinary authority, regardless where the lawyer's conduct occurs.?A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction where the lawyer is admitted for the same conduct.?A justice or judge shall be subject to the provisions of these rules as to conduct relevant to that person's position as an attorney and as to conduct prior to becoming, or after ceasing to be, a Justice or Judge.?There shall be coordination between the Board and the Committee on Judicial Responsibility and Disability in any investigations or proceedings concerning a Justice or Judge arising out of the same or related conduct in order to avoid unnecessary or inappropriate duplication of any such investigations or proceedings.

(b) Choice of Law.?In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:

(1) Court Related Conduct.?For conduct in connection with a proceeding in a tribunal before which a lawyer has been admitted to practice (either generally or for purposes of that proceeding), including all preparatory and pretrial or prehearing activities required or authorized by statute, rule or custom of the tribunal, the rules to be applied shall be the rules of professional conduct of the tribunal or of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise or neither the tribunal nor the jurisdiction in which it sits have adopted rules of professional conduct applicable to the proceeding; and

(2) Other Conduct. For any other conduct.

(i) if the lawyer is licensed to practice only in this jurisdiction, the rules to be applied shall be the rules of this jurisdiction, and

(ii) if the lawyer is licensed to practice in this and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct.

(c) Amendment. The Board, the Grievance Commission, the Fee Arbitration Commission, the Professional Ethics Commission, or any 10 members of the Bar of this States may submit to the Court written suggestions or proposals for revision or amendment of these rules.

(d) Justices. Except where powers are expressly given to the full Court, or the context indicates clearly that the full Court alone is to have the power, the powers of the Court with respect to these rules may be exercised by a single justice of the Court, subject to appropriate review by the Law Court.

RULE 2. PURPOSE OF RULES

(a) General Construction. These rules are intended to provide appropriate standards for attorneys with respect to their practice of the profession of law, including, but not limited to their relationship with their clients, the general public, other members of the legal profession, the courts and other agencies of this State. A proceeding brought against an attorney under these rules shall be an inquiry to determine the fitness of an officer of the court to continue in that capacity. The purpose of such proceeding is not punishment but protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Further, these rules are intended to provide for a just determination of complaints alleging misconduct on the part of attorneys, and misunderstandings between attorneys and their clients. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense, delay and inconvenience. Whenever the word "Court" appears herein, it shall mean the Supreme Judicial Court. Whenever the word "Board" appears herein, it shall mean the Board of Overseers of the Bar.

(b) Amendment. The Board, the Grievance Commission, the Fee Arbitration Commission, the Professional Ethics Commission, or any 10 members of the Bar of this State may submit to the Court written suggestions or proposals for revision or amendment of these rules.

(c) Grounds for Discipline. Each act or omission by an attorney, individually or in concert with any other person or persons, which violates any of these rules shall constitute misconduct and shall be grounds for appropriate discipline notwithstanding that the act or omission did not occur in the course of an attorney-client relationship or in connection with proceedings in court. The failure without good cause to comply with any rule, regulation or order of the Board or the Grievance Commission or to respond to any inquiry by the Board, the Grievance Commission or Bar Counsel shall constitute misconduct and shall be grounds for appropriate discipline.

(d) Types of Discipline. Discipline of attorneys may be: (1) by disbarment, suspension, or public reprimand by the Court; or (2) by public reprimand by the Board or by a panel of the Grievance Commission.

RULE 2-A. ASPIRATIONAL GOALS FOR LAWYER PROFESSIONALISM [ABROGATED]

(a) Aspirational Goals for Lawyer Advertising. A lawyer should ensure that any advertising that the lawyer communicates or causes to be communicated by publication, broadcast, or other media is informative to potential clients, is presented in an understandable and dignified fashion, and accurately portrays the serious purpose of legal services and our judicial system. When advertising, though not false or misleading, degenerates into undignified and unprofessional presentations, the public is not served, the reputation of the lawyer who advertises may suffer, and the public?s confidence in the legal profession and the judicial system may be harmed. Lawyers who advertise should recognize their obligation to advance the public?s confidence in the legal profession and our system of justice. In furtherance of these goals, lawyers who advertise should:

(1) Avoid statements, claims, or comparisons that cannot be objectively substantiated;

(2) Avoid representations that demean opposing parties, opposing lawyers, the judiciary, or others involved in the legal process;

(3) Avoid crass representations or dramatizations, hawkish spokespersons, slapstick routines, outlandish settings, unduly dramatic music, sensational sound effects, and unseemly slogans that undermine the serious purpose of legal services and the judicial system;

(4) Avoid representations to potential clients that suggest promises of results or will create unjustified expectations such as ?guaranteed results? or ?we get top dollar awards?;

(5) Clearly identify the use of professional actors or other spokespersons who may not be providing the legal services advertised unless it is readily apparent from the context of the advertisement that the actor or spokesperson does not provide the advertised legal services (e.g., a radio advertisement in which the speaker does not purport to be the lawyer or a member of the firm);

(6) Avoid the use of simulated scenes, actors who portray lawyers, clients or participants in the judicial system, and dramatizations unless they are clearly identified as such;

(7) Avoid representations that suggest that the ingenuity or prior record of a lawyer, rather than the merits of the claim, are the principal factors likely to determine the outcome of the representation; and

(8) Avoid representations designed to appeal to greed, exploit the fears of potential clients, or promote a suggestion of violence.

These aspirational goals are intended to provide suggested objectives that all lawyers who engage in advertising their services should be encouraged to achieve in order that lawyer advertising may be more effective and reflect the professionalism of the legal community.

(b) Aspirational Goals for Public Interest Legal Service. A lawyer engaged in active practice in the State of Maine should render unpaid public interest legal service of a type and amount reasonable in all the circumstances. For purposes of this rule, ?unpaid public interest legal service? means:

(1) The provision of professional services at no fee or a reduced fee to persons of limited means;

(2) Participation in a program under which free legal services to the indigent are provided by individual lawyers upon referral from a central agency;

(3) The provision of professional services at no fee or a reduced fee to charitable organizations that provide services or support for the indigent; or

(4) Service in activities for improving the law, the legal system, or the legal profession.

RULE 3. CODE OF PROFESSIONAL RESPONSIBILITY [ABROGATED]

3.1 Scope and Effect [ABROGATED]

(a) This Code shall be binding upon attorneys as provided in Rule 1(a). Violation of these rules shall be deemed to constitute conduct "unworthy of an attorney" for purposes of 4 M.R.S. ? 851. Nothing in this Code is intended to limit or supersede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation; and the prohibition of certain conduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned.

(b) Although this Code is prospective in application, it may be considered as advisory by the Board of Overseers of the Bar and by the Grievance Commission in their disposition of disciplinary proceedings related to conduct occurring before its effective date.

3.2 Admission, Disclosure and Misconduct [ABROGATED]

(a) Unauthorized Practice.

(1) A lawyer shall not practice law in a jurisdiction where to do so would be in violation of law or court rule.

(2) A lawyer shall not aid any person, association, or corporation in the unauthorized practice of law.

(b) Misstatements on Admission.

(1) In connection with a lawyer's application for admission to the bar, a lawyer shall not make any statement which the lawyer knows or should know is false or misleading, nor shall the lawyer fail to disclose any fact or information which the lawyer knows or should know is material to such application.

(2) A lawyer shall not further the application for admission to the bar of another person known by the lawyer to be unqualified in respect to character, education, or other relevant attribute.

(c) Judicial Officers.

(1) A lawyer shall not make a false statement of fact, with knowledge that it is false or with reckless disregard as to its truth or falsity, concerning the qualifications or integrity of a judge or other adjudicatory officer in the court system or a candidate for election or appointment to office as a judge or other adjudicatory officer in the court system.

(2) A lawyer who is a candidate for appointment to judicial office or election as judge of probate shall comply with the applicable provisions of Canon 5 of the Maine Code of Judicial Conduct.

(d) Acts as a Public Official. A lawyer who holds public office shall not:

(1) Use that public position to influence, or attempt to influence, a court or other public body or official engaged in adjudicatory proceedings to act in favor of the lawyer, any partner or associate, or any lawyer affiliated with them, or of a client of any of them;

(2) Represent a client before an elected or appointed public body of which the lawyer is a member, or before any committee or subcommittee of that body. If a lawyer is required to decline representation by virtue of this paragraph, Rule 3.4(b)(3) imposes no disqualification upon the partners or associates of the lawyer or upon any other lawyer affiliated with the lawyer or the lawyer's firm, provided that full disclosure of the relationship is made upon the record at or before the commencement of the representation.

(e) Disclosure of Misconduct by Other Lawyers.

(1) A lawyer possessing unprivileged knowledge of a violation of the Maine Bar Rules that raises a substantial question as to another lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall report such knowledge to the appropriate disciplinary or investigative authority.

(2) A lawyer possessing unprivileged knowledge of a violation of the Code of Judicial Conduct that raises a substantial question as to the fitness for judicial office of a judge or other adjudicatory officer of a court system shall report such knowledge to the appropriate disciplinary or investigative authority.

(3) Notwithstanding paragraphs (1) and (2) of this subdivision, a lawyer serving in any capacity in a peer assistance or substance abuse treatment program approved by the Board of Overseers of the Bar shall not report or disclose any knowledge or evidence concerning another lawyer obtained as a result of a communication made by that lawyer while seeking or receiving peer assistance or substance abuse treatment under such program without that lawyer's informed written consent. This provision is not violated by the report or disclosure of that lawyer's intent to commit a crime or the information necessary to prevent the crime or to avoid subjecting others to the risk of harm, or by any report or disclosure otherwise required by law or by order of court.

(f) Other Misconduct. A lawyer shall not:

(1) directly or indirectly violate, circumvent, or subvert any provision of the Maine Bar Rules;

(2) engage in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects;

(3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

(4) engage in conduct that is prejudicial to the administration of justice.

(g) Restrictions on Right to Practice. A lawyer shall not participate in offering or making:

(1) a partnership or employment agreement that restricts the right of a lawyer to practice after termination of the relationship, except as a condition of the right to receive post-termination payments or other post-termination benefits; or

(2) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a controversy between private parties.

(h) Responsibilities Regarding Law-Related Services.

(1) A lawyer shall be subject to the Code of Professional Responsibility with respect to the provisions of law-related services, as defined in paragraph (2), if the law-related services are provided:

(i) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal services to clients; or

(ii) by a separate entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services of the separate entity are not legal services and that the protections of the client-lawyer relationship do not exist.

(2) The term "law-related services" denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a non-lawyer.

3.3 Fees; Fee Arbitration; Fee Division [ABROGATED]

(a) Excessive Fees. A lawyer shall not enter into an agreement for, charge, or collect an illegal or excessive fee. A fee is excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment of the lawyer;

(3) The fee customarily charged in the locality for similar legal services;

(4) The responsibility assumed, the amount involved, and the results obtained;

(5) The time limitations imposed by the client or by the circumstances;

(6) The nature and length of the professional relationship with the client;

(7) The experience, reputation, and ability of the lawyer performing the services;

(8) Whether the fee is fixed or contingent; and

(9) The informed written consent of the client as to the fee agreement.

(b) Credit Cards. A lawyer may accept payment by credit card for legal services.

(c) Fee Arbitration. A lawyer admitted to practice in this State shall submit, upon the request of the client, the resolution of any fee dispute in accordance with Rule 9.

(d) Fee Division. A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of the lawyer's law firm or office; unless:

(1) The client, after full disclosure, consents to employment of the other lawyer and to the terms for the division of the fees; and

(2) The total fee of the lawyers does not exceed reasonable compensation for all legal services they rendered to the client.

This subsection (d) does not prohibit payment to a former partner or associate pursuant to a separation or retirement agreement.

(e) Dividing Fees With Non-lawyers [Abrogated].

3.4 Identifying Commencement, Continuation, and Termination of Representation [ABROGATED]

(a) Disclosure of Interest, Commencement, and Termination: General Provisions.

(1) Disclosure of Interest. Before commencing any professional representation, a lawyer shall disclose to the prospective client any relationship or interest of the lawyer or of any partner, associate or affiliated lawyer that might reasonably give rise to a conflict of interest under these rules. A lawyer has a continuing duty to disclose to the client any information that, in light of circumstances arising after the commencement of representation, might reasonably give rise to such a conflict of interest.

(2) Commencement. Representation of a client shall be deemed to have commenced when the lawyer and the client, by conduct or communication, would each reasonably understand and agree that representation commences. Commencement of representation shall be judged by an objective, not a subjective, standard. It is the obligation of the attorney to clarify whether representation has commenced. If the client reasonably believes that representation has commenced and the attorney has failed to clarify that it has not, then representation shall have commenced.

(3) Termination. Representation of a client shall be deemed terminated upon the earlier of the following, provided that all conditions and terms of Rule 3.5 have been satisfied:

(i) A date expressly or implicitly stated in an oral or written statement by the client to the lawyer, terminating the representation;

(ii) A date expressly or implicitly communicated by the lawyer to the client, orally or in writing, sent to the client at the client's last known address, withdrawing from or terminating the representation; or

(iii) The completion of the services which were the subject of the representation.

Termination of representation does not relieve the lawyer of any obligation of confidentiality imposed by Rule 3.6(h) or of any other obligation imposed under these rules to prevent disclosure of information protected by that rule.

(4) Retention of Client Files. Upon termination of representation, a lawyer, or a lawyer?s successor, shall return to the client or retain and safeguard in a retrievable format all information and data in the lawyer?s possession to which the client is entitled. Unless information and data is returned to the client or as otherwise ordered by a court, the lawyer shall retain and safeguard such information and data for a minimum of eight (8) years, except for client records in the lawyer?s possession that have intrinsic value in the particular version, such as original signed documents, which must be retained and safeguarded until such time as they are out of date and no longer of consequence. A lawyer may enter into a voluntary written agreement with the client for a different period. In retaining and disposing of files, a lawyer shall employ means consistent with all other duties under these rules, including the duty to preserve confidential client information.

(b) Conflict of Interest: General Provisions.

(1) Basic Rule. A lawyer shall not commence or continue representation of a client if the representation would involve a conflict of interest, except as permitted by this rule. Representation would involve a conflict of interest if there is a substantial risk that the lawyer's representation of one client would be materially and adversely affected by the lawyer's duties to another current client, to a former client, or to a third person, or by the lawyer's own interests.

(2) Informed Consent. Whether a client has given informed consent to representation, when required by this rule, shall be determined in light of the mental capacity of the client to give consent, the explanation of the advantages and risks involved provided by the lawyer seeking consent, the circumstances under which the explanation was provided and the consent obtained, the experience of the client in legal matters generally, and any other circumstances bearing on whether the client has made a reasoned and deliberate choice.

(3) Imputed Disqualification

(i) Except as otherwise provided in these rules, if a lawyer is required to decline or withdraw from representation under these rules for reasons other than health, no partner or associate, and no lawyer affiliated with the lawyer or the lawyer's firm, may commence or continue such representation.

(ii) If a lawyer or law student affiliated both with a law school legal clinic and with one or more lawyers outside the clinic is required to decline representation of any client solely by virtue of this paragraph (3), this paragraph imposes no disqualification on any other lawyer or law student who would otherwise be disqualified solely by reason of an affiliation with that individual, provided that the originally disqualified individual is screened from all participation in the matter at and outside the clinic and that full disclosure of the disqualifying circumstances and the screening measures is given to all affected parties.

(c) Conflict of Interest: Simultaneous Representation.

(1) Representation Prohibited. Notwithstanding the consent of each affected client, a lawyer may not simultaneously represent, or continue to represent, more than one client in the same matter or group of substantially related matters when the matter or matters are the subject of litigation or any other proceeding for dispute resolution and the clients are opposing parties.

(2) Representation Permitted With Consent. In all other cases, if a conflict of interest exists, a lawyer may not undertake or continue simultaneous representation of more than one client except with the informed consent of each affected client to representation of the others. Consent is required even though representation will not occur in the same matter or in substantially related matters. Simultaneous representation in the same matter or substantially related matters is undertaken subject to the following additional conditions:

(i) The lawyer must reasonably believe (A) that each client will be able to make adequately informed decisions, and (B) that a disinterested lawyer would conclude that the risk of inadequate representation is not substantial, considering any special circumstances affecting the lawyer's ability to provide adequate representation of each client, such as the fact that the clients may seek incompatible results or pursue mutually disadvantageous tactics, or that their adverse interests may outweigh their common interests.

(ii) While engaged in simultaneous representation, the lawyer shall consult with each client concerning the decisions to be made and the considerations relevant in making them, so that each client can make adequately informed decisions.

(iii) The lawyer shall terminate the simultaneous representation upon request of any client involved, or if any condition described in this paragraph (2) can no longer be met, and upon withdrawal shall cease to represent any of the clients in the matter or matters on which simultaneous representation was undertaken or in any substantially related matter, except with the consent of any clients who will no longer be represented.

(3) Settling Similar Claims. A lawyer who represents two or more clients shall not make or participate in the making of an aggregate settlement of the claims of or against those clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client has consented after being advised of the existence and nature of all the claims or pleas involved, and of the share of each person and the total amount of the settlement of a civil matter, or the participation of each person in the agreement in a criminal case.

(d) Conflict of Interest: Successive Representation.

(1) Interests of Former Clients.

(i) Except as permitted by this rule, a lawyer shall not commence representation adverse to a former client without that client's informed written consent if such new representation is substantially related to the subject matter of the former representation or may involve the use of confidential information obtained through such former representation.

(ii) When a lawyer becomes affiliated with a firm, the firm shall not accept or continue representation adverse to a former client of the lawyer, or the lawyer's previous law firm, without that client's informed written consent, if:

(A) Such representation involves the subject matter of former representation on which the lawyer personally worked; or

(B) The lawyer personally had acquired information protected by Rule 3.6(h) that is material to the new matter.

(iii) After a lawyer has terminated an affiliation with a firm, the firm shall not commence representation adverse to a former client represented by the formerly affiliated lawyer while affiliated with the firm without that client's informed written consent, if:

(A) The subject matter of the proposed representation is substantially related to the subject matter of the representation in which the formerly affiliated lawyer represented the client while affiliated with the firm; or

(B) Any lawyer remaining in the firm personally has information protected by Rule 3.6(h) that is material to the new matter.

(2) Successive Government and Private Representation.

(i) A lawyer shall not commence private representation in a matter in which the lawyer formerly represented the government of a state, or the United States, or any agency, entity, or political subdivision of the state or of the United States as client, or in which the lawyer participated personally and substantially as a public officer or employee, or when such private representation may involve the use of confidential information obtained through the former governmental representation or employment.

(ii) A lawyer shall not commence representation on behalf of the government of a state, or of the United States, or any agency, entity, or political subdivision of the state or of the United States, or participate as a public officer or employee, in a matter in which the lawyer participated personally and substantially on behalf of a former client or employer, or which may involve the use of confidential information obtained through such former representation, unless:

(A) Under applicable law, no one is or by lawful delegation may be authorized to act in the lawyer's stead in the matter, or

(B) Such new representation or participation is adverse to the interests of the former client or employer and the former client gives informed written consent.

(iii) If a lawyer is required to decline representation by virtue of subparagraph (i) of this paragraph, a disqualification imposed by Rule 3.4(b)(3)(i) may be waived by the informed written consent of the appropriate governmental officer or agency upon a showing that the lawyer required to decline representation will be screened from any participation in the matter and will be directly apportioned no part of the fees therefrom, and a finding that such waiver is not contrary to the public interest.

(iv) If a lawyer is required to decline representation or participation by virtue of subparagraph (ii) of this paragraph, Rule 3.4(b)(3)(i) imposes no disqualification on lawyers employed with the lawyer in a governmental agency unless the subsequent representation is adverse. If a lawyer is required to decline representation because a former client would not give the consent provided by subparagraph (ii)(B) of this paragraph, a disqualification imposed by Rule 3.4(b)(3)(i) may be waived by the informed written consent of the former client. Alternatively, Rule 3.4(b)(3)(i) does not apply to lawyers employed in a governmental agency with the lawyer required to decline representation if that lawyer is screened from any participation in the matter and if written notice is given to the former client to enable the client to ascertain compliance with the provisions of this subparagraph.

(e) Conflict of Interest: Fiduciary or Other Legal Obligation to Another. Without the client's informed consent, a lawyer may not undertake or continue to represent a client in any matter with respect to which the lawyer has a fiduciary or other legal obligation to another person if the obligation presents a substantial risk of materially and adversely affecting the lawyer's representation of the client.

(f) Conflict of Interest: Lawyer's Own Interest.

(1) General Rule. Except with the informed written consent of the client, a lawyer shall not commence representation if there is a substantial risk that any financial interest or significant personal relationship of the lawyer will materially and adversely affect the lawyer's representation of the client.

(2) Avoiding Adverse Interest.

(i) A lawyer shall not knowingly acquire a property or pecuniary interest adverse to a client, or enter into any business transaction with a client, unless:

(A) The transaction and terms in which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted to the client in manner and terms which should have reasonably been understood by the client;

(B) The client is advised and given a reasonable opportunity to seek independent professional advice of counsel of the client's choice on the transaction; and

(C) The client consents in writing thereto.

(ii) A lawyer shall not directly or indirectly purchase property at a probate, foreclosure, or judicial sale in an action or proceeding in which the lawyer or any partner or associate appears as attorney for a party or is acting as executor, trustee, administrator, guardian, conservator, or other personal representative.

(iii) Prior to conclusion of all aspects of the matter giving rise to representation of a client, the lawyer shall not enter into any arrangement or understanding with a client or a prospective client by which the lawyer acquires an interest in publication rights with respect to the subject matter of the representation or proposed representation.

(iv) A lawyer shall not prepare an instrument giving the lawyer or a parent, child, sibling, or spouse of the lawyer any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.

(v) A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice; nor shall a lawyer settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith. This rule shall not prevent a lawyer from settling or defending a malpractice claim.

(3) Familial Relations. A lawyer related to another lawyer as parent, child, sibling or spouse shall not, in the same or a substantially related matter, undertake or continue representation adverse to a person who the lawyer knows is represented by the related lawyer or a lawyer affiliated with that lawyer without the client's informed consent.

(4) Exception to Imputed Disqualification. If a lawyer is required to decline representation by virtue of a familial relationship under paragraph (3) of this subdivision or any other significant personal relationship under paragraph (1) of this subdivision, Rule 3.4(b)(3)(i) imposes no disqualification upon the partners or associates of the lawyer or upon any other lawyer affiliated with the lawyer or the lawyer's firm.

(g) Other Restrictions.

(1) When Lawyer May Be Called as Witness.

(i) A lawyer shall not commence representation in contemplated or pending litigation if the lawyer knows, or should know, that the lawyer is likely or ought to be called as a witness. This rule does not apply where the predictable testimony will relate solely to uncontested matters or to legal services furnished by the lawyer, or where the distinctive value of the lawyer in the particular case would make denial a substantial hardship on the client.

(ii) A lawyer may commence representation in contemplated or pending litigation if another lawyer in the lawyer's firm is likely or ought to be called as a witness, unless such representation is precluded by subdivisions (b), (c), (d), (e), or (f) of this rule.

(2) Prior Judicial Activity.

(i) A lawyer shall not commence representation in a matter in which the lawyer participated personally and substantially as a judge or judicial law clerk. A lawyer shall not commence representation in a matter in which the lawyer participated personally and substantially as a nonjudicial adjudicative officer, arbitrator (other than a party's chosen member of a multi-member panel), or law clerk to such a person, unless all parties to the proceeding give informed consent.

(ii) If a lawyer is required to decline representation by virtue of this paragraph, Rule 3.4(b)(3)(i) imposes no disqualification upon the partners or associates of the lawyer or upon any other lawyer affiliated with the lawyer or the lawyer's firm, provided that the lawyer required to decline representation is screened from any participation in the matter and will be directly apportioned no part of the fees therefrom, and full disclosure of the circumstances and the measures taken to screen the lawyer required to decline representation is given to all affected parties.

(3) Non-payment of Prior Lawyer. A lawyer shall not refuse to commence or continue representation on the ground that the client's prior lawyer has not been paid.

(4) Other Violations. A lawyer may not commence or continue representation that the lawyer knows or should know would lead to a violation of other provisions of these rules.

(h) Mediation. A lawyer may act as mediator for multiple parties in any matter, whether or not their interests are opposing or adverse and whether or not they are represented by independent counsel, subject to the following conditions:

(1) The lawyer must clearly inform the parties of the nature and limits of the lawyer's role as mediator and should disclose any interest or relationship likely to affect the lawyer's impartiality or that might create an appearance of partiality or bias. The parties must consent to the arrangement unless they are in mediation pursuant to a legal mandate.

(2) The role of mediator does not create a lawyer-client relationship with any of the parties and does not constitute representation of any of them. The lawyer shall not attempt to advance the interests of any of the parties at the expense of any other party.

(3) While acting as mediator, the lawyer may not represent any of the parties in court or in the matter under mediation or any related matter. The lawyer must reasonably believe that the mediation can be undertaken impartially and without improper effect on any other esponsibilities that the lawyer may have to any of the parties.

(4) The lawyer may draft a settlement agreement or instrument reflecting the parties' resolution of the matter but must advise and encourage any party represented by independent counsel to consult with that counsel, and any unrepresented party to seek independent legal advice, before executing it.

(5) The lawyer shall withdraw as mediator if any of the parties so requests, or if any of the conditions stated in this subdivision (h) is no longer satisfied. Upon withdrawal, or upon conclusion of the mediation, the lawyer shall not represent any of the parties in the matter that was the subject of the mediation, or in any related matter.

(6) The lawyer shall not use any conduct, discussions, or statements made by any party in the course of the mediation to the disadvantage of any party to the mediation or, without the informed consent of the parties, to the advantage of the lawyer or a third person.

(7) If a lawyer is required to decline representation by virtue of this paragraph, Rule 3.4(b)(3)(i) imposes no disqualification upon the partners or associates of the lawyer or upon any other lawyer affiliated with the lawyer or the lawyer's firm, provided that the lawyer required to decline representation is screened from any participation in the matter and will be directly apportioned no part of the fees therefrom, and full disclosure of the circumstances and the measures taken to screen the lawyer required to decline representation is given to all affected parties.

(i) Limited Representation. A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client provides informed consent after consultation. If, after consultation, the client consents in writing (the general form of which is attached to these Rules), an attorney may enter a limited appearance on behalf of an otherwise unrepresented party involved in a court proceeding. A lawyer who signs a complaint, counterclaim, cross-claim or any amendment thereto which is filed with the court, may not thereafter limit representation as provided in this rule.

(j) Non-Profit and Court-Annexed Limited Legal Service Programs. A lawyer who, under the auspices of a non-profit organization or a court-annexed program, provides limited representation to a client without expectation of either the lawyer or the client that the lawyer will provide continuing representation in the matter is subject to the requirements of Rules 3.4(a)-(e) only if the lawyer knows that the representation of the client involves a conflict of interest.

[The 2001 Advisory Note provides significant explanation of the rule changes to accomplish limited representation. They are included at this point to clarify application of the rule. The Advisory Notes are not part of the rule.]

Advisory Notes?2001

Both lawyer and client have authority and responsibility to determine the objectives and means of representation. The scope of services to be provided by a lawyer may be limited by agreement with the client. In situations where the lawyer will not be providing limited representation in court, the limited representation agreement need not be in writing, but must be reasonable under the circumstances. If, for example, a client's objective is limited to securing general information about the law and the client's needs in order to handle a common and typically uncomplicated legal problem, the lawyer and the client may agree that the lawyer's services will be limited to a brief telephone consultation or office visit. Such a limitation, however, will not be reasonable if the time allotted was not sufficient to yield advice upon which the client can rely. Although an agreement for limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. A lawyer's advice may be based upon the scope of the representation agreed upon by the lawyer and client, and the client's representation of the facts.

The reasons a writing memorializing the agreement is not required in all contexts include (by way of example) the problem non-profit and court annexed legal services programs face in securing such a writing from their clients, and the time entering into the agreement takes in proportion to the time consumed by the limited representation itself. Nevertheless, to the extent a writing may be obtained, it is a better practice to do so for both the lawyer and the client.

In situations involving limited representation in court of an otherwise unrepresented party, a written memorandum of the scope of representation is required. A lawyer providing limited representation in court proceedings should include in the consultation with the client an explanation of the risks and benefits of the limited representation. The general form of the agreement is attached to the Code of Professional Responsibility.

Limited representation may not be provided by a lawyer who signs a complaint, counterclaim, cross-claim or any amendment thereto, which is filed with the court.

Legal service organizations, courts, and various non-profit organizations have established programs through which lawyers provide limited legal services--typically advice--that will assist persons with limited means to address their legal problems without further representation by a lawyer. In these programs, such as legal advice hotlines, advice-only clinics, lawyer for the day programs in criminal or civil matters, or unrepresented party counseling programs, an attorney-client relationship is established, but there is no expectation that the lawyer representation of the client will continue beyond the limited consultation. It is the purpose of this Rule to provide guidance to lawyers about their professional responsibilities when serving a client in this capacity.

Because a lawyer who is representing a client in the circumstances addressed by this Rule is not able to check systematically for conflicts of interest, paragraph (j) only requires compliance with Rules 3.4(a)-(e) if the lawyer knows, based on reasonable recollection and information provided by the client in the ordinary course of the consultation, that the representation presents a conflict of interest. A conflict of interest that would otherwise be imputed to a lawyer because of the lawyer association with a firm will not preclude the lawyer from representing a client in a limited services program. Nor will the lawyer participation in such a program preclude the lawyer's firm from undertaking or continuing the representation of clients with interests adverse to a client being represented under the program's auspices.

LIMITED REPRESENTATION AGREEMENT

(Used in conjunction with Rule 3.4(i) the following form shall be sufficient to satisfy the rule. The authorization of this form shall not prevent the use of other forms consistent with this rule.)

To Be Executed in Duplicate?

Date:?, 20?

1.?The client, , retains the attorney, , to perform limited legal services in the following matter:?v.?

2.?The client seeks the following services from the attorney (indicate by writing "yes" or "no"):

a.?Legal advice: office visits, telephone calls, fax, mail, e-mail;

b.?Advice about availability of alternative means to resolving the dispute, including mediation and arbitration;

c.?Evaluation of client self-diagnosis of the case and advising client about legal rights and responsibilities;

d.?Guidance and procedural information for filing or serving documents;

e.?Review pleadings and other documents prepared by client;

f.?Suggest documents to be prepared;

g.?Draft pleadings, motions, and other documents;

h.?Factual investigation: contacting witnesses, public record searches, in-depth interview of client;

i.?Assistance with computer support programs;

j.?Legal research and analysis;

k.?Evaluate settlement options;

l.?Discovery: interrogatories, depositions, requests for document production;

m.?Planning for negotiations;

n.?Planning for court appearances;

o.?Standby telephone assistance during negotiations or settlement conferences;

p.?Referring client to expert witnesses, special masters, or other counsel;

q.?Counseling client about an appeal;

r.?Procedural assistance with an appeal and assisting with substantive legal argument in an appeal;

s.?Provide preventive planning and/or schedule legal check-ups:

t.?Other:

3.?The client shall pay the attorney for those limited services as follows:

a.?Hourly Fee:

The current hourly fee charged by the attorney or the attorney's law firm for services under this agreement are as follows:

i.?Attorney:

ii.?Associate:

iii.?Paralegal:

iv.?Law Clerk:

Unless a different fee arrangement is established in clause b.) of this paragraph, the hourly fee shall be payable at the time of the service. Time will be charged in increments of one-tenth of an hour, rounded off for each particular activity to the nearest one-tenth of an hour.

b.?Payment from Deposit:

For a continuing consulting role, client will pay to attorney a deposit of $?, to be received by attorney on or before , and to be applied against attorney fees and costs incurred by client. This amount will be deposited by attorney in attorney trust account. Client authorizes attorney to withdraw funds from the trust account to pay attorney fees and costs as they are incurred by client. The deposit is refundable. If, at the termination of services under this agreement, the total amount incurred by client for attorney fees and costs is less than the amount of the deposit, the difference will be refunded to client. Any balance due shall be paid within thirty days of the termination of services.

c.?Costs:

Client shall pay attorney out-of-pocket costs incurred in connection with this agreement, including long distance telephone and fax costs, photocopy expense and postage. All costs payable to third parties in connection with client case, including filing fees, investigation fees, deposition fees, and the like shall be paid directly by client. Attorney shall not advance costs to third parties on client behalf.

4.?The client understands that the attorney will exercise his or her best judgment while performing the limited legal services set out above, but also recognizes:

a.?the attorney is not promising any particular outcome.

b.?the attorney has not made any independent investigation of the facts and is relying entirely on the client limited disclosure of the facts given the duration of the limited services provided, and

c.?the attorney has no further obligation to the client after completing the above described limited legal services unless and until both attorney and client enter into another written representation agreement.

5.?If any dispute between client and attorney arises under this agreement concerning the payment of fees, the client and attorney shall submit the dispute for fee arbitration in accordance with Rule 9(e)-(k) of the Maine Bar Rules. This arbitration shall be binding upon both parties to this agreement.

WE HAVE EACH READ THE ABOVE AGREEMENT BEFORE SIGNING IT.?

Signature of client Signature of attorney

3.5 WITHDRAWAL FROM EMPLOYMENT [ABROGATED]

(a)?General Rules.

(1) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.

(2) A lawyer shall not withdraw from employment until the lawyer has taken reasonable steps to avoid foreseeable prejudice to the rights of the lawyer's client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.

(3) Withdrawal shall not be conditioned upon payment by the client for services to date; and a lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.

(4) It shall not be a violation of 3.5(a) to cease or limit representation in accordance with Rule 3.4(i).

(b) Mandatory Withdrawal.

(1) If a lawyer knows, or should know, that the lawyer or a lawyer in the lawyer's firm is likely or ought to be called as a witness in litigation concerning the subject matter of the lawyer's employment, the lawyer and the lawyer's firm shall withdraw from representation at the trial unless the court otherwise orders. This rule does not apply to situations in which the lawyer would not be precluded from accepting employment under Rule 3.4(g)(1)(ii).

(2) A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment if:

(i) The lawyer knows, or should know, that the client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken, merely for the purpose of harassing or maliciously injuring any person;

(ii) The lawyer knows, or should know, that the lawyer's continued employment will result in violation of these Rules;

(iii) The lawyer's mental or physical condition renders it unreasonably difficult for the lawyer to carry out the employment effectively; or

(iv) The lawyer is discharged by the client.

(c) Permissive Withdrawal. Other than as provided in these rules a lawyer may not request permission to withdraw in matters pending before a tribunal, and the lawyer may not withdraw in other matters, unless:

(1) The client insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law;

(2) The client personally seeks to pursue an illegal course of conduct;

(3) The client insists that the lawyer pursue a course of conduct that is illegal or that is prohibited under these rules;

(4) The client by other conduct renders it unreasonably difficult for the lawyer to carry out the lawyer's responsibilities;

(5) The client insists that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer even though not prohibited by these rules;

(6) The client deliberately disregards an agreement with, or obligation to, the lawyer as to expenses or fees;

(7) The lawyer's continued employment is likely to result in a violation of these rules;

(8) The lawyer's inability to work with the client or with co-counsel indicates that the best interests of the client likely will be served by withdrawal;

(9) The lawyer's mental or physical condition renders it difficult for the lawyer to carry out the employment effectively;

(10) The client knowingly and freely assents to termination of the employment; or

(11) The lawyer believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.

3.6 CONDUCT DURING REPRESENTATION [ABROGATED]

(a) Standards of Care and Judgment. A lawyer must employ reasonable care and skill and apply the lawyer's best judgment in the performance of professional services. A lawyer shall be punctual in all professional commitments. A lawyer shall take reasonable measures to keep the client informed on the status of the client's affairs. A lawyer shall not

(1) handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle, without first associating with another lawyer who is competent to handle it;

(2) handle a legal matter without preparation adequate in the circumstances, provided that, with respect to the provision of limited representation, the lawyer may rely on the representations of the client and the preparation shall be adequate within the scope of the limited representation; or

(3) neglect a legal matter entrusted to the lawyer.

(b) [abrogated]

(c) Threatening Prosecution. A lawyer shall not present, or threaten to present, criminal, administrative, or disciplinary charges solely to obtain an advantage in a civil matter.

(d) Advising Violation of Law. A lawyer shall not counsel or assist a client in the violation of any law, rule, or order of a tribunal; but a lawyer may take appropriate steps in good faith to test the validity of any law, rule, or order of a tribunal.

(e) Preserving Identity of Funds and Property.

(1) All funds of clients paid to a lawyer or law firm, other than retainers and advances for costs and expenses, shall be deposited in one or more identifiable accounts maintained in the state in which the law office is situated at a financial institution authorized to do business in such state. No funds belonging to the lawyer or law firm shall be deposited therein except as follows:

(i) Funds reasonably sufficient to pay institutional service charges may be deposited therein; and

(ii) Funds belonging in part to a client and in part presently or potentially to a lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client; in that event the disputed portion shall not be withdrawn until the dispute is finally resolved.

(2) A lawyer shall:

(i) Promptly notify a client of the receipt of the client's funds, securities, or other properties;

(ii) Identify and label securities and properties of a client promptly upon receipt and place them in a safe-deposit box or other place of safekeeping as soon as practicable;

(iii) Maintain complete records of all funds, securities and other properties of a client coming into possession of the lawyer and render prompt and appropriate accounts to the client regarding them; and

(iv) Promptly pay or deliver to the client, as requested by the client, the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.

(3) Unless the client directs otherwise, when a lawyer or law firm reasonably expects that client funds will earn net interest, as defined in paragraph (7) of this subdivision, such funds shall be deposited in a client trust account that may be either

(i) A separate, insured, interest-bearing account for the particular client or client's matter, the net interest on which will be paid or credited to the client; or

(ii) A pooled, insured, interest-bearing account with subaccounting by the financial institution or the lawyer or law firm, which will provide for computation of the interest earned by each client's funds and the payment or crediting of each client's net interest to the client.

(4) Unless a lawyer practicing alone, or a law firm, has made an annual election, or holds United States government funds, as provided in paragraph (5) of this subdivision, all funds of any client held by the lawyer or law firm that the lawyer or law firm reasonably and in good faith expects will not earn net interest as defined in paragraph (7) of this subdivision shall be deposited in one or more pooled, insured, interest-bearing accounts, each of which shall be subject to the following conditions:

(i) The financial institution in which the account is established shall be authorized to do business in Maine and shall be insured by either the Federal Deposit Insurance Corporation or the National Credit Union Administration Share Insurance Fund.

(ii) Funds deposited in the account shall be subject to withdrawal upon request and without delay.

(iii) The lawyer or law firm shall file with the Board of Overseers of the Bar an order directing the financial institution to remit any net interest that may accrue on the account to the Maine Bar Foundation, a nonprofit corporation incorporated under the laws of the State of Maine that has in force a determination letter from the Internal Revenue Service that it qualifies as an exempt organization under Section 501(c)(3) of the Internal Revenue Code of 1954 as from time to time amended. Such an order shall be filed by July 31, 1994, for any account maintained by the lawyer or law firm under this paragraph (4) as of July 1, 1994, and within 30 days after the subsequent opening of any account that is to be maintained hereunder.

(iv) No interest on the account shall be paid to the lawyer or law firm, and the lawyer or law firm shall not receive any direct or indirect pecuniary benefit by reason of the remittance of interest in accordance with subparagraph (iii).

(v) The lawyer or law firm shall give the public notice, by a prominently displayed sign or other reasonable means, of the lawyer's or firm's standing practice to use such an account and that the Maine Bar Foundation is the recipient of the net interest therefrom.

(5) A lawyer practicing alone, or a law firm, may elect to deposit all client funds that are reasonably and in good faith not expected to earn net interest, as defined in paragraph (7) of this subdivision, in one or more insured, non-interest bearing accounts, instead of in the interest-bearing account or accounts required by paragraph (4) of this subdivision. Such election shall be effective only upon written notice to the Board of Overseers of the Bar given not later than July 31, 1994, and thereafter annually in conjunction with the filing of the list of trust accounts required by Rule 6(a)(2). A lawyer practicing alone, or a law firm, holding funds of the United States government that by law may not earn interest shall deposit those funds in one or more insured, non-interest bearing accounts, whether or not the lawyer or firm has made the election provided by this paragraph for other client funds.

(6) If the circumstances on which a lawyer or law firm has based a determination to deposit client funds in an account under either paragraph (4) or paragraph (5) of this subdivision change, so that net interest may reasonably be expected to be earned on such funds, the lawyer or law firm shall transfer the principal amount originally deposited to the appropriate account established under paragraph (3) of this subdivision.

(7) For purposes of this rule, the term "net interest" means the net of interest earned on a particular amount of one client's funds over the administrative costs allocable to that amount. In estimating the gross amount of interest to be earned, the lawyer or law firm shall consider the principal amount involved; available interest rates; and the time the funds are likely to be held, taking into account the likelihood of delay in any relevant proceeding or transaction.

(8) For purposes of this rule, the term "administrative costs" means that portion of the following costs properly allocable to a particular amount of one client's funds paid to a lawyer or law firm:

(i) Financial institutional service charges for opening, maintaining, or closing an account, or accounting for the deposit and withdrawal of funds and payment of interest.

(ii) Reasonable charges of the lawyer or law firm for opening, maintaining or closing an account; accounting for the deposit and withdrawal of funds and payment of interest; and obtaining information and preparing or forwarding any returns or reports that may be required by a revenue taxing agency as to the interest earned on a client's funds.

(f) Communicating With Adverse Party. During the course of representation of a client, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so. An otherwise unrepresented party to whom limited representation is being provided or has been provided in accordance with Rule 3.4(i) is considered to be unrepresented for purposes of this rule, except to the extent the limited representation attorney provides other counsel written notice of a time period within which other counsel shall communicate only with the limited representation attorney.

(g) Implying Improper Influence. A lawyer shall not state or imply that the lawyer is able to influence improperly, or upon irrelevant grounds, any tribunal, legislative body, or public official.

(h) Confidentiality of Information.

(1) Except as permitted by these rules, or when authorized in order to carry out the representation, or as required by law or by order of the court, a lawyer shall not, without informed consent, knowingly disclose or use information (except information generally known) that:

(i) Is protected by the attorney-client privilege in any jurisdiction relevant to the representation;

(ii) Is information gained in the course of representation of a client or former client for which that client or former client has requested confidential treatment;

(iii) Is information gained in the course of representation of the client or former client and the disclosure of which would be detrimental to a material interest of the client or former client; or

(iv) Is information received from a prospective client, the disclosure of which would be detrimental to a material interest of that prospective client, when the information is provided under circumstances in which the prospective client has a reasonable expectation that the information will not be disclosed.

(2) A lawyer shall exercise reasonable care to prevent lawyers and non-lawyers employed or retained by or associated with the lawyer from improperly disclosing or using information protected by paragraph (1) of this subdivision.

(3) This Rule is not violated by the disclosure or use of information described in paragraph (1) of this subdivision that the lawyer reasonably believes is necessary to the defense of the lawyer, the lawyer?s partners, employees, or associates against an accusation of wrongful conduct presented to the Board or any tribunal.

(4) A lawyer may disclose information gained in the course of representation of a former client or client, or learned from a prospective client, to the extent that the lawyer reasonably believes disclosure is necessary:

(i) To prevent the commission of a criminal act that is likely to result in death or bodily harm to another person; or

(ii) To avoid the furthering of a criminal act.

(5) A lawyer who receives information clearly establishing that a client or former client has, during the representation, perpetrated a fraud upon any person or tribunal shall promptly call upon the client or former client to rectify the same; and if the client or former client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a privileged communication. If a person other than a client or former client has perpetrated a fraud upon a tribunal, the lawyer shall promptly reveal the fraud to the tribunal.

(i) Avoiding Misreliance. If a lawyer knows or should know that the lawyer's advice or opinion may be communicated to a person other than the lawyer's client, the lawyer shall take reasonable steps to prevent that person from believing that the lawyer represents that person's interests as well as the interests of the client.

(j) Client With Diminished Mental Capacity.

(1) When a client's ability to make adequately considered decisions in connection with the representation is impaired because of mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(2) When a lawyer reasonably believes that a normal client-lawyer relationship cannot be maintained as provided in paragraph (1) of this subdivision because the client lacks sufficient understanding or capacity to communicate or to make adequately considered decisions in connection with the representation, the lawyer may consult family members, adult protective agencies, or other individuals or entities that have the ability to take action to protect the client, provided that

(i) The lawyer reasonably believes that the client is at risk of physical harm or substantial financial loss;

(ii) The lawyer does not consult any individual or entity that the lawyer knows or reasonably should know has an interest adverse to an interest of the client; and

(iii) The lawyer consults only those individuals or entities reasonably necessary to protect the client's interests.

(3) In consulting individuals and entities as provided in paragraph (2) of this subdivision, the lawyer may disclose confidences and secrets of the client to the extent that disclosure is necessary to protect the client's interests.

3.7 CONDUCT DURING LITIGATION?[ABROGATED]

(a) Improper Legal Action. A lawyer shall not file a suit, assert a position, delay a trial, or take other action on behalf of a client when the lawyer knows, or should know, that such action would merely serve to harass or maliciously injure another.

(b) Improper Concealment, Statement or Evidence. A lawyer shall not knowingly make a false statement, conceal information legally required to be revealed, or participate in the creation or preservation of false evidence.

(c) Interest in Litigation. A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

(1) Assert a lien granted by law against the proceeds of such action or litigation to secure the lawyer's fee or expenses. This paragraph does not authorize an attorney to assert a lien on a client's file in order to secure payment of a fee. The assertion of such a lien (if any exists) is improper; and

(2) Contract with a client for a reasonable contingent fee as provided in Rule 8.

(d) Financial Assistance. While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client, except that a lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and expenses of obtaining and presenting evidence.

(e) Adversary Conduct.

(1) In appearing in a professional capacity before a tribunal, a lawyer shall:

(i) Employ, for the purpose of maintaining the causes confided to the lawyer, such means only as are consistent with truth, and shall not seek to mislead the judge, jury, or tribunal by any artifice or false statement of fact or law;

(ii) Disclose, unless privileged or irrelevant, the identities of all the clients the lawyer represents.

(2) In appearing in a professional capacity before a tribunal, a lawyer shall not:

(i) Intentionally misquote to a judge, jury, or tribunal the language of a book, statute, or decision or, with knowledge of its invalidity and without disclosing such knowledge, cite as authority, a decision that has been overruled or a statute that has been repealed or declared unconstitutional;

(ii) State or allude to any matter that the lawyer has no reasonable basis to believe is relevant to the case or will not be supported by admissible evidence;

(iii) Ask any question that the lawyer has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person;

(iv) Assert personal knowledge of the facts at issue, except when testifying as a witness;

(v) Assert a personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but a lawyer may argue, on the lawyer's analysis of the evidence, for any position or conclusion with respect to the matters stated therein; or

(vi) Engage in undignified or discourteous conduct that is degrading to a tribunal.

(f) Communication With Jurors.

(1) At no time shall a lawyer connected with the trial of a case communicate extrajudicially, directly or indirectly, with a juror, with anyone the lawyer knows to be a member of the pool from which the jury will be selected, or with any member of such person's family.

(2) After discharge of a juror from further jury service, a lawyer may ask or answer questions and make comments to the former juror provided the questions or comments are not intended to harass or embarrass the juror or influence the juror's action in future jury service.

(3) A lawyer shall reveal promptly to the court knowledge of improper conduct by a juror or member of the jury pool, or by another toward a juror or member of the jury pool, or a member of the juror's or jury-pool member's family.

(g) Contact With Witnesses. A lawyer shall not:

(1) Suppress any evidence that the lawyer or a client has a legal obligation to reveal or produce;

(2) Advise, or directly or indirectly cause, a person to hide or to leave the jurisdiction of a tribunal for the purpose of making that person unavailable as a witness therein; or

(3) Directly or indirectly pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the testimony of the witness or the outcome of the case; but unless prohibited by law, a lawyer may advance, guarantee, or acquiesce in payment of:

(i) Expenses reasonably incurred by a witness in attending or testifying;

(ii) Reasonable compensation to a witness for his loss of time in attending or testifying; and

(iii) A reasonable fee for the professional services of an expert witness.

(h) Contact With Officials.

(1) A lawyer shall not directly or indirectly give or lend anything of value to a judge, official, or employee of a tribunal unless the personal or family relationship between the lawyer and the judge, official, or employee is such that gifts are customarily given and exchanged. This paragraph does not preclude contributions to election campaigns of public officers.

(2) In the absence of opposing counsel, a lawyer shall not directly or indirectly communicate with or argue before a judge or tribunal upon the merits of a contested matter pending before such judge or tribunal, except in open court; nor shall the lawyer, without furnishing opposing counsel with a copy thereof, address a written communication to a judge or tribunal concerning the merits of a contested matter pending before such judge or tribunal. This paragraph does not preclude communications permitted by rule of court. For purposes of this paragraph the term "opposing counsel" includes a party who has no counsel.

(i) Duty of Public Prosecutor.

(1) A lawyer shall not institute or cause to be instituted criminal charges when the lawyer knows, or it is obvious, that the charges are not supported by probable cause.

(2) A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to a defendant without counsel, of the existence of evidence that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.

(3) A public prosecutor or other government lawyer shall not conduct a civil or criminal case against any person whom the lawyer represents or has represented as a client.

(4) A public prosecutor or other government lawyer shall not conduct a civil or criminal case against any person relative to a matter in which the lawyer represents or has represented the complaining witness.

(j) Extra-Judicial Publicity. A lawyer involved in the prosecution or defense of a criminal matter or in representing a party to a civil cause shall not make or participate in making any extra-judicial statement which poses a substantial danger of interference with the administration of justice.

3.8 ADVERSTISING FIELDS OF PRACTICE?[ABROGATED]

A lawyer may communicate, publicly and otherwise, truthful statements identifying fields of law in which the lawyer practices, refrains from practice, concentrates, or specializes, or to which the lawyer's practice is limited. In doing so a lawyer may use phrases and titles recognized by established custom, such as "Trademark Attorney" or "Admiralty Lawyer". A lawyer shall not represent publicly or imply that the lawyer has recognized, designated or certified expertise in a field of law, except that:

(a) Practice Before Agencies and Courts. A lawyer may identify the government agencies and courts before which the lawyer is admitted to practice, using appropriate language such as "member, U.S. Supreme Court bar", or customary phrases such as "Patent Attorney."

(b) Other Permissible Communications. A lawyer may communicate truthful statements reporting certification or other recognition of expertise conferred by a named organization that has been approved by the Maine Board of Overseers of the Bar as a certifying organization for the field of law to which the statement pertains.?

3.9 PUBLICITY, ADVERTISING AND SOLICITATION [ABROGATED]

(a) False Advertising Forbidden. A lawyer shall not, on behalf of the lawyer or any affiliated lawyer, knowingly use, or assist or participate in the use of, any form of public communication containing a false, fraudulent, misleading, or deceptive statement or claim. A public communication is any communication, through mass media, direct mail, or other means including professional cards, announcements, letterheads, office signs, and similar accoutrements of a law practice.

(b) False Advertising Defined. Without limitation, a false, fraudulent, misleading, or deceptive statement or claim includes a statement or claim that:

(1) Contains a material misrepresentation of fact or law;

(2) Omits to state any material fact necessary to make the statement, in the light of all circumstances, not misleading;

(3) Is intended or is likely to create an unjustified expectation;

(4) Violates Rule 3.8;

(5) Is intended, or is likely, to convey the impression that the lawyer is in a position to influence improperly any court, tribunal, or other public body or official; or

(6) Contains a representation or implication that is likely to cause an ordinary prudent person to misunderstand or be deceived thereby, or fails to contain reasonable warnings or disclaimers necessary to make the representation or implication not deceptive.

(c) Other Improper Public Communication. A lawyer shall not, on behalf of the lawyer or any affiliated lawyer, knowingly use, or assist, or participate in the use of, any form of public communication that:

(1) Is intended or is likely to result in a legal action being taken, or a legal position being asserted, merely to harass or maliciously injure another; or

(2) Appeals primarily to fear, greed, desire for revenge, or similar emotion.

(d) Paid Publicity. A lawyer shall not compensate or give anything of value to a representative of the press, radio, television, or other communication medium in anticipation of, or in return for, professional publicity in a news item. A paid advertisement must be identified as such unless it is apparent from the context that it is a paid advertisement. If a paid advertisement is communicated to the public by use of radio or television, it shall be prerecorded, approved for broadcast by the lawyer, and the prerecording as approved shall be retained by the lawyer for two years. If a public communication is transmitted through the mails, a copy of such communication shall be retained by the lawyer for two years following the mailing.

(e) Multi-jurisdictional Disclosure. A multi-jurisdictional partnership shall disclose, in all public communications containing the names of affiliated lawyers, jurisdictional limitations of those lawyers not licensed to practice in the jurisdiction in which the communication is published.

(f) Recommendation or Solicitation of Employment.

(1) A lawyer shall not solicit employment on behalf of the lawyer or any affiliated lawyer through any form of personal contact:

(i) By using any statement, claim, or device that would violate this rule if part of a public communication;

(ii) By using any form of duress or intimidation, unwarranted suggestions or promises of benefits, or engaging in deceptive, vexatious, or harassing conduct; or

(iii) When the circumstances create an appreciable risk of undue influence by the lawyer or ill-considered action by the person being solicited. Without limitation, such circumstances will be deemed to exist as to the person solicited if that person is in the custody of a law enforcement agency or under treatment in a hospital, convalescent facility, or nursing home, or if that person's mental faculties are impaired in any way or for any reason. Notwithstanding the foregoing, such circumstances shall be deemed not to exist when a lawyer is discussing employment with any person who has, without solicitation by the lawyer or anyone acting for the lawyer, sought the lawyer's advice regarding employment of a lawyer.

(2) A lawyer shall not compensate, or give anything of value to, a person or organization to recommend or secure employment by a client, or as a reward for having made a recommendation resulting in employment by a client, except that a lawyer may pay for public communication permitted by these rules and may pay the usual and reasonable fees or dues charged by a lawyer referral service operated, sponsored, or approved by a bar association.

(3) A lawyer shall not knowingly assist or authorize any other person or organization to engage in conduct that would violate this rule if engaged in by the lawyer personally, nor shall a lawyer accept employment when the lawyer knows, or it is obvious, that the person who seeks the lawyer's services does so as a result of conduct prohibited under this rule.

(g) Suggestion of Need for Legal Services. A lawyer who has given unsolicited advice to a person that the person should obtain counsel or take legal action shall not accept employment resulting from that advice if:

(1) The advice embodies or implies a statement or claim that is false, fraudulent, misleading, or deceptive within the meaning of Rule 3.9(b), or that violates the regulations contained in Rule 3.9(c);

(2) The advice involves the use by the lawyer of any form of duress or intimidation,

unwarranted suggestions or promises of benefits, or deceptive, vexatious, or

harassing conduct; or

(3) The advice is given under circumstances that create an appreciable risk of undue influence by the lawyer or ill-considered action by the person being advised, within the meaning of Rule 3.9(f)(1)(iii).

(h) Definition. As used in Rule 3.9, "affiliated lawyer" refers to any kind of affiliation for the practice of law and includes, without limitation, partners and associates of a lawyer, lawyers employing a lawyer, lawyers "of counsel" to a lawyer or law firm, lawyers or law firms toward whom a lawyer is "of counsel," and lawyers with whom a lawyer shares offices or any expense or facility of a law practice, whether or not a partnership or any other affiliation exists.

3.10 PUBLIC INTEREST LEGAL SERVICE [DELETED] [ABROGATED]

3.11 [RESERVED] [ABROGATED]

3.12 PROFESSIONAL INDEPENDENCE OF A LAWYER [ABROGATED]

(a) Dividing Fees With Non-lawyers. A lawyer or law firm shall not share legal fees

with a non-lawyer, except that:

(1) An agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons.

(2) A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer.

(3) A lawyer or law firm may include non-lawyer employees in a retirement or compensation plan, even though the plan is based in whole or in part upon a profit-sharing arrangement; provided that the amounts paid to non-lawyer employees in addition to fixed salary 1) are not based upon business brought to the law firm by such employees, 2) are not based upon services performed by such employees in a particular case, and 3) do not constitute the greater part of the total remuneration of such employees.

(b) 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 unless direction or regulation occurs in the course of supervision by another lawyer who participates in the attorney-client relationship with the supervised lawyer.

(c) Partnership With Non-lawyers. A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.

(d) Co-ownership With Non-lawyers. A lawyer shall not practice law with or in the form of a corporation, limited liability company or other legal entity authorized to practice law for a profit, if:

(1) a non-lawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2) a non-lawyer is a corporate director or officer thereof; or

(3) a non-lawyer has the right to direct or control the professional judgment of a lawyer.

3.13 RESPONSIBILITY FOR COMPLIANCE WITH THE MAINE BAR RULES [ABROGATED]

(a) Responsibilities of a Partner or Supervisory Lawyer.

(1) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Code of Professional Responsibility.

(2) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Code of Professional Responsibility.

(3) A lawyer shall be responsible for another lawyer's violation of the Code of Professional Responsibility if:

(i) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(ii) the lawyer is a partner in the law firm, in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

(b) Responsibilities of a Subordinate Lawyer.

(1) A lawyer is bound by the Code of Professional Responsibility notwithstanding that the lawyer acted at the direction of another person.

(2) A subordinate lawyer does not violate the Code of Professional Responsibility if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

(c) Responsibilities Regarding Non-lawyer Assistants. With respect to a non-lawyer employed or retained by or associated with a lawyer:

(1) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(2) A lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

(3) A lawyer shall be responsible for conduct of such a person that would be a violation of the Code of Professional Responsibility if engaged in by a lawyer if:

(i) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(ii) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

3.14 SALE OR CESSATION OF LAW PRACTICE?[ABROGATED]

A lawyer or law firm may sell or purchase a law practice, including goodwill, if the selling attorney or each attorney in the selling firm has retired, become disabled or has died; or the selling attorney or each attorney in the selling firm has ceased to engage in the private practice of law in the State of Maine. The purchaser, who must be registered with the Board as an active member of the Bar of the State of Maine, assumes the obligations of an attorney to the client or clients whose files are transferred. The parties to the sale and purchase must comply with the other applicable provisions of these rules, and must satisfy the conditions of this rule. The estate of a deceased lawyer may be a seller.

(a) If the seller is or was a solo practitioner, then the entire law practice must be sold as a single unit. If the seller is or was a law firm, then the entire practice of the firm must be sold as a single unit. The entire law practice, for purposes of this rule, shall mean all client files, for open and closed engagements, excepting only those cases in which a conflict of interest is present or may arise.

(b) Written notice shall be given the Board of Overseers of the Bar and to each of the seller's clients (meaning those with whom the attorney then has open engagements) regarding:

(1) The proposed sale, including the name of the purchasing attorney or the names of the attorneys who practice within the purchasing firm;

(2) The terms of any proposed change in the fee arrangement authorized by paragraph (d);

(3) The client's right to retain other counsel or to take possession of the client's file; and

(4) That the client's consent to the transfer of the client's file to and representation by the purchaser will be presumed if the client does not take any action or does not otherwise object within ninety days of receipt of the notice.

If a client cannot be given notice, the transfer of the client's file and assumption of representation of that client may occur only after entry of an order by a single justice of the Maine Supreme Judicial Court which shall not issue without the Board of Overseers of the Bar having been given notice and an opportunity to be heard. The seller may disclose to the Board and the court, in camera, information relating to the representation only to the extent necessary to obtain an order authorizing the transfer of the client's file and of representation of the client.

(c) Further notice shall be given by publication in a newspaper of general circulation in each county in which seller has engaged in the practice of law, at least thirty days before the anticipated transfer of files. Such notice shall include the anticipated date of sale and identification of the purchasing lawyer or firm.

(d) The fees charged clients shall not be increased by the purchasing lawyer or firm by reason of the sale. The purchaser may, however, refuse to undertake the representation unless the client consents to pay the purchaser fees at a rate not exceeding the fees charged by the purchaser for rendering substantially similar services prior to the initiation of the purchase negotiations.

(e) Admission to or withdrawal from a partnership or professional corporation, retirement plans, and similar arrangements for a sale limited to the tangible assets of a law practice is not sale or purchase for the purposes of this Rule 3.14.

3.15 DEFINITIONS [ABROGATED]

(a) ?Law Firm.? Wherever used in these rules, unless the context requires a narrower meaning, "law firm" shall mean any legal entity or group associated by contract, however designated, that in fact provides legal services through lawyers, but shall not include a government agency or lawyers organized as a department within a government agency.

(b) ?Partner?. Wherever used in these rules, unless the context requires a narrower meaning, "partner" shall mean a member of a group, however designated, that exercises ultimate authority over the activities of a legal entity or contractual association through which legal services are provided by lawyers.

(c) ?Client.? Wherever used in these rules, ?client? refers to a person, public officer, or corporation, association or other organization or entity, either public or private, who is being rendered professional legal services by a lawyer.

(d) ?Prospective Client.? Wherever used in these rules, ?prospective client? refers to a person, public officer, or corporation, association or other organization or entity, either public or private, who consults a lawyer with the view of obtaining professional legal services from the lawyer.

(e) ?Former Client.? Wherever used in these rules, ?former client? refers to a client for whom the lawyer previously rendered and then terminated professional legal services, and for whom the lawyer is not currently rendering any such legal services.

RULE 4. BOARD OF OVERSEERS OF THE BAR

(a) The Board of Overseers of the Bar. The Court shall appoint a Board of Overseers of the Bar to act, as provided by these rules, with respect to the conduct and discipline of attorneys. The Board shall be composed of 9 members to be selected by the Court, of whom 3 shall be lay persons and 6 shall be members of the Bar of this State. The lay members shall be appointed by the Court on the recommendation of the Governor. The Court shall from time to time designate one member of the Board as Chair and another as Vice Chair. The Vice Chair shall perform the duties of the Chair in the absence or incapacity of the Chair.

(b) Term. Initial members of the Board shall serve as follows: three (one lay person and two attorneys) shall be appointed for a term of 3 years; three (one lay person and two attorneys) for a term of 2 years; and three (one lay person and two attorneys) for a term of 1 year. Appointments thereafter shall be for terms of 3 years. No member shall be appointed to more than 2 consecutive full terms but a member appointed for less than a full term (originally or to fill a vacancy) may serve 2 full terms in addition to such part of a full term, and a former member shall again be eligible for appointment after a lapse of 1 year.

(c) Board Action and Quorum. Five members shall constitute a quorum for any meeting of the Board. The Board may act through the concurrence or vote of a majority of the members present at a duly constituted meeting. After reasonable notice to all members and with the consent of all participating members, a meeting may be duly constituted and action taken by means of a conference telephone or similar communications equipment enabling all members participating in the meeting to hear one another. Meetings of the Board of Overseers shall be open to the public, except those portions of the meetings wherein the Board (i) consults with counsel pertaining to contemplated or pending litigation, proceedings pending before the Grievance Commission, the Fee Arbitration Commission, and/or the Court; (ii) considers matters pertaining to the personnel of the Board and/or appointments to the Board or its components; and/or (iii) considers other matters made confidential or private by these rules, court order, or law.

(d) Responsibilities and Authority. The Board of Overseers of the Bar:

(1) shall, subject to the Court's approval, appoint and compensate a chief Bar Counsel and such deputy, assistant and special counsel as may be required;

(2) may, subject to the Court's approval, appoint and compensate such administrative and secretarial personnel as are needed to assist the Board in the performance of its duties;

(3) shall, consistent with Rule 6, establish procedures for and supervise the registration of all attorneys admitted to the practice of law in this State;

(4) shall compile and keep current a register for the Court of all persons admitted as members of the Bar of the State of Maine, and a record of the death, or termination or suspension of the right of any such person to practice law in this State;

(5) shall recommend to the Court the amount of the annual fee to be assessed pursuant to Rule 10;

(6) shall enforce compliance by attorneys with these Rules and the procedures and regulations adopted thereunder;

(7) may investigate, through the office of the Bar Counsel, and act with respect to the conduct of any attorney within the Court's jurisdiction upon the complaint or request of the Court, upon its own motion or upon the complaint of any person, including any justice or judge. In furtherance hereof:

(A) The Board may conduct hearings on formal charges of misconduct and make findings and issue its recommendations with respect thereto; and

(B) The Chair of the Board, or in the absence of the Chair, the Vice Chair, may designate two attorney members and one lay member to sit and act for the Board in the exercise of its authority hereunder, notwithstanding the provisions of subdivision (c) of this Rule 4;

(8) may issue public reprimands to attorneys for misconduct and, in any case where suspension or disbarment of an attorney is to be sought or recommended, shall file an information with the Court;

(9) shall appoint at least 12 persons, not less than one-third of whom shall be lay persons and the balance (as close to two-thirds as may be) of whom shall be members of the Bar of this State, as a Grievance Commission, to conduct such hearings and to perform such other functions as may be provided for under these rules or assigned by the Board with reference to charges of misconduct;

(10) may refer to the Grievance Commission any grievance other than one involving a member of the Grievance Commission or a grievance which the Board, in its judgment, deems to be a matter of grave public concern;

(11) [Abrogated.]

(12) shall appoint at least 15 persons, not less than one third of whom shall be lay persons and the balance (as close to two-thirds as may be) of whom shall be attorneys who are admitted to the Bar of this State, as a Fee Arbitration Commission, to perform such functions as may be assigned to it by the Board with reference to fee disputes, consistent with Rule 9 hereof. In addition, the Board may appoint any number of lay alternate members to the Fee Arbitration Commission;

(13) may consult with State and local Bar Associations and their officers concerning any appointments which it is herein authorized to make;

(14) may, subject to the Court's approval, lease, purchase, improve or acquire equipment, supplies, office space, and real property, and make contracts and arrangements for the performance of administrative and other services required or appropriate in the performance of the Board's duties.

(14)(A) may, subject to the Court's approval, finance the acquisition and improvement of real property and, in furtherance thereof, execute and deliver promissory notes to evidence the Board's indebtedness and mortgages and related financing documents to secure the Board's debts. The Board Chair, or such other designee of the Board, in that capacity, at the time of such lease, purchase, or financing shall have the authority to execute any such documents on behalf of the Board.

(15) may invest or direct the investment of the fees or any portion thereof, received pursuant to these rules, and may cause funds to be deposited in any federally insured bank or financial institution in this State, provided, however, that the Board shall have no obligation to cause such fees or any portion thereof to be invested;

(16) shall prepare and file with the Court for approval in May of each year its budget for the next fiscal year, with its recommendation as to the amount of annual fee to be assessed pursuant to Rule 10;

(17) shall have the responsibility for establishing procedures for, and supervising, a continuous study of the Bar in its relation to the public and the courts for the purpose of making recommendations to the Court with respect to changes, additions or deletions in these rules or for such other action by the Court as it may deem advisable in its superintendence of the Bar. In furtherance hereof, the Board may establish or designate such commissions, agencies, or persons, to assist its study as it shall deem

advisable;

(18) may adopt and publish its own rules of procedure and such regulations as are not inconsistent with these rules;

(19) may perform other acts necessary or proper in the performance of the Board's duties under these rules;

(20) shall appoint 8 attorneys who are admitted to the Bar of this State, as a Professional Ethics Commission, to perform such functions as may be assigned to it by the Board consistent with Rule 11;

(21) shall adopt the fiscal year used by the Judicial Department;

(22) shall, subject to the Court's approval, adopt personnel and financial policies and procedures, including accounting controls, purchasing, expense vouchering, and capital equipment inventories;

(23) shall, by April 1st of each year, furnish to the State Tax Assessor the names, addresses, social security or federal identification numbers, and other identifying information as the State Tax Assessor, may by rule require, of all attorneys registered with the Board.

(24) Shall receive and act on applications of organizations for approval to recognize, designate or certify attorneys admitted to practice in the State of Maine as having expertise in one or more areas of law. In furtherance hereof:

(A) The Board shall by regulation provide a procedure for the submission of applications for approval by organizations desiring to certify expertise, or by one or more attorneys admitted to practice in this State who seek approval for such an organization. The Board shall approve an organization if it finds that the organization:

(i) Accepts and impartially decides on applications for certification from all lawyers licensed to practice in the jurisdictions served by the organization;

(ii) Applies to all applicants objective and consistent standards relevant to the determination of special competence in one or more particular fields of law;

(iii) Bases its decisions on an examination, investigation, or other procedures offering reasonable assurance of accuracy in ascertaining whether the standards have been met; and

(iv) Is governed or managed by attorneys possessed of expertise equivalent to the expertise certified or otherwise recognized by that organization.

(B) The Board may provide for the investigation of applications submitted to it under this paragraph by, or under the direction of, Bar Counsel and may invite public comment on any application.

(C) The Board may conduct hearings on applications for approval either as a committee of the whole or by delegation to three or more of its members.

(D) The Board may approve without further investigation an organization that has been approved by the American Bar Association (ABA), if the Board finds that the ABA has applied criteria similar to those set forth in subparagraph (A).

(E) The Board may at any time revoke its approval of any application upon finding that the organization no longer meets the requirements of subparagraph (A).

(e) Immunity. Members of the Board, its staff and its Commissions shall be immune from liability for any conduct in the course of their official duties under any provision of the Maine Bar Rules.?

RULE 5. BAR COUNSEL

(a) Qualifications. Bar Counsel shall be admitted to the Bar of this State and a full-time employee of the Board. Bar Counsel shall not be otherwise engaged in the practice of law, directly or indirectly, while so employed. As used anywhere in the Bar Rules, the term Bar Counsel includes any Deputy Bar Counsel, Assistant Bar Counsel or special counsel approved by the Court under Bar Rule 4(d)(1) for such appointment.

(b) Duties; Grievance.

(1) Investigation. Bar Counsel shall investigate all matters involving alleged misconduct by an attorney subject to these rules.

(2) Disposition. Bar Counsel shall dispose of all matters involving alleged misconduct by an attorney in accordance with these rules and such additional rules and regulations as may be issued by the Board.

(3) Appeal. Bar Counsel may appeal to the Board from action of the Grievance Commission if inconsistent with Bar Counsel's recommendations.

(4) Prosecution. Bar Counsel shall prosecute all disciplinary proceedings before the Grievance Commission, the Board, and the Court.

(5) Hearings. Bar Counsel shall appear at hearings conducted with respect to motions for reinstatement by suspended or disbarred attorneys, with full rights to participate as a party.

(c) Duties; Other. Bar Counsel shall perform such administrative and professional services as the Board may request on behalf of itself, the Fee Arbitration Commission or the Professional Ethics Commission.

(d) Records. Bar Counsel shall permanently retain all orders, reports and letters imposing any sanction against an attorney and all reports on decisions issued after any disciplinary hearing, as well as all fee awards and dismissal orders in matters docketed with the Fee Arbitration Commission, and all petitions, orders, decisions or reports concerning petitions for reinstatement. Initial complaint filings shall be retained for 10 years from the final disposition date in all disbarment, suspension or resignation matters, and for 6 years from the final disposition date in all other grievance complaints heard or reviewed that resulted in any other disposition except dismissal. Petitions for fee disputes that proceed to hearing with an award being issued by the Fee Arbitration Commission shall be retained for 6 years from the date of the award. After 2 years from the final disposition date, Bar Counsel shall expunge all file documents or other evidence of the existence of grievance complaints dismissed pursuant to either Rule 7.1(c), 7.1(d)(3), 7.1(e)(3)(A), 7.2(b)(5) or fee petitions dismissed pursuant to Rule 9. Such expungement of records shall also occur 1 year after the date of the death of an attorney having any record of grievance complaints. Notwithstanding any required expungement of documents, the Board shall permanently maintain a summary of all docketed complaint matters processed by Bar Counsel containing the name of the complainant and respondent-attorney, the disposition, and the respective dates the matter was opened and closed. After a complaint file has been so expunged, any Board response to an inquiry from the complainant or respondent will be that the file contents have been expunged and only non-substantive docketing and disposition information ha been retained; any Board response to any other inquiry about the matter shall state that there is no public record of such matter.

(e) Delegation. Bar Counsel may delegate any duties or functions to any duly appointed deputy or assistant counsel acting under Bar Counsel's general supervision.

(f) Matters Referred by the Attorney General. Bar Counsel shall keep the Attorney General informed of the result of all investigations, and any action taken thereon, relating to any matter referred to either the Board or Bar Counsel by the Attorney General.

(g) Immunity. Bar Counsel, any Deputy Bar Counsel, Assistant Bar Counsel, special counsel and the Board?s staff shall be immune from liability for any conduct in the course of their official duties under any provision of the Maine Bar Rules.

RULE 6. REGISTRATION; LIST OF TRUST ACCOUNTS

(a) Required Filings.

(1) Registration Statement. Every attorney admitted to practice in this State, except attorneys who have notified the Board that they are members of the armed forces of the?United States who are on active duty outside of the state of Maine, shall upon admission and each year thereafter, file with the Board a registration statement setting forth the attorney's current residence and office addresses, Social Security or federal identification number, and such other identifying information as the State Tax Assessor may by rule require; the date of the attorney's admission to the Bar of the Court; the facts concerning the attorney's admission to practice in any other jurisdiction including each federal court and administrative body where admitted; and such other information as the Court or the Board may direct. The statement shall disclose whether the attorney is in good standing in each jurisdiction to which admitted and, if the attorney is not in good standing in any jurisdiction, it shall contain an explanation of the circumstances. In addition to such registration statement, every attorney shall file a supplemental statement of any change in the information previously submitted within 30 days of such change. Within 30 days of the receipt of a registration statement or supplement thereto filed by an attorney, the Board shall acknowledge receipt thereof in order to enable the attorney on request to demonstrate compliance with the requirement of this rule. Registration statements shall be filed and payment of requisite fees imposed by Rule 10 shall be made on or before August 31 by every attorney admitted to practice in this state except that if the following July is fewer than four months from the date of admission, the next filing shall be the second July following the date of admission. With the registration statement every attorney admitted to practice in this state shall submit a signed written report documenting compliance with the continuing legal education requirements of Rule 12(a) by providing the Annual Report statement required by Rule 12(b)(1). Registration statements, Annual Report statements, and payments postmarked after August 31 will be considered late causing a $25.00 surcharge per statement to be assessed upon and payable by the attorney.

Justices of the Maine Supreme Judicial Court, Justices of the Maine Superior Court, Judges of the Maine District Court, Maine Family Law Magistrates, Judges and Magistrates of the United States District?Court of Maine,?Maine Judges of the United?States Court of?Appeals for the First?Circuit, and Judges of the United?States?Bankruptcy Court District of Maine shall not be required to file a registration statement or pay an annual fee during their tenure in office, but they shall remain on the roll of attorneys in judicial status, and may retire in judicial status or resume active practice upon completion of their tenure in office by filing a registration statement and paying the annual fee required for the year in which active practice is resumed.

(2) List of Trust Accounts. A lawyer or law firm that maintains one or more trust accounts in accordance with either Rule 3.6(e)(4) or Rule 3.6(e)(5) shall, not later than July 31, 1994, file with the Board a list of all such accounts maintained as of July 1, 1994, indicating the account number of each account and the financial institution where it is maintained. Thereafter, annually in conjunction with the filing of the annual registration statement, a lawyer or law firm maintaining an account or accounts under Rule 3.6(e)(4) shall report to the Board the account number and financial institution of any account added to or deleted from the list of accounts during the preceding 12 months; and a lawyer or law firm maintaining an account or accounts under Rule 3.6(e)(5) shall file with the Board a list of all such accounts maintained as of July 1 of the current year, indicating the account number and financial institution of each.

(3) Receipt of Voluntary Contributions. As part of its notification to attorneys to file annual registration statements, the Board may invite attorneys to make a voluntary contribution to the Campaign for Justice to assist in the funding of legal services for low income individuals. The Board may also provide a means for making the voluntary contribution at the same time that the annual fee is paid and is authorized to utilize its administrative staff and facilities to receive these voluntary contributions and forward them to the Campaign for Justice.

(b) Failure to File Registration Statement, to File State Tax Returns, to Comply With a Support Order, to File an Unemployment Tax Return, to Pay an Unemployment Tax Assessment or to Comply With an Award of the Fee Arbitration Commission.

(1) Failure to File Registration Statement. Any attorney who fails to file the registration statement or any supplement thereto in accordance with the requirements of (a) above by August 31 is automatically suspended. Notice of the suspension shall be given by the Board by registered or certified mail, and return receipt requested, addressed to the office or home address last known to the Board. Such suspension for failure to file the statement or supplement thereto shall not be effective until thirty (30) days after the date of mailing the notice thereof. The failure to file shall not be considered a violation of the Code of Professional Responsibility per se, and the suspension for failure to file shall not constitute the imposition of discipline. An attorney who, after the date of the mailing of such notice of suspension but before the effective date of such suspension, files the statement or any supplement thereto as required by subdivision (a) of this rule shall be deemed to be in compliance with this rule and shall not be suspended for failure to file such statement or supplement or certificate; otherwise the attorney shall be subject to Maine Bar Rules 7.3(i)(2) and (j). An attorney aggrieved as a result of a suspension under this paragraph may apply to the Board Chair for summary relief for good cause shown.

(2) Failure to File State Tax Returns. Whenever, pursuant to section 175 of Title 36 of the Maine Revised Statutes, the State Tax Assessor notifies the Board of the Assessor's finalized determination to prevent renewal or reissuance of a "license or certificate of authority" for an attorney to practice law, the Board shall refuse to process any registration statement filed by such attorney after such notification from the State Tax Assessor and such attorney is automatically suspended. The failure to file such a state tax return or to pay any tax liability due as referred to in such notification from the State Tax Assessor shall not be considered a violation of the Code of Professional Responsibility per se and the suspension due to the reported failure to file such return or to pay any overdue tax liability shall not constitute the imposition of discipline. Notice of the receipt of such notification from the State Tax Assessor of such finalized determination and of the suspension shall be given by the Board to the attorney by registered or certified mail, and return receipt requested, addressed to the office or home address last known to the Board of Overseers of the Bar. Such suspension for reported failure to file the state tax return or to pay any overdue tax liability shall not be effective until thirty (30) days after the date of mailing the notice thereof. An attorney who, after the date of the mailing of such notice of notification and suspension but before the effective date of such suspension, files with the Board a certificate issued by the State Tax Assessor that the attorney is currently in good standing with respect to any and all returns and tax liability due shall be deemed to be in compliance with this rule and shall not be suspended for failure to file such state tax returns or to pay any overdue tax liability; otherwise the attorney shall be subject to Maine Bar Rules 7.3(i)(2) and (j). An attorney aggrieved as a result of a suspension under this paragraph may apply to the Board Chair for summary relief for good cause shown.

(3) Failure to File List of Trust Accounts. Any attorney practicing alone who fails to file a list of trust accounts in accordance with paragraph (2) of subdivision (a) of this rule, or any attorney who is a member of a law firm that fails to file such a list, is automatically suspended in the manner and on the terms and conditions provided in paragraph (1) of this subdivision for failure to file a registration statement.

(4) Failure to Comply with a Support Order. Whenever, pursuant to section 2201 of Title 19-A of the Maine Revised Statutes, the Department of Human Services certifies in writing to the Board that, in compliance with the statutory procedure: A) the Department has determined that an attorney is in noncompliance with a support order: and B) the attorney has failed to appeal the Department's decision; or C) a final judgment has been entered against the attorney on the attorney's petition for judicial review, the Board shall refuse to process any registration statement filed by such an attorney after such notification from the Department, and such attorney is automatically suspended. Certification by the Department of an attorney's failure to comply with a support order shall not constitute violation of the Code of Professional Conduct per se, although the Board may institute separate proceedings to determine whether discipline is appropriate. Suspension after certification of noncompliance by the Department shall not constitute the imposition of discipline. Notice of the receipt of such certification from the Department and of the suspension shall be given by the Board to the attorney by registered or certified mail, and return receipt requested, addressed to the office or home address last known to the Board of Overseers of the Bar. Such suspension for reported failure to comply with a support order shall not be effective until thirty (30) days after the date of mailing the notice thereof. An attorney who, after the date of mailing of such notice of certification and suspension but before the effective date of such suspension, files with the Board written confirmation by the Department of compliance with the support order shall not be suspended for failure to comply; otherwise the attorney shall be subject to Maine Bar Rules 7.3(i)(2) & (j). An attorney aggrieved as a result of a suspension under this paragraph may apply to the Board Chair for summary relief for good cause shown.

(5) Failure to File an Unemployment Tax Return or to Pay an Unemployment Tax Assessment. Whenever, pursuant to section 1232 of Title 26 of the Maine Revised Statutes, the State Commissioner of Labor or Director of Employment Security certifies in writing to the Board that: (1) the Commission has determined in compliance with the statutory procedure that an attorney is in noncompliance with the unemployment compensation statute, and (2) the attorney has either failed to pursue an appeal from the Commission's decision or a judgment has been entered against the attorney on the attorney's petition for judicial review; the Board shall refuse to process any registration statement filed by such an attorney after such notification from the Commission and such attorney is automatically suspended. Certification by the Commission of an attorney's failure to comply with the unemployment compensation statute shall not constitute violation of the Code of Professional Conduct per se, although the Board may institute separate proceedings to determine whether discipline is appropriate. Suspension after certification of noncompliance by the Commission shall not constitute the imposition of discipline. Notice of the receipt of such certification from the Commission and of the suspension shall be given by the Board to the attorney by registered or certified mail, and return receipt requested, addressed to the office or home address last known to the Board of Overseers of the Bar. Such suspension for reported failure to comply with the unemployment compensation statute shall not be effective until thirty (30) days after the date of mailing the notice thereof. An attorney who, after the date of mailing of such notice of certification and suspension but before the effective date of such suspension, files with the Board written confirmation by the Commission of compliance with the statute shall not be suspended for failure to comply; otherwise the attorney shall be subject to Maine Bar Rules 7.3(i)(2) & (j). An attorney aggrieved as a result of a suspension under this paragraph may apply to the Board Chair for summary relief for good cause shown.

(6) Failure to Comply With an Award of the Fee Arbitration Commission. When a matter involving an award of a panel of the Fee Arbitration Commission is referred to Bar Counsel under Rule 9(i) because of the attorney's failure to make an awarded refund to the petitioner within 30 days of receipt of the arbitration award, the Board, upon request of Bar Counsel and after affording the attorney an opportunity to respond in writing, may refer the matter to the Court for appropriate disciplinary action.

(c) Notification of Discontinuance of the Practice of Law, Request for Reinstatement, and Arrearage Registration Payment.

(1) Notification of Discontinuance of the Practice of Law. Any Maine attorney not the subject of disciplinary investigation under Rule 7.1(d) or of disciplinary proceedings as authorized or pending under Rule 7.1(e) may advise the Board in writing of a desire to completely discontinue the practice of law in Maine and be placed on inactive status. Upon the filing of such notice, the attorney shall no longer be eligible to practice law in Maine or allowed in any manner to indicate or advertise an authority to so practice in Maine, but shall be required to file annual registration statements with the Board for three (3) years thereafter in order that the attorney can be located by the Board of Bar Counsel. During that three (3) year period the attorney shall remit to the Board an annual registration fee in an amount equal to one-half the fee required of a similarly situated active attorney under Rule 10. The attorney shall also comply with the provisions of Rule 7.3(i)(2).

(2) Withdrawal from Maine practice. Any Maine attorney currently registered in good standing under Rule 6(a) and not the subject of any investigation under Rule 7.1(c) or (d) or of any disciplinary proceedings under Rule 7.1(e), may provide written notice to the Board of withdrawal from Maine practice. Such notice shall include a current mailing address and telephone number of the attorney, and the effective date of that withdrawal. The withdrawing attorney shall also comply with the provisions of Rule 7.3(i)(2), and shall not subsequently return to the practice of law in Maine without first complying with the requirements of subsection (c)(3) of this Rule and applicable portions of Maine Bar Admission Rule 10.

(3) Request for Reinstatement. Prior to resuming active practice in Maine, an inactive attorney or an attorney who has withdrawn from practice in Maine must petition the Board Chair and provide persuasive evidence of compliance with the factors as enumerated under Rule 7.3(j)(5)(A), (B), (D), (E) & (F).

(4) Arrearage Registration Payment. In addition to all other requirements, an inactive attorney or an attorney who has withdrawn from practice now seeking reinstatement shall remit to the Board a $ 125.00 reinstatement fee and an arrearage registration payment equal to the total fee that the attorney would have been obligated to pay the Board under Rule 10 had the attorney remained actively registered to practice in Maine during that period of inactive or withdrawn status, minus a credit for the total payment made by the attorney for the first three years of the inactive period but not more than $1,000.00.

(d) Emeritus Attorney Status.

(1) Purpose. To provide a licensing status to allow attorneys retired from the active practice of law to provide pro bono publico services to the indigent through recognized legal services organizations.

(2) Application. Any attorney who has discontinued the practice of law and who has given the notice required by Maine Bar Rule 6(c)(1) but who wishes to provide pro bono publico legal services without compensation or expectation of compensation shall advise the Board by filing an emeritus status statement indicating he or she will limit his or her active legal practice to providing pro bono publico legal services under the auspices of an approved legal service organization, as defined below. The emeritus status statement shall be signed by an authorized representative of the approved legal services organization under whose auspices the attorney will provide such legal services. Unless the Board of Overseers of the Bar objects within 30 days, the attorney may begin providing pro bono services after filing such a statement. An attorney who has assumed emeritus attorney status shall not be relieved of his or her obligation under Maine Bar Rule 6(c)(1) to file annual registration statements and remit annual registration fees pursuant to Maine Bar Rule 6(c)(1).

(3) Definition of Approved Legal Services Organization. For purposes of this Rule, an approved legal services organization shall include a pro bono publico legal services program sponsored by a court-annexed program, the Maine State Bar Association, the University of Maine School of Law, or a not-for-profit organization that provides legal services to persons of limited means and that receives funding from the federal Legal Services Corporation, the Maine Bar Foundation, or the Maine Civil Legal Services Fund, and in addition, shall include any not-for-profit legal services organization designated as an approved legal services organization after petition to the Supreme Judicial Court.

(e) Register of Attorneys. Based upon the information made available to the Board by the filing of the statements provided for under this rule, or otherwise, and upon such other investigatory procedures as may be established by the Board, consistent with these rules, the Board shall compile and keep current a register for the Court of all persons admitted as members of the Bar of this state, and records of the death or other termination or suspension of the right of any attorney to practice law in this state. The Board shall assign a Bar Number to every admitted attorney. When attorneys change their business or home contact information, the updated information must be supplied by the attorney within 30 days to the?Board and to the Office of Information Technology of the?Administrative Office of the Courts. An attorney?s social security number shall not be made available by the Board to the public. For the protection of the public, the Board's records must contain an address, which may be a post office box address, for every attorney, which address shall be made available to the public. The Board will only disclose an attorney's home address if no current office address or post office box address is provided. All other information contained in such register and records shall be available to the public subject to Board Regulations and policies.

(f) Removal From Register. Upon the filing of a notice that an attorney wishes to assume inactive status, the attorney shall be removed from the roll of those classified as active until and unless the attorney requests reinstatement to the active roll and pays for the year of reinstatement the fee imposed by Rule 10.

(g) Forms. The Board shall prepare and make available through its offices approved registration statement forms and change of address forms which shall be used by attorneys in complying with this rule.

RULE 7. GRIEVANCE COMMISSION, PROCEDURES AND DISCIPLINE

(a) Term. Initial members of the Grievance Commission shall serve as follows: 3 of its members (one lay person and two attorneys) shall be appointed for a term of 4 years; 3 of its members (one lay person and two attorneys) for a term of 3 years; 3 of its members (one lay person and two attorneys) for a term of 2 years; and 3 of its members (one lay person and two attorneys) for a term of 1 year. Appointments thereafter shall be for terms of 4 years. No member shall be appointed to more than 2 consecutive full terms but a member appointed for less than a full term (originally or to fill a vacancy) may serve two full terms in addition to such part of a full term, and a former member shall again be eligible for appointment after a lapse of one year. The Board shall appoint the Chair and the Vice Chair of the Grievance Commission each year from among the members of the Commission.

(b) Quorum and Action by Panels.

(1) Except as provided in paragraph (2) of this subdivision, a quorum shall exist for the purposes of the Commission's exercise of its authority and duties when a majority of its members are present. The concurrence of a majority of such members present shall be sufficient for any action taken.

(2) The Commission shall be divided by its Chair or Vice Chair into panels of three members each, one of whom in each panel shall be a lay member, to sit and act for the Grievance Commission in the exercise of the authority and duties of the Commission. The Chair or Vice Chair shall designate one member of each panel as Panel Chair, or Acting Chair, as needed. The Grievance Commission panels shall be separately designated and assigned to perform their functions under Rules 7.1(d), (e) on a rotating basis approved by the Chair or Vice Chair.

(3) On a rotating basis with lay members of the Board, lay members of the Commission shall review matters submitted under Rule 7.1(c)(1).

(4) In the event of unavailability of any of the named panel members, the Chair, Vice Chair or a designated Board staff member may assign other members of the Commission to serve on a panel at a preliminary review or public disciplinary proceeding.

(5) If in agreement as to disposition, a majority of two panel members, one of whom being the lay member, may act for the panel on matters considered at a preliminary review, due to reasons of conflict or disqualification of the other panel member.

(6) One attorney member and one lay member of a panel may conduct a public disciplinary proceeding for the panel with the consent of both Bar Counsel and the respondent attorney.

(7) After reasonable notice to all members of the Grievance Commission, or to all members of one of its respective panels, as applicable, and with the consent of all participating members therein, a meeting of the Grievance Commission or a preliminary review by one of its respective panels may be duly constituted and action taken by means of a conference call or similar communications equipment enabling all members participating to hear one another.

(c) Authority and Duties. Panels of the Commission:

(1) shall review and may approve or modify recommendations to it by Bar Counsel for dismissals, dismissals with warnings, and public disciplinary proceedings by Commission panels to consider the issuance of public reprimands or the institution of formal charges;

(2) shall conduct public disciplinary proceedings on charges of misconduct and make findings and issue recommendations with respect thereto; may issue public reprimands for attorney misconduct; and, in any case where discipline of an attorney by the court is found to be required, shall direct Bar Counsel to file an information with the court; and

(3) shall have such other powers, authority and duties not inconsistent with these Rules, as shall be delegated or granted by the Board.

(d) Board Jurisdiction. Any authority or duty of the Grievance Commission or a panel thereof may at any time be assumed and acted upon by the Board on its own motion or at the direction of the Court. The Board may adopt or modify any action recommended directly to it by Bar Counsel or by the Grievance Commission, or direct that a proceeding be instituted before the Grievance Commission.

(e) Procedure [Abrogated].

RULE 7.1 DISCIPLINARY PROCEEDINGS BEFORE THE GRIEVANCE COMMISSION AND THE BOARD

(a) Complaint. Any person may submit to the Board a signed, written complaint alleging misconduct by an attorney subject to these rules.

(b) Investigation. Bar Counsel shall investigate all complaints of attorney misconduct submitted in accordance with Rule 7.1(a), except that any such complaint alleging misconduct by an attorney member of the Board or Grievance Commission, or by any attorney employed at the office of Bar Counsel, shall be forwarded directly to the Chair of the Board, or the Vice Chair of the Board, or the Chair of the Grievance Commission in those cases when the Chair and Vice Chair are not able, to act in place of Bar Counsel for conducting an investigation and subsequent disposition pursuant to this Rule or such other Court Rules and Board Regulations governing the Board and Grievance Commission in the processing of grievance complaints.

(c) Dismissal by Bar Counsel.

(1) Dismissal and Review. Bar Counsel shall dismiss any complaint if Bar Counsel concludes, with or without investigation, that the matter does not constitute misconduct subject to sanction under these rules. Bar Counsel shall notify the complainant and the attorney of the dismissal in writing. The notification shall briefly and generally state the reasons for dismissal and shall advise the complainant that, upon written request made within 14 days of receipt of the notification, the dismissal will be reviewed by a lay member of the Board or of the Grievance Commission. The reviewing lay person shall approve, disapprove, or modify the terms of the dismissal. Bar Counsel shall notify the complainant and the attorney in writing of the reviewing lay person's action, with a general statement of the reasons therefor and any further action to be taken by Bar Counsel under these rules. If Bar Counsel elects to investigate the matter and in so doing receives a written response from the involved attorney, Bar Counsel may provide that response to the complainant.

(2) Bar Counsel Files. Except as provided and authorized by Rule 7.3(k)(3), information contained in Bar Counsel Files shall not be reported in response to inquiries made to the Board as to the good standing or disciplinary record of any attorney and shall not be used in any subsequent proceedings before the Board or Grievance Commission, or the Court.

(d) Preliminary Grievance Panel Review.

(1) Bar Counsel Action.

(A) If a complaint is not dismissed pursuant to Rule 7.1(c)(1), Bar Counsel shall present the complaint and a recommended disposition to a panel of the Grievance Commission selected as provided in Rule 7(b)(2) for preliminary review pursuant to this subdivision (d). Any attorney who is the subject of the complaint shall be given a copy of the complaint and upon Bar Counsel's request, shall submit to Bar Counsel an informal response for consideration by the reviewing panel. Bar Counsel may submit the response to the complainant for reply. Bar Counsel shall recommend either dismissal of the complaint, dismissal of the complaint with a warning, or commencement of public disciplinary proceedings before a different panel of the Grievance Commission pursuant to Rule 7.1(e)(1)-(5). The attorney and complainant shall be notified of Bar Counsel's recommended disposition.

(B) The attorney may, within 14 days of receipt of notification of the recommended disposition, submit in writing a waiver of preliminary review and a demand that Bar Counsel commence public disciplinary proceedings. Bar Counsel shall thereupon prepare and present a formal petition for disciplinary action before a panel of the Grievance Commission pursuant to Rule 7.1(e)(1)-(5). The complainant shall be notified of Bar Counsel's action.

(2) Grievance Commission Panel Review. Preliminary review before a panel of the Grievance Commission shall not be open to the public and shall be confidential. Neither the complainant nor the attorney shall be present. The panel shall review the complaint, any response submitted by the attorney, any reply submitted by the complainant, the results of Bar Counsel's investigation, and Bar Counsel's recommended disposition.

(3) Same: Dismissal. If the reviewing panel does not find probable cause to believe that misconduct subject to sanction under these rules has occurred, the panel shall dismiss the complaint. Bar Counsel shall notify the complainant and the attorney of the dismissal in writing, briefly and generally stating the reasons for the dismissal. All complaints dismissed pursuant to this paragraph shall be retained on file by Bar Counsel on the terms and conditions provided by Rule 7.1(c)(2) for complaints dismissed by Bar Counsel.

(4) Same: Dismissal With a Warning.

(A) If the reviewing panel finds probable cause to believe that misconduct subject to sanction under these rules has occurred; that the misconduct is minor; that there is little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by the attorney, the panel may direct Bar Counsel to dismiss the complaint with a warning. Bar Counsel shall deliver notice of the dismissal and the terms of the warning in writing personally or by mail to the attorney and shall notify the complainant of the fact that the complaint has been dismissed with a warning, briefly and generally stating the reasons for that disposition.

(B) Dismissal with a warning is not discipline. A complaint dismissed with a warning shall not be reported in response to inquiries made to the Board as to the good standing or disciplinary record of an attorney, nor need an attorney report or disclose the same in any inquiry made to or of such attorney with respect to the imposition of any disciplinary action. The fact that a previous complaint was dismissed with a warning may be used in subsequent preliminary panel reviews or public disciplinary proceedings only after a finding of misconduct in the subsequent matter, and only as evidence of prior misconduct bearing upon the gravity of the sanction to be imposed in the subsequent review or proceedings.

(C) A dismissal with a warning after preliminary review under this paragraph (4) may not be appealed to the Board by the attorney, the complainant, or Bar Counsel and is not subject to judicial review. The attorney may, within 14 days after receipt of notice of dismissal with a warning, demand in writing that Bar Counsel commence public disciplinary proceedings. The dismissal with warning shall thereupon be vacated, and Bar Counsel shall prepare and present a formal petition for disciplinary action before a different panel of the Grievance Commission pursuant to Rule 7.1(e)(1)-(5). The complainant shall be notified of Bar Counsel's action.

(5) Same: Probable Cause for Further Proceedings. If the reviewing panel finds probable cause to believe that misconduct subject to sanction under these rules has occurred for which a public reprimand should be issued or an information seeking suspension or disbarment should be filed, the panel shall direct Bar Counsel to prepare and present a formal petition for disciplinary action before a different panel of the Grievance Commission pursuant to Rule 7.1(e)(1)-(5). The complainant shall be notified of the reviewing panel's action.

(e) Public Disciplinary Proceedings Before a Grievance Commission Panel.

(1) Petition; Service and Answer. Bar Counsel shall commence public disciplinary proceedings by filing a petition for disciplinary action before a panel of the Grievance Commission selected as provided in Rule 7(b)(2). The petition shall set forth specific charges of alleged misconduct. A copy of the petition, together with a notice setting a time for answer that shall be not less than 20 days after service, shall be served by Bar Counsel upon the respondent attorney either by registered or certified mail, with return receipt requested, or by any method provided in Rule 4 of the Maine Rules of Civil Procedure. The respondent attorney shall file an answer within the stated time. In the event that the respondent attorney fails to file an answer, the facts set forth and the misconduct alleged in the petition shall be taken as admitted, but the respondent attorney may be heard on the question of sanctions.

(2) Hearing.

(A) The disciplinary panel shall hold a hearing on the petition. The Board shall serve notice of the time and place of hearing on the respondent attorney and the complainant either by regular mail or by registered or certified mail, with return receipt requested, at least 15 days in advance of the date thereof.

(B) The hearing shall be open to the public, except that to protect the interests of a complainant, witness, third party or respondent attorney, the panel may, upon application and for good cause shown, issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential and direct that the proceedings be conducted so as to implement that order. The deliberations of the panel following any hearing under this subdivision shall not be open to the public. The decision of the panel following any hearing under this subdivision shall be made available to the public.

(C) At the hearing, Bar Counsel shall present such evidence as Bar Counsel deems appropriate and may cross-examine witnesses. The respondent attorney may be represented by counsel, may cross-examine witnesses, and may present evidence. Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The panel may exclude irrelevant or unduly repetitious evidence. The Board shall cause all proceedings before the panel to be stenographically or electronically recorded in a form that will readily permit transcription.

(D) The Chair of the Panel of the Grievance Commission conducting the hearing shall preside and have the power to control the course of proceedings and regulate the conduct of those individuals appearing as counsel, parties, or witnesses. The failure of an attorney participating in such a hearing as a party, counsel for a party, or as a witness to obey an order of the Chair shall constitute a violation of Maine Bar Rule 3.2(f), and if committed by a respondent attorney may be duly considered by the panel in its disposition of the matter before it.

(E) Subject to approval by the Chair of the Panel, all of the hearing formalities of this Rule may be waived by a signed, stipulated agreement of the parties. When such a waiver includes or incorporates the parties? submission of an agreed proposed sanction order, that waiver shall also contain the respondent attorney?s signed waiver of the right to file a petition for review under Rule 7.2.(a).

(3) Grievance Commission Panel Determination.

(A) Dismissal. The disciplinary panel shall dismiss the petition if it finds, on the evidence and arguments presented, that no misconduct subject to sanction under these rules occurred.

(B) Dismissal With A Warning. If the disciplinary panel finds that misconduct subject to sanction under these rules has occurred; that the misconduct is minor; that there is little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by the attorney, the panel may dismiss the complaint with a warning having the effect and consequences provided in Rule 7.1(d)(4)(B). The attorney may obtain review by the Board of any objection to the warning or its terms as provided in Rule 7.1(e)(5).

(C) Public Reprimand or Information. If the disciplinary panel finds that misconduct subject to sanction under these rules has occurred and that none of the conditions set forth in subparagraph (B) of this paragraph is present, the panel shall either issue a public reprimand to the respondent attorney or, upon a finding of probable cause for suspension or disbarment, shall direct Bar Counsel to commence an attorney discipline action by filing an information pursuant to Rule 7.2(b). In determining the appropriate sanction, the panel shall consider the following factors among others: (i) whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession; (ii) whether the attorney acted intentionally, knowingly, or negligently; (iii) the amount of actual or potential injury caused by the attorney's misconduct; and (iv) the existence of any aggravating or mitigating factors. In the event that the panel determines that any proceedings should be concluded by public reprimand, it shall arrange through Bar Counsel for delivery of the reprimand to the respondent attorney in person or otherwise. The respondent attorney may petition the Court for review of the reprimand as provided in Rule 7.2(a).

(4) Report of Findings and Actions. The disciplinary panel shall report promptly to the Board its findings, determinations and actions, together with a record of the proceedings before it. A copy of the report shall be forwarded to the respondent attorney, and counsel, if any.

(5) Objections to the Panel Report.

(A) By Respondent Attorney. Within 21 days after delivery of notice of a dismissal of a complaint with a warning, the respondent attorney may file with the Board an objection to the warning or its terms, giving notice to Bar Counsel.

(B) By Bar Counsel. Within 21 days of receipt of the report of the disciplinary panel, Bar Counsel may file with the Board an objection to the findings and recommendations of the report, giving notice to the respondent attorney.

(C) Procedure Upon Objections. The Board shall set dates for submission of oral arguments, unless waived, by Bar Counsel and the respondent attorney, and shall thereupon proceed, through a panel of at least three members of the Board (no one of whom shall have been a member of a Grievance Commission reviewing or disciplinary panel on the matter), to be designated by the Board or by the Chair or Vice Chair, to determine the issue. The Board panel may deny the objection; order dismissal with any warning expunged; remand the matter to the disciplinary panel for further consideration; dismiss the complaint with a warning having the effect provided in Rule 7.1(e)(3)(B); enter a public reprimand having the effect provided in Rule 7.1(e)(3)(C); or, upon a finding of probable cause for suspension or disbarment, direct Bar Counsel to commence an attorney discipline action by filing an information pursuant to Rule 7.2(b). If the Board denies the objection, that action shall be final as to the party presenting it.

RULE 7.2 DISCIPLINARY PROCEEDINGS BEFORE THE COURT

(a) Petition for Review of Public Reprimand.

(1) Petition and Answer. Within 21 days after delivery of a public reprimand, a respondent attorney may file a petition for review of the action of the disciplinary or Board panel by a single justice of the Court. The petition for review shall be filed with the Executive Clerk of the Court by the respondent attorney and shall be served by the respondent attorney at the same time upon Bar Counsel by registered or certified mail. The petition for review shall include copies of the petition and answer filed with the Commission and of the reprimand and shall contain a concise statement of the grounds upon which the respondent attorney seeks relief and a demand for the specific relief sought. Within 21 days after receipt of the petition for review, Bar Counsel shall file an answer with the Executive Clerk of the Court and shall transmit a copy thereof to the respondent attorney and the complainant.

(2) Preparation of Record. Within 21 days after filing the answer, Bar Counsel shall prepare and file the complete record of the proceedings and shall furnish a copy thereof to the respondent attorney. If the respondent attorney believes that the record filed by Bar Counsel is either incomplete or over-inclusive, the respondent attorney shall serve notice upon Bar Counsel within 10 days after the record is filed. This notice shall include specific proposals by the respondent attorney regarding additions or deletions from the record filed by Bar Counsel. Bar Counsel and the respondent attorney shall attempt to agree upon the contents of the record. If the parties cannot agree, the respondent attorney may request that the court modify the contents of the record.

(3) Motion for Trial of the Facts. If, on motion, the court finds in its discretion that the respondent attorney ought to have a trial of the facts, the court may order a hearing to permit the introduction of evidence that does not appear in the record of the proceedings before the Grievance Commission disciplinary panel and that has not been stipulated. A motion for a trial of the facts shall be filed within 21 days after the petition is filed. The failure of a respondent attorney to file such a motion shall constitute a waiver of any right to a trial of the facts. With the motion the respondent attorney shall also file a detailed statement, in the nature of an offer of proof, of the evidence to be introduced at the hearing. That statement must be sufficient to permit the court to make a proper determination as to whether any trial of the facts as presented in the motion and offer of proof is appropriate and if so to what extent. After hearing, the court shall issue an appropriate order specifying the future course of proceedings. The court on its own motion may order that additional evidence be taken.

(4) Scope of Review. Except where otherwise provided by order of court pursuant to subsections (3) or (5) hereof, review of the decision of a Grievance Commission disciplinary panel or Board panel to impose a public reprimand shall be based upon the record of the proceedings before the panel. The judgment entered after such review may affirm, vacate or modify the decision of the panel. Any findings of fact of the Grievance Commission disciplinary panel shall not be set aside unless clearly erroneous. Either party may appeal to the Law Court within 10 days from entry of the judgment of the single justice.

(5) Finding of Probable Cause. If at any stage of the proceedings on petition for review, the court determines that there is probable cause that the matter be concluded by suspension or disbarment, the court shall direct Bar Counsel to file an information and the matter shall be conducted as an attorney discipline action in accordance with subdivision (b) of this rule.

(b) Attorney Discipline Actions Before the Court.

(1) Commencement. An attorney discipline action authorized pursuant to Rule 7.1(e)(3)(C) or (5)(C) shall be commenced by the filing of an information with the Executive Clerk of the Court. The information shall allege that the respondent is an attorney subject to these rules and has conducted herself or himself in a manner unworthy of an attorney admitted to the Bar of this State for the reasons specified in the information. The Board shall be responsible for serving the information, together with a summons, upon the respondent attorney in the manner provided by Rule 4 of the Maine Rules of Civil Procedure.

(2) Procedure. An attorney discipline action shall be heard by a single justice of the Supreme Judicial Court assigned by the Chief Justice to hear the action. To the extent appropriate, and except as otherwise provided in these rules, the Maine Rules of Civil Procedure and the Maine Rules of Evidence shall govern attorney discipline actions. The Board shall be treated as the plaintiff and the respondent attorney as the defendant; and the action shall be captioned "The Board of Overseers of the Bar v. [name of respondent attorney]." In applying those rules, and in this subdivision, the word "court" shall mean the single justice of the Supreme Judicial Court assigned to hear the action; and the word "clerk" shall mean the Executive Clerk of the Supreme Judicial Court.

Rules 12(c), 13, 14, 16, 26 through 37, and 56 of the Maine Rules of Civil Procedure shall not apply to attorney discipline actions; provided, however, that:

(A) Bar Counsel shall furnish to the respondent attorney, within a reasonable time after the filing of the information, copies of all exhibits presented to the Grievance Commission disciplinary panel or the Board in the proceedings leading to the information. The stenographic or electronic record, as required by Maine Bar Rule 7.1(e)(2)(c), and any other matter within Bar Counsel's possession or control that is discoverable under Rule 26 of the Maine Rules of Civil Procedure shall be made available to the respondent attorney at the office of Bar Counsel at any reasonable time for inspection and copying at the respondent attorney's expense.

(B) Discovery pursuant to Maine Rules of Civil Procedure 26 through 37 may be had, upon a showing of good cause, by order of court.

(C) The court may in its discretion hold a prehearing conference with the attorneys for the parties to consider such matters as may aid in the disposition of the action and may by written order limit the issues to be tried.

(3) De Novo Proceedings. The trial of an attorney discipline action shall be de novo.

(4) Burden of Proof. In an attorney discipline action the Board shall have the burden of proving by a preponderance of the evidence the charges specified in the information.

(5) Judgment and Appeal. The judgment entered in an attorney discipline action may impose a reprimand, suspension for a definite period or disbarment, or may dismiss the information. Either party may appeal to the Law Court within 21 days from the entry of the judgment of the single justice.

(6) Attorney's Status Pending Appeal. Pending appeal to the Law Court, a judgment of suspension or disbarment shall, unless stayed in whole or in part by the single justice or by the Law Court, be given full force and effect in accordance with the provisions of Rule 7.3(i).

(7) Bypassing Complete Grievance Commission Preliminary Review When Another Matter Pending Against the Respondent. Whenever a respondent attorney is the subject of a disciplinary proceeding either authorized or instituted pursuant to Rule 7.1(e) or 7.2(a), (b), Bar Counsel may, with the consent of the Grievance Commission panel, commence a disciplinary action before the Court, pursuant to Rule 7.2(b), concerning any allegations of misconduct by the same respondent attorney that have subsequently come to the attention of Bar Counsel, and have been investigated by Bar Counsel pursuant to Rules 7.1(b) and (c), and reviewed by the Grievance Commission pursuant to Rule 7.1(d), even though there has been no hearing before the Grievance Commission as to those subsequent allegations of misconduct as is usually required under the provisions of Rule 7.1(e)(1)-(5).

(8) Expenses of Proceedings. In addition to any discipline imposed by the court, the court may, when it deems it appropriate, also require the respondent attorney to pay the reasonable expenses incurred by the Board in the investigation of the matter or in the conduct of hearings before the Grievance Commission or before the court. The court may make such orders as are just concerning the payment of such expenses including ordering that the respondent attorney be suspended from the practice of law until such expenses are paid.

(9) Intervention by the Attorney General. [Abrogated]

(c) Temporary Suspension.

(1) Pending final determination by the Grievance Commission of any disciplinary proceeding, Bar Counsel, with the approval of the Board, may petition the Court for an order temporarily suspending any member of the Bar from the practice of law in this State if there is a substantial probability that the attorney has committed a violation of the Code of Professional Responsibility that threatens irreparable injury to any client, the public or to the administration of justice.

(2) The petition for temporary suspension shall set forth a plain and concise statement of the grounds therefor, shall be verified and supported by affidavit, and shall be served upon the respondent attorney by sending it by certified or registered mail to the address furnished by the respondent attorney in the last registration statement filed in accordance with Rule 6, or to the respondent attorney's last known business address or home address if no registration statement has been filed. The Court, after affording the respondent attorney an opportunity to be heard, may make such order, including temporary suspension, as it deems appropriate.

RULE 7.3 DISCIPLINARY PROCEEDINGS; OTHER PROVISIONS

(a) Immunity.

(1) Complainants and Witnesses. In the absence of malice, the complainant and any witness shall be immune from liability based upon the filing of a complaint or the giving of any testimony in a proceeding hereunder.

(2) Members of the Board, Commission, etc. [Deleted effective January 1, 1995.]

(b) Refusal of Complainant to Proceed; Compromise; Restitution. Abatement of an investigation or related proceedings shall not be required by the failure of the complainant to sign a complaint or to testify, or by any settlement, compromise or restitution.

(c) Pending Civil or Criminal Litigation.

(1) The investigation or prosecution of complaints involving material allegations which are substantially similar to the material allegations of pending criminal or civil litigation shall not be deferred unless the Board or the Court shall order such deferment as to which either the Court or the Board may impose conditions.

(2) The acquittal of the respondent attorney on criminal charges, or a verdict or judgment in the respondent attorney's favor in a civil litigation involving substantially similar material allegations, shall not require abatement of a disciplinary investigation or proceeding predicated upon the same material allegations.

(d) Conviction of Crimes.

(1) Upon the filing with the Court by Bar Counsel of a certificate of the clerk of any court establishing that an attorney has been convicted of a crime demonstrating unfitness to engage in the practice of law, whether the conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial or otherwise, the Court shall, if satisfied that the crime demonstrates unfitness to practice law, enter an order to show cause why the attorney should not be immediately suspended from the practice of law, regardless of the pendency of an appeal of the conviction, pending final disposition of any disciplinary proceeding commenced upon such conviction. The Court, after affording the attorney opportunity to be heard, may make such order of suspension as may be advisable in the interest of the public, the Bar and the Court.

(2) A certificate of final judgment of conviction of any attorney for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding based upon the conviction subject to the provisions of paragraph (5) below.

(3) Upon the receipt of a certificate of conviction of an attorney for a crime covered by (1) above, Bar Counsel, in addition to any suspension of the attorney imposed by the Court, shall institute formal proceedings before a panel of the Grievance Commission, or, with the consent of the Chair or Vice Chair of the Grievance Commission, may, in lieu of a proceeding before the panel, commence a disciplinary action before the Court pursuant to Rule 7.2(b). A disciplinary proceeding so instituted need not be brought to hearing until all appeals from the conviction are concluded.

(4) Upon receipt of a certificate of a final judgment of conviction of an attorney for a crime not included within (1) above, the Court may refer the matter to the Board to take appropriate action, which may include investigation by Bar Counsel or a proceeding before the Grievance Commission.

(5) An attorney suspended hereunder will be reinstated immediately upon the filing of a certificate that the underlying conviction for a crime has been reversed or set aside, but the reinstatement need not terminate any formal proceeding then pending against the attorney.

(6) It is the duty of an attorney admitted to practice in this State who is convicted in any court of any crime to notify Bar Counsel in writing within 30 days of the entry of the judgment of conviction. Such notification shall include a certificate from the respective court clerk establishing the conviction, and shall be required regardless of the pendency of an appeal or other post-conviction proceeding.

(7) Upon being advised that an attorney has been convicted of a crime covered by paragraph (1) above within this State and that no certificate has been filed under paragraph (6) above, or of such a crime in another jurisdiction, Bar Counsel shall obtain a certificate of the final judgment of conviction and transmit it or a copy thereof to the Court.

(e) Proceedings Where an Attorney Is Declared to Be Incompetent or Is Alleged to Be Incapacitated.

(1) Where an attorney has been judicially declared incompetent, or acquitted of a crime by reason of mental illness, or committed to a mental hospital after a judicial hearing, or where an attorney has been placed by court order under guardianship or conservatorship, the Board, on reference from any court or on its own motion, may, in its discretion, give the attorney the opportunity to resign or to agree to such a suspension, the Court, upon petition of the Board or upon its own motion, may enter an order to show cause why the attorney should not be suspended from the practice of law. A copy of such order shall be served upon the attorney, the attorney's personal representative, if any, and the director of the mental hospital to which the attorney is committed, if any, in such manner as the Court may direct.

(2)(A) Bar Counsel may, after investigation, seek a determination by the Board, or a panel thereof, after hearing, whether an attorney is incapacitated from continuing practice by reason of mental infirmity or addiction to drugs or intoxicants. Upon so finding, the Board shall, promptly petition the court to determine whether the attorney is so incapacitated. The Court after due notice and hearing may make any orders necessary or appropriate to protect the public interest, including an order suspending the attorney.

(B) The Chair of the Board of Overseers, or in the absence of the Chair, the Vice Chair, upon an application by Bar Counsel alleging such incapacity of an attorney together with an allegation that the continued practice of such attorney poses a substantial threat of irreparable harm to the public, may direct that such petition seeking the suspension of the attorney be filed directly with the Court. The Court may order such action as it deems appropriate, including an expedited hearing. The Court may enter an interim order suspending the attorney pending such expedited hearing. With notice to Bar Counsel, the attorney may move for dissolution or modification of the interim order of suspension.

(3) If during a disciplinary proceeding the respondent-attorney claims to be suffering from disability by reason of mental or physical infirmity or illness, or because of addiction to drugs or intoxicants, which makes it impossible to present an adequate defense, the Court may suspend the respondent attorney from continuing to practice law until a determination has been made concerning the respondent attorney's capacity to continue to practice law, and may take other appropriate action.

(4) Any attorney who has resigned or has been suspended under the provision of this subdivision may apply for reinstatement in accordance with Rule 7.3(j) after the expiration of 1 year and annually thereafter, or at such shorter intervals as the Court may permit. The Court may enter any appropriate order or orders in connection with an application, including an order for a medical and mental examination of the attorney, at the attorney's expense or at public expense. Where an attorney suspended under this subdivision, has been judicially declared to be competent, the Court may dispense with further evidence that the disability has been removed.

(f) Appointment of a Proxy to Protect Clients' Interests When Attorney Is Disabled, Missing or Deceased.

(1) Whenever an attorney is disabled, missing or deceased, and no associated lawyer (see M. Bar R. 3.15(a)) or lawyer designated in the disabled missing or deceased attorney?s annual registration statement under M. Bar R. 6(a)(1) is available to act to protect the interests of clients and conclude the law practice, the Court may appoint a Proxy who is a licensed Maine attorney in good standing with the duties described in this Rule. A Proxy shall be authorized by Court order to take some or all of the following actions:

(i) Secure the professional files, client data and client property in an appropriate location and notify the Board of Overseers of that location;

(ii) Create an inventory of the open and closed client files;

(iii) Give priority attention to client matters that are identified as open, active and apparently time sensitive, including notifying clients of the need to seek new counsel or to represent themselves; if necessary the Proxy may seek protection for certain clients by giving notice to tribunals or others concerning the circumstances giving rise to the Proxyship, without entering an appearance for the client.

(iv) Notify all clients that the law practice is concluding and invite clients to retrieve their client files. Such notice may be by letter, phone, email, newspaper advertisement in a newspaper in general circulation in the county where the law practice was located and/or such other method as will effect notice. Notice to clients with open matters should be made by as direct means as possible;

(v) Guide the personal representative or conservator of the deceased, missing or disabled attorney in prudently utilizing the operating accounts to effect the conclusion of the practice, including the temporary retention of office staff or hiring other personnel as necessary and appropriate;

(vi) Guide the personal representative or conservator of the deceased, missing or disabled attorney in the appropriate distribution of client funds and property held in trust;

(vii) Submit to the Court a record of hours worked and disbursements made to allow in some cases for payment of legal fees at the State court appointment rate. The assets or estate of the deceased, missing or incapacitated attorney shall be the first choice for source of payment to the Proxy. A Proxy may serve in a pro bono capacity. Otherwise, a Proxy may be compensated from another source ordered by the Court.

(viii) Continue to act as Proxy until discharged by the Court in accordance with paragraph 3 of this Rule;

(ix) Take any and all other appropriate action consistent with the discretion vested in the Proxy by the Court and/ or as specifically ordered by the Court.

(2) Prior to petition for discharge, the Proxy shall formulate for the approval of the Court a plan for the custody, care, appropriate release and ultimate destruction of client files. The plan will identify a file caretaker (who may be the Proxy) who will maintain and appropriately release the client files to clients subsequent to the discharge of the Proxy. The plan must provide for confidential destruction of all client files and data, regardless of content, eight (8) years from the date of the discharge of the Proxy. The destruction date may be earlier if so ordered by the Court. The plan must include the requirement that the file caretaker provide written notice to the Board of Overseers confirming the confidential destruction of files and data immediately after it has occurred.

(3) The Proxy shall serve until discharged by the Court. The Proxy may petition the Court for discharge from appointment upon completion of duties or sooner for other good cause. With the petition for discharge the Proxy shall file a report of services rendered. With the approval of the court, the report or any part thereof may be filed under seal. The report should include:

(i) The inventory of files and the status of each file as released or retained;

(ii) The plan for the security and handling of the retained client files;

(iii) An accounting from the personal representative or conservator of the law practice operating accounts during the period of Proxyship;

(iv) An accounting from the personal representative or conservator of the law practice client trust fund accounts during the period of Proxyship; and

(v) Any other information deemed by the Proxy or the Court to be necessary and appropriate;

(4) Any Proxy so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under this Rule. Any Proxy may be engaged by any former client of the deceased, missing or disabled attorney, provided that the Proxy informs any such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order under section (2) of this Rule does not mandate or recommend employment by the client of the Proxy. The Proxy is subject to all Bar Rules, including Bar Rule 3.4 on conflicts of interest. However the client?s retention of the Proxy as successor counsel is not a per se conflict of interest solely by reason of the Proxy?s appointment under this Rule.

(5) The Proxy shall be protected from liability for professional services rendered in accordance with this Rule to the extent permitted by law.

(6) In every case, the Proxy shall provide copies of all pleadings and orders under this Rule to the Board of Overseers of the Bar.

(g) Resignations by Attorneys Under Disciplinary Investigation.

(1) An attorney who is the subject of an investigation under these rules may submit to the Board a letter of resignation, supported by an affidavit that:

(A) the resignation is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress and is fully aware of the implications of submitting the resignation;

(B) the attorney is aware that there is presently pending an investigation into allegations of misconduct, the nature of which allegations the attorney shall specifically set forth; and

(C) the attorney acknowledges that the material facts, or specified material portions of them, underlying the allegations are true.

(2) Upon receipt of such resignation, the Board shall file it, together with its recommendation thereon, with the Court, which after hearing shall enter such order as it deems appropriate.

(3) Any order accepting such resignation under this section shall be a matter of public record unless otherwise ordered by the Court; but the supporting affidavit required under the provisions of subsection (1) shall be impounded, whether or not such resignation is accepted, and shall not be made available for use in any other proceeding unless otherwise ordered by the Court.

(h) Reciprocal Discipline.

(1) Upon the receipt of a certified copy of an order that an attorney admitted to practice in this State has been subject to discipline in another jurisdiction (including any federal court or any state or federal administrative body or tribunal), the Court shall enter an order of notice containing a copy of the order from the other jurisdiction and directing the respondent attorney to inform the Court within 30 days from service of the order of notice of any claim that the imposition of the identical discipline in this State would be unwarranted and the reasons therefor. Bar Counsel shall cause this order of notice to be served upon the respondent attorney by registered or certified mail, with restricted delivery and return receipt requested.

(2) In the event that the discipline imposed in the other jurisdiction has been stayed there, any reciprocal discipline imposed in this State may, but need not, be deferred.

(3) Upon the expiration of 30 days from service of the notice under subsection (1) above, the Court, after reasonable notice and hearing, may enter such order as the evidence warrants and may impose the identical discipline unless Bar Counsel or the respondent attorney established, or the Court concludes, that (i) the procedure in the other jurisdiction did not provide reasonable notice or opportunity to be heard; (ii) there was significant infirmity of proof establishing the misconduct; (iii) imposition of the same discipline would result in grave injustice; or (iv) the misconduct established does not justify the same discipline in this State.

(4) A final adjudication in another jurisdiction that an attorney had been guilty of misconduct may be treated as establishing the misconduct for purposes of a disciplinary proceeding in this State.

(i) Action by Disbarred or Suspended Attorneys or Attorneys Who Resign Under Rule 7.3(g) or Attorneys Who Assume Inactive Status Under Rule 6(c).

(1) Action by Disbarred Attorneys or Attorneys Suspended for Disciplinary Reasons or Attorneys Who Resign Under Rule 7.3(g).

(A) Unless the Court orders otherwise, orders imposing suspension or disbarment or accepting the resignation of an attorney under Rule 7.3(g) shall be effective 30 days after entry. The disbarred or suspended attorney or an attorney whose resignation has been accepted under Rule 7.3(g), after entry of the disbarment or suspension order or order accepting the resignation, shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. During the period from the entry date of the order to its effective date, however, the attorney may wind up and complete, on behalf of any client, all matters which were pending on the entry date, unless the Court orders otherwise. The Court may make such orders for assistance by co-counsel or supervision during the period from the entry date of the order to its effective date as are appropriate to protect the interests of the clients.

(B) A disbarred or suspended attorney or an attorney who has resigned under Rule 7.3(g) shall take action (i) to notify all clients (meaning those with whom the attorney then has open engagements) of the disbarment, resignation or suspension and the attorney's consequent inability to act as an attorney after the effective date of the disbarment, resignation or suspension; (ii) to notify each client who is involved in pending litigation or administrative proceedings, and the attorney or attorneys for each adverse party in such matter or proceeding, of the disbarment, resignation or suspension and the attorney's consequent inability to act as an attorney after the effective date of the disbarment, resignation or suspension; (iii) to advise each client promptly to substitute another attorney or attorneys or to seek legal advice elsewhere, and (iv) to give such notice of the Court's action as the Court may direct in the public interest. A disbarred, resigned or suspended attorney shall file with the Clerk and also with the Board within 30 days of the effective date of the disbarment, resignation or suspension order an affidavit attesting compliance with the provisions of the preceding sentence and the provisions of Rule 7.3(i)(1)(C). Such affidavit shall include a list of the names and addresses of all clients, attorneys, courts, and agencies to whom notice was sent as required by the rules, together with a copy of the text of the notices sent.

(C) It shall be the responsibility of the disbarred or suspended attorney or an attorney who has resigned under Rule 7.3(g) to give notice of the disbarment, resignation or suspension forthwith to each court or agency in which the attorney appears for any party. Any notice of the disbarment, resignation or suspension thus given to the court or agency (or to the attorney or attorneys for an adverse party). Any notice of the disbarment, resignation or suspension thus given to the court or agency (or to the attorney or attorneys for an adverse party) shall state the place of residence of the client of the disbarred, resigned or suspended attorney, and shall identify the particular proceeding by docket number as well as by names of parties.

(D) Whenever the Court deems it necessary, it may appoint an attorney admitted to the Bar of this State to take appropriate action in lieu of, or in addition to, the action directed in subparagraphs (B) and (C) above.

(E) The Board shall promptly transmit a copy of the order of suspension or disbarment or of the order accepting the resignation to the clerk of each court and to each administrative body, state or federal, in which it has reason to believe the disciplined attorney has been admitted to practice.

(F) Any failure by a disbarred, resigned or suspended attorney to comply with any of the provisions of this rule, may be found to constitute a contempt of court and thereupon subject said attorney to such sanctions as the Court may further order, including but not limited to, an extension of the time period of any order of suspension from the practice of law.

(2) Action by Attorneys Suspended for Failure to Register, to Pay the Annual Fee, to Satisfy Mandatory CLE Requirements, or by Attorneys Who Assume Inactive Status.

(A) An attorney who has been suspended for failing to file a registration statement under Rule 6 of the Maine Bar Rules, for failure to satisfy the mandatory CLE requirements imposed by Rule 12, or an attorney who assumes inactive status under Rule 6(c) shall:

(i) not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature;

(ii) notify each client (meaning those with whom the attorney then has open engagements) of the attorney?s suspension or assumption of inactive status and the consequent inability to act as an attorney after the effective date of the suspension or assumption of inactive status;

(iii) notify each client who the attorney is advising or representing in pending litigation or administrative proceedings, and the attorney or attorneys or other representative for each other party in such matter or proceeding, of the attorney?s suspension and consequent inability to act as an attorney after the effective date of the suspension or assumption of inactive status;

(iv) advise each client promptly to substitute another attorney or attorneys or to seek legal advice elsewhere;

(v) notify each court or federal, state or local administrative agency or private arbitration, mediation or alternative dispute resolution forum in which the attorney appears for any party of the attorney?s suspension and consequent inability to act as an attorney after the effective date of the suspension or assumption of inactive status; and any notice of the suspension or assumption of inactive status given to a court, administrative agency or private dispute resolution forum shall state the place of residence of the client of the attorney, and shall identify the particular proceeding by docket number as well as by names of parties, with copies of the notice sent to each party to the proceeding, and

(vi) give such other notice of the Court's action as the Court may direct in the public interest.

(B) Within 30 days of the effective date of the suspension or when filing the notice of the attorney's desire to assume inactive status, the attorney shall file with the Clerk and also with the Board an affidavit attesting compliance with the provisions of the preceding paragraph (A). The affidavit shall include a list of the names and addresses of all clients, attorneys, courts, administrative agencies and private dispute resolution forums to whom notice was sent as required by the rules, together with a copy of the text of the notices sent. If an attorney has no clients or attorneys to notify, a statement to that effect shall be included in the affidavit.

(C) Whenever the Court deems it necessary, it may appoint an attorney admitted to the Bar of this State to take appropriate action in lieu of, or in addition to, the action directed in subparagraphs (A) and (B) above.

(D) The Board shall promptly transmit notice of the suspension or of the assumption of inactive status to the Clerk of each court and to each administrative body, state or federal, in which it has reason to believe the attorney has been admitted to practice.

(j) Reinstatement.

(1) An attorney who has resigned pursuant to subdivision (g) of this rule, or who has been suspended for more than six months or who has been disbarred may not be reinstated otherwise than upon petition filed in the Court after the expiration of the suspension or at least 5 years from the effective date of the resignation or of the order of disbarment, unless otherwise ordered by the Court.

(2) An attorney who has been suspended for a specific period of six months or less need not petition for reinstatement, but shall, upon the expiration of the period and before resuming practice, comply with Rule 6.

(3) An attorney who has been suspended indefinitely or resigned due to disability under the provisions of subdivision (e) may petition for reinstatement as therein provided:

(A) If applicable to the initial suspension or resignation, in addition to the factors required under Section (5) of this Rule, petitioner must also present evidence that:

(i) The disability or infirmity has been removed;

(ii) The attorney has pursued appropriate rehabilitative treatment and continues to do so;

(iii) The attorney has abstained from the use of alcohol or other drugs for at least 1 year; and

(iv) The attorney is likely to continue to abstain from alcohol or other drugs.

(B) The Court may enter any appropriate order or orders in connection with an application, including an order for a medical and mental examination of the attorney, at the attorney's expense or at public expense.

(C) Where an attorney has been suspended or has resigned under this subdivision, and has been subsequently judicially declared to be competent, the Court may dispense with further evidence that the disability has been removed.

(D) The petitioner shall identify every psychiatrist, psychologist and physician by whom, and every hospital or clinic in which, the attorney has been examined or treated since suspension, and upon request shall furnish to the Court written consent to each to divulge such information and records as requested by the Court.

(4) An attorney who has been suspended for non-disciplinary reasons under Rules 6 or 10 of the Maine Bar Rules may petition to the Court for reinstatement.

The Court may enter any appropriate order or orders in connection with such application.

(5) Petitions for reinstatement (including those under subdivision (e)) shall be filed with the Executive Clerk of the Court and also with the Board of Overseers of the Bar accompanied by a $ 200.00 filing fee payable to the Board of Overseers of the Bar. The petitioner shall also provide a completed Board reinstatement questionnaire to Bar Counsel at the same time as the filing of the petition. Upon review and conclusion that the petition and questionnaire have been properly completed and filed, Bar Counsel shall, with or without investigation, either agree with or oppose the petition.

If Bar Counsel agrees that reinstatement is appropriate, the petitioner shall be so informed and the matter shall be placed before the Board for consideration at its next available meeting for the petitioner, petitioner's counsel, if any, and Bar Counsel to appear to allow the Board to confirm that the petitioner's reinstatement should be recommended for approval by the Court, or to direct Bar Counsel to oppose the petition.

If Bar Counsel opposes the petition, the petitioner shall be so informed and the matter shall be immediately referred to the Grievance Commission Chair or Vice Chair for hearing which will ordinarily be by a hearing panel of that Commission.

On any petition referred for hearing, the Grievance Commission shall promptly and on reasonable notice (including reasonable notice to the Attorney General, the Maine State Bar Association and appropriate local bar association and District Attorneys) hear the petitioner who shall have the burden of presenting clear and convincing evidence demonstrating the moral qualifications, competency, and learning in law required for admission to practice law in this State. The petitioner shall also offer clear and convincing evidence that it is likely that reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest. Factors to be considered as to the petitioner's meeting that burden include evidence that:

(A) The petitioner has fully complied with the terms of all prior disciplinary orders;

(B) The petitioner has neither engaged nor attempted to engage in the unauthorized practice of law;

(C) The petitioner recognizes the wrongfulness and seriousness of the misconduct;

(D) The petitioner has not engaged in any other professional misconduct since resignation, suspension or disbarment;

(E) The petitioner has the requisite honesty and integrity to practice law;

(F) The petitioner has met the continuing legal education requirements of Rule 12(a)(1) for each year the attorney has been inactive, withdrawn or prohibited from the practice of law in Maine, but need not complete more than 22 credit hours of approved continuing legal education for that entire period of absence from practice, provided that: (1) no more than one half of the credits are earned through in-office courses, self-study, or a combination thereof; and (2) at least two credit hours are primarily concerned with the issues of ethics or professional responsibility.

(6) The Grievance Commission shall transmit to the Board and to the petitioner its findings and recommendations by written report, and provide the Board with any record it has made. If no timely objection to the report is filed by either party, the Board shall adopt the Commission's findings and recommendations, and so inform the Court. After consideration of a party's timely objection to the report the Board shall file its recommendations and findings with the Court, together with any record that has been made. The Court shall, with or without hearing, grant or deny the petition for reinstatement by written order which may include such conditions to be met by a specific date on the petitioner's reinstatement as the Court deems necessary to protect the public interest. The Court may, before granting the petition, require that by a specific date the petitioner take and pass the modified bar examination (or its then equivalent) as administered by the Board of Bar Examiners of this State.

(7) The petitioner shall pay for any stenographic transcription(s) of the reinstatement proceedings, and the Court in its discretion may direct that the petitioner pay any additional expenses incurred in connection with a petition for reinstatement.

(k) Confidentiality.

(1) All inquiries, letters, replies, records, documents and files relating to any complaints alleging misconduct by an attorney shall be kept confidential by the Board, except for any disciplinary pleading and exhibits as filed under Rule 7.1(e) or 7.2.

(2) In the event a grievance complaint is predicated upon the conviction of the respondent attorney for a crime, or the Board determines that the matter is based upon allegations that have become generally known to the public, the existence and status of that complaint may be publicly commented upon by the Board but shall otherwise be governed by section (1) of this Rule. In all instances, a complainant of interest shall be informed of the disposition by the Grievance Commission of the complaint as provided in Rule 7.1.

(3) The provisions of this subdivision shall not be construed to deny access to relevant information to authorized agencies investigating the qualifications of judicial candidates, or to other jurisdictions investigating qualifications for admission to practice or considering reciprocal disciplinary action, or to law enforcement agencies investigating qualifications for government employment or to the National Discipline Data Bank of the American Bar Association where discipline under these rules has been imposed, or to the Committee on Judicial Responsibility and Disability, in accordance with Rule 1(a) or to the Lawyers' Fund for?Client Protection under?LFCP Rule 12(d).

(4) The provisions of this section shall not be construed to prevent Bar Counsel or any other person from notifying i) the appropriate law enforcement agency of complaints that accuse the respondent attorney of conduct in violation of a criminal law, or ii) a lawyer serving in a substance abuse program approved by the Board, of the name of any lawyer whom Bar Counsel determines should be contacted concerning that program.

(5) The provisions of this section shall not be construed to prohibit Bar Counsel's use of relevant information in the investigation or prosecution of complaints pursuant to Rules 7.1(c), (d) or 7.2.

(6) Notwithstanding any other provisions of these Rules, any person, including but not limited to members of the Board, Grievance Commission and Board staff may notify governmental officials of actual or threatened criminal conduct by any individual.

(l) Substituted Service. In the event a respondent attorney cannot be located and served in hand with any notice required so to be served under these rules, such notice may be served upon the respondent attorney by addressing it by certified, registered or first-class mail, as the court or the Board may direct, to the address furnished by the respondent attorney in the last registration statement filed in accordance with Rule 6 (or to the respondent attorney's last known business or home address if no registration statement has been filed), and by such publication as the Court may direct.

(m) Subpoena Power.

(1) At any stage of an investigation or formal proceeding, a witness or respondent attorney may be summoned by subpoena to appear before Bar Counsel, the Grievance Commission or a panel thereof, the Board or a panel thereof, or the Court. Any member of the Board or of the Grievance Commission, a notary public, or the Clerk of the Superior Court in any county may issue subpoenas for witnesses and subpoenas duces tecum to compel the production of books, papers and photographs. The Board, the Grievance Commission or the Chair of any panel thereof, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may quash or modify any subpoena issued for appearance before Bar Counsel, the Board, the Grievance Commission or panels thereof, if the subpoena is unreasonable or oppressive. Witness fees in all proceedings under this rule shall be the same as for witnesses before the Superior Court. When a witness who has been subpoenaed fails to appear without reasonable excuse, the Supreme Judicial Court or any justice thereof, or the Superior Court or any justice thereof, may, on application of Bar Counsel or other interested person, invoke the provisions of Rule 45(f) of the Maine Rules of Civil Procedure for such failure.

(2) Whenever a subpoena is sought in this state pursuant to the law of another jurisdiction for use in lawyer discipline or disability proceedings, and where the subpoena has been duly issued under the law of the other jurisdiction, any member of the Board or of the Grievance Commission, a notary public, or the clerk of the Superior Court in any county, may for good cause shown issue a subpoena or subpoena duces tecum as provided in this section to compel the attendance of witnesses and the production of books, papers and photographs but only in the county where the witness resides or is employed or elsewhere within this state as fixed by any member of the Board or of the Grievance Commission. Service, enforcement, or challenges to this subpoena shall be as elsewhere provided in this rule.

(n) Required Records; Audit. Every attorney subject to these rules shall maintain complete records of the handling, maintenance and disposition of all funds, securities and other properties of a client at any time in the attorney's possession, from the time of receipt to the time of final distribution, and shall preserve such records for a period of 6 years after final distribution of such funds, securities or other properties, or any portion thereof. Where formal disciplinary proceedings have been instituted pursuant to Rule 7.1(e), the Board shall have the power to audit all of the records, files, books of account, bank accounts, vault boxes and other records and depositories which relate to, directly or indirectly, such funds, securities and other properties of a consenting client at any time in the attorney's possession; and every attorney subject hereto shall cooperate fully with respect to the orders of the Board, Bar Counsel and their agents, including certified public accountants appointed by them, with respect to such audit procedures, including the time and place thereof. In furtherance hereof, the Board or Bar counsel may petition for, and any justice of the court may, for good cause shown, enter an ex parte order to such attorney or others, with respect to the exercise of the audit powers and authorities of the board or Bar Counsel hereunder.

(o) Privilege for Peer Assistance or Substance Abuse Communications. In any proceeding under this rule, a respondent attorney has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made by the respondent attorney while seeking or receiving peer assistance or substance abuse treatment under a program approved by the Board of Overseers of the Bar. A "confidential communication" is a communication not intended to be disclosed to third persons other than those to whom disclosure is made in the course of seeking or receiving peer assistance or substance abuse treatment.

RULE 8. CONTINGENT FEES [ABROGATED]

(a) Definition. In this rule, the term "contingent fee agreement" means an agreement, express or implied, for legal services of an attorney or attorneys (including any associated counsel), under which compensation, contingent in whole or in part upon the successful accomplishment or disposition of the subject matter of the agreement, is to be in an amount which either is fixed or is to be determined under a formula. The term "contingent fee agreement" shall not include an arrangement with a client, express or implied, that the client in any event is to pay to the attorney the reasonable value of the attorney's services and the attorney's reasonable expenses and disbursements.

(b) Good Faith Effort to Comply. Unless expressly prohibited by this rule, no written contingent fee agreement shall be regarded as champertous if made in an effort in good faith reasonably to comply with this rule.

(c) Proceedings or Claims to Which Applicable. No contingent fee agreement shall be made (1) in respect of the procuring of an acquittal upon or any favorable disposition of a criminal charge, (2) in respect of the procuring of a divorce, annulment of marriage, or legal separation, or (3) in connection with any proceeding where the method of determination of attorneys' fees is otherwise expressly provided by statute or administrative regulations. Contingent fee arrangements concerning the collection of commercial accounts and of insurance company subrogation claims made in accordance with usual practices in respect of such cases shall not be regarded as champertous, and shall not be subject to subdivisions (d) and (e).

(d) Formal Requirements. Each contingent fee agreement shall be in writing and in duplicate. Each duplicate copy shall be signed both by the attorney and by each client. One signed duplicate copy shall be mailed or delivered to each client within a reasonable time after the making of the agreement. One such copy (and proof that the duplicate copy has been delivered or mailed to the client) shall be retained by the attorney for a period of three years after the completion or settlement of the litigation or the termination of the services, whichever event first occurs.

(e) Contents of Agreement. Each contingent fee agreement shall contain (1) the name and mail address of each client; (2) the name and mail address of the attorney or attorneys to be retained; (3) a statement of the nature of the claim, controversy, and other matters with reference to which the services are to be performed; (4) a statement of the contingency upon which compensation is to be paid, and whether and to what extent the client is to be liable to pay compensation otherwise than from amounts collected for that client by the attorney; (5) a statement that reasonable contingent compensation is to be paid for such services, which compensation is not to exceed stated maximum percentages of the amount collected; and (6) a statement regarding the attorney's anticipated expenses and disbursements, if any, for which the client, is to be liable. These may include the following:

A. Litigation Costs. Costs of the action, including:

1. Filing fees paid to the clerk of courts;

2. Fees for service of process and other documents;

3. Attendance fees and travel costs paid to witnesses;

4. Expert witness fees and expenses;

5. Costs of medical reports;

6. Costs of visual aids; and

7. Costs of taking depositions.

B. Travel Expenses. Expenses for travel by the attorney on behalf of the client.

C. Telephone. Disbursements for long-distance telephone calls made by the attorney on behalf of the client.

D. Postage. Postage paid by the attorney for mailings on behalf of the client.

E. Copying. Costs of photocopying and facsimile telecopying done by the attorney on behalf of the client.

F. Other: (Specify).

(f) Fee Arbitration. Disputes concerning contingent fee agreements shall be subject to review in accordance with Rule 9.

(The following form may be used (in connection with Rule 8) and shall be sufficient. The authorization of this form shall not prevent the use of other forms consistent with this rule.)

CONTINGENT FEE AGREEMENT

To Be Executed In Duplicate

Date ,20?.

The client,?

(Name) (Street & Number) (City or Town)

retains the attorney?

(Name) (Street & Number)

(City or Town)

to perform the legal services mentioned in par. (1) below. The attorney agrees to perform them faithfully and with due diligence.?

(1) The claim, controversy, and other matters with reference to which the services are to be performed are:

(2) The contingency upon which compensation is to be paid is:

(3) The client is not to be liable to pay compensation otherwise than from amounts collected for the client by the attorney, except as follows:

(4) Reasonable compensation on the foregoing contingency is to be paid by the client to the attorney, but such compensation (including that of any associated counsel) to be paid by the client shall not exceed the following maximum percentages of the gross (net) (indicate which) amount collected. Here insert the maximum percentages to be charged in the event of collection. These may be on a flat basis or in a descending scale in relation to amount collected.)

(5) The client is to be liable to the attorney for the attorney's reasonable expenses and disbursements as hereinafter specified.

A. Litigation costs. Costs of the action, including:

1. Filing fees paid to the clerk of courts;

2. Fees for service of process and other documents;

3. Attendance fees and travel costs paid to witnesses;

4. Expert witness fees and expenses;

5. Costs of medical reports;

6. Costs of visual aids; and

7. Costs of taking depositions.

B. Travel expenses. Expenses for travel by the attorney on behalf of the client.

C. Telephone. Disbursements for long-distance telephone calls made by the attorney on behalf of the client.

D. Postage. Postage paid by the attorney for mailings on behalf of the client; and

E. Copying. Costs of photocopying and facsimile telecopying done by the attorney on behalf of the client.

F. Other: (Specify).

(6) This agreement and its performance are subject to Rule 8 of the Maine Bar Rules.

WE HAVE EACH READ THE ABOVE AGREEMENT BEFORE SIGNING IT.

Witnesses to signatures

To client:?

Signature of Client

To attorney:?

Signature of Attorney

(If more space is needed, separate sheets may be attached and initialed.)

RULE 9. FEE ARBITRATION

(a) Commission.

(1) The Fee Arbitration Commission shall consist of at least 15 regular members plus such alternate members as may be appointed by the Board. Not less than one-third of the regular members shall be lay persons and the balance (as close to two-thirds as may be) shall be attorneys, each to be appointed by the Board for 3-year terms. Initially 1/3 of the regular members of the Commission shall be appointed for a period of 1 year, 1/3 for a period of 2 years, and 1/3 for a period of 3 years. As each regular member's term of office on the Commission expires, a successor shall be appointed for no more than 2 consecutive full terms but a regular member appointed for less than a full term (originally or to fill a vacancy) may serve two full terms in addition to such part of a full term. A former regular member shall again be eligible for appointment after a lapse of one year. The term of any member which expires while an arbitration is pending before that member or before a panel that includes that member, shall with reference to that arbitration, be extended until such arbitration is concluded, but such extension shall not interfere with the Board's power to appoint a successor to the Commission. The Board shall appoint the Chair of the Commission each year from among the regular members of the Commission. The alternate members shall be appointed by the Board for 3-year terms to serve pursuant to the directions of the Chair of the Commission as substitutes for any regular member who is unable to serve for any particular arbitration. Except with the consent of the parties pursuant to Rule 9(g)(1) or (2), each panel assembled for a particular arbitration shall include at least one attorney member.

(2) Attorney members of the Commission shall have been admitted to the Bar of this State, shall have practiced law for not less than 5 years and shall be selected to provide reasonable geographic representation within this State consistent with subdivision (c) hereof.

(3) Lay members of the Commission shall be residents of this State and shall possess such additional qualifications, including geographic representation consistent with subdivision (c) hereof, as shall seem appropriate to the Board.

(4) The Commission shall be divided by its Chair into 5 panels of 3 members each, at least one of whom in each panel shall be a lay member. The Chair of the Commission shall designate 1 member of each such panel as Panel Chair, and the panel chairs, together with the Chair of the Commission, shall constitute the Executive Council of the Commission.

(b) Executive Council. The Executive Council shall be charged with the responsibility of overseeing the work of the Commission, developing forms to implement the procedure prescribed herein and may formulate procedural regulations not inconsistent with these rules.

(c) Fee Arbitration Panels. The Fee Arbitration Panels shall be separately designated and shall perform their functions by such designation and within the following geographic areas except as otherwise directed by the Chair of, or Secretary to, the Commission:

Panel 1A--within York county

Panel 1B--within Cumberland county

Panel 2--within Androscoggin, Franklin, Lincoln, Oxford and Sagadahoc counties

Panel 3--within Kennebec, Knox, Somerset, and Waldo counties

Panel 4--within Aroostook, Hancock, Penobscot, Piscataquis and Washington counties

In instances where a complainant and a respondent attorney are domiciled or otherwise located in counties which may involve the geographic area of more than 1 panel, the Chair of, or Secretary to, the Commission shall have the authority to direct which of such panels shall hear the dispute in question.

(d) Secretary. The Board may appoint a Secretary to the Commission and to the several panels. The Secretary shall not be responsible for attending panel hearings, nor for providing secretarial or recording services at or during such hearings. The Secretary shall keep and maintain records of all petitioners and respondents, as well as all proceedings, determinations and awards of the Commission and its respective panels.

The Secretary shall perform such additional duties and have such additional responsibilities as may be assigned by the Board or the Commission.

The Secretary shall have the authority to designate one or more Assistant Secretaries or Secretaries pro tempore for the purpose of performing duties of the Secretary hereunder and any other duties assigned or requested by the Commission or one of the panels, including attendance at panel hearings and the taking and reporting of a stenographic or recorded transcription thereof.

(e) Procedures.

(1) Initiation of Proceedings. Upon receiving a complaint from any source regarding legal fees paid to or charged by an attorney admitted to the Bar of this State, the Secretary shall forward to such complainant a copy of these procedures and any relevant regulations or rules adopted by the Board or the Commission with respect to fee arbitration, together with the blank form captioned "Petition for Arbitration of Fee Disputes". Proceedings before a Fee Arbitration Panel of the Commission shall be initiated by the completion and forwarding to the Secretary of the petition, in which the petitioner shall:

(A) Set forth the petitioner's full name and current address and the attorney with whom the petitioner has a dispute;

(B) Agree to be bound by the decision of a Fee Arbitration Panel;

(C) Represent that the petitioner has made a good faith effort to resolve the dispute with the attorney involved before filing the petition; and

(D) State whether the dispute is the present subject of legal action and certify that the matter has not been finally adjudicated by a court or administrative agency. If the dispute is the subject of other judicial or administrative proceedings, such proceedings shall be identified in the petition.

(2) Informal Arbitration. After the petition is filed with the Secretary to the Commission, it shall be expeditiously reviewed by Bar Counsel, who may endeavor to resolve the dispute informally, and for such purposes may communicate directly with the petitioner and the attorney against whom the claim is being made. If the Respondent attorney named in a filed petition is a member of the Board or the Fee Arbitration Commission, the petition shall be immediately referred to the Board Chair or Vice Chair for such action as deemed appropriate including appointment of a panel of the Board to act in place of the Fee Arbitration Commission as provided by M. Bar R. 4(d)(7).

If the dispute is resolved informally, the petition shall be deemed to have been withdrawn, and the petitioner shall be so advised in writing.

(3) Preliminary Review by Chair. If Bar Counsel determines that there is no just ground for the complaint or dispute, or that the matter is moot, or that the arbitration has not been commenced within six years from the time the bill in dispute was rendered or the fee paid in whole or in part, whichever occurs first, or that action by the Commission is otherwise unwarranted, Bar Counsel may refer the matter to the Chair of the Commission, together with a brief written report setting forth the facts and Bar Counsel's recommendations.

(A) If the Chair concurs with Bar Counsel's recommendations, the matter shall be closed and the complainant so advised.

(B) If the Chair disapproves Bar Counsel's recommendations, the matter shall be returned to the Secretary for further proceedings.

(4) Notice to Respondent.

(A) If the matter is not informally resolved, or has not been closed as a result of the preliminary action by the Chair within 30 days after the filing of the petition, a copy of the petition, together with the blank form captioned "Respondent's Reply and Submission to Arbitration" and a copy of these procedures and any relevant rules and regulations, shall be forwarded, by certified mail, return receipt requested, to the attorney with whom the petitioner is in dispute.

(B) The Secretary shall, upon receipt of a reply by an attorney, forward a copy of the same to the petitioner.

(C) When a petition is filed by a non-client of the named Respondent attorney, prior to notifying the attorney, the Secretary shall provide the client with notice of the petition and request that within 21 days the client consent in writing to the filing and processing of the petition under Rule 9. Should the client fail to provide consent, the Secretary shall refer the matter to the Chair for determination whether any action under Rule 9 is appropriate for the Commission or if dismissal is required pursuant to Rule 3.3(c).

(5) Referral to Arbitration Panel.

(A) The Secretary shall forward a copy of the petition with the attorney's reply, if any, to the chair and each member of the arbitration panel responsible for conducting the hearing.

(B) The chair of the arbitration panel shall make every effort to assign the matter for hearing not later than 60 days after the date of receipt of the copy of the petition from the Secretary.

(C) The petitioner and the attorney shall be notified by the Secretary as to the date, time and place of hearing, as well as the names of the members of the arbitration panel appointed to arbitrate the dispute which is the subject matter of the petition. In the event of the unavailability of any of the named members, the Chair or the Secretary of the Commission may designate other members of the Commission to serve at the hearing. Such notice of hearing will, in addition, notify the petitioner and the attorney of their right to present witnesses and documentary evidence in support of their positions, and at their own expense, to have a record of the proceedings made.

(D) If there is then pending before a court or agency of this State an action instituted by either petitioner or respondent involving the disputed fees, then such action shall, upon motion of the petitioner, be stayed until such dispute is resolved pursuant to this rule; and the award hereunder shall be determinative of the action so stayed.

(E) Notice of Client's Right to Arbitrate Legal Fees. At least 30 days before service or filing of a complaint in a civil action against an attorney's client or former client (hereinafter client) to recover fees for professional services previously rendered and/or costs incurred for which no judgment has previously been obtained, an attorney must mail to the client at the client's last known address a written notice of right to arbitrate, which must include at least the following language:

You currently owe the sum of $ in legal fees (and costs) to (name of attorney or firm). If you dispute the fact that you owe any part of the amount claimed to be due, you have the right to have the matter resolved without additional expense to you by arbitration before a panel of the Fee Arbitration Commission. Forms and instructions for filing a petition for arbitration are available from the Board of Overseers of the Bar, 97 Winthrop Street, PO Box 527, Augusta, Maine 04332-0527. Telephone: (207) 623-1121.

(F) Failure to Give Notice. No attorney shall seek to enforce a judgment against a client for attorney fees or costs which has been entered without the required notice of right to arbitrate having been given.

(G) If not earlier resolved pursuant to Rule 9(e)(3), a petition shall later be dismissed by the Secretary upon i.) the petitioner's submission of a written request for dismissal prior to the attorney's filing of a reply to the dispute, or ii.) the filing with the Secretary of a stipulation of dismissal signed by the petitioner and the respondent. A petition shall not otherwise be dismissed except by order of the Chair of the assigned hearing panel or the Chair of the Commission for good cause shown upon such terms and conditions as may be deemed appropriate by that Chair.

(6) Right to Counsel. Each party to a dispute shall have the right to be represented at the party's own expense by an attorney at any stage of the arbitration. For cause shown, or on its own motion, an arbitration panel may, in its discretion, obtain the volunteer services of and assign an attorney to represent either the petitioner or the attorney being complained against in any proceeding before the panel.

(7) Any notice or other communication required by this Rule 9 to be given to a petitioner shall be sufficient if mailed in accordance with these rules to the address set forth by petitioner in the petition. Any notice or other communication required to be given to an attorney shall be sufficient if mailed in accordance with these rules to an office or residence address set forth by the attorney on the most current registration statement filed pursuant to Rule 6(a) hereof.

(f) Failure of the Attorney to Reply. If the attorney fails, without good cause, to file a reply within 30 days next after the mailing of the copy of the petition, form of reply and the copy of the procedures and regulations; or if the attorney fails to appear in the proceedings without good cause, the panel may proceed to hear the petition and make its findings and award upon the evidence produced by the petitioner, and the attorney shall be bound by the findings and award of the panel in the same manner, and with the same effect, as on a default judgment entered by the Superior Court of this State.

(g) Arbitration Hearing.

(1) If, at the time set for a hearing before a panel, 3 members are not present, the chair of the panel, or in the event of the chair's unavailability, the other members or member present, may decide either to postpone the hearing, or, with the written consent of those parties present, to proceed with the hearing with two arbitrators, one of whom shall be a lay member.

(2) If any member of a panel dies or becomes unable to continue to act while the matter is pending and before an award has been made, the proceedings to that point shall be declared null and void and the matter assigned to a new panel for rehearing unless the parties, with the consent of the panel chair, or in the event of the chair's unavailability, the Chair of the Commission, consent to proceed with one or both of the remaining members of the panel.

(3) The members of the arbitration panels shall be vested with all of the powers, and shall assume all of the relevant duties granted and imposed upon neutral arbitrators by the Uniform Arbitration Act, 14 M.R.S.A. ? 5927 et seq., to the extent that the same is not in conflict with these rules.

(4) On the hearing date, the arbitration panel shall meet, take testimony, receive other evidence and otherwise conduct an impartial, fair and expeditious hearing on the matter.

(5) Upon request of a party to the arbitration or upon its own determination, an arbitration panel or its chair may, for good cause shown, adjourn or postpone the hearing from time to time.

(6) The chair of the panel shall preside at the hearing. For purposes of admissibility, the chair shall be the judge of the relevance and materiality of the evidence offered and shall rule on questions of procedure. The chair shall exercise all powers relating to the conduct of the hearing. Conformity to the Maine Rules of Evidence shall not be necessary.

(7) The petitioner and the attorney, or counsel representing them, shall be entitled to be heard, to present evidence and to cross-examine parties and witnesses appearing at the hearing. In addition, any panel member shall be entitled to make inquiries of any party or witness at the hearing.

(8) On request of the petitioner or the attorney or any member of the panel, the testimony of witnesses shall be given under oath. When so requested, the chair of the panel may administer oaths to witnesses testifying at the hearing.

(9) If a petitioner who has been notified of the time, date and place of the hearing in accordance with these procedures, fails to appear at the hearing, an arbitration panel or its chair may either postpone the hearing or proceed with the hearing and determine the controversy upon the petition, reply, and other evidence produced.

(10) Either the petitioner or the attorney may have the hearing reported at that party's own expense, but a party having the hearing reported must provide a copy of the transcript, free of charge, to the panel. Further, in such event, any other party to the arbitration shall be likewise entitled to a copy of the transcript, at that other party's own expense, by arrangements made directly with the reporter.

(11) In the event of the death or incompetency of a party to the arbitration proceeding prior to the close of the hearing, the proceeding shall abate without prejudice to either party to proceed in a court of proper jurisdiction to seek such relief as may be warranted. In the event of death or incompetency of a party after the close of the hearing but prior to a decision, the decision rendered shall be binding upon the heirs, administrators, or executors of the deceased and upon the estate or guardian of the incompetent.

(12) A witness or party may be summoned by subpoena to appear before a Fee Arbitration Commission panel. Any member of a Fee Arbitration Commission panel assigned to hear a dispute, a notary public or the clerk of the Superior Court in any county may issue subpoenas for witnesses and subpoenas duces tecum to compel the production of books, papers, photographs or other documents. The Fee Arbitration Commission Chair or any Chair of a panel, upon motion made promptly, and in any event at or before the time specified in the subpoena for compliance therewith, may quash or modify any subpoena issued for appearance before a Fee Arbitration Commission panel, if the subpoena is unreasonable or oppressive. Witness fees in all proceedings under this rule shall be the same as for witnesses before the Superior Court. When a subpoenaed witness fails to so appear without reasonable excuse, the Supreme Judicial Court or any justice thereof, or the Superior Court or any justice thereof, may, upon application of a member of the Fee Arbitration Commission, Bar Counsel, or other interested person, invoke the provisions of Rule 45(f) of the Maine Rules of Civil Procedure for such failure.

(13) In the event there is no written agreement or engagement letter between the parties concerning fees and expenses as to the particular matter in dispute, the arbitration panel shall require that the attorney bear the burden of proof of an agreement, or other basis for recovery of fees and expenses, and of the reasonableness of the fees and expenses.

(h) Arbitration Award.

(1) The decision of the arbitration panel shall be expressed in a written award, signed by all of the panelists hearing the matter, and thereupon filed with the Secretary. If there is a dissent, it shall be signed separately, but the award shall be binding if signed by a majority of the arbitrators. An award may also be entered on consent of the parties. Once the award is signed and filed, the hearing may not be reopened except upon consent of all parties and a majority of the arbitrators serving on the arbitration panel which heard the matter.

(2) The decision of the arbitrators and their award need not be in any particular form, but shall contain, as a minimum, a statement of the amount or nature of the award, if any, and the terms of payment, if applicable.

(3) The award and determination of the arbitration panel shall be rendered within 20 days after the close of the hearing, unless otherwise extended by the Chair of the Commission.

(4) A copy of the decision containing the award shall be forwarded by the Secretary to the petitioner, the respondent attorney, their respective counsel if any, the Chair of the Commission, and the Board as soon as reasonably possible after the same has been filed.

(i) Enforcement of the Award. Whenever an arbitration panel finds by its award that all or part of the fee paid by the petitioner should be refunded by the attorney, the attorney shall make the awarded refund within 30 days of receipt of the award. If the attorney fails to make the awarded refund within 30 days, the Board shall refer the matter to Bar Counsel for action pursuant to Rule 6(b)(6). The award rendered by an arbitration panel may be enforced in accordance with the Uniform Arbitration Act, 14 M.R.S.A. ? 5927 et seq. Section 5928 of Title 14, relating to proceedings to compel or stay arbitration is not applicable to proceedings under this rule.

(j) Confidentiality. With the exception of the award itself, all petitions, replies, records, documents, files, proceedings, and hearings pertaining to arbitrations of any fee dispute under these procedures and regulations shall be confidential, and, unless otherwise ordered by the Court, shall not be open to the public, press, or any person not involved in the dispute, excepting only the staff and members of the Commission, the Board, the Committee on Judicial Responsibility and Disability in connection with any complaint within its jurisdiction, and any justice of the Court. Notwithstanding that confidentiality, any person, including but not limited to members of the Board, Fee Arbitration Commission and Board staff may notify governmental officials of actual or threatened criminal conduct by any individual.

(k) Immunity.

(1) In the absence of malice, the petitioner and any witness shall be immune from liability based upon the filing of a fee complaint or petition and the giving of any testimony in any proceeding hereunder.

(2) [Deleted effective January 1, 1995.].

RULE 10. ASSESSMENT OF ATTORNEYS FOR EXPENSES OF ADMINISTRATION

(a) Annual Fee. Every attorney required to register in accordance with these rules, other than judicial law clerks, members of the armed forces of the United States who are on active duty outside of the State of Maine, and suspended attorneys, shall pay an annual fee as established by the Court, which shall be paid to the Board with the registration statement on or before August 31 as required by Rule 6(a)(1). Judicial law clerks and members of the armed forces of the United States who are on active duty outside of the State of Maine must file a registration statement and pay the annual fee required for the year in which active or inactive practice is resumed within 30 days of completion of their service. In addition to any registration fee required under the provisions of Maine Bar Rule 6(c)(1), the registration fee for attorneys registering in emeritus status under Rule 6(d) shall be $25.00 per year until otherwise ordered by the Court.

(b) Failure of Payment. Any attorney who fails to pay the fee required under subdivision (a) of this rule with the annual registration statement by August 31 is automatically suspended. Notice of the suspension shall be given by the Board by registered or certified mail, and return receipt requested, addressed to the office or home address last known to the Board. Such suspension shall not be effective until thirty (30) days after the date of mailing the notice thereof. The failure to pay shall not be considered a violation of the Code of Professional Responsibility per se and the suspension for failure to pay shall not constitute the imposition of discipline. Any suspension pursuant to this subdivision shall be subject to Maine Bar Rules 7.3(i)(2) and 7.3(j)(4). An attorney who, after the date of the mailing of such notice of suspension but before the effective date of such suspension, pays the annual fee as required under subdivision (a) of this rule and receives from the Board acknowledgement of such payment, shall be deemed to be in compliance with this rule and shall not be suspended for failure to pay such fee. An attorney aggrieved as a result of a suspension may apply to the Board Chair for summary relief for good cause shown.

(c) Reinstatement Fees. Any attorney suspended under the provisions of subdivision (b) of this rule shall, prior to reinstatement, pay all arrears due from the date of the attorney's last payment to the date of the request for reinstatement, and shall also pay in addition to the $25.00 late fee imposed by Rule 6(a)(1) a reinstatement assessment of $125.00 unless excused from such reinstatement assessment by the Board as a result of its determination that to impose the same would result in a grave injustice under the circumstances. Attorneys who have been suspended within the previous five (5) years for non-compliance with M. Bar R. 12, shall be assessed an additional $50.00 reinstatement fee.

(d) Amount of Fees. The annual fees for the following categories shall be established from time to time by order of the Court on recommendation of the Board:

(1) Attorneys admitted to the practice of law in this State but conducting their practice primarily in another jurisdiction, and not maintaining an office here.

(2) Attorneys admitted to the bar of this State or any other jurisdiction for 3 or fewer years as of January 1 of that year.

(3) Attorneys admitted to the bar of this State or any other jurisdiction for more than 50 years as of such date.

(4) All other attorneys.

(e) Use of Fees Paid. The fees so paid, pursuant to the foregoing sections, together with any other source of funds made available to the Board, shall be used to defray the costs of attorney registration, disciplinary investigation, hearings and enforcement, expenses of fee arbitrations and for such other purposes as the Board, with the approval of the Court, may determine.

(f) Audit. The Board shall annually obtain an independent audit by a certified public accountant of the funds entrusted to it and their disposition, and shall file a copy of such audit with the Court.

RULE 11. PROFESSIONAL ETHICS COMMISSION

(a) Term. Initial members of the Professional Ethics Commission shall serve as follows: Two of its members shall be appointed for a term of 4 years; two of its members for a term of 3 years; two of its members for a term of 2 years; and two of its members for a term of 1 year. Appointments thereafter shall be for terms of 4 years, or where appropriate, for the balance of an unexpired term. No member shall be appointed to more than 2 consecutive full terms, but a member appointed for less than a full term (originally or to fill a vacancy) may serve 2 full terms in addition to such part of a full term, and a former member shall again be eligible for appointment after a lapse of 1 year. The Board shall appoint the Chair of the Professional Ethics Commission each year from among its members.

(b) Quorum and Action. A quorum shall exist for the purposes of the Commission's exercise of its authority and duties when a majority of its members are present. The concurrence of a majority of such members present shall be sufficient for any action taken.

(c) Authority and Duties. The Professional Ethics Commission shall be subject to such rules and procedures as shall be adopted or approved by the Board. The Professional Ethics Commission:

(1) Shall 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);

(2) May render advisory opinions on ethical questions posed by attorneys involving the Code of Professional Responsibility (Rule 3);

(3) Shall maintain, at a location within this State approved by the Board, a library containing opinions on ethical questions which have been rendered by the Professional Ethics Committee of the American Bar Association and by other ethics committees in other jurisdictions, such library to be available for the benefit of the Court, the Board, Bar Counsel, the Grievance Commission, and interested attorneys admitted to the Bar of this State;

(4) May make recommendations to the Board regarding amendments to the Code of Professional Responsibility (Rule 3); and

(5) Shall maintain indexed and up-to-date compilations of its opinions in such manner as shall permit the same to be available to the Court, the Board, Bar Counsel, the Grievance Commission, and to such others as the Board shall determine.

(d) Opinions as Evidence. Opinions of the Professional Ethics Commission shall be admissible in any proceeding in which the interpretation or application of a provision of the Code of Professional Responsibility (Rule 3) is in issue.

(e) Immunity. [Deleted effective January 1, 1995.]

(f) Confidentiality. With the exception of an advisory opinion finally rendered pursuant to this Rule, all inquiries, replies, records, documents, files, and proceedings pertaining to the interpretation of ethical rules and the rendering of advisory opinions with respect thereto shall be confidential, and, unless otherwise ordered by the Court, shall not be opened to the public, press or any person not involved in the rendering of the advisory opinions, excepting only the staff and members of the Professional Ethics Commission and their professional associates actively involved in working on an advisory opinion for such member, the staff and members of the Grievance Commission, Bar Counsel, the staff and members of the Board, and any justice of the Court. No person shall publicly disclose the identity of another individual whose conduct was the subject of an advisory opinion without the consent of that individual.

RULE 12. CONTINUING LEGAL EDUCATION

(a) Continuing Legal Education Requirement.

(1) Except as otherwise provided in this subdivision, every attorney required to register in accordance with these rules of this state shall complete 11 credit hours of approved continuing legal education in each calendar year beginning January 1, 2001. At least one credit hour in each calendar year shall be primarily concerned with issues of ethics or professional responsibility. If an attorney is subject to this rule for more than 3 months of a calendar year but for less than the entire year, the number of credits required for that year shall be prorated according to the number of full months of the year in which the attorney is subject to this rule. However, an attorney who has registered in emeritus attorney status is required to complete only seven credit hours of approved continuing legal education in each calendar year beginning January 1, 2005, unless exempted from the requirements of continuing legal education as provided by Maine Bar Rule 12(a)(5)(F).

(2) An attorney who completes more than 11 credit hours in a calendar year may carry forward up to 10 such additional hours to satisfy the requirement of the following year, provided that the ethics or professional responsibility requirement of paragraph (1) of this subdivision is satisfied for each calendar year.

(3) The requirement of paragraph (1) of this subdivision may be met only by teaching (as provided in subsection (8)), attending courses or completing any continuing legal education activity entitled to credit as provided in subdivisions (d) and (e) of this rule; provided that no more than one half of the credit hours required in any reporting period may be earned through in-office courses, self-study, or a combination thereof.

(4) An attorney subject to this rule who is a member of the bar of another state which has a mandatory CLE requirement, and who is regularly engaged in the practice of law in that state, satisfies the requirement of paragraph (1) of this subdivision if the attorney is in compliance with a continuing legal education requirement established by court rule or statute in that state. If the other state does not require the equivalent of at least one credit hour per year in ethics or professional responsibility, the attorney must complete at least one approved credit hour in ethics or professional responsibility in each calendar year. An attorney subject to this rule who is a member of the bar of another state must meet the requirement of paragraph (1) of this subdivision if continuing legal education is not mandated by court rule or statute in the other state.

(5) The following individuals otherwise subject to this rule are exempted from its requirements:

(A) Attorneys in inactive status pursuant to Rule 6(c);

(B) Full-time judges in any state or federal jurisdiction;

(C) Full-time teachers in any law school approved by the American Bar Association;

(D) Members of the armed forces of the United States who are on active duty outside the State of Maine;

(E) Residents of another country unless they are practicing law in Maine;

(F) Attorneys who have practiced 40 years or more, attained the age of 65 years, and are engaged in less than the full-time practice of law;

(G) In the discretion of the Board, any individual may be exempted from all or part of the requirements of this rule upon a showing of hardship, disability or for other good cause.

(H) Legislators and members of Congress.

(I) Attorneys serving as judicial law clerks.

(6) An attorney subject to this rule will be exempted from the requirements of paragraph (1) of this subdivision during the year in which the attorney is admitted to the bar of this state and during the following calendar year, if during the year of admission the attorney completes the Bridging the Gap program or other practical skills course approved as provided in subdivisions (d) and (e) of this rule.

(7) Except as provided in paragraphs (8) and (9) of this subdivision, credit is earned for the time of actual participation in an approved course or activity.

(8) An attorney subject to this rule who makes a presentation in an approved course or activity not offered for academic credit by the sponsoring institution will earn two credit hours for every 30 minutes of actual presentation if the attorney has prepared substantial written materials to accompany the presentation. If substantial written materials have not been prepared, the attorney will earn one credit hour for every 30 minutes of actual presentation. An attorney who teaches a regularly scheduled law-related course offered for academic credit at an accredited post secondary educational institution will earn six credit hours under this rule for every hour of academic credit awarded by the institution for the course. An attorney who assists or participates in such a regularly scheduled course will earn one credit hour for every hour of actual participation, up to a maximum of six hours.

(9) An attorney subject to this rule who formally takes for credit or officially audits a regularly scheduled course offered for academic credit at a law school approved by the American Bar Association will earn four credit hours under this rule for every hour of academic credit awarded by the institution for the course, provided that the attorney attends at least 75% of the classes in the course and, if enrolled for academic credit, receives a passing grade.

(b) Reporting Continuing Legal Education Credit.

(1) An attorney subject to this rule shall annually in connection with the filing of the registration statement required by Rule 6(a), sign and submit the Annual Report to the Board providing the course title, date, location, sponsor, and number of credit hours of all courses or other activities taken for credit pursuant to subdivision (a) of this rule during the preceding calendar year, or carried over from a prior year as provided in paragraph (2) of subdivision (a). If a reported course or other activity has not previously been approved in accordance with subdivisions (d) and (e) of this rule, the attorney shall also submit the information required under subdivision (e) to support a request for such approval. An attorney claiming exemption in accordance with paragraphs (4)-(6) of subdivision (a) of this rule shall state the ground of exemption in lieu of reporting the foregoing information.

(2) The Board may at any time ask an attorney to provide documentation supporting any information reported in accordance with paragraph (1) of this subdivision.

(c) Sanctions and Appeal.

Any attorney subject to the requirements of this rule who fails to sign and submit the Annual Report Statement demonstrating compliance with, or exemption from, those requirements by August 31 is automatically suspended. Notice of the suspension shall be given by the Board by registered or certified mail, return receipt requested addressed to the office or home address last known to the Board. Such suspension for failure to comply with this rule shall not be effective until thirty (30) days after the date of mailing the notice thereof. The failure to file shall not be considered a violation of the Code of Professional Responsibility per se, and the suspension for failure to file shall not constitute the imposition of discipline. An attorney who, after the date of the mailing of such notice of suspension but before the effective date of such suspension, reports compliance with this rule, takes steps satisfactory to the Board to meet the requirements of the rule for the year in question or applies for a waiver on the basis of hardship, disability or for other good cause shall not be suspended for failure to comply with this rule; otherwise the attorney shall be subject to Maine Bar Rules 7.3(i)(2) and (j). An attorney aggrieved as a result of a suspension under this paragraph may apply to the Board Chair for summary relief for good cause shown.

(d) Reinstatement Fees.

An attorney suspended under provisions of subdivision (c) of this rule shall, prior to reinstatement, demonstrate compliance with or exception from the requirements of M. Bar R. 12. The suspended attorney shall pay, in addition to the $25.00 late fee imposed by Rule 6(a)(1), a reinstatement fee of $125.00 unless excused from such reinstatement fee by the Board as a result of its determination that to impose the fee would result in a grave injustice under the circumstances. An attorney who has been suspended within the previous five (5) years for non-compliance with M. Bar R. 12, shall be assessed an additional $50.00 reinstatement fee.

(e) Courses and Other Activities Entitled to Credit.

(1) All publicly available courses or other publicly available continuing legal education activities offered by the following sponsors are deemed automatically approved and entitled to credit upon payment of the requisite fees for purposes of subdivision (a) of this rule: any national, state or county bar association, American Trial Lawyers' Association; Maine Prosecutors' Association; Maine Association of Criminal Defense Lawyers; Maine Trial Lawyers Association; Maine or American Civil Liberties Union; National Association of Attorneys General; National Legal Aid and Defenders' Association; Practicing Law Institute; Probate Judges Assembly; governmental units or agencies; public bar admission, bar registration or discipline, continuing legal education, or similar agencies created by court rule or statute in any state; law schools approved by the American Bar Association; providers affiliated with such an association, agency, or law school; or other organizations approved by the Board.

(2) All courses or other continuing legal education activities sponsored or presented by any other individual or organization are entitled to credit for purposes of subdivision (a) of this rule if the sponsor or the individual course or activity has been approved by the Board in accordance with subdivision (e) of this rule.

(3) The Board may delegate all approval and other functions under this subdivision and subdivision (e) of this rule to Bar Counsel. The Board shall, by regulation, provide for Board review of any decision of Bar Counsel denying approval of any sponsor, individual course, or other continuing legal education activity. The Board's determination of any such issue shall be final.

(f) Approval Procedure.

(1) Sponsor Approval. A sponsor may be approved by the Board upon payment of the requisite fees and submission of evidence establishing to the satisfaction of the Board:

(A) That the sponsor has been approved or accredited by a continuing legal education accrediting authority established by court rule or statute in another state; or

(B) That, during the immediately preceding three years, the sponsor has sponsored at least six separate courses that comply with the requirements for individual course approval under paragraph (2) of this subdivision.

Approval granted pursuant to this paragraph must be renewed every three years by submission of the evidence required in subparagraph (A) or (B). The Board may at any time review the status of a sponsor approved under subparagraph (A) or specific courses offered by a sponsor approved under subparagraph (B) and may revoke approval if the status has changed or the courses offered by the sponsor do not comply with the requirements of paragraph (2) of this subdivision. Requests for approval may be submitted using the Application form contained in the Appendix to these Rules, supplemented by such supporting information as would assist the Board in determining whether the sponsor meets the requirements of this Rule.

(2) Individual Course Approval. The Board may approve individual courses for credit under subdivision (a) of this rule upon written application from a non-approved sponsor or the submission of supporting documentation from an approved sponsor, together with the requisite fee. An approved sponsor or a non-approved sponsor that seeks approval of a course must file a request for approval accompanied by a full description of the course with the Board at least 30 days before the course is to be presented.

An attendee may file such a request together with the requisite fee at any time up to and including the filing of the annual report under subdivision (b) of this rule for the year for which credit is sought for the course. The Board shall grant the request if the Board is satisfied that the course meets the following criteria:

(A) The course or activity must contribute directly to the professional competence or skills of attorneys, or to their education with respect to their professional or ethical obligations and, where possible, should include an ethics or professional responsibility component.

(B) Course leaders or lecturers and the authors of written materials must be persons sufficiently competent to accomplish the educational goals of the course. The Board may, prior to granting approval, request any approved sponsor, non-approved sponsor, or attendee to submit further information concerning a course, including the brochure describing the course, a description of the method or manner of presentation of course materials, a statement as to the actual date and place of presentation and the number of persons in attendance, and a copy of the course materials.

(3) In-office and Self-study Continuing Legal Education. Courses offered by law firms, either individually or jointly with other law firms, by corporate legal departments, or by similar entities which employ attorneys, if such courses are provided primarily for the education of the sponsor's members or employees, and group or individual self-study courses involving the use of written materials, audio or video tapes, computers, or other teaching methods and materials may be approved for credit under subdivision (a) of this rule upon submission of evidence establishing to the satisfaction of the Board that:

(A) The course complies with the standards set forth in paragraph (2) of this subdivision;

(B) Experienced lawyers will contribute to the development or teaching of the course;

(C) The course or self-study will be scheduled at a time and location that will be free of interruption.

Information describing the course, activity or program and a request for approval shall be filed by the offering firm or other entity, by an individual attendee or by any other individual seeking approval within the time limits provided in paragraph (2) of this subdivision. Requests for approval may be submitted using the Application form contained in the Appendix to these Rules, supplemented by such supporting information as would assist the Board in determining whether the course, activity or program meets the requirements of this Rule. If a course or a program of self-study consists of listening to or watching the electronic replay of a previously presented continuing legal education program, the Board shall allocate credit hours to the course in the same manner as for a live program. For other courses or self-study activities, the Board shall determine the amount of credit hours on the basis of program content and the likely duration of the activity.

Preamble from the Maine Task Force on Ethics

[1] The Maine Supreme Judicial Court adopted these rules of professional responsibility to coordinate with the American Bar Association?s review of the Model Rules of Professional Conduct in 2000 and 2002. Maine?s acceptance of these rules maximizes conformity with those states embracing the ABA Model Rules and also preserves the integrity of the manner in which Maine lawyers practice law. The ABA Model Rules and the Maine Bar Rules involve the same core conduct. These rules follow the numbering system used in the ABA Model Rules and in states ratifying the ABA rules, and as much as possible, follow the language of the applicable ABA rules.

[1A] These Maine Rules of Professional Conduct are the product of Task Force study and recommendations, public comment and, as to the Rules themselves, review by the Maine Supreme Judicial Court. The Maine Supreme Judicial Court adopts these rules as edited and published here. The Preamble, Scope, Comments and Reporter?s Notes have not been specifically adopted by the Maine Supreme Judicial Court. The Preamble, Scope, Comments and Reporter?s Notes are published with the Rules for background information and illustration.

[2] In some instances language found in the former Maine Bar rules is imported into a particular provision. In other instances additional regulatory principles are introduced into a rule. Some rules do not follow the ABA rules, for example Rule 1.6 Confidentiality of Information. Therefore, it is critically important that the user of these Maine Rules of Professional Conduct understand that the Maine Rules of Professional Conduct are not identical to the ABA Model Rules.

[2A] The Maine Task Force was instructed to preserve the structure of the ABA Model Rules (which include Comments) when possible. If provisions of the ABA Model Rules were not incorporated into these Maine Rules of Professional Conduct, those sections appear as ?[Reserved]? sections or Comments. Otherwise, topical and substantive provisions of these Maine Rules of Professional Conduct appear in the same numbered Rule and Comment as the ABA Model Rules.

[3] [Reserved]

[4] [Reserved]

[5] [Reserved]

[6] [Reserved]

[7] [Reserved]

[7A] In addition to the Maine Rules of Professional Conduct the Maine Supreme Judicial Court has promulgated two aspirational goals for lawyers. One addresses pro bono publico service. The second addresses the substance and style of lawyer advertising. These aspirational goals were found at Maine Bar Rule 2-A and 2-B, and are now found in Rule 6.1 (Pro bono service) and Rule 7.2-A (lawyer advertising) of these Rules.

[8] [Reserved]

[9] [Reserved]

[10] [Reserved]

[11] [Reserved]

[12] [Reserved]

[13] [Reserved]

[14A] The Maine Supreme Judicial Court has not adopted the Preamble, Comments or Reporter?s Notes. The Comments and Notes are published with the rules to provide background information and illustration.

[14B] The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms ?shall? or ?shall not.? These define proper conduct for purposes of professional discipline. Others, generally cast in the term ?may,? are permissive and define areas under the Rules in which the lawyer has discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are partly obligatory and disciplinary and partly constitutive and descriptive where they define a lawyer?s professional role. Many of the Comments use the term ?should.? Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules. The Reporter?s Notes are designed to elucidate and provide historical context for the recommendations of the Maine Task Force on Ethics.

[15] The Rules presuppose a larger legal context shaping the lawyer?s role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. The Comments are to alert lawyers to their responsibilities under such other law.

[16] Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.

[17] Furthermore, for purposes of determining the lawyer?s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. See Rule 1.18. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.

[18] Under various legal systems, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily resides in the client in private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects generally is vested in the attorney general and the state?s attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in legal controversies in circumstances where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority.

[19] Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose disciplinary assessment of a lawyer?s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations.

[20] Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact a Rule is a just basis for a lawyer?s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer?s violation of a Rule may be evidence of breach of the applicable standard of conduct.

[21] The Comment and Reporter?s Notes accompanying each Rule explain and illustrate the meaning and purpose of the Rule. The Preamble provides general orientation. The Comments and Reporter?s Notes are intended as guides to interpretation. However, only the text of each Rule is authoritative to govern attorney conduct.

1.0 Definitions and Terminology

As used in these Rules, the following terms shall have the following meanings:

(a) ?Belief? or ?believes? means the person involved actually supposed the fact in question to be true. A person?s belief may be inferred from circumstances.

(b) ?Confirmed in writing,? referring to the informed consent of a person means informed consent given in writing by the person or a writing a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of ?informed consent.? If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.

(c) ?Firm? or ?law firm? means a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; lawyers employed by the government to represent the government or a governmental entity; or lawyers in a legal services organization or the legal department of a corporation or other organization.

(d) ?Fraud? or ?fraudulent? means conduct fraudulent under the substantive or procedural law of the applicable jurisdiction and for the purpose to deceive.

(e) ?Informed consent? means a person?s agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. Whether a client has given informed consent to representation shall be determined in light of the mental capacity of the client to give consent, the explanation of the advantages and risks involved provided by the lawyer seeking consent, the circumstances under which the explanation was provided and the consent obtained, the experience of the client in legal matters generally, and any other circumstances bearing on whether the client has made a reasoned and deliberate choice.

(f) ?Knowingly,? ?known,? or ?knows? means actual knowledge of the fact in question. A person?s knowledge may be inferred from circumstances.

(g) ?Partner? means a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law.

(h) ?Reasonable? or ?reasonably? when referring to a lawyer?s conduct means the conduct of a reasonably prudent and competent lawyer.

(i) ?Reasonable belief? or ?reasonably believes? when referring to a lawyer means the lawyer believes the matter in question and the circumstances are such that the belief is reasonable.

(j) ?Reasonably should know? when referring to a lawyer means a lawyer of reasonable prudence and competence would ascertain the matter in question.

(k) ?Screened? means the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm reasonably adequate under the circumstances to protect information the isolated lawyer is obligated to protect under these Rules or other law.

(l) ?Substantial? when referring to degree or extent means a material matter of clear and weighty importance.

(m) ?Tribunal? means a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party?s interests in a particular matter.

(n) ?Writing? or ?written? means a tangible or electronic record of a communication or representation, including, but not limited to, handwriting, typewriting, printing, Photostatting, photography, audio or video recording and e-mail. A ?signed? writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.

(o) "Advance," "advance payment of fees," or "retainer" means a payment by a client in anticipation of the future rendition of services that is not earned until such services are rendered and that is to be credited toward the fees earned when such future services are rendered.

(p) "Nonrefundable fee" means a fee paid to an attorney and earned by the attorney before professional services are rendered. Such a nonrefundable fee may be in exchange for retaining the attorney's availability alone or may be in exchange also for the right to receive specified services in the future for no additional fee, or for a stated fee.

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Comment

Confirmed in Writing

[1] If it is not feasible to obtain or transmit a written confirmation at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. If a lawyer has obtained a client?s informed consent, the lawyer may act in reliance on that consent so long as it is confirmed in writing within a reasonable time thereafter.

Firm

[2] Whether two or more lawyers constitute a firm within paragraph (c) can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way that suggests that they are a firm or conduct themselves as a firm, they should be regarded as a firm for purposes of the Rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the Rule that is involved. A group of lawyers could be regarded as a firm for purposes of the Rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the Rule that information acquired by one lawyer is attributed to another.

[3] With respect to the law department of an organization, including the government, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct. There can be uncertainty, however, as to the identity of the client. For example, it may not be clear whether the law department of a corporation represents a subsidiary or an affiliated corporation, as well as the corporation by which the members of the department are directly employed. A similar question can arise concerning an unincorporated association and its local affiliates.

[4] Similar questions can also arise with respect to lawyers in legal aid and legal services organizations. Depending upon the structure of the organization, the entire organization or different components of it may constitute a firm or firms for purposes of these Rules.

Fraud

[5] When used in these Rules, the terms ?fraud? or ?fraudulent? refer to conduct that is characterized as such under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these Rules, it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform.

Informed Consent

[6] Many of the Rules of Professional Conduct require the lawyer to obtain the informed consent of a client or other person (e.g., a former client or, under certain circumstances, a prospective client) before accepting or continuing representation or pursuing a course of conduct. See, e.g., Rules 1.2(c), 1.6(a) and 1.7(b). The communication necessary to obtain such consent will vary according to the Rule involved and the circumstances giving rise to the need to obtain informed consent. The lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client?s or other person?s options and alternatives. In some circumstances it may be appropriate for a lawyer to advise a client or other person to seek the advice of other counsel. A lawyer need not inform a client or other person of facts or implications already known to the client or other person; nevertheless, a lawyer who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid. In determining whether the information and explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in legal matters generally and in making decisions of the type involved, and whether the client or other person is independently represented by other counsel in giving the consent. Normally, such persons need less information and explanation than others, and generally a client or other person who is independently represented by other counsel in giving the consent should be assumed to have given informed consent.

[7] Obtaining informed consent will usually require an affirmative response by the client or other person. In general, a lawyer may not assume consent from a client?s or other person?s silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter. A number of Rules require that a person?s consent be confirmed in writing. See Rules 1.7(b) and 1.9(a). For a definition of ?writing? and ?confirmed in writing,? see paragraphs (n) and (b). Other Rules require that a client?s consent be obtained in a writing signed by the client. See, e.g., Rules 1.8(a) and (g). For a definition of ?signed,? see paragraph (n).

Screened

[8] This definition applies to situations where screening of a personally disqualified lawyer is permitted to remove imputation of a conflict-of-interest under Rules 1.11, 1.12 or 1.18.

[9] The purpose of screening is to assure the affected parties that confidential information known by the personally disqualified lawyer remains protected. The personally disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the firm with respect to the matter. Similarly, other lawyers in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified lawyer with respect to the matter. Additional screening measures that are appropriate for the particular matter will depend on the circumstances. To implement, reinforce and remind all affected lawyers of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened lawyer to avoid any communication with other firm personnel and any contact with any firm files or other materials relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer relating to the matter, denial of access by the screened lawyer to firm files or other materials relating to the matter and periodic reminders of the screen to the screened lawyer and all other firm personnel.

[10] In order to be effective, screening measures must be implemented as soon as practical after a lawyer or law firm knows or reasonably should know that there is a need for screening.

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Advisory Committee's Note - June 2014

Definitions have been added for "advance," "advance payment of fees," and "retainer" at Rule 1.0(o); and "nonrefundable fee" at Rule l.0(p).

A stylistic change has been made in the use of the term "retainer." Historically, the Rules and Ethics Opinions interpreting the Rules have used the term "retainer" to mean a fee that is earned on receipt, in contrast to an advance, which is not earned until future services are rendered. That usage was peculiar to the Rules. It did not conform to usage by lay people and even by many lawyers, who use the term "retainer" to refer to an advance that will be credited against future bills for services. In order to comport with common usage, the term "retainer" is now included in the definition of "advance," to be synonymous with that term.

This stylistic change is not meant to change the substantive principle that unearned fees (whether called "advances" or "retainers") must be kept in a lawyer's trust account before they are earned. It also is not meant to do away with the concept that was formerly referred to as a "retainer," namely a fee that is earned on receipt before services are rendered and not to be refunded. The previous definition of "retainer," which appeared in Rule 1.15(b)(7)(iii), has been removed from that Rule, and the concept it expressed is now captured in the newly defined term "nonrefundable fee."

The definition of "nonrefundable fee" clarifies that such fees, earned on receipt, are not limited to so-called "availability retainers." Rather, a fee may be earned on receipt, even though the parties expect the lawyer to render future services, even at no additional charge. So long as the fee is reasonable, such an agreed-upon fee is not refundable, even though the future services are not rendered (for example, because they end up not needed or because the client terminates the representation). The Committee intends this broader definition to displace the narrower concept of a "general retainer" or "availability retainer" expressed in Ethics Opinion No. 206 (Dec. 12, 2012) of the Professional Ethics Commission. A lawyer's acceptance of a nonrefundable fee is subject to requirements set forth in Rule l.5(h). The requirement that all advances be placed in a trust account is set forth in Rule 1.15(b). Rule 1.16(d) requires a lawyer to return the unearned portion of an "advance payment of fees" on termination of representation, and does not require the return of a "nonrefundable fee."

1.1 Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

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COMMENT

Legal Knowledge and Skill

[1] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer?s general experience, the lawyer?s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances.

[2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.

[3] In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client?s interest.

[4] A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person. See also Rule 6.2.

Thoroughness and Preparation

[5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible. See Rule 1.2(c).

Maintaining Competence

[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

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REPORTER?S NOTES:

Model Rule 1.1 (2002) is substantively equivalent to M. Bar R. 3.6(a). The Task Force discussed whether to expand upon the language of Model Rule 1.1 (2002) and ultimately recommended that the language in Model Rule 1.1 (2002), read together with the Comments, was elegant in its simplicity and accurately communicated the substance of M. Bar R. 3.6(a).

The Task Force considered the issue of whether a lawyer?s liability for malpractice would be a per se violation of Rule 1.1. In the same way the Maine Rules of Professional Conduct are not designed to be the basis for civil liability, the Task Force recognized that a determination of civil liability should not itself be the basis for a Rule violation. The Task Force observed not every mistake made by lawyers suggests incompetence. See Preamble [20].

1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client?s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. Subject to the Rules with respect to Declining or Terminating Representation (Rule 1.16), a lawyer shall abide by a client?s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client?s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer?s representation of a client, including representation by appointment, does not constitute an endorsement of the client?s political, economic, social or moral views or activities.

(c) A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client provides informed consent after consultation. If, after consultation, the client consents, an attorney may enter a limited appearance on behalf of an otherwise unrepresented party involved in a court proceeding. A lawyer who signs a complaint, counterclaim, cross-claim or any amendment thereto that is filed with the court, may not thereafter limit representation as provided in this rule, without leave of court.

(d) A lawyer, who under the auspices of a non-profit organization or a court-annexed program provides limited representation to a client without expectation of either the lawyer or the client that the lawyer will provide continuing representation in the matter, is subject to the requirements of Rules 1.7, 1.9, 1.10 and 1.11 only if the lawyer is aware that the representation of the client involves a conflict-of-interest.

(e) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

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COMMENT

Allocation of Authority between Client and Lawyer

[1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer?s professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) for the lawyer?s duty to communicate with the client about such decisions. With respect to the means by which the client?s objectives are to be pursued, the lawyer shall consult with the client as required by Rule 1.4(a)(2) and may take such action as is impliedly authorized to carry out the representation.

[2] On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client?s objectives. Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 1.16(b)(4). Conversely, the client may resolve the disagreement by discharging the lawyer. See Rule 1.16(a)(3).

[3] At the outset of a representation, the client may authorize the lawyer to take specific action on the client?s behalf without further consultation. Absent a material change in circumstances and subject to Rule 1.4, a lawyer may rely on such an advance authorization. The client may, however, revoke such authority at any time.

[4] In a case in which the client appears to be suffering diminished capacity, the lawyer?s duty to abide by the client?s decisions is to be guided by reference to Rule 1.14.

Independence from Client?s Views or Activities

[5] Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client?s views or activities.

Agreements Limiting Scope of Representation

[6] Both lawyer and client have authority and responsibility to determine the objectives and means of representation. The scope of services to be provided by a lawyer may be limited by agreement with the client. In situations where the lawyer will not be providing limited representation in court, the limited representation agreement must be reasonable under the circumstances. If, for example, a client?s objective is limited to securing general information about the law and the client?s needs in order to handle a common and typically uncomplicated legal problem, the lawyer and the client may agree that the lawyer?s services will be limited to a brief telephone consultation or office visit. Such a limitation, however, will not be reasonable if the time allotted was not sufficient to yield advice upon which the client can rely. Although an agreement for limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. A lawyer?s advice may be based upon the scope of the representation agreed upon by the lawyer and client, and the client?s representation of the facts.

[6A] While a writing memorializing the agreement is not required, to the extent a writing can be obtained, it is a better practice to do so for both the lawyer and the client.

[6B] In situations involving limited representation in court of an otherwise unrepresented party, an agreement outlining the scope of representation is required, and a written memorandum of the scope of representation is recommended. A lawyer providing limited representation in court proceedings should include in the consultation with the client an explanation of the risks and benefits of the limited representation. A general form of the agreement is attached for reference.

[6C] An attorney reasonably may rely on the information provided by the limited representation client. This rule does not reduce an attorney?s obligation to provide competent representation, but makes clear the preparation for the legal matter is limited along with the scope of the representation.

[7] Rule 1.2(c) allows the client and lawyer to agree to the parameters, including time limitations, on the scope of representation, and allows the attorney to withdraw from pending litigation or otherwise terminate representation in accordance with the agreement with the client, or when permitted by the court as set forth in 1.2(c). Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client?s objective is limited to securing general information about a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer?s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.

[7A] Legal service organizations, courts, and various non-profit organizations have established programs through which lawyers provide limited legal services?typically advice?that will assist persons with limited means to address their legal problems without further representation by a lawyer. In these programs, such as legal advice hotlines, advice-only clinics, lawyer for the day programs in criminal or civil matters, or pro se counseling programs, an attorney-client relationship is established, but there is no expectation that the lawyer?s representation of the client will continue beyond the limited consultation. It is the purpose of this Rule to provide guidance to lawyers about their professional responsibilities when serving a client in this capacity.

[7B] The phrase ?is aware? as used in Rule 1.2(d) should be distinguished from the term ?knows? as defined in Rule 1.0: Definitions and Terminology. ?Knows,? according to the definition, means actual knowledge of the fact in question, which may be inferred from circumstances. In contrast, ?is aware? allows a lawyer, in the limited circumstances described in Rule 1.2(d), to represent clients without risk of a violation of Rules 1.7, 1.9, 1.10 and 1.11, if the lawyer knows, based on reasonable recollection and information provided by the client in the ordinary course of the consultation, that the representation does not present a conflict-of-interest. In such a case, knowledge may not be inferred from circumstances. This is because a lawyer who is representing a client in the circumstances addressed by Rule 1.2(d) is not able to check systematically for conflicts. A conflict-of-interest that would otherwise be imputed to a lawyer because of the lawyer?s association with a firm will not preclude the lawyer from representing a client in a limited services program. Nor will the lawyer?s participation in such a program preclude the lawyer?s firm from undertaking or continuing the representation of clients with interests adverse to a client being represented under the program?s auspices.

[8] All agreements concerning a lawyer?s representation of a client must accord with the Rules of Professional Conduct and other law. See, e.g., Rules 1.1, 1.8 and 5.6.

Criminal, Fraudulent and Prohibited Transactions

[9] Paragraph (e) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client?s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

[10] When the client?s course of action has already begun and is continuing, the lawyer?s responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1.

[11] Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary.

[12] Paragraph (e) applies whether or not the defrauded party is a party to the transaction. Hence, a lawyer must not participate in a transaction to effectuate criminal or fraudulent avoidance of tax liability. Paragraph (e) does not preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. The last clause of paragraph (e) recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities.

[13] If a lawyer comes to know or reasonably should know that a client expects assistance not permitted by the Rules of Professional Conduct or other law or if the lawyer intends to act contrary to the client?s instructions, the lawyer must consult with the client regarding the limitations on the lawyer?s conduct. See Rule 1.4(a)

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REPORTER?S NOTES:

Model Rule 1.2 addresses the allocation of authority for decision making between lawyers and clients. The framework of the Rule makes a distinction between ?objectives? and ?means,? but as a practical matter, there is often overlap between these realms of authority. Generally, a client decides the objectives of representation, while the lawyer is engaged to make educated decisions about the means by which to pursue such.

Paragraph (b) makes clear that representation of a client does not constitute an endorsement of a client?s views. This provision was included to encourage the representation of unpopular clients.

The Task Force recommended the revision of Model Rule 1.2 (2002) to reflect the substance of M. Bar R. 3.4(i), which allows for the limited representation of clients. As described in Comment [7A], legal service organizations, courts, and various non-profit organizations have established programs through which lawyers provide limited legal services?typically advice?that will assist persons with limited means to address their legal problems without further representation by a lawyer. In these programs, such as legal advice hotlines, advice-only clinics, lawyer for the day programs in criminal or civil matters, or pro se counseling programs, an attorney-client relationship is established, but there is no expectation that the lawyer?s representation of the client will continue beyond the limited consultation. It is the purpose of this Rule to provide guidance to lawyers about their professional responsibilities when serving a client in this capacity. Maine Rule of Professional Conduct 6.5 describes the application of the conflict-of-interest rules in the context of such limited representation. (The Task Force acknowledges that the Federal District Court does not allow limited appearances on behalf of clients. Local Rule 83.2(b).)

Rule 1.2 (e) prohibits a lawyer from assisting or advising a client to engage in criminal or fraudulent conduct. Both passive and active assistance is prohibited by this rule. This rule, however, permits lawyer to assist clients in making good-faith determinations of the validity, scope and meaning of the application of a rule or law.

LIMITED REPRESENTATION AGREEMENT

(Used in conjunction with Rule 1.2 the following form shall be sufficient to satisfy the rule. The authorization of this form shall not prevent the use of other forms consistent with this rule.)

To Be Executed in Duplicate

Date: ________, 20__

1. The client, , retains the attorney, , to perform limited legal services in the following matter: __v __.

2. The client seeks the following services from the attorney (indicate by writing "yes" or "no"):

a. ____ Legal advice: office visits, telephone calls, fax, mail, e-mail;

b. ____ Advice about availability of alternative means to resolving the dispute, including mediation and arbitration;

c. ____ Evaluation of client self-diagnosis of the case and advising client about legal rights and responsibilities;

d. ____ Guidance and procedural information for filing or serving documents;

e. ____ Review pleadings and other documents prepared by client;

f. ____ Suggest documents to be prepared;

g. ____ Draft pleadings, motions, and other documents;

h. ____ Factual investigation: contacting witnesses, public record searches, indepth interview of client;

i. ____ Assistance with computer support programs;

j. ____ Legal research and analysis;

k. ____ Evaluate settlement options;

l. ____ Discovery: interrogatories, depositions, requests for document production;

m. ____ Planning for negotiations;

n. ____ Planning for court appearances;

o. ____ tandby telephone assistance during negotiations or settlement conferences;

p. ____ Referring client to expert witnesses, special masters, or other counsel;

q. ____ Counseling client about an appeal;

r. ____ Procedural assistance with an appeal and assisting with substantive legal argument in an appeal;

s. ____ Provide preventive planning and/or schedule legal check-ups:

t. ____ Other:

1. The client shall pay the attorney for those limited services as follows:

a. Hourly Fee: The current hourly fee charged by the attorney or the attorney's law firm for services under this agreement are as follows:

i. Attorney:

ii. Associate:

iii. Paralegal:

iv. Law Clerk:

Unless a different fee arrangement is established in clause b.) of this paragraph, the hourly fee shall be payable at the time of the service. Time will be charged in increments of one-tenth of an hour, rounded off for each particular activity to the nearest one-tenth of an hour.

b. Payment from Deposit:

For a continuing consulting role, client will pay to attorney a deposit of $________, to be received by attorney on or before ________, and to be applied against attorney fees and costs incurred by client. This amount will be deposited by attorney in attorney trust account. Client authorizes attorney to withdraw funds from the trust account to pay attorney fees and costs as they are incurred by client. The deposit is refundable. If, at the termination of services under this agreement, the total amount incurred by client for attorney fees and costs is less than the amount of the deposit, the difference will be refunded to client. Any balance due shall be paid within thirty days of the termination of services.

c. Costs:

Client shall pay attorney out-of-pocket costs incurred in connection with this agreement, including long distance telephone and fax costs, photocopy expense and postage. All costs payable to third parties in connection with client case, including filing fees, investigation fees, deposition fees, and the like shall be paid directly by client. Attorney shall not advance costs to third parties on client behalf.

1. The client understands that the attorney will exercise his or her best judgment while performing the limited legal services set out above, but also recognizes:

a. the attorney is not promising any particular outcome.

b. the attorney has not made any independent investigation of the facts and is relying entirely on the client limited disclosure of the facts given the duration of the limited services provided, and

c. the attorney has no further obligation to the client after completing the above described limited legal services unless and until both attorney and client enter into another written representation agreement.

1. If any dispute between client and attorney arises under this agreement concerning the payment of fees, the client and attorney shall submit the dispute for fee arbitration in accordance with Rule 9(e)-(k) of the Maine Bar Rules. This arbitration shall be binding upon both parties to this agreement.

WE HAVE EACH READ THE ABOVE AGREEMENT BEFORE SIGNING IT.

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Signature of client

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Signature of attorney

1.3 Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

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COMMENT

[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client?s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer?s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

[2] A lawyer?s workload must be controlled so that each matter can be handled competently.

[3] Perhaps no professional shortcoming is more widely resented than procrastination or neglect. A client?s interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client?s legal position may be destroyed. Even when the client?s interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer?s trustworthiness. A lawyer?s duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer?s client.

[4] Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer?s employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client?s affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must consult with the client about the possibility of appeal before relinquishing responsibility for the matter. See Rule 1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 1.2.

[5] To prevent neglect of client matters in the event of a sole practitioner?s death or disability, the duty of diligence requires that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer?s death or disability, and determine whether there is a need for immediate protective action.

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REPORTER?S NOTES:

Model Rule 1.3 (2002) corresponds to and is substantively equivalent to M. Bar R. 3.6(a). The Task Force liked the positive language in Model Rule 1.3 (2002) and recommended its adoption.

The Task Force discussed the use of the term ?zeal? as used in Model Rule 1.3 Comment [1] (2002). The Task Force determined that the term ?zeal? was often used as a cover for a lawyer?s inappropriate behavior. Moreover, the Task Force thought the term was not needed to describe a lawyer?s ethical duties. Accordingly, the Task Force recommended its deletion.

The Task Force recommended the inclusion of the term ?neglect? in Comment [3]. The Task Force believed that neglect is a broader concept than procrastination, and thus ought to be specifically referenced in the Comment.

With respect to Comment [5], the Task Force observed that a sole practitioner?s duty of diligence includes preparation of a plan designating another responsible lawyer to act in the event of a sole practitioner?s death or disability. This is not a new requirement and has been addressed in a Professional Ethics Commission Opinion.

1.4 Communication

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client?s informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client?s objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitations set forth in the Maine Rules of Professional Conduct, or other law with respect to lawyers? conduct, when the lawyer knows that the client expects assistance not permitted by the Maine Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

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COMMENT

[1] Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation.

Communicating with Client

[2] If these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and secure the client?s consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. See Rule 1.2(a).

[3] Paragraph (a)(2) requires the lawyer to reasonably consult with the client about the means to be used to accomplish the client?s objectives. In some situations?depending on both the importance of the action under consideration and the feasibility of consulting with the client?this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client?s behalf. Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation.

[4] A lawyer?s regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer?s staff, acknowledge receipt of the request and advise the client when a response may be expected. Client telephone calls should be promptly returned or acknowledged.

Explaining Matters

[5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client?s best interests, and the client?s overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict-of-interest, the client must give informed consent, as defined in Rule 1.0(e).

[5.1] Paragraph (a)(5) requires if a lawyer perceives the client expects assistance unethical or unlawful for the lawyer to provide, the lawyer must inform the client of the limitations on the lawyer?s conduct.

[6] Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity. See Rule 1.14. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client.

Withholding Information

[7] In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer?s own interest or convenience or the interests or convenience of another person. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.

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REPORTER?S NOTES:

Model Rule 1.4 (2002) substantively is equivalent to M. Bar R. 3.6(a). The rule addresses the issue of a lawyer?s duty to communicate with his or her client.

The Task Force recognized that failure to effectively communicate with clients was one of the most oft-cited sources of client dissatisfaction.

Subsection (a)(1) requires a lawyer to keep a client informed as to any matter requiring the client?s informed consent; for example, when a lawyer seeks a waiver of a conflict-of-interest. Subsection (a)(2) addresses the issue of the lawyer?s duty to consult with a client about the means by which the client?s objectives are met; and ?reasonably? modifies ?consult,? to recognize implied authorization which can exist. Subsections (a)(3) and (a)(4) set forth the common sense requirement that a lawyer keep his or her client reasonably informed about the status of a matter and to promptly respond to clients? requests for information about their matters.

The Task Force recommended the addition of clarifying language in subsection (a)(5). This subsection makes clear that if a client requests a lawyer take an action that would be illegal or in violation of a rule, the lawyer has a duty to inform the client of the limitations on the lawyer?s conduct. Rule 1.4(b) requires that a lawyer explain a matter to a client sufficiently so as to enable the client to make an informed decision. This includes advising a client as to any adverse consequences of decisions, and any potential alternative decisions. See Rule 2.1 addressing the role of lawyer as advisor.

The Task Force recognized that lawyer-client communication is the lynchpin of the lawyer-client relationship. As such, with the addition of the non-substantive clarifying language in Rule 1.4(b)(5), it recommended adoption of Rule 1.4 as written.

1.5 Fees

(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. A fee or charge for expenses is unreasonable when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee or expense is in excess of a reasonable fee or expense. The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the range of fees customarily charged in the locality for similar legal services;

(4) the responsibility assumed, the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services;

(8) whether the fee is fixed or contingent;

(9) whether the client has given informed consent as to the fee arrangement;

(10) whether the fee agreement is in writing; and

(11) any other risks allocated by the fee agreement or potential benefits of the fee agreement, judged as of the time the fee agreement was made.

(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. A general form of Contingent Fee Agreement is attached to the comments to this rule.

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1)a contingent fee in any initial action for divorce, annulment, judicial separation, paternity or parentage, parental rights and responsibilities, emancipation, grandparent visitation, guardianship, or child support, or in any post-judgment proceeding to modify, alter, or amend an order arising from these actions; or

(2) a contingent fee for representing a defendant in a criminal case; or

(3) any fee to administer an estate in probate, the amount of which is based on a percentage of the value of the estate.

(e) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of the lawyer?s law firm or office unless:

(1) after full disclosure, the client consents to the employment of the other lawyer and to the terms for the division of the fees, confirmed in writing; and

(2) the total fee of the lawyers does not exceed reasonable compensation for all legal services they rendered to the client.

(f) A lawyer may accept payment by credit card for legal services previously rendered, or for an advance payment of fees or nonrefundable fee otherwise permitted by these rules.

(g) A lawyer practicing in this State shall submit, upon the request of the client, the resolution of any fee dispute in accordance with the Supreme Judicial Court's rules governing fee arbitration.

(h) A lawyer may enter into an agreement for a client to pay a nonrefundable fee that is earned before any legal services are rendered. The amount of such an earned fee must be reasonable, like any fee, in light of all relevant circumstances. A lawyer cannot accept a nonrefundable fee, or characterize a fee as nonrefundable, unless the lawyer complies with the following conditions:

(1) The lawyer confirms to the client in writing before or within a reasonable time after commencing representation (a) that the funds will not be refundable and (b) the scope of availability and/or services the client is entitled to receive in exchange for the nonrefundable fee;

(2) A lawyer shall not solicit or make any agreement with a client that prospectively waives the client's right to challenge the reasonableness of a nonrefundable fee, except that a lawyer can enter into an agreement with a client that resolves an existing dispute over the reasonableness of a nonrefundable fee, if the client is separately represented or if the lawyer advises the client in writing of the desirability of seeking independent counsel and the client is given a reasonable opportunity to seek such independent counsel.

(3) Where it accurately reflects the terms of the parties' agreement, and where such an arrangement is reasonable under all of the relevant circumstances and otherwise complies with this Rule, a fee agreement may describe a fee as "nonrefundable," "earned on receipt," a "guaranteed minimum," or other similar description indicating that the funds will be deemed earned regardless whether the client terminates the representation.

(i) A nonrefundable fee that complies with the requirements of (h)(l)-(2) above constitutes property of the lawyer that should not be commingled with client funds in the lawyer's trust account. Any funds received in advance of rendering services that do not meet the requirements of (h)(l)-(3) constitute an advance that must be deposited in the lawyer's trust account in accordance with Rule l.l5(b)(1) until such funds are earned by rendering services.

(j) For definitions of "advance," "retainer," and "nonrefundable fee" as used in this Rule, see the definitions in Rule 1.0.

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COMMENT

Reasonableness of Fees and Expenses

[1] Paragraph (a) requires that lawyers charge fees that are reasonable under the circumstances. The factors specified in (1) through (10) are not exclusive. Nor will each factor be relevant in each instance. Paragraph (a) also requires that expenses for which the client will be charged must be reasonable. A lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer.

Basis or Rate of Fee

[2] When the lawyer has regularly represented a client, she or he ordinarily will have evolved an understanding concerning the basis or rate of the fee and the expenses for which the client will be responsible. In a new client-lawyer relationship, however, an understanding as to fees and expenses must be promptly established. Generally, it is desirable to furnish the client with at least a simple memorandum or copy of the lawyer?s customary fee arrangements that states the general nature of the legal services to be provided, the basis, rate or total amount of the fee and whether and to what extent the client will be responsible for any costs, expenses or disbursements in the course of the representation. A written statement concerning the terms of the engagement reduces the possibility of misunderstanding.

[3] Contingent fees, like any other fees, are subject to the reasonableness standard of paragraph (a) of this Rule. In determining whether a particular contingent fee is reasonable, or whether it is reasonable to charge any form of contingent fee, a lawyer must consider the factors that are relevant under the circumstances. Applicable law may impose limitations on contingent fees, such as a ceiling on the percentage allowable, or may require a lawyer to offer clients an alternative basis for the fee. Applicable law also may apply to situations other than a contingent fee, for example, government regulations regarding fees in certain tax matters.

Terms of Payment

[4] A lawyer may require advance payment of a fee, but is obliged to return any unearned portion. See Rule 1.16(d). A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8 (i). However, a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a) because such fees often have the essential qualities of a business transaction with the client.

[5] An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client?s interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction.

However, it is proper to define the extent of services in light of the client?s ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures.

Prohibited Contingent Fees

[6] Paragraph (d) prohibits a lawyer from charging a contingent fee in a domestic relations matter when payment is contingent upon the securing of a divorce or upon the amount of alimony or support or property settlement to be obtained. This provision does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns. Paragraph (d) further prohibits a lawyer from charging a fee to administer a probate estate when payment is based upon a percentage of the value of the estate.

Division of Fee

[7] A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist. Paragraph (e) permits the lawyers to divide a fee subject to certain conditions. The client must consent to the employment of the other lawyer and to the terms for the division of the fees, after full disclosure, which disclosure must be confirmed in writing. In addition, the total fee must be reasonable. Contingent fee agreements must be in a writing signed by the client and must otherwise comply with paragraph (c) of this Rule. A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is competent to handle the matter. See Rule 1.1.

[8] Paragraph (e) does not prohibit or regulate division of fees to be received in the future for work done when lawyers were previously associated in a law firm, nor does paragraph (e) prohibit payment to a former partner or associate pursuant to a separation or retirement agreement. Paragraph (e) further does not address the issue of the fee division when a lawyer is terminated before the matter is completed, and new counsel is engaged.

Disputes over Fees

[9] A mandatory fee arbitration procedure has been established for resolution of fee disputes. Lawyers must conscientiously comply with the procedure set forth in Maine Bar Rule 9. This Rule prescribes a procedure for determining a lawyer?s fee, for example, in representation of an executor or administrator, a class or a person entitled to a reasonable fee as part of the measure of damages. The lawyer entitled to such a fee and a lawyer representing another party concerned with the fee shall comply with the prescribed procedure.

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Advisory Committee's Note - June 2014

Paragraph (a) has been amended to make clarifying changes regarding the considerations that bear on the reasonableness of a fee.

In paragraph (a)(2), the requirement that the preclusion of a lawyer's employment be apparent to the client has been removed. A lawyer's reasonable perception of the risk of loss of other employment is relevant to the reasonableness of the fee, whether or not the client is aware of potentially conflicting engagements.

Paragraph (a)(3) has been amended to clarify that in any particular locality, a range of fees, rather than a single precise fee, can very well be charged for a particular service, and that range, rather than anyone particular fee, is relevant to determining the zone of reasonableness of fees in any particular case.

Paragraph (a)(11) is new. It highlights the fact that, as with many commercial contracts, parties to a fee agreement enter the agreement in order to allocate various risks and in the expectation of, or pursuit of, certain potential benefits. Parties make those agreements lacking perfect foresight. The reasonableness of the agreement is to be judged by the reasonableness at the time of contracting, in light of the parties' desire to allocate risks and pursue benefits, not in hindsight. An agreement entered into by parties reasonably seeking certainty despite (or even because of) their lack of perfect foresight should be respected, even if one party might regret it in hindsight or, if the party had had perfect foresight, might not have entered it.

Paragraph (d)(l) is amended to update the current rule prohibiting fees that are contingent upon securing a divorce or contingent upon the amount of alimony, support, or property settlement in lieu thereof. The amendment expands the Rule to include all family matter actions in which a contingent fee arrangement is not appropriate. Neither the existing Rule, nor the amendment prohibits a contingent fee arrangement in a family matter enforcement proceeding.

Paragraph (f) has been amended to clarify that a lawyer can accept an advance paid by credit card or other means that requires initial deposit into the lawyer's operating account, so long as the lawyer complies with the requirements set forth in newly amended Rule 1.15(b)(1). See the Advisory Committee's Note June - 2014 to Rule 1.15 for discussion of this issue.

Paragraph (g) has been amended to change the reference to "Bar Rule 9" in light of coming revisions to the organization and content of the Bar Rules. No substantive change is intended.

Paragraph (h) is new. It clarifies the conditions that apply to a lawyer's acceptance of a nonrefundable fee.

Paragraph (h)(1) provides that nonrefundable fees are permissible, subject to the requirement of reasonableness that applies to all fees. The paragraph requires certain safeguards to ensure the client's informed consent to the nonrefundability of a fee. Although the safeguards in paragraph (h)(1) are required, they will not guarantee a finding of informed consent in every case and are not exclusive of the factors that otherwise bear on the existence of informed consent. See Rule l.0(e). When fees are paid prior to the rendition of services and in the expectation that such future services will be rendered, the Committee believes that a client's default expectation will be that the payment is an advance rather than a nonrefundable fee. In order to avoid client confusion, paragraph (h)(l) requires clear disclosure to the client that the fee is nonrefundable and a description of the scope of future services that the client is entitled to receive.

The Committee intends that Opinion No. 206 (Dec. 12, 2012) of the Professional Ethics Commission shall not apply to nonrefundable fees that lawyers accept in compliance with this new paragraph. The amendment differs from the law as stated in Opinion No. 206 in two important ways: (1) it permits nonrefundable fees for more than a lawyer's mere "availability," and allows such fees even though the parties fully expect the lawyer to render specified future services; (2) it requires (where Opinion No. 206 forbids) description of the fee as nonrefundable, in order to ensure the client's informed consent thereto.

A lawyer who accepts payment before services are rendered cannot treat such payment as a nonrefundable fee, unless the lawyer complies with the disclosure requirements of paragraph (h)(l). Without the client's informed consent to nonrefundability in accordance with this paragraph, the lawyer must treat the funds as an advance to be credited against future bills for services and must keep such funds in a trust account, in accordance with Rule l.15, until future services are rendered, and must refund the unearned portion of any such funds upon termination of representation, in accordance with Rule 1.16(d). If conditions (h)(1)and (h)(2) are met, nonrefundable fees cannot be deposited in the lawyer's trust account as those nonrefundable fees are not the property of a client.

Paragraph (h)(2) prohibits a lawyer from securing a client's advance waiver of the right to challenge the reasonableness of a fee. A client's written agreement to a fee is a factor under paragraph (a) in the determination of its reasonableness. A lawyer should not press further and request or require the client to waive the client's right to have the reasonableness of a nonrefundable fee determined in accordance with law.

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REPORTER?S NOTES:

Model Rule 1.5 substantively is equivalent to M. Bar R. 3.3 and replaces M. Bar. R. 8. Because the Task Force thought Model Rule 1.5 clearly and comprehensively set forth the rules governing lawyer?s fee arrangements and included the rules governing contingent fees, it recommended its adoption, subject to the noted modifications.

The Task Force recommended Rule 1.5(a) track M. Bar R. 3.3(a)?s more expansive description of what constitutes an ?unreasonable fee.? The language added to Model Rule 1.5(a)(4) reflects the recommended addition to the Maine Rules of Professional Conduct Rule 1.2(c)(1) and (c)(2), allowing, under certain circumstances, lawyers? provision of limited representation to clients. The Task Force recommended two additional provisions to Rule 1.5: (i) the allowance of credit cards as a method of payment for legal services, and (ii) a recognition of mandatory fee arbitration, in accordance with the provisions set forth in Rule 9.

The Task Force further recommended, consistent with established law, lawyers not be paid a fee for administering a probate estate based on a percentage of the value of a probate estate.

In 2005, the Supreme Judicial Court asked the Advisory Committee on Professional Responsibility (the ?Advisory Committee?) to consider whether Maine should adopt the Model Rule version of the fee division rule, that allows fee sharing ?in proportion to the services performed by each lawyer? or if the referring lawyer ?assumes joint responsibility for the representation.? In contrast, M. Bar R. 3.3(d) allows fee division between unaffiliated lawyers if the terms of the fee division are disclosed to the client, and if the total fee is reasonable. The Advisory Committee observed the fee division rule as set forth in M. Bar R. 3.3(d) has been serving its intended purpose of encouraging the early referral of cases to lawyers with greater experience and expertise to handle them. The Advisory Committee solicited comments from members of the Maine Bar, and held an open forum to discuss the fee division issues. Because the vast majority of comments were in favor of maintaining the existing Maine Bar Rule, the Advisory Committee recommended that the language of Model Rule 1.5(e) be replaced with the language of M. Bar R. 3.3(d). The Task Force thought misunderstandings could be avoided, however, if the disclosure to the client about the fee division was confirmed in writing.

Finally the Task Force stressed that Rule 1.5(d) does not address the issue of the fee division when a lawyer is terminated before the matter is completed, and new counsel is engaged. In such a case, the fees paid to the old lawyer and new lawyer must meet the standards set forth in Rules 1.5(a) and (b).

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CONTINGENT FEE AGREEMENT

To Be Executed In Duplicate

Date __________, 20__

The client, _____________________________________________ (Name) (Street & Number) (City or Town)

retains the attorney ________________________________________ (Name) (Street & Number)

______________________________________________________ (City or Town)

to perform the legal services mentioned in par. (1) below. The attorney agrees to perform them faithfully and with due diligence.

(1) The claim, controversy, and other matters with reference to which the services are to be performed are:

(2) The contingency upon which compensation is to be paid is:

(3) The client is not to be liable to pay compensation otherwise than from amounts collected for the client by the attorney, except as follows:

(4) Reasonable compensation on the foregoing contingency is to be paid by the client to the attorney, but such compensation (including that of any associated counsel) to be paid by the client shall not exceed the following maximum percentages of the gross (net) (indicate which) amount collected. Here insert the maximum percentages to be charged in the event of collection. These may be on a flat basis or in a descending scale in relation to amount collected.)

(5) The client is to be liable to the attorney for the attorney's reasonable expenses and disbursements as hereinafter specified.

A. Litigation costs. Costs of the action, including:

1. Filing fees paid to the clerk of courts;

2. Fees for service of process and other documents;

3. Attendance fees and travel costs paid to witnesses;

4. Expert witness fees and expenses;

5. Costs of medical reports;

6. Costs of visual aids; and

7. Costs of taking depositions.

B. Travel expenses. Expenses for travel by the attorney on behalf of the client.

C. Telephone. Disbursements for long-distance telephone calls made by the attorney on behalf of the client.

D. Postage. Postage paid by the attorney for mailings on behalf of the client; and

E. Copying. Costs of photocopying and facsimile telecopying done by the attorney on behalf of the client.

F. Other: (Specify). (The client agrees that fees paid pursuant to this agreement will be divided. Attorney________________ will receive ___________ (dollars or percent of the contingent fee) and Attorney ________________ will receive (dollars or percent of the contingent fee).)

(6) This agreement and its performance are subject to Rule 1.5 of the Maine Rules of Professional Conduct.

WE HAVE EACH READ THE ABOVE AGREEMENT BEFORE SIGNING IT.

Witnesses to signatures

To client: _________________

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Signature of Client

To attorney:________________

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Signature of Attorney

(If more space is needed, separate sheets may be attached and initialed.)

1.6 Confidentiality of Information

(a)       A lawyer shall not reveal a confidence or secret of a client unless, (i) the client gives informed consent; (ii) the lawyer reasonably believes that disclosure is authorized in order to carry out the representation; or (iii) the disclosure is permitted by paragraph (b).

(b)       A lawyer may reveal a confidence or secret of a client to the extent the lawyer reasonably believes necessary:

(1)    to prevent reasonably certain substantial bodily harm or death;

(2)    to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer?s services;

(3)    to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client?s commission of a crime or fraud in furtherance of which the client has used the lawyer?s services;

(4)    to secure legal advice about the lawyer?s professional obligations;

(5)    to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer?s representation of the client; or

(6)    in connection with the sale of a law practice under Rule 1.17A or to detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm. In those circumstances, a lawyer may disclose with respect to each affected client the client's identity, the identities of any adverse parties, the nature and extent of the legal services involved, and fee and payment information, but only if the information revealed would not compromise the attorney-client privilege or otherwise prejudice any of the clients. The lawyer or lawyers receiving the information shall have the same responsibilities as the disclosing lawyer to preserve the information regardless of the outcome of the contemplated transaction; or

(7)    to comply with other law or a court order.

(c)       Before revealing information under paragraph (b) (1), (2), or (3), the lawyer must, if feasible, make a good-faith effort to counsel the client to prevent the harm and advise the client of the lawyer?s ability to reveal information and the consequences thereof. Before revealing information under paragraph (b)(5) or (6), in controversies in which the client is not a complainant or a party, the lawyer must, if feasible, make a good faith effort to provide the client with reasonable notice of the intended disclosure.

(d)       As used in Rule 1.6, ?confidence? refers to information protected by the attorney-client privilege under applicable law, and ?secret? refers to other information relating to the representation if there is a reasonable prospect that revealing the information will adversely affect a material interest of the client or if the client has instructed the lawyer not to reveal such information.

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ADVISORY NOTE ? AUGUST 2015

The addition of subsection 1.6(b)(6) was recommended in conjunction with the Advisory Committee on Professional Conduct's recommended abrogation of Rule 1.17 and adoption of Rule 1.17A, Sale of Law Practice. Subsection (b)( 6) delineates the permissive disclosures and obligations of lawyers when engaged in discussions regarding sale of a law practice, a lawyer's change of employment or changes in the composition or ownership of a firm. The language incorporates ABA Model Rule 1.6(b)(7) regarding the change of employment of a lawyer, and circumstances relating to change of ownership or composition of a firm. It adds language specific to disclosures made in connection with a Rule 1.17 A. The language recommended by the Advisory Committee is from Rule 1.6(b)(6) of the Oregon Rules of Professional Conduct, as adopted in January 2005. As a consequence of the addition of 1.6(b)(6), what was formerly subsection (6) IS renumbered as subsection (7).

Note: To aid in the understanding of each amendment, an Advisory Note and/or Comment appears after the text amendment, but the Advisory Note or Committee is not part of the amendment adopted by the Court.

COMMENT

[1] Lawyers must be circumspect with respect to information learned in the course of representing their clients. This Rule governs the disclosure by a lawyer of confidences or secrets of a client during the lawyer?s representation of the client. See Rule 1.18 for the lawyer?s duties with respect to information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer?s duty not to reveal information relating to the lawyer?s prior representation of a former client and Rules 1.8(b) and 1.9(c)(1) for the lawyer?s duties with respect to the use of such information to the disadvantage of clients and former clients.

[2] A fundamental principle in the client-lawyer relationship is that, in the absence of the client?s informed consent, the lawyer must not reveal information relating to the representation which is protected by the attorney-client privilege or may be detrimental to the client?s interests. While the Model Rule (2002) provides a broad formulation with respect to confidential information, the Task Force chose to retain the more limited scope of protection to matters protected by the attorney-client privilege and information gained in the relationship the disclosure of which may be detrimental to the client?s interests. This was the approach taken under M. Bar R. 3.6, the Model Code of Professional Responsibility, the RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS, as well as other states which have otherwise adopted the Model Rules of Professional Responsibility. See Rule 1.0(e) for the definition of informed consent. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld. The Task Force determined that the use of the term, ?confidences and secrets,? as used in the Model Code, the RESTATEMENT and M. Bar R. 3.6 is preferable to the broader formulation of ?information relating to the representation of the client.? The language of the definition of ?secrets,? derived from Section 60 of the RESTATEMENT, offers lawyers the benefit of the law expressed and cited therein.

[3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source, which may be detrimental to the client?s interests. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. See also Scope.

[4] Paragraph (a) prohibits a lawyer from revealing confidences and secrets of a client. The prohibition on disclosure also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer?s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.

Authorized Disclosure

[5] The lawyer may disclose information relating to the representation which he or she reasonably believes is necessary to carry out the representation. This language is derived from Section 61 of the RESTATEMENT OF THE LAW GOVERNING LAWYERS. In some situations, for example, a lawyer may believe it is necessary to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in the course of the firm?s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.

Disclosure Adverse to Client

[6] Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of confidences and secrets of clients? information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain substantial bodily harm or death. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town?s water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer?s disclosure is necessary to eliminate the threat or reduce the number of victims. The requirement in M. Bar R. 3.6(h)(4)(l) requiring that an act that is likely to result in death or bodily harm be a criminal act has been eliminated. Rule 1.6(b)(1) also requires that the potential harm be substantial. The elimination of the requirement of criminality and the inclusion of the requirement of substantiality is consistent with the approach taken in the 2002 Model Rules and the RESTATEMENT.

[7] Paragraph (b)(2) is a limited exception to the rule of confidentiality that permits the lawyer to reveal information to the extent necessary to enable affected persons or appropriate authorities to prevent the client from committing a crime or fraud, as defined in Rule 1.0(d), that is reasonably certain to result in substantial injury to the financial or property interests of another and in furtherance of which the client has used or is using the lawyer?s services. Such a serious abuse of the client-lawyer relationship by the client forfeits the protection of this Rule. The client can, of course, prevent such disclosure by refraining from the wrongful conduct. Although paragraph (b)(2) does not require the lawyer to reveal the client?s misconduct, the lawyer may not counsel or assist the client in conduct the lawyer knows is criminal or fraudulent. See Rule 1.2(d). See also Rule 1.16 with respect to the lawyer?s obligation or right to withdraw from the representation of the client in such circumstances, and Rule 1.13(c), which permits the lawyer, where the client is an organization, to reveal information relating to the representation in limited circumstances. As noted in Comment [6], this provision is a departure from recently amended M. Bar R. 3.6(h)(4), which draws the permissive disclosure line at whether the client?s conduct is ?criminal,? and not at the nature and extent of the harm. At the time the lawyer makes the decision as to whether he or she can or will disclose the client?s act, it may be difficult to determine whether the client?s ?fraud? rises to the level of a crime. Accordingly, the Task Force deleted the categorical limitation to crime and follows the Model Rule 1.6 (2002) inclusion of fraud, so long as the harm could be substantial.

[8] Paragraph (b)(3) addresses the situation in which the lawyer does not learn of the client?s crime or fraud until after it has been consummated. Although the client no longer has the option of preventing disclosure by refraining from the wrongful conduct, there will be situations in which the loss suffered by the affected person can be prevented, rectified or mitigated. In such situations, the lawyer may disclose information relating to the representation to the extent necessary to enable the affected persons to prevent or mitigate reasonably certain losses or to attempt to recoup their losses. Paragraph (b)(3) does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense.

[9] A lawyer?s confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer?s professional responsibility to comply with these Rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(4) permits such disclosure because of the importance of a lawyer?s compliance with the Rules of Professional Conduct.

[10] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client?s conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer?s right to respond arises when an assertion of such complicity has been made. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.

[11] Lawyers may not use the threat of disclosure of confidences or secrets out of spite or in order to obtain leverage against a client in a fee dispute. A lawyer reasonably entitled to a fee is permitted by paragraph (b)(5), however, to prove the services rendered in an action to collect it. This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.

[12] Other law may require that a lawyer disclose information about a client. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules. When disclosure of confidences or secrets appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If the other law supersedes this Rule and requires disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as are necessary to comply with the law. In situations in which confidences and secrets may be revealed in connection with a controversy in which the client is not a party, prior to disclosure, paragraph (c) requires the lawyer to make a good faith effort to provide notice to the client that a confidence or secret under paragraph (b)(5) or (6) may be revealed.

[13] A lawyer may be ordered to reveal confidences or secrets by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all non-frivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(6) permits the lawyer to comply with the court?s order.

[14] Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified. Paragraph (c) requires that with respect to disclosures under paragraphs (b)(1), (2) and (3), the lawyer must make a good faith effort, if feasible, to counsel the client to prevent the harm and obviate the need for disclosure. This requirement is consistent with Sections 66 and 67 of the RESTATEMENT. In any case, a disclosure adverse to the client?s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.

[15] Paragraph (b) permits but does not require the disclosure confidences or secrets to accomplish the purposes specified in paragraphs (b)(1) through (b)(6). In exercising the discretion conferred by this Rule, the lawyer may consider such factors as the nature of the lawyer?s relationship with the client and with those who might be injured by the client, the lawyer?s own involvement in the transaction and factors that may extenuate the conduct in question. A lawyer?s decision not to disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may be required, however, by other Rules. Some Rules require disclosure only if such disclosure would be permitted by paragraph (b). See Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of whether such disclosure is permitted by this Rule. See Rule 3.3(c).

*Acting Competently to Preserve Confidentiality *

[16] A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer?s supervision. See Rules 1.1, 5.1 and 5.3. Consistent with Section 66 of the RESTATEMENT, a lawyer who takes action or decides not to take action allowed under this Rule is not, solely by reason of such action or inaction, subject to professional discipline, liable for damages to the lawyer?s client or any third persons, or barred from recovery against a client or third persons. The legal effect of the lawyer?s choice, however, is beyond the scope of the Model Rules of Professional Conduct.

[17] When transmitting a communication that includes confidences or secrets of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer?s expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule.

Former Client

[18] The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client.

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REPORTER?S NOTES:

Model Rule 1.6 (2002) corresponds to M. Bar R. 3.6(h). Notwithstanding some significant substantive distinctions, the Task Force recommended the adoption of the structure set forth in the 2002 Model Rules with respect to the confidentiality issues. For example, the issue of confidentiality of information with respect to current clients, former clients and prospective clients is found within the confines of M. Bar R. 3.6(h). In contrast, the 2002 Model Rules address confidentiality with respect to former clients in Rule 1.9(c), and confidentiality with respect to prospective clients in Rule 1.18(b). Moreover, 2002 Model Rule 1.6 addresses permissive disclosure of confidential information but leaves mandatory disclosure of confidential information to Rule 3.3, Candor to the Tribunal and Rule 4.1, Truthfulness in Statements to Others. The Model Rules handle the duty to prevent others from disclosing confidential information as part of Rules 5.1, Responsibility of Partners, and 5.3, Responsibilities Regarding Non-lawyer Assistants.

The Task Force discussed the issue of how much and what type of information should be protected by the confidentiality rule. The Task Force considered whether the Maine Rules of Professional Conduct should protect ?all information relating to the representation of the client? (the approach taken by the 2002 Model Rules), or ?confidences or secrets of a client? (the approach taken by Maine before the July 1, 2005 amendment to M. Bar R. 3.6(h)).

?Information relating to the representation of a client? is a very broad formulation. It protects not only information communicated by the client, but any information related to the representation received from other sources; and even information that is not in itself protected, if it leads to the discovery of protected information. Positive, public information about the client learned in the course of the client representation would also be protected. The Model Rules Reporter acknowledged the potential breadth of this formulation of the scope of protected information, if read literally.

In contrast, under the ?confidences or secrets? approach, information relating to the representation obtained from sources other than the client is protected only if disclosure of the information is detrimental to the client?s interests, or the client affirmatively requests the information be protected. ?Secret? in former M. Bar R. 3.6(h) (the rule in effect prior to July 1, 2005) (and in the pre-2002 Model Code and RESTATEMENT § 60) refers to information other than information protected by the attorney-client privilege, that is ?gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or detrimental to a client.? Presumably, information gained in the course of representation of the client could be from any source. Thus, former M. Bar R. 3.6(h) definition of ?secret? permits disclosure of information relating to the representation without the client?s consent, so long as disclosure would not disadvantage the client. This is not permitted under the Model Code or under the Model Rules. Information that is protected by the attorney-client privilege is considered a ?confidence.?

The Task Force further discussed the distinction between ?use of? and?revealing? recognizing that one can use information without revealing it. Consider the following example. You know that your client is about to develop a tract of land. As a result, neighboring tracts will become more valuable. You buy a neighboring tract. The purchase does not reveal what you know as a result of your client representation. If the use of the information (purchasing the land) does not disadvantage your client, you may do so under Model Rule 1.8(b). ?Use of information? is a concept more closely aligned with a conflict-of-interest, than with the revelation of confidential client information. Thus, in the 2002 Rules,?use? is included in Rule 1.8 and 1.9, rather than Rule 1.6.

The vast majority of jurisdictions have adopted the term ?reveal? in Rule 1.6 and retained ?use? in Rule 1.8(b) and Rule 1.9(c)(1). The Task Force ultimately decided to follow the approach of the 2002 Model Rules, and have Rule 1.6 simply govern information that may be ?revealed? and have information that is ?used? be addressed in Rule 1.8(b) and Rule 1.9(c)(1).

The Task Force discussed whether disclosures authorized under Paragraph (a) include information that is expressly authorized (informed consent) as well as impliedly authorized. The Task Force thought that the term, ?impliedly authorized? was unclear. The Task Force thought the better choice was to allow disclosure when ?the lawyer reasonably believes that disclosure is authorized in order to carry out the representation.? The Task Force also discussed whether express authorization must be made in writing and recommended that express authorization of disclosures was not required to be in writing.

The Task Force thought it was important, consistent with the approach taken in the 2002 Model Rules, that the disclosures authorized by paragraph (b)(1)-(6) be permissive rather than mandatory. Maine Rules of Professional Conduct 3.3, however, makes disclosure mandatory when the fraud is upon a tribunal. See also Maine Rules of Professional Conduct Rule 4.1 requiring lawyers to ?disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.? With respect to the specific exceptions set forth in paragraphs (b)(1)-(6), the Task Force recommended the adoption of the 2002 Model Rule format. In some instances the Task Force recommended the Maine Rules of Professional Conduct 1.6 follow the substance of Model Rule 1.6 (2002); in other instances, the Task Force recommended substantive changes.

With respect to the bodily harm exception found in paragraph (b)(1), the Task Force recommended the exception recognized in M. Bar R. 3.6(h) for client crimes that are ?likely to result in death or bodily harm to another person? and ?to avoid the furthering of a criminal act,? be replaced with an exception for disclosures to ?prevent reasonably certain substantial bodily harm or death.? This language negates the requirement of client criminality. This change sets forth an objective test and is in accord with Model Rule 1.6(b)(1) (2002) as well as Section 66 of the RESTATEMENT. This language goes beyond an exception for imminent harm and makes clear in the existence of a present and substantial threat that a person will suffer an injury or death at a later date is also addressed. Information a client is about to discharge a toxic substance is an example of information that may be revealed to prevent reasonably certain substantial bodily harm or death to third parties. This formulation is a departure from the recent revision to M. Bar R. 3.6(h).

The Task Force, mindful of potential magnitude of the harm to the financial interests or property of third parties as a result of criminal or fraudulent acts of client, recommended the adoption of Model Rule 1.6(b)(2) and (3) (2002). It is a serious abuse of the lawyer-client relationship when a lawyer?s services are used in furtherance of such a crime or fraud. Similar to paragraph (b)(1), there is no requirement of criminality. The Task Force thought a lawyer ought to be able to disclose information relating to a ten million dollar fraud on shareholders, whether or not the fraud rises to the level of a criminal act. Moreover, at the time the lawyer is making the decision as to whether he or she should disclose, it may not be clear whether a client?s ?fraud? is criminal, or whether the client behavior can be ultimately proven to be criminal. Paragraph (b)(3) allows for disclosure of confidences or secrets where a client can no longer prevent the disclosure by abstaining from the crime or fraud. The focus of this paragraph is on mitigation and recoupment of losses.

Paragraph (b)(4) allows disclosure when a lawyer is seeking legal advice about the lawyer?s professional obligations The ABA Reporter?s Explanation of this provision is as follows: ?In most instances, disclosing information to secure such advice is impliedly authorized. Nevertheless, in order to clarify that such disclosures are proper even when not impliedly authorized, the Commission recommends that such disclosures be explicitly permitted under this Rule. It is of overriding importance, both to lawyers and to society at large, that lawyers be permitted to secure advice regarding their legal obligations.?

With respect to paragraph (b)(5), the Task Force added to the Rule a requirement of reasonable notice to the client before making a disclosure in ?self defense.? The notice requirement does not apply to a disclosure in a dispute between the attorney and the client. This requirement of notice strikes a balance between the interest of the lawyer and his or her client. The Task Force discussed whether disclosure ought to be permitted to allow the lawyer to establish an affirmative claim against the client (the approach taken in Model Rule 1.6(b)(5) (2002)) or only to allow the lawyer to establish a defense to a charge of wrongful conduct (the approach taken under M. Bar R. 3.6(h)(3) and Section 63 of the RESTATEMENT). The Task Force recommended the Model Rule approach on this issue, with no requirement of reasonable notice to the client, and subject to the principles set forth in Comment [11].

Paragraph (b)(6) allows the disclosure of confidences or secrets in order to comply with other law or a court order. While there is general consensus that a lawyer may disclose to comply with other law or a court order, Section 63 of the RESTATEMENT imposes the additional condition that the disclosure occur only?after the lawyer takes reasonably appropriate steps to assert that the information is privileged or otherwise protected against disclosure.? The disclosure is permissive to allow lawyers to take the risk of contempt or other legal penalties on behalf of a client and not also be the subject of professional discipline.

The Task Force recommended the inclusion of the first sentence of paragraph (c) to make clear that lawyers should give clients ?one last chance? to reconsider their contemplated fraudulent or criminal plans. While the 2002 Rules do not articulate a lawyer?s duty to remonstrate with his or her client, M. Bar R. 3.6(h) expressly requires such a conversation with respect to past fraud. Sections 66 and 67 of the RESTATEMENT include the requirement that a lawyer make a ?good faith effort to persuade the client not to act,? before disclosing client information.

With respect to the second sentence in paragraph (c), the Task Force thought it is both good policy and practice for lawyers to make a good faith effort to provide notice to a client that their secrets may be revealed in the circumstances outlined in paragraphs (b)(5) and (b)(6).

The Task Force recommended that Maine Rules of Professional Conduct Rule 1.6 not include the explicit requirement set forth in M. Bar R. 3.6(h)(2) (addressing a lawyer?s responsibility with respect to lawyers and non-lawyer?s employed by the lawyer) and adopt the Model Rules (2002) approach of relying on Rules 5.1 and 5.3

The Task Force discussed the discretionary nature of the lawyer?s choice to disclose. Consistent with Sections 66 and 67 of the RESTATEMENT, the Task Force thought it was important to note that the lawyer?s choice to act or not act does not subject the attorney to liability. The Task Force also thought it was also important to make clear that the legal effect of the lawyer?s choice to act or not act is beyond the scope of the Maine Rules of Professional Conduct.

1.7 Conflict-of-Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict-of-interest. A concurrent conflict-of-interest exists if:

(1) the representation of one client would be directly adverse to another client, even if representation would not occur in the same matter or in substantially related matters; or

(2) there is a significant risk that the representation of one or more clients would be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict-of-interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer would be able to provide competent and diligent representation to each affected client; and

(2) each affected client gives informed consent, confirmed in writing.

(c) Under no circumstances may a lawyer represent a client if:

(1) the representation is prohibited by law;

(2) the representation involves the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.

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Advisory Note to Rule 1.7 — October 2018

Rule 1.8(j) has been adopted, and therefore Comment [12] to this Rule is no longer correct in stating that "Maine has not adopted the ABA Model Rules’ categorical prohibition on an attorney forming a sexual relationship with an existing client." See Rule 1.8(j) and Advisory Committee Note thereto of even date. Rule 1.7 has not been amended in any way on this date.

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COMMENT

General Principles

[1] Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. Concurrent conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client or a third person or from the lawyer’s own interests. For specific Rules regarding certain concurrent conflicts of interest, see Rule 1.8. For former client conflicts of interest, see Rule 1.9. For conflicts of interest involving prospective clients, see Rule 1.18. For definitions of "informed consent" and "confirmed in writing," see Rule 1.0(e) and (b).

[2] Resolution of a conflict-of-interest problem under this Rule requires the lawyer to: (1) clearly identify the client or clients; (2) determine whether a conflict-of-interest exists; (3) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable; and (4) if so, consult with the clients affected under paragraph (a) and obtain their informed consent, confirmed in writing. The clients affected under paragraph (a) include both of the clients referred to in paragraph (a)(1) and the one or more clients whose representation might be materially limited under paragraph (a)(2).

[3] A conflict-of-interest may exist before representation is undertaken, in which event the representation must be declined, unless the lawyer obtains the informed consent of each client under the conditions of paragraph (b). To determine whether a conflict-of-interest exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved. See also Comment to Rule 5.1. Subject to the exception set forth in Comment [24] with respect to "issue conflicts," ignorance caused by a failure to institute such procedures will not excuse a lawyer?s violation of this Rule. As to whether a client-lawyer relationship exists or, having once been established, is continuing, see Comment to Rule 1.3 and Scope.

[4] If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation, unless the lawyer determines the conflict is consentable and has obtained the informed consent of the client under the conditions of paragraph (b). See Rule 1.16. Where more than one client is involved, whether the lawyer may continue to represent any of the clients is determined both by the lawyer’s ability to comply with duties owed to the former client and by the lawyer’s ability to represent adequately the remaining client or clients, given the lawyer’s duties to the former client. See Rule 1.9. See also Comments [5] and [29].

[5] Unforeseeable developments, such as changes in corporate and other organizational affiliations or the addition or realignment of parties in litigation, might create conflicts in the midst of a representation, as when a company sued by the lawyer on behalf of one client is bought by another client represented by the lawyer in an unrelated matter. Depending on the circumstances, the lawyer may have the option to withdraw from one of the representations in order to avoid the conflict. The lawyer must seek court approval where necessary and take steps to minimize harm to the clients. See Rule 1.16. The lawyer must continue to protect the confidences of the client from whose representation the lawyer has withdrawn. See Rule 1.9(c).

Identifying Conflicts of Interest: Directly Adverse

[6] Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client’s informed consent. Thus, absent a determination by the lawyer that the conflict is consentable and the grant of consent by the client, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer’s ability to represent the client effectively. In addition, the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue that client’s case less effectively out of deference to the other client, i.e., that the representation may be materially limited by the lawyer’s interest in retaining the current client. Similarly, a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict-of-interest and thus may not require consent of the respective clients.

[7] Directly adverse conflicts can also arise in transactional matters. For example, if a lawyer is asked to represent the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the lawyer could not undertake the representation without determining that the conflict may be waived by consent and the grant of informed consent by each client.

Identifying Conflicts of Interest: Material Limitation

[8] Even where there is no direct adverseness, a conflict-of-interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests. For example, a lawyer asked to represent several individuals seeking to form a joint venture is likely to be materially limited in the lawyer’s ability to recommend or advocate all possible positions that each might take because of the lawyer’s duty of loyalty to the others. The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

Lawyer’s Responsibilities to Former Clients and Other Third Persons

[9] In addition to conflicts with other current clients, a lawyer’s duties of loyalty and independence may be materially limited by responsibilities to former clients under Rule 1.9 or by the lawyer’s responsibilities to other persons, such as fiduciary duties arising from a lawyer’s service as a trustee, executor or corporate director.

Personal Interest Conflicts

[10] The lawyer’s own interests should not be permitted to have an adverse effect on representation of a client. For example, if the probity of a lawyer’s own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. Similarly, when a lawyer has discussions concerning possible employment with an opponent of the lawyer’s client, or with a law firm representing the opponent, such discussions could materially limit the lawyer’s representation of the client. In addition, a lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed financial interest. See Rule 1.8 for specific Rules pertaining to a number of personal interest conflicts, including business transactions with clients. See also Rule 1.10 (personal interest conflicts under Rule 1.7 ordinarily are not imputed to other lawyers in a law firm).

[11] When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer’s family relationship will interfere with both loyalty and independent professional judgment. As a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation. Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent. The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated. See Rule 1.10. See also Rule 1.8(l).

[12] Maine has not adopted the ABA Model Rules’ categorical prohibition on an attorney forming a sexual relationship with an existing client because such a rule seems unnecessary to address true disciplinary problems and it threatens to make disciplinary issues out of conduct that we do not believe should be a matter of attorney discipline. However, the lack of a categorical prohibition should not be construed as an implicit approval of such relationships. Attorneys have been disciplined under the former Maine Code of Professional Responsibility for entering into sexual relations with clients, and they may be disciplined for similar conduct under these rules. The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence. In certain types of representations such as family or juvenile matters, the relationship is almost always unequal; thus, a sexual relationship between lawyer and client in such circumstance may involve unfair exploitation of the lawyer’s fiduciary role, in violation of the lawyer’s basic ethical obligation not to use the trust of the client to the client’s disadvantage. In addition, such a relationship presents a significant danger that, because of the lawyer’s emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment. Moreover, a blurred line between the professional and personal relationships may make it difficult to predict to what extent client confidences will be protected by the attorney-client evidentiary privilege, since client confidences are protected by privilege only when they are imparted in the context of the client-lawyer relationship. Before proceeding with the representation in these circumstances, the lawyer should consider whether the lawyer’s ability to represent the client will be materially limited by the sexual relationship.

*Interest of Person Paying for a Lawyer’s Service *

[13] A lawyer may be paid from a source other than the client, including a co-client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer’s duty of loyalty or independent judgment to the client. See Rule 1.8(f). If acceptance of the payment from any other source presents a significant risk that the lawyer’s representation of the client will be materially limited by the lawyer’s own interest in accommodating the person paying the lawyer’s fee or by the lawyer’s responsibilities to a payer who is also a co-client, then the lawyer must comply with the requirements of paragraph (b) before accepting the representation, including determining whether the conflict is consentable and, if so, that the client has adequate information about the material risks of the representation.

Prohibited Representations

[14] In many instances, clients may consent to representation notwithstanding a conflict. However, as indicated in paragraph (c), some conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent. When a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent. When the lawyer is representing more than one client, the question of consentability must be resolved as to each client.

[15] Consentability is typically determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to representation burdened by a conflict-of-interest. Thus, under paragraph (b)(1), representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation. See Rule 1.1 (competence) and Rule 1.3 (diligence).

[16] Paragraph (c)(1) describes conflicts that are nonconsentable because the representation is prohibited by applicable law. For example, in some states substantive law provides that the same lawyer may not represent more than one defendant in a capital case, even with the consent of the clients, and under federal criminal statutes certain representations by a former government lawyer are prohibited, despite the informed consent of the former client. In addition, decisional law in some states limits the ability of a governmental client, such as a municipality, to consent to a conflict-of-interest.

[17] Paragraph (c)(2) describes conflicts that are nonconsentable because of the institutional interest in vigorous development of each client’s position when the clients are aligned directly against each other in the same litigation or other proceeding before a tribunal. Whether clients are aligned directly against each other within the meaning of this paragraph requires examination of the context of the proceeding. Although this paragraph does not preclude a lawyer’s multiple representation of adverse parties to a mediation (because mediation is not a proceeding before a "tribunal" under Rule 1.0(m)), such representation may be precluded by paragraph (b)(1).

Informed Consent

[18] Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. Whether a client has given informed consent to representation, when required by this Rule or Rule 1.8, shall be determined in light of the mental capacity of the client to give consent, the explanation of the advantages and risks involved provided by the lawyer seeking consent, the circumstances under which the explanation was provided and the consent obtained, the experience of the client in legal matters generally, and any other circumstances bearing on whether the client has made a reasoned and deliberate choice. See Rule 1.0(e) (informed consent). The lawyer must reasonably believe that each client will be able to make adequately informed decisions during the representation and, to that end, the lawyer must consult with each client concerning the decisions to be made and the considerations relevant in making them, so that each client can make adequately informed decisions. See Rule 1.4. The information required depends on the nature of the conflict and the nature of the risks involved. When representation of multiple clients in a single matter is undertaken, the information must include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved. See Comments [30] and [31] (effect of common representation on confidentiality).

[19] Under some circumstances it may be impossible to make the disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent. In some cases the alternative to common representation can be that each party may have to obtain separate representation with the possibility of incurring additional costs. These costs, along with the benefits of securing separate representation, are factors that may be considered by the affected client in determining whether common representation is in the client’s interests.

Consent Confirmed in Writing

[20] Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing. Such a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. See Rule 1.0(b). See also Rule 1.0(n) (writing includes electronic transmission). If it is not feasible to obtain or transmit the writing at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. See Rule 1.0(b). The requirement of a writing does not supplant the need in most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict-of-interest, as well as reasonably available alternatives, and to afford the client a reasonable opportunity to consider the risks and alternatives and to raise questions and concerns. Rather, the writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing.

Revoking Consent

[21] A client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer’s representation at any time. Whether revoking consent to the client’s own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the conflict, whether the client revoked consent because of a material change in circumstances, the reasonable expectations of the other client and whether material detriment to the other clients or the lawyer would result.

Consent to Future Conflict

[22] Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of paragraph (b). The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. Thus, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict. If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved. On the other hand, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation. In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable under paragraph (b)(1) or paragraph (c).

Conflicts in Litigation

[23] Paragraph (c)(2) prohibits representation of opposing parties in the same litigation, regardless of the clients’ consent. On the other hand, simultaneous representation of parties whose interests in litigation may conflict, such as coplaintiffs or codefendants, is governed by paragraph (a)(2) and paragraph (b). A conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict-of-interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant. On the other hand, common representation of persons having similar interests in civil litigation is proper if the requirements of paragraph (b) are met.

[24] The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict-of-interest. A conflict-of-interest exists, however, if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s effectiveness in representing another client in a different case; for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. Factors relevant in determining whether the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved and the clients’ reasonable expectations in retaining the lawyer. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters. Under Maine law and practice, this Rule is violated only if an attorney does not obtain informed consent to an issue conflict that rises to the level of a conflict-of-interest described in Rule 1.7(a), and is actually known by the lawyer. A lawyer does not violate this Rule merely by being ignorant of the existence of an issue conflict. There are situations where, because of the risk of material limitation of a client representation, that an issue conflict can be a true (albeit consentable) conflict-of-interest. The intent of this Rule and this paragraph is not to create a conflict-of-interest-screening requirement that has not heretofore existed in Maine.

[25] When a lawyer represents or seeks to represent a class of plaintiffs or defendants in a class-action lawsuit, unnamed members of the class are ordinarily not considered to be clients of the lawyer for purposes of applying paragraph (b) of this Rule. Thus, the lawyer does not typically need to get the consent of such a person before representing a client suing the person in an unrelated matter. Similarly, a lawyer seeking to represent an opponent in a class action does not typically need the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter.

Nonlitigation Conflicts

[26] Conflicts-of-interest under paragraphs (a)(1) and (a)(2) arise in contexts other than litigation. For a discussion of directly adverse conflicts in transactional matters, see Comment [7]. Relevant factors in determining whether there is significant potential for material limitation include the duration and intimacy of the lawyer’s relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that disagreements will arise and the likely prejudice to the client from the conflict. The question is often one of proximity and degree. See Comment [8].

[27] For example, conflict questions may arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circumstances, a conflict-of-interest may be present. In estate administration the identity of the client may be unclear under the law of a particular jurisdiction. In order to comply with conflict-of-interest rules, the lawyer should make clear the lawyer’s relationship to the parties involved.

[28] Whether a conflict is consentable depends on the circumstances. For example, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference in interest among them. Thus, a lawyer may seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis; for example, in helping to organize a business in which two or more clients are entrepreneurs, working out the financial reorganization of an enterprise in which two or more clients have an interest or arranging a property distribution in settlement of an estate. The lawyer seeks to resolve potentially adverse interests by developing the parties’ mutual interests. Otherwise, each party might have to obtain separate representation, with the possibility of incurring additional cost, complication or even litigation. Given these and other relevant factors, the clients may prefer that the lawyer act for all of them.

Special Considerations in Common Representation

[29] In considering whether to represent multiple clients in the same matter, a lawyer should be mindful that if the common representation fails because the potentially adverse interests cannot be reconciled, the result can be additional cost, embarrassment and recrimination. Ordinarily, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails. In some situations, the risk of failure is so great that multiple representation is plainly impossible. For example, a lawyer cannot undertake common representation of clients where contentious litigation or negotiations between them are imminent or contemplated. Moreover, because the lawyer is required to be impartial between commonly represented clients, representation of multiple clients is improper when it is unlikely that impartiality can be maintained. Generally, if the relationship between the parties has already assumed antagonism, the possibility that the clients’ interests can be adequately served by common representation is not very good. Other relevant factors are whether the lawyer subsequently will represent both parties on a continuing basis and whether the situation involves creating or terminating a relationship between the parties.

[30] A particularly important factor in determining the appropriateness of common representation is the effect on client-lawyer confidentiality and the attorney-client privilege. With regard to the attorney-client privilege, the prevailing rule is that, as between commonly represented clients, the privilege does not attach. But see M.R. Evid. 502(d)(5). Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised.

[31] As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client’s interests and the right to expect that the lawyer will use that information to that client’s benefit. See Rule 1.4. The lawyer should, at the outset of the common representation and as part of the process of obtaining each client’s informed consent, advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. In limited circumstances, it may be appropriate for the lawyer to proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential. For example, the lawyer may reasonably conclude that failure to disclose one client’s trade secrets to another client will not adversely affect representation involving a joint venture between the clients and agree to keep that information confidential with the informed consent of both clients.

[32] When seeking to establish or adjust a relationship between clients, the lawyer should make clear that the lawyer’s role is not that of partisanship normally expected in other circumstances and, thus, that the clients may be required to assume greater responsibility for decisions than when each client is separately represented. Any limitations on the scope of the representation made necessary as a result of the common representation should be fully explained to the clients at the outset of the representation. See Rule 1.2(c).

[33] Subject to the above limitations, each client in the common representation has the right to loyal and diligent representation and the protection of Rule 1.9 concerning the obligations to a former client. The client also has the right to discharge the lawyer as stated in Rule 1.16.

Organizational Clients

[34] A lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary. See Rule 1.13(a). Thus, the lawyer for an organization is not barred from accepting representation adverse to an affiliate in an unrelated matter, unless the circumstances are such that the affiliate should also be considered a client of the lawyer, there is an understanding between the lawyer and the organizational client that the lawyer will avoid representation adverse to the client’s affiliates, or the lawyer’s obligations to either the organizational client or the new client are likely to limit materially the lawyer’s representation of the other client.

[35] A lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the two roles may conflict. The lawyer may be called on to advise the corporation in matters involving actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the lawyer’s resignation from the board and the possibility of the corporation’s obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer’s independence of professional judgment, the lawyer should not serve as a director or should cease to act as the corporation’s lawyer when conflicts of interest arise. The lawyer should advise the other members of the board that in some circumstances matters discussed at board meetings while the lawyer is present in the capacity of director might not be protected by the attorney-client privilege and that conflict-of-interest considerations might require the lawyer’s recusal as a director or might require the lawyer and the lawyer’s firm to decline representation of the corporation in a matter.

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REPORTER’S NOTES:

Model Rule 1.7 (2002) corresponds to M. Bar R. 3.4(b) and (c), and addresses conflicts of interest with respect to concurrent representation of clients. In substance, Model Rule 1.7 (2002) does not represent a significant departure from the treatment of conflicts of interest in M. Bar R. 3.4. Accordingly, the Task Force recommended the adoption of the structure of Model Rule 1.7 (2002), with some clarifying adjustments. The RESTATEMENT §§ 121, 122, 123, 128 and 129 are generally in accord with Model Rule 1.7 (2002).

The conflicts of interest rules preserve a lawyer’s loyalty to his or her clients. A conflict-of-interest may also implicate issues relating to confidentiality. Even in cases where there is little or no chance of disclosing client confidences or secrets, however, representation may be prohibited because of the presence of a conflict-of-interest that may be viewed, from the client’s perspective, as a concession of their lawyer’s loyalty.

The Task Force recognized that some conflicts of interest can be cured, and others can not. The recommendation to divide Model Rule 1.7(b) (2002) into M. Bar R. 1.7(b) and (c) was not meant to be a change in substance from the 2002 Model Rule formulation: the purpose was to make explicit the types of conflicts that can be cured, and the types of conflicts that can not. Rule 1.7(b) provides for a conflict-of-interest cure by "consent plus." This means when a conflict-of-interest is found, (except in circumstances described in paragraph (c)) for the lawyer to engage in the concurrent representation, each client must give "informed consent" to the conflict (as defined in Maine Rules of Professional Conduct 1.0 (e)), and the lawyer must reasonably believe that he or she will be able to provide competent and diligent representation to each client. This "consent plus" concept is not meant to be a substantive departure from the standard set forth in M. Bar R. 3.4(c)(2)(i): a client’s consent is valid only in those instances in which a disinterested lawyer would conclude that the risk of inadequate representation is minimal. The Task Force recognized this standard was an objective one: the lawyer’s independent judgment must be measured against the judgment of the "reasonable lawyer."

Model Rule 1.7 (2002) and M. Bar R. 3.4(b) and (c) both identify a conflict-of-interest when a lawyer is representing one client and simultaneously representing another client, while the clients’ interests are adverse. A classic illustration of this type of conflict is A suing B, when a lawyer is representing both A and B. Pursuant to M. Bar R. 3.4 (c)(2), and Model Rule 1.7 (2002), however, the matters involved do not have to be related. M. Bar R. 3.4(c)(2) explicitly states adversity between clients may exist in unrelated matters. Model Rule 1.7 (2002) does not state this explicitly in the Rule, but relegates it to Comment [6]. The Task Force recommended making this point explicit in the Rule itself and discussed the following example: Lawyer X is representing Client A in connection with the adoption of a child. Client B desires to engage Lawyer X in connection with a real estate sale in which Client A is the buyer. In such a circumstance, Lawyer X’s concurrent representation of Client B would be directly adverse to Lawyer X’s representation of Client A in the real estate transaction. Where representation of one client is directly adverse to the concurrent representation of another client, even if the representation involves wholly unrelated matters, a conflict-of-interest exists. The Task Force recognized the issue of conflicts of interest must be viewed from the perspective of the client as well as of the lawyer. The duty of loyalty requires the lawyer obtain the client’s consent before being directly adverse to the client. In the vast majority of cases, where a lawyer determines a conflict is consentable, i.e., the lawyer has a reasonable belief that the quality of the representation would not be compromised by the conflict, the affected clients are likely to consent to the representation.

Unlike M. Bar R. 3.4 (b), Rule 1.7 addresses only conflicts of interest with respect to current clients. Conflicts of interest with respect to former clients are addressed in Model Rule 1.9 (2002). The Task Force acknowledged the issue of when a client is a current client and when a client is a former client is not always clear in practice. It is an issue, however, that can be addressed through plain language in attorney engagement letters, clearly defining both the scope and duration of a lawyer’s engagement.

There are, however, certain circumstances where concurrent representation of two (or more) clients is categorically prohibited. This is the case, (i) when the representation is prohibited by law, and (ii) when two (or more) clients are asserting claims against each other in the same proceeding. The Task Force recommended dividing Rule 1.7(b) into Rule 1.7(b) and (c) to make that point clearly and explicitly. This structural modification of the Model Rule does not represent a substantive departure from either M. Bar R. 3.4 or from Model Rule 1.7(b) (2002).

The Task Force also recognized that under M. Bar R. 3.4(c)(2)(i)(A) and (B), a lawyer engaged in a simultaneous representation that presents a conflict must reasonably believe that each affected client "will be able to make adequately informed decisions, and consult with each client concerning the decisions to be made and the considerations relevant in making them." Although these requirements are not stated expressly in Model Rule 1.7 (2002), the Task Force believed they are implicit in the Model Rules. An attorney cannot reasonably determine whether he or she can provide diligent and competent representation if it is not possible for an affected client to make adequately informed decisions. A concurrent representation does not relieve a lawyer of his or her obligations under Maine Rules of Professional Conduct Rule 1.4 to consult with clients and keep them adequately informed so that they can make informed decisions.

Under the Maine Bar Rules, a lawyer engaged in concurrent representation presenting a conflict must terminate representation if any of the conditions that made it permissible to undertake the concurrent representation cease to exist. The Task Force was satisfied these issues are adequately addressed in Comments [4] and [5].

Comment [11] to Model Rule 1.7 is substantially the same as existing M. Bar R. 3.4(f)(3), addressing the issue of familial relations between lawyers in the same or substantially related matters. The Task Force recommended adding a new Rule 1.8(l) setting forth the substance of M. Bar R. 3.4(f)(3).

With respect to advance waivers of conflicts of interest, the Task Force was in accord with the approach taken by Model Rule 1.7 Comment [22] (2002). Comment [22], in setting forth various factors to consider in evaluating the validity of such an advance waiver, is consistent with what has been both common law and practice in the State of Maine. The Task Force recognized that such advance waivers are a business necessity for many lawyers and law firms, and may be the only way that clients can secure counsel of their choosing. Especially in cases where sophisticated, repeat users of legal services are independently represented by their own in-house lawyers, advance waivers of conflicts of interest ought to be allowed. Notwithstanding the absence of a specific provision addressing this issue in M. Bar R. 3.4, inclusion of interpretive Comment [22] does not represent a substantive departure from the approach historically taken in Maine. The Model Rule (2002) approach is in accord with the RESTATEMENT § 122, comment d.

M. Bar R. 3.4(b)(2) lists a number of factors bearing on the determination of whether a client has given "informed consent." The Task Force recommended that the enumeration of factors informing the issue of whether a client has given informed consent set forth in M. Bar R. 3.4(b)(2) be added to Maine Rule of Professional Conduct 1.0(e) definition of "informed consent." The Rule 1.0(e) definition of "informed consent" is cross-referenced in Comment [18] to Rule 1.7.

The Task Force discussed the difficulties that may face a lawyer who is himself or herself being represented in a legal matter, and who may face his or her own lawyer in unrelated matters as opposing counsel. For example Lawyer A represents Smith against Jones, who is represented by Lawyer B. At the same time, Lawyer B is representing Lawyer A in a personal affair of Lawyer A’s. Lawyer A’s client relationship to Lawyer B is a personal relationship of Lawyer A. In the appropriate case, the Task Force advises it would be prudent for Lawyer A to disclose to Smith that personal relationship, including that Lawyer B represents him on an unrelated personal matter.

With respect to the issue of the form of informed consent required, the Task Force recognized three potential options: (i) verbal informed consent, (ii) informed consent, confirmed in writing by the lawyer (which does not need to be written or signed by the client), and (iii) informed consent in writing, signed by the client. Under the Model Rules (2002), the default rule for informed consent to a concurrent conflict-of-interest is to obtain consent from the client, confirmed in writing. In contrast, the Maine Bar Rules do not require a writing. Because it is in the best interest of both clients and lawyers to memorialize the specifics of the consent, the Task Force recommended the adoption of the Model Rule 1.7 (2002) requirement that clients’ informed consent be confirmed in writing.

Comment [24] addresses the issue of positional (or issue) conflicts of interest. When a lawyer advocates a resolution of particular legal issue in one way for one client, and advocates the opposite resolution of the same issue for another client in an unrelated matter, this is referred to as a "positional" or an "issue" conflict. The Task Force recognized that the treatment of such situations has been the subject of much debate; the ABA, the RESTATEMENT 3RD, and Board of Overseers’ Professional Ethics Commission all have spoken to this issue, not entirely consistently.

Under the Maine Rules of Professional Responsibility, an issue conflict is not a per se conflict-of-interest under Rule 3.4; the only Rule bearing on an issue conflict is the lawyer’s duty under Rule 3.6 to employ "reasonable care and skill" and "the lawyer’s best judgment" in representing clients and to determine whether the issue conflict (so-called) requires the lawyer to withdraw. In so ruling, the Board of Overseers’ Professional Ethics Commission expressly declined to adopt the reasoning of the ABA. The ABA has analyzed issue conflicts as conflicts under Rule 1.7(b), and set forth factors that counsel should consider in determining whether the conflict is consentable or not (i.e. whether the representation of one client would be adversely affected). In other words, an issue conflict by itself is not representation of "directly adverse" clients (under Rule 1.7(a)); it is a potentially consentable conflict, assuming the lawyer reasonably believes that one representation will not be adversely affected by the other. The ABA interpretation was based on the text of Rule 1.7 and the comments thereto as they existed at that time. The subsequent revisions to Rule 1.7 (2002), as well as the RESTATEMENT 3RD, follow the same general approach addressing issue conflicts in general as consentable conflicts, but they revised the discussion of the factors to be considered in making the consentability determination, and made clear that an "issue conflict" is not a conflict at all unless one representation presents a significant risk of materially impairing another representation.

The Task Force concluded that interpretations of the Maine Bar Rules and interpretations of the ABA rules are not very far apart. The common concern is the risk of materially impairing the lawyer’s effectiveness in representing one client in light of the positions that the lawyer is advocating for another client: contemporaneously arguing opposite sides of the same issue before the same judge or panel of judges has the potential to impair his or her effectiveness on behalf of both clients. In Maine, however, the principal concern seemed to be that treating issue conflicts as true conflicts would require attorneys to engage in conflict screening not simply as to the identity of clients, but as to the substance of legal arguments advanced on behalf of clients: a considerable burden. A related but unstated consequence of the Maine Professional Ethics Commission’s ruling is issue conflicts are not something that need to be disclosed to or consented to by a client. Either they actually do materially impair the lawyer’s effectiveness, in which case the lawyer must withdraw; or they do not, in which case the representation continues. The lawyer decides whether the impairment is actual or not, and there is no need to disclose or get consent to the mere potential of adverse impact.

The Task Force decided to adopt the approach taken under the Model Rules (2002): issue conflicts may be conflicts in some circumstances; and a multifactored analysis is necessary to determine whether an issue conflict can be waived by the client.

An issue conflict can, under certain circumstances, ripen into a true, albeit consentable, conflict-of-interest, but an issue conflict is not necessarily a conflict-of-interest in all cases. The Task Force was mindful fact that to the extent that issue conflicts are conflicts, they have not historically been the subject of a screening requirement in Maine. The adoption of this rule does not make them the subject of screening but simply recognizes that when a lawyer is aware of the existence of such an issue conflict, the lawyer must go through the paragraph 1.7(b) analysis to determine whether the "conflict" presents a risk to the representation that is significant enough to constitute a true conflict; if so, whether the risk is insubstantial enough that the conflict, though real, is curable; and if so, that the lawyer make the necessary disclosure and obtain the necessary consent.

The Task Force recognized the sensitive issues raised by Model Rule 1.7 Comment [10] (2002) and Model Rule 1.8(j) (2002), categorically prohibiting of sexual relationships with clients. The Model Rules (2002) categorical prohibition does not exist in the Maine Bar Rules. Model Rule 1.8(j) (2002) bars forming a sexual relationship with a client (but does not prohibit forming a client relationship with an existing sexual partner) (and that prohibition is recognized as a conflict-of-interest in Comment [10] to Model Rule 1.7 (2002)). Comment [19] to Model Rule 1.8 (2002) notes that the prohibition applies in the context of organizational clients as well, prohibiting a sexual relationship "with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters."

Three principal rationales for the prohibition found in Model Rule 1.8(j) (2002) are put forward: impairment of the lawyer’s professional detachment, risk to ability to protect client confidences, and possible sexual exploitation of the client by the lawyer. See Comment [17] to Model Rule 1.8 (2002). The first two rationales apply with equal force regardless of whether the sexual relationship pre-dates or post-dates the formation of the client relationship. The Rule, however, does permit a sexual relationship with the client as long as the sexual relationship predated the client relationship. The rationale that appears to motivate the rule as written is the rationale based on inequality in the relationship and the possibility of sexual exploitation of the client by the lawyer—or an unstated moral judgment that neither has, nor necessarily needs, further support (i.e., "it’s just plain wrong").

The Task Force ultimately recommended (albeit with some dissent) that Maine not adopt the Model Rule (2002). A minority of members of the Task Force thought that the Model Rule 1.7 Comment [10] (2002) and Model Rule 1.8(j) (2002) should be adopted in Maine. The minority members expressed the concern that a failure to adopt a categorical prohibition against sexual relations with clients would tarnish the image of the legal profession in the eyes of the public. Furthermore, the Model Rule (2002) formulation, in setting forth a bright line rule, was more functional and gave attorneys clear guidance as to what was and was not prohibited conduct.

In the view of the majority of Task Force members, the rule is unnecessary to address the true disciplinary problems needing to be addressed. Moreover, it threatens to make disciplinary issues out of conduct that should not be a matter of attorney discipline. For example, if a junior associate were to become romantically involved with a corporate officer with whom he regularly consulted on a corporate client’s title matters, for instance, the Rule would make that professional misconduct, subjecting that associate as well as his supervising partner(s) to potential professional discipline. It was the view of a majority of the Task Force that the problem of client exploitation can be addressed without Model Rule 1.8(j) (2002). Moreover, private moral judgment is not an appropriate basis for a rule of discipline. The Task Force was clear that this position does not condone sexual relationships that involve exploitation. They have been, and remain inappropriate.

The Task Force recognized even without a categorical prohibition, the Board of Overseers has, when appropriate, been able to discipline lawyers for inappropriate sexual relationships with clients. Sexual relationships involving exploitation of the client or impairment of the representation of the client have always been prohibited. Accordingly, the Task Force concluded that Model Rule 1.8(j) (2002) and its related Comments are well-intentioned, but poorly thought-out, attempts to address the core problem of sexual exploitation.

1.8 Conflict-of-Interest: Current Clients: Specific Rules

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

(b) A lawyer shall not use confidences or secrets of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.

(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.

(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on confidences or secrets of the client.

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:

(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and

(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:

(1) the client gives informed consent;

(2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and

(3) the confidences and secrets of a client are protected as required by Rule 1.6.

(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

(h) A lawyer shall not:

(1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice; or

(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.

(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

(1) acquire a lien authorized by law against the proceeds of such action or litigation to secure the lawyer’s fee or expenses; and

(2) contract with a client for a reasonable contingent fee in a civil case, subject to the limitations in Rule 1.5(c) and (d).

(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

(k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them.

(l) A lawyer related to another lawyer (as parent, child, sibling, domestic associate or spouse), ordinarily may not represent a client in a matter where the related lawyer is representing another party who is or shall be adverse to the lawyer’s client, unless each client gives informed consent, confirmed in writing.

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Advisory Committee Note — October 2018

The Committee recommends adopting ABA Model Rule 1.8(j)’s prohibition on sexual relations with clients. When Maine adopted the Rules of Professional Conduct, the Task Force (over a minority dissent) recommended not adopting Rule 1.8(j). The Task Force noted in Comment [12] to Rule 1.7 (the general current conflict rule), that it was not "implicit[ly] approv[ing]" of sexual relationships with clients, and expressly noted that attorneys had been disciplined under the former Code of Professional Responsibility for entering into sexual relationships with clients and "may be disciplined for similar conduct under these rules" even without the adoption of Rule 1.8(j). Feedback from the bar in the years since has helped convince the Committee that adopting Rule 1.8(j) will be helpful to the bar and the public in understanding the nature of an attorney’s obligations in this regard.

Rule 1.8(j) states a per se prohibition on sexual relationships formed with a client during the course of representation, but it does not exhaust the field of sexual relationships or sexual conduct that can give rise to discipline. It remains true that a sexual relationship with a client potentially implicates other duties under these rules (e.g. the duty to avoid conflicts that materially limit the representation, avoiding personal-interest conflicts in representing a client, duty to apply the disinterested-lawyer test to determine whether consent can cure a conflict, to name a few) and may be cause for discipline independent of Rule 1.8(j). Accordingly, although there is no universal prohibition on entering into representation of a spouse or other sexual partner, such a representation may be prohibited in individual cases under standard conflict rules, and the lawyer must be vigilant about the potential for conflict such a relationship can pose, as in any other case of potential conflict. And conduct that arguably is not formation of a sexual relationship with an existing client may nonetheless be abusive or improper in a way that would warrant discipline under other rules (e.g. prejudice to the administration of justice, unlawfulness, harassment).

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COMMENT

Business Transactions Between Client and Lawyer

[1] A lawyer’s legal skill and training, together with the relationship of trust and confidence between lawyer and client, create the possibility of overreaching when the lawyer participates in a business, property or financial transaction with a client, for example, a loan or sales transaction or a lawyer investment on behalf of a client. The requirements of paragraph (a) must be met even when the transaction is not closely related to the subject matter of the representation, as when a lawyer drafting a will for a client learns that the client needs money for unrelated expenses and offers to make a loan to the client. The Rule applies to lawyers engaged in the sale of goods or services related to the practice of law, for example, the sale of title insurance or investment services to existing clients of the lawyer’s legal practice. See Rule 5.7. It also applies to lawyers purchasing property from estates they represent. It does not apply to ordinary fee arrangements between client and lawyer, which are governed by Rule 1.5, although its requirements must be met when the lawyer accepts an interest in the client’s business or other nonmonetary property as payment of all or part of a fee. In addition, the Rule does not apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others, for example, banking or brokerage services, medical services, products manufactured or distributed by the client, and utilities’ services. In such transactions, the lawyer has no advantage in dealing with the client, and the restrictions in paragraph (a) are unnecessary and impracticable.

[2] Paragraph (a)(1) requires that the transaction itself be fair to the client and that its essential terms be communicated to the client, in writing, in a manner that can be reasonably understood. Paragraph (a)(2) requires that the client also be advised, in writing, of the desirability of seeking the advice of independent legal counsel. It also requires that the client be given a reasonable opportunity to obtain such advice. Paragraph (a)(3) requires that the lawyer obtain the client’s informed consent, in a writing signed by the client, both to the essential terms of the transaction and to the lawyer’s role. When necessary, the lawyer should discuss both the material risks of the proposed transaction, including any risk presented by the lawyer’s involvement, and the existence of reasonably available alternatives and should explain why the advice of independent legal counsel is desirable. See Rule 1.0(e) (definition of informed consent).

[3] The risk to a client is greatest when the client expects the lawyer to represent the client in the transaction itself or when the lawyer’s financial interest otherwise poses a significant risk that the lawyer’s representation of the client will be materially limited by the lawyer’s financial interest in the transaction. Here the lawyer’s role requires that the lawyer must comply, not only with the requirements of paragraph (a), but also with the requirements of Rule 1.7. Under that Rule, the lawyer must disclose the risks associated with the lawyer’s dual role as both legal adviser and participant in the transaction, such as the risk that the lawyer will structure the transaction or give legal advice in a way that favors the lawyer’s interests at the expense of the client. Moreover, the lawyer must obtain the client’s informed consent. In some cases, the lawyer’s interest may be such that Rule 1.7 will preclude the lawyer from seeking the client’s consent to the transaction.

[4] If the client is independently represented in the transaction, paragraph (a)(2) of this Rule is inapplicable, and the paragraph (a)(1) requirement for full disclosure is satisfied either by a written disclosure by the lawyer involved in the transaction or by the client’s independent counsel. The fact that the client was independently represented in the transaction is relevant in determining whether the agreement was fair and reasonable to the client as paragraph (a)(1) further requires.

Use of Confidences and Secrets

[5] Use of confidences and secrets of the client to the disadvantage of the client violates the lawyer’s duty of loyalty. Paragraph (b) applies when the information is used to benefit either the lawyer or a third person, such as another client or business associate of the lawyer. For example, if a lawyer learns that a client intends to purchase and develop several parcels of land, the lawyer may not use that information to purchase one of the parcels in competition with the client or to recommend that another client make such a purchase. The Rule does not prohibit uses that do not disadvantage the client. Paragraph (b) prohibits disadvantageous use of client information unless the client gives informed consent, except as permitted or required by these Rules. See Rules 1.2(d), 1.6, 1.9(c), 3.3, 4.1(b), 8.1 and 8.3.

Gifts to Lawyers

[6] A lawyer may accept a gift from a client, if the transaction meets general standards of fairness. For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted. If a client offers the lawyer a more substantial gift, paragraph (c) does not prohibit the lawyer from accepting it, although such a gift may be voidable by the client under the doctrine of undue influence, which treats client gifts as presumptively fraudulent. In any event, due to concerns about overreaching and imposition on clients, a lawyer may not suggest that a substantial gift be made to the lawyer or for the lawyer’s benefit, except where the lawyer is related to the client as set forth in paragraph (c).

[7] If effectuation of a substantial gift requires preparing a legal instrument such as a will or conveyance the client should have the detached advice that another lawyer can provide. The sole exception to this Rule is where the client is a relative of the donee.

[8] This Rule does not prohibit a lawyer from seeking to have the lawyer or a partner or associate of the lawyer named as executor of the client’s estate or to another potentially lucrative fiduciary position. Nevertheless, such appointments will be subject to the general conflict-of-interest provision in Rule 1.7 when there is a significant risk that the lawyer’s interest in obtaining the appointment will materially limit the lawyer’s independent professional judgment in advising the client concerning the choice of an executor or other fiduciary. In obtaining the client’s informed consent to the conflict, the lawyer should advise the client concerning the nature and extent of the lawyer’s financial interest in the appointment, as well as the availability of alternative candidates for the position.

Literary Rights

[9] An agreement by which a lawyer acquires literary or media rights concerning the conduct of the representation creates a conflict between the interests of the client and the personal interests of the lawyer. Measures suitable in the representation of the client may detract from the publication value of an account of the representation. Paragraph (d) does not prohibit a lawyer representing a client in a transaction concerning literary property from agreeing that the lawyer’s fee shall consist of a share in ownership in the property, if the arrangement conforms to Rule 1.5 and paragraphs (a) and (i).

Financial Assistance

[10] Lawyers may not subsidize lawsuits or administrative proceedings brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, because to do so would encourage clients to pursue lawsuits that might not otherwise be brought and because such assistance gives lawyers too great a financial stake in the litigation. These dangers do not warrant a prohibition on a lawyer lending a client court costs and litigation expenses, including the expenses of medical examination and the costs of obtaining and presenting evidence, because these advances are virtually indistinguishable from contingent fees and help ensure access to the courts. Repayment of an advance of these costs and expenses may be waived by the lawyer.

Person Paying for a Lawyer’s Services

[11] Lawyers are frequently asked to represent a client under circumstances in which a third person will compensate the lawyer, in whole or in part. The third person might be a relative or friend, an indemnitor (such as a liability insurance company) or a co-client (such as a corporation sued along with one or more of its employees). Because third-party payers frequently have interests that differ from those of the client, including interests in minimizing the amount spent on the representation and in learning how the representation is progressing, lawyers are prohibited from accepting or continuing such representations unless the lawyer determines that there will be no interference with the lawyer’s independent professional judgment and there is informed consent from the client. See also Rule 5.4(c) (prohibiting interference with a lawyer’s professional judgment by one who recommends, employs or pays the lawyer to render legal services for another).

[12] Sometimes, it will be sufficient for the lawyer to obtain the client’s informed consent regarding the fact of the payment and the identity of the third-party payer. If, however, the fee arrangement creates a conflict-of-interest for the lawyer, then the lawyer must comply with Rule. 1.7. The lawyer must also conform to the requirements of Rule 1.6 concerning confidentiality. Under Rule 1.7(a), a conflict-of-interest exists if there is significant risk that the lawyer’s representation of the client will be materially limited by the lawyer’s own interest in the fee arrangement or by the lawyer’s responsibilities to the third-party payer (for example, when the third-party payer is a co-client). Under Rule 1.7(b), the lawyer may accept or continue the representation with the informed consent of each affected client, unless the conflict is nonconsentable under paragraph 1.7(c). Under Rule 1.7(b), the informed consent must be confirmed in writing.

Aggregate Settlements

[13] Differences in willingness to make or accept an offer of settlement are among the risks of common representation of multiple clients by a single lawyer. Under Rule 1.7, this is one of the risks that should be discussed before undertaking the representation, as part of the process of obtaining the clients’ informed consent. In this circumstance the informed consent must be in writing, signed by the clients. In addition, Rule 1.2(a) protects each client’s right to have the final say in deciding whether to accept or reject an offer of settlement and in deciding whether to enter a guilty or nolo contendere plea in a criminal case. The rule stated in this paragraph is a corollary of both these Rules and provides that, before any settlement offer or plea bargain is made or accepted on behalf of multiple clients, the lawyer must inform each of them about all the material terms of the settlement, including what the other clients will receive or pay if the settlement or plea offer is accepted. See also Rule 1.0(e) (definition of informed consent). Lawyers representing a class of plaintiffs or defendants, or those proceeding derivatively, may not have a full client-lawyer relationship with each member of the class; nevertheless, such lawyers must comply with applicable rules regulating notification of class members and other procedural requirements designed to ensure adequate protection of the entire class.

Limiting Liability and Settling Malpractice Claims

[14] Agreements prospectively limiting a lawyer’s liability for malpractice are prohibited because they are likely to undermine competent and diligent representation. Also, many clients are unable to evaluate the desirability of making such an agreement before a dispute has arisen, particularly if they are then represented by the lawyer seeking the agreement. This paragraph does not, however, prohibit a lawyer from entering into an agreement with the client to arbitrate legal malpractice claims, provided such agreements are enforceable and the client is fully informed of the scope and effect of the agreement. Nor does this paragraph limit the ability of lawyers to practice in the form of a limited-liability entity, where permitted by law, provided that each lawyer remains personally liable to the client for his or her own conduct and the firm complies with any conditions required by law, such as provisions requiring client notification or maintenance of adequate liability insurance. Nor does it prohibit an agreement in accordance with Rule 1.2 that defines the scope of the representation, although a definition of scope that makes the obligations of representation illusory will amount to an attempt to limit liability.

[15] Agreements settling a claim or a potential claim for malpractice are not prohibited by this Rule. Nevertheless, in view of the danger that a lawyer will take unfair advantage of an unrepresented client or former client, the lawyer must first advise such a person in writing of the appropriateness of independent representation in connection with such a settlement. In addition, the lawyer must give the client or former client a reasonable opportunity to find and consult independent counsel.

Acquiring Proprietary Interest in Litigation

[16] Paragraph (i) states the traditional general rule that lawyers are prohibited from acquiring a proprietary interest in litigation. Like paragraph (e), the general rule has its basis in common law champerty and maintenance and is designed to avoid giving the lawyer too great an interest in the representation. In addition, when the lawyer acquires an ownership interest in the subject of the representation, it will be more difficult for a client to discharge the lawyer if the client so desires. The Rule is subject to specific exceptions developed in decisional law and continued in these Rules. The exception for certain advances of the costs of litigation is set forth in paragraph (e). In addition, paragraph (i) sets forth exceptions for liens authorized by law to secure the lawyer’s fees or expenses and contracts for reasonable contingent fees. The law of each jurisdiction determines which liens are authorized by law. These may include liens granted by statute, liens originating in common law and liens acquired by contract with the client. When a lawyer acquires by contract a security interest in property other than that recovered through the lawyer’s efforts in the litigation, such an acquisition is a business or financial transaction with a client and is governed by the requirements of paragraph (a). Contracts for contingent fees in civil cases are governed by Rule 1.5.

Client-Lawyer Sexual Relationships

[17] The Maine Rules of Professional Conduct do not include the Model Rule (2002) categorically prohibiting sexual relations between lawyer and client. See Rule 1.7 Comment [12].

[18] Reserved.

[19] Reserved.

Imputation of Prohibitions

[20] Under paragraph (k), a prohibition on conduct by an individual lawyer in paragraphs (a) through (i) also applies to all lawyers associated in a firm with the personally prohibited lawyer. For example, one lawyer in a firm may not enter into a business transaction with a client of another member of the firm without complying with paragraph (a), even if the first lawyer is not personally involved in the representation of the client. The prohibition set forth in paragraph (l) is personal and is not applied to associated lawyers.

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REPORTER’S NOTES:

Model Rule 1.8 (2002) outlines the conflict-of-interest rules that arise in certain specified circumstances. The rule is consistent, in substance with M. Bar R. 3.4(b) and (f). Accordingly, the Task Force recommended that adoption of the structure and substance of Model Rule 1.8 (2002).

Rule 1.8(a) tracks the substance (and much of the language) of M. Bar R. 3.4(f)(1) and (2)(i). The recommendation of the adoption of the Model Rule 1.8(a) structure is not meant to be a substantive departure from the Maine Bar Rules. RESTATEMENT §§ 16, 36, 54, 126 and 127 are generally in accord with Model Rule 1.8 (2002).

Paragraph (b) addresses the issue of the "use" of client confidences and secrets. As stated in the Reporter’s Notes to Maine Rule Professional Conduct 1.6, above, there is a distinction between "using" information and "revealing" information. Model Rule 1.8(b) (2002) prohibits the use of confidences and secrets of a client to the disadvantage of a client, in the absence of informed consent. This is consistent with (although somewhat narrower than) the rule set forth in the former (and the 2005 revision) M. Bar R. 3.6(h)(1), prohibiting the use of a confidence or secret. Consider the following example (as set forth in the Reporter’s Notes to Rule 1.6). You know that your client is about to develop a tract of land. As a result, neighboring tracts will become more valuable. You buy a neighboring tract. The purchase does not reveal what you know as a result of your client representation. If the use of the information (purchasing the land) does not disadvantage your client, you are not prohibited from doing so under Model Rule 1.8(b) (2002). If however, the lawyer uses the information learned from a client to purchase one of the parcels in competition with the client, the use of the information would be to the disadvantage of the client, and thus prohibited. "Use" of information is a concept more closely aligned with a conflict-of-interest and thus implicates issues of loyalty, than with the revelation of confidential client information. See also RESTATEMENT § 60, stating that "a lawyer who uses confidential information of a client for the lawyer’s pecuniary gain . . . must account to the client for any profits made," based upon principles of agency.

A client’s informed consent to the conflicts of interest set forth in Model Rule 1.8(a) (2002) (consent to a business transaction with a lawyer or consent to a lawyer acquiring a pecuniary interest adverse to a client), and (g) (consent to aggregate settlements and plea bargains) must be in writing, signed by the client. The requirement of written consent to aggregate settlements and plea bargains is departure from the Maine Bar Rules, which requires only informed consent. Because it is in the best interest of both clients and lawyers to memorialize the specifics of consent in these contexts, the Task Force recommended the adoption of the Model Rule 1.8 (2002) requirement that clients’ informed consent be confirmed in writing. The Task Force agreed with the Model Rule drafters that the requirement that the client sign a written consent in the circumstances set forth in Rule 1.8(a)(3) and 1.8(g) provided the client with greater protection than a mere written confirmation presented by a lawyer. This added client protection is warranted because of the potential for client exploitation or a lawyer’s over-reaching. Requiring the client to sign a written consent presents a further opportunity for the client to understand and reflect upon the conflict being waived.

As noted in the Reporter’s Notes to Rule 1.7, the definition of "informed consent" in Rule 1.0(e) has been expanded to include the factors that bear on the determination of whether a client has given informed consent, as found in M. Bar R. 3.4(b)(2).

Model Rule 1.8(c) (2002) substantively is consistent with M. Bar R. 3.4(f)(2)(iv). Both rules set forth prohibitions against lawyers preparing an instrument pursuant to which he or she receives substantial gifts from clients. Both rules make an exception for when the lawyer is related to the client. Model Rule 1.8(c) (2002) however, in its broader formulation of prohibitions, represents a positive expansion of the Maine Bar Rules.

Model Rule 1.8(d) (2002) substantively is similar to M. Bar R. 3.4(f)(2)(iii). The Model Rule, however, expands the prohibition against a lawyer acquiring publication rights with respect to the subject matter of a client’s representation to literary, media, portrayal or other accounts based in substantial part on information relating to the representation. The Task Force recommended the more thorough formulation of the prohibition set forth in Model Rule 1.8(d) (2002).

Model Rule 1.8(e) (2002) is in accord with M. Bar R. 3.7(d), prohibiting a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation, except for court costs and other litigation expenses. The Model Rule (2002) formulation is explicit in stating that although the allowed financial assistance may be initially characterized as an advance, repayment may not be forthcoming. This is not a departure from the Maine Bar Rules.

Model Rule 1.8(f) (2002) prohibits a lawyer from accepting compensation from a third party, except under certain, specified conditions. This rule is in accord with M. Bar R. 3.12(b). The Model Rule (2002) is more stringent however in requiring informed client consent in addition to a lawyer’s reasonable judgment that the third party compensation will not interfere with the lawyer’s independence of professional judgment, or with the client-lawyer relationship. The Task Force recommended the adoption of the additional safeguards found in Model Rule 1.8(f) (2002).

Model Rule 1.8(h)(1) (2002) allows a prospective waiver of a lawyer’s malpractice liability, if the client is independently represented in making the agreement. M. Bar R. 3.4(f)(2)(v) categorically prohibits such a prospective waiver. The Task Force discussed that business clients are becoming increasingly sophisticated, as is the complexity of the lawyer/client relationship. The Task Force further deliberated whether, in some instances, it may be in the best interest of the client to allow such a waiver. The Task Force ultimately recommended, however, that the rule prohibiting prospective waivers of malpractice liability be retained.

Model Rule 1.8(i) (2002) is consistent with M. Bar R. 3.7(c), both prohibiting a lawyer from acquiring a proprietary interest in the cause of action or the subject matter of litigation, with certain exceptions. The first of these exceptions allows a lawyer to acquire a lien to secure payment of a lawyer’s fees or expenses. M. Bar R. 3.7(c) explicitly states the lien may be against only the proceeds of the action or litigation, and not against a client’s files. The Task Force recommended including this explicit distinction between acceptable and unacceptable liens in the text of the Rule. Reasonable contingent fees are allowable under both the Model Rules (2002) and the Maine Bar Rules, subject to the limitations set forth in Maine Rules of Professional Conduct 1.5(c) and (d).

The Task Force recommended not to adopt (with a minority dissenting) the Model Rule 1.8(j) (2002) categorical prohibition on sexual relationships between lawyers and clients. See Rule 1.7 Comment [12].

Model Rule 1.8(k) (2002) states that if a lawyer finds a Rule 1.8 conflict-of-interest (except for one that grows out of a personal relationship), that conflict is imputed to associates, partners and other affiliated lawyers of the conflicted lawyer. M. Bar R. 3.4(b)(3)(i) similarly imputes such conflicts of interest.

When a lawyer who is related to another lawyer is representing a client in a matter where the related lawyer is representing another party, there is a conflict-of-interest under M. Bar R. 3.4(f)(3). Comment [11] to Model Rule 1.7 (2002) describes the same situation and identifies it as a conflict. The Task Force thought this type of conflict-of-interest ought to be described in the Rule (rather than merely in a Comment) and thus recommended the addition of Rule 1.8(l).

M. Bar R. 3.4(f)(2)(ii) categorically prohibits a lawyer from purchasing property "at a probate, foreclosure, or judicial sale in an action or proceeding in which the lawyer or any partner or associate appears as attorney for a party or is acting as executor, trustee, administrator, guardian, conservator, or other personal representative." The Model Rules (2002) include no such categorical prohibition and requires such transactions be analyzed under Rule 1.8(a)’s general rubric governing business transactions with clients. (See Comment [1], noting that the Rule "applies to lawyers purchasing property from estates they represent.) The Task Force recommended adopting the Model Rule approach (2002). The protections set forth in Rule 1.8(a) are sufficient to protect the interest of clients; the categorical prohibition appears to be idiosyncratic in Maine and creates a potential trap for the unwary.

1.9 Duties to Former Clients

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person?s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use confidences or secrets of a former client to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal confidences or secrets of a former client except as these Rules would permit or require with respect to a client.

(d) Matters are ?substantially related? for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client?s position in the subsequent matter.

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COMMENT

[1] After termination of a client-lawyer relationship, a lawyer has certain continuing duties with respect to confidentiality and conflicts of interest and thus may not represent another client except in conformity with this Rule. Under this Rule, for example, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction. Nor could a lawyer who has represented multiple clients in a matter represent one of the clients against the others in the same or a substantially related matter after a dispute arose among the clients in that matter, unless all affected clients give informed consent. See Comment [9]. Current and former government lawyers must comply with this Rule to the extent required by Rule 1.11.

[2] The scope of a ?matter? for purposes of this Rule depends on the facts of a particular situation or transaction. The lawyer?s involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions within the same military jurisdictions. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.

[3] In accordance with prior Maine law, matters are ?substantially related? for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client?s position in the subsequent matter. For example, a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person?s spouse in seeking a divorce. Similarly, a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations; however, the lawyer would not be precluded, on the grounds of substantial relationship, from defending a tenant of the completed shopping center in resisting eviction for nonpayment of rent. Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. In the case of an organizational client, general knowledge of the client?s policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation. A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.

Lawyers Moving Between Firms

[4] When lawyers have been associated within a firm but then end their association, the question of whether a lawyer should undertake representation is more complicated. There are several competing considerations. First, the client previously represented by the former firm must be reasonably assured that the principle of loyalty to the client is not compromised. Second, the rule should not be so broadly cast as to preclude other persons from having reasonable choice of legal counsel. Third, the rule should not unreasonably hamper lawyers from forming new associations and taking on new clients after having left a previous association. In this connection, it should be recognized that today many lawyers practice in firms, that many lawyers to some degree limit their practice to one field or another, and that many move from one association to another several times in their careers. If the concept of imputation were applied with unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel.

[5] Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and 1.9(c). Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict. See Rule 1.10(b) for the restrictions on a firm once a lawyer has terminated association with the firm.

[6] Application of paragraph (b) depends on a situation?s particular facts, aided by inferences, deductions or working presumptions that reasonably may be made about the way in which lawyers work together. A lawyer may have general access to files of all clients of a law firm and may regularly participate in discussions of their affairs; it should be inferred that such a lawyer in fact is privy to all information about all the firm?s clients. In contrast, another lawyer may have access to the files of only a limited number of clients and participate in discussions of the affairs of no other clients; in the absence of information to the contrary, it should be inferred that such a lawyer in fact is privy to information about the clients actually served but not those of other clients. In such an inquiry, the burden of proof should rest upon the firm whose disqualification is sought.

[7] Independent of the question of disqualification of a firm, a lawyer changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented. See Rules 1.6 and 1.9(c).

[8] Paragraph (c) provides that information acquired by the lawyer in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.

[9] The provisions of this Rule are for the protection of former clients and can be waived if the client gives informed consent, which consent must be confirmed in writing under paragraphs (a) and (b). See Rule 1.0(e). With regard to the effectiveness of an advance waiver, see Comment [22] to Rule 1.7. With regard to disqualification of a firm with which a lawyer is or was formerly associated, see Rule 1.10.

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REPORTER?S NOTES:

Model Rule 1.9 (2002) addresses the issue of conflicts of interest between current clients and former clients. It corresponds in substance to M. Bar R. 3.4(d) and M. Bar R. 3.4(b)(1). For the reasons set forth below, the Task Force recommended the adoption, with some minor modifications, of the structure and substance of Model Rule 1.9 (2002).

The Maine Bar Rules defining conflicts of interest generally is found in M. Bar R. 3.4(b)(i). This definition applies to conflicts with respect to current clients, former clients, third parties and conflicts between a lawyer?s own interests and those of the client. M. Bar R. 3.4(d) addresses conflicts of interest between the representation of a current client and a former client. The Model Rules (2002) present a different organization for the conflict-of-interest rules, allowing each type of conflict its own rule. The conflict-of-interest rules outlining the rules governing conflicts between current clients and former clients are found in Model Rule 1.9 (2002).

The underlying message of Model Rule 1.9 (2002) is that a lawyer?s duty to preserve a client?s confidences and secrets continues beyond the end of the attorney-client relationship. Thus, as to confidential information about a former client, a lawyer has a duty which continues in perpetuity unless otherwise required by Maine Rule of Professional Conduct 1.6 or 3.3; in subsequent representation of another client, a lawyer cannot use that confidential information to the disadvantage of the former client.

Both Model Rule 1.9 (2002) and the existing Maine Bar Rules preclude representation of a client that is adverse to a former client in the same or substantially related matter, but they approach differently the issue of potential use of confidential information which is not substantially related. M. Bar R. 3.4(d)(1) states that the representation is prohibited if representation adverse to a former client may involve the use of confidential information obtained through such former representation. Model Rule 1.9 Comment [3] (2002) addresses the same point in its definition of when matters are ?substantially related?: ?if they involve the same transaction or legal dispute, or if there is otherwise a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client?s position in the subsequent matter.? This is an objective test. Using information about, for example, a former client?s financial difficulties or a client?s ability to weather the stress of litigation, may very well materially advance the current client?s position in a subsequent adverse matter?even if the matters involve different transactions, facts or legal disputes. Representation without consent is prohibited in both situations. In order to make clear to the reader without the benefit of the Comments that the new Rule 1.9 continues to prohibit representation where there is a substantial risk that confidential factual information could materially advance the new client?s position, the Task Force moved the Comment 3 definition of ?substantially related? to a new subsection (d) in the body of the rule itself.

In addition to prohibiting the use and disclosure of confidences and secrets of former clients, Rule 1.9(c) also embraces the idea that gaining confidential information in the course of representing Client X may trigger a conflict-of-interest in a later representation of Client Y in a matter adverse to former Client X. The presence of a conflict-of-interest in this situation turns on whether the matters are substantially related.

Moreover, Rule 1.9 and the corresponding Comments must be read in light of Rule 1.6 and Rule 1.9(c), prohibiting lawyers from revealing or using client confidences and secrets. As the text of and Comments to Rule 1.9, read together with Rule 1.6, make clear, loyalties to clients may fade as current clients become former clients, but confidences and secrets last forever. Thus, even if a matter that was the subject of a former representation was not substantially related to a subsequent representation, if the lawyer sought to use information about a former client?s reaction to the stress of litigation in the unrelated matter that was adverse to that client, this ?use of information? would violate Rule 1.9(c)(1). Model Rule 1.9 (2002) is in accord with RESTATEMENT § 132.

Model Rule 1.9(b) is substantially equivalent to M. Bar R. 3.4(d)(1)(ii), but there are some distinctions. The Maine Bar Rules makes clear that when Lawyer X moves from Firm A to Firm B, Lawyer X (or any other lawyer in Firm B) may not represent a client of Firm B whose interests are materially adverse to a client of Firm A, if the representation involves ?the subject matter of the former representation on which the lawyer personally worked.? The Maine Bar Rules also includes an independent basis upon which to prohibit representation in such a situation: if the lawyer personally acquired confidential information that is material to the new matter. In contrast, the Model Rule (2002) requires that not only does the representation have to be in connection with the same, or a substantially related matter, the lawyer must also have personally acquired information protected under Rule 1.6 and 1.9(c) (confidences or secrets) that is material to the new matter. In the departing lawyer context, knowledge of confidences and secrets by some members of a firm is not per se imputed to the departing lawyer. This rule reflects the reality, particularly in large law firms, that a lawyer may not be aware that a certain client was represented by his or her former firm, much less gained confidential information about that client, and thus it makes little sense to impute such knowledge to both that lawyer and the lawyer?s new law firm. In smaller firms however, there may be much more firm-wide knowledge of client confidences and secrets. If the departing lawyer does have confidences and secrets of a client, however, as Comments [5], [6] and [7] and Rule 1.9(c) make clear, lawyers have a duty to keep the confidences and secrets of their former clients in perpetuity. This is consistent with the rule imputing conflicts of interest found in Rule 1.10(b).

Rule 1.9 is concerned with principles of loyalty, as well as confidentiality (See Comment [4]). It is also aspires to strike a balance between giving clients freedom to make choices with respect to their counsel, allowing lawyers to have a degree of career mobility, and in protecting the material interests of clients.

The Model Rule (2002) includes the qualification that such representation, to be prohibited, must be done ?knowingly,? defined in Rule 1.0(f), as meaning ?actual knowledge of the facts in question? (although a person?s knowledge may be inferred from circumstances). See Rule 1.0(f). According to Comment [5], a lawyer is disqualified from representation only when he or she has actual knowledge of information protected by Rules 1.9 and 1.9(c). This is not meant to relieve lawyers from the obligation of having rigorous conflict checking procedures in place, and implementing them upon the hiring of lawyers from other law firms.

M. Bar R. 3.4(d)(1)(iii) states the former-client-conflict-of-interest-rule from the perspective of the firm from which a lawyer has departed. It is a conflict-of-interest rule as well as an imputation rule. It makes clear that a law firm may not represent a party adverse to a former client of that a firm (i) in a matter that is substantially related to the subject matter of the former client?s representation or, (ii) if a lawyer remaining with the law firm has confidences or secrets that are material to the new matter, in the absence of informed written consent. This rule is designed to make the point (among others) that notwithstanding the fact that the matter is not formally concluded, the relationship between the client and the law firm is deemed to be formally terminated. Thus, the client is, at that point, a former client of the law firm. This conflict-of-interest rule is addressed in concept in Model Rule 1.9 (2002), and more directly in Rule 1.10. See Reporter?s Note to Maine Rule of Professional Conduct 1.10 for a more complete discussion of this issue.

A conflict-of-interest, as described in Model Rule 1.9(a) and (b) (2002) may be cured by a client?s informed consent. Pursuant to the M. Bar R. 3.4(d)(1)(ii), such consent must be in writing. The informed consent required to cure a Rule 1.9(a) or (b) (2002) conflict does not have to be written or signed by the client; merely confirmed in writing by the lawyer. The Task Force determined that informed consent, confirmed in writing by the lawyer provides clients with sufficient protection of their interests.

The Task Force discussed the distinction between the two primary remedies for a finding of a conflict-of-interest: discipline and disqualification. Finding a violation of Rule 1.9 is a threshold question to a motion to disqualify. Finding a violation of Rule 1.9 is a necessary predicate to a successful motion to disqualify. To disqualify a lawyer based upon a claim of a conflict-of-interest, a court must also decide whether disqualification of a lawyer is a proper sanction to remedy a violation of the Rules of Professional Conduct. Courts must balance the public?s interest in the integrity of the judicial process with a client?s interest in picking his or her own lawyer.

1.10 Imputation of Conflicts-of-Interest: General Rule

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless

(1) the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or

(2) the prohibition is based on Rule 1.9(a) or (b) and arises out the disqualified lawyer?s association with a prior firm, and

(i.) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;

(ii.) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm?s and of the screened lawyer?s compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and

(iii.) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client?s written request and upon termination of the screening procedures.

(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.

(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.

(d) For purposes of Rule 1.10 only, ?firm? does not include government agencies. The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

(e) If a lawyer or law student affiliated both with a law school legal clinic and with one or more lawyers outside the clinic is required to decline representation of any client solely by virtue of this Rule 1.10, this rule imposes no disqualification on any other lawyer or law student who would otherwise be disqualified solely by reason of an affiliation with that individual, provided that the originally disqualified individual is screened from all participation in the matter at and outside the clinic.

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COMMENT

Definition of ?Firm?

[1] For purposes of the Rules of Professional Conduct, the term ?firm? denotes lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. See Rule 1.0(c). Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. See Rule 1.0, Comments [2]-[4]. The term ?firm? as used in Rule 1.10, however, does not include governmental entities.

Principles of Imputed Disqualification

[2] The rule of imputed disqualification stated in paragraph (a) gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated. Paragraph (a) operates only among the lawyers currently associated in a firm. When a lawyer moves from one firm to another, the situation is governed by Rules 1.9(b) and 1.10(b).

[3] The rule in paragraph (a) does not prohibit representation where neither questions of client loyalty nor protection of confidential information are presented. Where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, for example, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm, the firm should not be disqualified. On the other hand, if an opposing party in a case were owned by a lawyer in the law firm, and others in the firm would be materially limited in pursuing the matter because of loyalty to that lawyer, the personal disqualification of the lawyer would be imputed to all others in the firm.

[4] The rule in paragraph (a) also does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does paragraph (a) prohibit representation if the lawyer is prohibited from acting because of events before the person became a lawyer, for example, work that the person did while a law student. Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect. See Rules 1.0(k) and 5.3.

[5] Rule 1.10(b) operates to permit a law firm, under certain circumstances, to represent a person with interests directly adverse to those of a client represented by a lawyer who formerly was associated with the firm. The Rule applies regardless of when the formerly associated lawyer represented the client. However, the law firm may not represent a person with interests adverse to those of a present client of the firm, which would violate Rule 1.7. Moreover, the firm may not represent the person where the matter is the same or substantially related to that in which the formerly associated lawyer represented the client and any other lawyer currently in the firm has material information protected by Rules 1.6 and 1.9(c).

[6] Rule 1.10(c) removes imputation with the informed consent of the affected client or former client under the conditions stated in Rule 1.7. The conditions stated in Rule 1.7 require the lawyer to determine that the representation is not prohibited by Rule 1.7(b) and that each affected client or former client has given informed consent to the representation, confirmed in writing. A client?s consent may be conditional: for example, the client?s consent to waiver of imputation may be conditioned on the law firm screening to assure the affected parties that confidential information known by the personally disqualified lawyer remains protected. See Rule 1.0(k) ?Screened? and Comments 8, 9 and 10. In some cases, the risk may be so severe that the conflict may not be cured by client consent. For a discussion of the effectiveness of client waivers of conflicts that might arise in the future, see Rule 1.7, Comment [22]. For a definition of informed consent, see Rule 1.0(e).

[7] Where a lawyer has joined a private firm after having represented the government, imputation is governed by Rule 1.11(b) and (c), not this Rule. Under Rule 1.11(d), where a lawyer represents the government after having served clients in private practice, nongovernmental employment or in another government agency, former-client conflicts are not imputed to government lawyers associated with the individually disqualified lawyer.

[8] Where a lawyer is prohibited from engaging in certain transactions under Rule 1.8, paragraph (k) of that Rule, and not this Rule, determines whether that prohibition also applies to other lawyers associated in a firm with the personally prohibited lawyer.

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REPORTER?S NOTES:

Model Rule 1.10 (2002) corresponds, and is equivalent to, M. Bar R. 3.4(b)(3)(i) and M. Bar R. 3.15(a). There are however, some distinctions between the 2002 Rule formulation, and the Maine Bar Rules. The Model Rule (2002) is in accord with RESTATEMENT § 123. For the reasons set forth below, the Task Force recommended the adoption of Model Rule 1.10 (2002) as written.

Imputation of conflicts of interest, based upon general principles of agency law, refers to the finding of a conflict-of-interest with respect to an entire firm or group of lawyers when one or more of its members are found to have a conflict-of-interest. This rule is consistent with the idea that a law firm is, in essence, one lawyer for purposes of a lawyer?s duties of loyalty and confidentiality. Moreover, the rule imputing conflicts of interest prohibits a lawyer from circumventing conflict-of-interest rules through his or her partners, associates or lawyer/employees.

Model Rule 1.10?s application is limited to ?lawyers associated in a firm.? However, ?firm? is broadly defined, in both the Comments, as well as in Model Rule 1.0(c) (2002) (the ?Terminology? section). It not only includes lawyers in law partnerships, professional corporations, legal services organizations and legal departments of corporations, but may include lawyers who share the same physical office space, if they hold themselves out to the public in a way that suggests they are operating as a law firm. This is in accord with the M. Bar R. 3.4(b)(3), which, in essence, defines ?firm? to include, partners, associates and affiliated lawyers. For Rule 1.10, however, the term ?firm? does not include governmental entities, which limitation is consistent with M. Bar Rule 3.15(a).

Model Rule 1.10 (2002) sets forth the general rules on the imputation of conflicts of interest. The imputation of conflicts of interest in certain specific contexts is further addressed in other Rules. For example, rules with respect to imputation of conflicts in the context of legal services organizations (including law school clinics) are found in Model Rule 6.5 (2002), rules regarding imputation of conflicts in the context of prior service in the judiciary are found in Model Rule 1.12 (2002), and rules addressing imputation of conflicts with respect to current and former government employees are found in Model Rule 1.11 (2002).

Model Rule 1.10(a) (2002) addresses when conflicts of interest of an individual lawyer are imputed to the other members and associates of the lawyer?s law firm. An analysis under Model Rule 1.10(a) (2002) must begin with finding of a conflict-of-interest under Model Rules 1.7 or 1.9 (2002). Simply stated, except for conflicts based on the personal interest of a lawyer, if one lawyer is found to have a conflict-of-interest with respect to the representation of two or more clients, then the conflict is imputed to all other lawyers in the lawyer?s firm. Because it is understood that conflicts wholly personal to a lawyer are not likely to affect others in the firm, such conflicts of interest generally are not subject to the imputation rule. If, however, a wholly personal conflict presents a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm, then even this type of conflict-of-interests will be imputed to the firm as a whole. Because even a personal conflict would be imputed to other firm members and associates if such a conflict presents a significant risk of materially limiting the representation of the client by the other lawyers in the firm, the Task Force recommended the adoption of Rule 1.10(a).

ABA Model Rule 1.10(b) addresses the extent to which a law firm?s imputed conflict-of-interest should continue after a lawyer terminates an association with the firm. It provides that the law firm is prohibited from representing a person with interests materially adverse to those of a former client represented by the former lawyer if (1) the matter is the same or substantially related to that in which the former lawyer represented the former client, and (2) any lawyer in the firm has information protected by Rule 1.6 and 1.9(c) (i.e., a confidence or secret) that is material to the matter. This Rule is a departure from M. Bar R. 3.4(d)(1)(iii), which provides that a law firm has a conflict-of-interest if (1) the subject matter is substantially related, or (2) any lawyer remaining in the firm has protected information. As noted in the Reporter?s Notes to Rule 1.9, the 2002 formulation reflects the reality, particularly in large law firms, that remaining lawyers may not be aware that a certain client was represented by a lawyer formerly associated with the firm, much less gained confidential information about that client. Thus, in such circumstances, it makes little sense to impute such knowledge to the former law firm. In smaller firms however, there may be much more firm-wide knowledge of client confidences and secrets. If the remaining lawyers do have confidences and secrets of a former client, however, such lawyers have a duty to keep the confidences and secrets in perpetuity. The Task Force observed that Model Rule 1.10(b) (2002) is also concerned with principles of loyalty and aspires to strike a balance between giving clients freedom to make choices with respect to their counsel, allowing lawyers to have a degree of career mobility, and protecting the material interests of clients.

Both Model Rule 1.10(c) (2002) and the Maine Bar Rules (M. Bar R. 3.4(b)(2) concerning waivers of conflicts of interest with respect to two or more current clients, and M. Bar R. 3.4(d)(1) providing for waivers of conflicts between former clients and current clients) allow for waiver of disqualification by the affected client, under the conditions set forth in Rule 1.7 (setting forth the requirements for informed client consent).

For a discussion of disqualification as a remedy for breach of a conflict-of-interest rule, see Reporter?s Notes to Rule 1.9.

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Advisory Note - February 2010

Rule 1.10 generally addresses conflicts of interest. The introductory section of the Rule, 1.10(a) states:

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

This is the general so called "one excluded, all excluded" rule that also prevailed under the former Code of Professional Responsibility, Rule 3 of the Maine Bar Rules. The general rule is, of necessity, subject to a number of exceptions. The new Rule 1.10(e), which was recommended by the Advisory Committee on Professional Responsibility, recognizes an exception to the general rule regarding imputation of conflicts of interest in the case of lawyers or law students affiliated with both a law school legal clinic and with one or more lawyers outside the clinic, such as through an internship or part-time employment. When such a lawyer or law student would be required to decline representation due to a conflict of interest, that conflict is not imputed to any other lawyer or law student affiliated with the disqualified individual, provided that the disqualified individual is screened from all participation in the matter involving a conflict of interest.

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Advisory Note ? April 2018

At the recommendation of the Advisory Committee, Rule 1.10(a) is amended to conform to subsection (a) as currently written in the ABA Model Rules. The purpose of the change is to adopt the screening protocols that apply to potential conflicts within a firm due to a lawyer?s former association with another firm. No other changes were recommended, and the Committee specifically recommended retaining for clarity the sentence currently found in Maine Rule of Professional Conduct 1.10 (d) but not found in subsection (d) of the Model Rules? ?For purposes of Rule 1.10 only, ?firm? does not include government agencies? ?and retaining subsection (e), not currently found in the ABA Model Rules.

Although the Supreme Judicial Court has not generally adopted the Comments to the Model Rules or the proposed Rules of Professional Conduct, guidance on the application of screening provisions under Rule 1.10(a) as proposed:

[7] Rule 1.10(a)(2) ? removes the imputation otherwise required by Rule 1.10(a), but unlike section (c), it does so without requiring that there be informed consent by the former client. Instead, it requires that the procedures laid out in sections (a)(2)(i)-(iii) be followed. A description of effective screening mechanisms appears in Rule 1.10(k). Lawyers should be aware, however, that, even where screening mechanisms have been adopted, tribunals may consider additional factors in ruling upon motions to disqualify a lawyer from pending litigation.

[8] Paragraph (a)(2)(i) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.

[9] The notice required by paragraph (a)(2)(ii) generally should include a description of the screened lawyer?s prior representation and be given as soon as practicable after the need for screening becomes apparent. It also should include a statement by the screened lawyer and the firm that the client?s material confidential information has not been disclosed or used in violation of the Rules. The notice is intended to enable the former client to evaluate and comment upon the effectiveness of the screening procedures.

[10] The certifications required by paragraph (a)(2)(iii) give the former client assurance that the client?s material confidential information has not been disclosed or used inappropriately, either prior to timely implementation of a screen or thereafter. If compliance cannot be certified, the certificate must describe the failure to comply.

1.11 Special Conflicts-of-Interest of Former and Current Government Officers and Employees

(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:

(1) is subject to Rule 1.9(c); and

(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate governmental officer or agency gives its informed consent, confirmed in writing, to the representation.

(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) the appropriate governmental officer or agency gives its informed consent, confirmed in writing, to the representation.

(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term?confidential government information? means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:

(1) is subject to Rules 1.7 and 1.9; and

(2) shall not:

(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless:

(A) the appropriate governmental officer or agency gives its informed consent, confirmed in writing, to the representation; or

(B) under applicable law, no one is or by lawful delegation may be authorized to act in the lawyer?s stead in the matter.

(ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).

(e) As used in this Rule, the term ?matter? includes:

(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and

(2) any other matter covered by the conflict-of-interest rules of the appropriate government agency.

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COMMENT

[1] A lawyer who has served or is currently serving as a public officer or employee is personally subject to the Rules of Professional Conduct, including the prohibition against concurrent conflicts of interest stated in Rule 1.7. In addition, such a lawyer may be subject to statutes and government regulations regarding conflict-of-interest, including but not limited to 5 M.R.S. § 18. Such statutes and regulations may circumscribe the extent to which the government agency may give consent under this Rule. See Rule 1.0(e) for the definition of informed consent.

[2] Paragraphs (a)(1), (a)(2) and (d)(1) restate the obligations of an individual lawyer who has served or is currently serving as an officer or employee of the government toward a former government or private client. Rule 1.10 is not applicable to the conflicts of interest addressed by this Rule. Rather, paragraph (b) sets forth a special imputation rule for former government lawyers that provides for screening and requires informed consent. Because of the special problems raised by imputation within a government agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.

[3] Paragraphs (a)(2) and (d)(2) apply regardless of whether a lawyer is adverse to a former client and are thus designed not only to protect the former client, but also to prevent a lawyer from exploiting public office for the advantage of another client. For example, a lawyer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the lawyer has left government service, except when authorized to do so by the government agency under paragraph (a). Similarly, a lawyer who has pursued a claim on behalf of a private client may not pursue the claim on behalf of the government, except when authorized to do so by paragraph (d). As with paragraphs (a)(1) and (d)(1), Rule 1.10 is not applicable to the conflicts of interest addressed by these paragraphs.

[4] This Rule represents a balancing of interests. On the one hand, where the successive clients are a government agency and another client, public or private, the risk exists that power or discretion vested in that agency might be used for the special benefit of the other client. A lawyer should not be in a position where benefit to the other client might affect performance of the lawyer?s professional functions on behalf of the government. Also, unfair advantage could accrue to the other client by reason of access to confidential government information about the client?s adversary obtainable only through the lawyer?s government service. On the other hand, the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. Thus a former government lawyer is disqualified only from particular matters in which the lawyer participated personally and substantially. The limitation of disqualification in paragraphs (a)(2) and (d)(2) to matters involving a specific party or parties, rather than extending disqualification to all substantive issues on which the lawyer worked, serves a similar function.

[5] When a lawyer has been employed by one government agency and then moves to a second government agency, it may be appropriate to treat that second agency as another client for purposes of this Rule, as when a lawyer is employed by a city and subsequently is employed by a federal agency. However, because the conflict-of-interest is governed by paragraph (d), the latter agency is not required to screen the lawyer as paragraph (b) requires a law firm to do. The question of whether two government agencies should be regarded as the same or different clients for conflict-of-interest purposes is beyond the scope of these Rules. See Rule 1.13 Comment [9].

[6] Paragraphs (b) and (c) contemplate a screening arrangement. See Rule 1.0(k) (requirements for screening procedures). These paragraphs do not prohibit a lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly relating the lawyer?s compensation to the fee in the matter in which the lawyer is disqualified.

[7] Informed consent, confirmed in writing, which writing should include a description of the screened lawyer?s prior representation and of the screening procedures employed, generally should be requested as soon as practicable after the need for screening becomes apparent.

[8] Paragraph (c) operates only when the lawyer in question has knowledge of the information, which means actual knowledge; it does not operate with respect to information that merely could be imputed to the lawyer.

[9] Paragraphs (a) and (d) do not prohibit a lawyer from jointly representing a private party and a government agency when doing so is permitted by Rule 1.7 and is not otherwise prohibited by law.

[10] For purposes of paragraph (e) of this Rule, a ?matter? may continue in another form. In determining whether two particular matters are the same, the lawyer should consider the extent to which the matters involve the same basic facts, the same or related parties, and the time elapsed.

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REPORTER?S NOTES:

Model Rule 1.11 (2002) corresponds to M. Bar R. 3.4(d)(2)(i)-(iv) and addresses conflicts of interest and imputed disqualification with respect to lawyers who have served or are currently serving as lawyers for a governmental agency or entity. Model Rule 1.11 (2002) and the Maine Bar Rules differ substantially in their organization. The Model Rule, however, does not represent a significant substantive departure from the Maine Bar Rules. Because of this, and because Model Rule 1.11 (2002) builds upon the general conflict-of-interest rules found in Rules 1.7 and 1.9(c), the Task Force recommended the adoption of the structure of Model Rule 1.11 (2002), with some substantive modifications to reflect best practices in Maine.

Model Rule 1.11 (a), (b) and (c) (2002) correspond to M. Bar R. 3.4(d)(2)(i) and (iii), and address the issue of conflicts of interest when a former government lawyer enters the private practice of law. Model Rule 1.11(d) (2002), corresponding to M. Bar R. 3.4(d)(2)(ii) and (iv), addresses the issue of conflicts of interest when a former private practice lawyer begins to serve as a public officer or employee. Lawyers working for Maine State government, whether serving as Assistant Attorneys General or as state officials, are also governed by statutory conflict-of-interest provisions, in addition to the Maine Rules of Professional Conduct. See 5 M.R.S. § 18 et. seq. Although the language of 5 M.R.S. § 18 varies somewhat from the conflict-of-interest provisions found in the Maine Rules of Professional Conduct, it is intended to address substantially the same concerns.

Model Rule 1.11(a) (2002) specifically states that lawyers who have formerly served as a public officer or employee of the government are subject to Rule 1.9(c). Rule 1.9(c) is the rule governing duties to former clients that generally prohibits the use by a lawyer, or the lawyer?s current or former firm, of confidences and secrets of a former client to the former client?s disadvantage. Rule 1.9(c) also precludes a lawyer from revealing a client?s confidences and secrets. In contrast, M. Bar R. 3.4(d) prohibits the use of confidential information by a former government lawyer. The Task Force recommended adoption of the Model Rule (2002) expanded prohibition against both the use and disclosure of confidences and secrets.

Model Rule 1.11(a) (2002) further provides that a lawyer shall not represent a client in connection with a matter in which the lawyer participated, personally and substantially as a public officer or employee. Whereas under M. Bar R. 3.4(d)(2)(i), such representation is absolutely prohibited (and is not limited only to matters in which a lawyer personally and substantially participated), Rule 1.11(a) allows the governmental office or agency to waive the conflict-of-interest (with such waiver confirmed in writing). The Task Force recognized that, as a practical matter, the government is not likely to consent to such types of conflicts of interest, due to the importance of public trust in the decisions of the government. Furthermore, Section 18 sets forth a time-barred conflict-of-interest rule for former Maine state government employees (barring representation involving matters the former government employee worked on prior to his or her last year of government employment for one year after leaving employment, whereas the employee is permanently barred from representation involving matters worked on during that final year of employment). Inclusion of the Rule 1.11(a) provision for informed consent provides the government with a vehicle to approve conflicts that are within the scope of these rules and not barred by § 18, when circumstances are otherwise appropriate for such consent. For these reasons, the Task Force recommended adoption of Model Rule 1.11(a) (2002).

Model Rule 1.11(b) (2002) is the rule governing imputation of conflicts of interest when a lawyer leaves employment as a public officer or employee of the government. The Task Force recognized three possible formulations of the imputation rule in the government lawyer context: The rule set forth in M. Bar R. 3.4(d)(2)(iii), which conditions the government?s waiver of a conflict-of-interest upon the effective screening (as such term is defined in Model Rule 1.0(k) (2002)) of the conflicted former government lawyer; a rule consistent with Model Rule 1.10 (2002), which also allows the client (in this context, the governmental officer or agency) to waive an imputed conflict-of-interest, and implicitly allows the waiver to be conditioned upon the screening of the conflicted lawyer; and the rule set forth in Model Rule 1.11 (2002), requiring screening of a conflicted former government lawyer, but only notice to (not consent of) the governmental officer or agency.

After discussion (and some dissent) the majority of the Task Force recommended retention of the substance of M. Bar R. 3.4(d)(2)(iii), which states that the firm in which a disqualified former government lawyer works may represent a client in connection with a matter in which the conflicted former government lawyer participated personally and substantially as a public officer or employee, only if the former government lawyer is properly ?screened? (See Rule 1.0(k)) and the governmental officer or agency gives its informed consent, confirmed in writing. This rule is consistent with the objective of protecting the public trust in government. It also has been the operative rule in Maine, and has presented no substantial barriers to lawyers? serving the public interest as governmental officers and employees, nor adversely impacting former government lawyers? transition into the private sector.

Model Rule 1.11(c) (2002) creates a special category of ?confidential government information? in order to prohibit a former government lawyer form representing a private client whose interests are adverse to a person about whom the lawyer has such information and could use it to the disadvantage of that person; the lawyer need not have represented the government agency or acted as a public official with respect to a particular matter for this prohibition to apply. While this provision is comparable to the M. Bar R. 3.4(d)(2)(i) prohibition on use of confidential information obtained through government employment, the more specific language of Rule 1.11(c) more clearly puts the former government lawyer on notice that the lawyer may not use confidential information that the lawyer became privy to merely as a result of employment without having acted as a representative of an agency or taken action on a particular matter.

Model Rule 1.11(d) (2002), read together with Rule 1.9, addresses the issue of conflicts of interest involving the current government lawyer who formerly represented clients as a private sector lawyer. With respect to personal disqualification of the former private sector lawyer, Rule 1.9 and M. Bar R. 3.4(d)(ii) both allow representation of the government client that is adverse to a former private client, with the informed consent of the private client. Model Rule 1.11(d)(2)(i) (2002), however, requires the informed written consent of the relevant governmental officer or agency, in addition to the consent of the private client. The Task Force recommended the addition into 1.11(d)(2)(i) of the provision found in M. Bar R. 3.4(d)(2)(ii)(A), allowing a government lawyer/official to act without the informed consent of a former client in a matter in which the lawyer participated personally and substantially on behalf of that client if no one else has or can be delegated authority to act in the lawyer?s stead.

There is no provision in the Maine Bar Rules that is comparable to Model Rule 1.11(d)(2)(ii) (2002), prohibiting a government lawyer from negotiating for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the government lawyer is participating personally and substantially. This situation is addressed in 5 M.R.S. § 18(2)(C), but is limited to situations in which the interests of the person or organization with whom the lawyer is negotiating possible employment is ?direct and substantial.? The Task Force recommended the adoption of the clearer and more broadly applicable provision found in Rule 1.11(d)(2)(ii).

While ?matter? is not defined in the Maine Bar Rules, the definition set forth in Model Rule 1.11(e) (2002) is consistent with the definition of ?proceeding? in 5 M.R.S. § 18, except for the inclusion of matters covered by the government agency?s conflict-of-interest rules. Because of the sometimes complex responsibilities of government agencies and the need for clear prohibitions in the event of lawyer disciplinary action, the Task Force recommended the inclusion of this descriptive definition.

1.12 Former Judge, Arbitrator, Mediator or Other Third-Party Neutral

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator, or other third-party neutral.

(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator, or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer.

(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the parties and any appropriate tribunal to enable them to confirm compliance with the provisions of this Rule.

(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.

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COMMENT

[1] This Rule generally parallels Rule 1.11. The term ?personally and substantially? signifies that a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate. So also the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. Compare the Comment to Rule 1.11. The term ?adjudicative officer? includes such officials as judges protempore, referees, special masters, hearing officers and other parajudicial officers, and also lawyers who serve as part-time judges. Part I, Section 1 of the Maine Code of Judicial Conduct provides that a justice, judge, active retired justice and active retired judge may not ?act as a lawyer in any proceeding in which he served as a judge or in any other proceeding related thereto.? Although phrased differently from this Rule, those Rules correspond in meaning.

[2] Like former judges, lawyers who have served as arbitrators, mediators or other third-party neutrals may be asked to represent a client in a matter in which the lawyer participated personally and substantially. This Rule forbids such representation. Other law or codes of ethics governing third-party neutrals may also impose standards of personal or imputed disqualification. See Rule 2.4.

[3] Although lawyers who serve as third-party neutrals do not have information concerning the parties that is protected under Rule 1.6, they typically owe the parties an obligation of confidentiality under law or codes of ethics governing third-party neutrals. Thus, paragraph (c) provides that conflicts of the personally disqualified lawyer will be imputed to other lawyers in a law firm unless the conditions of this paragraph are met.

[4] Requirements for screening procedures are stated in Rule 1.0(k). Paragraph (c)(1) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.

[5] Notice, including a description of the screened lawyer?s prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

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Advisory Note - October 2014

The Task Force recommendation for subsection (c)(2) varied from the Model Rule, requiring informed consent for the screening of a former judge, arbitrator, mediator or other third-party neutral. The recommendation was adopted by the Supreme Judicial Court. The requirement of informed consent, confirmed in writing, created an unintended consequence: By withholding consent-even without any grounds for challenging the screening procedures adopted-an opposing party could exercise an absolute veto to a firm representing a client in a matter in which a lawyer in that firm previously participated personally as a judge, law clerk, arbitrator or other adjudicative officer. The present amendment is not meant to diminish a consumer protective approach. But it is meant to clarify that opposing parties have a right to address perceived shortcomings in screening procedures only, not an absolute right to withhold consent to an opponent's choice of counsel. Notice to opposing parties and the tribunal should include a description of the implemented screening, giving opposing parties and the tribunal the opportunity to confirm compliance with the Rule. Disagreements between parties as to the adequacy of screening should be addressed to the appropriate tribunal, which could be the tribunal adjudicating the matter that is the subject of the representation, the tribunal that formerly employed the judicial officer or law clerk subject to this Rule, or judicial or bar regulatory bodies.

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REPORTER?S NOTES:

Model Rule 1.12 (2002), addressing conflicts of interest of former judges, arbitrators, mediators, referees and other third party neutrals, corresponds in substance to M. Bar R. 3.4(g)(2). The Task Force recommended the adoption of the structure of Model Rule 1.12 (2002), with some modification to reflect best Maine practices.

Model Rule 1.12 sets forth one conflict-of-interest rule for former judges, arbitrators, mediators and other third party neutrals. In contrast, M. Bar R. 3.4(g)(2)(i) dictates one conflicts rule for former judges and law clerks, another for non-judicial adjudicative officers, and yet another for mediators (see M. Bar R. 3.4(h)). Under the Maine Bar Rules, a lawyer is prohibited from commencing representation in a matter in which the lawyer participated personally and substantially as a judge or judicial law clerk, and such prohibition may not be waived. In contrast, conflicts of interest involving non-judicial adjudicative officers may be waived, upon the informed consent of all parties to the proceeding at issue. Additionally, M. Bar R. 3.4(h)(3) and (5), setting forth rules applicable to mediators, prohibit a lawyer, while acting as a mediator, from representing any of the parties in court or in the matter under mediation or any related matter. The Task Force discussed the structure and substance of both the Maine Bar Rules and Model Rule 1.12, and recommended the blanket prohibition of waiver of all conflicts of interest involving all third party neutrals.

There is no provision in the Maine Bar Rules comparable to Model Rule 1.12(b) (2002) (addressing post-judicial employment or third-party neutral employment negotiation). The Task Force thought this was a positive addition and recommended its adoption.

Model Rule 1.12(c) (2002) addresses the issue of imputed disqualification of other lawyers in the same firm of a disqualified former third party neutral. Model Rule (2002) imputes a conflict to lawyers with whom a former third party neutral is associated, but such a conflict with respect to the non-conflicted former third-party neutral may be waived, subject to two conditions: (i) the conflicted former third party neutral must be properly screened (See Rule 1.0(k) defining what constitutes proper screening), and (ii) the parties and the appropriate tribunal must be given written notice. Maine Bar Rules 3.4(g)(2)(ii) (addressing imputation and former third party neutrals) and 3.4(h)(7) (addressing imputation and former mediators) imputes the conflicts of interest of a former third-party neutral or mediator, unless the conflicted lawyer is properly screened, fees are not shared, and disclosure of the circumstances and the measures taken to screen the conflicted lawyer is given to all affected parties. The Task Force considered both Model Rule 1.12(c) (2002) as well as the Maine Bar Rules addressing imputation, and recommended that a more client-protective rule would better serve the citizens of Maine. Thus, the Task Force recommended that the affected parties, and any appropriate tribunal be required to give its informed consent of the waiver of the imputed conflict, to be confirmed in writing. This writing must fully describe the screening procedure that requires the client?s consent.

1.13 Organization as Client

(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer?s representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing confidences and secrets to persons outside the organization. Such measures may include among others:

(1) asking reconsideration of the matter;

(2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and

(3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law.

(c) Except as provided in paragraph (d), if

(1) despite the lawyer?s efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law, and

(2) likely to result in substantial injury to the organization, the lawyer may resign in accordance with Rule 1.16 and make such disclosures as are consistent with Rule 1.6, Rule 3.3, Rule 4.1 and Rule 8.3, but only to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.

(d) Paragraph (c) shall not apply with respect to information relating to a lawyer?s representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.

(e) In dealing with an organization?s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client as the organization when the lawyer knows or reasonably should know that the organization?s interests may be adverse to those of the constituents with whom the lawyer is dealing.

(f) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization?s consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

(g) A lawyer who acts contrary to this Rule but in conformity with promulgated federal law shall not be subject to discipline under this Rule, regardless whether such federal law is validly promulgated.

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COMMENT

The Entity as the Client

[1] An organizational client is a legal entity, but it cannot act except through its officers, directors, employees, shareholders and other constituents. Officers, directors, employees and shareholders are the constituents of the corporate organizational client. The duties defined in this Comment apply equally to unincorporated associations. ?Other constituents? as used in this Comment means the positions equivalent to officers, directors, employees and shareholders held by persons acting for organizational clients that are not corporations.

[2] When one of the constituents of an organizational client communicates with the organization?s lawyer in that person?s organizational capacity, the communication is protected by Rule 1.6. Thus, by way of example, if an organizational client requests its lawyer to investigate allegations of wrongdoing, interviews made in the course of that investigation between the lawyer and the client?s employees or other constituents are covered by Rule 1.6. This does not mean, however, that constituents of an organizational client are the clients of the lawyer. The lawyer may not disclose to such constituents information relating to the representation except for disclosures explicitly or impliedly authorized by the organizational client in order to carry out the representation or as otherwise permitted by Rule 1.6.

[3] When constituents of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful. Decisions concerning policy and operations, including ones entailing serious risk, are not as such in the lawyer?s province. Paragraph (b) makes clear, however, that when the lawyer knows that the organization is likely to be substantially injured by action of an officer or other constituent that violates a legal obligation to the organization or is in violation of law that might be imputed to the organization, the lawyer must proceed as is reasonably necessary in the best interest of the organization. As defined in Rule 1.0(f), knowledge can be inferred from circumstances, and a lawyer cannot ignore the obvious.

[4] In determining how to proceed under paragraph (b), the lawyer should give due consideration to the seriousness of the violation and its consequences, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations. Ordinarily, referral to a higher authority would be necessary. In some circumstances, however, it may be appropriate for the lawyer to ask the constituent to reconsider the matter; for example, if the circumstances involve a constituent?s innocent misunderstanding of law and subsequent acceptance of the lawyer?s advice, the lawyer may reasonably conclude that the best interest of the organization does not require that the matter be referred to higher authority. If a constituent persists in conduct contrary to the lawyer?s advice, it will be necessary for the lawyer to take steps to have the matter reviewed by a higher authority in the organization. If the matter is of sufficient seriousness and importance or urgency to the organization, referral to higher authority in the organization may be necessary even if the lawyer has not communicated with the constituent. Any measures taken should, to the extent practicable, minimize the risk of revealing information relating to the representation to persons outside the organization. Even in circumstances where a lawyer is not obligated by Rule 1.13 to proceed, a lawyer may bring to the attention of an organizational client, including its highest authority, matters that the lawyer reasonably believes to be of sufficient importance to warrant doing so in the best interest of the organization.

[5] Paragraph (b) also makes clear that when it is reasonably necessary to enable the organization to address the matter in a timely and appropriate manner, the lawyer must refer the matter to higher authority, including, if warranted by the circumstances, the highest authority that can act on behalf of the organization under applicable law. The organization?s highest authority to whom a matter may be referred ordinarily will be the board of directors or similar governing body. However, applicable law may prescribe that under certain conditions the highest authority reposes elsewhere, for example, in the independent directors of a corporation.

Relation to Other Rules

[6] The authority and responsibility provided in this Rule are concurrent with the authority and responsibility provided in other Rules. In particular, this Rule does not limit or expand the lawyer?s responsibility under Rules 1.6, 1.8, 1.16, 3.3 or 4.1. Paragraph (c) of this Rule does not modify, restrict, or limit the provisions of Rule 1.6(b)(1) - (6). If the lawyer?s services are being used by an organization to further a crime or fraud by the organization, Rules 1.6(b)(2) and 1.6(b)(3) may permit the lawyer to disclose confidential information. In such circumstances Rule 1.2(d) may also be applicable, in which event, withdrawal from the representation under Rule 1.16(a)(1) may be required.

[7] Paragraph (d) makes clear that the authority of a lawyer to disclose information relating to a representation in circumstances described in paragraph (c) does not apply with respect to information relating to a lawyer?s engagement by an organization to investigate an alleged violation of law or to defend the organization or an officer, employee or other person associated with the organization against a claim arising out of an alleged violation of law. This is necessary in order to enable organizational clients to enjoy the full benefits of legal counsel in conducting an investigation or defending against a claim.

[8] [Reserved]

Government Agency

[9] The duty defined in this Rule applies to governmental organizations. Defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context and is a matter beyond the scope of these Rules. See Scope [18]. Although in some circumstances the client may be a specific agency, it may also be a branch of government, such as the executive branch, or the government as a whole. For example, if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the relevant branch of government may be the client for purposes of this Rule. Moreover, in a matter involving the conduct of government officials, a government lawyer may have authority under applicable law to question such conduct more extensively than that of a lawyer for a private organization in similar circumstances. Thus, when the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful act is prevented or rectified, for public business is involved. In addition, duties of lawyers employed by the government or lawyers in military service may be defined by statutes and regulation. This Rule does not limit that authority. See Scope.

Clarifying the Lawyer?s Role

[10] There are times when the organization?s interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyer should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict-of-interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged.

[11] Whether such a warning should be given by the lawyer for the organization to any constituent individual may turn on the facts of each case.

Dual Representation

[12] Paragraph (f) recognizes that a lawyer for an organization may also represent a principal officer or major shareholder.

Derivative Actions

[13] Under generally prevailing law, the shareholders or members of a corporation may bring suit to compel the directors to perform their legal obligations in the supervision of the organization. Members of unincorporated associations have essentially the same right. Such an action may be brought nominally by the organization, but usually is, in fact, a legal controversy over management of the organization.

[14] The question can arise whether counsel for the organization may defend such an action. The proposition that the organization is the lawyer?s client does not alone resolve the issue. Most derivative actions are a normal incident of an organization?s affairs, to be defended by the organization?s lawyer like any other suit. However, if the claim involves serious charges of wrongdoing by those in control of the organization, a conflict may arise between the lawyer?s duty to the organization and the lawyer?s relationship with the board. In those circumstances, Rule 1.7 governs who should represent the directors and the organization.

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REPORTER?S NOTES:

Model Rule 1.13 (2002) addresses issues that arise when the client is an organization. There is no corresponding provision under the Maine Bar Rules.

When the client is an organization, the interests at stake do not reside in a single person; accordingly, the lawyer for the organization owes his or her professional duties to the organization, not the organization?s constituents. Because, however, a lawyer who represents an organization necessarily interacts with individuals?officers, directors, board of directors and employees?there is the risk that a lawyer will view them as the ?client.? This has often been referred to as the ?client-identity paradox.? Lawyers who represent organizations must be mindful that their duties as lawyers are owed to the organization itself, notwithstanding the lawyer?s interactions with the client through its individual agents. Model Rule 1.13 (a) and (f) (2002) make explicit a lawyer?s duty to be both forthright about whom the lawyer represents, and be diligent in his or her analysis of any existing or potential conflicts of interest. RESTATEMENT § 96 is in accord with Model Rule 1.13 (2002) (lawyers represent an organization?s interests ?as defined by its responsible agents acting pursuant to the organization?s decision-making procedures). The client-identity paradox becomes especially problematic when an agent of the client is engaged in, or plans to engage in, activities that violate the law and cause substantial injury to the organization.

Rule 1.13 has been very controversial with respect to what steps a lawyer should take when the lawyer discovers that an agent of the client is engaged in, or plans to engage in, activities that violate the law and cause substantial injury to the organization. See subsections 1.13 (b), (c) and (d). States have articulated a variety of standards regarding when the lawyer is required to act, and, most contentiously, when the attorney is permitted to breach the confidentiality mandates of Rule 1.6 in order to protect the corporation?s interests. In 2003 the ABA Task Force on Corporate Responsibility revised Model Rule 1.13 to expand the lawyer?s responsibilities and to provide for permissive disclosure of a corporate client?s confidences. While some states have incorporated those 2003 changes, many states have declined to permit the lawyer to disclose any client confidences that are otherwise protected by Rule 1.6, including Massachusetts, New York, Delaware and California. The difficult issue is which version of Rule 1.13 would best suit Maine practice. The Task Force decided against recommending the permissive disclosure provisions proposed by the ABA Task Force on Corporate Responsibility and decided to follow more closely the standards set forth in the original Rule 1.6 as well as a comparable rule adopted in Massachusetts.

When a lawyer is deemed to have ?knowledge? of the wrongdoing, is a question fundamental to the analysis under this rule. ?Knows? and ?Known? are defined in Rule 1.0(f) as ?actual knowledge of the fact in question. A person?s knowledge can be inferred from circumstances.? It is not always easy, however, to determine when a hunch about a transgression ripens into actual knowledge. Moreover, in a large organization, it may not always be clear how to confirm when and whether the suspected misconduct has actually occurred. Nonetheless, a lawyer may not stay willfully uninformed. Lawyers have a duty to investigate potential wrongdoing, if they have the concern that such wrongdoing may harm the client.

Legal ethics professor Geoffrey Hazard has identified the danger of a lawyer receiving what he calls ?water-cooler information?: Information that may be casually or inadvertently communicated to a lawyer. This may more often be the case when lawyers work as in-house business counsel. See also RESTATEMENT § 96 comment b (noting that in-house lawyers may have greater access to corporate information than outside counsel and therefore gain more knowledge about constituents). When a lawyer is working in-house in an organizational legal department, he or she should inform the general counsel about the suspected wrongdoing. If the general counsel?s actions qualify as ?a reasonable resolution of an arguable question of professional duty,? Rule 5.2(b) provides the lawyer a safe harbor from discipline for failing to act in the organizational client?s best interests under Rule 1.13(b).

Rule 1.13 recognizes that it is not a lawyer?s function to second-guess the business judgments or manager or corporate employees. Comment [3] to Rule 1.13 states, ?when constituents of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful. Decisions concerning policy and operations, including ones entailing serious risk, are not as such in the lawyer?s province.? A lawyer?s duty to take action to protect the interest of his or her organizational client is triggered in two separate instances under Rule 1.13. The first instance is when there is an act or omission that breaches the organizational agent?s duty to the organization, resulting in harm. A flagrant example of such an act is embezzlement. The second instance is an act or omission that creates vicarious civil or criminal liability for the organization. The act or omission must be that of ?an officer, employee, or other person associated with the organization.? The phrase, ?violation of law? in Rule 1.13(b) appears to include the contravention of any source of law (e.g., statutes, regulations and municipal codes).

If the lawyer concludes that a manager or employee?s misconduct threatens substantial injury to the organization, the lawyer must then determine how to proceed. As recommended by the Maine Task Force, Rule 1.13(b) includes three non-exclusive, non-exhaustive actions available to lawyers in these circumstances. After much discussion, the Maine Task Force decided not to follow the 2003 version of Model Rule 1.13(b), which articulates only the general principle that the lawyer must proceed ?as is reasonably necessary in the best interests of the organization? and intentionally omits any specific guidance. The Task Force reached the conclusion that some specific guidance on this thorny problem was useful and thus recommended their inclusion in the text of the Rule. In essence, the lawyer is required to ?refer the matter to higher authority in the organization . . . .? This is known as taking the issue ?up the ladder.? In some cases this may mean the highest authority, which in many instances is the board of directors.

As noted above, the most controversial issue with respect to Rule 1.13 has involved the question of whether the Rule should include a provision allowing a lawyer, in certain narrowly prescribed circumstances, to reveal the confidences and secrets of a client that would otherwise be protected under Rule 1.6. The pre-2003 version of Model Rule 1.13 limited the attorney?s discretion to reveal confidences to the general rules of Rule 1.6, which are applicable to all clients. However, in 2003, the ABA House of Delegates voted to amend paragraphs (b) and (c) of Rule 1.13 to allow attorneys to operate outside the bounds of Rule 1.6 in the corporate context, by permitting the attorney the discretion to disclose corporate confidences and secrets ?to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.? The language proposed by the ABA Task Force, and adopted by the ABA House of Delegates in 2003 is as follows:

(c) Except as provided in paragraph (d), if

(1) despite the lawyer?s efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and

(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.^[1]

The ABA Task Force on Corporate Responsibility described the reasons for recommending the ?reporting out? rule as follows:

The [ABA] Task Force agrees with the Reporter to the ALI RESTATEMENT that Model Rule 1.6 ?. . . should not be understood to preclude controlled disclosure beyond the organization in the limited circumstances where the wrongdoing is clear, the injury to the client organization is substantial, and disclosure would clearly be in the best interest of the entity client.? The Task Force considers this especially important in the circumstance in which the board of directors or other highest authority of the organizational client is disabled from acting in the best interest of the organization, e.g., because of self-interest or personal involvement in the violation.

Because such disclosure may reveal client information otherwise protected under Rule 1.6(a), the proposed addition to Rule 1.13 contains strict conditions that must exist before any ?reporting out? is allowed. The lawyer must have a heightened level of certainty as to the violation of law, and the actual or threatened violation must be ?clear.? Moreover, there is no permission to ?report out? when the organizational governance failure involves a violation of legal duty to the organization but is not otherwise a violation of law. As under Rule 1.6, communication of client information outside the organization must be limited to information reasonably believed to be necessary to prevent substantial injury to the organization that is reasonably certain to occur. In most circumstances, this limitation would permit communication only with persons outside the organization who have authority and responsibility to take appropriate preventive action.

The Maine Task Force reviewed the language of the original Model Rule 1.13(b) and (c) and the versions adopted in other states, and engaged in a detailed discussion of the arguments put forth by the ABA Task Force on Corporate Responsibility. Members of the Maine Task Force expressed concern about several consequences of adopting the 2003 version of 1.13 (c).

First, any further erosion of the protection of confidences and secrets was particularly troublesome because the version of Rule 1.6 proposed by the Maine Task Force already significantly expands the circumstances in which a lawyer is permitted to disclose ?confidences? and ?secrets.? Because Rule 1.6 already represents a significant substantive departure from the prior limited exceptions, the Task Force was unwilling to recommend yet another exception in the protection of client confidences.

Second, concern was expressed that under Model Rule 1.13(b) and (c), a lawyer is allowed to disclose confidences and secrets when the client is an organization in more circumstances than when the client is an individual. Thus, it was articulated, if the 2003 version of Model Rule 1.13(b) and (c) were adopted, organizational clients would be afforded less protection against disclosure than are individual clients, a result the Task Force could not recommend.

Third, concern was expressed about whether the lawyer?s failure to take steps outside the organizational client in order to protect the organization from the bad acts of its agents was more appropriately determined between lawyer and the client (e.g. the lawyer?s civil liability to the organization for malpractice) rather than in the context of professional discipline. The counterargument is that the scope of information that the 2003 version of Rule 1.3(b) and (c) allows to be?reported out? is in actuality a very narrow: information about a harm that could befall the organization (knowledge that a ?violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization?? and then only when the lawyer has referred the matter to the highest authority in the organization). However, there is no such disclosure permitted if the lawyer is acting for the benefit of an individual or individuals as opposed to the benefit of the organizational client.

The Maine Task Force recommended adoption of the language of the original Model Rule 1.13 rather than the new language recommended by the ABA Task Force on Corporate Responsibility. The Maine Task Force recommended that, lawyers, in their representation of organizations, not be permitted to ?report out? confidences and secrets, beyond the disclosures already allowed, for all clients, under Rule 1.6.

Rule 1.13(b) and (c) must be read in light of Rule 1.16, which requires lawyers to withdraw ?if further representation will result in the lawyer?s violation of the law or rules of ethics? (meaning if the client is using the lawyer?s services for criminal or fraudulent purposes). See also Comment [7], Rule 1.6 (duty of confidentiality does not prevent lawyer from giving to interested persons notice of fact of withdrawal, and disaffirming any opinion or document that lawyer previously rendered). In addition, ABA Formal Ethics Opinion 92-366 (1992) permits a client to make a ?noisy withdrawal? if the lawyer?s work product is being used in the commission of an ongoing crime or fraud.

The Maine Task Force recommended that Model Rule 1.13(e) not be adopted as part of the Maine Rules of Professional Conduct. It was thought that this subparagraph requiring the discharged attorney to ?report out? his discharge opens a Pandora?s box: lawyers would be placed in the uncomfortable position of publicly justifying their conduct.

Withdrawal may not be a lawyer?s final obligation; other ethics rules (e.g., securities laws, including the Sarbanes-Oxley Act and banking laws) may allow?and in some situations require, that a lawyer to reveal the organization?s ongoing or future criminal or fraudulent activity. The Maine Task Force recommended inclusion of subparagraph (g), to make clear that a lawyer who is required to?report out? pursuant to other law should not deemed to be in violation of the Maine Rules of Professional Conduct.

Finally, the Task Force discussed one of the more vexing issues that has arisen in the context of organizational representation: the identification of the client when a lawyer is organizing the entity. While this is not directly addressed in Model Rule 1.13 (2002), the Rule does emphasize the importance of clarity in the lawyer?s own mind about who the client is, and communication of this clarity with the organizer, in order to avoid misunderstandings. A lawyer should reach an express understanding with the organizer of the entity at the outset of his or her involvement, and document that understanding in a formal engagement letter. RESTATEMENT § 14 addressing the ?Formation of a Client-Lawyer Relationship? makes clear in Comment f., that ?[w]hen the client is a corporation or other organization, the organization?s structure and organic law determine whether a particular agent has authority to retain and direct the lawyer. Whether the lawyer is to represent the organization, a person or entity associated with it, or more than one such persons and entities is a question of fact to be determined based on reasonably expectations in the circumstances.?

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FOOTNOTE

^[1] Model Rules of Professional Responsibility Rule 1.13(b).

1.14 Client with Diminished Capacity

(a) When a client?s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client?s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client?s interests.

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COMMENT

[1] The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client?s own well-being. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions.

[2] The fact that a client suffers a disability does not diminish the lawyer?s obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.

[3] The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client?s interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not family members, to make decisions on the client?s behalf.

[4] If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. In matters involving a minor, whether the lawyer should look to the parents as natural guardians may depend on the type of proceeding or matter in which the lawyer is representing the minor. If the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward?s interest, the lawyer may have an obligation to prevent or rectify the guardian?s misconduct. See Rule 1.2(d).

Taking Protective Action

[5] If a lawyer reasonably believes that a client is at risk of substantial physical, financial or other harm unless action is taken, and that a normal clientlawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, then paragraph (b) permits the lawyer to take protective measures deemed necessary. Such measures could include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decision-making tools such as durable powers of attorney or consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client. In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client?s best interests and the goals of intruding into the client?s decision-making autonomy to the least extent feasible, maximizing client capacities and respecting the client?s family and social connections.

[6] In determining the extent of the client?s diminished capacity, the lawyer should consider and balance such factors as: the client?s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision, and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

[7] If a legal representative has not been appointed, the lawyer should consider whether appointment of a guardian ad litem, conservator or guardian is necessary to protect the client?s interests. Thus, if a client with diminished capacity has substantial property that should be sold for the client?s benefit, effective completion of the transaction may require appointment of a legal representative. In addition, rules of procedure in litigation sometimes provide that minors or persons with diminished capacity must be represented by a guardian or next friend if they do not have a general guardian. In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the lawyer. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client.

*Disclosure of the Client?s Condition *

[8] Disclosure of the client?s diminished capacity could adversely affect the client?s interests. For example, raising the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Confidences and secrets relating to the representation is protected by Rule 1.6. Therefore, unless authorized to do so, the lawyer may not disclose such information. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, paragraph (c) limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client?s interests before discussing matters related to the client. The lawyer?s position in such cases is an unavoidably difficult one.

Emergency Legal Assistance

[9] In an emergency where the health, safety or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person?s behalf has consulted with the lawyer. Even in such an emergency, however, the lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer, agent or other representative available. The lawyer should take legal action on behalf of the person only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm. A lawyer who undertakes to represent a person in such an exigent situation has the same duties under these Rules as the lawyer would with respect to a client.

[10] A lawyer who acts on behalf of a person with seriously diminished capacity in an emergency should keep the confidences of the person as if dealing with a client, disclosing them only to the extent necessary to accomplish the intended protective action. The lawyer should disclose to any tribunal involved and to any other counsel involved the nature of his or her relationship with the person. The lawyer should take steps to regularize the relationship or implement other protective solutions as soon as possible. Normally, a lawyer would not seek compensation for such emergency actions taken.

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REPORTER?S NOTES:

Model Rule 1.14 (2002) corresponds to M. Bar R. 3.6(j) and addresses the unique issues that arise when representing a client with diminished capacity. It is commonly understood that examples of ?diminished capacity? include mental retardation, mental illness, physical illness, the aging process, and an example not included in the Maine Bar Rules, minority (youth). Because there is otherwise little substantive difference between the Maine Bar Rule and Rule 1.14, the Task Force recommended the adoption of the structure and language of the Model Rule.

Model Rule 1.14 (2002) is designed to address issues that arise when the lawyer?s duty of loyalty and confidentiality to a client with diminished capacity conflict with the lawyer?s duty to take protective action on their behalf. The Rule recognizes that, in certain circumstances, the intervention of and disclosure to a third party may be necessary for the protection of a client with diminished capacity. In practice, the line between a lawyer acting as legal counsel and as guardian ad litem may sometimes be blurred. The Task Force recognized that the Rule 1.14 describes what has been considered ?best practices? in Maine.

The Task Force further recognized that there is a continuum of capacities that may be presented by clients, and thus the application of this rule is very context sensitive. Lawyers must be mindful of his or her responsibilities to the client, and at the same time, be prepared to take actions that are in the client?s best interest.

1.15 Safekeeping Property, Client Trust Accounts, Interest on Trust Accounts

(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.

(b) (1) A lawyer shall deposit into a client trust account any advance payment of fees or retainer and any expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred, except that an advance or retainer may be placed temporarily in a non-trust account, where necessary to effectuate payment by the client's chosen means (e.g., by credit card), so long as such funds are transferred promptly, and no later than two business days following receipt, into a client trust account. A lawyer shall not accept any advance payment or retainer into a non-trust account if the lawyer has any reason to suspect that the funds will not be successfully transferred into the client trust account within two business day of receipt. All such funds shall be deposited in one or more identifiable accounts maintained pursuant to Maine Bar Rule 6. No funds belonging to the lawyer or law firm shall be deposited therein except as follows:

(i) Funds reasonably sufficient to pay institutional service charges may be deposited therein; and

(ii) Funds belonging in part to a client and in part presently or potentially to a lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive the funds is disputed by the client; in that event the disputed portion shall not be withdrawn until the dispute is finally resolved.

(2) A lawyer shall:

(i) Promptly notify a client of the receipt of the client’s funds, securities, or other properties;

(ii) Identify and label securities and properties of a client promptly upon receipt and place them in a safe-deposit box or other place of safekeeping as soon as practicable;

(iii) Maintain complete records of all funds, securities and other properties of a client coming into possession of the lawyer and render prompt and appropriate accounts to the client regarding them, which records shall be kept by the lawyer and shall be preserved for a period of eight years after termination of the representation; and

(iv) Promptly pay or deliver to the client, as requested by the client, the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.

(3) Unless the client directs otherwise, when a lawyer or law firm reasonably expects that client funds will earn interest or dividends for the client in excess of the costs incurred to secure such income, such funds shall be deposited in a client trust account that may be either

(i) separate trust account for the particular client or client’s matter, on which the earnings net of any transaction costs or other account-related charges will be paid or credited to the client; or

(ii) A pooled trust account with subaccounting which will provide for computation of earnings accrued on each client’s funds and the payment thereon, net of any transaction costs or other account-related charges to the client.

(4) All funds of any client held by the lawyer or law firm that are small in amount or held for a short period of time so that they cannot earn interest or dividends for the client in excess of the costs incurred to secure such income shall be deposited in an Interest on Lawyer’s Trust Account (IOLTA) account and shall be subject to the following conditions:

(i) The financial institution in which the account is established shall be authorized to do business in Maine, shall be insured by the Federal Deposit Insurance Corporation or National Credit Union Share Insurance Fund, and shall be an eligible institution selected by the lawyer in the exercise of ordinary prudence. "Eligible Institution" is one determined by the Maine Bar Foundation in accordance with Rule 6(a)(2), (3) and (4);

(ii) Funds deposited in the account shall be subject to withdrawal upon request and without delay;

(iii) Within 30 days after the opening of any IOLTA account that is to be maintained hereunder, the lawyer or law firm shall file with the Board of Overseers of the Bar an order directing the financial institution to remit any net interest or dividends that may accrue on the account to the Maine Bar Foundation, a nonprofit corporation incorporated under the laws of the State of Maine that has in force a determination letter from the Internal Revenue Service that it qualifies as an exempt organization under Section 501(c)(3) of the Internal Revenue Code of 1954 as from time to time amended;

(iv) No interest or dividends on the account shall be paid to the lawyer or law firm, and the lawyer or law firm shall not receive any direct or indirect pecuniary benefit by reason of the remittance of interest in accordance with subparagraph (iii); and

(v) The determination of whether funds are small in amount or held for a short period of time so that they cannot earn interest or dividends for the client in excess of the costs incurred to secure such income, shall rest in the sound judgment of the lawyer or law firm. No lawyer shall be charged with an ethical impropriety or other breach of professional conduct based on the good faith exercise of such judgment.

(5) A lawyer or a law firm, holding funds of the United States government that by law may not earn interest shall deposit those funds in one or more insured, non-interest bearing accounts, whether or not the lawyer or firm has made the election provided by this paragraph for other client funds.

(6) If the circumstances on which a lawyer or law firm has based a determination to deposit client funds in an account under paragraph (4) of this subdivision change, so that interest or dividends in excess of costs may reasonably be expected to be earned on such funds, the lawyer or law firm shall transfer the principal amount originally deposited to the appropriate account established under paragraph (3) of this subdivision.

(7) For purposes of this rule, the following definitions apply:

(i) "Interest or dividends in excess of costs" means the net of interest or dividends earned on a particular amount of one client’s funds over the administrative costs allocable to that amount. In estimating the gross amount of interest or dividends to be earned, the lawyer or law firm shall consider the principal amount involved; available interest or dividend rates; and the time the funds are likely to be held, taking into account the likelihood of delay in any relevant proceeding or transaction.

(ii) "Administrative costs" means that portion of the following costs properly allocable to a particular amount of one client’s funds paid to a lawyer or law firm:

(A) Financial institutional service charges for opening, maintaining, or closing an account, or accounting for the deposit and withdrawal of funds and payment of interest or dividends.

(B) Reasonable charges of the lawyer or law firm for opening, maintaining or closing an account; accounting for the deposit and withdrawal of funds and payment of interest or dividends; and obtaining information and preparing or forwarding any returns or reports that may be required by a revenue taxing agency as to the interest or dividends earned on a client’s funds.

(c) [Reserved – included in (b), above.]

(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.

(f) Upon termination of representation, a lawyer shall return to the client or retain and safeguard in a retrievable format all information and data in the lawyer’s possession to which the client is entitled. Unless information and data are returned to the client or as otherwise ordered by a court, the lawyer shall retain and safeguard such information and data for a minimum of eight (8) years, except for client records in the lawyer’s possession that have intrinsic value in the particular version, such as original signed documents, which must be retained and safeguarded until such time as they are out of date and no longer of consequence. A lawyer may enter into a voluntary written agreement with the client for a different period. In retaining and disposing of files, a lawyer shall employ means consistent with all other duties under these rules, including the duty to preserve confidential client information.

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COMMENT

[1] A lawyer should hold property of others with the care required of a professional fiduciary. Securities should be kept in a safe deposit box, except when some other form of safekeeping is warranted by special circumstances. All property that is the property of clients or third persons, including prospective clients, must be kept separate from the lawyer’s business and personal property and, if monies, in one or more trust accounts. Separate trust accounts may be warranted when administering estate monies or acting in similar fiduciary capacities. A lawyer should maintain on a current basis books and records in accordance with generally accepted accounting practice and comply with any record keeping rules established by law or court order. See, e.g., ABA Model Financial Recordkeeping Rule.

[2] While normally it is impermissible to commingle the lawyer’s own funds with client funds, paragraph (b) provides that it is permissible when necessary to pay bank service charges on that account. Accurate records must be kept regarding which part of the funds are the lawyer’s.

[3] Lawyers often receive funds from which the lawyer’s fee will be paid. The lawyer is not required to remit to the client funds that the lawyer reasonably believes represent fees owed. However, a lawyer may not hold funds to coerce a client into accepting the lawyer’s contention. The disputed portion of the funds must be kept in a trust account and the matter shall be submitted to mandatory fee arbitration, in accordance with Rule 1.5(g) and former Maine Bar Rule 9. The undisputed portion of the funds shall be promptly distributed.

[4] Paragraph (e) also recognizes that third parties may have lawful claims against specific funds or other property in a lawyer’s custody, such as a client’s creditor who has a lien on funds recovered in a personal injury action. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client. In such cases, when the third-party claim is not frivolous under applicable law, the lawyer must refuse to surrender the property to the client until the claims are resolved. A lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party, but, when there are substantial grounds for dispute as to the person entitled to the funds, the lawyer may file an action to have a court resolve the dispute.

[5] The obligations of a lawyer under this Rule are independent of those arising from activity other than rendering legal services. For example, a lawyer who serves only as an escrow agent is governed by the applicable law relating to fiduciaries even though the lawyer does not render legal services in the transaction and is not governed by this Rule.

[6] A lawyers’ fund for client protection provides a means through the collective efforts of the bar to reimburse persons who have lost money or property as a result of dishonest conduct of a lawyer. Participation in the Maine Lawyers’ Fund for Client Protection is a condition of continuing membership in the Maine Bar, for every member, including nonresident members and full-time Justices and Judges of the courts of Maine, and inactive members for the first three years after they reach inactive status.

[7] Subsection (f) of Rule 1.15 is derived from M. Bar R. 3.4(a)(4), as adopted by the Maine Supreme Judicial Court on August 1, 2004. The Rule is intended to provide lawyers (or their successors in the event of a cessation of practice) with a safe harbor for the retention and destruction of client files following the termination of representation. If the attorney has not returned to the client documents and data to which the client is entitled, the rule is intended to cover information and data in the lawyer’s possession to which the client is entitled under these rules, whether contained in tangible client files or other media where client information is stored. The Rule establishes two time periods for the retention and destruction of such client information and data. Records in the lawyer’s possession that have intrinsic value in the particular version, such as original signed documents, must be retained indefinitely until such time as they are clearly out of date and no longer of consequence. All other client information and data must be retained for a period of eight years from the termination of representation, after which they may be destroyed, unless subject to a court order or voluntary written agreement with the client. Eight years was selected because it is two years longer than the typical limitations period for professional malpractice actions. However, in cases where the statute of limitations for commencing professional liability actions against the lawyer is longer than six years, a lawyer would be well advised to retain such information for a minimum of two years after the expiration of the limitations period even though it is not required by the rule. This Rule is not intended to modify the lawyer’s obligations upon withdrawal from employment.

[8] Income on IOLTA Accounts is paid to the Maine Bar Foundation, a 501(c)(3) Organization, and thus is not made available to the client or third person whose funds are deposited in this type of client trust account. In determining whether client or third person funds must be deposited in an IOLTA account instead of a non-IOLTA client trust account, a lawyer should consider the following factors:

(1) the amount of interest or dividends the funds would earn during the period that they are expected to be deposited in light of (a) the amount of the funds to be deposited; (b) the expected duration of the deposit, including the likelihood of delay in the matter for which the funds are held; and (c) the rates of interest or yield at financial institutions where the funds are to be deposited;

(2) the cost of establishing and administering non-IOLTA accounts for the client or third person’s benefit, including service charges or fees, the lawyer’s services, preparation of tax reports, or other associated costs;

(3) the capability of financial institutions or lawyers to calculate and pay income to individual clients or third persons; and any other circumstances that affect the ability of the funds to earn a net return for the client or third person.

This rule should be read in connection with former M. Bar R. 6(a), which sets forth eligibility requirements of financial institutions where client funds are deposited.

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Advisory Committee's Note - June 2014

Rule 1.15(b) has been amended to clarify that a lawyer can accept an advance paid by credit card or other means that requires initial deposit into the lawyer's operating account, so long as: (a) the lawyer promptly places the advanced funds into the trust account, and (b) the lawyer has no reason to believe that the funds will be meaningfully exposed to the lawyer's creditors while in the operating account or that there is any practical risk that the funds will not be successfully transferred promptly into the trust account. The Committee intends that Opinion No. 173 (Mar. 7, 2000) of the Professional Ethics Commission shall not apply to credit card payments accepted in compliance with this amendment. The Committee believes that the benefit to clients and lawyers of being able to choose payment by credit card or other means that might require temporary deposit into a lawyer's operating account warrants the slight risk that such deposit entails, since those risks can be mitigated with the controls the rule provides: the exposure in the operating account must be very short-lived, and such deposit is prohibited if the lawyer is aware of any meaningful risk to such funds from deposit into the operating account.

The Committee intends to maintain a bright line separating earned fees from unearned fees (which must be deposited into a trust account). The Committee intends the concept of a fee that is "earned, subject to refund," as described in Opinion No. 206 (Dec. 12, 2012) of the Professional Ethics Commission, to have no place in the rules. A fee that is subject to future refund if the client decides to terminate the representation or not to make use of anticipated future services is an advance, not a nonrefundable fee, and must be placed in a trust account, even though the parties think it highly likely that the future services will in fact be rendered. If the parties intend for the lawyer to treat funds as the lawyer's own before services are rendered, the lawyer must make an agreement for a nonrefundable fee that complies with Rule 1.5(h).

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REPORTER’S NOTES:

Model Rule 1.15 (2002) corresponds to M. Bar R. 3.6(e). Both rules address a lawyer’s duty to account for and return clients’ property. Whether deemed an agent, an agent with fiduciary duties, or a trustee, lawyers have duties to account for and return clients’ property. In addition to these two principal duties, lawyers have certain obligations with respect to property when the rights to its ownership are in dispute. Further, lawyers have ministerial obligations with respect to recordkeeping.

Model Rule 1.15 is substantively consistent with M. Bar R. 3.6(e), as well as with the RESTATEMENT (THIRD) § 44 (safeguarding and segregating property), § 45 (surrendering possession of property) and § 46 (documents relating to a representation).

The Task Force recommended adding the requirement that records of accounts of client funds be preserved for a minimum of eight years.

The Task Force further recommended the inclusion of new subparagraph 1.15(f), which speaks to the issue of a lawyer’s retention of a client’s files. The rule requires that after representation is terminated, a lawyer must keep all information and data of the clients for a minimum of eight years (or longer if the statute of limitation for a cause of action in which such property may come into evidence exceeds six years). There is an added requirement for client records with intrinsic value (such as original, signed documents). Subparagraph (f) was recommended by the Advisory Committee on Professional Responsibility, and adopted by the Supreme Judicial Court in July, 2005.

Finally, 1.15 reflects the Maine Bar Foundation’s comprehensive review of Maine’s IOLTA (Interest on Attorney Trust Accounts) rules and the Supreme Judicial Court’s adoption of amendments to those rules. See Rules amendments at SJC-51 and 2008 ME. Rules 07. Model Rule 1.15(b) requires lawyers to establish accounts known as IOLTA accounts, which generate interest on pooled accounts made up of individual deposits which are nominal in amount or expected to be held for a short period of time and which meet the requirements of former M. Bar R. 6(a)(3). The effect is to make participation in IOLTA mandatory, and interest and dividend rates on IOLTA accounts comparable with similarly constituted bank accounts. Maine Bar Rule 6(a)(2)-(3) is the Board of Bar Overseers administrative rule regarding IOLTA accounts, and includes provisions defining bank eligibility.

After discussion, the Task Force recommended the adoption of the language and structure of Rule 1.15, with the above noted additions and modifications.

1.16 Declining or Terminating Representation

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the rules of professional conduct or other law;

(2) the lawyer?s physical or mental condition materially impairs the lawyer?s ability to represent the client; or

(3) the lawyer is discharged.

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:

(1) withdrawal can be accomplished without material adverse effect on the interests of the client;

(2) the client persists in a course of action involving the lawyer?s services that the lawyer reasonably believes is criminal or fraudulent;

(3) the client has used the lawyer?s services to perpetrate a crime or fraud;

(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer?s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(7) other good cause for withdrawal exists.

(c) A lawyer must comply with applicable law and rules requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. This subsection (c) does not apply to the automatic withdrawal of a lawyer upon completion of a limited representation made pursuant to Rule 1.2.

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client?s interests, including giving reasonable notice to the client, allowing time for employment of other counsel, refunding any advance payment of fees or expenses that has not been earned or incurred, and complying with Rule 1.15(f) concerning the information and data to which the client is entitled.

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COMMENT

[1] A lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict-of-interest and to completion. Ordinarily, a representation in a matter is completed when the agreed-upon assistance has been concluded. See Rules 1.2(c) and 6.5; see also Rule 1.3, Comment [4].

Mandatory Withdrawal

[2] A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation.

[3] When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. See also Rule 6.2. Similarly, court approval or notice to the court is often required by applicable law before a lawyer withdraws from pending litigation. Difficulty may be encountered if withdrawal is based on the client?s demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer?s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. Lawyers should be mindful of their obligations to both clients and the court under Rules 1.6 and 3.3.

Discharge

[4] A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer?s services. Where future dispute about the withdrawal may be anticipated, it may be advisable to prepare a written statement reciting the circumstances.

[5] Whether a client can discharge appointed counsel may depend on applicable law. A client seeking to do so should be given a full explanation of the consequences. These consequences may include a decision by the appointing authority that appointment of successor counsel is unjustified, thus requiring self-representation by the client.

[6] If the client has severely diminished capacity, the client may lack the legal capacity to discharge the lawyer, and in any event the discharge may be seriously adverse to the client?s interests. The lawyer should make special effort to help the client consider the consequences and may take reasonably necessary protective action as provided in Rule 1.14.

Optional Withdrawal

[7] A lawyer may withdraw from representation in some circumstances. The lawyer has the option to withdraw if it can be accomplished without material adverse effect on the client?s interests. Withdrawal is also justified if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated with such conduct even if the lawyer does not further it. Withdrawal is also permitted if the lawyer?s services were misused in the past even if that would materially prejudice the client. The lawyer may also withdraw where the client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.

[8] A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs or an agreement limiting the objectives of the representation.

[8A] An attorney?s limited appearance on behalf of an otherwise self-represented client made pursuant to Rule 1.2 is self-executing. Withdrawal is automatic upon completion of a limited representation. Consequently, the limited appearance itself constitutes notice of termination of representation and does not require the consent of a tribunal.

Assisting the Client upon Withdrawal

[9] Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The lawyer may retain papers as security for a fee only to the extent permitted by law. See Rule 1.15.

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REPORTER?S NOTES:

Model Rule 1.16 (2002) corresponds to M. Bar R. 3.5. Both rules address the professional responsibilities of a lawyer upon declining, terminating or withdrawing from a client representation. Because there are few substantive differences between the two rules, and there was agreement that the Model Rule was more clearly organized, the Task Force recommended the adoption of the structure and language set forth in Model Rule 1.16 (2002). Lawyers are advised, however, to consult the specific provisions found in Maine procedural rules which address termination of and withdrawal from representation.

Pursuant to Model Rule 1.16, a lawyer may not accept representation in a matter, and must withdraw from a matter if representation has commenced, if the representation cannot be performed competently and in accordance with the rules of professional responsibility. Impliedly, a lawyer may not accept an engagement or must withdraw if a conflict-of-interest exists or later arises. A lawyer must also withdraw upon discharge by the client. Model Rule 1.16 (a) is substantively in accord with M. Bar R. 3.5(b).

Model Rule 1.16(b) (2002) sets forth the circumstances under which a lawyer may withdraw from a representation (permissive withdrawal). It lists seven specific reasons for a lawyer withdrawing, with the last reason being, if ?other good cause for withdrawal exists.? These specific reasons are substantively consistent with the specific circumstances for withdrawal set forth in M. Bar R. 3.5(c)(1) ? (11). Both M. Bar R. 3.5 and Model Rule 1.16 are substantially in accord with The RESTATEMENT (THIRD), § 32. The RESTATEMENT, however, adds a further level of analysis to the matter of permissive withdrawal. It provides that in certain instances of permissive withdrawal, a lawyer may not withdraw if the?harm that withdrawal would cause significantly exceeds the harm to the lawyer or others in not withdrawing.?

The balancing test implied in the RESTATEMENT highlights the tension between permissive withdrawal under Rule 1.16(b) and the authority of the court to deny permission to withdraw, presumably in the ?interest of justice.? The limited representation (?unbundling?) process adhered to in Maine requires the acknowledgment that permission of the court is not required when, by its nature, the termination of limited representation is self-executing. See Rule 1.16(c).

M. Bar R. 3.4(g)(ii) states that ?a lawyer may commence representation in contemplated or pending litigation if another lawyer in the lawyer?s firm is likely or ought to be called as a witness,? unless such representation is precluded by the conflict-of-interest rules. The Model Rule equivalent to this rule is not included in Rule 1.16, but is found in Model Rule 3.7(b) (2002).

1.17A Sale of Law Practice

A lawyer or a law firm may sell or purchase a law practice, or an area of law practice, including good will, if all of the following conditions are satisfied:

(a)    The purchaser, who must be authorized to represent clients in the State of Maine and in matters to be transferred, assumes the obligations of an attorney to the clients whose files are transferred.

(b)    The seller gives the following notices:

(1)    written notice to each of the seller's current or former clients affected by the sale and to the Board of Overseers of the Bar regarding:

(A)    the proposed sale including the name of the purchasing attorney or the names of the attorneys who practice within the purchasing firm;

(B)    the client's right to retain other counselor to take possession of the file;

(C)    the fact that the client's consent to the transfer of the client's files will be presumed if the client does not take any action or does not otherwise object within ninety (90) days of receipt of the notice; and

(D)    the terms of any proposed change in the fee arrangement authorized by paragraph (c).

(2)    If a client cannot be given written notice, the representation of that client may be transferred to the purchaser only with the approval of the Board of Overseers of the Bar through its Bar Counsel. If Bar Counsel and the seller cannot agree on the steps adequate to attempt to give written notice, either party may petition the Supreme Judicial Court for an order from a Single Justice approving the transfer or ordering preconditions to transfer.

(3)    Further notice shall be given by publication in digital and paper versions of a newspaper of general circulation in each county in which the seller is engaging in the practice of law, at least thirty days before the anticipated transfer of files.

Such notice shall include the anticipated date of sale and identification of the purchasing lawyer or firm, but not the identities of the clients being transferred.

(c)    The fees charged clients shall not be increased by reason of the sale.

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ADVISORY NOTE ? AUGUST 2015

Rule 1.17A of the Maine Rules of Professional Conduct replaces Rule 1.17 in its entirety.

Rule 1.17A reflects continued evolution in Maine law regarding the sale of a law practice.

Historically, sale of a law practice or client files was not allowed in Maine. That prohibition did not affect all lawyers alike. Lawyers practicing in partnerships were able to capture the value of their accumulated goodwill through retirement and buy-out provisions in their partnership agreements. Lawyers practicing as solo practitioners could not capture such value due to the prohibitions on sale of practice. Beginning in 2000, the Advisory Committee on Professional Conduct began considering these rules, resulting first in the amendment of Rule 3.14, and in the 2009 adoption of Rule 1.17, permitting any lawyer to sell his or her law practice, so long as the lawyer left the active practice of law entirely and the practice was sold in its entirety.

More recently, the Advisory Committee began looking at this issue afresh, inspired in part by the "The Report and Recommendations of the Board of Overseers of the Bar's Task Force to Study Bar Demographics" (June 2014) and concerns that the ongoing prohibitions on the sale of part of a law practice and on the selling lawyer's continued practice of law may not be in the best interests of clients or of the Bar. Anecdotal evidence suggested that the Rule was unfamiliar to much of the Bar, but that where it was known it had prevented transactions from closing that would have seemed to have been in the interests of the lawyers and clients involved. The rule was also perceived as preventing lawyers from making socially beneficial use of their law licenses by refocusing their active practices on a particular area of law (for example, discontinuing trial work while continuing to handle real estate matters), or by continuing post-"retirement" activities such as pro bono work, mediation or mentorships, for which an active law license is required or desirable.

ABA Model Rule 1.17 allows less than all of a law practice to be sold, but it prohibits the selling lawyer from continuing to engage in the area of law practice sold, either entirely or within a defined geographical area. The Advisory Committee recommended amending the Maine Rules to allow sale of part of a practice but found the rationale for requiring discontinuance of the practice of law, either entirely or within a geographic or area-of-law limitation, to be a non-competition rationale more suitably protected by private agreement between buyer and seller than by Rule.

Sale of a practice must be conducted in a manner that protects clients.

Rule 1.17A omits the requirement in Rule 1.17 that the purchaser be registered with the Board of Overseers. Only individual lawyers register with the Board, but a purchaser may be a law firm, not an individual lawyer. The amended language requiring that the purchaser be authorized to represent clients in the State of Maine and to handle the matters being transferred is meant to serve the same purpose as the prior language—namely, to ensure that the purchaser can properly engage in the practice of law in Maine and that the clients whose files are being transferred will be served by lawyers authorized to handle the matters transferred—without suggesting that only an individual can act as a purchaser.

The authorization of sale of part of a practice is intended to cover a sale that would generally be understood as a sale of substantially all of a lawyer's files in a particular area of law. It is not intended to authorize any attempted end-run of the rules governing fee sharing, solicitation or any aspect of the rules that prevents an ongoing trade in brokering clients or their matters as commodities.

Like the ABA Model Rule and former Maine Rule 1.17, Rule 1.17A continues to require written notice to the current and former clients whose files are to be transferred to new counsel. Rule 1.17A, however, changes the provision regarding the steps to be taken when certain clients cannot be given written notice. Rule 1.17A does not require a court order in all such cases. The Advisory Committee believes that notice to Bar Counsel sufficiently protects client interests, where Bar Counsel is able to recommend additional steps to effect notice if the unsuccessful efforts to give written notice have somehow been inadequate, and where Bar Counsel or the seller can seek court intervention in the event that a selling lawyer and Bar Counsel cannot agree on those further steps that might be warranted to attempt to effect notice. The Advisory Committee recommended abrogation of Rule 1.17 and adoption of Rule 1.17A because the existing Comments to Rule 1.17 would be inconsistent with the amendments to the Rule itself.

Note: To aid in the understanding of each amendment, an Advisory Note and/or Comment appears after the text amendment, but the Advisory Note or Committee is not part of the amendment adopted by the Court.

COMMENT

[1] The practice of law is a profession, not merely a business. Clients are not commodities that can be purchased and sold at will. Pursuant to this Rule, when a lawyer or an entire firm ceases to practice or changes its practice mix, and other lawyers or firms take over the representation, the selling lawyer or firm may obtain compensation for the reasonable value of the transferred practice, as may withdrawing partners of law firms. See Rules 5.4 & 5.6.

Client Confidences, Consent and Notice
[2] Negotiations between a seller and a prospective purchaser prior to disclosure of information relating to a specific representation of an identifiable client no more violate the confidentiality provisions of Model Rule 1.6 than do preliminary discussions concerning the possible association of another lawyer or mergers between firms, with respect to which client consent is not required. Providing the purchaser with client-specific information relating to the representation and the file is limited as set forth in Rule 1.6(b )(6).

[3] A lawyer or law firm ceasing to practice cannot be required to remain in practice because some clients cannot be given actual notice of the proposed purchase. Because these clients cannot themselves consent to the purchase or direct any other disposition of their files, the Rule requires that the Board of Overseers of the Bar must be given notice and an opportunity to be heard through its Bar Counsel.

[4] All elements of client autonomy, including the client's absolute right to discharge a lawyer and transfer the representation to another, survive the sale of the practice or area of practice.

Fee Arrangements Between Client and Purchaser
[5] The sale may not be financed by increases in fees charged to the clients of the practice. Existing arrangements between the seller and the client as to fees and the scope of the representation must be honored by the purchaser.

Other Applicable Ethical Standards
[6] Lawyers participating in the sale of a law practice or a practice area are subject to the ethical standards applicable to involving another lawyer in the representation of a client. These include, for example, the seller's obligation to exercise competence in identifying a purchaser qualified to assume the practice and the purchaser's obligation to undertake the representation competently, see Rule 1.1; the obligation to avoid disqualifying conflicts, and to secure the client's informed consent for those conflicts that can be agreed to, see Rule 1.7 regarding conflicts and Rule 1.0(e) for the definition of informed consent; and the obligation to protect information relating to the representation, see Rules 1.6 and 1.9.

[7] If approval of the substitution of the purchasing lawyer for the selling lawyer is required by the rules of any tribunal in which a matter is pending, such approval must be obtained before the matter can be included in the sale. See Rule 1.16.

Applicability of the Rule
[8] This Rule applies to the sale of a law practice of a deceased, disabled or disappeared lawyer. Thus, the seller may be represented by a non-lawyer representative not subject to these Rules. However, because no lawyer may participate in a sale of a law practice that does not conform to the requirements of this Rule, the representatives of the seller as well as the purchasing lawyer can be expected to conform to those requirements.

[9] Admission to or retirement from a law partnership or professional association, retirement plans and similar arrangements, and a sale of tangible assets of a law practice, do not constitute a sale or purchase governed by this Rule.

[10] This Rule does not apply to the transfers of legal representation between lawyers when such transfers are unrelated to the sale of a practice or an area of practice.

1.18 Duties to Prospective Client

(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:

(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:

(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and

(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(ii) written notice is promptly given to the prospective client.

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COMMENT

[1] Prospective clients, like clients, may disclose information to a lawyer, place documents or other property in the lawyer?s custody, or rely on the lawyer?s advice. A lawyer?s discussions with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients.

[2] Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a ?prospective client? within the meaning of paragraph (a).

[3] It is often necessary for a prospective client to reveal information to the lawyer during an initial consultation prior to the decision about formation of a client-lawyer relationship. The lawyer often must learn such information to determine whether there is a conflict-of-interest with an existing client and whether the matter is one that the lawyer is willing to undertake. Paragraph (b) prohibits the lawyer from using or revealing that information, except as permitted by Rule 1.9, even if the client or lawyer decides not to proceed with the representation. The duty exists regardless of how brief the initial conference may be.

[4] In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether or not to undertake a new matter should limit the initial interview to only such information as reasonably appears necessary for that purpose. Where the information indicates that a conflict-ofinterest or other reason for non-representation exists, the lawyer should so inform the prospective client or decline the representation. If the prospective client wishes to retain the lawyer, and if consent is possible under Rule 1.7, then consent from all affected present or former clients must be obtained before accepting the representation.

[5] A lawyer may condition conversations with a prospective client on the person?s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. See Rule 1.0(e) for the definition of informed consent. If the agreement expressly so provides, the prospective client may also consent to the lawyer?s subsequent use of information received from the prospective client.

[6] Even in the absence of an agreement, under paragraph (c), the lawyer is not prohibited from representing a client with interests adverse to those of the prospective client in the same or a substantially related matter unless the lawyer has received from the prospective client information that could be significantly harmful if used in the matter.

[7] Under paragraph (c), the prohibition in this Rule is imputed to other lawyers as provided in Rule 1.10, but, under paragraph (d)(1), imputation may be avoided if the lawyer obtains the informed consent, confirmed in writing, of both the prospective and affected clients. In the alternative, imputation may be avoided if the conditions of paragraph (d)(2) are met and all disqualified lawyers are timely screened and written notice is promptly given to the prospective client. See Rule 1.0(k) (requirements for screening procedures). Paragraph (d)(2)(i) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.

[8] Notice, including a general description of the subject matter about which the lawyer was consulted, and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

[9] For the duty of competence of a lawyer who gives assistance on the merits of a matter to a prospective client, see Rule 1.1. For a lawyer?s duties when a prospective client entrusts valuables or papers to the lawyer?s care, see Rule 1.15.

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REPORTER?S NOTES:

Model Rule 1.18 (2002), addressing duties to prospective clients, has no Maine Bar Rule equivalent, although new M. Bar R. 3.6(h)(1)(iv), effective July 1, 2005, addresses the lawyer?s duty not to disclose or use confidential information received from a prospective client.

The Maine Professional Ethics Commission has addressed issues relevant to the issue of a lawyer?s duty to prospective clients. It has noted that a prospective client who consults with a lawyer is a ?client? of the lawyer for the purposes of confidentiality, even in the absence of a formal engagement. The Commission has also indicated that there were at least two instances where a prospective client will not be deemed to have communicated a confidence or secret, and thus the lawyer would not be disqualified from representing the opposing party. The first would occur if confidences or secrets were revealed when a prospective client contacted a lawyer in an effort to disqualify the lawyer from representing the opposing party. In that instance the client would not be deemed to have disclosed such a confidence or secret in the context of seeking legal assistance. The second would be where the prospective client was clearly warned that any information disclosed in the initial contact would not be considered confidential and would be given at the prospective client?s peril. These opinions are generally in accord with Model Rule 1.18 (2002) (See Comment [5]).

Paragraph (a) defines a prospective client as one who discusses with a lawyer the possibility of forming a lawyer-client relationship. Paragraph (b) states that even though no attorney-client relationship is established, the lawyer still has an obligation not to use or reveal confidential information learned through the consultation, except as would be permitted by Rule 1.9 with respect to a former client. Paragraphs (c) and (d), read together, provide that a lawyer who has obtained confidential information from a prospective client shall not represent another person with interests materially adverse to those of the prospective client in the same or a substantially related matter, if the information could be significantly harmful to the prospective client. This disqualification is removed if the lawyer has informed written consent from both persons. The lawyer?s law firm is also disqualified from representation unless (1) the lawyer who received the information took reasonable steps to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client, (2) the lawyer is screened from the matter and takes no part in the fee from the matter, and (3) written notice is promptly given to the prospective client. The screening of lawyers to avoid disqualification in this context is a departure from the Maine Bar Rules.

The Task Force recommended adoption of Model Rule 1.18 (2002). There was consensus that this Rule encompasses several principles recognized under Maine?s current rules. Moreover, it reflects a sound approach to the ethical duties of a lawyer to prospective clients.

2.1 Advisor

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, emotional and political factors, that may be relevant to the client?s situation.

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COMMENT

Scope of Advice

[1] A client is entitled to straightforward advice expressing the lawyer?s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client?s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.

[2] Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.

[3] A client may expressly or impliedly ask the lawyer for purely technical advice. When such a request is made by a client experienced in legal matters, the lawyer may accept it at face value. When such a request is made by a client inexperienced in legal matters, however, the lawyer?s responsibility as advisor may include indicating that more may be involved than strictly legal considerations.

[4] Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work; business matters can involve problems within the competence of the accounting profession or of financial specialists. Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyer?s advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts.

Offering Advice

[5] In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer?s duty to the client under Rule 1.4 may require that the lawyer offer advice if the client?s course of action is related to the representation. Similarly, when a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation. A lawyer ordinarily has no duty to initiate investigation of a client?s affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client?s interest.

[6] As noted in Rule 1.7 Comment [12] and Rule 1.8 Comment [17], Maine has not adopted the ABA Model Rules? categorical prohibition on a lawyer forming a sexual relationship with an existing client. Such a rule is unnecessary to address true disciplinary problems and it threatens to make disciplinary issues out of conduct that ought not be a matter of attorney discipline. However, the lack of a categorical prohibition should not be construed as an implicit approval of such relationships, which may affect a lawyer?s ability to provide competent legal advice. Lawyers should bring a degree of objectivity with respect to their clients? matters to the representation. A sexual relationship may adversely impact a lawyer?s ability to exercise independent judgment and render candid advice to a client.

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REPORTER?S NOTES:

Model Rule 2.1 (2002) is a separate and independent articulation of the principle that a lawyer has an obligation to provide independent, candid advice to his/her clients. There is no direct analog under the Maine Bar Rules, although Rule 2.1 is generally consistent with current Maine practice. Rule 2.1 is also in accord with RESTATEMENT (THIRD) § 94(3).

Model Rule 2.1 (2002) has received a fair amount of attention from commentators who have expressed a concern about factors that may influence a lawyer?s independence. Among the issues addressed include third party influences on a lawyer?s independent judgment, and the compromise of a lawyer?s independent judgment that may result from a lawyer/client sexual relationship. The Task Force recognized the importance of lawyers of caring about their clients and causes, but was mindful of the risk of a lawyer losing his or her objectivity.

Because Rule 2.1, in affirmatively recognizing the role of a lawyer as an independent and candid advisor, is in accord with Maine practice, the Task Force recommended that Model Rule 2.1 (2002) be adopted with minor modification as written.

2.2 [Reserved In the Model Rules]

[Reserved In the Model Rules]

2.3 Evaluation for Use by Third Persons

(a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer?s relationship with the client.

(b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client?s interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.

(c) Except as disclosure is authorized in connection with a report of an evaluation, confidences and secrets are otherwise protected by Rule 1.6.

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COMMENT

Definition

[1] An evaluation may be performed at the client?s direction or when impliedly authorized in order to carry out the representation. See Rule 1.2. Such an evaluation may be for the primary purpose of establishing information for the benefit of third parties; for example, an opinion concerning the title of property rendered at the behest of a vendor for the information of a prospective purchaser, or at the behest of a borrower for the information of a prospective lender. In some situations, the evaluation may be required by a government agency; for example, an opinion concerning the legality of the securities registered for sale under the securities laws. In other instances, the evaluation may be required by a third person, such as a purchaser of a business.

[2] A legal evaluation should be distinguished from an investigation of a person with whom the lawyer does not have a client-lawyer relationship. For example, a lawyer retained by a purchaser to analyze a vendor?s title to property does not have a client-lawyer relationship with the vendor. So also, an investigation into a person?s affairs by a government lawyer, or by special counsel employed by the government, is not an evaluation as that term is used in this Rule. The question is whether the lawyer is retained by the person whose affairs are being examined. When the lawyer is retained by that person, the general rules concerning loyalty to client and preservation of confidences and secrets apply, which is not the case if the lawyer is retained by someone else. For this reason, it is essential to identify the person by whom the lawyer is retained. This should be made clear not only to the person under examination, but also to others to whom the results are to be made available.

Duties Owed to Third Person and Client

[3] When the evaluation is intended for the information or use of a third person, a legal duty to that person may or may not arise. That legal question is beyond the scope of this Rule. However, since such an evaluation involves a departure from the normal client-lawyer relationship, careful analysis of the situation is required. The lawyer must be satisfied as a matter of professional judgment that making the evaluation is compatible with other functions undertaken in behalf of the client. For example, if the lawyer is acting as advocate in defending the client against charges of fraud, it would normally be incompatible with that responsibility for the lawyer to perform an evaluation for others concerning the same or a related transaction. Assuming no such impediment is apparent, however, the lawyer should advise the client of the implications of the evaluation, particularly the lawyer?s responsibilities to third persons and the duty to disseminate the findings.

Access to and Disclosure of Information

[4] The quality of an evaluation depends on the freedom and extent of the investigation upon which it is based. Ordinarily a lawyer should have whatever latitude of investigation seems necessary as a matter of professional judgment. Under some circumstances, however, the terms of the evaluation may be limited. For example, certain issues or sources may be categorically excluded, or the scope of search may be limited by time constraints or the noncooperation of persons having relevant information. Any such limitations that are material to the evaluation should be described in the report. If after a lawyer has commenced an evaluation, the client refuses to comply with the terms upon which it was understood the evaluation was to have been made, the lawyer?s obligations are determined by law, having reference to the terms of the client?s agreement and the surrounding circumstances. In no circumstances is the lawyer permitted to knowingly make a false statement of material fact or law in providing an evaluation under this Rule. See Rule 4.1.

Obtaining Client?s Informed Consent

[5] Confidences and secrets are protected by Rule 1.6. In many situations, providing an evaluation to a third party poses no significant risk to the client; thus, the lawyer may be impliedly authorized to disclose confidences and secrets necessary to carry out the representation. See Rule 1.6(a). Where, however, it is reasonably likely that providing the evaluation will affect the client?s interests materially and adversely, the lawyer must first obtain the client?s consent after the client has been adequately informed concerning the important possible effects on the client?s interests. See Rules 1.6(a) and 1.0(e).

Financial Auditors? Requests for Information

[6] When a question concerning the legal situation of a client arises at the instance of the client?s financial auditor and the question is referred to the lawyer, the lawyer?s response may be made in accordance with procedures recognized in the legal profession. Such a procedure is set forth in the American Bar Association Statement of Policy Regarding Lawyers? Responses to Auditors? Requests for Information, adopted in 1975.

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REPORTER?S NOTES:

Model Rule 2.3 (2002) sets forth the approach to be taken by lawyers asked to provide evaluations or render legal opinions to third parties. There is no corresponding provision in the Maine Bar Rules, although Model Rule 2.3 (2002) is in accord with the legal opinion practice that has long been customary in Maine.

Lawyers often provide opinion letters concerning a client for the use of third parties. Commonly, these opinion letters are issued in the context of representing a party or parties to a transaction. Rule 2.3 recognizes that a lawyer?s evaluation (opinion) for the use of third parties is an important part of the representation of his or her own client. The Rule provides guidance as to how to discharge such responsibility.

Rule 2.3(a) corresponds to Rule 1.2?s prescription that a ?lawyer may take such action on behalf of the client as impliedly authorized to carry out the representation.? Rule 2.3(c) affirms that unless disclosures of clients? confidences and secrets are authorized, any confidences and secrets relating to the evaluation are protected by Rule 1.6. The Task Force recommended that Rule 2.3(c) include the phrase ?confidences and secrets,? consistent with the recommended formulation in Rule 1.6.

The question of how much investigation a lawyer should conduct before providing a legal opinion is not squarely and thoroughly addressed in Model Rule 2.3. The Task Force noted that lawyers will find guidance with respect to this and related questions in various reports and articles published by the American Bar Association and state bar associations (see e.g., TriBar Opinion Comm., Third Party ?Closing? Opinions, 53 Bus. Law 591 (1998); see generally, The RESTATEMENT (THIRD) of the Law Governing Lawyers cmt a. (2000) (?[c]ustom and practice determining the scope of diligence in represented situations is articulated in bar-association reports, treatises and articles?)).

2.4 Lawyer Serving as Third-Party Neutral

(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer?s role in the matter, the lawyer shall explain the difference between the lawyer?s role as a third-party neutral and a lawyer?s role as one who represents a client.

(c) The role of third party neutral does not create a lawyer-client relationship with any of the parties and does not constitute representation of any of them. The lawyer shall not attempt to advance the interest of any of the parties at the expense of any other party.

(d) The lawyer shall not use any conduct, discussions or statements made by any party in the course of any alternative dispute resolution process to the disadvantage of any party to the process, or, without the informed consent of the parties, to the advantage of the lawyer or a third person.

(e) When acting as a mediator, the lawyer shall undertake such role subject to the following additional conditions:

(1) The lawyer must clearly inform the parties of the nature and limits of the lawyer?s role as mediator and should disclose any interest or relationship likely to affect the lawyer?s impartiality or that might create an appearance of partiality or bias. The parties must consent to the arrangement unless they are in mediation pursuant to a legal mandate.

(2) The lawyer may draft a settlement agreement or instrument reflecting the parties? resolution of the matter but must advise and encourage any party represented by independent counsel to consult with that counsel, and any unrepresented party to seek independent legal advice, before executing it.

(3) The lawyer shall withdraw as mediator if any of the parties so requests, or if any of the conditions stated in this subdivision (e) is no longer satisfied. Upon withdrawal, or upon conclusion of the mediation, the lawyer shall not represent any of the parties in the matter that was the subject of the mediation, or in any related matter.

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COMMENT

[1] Alternative dispute resolution has become a substantial part of the civil justice system. Aside from representing clients in dispute-resolution processes, lawyers often serve as third-party neutrals. A third-party neutral is a person, such as a mediator, arbitrator, conciliator or evaluator, who assists the parties, represented or unrepresented, in the resolution of a dispute or in the arrangement of a transaction. Whether a third-party neutral serves primarily as a facilitator, evaluator or decision-maker depends on the particular process that is either selected by the parties or mandated by a court.

[2] The role of a third-party neutral is not unique to lawyers, although, in some court-connected contexts, only lawyers are allowed to serve in this role or to handle certain types of cases. In performing this role, the lawyer may be subject to court rules or other law that apply either to third-party neutrals generally or to lawyers serving as third-party neutrals. Lawyer-neutrals may also be subject to various codes of ethics, such as the Code of Ethics for Arbitration in Commercial Disputes prepared by a joint committee of the American Bar Association and the American Arbitration Association or the Model Standards of Conduct for Mediators jointly prepared by the American Bar Association, the American Arbitration Association and the Society of Professionals in Dispute Resolution.

[3] Unlike nonlawyers who serve as third-party neutrals, lawyers serving in this role may experience unique problems as a result of differences between the role of a third-party neutral and a lawyer?s service as a client representative. The potential for confusion is significant when the parties are unrepresented in the process. Thus, paragraph (b) requires a lawyer-neutral to inform unrepresented parties that the lawyer is not representing them. For some parties, particularly parties who frequently use dispute-resolution processes, this information will be sufficient. For others, particularly those who are using the process for the first time, more information will be required. Where appropriate, the lawyer should inform unrepresented parties of the important differences between the lawyer?s role as third-party neutral and a lawyer?s role as a client representative, including the inapplicability of the attorney-client evidentiary privilege. The extent of disclosure required under this paragraph will depend on the particular parties involved and the subject matter of the proceeding, as well as the particular features of the dispute-resolution process selected.

[4] A lawyer who serves as a third-party neutral subsequently may be asked to serve as a lawyer representing a client in the same matter. The conflicts of interest that arise for both the individual lawyer and the lawyer?s law firm are addressed in Rule 1.12.

[5] Lawyers who represent clients in alternative dispute-resolution processes are governed by the Rules of Professional Conduct. When the dispute-resolution process takes place before a tribunal, as in binding arbitration (see Rule 1.0(m)), the lawyer?s duty of candor is governed by Rule 3.3. Otherwise, the lawyer?s duty of candor toward both the third-party neutral and other parties is governed by Rule 4.1.

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REPORTER?S NOTES:

Model Rule 2.4 (2002) addresses the professional obligations of a lawyer acting as a third party neutral. This Rule corresponds to, but is somewhat broader than, M. Bar R. 3.4(h), which addresses the obligations of a lawyer who is acting as a mediator. Given the breadth of potential alternative dispute resolution (ADR) services, and given the lack of specific definition among various types of ADR services, the Task Force recommended the adoption of the format and substance of Model Rule 2.4 modified to include the more specific rules related to mediation found in M. Bar R. 3.4(h)(1) - (6).

Rule 2.4(c) and (d) incorporate the specific language found in M. Bar R. 3.4(h)(2) and (d), broadened to apply to all alternative dispute resolution processes. These provisions make clear that a lawyer serving as a neutral does not enter into an attorney-client relationship with any of the parties to the ADR procedure and that a lawyer may not use any conduct, discussions or statements made by any party to the ADR process to the disadvantage of any other parties to such process.

The language set forth in Rule 2.4(e) describing the role and obligations of a lawyer acting as a mediator is derived from M. Bar R. 3.4(h), consistent with Maine Rule of Civil Procedure 16B. The prohibition against a lawyer engaging in the representation of a party who has appeared as part of the ADR process (see M. Bar R. 3.4(h)) is addressed in Model Rule 1.12 (2002).

The Task Force recommended the adoption of Rule 2.4, as set forth above. It incorporates not only the general provisions of the Model Rule (2002), but also elaborates upon them and includes the more specific mediation-related provisions of M. Bar R. 3.4(h).

3.1 Meritorious Claims and Contentions

(a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a non-frivolous basis in law and fact for doing so, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

(b) A lawyer shall not report or threaten to report misconduct to a criminal, administrative or disciplinary authority solely to obtain an advantage in a civil matter.

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COMMENT

[1] The advocate has a duty to use legal procedure for the fullest benefit of the client?s cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law?s ambiguities and potential for change.

[2] The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients? cases and the applicable law and determine that they can make good faith arguments in support of their clients? positions. Such action is not frivolous even though the lawyer believes that the client?s position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.

[3] The lawyer?s obligations under this Rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this Rule.

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REPORTER?S NOTES:

Model Rule 3.1 (2002), addressing the lawyer?s role as an advocate, is substantively consistent with M. Bar R. 3.7(a). Moreover, Rule 3.1 is consistent with the requirements imposed upon a lawyer by the Maine Attorney?s Oath found in 4 M.R.S. § 806, which has been held by the Maine Supreme Judicial Court to impose substantive ethical and legal restrictions on lawyers. Model Rule 3.1 is arguably broader than M. Bar R. 3.7(a), however, in barring lawyers from taking frivolous positions, even if they are not offensive, harassing, or taken with malicious intent. It is not considered frivolous for a party to a proceeding to compel adverse parties to meet their required burdens of proof. After discussion, the Task Force thought this was a positive modification and recommended adoption of Model Rule 3.1 (2002).

3.2 Expediting Litigation

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

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COMMENT

[1] Dilatory practices bring the administration of justice into disrepute. Although there will be occasions when a lawyer properly may seek a postponement for personal reasons, it is not proper for a lawyer to routinely fail to expedite litigation solely for the convenience of the advocates. Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party?s attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.

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REPORTER?S NOTES:

Model Rule 3.2 (2002), prohibiting dilatory practices of lawyers, has no direct analog in the Maine Bar Rules, although it overlaps and is consistent with M. Bar R. 3.6(a)(3) (proscribing a lawyer?s neglect of a legal matter entrusted to him or her). In light of the Maine trial courts? time-focused management of dockets, Model Rule 3.2 will have limited effect on the progress of litigation. However, it remains the lawyer?s obligation to move litigation to conclusion in a timely manner. The Task Force recommended the adoption of Model Rule 3.2 (2002), as written.

3.3 Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) misquote to a tribunal the language of a book, statute, ordinance, rule or decision or, with knowledge of its invalidity and without disclosing such knowledge, cite as authority, a decision that has been overruled or a statute, ordinance or rule that has been repealed or declared unconstitutional;

(3) offer evidence that is false. If a lawyer, the lawyer?s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false, except a lawyer in a criminal matter may not refuse to offer the testimony of a defendant, unless the lawyer knows from the defendant that such testimony is false.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

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COMMENT

[1] This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal. See Rule 1.0(m) for the definition of ?tribunal.? It also applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal?s adjudicative authority, such as a deposition. Thus, for example, paragraph (a)(3) requires a lawyer to take reasonable remedial measures if the lawyer comes to know that a client who is testifying in a deposition has offered evidence that is false.

[2] This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client?s case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate?s duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.

Representations by a Lawyer

[3] An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client?s behalf, and not assertions by the lawyer. Compare Rule 3.1. However, an assertion purporting to be on the lawyer?s own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 1.2(d) not to counsel a client to commit or assist the client in committing a fraud applies in litigation. Regarding compliance with Rule 1.2(d), see the Comment to that Rule. See also the Comment to Rule 8.4(b).

Legal Argument

[4] Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must not knowingly misrepresent pertinent legal authorities.

Offering Evidence

[5] Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows to be false, regardless of the client?s wishes. This duty is premised on the lawyer?s obligation as an officer of the court to prevent the trier of fact from being misled by false evidence. A lawyer does not violate this Rule if the lawyer offers the evidence for the purpose of establishing its falsity.

[6] If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness?s testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false.

[7] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel in criminal cases. In some jurisdictions, however, courts have required counsel to present the accused as a witness or to give a narrative statement if the accused so desires, even if counsel knows that the testimony or statement will be false. The obligation of the advocate under the Rules of Professional Conduct is subordinate to such requirements. See also Comment [9].

[8] The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer?s reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer?s knowledge that evidence is false, however, can be inferred from the circumstances. See Rule 1.0(f). Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.

[9] Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. Offering such proof may reflect adversely on the lawyer?s ability to discriminate in the quality of evidence and thus impair the lawyer?s effectiveness as an advocate. Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client?s decision to testify.

Remedial Measures

[10] Having offered material evidence in the belief that it was true, a lawyer may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer?s client, or another witness called by the lawyer, offers testimony the lawyer knows to be false, either during the lawyer?s direct examination or in response to cross-examination by the opposing lawyer. In such situations or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. In such situations, the advocate?s proper course is to remonstrate with the client confidentially, advise the client of the lawyer?s duty of candor to the tribunal and seek the client?s cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should be done?making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing.

[11] The disclosure of a client?s false testimony can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer cooperate in deceiving the court, thereby subverting the truth-finding process which the adversary system is designed to implement. See Rule 1.2(d). Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer?s advice to reveal the false evidence and insist that the lawyer keep silent. Thus the client could in effect coerce the lawyer into being a party to fraud on the court.

Preserving Integrity of Adjudicative Process

[12] Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so. Thus, paragraph (b) requires a lawyer to take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that a person, including the lawyer?s client, intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding.

Duration of Obligation

[13] A practical time limit on the obligation to rectify false evidence or false statements of law and fact has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.

Ex Parte Proceedings

[14] Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in any ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an exparte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision.

Withdrawal

[15] Normally, a lawyer?s compliance with the duty of candor imposed by this Rule does not require that the lawyer withdraw from the representation of a client whose interests will be or have been adversely affected by the lawyer?s disclosure. The lawyer may, however, be required by Rule 1.16(a) to seek permission of the tribunal to withdraw if the lawyer?s compliance with this Rule?s duty of candor results in such an extreme deterioration of the client-lawyer relationship that the lawyer can no longer competently represent the client. Also see Rule 1.16(b) for the circumstances in which a lawyer will be permitted to seek a tribunal?s permission to withdraw. In connection with a request for permission to withdraw that is premised on a client?s misconduct, a lawyer may reveal information relating to the representation only to the extent reasonably necessary to comply with this Rule or as otherwise permitted by Rule 1.6.

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REPORTER?S NOTES:

Model Rule 3.3 (2002), addressing a lawyer?s obligation to be candid with a tribunal is generally in accord with M. Bar R. 3.7 and with the Maine Attorney?s Oath (4 M.R.S. § 806). With regard to any statement of fact or law, the attorney has a positive obligation to advise the tribunal of the applicable facts and law and not to misrepresent the status of the law or authority being utilized in order to support a legal argument. With some modification, the Task Force recommended the adoption of Model Rule 3.3.

Model Rule 3.3 (2002) subparagraph (a)(1) is substantively consistent with Maine Bar Rules 3.7(a) and (e)(1)(i).

Members of the Task Force observed that Rule 3.3(a)(2) is a substantive departure from the corresponding rule in Maine (M. Bar R. 3.7(e)(2)(i)). Two specific concerns were articulated: (i) the difficulty of determining whether authority is ?directly adverse? and ?controlling,? and (ii) the added burden such a disclosure of adverse authority places on a lawyer as advocate. While the language of the rule requires disclosure of only authority ?known? to the lawyer, some jurisdictions have held that this Rule implies a duty to learn of adverse authority. Moreover, it has not been uniformly clear what is meant by a ?controlling jurisdiction.? This has been held to mean cases that originate from a higher court, as well as cases considered persuasive precedent. The Task Force thought that Model Rule 3.3(a)(2) (2002) placed too ambiguous a burden on attorneys, and thus recommended the adoption of language identical in substance to M. Bar R. 3.7(e)(2)(i) in its place. To avoid any ambiguity with respect to the authority involved, the Task Force recommended the addition of ?rules? and ?ordinances? to the existing text of M. Bar R. 3.7(e)(2)(i).

M. Bar R. 3.3(a)(3) incorporates current M. Bar R. 3.7(e)(1)(i) and (2)(ii). It is also consistent with the specific requirements imposed by 4 M.R.S. § 806 and case law interpreting that statute. Model Rule 3.3(a)(3) provides that reasonable measures to remedy the proffer of materially false evidence include, if necessary, disclosure to a tribunal. Similarly, Model Rule 3.3(b) provides that reasonable measures to remedy criminal or fraudulent conduct relating to a proceeding include, if necessary, disclosure to a tribunal. Model Rule 3.3(c) explicitly states that, under certain clearly specified circumstances, a lawyer?s obligation to disclose to a tribunal, information otherwise protected under Rule 1.6 (Confidentiality of Information) supersedes the lawyer?s obligation of confidentiality under Rule 1.6. The Task Force noted, however, that adoption of Model Rules 3.3(a)(3) and 3.3(b), would resolve an arguable conflict between M. Bar R. 3.6(h)(1) (prohibiting the disclosure of a confidence or secret, without informed written consent of the client, or except as permitted by the Maine Code of Professional Responsibility or as required by law or by order of court) and the Attorney?s Oath (?. . .you will do no falsehood nor consent to the doing of any in court, and that if you know of an intention to commit any, you will give knowledge thereof to the justices of the court or some of them that it may be prevented?). In formulating its recommendation to adopt Model Rules 3.3(a)(3) and 3.3(b), the Task Force recognized the need to balance the interests of client confidentiality with the importance of candor to a tribunal.

Under Model Rule 3.3 subparagraph (c), a lawyer?s obligation of candor applies until the case is concluded. Under M. Bar R. 3.6(h)(4) and (5), however, it was not clear whether a lawyer?s obligation of candor is in force until the conclusion of the case, or whether such obligation ends at the time the lawyer?s representation of the client is terminated.

Model Rule 3.3(d) does not have a direct Maine analog, but is consistent with requirements imposed upon an attorney when dealing with a tribunal. When the attorney is appropriately acting in an ex parte situation, as in an ex parte request for attachment, the lawyer?s obligation of candor to the court includes a recitation of all material facts, regardless of whether or not those facts are adverse to the attorney?s client.

The Task Force recommended that Rule 3.3 be adopted in accordance with the structure of the Model Rule, but modified to reflect the above expressed issues and concerns.

3.4 Fairness to Opposing Party and Counsel

A lawyer shall not:

(a) unlawfully obstruct another party?s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

(d) [Reserved]

(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person?s interests will not be adversely affected by refraining from giving such information.

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COMMENT

[1] The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like. See also Rule 4.4 (Respect for Rights of Third Persons; Inadvertent Disclosure).

[2] Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions makes it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense. Paragraph (a) applies to evidentiary material generally, including data stored electronically. Applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence. In such a case, applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority, depending on the circumstances.

[3] With regard to paragraph (b), it is not improper to pay a witness?s expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee (except for expenses and reimbursement for lost wages) for testifying and that it is improper to pay an expert witness a contingent fee.

[4] Paragraph (f) permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client. See also Rule 4.2.

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REPORTER?S NOTES:

Model Rule 3.4 (2002) sets forth a lawyer?s duties to opposing parties and their counsel in the context of litigation. Rule 3.4 corresponds to and is generally in accord with Maine Bar Rules 3.7(b), 3.7(e)(2)(ii)-(v), and 3.7(g). The Task Force observed that while a lawyer may be subject to professional discipline for offensive behavior in a litigation context, sanctions such as disqualification, exclusion of evidence, and the payment of fines, costs, and attorneys? fees may also be imposed on the lawyer by the judge hearing the matter.

The Task Force observed, in essence, Rule 3.4 recognizes fairness as the linchpin of the adversary process, and requires lawyers behave in a way consistent with that ideal. Such behavior means lawyers may not alter, destroy or conceal evidence, or otherwise obstruct another?s access to evidence; falsify evidence; elicit false testimony or offer unlawful inducement to witnesses; disobey an obligation to a tribunal; engage in misconduct at trial; or ask a non-client to refrain from voluntarily giving relevant information to another (subject to certain noted exceptions). Subsection (d), pertaining to discovery, was omitted because the courts have, under their procedural rules, authority to resolve such claims and to take appropriate action.

Because these dictates are consistent with Maine Bar Rules and practice, the Task Force recommended adoption of Rule 3.4 as written.

3.5 Impartiality and Decorum of the Tribunal

A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror or other tribunal official by means prohibited by law; nor shall a lawyer, directly or indirectly give or lend anything of value to a judge, tribunal official, or employee of a tribunal unless the personal or family relationship between the lawyer and the judge, tribunal official, or employee is such that gifts are customarily given and exchanged;

(b) communicate ex parte with such a person, directly or indirectly, during the proceeding, concerning such proceeding, unless authorized to do so by law or court order;

(c) communicate with a juror or prospective juror after discharge of the jury if:

(1) the communication is prohibited by law or court order;^[2]

(2) the juror has made known to the lawyer a desire not to communicate; or

(3) the communication involves misrepresentation, coercion, duress or harassment; or

(d) engage in conduct intended to disrupt a tribunal; or

(e) fail to reveal promptly to the court knowledge of improper conduct by a juror, prospective juror, or member of the jury pool, or by another toward a juror or member of the jury pool or a member of a juror?s or jury pool member?s family.

Paragraph 3.5(a) does not preclude contributions to election campaigns of public officers.

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COMMENT

[1] Many forms of improper influence upon a tribunal are proscribed by criminal law. Others are specified in the ABA Model Code of Judicial Conduct, with which an advocate should be familiar. A lawyer is required to avoid contributing to a violation of such provisions.

[2] During a proceeding a lawyer may not communicate ex parte with persons serving in an official capacity in the proceeding, such as judges, masters or jurors, unless authorized to do so by law or court order. In particular, in the absence of opposing counsel, a lawyer shall not directly or indirectly communicate with or argue before a judge or tribunal upon the merits of a contested matter pending before such judge or tribunal, except in open court; nor shall the lawyer, without furnishing opposing counsel with a copy thereof, address a written communication to a judge or tribunal concerning the merits of a contested matter pending before such judge or tribunal. Subparagraph (b) does not preclude communications permitted by rule of court. For purposes of subparagraph (b), the term ?opposing counsel? includes a party who has no counsel.

[3] A lawyer may on occasion want to communicate with a juror or prospective juror after the jury has been discharged. The lawyer may do so unless the communication is prohibited by law or a court order (as it is with federal jurors in Maine) but must respect the desire of the juror not to talk with the lawyer. The lawyer may not engage in improper conduct during the communication. At no time shall a lawyer connected with a trial of a case, communicate extra judicially, directly or indirectly, with a juror or anyone the lawyer knows to be a member of the pool from which the jury will be selected, or with any member of such person?s family.

[4] The advocate?s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate?s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge?s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.

[5] The duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition. See Rule 1.0(m).

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REPORTER?S NOTES:

Model Rule 3.5 (2002) is generally in accord with existing Maine law, but is somewhat less specific than the analogous Maine Bar Rules. The corresponding Maine Bar Rules are M. Bar R. 3.7(e)(2)(vi), 3.7(h)(1) and 3.7(h)(2). Because the Task Force thought it was a good idea to offer more explicit guidance on the issue of a lawyer?s obligation to be impartial and his or her responsibility to exercise decorum in the context of appearing before a tribunal, it recommended adoption of Model Rule 3.5 (2002) and its corresponding Comments, as revised to reflect existing Maine law and practice.

The Task Force wanted to draw attention to a clear distinction between state and federal law with respect to the issue of communication with a juror or prospective juror, following such juror?s discharge from the jury. While post-discharge communication is allowed under state law, it is prohibited in Maine under federal law.

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FOOTNOTE

^[2] There is a distinction with respect to communication with a juror or prospective juror, after discharge of the jury panel, under state and federal law in Maine.

3.6 Trial Publicity

A lawyer involved in the prosecution or defense of a criminal matter or in representing a party to a civil cause shall not make or participate in making any extra-judicial statement which poses a substantial danger of interference with the administration of justice.

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COMMENT

[1] It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.

[2] Special rules of confidentiality may validly govern proceedings in juvenile, domestic relations and mental disability proceedings, and perhaps other types of litigation.

[3] The Rule sets forth a basic general prohibition against a lawyer?s making statements that the lawyer knows or should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Recognizing that the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small, the rule applies only to lawyers who are, or who have been involved in the investigation or litigation of a case, and their associates.

[4] [Reserved]

[5] [Reserved]

[6] [Reserved]

[7] [Reserved]

[8] [Reserved]

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REPORTER?S NOTES:

Model Rule 3.6 (2002) addresses the issue of extra judicial speech and sets forth specific limits on out of court public statements by lawyers participating in an investigation or litigation. The Task Force was mindful, however, of the risks associated with predicting the types of speech that may or may not be ultimately prejudicial to a fair trial. Accordingly, the Task Force recommended the adoption of the language found in M. Bar R. 3.7(j) in lieu of Model Rule 3.6 (2002). The recommendation attempts to strike a balance between three competing concerns: (i) the right to a fair trial without prejudicial interference; (ii) the free speech rights of attorneys; and (iii) the public interest in, and right to know about, judicial proceedings.

3.7 Lawyer as Witness

(a) A lawyer shall not act as advocate at a tribunal in which the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may act as advocate in a tribunal in which another lawyer in the lawyer?s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

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COMMENT

[1] Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict-of-interest between the lawyer and client.

Advocate-Witness Rule

[2] The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness. The opposing party has proper objection where the combination of roles may prejudice that party?s rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.

[3] To protect the tribunal, paragraph (a) prohibits a lawyer from simultaneously serving as advocate and necessary witness except in those circumstances specified in paragraphs (a)(1) through (a)(3). Paragraph (a)(1) recognizes that if the testimony will be uncontested, the ambiguities in the dual role are purely theoretical. Paragraph (a)(2) recognizes that where the testimony concerns the extent and value of legal services rendered in the action in which the testimony is offered, permitting the lawyers to testify avoids the need for a second proceeding with new counsel to resolve that issue. Moreover, in such a situation the presiding officer has firsthand knowledge of the matter in issue; hence, there is less dependence on the adversary process to test the credibility of the testimony.

[4] Apart from these two exceptions, paragraph (a)(3) recognizes that a balancing is required between the interests of the client and those of the tribunal and the opposing party. Whether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on whether it is a bench, jury trial, or other proceeding the nature of the case, the importance and probable tenor of the lawyer?s testimony, and the probability that the lawyer?s testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer?s client. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness. The conflict-of-interest principles stated in Rules 1.7, 1.9 and 1.10 have no application to this aspect of the problem.

[5] Because the tribunal is not likely to be misled when a lawyer acts as advocate in a proceeding in which another lawyer in the lawyer?s firm will testify as a necessary witness, paragraph (b) permits the lawyer to do so except in situations involving a conflict-of-interest.

Conflict-of-Interest

[6] In determining if it is permissible to act as advocate in a proceeding in which the lawyer will be a necessary witness, the lawyer must also consider that the dual role may give rise to a conflict-of-interest that will require compliance with Rules 1.7 or 1.9. For example, if there is likely to be substantial conflict between the testimony of the client and that of the lawyer the representation involves a conflict-of-interest that requires compliance with Rule 1.7. This would be true even though the lawyer might not be prohibited by paragraph (a) from simultaneously serving as advocate and witness because the lawyer?s disqualification would work a substantial hardship on the client. Similarly, a lawyer who might be permitted to simultaneously serve as an advocate and a witness by paragraph (a)(3) might be precluded from doing so by Rule 1.9. The problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party. Determining whether or not such a conflict exists is primarily the responsibility of the lawyer involved. If there is a conflict-of-interest, the lawyer must secure the client?s informed consent, confirmed in writing. In some cases, the lawyer will be precluded from seeking the client?s consent. See Rule 1.7. See Rule 1.0(b) for the definition of ?confirmed in writing? and Rule 1.0(e) for the definition of ?informed consent.?

[7] Paragraph (b) provides that a lawyer is not disqualified from serving as an advocate because a lawyer with whom the lawyer is associated in a firm is precluded from doing so by paragraph (a). If, however, the testifying lawyer would also be disqualified by Rule 1.7 or Rule 1.9 from representing the client in the matter, other lawyers in the firm will be precluded from representing the client by Rule 1.10 unless the client gives informed consent under the conditions stated in Rule 1.7.

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REPORTER?S NOTES:

Model Rule 3.7 (2002) is substantively in accord with M. Bar R. 3.4(g)(1), but there are some distinctions. Model Rule 3.7 (2002) resolves the conflict between M. Bar R. 3.4(g)(1) and M. Bar R. 3.5. Model Rule 3.7 (2002) addressed the issue of a lawyer as a witness at a trial. The Task Force recommended the rule?s scope be broadened to address the issue of a lawyer as a witness before a tribunal. See Model Rule 1.0(m).

Model Rule 3.7(a) prohibits a lawyer from acting as an advocate in a proceeding before a tribunal if the lawyer is likely to be a necessary witness, subject to three specific exclusions. In addition to the three exclusions set forth in the Rule, if ordered to do so by the tribunal, it is permissible for a lawyer to testify. Necessary but minor testimony may be given by the lawyer if disqualification of the lawyer as an advocate would result in substantial hardship to the client (see Model Rule 3.7(a)(3)). It may be the case that a judge in a non-jury trial may use different factors to decide whether a lawyer may testify, including but not limited to the factors set forth in Rule 3.4(g)(1)(i). Pursuant to Model Rule 3.7, the onus is on the lawyer to analyze, by balancing the competing interests, whether it is permissible to act as a witness. If, however, a motion to disqualify is filed, the issue of disqualification will be decided by the tribunal. In any event, the issue of whether a lawyer appropriately may act as both an advocate and necessary witness is an issue the lawyer ought to discuss with the client at the outset of the engagement, or at the earliest time it becomes an issue. Model Rule 3.7 only applies to a lawyer?s representation at the adjudicatory hearing, and not to representation at preliminary proceedings (although there may be other grounds for a lawyer?s disqualification at the preliminary stage). (See the rules governing conflicts of interest (Rule 1.7 and Rule 1.9), and the rules governing withdrawal from representation (Rule 1.16).)

The Task Force observed that in contrast to M. Bar R. 3.4(g)(1)(i), Model Rule 3.7 provides a narrower standard for disqualification by including the limitation that the lawyer be a ?necessary? witness. The requirement for the lawyer?s testimony to be ?necessary? means the party moving to disqualify must show that the lawyer?s testimony is relevant, material and unobtainable from other sources. The Task Force thought Rule 3.7 provided a clear articulation of an important rule, and thus recommended adoption as written.

3.8 Special Responsibilities of a Prosecutor

The prosecutor shall:

(a) refrain from prosecuting a criminal or juvenile charge that the prosecutor knows is not supported by probable cause;

(b) make timely disclosure in a criminal or juvenile case to counsel for the defendant, or to a defendant without counsel, of the existence of evidence or information known to the prosecutor after diligent inquiry and within the prosecutor?s possession or control, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment;

(c) refrain from conducting a civil, juvenile, or criminal case against any person whom the prosecutor knows that the prosecutor represents or has represented as a client;

(d) refrain from conducting a civil, juvenile, or criminal case against any person relative to a matter in which the prosecutor knows that the prosecutor represents or has represented a complaining witness.

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COMMENT

[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4.

[2] Subsections (a) and (b) are based on ABA Disciplinary Rule 7-103(A) and (B). Subsections (c) and (d) have evolved from Maine common law.

[2A] The duties of a prosecutor include the duty to make, with reasonable diligence, and within a reasonable time, a reasonable inquiry of any member of the prosecutor?s staff, any employee of an agency of the state or political subdivision that regularly reports to the prosecutor, or has reported in the particular case. The disclosure requirements under subsection (b) are an ongoing duty.

[3] It has long been the case that public prosecutors carry special ethical duties: they have an obligation to seek justice, not just to convict. Prosecutors face ethical obligations not shared by other lawyers, due to their dual role of advocate and government official. As a public officer and government representative vested with special powers and privileges, a prosecutor has corresponding obligations to assure protection of all citizens? rights, including those of criminal defendants.

[4] [Reserved]

[5] [Reserved]

[6] Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate to responsibilities of lawyers and nonlawyers who work for or are associated with the lawyer?s office.

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REPORTER?S NOTES:

Model Rule 3.8, addressing the special responsibilities of a prosecutor corresponds to M. Bar R. 3.7(i)(1)-(4). For the reasons set forth below, the Task Force recommended adoption of the Model Rule 3.8(a), followed by the provisions found in M. Bar R. 3.7(i)(2)-(4).

In connection with its consideration of Rule 3.8, the Task Force consulted with the Advisory Committee on Rules of Criminal Procedure, as well as Maine prosecutors. After consultation and discussion, the Task Force concluded that Model Rule 3.8 imposed restrictions and obligations on prosecutors that could not be easily enforced; indeed, some of the obligations imposed upon prosecutors by the Model rule are not required by substantive law. There was also concern expressed about Model Rule 3.8?s balance of First Amendment free speech rights, and the state?s interest in protecting the rights of the accused.

The Task Force ultimately determined that Model Rule subsections (b)-(f) were unnecessary, and in some cases not appropriate for Maine. M. Bar R. 3.7(i)(1)-(4), governing prosecutors, has worked well and has provided appropriate guidance to prosecutors in Maine. Accordingly, the Task Force recommended the adoption of Rule 3.8, substantively modified as described.

3.9 Advocate in Nonadjudicative Proceedings

A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5, and Rules 4.1 through 4.4. This Rule only applies when a lawyer represents a client in connection with an official hearing or meeting of a governmental agency or a legislative body to which the lawyer or the lawyer?s client is presenting evidence or argument. It does not apply to representation of a client in a negotiation or other bilateral transaction with a governmental agency or in connection with an application for a license or other privilege or the client?s compliance with generally applicable reporting requirements, such as the filing of income-tax returns. Nor does it apply to the representation of a client in connection with an investigation or examination of the client?s affairs conducted by government investigators or examiners.

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COMMENT

[1] In representation before bodies acting in a rule-making or policy-making capacity, such as legislatures, municipal councils, and executive and administrative agencies, lawyers present facts, formulate issues and advance argument in the matters under consideration. The decision-making body should be able to rely on the integrity of the submissions made to it. A lawyer appearing before such a body must deal with it honestly and in conformity with applicable rules of procedure. See Rules 3.3(a) through (c), 3.4(a) through (c) and 3.5.

[2] Lawyers have no exclusive right to appear before nonadjudicative bodies, as they do before a court or other adjudicative bodies. The requirements of this Rule therefore may subject lawyers to regulations inapplicable to advocates who are not lawyers. However, legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts.

[3] [Reserved]

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REPORTER?S NOTES:

Model Rule 3.9 (2002), establishing rules governing attorneys who appear before a legislative body or administrative agency in a nonadjudicative proceeding, has no analog under the Maine Bar Rules which do not distinguish between adjudicative and nonadjudicative proceedings. To address the issue of a lawyer?s obligations in representing a client before a legislative or administrative body, Model Rule 3.9 (2002) establishes an additional rule specific to nonadjudicative proceedings.

Model Rule 3.9 (2002) incorporates by reference the requirements found in Model Rules 3.3, 3.4, 3.5, 4.1, 4.2, 4.3 and 4.4 (other than those that are specific to proceedings before a tribunal). The Task Force thought the more specific approach of Model Rule 3.9 enhances both the clarity and enforceability of a lawyer?s obligation in a nonadjudicative context. The Task Force also thought inclusion of the language found in Model Rule 3.9 Comment [3] in the text of the Rule added clarity. Accordingly, the Task Force recommended adoption of Model Rule 3.9 (2002), with the noted addition.

4.1 Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

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COMMENT

Misrepresentation

[1] A lawyer is required to be truthful when dealing with others on a client?s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client, see Rule 8.4.

Statements of Fact

[2] This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party?s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation.

Crime or Fraud by Client

[3] Under Rule 1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. Paragraph (b) states a specific application of the principle set forth in Rule 1.2(d) and addresses the situation where a client?s crime or fraud takes the form of a lie or misrepresentation. Ordinarily, a lawyer can avoid assisting a client?s crime or fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like. In extreme cases, substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted the client?s crime or fraud. If the lawyer can avoid assisting a client?s crime or fraud only by disclosing this information, then under paragraph (b) the lawyer is required to do so, unless the disclosure is prohibited by Rule 1.6.

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REPORTER?S NOTES:

Model Rule 4.1 (2002) substantively is in accord with M. Bar R. 3.7(b). Both rules prohibit a lawyer from making false statements of material fact or law to third parties. Whereas M. Bar R. 3.7(b) applies only to conduct during litigation, Model Rule 4.1 addresses the issue of truthfulness in statements to others in a broader context. Indeed, this rule regularly is cited as the rule governing the requirement of truthfulness by lawyers in the context of a negotiation. Both Model Rule 4.1 and M. Bar R. 3.7(b) make clear that a false statement must be made ?knowingly? in order for the speaker to violate the rule.

Model Rule 4.1 prohibits both affirmative false statements as well as omissions when there is a duty to speak. False statements and omissions must, however, be material under Rule 4.1. The Task Force observed that this Rule was also in accord with both M. Bar R. 3.2(f)(3) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation) and Model Rule 8.4(c) (stating that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation). Model Rule 4.1(b) recognizes the duty to disclose material facts to avoid assisting a criminal or fraudulent act by a client may be limited by the confidentiality rule found in Model Rule 1.6. The Task Force previously recommended, however, the adoption of Model Rule 1.6, that permits lawyers to reveal confidences and secrets to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm, or financial harm that results from a crime or fraud. The Task Force thought Rule 4.1 was a sensible guide to positive lawyer conduct, and accordingly recommended adoption of the Rule as written.

4.2 Communications With Person Represented by Counsel and Limited Representation

(a) In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. Specific limitations on communications by a prosecutor are contained in (c).

(b) An otherwise unrepresented party to whom limited representation is being provided or has been provided in accordance with Rule 1.2(c) is considered to be unrepresented for purposes of this Rule, except to the extent the limited representation attorney provides other counsel written notice of a time period within which other counsel shall communicate only with the limited representation attorney.

(c) If a prosecutor knows a person is represented with respect to the matter under investigation:

(1) the prosecutor shall not communicate directly with that person absent consent of the other lawyer or a court order; and

(2) The prosecutor shall not extend, through any third person an offer to meet with the prosecutor or an offer to enter into plea negotiations with the prosecutor, or an offer of a plea agreement absent consent of the other lawyer or a court order.

Communications by the prosecutor in the form of advice or instruction to law enforcement agents about a person a prosecutor knows is represented with respect to a matter under investigation are authorized by this Rule and are governed by the substantive law.

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COMMENT

[1] This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounseled disclosure of information relating to the representation.

[2] This Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates. This Rule also provides guidance to attorneys with respect to communications with parties to whom limited representation is being provided or has been provided in accordance with Rule 1.2(c).

[3] The Rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule.

[4] This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4(a). Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. Parties who are represented on a limited representation basis are considered unrepresented for purposes of this Rule, unless written notice of the limited representation is provided to the attorney seeking to communicate with such party.

[5] Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government. Communications authorized by law may also include investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings. When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule.

[6] A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury.

[7] In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization?s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization?s lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4(f). In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 4.4.

[8] The prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. See Rule 1.0(f). Thus, the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.

[9] In the event the person with whom the lawyer communicates is not known to be represented by counsel in the matter, the lawyer?s communications are subject to Rule 4.3.

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REPORTER?S NOTES:

Model Rule 4.2 addresses the issue of communicating with persons represented by counsel. The Rule, in recognizing the importance of the preservation of the lawyer-client relationship, is designed to protect clients against overreaching by other lawyers, and to reduce the likelihood that clients will disclose confidential or damaging information without the advice of their counsel.

Model Rule 4.2 (a) is in accord with M. Bar R. 3.6(f). Because the Task Force thought Rule 4.2(a) was an accurate and concise exposition of the rule currently in force in Maine, it recommended its adoption. In addition, the Task Force recommended inclusion of the second sentence of M. Bar R. 3.6(f), which provides guidance to attorneys in the context of a limited representation and inclusion of new paragraph (c) regarding the actions of prosecutors.

The Task Force considered whether the application of this rule to a ?person? as opposed to a ?party? was overbroad, particularly in the context of law enforcement activities. The consensus of the Task Force was that it was not. Traditional investigative activities of prosecutors are those ?authorized . . . by law.? And this rule is not intended to affect or change present substantive law or practice. However, formal notifications, such as written proffers, to persons known to be represented outside of that context have no legitimate reason to be directed so as to avoid the person?s lawyer.

4.3 Dealing with Unrepresented Person

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer?s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, but may provide legal information to and may negotiate with the unrepresented person. The lawyer may recommend that such unrepresented client secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

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COMMENT

[1] An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. In order to avoid a misunderstanding, a lawyer will typically need to identify the lawyer?s client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. For misunderstandings that sometimes arise when a lawyer for an organization deals with an unrepresented constituent, see Rule 1.13(f).

[2] The Rule distinguishes between situations involving unrepresented persons whose interests may be adverse to those of the lawyer?s client and those in which the person?s interests are not in conflict with the client?s. In the former situation, the possibility that the lawyer will compromise the unrepresented person?s interests is so great that the Rule prohibits the giving of any advice. Whether a lawyer is giving impermissible advice may depend on the experience and sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur. This Rule does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person, or recommending an unrepresented person secure counsel. So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer?s client will enter into an agreement or settle a matter, prepare documents that require the person?s signature and explain the lawyer?s own view of the meaning of the document or the lawyer?s view of the underlying legal obligations.

[2A] This rule is not intended to limit negotiations between a lawyer and an unrepresented person, nor limit information provided by the lawyer to an unrepresented person.

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REPORTER?S NOTES:

Model Rule 4.3 (2002) provides guidance to a lawyer who is dealing on behalf of a client with a person who is not represented by counsel. The Maine Bar Rule that comes closest to addressing the same issues is M. Bar R. 3.6(i), entitled?Avoiding Misreliance.? Both rules attempt to make certain that unrepresented persons are not misled about the lawyer?s role in a matter, and require a lawyer to take affirmative steps to ensure that misunderstandings about a lawyer?s allegiances and duties are rectified. The Task Force thought that Model Rule 4.3?s formulation was clearer and more direct and accordingly recommended the adoption of Model Rule 4.3 (2002) as written.

The Task Force discussed the issues arising when the lawyer?s fee is paid in whole or in part by an unrepresented party, for example as often occurs in a real estate transaction where the financing institution designates counsel whose fees are paid by the purchasing party. It is the lawyer?s responsibility to clarify which party the lawyer is representing, notwithstanding the source of the lawyer?s fee.

4.4 Respect for Rights of Third Persons; Inadvertent Disclosures

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

(b) A lawyer who receives a writing and has reasonable cause to believe the writing may have been inadvertently disclosed and contain confidential information or be subject to a claim of privilege or of protection as trial preparation material:

(1) shall not read the writing or, if he or she has begun to do so, shall stop reading the writing;

(2) shall notify the sender of the receipt of the writing; and

(3) shall promptly return, destroy or sequester the specified information and any copies.

The recipient may not use or disclose the information in the writing until the claim is resolved, formally or informally. The sending or receiving lawyer may promptly present the writing to a tribunal under seal for a determination of the claim.

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COMMENT

[1] Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship. See also Rule 3.4, setting forth rules regarding Fairness to Opposing Party and Counsel.

[2] Paragraph (b) recognizes lawyers sometimes receive writings mistakenly sent or produced by opposing parties or their lawyers. If a lawyer knows or reasonably should know that such a received writing contains confidential information or may be subject to a claim of privilege, this Rule requires that the lawyer not read the writing, and return, sequester or destroy the writing and any copies, making no further use of it. Whether the privileged status of a writing has been waived is a matter of law beyond the scope of these Rules. For purposes of these Rules, ?writing? includes e-mail or other electronic modes of transmission subject to being read or put into readable form (see Rule 1.0(n)).

[3] Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. When a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer. It is not a violation of a duty to a client or of these Rules of Professional Conduct to return a document in such circumstances.

[4] The fact a writing contains metadata does not necessarily mean the sending lawyer intended the metadata be disclosed, notwithstanding the fact the ostensible writing may have been disclosed intentionally. The embedded metadata, if it contains confidential information, or is subject to a claim of privilege or of protection as trial preparation material, may be deemed to be inadvertently disclosed, and thus subject to paragraph (b).

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REPORTER?S NOTES:

Model Rule 4.4(a) (2002) substantively is in accord with M. Bar R. 3.7(a), as well as with the Maine Attorney?s Oath, 4 M.R.S. §806 (stating that, as lawyers, we should not ?wittingly or willingly promote or sue any false, groundless or unlawful suit nor give aid or consent to the same?). The Task Force thought the Model Rule provided a sound articulation of the idea found in M. Bar R. 3.7(a), and thus recommended its adoption.

Model Rule 4.4(b) (2002) addresses a lawyer?s responsibility in the event he or she receives an inadvertently sent writing. The Task Force discussed four alternative formulations of this rule: The Model Rule (2002), the rule in Maine, a version of the rule adopted in New Jersey (the ?New Jersey Rule?), and a rule tracking the approach taken in proposed Federal Civil Procedure Rule 26(b)(5)(B) (Dec. 1, 2006).

The Model Rule, originally adopted in 2002, merely requires the lawyer ?promptly notify the sender? and provides lawyers with no further guidance. While there is no further obligation imposed upon a lawyer under that rule, other law may impose additional obligations. A number of states, including New Jersey, have adopted a rule offering lawyers further guidance. The New Jersey Rule directs an attorney who has received an inadvertently disclosed writing to not read the writing or, if he or she has begun to do so, stop reading, promptly notify and follow the instructions of the sender and make no further use of the writing.

The Task Force also reviewed Federal Civil Procedure Rule 26(b)(5)(B) (Dec. 1, 2006), in light of the language in the New Jersey Rule. The Task Force recognized the approach taken in Federal Civil Procedure Rule 26(b)(5)(B) allows for a case-by-case determination of the effect of disclosure of confidential or protected writings. It represents an attempt to permit parties to use reasonable measures in discovery to protect their privileged communications. It further recognizes when a writing is disclosed, there may be competing views with respect to whether the writing is confidential or privileged. The version of Rule 4.4(b) recommended by the Task Force places the obligation on the receiving party who realizes the disclosure error to stop reading, to notify the producing party, and to return, destroy or sequester it, pursuant to instructions, or to seal it pending resolution of a claim of privilege or protection. The lawyer is not allowed to make any further use of it unless the claim of protection is resolved to allow such further use. The resolution may be accomplished formally (by a tribunal) or informally (through negotiation between the parties). The inclusion of an informal means of resolving the issue of a claim of protection is an acknowledgement that in certain situations, it may not be feasible, financially or otherwise, to involve a tribunal.

The Task Force recommended a formulation of Rule 4.4(b) different from Maine Ethics Opinion No. 172, which has been the governing law in Maine since the Maine Supreme Judicial Court?s decision in Corey v. Norman Hanson & DeTroy, 1999 ME 196, 742 A.2d 933. Corey, held an inadvertently disclosed memorandum protected by the attorney-client privilege should be returned by the receiving attorney to the disclosing attorney, and no further use should be made of it. The Task Force?s recommendation also departs from the practical impact of the rule articulated by the Federal District Court in FDIC v. Singh, 140 F.R.D. 252 (D. Me. 1992) (stating any intentional or inadvertent disclosure of privileged material is an automatic waiver of the attorney-client privilege). In both of these cases, the courts rejected a case-by-case determination of when the inadvertent disclosure of a writing is a waiver of a privilege. The Task Force thought it wise to permit lawyers, who were in dispute with respect to a claim of a writing?s privilege, to seek a neutral third party?s opinion, or to attempt to resolve the issue through less formal means. The Task Force believed, in situations involving inadvertent disclosures, a case-by-case determination would best balance the competing interests of the parties.

The Task Force also recognized the advent of new technologies may alter the nature of some inadvertent disclosures. For example, while a writing may have been intentionally disclosed by a lawyer, the revelation of embedded metadata may rise to the level of an inadvertent disclosure. If such metadata contains confidential information, or is subject to a claim of privilege or of protection as trial preparation material, it is subject to paragraph (b).

The Task Force stressed the importance of making it clear to lawyers admitted in other jurisdictions that the Maine Rule of Professional Conduct 4.4(b), as recommended, is a departure from the 2002 Model Rule. Lawyers who have been practicing in Maine under Maine Ethics Opinion No. 172 must also be made aware that Rule 4.4(b) represents a different approach to dealing with the issue of inadvertently disclosed writings.

5.1 Responsibilities of Partners, Managers, and Supervisors

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

(c) A lawyer shall be responsible for another lawyer?s violation of the Rules of Professional Conduct if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

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COMMENT

[1] Paragraph (a) applies to lawyers who have managerial authority over the professional work of a firm. See Rule 1.0(c). This includes members of a partnership, the shareholders in a law firm organized as a professional corporation, and members of other associations authorized to practice law; lawyers having comparable managerial authority in a legal services organization or a law department of an enterprise or government agency; and lawyers who have intermediate managerial responsibilities in a firm. Paragraph (b) applies to lawyers who have supervisory authority over the work of other lawyers in a firm.

[2] Paragraph (a) requires lawyers with managerial authority within a firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that all lawyers in the firm will conform to the Rules of Professional Conduct. Such policies and procedures include those designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property and ensure that inexperienced lawyers are properly supervised.

[3] Other measures that may be required to fulfill the responsibility prescribed in paragraph (a) can depend on the firm?s structure and the nature of its practice. In a small firm of experienced lawyers, informal supervision and periodic review of compliance with the required systems ordinarily will suffice. In a large firm, or in practice situations in which difficult ethical problems frequently arise, more elaborate measures may be necessary. Some firms, for example, have a procedure whereby junior lawyers can make confidential referral of ethical problems directly to a designated senior partner or special committee. See Rule 5.2. Firms, whether large or small, may also rely on continuing legal education in professional ethics. In any event, the ethical atmosphere of a firm can influence the conduct of all its members and the partners may not assume that all lawyers associated with the firm will inevitably conform to the Rules.

[4] Paragraph (c) expresses a general principle of personal responsibility for acts of another. See also Rule 8.4(a).

[5] Paragraph (c)(2) defines the duty of a partner or other lawyer having comparable managerial authority in a law firm, as well as a lawyer who has direct supervisory authority over performance of specific legal work by another lawyer. Whether a lawyer has supervisory authority in particular circumstances is a question of fact. Partners and lawyers with comparable authority have at least indirect responsibility for all work being done by the firm, while a partner or manager in charge of a particular matter ordinarily also has supervisory responsibility for the work of other firm lawyers engaged in the matter. Appropriate remedial action by a partner or managing lawyer would depend on the immediacy of that lawyer?s involvement and the seriousness of the misconduct. A supervisor is required to intervene to prevent avoidable consequences of misconduct if the supervisor knows that the misconduct occurred. Thus, if a supervising lawyer knows that a subordinate misrepresented a matter to an opposing party in negotiation, the supervisor as well as the subordinate has a duty to correct the resulting misapprehension.

[6] Professional misconduct by a lawyer under supervision could reveal a violation of paragraph (b) on the part of the supervisory lawyer even though it does not entail a violation of paragraph (c) because there was no direction, ratification or knowledge of the violation.

[7] Apart from this Rule and Rule 8.4(a), a lawyer does not have disciplinary liability for the conduct of a partner, associate or subordinate. Whether a lawyer may be liable civilly or criminally for another lawyer?s conduct is a question of law beyond the scope of these Rules.

[8] The duties imposed by this Rule on managing and supervising lawyers do not alter the personal duty of each lawyer in a firm to abide by the Rules of Professional Conduct. See Rule 5.2(a).

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REPORTER?S NOTES:

Model Rule 5.1 (2002) corresponds to M. Bar R. 3.13(a), which was adopted by the Maine Supreme Judicial Court in 1997. M. Bar R. 3.13(a), however, was modeled on the pre-2002 version of Rule 5.1. As part of the Ethics 2000 project, the scope of Rule 5.1 was broadened to address not only the responsibility of law firm partners, but also include as part of the group of responsible lawyers, those lawyers with ?managerial authority.? This clarification, as it was referred to in the ABA Reporter?s Explanation of Changes, recognizes that law is not practiced solely in the context of the traditional law firm partnership; lawyers also organize as professional corporations, they work in corporate and governmental law departments as well as in legal services organizations. The Task Force thought this was an important clarification and recommended adoption of Model Rule 5.1 (2002) as written.

5.2 Responsibilities of a Subordinate Lawyer

(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.

(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer?s reasonable resolution of an arguable question of professional duty.

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COMMENT

[1] Although a lawyer is not relieved of responsibility for a violation by the fact that the lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether a lawyer had the knowledge required to render conduct a violation of the Rules. For example, if a subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate would not be guilty of a professional violation unless the subordinate knew of the document?s frivolous character.

[2] When lawyers in a supervisor-subordinate relationship encounter a matter involving professional judgment as to ethical duty, the supervisor may assume responsibility for making the judgment. Otherwise a consistent course of action or position could not be taken. If the question can reasonably be answered only one way, the duty of both lawyers is clear and they are equally responsible for fulfilling it. However, if the question is reasonably arguable, someone has to decide upon the course of action. That authority ordinarily reposes in the supervisor, and a subordinate may be guided accordingly. For example, if a question arises whether the interests of two clients conflict under Rule 1.7, the supervisor?s reasonable resolution of the question should protect the subordinate professionally if the resolution is subsequently challenged.

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REPORTER?S NOTES:

Model Rule 5.2 (2002) is substantively identical to M. Bar R. 3.13(b), which was modeled upon the previous version of Model Rule 5.2, and adopted in 1997. Accordingly, the Task Force recommended adoption of Model Rule 5.2 (2002) as written.

5.3 Responsibilities Regarding Nonlawyer Assistants

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person?s conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person?s conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for the conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

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COMMENT

[1] Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer?s professional services. A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.

[2] Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that nonlawyers in the firm will act in a way compatible with the Rules of Professional Conduct. See Comment [1] to Rule 5.1. Paragraph (b) applies to lawyers who have supervisory authority over the work of a nonlawyer. Paragraph (c) specifies the circumstances in which a lawyer is responsible for conduct of a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.

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REPORTER?S NOTES:

Model Rule 5.3 (2002) corresponds to M. Bar R. 3.13(c), which was adopted by the Maine Supreme Judicial Court in 1997. As was the case with respect to M. Bar R. 3.13(a), M. Bar R. 3.13(c) was modeled on the pre-2002 version of Rule 5.3. As part of the Ethics 2000 project, the scope of Rule 5.3 (as well as Model Rule 5.1) was broadened to address not only the responsibility of law firm partners with respect to nonlawyer assistants, but also include as part of the group of responsible lawyers, those lawyers with ?managerial authority.? This clarification, as it was referred to in the ABA Reporter?s Explanation of Changes, recognizes that law is not practiced solely in the context of the traditional law firm partnership; lawyers also organize as professional corporations, they work in corporate and governmental law departments as well as in legal services organizations. The Task Force thought this was an important clarification and recommended adoption as written and recommended adoption of Model Rule 5.3 (2002) as written.

5.4 Professional Independence of a Lawyer

(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

(1) an agreement by a lawyer with the lawyer?s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer?s death, to the lawyer?s estate or to one or more specified persons;

(2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer;

(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; provided that the amounts paid to nonlawyer employees in addition to fixed salary,

(i) are not based upon business brought to the law firm by such employees;

(ii) are not based upon services performed by such employees in a particular case; and

(iii) do not constitute the greater part of the total remuneration of such employees;

(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter.

(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.

(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer?s professional judgment in rendering such legal services.

(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or

(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

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COMMENT

[1] The provisions of this Rule express traditional limitations on sharing fees. These limitations are to protect the lawyer?s professional independence of judgment. Where someone other than the client pays the lawyer?s fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer?s obligation to the client. As stated in paragraph (c), such arrangements should not interfere with the lawyer?s professional judgment.

[2] This Rule also expresses traditional limitations on permitting a third party to direct or regulate the lawyer?s professional judgment in rendering legal services to another. See also Rule 1.8(f) (lawyer may accept compensation from a third party as long as there is no interference with the lawyer?s independent professional judgment and the client gives informed consent). This Rule is not intended to apply to a lawyer, in the context of a professional disciplinary case, who is directed by the court as a condition of probation, to be supervised and mentored by a member of the Maine Bar.

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REPORTER?S NOTES:

Model Rule 5.4 (2002) is substantively in accord with M. Bar R. 3.12, although there are some distinctions.

Model Rule 5.4(a)(2) (2002) contemplates the sale of a deceased lawyer?s practice. The Task Force thought that M. Bar R. 3.12(a)(2) was a more realistic and practical directive for lawyers who are winding up a deceased lawyer?s practice. Thus, the Task Force recommended the adoption of the language of the Maine provision.

Model Rule 5.4(a)(3) (2002) tracks the first clause of M. Bar R. 3.12(a)(3). The Task Force thought that the provision setting forth the fee division rules with respect to non-lawyers found in the second clause of M. Bar R. 3.12(a)(3) offered a useful directive and thus recommended its inclusion.

The Task Force, after discussion, agreed that this Rule was not applicable to a lawyer who is directed by the court to be supervised and mentored by another member of the Maine Bar as a condition of disciplinary probation. In such a case, the supervised lawyer may be subject to the professional judgment of the supervising lawyer.

Because the Task Force thought Model Rule 5.4 (2002) was a clear articulation of the Rule addressing the Professional Independence of a Lawyer, it recommended adoption, subject to the noted modifications.

5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law

(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

(b) A lawyer who is not admitted to practice in this jurisdiction shall not:

(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services that arise out of or are reasonably related to the representation of an existing client on a temporary basis in this jurisdiction that:

(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;

(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer?s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or

(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer?s practice in a jurisdiction in which the lawyer is admitted to practice.

(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:

(1) are provided to the lawyer?s employer or its organizational affiliates and are not services for which the forum requires pro hacvice admission; or

(2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

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COMMENT

[1] A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to practice. A lawyer may be admitted to practice law in a jurisdiction on a regular basis or may be authorized by court rule or order or by law to practice for a limited purpose or on a restricted basis. Paragraph (a) applies to unauthorized practice of law by a lawyer, whether through the lawyer?s direct action or by the lawyer assisting another person.

[2] The definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. This Rule does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3.

[3] A lawyer may provide professional advice and instruction to nonlawyers whose employment requires knowledge of the law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in government agencies. Lawyers also may assist independent nonlawyers, such as paraprofessionals, who are authorized by the law of a jurisdiction to provide particular law-related services. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se.

[4] Other than as authorized by law or this Rule, a lawyer who is not admitted to practice generally in this jurisdiction violates paragraph (b) if the lawyer establishes an office or other systematic and continuous presence in this jurisdiction for the practice of law. Presence may be systematic and continuous even if the lawyer is not physically present here. Such a lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. See also Rules 7.1(a) and 7.5(b).

[5] There are occasions in which a lawyer admitted to practice in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction under circumstances that do not create an unreasonable risk to the interests of their clients, the public or the courts. Paragraph (c) identifies four such circumstances. The fact that conduct is not so identified does not imply that the conduct is or is not authorized. With the exception of paragraphs (d)(1) and (d)(2), this Rule does not authorize a lawyer to establish an office or other systematic and continuous presence in this jurisdiction without being admitted to practice generally here.

[6] There is no single test to determine whether a lawyer?s services are provided on a ?temporary basis? in this jurisdiction, and may therefore be permissible under paragraph (c). Services may be ?temporary? even though the lawyer provides services in this jurisdiction on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation.

[7] Paragraphs (c) and (d) apply to lawyers who are admitted to practice law in any United States jurisdiction, which includes the District of Columbia and any state, territory or commonwealth of the United States. The word ?admitted? in paragraph (c) contemplates that the lawyer is authorized to practice in the jurisdiction in which the lawyer is admitted and excludes a lawyer who while technically admitted is not authorized to practice, because, for example, the lawyer is on inactive status.

[8] Paragraph (c)(1) recognizes that the interests of clients and the public are protected if a lawyer admitted only in another jurisdiction associates with a lawyer licensed to practice in this jurisdiction. For this paragraph to apply, however, the lawyer admitted to practice in this jurisdiction must actively participate in and share responsibility for the representation of the client.

[9] Lawyers not admitted to practice generally in a jurisdiction may be authorized by law or order of a tribunal or an administrative agency to appear before the tribunal or agency. This authority may be granted pursuant to formal rules governing admission pro hac vice or pursuant to informal practice of the tribunal or agency. Under paragraph (c)(2), a lawyer does not violate this Rule when the lawyer appears before a tribunal or agency pursuant to such authority. To the extent that a court rule or other law of this jurisdiction requires a lawyer who is not admitted to practice in this jurisdiction to obtain admission pro hac vice before appearing before a tribunal or administrative agency, this Rule requires the lawyer to obtain that authority.

[10] Paragraph (c)(2) also provides that a lawyer rendering services in this jurisdiction on a temporary basis does not violate this Rule when the lawyer engages in conduct in anticipation of a proceeding or hearing in a jurisdiction in which the lawyer is authorized to practice law or in which the lawyer reasonably expects to be admitted pro hac vice. Examples of such conduct include meetings with the client, interviews of potential witnesses, and the review of documents. Similarly, a lawyer admitted only in another jurisdiction may engage in conduct temporarily in this jurisdiction in connection with pending litigation in another jurisdiction in which the lawyer is or reasonably expects to be authorized to appear, including taking depositions in this jurisdiction.

[11] When a lawyer has been or reasonably expects to be admitted to appear before a court or administrative agency, paragraph (c)(2) also permits conduct by lawyers who are associated with that lawyer in the matter, but who do not expect to appear before the court or administrative agency. For example, subordinate lawyers may conduct research, review documents, and attend meetings with witnesses in support of the lawyer responsible for the litigation.

[12] Paragraph (c)(3) permits a lawyer admitted to practice law in another jurisdiction to perform services on a temporary basis in this jurisdiction if those services are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer?s practice in a jurisdiction in which the lawyer is admitted to practice. The lawyer, however, must obtain admission pro hac vice in the case of a court-annexed arbitration or mediation or otherwise if court rules or law so require.

[13] Paragraph (c)(4) permits a lawyer admitted in another jurisdiction to provide certain legal services on a temporary basis in this jurisdiction that arise out of or are reasonably related to the lawyer?s practice in a jurisdiction in which the lawyer is admitted but are not within paragraphs (c)(2) or (c)(3). These services include both legal services and services that nonlawyers may perform but that are considered the practice of law when performed by lawyers.

[14] Paragraphs (c)(3) and (c)(4) require that the services arise out of or be reasonably related to the lawyer?s practice in a jurisdiction in which the lawyer is admitted. A variety of factors evidence such a relationship. The lawyer?s client may have been previously represented by the lawyer, or may be resident in or have substantial contacts with the jurisdiction in which the lawyer is admitted. The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the lawyer?s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction. The necessary relationship might arise when the client?s activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their lawyer in assessing the relative merits of each. In addition, the services may draw on the lawyer?s recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law.

[15] Paragraph (d) identifies two circumstances in which a lawyer who is admitted to practice in another United States jurisdiction, and is not disbarred or suspended from practice in any jurisdiction, may establish an office or other systematic and continuous presence in this jurisdiction for the practice of law as well as provide legal services on a temporary basis. Except as provided in paragraphs (d)(1) and (d)(2), a lawyer who is admitted to practice law in another jurisdiction and who establishes an office or other systematic or continuous presence in this jurisdiction must become admitted to practice law generally in this jurisdiction.

[16] Paragraph (d)(1) applies to a lawyer who is employed by a client to provide legal services to the client or its organizational affiliates, i.e., entities that control, are controlled by, or are under common control with the employer. This paragraph does not authorize the provision of personal legal services to the employer?s officers or employees. The paragraph applies to in-house corporate lawyers, government lawyers and others who are employed to render legal services to the employer. The lawyer?s ability to represent the employer outside the jurisdiction in which the lawyer is licensed generally serves the interests of the employer and does not create an unreasonable risk to the client and others because the employer is well situated to assess the lawyer?s qualifications and the quality of the lawyer?s work.

[17] If an employed lawyer establishes an office or other systematic presence in this jurisdiction for the purpose of rendering legal services to the employer, the lawyer may be subject to registration or other requirements, including assessments for client protection funds and mandatory continuing legal education.

[18] Paragraph (d)(2) recognizes that a lawyer may provide legal services in a jurisdiction in which the lawyer is not licensed when authorized to do so by federal or other law, which includes statute, court rule, executive regulation or judicial precedent.

[19] A lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d) or otherwise is subject to the disciplinary authority of this jurisdiction. See Rule 8.5(a).

[20] In some circumstances, a lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d) may have to inform the client that the lawyer is not licensed to practice law in this jurisdiction. For example, that may be required when the representation occurs primarily in this jurisdiction and requires knowledge of the law of this jurisdiction. See Rule 1.4(b).

[21] Paragraphs (c) and (d) do not authorize communications advertising legal services to prospective clients in this jurisdiction by lawyers who are admitted to practice in other jurisdictions. Whether and how lawyers may communicate the availability of their services to prospective clients in this jurisdiction is governed by Rules 7.1 to 7.5.

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REPORTER?S NOTES:

Model Rule 5.5 (2002), addressing Unauthorized Practice of Law and Multijurisdictional Practice, is an analog to M. Bar R. 3.2(a). Model Rule 5.5, however, goes into much greater detail than the Maine Bar Rule, describing how lawyers may conduct their practice and communicate with persons in states where they are not licensed. Rule 5.5, offering lawyers both clarity and flexibility by specifically outlining practices that are not prohibited, recognizes that such out-of-state contacts and communications have become an increasingly necessary part of many lawyers? home-state legal practices.

Model Rule 5.5 continues to respect each state?s interest in licensing lawyers who practice within its state borders. It also recognizes, however, that the market for legal services is increasingly interstate in nature. Model Rule 5.5 distinguishes between a lawyer seeking to establish a ?systematic and continuous presence? in a state in which he or she is not licensed (conduct that remains prohibited), and a lawyer?s provision of legal services on a ?temporary basis? in an out-of-state jurisdiction. The Task Force thought that Rule 5.5?s recognition of this significant distinction strikes the proper balance between the interests of the public in state licensure of attorneys, and the importance of fostering an increasingly multijurisdictional market for legal services. The Task Force recommended inclusion, however, of the limitation that a lawyer not licensed in Maine may only provide legal services on a temporary basis when such services have a connection to the representation of an existing client.

Model Rule 8.5, addressing states? disciplinary authority over lawyers, is designed to work in tandem with Rule 5.5. Rule 8.5 explicitly recognizes the disciplinary authority of both the state in which a lawyer is licensed, as well as the state in which the conduct occurs (the practice of law). Neither Model Rule 5.5, the Maine Bar Rules, nor Maine statutes explicitly defines what constitutes the?practice of law.? The ABA convened a Task Force on the Model Definition of the Practice of Law in 2002, which developed a ?framework? for states to consider in developing their statutory definitions, but fell short of drafting a definition. Maine law prohibits the unauthorized practice of law without defining it. (See 4 M.R.S. § 807).

The Task Force observed that 4 M.R.S. §§ 801-808 is, in part, inconsistent with Model Rule 5.5. Accordingly, it recommended that the Attorney General?s office, the administrative agency authorized to enforce the prohibition against the unauthorized practice of law, propose conforming amendments to 4 M.R.S. §§ 801-808, in order to rectify the conflict between the statutory provisions and Rule 5.5.

It was the consensus of the Task Force, to quote Maine Professional Ethics Commission in Opinion No. 189, that ?. . . ABA Model Rule 5.5, as a whole, quite accurately reflects historical and widely accepted notions of the limits of multijurisdictional practice and the parameters of the unauthorized practice of law.? Accordingly, the Task Force recommended adoption of Model Rule 5.5 (2002), with noted modifications.

5.6 Restrictions on the Right to Practice

A lawyer shall not participate in offering or making:

(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or

(b) an agreement in which a restriction on the lawyer?s right to practice is part of the settlement of a client controversy.

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ADVISORY NOTE ? AUGUST 2015

While subsection (a) of Rule 5.6 prohibits restrictions on the practice of law, Comment [3] clarifies such restrictions are not prohibited when used in connection with the sale of a practice pursuant to Rule 1.17. The recommended abrogation of Rule 1.17 and adoption of Rule 1.17A, Sale of Law Practice, is not meant to alter this position. Agreements for the sale of all or part of a practice may require the use of covenants not to compete in order to protect the buyer's interest. Such arrangements are still subject to the common law restrictions that Maine courts impose generally on non-competition agreements which prevent such restrictions from being any broader than needed to protect the buyer's legitimate interest.

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COMMENT

[1] An agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer. Paragraph (a) prohibits such agreements except for restrictions incident to provisions concerning retirement benefits for service with the firm.

[2] Paragraph (b) prohibits a lawyer from agreeing not to represent other persons in connection with settling a claim on behalf of a client.

[3] This Rule does not apply to prohibit restrictions that may be included in the terms of the sale of a law practice pursuant to Rule 1.17.

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REPORTER?S NOTES:

Model Rule 5.6 (2002), prohibiting agreements that restrict a lawyer?s right to practice law, is substantively in accord with M. Bar R. 3.2(g). Such agreements may have the effect of limiting the pool of lawyers available to the public, as well as affecting a lawyer?s autonomy and independence. The Task Force thought that Comment [3], recognizing that there may be restrictions attached to the sale of a law practice but such a sale is governed by another rule (Rule 1.17), highlighted an important related issue.

Because Model Rule 5.6 (2002) offers a clear articulation of the rule prohibiting restrictions on the practice of law, the Task Force recommended its adoption.

5.7 Responsibilities Regarding Law-Related Services

(a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided:

(1) by the lawyer in circumstances that are not distinct from the lawyer?s provision of legal services to clients; or

(2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.

(b) The term ?law-related services? denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.

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COMMENT

[1] When a lawyer performs law-related services or controls an organization that does so, there exists the potential for ethical problems. Principal among these is the possibility that the person for whom the law-related services are performed fails to understand that the services may not carry with them the protections normally afforded as part of the client-lawyer relationship. The recipient of the law-related services may expect, for example, that the protection of client confidences, prohibitions against representation of persons with conflicting interests, and obligations of a lawyer to maintain professional independence apply to the provision of law-related services when that may not be the case.

[2] Rule 5.7 applies to the provision of law-related services by a lawyer even when the lawyer does not provide any legal services to the person for whom the law-related services are performed and whether the law-related services are performed through a law firm or a separate entity. The Rule identifies the circumstances in which all of the Rules of Professional Conduct apply to the provision of law-related services. Even when those circumstances do not exist, however, the conduct of a lawyer involved in the provision of law-related services is subject to those Rules that apply generally to lawyer conduct, regardless of whether the conduct involves the provision of legal services. See, e.g., Rule 8.4.

[3] When law-related services are provided by a lawyer under circumstances that are not distinct from the lawyer?s provision of legal services to clients, the lawyer in providing the law-related services must adhere to the requirements of the Rules of Professional Conduct as provided in paragraph (a)(1). Even when the law-related and legal services are provided in circumstances that are distinct from each other, for example through separate entities or different support staff within the law firm, the Rules of Professional Conduct apply to the lawyer as provided in paragraph (a)(2) unless the lawyer takes reasonable measures to assure that the recipient of the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not apply.

[4] Law-related services also may be provided through an entity that is distinct from that through which the lawyer provides legal services. If the lawyer individually or with others has control of such an entity?s operations, the Rule requires the lawyer to take reasonable measures to assure that each person using the services of the entity knows that the services provided by the entity are not legal services and that the Rules of Professional Conduct that relate to the client-lawyer relationship do not apply. A lawyer?s control of an entity extends to the ability to direct its operation. Whether a lawyer has such control will depend upon the circumstances of the particular case.

[5] When a client-lawyer relationship exists with a person who is referred by a lawyer to a separate law-related service entity controlled by the lawyer, individually or with others, the lawyer must comply with Rule 1.8(a).

[6] In taking the reasonable measures referred to in paragraph (a)(2) to assure that a person using law-related services understands the practical effect or significance of the inapplicability of the Rules of Professional Conduct, the lawyer should communicate to the person receiving the law-related services, in a manner sufficient to assure that the person understands the significance of the fact, that the relationship of the person to the business entity will not be a client-lawyer relationship. The communication should be made before entering into an agreement for provision of or providing law-related services, and preferably should be in writing.

[7] The burden is upon the lawyer to show that the lawyer has taken reasonable measures under the circumstances to communicate the desired understanding. For instance, a sophisticated user of law-related services, such as a publicly held corporation, may require a lesser explanation than someone unaccustomed to making distinctions between legal services and law-related services, such as an individual seeking tax advice from a lawyer-accountant or investigative services in connection with a lawsuit.

[8] Regardless of the sophistication of potential recipients of law-related services, a lawyer should take special care to keep separate the provision of law-related and legal services in order to minimize the risk that the recipient will assume that the law-related services are legal services. The risk of such confusion is especially acute when the lawyer renders both types of services with respect to the same matter. Under some circumstances the legal and law-related services may be so closely entwined that they cannot be distinguished from each other, and the requirement of disclosure and consultation imposed by paragraph (a)(2) of the Rule cannot be met. In such a case a lawyer will be responsible for assuring that both the lawyer?s conduct and, to the extent required by Rule 5.3, that of nonlawyer employees in the distinct entity that the lawyer controls complies in all respects with the Rules of Professional Conduct.

[9] A broad range of economic and other interests of clients may be served by lawyers engaging in the delivery of law-related services. Examples of law-related services include providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical or environmental consulting.

[10] When a lawyer is obliged to accord the recipients of such services the protections of those Rules that apply to the client-lawyer relationship, the lawyer must take special care to heed the proscriptions of the Rules addressing conflict-of-interest (Rules 1.7 through 1.11, especially Rules 1.7(a)(2) and 1.8(a), (b) and (f)), and to scrupulously adhere to the requirements of Rule 1.6 relating to disclosure of confidential information. The promotion of the law-related services must also in all respects comply with Rules 7.1 through 7.3, dealing with advertising and solicitation. In that regard, lawyers should take special care to identify the obligations that may be imposed as a result of a jurisdiction?s decisional law.

[11] When the full protections of all of the Rules of Professional Conduct do not apply to the provision of law-related services, principles of law external to the Rules, for example, the law of principal and agent, govern the legal duties owed to those receiving the services. Those other legal principles may establish a different degree of protection for the recipient with respect to confidentiality of information, conflicts of interest and permissible business relationships with clients. See also Rule 8.4 (Misconduct).

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REPORTER?S NOTES:

Model Rule 5.7 (2002), addressing a lawyer?s provision of ?law-related services? is substantively consistent with M. Bar R. 3.2(h). Both rules support the idea that lawyers who perform law related services or operate an ancillary business entity remain subject to the Rules of Professional Conduct, unless the lawyer takes reasonable measures to assure the client that the services provided by the entity are not legal services and that the Rules of Professional Conduct do not apply. Other issues implicated by law-related ancillary businesses are addressed in Model Rule 5.4.

The Task Force recommended adoption of Model Rule 5.7 (2002) as written.

6.1 Voluntary Pro Bono Publico Service

Every lawyer has a professional responsibility to provide legal services to those unable to pay.

Aspirational Goals

In fulfilling this responsibility, the lawyer should provide legal services without fee or expectation of fee to:

(1) persons of limited means; or

(2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and

(3) individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization?s economic resources or would be otherwise inappropriate; or

(4) activities for improving the law, the legal system or the legal profession.

In addition, a lawyer voluntarily should contribute financial support to organizations that provide legal services to persons of limited means.

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COMMENT

[1] Every lawyer, regardless of professional prominence or professional work load, should provide legal services to those unable to pay. While the ABA model rule specifies an annual number of hours each lawyer should provide, Maine lawyers, have created a tradition of delivering a nationally recognized high quantity of pro bono services. Because of this professional ethic, Maine attorneys understand any set standard is insufficient to meet the critical need to provide legal services to those individuals and institutions unable to afford them.

[2] Paragraphs (1) and (2) of these Aspirational Goals prioritize the critical need for legal services that exists among persons of limited means by providing legal services be rendered directly to the disadvantaged or to organizations serving the disadvantaged without fee or expectation of fee. Legal services under these paragraphs consist of a full range of activities, including individual and class representation, the provision of legal advice, legislative lobbying, administrative rule making and the provision of free training or mentoring to those who represent persons of limited means. The variety of these activities should facilitate participation by government lawyers, even when restrictions exist on their engaging in the outside practice of law.

[3] Persons eligible for legal services under paragraphs (1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines utilized by such programs but nevertheless, cannot afford counsel. Legal services can be rendered to individuals or to organizations such as homeless shelters, battered women?s centers and food pantries that serve those of limited means. The term ?governmental organizations? includes, but is not limited to, public protection programs and sections of governmental or public sector agencies.

[4] Services rendered cannot be considered pro bono if an anticipated fee is uncollected, but the award of statutory attorneys? fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section. Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means.

[5] To the extent possible, a lawyer should fulfill the responsibility to perform pro bono services directly to the financially needy through activities described in paragraphs (1) and (2) of the Aspirational Goals. Paragraphs (3) and (4) describe other means to perform pro bono services, although those have a less specific impact on individuals needing legal representation. Constitutional, statutory or regulatory restrictions may prohibit or impede government and public sector lawyers from performing the pro bono services outlined in paragraphs (1) and (2). Accordingly, where those restrictions apply, government and public sector lawyers may fulfill their pro bono responsibility by performing services outlined in paragraphs (3) and (4).

[6] Paragraph (3) includes the provision of certain types of legal services to those whose incomes and financial resources place them above limited means. It also permits the pro bono lawyer to accept a substantially reduced fee for services. Examples of the types of issues that may be addressed under this paragraph are First Amendment claims, Title VII claims and environmental protection claims. Additionally, a wide range of organizations may be represented, including social service, medical research, cultural and religious groups.

[7] Paragraph (3) covers instances in which lawyers agree to and receive a modest fee for furnishing legal services to persons of limited means such as participation in judicare programs and acceptance of court appointments in which the fee is substantially below a lawyer?s usual rate.

[8] Paragraph (4) recognizes the value of lawyers engaging in activities improving the law, the legal system or the legal profession, in addition to providing pro bono representation to individuals serving on bar association committees, serving on boards of pro bono or legal services programs, taking part in Law Day activities, acting as a continuing legal education instructor, mediator or arbitrator and engaging in legislative lobbying to improve the law, the legal system or the profession are a few examples of the many activities that fall within this paragraph.

[9] There may be times when it is not feasible for a lawyer to engage in pro bono services to individuals. At such times a lawyer may discharge the pro bono responsibility by providing financial support to organizations providing free legal services to persons of limited means. Such financial support is equivalent to the value of the hours of service that would have otherwise been provided. In addition, at times it may be more feasible to satisfy the pro bono responsibility collectively, as by a firm?s aggregate pro bono activities.

[10] The efforts of individual lawyers are not enough to meet the need for legal services existing among persons of limited means. Consequently, the government and the profession instituted additional programs to provide those services. Every lawyer should support such programs financially, as well as providing direct pro bono services.

[11] Although this rule does not express a minimum of pro bono legal hours, law firm management and practitioners must not abandon the voluntary commitment to pro bono public service Maine lawyers historically have demonstrated. Being in the national forefront bears with it both honor and continuing duty. Thus, law firms should enable and encourage all lawyers in the firm to provide the pro bono legal services called for by this Rule, and practitioners should exhort each other to satisfy unmet legal needs in direct and creative ways.

[12] The responsibility set forth in this Rule is aspirational and not to be enforced through disciplinary process.

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REPORTER?S NOTES:

Model Rule 6.1 (2002) is substantively in accord with M. Bar R. 2-A, Aspirational Goals for Lawyer Professionalism. The Task Force recognized that Maine lawyers are nationally known for their outstanding commitment to providing pro bono legal services. As such, the Task Force recommended adoption of Model Rule 6.1, with some noted modifications.

The ABA Model Rule specifies fifty (50) hours per year as the amount each lawyer should provide. Because of the high standard for pro bono service Maine lawyers have established, the Task Force thought that any enumeration of hours is unnecessary, and perhaps send the wrong message that there is a specific number of hours of pro bono service that would sufficiently meet the critical legal services need of those individuals and institutions unable to afford them. Accordingly, the Task Force decided not to suggest a specific number of hours.

Model Rule 6.1 (2002) sets forth a staged order of preference for the types of pro bono services to be rendered by lawyers: it prioritizes direct pro bono representation of persons of limited means or pro bono representation to organizations that are designed primarily to address the needs of persons of limited means. The Task Force recognized the compelling need of people of limited means for legal services, but also acknowledged the importance of lawyers? probono service in furtherance of the creation of a framework to support charitable, religious, civic, community, governmental and educational organizations. The Task Force further credited the importance of lawyers? participation in law reform activities. The Task Force believed the prioritized listing of types of pro bono service was important in efforts to address the critical need for legal services for persons with limited means. Thus it recommended adoption of the Model Rule, as modified.

6.2 Accepting Appointments

A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:

(a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law;

(b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or

(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer?s ability to represent the client.

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COMMENT

[1] A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant. The lawyer?s freedom to select clients is, however, qualified. All lawyers have a responsibility to assist in providing pro bono publico service. See Rule 6.1. An individual lawyer fulfills this responsibility by accepting a fair share of unpopular matters or indigent or unpopular clients. A lawyer may also be subject to appointment by a court to serve unpopular clients or persons unable to afford legal services.

Appointed Counsel

[2] For good cause a lawyer may seek to decline an appointment to represent a person who cannot afford to retain counsel or whose cause is unpopular. Good cause exists if the lawyer could not handle the matter competently, see Rule 1.1, or if undertaking the representation would result in an improper conflict-of-interest, for example, when the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer?s ability to represent the client. A lawyer may also seek to decline an appointment if acceptance would be unreasonably burdensome, for example, when it would impose a financial sacrifice so great as to be unjust.

[3] An appointed lawyer has the same obligations to the client as retained counsel, including the obligations of loyalty and confidentiality, and is subject to the same limitations on the client-lawyer relationship, such as the obligation to refrain from assisting the client in violation of the Rules.

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REPORTER?S NOTES:

Model Rule 6.2 (2002), addressing a lawyer?s obligation to accept court appointments, has no direct Maine Bar Rule counterpart (but see M. Bar R. 2-A addressing lawyers? pro bono obligations). The obligation recognized by Rule 6.2 is generally ?analyzed as a derivative of the court?s inherent judicial power.? (See ABA Annotated Model Rules of Professional Conduct, Fifth edition, p. 514). This Rule has been described as ?protecting the court?s own institutional interests as well as those of the individual litigant.? (Id.)

Because the Task Force thought Model Rule 6.2 (2002) was a clear articulation of what has been the practice in Maine, it recommended its adoption as written.

6.3 Membership in Legal Services Organization

A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization:

(a) if participating in the decision or action would be incompatible with the lawyer?s obligations to a client under Rule 1.7; or

(b) where the decision or action could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer.

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COMMENT

[1] Lawyers should be encouraged to support and participate in legal service organizations. A lawyer who is an officer or a member of such an organization does not thereby have a client-lawyer relationship with persons served by the organization. However, there is potential conflict between the interests of such persons and the interests of the lawyer?s clients. If the possibility of such conflict disqualified a lawyer from serving on the board of a legal services organization, the profession?s involvement in such organizations would be severely curtailed.

[2] It may be necessary in appropriate cases to reassure a client of the organization that the representation will not be affected by conflicting loyalties of a member of the board. Established, written policies in this respect can enhance the credibility of such assurances.

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REPORTER?S NOTES:

Model Rule 6.3 (2002) addresses the issues raised when a lawyer serves on the board of directors of a legal services organization. It is designed to neutralize the risk of disqualification as a result of a conflict-of-interest between a lawyer?s clients and the clients of a legal services organization, in order to encourage attorneys to serve on boards of these organizations. This Rule provides a relaxed remedy for what might be considered a conflict-of-interest because board members of legal services organizations are commonly not involved in decisions about particular cases. Rather, such board decisions generally address broad policy issues and general fiscal matters. If a decision of a legal services board is inconsistent or incompatible with a lawyer/board member?s obligations to his or her client under Rule 1.7, however, the lawyer must recuse himself or herself from taking part in such decision. For example, when a policy matter engenders an apparent conflict for a lawyer/board member (such as the establishment of case acceptance priorities), a lawyer is prohibited from participating in such matter. When however, a lawyer/board member represents one party to a conflict and a staff attorney of the legal services organization represents an opposing party, this may result in a classic conflict-of-interest, as described in Rule 1.7(b). In such a case, the conflict can only be cured by the informed consent of both parties.

Although there is no comparable provision under the Maine Bar Rules, the Task Force thought Model Rule 6.3 (2002) offers lawyers useful guidance, and thus recommended its adoption as written.

6.4 Law Reform Activities Affecting Client Interest

A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially affected by a decision in which the lawyer participates, the lawyer shall disclose that fact to the organization, but need not identify the client.

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COMMENT

[1] Lawyers involved in organizations seeking law reform generally do not have a client-lawyer relationship with the organization. Otherwise, it might follow that a lawyer could not be involved in a bar association law reform program that might indirectly affect a client. See also Rule 1.2(b). For example, a lawyer specializing in antitrust litigation might be regarded as disqualified from participating in drafting revisions of rules governing that subject. In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other Rules, particularly Rule 1.7. A lawyer is professionally obligated to protect the integrity of the program by making an appropriate disclosure within the organization when the lawyer knows a private client might be materially affected.

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REPORTER?S NOTES:

Model Rule 6.4 (2002) addresses issues that are analogous to the issues raised by Model Rule 6.3: facilitating lawyers? service on boards of ?law reform organizations.? The Rule recognizes that serving as a member of the board of such an organization can be distinguished from representing it. Accordingly, Rule 6.3 authorizes such service on law reform organization boards, notwithstanding the fact that a reform effort may affect the interests of the lawyer?s clients. Disclosure to the organization is required in the event the board member/lawyer?s clients are materially affected by a decision of the board.

There is no comparable provision under the Maine Bar Rules. Because Model Rule 6.4 (2002) provides beneficial guidance, the Task Force recommended adoption as written.

6.5 Nonprofit and Court-Annexed Limited Legal Services and Programs

(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:

(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer is aware that the representation of the client involves a conflict-of-interest; and

(2) is subject to Rule 1.10 only if the lawyer is aware that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.

(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule.

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COMMENT

[1] Legal services organizations, courts and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services?such as advice or the completion of legal forms?that will assist persons to address their legal problems without further representation by a lawyer. In these programs, such as legal-advice hotlines, advice-only clinics or pro se counseling programs, a client-lawyer relationship is established, but there is no expectation that the lawyer?s representation of the client will continue beyond the limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation. See, e.g., Rules 1.7, 1.9 and 1.10.

[2] A lawyer who provides short-term limited legal services pursuant to this Rule must secure the client?s informed consent to the limited scope of the representation. See Rule 1.2(c). If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel. Except as provided in this Rule, the Rules of Professional Conduct, including Rules 1.6 and 1.9(c), are applicable to the limited representation.

[3] Because a lawyer who is representing a client in the circumstances addressed by this Rule ordinarily is not able to check systematically for conflicts of interest, paragraph (a) requires compliance with Rules 1.7 or 1.9(a) only if the lawyer knows that the representation presents a conflict-of-interest for the lawyer, and with Rule 1.10 only if the lawyer knows that another lawyer in the lawyer?s firm is disqualified by Rules 1.7 or 1.9(a) in the matter.

[4] Because the limited nature of the services significantly reduces the risk of conflicts of interest with other matters being handled by the lawyer?s firm, paragraph (b) provides that Rule 1.10 is inapplicable to a representation governed by this Rule except as provided by paragraph (a)(2). Paragraph (a)(2) requires the participating lawyer to comply with Rule 1.10 when the lawyer knows that the lawyer?s firm is disqualified by Rules 1.7 or 1.9(a). By virtue of paragraph (b), however, a lawyer?s participation in a short-term limited legal services program will not preclude the lawyer?s firm from undertaking or continuing the representation of a client with interests adverse to a client being represented under the program?s auspices. Nor will the personal disqualification of a lawyer participating in the program be imputed to other lawyers participating in the program.

[5] If, after commencing a short-term limited representation in accordance with this Rule, a lawyer undertakes to represent the client in the matter on an ongoing basis, Rules 1.7, 1.9(a) and 1.10 become applicable.

[6] The phrase ?is aware? as used in paragraphs (a) (1) and (2) should be distinguished from the term ?knows? as defined in Rule 1.0: Terminology. ?Knows,? according to the definition, means actual knowledge of the fact in question, which may be inferred from circumstances. In contrast, ?is aware? allows a lawyer, in the limited circumstances described in this Rule, to represent clients without risk of a violation of Rules 1.7, 1.9, 1.10 and 1.11, if the lawyer knows, based on reasonable recollection and information provided by the client in the ordinary course of the consultation, that the representation presents a conflict-of-interest. In such a case, knowledge may not be inferred from circumstances. This is because a lawyer who is representing a client in the circumstances addressed by this Rule is not able to check systematically for conflicts. A conflict-of-interest that would otherwise be imputed to a lawyer because of the lawyer?s association with a firm will not preclude the lawyer from representing a client in a limited services program. Nor will the lawyer?s participation in such a program preclude the lawyer?s firm from undertaking or continuing the representation of clients with interests adverse to a client being represented under the program?s auspices.

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REPORTER?S NOTES:

Model Rule 6.5 (2002) corresponds in substance to M. Bar R. 3.4(j). Both rules address the issue of the application of the rules governing conflicts of interest in the context of limited representation. The general rule providing for limited representation is found in Rule 1.2.

According to the Annotated Rules of Professional Conduct published by the ABA, ?Rule 6.5 was adopted in 2002 in response to concerns that a strict application of the conflict-of-interest rules ?may be deterring lawyers from serving as volunteers in programs [providing] short-term limited legal services under the auspices of a nonprofit organization or a court-annexed program.? In Maine this type of representation is known as ?limited representation.? The Annotation goes on to observe that the rule itself makes no reference to the word ?volunteer.?

The Annotation continues, ?[s]hort-term limited legal services are a subset of the ?limited scope? representation contemplated by Rule 1.2(c); they are limited in duration as well as purpose. Because they are short-term, the reasoning goes, it would be impracticable to require a conflicts check each time legal advice is offered. . . . Under Rule 6.5, the relationship that arises in these settings will be unique: the recipient of the advice will not become a general purpose former client. The lawyer?s brief interaction with this client, in other words, will not come back to disqualify the lawyer from future long-term relationships.?

Because Model Rule 6.5 (2002) is consistent with Maine Bar Rules and practice, the Task Force recommended adoption as written.

7.1 Communications Concerning a Lawyer's Services

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer?s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

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COMMENT

[1] This Rule governs all communications about a lawyer?s services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer?s services, statements about them must be truthful.

[2] Truthful statements that are misleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer?s communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer?s services for which there is no reasonable factual foundation.

[3] An advertisement that truthfully reports a lawyer?s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client?s case. Similarly, an unsubstantiated comparison of the lawyer?s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.

[4] See also Rule 8.4(e) for the prohibition against stating or implying an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.

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REPORTER?S NOTES:

Model Rule 7.1 (2002) prohibits lawyers from making false or misleading communications about the lawyer or the lawyer?s services, including the omission of a fact necessary to make a true statement not misleading. There is no direct analog in the Maine Bar Rules; However, M. Bar R. 3.9(a) prohibits any form of false advertising; and M. Bar R. 3.9(c), prohibits ?improper? public communications that are likely to result in legal action ?merely to harass or maliciously injure another,? or communications that appeal primarily to ?fear, greed, desire for revenge or similar emotions.? Model Rule 7.1 (2002) sets forth a broader prohibition than M. Bar R. 3.9(a) and (c); it covers all false or misleading communications, including advertising permitted by Rule 7.2, whether public or private.

The Task Force believed this rule places a reasonable obligation on lawyers to ensure that their statements about themselves or their legal services are not false or misleading. Because this rule underlines the importance of the integrity of the profession, the Task Force recommended adoption of Model Rule 7.1 as written.

7.2 Advertising

(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.

(b) A lawyer shall not give anything of value to a person for recommending the lawyer?s services except that a lawyer may

(1) pay the reasonable costs of advertisements or communications permitted by this Rule;

(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service operated, sponsored or approved by a bar association or bar regulatory organization;

(3) pay for a law practice in accordance with Rule 1.17; and

(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if

(i) the reciprocal referral agreement is not exclusive, and

(ii) the client is informed of the existence and nature of the agreement.

(c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.

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COMMENT

[1] To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public?s need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching.

[2] This Rule permits public dissemination of information concerning a lawyer?s name or firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer?s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer?s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.

[3] Questions of effectiveness and taste in advertising are matters of subjective judgment. Some jurisdictions have had extensive prohibitions against television advertising, against advertising going beyond specified facts about a lawyer, or against ?undignified? advertising. Television is now one of the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant. Similarly, electronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this Rule. See Rule 7.2-A setting forth Aspirational Goals for Lawyer Advertising.

[4] Neither this Rule nor Rule 7.3 prohibits communications authorized by law, such as notice to members of a class in class action litigation.

Paying Others to Recommend a Lawyer

[5] Lawyers are not permitted to pay others for channeling professional work. Paragraph (b)(1), however, allows a lawyer to pay for advertising and communications permitted by this Rule, including the costs of print directory listings, on-line directory listings, newspaper ads, television and radio airtime, domain-name registrations, sponsorship fees, banner ads, and group advertising. A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client-development services, such as publicists, public-relations personnel, business-development staff and website designers. See Rule 5.3 for the duties of lawyers and law firms with respect to the conduct of nonlawyers who prepare marketing materials for them.

[6] A lawyer may pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A legal service plan is a prepaid or group legal service plan or a similar delivery system that assists prospective clients to secure legal representation. A lawyer referral service, on the other hand, is any organization that holds itself out to the public as a lawyer referral service. Such referral services are understood by laypersons to be consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this Rule only permits a lawyer to pay the usual charges of a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is one that is operated, sponsored or approved by a bar association.

[7] A lawyer who accepts assignments or referrals from a legal service plan or referrals from a lawyer referral service must act reasonably to assure that the activities of the plan or service are compatible with the lawyer?s professional obligations. See Rule 5.3. Legal service plans and lawyer referral services may communicate with prospective clients, but such communication must be in conformity with these Rules. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or a group legal services plan would mislead prospective clients to think that it was a lawyer referral service sponsored by a state agency or bar association. Nor could the lawyer allow in-person, telephonic, or real-time contacts that would violate Rule 7.3.

[8] A lawyer also may agree to refer clients to another lawyer or a nonlawyer professional, in return for the undertaking of that person to refer clients or customers to the lawyer. Such reciprocal referral arrangements must not interfere with the lawyer?s professional judgment as to making referrals or as to providing substantive legal services. See Rules 2.1 and 5.4(c). The lawyer does not violate paragraph (b) of this Rule by agreeing to refer clients to the other lawyer or nonlawyer professional, so long as the reciprocal referral agreement is not exclusive and the client is informed of the referral agreement. Conflicts-of-interest created by such arrangements are governed by Rule 1.7. Reciprocal referral agreements should not be of indefinite duration and should be reviewed periodically to determine whether they comply with these Rules. This Rule does not restrict referrals or divisions of revenues or net income among lawyers within firms comprised of multiple entities.

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REPORTER?S NOTES:

Model Rule 7.2 (2002), recognizing a lawyer?s right to advertise his or her legal services, is substantively in accord with M. Bar R. 3.9(f)(2). Model Rule 7.2 provides a concise framework for recognizing a lawyer?s right to advertise his or her services subject to certain restrictions. Aspirational goals for lawyer advertising content are set forth in Rule 7.2-A.

Because Maine has no ?appropriate regulatory authority? to approve qualified lawyer referral services, the Task Force modified the language in subsection (b)(2) to correspond to the language in M. Bar R. 3.9(f)(2) (?operated, sponsored or approved by a bar association?).

Model Rule Comment [8] suggested a prohibition on referral fees. The Task Force deleted this prohibition consistent with Maine Rule of Professional Conduct 1.5(e) (permitting referral fees under certain circumstances).

Because the Task Force thought Rule 7.2 presented a sound articulation of many of the issues implicated in connection with attorney advertising, it recommended adoption as written, with the noted modifications.

7.2-A Aspirational Goals for Lawyer Advertising

These aspirational goals are intended to provide suggested objectives that all lawyers who engage in advertising their services should be encouraged to achieve in order that lawyer advertising may be more effective and reflect the professionalism of the legal community.

(a) A lawyer should ensure that any advertising that the lawyer communicates or causes to be communicated by publication, broadcast, or other media is informative to potential clients, is presented in an understandable and dignified fashion, and accurately portrays the serious purpose of legal services and our judicial system. When advertising, though not false or misleading, degenerates into undignified and unprofessional presentations, the public is not served, the reputation of the lawyer who advertises may suffer, and the public?s confidence in the legal profession and the judicial system may be harmed. Lawyers who advertise should recognize their obligation to advance the public?s confidence in the legal profession and our system of justice. In furtherance of these goals, lawyers who advertise should:

(1) avoid statements, claims, or comparisons that cannot be objectively substantiated;

(2) avoid representations that demean opposing parties, opposing lawyers, the judiciary, or others involved in the legal process;

(3) avoid crass representations or dramatizations, hawkish spokespersons, slapstick routines, outlandish settings, unduly dramatic music, sensational sound effects, and unseemly slogans that undermine the serious purpose of legal services and the judicial system;

(4) avoid representations to potential clients that suggest promises of results or will create unjustified expectations such as ?guaranteed results? or ?we get top dollar awards?;

(5) clearly identify the use of professional actors or other spokespersons who may not be providing the legal services advertised unless it is readily apparent from the context of the advertisement that the actor or spokesperson does not provide the advertised legal services (e.g., a radio advertisement in which the speaker does not purport to be the lawyer or a member of the firm);

(6) avoid the use of simulated scenes, actors who portray lawyers, clients or participants in the judicial system, and dramatizations unless they are clearly identified as such;

(7) avoid representations that suggest that the ingenuity or prior record of a lawyer, rather than the merits of the claim, are the principal factors likely to determine the outcome of the representation; and

(8) avoid representations designed to appeal to greed, exploit the fears of potential clients, or promote a suggestion of violence.

(b) The responsibilities set forth in this Rule are aspirational and not to be enforced through disciplinary process.

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COMMENTS

[See Reporter?s Notes.]

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REPORTER?S NOTES:

Rule 7.2-A, derived from M. Bar R. 2-A, is not based on or included as part of the Model Rules. The Aspirational Goals in M. Bar R. 2-A were adopted by the Maine Supreme Judicial Court on February 1, 2005 to ?provide assistance to lawyers who seek to know, not what is the minimally acceptable behavior for a lawyer, but rather, what conduct attorneys should aspire to achieve in their efforts to advance the professionalism and credibility of the profession.?^[3] The Rule?s adoption by the Supreme Judicial Court followed a 2002 review of the advertising rules conducted by the Advisory Committee on the Rules of Professional Responsibility, which was charged with the task of recommending whether the advertising rules should be changed, and if so, in what way. The Advisory Committee considered the advertising rules from other jurisdictions. It conducted an open forum for the purposes of soliciting comments from Maine lawyers. The Advisory Committee received a number of comments, and after consideration of these comments, it ultimately concluded, ?. . . the aspirational goals will encourage lawyers who advertise to do so in a dignified and professional manner without infringing on the First Amendment?s protection of commercial speech.?^[4]

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FOOTNOTES

^[3] SEPARATE STATEMENT OF CHIEF JUSTICE SAUFLEY, REGARDING THE COURT'S ADOPTION OF ASPIRATIONAL GOALS FOR LAWYER PROFESSIONALISM, WITH WHOM JUSTICES CLIFFORD, RUDMAN, DANA AND LEVY JOIN, January 12, 2005.

^[4] Letter from Michael A. Nelson, Chair of the Advisory Committee on the Rules of Professional Responsibility, to Chief Justice Saufley, September 25, 2002.

7.3 Direct Contact with Prospective Clients

(a) A lawyer, in person, by live telephone, or by real-time electronic contact, shall not solicit professional employment from a non-commercial client if such solicitation involves or has substantial potential of harassing conduct, coercion, duress, compulsion, intimidation or unwarranted promises of benefits. The prospective client?s sophistication regarding legal matters; the physical, emotional state of the prospective non-commercial client; and the circumstances in which the solicitation is made are factors to be considered when evaluating the solicitation.

(b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if the prospective client has made known to the lawyer a desire not to be solicited by the lawyer.

(c) [Reserved]

(d) Subject to the prohibitions in paragraphs (a) and (b), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.

(e) Subject to the prohibitions in paragraphs (a) and (b), a lawyer may participate in, and announce the availability of, an approved courthouse legal assistance program that offers free representation to unrepresented clients.

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COMMENT

[1] There is a potential for abuse inherent in direct in-person, live telephone or real-time electronic contact by a lawyer with a prospective non-commercial client known to need legal services. These forms of contact between a lawyer and a prospective client potentially subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer?s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.

[2] This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation of prospective clients justifies its prohibition under certain circumstances, particularly since lawyer advertising and written and recorded communication permitted under Rule 7.2 offer alternative means of conveying necessary information to those who may be in need of legal services.

[3] The contents of advertisements and communications permitted under Rule 7.2 can be permanently recorded so that they cannot be disputed and may be shared with others who know the lawyer. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications, in violation of Rule 7.1.

[4] Paragraph (a) is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legal service organizations or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or recommending legal services to its members or beneficiaries.

[5] Even permitted forms of solicitation can be abused. Thus, any solicitation which contains information which is false or misleading within the meaning of Rule 7.1, which involves coercion, duress or harassment within the meaning of Rule 7.3(b)(2), or which involves contact with a prospective client who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of Rule 7.3(b)(1) is prohibited. Moreover, if after sending a letter or other communication to a client as permitted by Rule 7.2 the lawyer receives no response, any further effort to communicate with the prospective client may violate the provisions of Rule 7.3(b).

[6] This Rule is not intended to prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which the lawyer or lawyer?s firm is willing to offer. This form of communication is not directed to a prospective client. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer. Under these circumstances, the activity which the lawyer undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under Rule 7.2.

[7] General announcements by lawyers, including changes in personnel or office location, do not constitute communications soliciting professional employment from a client known to be in need of legal services within the meaning of this Rule.

[8] Paragraph (d) of this Rule permits a lawyer to participate with an organization which uses personal contact to solicit members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any lawyer who would be a provider of legal services through the plan. The organization must not be owned by or directed (whether as manager or otherwise) by any lawyer or law firm that participates in the plan. For example, paragraph (d) would not permit a lawyer to create an organization controlled directly or indirectly by the lawyer and use the organization for the in-person or telephone solicitation of legal employment of the lawyer through memberships in the plan or otherwise. The communication permitted by these organizations also must not be directed to a person known to need legal services in a particular matter, but is to be designed to inform potential plan members generally of another means of affordable legal services. Lawyers who participate in a legal service plan must reasonably assure that the plan sponsors are in compliance with Rules 7.1, 7.2 and 7.3(b). See 8.4(a).

[9] There are several court connected legal assistance programs sponsored by legal aid organizations, bar associations, and others that, with prior approval of a judge or the Administrative Office of the Courts, provide advice to unrepresented individuals at court proceedings. These programs are important to support access to justice for traditionally underrepresented individuals and groups who may not be aware of these assistance programs. Subparagraph (e) clarifies that attorneys participating in these programs may announce their availability to provide assistance before the start of and during court proceedings.

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REPORTER?S NOTES:

Model Rule 7.3 (2002), describing the circumstances under which a lawyer may solicit clients, covers many of the issues addressed by M. Bar R. 3.9(f)(1). The Model Rule?s original formulation, however, categorically prohibits ?in-person, live telephone or real-time electronic contact? with prospective clients. The Task Force discussed the concerns underlying this categorical prohibition: lawyer overreaching or harassing vulnerable prospective clients through direct solicitations. The Task Force ultimately concluded that such concerns were adequately addressed by limiting solicitation to circumstances in which a lawyer could overreach or harass non-commercial clients. Non-commercial prospective clients are those individual clients in need of legal services in non-commercial or personal matters or circumstances.

Model Rule 7.3(c) (2002) requires that all advertising material contain the explicit indication that it is ?Advertising Material.? The purpose of this requirement is to prevent deceptive solicitations. The Task Force believed that the prospective client harassment, deception and lawyer overreaching concerns are amply addressed by the dictates set forth in Model Rules 7.1 and 7.2 (2002). As such, the Task Force concluded, such categorical prohibitions and mandates are unnecessary.

Read in concert with proposed Maine Rules of Professional Conduct 7.1 and 7.2 and the ?Aspirational Goals for Lawyer Advertising Content? (now found in proposed Maine Rule of Professional Conduct 7.2-A), the revised structure and content of Rule 7.3 reflects time tested and accepted professional lawyer advertising and solicitation practices in Maine. Subsection (e), added after full Task Force activity had concluded, clarifies that solicitation of potential clients within a courthouse legal assistance program, is permissible, subject to the limits of subsections (a) and (b). Accordingly, the Task Force recommended its adoption as modified.

7.4 Communication of Field of Practice and Specialization

(a) A lawyer may communicate the fact that the lawyer does or does not practice, concentrate or specialize in particular fields of law.

(b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation ?Patent Attorney? or a substantially similar designation.

(c) A lawyer engaged in Admiralty practice may use the designation ?Admiralty Attorney,? ?Proctor in Admiralty,? or a substantially similar designation.

(d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:

(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the Maine Board of Overseers of the Bar; and

(2) the name of the certifying organization is clearly identified in the communication.

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COMMENT

[1] Paragraph (a) of this Rule permits a lawyer to indicate areas of practice in communications about the lawyer?s services. If a lawyer practices only in certain fields, or will not accept matters except in a specified field or fields, the lawyer is permitted to so indicate. A lawyer is generally permitted to state that the lawyer is a ?specialist,? practices a ?specialty,? or ?specializes in? particular fields, but such communications are subject to the ?false and misleading? standard applied in Rule 7.1 to communications concerning a lawyer?s services.

[2] Paragraph (b) recognizes the long-established policy of the Patent and Trademark Office for the designation of lawyers practicing before the Office. Paragraph (c) recognizes that designation of Admiralty practice has a long historical tradition associated with maritime commerce and the federal courts.

[3] Paragraph (d) permits a lawyer to state that the lawyer is certified as a specialist in a field of law if such certification is granted by an organization approved by the Maine Board of Overseers of the Bar. Certification signifies that an objective entity has recognized an advanced degree of knowledge and experience in the specialty area greater than is suggested by general licensure to practice law. Certifying organizations may be expected to apply standards of experience, knowledge and proficiency to insure that a lawyer?s recognition as a specialist is meaningful and reliable. In order to insure that consumers can obtain access to useful information about an organization granting certification, the name of the certifying organization must be included in any communication regarding the certification.

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REPORTER?S NOTES:

Model Rule 7.4 (2002), addressing communication about a lawyer?s concentration or specialty, is substantially in accord with M. Bar R. 3.8. Both rules recognize the positive benefits that flow from a lawyer communicating truthfully to the public about his or her professional expertise. The Task Force, however, recommended that Model Rule 7.4 (2002) be modified to reflect the fact that only the Maine Board of Overseers of the Bar is authorized under Maine law to approve a certifying organization, and to include the addition in subsection (a) of the phrase, ?concentrate or specialize.? See Maine Bar Rule 4(d)(24).

With those modifications, the Task Force recommended adoption of Rule 7.4.

7.5 Firm Names and Letterheads

(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.

(b) A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.

(c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.

(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.

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COMMENT

[1] A firm may be designated by the names of all or some of its members, by the names of retired or deceased members where there has been a continuing succession in the firm?s identity or by a trade name such as the ?ABC Legal Clinic.? A lawyer or law firm may also be designated by a distinctive website address or comparable professional designation. Although the United States Supreme Court has held that legislation may prohibit the use of trade names in professional practice, use of such names in law practice is acceptable so long as it is not misleading. If a private firm uses a trade name that includes a geographical name such as ?Springfield Legal Clinic,? an express disclaimer that it is a public legal aid agency may be required to avoid a misleading implication. It may be observed that any firm name including the name of a deceased partner is, strictly speaking, a trade name. The use of such names to designate law firms has proven a useful means of identification. However, it is misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm, or the name of a nonlawyer.

[2] With regard to paragraph (d), lawyers sharing office facilities, but who are not in fact associated with each other in a law firm, may not denominate themselves as, for example, ?Smith and Jones,? for that title suggests that they are practicing law together in a firm.

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REPORTER?S NOTES:

Model Rule 7.5 (2002) sets forth the general rule that a lawyer may not use a firm name, letterhead, or other professional designation that is false or is designed to mislead. The guiding principle under Rule 7.5 is full and accurate disclosure. The Task Force recommended an explicit addition to Comment [1] permitting the use of a retired or deceased member?s name ?where there has been a continuing succession in the firm?s identity.?

The closest analog in Maine is M. Bar R. 3.9(e), addressing the disclosure by multi-jurisdictional partnerships of jurisdictional limitations in licensing.

Model Rule 7.5 (2002) is consistent with existing Maine practice, but provides explicit needed guidance to lawyers with respect to firm names and letterheads. Accordingly, the Task Force recommended its adoption as written.

7.6 Political Contributions to Obtain Legal Engagements or Appointments by Judges

A lawyer or law firm shall not accept a government legal engagement or an appointment by a judge if the lawyer or law firm makes a political contribution or solicits political contributions for the purpose of obtaining or being considered for that type of legal engagement or appointment.

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COMMENT

[1] Lawyers have a right to participate fully in the political process, which includes making and soliciting political contributions to candidates for judicial and other public office. Nevertheless, when lawyers make or solicit political contributions in order to obtain an engagement for legal work awarded by a government agency, or to obtain appointment by a judge, the public may legitimately question whether the lawyers engaged to perform the work are selected on the basis of competence and merit. In such a circumstance, the integrity of the profession is undermined.

[2] The term ?political contribution? denotes any gift, subscription, loan, advance or deposit of anything of value made directly or indirectly to a candidate, incumbent, political party or campaign committee to influence or provide financial support for election to or retention in judicial or other government office. Political contributions in initiative and referendum elections are not included. For purposes of this Rule, the term ?political contribution? does not include uncompensated services.

[3] Subject to the exceptions below, (i) the term ?government legal engagement? denotes any engagement to provide legal services that a public official has the direct or indirect power to award; and (ii) the term ?appointment by a judge? denotes an appointment to a position such as referee, commissioner, special master, receiver, guardian or other similar position that is made by a judge. Those terms do not, however, include (a) substantially uncompensated services; (b) engagements or appointments made on the basis of experience, expertise, professional qualifications and cost following a request for proposal or other process that is free from influence based upon political contributions; and (c) engagements or appointments made on a rotational basis from a list compiled without regard to political contributions.

[4] The term ?lawyer or law firm? includes a political action committee or other entity owned or controlled by a lawyer or law firm.

[5] Political contributions are for the purpose of obtaining or being considered for a government legal engagement or appointment by a judge if, but for the desire to be considered for the legal engagement or appointment, the lawyer or law firm would not have made or solicited the contributions. The purpose may be determined by an examination of the circumstances in which the contributions occur. For example, one or more contributions that in the aggregate are substantial in relation to other contributions by lawyers or law firms, made for the benefit of an official in a position to influence award of a government legal engagement, and followed by an award of the legal engagement to the contributing or soliciting lawyer or the lawyer?s firm would support an inference that the purpose of the contributions was to obtain the engagement, absent other factors that weigh against existence of the proscribed purpose. Those factors may include among others that the contribution or solicitation was made to further a political, social, or economic interest or because of an existing personal, family, or professional relationship with a candidate.

[6] If a lawyer makes or solicits a political contribution under circumstances that constitute bribery or another crime, Rule 8.4(b) is implicated.

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REPORTER?S NOTES:

Model Rule 7.6 (2002), prohibiting the acceptance of a government legal engagement or a court appointment where the lawyer or the lawyer?s firm has made a political contribution with the purpose of obtaining or being considered for that type of engagement or appointment, is known as the ?pay-to-play? rule for lawyers. As explained by the ABA Section of Business Law:

The practice commonly known as pay-to-play addressed by the Rule is a system whereby lawyers and law firms are considered for or awarded government legal engagements or appointments by a judge only upon their making or soliciting contributions for the political campaigns of officials who are in a position to ?steer? such business their way. The fundamental harm done by a pay-to-play system is the harm that befalls the public when a government official, motivated by campaign contributions, chooses lawyers or law firms that may not be the best qualified to perform legal services on the public?s behalf.^[5]

The closest analog in Maine to Model Rule 7.6 (2002) is M. Bar R. 3.7(h)(1). M. Bar R. 3.7(h)(1) prohibits the giving of gifts to ?a judge, official or employee of a tribunal . . . unless the personal or family relationship between the lawyer and the judge, official or employee is such that gifts are customarily given and exchanged.? This rule is designed to prohibit the influence (or the appearance of influence) of judicial officials. Moreover, 17-A M.R.S. § 605, in prohibiting gifts to public servants (a term defined to include an official of any branch of government) similarly targets behaviors designed to improperly influence public officials. 17-A M.R.S. § 605 provides for criminal sanctions.

Model Rule 7.6 (2002) must be read in concert with Model Rule 3.5 (2002). Pursuant to Rule 3.5, the giving of gifts or loans to a judge, juror, prospective juror or other official is prohibited only if such gift or loan is an attempt to influence such person. Both Model Rules prohibit behaviors designed to improperly influence public officials. As noted in the Comments, the purpose of a gift or contribution may be determined by an examination of the facts and circumstances surrounding the gift or contribution.

Model Rule 7.6 (2002) prohibits election campaign contributions if the purpose is to secure engagements or appointments from elected officials. Because judges in Maine are appointed, rather than elected (except for Probate Judges), this rule only has limited applicability in the context of the judiciary. While M. Bar R. 3.7(h) specifically excepts from its scope, and thus permits, the making of?contributions to the election campaigns of public officers,? contributions for the purpose of influencing public officials are clearly prohibited under Maine law. See 17-A M.R.S. § 605.

The Task Force concluded the Model Rule 7.6 (2002) does not represent a substantive departure from Maine?s practice and rules and thus recommended its adoption.

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FOOTNOTE

^[5] ABA Section of Business Law, Section of State & Local Gov't, Standing Committee on Ethics and Professional Responsibility, Ass'n of Bar of City of New York, Report No. 110 (Feb. 2000), available at http://www.abanet.org/cpr/pay2playreport.html.

8.1 Bar Admission and Disciplinary Matters

An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

(a) knowingly make a false statement of material fact; or

(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

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COMMENT

[1] The duty imposed by this Rule extends to persons seeking admission to the bar as well as to lawyers. Hence, if a person makes a material false statement in connection with an application for admission, it may be the basis for subsequent disciplinary action if the person is admitted, and in any event may be relevant in a subsequent admission application. The duty imposed by this Rule applies to a lawyer?s own admission or discipline as well as that of others. Thus, it is separate misconduct for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer?s own conduct. Paragraph (b) of this Rule also requires correction of any prior misstatement in the matter that the applicant or lawyer may have made and affirmative clarification of any misunderstanding on the part of the admissions or disciplinary authority of which the person involved becomes aware.

[2] This Rule is subject to the provisions of the Fifth Amendment of the United States Constitution and corresponding provisions of relevant state constitutions. A person relying on such a provision in response to a question, however, should do so openly and not use the right of nondisclosure as a justification for failure to comply with this Rule.

[3] A lawyer representing an applicant for admission to the bar, or representing a lawyer who is the subject of a disciplinary inquiry or proceeding, is governed by the rules applicable to the client-lawyer relationship, including Rule 1.6 and, in some cases, Rule 3.3.

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REPORTER?S NOTES:

Model Rule 8.1 (2002) generally corresponds to M. Bar R. 3.2(b). The Task Force discussed the distinction between the term ?knowingly? as used in Rule 8.1(a) and ?should have known,? the term used in M. Bar R. 3.2(b). The Task Force observed that the definition of ?knowingly? in the Terminology Section of the 2002 Model Rules explicitly states that ?a person?s knowledge may be inferred from circumstances.? M. Bar R. 3.2(b) sets forth a objective standard, and Model Rule 8.1(a) (2002) and the Model Rule definition of ?knowingly? present a hybrid standard. The Task Force concluded that, in practice, no meaningful distinction exists.

The Task Force further observed that much of the substance of M. Bar R. 3.2(b)(2) is addressed in the Model Rule 8.1(b) (2002) language. The Task Force noted that the term ?person? is broad enough to cover a false statement by a lawyer?further[ing] the application for admission of another . . . .?

The term ?misleading? as used in M. Bar R. 3.2(b)(1) is captured in Rule 8.1(b) by the term ?misapprehension.?

The Task Force decided not to use the 2002 Model Rules phrase ?professional offense? in Comment [1] because it implies conduct that is akin to criminal conduct. Within the confines of bar discipline, professional misconduct has never been directly or indirectly associated with criminal conduct. The Task Force recommended the term ?misconduct.? With the noted modifications, the Task Force recommended adoption of Model Rule 8.1 (2002).

8.2 Judicial and Legal Officials

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.

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COMMENT

[1] Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.

[2] When a lawyer seeks judicial office, the lawyer should be bound by applicable limitations on political activity.

[3] To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.

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REPORTER?S NOTES:

The Task Force observed that Model Rule 8.2 (2002) and M. Bar R. 3.2(c) are substantively in accord. As such, the Task Force recommended adoption of Model Rule 8.2 (2002) as written.

8.3 Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Maine Rules of Professional Conduct that raises a substantial question as to that lawyer?s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.^[6]

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge?s fitness for office shall inform the appropriate professional authority.^[7]

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in the Maine Assistance Program for Lawyers, or an equivalent peer assistance program approved by a state?s highest court.

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COMMENT

[1] Self-regulation of the legal profession requires that members of the profession inform the appropriate professional authority when they know of a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer?s honesty, trustworthiness or fitness as a lawyer. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.

[2] In order to satisfy the objectives of this Rule, a lawyer may request that a client consent to disclosure where prosecution would not substantially prejudice the client?s interests.

[3] This Rule limits the reporting obligation to those incidents of misconduct that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term ?substantial? refers to the seriousness of the possible misconduct and not the quantum of evidence of which the lawyer is aware. A report should be made to the appropriate professional authority unless some other agency is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.

[4] The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the Rules applicable to the client-lawyer relationship.

[5] Information about a lawyer?s or judge?s misconduct or fitness may be received by a lawyer in the course of that lawyer?s participation in the Maine Assistance Program for Lawyers or an equivalent peer assistance program approved by a state?s highest court. The Rule creating the Maine Assistance Program for Lawyers encourages lawyers and judges to seek treatment through such a program. Conversely, without such an exception, lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public. These Rules do not otherwise address the confidentiality of information received by a lawyer or judge participating in the Maine Assistance Program for Lawyers or an equivalent peer assistance program approved by a state?s highest court; such an obligation, however, may be imposed by the rules of such program or by other law.

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REPORTER?S NOTES:

Model Rule 8.3 (2002) is substantively equivalent to M. Bar R. 3.2(e) and recognizes the obligations stated in the attorney?s oath, 4 M.R.S. § 806.

The Task Force recommended a specific reference to the Maine Assistance Program for Lawyers, as well as a recognition of equivalent programs in other states. In 2002, the Maine Supreme Judicial Court created by Rule the Maine Assistance Program for Lawyers (MAP). MAP was designed to address, on a confidential basis, the issue of lawyer or judge impairment from the effects of chemical dependency or mental conditions that result from disease, disorder, trauma or other infirmity that impairs the ability of a lawyer or judge to practice or serve. The Task Force recognized the importance of encouraging the immediate and continuing help to lawyers and judges who suffer from such impairment.

Finally, for the reasons set forth in the Reporter?s Notes to Rule 8.1, the Task Force recommended the use of the term ?misconduct,? rather than the 2002 Model Rule use of the term ?offense.? With the noted modifications, the Task Force recommended adoption of Model Rule 8.3 (2002) as written.

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FOOTNOTES

^[6] In Maine, the appropriate professional authority will be the Maine Board of Overseers of the Bar, or in certain circumstances, as described in the Maine Rules for Maine Assistance Program for Lawyers, the Maine Assistance Program for Lawyers.

^[7] In Maine, the appropriate professional authority will be the Committee on Judicial Responsibility and Disability, or, in certain circumstances, as described in the Maine Rules for Maine Assitance Program for Lawyers, the Maine Assistance Program for Lawyers.

8.4 Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal or unlawful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Maine Rules of Professional Conduct, the Maine Bar Rules or law; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or law; or

(g) engage in conduct or communication related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity.

(1) "Discrimination" on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity as used in this section means conduct or communication that a lawyer knows or reasonably should know manifests an intention: to treat a person as inferior based on one or more of the characteristics listed in this paragraph; to disregard relevant considerations of individual characteristics or merit because of one or more of the listed characteristics; or to cause or attempt to cause interference with the fair administration of justice based on one or more of the listed characteristics.

(2) "Harassment" on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity as used in this section means derogatory or demeaning conduct or communication and includes, but is not limited to, unwelcome sexual advances, or other conduct or communication unwelcome due to its implicit or explicit sexual content.

(3) "Related to the practice of law" as used in the section means occurring in the course of representing clients; interacting with witnesses, coworkers, court personnel, lawyers, and others while engaged in the practice of law; or operating or managing a law firm or law practice.

(4) Declining representation, limiting one's practice to particular clients or types of clients, and advocacy of policy positions or changes in the law are not regulated by Rule 8.4(g).

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COMMENT

[1] Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyers behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take.

[2] Many kinds of unlawful conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. A lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

[3] Legitimate advocacy does not violate paragraph (d). However, by way of example, a lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Notwithstanding the foregoing, a trial judges finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

[4] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law.

[5] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyers abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.

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REPORTERS NOTES:

Model Rule 8.4 (2002) is substantively equivalent to M. Bar. R. 3.2(f), 3.4(g) and 3.6(g). The Task Force recommended the term unlawful, rather than the 2002 Model Rule terms illegal, and criminal. The Task Force thought that the term unlawful was inclusive of and broader than criminal conduct. It is clear that if a lawyer engaged in criminal conduct, he or she would violate these Rules.

The Task Force observed that conduct that is prejudicial to the administration of justice is one upon which courts and ethics commissions are reluctant to expand. The Task Force was mindful of the various illustrations provided in Maine Professional Ethics Advisory Opinions. For example, the Law Court has found that when a lawyer converts client funds, such conduct is prejudicial to the administration of justice. Because the Task Force thought Model Rule 8.4 (2002) set forth a sound and concise articulation of the rules addressing attorney misconduct, it recommended adoption of Model Rule 8.4 (2002) with the noted modifications.

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Advisory Note - February 2010

When the Maine Rules of Professional Conduct were adopted, they along with the Maine Bar Rules were written or amended to indicate that ethical violations could be found, and disciplinary action initiated, based on the violation of either set of rules. This amendment to Rule 8.4, which was recommended by the Advisory Committee on Professional Responsibility, corrects an oversight in the original rules and clarifies that lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer's behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take.

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Guidance - June 2019

This amendment, which adds new Rule 8.4(g), is intended to dispel uncertainty as to what conduct is prohibited. As with any mandate in a rule or a statute, the extent of enforcement or initiation of formal disciplinary proceedings will depend on the level of intentionality and seriousness of the reported violation.

Response to complaints and disciplinary actions initiated under the new Rule 8.4(g), as with disciplinary actions under the present Maine Rules of Professional Conduct, will be subject to similar reasonable and measured enforcement choices, particularly as experience with the new Rule and Continuing Legal Education programs promote better understanding within the Maine legal community of ethical obligations to achieve compliance with the Rule.

8.5 Disciplinary Authority; Choice of Law

(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer?s conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.

(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:

1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and

2) for any other conduct, the rules of the jurisdiction in which the lawyer?s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer?s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer?s conduct will occur.

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COMMENT

Disciplinary Authority

[1] It is longstanding law that the conduct of a lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction. Extension of the disciplinary authority of this jurisdiction to other lawyers who provide or offer to provide legal services in this jurisdiction is for the protection of the citizens of this jurisdiction. Reciprocal enforcement of a jurisdiction?s disciplinary findings and sanctions will further advance the purposes of this Rule. See, Rules 6 and 22, ABA Model Rules for Lawyer Disciplinary Enforcement. A lawyer who is subject to the disciplinary authority of this jurisdiction under Rule 8.5(a) appoints an official to be designated by this Court to receive service of process in this jurisdiction. The fact that the lawyer is subject to the disciplinary authority of this jurisdiction may be a factor in determining whether personal jurisdiction may be asserted over the lawyer for civil matters.

Choice of Law

[2] A lawyer may be potentially subject to more than one set of rules of professional conduct which impose different obligations. The lawyer may be licensed to practice in more than one jurisdiction with differing rules, or may be admitted to practice before a particular court with rules that differ from those of the jurisdiction or jurisdictions in which the lawyer is licensed to practice. Additionally, the lawyer?s conduct may involve significant contacts with more than one jurisdiction.

[3] Paragraph (b) seeks to resolve such potential conflicts. Its premise is that minimizing conflicts between rules, as well as uncertainty about which rules are applicable, is in the best interest of both clients and the profession (as well as the bodies having authority to regulate the profession). Accordingly, it takes the approach of (i) providing that any particular conduct of a lawyer shall be subject to only one set of rules of professional conduct; (ii) making the determination of which set of rules applies to particular conduct as straightforward as possible, consistent with recognition of appropriate regulatory interests of relevant jurisdictions; and (iii) providing protection from discipline for lawyers who act reasonably in the face of uncertainty.

[4] Paragraph (b)(1) provides that as to a lawyer?s conduct relating to a proceeding pending before a tribunal, the lawyer shall be subject only to the rules of the jurisdiction in which the tribunal sits unless the rules of the tribunal, including its choice of law rule, provide otherwise. As to all other conduct, including conduct in anticipation of a proceeding not yet pending before a tribunal, paragraph (b)(2) provides that a lawyer shall be subject to the rules of the jurisdiction in which the lawyer?s conduct occurred, or, if the predominant effect of the conduct is in another jurisdiction, the rules of that jurisdiction shall be applied to the conduct. In the case of conduct in anticipation of a proceeding that is likely to be before a tribunal, the predominant effect of such conduct could be where the conduct occurred, where the tribunal sits or in another jurisdiction.

[5] When a lawyer?s conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer?s conduct will occur in a jurisdiction other than the one in which the conduct occurred. So long as the lawyer?s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect will occur, the lawyer shall not be subject to discipline under this Rule.

[6] If two admitting jurisdictions were to proceed against a lawyer for the same conduct, they should, applying this rule, identify the same governing ethics rules. They should take all appropriate steps to see that they do apply the same rule to the same conduct, and in all events should avoid proceeding against a lawyer on the basis of two inconsistent rules.

[7] The choice of law provision applies to lawyers engaged in transnational practice, unless international law, treaties or other agreements between competent regulatory authorities in the affected jurisdictions provide otherwise.

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REPORTER?S NOTES:

Model Rule 8.2 (2002) addresses the issue of the appropriate disciplinary authority and choice of law rules. Before the 2002 Model Rule amendments, the Model Rule governing multi-jurisdictional practice was substantially similar to Maine Bar Rules 1(b) and 2(ii). For reasons similar to those supporting the Commission?s 2002 recommendation to modify Model Rule 8.5, the Task Force recommended the adoption of the 2002 changes to Model Rule 8.5. In substance, these changes recognize that the practice of law is increasingly multi-jurisdictional. It may be the case that the jurisdiction with the greatest interest in disciplining a lawyer for improper conduct is a jurisdiction in which the lawyer is not admitted.

With respect to paragraph (b)(2), the choice of law provision, the ABA Reporter?s Explanation of Changes to the 2002 amendments to Model Rule 8.5 reads as follows:

Just as the Commission believes that jurisdictions other than an admitting jurisdiction ought to have the authority to discipline the lawyer . . . the Commission believes that the substantive rules of a jurisdiction other than an admitting jurisdiction should sometimes apply. Having moved away from an undue emphasis on the rules of the admitting jurisdiction, the Commission believes that there is no single test that can be applied to determine the appropriate choice-of-law rule in each case. Rather, the Commission believes that there are two factors that are most important to the determination?the place where the conduct occurred and the place where the predominant effect of the conduct occurs. This approach is not as simple as the [old] . . . Rule, but neither is it as open-ended as in other areas where conflicts of law are an issue. A lawyer who acts reasonably in the face of uncertainty about which jurisdiction?s rules apply will not be subject to discipline.

The Task Force agreed with the approach taken by the 2002 revision to Model Rule 8.5 and recommended adoption of the Model Rule 8.5 (2002) language.

RULE 1. Structure

(a)      Board. The Board is established as the statewide agency to administer the regulation of lawyers. The Board oversees a Grievance Commission as provided in Rule 9; Bar Counsel as provided in Rule 2; a Fee Arbitration Commission as provided in Rule 7; a Professional Ethics Commission as provided in Rule 8; and staff appointed by the Board and/or the Executive Director. The Board is a unitary entity responsible for educational, prosecutorial, and adjudicative functions; however, to avoid unfairness, these functions shall be separated within the agency insofar as practicable. The prosecutorial functions shall be directed by Bar Counsel and performed, insofar as practicable, by Board employees. The adjudicative functions shall be directed by the Board Clerk and performed, insofar as practicable, by Board employees, practicing lawyers, and public members serving on the Board, the Grievance Commission, and the Fee Arbitration Commission. The Board’s administrative and executive functions shall be performed by the Executive Director, who shall report directly to the Board. The Executive Director shall not perform or direct the prosecutorial or adjudicative functions of Bar Counsel or the Board Clerk.

(b)      Appointment. Nine Board members shall be appointed by the Court, three of whom shall be public members appointed on the recommendation of the Governor and six of whom shall be lawyers admitted to practice in Maine. The terms of all members shall be for three years. No member shall serve more than two consecutive three-year terms, except that members may continue to serve until a replacement has been appointed.

(c)      Designation of Officers. The Court shall periodically designate one member of the Board as Chair and another as Vice Chair. The Chair, and in the Chair's absence the Vice Chair, shall perform the duties associated with that office.

(d)      Board Action and Recusal.

(1)     Quorum. Five members shall constitute a quorum for any meeting of the Board. The Board may act through the concurrence or vote of a majority of the members present at a duly constituted meeting. After reasonable notice to all members and with the consent of all participating members, a meeting may be duly constituted and action taken by means of a telephone or video conference or other communications equipment enabling all members participating in the meeting to hear one another. Meetings of the Board shall be open to the public, except those portions of the meetings wherein the Board (1) consults with counsel pertaining to contemplated or pending litigation, or proceedings pending before the Grievance Commission, the Fee Arbitration Commission, and/or the Court; (2) considers matters pertaining to the personnel of the Board and/or appointments to the Board; or (3) considers other matters made confidential or private by these Rules, court order, or law.

(2)    Recusal. If a Grievance Commission panel finds probable cause for a public disciplinary hearing or authorizes Bar Counsel to file an Information and the respondent attorney is a member of the Board, the remaining members of the Board shall determine whether the nature of the allegations should disqualify that member from performing Board responsibilities until such time as the pending matter is concluded.

(3)    Representation Prohibition. No member of the Board may be legal counsel for a party in any proceedings under these Rules. When a member of his or her firm serves as legal counsel for a party in any proceeding under these Rules, the Board member shall be ineligible to perform Board responsibilities relating to that proceeding. The Board member shall remain eligible to perform Board responsibilities unrelated to that proceeding, provided that the Board member is timely screened from any participation in or relating to that proceeding, at both the Board member's firm and the Board.

(4)    Board members may not testify voluntarily in any proceedings under these Rules or as an expert witness in any court proceeding in the field of ethics.

(5)    Board members may not serve as probation monitors, and shall be recused from participating in any matter where a member of the Board member's firm is serving as a probation monitor.

(e)      Compensation. Board and Commission members shall receive no compensation for their services but may be reimbursed for travel and other expenses incidental to the performance of their duties.

(f)      Expenses and Financial Policies. Board expenses shall be paid out of the funds collected under these Rules. The Board may, subject to the Courts approval, adopt financial policies and procedures that are not inconsistent with these Rules.

(g)      Roster of Lawyers. The Board shall maintain current information relating to all lawyers admitted to the Maine Bar including, but not limited to, the following:

(1)     full name and all names under which the lawyer has been admitted or practiced;

(2)     date of birth;

(3)    current office address, telephone number, and email address;

(4)    current residence address, telephone number, and email address;

(5)    date of admission to the Maine Bar;

(6)    registration status and the date of any transfer to or from a status;

(7)    social security or federal identification number;

(8)    other jurisdictions in which the lawyer is admitted and date of admission;

(9)    location and account numbers in which clients funds are held by the lawyer;

(10)    nature, date, and place of any discipline imposed and any reinstatements in any other jurisdiction;

(11)    whether the lawyer, if engaged in the private practice of law, maintains professional liability insurance (see Rule 4(b)(4));

(12)    if engaged in the private practice of law in Maine, the name of an active status attorney who has consented to serve as a proxy on behalf of the attorney (see Rule 32); and

(13)    the bar number assigned to every admitted lawyer.

         The information submitted pursuant to this rule shall be made available to the public with the exception of information deemed confidential by the Board.

(h)       Powers and Duties. The Board shall have the following powers and duties:

(1)     to propose rules of procedure for lawyer discipline proceedings for promulgation by the Court, and to comment on the enforceability of existing and proposed Maine Rules of Professional Conduct. In furtherance hereof, the Board may establish or designate such commissions, agencies, or persons to assist its study as it shall deem advisable;

(2)    to review periodically with the Court the operation of the Board;

(3)    to enforce attorney compliance with these Rules, the procedures and regulations adopted thereunder, and the Maine Rules of Professional Conduct;

(4)     subject to the Courts approval, to appoint, compensate, and supervise the Bar Counsel and the Executive Director;

(5)    to appoint and compensate other legal, prosecutorial, and administrative staff to assist the Board in its functions;

(6)    to appoint members to the Grievance Commission, Fee Arbitration Commission, and Professional Ethics Commission;

(7)     to inform the public about the existence and operation of the system and the disposition of each matter in which public discipline has been imposed, or a lawyer has been reinstated or readmitted;

(8)     to prepare and file with the Court for approval in May of each year its budget for the next fiscal year, with the Boards recommendation as to the amount of fees to be assessed to members of the bar and ancillary organizations;

(9)     to prepare, approve, and file an Annual Report with the Court;

(10)    to adopt personnel and financial policies and procedures (see Rule 1(f));

(11)    to establish procedures for and supervise the registration of all attorneys admitted to the practice of law and compile and keep current a register for the Court of all persons admitted as members of the Maine Bar, and a record of the death, or termination or suspension of the right of any such person to practice law in Maine;

(12)    to adopt and publish its own rules of procedure and such regulations as are not inconsistent with these Rules;

(13)    to delegate, in its discretion, to the Chair or Vice Chair the power to act for the Board on administrative and procedural matters;

(14)    to furnish to the State Tax Assessor each year the names, addresses, social security or federal identification numbers, and other identifying information of all attorneys registered with the Board as the State Tax Assessor may require;

(15)    to receive and act on applications from organizations for approval to recognize, designate, or certify attorneys admitted to practice in Maine as having expertise in one or more areas of law;

(16)    to perform any adjudicative and/or appellate review functions as defined by these Rules;

(17)    to maintain the confidentiality of matters coming before the Board; and

(18)    any other powers and duties as are not inconsistent with these Rules.

(i)      Destruction of Confidential Documents. Upon conclusion of service, members shall take reasonable steps to destroy all documents, in paper or electronic format, relating to the proceedings of the Board and subject to the confidentiality provisions of these Rules.

(j)      Executive Director. The Executive Director shall be a lawyer admitted to practice in Maine.

(1)     Responsibilities. Under the direction and supervision of the Board, the Executive Director is responsible for

         (A) the administrative functions of the Board, including but not limited to, the day to day operation of the Board, the management and supervision of all Board employees, the keeping of the Board’s accounts and financial reports, and the keeping of a current register of all persons admitted to the Maine Bar; and

         (B) the executive functions of the Board, including but not limited to, the execution of the Board’s mission and policies to promote the competent practice of law through regulation and education, and the provision of general and legal advice to the Board.

(2)     Ethical Obligations. The Executive Director shall maintain the confidentiality of matters coming to the Board. The Executive Director shall not engage in the private practice of law or participate in activities that would appear, to a reasonable person, to undermine the Executive Director’s integrity. The Executive Director may lecture at continuing legal education seminars on topics relating to ethics or professionalism provided that the Executive Director shall do so without compensation and may render advisory opinions, along with Bar Counsel, pursuant to Rule 2(c). The Executive Director may be reimbursed for travel and ancillary expenses.

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Advisory Note - October 2020

Two sentences are added at the end of Rule 1(a) to clarify the responsibilities of the Board, the Executive Director, the Board Clerk, and Bar Counsel.

New Rule 1(j) is added to specify that the Executive Director must be a lawyer admitted to practice in Maine and to summarize the Executive Director’s responsibilities and ethical obligations.

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Reporters Notes - June 2015

Rule 1(a) establishes the structure, and addresses generally the powers and duties, of the Board of Overseers of the Bar. It is based on Model Rule 2(A), and is in accord with former Maine Bar Rule 4(a). The rule establishes the Board as the agency charged with assisting the Court in the exercise of its inherent power to supervise the Maine Bar.

Rule 1(b) is based on Model Rule 2(B), and is consistent with former Maine Bar Rule 4(a) and (b). The rule continues Maines practice of appointment by the Court for attorney members, and appointment by the Court on the recommendation by the Governor for the public members.

Rule 1(c) is based on Model Rule 2(C), and former Maine Bar Rule 4(a). The committee adopted the existing Maine practice as to appointment by the Court of a Chair and Vice-Chair rather than adopting the Model Rules recommendation that the Board members elect their own Chair and Vice Chair.

Rule 1(d) is based on Model Rule 2(D), and former Maine Bar Rule 4(c). The committee adopted the language of former Maine Bar Rule 4(c) in its entirety.

Rule 1(e) is based on Model Rule 2(E). There is no direct analogue in the former Maine Bar Rules, and the committee adopted the language of Model Rule 2(E).

Rule 1(f) is based on Model Rule 5 and former Bar Rules 4(d)(1), 10(e), and 10(f). The rule is substantively consistent with current Maine practice.

Rule 1(g) is based on Model Rule 7. While there is no direct equivalent in the former Maine Bar Rules, the analogous provisions are contained in Rule 6(a) and (f) of those Rules. The committee felt that, due to the aging of the former Maine Bar, it was important that the registration system include information about an attorneys proxy who will be able to take over an attorneys practice in the event that the attorney dies or becomes incapacitated.

Rule 1(h) is based on Model Rule 2(G) and former Maine Bar Rule 4(d). The Rules are largely consistent. However, the committee felt the Board should not be involved in the appellate function of reviewing a panels determination. Consequently, the committee rejected the "appellate review function" of the Board envisioned by Model Rule 2(G)(4) and its equivalent contained in former Maine Bar Rule 7.1(e)(5)(A) to (C). Otherwise, the overall Boards duties and powers remain largely the same as under former Maine Bar Rule 4(d).

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.

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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.

RULE 15. Service and Notice

Service of a petition, or of any other papers or notices required by these Rules, shall be sufficient if made by first class mail addressed to the attorney?s office and/or residence address as provided by the attorney in the registration materials as required by Rule 4. Service is complete upon mailing, except as otherwise provided by these Rules. The Board may, in its discretion, use additional methods of service and notice (e.g. e-mail or telephone communication) upon learning that previous attempts at providing service or notice in the manner required by this rule have failed.

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Rule 15 ? Reporter?s Notes

Recognizing the obligation of attorneys to keep the Board apprised of their current contact information, Rule 15 limits the service of documents within these rules to the attorney?s office or residence address. Service by certified or registered mail or pursuant to Rule 4 of the Maine Rules of Civil Procedure is not required.

RULE 16. Subpoena Power

(a) Investigatory Subpoenas. Before formal charges have been filed, Bar Counsel may compel by subpoena the attendance of witnesses or the respondent, and the production of pertinent books, papers, and documents, in accordance with Rule 45 of the Maine Rules of Civil Procedure.

(b) Subpoenas for Hearing. After formal charges are filed, Bar Counsel or respondent may, in accordance with Rule 45 of the Maine Rules of Civil Procedure, compel by subpoena the attendance of witnesses or the respondent and the production of pertinent books, papers, and documents at a hearing under these Rules.

(c) Enforcement of Subpoenas. The Court may, upon proper application, enforce the attendance and testimony of any witnesses or the respondent and the production of any documents subpoenaed under this rule.

(d) Quashing Subpoena. Any person to whom a subpoena has been issued under this rule may object to the subpoena, or may move to quash or modify the subpoena, as set forth in Rule 45 of the Maine Rules of Civil Procedure, and may appear through legal counsel for that purpose. Any objection to a subpoena so issued, or any motion to quash or modify such a subpoena, shall be heard and determined by the chair of the Commission panel before which the matter is pending or by the court wherein enforcement of the subpoena is being sought.

(e) Witnesses and Fees. Subpoena and witness fees and mileage shall be the same as those provided for proceedings in the Court.

(f) Subpoena Pursuant to Law of Another Jurisdiction. Whenever a subpoena is sought in Maine pursuant to the law of another jurisdiction for use in lawyer discipline proceedings, and where the issuance of the subpoena has been duly approved under the law of the other jurisdiction, the chair (or, in the Chair?s absence, the Vice Chair) of the Commission, upon good cause shown, may issue a subpoena in accordance with Rule 45 of the Maine Rules of Civil Procedure.

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Reporter?s Notes ? June 2015

Rule 16, governing subpoenas is a slight variation of Model Rule 14 and broader in scope than former Maine Bar Rule 7.3(m)(1). This Rule gives Bar Counsel more subpoena powers if a respondent or a third party does not cooperate with Bar Counsel?s investigation. In addition, the revised rule, unlike former Maine Bar Rule 7.3(m)(1), does not limit sanctions to situations where a subpoenaed witness fails to appear without reasonable excuse. The committee felt that this was a slight improvement on current practice, and adopted that language from Model Rule 14. The committee also concluded that eliminating the reference in the Maine Rule to subpoenas duces tecum, and replacing it instead with a specific description of subpoenas for ?the production of pertinent books, papers, and documents? as set forth in the Model Rule, was clearer.

RULE 3. Central Intake

(a)      Functions. There is hereby established a Central Intake Office, staffed by the Board Clerk, which shall:

(1)     receive information and complaints regarding the conduct of lawyers over whom the Court has jurisdiction, provided this rule shall not be construed to limit the authority of any authorized agency to institute proceedings;

(2)     provide assistance to complainants in stating their complaints;

(3)     provide information to complainants about the status of their complaints;

(4)     determine whether the facts stated in a complaint or other information regarding the conduct of a lawyer provide grounds for further action by Bar Counsel or referral to another agency, and:

         (A)     dismiss the complaint; or

         (B)     forward it to Bar Counsel, or to an appropriate agency or agencies;

(5)     provide to the complainant, if a complaint is dismissed:

         (A)     a copy of the written guidelines for dismissal;

         (B)     in the event of dismissal, a notice of complainant?s right of review pursuant to Rule 9(e); and

(6)     record disposition of all complaints.

(b)      Powers and Duties. The Board Clerk shall have the following powers and duties:

(1)     to notify the complainant and the respondent of the disposition of matters;

(2)     to forward a certified copy of the judgment of a lawyer?s criminal conviction to the disciplinary agency in each jurisdiction in which that lawyer is admitted when the lawyer is convicted of a serious crime (as hereinafter defined) in Maine;

(3)     to maintain disciplinary records, subject to the file retention requirements of Rule 18(g), and to compile statistics to aid in the administration of the system, including but not limited to a single log of all complaints received, investigative files, statistical summaries of docket processing and case dispositions, and other records as the Board or the Court may require to be maintained. Statistical summaries shall contain, at a minimum:

         (A)     the number of pending cases at each stage in the disciplinary process for each counsel and for the agency;

         (B)     the number of new cases assigned to each counsel during the year and the total for the agency;

         (C)     the number of cases carried over from the prior year for each counsel and the total for the agency; and

         (D)     the number of cases closed by each counsel during the year and the total for the agency.

(4)     to provide legal and administrative support to the Fee Arbitration Commission and Grievance Commission;

(5)     to appoint alternate members to the Fee Arbitration Commission and Grievance Commission panels as necessary to meet the requirements of Rules 7(d)(8)(A) and 9(a);

(6)     to provide notice of public discipline, suspension, disbarment, and reinstatement to general media outlets throughout Maine, and throughout other jurisdictions in which the Board has reason to believe the attorney has been admitted to practice; and

(7)     to perform any other functions authorized by these Rules.

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Reporter?s Notes ? June 2015

Rule 3(a) is based on Model Rule 1(B) and has no equivalent in the former Maine Bar Rules. This rule establishes a Central Intake Office staffed by a Board Clerk. The committee believes that the Central Intake Office will serve a valuable function by processing inquiries from the public and potential complainants, handling complaints and communicating with component agencies of the Board. The Central Intake Office and the Board Clerk serve an important screening function, freeing Bar Counsel to investigate only potentially meritorious complaints, and they provide important assistance to complainants and members of the public.

Rule 3(b) is based on Model Rule 1(B) and has no equivalent in the former Maine Bar Rules. This rule further details the powers and duties of the Board Clerk. Important duties of the Board Clerk detailed in revised rule 3(b) include the dissemination of disciplinary information, recordkeeping, and lending legal and administrative support to Grievance and Fee Arbitration Commission panels.

RULE 4. Registration

(a)      Requirement. Every lawyer admitted to active practice in Maine shall pay to the Board an annual registration fee for each fiscal year beginning July 1st. The annual registration fee, established by the Court on recommendation of the Board, shall be used to defray the costs of the Board and of other components of the system of lawyer regulation under other rules established by the Court, and for those other purposes the Court shall from time to time designate.

Additionally, in accordance with the Rules for the Maine Assistance Program for Lawyers Rule 1(C)(1) and the Maine Rules for the Lawyers' Fund for Client Protection Rule 3(a), every lawyer admitted to active practice and full-time and active retired judges required to register in accordance with these Rules shall pay assessments in support of the mission of these entities. The assessments shall be established by the Court.

(b)      Registration. To facilitate the collection of the annual registration fee provided for in Rule 4(a), commencing July 1st each year, every lawyer admitted to practice in Maine is required to complete, certify and file registration documents, which shall be on forms prescribed by the Board. Each lawyer shall file with the Board a supplemental statement of any change in the information previously submitted within 30 days of the change. Registration documents and payments received after August 31st will be assessed a non-waivable late fee.

All persons first becoming subject to these Rules by admission to practice in Maine after April 1st shall file the registration documents required by this rule at the time of admission, but no annual registration fee shall be payable until the next annual registration collection. Failure to register shall result in the issuance of a notice of administrative suspension pursuant to Rule 4(h).

Unless otherwise exempted, each lawyer admitted to the active practice of law shall annually file the following:

(1)    Registration Statement. Each lawyer admitted to the active practice of law in Maine shall file a registration statement with the Board setting forth the information stated in Rule 1(g) and such other information as the Court or the Board may direct.

(2)    IOLTA Trust Account Report. See Rule 6(b).

(3)    Insurance Disclosure. Each lawyer admitted to the active practice of law in Maine shall annually certify to the Board: (A) whether the lawyer is engaged in the private practice of law; (B) if engaged in the private practice of law, whether the lawyer is currently covered by professional liability insurance; (C) whether the lawyer intends to maintain insurance during the period of time the lawyer is engaged in the private practice of law; and (D) whether the lawyer is exempt from the provisions of this rule because the lawyer is engaged in the practice of law as a full-time government lawyer, or is employed by an organization in a capacity in which the lawyer does not represent clients other than the employing organization. Each lawyer admitted to the active practice of law in Maine who reports being covered by professional liability insurance shall notify the Board in writing if the insurance policy providing coverage lapses, is no longer in effect, or terminates for any reason. Notice must be delivered to the Board within 30 days of the lapse, cancellation, or termination, unless the policy is renewed or replaced without substantial interruption. The information submitted pursuant to this rule shall be made available to the public by such means as designated by the Board.

(c)      Exemptions.

(1)    Registration. Full-time and active retired judges who are members of the Maine or federal judiciary shall be exempt from the payment of the annual registration fee during the time they serve in office. Judges shall remain on the roll of lawyers in judicial status, and may retire in judicial status or resume active practice upon completion of their tenure in office, by filing registration documents and paying the annual registration fee required for the year in which active practice is resumed. Additionally, lawyers who have notified the Board that they are (a) members of the armed forces of the United States who are on active duty outside of Maine, or (b) judicial law clerks, or (c) emeritus attorneys, shall be exempt from the payment of the annual registration fee. Judicial law clerks and emeritus attorneys shall remain on the roll of lawyers during the tenure of their service and annually file registration documents.

(2)    IOLTA Accounts. See Rule 6(a)(2).

(d)      Receipt Demonstrating Compliance with Registration Filing. Within 30 days of the receipt of a lawyers completed registration documents and payment of all fees, the Board shall acknowledge compliance with the annual registration requirements.

(e)      Application for Transfer to Inactive Status. Any lawyer, not under an administrative suspension or the subject of a disciplinary investigation or proceeding under these Rules, who has retired or is not engaged in practice shall advise the Board in writing of the lawyers desire to assume inactive status and discontinue the practice of law. Upon the filing of the notice, the lawyer shall no longer be eligible to practice law in Maine. The Board shall remove a lawyer on inactive status from the list of classified active lawyers until and unless the lawyer requests and is granted reinstatement to the active rolls. The lawyer shall also comply with the provisions of Rule 4(k).

(f)      Application for Emeritus Status.

(1)    Purpose. The purpose of enacting emeritus status is to encourage and provide retiring attorneys, or non-practicing attorneys who have chosen other career paths, who otherwise may choose inactive status, the opportunity to provide pro bono publico legal services under the auspices of an Approved Legal Service Organization.

(2)    Application. Any lawyer who has discontinued the practice of law and who has given the notice required by Rule 4(e) but who wishes to provide pro bono publico legal services without compensation or expectation of compensation shall advise the Board by filing an emeritus status statement indicating he or she will limit his or her active legal practice to providing pro bono publico legal services under the auspices of an Approved Legal Service Organization, as defined in these Rules. The emeritus status statement shall be signed by an authorized representative of the Approved Legal Service Organization under whose auspices the lawyer will provide such legal services. A lawyer who has assumed emeritus status shall not be relieved of his or her obligation to comply with annual registration requirements.

(g)      Administrative Suspension.

(1)    An administrative suspension shall not be considered a per se violation of the Maine Rules of Professional Conduct and shall not constitute the imposition of discipline. The Board may, however, institute separate proceedings to determine whether discipline is appropriate.

(2)    Failure to file Registration Documents. Unless excused on grounds of financial hardship or for other good cause pursuant to procedures established by the Board, any lawyer who fails to submit completed registration documents under the provisions of Rule 4(b) or pay the annual registration fee by August 31st shall be suspended provided notice is given under the provisions in Rule 4(h). The suspended attorney shall comply with the provisions of Rule 4(k).

(3)    Failure to File State Tax Returns. Whenever, pursuant to Section 175 of Title 36 of the Maine Revised Statutes, the State Tax Assessor notifies the Board of the Assessor's final determination to prevent renewal or reissuance of a "license or certificate of authority" for a lawyer to practice law, the lawyer shall be immediately suspended provided notice is given under the provisions in Rule 4(h). The suspended lawyer shall comply with the provisions of Rule 4(k).

(4)    Failure to Comply with a Support Order. Whenever, pursuant to Section 2201 of Title 19-A of the Maine Revised Statutes, the Department of Health and Human Services certifies in writing to the Board that, in compliance with the statutory procedure: the Department has determined that a lawyer is in noncompliance with a support order; the lawyer has failed to appeal the Department's decision; or a final judgment has been entered against the lawyer on the lawyer's petition for judicial review, the lawyer shall be immediately suspended provided notice is given under the provisions in Rule 4(h). The suspended lawyer shall comply with the provisions of Rule 4(k).

(5)    Failure to File an Unemployment Tax Return or to Pay an Unemployment Tax Assessment. Whenever, pursuant to Section 1232 of Title 26 of the Maine Revised Statutes, the State Commissioner of Labor or Director of Employment Security certifies in writing to the Board that the Commission has determined in compliance with the statutory procedure that a lawyer is in noncompliance with the unemployment compensation statute, and the lawyer has either failed to pursue an appeal from the Commission's decision or a judgment has been entered against the lawyer on the lawyer's petition for judicial review, the lawyer shall be immediately suspended provided notice is given under the provisions of Rule 4(h). The suspended lawyer shall comply with the provisions of Rule 4(k).

(h)      Notice of Administrative Suspension. The Board shall provide notice of any administrative suspensions to the suspended attorney in accordance with the requirements of Rule 15. This notice of suspension shall not be effective until 30 days after the date of mailing. A lawyer who, after the date of the mailing of a notice of suspension but before the effective date of the suspension, files with the Board (1) registration documents and the required registration fee or (2) a certificate issued by the State agency pursuant to Rule 4(g)(2), (3), and (4) stating that the attorney is currently in good standing and has satisfied any obligations and paid all fees due, shall be deemed to be in compliance with this rule and shall not be suspended for failure to comply with the obligations that led to the notice of suspension.

(i)      Reinstatement from Administrative Suspension. Any lawyer suspended under Rule 4(g)(2) shall be reinstated by administrative order if, within five years of the effective date of the suspension for nonpayment, the lawyer remits to the Board a reinstatement fee, submits all required registration documents, and makes payment of all arrears.

If an attorney is administratively suspended pursuant to Rule 4(g)(3), (4) or (5), that attorney must also submit a certificate issued by the appropriate state agency stating that the attorney is currently in good standing and has satisfied any obligations and paid any sums due.

A lawyer who has been administratively suspended must complete the continuing legal education requirements of Rule 5 for each year the attorney has been suspended, but need not complete more than 24 credit hours for that entire period of suspension, provided that: (1) no more than one half of the credits are earned through self-study; (2) at least two credit hours are primarily concerned with the issues of ethics or professionalism; and (3) at least two credit hours are primarily concerned with issues of recognition and avoidance of harassment and discriminatory communication or conduct related to the practice of law. Additionally, a lawyer who has been suspended within the previous five years for non-compliance with the continuing legal education requirements of Rule 5 shall be assessed an additional reinstatement fee, as may be set by the Board.

Any lawyer who fails to seek reinstatement within five years of the effective date of the administrative suspension shall be required to petition for reinstatement under Rule 29.

(j)      Reinstatement from Inactive Status. Any lawyer on inactive status under Rule 4(e) shall be reinstated by administrative order of the Board if the lawyer seeks reinstatement within five years of the effective date of transfer to inactive status. Any lawyer who fails to seek reinstatement within five years of the effective date of transfer to inactive status may, in the discretion of the Court, be required to petition for reinstatement under Rule 29.

In addition to all other requirements, an inactive lawyer seeking reinstatement shall remit to the Board a reinstatement fee and an arrearage registration payment equal to the total registration fees that the lawyer would have been obligated to pay the Board had the lawyer remained actively registered to practice in Maine during that period of inactive status, but no more than $1,000.

(k)      Notice to Clients, Adverse Parties, and Other Counsel.

(1)     A lawyer who transfers to inactive status or who has been administratively suspended shall:

         (A)    notify all clients being represented in pending matters;

         (B)    notify any co-counsel in pending matters; and

         (C)    notify any opposing counsel in pending matters, or in the absence of opposing counsel, the adverse parties, of the matter and that the lawyer is therefore disqualified to act as lawyer after the effective date of the order. The notice shall state the clients place of residence.

(2)   Special Notice. The Board may direct the issuance of notice to such financial institutions or others as may be necessary to protect the interests of clients or other members of the public.

(3)   Duty to Maintain Records. The attorney shall keep and maintain records of the steps taken to accomplish the requirements of Rule 4(k)(1)(A)-(C), and shall make those records available to the Board on request.

(4)   Return of Client Property. The attorney shall deliver to all clients being represented in pending matters any papers or other property to which they are entitled and shall notify them and any counsel representing them of a suitable time and place where the papers and other property may be obtained, calling attention to any urgency for obtaining the papers or other property.

(5)   Refund of Fees. Within 10 days after entry of the order imposing disbarment or suspension, the attorney shall refund any part of any fees paid in advance that have not been earned.

(6)   Withdrawal from Representation. In the event the client does not obtain another lawyer before the effective date of the administrative suspension, it shall be the responsibility of the attorney to move in the court, agency, or tribunal in which the proceeding is pending for leave to withdraw. The attorney shall in that event file with the court, agency, or tribunal before which the litigation is pending a copy of the notice to opposing counsel or adverse parties.

(7)   New Representation Prohibited. Upon the effective date of the administrative suspension, the attorney shall not undertake any new legal matters. The attorney shall take such action as is necessary to cause the removal of any indicia of lawyer, counselor at law, or similar title.

(8)   Affidavit Filed with the Board. Within 10 days after the effective date of the suspension order, the attorney shall file with the Board Clerk an affidavit showing:

         (A) compliance with the provisions of this rule;

         (B) all other state, federal and administrative jurisdictions to which the lawyer is admitted to practice; and

         (C) residence or other addresses where communications may thereafter be directed.

(l)      Notice of Registration Status Change. The Board shall transmit, electronically or otherwise, notice of attorney status changes to all State, Federal, and Tribal Courts in Maine and such other organizations as determined by the Board.

(m)      Certificate of Good Standing.

(1)    Issuance. All certificates related to the good standing or lack thereof of members of the Maine Bar shall be issued by the Board Clerk on behalf of the Court.

(2)   Certificate Requests. A lawyers request for a certificate of good standing shall be made in writing to the Board Clerk and shall be accompanied by a requisite fee as established by the Board.

(3)   Form of Certificate. The certificate shall be on a form prescribed by the Court and shall include the attorney's full name, the attorney's date of admission to the Maine Bar, the attorney's current registration status, any public disciplinary record if requested, the date of certification by the Board Clerk, signature of the Executive Clerk of the Cour,t and the seal of the Court.

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Reporters Notes June 2015

Rule 4(a) is based on former Model Rule 8(A), and is consistent with language contained in Maine Bar Rule 6(a).

Rule 4(b) is based on Model Rule 8(A) and (C), and is consistent with language contained in former Maine Bar Rule 6(a)(1). The committee proposed new language incorporated into Rule 4(b)(4), requiring that attorneys annually certify whether they are currently covered by professional liability insurance. The rule is also revised to require that registration paperwork must be received by the Board no later than August 31st as opposed to being postmarked by August 31st. Lastly, the revised rule also eliminates the proration of registration fees for new admittees registering with the Board after April 1st. Instead, new admittees will be assessed a full registration fee constituting payment for the current and subsequent year.

Rule 4(c) is based on Model Rule 8(B), and is consistent with language contained in former Maine Bar Rules 6(a)(1), 10(a), and 12.

Rule 4(d) is based on Model Rule 8(F) and is consistent with language contained in former Maine Bar Rule 6(a)(1). Rule 4(d) is based on Model Rule 8(F) and is consistent with language contained in former Maine Bar Rule 6(a)(1).

Rule 4(f) is based on former Maine Bar Rule 6(d). There is no equivalent language in the Model Rules.

Rule 4(g) is based on Model Rule 8(H) and is consistent with language contained in former Maine Bar Rule 6(b)(1) to (4). The revised rule makes clear that the failure to file registration documents or receipt of a notice described in Rule 4(G)(3) to (5) will result in an administrative suspension.

Rule 4(h) is based on Model Rule 8(G) and is analogous to language contained in former Maine Bar Rule 6(b)(1) to (5).

Rule 4(i) is based in part on Model Rule 8(G), and mirrors the provisions in former Maine Bar Rules 6(b)(2) to (5) and (7), 6(c), and 7.3(j)(1)and (5)(F). The revised rule extends the time period from 6 months to 5 years wherein an attorney may be reinstated without petitioning the Court.

Rule 4(j) is based on Model Rule 8(I) and is consistent with language contained in former Maine Bar Rule 6(c).

Rule 4(k) is based on former Maine Bar Rule 7.3(i)(2). There is no equivalent language in the Model Rules. The revised rule calls for suspended attorneys to file an affidavit with the Board within ten days attesting to compliance with the rule. The former rule called for 30 days.

Rule 4(m) is based in part on Board Regulation No. 10. The revised rule calls for the Board, on behalf of the Court, to issue Certificates of Good Standing.

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Advisory Note - May 2019

The purpose of the amendments to Rule 4(b) and (c) is to remove the CLE Report filing requirement from the annual registration conducted each fiscal year beginning July 1st.

The amendment to Rule 4(i) removes the unnecessary subdivision references to Rule 5, increases the maximum number of CLE credits required for reinstatement from 22 to 24, and provides guidance to members of the bar with respect to the two additional credits. The amendment also eliminates the reference to in-house courses, as revised Maine Bar Rule 5 no longer contains in-house self-study language.

RULE 33. Transition

These Rules shall become effective on July 1, 2015 (the ?effective date?). As of the effective date, these Rules shall govern all new and pending complaints and proceedings before the Fee Arbitration Commission, Professional Ethics Commission, and Grievance Commission. Any attorney seeking reinstatement, including those suspended prior to the effective date, must comply with the requirements of these Rules.

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Reporter?s Notes ? June 2015

To ensure fairness and consistency, the committee determined that these Rules must apply not only to new complaints brought after the rules go into effect, but also to any complaints initiated prior to the effective date, as well as to any ongoing proceedings. In addition, Rule 33 provides that all attorneys seeking reinstatement following the effective date, including those disciplined under the former Maine Bar Rules, must comply with the reinstatement provisions of these Rules.

Preamble and Terminology

There is hereby established a comprehensive system of regulation of the legal profession in the State of Maine to encourage and promote competent and ethical practice by members of the Maine Bar, and to make these standards known to members of the public, so that they may have confidence in the legal profession in Maine. These Bar Rules supplement existing statutory regulation and processes, such as those established in 4 M.R.S. §§ 851 and 858, and the inherent authority of the courts to regulate attorney conduct. Attorney regulation includes, but is not limited to, registration, fee arbitration, ethical guidance and discipline.

Terms used in these Rules shall have the following meanings, unless the context clearly requires a different meaning:

Action means a civil judicial or administrative proceeding brought to enforce, redress, or protect a right.

Active status means an attorney duly admitted to the practice of law in Maine, currently registered and in good standing with the Board.

Allowable reasonable fees for IOLTA accounts are per check charges, per deposit charges, sweep fees, fees in lieu of a minimum balance, federal deposit or share insurance fees, and reasonable IOLTA account administrative or maintenance fees. All other fees are the responsibility of, and may be charged to the lawyer maintaining the IOLTA account. Fees or charges in excess of the interest or dividends earned on the account for any month or quarter shall not be taken from interest or dividends earned on other IOLTA accounts or from the principal of the account.

Alternatives to Discipline Program means any program, authorized by the Court, to which an attorney may be referred in lieu of discipline, including fee arbitration, arbitration, mediation, law office management assistance, lawyer assistance programs, counseling, continuing legal education programs, or any other program authorized by the Court.

Approved Legal Services Organization means a pro bono publico legal services program sponsored by a court-annexed program, the Maine State Bar Association, the University of Maine School of Law; a nonprofit organization that provides legal services to persons of limited means and that receives funding from the federal Legal Services Corporation, the Maine Justice Foundation, or the Maine Civil Legal Services Fund; or any other nonprofit legal services organization designated by the Court.

Attorney and lawyer are used interchangeably, and mean a person admitted to the practice of law in Maine, or any other person who appears, participates or otherwise engages in the practice of law in Maine.

Award means the decision of the arbitrators in the fee arbitration proceeding.

Bar Counsel means the attorneys employed by the Board to perform the prosecutorial function in lawyer disciplinary matters, or Special Counsel retained by the Board pursuant to Rule 2(a).

Board means the Board of Overseers of the Bar.

Board Clerk means the attorney employed by the Board to perform advisory, review, and administrative functions as set forth in these Rules.

Central Intake Office means an office staffed by a Board Clerk that has certain administrative and review functions as set forth in these Rules.

CLE means continuing legal education.

Client means a person, public officer, corporation, association or other organization or entity, either public or private, who receives professional legal services from an attorney.

Client Protection Fund means the Maine Lawyers Fund for Client Protection.

Commission means either Fee Arbitration Commission, Grievance Commission or Professional Ethics Commission.

Complainant means the party filing a grievance complaint.

Court means the Maine Supreme Judicial Court.

Executive Clerk of the Court means the Clerk of the Maine Supreme Judicial Court.

Executive Director means the attorney employed by the Board to perform the administrative and executive functions of the Board.

Fee Arbitration Commission means a creation of the Maine Supreme Judicial Court, under the jurisdiction of the Board of Overseers of the Bar, that provides an efficient and less formal adjudication process for attorney-client fee disputes.

Financial institution includes a bank, savings and loan association, credit union, savings bank, and any other business or person that accepts for deposit funds held in trust by lawyers.

Good Standing means an attorney, not currently suspended or disbarred, duly admitted to the practice of law in Maine or, if specifically referenced in the applicable rule, other jurisdictions.

Inactive status refers to the status of an attorney in good standing who is not engaged in the practice of law in Maine.

Judge(s) means Justices of the Maine Supreme Judicial Court, Justices of the Maine Superior Court, Judges of the Maine District Court, Maine Family Law Magistrates, Judges and Magistrates of the United States District Court for the District of Maine, Maine Judges of the United States Court of Appeals for the First Circuit, and Judges of the United States Bankruptcy Court for the District of Maine.

Judicial Law Clerk means an attorney serving in a non-administrative position who provides assistance to a judge in researching issues before the court and in writing memoranda and opinions.

Grievance Commission means the attorney disciplinary body appointed by and responsible to the Board.

IOLTA means Interest on Lawyers Trust Accounts.

IOLTA account means a pooled trust account earning interest or dividends at an eligible institution in which a lawyer or law firm holds funds on behalf of client(s), which funds are small in amount or held for a short period of time such that they cannot earn interest or dividends for the client in excess of the costs incurred to secure such income.

Maine Assistance Program refers to the Maine Assistance Program for Lawyers and Judges, which offers confidential assistance to help individuals identify and address problems with alcoholism, drug abuse and mental or emotional disorders.

Monitor means an attorney appointed by the Grievance Commission or the Court to provide a system of accountability and support to a respondent attorney.

Notice of dishonor refers to the notice that a financial institution is required to give, under the laws of Maine, upon presentation of an instrument that the institution refuses to pay upon presentment.

Panel means three members of the Grievance Commission or the Fee Arbitration Commission assigned to adjudicate and issue a decision.

Party means a person or entity directly involved in a grievance or fee arbitration proceeding.

Petition means a written request for fee arbitration in a form approved by the Commission.

Petitioner means the party requesting fee arbitration, Bar Counsel prosecuting a Grievance Commission proceeding, or an attorney seeking reinstatement following suspension or disbarment.

Probation means a discipline imposed where certain conditions are placed on an attorneys practice.

Properly payable describes an instrument that, if presented in the normal course of business, is in a form requiring payment under the laws of this jurisdiction.

Professional Ethics Commission means a commission that renders formal and informal written advisory opinions to the Court, Board, Grievance Commission, Bar Counsel and members of the Maine bar involving interpretation and application of the Maine Rules of Professional Conduct to lawyer conduct.

Proxy means an attorney named in another attorneys registration statement who will act to protect the interests of clients and conclude the law practice of an attorney who is incapacitated, suspended, or disbarred; or who has disappeared or died.

Public member means a Maine resident appointed by the Court to serve on the Board or a Maine resident appointed by the Board to serve on a Commission who has not been admitted to practice law in any jurisdiction.

Receiver means a licensed Maine attorney in good standing who is appointed by the Court to act to protect the interests of clients and conclude the law practice of an attorney who is incapacitated, suspended, or disbarred; or who has or disappeared or died.

Registration documents means those documents that the Board requires each attorney to file on an annual basis, consisting of a registration statement, Continuing Legal Education Annual Report [Rule 5(e)], and IOLTA Election Form [Rule 6(b)], and such other documents as the Board may from time to time direct.

"Registration status" means registration categories established by the Board.

Respondent or "respondent attorney" means the attorney with whom petitioner has a fee dispute, or an attorney who is the subject of a grievance complaint or disciplinary proceeding.

"Single Justice" means a single justice or judge of Maines trial courts or of the Supreme Judicial Court, designated by the Chief Justice of the Supreme Judicial Court. This includes active retired justices of the Supreme Judicial Court and active retired justices and judges of the trial courts.

Surrender means withdrawal from the practice of law in the State of Maine in order to avoid disciplinary proceedings, or in lieu of any other sanction.

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Advisory Note - October 2020

The Preamble and Terminology section is amended to add a definition of "Executive Director."

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Advisory Note - May 2019

This amendment references the applicable subdivision in amended Maine Bar Rule 5(e).

RULE 5. Continuing Legal Education ("CLE")

(a)      Purpose.

To maintain public confidence in the legal profession and the rule of law, and to promote the fair administration of justice, attorneys must be competent regarding the law, legal and practice-oriented skills, the standards and ethical obligations of the legal profession, and the management of their practices. The purpose of minimum continuing legal education (MCLE) requirements is to promote and sustain competence and professionalism and to ensure that attorneys remain current on the law, law practice management, and technology in our rapidly changing society. These rules establish minimum requirements for continuing legal education, accreditation criteria, and compliance procedures.

(b)      Continuing Legal Education (CLE) Committee.

       (1)     The Board shall establish a CLE Committee to oversee the administration of these rules. The CLE Committee shall review the effectiveness and efficiency of the MCLE requirements and recommend proposed changes or additions to these rules to the Board.

       (2)     The CLE Committee shall comprise three members of the Board including two attorneys and one nonattorney public member. The Vice-Chair of the Board shall serve as Chair of the Committee. The two remaining members shall be appointed by the Board Chair.

       (3)     In addition to administering and interpreting these rules, the CLE Committee shall have the following powers and duties:

             (A)     Monitor the availability and quality of programs for members of the bar;

              (B)     Publish policy statements and regulations regarding programs, credits, and the interpretation of the rules;

              (C)     Delegate course approval responsibilities and other functions under this Rule to the Board staff; and

              (D)     Upon request, review any decisions denying approved status, program accreditation, or computation of credits. The CLE Committee’s determination on any such issue shall be final.

(c)      MCLE Requirements.

       (1)     Every attorney with an active license to practice law in this jurisdiction shall be required to earn a minimum of 12 MCLE credit hours per calendar year. No more than five of the credit hours may be earned through self-study programs as defined in Rule 5(h)(1)(B).

       (2)     As part of the required credit hours referenced in Rule 5(c)(1), attorneys must earn at least one live credit hour in Ethics and Professionalism. Qualifying Ethics and Professionalism topics include professional responsibility, legal ethics, substance abuse and mental health issues, diversity awareness in the legal profession, attorney wellness, and legal malpractice and bar complaint prevention topics including client relations, law office and file management, and client trust account administration. The credit hour required by this section is separate from and in addition to the credit hour required by Rule 5(c)(3).

       (3)     As part of the required credit hours referenced in Rule 5(c)(1), attorneys must earn at least one in-person credit hour in the recognition and avoidance of harassment and discriminatory communication or conduct related to the practice of law as set out in the Maine Rules of Professional Conduct. Qualifying topics include harassment or discriminatory communication or conduct on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity. The credit hour required by this section is separate from and in addition to the credit hour required by Rule 5(c)(2).

       (4)     The credit hour required by Rule 5(c)(3) must be earned through in person attendance, unless, in the discretion of the CLE Committee, for demonstrated good cause shown, an attorney seeks and obtains prior approval to attend a live presentation through live-streaming or other electronic medium approved by the Committee. The CLE Committee’s determination may include conditions mandating the CLE sponsor to ensure that participants will be monitored throughout the program for active, contemporaneous participation.

(d)      Exemptions.

       (1)     The following individuals otherwise subject to this Rule are exempted from its requirements:

              (A)     Full-time judges in any state, federal, or tribal court;

              (B)     Active retired state court judges and senior status federal court judges;

              (C)     Full-time teachers in any law school approved by the American Bar Association;

              (D)     Members of the armed forces of the United States who are on active duty outside of this jurisdiction;

              (E)     Residents of another country unless they are actively practicing law in this jurisdiction;

              (F)     Attorneys who have practiced 40 years or more, attained the age of 65 years, and are not engaged in the full-time practice of law;

              (G)     Legislators and members of Congress;

              (H)     Attorneys with active licenses to practice law in this jurisdiction who maintain a principal office for the practice of law in another jurisdiction that requires MCLE and who can demonstrate compliance with the MCLE requirements of that jurisdiction;

              (I)     Nonresident attorneys who are temporarily admitted to practice in this jurisdiction under pro hac vice rules;

              (J)     Attorneys serving as judicial law clerks;

              (K)    Emeritus attorneys; and

              (L)     Attorneys admitted for less than three months of the calendar year.

       (2)     New admittees to the Maine bar who complete an accredited new attorney program that focuses on basic skills and substantive law during the year in which they are admitted are exempt for that year and the following calendar year.

       (3)     In the discretion of the CLE Committee, any individual may be exempted from all or part of the requirements of this Rule upon a showing of hardship or for other good cause shown pursuant to procedures to be established by the CLE Committee. An exemption may not be granted in successive years for the same or similar hardship.

(e)      Reporting Period and Compliance.

       (1)     Attorneys subject to these rules shall complete the MCLE requirements of Rule 5(c) in each calendar year. Attorneys who fail to meet the MCLE requirement within the reporting period will be considered noncompliant.

       (2)     On January 1st of each year, attorneys subject to these rules shall demonstrate compliance with the requirements of these rules for the prior calendar year.

       (3)     Each year, attorneys subject to these rules shall certify the accuracy of their individual MCLE Annual Report Statement to the CLE Committee no later than the close of business on the last business day of February.

(f)      Accumulation and Computation of Credits.

       (1)     Credit hours will be awarded on the basis of one credit hour for every 60 minutes spent engaged in an accredited program, unless otherwise specified.

       (2)     Credit hours will not be given for time spent on nonsubstantive matters such as introductory remarks, breaks, or business meetings.

       (3)     The number of credit hours awarded to a program is the maximum that may be earned for that program unless the attorney is a presenter. An attorney may claim partial credit (a minimum of 30 minutes) for partial attendance or completion of an accredited program.

       (4)     An attorney subject to these rules who makes a presentation at an accredited program not offered for academic credit by the sponsoring institution may earn two credit hours for every 30 minutes of actual presentation for the accredited program if the attorney has prepared substantial written materials—as defined by the CLE Committee—to accompany the presentation. If substantial written materials have not been prepared, the attorney will earn one credit hour for every 30 minutes of actual presentation.

       (5)     An attorney who teaches a regularly scheduled law-related course offered for academic credit at an accredited post-secondary educational institution may earn six credit hours under this rule for every hour of academic credit awarded by the institution for the course. An attorney who assists or participates in such a regularly scheduled course will earn one credit hour for every hour of actual participation, up to a maximum of six hours.

       (6)     An attorney subject to these rules who formally takes for credit or officially audits a regularly scheduled course offered for academic credit at a law school approved by the American Bar Association will earn four credit hours under this rule for every hour of academic credit awarded by the institution for the course, provided that the attorney attends at least 75% of the classes in the course and, if enrolled for academic credit, receives a passing grade.

       (7)     Each calendar year, attorneys may carry over up to 10 credit hours to satisfy the requirements of the following year, provided that no more than five of the credit hours may be earned through self-study programs as defined in Rule 5(h)(1)(B). The mandatory live credit requirements of Rule 5(c)(2) must be satisfied for each reporting period.

(g)      Standards for Accreditation of MCLE Programs.

       (1)     To be accredited, a program must meet the following standards:

              (A)     The program must have significant intellectual or practical content designed to promote attorney competence and must deal primarily with matters related to the practice of law, ethics and professionalism, or law practice management.

              (B)     Interdisciplinary programs, if pertinent to an individual attorney’s practice, will be considered on a case-by-case basis.

              (C)     Although written materials may not be appropriate for all courses, they are expected to be utilized whenever possible. Written course materials may be provided in paper or digital format, in advance or at the time of the activity.

              (D)     Program presenters must be qualified with the necessary practical and/or academic experience to teach the topics covered.

              (E)     The program must be presented in a suitable environment conducive to learning.

              (F)     The program must last 30 minutes or longer.

              (G)     With the exception of certain self-study programs, the sponsor must monitor the program for attendance and certify such attendance to the CLE Committee.

       (2)     Notwithstanding the minimum requirements set forth in this Rule, the following activities are not eligible for MCLE Credit:

              (A)     A meeting of a bar association, committee, section, or other entity composed of attorneys, that is intended primarily to be a general business meeting or work session as opposed to an MCLE program;

              (B)     A program that is intended primarily to market a product or service to attorneys;

              (C)     A program that is intended primarily to attract clients;

              (D)     Discussions related to the handling of specific cases within a law firm, corporate law department, governmental agency, or similar entity;

              (E)     A program that teaches nonlegal skills, general communication skills such as public speaking skills, personal money management or investing, general investment principles, career building, rainmaking, or marketing or social media networking skills;

              (F)     Reviewing or reading legal articles, legal journals, or case summaries;

              (G)     A course attended in preparation for admission to practice law in any jurisdiction; or

              (H)     Any other course or activity deemed ineligible by the CLE Committee.

(h)      Credit Categories.

       (1)     An accredited program is either "live" or "self-study" depending on the following criteria:

              (A)    Live programs. A program is "live" if it is a scheduled activity that an attorney may attend in-person or via electronic medium in which the presenters are available to all course attendees at the time the course is presented, and all attendees can contemporaneously hear or see other attendees’ questions as well as any responses and discussion. The following programs qualify for live credit:

                  (i)     "In-Person" – a CLE program with attendees in the same room as at least one of the presenters;

                  (ii)     "Satellite/Groupcast" – a CLE program broadcast to remote locations (i.e., a classroom setting or a central viewing or listening location);

                  (iii)     "Teleseminar" – a CLE program broadcast via telephone to remote locations (i.e., a classroom setting or a central listening location) or to individual attendees via telephone lines;

                  (iv)     "Moderated Video Replay" – a recorded CLE program, in the same room as a qualified moderator who answers questions and facilitates discussion;

                  (v)     "Webcast/Webinar" – a CLE program broadcast via the internet to remote locations (i.e., a classroom setting or a central viewing or listening location) or to individual attendees; and

                  (vi)     "Webcast/Webinar Replay" - a recorded CLE program broadcast via the internet to remote locations (i.e., a classroom setting or a central viewing or listening location) or to individual attendees with a qualified commentator available to answer questions and facilitate discussion.

              (B)    Self-study Programs. The following programs may qualify for self study credit:

                  (i)     "Independent Study" – viewing or listening to a pre-recorded CLE audio, video, digital media, or other such programs;

                  (ii)    "Authorship" – upon written request, attorneys may be awarded ethics and professionalism credit hours each calendar year for authoring or co-authoring written material that is published in a legal periodical, journal, book, or treatise approved by the CLE Committee; and

                  (iii)     "Volunteer Service" – upon written request, attorneys may be awarded up to three ethics and professionalism credit hours each calendar year for their volunteer service as members of a board, commission, or committee established by the Court or the Board, which is primarily concerned with ethics or professional responsibility. Credits may also be awarded to court-appointed receivers and monitors.

       (2)     Accreditation Period.

              (A)     Accreditation of live programs expires at the end of the calendar year of the date of accreditation.

              (B)     Accreditation of self-study programs is for a period of two years from the date of the accreditation.

(i)      Approved Sponsor Status.

       (1)     The CLE Committee may extend "Approved Sponsor" status to a provider as set forth below:

              (A)     Application for Approved Sponsor Status. A sponsor may be approved by submitting an Approved Sponsor Application and requisite fee, together with evidence establishing to the satisfaction of the CLE Committee that:

                  (i)     the sponsor has been approved or accredited by an accrediting authority established by court rule or statute in another state; or

                  (ii)     during the immediately preceding three years, the sponsor has annually sponsored at least 10 live programs that comply with the requirements for individual program accreditation under Rule 5(g)(1).

              (B)     Benefits of Approved Sponsor Status.

                  (i)     An Approved Sponsor may indicate in promotional materials that it is an "Approved Sponsor" by including the following statement in those promotional materials: "[Sponsor Name] is an Approved Sponsor, as recognized by the CLE Committee."

                  (ii)     Approved Sponsors pay a reduced application fee.

                  (iii)     Programming presented by an Approved Sponsor is presumptively accredited.

                  (iv)    Approved Sponsors may elect to receive a quarterly invoice for program accreditation.

              (C)     Revocation of Approved Sponsor Status. Approved Sponsor status may be revoked by the CLE Committee if the reporting requirements of these rules are not met or if, upon review of the sponsor’s performance, the CLE Committee determines that the content or quality of the program or program materials or the provider’s performance does not meet the standards set forth in these rules. In such circumstances, the CLE Committee shall mail the Approved Sponsor a 30-day notice of revocation. The Approved Sponsor may request a review of such revocation, and the CLE Committee shall act on the request within 90 days after receipt. The decision of the CLE Committee shall be final after such review.

(j)      Application Procedures for Program Accreditation.

       (1)     Each sponsor seeking accreditation of a program shall submit an application, together with the requisite fee, at least 30 days prior to the program date. A late fee will be assessed for untimely submissions.

       (2)     If the program sponsor chooses not to submit an application for accreditation of a program, an individual attorney may submit an application, together with the requisite fee, in advance of, but no later than 60 days following the program completion date. A late fee will be assessed for untimely submissions.

(k)      Reporting CLE Credit.

       (1)     Sponsor Reporting. Sponsors of accredited programs shall submit attendance rosters no later than 30 days following the program date in a manner prescribed by the CLE Committee. A late fee will be assessed for untimely submissions.

       (2)     Attorney Reporting.

              (A)     If an attorney has received program accreditation (see Rule 5(j)(2)), the attorney shall independently submit a certificate of attendance no later than 30 days following the program completion date in a manner prescribed by the CLE Committee. A late fee will be assessed for untimely submissions.

              (B)     If a program has not been accredited (see Rule 5(j)(2)), the attorney shall independently submit an application for accreditation and a certificate of attendance, together with the requisite fee, no later than 60 days following the program completion date in a manner prescribed by the CLE Committee. A late fee will be assessed for untimely submissions.

              (C)     Independent Study. Attorneys who apply to earn self-study credit through independent study shall submit a Certificate of Completion no later than 30 days following the completion date in a manner prescribed by the CLE Committee. A late fee will be assessed for untimely submissions.

              (D)     Authorship. Attorneys who author or co-author published written materials shall submit a Certificate of Completion together with a copy of the published written materials no later than 30 days following the publication date in a manner prescribed by the CLE Committee. A late fee will be assessed for untimely submissions.

(l)      Enforcement of MCLE Requirements.

       (1)     Attorneys who are deficient in their MCLE requirements at the end of the applicable reporting period shall be considered noncompliant. Noncompliant attorneys shall be entitled to an automatic grace period until the close of business on the last business day of February of the succeeding year to make up their deficiencies. Credit hours earned during that grace period may be counted toward compliance with the previous reporting period, and hours in excess may be used to meet the subsequent reporting period's requirement.

       (2)     Attorneys who remain deficient on the close of business on the last business day of February shall be assessed a noncompliance fee in an amount set by the CLE Committee.

       (3)     Attorneys who fail to meet the MCLE requirements shall have their right to practice law suspended subject to the provisions of Maine Bar Rules 4(g) and (h).

       (4)     Attorneys who are suspended pursuant to Maine Bar Rule 4(g) may seek reinstatement under Maine Bar Rule 4(i).

       (5)     If the CLE Committee has reason to believe that an attorney has submitted a false transcript or other false information to the CLE Committee, it shall forward the attorneys name to Bar Counsel for investigation pursuant to M.R. Prof. Conduct 8.4(c).

(m)      Confidentiality and Record Retention.

       (1)     The files, records, and proceedings of the CLE Committee, as they relate to or arise out of any failure of an attorney to satisfy the requirements of these rules, shall be deemed confidential and shall not be disclosed, except in furtherance of the duties of the CLE Committee, upon the request of the attorney affected, upon the request of Bar Counsel, or upon court order. Nonetheless, the files and records may be introduced in evidence or otherwise produced in proceedings under these rules.

       (2)     The Board shall retain program and course approval documentation, certificates of attendance, and attendance rosters, for a minimum of two years in paper or digital format. Annual Report Statements shall be retained in digital format for a minimum of 10 years.

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Advisory Note - May 2020

Rule 5(c)(4) is added to provide the Board’s CLE Committee the authority, for good cause shown based on an attorney’s specific circumstances, to waive the in-person attendance requirement for education on the recognition and avoidance or harassment and discrimination.

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Advisory Note May 2019

Rule 5(a) sets forth the purpose of Maine’s minimum continuing legal education (MCLE) requirement.

Rule 5(b) establishes a CLE Committee to oversee the administration of Rule 5.

Comparative language for proposed Rule 5(c), previously located in Rule 5(a), sets forth the MCLE requirements for active licensed attorneys.

Previously located in Rule 5(a), amended Rule 5(d) defines individuals who are exempt from Rule 5. New to this list are, among others, attorneys who are admitted under pro hac vice rules and new admittees to the Maine bar who complete an accredited new attorney program that focuses on basic skills and substantive law during the year in which they are admitted. (Such new admittees are exempt for that year and the following calendar year. See former Maine Bar Rule 5(a)(6).)

Amended Rule 5(e) bifurcates the annual attorney registration process and the annual attorney MCLE reporting process. This change properly aligns the CLE reporting period with the preceding calendar year compliance requirement. Like former Rule 4(b), attorneys are provided two months to demonstrate compliance for the reporting period. Enforcement of MCLE requirements is governed by Rule 5(l).

In order to transition from a fiscal year to a calendar year reporting system, and at the Board’s recommendation, attorneys will report for calendar years 2018 and 2019 on January 1, 2020. Thereafter, MCLE reporting will be conducted on January 1st for the prior calendar year reporting period.

Comparable language for amended Rule 5(f)(1), (5), (6), and (7) may be found, respectively, in former Rule 5(a)(7), (8), (9), and (2). Rules 5(f)(2), (3), and (4) have been added to formalize existing practices.

Comparable language for portions of Rule 5(g) may be found in former Rule 5(d). The amended rule contains added guidance regarding MCLE standards. The amended rule also provides a list of courses and activities that are ineligible for MCLE credit.

Rule 5(h) defines the various courses and activities that qualify for live or self-study credit, and the terms of accreditation. Taking its cue from other jurisdictions, the CLE Committee concluded that approved in-house programming falls squarely within the "live credit" definition. Under former Rule 5(d)(3), in-house programming only qualified for self-study credit. Also new to Rule 5(h): in order for video and webcast/webinar replays to qualify as "live credit," a qualified commentator must be available to answer questions and facilitate discussion among attendees.

Comparable language for Rule 5(i) may be found in former rule 5(d). The proposed rule also provides a process for the revocation of Approved Sponsor status.

Accreditation language may be found in former Rule 5(d). In order to ensure program applications are filed timely, the proposed rule imposes late fees for untimely submissions.

Rule 5(k) provides specificity with respect to how attorneys and sponsors must submit attendance rosters and certifications of attendance. In order to ensure timeliness, the proposed rule imposes late fees for untimely submissions.

Rule 5(l) defines the timeline in which attorneys must demonstrate compliance with Maine Bar Rule 5. Attorneys who fail to comply will be assessed a noncompliance fee (referred to as a late fee under current Rule 5(b)) and will be subject to the administrative suspension provisions of Rules 4(g) and (h). The rule also provides a process for the CLE Committee to advise Bar Counsel if an attorney files a false transcript or other false information.

Rule 5(m), derived from an existing Board policy, provides new language to address the confidentiality and retention of continuing legal education records.

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Advisory Note January 2019

Rule 5(a)(1) is amended to increase the required annual number of hours of CLE credits from 11 to 12 and to require that at least one live credit hour per year be primarily concerned with professionalism and one live credit hour per year be primarily concerned with the recognition and avoidance of harassment and discriminatory conduct or communication related to the practice of law as set out in the Maine Rules of Professional Conduct. This subdivision is also amended to require attorneys whose required hours are prorated or who register under emeritus status to complete the professionalism and harassment/discrimination credits.

Rule 5(a)(1)(A) is amended to specify "legal" malpractice and clarify that the list of professionalism topics is not exclusive.

Rule 5(a)(1)(B) is added to describe qualifying harassment and discrimination education topics.

Rule 5(a)(3) is amended to specify that no more than five credit hours per reporting period may be earned from in-house courses, self-study, or a combination of both.

Rule 5(a)(4) is amended to apply to an attorney who maintains a principal office for the practice of law in another jurisdiction, to eliminate the description of the CLE requirements of another jurisdiction as being "established by court rule or statute in that jurisdiction," and to eliminate the provision that, "[i]f the other jurisdiction does not require the equivalent of one professionalism education credit hour per year, the attorney must complete one approved professionalism education credit hour in each calendar year."

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Reporter’s Notes June 2015

Rule 5 is based on former Maine Bar Rule 12. The equivalent ABA Model Rule for Continuing Legal Education was adopted in 1989 and last revised in 2004. The ABA Model Rule was used as the foundation for former Maine Bar Rule 12, which was adopted by the Court in 2001. Therefore, recognizing that Rule 12 worked well in Maine, the committee used Maine’s rule for its discussions.

In Rule 5(a), the committee recognized that the effective date of Maine’s continuing legal education requirement and the emeritus status requirement are no longer needed in the Rule. Consequently, the committee deleted those references. The term "disability" has been deleted, recognizing that disability requests would be fall under "hardship" requests. Lastly, the revised rule identifies the Maine State Bar Association as the organization that sponsors the annual Bridging the Gap program, which provides attendees with a two-year exemption to this rule. The revised rule omits reference to the "initial members of the Commission" because that language is no longer applicable.

Rule 5(b) is based on former Maine Bar Rule 12(b). The revised rule is consistent with the current rule and Board practice.

Rule 5(c) is based on former Maine Bar Rule 12(e). The revised rule is consistent with the current rule and Board practice.

Rule 5(d) is based on former Maine Bar Rule 12(f). The revised rule is consistent with the current rule and Board practice.

RULE 6. Maintenance of Trust Accounts in Approved Institutions: IOLTA

(a)      Clearly Identified Trust Accounts in Eligible Institutions Required. Every lawyer admitted to practice in Maine shall deposit all funds held in trust in this jurisdiction in accordance with Rule 1.15 of the Maine Rules of Professional Conduct in accounts clearly identified as IOLTA accounts in eligible institutions and shall take all steps necessary to inform the depository institution of the purpose and identity of the accounts. Funds held in trust include funds held in any fiduciary capacity in connection with a representation, whether as trustee, agent, guardian, executor or otherwise.

(b)      Reporting and Certification Every lawyer admitted to practice in Maine shall annually certify to the Board in connection with the annual renewal of the lawyer's registration, that, to the lawyer's knowledge after reasonable investigation:

(1)      (A) the lawyer or the lawyer's law firm maintains at least one IOLTA account; and (B) the lawyer has taken reasonable steps to ensure that all client funds are held in IOLTA accounts meeting the requirements of these Rules; or

(2)      the lawyer is exempt from maintaining an IOLTA account because the lawyer:

          (A)      is not engaged in the private practice of law;

          (B)      does not have an office within Maine;

          (C)      is (1) a judge employed full-time by the United States Government, the State of Maine or another state government; (2) on active duty with the armed services; or (3) employed full-time as an attorney by a local, state, or federal government, and is not otherwise engaged in the private practice of law;

          (D)      is counsel for a corporation or non-profit organization or a teacher or professor employed by an educational institution, and is not otherwise engaged in the private practice of law;

          (E)      has been exempted by an order of the Court that is cited in the certification; or

          (F)      holds no client funds.

(c)      IOLTA Account Requirements.

(1)      An IOLTA account is a pooled trust account earning interest or dividends at an eligible institution in which a lawyer or law firm holds funds on behalf of clients, which funds are small in amount or held for a short period of time such that they cannot earn interest or dividends for the client in excess of the costs incurred to secure such income and the account is:

(A)      an interest-bearing checking or share draft account;

(B)      a money market account with or tied to check-writing;

(C)      an account whose funds are invested solely in repurchase agreements; or

(D)      an account whose funds are invested solely in qualified money market funds.

     A "qualified money market fund" is an open-end investment company registered under the Investment Company Act of 1940 that is regulated as a money market fund under Rule 270.2a-7 thereof (or any successor regulation) and that, at the time of the investment, has total assets of at least $250,000,000, substantially all of which are invested in U.S. Government Securities. A repurchase agreement is a daily overnight repurchase agreement which must be fully collateralized by U.S. Government Securities and may be established only with a bank or other depository institution that is deemed to be well capitalized or adequately capitalized under applicable regulations of the Federal Deposit Insurance Corporation and National Credit Union Share Insurance Fund. U.S. Government Securities, for the purpose of this section, include securities of Government Sponsored Entities, including but not limited to Federal National Mortgage Association Securities, Government National Mortgage Association Securities, and Federal Home Loan Mortgage Corporation Securities.

    Eligible Institutions. An eligible institution for trust accounts or IOLTA is a bank, trust company, savings bank, credit union, or savings and loan association authorized by federal or state law to do business in Maine, the deposits of which are insured by an agency of the federal government, and which has been designated by the Maine Justice Foundation as an eligible institution.

(2)      The Maine Justice Foundation shall establish guidelines governing approval and termination of eligible status for financial institutions, and shall annually publish a list of eligible financial institutions.

(3)      Overdraft Notification Agreement Required. To qualify as an eligible institution, a financial institution must file with the Maine Justice Foundation an agreement, in a form provided by the Maine Justice Foundation, to report to the Board whenever any properly payable instrument is presented against a lawyer trust account containing insufficient funds, irrespective of whether or not the instrument is honored. No trust account shall be maintained in any financial institution that does not agree to so report. Any such agreement shall apply to all branches of the financial institution and shall not be cancelled except upon 60 days' notice in writing to the Maine Justice Foundation. The overdraft notification agreement shall provide that all reports made by the financial institution shall be in the following format:

          (A)      In the case of a dishonored instrument, the report shall be identical to the overdraft notice customarily forwarded to the depositor, and shall include a copy of the dishonored instrument, if such a copy is normally provided to depositors;

          (B)      In the case of instruments that are presented against insufficient funds but which instruments are honored, the report shall identify the financial institution, the lawyer or law firm, the account number, the date of presentation for payment, and the date paid, as well as the amount of overdraft created thereby; and

          (C)      Timing of Reports. Reports under Rule 6(c)(5)(B) shall be made simultaneously with, and within the time provided by law for notice of dishonor, if any. If an instrument presented against insufficient funds is honored, then the report shall be made within five banking days of the date of presentation for payment against insufficient funds.

(4)      IOLTA Requirements. In addition to the requirements above, to qualify as an eligible institution for the maintenance of IOLTA, the institution must meet the following requirements:

          (A)      remit the interest and dividends on this account, net of any allowable reasonable fees, at least quarterly to the Maine Justice Foundation;

          (B)      transmit with each remittance a report on a form approved by the Maine Justice Foundation that shall identify each lawyer or law firm for whom the remittance is sent, the amount of remittance attributable to each IOLTA account, the rate and type of interest and dividends applied, the amount of interest and dividends, the amount and type of account-related charges deducted, if any, and the average account balance for the period in which the report is made;

          (C)      transmit to the depositing lawyer or law firm a report in accordance with normal procedures for reporting to its depositors; and

          (D)      pay on IOLTA accounts interest or dividends no less than the highest interest rate or dividend generally available from the institution to its non-IOLTA customers on accounts having similar minimum balances and other eligibility qualifications. Interest or dividends and fees shall be calculated in accordance with the eligible institutions standard practice. In determining the highest interest rate or dividend generally available from the institution to its non-IOLTA customers, an institution may consider in addition to the balance in the IOLTA account, factors customarily considered by the institution when setting interest rates or dividends for its non-IOLTA customers, provided that such factors do not discriminate between IOLTA accounts and other accounts and that these factors do not include the fact that the account is an IOLTA account. The eligible institution shall calculate interest and dividends in accordance with its standard practice for non-IOLTA customers. The eligible institution may choose to pay the higher interest rate or dividend on an IOLTA account in lieu of establishing it as a higher rate product. Nothing contained in this rule will be deemed to prohibit an institution from paying a higher interest rate or dividend on IOLTA accounts than required by this rule or from electing to waive any fees and service charges on an IOLTA account. Lawyers may only maintain IOLTA accounts at eligible institutions that meet this rules requirements, as determined from time to time by the Maine Justice Foundation.

Eligible institutions may comply with the rate requirements of this rule by electing to pay an amount on funds that would otherwise qualify for the options noted above, equal to the greater of (1) a 1% interest rate or (2) 65% of the Federal Funds Target Rate in effect on July 1 of each year, which rate remains in effect for twelve months, and which amount is deemed to be already net of allowable reasonable fees.

(d)      Verification of Bank Accounts.

(1)      Generally. Whenever Bar Counsel has evidence that bank or trust accounts of a lawyer that contain, should contain, or have contained funds belonging to clients have not been properly maintained or that the funds have not been properly handled, Bar Counsel shall request the approval of the Chair of the Board to initiate an investigation for the purpose of verifying the accuracy and integrity of all bank accounts maintained by the lawyer. If approval is granted, Bar Counsel shall proceed to verify the accuracy of the bank accounts.

(2)      Confidentiality. Investigations, examinations, and verifications shall be conducted so as to preserve the private and confidential nature of the lawyers records insofar as is consistent with these Rules and the lawyer-client privilege.

(e)      Maine Justice Foundation.

(1)      IOLTA Accounting.

          (A)      Beginning in 2020, on or before April 15 of each year, the Maine Justice Foundation shall complete a financial analysis of the IOLTA funds received and distributed by the Foundation during the previous calendar year and shall prepare an Annual Financial Report that will be available to the public.

          (B)      The Annual Financial Report shall

                (i)      Be prepared according to generally accepted accounting principles;

                (ii)      Include the specific allocation of IOLTA funds to the various providers, programs, and projects for the previous year;

                (iii)      Include the total funds that were set aside for reserves;

                (iv)      Include the total IOLTA funds that were allocated to administrative costs of the Maine Justice Foundation; and

                (v)      Include the categories of the rates paid by participating Banks.

          (C)      Copies of the Annual Financial Report of IOLTA funds shall be provided to the Supreme Judicial Court on or before April 15 each year.

(2)      Administrative Costs of the Maine Justice Foundation. Effective in the calendar year beginning on January 1, 2021, no more than 22% of annual IOLTA funds may be allocated to the administrative costs of the Maine Justice Foundation, except that a floor of $120,000 in administrative costs from IOLTA funds is hereby established. To allow prospective budgeting of administrative costs, the calculation of the 22% for any upcoming calendar year shall be determined by computing the average of the annual IOLTA funds received during the three calendar years preceding the calendar year before the year for which the administrative budget is being established and multiplying that number by 0.22.¹

(3)      Use of IOLTA Funds.IOLTA funds received and distributed pursuant to this Rule are intended to provide services that maintain and enhance resources available for access to justice in Maine, including those services that achieve improvements in the administration of justice and provide legal services, education, and assistance to low-income, elderly, or needy clients.

(f)      Receipt of Voluntary Contributions. As part of its notification to attorneys to file annual registration statements, the Board may invite attorneys to make a voluntary contribution to the Campaign for Justice to assist in the funding of legal services for low income individuals. The Board may also provide a means for making the voluntary contribution at the same time that the annual fee is paid and is authorized to utilize its administrative staff and facilities to receive these voluntary contributions and forward them to the Campaign for Justice.

(g)      Consent by Lawyers. Every lawyer practicing or admitted to practice in Maine shall, as a condition thereof, be conclusively deemed to have consented to the reporting, verification, and production requirements mandated by this rule. Such consent specifically includes authorization to the disclosure by financial institutions of all bank or trust account records and information as requested of them by Bar Counsel for the purposes of verification and investigation pursuant to Rule 6(d).

(h)      Costs. Nothing herein shall preclude a financial institution from charging a particular lawyer or law firm for the reasonable cost of producing the reports and records required by this rule.

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Footnote

¹For example, the 22% cap for calendar year 2021 would be calculated by averaging the total IOLTA revenues from calendar years 2017, 2018, and 2019, and multiplying that average annual revenue by 0.22.

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Reporters Notes - June 2015

Rule 6 is based upon IOLTA rules embodied in former Maine Bar Rule 6(a), Maine Rule of Professional Conduct 1.15(b), and ABA Model Rules for Trust Account Overdraft Notification. The latter Rule is incorporated in substance at Rule (6)(c)(3). It requires that participating financial institutions notify the Board if any IOLTA account check issued by the institutions customer/lawyer is presented against a lawyer trust account containing insufficient funds, irrespective of whether or not the instrument is honored. Although the overdraft notification provision is a significant departure from current Maine practice, it puts Maine in line with the overwhelming majority of U.S. jurisdictions that currently provide for overdraft notification. Another departure from current Maine practice is Rule 6(d), which allows Bar Counsel, in certain circumstances, to verify the accuracy and integrity of a lawyers bank account(s). The committee concluded that both the verification provision and the overdraft notification provisions will serve to protect the public and the interest of the clients.

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Advisory Note January 2017

These various amendments to Rule 6 are necessitated to properly reference the Maine Justice Foundation which in 2016 replaced the Maine Bar Foundation as the bars agency that helps those individuals desperate for civil legal aid in Maine.

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Background to IOLTA Rule Amendment Effective July 1, 2019

RULE 7. Fee Arbitration Commission

(a)     Commission.

(1)   Appointment The Board shall appoint five or more Fee Arbitration Commission panels, each of which shall be assigned a geographic region of the state. Each panel shall consist of two attorneys licensed to practice law in Maine and one public member who is a Maine resident. The Board shall appoint alternate attorneys and public members to serve on the Fee Arbitration Commission as members at large. Each year the Board shall also appoint a Chair and Vice Chair of the Fee Arbitration Commission from among the Commissions attorney members. The Chair or Vice Chair shall appoint one of the attorney members of each panel to chair that panel.

(2)   Terms of Office. Panel members shall be appointed for a term of four years. No member shall serve more than two consecutive four-year terms. A member whose term has expired may continue to serve on any case that was commenced before the expiration of the member's term. As each regular member's term of office on the Fee Arbitration Commission expires, a successor shall be appointed for no more than two consecutive full terms but a regular member appointed for less than a full term (originally or to fill a vacancy) may serve two additional full terms. A member who has served two consecutive four-year terms may not be reappointed before the expiration of at least one year. Members shall not be subject to removal by the Board during their terms of office except for cause.

(3)   Representation Prohibition. No member of the Fee Arbitration Commission may be legal counsel for a party in any proceedings under these Rules. When a member of the Commission members firm serves as legal counsel for a party in any proceeding under this rule, the Commission member may perform Commission responsibilities unrelated to that proceeding, provided that the Commission member is timely screened from any participation in or relating to that proceeding, at both the Commission members firm and the Commission.

(4)    Upon conclusion of service, members shall take reasonable steps to destroy all documents, in paper or electronic format, relating to the proceedings of the Board subject to the confidentiality provisions of these Rules.

(b)   Powers and Duties. The Fee Arbitration Commission shall have the following powers and duties:

(1)     to interpret this rule;

(2)    to approve forms;

(3)    to establish written procedures that afford a full and equal opportunity to all parties to present relevant evidence;

(4)    to educate the public and the bar about the Fee Arbitration Commission; and

(5)    to perform all acts necessary for the effective operation of the Fee Arbitration Commission.

(c)   Board Clerk. The Board Clerk shall perform the administrative functions of the Commission. The Board Clerk shall have the following powers and duties:

(1)   to keep and maintain records of all petitioners and respondents, as well as all proceedings, determinations and awards of the Fee Arbitration Commission;

(2)    to process Fee Arbitration cases and communicate with parties to the dispute;

(3)   to schedule Fee Arbitration hearings;

(4)   to process and disseminate Arbitration Awards to the appropriate groups and parties; and

(5)   to perform such additional duties as may be assigned by the Board or the Fee Arbitration Commission.

(d)   Procedures.

(1)   Initiation of Proceedings. Proceedings before the Fee Arbitration Commission shall be initiated upon receipt of a petition regarding legal fees and/or costs paid to or charged by an attorney providing legal services in Maine. The petitioner shall:

         (A)    set forth the petitioner's full name and current address and the attorney with whom the petitioner has a dispute;

         (B)     agree to be bound by the decision of a Fee Arbitration Panel;

         (C)     represent that the petitioner has made a good faith effort to resolve the dispute with the attorney involved before filing the petition; and

         (D)     state whether the dispute is the present subject of legal action and certify that the matter has not been finally adjudicated by a court or administrative agency. If the dispute is currently the subject of other judicial or administrative proceedings, such proceedings shall be identified in the petition.

(2)    Pending Action. If there is a pending action or proceeding before a Maine court or agency involving the disputed fees, then such matter shall, upon motion of the petitioner, be stayed by that tribunal until such dispute is resolved pursuant to this rule, and the award hereunder shall be determinative of the action so stayed.

(3)     Preliminary Review by Board Clerk. Upon filing, a petition shall be expeditiously reviewed by the Board Clerk. If the Board Clerk determines that there are no just grounds for the dispute, or that the matter is moot, or that the arbitrationwhas not commenced within six years from the time the bill in dispute was rendered or the fee paid in whole or part, whichever occurs first, the Board Clerk may recommend that the Chair or Vice Chair of the Fee Arbitration Commission dismiss the matter. When recommending a dismissal, the Board Clerk shall provide a concise written statement of the facts and reasons why a matter should be dismissed to the Chair or Vice Chair of the Fee Arbitration Commission. If the Chair or Vice Chair concurs with the Board Clerk's recommendations, the matter shall be closed and the petitioner so advised. If the Chair or Vice Chair rejects the Board Clerk's recommendations, the matter shall proceed under this rule.

(4)    Petition Filed by Non-Client. When a petition is filed by a non-client of the named respondent attorney, the Board Clerk shall provide the client with notice of the petition and request that within 10 days the client consent in writing to the filing and processing of the petition under this rule. Should the client fail to provide consent, the Board Clerk shall refer the matter to the Chair or Vice Chair for determination whether any action under this rule is appropriate for the Fee Arbitration Commission or if dismissal is required.

(5)     Notice to Respondent. A blank form captioned "Respondent's Reply and Submission to Arbitration" shall be forwarded to the respondent. If the respondent fails, without good cause, to file a reply within 30 days after the mailing, the panel may proceed to hear the petition and make its findings and award upon the evidence produced by the petitioner. The panel may, at its discretion, refuse to consider evidence offered by the respondent that would reasonably be expected to have been disclosed in the Respondent's Reply. Upon receipt of Respondents Reply, the Board Clerk shall forward a copy of the same to the petitioner.

(6)    Notice of Client's Right to Arbitrate Legal Fees. At least 30 days before service or filing of a complaint in a civil action against an attorney's client or former client (hereinafter client) to recover fees for professional services previously rendered and/or costs incurred for which no judgment has previously been obtained, an attorney shall mail to the client at the client's last known address, and to the person liable for the payment of the attorneys fees if other than the client, at that person's last known addresses, a written notice of the right to arbitrate, which shall include the following language:

You currently owe the sum of $____ in legal fees [and costs] to [name of attorney or firm]. If you dispute the fact that you owe any part of the amount claimed to be due, you have the right to have the matter resolved without additional expense to you by arbitration before a panel of the Fee Arbitration Commission. Forms and instructions for filing a petition for arbitration are available from the Board of Overseers of the Bar [insert Board address, phone number and website URL].

(7)    Failure to Give Notice. No attorney shall seek to enforce a judgment against a client for attorney fees or costs which have been entered without having provided that client with the required notice of the right to arbitrate as set forth above.

(8)    Referral to Arbitration Panel.

          (A)    Panel Composition. After notification of appointment to a panel, assigned panel members shall notify the Board Clerk of any conflict of interest with a party to the arbitration. Upon notification of the conflict, the Board Clerk shall appoint a replacement from the list of Fee Arbitration Commission members. Parties may object in writing to the composition of a panel, and the Fee Arbitration Commission may relieve the disqualified panel member and appoint a replacement.

          (B)     Notice of Hearing. The Board Clerk shall make a reasonable effort to assign the matter for hearing within 60 days after the date of receipt of the petition. The Board Clerk shall also provide petitioner and the respondent written notice of the date, time and place of hearing.

          (C)    Dismissal. If not earlier resolved pursuant to Rule 7(d)(3), a petition shall later be dismissed by the Board Clerk upon the petitioner's submission of a written request for dismissal prior to the respondent's filing of a reply to the dispute. After the respondent files a reply to the dispute, the petition shall not otherwise be dismissed except by order of the chair of the assigned hearing panel or of the Chair or Vice Chair of the Fee Arbitration Commission.

(9)    Right to Counsel. Each party to a dispute shall have the right to be represented at the party's own expense by an attorney at any stage of the arbitration. For cause shown, or on its own motion, the Chair or Vice Chair may, in its discretion, authorize the Board Clerk to obtain the volunteer services of and assign an attorney to represent either the petitioner or the respondent in any proceeding before the panel.

(10)    Communications. Any notice or other communication required by this rule shall be sufficient if in accordance with the requirements of Rule 15. Notice to a petitioner shall be made to the address set forth by petitioner in the petition.

(e)    Arbitration Hearing.

(1)    If, at the time set for a hearing before a panel, three members are not present, the chair of the panel, or in the event of the chair's unavailability, the other members present, may decide either to postpone the hearing, or, with the written consent of those parties present, to proceed with the hearing with two panel members, one of whom must be a public member.

(2)    If any member of a panel dies or becomes unable to continue to act while the matter is pending and before an award has been issued, the proceedings to that point shall be declared null and void and the matter assigned to a new panel for rehearing unless the parties, with the consent of the panel chair, or in the event of the chair's unavailability, the Chair or Vice Chair of the Fee Arbitration Commission, consent to proceed with the remaining panel members, one of whom must be a public member.

(3)    The members of the arbitration panels shall be vested with all of the powers, and shall assume all of the relevant duties, granted and imposed upon neutral arbitrators by the Uniform Arbitration Act, 14 M.R.S. § 5927 et seq., to the extent that the same is not in conflict with this rule.

(4)    On the hearing date, the arbitration panel shall meet, take testimony, receive other evidence and otherwise conduct an impartial, fair and expeditious hearing on the matter. The panel shall accept such evidence as is relevant and material to the dispute and request additional evidence as necessary to understand and resolve the dispute. The parties shall be entitled to be heard, to present evidence and to cross-examine parties and witnesses. The panel shall judge the relevance and materiality of the evidence.

(5)    Upon request of a party or upon its own determination, a panel or its chair may, for good cause shown, adjourn or postpone the hearing.

(6)    The chair of the panel shall preside at the hearing. For purposes of admissibility, the chair shall be the judge of the relevance and materiality of the evidence offered and shall rule on questions of procedure. The chair shall exercise all powers relating to the conduct of the hearing. Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The panel may exclude irrelevant, unduly repetitious, or unduly prejudicial evidence. The Maine Rules of Evidence shall not apply at the hearing.

(7)    The petitioner and the respondent, or counsel representing either of them, shall be entitled to be heard, to present evidence and to cross-examine parties and witnesses appearing at the hearing. In addition, any panel member shall be entitled to make inquiries of any party or witness at the hearing. The testimony of witnesses shall be by oath or affirmation administered by the panel chair.

(8)    Appearance by a party at a scheduled hearing shall constitute waiver by said party of any deficiency with respect to the giving of notice of hearing. If a party who has been notified of the time, date, and place of the hearing in accordance with the procedures of this rule fails to appear at the hearing, an arbitration panel or its chair may either postpone the hearing or proceed with the hearing and determine the controversy upon the petition, reply, and other evidence produced.

(9)    The Board shall cause all proceedings before the panel to be stenographically or electronically recorded in a form that will readily permit transcription. A hearing transcript or partial transcript may be ordered at any time by the Fee Arbitration Commission panel, the petitioner, the respondent, or the Board. When ordering a transcript, the respondent or petitioner must provide a copy of the requested transcript to the opposing party and the Board at that partys own expense.

(10)    Death or Incompetency of a Party. In the event of death or incompetency of a party, the personal representative of the deceased party or the guardian or conservator of the incompetent may be substituted.

(11)    A witness or party may be summoned by subpoena to appear before a Fee Arbitration Commission panel pursuant to the procedures set forth in Rule 16.

(12)    In the event there is no written agreement or engagement letter between the parties concerning fees and expenses as to the particular matter in dispute, the respondent shall bear the burden of proof of an agreement, or other basis for recovery of fees and expenses, and of the reasonableness of the fees and expenses.

(f)    Arbitration Award.

(1)    The decision of the arbitration panel shall be expressed in a written award accompanied by a confidential addendum expressing the specific reasons for the award, signed by the panel chair on behalf of the panel, and thereupon filed with the Board Clerk. If there is a dissent, it shall be signed separately by the dissenting panel member. If the hearing is held before a two member panel, both panel members must be in agreement regarding the disposition of a case. Absent such agreement, the matter will be rescheduled for a new hearing before a different panel. An award may also be entered on consent of the parties.

(2)    The decision and award of the arbitrators shall contain a statement of the amount or nature of the award, if any, and the terms of payment, if applicable. Clerical mistakes arising from oversight or omission may be corrected at any time by the panel chair or the Board Clerk at the Fee Arbitration Commissions initiative or on the motion of a party.

(3)    The award of the arbitration panel shall be rendered within 30 days after the close of the hearing, unless otherwise extended by the Chair or Vice Chair of the Fee Arbitration Commission.

(4)    A copy of the decision containing the award and the accompanying confidential addendum shall be promptly forwarded by the Board Clerk to the petitioner, and the respondent, or their respective counsel; the Chair and Vice Chair of the Fee Arbitration Commission; and the Board.

(g)     Enforcement and Challenges to Award. Whenever an arbitration panel finds by its award that all or part of the fee paid by the petitioner should be refunded by the respondent, the attorney shall make the awarded refund within 30 days of receipt of the award, unless otherwise provided for in the award. If the respondent fails to make the awarded refund within the applicable timeframe, the Board Clerk shall refer the matter to Bar Counsel for action pursuant to Rule 14(b)(5). The award rendered by an arbitration panel may be enforced in accordance with the Uniform Arbitration Act, 14 M.R.S. § 5927 et seq. Section 5928 of Title 14, relating to proceedings to compel or stay arbitration is not applicable to proceedings under this rule. The award may be challenged on the limited grounds, and by the procedure, set forth in 14 M.R.S. § 5938.

(h)    Confidentiality. With the exception of the award itself, the confidential addendum as well as all petitions, replies, records, documents, files, proceedings, and hearings pertaining to arbitrations of any fee dispute under this rule and these procedures shall be confidential, and, unless otherwise ordered by the Court, shall not be open to the public, press, or any person not involved in the dispute, excepting only the staff and members of the Fee Arbitration Commission, the Board, and the Committee on Judicial Responsibility and Disability in connection with any complaint within its jurisdiction. Notwithstanding this confidentiality, any person, including but not limited to members of the Board, members of the Fee Arbitration Commission and Board staff may notify governmental officials of actual or threatened criminal conduct by any individual. Access to relevant information may also be provided to authorized agencies.

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Reporters Notes June 2015

Rule 7(a) is based on the Model Rules for Fee Arbitration Rule 2(A) and is consistent with former Maine Bar Rule 9(a). The committee adopted the language of former Maine Bar Rule 9(a), with the following notable changes: 1) The position of Fee Arbitration Commission Vice Chair was created, and 2) the term duration of Fee Arbitration Commission members was increased from three years to four years in order to be consistent with the terms of Grievance Commission members.

Rule 7(b) is based on the Model Rules for Fee Arbitration Rule 2(C). There is no direct analogue in the former Maine Bar Rules, and the committee substantially adopted the language of Model Rule 2(C).

Rule 7(c) is based on former Maine Bar Rule 9(d). There is no equivalent Model Rule. The revised rules language reflects the creation of the Board Clerk position and more specifically delineates the duties of the Board Clerk in the Fee Arbitration process.

Rule 7(d) is based on the Model Rules for Fee Arbitration Rules 4 and 5, and is consistent with former Maine Bar Rule 9(e), albeit with revisions. First, the Commission found that the Initial Resolution Period discussed in former Maine Bar Rule 9(e)(2) created unnecessary delay in processing fee arbitration petitions, and thus, revised rule 7(d) eliminates this 30-day period. Second, revised rule 7(d)(5), in contrast with former Maine Bar Rule 9(e)(4)(A), no longer requires that the Respondent Reply form be sent to the respondent via certified mail, return receipt requested. Third, to address the issue of respondents failing to file a Reply and then submitting an excessive number of documents at hearing, Rule 7(d)(5) now contains the provision that a panel may refuse to consider evidence offered by the attorney that would reasonably be expected to have been disclosed in the Reply. Fourth, in comparison to former Maine Bar Rule 9(e)(5)(E) which only requires an attorney to mail the Notice of Right to Arbitrate Legal Fees to the client, Rule 7(d)(6) requires an attorney to mail the notice to both the client and the person liable for the payment of the attorneys fees if other than the client.

Rule 7(e) is based on the Model Rules for Fee Arbitration Rule 5, and is consistent with former Maine Bar Rule 9(g). After some discussion, the committee decided to continue the practice of allowing a fee arbitration proceeding to go forward with a two person panel in circumstances where one panel member is absent, but concluded that, consistent with the former Maine Bar Rule, one member of the two-person panel must be a public member. Additionally, the committee decided not to adopt the Model Rule prohibition on recording fee hearings. However, the revised rule requires that requests to schedule a court reporter to record a hearing must go through the Board Clerk.

Rule 7(f) is based on the Model Rules for Fee Arbitration Rule 6, and is consistent with former Maine Bar Rule 9(h). To increase the efficiency of issuing decisions, the revised rule allows panel chairs to sign awards on behalf of the full panel. The revised rule also grants the Board Clerk authority to correct clerical mistakes in decisions. Additionally, the revised rule extends the period in which awards must be rendered from the former Maine Bar Rule twenty day deadline to the Model Rule thirty-day deadline.

Rule 7(g) is based on the Model Rules for Fee Arbitration Rule 7, and is consistent with former Maine Bar Rule 9(i). The committee elected not to include the Model Rules language regarding non-binding fee arbitration.

Rule 7(h) is based on the Model Rules for Fee Arbitration Rule 8, and is consistent with former Maine Bar Rule 9(j). The revised rule more specifically delineates who may have access to confidential documents. In contrast to the Model Rule, the former Maine Bar Rule and the revised rule do not designate Awards as confidential.

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Advisory Note April 2018

Rule 7(e)(9) is amended to require the Board to ensure that all hearings before a panel of the Fee Arbitration Commission are recorded.

RULE 8. Professional Ethics Commission

(a)     Appointment. The Board shall appoint eight attorney members to the Professional Ethics Commission.

(b)     Terms of Office. Members shall be appointed for a term of four years. No member shall serve for more than two consecutive four-year terms, except that members shall continue to serve until a replacement has been appointed. A member who has served two consecutive four-year terms may not be reappointed before the expiration of at least one year. The Board may not remove members during their terms of office except for cause.

(c)     Quorum and Action. A quorum shall exist for the purposes of the Professional Ethics Commission's exercise of its authority and duties when a majority of its members are present. The concurrence of a majority of such members present shall be sufficient for any action taken.

(d)     Powers and Duties. The Professional Ethics Commission shall have the following powers and duties:

(1)     to render advisory opinions to the Court, the Board, Bar Counsel, and the Grievance Commission on matters involving the interpretation and application of the Maine Rules of Professional Conduct;

(2)     to receive ethical questions posed by members of the Maine bar involving the Maine Rules of Professional Conduct and to determine whether to issue a formal advisory opinion;

(3)     to make recommendations to the Board or to the Advisory Committee on the Rules of Professional Conduct regarding amendments to the Maine Rules of Professional Conduct; and

(4)     to maintain an indexed compilation of its opinions.

(e)     Opinions as Evidence. Opinions of the Professional Ethics Commission shall be admissible in any proceeding in which the interpretation or application of a provision of the Maine Rules of Professional Conduct is at issue.

(f)     Confidentiality With the exception of an advisory opinion finally rendered pursuant to this rule, all inquiries, replies, records, documents, files, and proceedings pertaining to the interpretation of ethical rules and the rendering of advisory opinions with respect thereto shall be confidential, and, unless otherwise ordered by the Court, shall not be opened to the public, press, or any person not involved in the rendering of the advisory opinions, excepting only the staff and members of the Professional Ethics Commission and their professional associates actively involved in working on an advisory opinion for such member, the staff and members of the Grievance Commission, Bar Counsel, the staff and members of the Board, and the Court. No person shall publicly disclose the identity of another individual whose conduct was the subject of an advisory opinion without the consent of that individual.

(g)     Destruction of Confidential Documents. Upon conclusion of service, members shall take reasonable steps to destroy all documents, in paper or electronic format, relating to the proceedings of the Board and subject to the confidentiality provisions of these rules.

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Reporter?s Notes ? June 2015

Rule 8(a) is consistent with former Maine Bar Rule 4(d)(20) appointing eight attorney members to serve on the Professional Ethics Commission. There is no Model Rule equivalent.

Rule 8(b) is based on former Maine Bar Rule 11(a). There is no Model Rule equivalent. The revised rule omits reference to the ?initial members of the Commission? because such a situation is no longer applicable. The revised rule adds that Commission members shall not be subject to removal by the Board except for cause.

Rule 8(c) is based on former Maine Bar Rule 11(b). There is no Model Rule equivalent. The committee adopted the former Maine Bar Rule in its entirety.

Rule 8(d) is based on former Maine Bar Rule 11(c). There is no Model Rule equivalent. The most significant change reflected by the revised rule is the elimination of the mandates of former Maine Bar Rule 11(c)(3), which requires the maintenance of a library containing opinions on ethical questions. Due to widespread Internet usage, the commission viewed the dictates of former Maine Bar Rule 11(c)(3) as outdated and no longer necessary.

Rule 8(e) is based on former Maine Bar Rule 11(d). There is no Model Rule equivalent. The committee adopted the former Maine Bar Rule in its entirety.

Rule 8(f) is based on former Maine Bar Rule 11(f). There is no Model Rule equivalent. The committee adopted the former Maine Bar Rule in its entirety.

RULE 10. Jurisdiction

(a)   Lawyers Admitted to Practice. Any lawyer admitted to practice law in Maine is subject to the disciplinary jurisdiction of the Court and the Board. This includes any formerly admitted lawyer with respect to acts committed prior to resignation, surrender of license, suspension, disbarment, or transfer to inactive status, or with respect to acts subsequent thereto which amount to the practice of law or constitute a violation of these Rules or of the Maine Rules of Professional Conduct or any Rules or Code subsequently adopted by the Court in lieu thereof, and any lawyer specially admitted by a Maine court for a particular proceeding, and any lawyer not admitted in Maine who practices law or renders or offers to render any legal services in Maine.

(b)   Former Judges. A former justice or judge who has resumed the status of a lawyer is subject to the jurisdiction of the Board not only for conduct as a lawyer but also for misconduct that occurred while the lawyer was a judge and would have been grounds for lawyer discipline, provided that the misconduct was not the subject of a judicial disciplinary proceeding as to which there has been a final determination by the Court. Misconduct by a justice or judge that is not finally adjudicated before the justice or judge leaves office falls within the disciplinary jurisdiction of the Board. The Board shall coordinate with the Committee on Judicial Responsibility and Disability in any investigations or proceedings concerning a justice or judge arising out of the same or related conduct.

(c)   Incumbent Judges. Incumbent justices or judges shall not be subject to the jurisdiction of the Board; however, if an incumbent justice or judge is to be removed from office in the course of a judicial discipline or disability proceeding, the Court shall first afford the Board and the respondent an opportunity to submit a recommendation whether lawyer discipline should be imposed, and if so, the extent thereof.

(d)   Powers Not Assumed. These Rules shall not be construed to deny to any court the powers necessary to maintain control over its proceedings.

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Reporter?s Notes ? June 2015

Rule 10(a) adopts Model Rule 6(A) in its entirety and corresponds to former Maine Bar Rule 1(a). The committee felt that the Model Rule accurately reflects current Maine practice and does not expand or diminish the jurisdiction of the Board.

Rule 10(b) adopts Model Rule 6(B) in its entirety and adds in the stipulation that the Board shall coordinate with the Committee on Judicial Responsibility and Disability in investigations involving judges and justices. The revised rule corresponds to former Maine Bar Rule 1(a).

Rule 10(c) adopts Model Rule 6(C) in its entirety and has no equivalent in the former Maine Bar Rules. The commission believed that affording the Board an opportunity to be heard on the subject of lawyer discipline protects the right of the profession to preserve the high standards of conduct that it maintains in the public interest.

Rule 10(d) adopts Model Rule 6(D) in its entirety and has no equivalent in the former Maine Bar Rules.

RULE 11. Statute of Limitations

Proceedings under these Rules shall be exempt from all statutes of limitations.

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Reporter?s Notes ? June 2015

Rule 11 corresponds to Model Rule 32. It has no equivalent in the former Maine Bar Rules but is in accord with current Maine practice. The members of the committee thought that it was important to expressly recognize that statutes of limitation are inappropriate in disciplinary proceedings established by these Rules because misconduct by a lawyer, whenever it occurs, reflects upon the lawyer?s fitness to practice. Client protection requires that grievance proceedings be exempt from statutes of limitations.

RULE 12. Immunity

The Board of Overseers of the Bar is a quasi-judicial agent of the Court. The Board, members of the Board; members of Grievance Commission panels; members of Fee Arbitration Commission panels; Bar Counsel, monitors, and any person acting on their behalf; and the Board?s staff shall be immune from suit or claim for conduct and communications in the course of their official duties, to the extent provided by statute and other provisions of law.

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Reporter?s Notes ? June 2015

Rule 12 represents a change from former Maine Bar Rules 4(e), 5(g), and 7.3(a), and from Model Rule 12. The committee recommended that Rule 12 maintain similar provisions for immunity. Under the revised rule adopted by the Court, immunity is provided to agency personnel to the full extent provided by statute and other provisions of law but without an independent grant of immunity.

RULE 9. Grievance Commission

(a)   Appointment. The Board shall appoint five or more Grievance Commission panels. Each Grievance Commission panel shall consist of two attorney members and one public member. The Board shall also appoint alternate attorney members and public members to serve on the Grievance Commission. The Board shall appoint the Chair and Vice Chair of the Grievance Commission each year from among the attorney members of the Grievance Commission. The Chair or Vice Chair shall appoint a lawyer member of each panel each year as chair of that panel.

(b)   Terms of Office. Panel members shall be appointed for a term of four years. No member shall serve for more than two consecutive four-year terms. A member whose term has expired may continue to serve on any case that was commenced before the expiration of the member's term. A member who has served two consecutive four-year terms may not be reappointed before the expiration of at least one year. The Board may not remove members during their terms of office except for cause. The Board may defer the reappointment of commission members who are temporarily removed pursuant to Rule 1(d)(2).

(c)   Representation Prohibition. No member may be legal counsel for a party in any proceedings under Rules 10-32. When a member of the panel member's firm serves as legal counsel for a party in any proceeding under Rules 10-32, the panel member may perform Commission responsibilities unrelated to that proceeding, provided that the panel member is timely screened from any participation in or relating to that proceeding, at both the panel member's firm and the Commission.

(d)   Powers and Duties. Grievance Commission panels shall have the following powers and duties:

(1)   to review and approve, modify, or disapprove recommendations by Bar Counsel; and

(2)   to conduct hearings in connection with public disciplinary proceedings on charges of misconduct or petitions for reinstatement, and in connection with such hearings, to make findings and issue written decisions.

(e)   Review by Public Member. Upon a written request made in accordance with Rule 13(b)(3), a public member shall review dismissals by the Central Intake Office or Bar Counsel. Dismissals by Bar Counsel shall not be subject to review under this rule if a public member has previously reviewed a dismissal by the Central Intake Office in the same matter. The written request for review must be made within 21 days of receipt of the dismissal notice. The public member shall:

(1)   approve the dismissal by the Central Intake Office or Bar Counsel and the Board Clerk shall notify the complainant and the respondent that the matter shall remain closed; or

(2)   disapprove the dismissal by the Central Intake Office or Bar Counsel, and direct that the matter be investigated further by Bar Counsel and reviewed in accordance with Rule 13(d). The Board Clerk shall notify the complainant and the respondent of the public member?s action in writing.

(f)   Powers and Duties of Panel Chair. Each Grievance Commission panel chair shall have the following powers and duties:

(1)   to preside at hearings in accordance with Rules 13(e) and 14(a);

(2)   to conduct prehearing conferences regarding formal charges of misconduct or petitions for reinstatement; and

(3)   to consider and decide prehearing motions.

(g)   Recusal and Disqualification of Panel Members.

(1)   Panel members shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to abstain. If a member is disqualified or recused, another member shall be appointed by the Board Clerk. No peremptory challenges of a panel member are allowed.

(2)   Requests to disqualify panel members shall be filed within 10 days after service of the first hearing notice containing the names of the panel members assigned to the matter. The chair of the Grievance Commission panel or the Commission Chair or Vice Chair shall rule on the motion. Failure to timely file a motion to disqualify shall be a factor in deciding whether the motion should be granted.

(3)   Grounds for disqualification or recusal not reasonably discoverable within that 10-day period may be asserted within 10 days after they were discovered or in the exercise of reasonable diligence should have been discovered.

(4)   A former member of a Grievance Commission panel who is a member of the bar shall comply with the provisions of Rule 1.12 of the Maine Rules of Professional Conduct with respect to participating in any proceedings under these Rules.

(5)   In the event that a Grievance Commission panel finds probable cause for a public disciplinary hearing or authorizes Bar Counsel to file an Information and the respondent attorney is a member of the Grievance Commission, Fee Arbitration Commission, or Professional Ethics Commission, such member shall be disqualified from all Commission responsibilities until such time as the pending matter is concluded.

(6)   Grievance Commission members may not testify voluntarily in any proceedings under these Rules or as an expert witness in the field of ethics in any court proceeding.

(7)   Grievance Commission members may not serve as probation monitors. Members of the Grievance Commission shall be recused from participating in any matter where a member of the Grievance Commission member's firm is serving as a probation monitor.

(h)   Destruction of Confidential Documents. Upon conclusion of service, members shall take reasonable steps to destroy all documents, in paper or electronic format, relating to the proceedings of the Board and subject to the confidentiality provisions of these rules.

(i)   Ex Parte Communication. Except as otherwise permitted under Rule 13(f), members of a Grievance Commission panel shall refrain from ex parte meetings and communication with non-Commission members concerning matters affecting a particular case or pending proceeding.

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Reporter?s Notes ? Reporter Notes

Rule 9(a), which governs appointments to the Grievance Commission, adopts language similar to that contained in Model Rule 3(A). However, in contrast to the Model Rule, the revised rule requires the Board appoint five or more panels rather than three or more panels. In this regard, the appointment procedure is in accord with former Maine Bar Rule 7(b)(2).

Rule 9(b) sets out the terms of office for members of the Grievance Commission. The committee concluded four-year terms, as was provided in former Maine Bar Rule 7(a), have worked well and decided to retain the four-year terms rather than adopting the three-year terms provided in Model Rule 3(B).

Rule 9(d) is based on Model Rule 3(D), and is consistent with former Maine Bar Rule 7(c).

Rule 9(e) is based on former Maine Bar Rule 7.1(c). The equivalent Model Rules are 4(B) and 11(A). The revised rule references the Central Intake Office?s authority to dismiss complaints. In contrast to the former Maine Bar Rule that allots complainants a fourteen-day period to request public member review, the revised rule increases this timeframe to twenty-one days.

Rule 9(f) is based on Model Rule 3(E), and is consistent with former Maine Bar Rule 7.1(e)(2)(D).

Rule 9(g) is based on Model Rule 3(F). There is no direct analogue in the former Maine Bar Rules. The revised rule expands on the Model Rule in describing the process for requesting a recusal of a panel member.

RULE 13. Disciplinary Rules of Procedure

(a) Evaluation. The Central Intake Office shall evaluate all information coming to the attention of the Board by complaint or from other sources alleging lawyer misconduct or incapacity. If the lawyer is not subject to the jurisdiction of the Court, the Central Intake Office shall refer the matter to the appropriate entity in any jurisdiction in which the lawyer is known to be admitted. If the information, if true, would not constitute misconduct or incapacity, the Central Intake Office may refer the matter to another agency with appropriate jurisdiction, or dismiss the complaint. If the lawyer is subject to the jurisdiction of the Court and the information alleges facts that, if true, would constitute misconduct or incapacity, the Central Intake Office shall refer the matter to Bar Counsel, who shall conduct an investigation.

(b) Investigation.

(1)   Bar Counsel shall conduct all investigations, except as otherwise required by these Rules. Upon the conclusion of an investigation, Bar Counsel shall:

         (A)   dismiss subject to review under Rules 9(e) and 13(b)(3);

         (B)    issue a stay;

         (C)    refer respondent to the Alternatives to Discipline Program, pursuant to Rule 13(c);

         (D)    recommend dismissal, if a public member had previously disapproved dismissal under Rule 9(e);

         (E)    recommend dismissal with a warning, subject to review under Rule 13(d); or

         (F)    issue a report to the Board Clerk recommending the filing of formal charges with a Grievance Commission panel (or a Single Justice, if authorized by these Rules).

In all cases, Bar Counsel shall briefly and generally state in writing the reasons for the recommended disposition.

(2)  Notice to Respondent. Bar Counsel may dismiss a matter or issue a stay without providing respondent an opportunity to respond. In all other cases, Bar Counsel shall first notify the respondent in writing of the substance of the matter and afford him or her an opportunity to respond. Notice to the respondent shall be pursuant to Rule 15.

(3)  Dismissal Review. If Bar Counsel dismisses the complaint, Bar Counsel shall notify the complainant and the respondent of the dismissal, provide the reasons for the dismissal, and inform the complainant and the respondent that any review of the dismissal must be requested within 21 days of service pursuant to Rule 15. Any further review shall be subject to Rule 9(e).

(c) Alternatives to Discipline Program.

(1)  Referral to Program. Bar Counsel may refer respondent to the Alternatives to Discipline Program. The Alternatives to Discipline Program may include fee arbitration, Silent Partners, Maine Assistance Program for Lawyers and Judges, psychological counseling, continuing legal education, or any other program authorized by the Board or the Court.

(2)  Factors. The following factors may be considered in determining whether to refer a respondent to the Alternatives to Discipline Program:

         (A)    whether the presumptive sanction under the ABA Standards for Imposing Lawyer Sanctions for the alleged misconduct is likely to be no more severe than reprimand or admonition;

         (B)    whether participation in the program is likely to benefit the respondent and accomplish the goals set forth by the program; and

         (C)    whether aggravating or mitigating factors exist.

(3)  Notice to Complainant. Bar Counsel shall notify the complainant, if any, of the decision to refer the respondent to the Alternatives to Discipline Program. The complainant shall have a reasonable opportunity to submit a statement offering any new information regarding the respondent. This statement shall be made part of the record.

(4)  Contract. Bar Counsel and the respondent shall negotiate a contract, the terms of which shall be tailored to the individual circumstances. In each case, the contract shall be in writing and signed by the respondent and by Bar Counsel. The contract shall set forth the terms and conditions of the plan for the respondent and, if appropriate, shall identify the use of a practice monitor and/or a recovery monitor and the responsibilities of the monitor(s). The contract shall provide for oversight of fulfillment of the contract terms. Oversight includes reporting of any alleged breach of contract to Bar Counsel. The contract shall also provide that the respondent will pay all costs incurred in connection with the contract. The contract shall include a specific acknowledgment that a material violation of a term of the contract renders voidable the respondent's participation in the program for the original charge(s) filed. The contract may be amended upon agreement of the respondent and Bar Counsel. If a recovery monitor is assigned, the contract shall include respondent's waiver of confidentiality so that the recovery monitor may make necessary disclosures in order to fulfill the monitor's duties under the contract.

(5)  Effect of Non-Participation in the Program. The respondent has the right not to participate in the Alternatives to Discipline Program. If the respondent does not participate, the matter will proceed as though no referral to the Program had been made.

(6)  Stay. After an agreement is reached, the disciplinary complaint may be stayed pending successful completion of the terms of the contract.

(7)  Termination.

         (A)    Fulfillment of the Contract. Bar Counsel may terminate the contract when Bar Counsel determines that the respondent has fulfilled the terms of the contract, at which point the stay is lifted.

         (B)    Material Breach. A material breach of the contract shall be cause for termination of the respondent's participation in the program. After such termination, disciplinary proceedings may be resumed or reinstituted.

(d) Preliminary Review by Grievance Commission Panel.

(1)  If a complaint is not concluded pursuant to Rules 13(b)(1)(A) to (C), at the conclusion of Bar Counsel's investigation, Bar Counsel shall file a confidential report with the Board Clerk recommending disposition pursuant to Rules 13(b)(1)(D) to (F). Bar Counsel shall also notify the parties of the proposed recommendation.

(2)  At least fourteen days in advance of the preliminary review, the Board Clerk shall prepare and deliver to Bar Counsel a statement as to the existence of any sanction record, reinstatement, or surrender of license involving the respondent. Bar Counsel shall then mail the statement to the respondent. Within 10 days, the respondent may submit a reply as to the relevance of the prior sanction record to the present charge. The statement and any reply from the respondent shall be provided to the panel in accordance with Rule 13(e)(8). These procedures and filings shall not be applicable when the respondent attorney has no prior sanction record.

(3)  The Board Clerk shall assign the complaint to a three-member panel of the Grievance Commission for a confidential review. However, with the consent of the review panel chair, the panel may act with the concurrence of one attorney and one public member. In the event that such a review panel is deadlocked, a new three-member panel shall be assigned to review. The confidential review is not open to the public. Only Bar Counsel and the panel shall be present for the review.

(4)  The panel shall review the complaint, any response submitted by the attorney, any reply submitted by the complainant, the results of Bar Counsel's investigation, and Bar Counsel's report with recommendation to (A) file formal charges, (B) dismiss with a warning, or (C) dismiss. Within 10 days following a review, unless otherwise extended by the Chair or Vice Chair of the Grievance Commission, the panel shall decide whether it approves Bar Counsels recommended disposition and notify the Board Clerk of its decision.

(5)  The Board Clerk shall notify Bar Counsel, the respondent and the Complainant in writing of the panels decision to defer, dismiss, dismiss with a warning, or file formal charges. The panel's decision is final and not subject to further review.

(6)  When a respondent is the subject of a pending disciplinary proceeding pursuant to Rule 13(g), with the consent of a Grievance Commission review panel, Bar Counsel may bypass the preliminary review stage and commence a disciplinary action before a Single Justice concerning any allegations of misconduct by the same attorney that have subsequently come to the attention of Bar Counsel.

(7)  Prior to a hearing, a review panel may, for good cause shown, rescind the directive to proceed to a public hearing and issue a dismissal or a dismissal with a warning.

(e)   Formal Charges Hearing. If a matter is to be resolved by a formal proceeding, Bar Counsel shall prepare formal charges in writing that give fair and adequate notice of the nature of the alleged misconduct.

(1)  Bar Counsel shall file the charges with the Board Clerk.

(2)  Bar Counsel shall serve a copy of the formal charges upon the respondent in accordance with Rule 15.

(3)  The respondent shall file a written answer with the Board Clerk and serve a copy on Bar Counsel within 21 days after service of the formal charges, unless the time is extended by the chair of the Grievance Commission panel to which the matter is assigned for review or, in the chairs absence, by the Chair or Vice Chair of the Grievance Commission. If the respondent fails to answer within the prescribed time, or the time as extended, the factual allegations and the alleged misconduct shall be deemed admitted as provided in Rule 20(a). Bar Counsel may provide a copy of the respondents answer to the complainant; provided, however, that upon a request by the respondent and submission of a redacted version of the answer, Bar Counsel may provide the complainant with only a redacted version of the answer.

(4)  The Board Clerk shall assign the complaint to a three-member panel of the Grievance Commission for hearing. The panel may act with the concurrence of two members. However, one attorney and one public member may conduct a hearing with the consent of all parties. In the event that such a two-member panel member is deadlocked, a new three-member panel shall be assigned to hear the matter.

(5)  The Board Clerk shall serve a notice of hearing upon Bar Counsel, the complainant and the respondent, stating the date and place of hearing at least 25 days in advance thereof. The notice of hearing shall advise the respondent of the right to be represented by a lawyer, to cross-examine witnesses and to present evidence.

(6)  At least 14 days before the hearing, the Board Clerk shall prepare and deliver to Bar Counsel a statement as to the existence or absence of any sanction record, reinstatement, or surrender of license involving the respondent. Bar Counsel shall then mail the statement to the respondent. Within 10 days, the respondent may submit a reply as to the relevance of the prior sanction record to the present charge. The statement and any reply from the respondent shall be provided to the panel in accordance with Rule 13(e)(8).

(7)  Hearing. The Grievance Commission panel shall hold a hearing in accordance with Rule 14(a) and the following:

         (A)    The panel chair shall preside at the hearing, and shall have the power to control the course of proceedings and regulate the conduct of those individuals appearing as counsel, parties, or witnesses. The failure of an attorney participating in such a hearing a party, counsel for a party, or as a witness to obey an order of the chair shall constitute a violation of Rule 8.4 of the Maine Rules of Professional Conduct, and if committed by the respondent, may be duly considered by the Grievance Commission panel in its disposition of the matter before it.

         (B)    The hearing shall be open to the public, except that to protect the interests of a complainant, witness, third party, or respondent attorney, the chair may, upon motion filed with the Board Clerk and for good cause shown, issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential and direct that the proceedings be conducted so as to implement that order. The deliberations of the Grievance Commission panel following the hearing shall not be open to the public or the parties.

         (C)    At the hearing, Bar Counsel and the respondent may present evidence and may cross-examine witnesses. The respondent may be represented by counsel. The testimony of witnesses shall be by oath or affirmation administered by the panel chair.

         (D)     Subject to approval by the chair, hearing formalities of this rule may be waived by a signed, stipulated agreement of the parties. When such a waiver includes or incorporates the parties submission of an agreed proposed sanction order pursuant to Rule 25, that waiver shall also contain the respondent attorneys signed waiver of the right to file a petition for review under Rule 13(f).

(8)  Bar Counsel shall not divulge the statement as to the existence or absence of any sanction record to the Grievance Commission panel until after the panel has made a finding of misconduct, unless this statement is probative of issues pending in the matter before the panel.

(9)  Within 30 days following the hearing, unless otherwise extended by the Chair or Vice Chair of the Grievance Commission, the Grievance Commission panel shall issue a written report containing its findings and decision on dismissal or sanction to the Board Clerk. The report shall set forth the Grievance Commission panels findings of fact, conclusions of law, and application of any relevant factors with respect to appropriate sanctions for misconduct. The Board Clerk shall serve the report on respondent and Bar Counsel, who shall provide the report to the complainant.

(10)  The Grievance Commission panels report shall render one or more of the following:

         (A)    Dismissal. The Grievance Commission panel shall dismiss the petition if it finds, on the evidence and arguments presented, that no misconduct subject to sanction under these Rules occurred.

         (B)    Admonition. If the disciplinary panel finds that misconduct subject to sanction under these Rules has occurred, but that the misconduct is minor; that there is little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by the attorney, the panel will issue an admonition having the effect provided in Rule 21(b)(1).

         (C)    Reprimand. If the disciplinary panel finds that misconduct subject to sanction under these Rules has occurred and that all of the conditions set forth in Rule 13(e)(10)(B) are not present, the panel may reprimand the respondent attorney.

         (D)    Probation. If the disciplinary panel finds that misconduct subject to sanction under these Rules has occurred and that all of the conditions set forth in Rule 13(e)(10)(B) are not present, the panel may impose a period of probation on the respondent attorney as defined in Rule 21(b)(4).

         (E)    Information. Upon a finding of probable cause for suspension or disbarment, the Grievance Commission panel shall direct Bar Counsel to file an Information pursuant to Rule 13(g).

(f) Petition for Review of Dismissal, Admonition, Reprimand, or Probation.

(1)  Petition and Answer. Within 21 days after dismissal or delivery of a reprimand, probation, or admonition, a respondent attorney or Bar Counsel may file a petition for review by a Single Justice. The petitioning party shall file the petition for review with the Executive Clerk of the Court, and shall serve the petition on the opposing party. The petition for review shall include copies of the disciplinary petition and answer filed with the Grievance Commission and of the panels decision dismissing or imposing a reprimand, probation, or admonition, and shall contain a concise statement of the grounds upon which the petitioning party seeks relief and a demand for the specific relief sought. Within 21 days after service of the petition for review, the opposing party shall file an answer with the Executive Clerk of the Court and shall transmit a copy thereof to the petitioning party.

(2)  Preparation of Record. Within 21 days after the answer is filed, the Board Clerk shall prepare and file the complete record of the proceedings with the Executive Clerk of the Court and provide notice thereof to the parties. If either party believes that the record filed by the Board Clerk is incomplete or over-inclusive, that party shall serve notice upon the opposing party within 10 days after the record is filed. The notice shall include specific proposals regarding additions to or deletions from the record filed by the Board Clerk. The parties shall attempt to agree upon the contents of the record. If the parties cannot agree, either party may request that the Single Justice modify the contents of the record.

(3)  Motion for Trial of the Facts. The respondent may file a motion for a trial of the facts with the petition for review. If, on motion, the Court finds in its discretion that the respondent attorney ought to have a trial of the facts, the Single Justice may order a hearing to permit the introduction of evidence that does not appear in the record of the proceedings before the Grievance Commission panel and that has not been stipulated. Respondents failure to file such a motion shall constitute a waiver of any right to a trial of the facts. With the motion, the respondent attorney shall also file a detailed statement, in the nature of an offer of proof, of the evidence to be introduced at the hearing. That statement must be sufficient to permit the Single Justice to make a proper determination as to whether any trial of the facts as presented in the motion and offer of proof is appropriate and, if so, to what extent. After hearing, the Single Justice shall issue an appropriate order specifying the future course of proceedings. The Single Justice may order that additional evidence be taken.

(4)  Scope of Review. Unless otherwise provided by order of the Single Justice, review of a Grievance Commission panels decision to dismiss or impose a reprimand, probation, or admonition shall be based upon the record of the proceedings before the panel. The judgment entered after such review may affirm, vacate, or modify the decision of the panel. Any findings of fact of the Grievance Commission panel shall not be set aside unless clearly erroneous. Either party may appeal to the Court within 21 days from entry of the judgment.

(5)  Finding of Probable Cause. If at any stage of the proceedings on petition for review, the Single Justice determines that there is probable cause that the matter be concluded by suspension or disbarment, the Single Justice shall direct Bar Counsel to file an Information and the matter shall be conducted as an attorney discipline action in accordance with Rule 13(g).

(g) Attorney Discipline Actions before the Court.

(1)  Commencement. An attorney discipline action authorized pursuant to this rule shall be commenced by the filing of an Information with the Executive Clerk of the Court. The Information shall allege that the respondent is an attorney subject to these Rules and has conducted herself or himself in a manner unworthy of an attorney admitted to the Maine Bar for the reasons specified in the Information. The Board shall be responsible for serving the Information, together with a summons, upon the respondent in accordance with Rule 15.

(2)  Procedure. An attorney discipline action shall be heard by a Single Justice assigned by the Chief Justice to hear the action. The Board shall be treated as the plaintiff and the respondent attorney as the defendant; and the action shall be captioned "Board of Overseers of the Bar v. [name of respondent attorney]."

(3)  Discovery. Bar Counsel shall furnish to the respondent attorney, within a reasonable time after the filing of the Information, copies of all exhibits presented to the Grievance Commission panel or the Board in the proceedings leading to the information. The stenographic or electronic record, as required by Rule 14(a)(6), and any other matter within Bar Counsel's possession or control that is discoverable under Rule 26 of the Maine Rules of Civil Procedure, shall be made available to the respondent attorney at the office of Bar Counsel at any reasonable time for inspection and copying at the respondent attorney's expense.

(4)  Judgment and Appeal. The Single Justice may enter judgment imposing an admonition, probation, a reprimand, suspended suspension, suspension for a definite period, or disbarment, or may dismiss the Information. Either party may appeal to the Court within 21 days from the entry of the judgment.

(5)  Attorney's Status Pending Appeal. Pending appeal to the Court, a judgment of suspension or disbarment shall, unless stayed in whole or in part by the Single Justice or the Court, be given full force and effect.

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Reporters Notes - June 2015

Rule 13(a) is a new rule that incorporates the Central Intake Office into the review process. That office initially evaluates the complaint, thus removing the need for Bar Counsel to review all submitted complaints.

Rule 13(b) corresponds with former Maine Bar Rules 7.1(b), (c), and (d). Bar Counsel retains substantially the same investigative powers, but the revised rule gives Bar Counsel additional options that did not exist under the former Maine Bar Rules. One of those options is to refer the respondent to the Alternatives to Discipline Program, which is described in Rule 13(c). The revised rule also requires Bar Counsel to state in writing the reasons for the recommended disposition. The committee thought this requirement was important to ensure that the respondent and the complainant have fair notice as to Bar Counsels reason for the decision, and to ensure that all decisions are fair and supported by the provided factual information.

Rule 13(c) corresponds to Model Rule 11(G). There is no comparable provision in the former Maine Bar Rules. The committee believes that incorporation of this Rule provides Bar Counsel, in appropriate cases, with meaningful alternatives to formal proceedings.

Rule 13(d) continues Maine practice of a preliminary review by a Grievance Commission under former Maine Bar Rules 7(b), 7.1(d), and does not have a Model Rule equivalent.

Rule 13(e) corresponds to former Maine Bar Rule 7.1(e)(1) to (4) and Board Regulation #31, as well as Model Rule 13(D). The procedure for the formal disciplinary proceeding remains largely the same.

Rule 13(f) is a departure from both the former Maine Bar Rules and Model Rules 11(E) and (F). The committee felt the Board should not be involved in the appellate function of reviewing a panels determination. Therefore, the committee rejected Model Rule 11(E), as well as former Maine Bar Rule 7.1(e)(5)(A) to(C). The committee also rejected the Model Rules approach that makes court review discretionary. Instead, the committee chose to continue current Maine practice of appeals to the Court, and endorsed the inclusion of Bar Counsels much more extensive option to file an appeal consistent with Model Rule 11(F). The Maine Bar Rules allow for a very limited right of appeal by Bar Counsel.

Rule 13(g) has no Model Rule equivalent, and is generally consistent with the procedures for the Courts disciplinary proceedings under former Maine Bar Rule 7.2(b). The committee believes that the current involvement of the Court by conducting de novo testimonial hearings after a preliminary hearing by a panel of the Grievance Commission, usually to confirm whether serious sanctions such as actual suspension or disbarment, is a proper and appropriate involvement of the Court in such matters. The committee rejected the general approach of the Model Rules allowing Grievance Commission panels to impose suspensions and disbarments subject to the Courts approval without hearing. The committee agreed that such serious sanction determinations should remain as a factual determination to be made by the Court after hearing. However, the new rule departs from current practice requiring such hearings to be heard by a Single Justice of the Court by allowing a either a Single Justice or another judge designated by the Chief Justice of the Court to preside over a hearing.

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Advisory Note January 2017

The identical amendments to Rules 13(d)(2) and 13(e)(6) are issued to make the full disclosure of a respondent attorneys complete prior sanction history consistent with the language of Rule 13(e)(8). Under that Rule, any prior sanction record of the involved respondent attorney, including both disciplinary and non-disciplinary sanctions, is provided to a hearing panel after it has made a finding of professional misconduct in a current matter(s). Such full disclosure of that complete sanction record to review panels and hearing panels under these amendments to Rules 13(d)(2) and 13(e)(6), respectively, is also consistent with the prior practice of Grievance Commission panels under both former bar Rule 7.1(d)(4)(B) and Board of Overseers Regulation #31.

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Advisory Note June 2017

In Rule 13(e)(7)(D), a reference to Rule 25 is added. See the Advisory Notes June 2017 to Rule 25 for a summary of the changes effected by the amendments to Rules 13(e)(7)(D) and 25.

RULE 14. Additional Rules of Procedure

(a)      Proceedings before a Grievance Commission Panel.

(1)   Nature of Proceedings. Disciplinary proceedings before a Grievance Commission panel are neither civil nor criminal.

(2)   Proceedings Not Governed by Rules of Civil Procedure and Evidence. Except as otherwise provided in these Rules, the Maine Rules of Civil Procedure and the Maine Rules of Evidence do not apply in disciplinary proceedings before a Grievance Commission panel.

(3)   Evidence. Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The chair of the Grievance Commission panel may exclude irrelevant or unduly repetitious evidence.

(4)   Burden and Standard of Proof. In disciplinary matters before a Grievance Commission panel, Bar Counsel shall have the burden of establishing the Board's case by a preponderance of the evidence. In proceedings seeking reinstatement, the petitioner shall have the burden of establishing his or her case by clear and convincing evidence.

(5)   Prehearing Conference. At the discretion of the chair of the Grievance Commission panel or upon request of either party, a conference may be ordered for the purpose of obtaining admissions or otherwise narrowing the issues presented by the pleadings. The conference shall be held before the chair of the Grievance Commission panel or another member of the Grievance Commission panel designated by the chair.

(6)   Hearings Recorded. The Board shall cause all proceedings before the panel to be stenographically or electronically recorded in a form that will readily permit transcription.

(7)   Hearing Transcript. A hearing transcript or partial transcript may be ordered at any time by the Grievance Commission panel, respondent, Bar Counsel, or the Board. When ordering a transcript, respondent or Bar Counsel must provide a copy of the requested transcript to the opposing party at that party's own expense.

(8)   Related Pending Litigation. Upon a showing of good cause, the Grievance Commission panel may stay a disciplinary matter because of substantial similarity to the material allegations of pending criminal or civil litigation or disciplinary action. The panel may weigh the following factors:

         (A)     whether a factual dispute exists such that weighing and balancing contending factors is peculiarly one for the tribunal;

         (B)    whether disciplinary action prior to conclusion of the case might have an unwarranted effect on the outcome of litigation;

         (C)    whether the complainant has taken the opportunity to present the dispute to the tribunal where such action would normally be expected; and

         (D)    whether the misconduct is so blatant as to warrant immediate discipline.

(9)   Delay Caused by Complainant. None of the following shall independently justify abatement of the processing of any complaint:

         (A)     a complainant's unwillingness or neglect to sign a complaint or prosecute a charge,

         (B)     a settlement or compromise between a complainant and the respondent, or

         (C)     a complainant's acceptance of restitution from the respondent.

(10)   Effect of Time Limitations. Except as is otherwise provided in these Rules, time is not jurisdictional. Failure to observe prescribed time intervals may result in sanctions against the party that has failed to observe such prescribed time intervals, but does not ordinarily, in itself, justify abatement of any discipline investigation or proceeding.

(b)       Proceedings before a Single Justice or the Court.

(1)   Proceedings Governed by Rules of Civil Procedure and Evidence. Except as otherwise provided, disciplinary proceedings before a Single Justice or the Court shall be governed by the Maine Rules of Civil Procedure and the Maine Rules of Evidence. Except as otherwise provided by Rule 17, Maine Rules of Civil Procedure 12(c), 13, 14, 16, 26 to 37, and 56 shall not apply.

(2)   Prehearing Conference. A Single Justice or the Court may hold a prehearing conference with the attorneys for the parties to consider such matters as may aid in the disposition of the action and may by written order limit the issues to be tried.

(3)   De Novo. Proceedings before a Single Justice or the Court are subject to a de novo standard of review.

(4)   Burden and Standard of Proof. In disciplinary matters before a Single Justice or the Court, the Board shall have the burden of establishing its case by a preponderance of the evidence.

(5)   Failure to Comply With an Award of the Fee Arbitration Commission. When a matter involving an award of a panel of the Fee Arbitration Commission is referred to Bar Counsel under Rule 7(g) because of the attorney's failure to make an awarded refund to the petitioner within 30 days of receipt of the arbitration award, the Board, upon request of Bar Counsel and after affording the attorney an opportunity to respond in writing, may refer the matter to a Single Justice or the Court for appropriate disciplinary action.

(c)       Complaints Against Bar Counsel, Attorney Commission and Board Members, or the Board Clerk. If a complaint is filed against Bar Counsel, the Board Clerk, or attorney Commission or Board members, the matter shall proceed in accordance with these Rules except that:

(1)   If the respondent is Bar Counsel or the Board Clerk, the Chair of the Board shall appoint Special Counsel who shall exercise independent authority to investigate the complaint, and, if necessary assign an ad hoc panel to the case.

(2)   If the respondent is a member of the Grievance Commission, Fee Arbitration Commission, or Professional Ethics Commission, the office of Bar Counsel shall investigate the complaint, and, if necessary, the Chair of the Board shall assign an ad hoc panel to the case.

(3)   If the respondent is a member of the Board, the Chief Justice of the Court shall appoint Special Counsel who shall exercise independent authority to investigate the complaint, and if necessary, assign an ad hoc panel to the case.

(4)   Special Counsel shall not receive compensation for services unless the Board has contracted in advance with that Special Counsel to receive compensation. Special Counsel may seek reimbursement from the Board for the payment of reasonable expenses and for investigative, administrative and legal support. The Board shall have discretion to determine the amount of financial, investigative, administrative, and legal assistance to be provided.

(d)      Cameras and Audio Recordings. Cameras and audio recording devices are allowed in public disciplinary hearings, subject to the regulations and limitations contained in the Court's Cameras and Audio Recording in the Courts Administrative Order, and provided any person or organization intending to record or photograph such proceedings shall file a notice of intent to do so with the Board Clerk or the Clerk of the Court in advance of such hearing.

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Reporter's Notes - June 2015

Rule 14(a) is based upon portions of Model Rule 18 and former Maine Bar Rule 7.1(e)(2). The committee rejected the script in Model Rule 18(B)(C) providing for application of either the Maine Rules of Civil Procedure or the Maine Rules of Evidence. It also rejected the application of the standard of proof by clear and convincing evidence for Bar Counsel contained in Model Rule 18(C) and agreed to retain the revised practice of employing a preponderance of the evidence standard. The remainder of proposed Rule 14(a) generally follows former Maine Bar Rules 7.1(e)(2) and 7.3(b)(c) as well as Board Regulation #12.

Rule 14(b) makes the same refinements to Model Rule 18 in Court proceedings concerning Rules of Procedure, Rules of Evidence and burden of proof as discussed above regarding Rule 14(a). Although the organizational format has changed, Rule 14(b) adopts the practice in existence under former Maine Bar Rules 7.2(b)(2)(4), 6(b)(6), and 9(i).

Rule 14(c) adopts current practice under former Maine Bar Rule 7.1(b) and Board Regulation #49. It has no direct equivalent in the Model Rules.

Rule 14(d) permits the presence of cameras in the courtroom, so long as the party seeking to record the proceedings complies with the requirements contained in the Court-s administrative orders JB-05-15 and JB-05-16, as well as the procedural requirements of this rule.

RULE 17. Discovery

(a)      Public Proceedings before the Grievance Commission.

(1)   Scope. Within 21 days following the respondent?s answer to Bar Counsel?s formal charges, Bar Counsel and the respondent shall (A) exchange the names and addresses of all persons having knowledge of relevant facts; (B) identify which persons are reasonably anticipated to be called as witnesses; and (C) exchange all documents Bar Counsel or respondent reasonably anticipate will be introduced at trial or hearing.

(2)   Resolution of Disputes. The chair of the Grievance Commission panel shall resolve by order all disputes concerning discovery. All discovery orders are interlocutory and may not be appealed prior to the entry of the final order.

(3)   Additional Discovery. Upon good cause shown, the chair of the Grievance Commission panel may order additional discovery.

(b)      Disciplinary Proceedings before a Single Justice.

(1)   Scope. Within 21 days after filing of an Answer to the Board?s Information with the Executive Clerk of the Court, Bar Counsel and the respondent shall (A) exchange the names and addresses of all persons having knowledge of relevant facts; (B) identify which persons are reasonably anticipated to be called as witnesses; and (C) exchange all documents Bar Counsel or respondent reasonably anticipates will be introduced at trial or hearing.

(2)   Exhibits and Transcripts. In the event that a formal charges hearing was held before the Grievance Commission pursuant to Rule 13(e), Bar Counsel and the respondent shall make available to one another copies of all exhibits presented to the Grievance Commission hearing panel. The transcript from proceedings before the Grievance Commission hearing panel and any other matter within Bar Counsel?s or the respondent?s possession or control that is discoverable under Maine Rules of Civil Procedure 26, shall be made available to other party at any reasonable time for inspection and duplication at that party?s expense.

(3)    Resolution of Disputes. A Single Justice shall resolve by order all disputes concerning discovery.

(4)    Additional Discovery. Upon good cause shown, the Single Justice may order additional discovery pursuant to Maine Rules of Civil Procedure 26-37.

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Reporter?s Notes ? June 2015

Rule 17 is generally based on Model Rule 15. There is no equivalent in the former Maine Bar Rules. The committee felt it was important to adopt a discovery rule, but concluded that the Model Rule did not offer clear guidance as to the scope of discovery. The committee also rejected the Model Rule?s inclusion of depositions in the grievance process in Maine, finding that such formal additional discovery was not warranted and would significantly delay the timely processing and hearing of grievance complaints. The committee adopted two tracks of rules: one for proceedings before the Grievance Commission in Rule 17(a), and one for proceedings before a Single Justice in Rule 17(b). Although there was no clear discovery rule in the former Maine Bar Rules, the committee feels that Rule 17 accurately reflects the existing informal discovery practice of the office of Bar Counsel.

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Advisory Note? January 2017

The July 2015 promulgation of Rule 17 formalized the past informal discovery procedures utilized by the parties during disciplinary proceedings conducted by the Court or the Grievance Commission. This change to Rule 17(b) directs that the mandates of the discovery requirements for the Court proceedings mirror the same discovery requirements set forth in Rule 17(a), regardless of whether a Commission hearing occurred prior to that Court proceeding.

RULE 20. Failure to Answer/Failure to Appear

(a)  Failure to Answer. Failure to answer charges filed shall constitute an admission by the respondent of the factual allegations and the misconduct alleged in the formal charges.

(b)  Failure to Appear. If the respondent fails, without good cause, to appear at a disciplinary proceeding, the respondent shall be deemed to have admitted the factual and misconduct allegations that were to be the subject of such appearance, and/or to have waived objection to any motion or recommendations to be considered at such appearance. The Grievance Commission panel or Board may not, absent good cause, continue or delay proceedings due to the respondent's failure to appear.

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Reporter?s Notes ? June 2015

Rule 20(a) corresponds to Model Rule 33(A), and by adding language concerning an adoptive admission of the alleged misconduct by a respondent?s failure to answer charges, it is an adoption of former Maine Bar Rule 7.1(e)(1).

Rule 20(b) is based on Model Rule 33(B) and is not specifically covered in former Maine Bar Rule 7.1(e)(1). The committee determined that a respondent?s failure to appear in a disciplinary proceeding was a serious problem that should be addressed by the rules.

RULE 21. Sanctions

(a)      Grounds for Discipline. It shall be a ground for discipline for a lawyer to:

(1)    violate or attempt to violate these Rules, the Maine Rules of Professional Conduct, or any other rules of this jurisdiction regarding professional conduct of lawyers;

(2)   engage in conduct violating applicable rules of professional conduct of another jurisdiction;

(3)   willfully violate a valid order of the Court, a Single Justice, the Board, or a Grievance Commission panel imposing discipline, willfully fail to comply with a subpoena validly issued under these Rules, or knowingly fail to respond to a lawful demand from a disciplinary authority, except that this rule does not require disclosure of information otherwise protected by applicable rules relating to confidentiality.

(b)       Types of Sanctions. Misconduct shall be grounds for one or more of the following sanctions:

(1)   Admonition, a public non-disciplinary sanction, may be imposed by the Court, a Single Justice, or a Grievance Commission panel after hearing pursuant to Rule 13(e) and (g). Admonitions are to be imposed only in cases of minor misconduct, when there is little or no injury to a client, the public, the legal system, or the profession, and when there is little likelihood of repetition by the lawyer.

(2)   Disbarment, a public disciplinary sanction, may be imposed only by the Court or a Single Justice pursuant to Rule 13(f) and (g).

(3)   Dismissal with a warning, a private non-disciplinary sanction, may be imposed by a Grievance Commission panel after a preliminary review pursuant to Rule 13(d). Dismissals with a warning are to be imposed only in cases of minor misconduct, when there is little or no injury to a client, the public, the legal system, or the profession, and when there is little likelihood of repetition by the lawyer.

(4)   Probation, a public disciplinary sanction, may be imposed by a Single Justice, the Court, or a Grievance Commission panel pursuant to Rule 13(e) or (g). Probation durations shall be for a period not in excess of two years; provided, however, that probation may be renewed for an additional two-year period by consent or after a hearing to determine if there is a continued need for supervision. The conditions of probation shall be stated in writing. Probation shall be used only in cases where there is little likelihood that the respondent will harm the public during the period of rehabilitation and the conditions of probation can be adequately supervised. Probation shall be terminated upon the filing of an affidavit by respondent showing compliance with the conditions and an affidavit by the probation monitor stating that probation is no longer necessary and summarizing the basis for that statement. A Single Justice or the Court may impose other limitations on the nature or extent of the respondent's future practice.

(5)   Reprimand, a public disciplinary sanction, may be imposed by a Single Justice, the Court, or a Grievance Commission panel pursuant to Rule 13(e) or (g).

(6)   Suspension, a public disciplinary sanction, may be imposed only by a Single Justice or the Court pursuant to Rule 13(g). Suspension durations shall be for an appropriate fixed period of time not in excess of three years.

Sanctions issued under this rule shall be provided to tribunals in any subsequent proceedings in which the respondent has been found to have committed misconduct as evidence of prior misconduct bearing upon the issue of the proper sanction to be imposed in the subsequent proceeding.

(c)      Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:

(1)   whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;

(2)   whether the lawyer acted intentionally, knowingly, or negligently;

(3)    the amount of the actual or potential injury caused by the lawyer's misconduct; and

(4)    the existence of any aggravating or mitigating factors.

(d)      Public Nature of Sanctions Disposition of lawyer discipline shall be public in cases before a Single Justice, the Court, or a Grievance Commission panel. The Single Justice, the Court, or the Grievance Commission panel shall issue a written opinion setting forth its justification for imposing the sanction in that particular case.

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Reporter?s Notes ? June 2015

Rule 21(a) is based on Model Rule 9(A) and former Maine Bar Rule 2(c). Maine Rules of Professional Conduct 8.1(b) and 8.4(a) also contain similar provisions. The committee added language to Rule 21(a) such that a lawyer?s violation of an order of the Board or Grievance Commission is prohibited. Model Rule 9(A) limits such conduct to orders of the Court.

Rule 21(b) is partially based on Model Rule 10(A) and lists the potential grounds of discipline. The Rule adopts an additional sanction option?dismissal with a warning?from Maine Bar Rule 7.1(d)(4) and 7.1(e)(3(B). Rule 21(b)(4) incorporates the sanction option of probation from Model Rule 10(A)(3), a choice not available under the former Maine Bar Rules. The committee concluded that increasing the tools available to Bar Counsel, the Grievance Commission, and the Court will allow for those entities to better tailor a sanction to an attorney?s misconduct. The committee adopted the language of both Model Rule 10(A)(1)(2) and former Maine Bar Rule 7.2(b)(5) such that the serious sanctions of suspension and disbarment may be imposed only by the Court.

Rule 21(c) is based on former Maine Bar Rule 7.1(e)(3)(C) but also incorporates language from Model Rule 10(C) that specifically references the ABA?s Standards for Imposing Lawyer Sanctions.

Rule 21(d) specifically follows the script from Model Rule 10(D) as to the public nature of all disciplinary decisions with its equivalent section being found in former Maine Bar Rules 7.1(e)(2)(B) and (4), and 7.3(k)(1).

RULE 18. Access to Disciplinary Information

(a)   Confidentiality. Prior to service of Bar Counsel?s disciplinary petition or an Information upon the respondent, the disciplinary proceeding is confidential, except that the pendency, subject matter, and status of an investigation by Bar Counsel or a Grievance Commission panel may be disclosed by Bar Counsel if:

(1)    respondent has waived confidentiality;

(2)    the proceeding is based upon allegations that include the respondent?s conviction of a crime;

(3)    the proceeding is based upon allegations that have become generally known to the public; or

(4)    there is a need to notify another person or entity, in order to protect the public, the administration of justice, or the legal profession.

(b)   Public Information. All filings submitted to the Board Clerk or the Executive Clerk of the Court shall be available to the public after a determination that probable cause exists to believe that misconduct occurred and the filing and service of formal charges, unless the complainant or respondent obtains a protective order for specific testimony, documents or records.

(c)   Public Proceedings. Upon service of Bar Counsel?s disciplinary petition or information upon the respondent, the proceeding is public except for:

(1)    deliberations of the Grievance Commission panel, or the Court; and

(2)    information with respect to which the Grievance Commission panel, or the Court has issued a protective order.

(d)   Protective Orders. To protect the interests of a complainant, witness, third party, or respondent, the Grievance Commission panel, the Board, a Single Justice, or the Court may, upon motion and for good cause shown, issue a protective order prohibiting the disclosure of specific information and directing that the proceedings be conducted so as to implement the order.

(e)   Disclosure of Nonpublic Information. The Court, a Single Justice, the Board, Grievance Commission panels, and Bar Counsel may not disclose any nonpublic information, other than that authorized for disclosure under Rule 18(a) and (b), unless pursuant to one of the following:

(1)    a written authorization from the respondent;

(2)    an order of a court having appropriate jurisdiction; or

(3)    other lawful authority to compel a disclosure.

(f)   Release of Confidential Information to Authorized Entities. The provisions of this rule shall not be construed to deny access to relevant information to authorized entities, including members of the Grievance, Fee Arbitration or Professional Ethics Commissions, agencies investigating the qualifications of judicial candidates, jurisdictions investigating qualifications for admission to practice of law or considering reciprocal disciplinary action, law enforcement agencies investigating qualifications for government employment, the ABA National Lawyer Regulatory Data Bank, the Committee on Judicial Responsibility and Disability, the Maine Assistance Program for Lawyers and Judges, or the Lawyers' Fund for Client Protection.

(g)   Release to Law Enforcement and the Maine Assistance Program. The provisions of this section shall not be construed to prevent Bar Counsel or any person from notifying (1) the appropriate law enforcement agency of complaints that accuse the respondent attorney of conduct in violation of a criminal law, or (2) the Director of the Maine Assistance Program for Lawyers and Judges, of the name of any lawyer whom Bar Counsel determines should be contacted concerning the program.

(h)   Release to Investigators or Prosecutors. The provisions of this section shall not be construed to prohibit Bar Counsel?s use of relevant information in the investigation or prosecution of complaints pursuant to Rules 2 or 13.

(i)   File Retention. The Board shall retain all files. Files may be retained in a digital format.

(j)   Duty of Officials and Employees of the Board. All officials and employees of the Board in a proceeding under these Rules shall conduct themselves so as to maintain the confidentiality mandated by this rule. However, any person, including but not limited to members of the Board, Grievance Commission and Board staff, may notify governmental officials of actual or threatened criminal conduct by any individual.

(k)   Copying and Attestation Fees. Copying and attestation fees shall be the same as those for proceedings in the Court.

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Reporter?s Notes - June 2015

Rule 18(a) is partially based on Model Rule 16(B), but the committee chose to adopt a structure more similar to former Maine Bar Rule 7.3(k)(2) to confirm the broad confidentiality of grievance filings before formal charges have been approved and filed.

Rule 18(b) is derived from Model Rule 16(C) and denotes that the filing of charges is point at which related filings are public. It is analogous to former Maine Bar Rule 7.1(e) and Regulation 29.

Rule 18(c) is more similar to former Maine Bar Rule 7.3(e) and Board Regulation #29 than to related Model Rule 18(C). The committee chose to use language in Rule 18(c) that retains the former Maine Bar Rules? provision that matters remain confidential until the charging pleading has been formally filed.

Rule 18(d) is similar to Model Rule 16(E) and is equivalent to former Maine Bar Rule 7.1(e)(2)(B) allowing for the tribunal to issue a protective order where good cause is shown for a matter to be kept confidential. The committee elected to use the more modified script of the former Maine Bar Rules than that of Model Rule 16(E). Rule 18(e) is a modification of Model Rule 16(F) with the committee choosing language more similar to portions of former Maine Bar Rule 7.3(k) for the allowance of limited exceptions to the confidentiality of the initial investigation of grievance complaints.

Rule 18(f) has no direct Model Rule equivalent and is based upon the committee?s adoption of the confidentiality exceptions contained in former Maine Bar Rule 7.3(k)(3).

Rule 18(g) has no Model Rule equivalent, and is a major rewrite of the existing expungement requirements of former Maine Bar Rule 5(d). The committee found that the Board of Overseers? retention?normally in digital format?was the manner in which matters should be handled instead of the current practice of file and record destruction after a set date, depending on the matter. The committee found no appropriate basis to destroy records that may later be needed to answer or confirm subsequent related inquiries or filings.

Rule 18(h) is similar to Model Rule 16(J) and has no equivalent in the former Maine Bar Rules.

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Advisory Note? January 2017

Upon being promulgated and adopted effective July 1, 2015, it had been intended that the new Rule 18 would adopt and follow the earlier script contained with the confidentiality provisions of Rule 7.3(k) (see Reporter?s Notes). However, the necessary provisions and ?exceptions? contained within Rule 7.3(k)(4)-(6) that allowed for proper notice of complaint matters to be given to other appropriate and necessary officials and agencies, or to such individual Bar Counsel deems necessary to contact in order to properly and completely investigate complaints, were omitted in Rule 18 as then adopted. That necessary language is now promulgated within Rule 18(g)(h)(j), as amended.

RULE 19. Dissemination of Disciplinary Information

(a)      Public Notice.

(1)    The Board Clerk shall issue, electronically or otherwise, a news release to general media outlets throughout Maine to effect the notice of disciplinary disbarment, suspension, probation, or reinstatement decisions and orders.

(2)    The Board Clerk shall publish hearing decisions and orders issued by the Court, the Single Justice, and the Grievance Commission on the Board's website.

(b)      Notice to Discipline Authorities and Other Entities. The Board Clerk shall transmit, electronically or otherwise, notice of all public disciplinary and non-disciplinary sanctions, reinstatement decisions and orders, and surrenders of license to members of the Board and Grievance Commission, and to members of the following:

(1)    all State, Federal, and Tribal Courts in Maine;

(2)    the attorney disciplinary authority in any other jurisdiction known to the Board in which the attorney is licensed to practice;

(3)    the Maine State Bar Association;

(4)    the American Bar Association's National Lawyer Regulatory Data Bank; and

(5)    other such organization as determined by the Board.

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Reporter's Notes - June 2015

Rule 19(a) is based on Model Rule 17. Rule 19(a) is new and incorporates functions of the new Board Clerk. Although covered by Board Regulation #56, there was previously no Maine Bar Rule requiring the Board to provide a news release to general media outlets throughout Maine.

Rule 19(b) is based on Model Rule 17 but provides for certain notice functions to be performed by the Board Clerk instead of Bar Counsel. Current Maine procedure on this function was contained in former Maine Bar Rule 7.3(i)(1)(E) and (2)(D).

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Advisory Note - July 2018

Rule 19(b) is amended to clarify that all public non-disciplinary sanctions, i.e. admonitions, are transmitted to discipline authorities and other entities. Such notice has been the longstanding practice of the Board.

RULE 22. Reimbursement of Costs

(a)     Costs. Upon order of a Single Justice, the Court, or a Grievance Commission panel, or upon stipulation, the following costs may be imposed on the respondent:

(1)    assessment of the costs of the proceedings, including, but not limited to, the costs of investigations, service of process, witness fees, and court reporter services, in any case where discipline is imposed; and

(2)    disgorgement of all or part of the lawyer's or law firm?s fee, and reimbursement to the Lawyers? Fund for Client Protection.

(b)     Failure to Pay. Any lawyer who fails to pay costs and expenses when ordered to do so or who fails to comply with the terms of an agreed upon periodic payment plan may be served pursuant to Rule 15 with a notice of delinquency and imminent suspension from the practice of law. Any attorney who fails to comply with this notice within 30 days of service shall be administratively suspended by the Board. The Board shall provide notice of any administrative suspensions to the suspended attorney in accordance with the requirements of Rule 15. This notice shall not be effective until 30 days after the date of mailing. A lawyer suspended pursuant to this rule shall comply with the notice requirements in Rule 30. Upon receipt of all outstanding costs and expenses, the suspension may be cancelled by the Board.

(c)     Waiver. In any case in which costs and expenses are sought pursuant to this rule, the assessment of any or all such costs and expenses may be waived by the Board or the Court when it serves the interest of justice to do so.

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Reporter?s Notes ? June 2015

Rule 22(a), which provides for the reimbursement of costs by the respondent upon order of the Court or a Grievance Commission panel, is based on Model Rule 10(A)(6)(7). It is in accord with former Maine Bar Rule 7.2(b)(8) concerning reimbursements ordered by the Court, but Rule 22(a) now adds such authority to the Grievance Commission which is absent from the former Maine Bar Rules. Costs do not include Bar Counsel legal fees.

Rule 22(b) has no Model Rule equivalent and finds its closest equivalent in former Maine Bar Rule 7.3(i)(1)(F) concerning the consequences for a lawyer?s failure to pay costs and expenses as ordered by the tribunal. Rule 22(b) allows suspension to be ordered for such misconduct.

Rule 22(c) has no specific Model Rule or former Maine Bar Rules equivalent. It allows the Board or the Court to waive the lawyer?s reimbursement of costs and expenses. The committee felt such a waiver should be allowed for the tribunal to so find and order in specific circumstances where good cause is shown.

RULE 23. Lawyers Found Guilty of a Crime

(a)     Notification. A Maine lawyer found guilty of any crime shall, within 30 days after the judgment, transmit a certified copy of the judgment of conviction to counsel for the lawyer disciplinary agency of every jurisdiction in which the lawyer is admitted to practice. The lawyer shall also submit a certified copy of the judgment of conviction with registration materials to the professional licensing agency of every jurisdiction in which the lawyer seeks admission to practice, following entry of the judgment.

(b)     Determination of "Serious Crime." Upon being advised that a lawyer subject to the disciplinary jurisdiction of the Court has been found guilty of any crime, Bar Counsel shall determine whether the crime constitutes a "serious crime" warranting immediate interim suspension. If the crime is a "serious crime," Bar Counsel may prepare an order for interim suspension and forward it to the Court and the respondent with proof of the finding of guilt. Bar Counsel shall in addition file formal charges against the respondent predicated upon the finding of guilt. On or before the date established for the entry of the order of interim suspension, the lawyer may assert any jurisdictional deficiency that establishes that the suspension may not properly be ordered, such as that the crime did not constitute a "serious crime" or that the lawyer is not the individual found guilty. If the crime is not a "serious crime," Bar Counsel shall process the matter in the same manner as any other information coming to the attention of the Board.

(c)     Definition of "Serious Crime.? A "serious crime" is any felony or any lesser crime that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, or any crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or an attempt, conspiracy or solicitation of another to commit a "serious crime."

(d)     Immediate Interim Suspension. The Court has exclusive power to place a lawyer on interim suspension.

(1)    Imposition. The Court may place a lawyer on interim suspension immediately upon proof that the lawyer has been found guilty of a serious crime, regardless of the pendency of any appeal. In the interest of justice, the Court may elect not to impose an interim suspension upon a showing of extraordinary circumstances, after affording Bar Counsel notice and an opportunity to be heard.

(2)    Termination. The Court has exclusive power to terminate an interim suspension. In the interest of justice, the Court may terminate an interim suspension at any time upon a showing of extraordinary circumstances, after affording Bar Counsel notice and an opportunity to be heard.

(e)     Conviction as Conclusive Evidence. For purposes of a hearing on formal charges filed as a result of a finding of guilt, a certified copy of a conviction constitutes conclusive evidence that the lawyer committed the crime, and the sole issue in any such hearing shall be the nature and extent of the discipline to be imposed.

(f)     Automatic Reinstatement from Interim Suspension upon Reversal of Finding of Guilt or Conviction. If a lawyer suspended solely under the provisions of Rule 23(d) demonstrates that the underlying finding of guilt or conviction has been reversed or vacated, the order for interim suspension shall be vacated and the lawyer placed on active status. The vacating of the interim suspension will not automatically terminate any formal proceeding then pending against the lawyer, the disposition of which shall be determined by the Grievance Commission panel and the Board on the basis of the available evidence other than the finding of guilt or conviction.

(g)     Notice to Clients and Others of Interim Suspension. An interim suspension under this rule shall constitute a suspension of the lawyer for the purpose of Rule 31.

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Reporter?s Notes ? June 2015

Rule 23(a) is similar to Model Rule 19(A) but retains the language of former Maine Bar Rule 7.3(d)(6) requiring the lawyer, not the court clerk, to properly notify Bar Counsel of that lawyer?s conviction of any crime. Rule 23(a) includes the concept of Model Rule 19(A) requiring the lawyer to also so notify the lawyer disciplinary agency of every state in which the lawyer is admitted, but uses the term ?jurisdiction? so that the District of Columbia, Territories of the Unites States, and foreign countries must also be notified of the conviction. Rule 23(a) also adds new language requiring the lawyer to inform the professional licensing agency in every jurisdiction where the lawyer seeks admission to practice. Former Maine Bar Rule 7.3(d)(6) had no such requirements.

Rule 23(b) is similar to Model Rule 19(B) and its partial equivalent is former Maine Bar Rule 7.3(d). Rule 23(b) requires certain interim suspension action by Bar Counsel concerning a lawyer?s conviction of a ?serious crime,? a term not used in former Maine Bar Rule 7.3(d)(1), refers to such action for a lawyer?s conviction of a crime that ?demonstrates unfitness to practice law.?

Rule 23(c) is similar to Model Rule 19(C) and the committee determined that while analogous former Maine Bar Rule 7.3(d) is somewhat more expansive than the Model Rule, it ultimately concluded the Model Rules? distinction between a serious crime and a non-serious crime is worthwhile. However, the committee was unable to reach consensus as to the definition of serious crime. As a result, two competing definitions?a broader and a narrower one?were submitted to the Court for approval. The Court adopted the broader definition in order to provide a greater level of immediate protection to the public.

Rule 23(d) is identical to Model Rule 19(D). Unlike the equivalent language from former Maine Bar Rule 7.3(d), Rule 23(d) provides that the Court shall immediately issue an interim suspension of the lawyer upon Bar Counsel?s completion of the certification of the lawyer?s conviction of a ?serious crime.?

Rule 23(e) is identical to Model Rule 19(E), with similar language contained in former Maine Bar Rule 7.3(d)(2).

Rule 23(f) is identical to Model Rule 19(F) and has no significant variation from former Maine Bar Rule 7.3(d)(5).

Rule 23(g) is identical to Model Rule 19(G). The committee felt that its specific designation of the notification requirements of Rule 31 being required for the lawyer to undertake is an improvement on the silence of former Maine Bar Rule 7.3(i) on that issue.

RULE 24. Interim Suspension

(a)      Transmittal of Evidence. Upon receipt of evidence demonstrating that a lawyer subject to the disciplinary jurisdiction of the Court (1) has committed a violation of the Maine Rules of Professional Conduct or is incapacitated; and (2) by reason of that violation or incapacity threatens imminent injury to a client, to the public, or to the administration of justice, Bar Counsel, with the approval of the Board, shall:

(1)     transmit the evidence to the Court together with a petition and proposed order for interim suspension;

(2)     certify to the Court in accordance with M.R. Civ. P. 65(a) that Bar Counsel has contemporaneously made a reasonable attempt to provide the lawyer with notice pursuant to Rule 15 that a proposed order for immediate interim suspension has been transmitted to the Court; and

In exigent circumstances, Bar Counsel may apply for the Interim Suspension on an ex parte basis.

(b)      Immediate Interim Suspension. Upon examination of the evidence transmitted to the Court by Bar Counsel and of rebuttal evidence, if any, which the lawyer has transmitted to the Court prior to the Court's ruling, the Court may enter an order immediately suspending the lawyer, pending final disposition of a disciplinary proceeding predicated upon the conduct causing the harm, or may order such other action as it deems appropriate. In the event the order is entered, the Court may appoint a receiver pursuant to Rule 32 to protect clients' interests.

(c)      Notice to Clients. A lawyer suspended pursuant to Rule 24(b) shall comply with the notice requirements in Rule 31.

(d)      Motion for Dissolution of Interim Suspension. On two days' notice to Bar Counsel, a lawyer suspended pursuant to Rule 24(b) may appear and move for dissolution or modification of the order of suspension, and in that event the motion shall be heard and determined as expeditiously as the ends of justice require.

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Reporter?s Notes ? June 2015

Rule 24(a) is identical to Model Rule 20(A), and allows Bar Counsel to seek Board approval to request the Court?s immediate suspension of attorneys that threaten imminent injury to others. It is analogous to former Maine Bar Rule 7.2(c).

Rule 24(b) is identical to Model Rule 20(B). It improves on former Maine Bar Rule 7.2(c) by specifically referring to the Court?s authority to appoint a receiver under Rule 32 to address clients? files and related issues.

Rule 24(c) is identical to Model Rule 20(B) and is an improvement of former Maine Bar Rule 7.2(c) by making it clear that the notification requirements of Rule 31 are applicable.

Rule 24(d) is identical to Model Rule 20(D) and has no direct equivalent in the former Maine Bar Rules.

RULE 25. Discipline by Consent and Surrender of License

(a)      Approval of Tendered Admission. A lawyer against whom formal charges have been filed may tender to Bar Counsel a conditional admission to the petition or to a particular count thereof in exchange for a stated sanction. The Grievance Commission panel may approve or reject the tendered conditional admission, subject to final approval or rejection by a Single Justice or the Court if the stated form of discipline includes disbarment, suspension, or surrender. If a Single Justice, the Court, or the Grievance Commission panel reject the stated sanction, the admission and any affidavit(s) submitted pursuant to Rule 25(b) and (d) cannot be used against the respondent in any subsequent proceedings.

(b)      Affidavit of Consent. A lawyer who consents to a stated sanction shall present to the Grievance Commission panel an affidavit stating that the lawyer consents to the sanction and that

(1)    the consent is freely and voluntarily rendered, the lawyer is not being subjected to coercion or duress, and the lawyer is fully aware of the implications of submitting the consent;

(2)    the lawyer is aware that there is presently pending an investigation into, or proceeding involving, allegations that there exist grounds for sanction, the nature of which shall be specifically set forth;

(3)    the lawyer acknowledges that the material facts so alleged are true or could be proven; and

(4)    the lawyer acknowledges that sufficient evidence exists to support a finding of misconduct and the imposition of the stated sanction.

(c)      Order of Discipline. If the sanction by consent is an admonition, probation, or reprimand, the Board Clerk shall enter the order. If the sanction is disbarment or suspension, review for approval of the sanction may be sought as permitted by these Rules. In all other instances in which any proposed sanction has been approved, the Board Clerk shall file the affidavit with the Court, and upon approval the Court shall enter the order sanctioning the lawyer on consent.

(d)      Surrender of License.

(1)    An attorney who is the subject of an investigation under these Rules may submit to the Board a letter of surrender, supported by an affidavit showing that

         (A)   the surrender is freely and voluntarily rendered, the attorney is not being subjected to coercion or duress, and the attorney is fully aware of the implications of surrender;

         (B)   the attorney is aware that there is presently pending an investigation into allegations of misconduct, the nature of which allegations the attorney shall specifically set forth; and

         (C)    the attorney acknowledges that the material facts, or specified material portions of them, underlying the allegations are true or could be proven.

(2)    Upon receipt of such surrender, the Board shall file it, together with its recommendation thereon, with the Court, which after hearing shall enter such order as it deems appropriate.

(3)    Any order accepting such surrender shall be a matter of public record unless otherwise ordered by the Court; but the supporting affidavit required under the provisions of subsection (1) shall be impounded, whether or not such surrender is accepted, and shall not be made available for use in any other proceeding unless otherwise ordered by the Court.

(4)    An attorney who has surrendered his or her license under this rule may be reinstated only upon petition filed in the Court after at least 5 years from the effective date of the surrender, unless otherwise ordered by the Court.

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Reporter?s Notes ? June 2015

Rule 25(a) is similar to Model Rule 21(A). However, the committee elected to retain the jurisdictional approach of current practice and former Maine Bar Rule 7.1(e)(2)(E). Thus, a Grievance Commission panel, not the Board, has the authority to approve or reject the lawyer?s tendered admission to formal charges. Rule 25(a) also adopts a major change to the current authority of a Grievance Commission panel in such admitted matters. The committee felt panels should have the authority to accept all such admissions of misconduct including, subject to Court approval, matters including disbarment, suspension, or surrender of license.

Rule 25(b) is identical to Model Rule 21(D) and has no direct former Maine Bar Rule equivalent.

Rule 25(c) is a slight variant of Model Rule 21(E) and although similar to existing practice concerning reprimand matters, it has no direct equivalent in the former Maine Bar Rules. Under Rule 25(c), the Board Clerk shall enter all reprimand orders.

The surrender of license provision in Rule 25(d) is not based upon any Model Rule. It is substantively similar to former Maine Bar Rule 7.3(g) (resignation). This rule changes the current language (?resignation?) to language the committee felt better reflects the circumstances.

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Advisory Notes ? June 2017

Rule 13(e)(7)(D) provides for the Grievance Commission?s imposition of a sanction by agreement of the parties, which may include either disciplinary or non-disciplinary sanctions. Rule 21 provides for the imposition of both disciplinary sanctions as well as a non-disciplinary sanction (admonition). By making reference only to ?discipline? by consent, the former language contained in Rule 25 made no provision for the acceptance and imposition of an agreed upon non-disciplinary sanction (an admonition) by the Grievance Commission. The revised language of Rule 13(e)(7)(D) and Rule 25 makes it clear that the provisions of Rule 25 apply to both disciplinary and non-disciplinary sanctions that the Grievance Commission may impose by agreement of the parties.

RULE 26. Reciprocal Discipline

(a)      Notification. Upon being disciplined or the equivalent in another jurisdiction, a lawyer admitted to practice in Maine shall promptly inform Bar Counsel of the action.

(b)      Certified Order. Upon notification from any source that a lawyer within the jurisdiction of the Board has been disciplined or its equivalent in another jurisdiction, Bar Counsel shall obtain a certified copy of the order and file it with the Executive Clerk of the Law Court.

(c)      Notice Served Upon Respondent. Upon receipt of a certified copy of an order demonstrating that a lawyer admitted to practice in Maine has been disciplined or its equivalent in another jurisdiction, the Chief Justice of the Court shall designate a Single Justice forthwith and issue a notice directed to the lawyer and to Bar Counsel containing:

(1)    a copy of the order from the other jurisdiction; and

(2)    an order directing that the lawyer or Bar Counsel inform the Court, within 30 days from service of the notice, of any claim by the lawyer or Bar Counsel predicated upon the grounds set forth in Rule 26(e), that the imposition of a substantially identical order in Maine would be unwarranted and the reasons for that claim.

(d)      Effect of Stay in Other Jurisdiction. In the event the order in the other jurisdiction has been stayed there, any reciprocal order in Maine shall be deferred until the stay expires.

(e)      Discipline to be Imposed. Upon the expiration of 30 days from service of the notice pursuant to the provisions of Rule 26(c), the Court shall impose a substantially identical order unless Bar Counsel or the lawyer demonstrates, or the Court finds that it clearly appears upon the face of the record from which the order is predicated, that

(1)    the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

(2)    there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistent with its duty, accept as final the conclusion on that subject; or

(3)    the discipline imposed would result in grave injustice or be offensive to Maine public policy; or

(4)    the reason for the original order no longer exists.

If the Court determines that any of those elements exists, it may enter such other order as it deems appropriate. The burden is on the party seeking different discipline in Maine to demonstrate that the imposition of the same discipline is not appropriate.

(f)      Conclusiveness of Adjudication in Other Jurisdictions. In all other aspects, a final adjudication in another jurisdiction that a lawyer, whether or not admitted in that jurisdiction, has been guilty of misconduct or determined to be incapacitated shall establish conclusively the misconduct or the incapacity for purposes of a disciplinary proceeding in Maine.

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Reporter?s Notes ? June 2015

Rule 26(a) is a modification of Model Rule 22(A) and is analogous to former Maine Bar Rule 7.3(h). Rule 26(A) requires the lawyer disciplined elsewhere to so inform Bar Counsel, but the similar duty for disability status changes included in Model Rule 22(A) was deleted by the committee.

Rule 26(b) is based upon a portion of Model Rule 22(A) and has no similar specific provision in former Maine Bar Rule 7.3(h).

Rule 26(c) is identical to Model Rule 22(B) and contains no significant change from former Maine Bar Rule 7.3(h)(1).

Rule 26(d) is identical to Model Rule 22(C). Its requirement for a mandatory deferral to occur if a stay is issued in the initial issuing jurisdiction is a variance from the discretion allowed in former Maine Bar Rule 7.3(h)(2).

Rule 26(e) is identical to Model Rule 22(D) concerning the discipline to be imposed. It is similar to former Maine Bar Rule 7.3(h)(3) but clarifies the process for reciprocal discipline, burden of proof and time frames to be followed by the lawyer in attempting to demonstrate that the imposition of reciprocal discipline is inappropriate.

Rule 26(f) is substantively similar to Model Rule 22, and is in accord with former Maine Bar Rule 7.3(h).

RULE 27. Proceedings in which Lawyer is Determined Incapacitated

(a)      Incapacity. In any instance where an attorney has been determined to be incapacitated, including any proceeding in which (1) the attorney has been judicially declared incompetent; (2) the attorney has been acquitted of a crime by reason of mental illness; (3) the attorney has been committed to a mental health hospital after a judicial hearing; (4) the attorney has admitted herself or himself to a mental health hospital for acute care; (5) the attorney has admitted herself or himself to a substance abuse facility for extended treatment and no proxy has been appointed to protect client interests; or (6) the attorney has been placed by court order under guardianship or conservatorship, the Grievance Commission, on reference from any court or on its own motion, may, in its discretion, give the attorney the opportunity to surrender or to agree to a suspension. A Single Justice, upon Bar Counsels petition or upon its own motion, may enter an order to show cause why the attorney should not be suspended from the practice of law. A copy of such order shall be served upon the attorney, the attorney's personal representative, if any, and the director of the mental health hospital to which the attorney is committed, if any, in such manner as the Single Justice may direct.

(b)      Inability to Properly Defend. If during a disciplinary proceeding the respondent claims to be incapacitated, and the respondents incapacity makes it impossible to present an adequate defense, the Single Justice may immediately suspend the lawyer pending determination of the incapacity.

(1)   If the Single Justice determines the claim of inability to defend is valid, the disciplinary proceeding shall be deferred and the respondent retained on interim suspension until the Court subsequently considers a petition to terminate the suspension. If the Single Justice determines the petition shall be granted, the Single Justice shall also determine the disposition of the interrupted disciplinary proceedings.

(2)    If the Single Justice determines the claim of incapacity to defend to be invalid, the disciplinary proceeding shall resume and the respondent may immediately be placed on interim suspension pending the final disposition of the matter.

(c)       Proceedings Where an Attorney Is Alleged to Be Incapacitated.

(1)    Bar Counsel may, after investigation, seek a determination by a Grievance Commission panel, after hearing, that an attorney is incapacitated from continuing practice. Upon so finding, the Grievance Commission panel shall promptly petition the Court to determine whether the attorney is so incapacitated. The Chief Justice shall designate a Single Justice who, after due notice and hearing, shall issue any orders necessary or appropriate to protect the public interest, including an order suspending the attorney.

(2)    The Chair of the Board, or in the absence of the Chair, the Vice Chair, upon an application by Bar Counsel alleging such incapacity of an attorney together with an allegation that the continued practice of such attorney poses a substantial threat of irreparable harm to the public, may direct that such petition seeking the suspension of the attorney be filed directly with the Court. The Chief Justice shall designate a Single Justice who shall order such action as it deems appropriate, including an expedited hearing. The Single Justice may enter an interim order suspending the attorney pending such expedited hearing. With notice to Bar Counsel, the attorney may move for dissolution or modification of the interim order of suspension.

(d)      Reinstatement.

(1)    Generally. No respondent suspended hereunder may resume active status except by order of the Court.

(2)    Petition. Any respondent suspended hereunder shall be entitled to petition for transfer to active status once a year, or at whatever shorter intervals the Court may direct in the order of suspension or any modifications thereof.

(3)    Examination. Upon the filing of a petition for transfer to active status, the Court may take or direct whatever action it deems necessary or proper, including a direction for an examination of the respondent by qualified medical experts designated by the Court. In its discretion, the Court may direct that the expense of the examination be paid by the respondent.

(4)    Waiver of Doctor-Patient Privilege. With the filing of a petition for reinstatement to active status, the respondent shall disclose the name of each psychiatrist, psychologist (or other mental health professional), physician and hospital or other institution by whom or in which the respondent has been examined or treated since the suspension. The respondent shall furnish to the Court written consent to the release of information and records relating to the incapacity if requested by the Court or court-appointed medical experts.

(5)    Learning in Law; Bar Examination. The Court may also direct that the respondent establish proof of competence and learning in law.

         (A)    The Court may, before granting the petition, require that by a specific date the petitioner take and pass the modified bar examination (or its then equivalent) as administered by the Maine Board of Bar Examiners.

         (B)    The Court may require proof that the petitioner has met the CLE requirements of Rule 5 for each year the attorney has been inactive, withdrawn or prohibited from the practice of law in Maine, but need not complete more than 24 credit hours of approved continuing legal education for that entire period of absence from practice, provided that: (i) no more than one half of the credits are earned through self-study; (ii) at least two credit hours are primarily concerned with the issues of ethics or professional responsibility; and (iii) at least two credit hours are primarily concerned with issues of recognition and avoidance of harassment and discriminatory communication or conduct related to the practice of law.

(6)    Granting Petition for Transfer to Active Status. The Court shall grant the petition for transfer to active status upon a showing by clear and convincing evidence that the incapacity has been removed.

(7)    Judicial Declaration of Competence. If a respondent suspended on the basis of a determination of incapacity has been judicially declared to be competent, the Court may dispense with further evidence that the lawyers incapacity has been removed and may immediately direct the lawyers reinstatement to active status upon terms as are deemed proper and advisable.

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Reporters Notes June 2015

Rule 27(a) is based on Model Rule 23(A) but incorporates the more substantive and detailed language and procedures of former Maine Bar Rule 7.3(e)(1). While the Model Rules contemplate that some attorneys will be transferred to disability inactive status, the committee concluded that it was unnecessary to create this new designation in Maine.

Rule 27(b) closely follows Model Rule 23(B) and former Maine Bar Rule 7.3(e)(3) concerning the lawyers claim of incapacity issues causing an inability to defend a disciplinary matter.

Rule 27(c) is a significant variant from Model Rule 23(C) concerning a determination of the lawyers capacity. The committee elected to include and continue the existing practice as contained in former Maine Bar Rule 7.3(e)(2)(A) and (B).

Rule 27(d) is partially based on Model Rule 23(E) but does not contain that sections Disability Inactive Status title heading. The committee added specific learning in law requirements in Rule 27(d)(5)(A) and (B) that are not included in Model Rule 23(E)(5). Rule 27(d) is generally in accord with former Maine Bar Rule 7.3(e)(4).

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Advisory Note - May 2019

This amendment removes unnecessary subdivision references to Rule 5, increases the maximum number of CLE credits required for reinstatement from 22 to 24, and provides guidance to members of the bar with respect to the two additional credits. The amendment also eliminates the reference to in-house courses, as revised Maine Bar Rule 5 no longer contains in-house self-study language.

RULE 28. Reinstatement Following a Disciplinary Suspension of Six Months or Less

A lawyer who has been suspended for six months or less pursuant to disciplinary proceedings may be reinstated at the end of the period of suspension by filing with the Court and serving upon the Board an affidavit stating that he or she has fully complied with the requirements of the suspension order and has paid any required fees and costs.

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Reporter?s Notes ? June 2015

Rule 28 is based on Model Rule 24. The revised rule is substantially identical to former Maine Bar Rule 7.3(j)(2). The current rule provides if an attorney has been suspended for less than six months no petition need be filed so long as the attorney complies with registration requirements. The revised rule continues the automatic reinstatement but adds the requirement of an affidavit confirming that any requirements of the suspension have been met as well as the payment of fees and costs. The committee adopted the Model Rule language in its entirety.

RULE 29. Reinstatement after Disciplinary Suspension for more than Six Months

(a)      Generally. A lawyer suspended for more than six months or a disbarred lawyer may be reinstated only upon order of the Court. No suspended lawyer may petition for reinstatement until six months before the period of suspension is to expire. No disbarred lawyer may petition for reinstatement until five years after the effective date of disbarment unless otherwise provided by a Single Justice or the Court in its order of disbarment. A lawyer who has been placed on interim suspension and is then disbarred for the same misconduct that was the ground for the interim suspension may petition for reinstatement at the expiration of five years from the time of the effective date of interim suspension unless otherwise provided by a Single Justice or the Court in its order of disbarment.

(b)      Petition. A petition for reinstatement must be under oath or affirmation under penalty of perjury and shall specify with particularity the manner in which the petitioner meets each of the criteria specified in Rule 29(e) or, if not, why there is good and sufficient reason for reinstatement.

(c)      Service of Petition. The petition shall be filed with the Executive Clerk of the Court and also with Bar Counsel accompanied by a filing fee made payable to the Board of Overseers of the Bar and a completed Board Reinstatement Questionnaire.

(d)      Publication of Notice of Petition. Upon a petitioners filing of a petition for reinstatement, the Board Clerk, shall publish a notice of the petition on the Boards website. The notice shall inform members of the bar and the public about the application for reinstatement, and shall request that any individuals file notice of their opposition or support of the petition with the Board within 60 days. In addition, as appropriate, Bar Counsel may notify the complainant(s) in the disciplinary proceeding that led to the petitioners suspension or disbarment that the petitioner is applying for reinstatement, and shall inform each complainant that he or she has 60 days to file written notice of their opposition or to support the petition.

(e)      Criteria for Reinstatement. A petitioner may be reinstated only if the petitioner meets each of the following criteria:

(1)   the petitioner has fully complied with the terms and conditions of all prior disciplinary orders issued in Maine or in any other jurisdiction except to the extent they are abated under Rule 30, unless such suspension, disbarment, or discipline is solely the result of reciprocal action resulting from disciplinary action taken by Maine authorities;

(2)   the petitioner has not engaged or attempted to engage in the unauthorized practice of law during the period of suspension or disbarment;

(3)   if the petitioner was suffering under a physical or mental disability or infirmity at the time of suspension or disbarment, including alcohol or other drug abuse, the disability or infirmity has been removed. Where alcohol or other drug abuse was a causative factor in the petitioners misconduct, the petitioner shall not be reinstated unless:

         (A)    the petitioner has pursued appropriate rehabilitative treatment;

         (B)    the petitioner has abstained from the use of alcohol or other drugs for at least one year; and

         (C)    the petitioner is likely to continue to abstain from alcohol or other drugs;

(4)   the petitioner recognizes the wrongfulness and seriousness of the misconduct for which the petitioner was suspended or disbarred;

(5)   the petitioner has not engaged in any other professional misconduct since suspension or disbarment;

(6)   notwithstanding the conduct for which the petitioner was disciplined, the petitioner has the requisite honesty and integrity to practice law;

(7)   the petitioner has met the CLE requirements of Rule 5 for each year the attorney has been suspended or disbarred, but need not complete more than 24 hours of approved credit hours for that entire period of absence from practice, provided that (i) no more than one half of the credit hours are earned through self study; (ii) at least two credit hours are primarily concerned with the issues of ethics or professionalism; and (iii) at least two credit hours are primarily concerned with issues of recognition and avoidance of harassment and discriminatory communication or conduct related to the practice of law; and

(8)   In addition to all of the requirements in this provision, the attorney shall comply with Rule 4(a) and (b), and remit to the Board an arrearage registration payment equal to the total registration fee that the attorney would have been obligated to pay the Board under Rule 4(a) and (b) had the attorney remained actively registered to practice in Maine.

(f)      Review of Petition. Within 60 days after receiving a petition for reinstatement, Bar Counsel shall either

(1)   advise the petitioner, the Grievance Commission Chair and Vice Chair, and the Court that Bar Counsel will stipulate to the petitioners reinstatement, subject to the Courts approval; or

(2)   advise the petitioner, the Grievance Commission Chair, and the Court that Bar Counsel opposes reinstatement and requests a hearing.

(g)      Hearing; Report. Upon receipt of Bar Counsels request for a hearing, the Board Clerk shall promptly refer the matter to a Grievance Commission panel. Within 90 days of the request, the Grievance Commission panel shall conduct a hearing at which the petitioner shall have the burden of demonstrating by clear and convincing evidence that he or she has met each of the criteria in Rule 29(e) or, if not, that there is good and sufficient reason why the petitioner should nevertheless be reinstated. The Grievance Commission panel shall file a report with the Board Clerk containing its findings and recommendations. The Board Clerk shall file the report with the Executive Clerk of the Law Court and transmit a copy thereof to Bar Counsel and the petitioner.

(h)      Decision as to Reinstatement. The Court shall review the report filed by the Grievance Commission panel or any stipulation agreed to by the petitioner and Bar Counsel. If the petitioner or Bar Counsel objects to the panel's report, either party may file a pleading with the Court within 21 days stating the basis for its objection. The Court shall, with or without hearing issue its decision. (See Rule 14(b)(1-3)).

If the Court reinstates the petitioner, the Court shall issue a written opinion setting forth the grounds for its decision. If the Court denies reinstatement, the Court shall issue a written opinion setting forth the ground for its decision and shall identify the period after which the petitioner may reapply for reinstatement. Unless ordered otherwise by the Court, no petitioner may reapply for reinstatement within one year following an adverse judgment upon a petition for reinstatement.

(i)      Conditions of Reinstatement. The Court may impose conditions on a petitioners reinstatement. The conditions shall be imposed in cases where the petitioner has met the burden of proof justifying reinstatement, but the Court reasonably believes that further precautions should be taken to protect the public. The Court may impose any conditions that are reasonably related to the grounds for the petitioners original suspension or disbarment, or to evidence presented at the hearing regarding the petitioners failure to meet the criteria for reinstatement. Passing the bar examination and the character and fitness examination shall be conditions to reinstatement following disbarment. The conditions may include, but are not limited to any of the following: (1) limitation upon practice to one area of law or through association with an experienced supervising lawyer; (2) participation in continuing legal education courses; (3) monitoring of the petitioners practice for compliance with trust account rules, account procedures, or office management procedures; (4) abstention from the use of drugs or alcohol; (5) active participation in an alcohol or drug rehabilitation program; (6) active participation in mental health treatment; or (7) monitoring of the petitioners compliance with these conditions and any other orders. Should a monitor determine that the reinstated lawyers compliance with any condition of the reinstatement is unsatisfactory and that there exists a potential for harm to the public, the monitoring lawyer shall notify the Court and, where necessary to protect the public, the reinstated lawyer may be suspended from practice under Rule 21(b).

(j)      Reciprocal Reinstatement. Where a Single Justice or the Court has imposed a suspension or disbarment solely on the basis of imposition of discipline in another jurisdiction, and where the petitioner gives notice to the Court that he or she has been reinstated or readmitted in the other jurisdiction, the Court shall determine whether the petitioner should be reinstated. Unless Bar Counsel shows good cause why the petitioner should not be reinstated, the Court shall reinstate a petitioner who has been reinstated or readmitted in the jurisdiction where the misconduct occurred.

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Reporters Notes June 2015

Rule 29(a) adopts the provisions of the Model Rule 25(A) and is substantially in accord with former Maine Bar Rule 7.3(j)(1) to (4). The revised rule does, however, permit suspended attorneys to petition for reinstatement six months prior to the conclusion of the period of suspension.

Rule 29(b) adopts the provisions of the Model Rule 25(B) and is substantially in accord with language contained in former Maine Bar Rule 7.3(j)(5).

Rule 29(c) adopts the provisions of the Model Rule 25(C) and is substantially in accord with language contained in former Maine Bar Rule 7.3(j)(5).

Rule 29(d) adopts, in part, the provisions of Model Rule 25(D). Analogous language may be found in former Maine Bar Rule 7.3(j)(5). The committee rejected the publication notice practice in both the Model Rule and the former Maine Bar Rule and instead opted for posting notice of a petitioners reinstatement petition on the Boards website.

Rule 29(e) adopts, in part, the provisions of the Model Rule 25(E) Analogous languages may be found in former Maine Bar Rule 7.3(j)(5). The committee rejected the Model Rule requirement that a disbarred attorney must pass the bar examination and the character and fitness examination. The committee also rejected the current Maine practice whereby attorneys must pay a filing fee and a reinstatement. Instead, the reinstatement fee will be included in the filing fee.

Rule 29(f) is analogous to language found in former Maine Bar Rule 7.3(j)(5) and is in accord with Model Rule 25(F). The current rule, however, calls for Bar Counsel to provide notice of support or opposition to the petitioners reinstatement application to the Grievance Commission and the Court rather than the Board and the Court.

Rule 29(g) is based on Model Rule 25(G) and is analogous to language found in former Maine Bar Rule 7.3(j)(5).

Rule 29(h) is based in large part on Model Rule 25(H), and similar provisions can be found in former Maine Bar Rule 7.3(j)(6).

Rule 29(i) corresponds Model Rule (25)(I). While there is no equivalent former Maine Bar Rule, the revised rule is in accord with current Maine practice.

Rule 29(j) adopts Model Rule 25(J) in its entirety. The former Maine Bar Rules contain no equivalent provision. However, the committee concluded that it would be advantageous to include a specific rule stating the Courts power to reciprocally reinstate attorneys who have been reinstated in another jurisdiction.

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Advisory Note - May 2019

This amendment removes unnecessary subdivision references to Rule 5, increases the maximum number of CLE credits required for reinstatement from 22 to 24, and provides guidance to members of the bar with respect to the two additional credits. The amendment also eliminates the reference to in-house courses, as revised Maine Bar Rule 5 no longer contains in-house self-study language.

RULE 30. Abatement or Modification of Conditions of Discipline or Reinstatement

Where a Single Justice has imposed conditions in an order of discipline or in an order of reinstatement, the lawyer may request of the Single Justice an order of abatement discharging the lawyer from the obligation to comply with the conditions, or an order modifying the conditions. The lawyer may so request either prior to or as part of the lawyer?s petition for reinstatement. The Single Justice may grant the request if the lawyer shows by clear and convincing evidence that the lawyer has made a timely, good faith effort to meet the condition(s).

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Reporter?s Notes ? June 2015

Rule 30 adopts Model Rule 26 in its entirety. The rule permits a respondent to ask the Court for an order discharging the lawyer from the obligation to comply with certain discipline conditions. The former Maine Bar Rules contain no equivalent provision, but the committee concluded that it would be advantageous to include a specific rule clarifying the Court?s power to abate or modify conditions imposed on attorneys in disciplinary orders and orders for reinstatement or readmission. The committee also felt that the rule was in accord with current Maine practice, and the power to modify or discharge an attorney?s discipline obligations is an inherent power of the Court.

RULE 31. Notice to Clients, Adverse Parties, and other Counsel

(a)      Recipients of Notice; Contents. Unless otherwise ordered by a Single Justice, within 30 days after the date of the order imposing discipline, a respondent who has been disbarred, placed on interim suspension, or suspended shall so notify in writing all clients represented in pending matters; any co-counsel in pending matters; and any opposing counsel in pending matters, or in the absence of opposing counsel, the adverse parties, of the order of the Single Justice and that the lawyer is therefore disqualified to act as lawyer after the effective date of the order. The notice to be given to the lawyer(s) for an adverse party, or, in the absence of opposing counsel, the adverse parties, shall state the place of residence of the client of the respondent.

(b)      Special Notice. The Court may direct the issuance of notice to such financial institutions or others as may be necessary to protect the interests of clients or other members of the public.

(c)      Duty to Maintain Records. The respondent shall keep and maintain records of the steps taken to accomplish the requirements of Rule 31(a) and 31(b), and shall make those records available to Bar Counsel on request.

(d)      Return of Client Property. The respondent shall deliver to all clients being represented in pending matters any papers or other property to which they are entitled and shall notify them and any counsel representing them of a suitable time and place where the papers and other property may be obtained, calling attention to any urgency for obtaining the papers or other property.

(e)      Refund of Fees. Within 10 days after entry of the order imposing disbarment or suspension, the respondent shall refund any part of any fees paid in advance that has not been earned.

(f)      Withdrawal from Representation. Unless otherwise ordered, in the event the client does not obtain another lawyer before the effective date of the disbarment or suspension, it shall be the responsibility of the respondent to move in the court or agency in which the proceeding is pending for leave to withdraw. The respondent shall in that event file with the court, agency or tribunal before which the litigation is pending a copy of the notice to opposing counsel or adverse parties.

(g)      New Representation Prohibited. Prior to the effective date of the order, if not immediately in effect, the respondent shall not undertake any new legal matters between service of the order and the effective date of the discipline. The respondent shall take such action as is necessary to cause the removal of any indicia of lawyer, counselor at law, or similar title.

(h)      Affidavit Filed with Bar Counsel. Within 10 days after the effective date of the disbarment or suspension order, the respondent shall file with Bar Counsel an affidavit showing

(1)    compliance with the provisions of the order and with this rule;

(2)    all other state, federal and administrative jurisdictions to which the lawyer is admitted to practice; and

(3)    residence or other addresses where communications may thereafter be directed.

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Reporter?s Notes ? June 2015

Rule 31(a) is similar to Model Rule 27(A) but the committee felt that such notice was appropriate and normal to occur within 30 days, not 10 days as provided in Model Rule 27(A). Former Maine Bar Rule 7.3(i) contains similar notice requirements.

Rule 31(b) is identical to Model Rule 27(B) and has no equivalent former Maine Bar Rule.

Rule 31(c) is identical to Model Rule 27(C). It has no equivalent former Maine Bar Rule, but similar duties are required under Maine Rules of Professional Conduct 1.15(f) and 1.16(d).

Rule 31(d) is identical to Model Rule 27(D). It has no equivalent former Maine Bar Rule, but Maine Rules of Professional Conduct 1.15(f) and 1.16(d) have similar requirements.

Rule 31(e) is identical to Model Rule 27(E) with no direct equivalent former Maine Bar Rule. However, Maine Rules of Professional Conduct 1.15(f) and 1.16(d) also require the return of unearned fees.

Rule 31(f) is identical to Model Rule 27(F). It has no direct former Maine Bar Rule equivalent but similar duties are required by Maine Rules of Professional Conduct 1.16(d).

Rule 31(g) is very similar to Model Rule 27(G) and has similar requirements as contained in Maine Bar Rule 7.3(i)(1)(A).

Rule 31(h) is similar to Model Rule 27(H), but provides for the recipient of the lawyer?s affidavit to be the Bar Counsel, not the Court. It has no exact equivalent in the former Maine Bar Rules.

RULE 32. Receiver

(a)        Appointment of Receiver. Whenever an attorney is alleged to be incapacitated, or is missing, deceased, disbarred, or subject to an administrative or disciplinary suspension, the Court may appoint a Receiver to manage or conclude the attorney's law practice. The Receiver, who shall be a licensed Maine attorney in good standing, shall be appointed by the Court upon the recommendation of Bar Counsel. Bar Counsel shall consider and may recommend the proxy recommendation on the attorney's annual registration statement under Rule 4(b). A Receiver shall be authorized by Court order to take some or all of the following actions:

(1)    secure the professional files, client data, law office mail, office and client property in an appropriate location and notify the board of that location;

(2)    create an inventory of the open and closed client files;

(3)    give priority attention to client matters that are identified as open, active and apparently time sensitive, including notifying clients of the need to seek new counsel or to represent themselves. If necessary, the Receiver may seek protection for certain clients by giving notice to tribunals or others concerning the circumstances giving rise to the Receivership, without entering an appearance for the client;

(4)    notify all clients that the law practice is being managed by the Receiver or concluding and invite clients to retrieve their client files. Such notice may be by letter, phone, email, newspaper advertisement in a newspaper in general circulation in the county where the law practice was located and/or such other method as will effect notice. Notice to clients with open matters should be made by as direct means as possible;

(5)    if necessary, provide notice of appointment to all Courts and relevant state and county agencies;

(6)    prudently utilize the operating accounts to effect the management or conclusion of the practice, including the temporary retention of office staff or hiring other personnel as necessary and appropriate;

(7)    if necessary, establish a bank account in the Receiver?s name in order to protect assets to manage or conclude the practice and/or protect the clients' interests;

(8)    prudently utilize the operating accounts and client trust accounts in the appropriate distribution of client funds and property held in trust;

(9)    review and audit any IOLTA accounts;

(10)    submit to the Court a record of hours worked and disbursements made to allow in some cases for payment of legal fees and expenses;

(11)    receive payment of legal fees under the terms negotiated with the Board and approved by the Court;

(12)    continue to act as Receiver until discharged by the Court in accordance with Rule 32(c); and

(13)    take any and all other appropriate action consistent with the discretion vested in the Receiver by the Court and/or as specifically ordered by the Court.

(b)        Receiver?s Discharge Plan. Prior to petition for discharge, the Receiver shall formulate for the approval of the Court a plan for the custody, care, appropriate release and ultimate destruction of client files. The plan will identify a file caretaker (who may be the Receiver) who will preserve client confidentiality and maintain and appropriately release the client files to clients subsequent to the discharge of the Receiver. The plan must provide for confidential destruction of all client files and data pursuant to M.R. Prof. Conduct 1.15(f). The destruction date may be earlier if so ordered by the Court. The plan must include the requirement that the file caretaker provide written notice to the Board of Overseers confirming the confidential destruction of files and data immediately after it has occurred.

(c)        Term of Receiver. The Receiver shall serve until discharged by the Court. The Receiver may petition the Court for discharge from appointment upon completion of duties or sooner for other good cause. With the petition for discharge the Receiver shall file a report of services rendered. With the approval of the Court, the report or any part thereof may be filed under seal. Without divulging confidential information, the report should include, if applicable:

(1)    an inventory of files and the status of each file as released or retained;

(2)    the plan for the security and handling of the retained client files;

(3)    an accounting of the law practice operating accounts during the period of Receivership;

(4)    an accounting of the law practice client trust fund accounts during the period of Receivership; and

(5)   any other information deemed by the Receiver or the Court to be necessary and appropriate.

(d)        Client Rights. Any Receiver so appointed may not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out a court order, including any order under this rule. Any Receiver may be engaged by any former client of the deceased, missing, or incapacitated attorney, provided that the Receiver informs any such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order under section (2) of this rule does not mandate or recommend employment by the client of the Receiver. The Receiver is subject to the Maine Rules of Professional Conduct. However, the client?s retention of the Receiver as successor counsel is not a per se conflict of interest solely by reason of the Receiver?s appointment under this rule.

(e)        Liability. The Receiver shall be protected from liability for professional services rendered pursuant to the Order appointing such a Receiver.

(f)        Pleadings. The Receiver shall provide copies of all pleadings under this Rule to the Board.

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Reporter?s Notes - June 2015

Rule 32(a) is a drastic change from Model Rule 28 and is a virtual incorporation of former Maine Bar Rule 7.3(f)(1). Although Model Rule 28 provides for appointment of counsel to protect clients? interests in certain circumstances, the committee felt that former Maine Bar Rule 7.3(f)(1) to(6) was more thorough and complete. Therefore, the committee largely voted to adopt the former Maine Bar Rule, while making it somewhat more robust and detailed and retaining the structure of the model rules. The committee felt that the improvements were necessary in light of the aging of the Maine bar, and concluded that clearly enumerating the powers, duties, and obligations of receivers would help to protect clients. Although the former Maine Bar Rule refers to the person appointed by the Court as a ?proxy,? the committee felt that use of the word receiver, rather than proxy, was more accurate in this context. The remaining changes are largely organizational.

Rule 32(b) follows former Maine Bar Rule 7.3(f)(2) and is consistent with current Maine practice.

Rule 32(c) follows former Maine Bar Rule 7.3(f)(3).

Rule 32(d) follows former Maine Bar Rule 7.3(f)(4).

Rule 32(e) follows former Maine Bar Rule 7.3(f)(5).

Rule 32(f) follows former Maine Bar Rule 7.3(f)(6).

RULE 1. Authority, Scope, Goals and Definitions

(a) Authority and Scope. These Rules are adopted pursuant to 4 M.R.S. §§ 1551 to 1557, 18-C M.R.S. § 1-111, 19-A M.R.S. § 1507, and 22 M.R.S. § 4005, to address practice and performance of guardians ad litem for children in the District Court, the Superior Court, and the Probate Court. They govern the qualifications for guardians ad litem, standards of conduct for guardians ad litem, appointment of guardians ad litem, and placement of guardians ad litem on, and removal of guardians ad litem from, the guardian ad litem Roster.

(b) Goals. These Rules are designed to govern and define the services provided by guardians ad litem to the court and to promote the best interests of the children whose interests they are appointed to represent. These Rules shall be construed to secure the just, speedy, and inexpensive determination of every action. When appointed pursuant to these Rules, a guardian ad litem is a quasi-judicial officer of the court, primarily subject to and governed by the court in the individual proceeding and by the guardian ad litem oversight process more generally. A guardian ad litem must tailor his or her work to the particular needs and circumstances of each case as identified in the court order appointing the guardian ad litem, but, in general, a guardian ad litem shall

1. Represent consistently the best interest of the child and provide information to the court that assists the court in determining the best interest of the child;


2. Understand and uphold the law and court orders related to the guardian ad litem's appointment;


3. Maintain the highest standards of professionalism, cultural sensitivity, and ethics;


4. Recognize that timely resolution of each matter serves the best interest of the child and the childs need for stability;


5. Within the scope of authority defined by statute or court order, plan, carry out, document, and complete thorough, appropriate, and fair investigations in a timely fashion;


6. Communicate in a developmentally appropriate way with the child;


7. Make well-reasoned and factually based recommendations regarding the best interest of the child as directed by the order of appointment;


8. Pursuant to the order of appointment, include parties in the investigation, use effective communication techniques, recognize limitations that may be imposed by the financial resources of the parties as applicable, and be aware of the cultural and socioeconomic status of the parties; and


9. Complete assignments and written reports in a timely manner, and communicate effectively with the court in motions, reports, recommendations, and testimony.

(c) Definitions. As used in these Rules, the following terms have the following definitions:

1. Best interests of the child. "Best interests of the child" means an outcome that serves or otherwise advances the health, safety, well-being, education, and growth of the child.


2. Board Clerk. Board Clerk means the attorney employed by the Board of Overseers to perform advisory, review, and administrative functions as set forth in the Maine Bar Rules and these Rules.


3. Bar Counsel. Bar Counsel means an attorney employed by the Board of Overseers to perform the prosecutorial function in guardian ad litem disciplinary matters, or Special Counsel retained by the Board of Overseers under these Rules.


4. Board of Overseers. Board of Overseers means the Board of Overseers of the Bar.


5. CASA or CASA Program. CASA means a court appointed special advocate, and CASA Program means the Court Appointed Special Advocate Program established in Title 4, Chapter 31.


6. Central Intake Office. Central Intake Office means the office staffed by the Board Clerk that has certain administrative and review functions as set forth in the Maine Bar Rules and these Rules.


7. Chief Judge. Chief Judge means the Chief Judge of the District Court or the Chief Judges designee.


8. Complainant. Complainant means a person who files a complaint against a guardian ad litem pursuant to the Guardian Ad Litem Review Board Complaint System.


9. Guardian ad Litem. Guardian ad Litem means a person appointed as the courts agent to represent the best interests of one or more children pursuant to 18-C M.R.S. § 1-111, 19-A M.R.S. § 1507, and 22 M.R.S. § 4005.


10. Guardian ad Litem Review Board Complaint System. Guardian ad Litem Review Board Complaint System means the complaint system established in Rule 9.


11. Judge, court, or judicial officer. Judge, court, or judicial officer means a Justice of the Superior Court, a Judge of the District Court, a Judge of Probate, or a Family Law Magistrate.


12. Maine Supreme Judicial Court. "Maine Supreme Judicial Court means the Maine Supreme Judicial Court, or a single Justice thereof.


13. Office of the Chief Judge. Office of the Chief Judge means the administrative office of the Chief Judge of the District Court.


14. Public member. Public member means a member of the Review Board who is not a rostered guardian ad litem.


15. Respondent. Respondent means a guardian ad litem who is the subject of an action filed pursuant to the Guardian ad Litem Review Board Complaint System.


16. Review Board. Review Board means the Guardian ad Litem Review Board established in Rule 7.


17. Roster. Roster means the roster of guardians ad litem maintained by the Chief Judge that separately identifies CASAs and individuals approved to serve as guardians ad litem in Title 18-C proceedings, Title 19-A proceedings, and/or Title 22 proceedings.


18. Sanction. Sanction means a public disciplinary action pursuant to Rule 9 of these Rules and includes reprimand and removal of a guardian ad litem from the Roster for misconduct but does not include removal of the guardian ad litem from the Roster for incapacity.


19. Serious Crime. Serious Crime means any crime defined as a serious crime in Maine Bar Rule 23 or any crime in which the victim is a child.

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Advisory Note - September 2019

Rule 1 has been amended so that any reference to the Probate Code reflects the Legislature's enactment of a new Code, effective September 1, 2019. See P.L. 2019, ch. 417 § B-14; P.L. 2017, ch. 402 §§ A-1, A-2, F-1.

RULE 2. Guardians Ad Litem

(a)   Appointment.

(1)    Title 18-C and 19-A Proceedings. In Title 18-C and Title 19-A proceedings a judge may appoint, without any findings, any person listed on the Roster. In addition, when a suitable guardian ad litem included on the Roster is not available for appointment, a court may, for good cause shown and after consultation with the parties, appoint an attorney admitted to practice in this State who, after consideration by the court of all of the circumstances of the particular case, in the opinion of the appointing court has the necessary skills and experience to serve as a guardian ad litem. For the purposes of this paragraph, good cause may include the appointment of a guardian ad litem on a pro bono basis.

(2)    Child Protection Proceedings. Guardians ad litem appointed in child protection proceedings pursuant to 22 M.R.S. § 4005 shall be either a CASA or an attorney listed on the Roster. If neither a CASA nor a rostered attorney is available, the court may appoint another attorney.

(b)   Application, Selection, and Placement of Guardians ad Litem on Roster.

(1)    Application.

         (A)    Form. Roster applications shall be submitted on the official form that can be obtained from the Family Division of the Maine District Court. The Chief Judge may accept an application filed on a substitute form if the Chief Judge determines that substantially all of the information required by the official form has been furnished. The Chief Judge may reject an application that is incomplete or does not meet applicable criteria, or the Chief Judge may require an applicant to provide additional information or explanation.

         (B)    Application Periods. The Chief Judge will accept applications and will review them periodically.

(2)    Selection, Qualifications. The Chief Judge shall screen applications utilizing the criteria set forth in this section.

(3)    Criteria for Initial Listing on the Roster. To become listed on the Roster an applicant must demonstrate

         (A)    Credentials. The applicant must

                 (i)   Possess a current valid license to practice law in the State of Maine;

                 (ii)   Possess a current valid license to practice as an LCSW, LPC, LCPC, LMSW, LMFT, LPaC, psychologist or psychiatrist in the State of Maine; or

                 (iii)  Possess a Certification of Qualification by the Director of the CASA program, provided that a CASA Certification qualified individual may be appointed a guardian ad litem only pursuant to 22 M.R.S. § 4005; or

                 (iv)   have been on the GAL roster on the effective date of the implementation of these Rules (September 2015), have completed the core training required by the Rules, and if the applicant holds professional licenses, be in good standing

         (B)    Core Training. Attendance at a guardian ad litem training with a curriculum of at least 18 hours for Title 18-C and/or 19-A rostering and 23 hours for Title 22 rostering that has been approved by the Chief Judge satisfies this requirement. The curriculum must include specified learning outcomes and activities designed to meet these outcomes and must cover Titles 18-C, 19-A, and 22; dynamics of domestic abuse and its effect on children; dynamics of separation and divorce and its effect on children; child development; timing and impact of court-related events from a child's perspective; the effects of abuse, neglect and trauma on children; substance abuse; mental health; family finance and the impact of separation and divorce; legal issues and processes; professionalism as a guardian ad litem; the duties and obligations of the guardian ad litem as an agent of the court; and interviewing techniques.

For a guardian ad litem acting under the auspices of the CASA program, successful completion of CASA training satisfies this requirement. CASA guardians ad litem who accept appointment in non-CASA cases must complete the core training requirements.

         (C)    Good Character. The applicant must demonstrate to the Chief Judge that he or she is presently of good character and fitness to serve as a guardian ad litem.

(4)    Placement on Roster. The Chief Judge shall notify applicants of the results of the application screening process. Applicants who pass application screening are conditionally accepted, and shall complete a release authorizing the Administrative Office of the Courts to conduct a background check consisting of: (A) a criminal history information check, (B) a child protective services information check, and (C) a certificate of good standing from the licensing authority for the Applicants profession, which must include disclosure of any disciplinary action taken regarding the applicant in the 10 years preceding the date of the application.

Applicants whose background check results are satisfactory to the Chief Judge will be finally accepted and placed on the Roster. Applicants whose background check results are not satisfactory to the Chief Judge shall not be finally accepted and placed on the Roster.

Applicants whose initial checks indicate a material problem may be disqualified or asked for additional information or releases. The requirements for initial rostering must be maintained in order for a guardian ad litem to remain in good standing and included on the Roster.

The decision of the Chief Judge is final and not subject to appeal.

(5)    Acceptance of Court Referrals. A guardian ad litem should anticipate being asked to accept at least one Title 19-A pro bono or reduced fee referral from the Judicial Branch per calendar year, other than Title 22 cases, and should do so to the extent consistent with the guardian ad litems other professional, personal, and other public interest service.

(6)    Guardian ad Litem Resignation or Leave of Absence. A guardian ad litem may resign from the Roster at any time. A guardian ad litem may request a leave of absence from the Roster from the Chief Judge, who may accept the request, reject it, or condition acceptance on such terms as the Chief Judge believes are in the best interests of the Judicial Branch.

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Rule 2 - Reporters Notes:

The LSW license, which requires only a bachelors degree, has been removed from the list of licensures that form the predicate of a guardian application. Each of the other licenses requires at least a masters degree.

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Advisory Note September 2016

Rule 2(b)(2)(A) is amended to add as a qualifying credential that the applicant was on the GAL roster on the effective date of the implementation of these Rules (September 2015), completed the core training required by the Rules, and is in good standing with respect to any professional licenses the applicant holds.

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Advisory Note - September 2019

Rule 2 has been amended so that any reference to the Probate Code reflects the Legislature's enactment of a new Code, effective September 1, 2019. See P.L. 2019, ch. 417 § B-14; P.L. 2017, ch. 402 §§ A-1, A-2, F-1.

RULE 3. Immunity

Pursuant to 18-C M.R.S. § 1-111(6), 19-A M.R.S. § 1507(6), 22 M.R.S. § 4005(1)(G), and these Rules, guardians ad litem are entitled to quasi-judicial immunity from liability for actions undertaken pursuant to their appointments and these Rules.

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Advisory Note - September 2019

Rule 3 has been amended so that any reference to the Probate Code reflects the Legislature's enactment of a new Code, effective September 1, 2019. See P.L. 2019, ch. 417 § B-14; P.L. 2017, ch. 402 §§ A-1, A-2, F-1.

RULE 4. Court Appointment and Duties

(a)   Appointment to a Case. An individual shall act in a case as a guardian ad litem only as authorized by

(1)    A limited purpose appointment order issued pursuant to Rule 4(b)(4)(D)(i), 4 M.R.S. § 1555, and either 19-A M.R.S. § 1507 or 18-C M.R.S. § 1-111;

(2)    A standard appointment order issued pursuant to Rule 4(b)(4)(D)(ii), 4 M.R.S. § 1555, and either 19-A M.R.S. § 1507 or 18-C M.R.S. § 1-111;

(3)    An expanded appointment order issued pursuant to Rule 4(b)(4)(D)(iii), 4 M.R.S. § 1555, and either 19-A M.R.S. § 1507 or 18-C M.R.S. § 1-111; or

(4)    An appointment order issued pursuant to Rule 4(c), 4 M.R.S. § 1556, and 22 M.R.S. § 4005.

(b)   Title 18-C and 19-A Appointments.

(1)    Consideration of Appointment. A party may file a motion for the court to appoint a guardian ad litem in proceedings to determine parental rights and responsibilities and guardianship of a minor pursuant to Title 18-C and in contested proceedings pursuant to Title 19-A, section 904, 1653, or 1803 in which a minor child is involved. The court may also appoint a guardian ad litem on its own motion after notice to the parties and an opportunity to be heard. The court's adjudication of a motion for appointment of a guardian ad litem shall be governed by 18-C M.R.S. § 1-111 or 19-A M.R.S. § 1507.

(2)    Timing of Motion for Appointment. In a Title 19-A proceeding, any motion or request to the court for appointment of a guardian ad litem shall be filed no later than the conference with the court following the first scheduled mediation session or, if mediation is waived, 60 days after the first conference with the court. A motion or request for appointment of a guardian ad litem may be considered at a later time only if the court finds that

         (A)    There is good cause for the late motion;

         (B)     The reasons for the late motion could not have been anticipated at a point when a timely motion could have been filed; and

         (C)     The appointment will not unreasonably delay resolution of the matter or harm the best interest of the child in achieving clarity in parental rights and responsibilities for the child.

(3)    Factors to Consider. In determining whether an appointment must be made, the court shall consider

         (A)    The wishes of the parties;

         (B)    The age of the child;

         (C)    The nature of the proceeding, including the contentiousness of the hearing;

         (D)    The financial resources of the parties;

         (E)    The extent to which a guardian ad litem may assist in providing information concerning the best interest of the child;

         (F)    Whether the family has experienced a history of domestic abuse;

         (G)    Alleged abuse of the child by one of the parties; and

         (H)    Other factors the court determines relevant.

(4)    Contents of Appointment Order. The appointment shall be by court order, which shall be a limited purpose appointment order, a standard appointment order, or an expanded appointment order. The appointment order, which must be written on the court-approved form, shall provide information as follows:

         (A)     The court shall specify the guardian ad litems length of appointment; duties, including the filing of a written report pursuant to 4 M.R.S. § 1555(6) and either 19-A M.R.S. § 1507(5) or 18-C M.R.S. § 1-111(5); and fee arrangements, including hourly rates, timing of payments to be made by the parties, and the maximum amount of fees that may be charged for the case without further order of the court. The guardian ad litem may not perform and shall not be expected to perform any duties beyond those specified in the appointment order, unless subsequently ordered to do so by the court.

         (B)     If, in order to perform any specified duties, the guardian ad litem needs information concerning the child or parents, the court may order the parents to sign an authorization form allowing the release of the necessary information. The court order may specify that the guardian ad litem must be allowed access to the child by caretakers of the child, whether the caretakers are individuals, authorized agencies, or childcare providers.

         (C)     In Title 18-C proceedings, the court shall specify who is responsible for payment of the guardian ad litems fees. In Title 19-A proceedings, the order shall specify that payment for the services of the guardian ad litem is the responsibility of the parties pursuant to 19-A M.R.S. § 1507(7), with the terms of payment specified in the order. In determining the responsibility for payment, the court shall consider

                  (i)    The income and earnings of the parties;

                  (ii)    The marital and nonmarital assets of the parties;

                  (iii)    The division of property made or anticipated as part of the final divorce or separation;

                  (iv)    Which party requested appointment of a guardian ad litem; and

                  (v)    Other factors deemed relevant by the court, which shall be stated with specificity in the appointment order.

                  When the parties do not agree to the appointment of the guardian ad litem or the fee arrangements for payment of the guardian ad litem, the court shall state in the appointment order its findings, based on the criteria set out in this Rule, supporting the appointment of the guardian ad litem and the fee payment order. If a guardian ad litem seeks to obtain a judgment for fees based on the guardian ad litems services and expenses, the guardian ad litem shall do so as part of the action where the guardian ad litem has been appointed. Any action to obtain satisfaction or enforcement of a resulting judgment shall proceed in a separate proceeding under Title 14.

                 Collection of payment of fees, if a collection action is necessary, shall proceed pursuant to Title 14 and shall not be pursued in the action in which the guardian ad litem is appointed.

         (D)     The court may issue one of the following Appointment Orders:

(i)    Limited Purpose Appointment Order. The court may appoint a guardian ad litem for a specified, limited purpose or purposes. The order must specify the duties that the guardian ad litem shall perform, the duration of the appointment, the maximum number of hours that may be spent on the case by the guardian ad litem, the hourly fee rate, and the maximum fee that may be charged by the guardian ad litem. The order shall further specify when the fee shall be paid and by whom. If any court-ordered payment is not paid as ordered, the guardian ad litem shall notify the court, and, after the parties receive notice and have an opportunity to be heard, the court may vacate the appointment order or take such other action it deems appropriate.

(ii)    Standard Appointment Order. The standard appointment order shall list the duties of the guardian ad litem to be performed pursuant to the order.

         (a)    Those duties, in each standard appointment order, shall be:

                  (1)     Observing the child or children in the home or homes where the child or children regularly reside, and for each child over the age of 3, conducting a face-to-face interview with the child;

                  (2)     Interviewing each parent and each other adult who resides in the home or homes where the child or children regularly reside; and

                  (3)     Completing and filing a written report of investigation, findings, and recommendations as ordered by the court when the case is to proceed to a contested hearing, with copies of the report to each party and the court, within the time specified in the appointment order.

         (b)     For the performance of these duties, the appointment order shall specify a maximum fee and direct that a specified sum be paid within a set time before the guardian ad litem commences the investigation and any interim payments, with the remainder to be paid within 14 days after the filing of the written report. If any court ordered payment is not made, the guardian ad litem shall notify the court, and after the parties receive notice and have an opportunity to be heard, the court may vacate the appointment order or take such other action it deems appropriate under the circumstances.

(ii)    Expanded Appointment Order. The original appointment order or an amended appointment order may specify any additional duties of the guardian ad litem that shall be individually approved by the court.

         (a)    The additional duties may include

                  (1)    Interviewing teachers and other people who have knowledge of the child or family;

                  (2)    Reviewing mental health, medical and school records of the child;

                  (3)    Reviewing mental health and medical records of the parents;

                  (4)     Arranging for and obtaining medical, educational, or mental evaluations of the child within a time and at a cost to be stated in the order;

                  (v)     Arranging for and obtaining medical, educational, or mental evaluations of the parents within a time and at a cost to be stated in the order;

                  (vi)    Procuring counseling for the child;

                  (vii)    Retaining an attorney to represent the guardian ad litem in the pending proceeding, with approval of the court;

                  (viii)    Subpoenaing witnesses and documents, and examining and cross-examining witnesses;

                  (ix)    Serving as a contact person between the parents and the child; or

                  (x)    Other duties that the court determines necessary, including, but not limited to, filing pleadings and testifying in court.

         (b)     If the court orders any additional duties to be performed pursuant to the original appointment order or an amendment of that order, the court may amend any provision of the prior order that is affected by the newest order.

         (c)     For the performance of these duties, the appointment order shall specify a maximum fee, direct that a specified sum be paid within a set time before the guardian ad litem commences the investigation, direct the payment of any interim payments, and require that the remainder be paid within 14 days after the filing of the written report. If any court-ordered payment is not paid, the guardian ad litem shall notify the court, and after the parties receive notice and have an opportunity to be heard, the court may vacate the appointment order or take such other action it deems appropriate under the circumstances.

(5)    Best Interest of the child. In performance of duties in Title 18-C and Title 19-A proceedings, the guardian ad litem shall use the standard of the best interest of the child as stated in 19-A M.R.S. $sect; 1653(3).

(6)    Wishes of the child. The guardian ad litem shall make the wishes of the child known to the court if the child has expressed them, regardless of the recommendation of the guardian ad litem.

(7)    Written report. A guardian ad litem shall provide a copy of any required final written report to the parties and the court at least 14 days in advance of the final hearing. The report is admissible as evidence and subject to cross examination and rebuttal, whether or not objected to by a party.

(8)     Agent of the Court. A person serving as a guardian ad litem pursuant to 4 M.R.S. § 1555 and either 18-C M.R.S. § 1-111 or 19-A M.R.S. § 1507 acts as the courts agent and is entitled to quasi-judicial immunity for acts performed within the scope of the guardian ad litems duties.

(c)   Title 22 Appointment Order. Guardian ad litem appointment orders entered pursuant to 4 M.R.S. § 1556 and 22 M.R.S. § 4005 shall be issued on a court-approved form and shall specify the terms and conditions of the guardian ad litems appointment as stated in Title 22 and in these Rules. The guardian ad litem has no authority to perform and shall not be expected to perform any duties beyond those specified in the appointment order, unless subsequently ordered to do so by the court.

(1)    Meet and Interview Child. The guardian ad litem shall be provided access to the child by any agency or person. Irrespective of the childs age, the guardian ad litem should visit with the child as soon as possible after appointment, consistent with statutory requirements or the order of appointment, or both. Unless otherwise specified by the court, the initial meeting must take place within 7 days after appointment. The guardian ad litem should meet with the child prior to court hearings and when apprised of emergencies or significant events that are likely to have an impact on the child. Unless otherwise specified by the court, the guardian ad litem must meet with the child at least quarterly.

(2)    Investigation. In pursuit of the best interest of the child, the guardian ad litem should be given access to all reports and records relevant to the case and investigate to ascertain the facts. The investigation must include, when possible and appropriate, the following:

         (A)    Review of relevant mental health records and materials;

         (B)    Review of relevant medical records;

         (C)    Review of relevant school records and other pertinent materials;

         (D)    Interviews with the child with or without other persons present; and

         (E)    Interviews with parents, foster parents, teachers, caseworkers, and other persons who have been involved in caring for or treating the child.

(3)    Court filings. The guardian ad litem should file such reports, motions, responses, or objections as necessary and appropriate to the stage of the case to assist the court in identifying the best interest of the child and provide copies to all parties of record. In the event any new developments or significant changes in the childs circumstances occur during the pendency of the court process, the guardian ad litem may file appropriate pleadings. Relief requested may include, but is not limited to, the following:

         (A)    A mental or physical examination of a party or the child;

         (B)    A parenting, custody or visitation evaluation;

         (C)    An increase, decrease, or termination of contact, or the imposition of conditions on contact;

         (D)    Restraining or enjoining a change of placement;

         (E)    Contempt for noncompliance with a court order;

         (F)    Termination of parental rights;

         (G)    Child support;

         (H)    A protective order concerning the childs privileged communications or tangible or intangible property;

         (I)      A request for services for child or family; and

         (J)    Dismissal of petitions or motions.

(4)    Participation in Hearing. The guardian ad litem shall appear at all child protection proceedings to represent the childs best interest, unless previously excused by order of the court, and at other proceedings as ordered by the court. The guardian ad litem may present evidence and ensure that, where appropriate, witnesses are called and examined, including, but not limited to, foster parents and psychiatric, psychological, medical, or other expert witnesses. If the guardian ad litem testifies, the guardian ad litem shall be duly sworn as a witness and be subject to cross-examination.

(5)    Protection of Child as Witness. The guardian ad litem shall advocate for the interests of the child when the child is called to testify as a witness in any judicial proceeding relating to the case in which the guardian ad litem has been appointed. The guardian ad litem may advocate for special procedures, including, but not limited to, special procedures to protect the child witness from unnecessary psychological harm resulting from the childs testimony.

(6)    Recommendations to the Court. The guardian ad litem may make recommendations to the court to obtain access to appropriate services and entitlements, to protect the childs interests, and to implement a service plan.

For interim or preliminary protection hearings, the guardian ad litem should, except as otherwise required, appear in court and offer recommendations subject to questions by the court and parties or counsel. The submission of a report by the guardian ad litem and the admissibility of any such report in evidence shall be as provided by statute. The guardian ad litem may present evidence at court hearings.

(7)    Development of Services. The guardian ad litem may advocate for appropriate services, including by motion filed with the court, to obtain access to appropriate services and entitlements, to protect the childs interests, and to implement a service plan. These services may include, but are not limited to, the following:

         (A)    Family preservation or reunification services;

         (B)    Sibling and family visitation;

         (C)    Child support;

         (D)    Domestic violence prevention, intervention, and treatment;

         (E)    Medical and mental health care, including residential/inpatient and outpatient psychiatric treatment if necessary and appropriate;

         (F)    Drug and alcohol treatment;

         (G)    Parenting education;

         (H)    Semi-independent and independent living services;

         (I)    Foster care, including therapeutic foster or group home care if necessary and appropriate;

         (J)     Petition for termination of parental rights;

         (K)    Adoption services;

         (L)    Education;

         (M)    Recreational or social services;

         (N)    Housing; and

         (O)     Referrals for supplemental security income (SSI) or special education and related services, if necessary and appropriate.

(8)    Best interests of the child. In performing the duties specified in the appointment order, the guardian ad litem shall use the standard of the best interest of the child.

(9)    Additional Powers. A guardian ad litem may perform only those duties specified by court order. In some cases, however, the court may order that guardian ad litems investigation include the following activities:

         (A)     Reviewing the court files of siblings and other family members, and other case-related records of involved social service agencies and other service providers;

         (B)     Contacting lawyers for other parties and other guardians ad litem in the case and in other relevant cases for background information;

         (C)     Obtaining necessary authorizations for the release of information;

         (D)     Interviewing individuals involved with the child, including school personnel, child welfare case workers, foster parents, and other caretakers, neighbors, relatives, coaches, clergy, mental health professionals, physicians, law enforcement officers, and potential witnesses;

         (E)     Reviewing relevant photographs, video or audio recordings, and other evidence;

         (F)     Attending and participating in, where appropriate, treatment, placement, administrative hearings, other proceedings involving legal issues, and school case conferences concerning the child as needed;

         (G)     Arranging for the assessment of any physical, sexual, developmental, and/or emotional risks to or abuse of the child by utilizing risk assessment tools; evaluations, assessments, and reports; medical records; observation; and interviews with appropriate persons;

         (H)     Communicating effectively with other professionals involved in the assessment or treatment of the child and/or parties to a childs case, to include the following:

                  (i)     Identifying the need for assessments related to domestic violence; abuse of a child; chemical dependency; mental health; and/or special developmental, educational, or medical needs of a child, and making referrals to appropriate specialists or treatment programs;

                  (ii)     Requesting educational testing of, or an individualized education plan for, a child;

                  (iii)     Understanding measurement tools, risk assessments, and reports related to domestic violence, abuse of a child, chemical dependence, mental health, and/or the special needs of a child; and

                  (iv)     Understanding scientific data related to paternity and/or medical needs of a child; disclosing information to other professionals, when it is in the childs best interest to do so, in order that they can adequately perform their functions; and reviewing tentative conclusions or recommendations with them in order to test their validity or appropriateness;

         (I)     Participating in the development and negotiation, including mediation, of any plans or orders that affect the best interest of the child; and

         (J)     Monitoring implementation of service plans and court orders, until the termination or expiration of the guardian ad litems appointment, to determine whether services ordered by the court are being provided effectively and in a timely manner.

(10)    Appointment of Counsel for Guardian ad litem. A guardian ad litem may petition the court to appoint a lawyer to represent the guardian ad litem when, in the judgment of the guardian ad litem, such appointment is necessary to protect the legitimacy of the guardian ad litems role.

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Advisory Note - September 2019

Rule 4 has been amended so that any reference to the Probate Code reflects the Legislature's enactment of a new Code, effective September 1, 2019. See P.L. 2019, ch. 417 § B-14; P.L. 2017, ch. 402 §§ A-1, A-2, F-1.

RULE 5. Standards of Conduct

(a)    Performance of Duties. The guardian ad litem must maintain independent representation of the best interest of the child and perform the guardian ad litem's duties faithfully.

(b)    Agent of the Court. As a quasi-judicial officer, the guardian ad litem shall exercise his or her independent judgment on behalf of the child in all relevant matters, respecting the courts obligation under Canon 2.2 of the Maine Code of Judicial Conduct to "perform all judicial and administrative duties promptly, fairly, and competently."

(c)    Develop Understanding of Litigation. Commencing upon appointment, the guardian ad litem should, to the extent reasonably possible, considering the resources authorized for the guardian ad litem:

(1)     Obtain copies of all relevant pleadings and notices;

(2)     In Title 22 cases, unless excused by the court, and in Title 18-C and 19-A cases, when directed by the court, participate in depositions, negotiations, and discovery that are relevant to the childs best interest, and participate in all case management, pretrial or other conferences, and hearings, unless excused by the court;

(3)     Confirm the appointment with the clerks office. The clerk shall send copies of all subsequent notices and orders to the guardian ad litem. Parties or their counsel shall send to the guardian ad litem copies of all pleadings and correspondence with the court, and the guardian ad litem shall be entitled to reasonable notification of case conferences, changes of placement, and other changes of circumstances affecting the child and the childs family;

(4)     Not cause case delays and shall attempt to reduce case delays; and

(5)     Include parties in the investigation, employ effective communication techniques, and be sensitive to the culture and socio-economic status of the parties.

(d)    Explanation of Court Process. When appropriate, the guardian ad litem shall explain the court process and the role of the guardian ad litem to the child. When necessary, the guardian ad litem shall assure that the child is informed of the purpose of the court proceeding.

(e)    Advocate for Clear Court Orders. The guardian ad litem should request orders that are clear, specific, and, where appropriate in Title 22 cases, include a time line for the assessment, implementation of services, placement, treatment, and evaluation of the child and the childs family.

(f)    Mandated Reporting. Pursuant to 22 M.R.S. § 4011-A, while acting in their professional capacity as guardians ad litem, guardians ad litem are mandated reporters, and if a guardian ad litem knows or has reasonable cause to suspect that a child has been or is likely to be abused or neglected, the guardian ad litem shall make an immediate report to the Department of Health and Human Services.

(g)    Confidentiality. A guardian ad litem shall observe all statutes, rules, and regulations concerning confidentiality. A guardian ad litem shall not disclose information or participate in the disclosure of information relating to a case to any person who is not a party to the case, except as necessary to perform the guardian ad litems duties, or as may be specifically provided by law or by these Rules. Communications made to a guardian ad litem, including those made to a guardian ad litem by a child, are not privileged. The guardian shall exercise reasonable discretion about whether to disclose communications made by the child to the court, or to professionals providing services to the child or the family based on the guardian ad litems evaluation of the best interest of the child. Any decision by the guardian not to disclose such information, however, shall be subject to review by the court following an in camera review. A guardian ad litems notes and work papers are privileged and shall not be disclosed to any person, reserving to the court, however, the authority to order disclosure of such material as part of court proceedings if the court determines that disclosure is warranted under applicable court procedures. If the guardian ad litem is an attorney, she or he shall be deemed to act as a guardian ad litem rather than as an attorney, and information he or she receives is not subject to the attorney-client privilege.

(h)    Ex Parte Communications. In extraordinary circumstances involving matters of child safety or similarly grave concerns, the guardian ad litem may initiate or participate in ex parte communications with the court about a particular case pursuant to Canon 2.9(A) of the Maine Code of Judicial Conduct. However, as a matter of due process and fundamental fairness, the guardian ad litem or the court must promptly disclose the nature of the communication to the parties or their counsel, unless such disclosure is likely to present a risk of harm to the child or a party, in which case the court shall take such steps as are necessary to alleviate the potential for harm, and when the danger of harm no longer exists, disclose the nature of the communication to the parties or their counsel.

(i)    Conflicts of Interest and Mandatory Disclosures.

(1)    Mandatory Disqualification. A guardian ad litem shall

         (A)     Decline appointment in a proceeding where the guardian ad litem has a present or prior personal, professional, business, or legal relationship with any party, interested party, or intervenor involved in the proceeding that would interfere with the guardian ad litems ability to perform the functions of a guardian ad litem in accordance with these Rules and in accordance with any requirements of a judicial officer; and

         (B)     If a relationship described in Rule 5(i)(1)(A) arises after appointment, advise the court of the existence of such a relationship and seek permission to withdraw.

(2)    Disclosure of Prior Acquaintances. A guardian ad litem who is aware that he or she had a relationship of any type, including but not limited to a professional, personal, or financial relationship, with any party, interested party, or intervenor in a case, shall

         (A)     At or before the time of appointment, disclose such fact to the parties and the court, either orally or in writing; and

(3)    Allegations of Failure to Disclose Prior Acquaintances. If it is alleged by a party to any proceeding in which a guardian ad litem is appointed that the guardian ad litem has failed to disclose any present or prior relationship that affects his or her objectivity, or the guardian ad litems ability to perform the functions of a guardian ad litem in accordance with these Rules or in accordance with requirements of a judicial officer, the guardian ad litem shall

         (A)     Inform a judicial officer that the allegation has been made; and

         (B)     Respond either orally or in writing to a judicial officer and to all parties regarding the nature of the present or prior acquaintance, if any.

(4)    Duty to Report.

         (A)     A guardian ad litem shall, in writing, immediately inform Board Counsel and the courts and parties in all Title 18-C, Title 19-A, and Title 22 proceedings in which the guardian ad litem is currently appointed of the existence of the following with respect to the guardian ad litem:

                  (i)     Any criminal conviction not previously disclosed to the Review Board pursuant to Rule 2 or Rule 8;

                  (ii)     Any pending criminal charge in any jurisdiction and any disposition of such criminal charge;

                  (iii)     Any pending disciplinary hearing before a professional licensing agency in Maine or any other jurisdiction, including but not limited to the filing of formal charges by Bar Counsel pursuant to Rule 9(d) of these Rules, and the disposition of such matter(s); and

                  (iv)     Any court finding of abuse or neglect or any substantiation of abuse or neglect by the Maine Department of Health and Human Services or an equivalent agency in any other jurisdiction.

         (B)     A guardian ad litem shall immediately inform Board Counsel of the existence of any pending safety assessment by the Maine Department of Health and Human Services involving anyone residing in the guardian ad litems household.

         (C)     A guardian ad litem shall immediately inform Board Counsel of the existence of any of the following of which he or she is aware regarding the guardian ad litems spouse, the parent or guardian of a child of the guardian ad litem, or any person with whom the guardian ad litem resides:

                  (i)     Any charge, finding, or conviction in which it has been alleged that the person abused or neglected a child, as defined by 22 M.R.S. § 4002;

                  (ii)     Any charge, finding, or conviction in which it has been alleged that the person abused, neglected, or exploited an incapacitated or dependent adult, as defined by 22 M.R.S. § 3472; or

                  (iii)     Any charge, finding, or conviction in which it has been alleged that the person committed a serious crime as defined by Rule 1(c)(19).

              Board Counsel shall inform the Chief Judge of information received by a guardian ad litem under this Rule in accordance with Rule 9(h).

(5)    Disclosure of Other Cases. If a guardian ad litem is a party to any case in court, other than in his or her capacity as a guardian ad litem, he or she shall immediately disclose to the court in any Title 18-C, Title 19-A, or Title 22 case in which he or she is currently appointed that he or she is a party to a case in court, and the name, court location, docket number and nature of any such case, and request direction from the court as to service or continued service as a guardian ad litem.

(6)    Disclosure of Financial Relationship. If a guardian ad litem has any financial relationship with any attorney in the case or any material witness, he or she shall immediately disclose to the judicial officer the existence and nature of that relationship, and the court shall determine whether initial or ongoing appointment of the guardian ad litem is appropriate.

(j)    Withdrawal. A guardian ad litem may seek to withdraw by filing a motion with the court that appointed the guardian ad litem. The guardian ad litem must continue representation until the motion is granted, and if the courts order so provides, until a successor guardian ad litem is appointed.

(k)    Billing Standards. Effective as of January 31, 2018, the following standardized billing procedures are adopted in the for all guardians ad litem.

(1)    Rates for Guardians ad Litem. Guardians ad litem whose fees are to be paid by parties shall be paid at the hourly or flat rate determined in the courts Order for Appointment of Guardian ad Litem for each individual case. If the guardian ad litem is being paid by any state or county government, the guardian ad litem shall complete such forms as required for reporting time and billings. In cases in which the Guardian ad litem is serving pro bono by appointment under these Rules, the guardian ad litem shall still file a final invoice setting forth hours worked on the case. All other guardians ad litem shall be paid in accordance with the order of appointment or as specified by JB-05-05.

         (A)     Itemized Expenses for Guardians ad Litem.

                  (i)     Itemization Requirements. All invoices for time and claims for expenses must be itemized.

                  (ii)     Itemization of Time. Time spent shall be outlined in detailed and itemized billing statements. If applicable, time will be billed at the rate approved in the order of appointment. Guardians ad litem who have agreed to serve for a flat fee must still complete itemized invoices. Itemized bills will show work done in increments of one tenth of an hour (six minutes blocks of time). Sufficient detail will be provided to allow the parties to understand the nature of each task and the time spent on that task. Guardians ad litem will avoid block billing (i.e., the consolidation of more than one task into a time description, with a number of hours billed for the entire block).

                  (iii)     Billing Frequency. Unless the order of appointment specifies a different time or other billing procedure, guardians ad litem shall submit bills to the parties every ninety days. At any final hearing, a guardian ad litem shall provide the court and the parties with an updated itemized invoice showing all time spent and expenses incurred between the date of the last invoice and the date of the hearing.

         (B)     Maximum Hours.

                  (i)     The maximum number of hours and costs for which a guardian ad litem will be reimbursed shall be determined by the presiding judicial officer handling the case, after consultation with the parties, and will be designated in the courts order of appointment.

                  (ii)     Before a guardian ad litem can be paid for time exceeding the court ordered hours, the guardian ad litem must obtain court approval. Any order approving this additional time must be reflected in an amended order in the form approved by the Judicial Branch.

(l)    Compliance Reports.

(1)     Using Judicial Branch form FM-222, the guardian ad litem in a family matter case shall complete and file a Compliance Report concurrent with the filing of a final report or 7 days before the final hearing, or on another date specified by a judicial officer.

(2)     Using Judicial Branch form PC-034, the guardian ad litem in a child protection case shall file a Compliance Report with the guardian ad litem report 7 days before any hearing, or on another date specified by a judicial officer. Although a guardian ad litem is not statutorily mandated to file reports for summary preliminary hearings, each guardian ad litem must file a Compliance Report on the date of a summary preliminary hearing

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Reporters Notes

Rule 5(h) authorizes guardians ad litem to engage in ex parte communications with a judicial officer only in truly extraordinary circumstances. A guardian ad litem who abuses Rule 5(h) may be subject to discipline pursuant to Rules 6 and 9. Rule 5(i), addressing conflicts of interest and disclosures, is based on Rule 503.06 of the New Hampshire Guardian ad Litem Rules.

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Advisory Note - January 2018

Rule 5 of the Maine Rules for Guardians ad Litem is being amended to reflect the billing requirements imposed on GALs by the October 2017 amendments of Administrative Order JB-05-05, and to ensure that the invoices generated by GALs are provided to the court an dthe parties with enough detail and frequency to allow for review of the work being done. In addition, the Rule references the Judicial Branches new compliance reports, which are to be used in every case where a GAL has been assigned.

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Advisory Note - September 2019

Rule 5 has been amended so that any reference to the Probate Code reflects the Legislature's enactment of a new Code, effective September 1, 2019. See P.L. 2019, ch. 417 § B-14; P.L. 2017, ch. 402 §§ A-1, A-2, F-1. In addition, the conflict rule has been expanded in subdivision (i) to ensure that the GAL will not have a conflict with any party, interested party, or intervenor.

RULE 6. Involuntary Removal from a Particular Case

(a)    Removal. A guardian ad litem may be removed from a particular case only by order of the court, either on motion of a party to the case or on the court's own motion. When removing a guardian ad litem from a case, the judicial officer may take any other action deemed appropriate.

(b)    Motion. A party who wishes to seek the removal of a guardian ad litem from a particular case shall proceed by written motion, which shall be served upon the parties and the guardian ad litem. Any such motion shall state whether a complaint has been filed with the Review Board pursuant to Rule 9. Any opposition and reply to the motion shall be governed by the applicable rules of court, and the guardian ad litem shall be treated as the opposing party for purposes of the motion. The judicial officer shall hold a hearing on the motion at the request of the party filing the motion. The motion may be advanced on the docket and receive priority over other cases when the judicial officer determines that the interests of justice so require.

(c)    Mandatory Removal. A judicial officer shall remove a guardian ad litem from a particular case if the guardian ad litem has been suspended or removed from the Roster.

(d)    Discretionary Removal. In all cases other than those specified in Rule 6(c), the decision whether to remove a guardian ad litem from a particular case is subject to the discretion of a judicial officer.

(e)    No Right to Interlocutory Appeal. The decision whether to remove a guardian ad litem from a particular case is not subject to interlocutory review.

(f)    Replacement. Following removal of the guardian ad litem, the judicial officer shall appoint a successor guardian ad litem pursuant to Rule 2, except that, in Title 18-C and Title 19-A cases, the court may order that the case proceed without a guardian ad litem.

(g)    Interrelationship with Rule 9. The provisions of this Rule do not limit a partys right to submit a complaint under Rule 9. A complaint submitted to the Review Board by a party to an open proceeding shall not proceed until the court issues a final judgment in that case, the court enters an order allowing the Board to proceed, or the guardian ad litem is removed or discharged. A partys submission of a complaint to the Review Board under Rule 9 shall not by itself require the removal of the guardian ad litem in the subject proceeding.

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Reporters Notes

Rule 6 establishes the procedures for removal of a guardian ad litem from a particular case. As set forth in 4 M.R.S. § 1557(4), the complaint process adopted in Rule 9 is in addition to the right of a party to file a motion to remove the guardian ad litem while a case is pending. Rule 6(a) also recognizes a judicial officers inherent authority to remove a guardian ad litem on his or her own initiation. No hearing is necessary if the judicial officer initiates the removal.

The second sentence of Rule 6(a) permits a judicial officer to "take any other action he or she deems appropriate" when removing a guardian ad litem from a particular case. Possible additional actions include, but are not limited to, filing a complaint pursuant to Rule 9; ordering the guardian ad litem to reimburse the parties or the Judicial Branch for fees, including those fees previously earned but no longer of use in the case; or ordering the guardian ad litem to transfer files or other information to the replacement guardian ad litem.

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Advisory Note - September 2016

Rule 6(b) is amended to require that a motion to seek removal of a guardian shall state whether a complaint has been filed with the Review Board pursuant to Rule 9.

Rule 6(g) is amended to clarify that the provisions of Rule 6 do not limit a partys right to submit a complaint under Rule 9 and to specify, A complaint submitted to the Review Board by a party in an open proceeding shall not proceed until the court issues a final judgment in that case, the court enters an order allowing the Board to proceed, or the guardian ad litem is removed or discharged.

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Advisory Note - September 2019

Rule 6 has been amended so that any reference to the Probate Code reflects the Legislature's enactment of a new Code, effective September 1, 2019. See P.L. 2019, ch. 417 § B-14; P.L. 2017, ch. 402 §§ A-1, A-2, F-1.

RULE 7. Guardian ad Litem Review Board

(a) Guardian ad Litem Review Board

(1)    Review Board. The Guardian ad Litem Review Board is established as an independent unit within the Board of Overseers to administer the regulation of guardians ad litem as defined in these Rules.

(2)     Appointment. The Maine Supreme Judicial Court shall appoint twelve people to serve on the Review Board. Eight members shall be drawn from the Roster or from the Family Law Section of the Maine State Bar Association. Four members shall be public members, selected as follows. The Governor, the President of the Senate, and the Speaker of the House shall each be invited to submit recommendations for the public members, and the Judicial Branch shall solicit public members though notice on the Judicial Branch Website. When sufficient recommendations are received from executive and legislative leadership, three of the four public members will be drawn from that list. The Maine Supreme Judicial Court shall periodically designate on member of the Board as Chair and another as Vice Chair.

(3)     Terms of Office. Review Board members shall be appointed for a term of four years, except that, for the purpose of achieving staggered terms, the initial appointments of four of the members who are on the Roster and two of the public members shall be for two years. No member shall serve more than two consecutive four-year terms. A member whose term has expired may continue to serve on any case that was commenced before the expiration of the member?s term. A member who has served two consecutive four-year terms may not be reappointed before the expiration of at least one year.

(4)     Compensation. Review Board members shall receive no compensation for their services but may be reimbursed by the Board of Overseers of the Bar for travel and other expenses incidental to the performance of their duties.

(5)    Review Review Board Quorum. Seven members of the Review Board shall constitute a quorum for any meeting. The Review Board may act through the concurrence or vote of a majority of the members present at a duly constituted meeting. After reasonable notice to all members and with the consent of all participating members, a meeting may be duly constituted and action taken by means of a telephone or video conference or other communications equipment enabling all participants and attendees to hear one another. Meetings of the Review Board shall be open to the public, except those portions of the meetings wherein the Review Board (A) consults with counsel pertaining to contemplated or pending litigation, or proceedings pending before a Review Board Panel and/or a Single Jurist; or (B) considers other matters made confidential or private by these Rules, court order, or law.

(6)     Representation Prohibition. No member may be legal counsel for a party in any proceeding under Rules 6 through 9. When a Review Board member is employed by a law firm and a member of that firm serves as legal counsel for a party in any proceeding under Rules 6 through 9, the Review Board member shall be ineligible to perform Review Board responsibilities relating to that proceeding. The Review Board member shall remain eligible to perform Review Board responsibilities unrelated to that proceeding, provided that the Review Board member is timely screened from any participation in or relating to that proceeding, at both the Review Board member?s firm and the Review Board.

(7)    Review Board members may not testify voluntarily in any proceedings under these Rules or as an expert witness in any court proceeding in the field of guardian ad litem responsibilities.

(8)     Guardians ad Litem on the Roster. The Review Board shall maintain current information relating to all guardians ad litem appointed to the Roster including, but not limited to, the following:

         (A)     Date of birth;

         (B)     Current office address, telephone number and email address;

         (C)     Current residence address, telephone number and email address;

         (D)     Date of appointment to the Roster;

         (E)     Appointment status and the date of any transfer to or from a status;

         (F)     Social security or federal identification number;

         (G)     Other jurisdictions in which the guardian ad litem is appointed guardian ad litem and dates of appointment; and

         (H)     Nature, date, and place of any discipline imposed in Maine and in any other jurisdiction.

The information submitted pursuant to this rule shall be made available to the public with the exception of information contained in (A) (C) and (F) which shall be confidential.

(9)     Review Board Powers and Duties. The Review Board shall have the following powers and duties:

         (A)     To propose rules of procedure for the Guardian ad Litem Review Board Complaint System for promulgation by the Maine Supreme Judicial Court, and to comment on the enforceability of existing and proposed Maine Rules for Guardians ad Litem. In furtherance thereof, the Review Board may establish or designate such voluntary commissions, agencies, or persons to assist its study as it shall deem advisable;

         (B)     To review periodically with the Maine Supreme Judicial Court the operation of the system;

         (C)     To enforce guardian ad litem compliance with these Rules and the procedures and regulations adopted thereunder;

         (D)     To delegate, in its discretion, to the Chair or Vice Chair the power to act for the Review Board on administrative and procedural matters;

         (E)     To prepare and filed with the Board of Overseers each April a proposed Review Board Budget for consideration by the Board of Overseers;

         (F)     To prepare, approve, and file an Annual Report with the Court;

         (G)     To establish financial policies and procedures, subject to the approval by the Board of Overseers, to effect its responsibilities under these Rules:

         (H)     To maintain the confidentiality of matters coming before the Review Board; and

         (I)     To carry out the other powers and duties assigned to the Review Board under these Rules.

(10)     Destruction of Confidential Documents. Upon conclusion of service, members shall take reasonable steps to destroy all documents, in paper or electronic format, relating to the proceedings of the Review Board and subject to the confidentiality provisions of these Rules.

(b) Review Board Panels

(1)     Panels. The Review Board shall sit in panels of three members to perform the duties assigned to Panels under these Rules. The Board Clerk shall select the Panels on a rotating basis depending on the availability of the members. Each panel shall consist of two members on the Roster and one public member. An effort shall be made to include mental health professionals as well as attorneys on each Review Board Panel. The Chair or the Vice Chair of the Review Board shall appoint a roster lawyer member of each Panel to serve as chair of that Panel.

(2)     Quorum. Three members shall constitute a quorum of a Review Board Panel. However, one Roster member and one public member of a Review Board Panel shall constitute a quorum at a hearing with consent of all parties. In the event that a two-member Panel is deadlocked, a new three-member Panel shall be appointed.

(3)     Powers and Duties. Review Board Panels and Chairs of each Review Board Panel shall have the powers and duties assigned to Panels and Panel Chairs in Rule 9 with respect to hearings on guardian ad litem misconduct and incapacity.

(4)     Recusal and Disqualification of Panel Members.

         (A)    Panel members shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to recuse. If a member is disqualified or recused, another member shall be appointed by the Board Clerk. No preemptory challenges to a panel member are allowed.

         (B)    A motion to recuse a panel member shall be filed with the Board Clerk within 10 days after service of the first hearing notice containing the names of the panel members assigned to the matter. The Review Board Chair shall rule on the motion, unless the request is for the recusal of the Review Board Chair, in which case the Chief Judge shall act on the motion. Failure to timely file a motion to recuse shall be treated as a factor in deciding whether the motion should be granted.

         (C)    If the ground for disqualification or recusal is not reasonably discovered within the deadline established in Rule 7(b)(4)(B), a motion to recuse a panel member shall be filed with the Board Clerk within 10 days after the ground was discovered or in the exercise of reasonable diligence should have been discovered.

         (D)    A licensed Maine attorney who was previously a member of a Review Board Panel shall comply with the provisions of Rule 1.12 of the Maine Rules of Professional Conduct with respect to participating in any proceedings under these Rules.

         (E)    In the event that Board Counsel files formal charges and the respondent is a member of the Review Board, such member shall be recused from all Review Board responsibilities until such time as the matter is concluded.

(5)     Improper Communication. Except as otherwise explicitly permitted under these Rules, members of a Review Board Panel shall not meet or communicate concerning matters affecting a particular case or pending proceeding except with other assigned panel members.

(c) Board Counsel

(1)     Powers and Duties. Board Counsel shall perform all prosecutorial functions on behalf of the Review Board as described in Rule 9 of these Rules. In Addition, Board Counsel shall

         (A)    Supervise staff needed for the performance of prosecutorial functions;

         (B)    Issue written guidelines for determining which maters shall be dismissed for failure to allege facts that, if true, would constitute grounds for disciplinary action; and

         (C)    Encourage and promote competent and ethical practice by members of the Roster by organizing, participating in, and presenting continuing education programs.

(2)     Ex Parte Communication.

         (A)    Members of a Review Board Panel shall not communicate ex parte with Board Counsel regarding a pending or impending investigation or disciplinary matter except as provided in Rule 9 or by law, except for scheduling, or administrative purposes or emergencies that do not encompass substantive matters or issues on the merits. When such ex parte communication is contemplated, the Panel members must ensure that

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

                  (ii) All other parties are notified of the substance of the ex parte communication and are given an opportunity to respond.

         (B)    A violation of this rule shall be a ground for Review Board member discipline, as appropriate, and cause for removal from the Review Board.

(3)     Recusal. Board Counsel shall be subject to Maine Bar Rule 2(f) regarding recusals.

(d) Central Intake The Central Intake Office established by Maine Bar Rule 3 shall

(1)    Receive complaints regarding the conduct of guardians ad litem who are or were on the Roster, provided that this Rule shall not be construed to limit the authority of any authorized agency to institute proceedings;

(2)    Assist complainants in completing and filing complaints and, where appropriate, recommend that the complainant file a complaint with another agency that has jurisdiction over the matter, and;

(3)    Forward complaints to Board Counsel.

(e) Board Clerk. The Board clerk shall have the powers and duties assigned to the Board Clerk in Rule 9 of these Rules. In addition, the Board Clerk has the power and duty

(1)    To promptly notify the complainant and respondent of the status and disposition of each matter;

(2)    To record disposition of all complaints.

(3)    To maintain disciplinary records, subject to the file retention requirements of Rule 9(k)(5) including, but not limited to, a single log of all complaints received, investigative files, and other records as the Maine Supreme Judicial Court may require to be maintained;

(4)    To compile statistics to aid in the administration of the Guardian ad Litem Review Board Complaint System, including, but not limited to, statistical summaries of docket processing and case disposition, and other data as the Maine Supreme Judicial Court may require to be maintained. Statistical summaries shall contain at a minimum:

         (A)    The number of pending cases at each stage in the disciplinary process;

         (B)     The number of new cases docketed each year;

         (C)    The number of cases carried over from the prior year; and

         (D)    The number of cases closed each year

         (E)    The number of guardians ad litem removed from the roster in the previous year;

(5)    To provide legal and administrative support to the Review Board and Review Board Panels; and

(6)    To provide written and electronic information about the complaint process to the public and to all parties.

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Reporter?s Notes ? July 2015

Rule 7 establishes generally the powers and duties of the Guardian ad Litem Review Board (?Review Board?), Review Board Panels, Board Counsel, the Central Intake Office, and the Board Clerk. The proposed rule is based on and largely consistent with Maine Bar Rules 1 through 3 and portions of Maine Bar Rule 9 addressing Grievance Commission panels.

Rule 7 contemplates that the Review Board will be administered as an independent unit of the Board of Overseers of the Bar, thus minimizing the need for additional resources and capitalizing on the expertise of those who currently resolve complaints involving attorneys. At least one staff attorney within the Board of Overseers will be assigned to serve as Board Counsel. The Board of Overseers Central Intake Office and Board Clerk will support the Review Board and Review Board Panels.

Rule 7(a) establishes the structure of the Review Board, and addresses generally its powers and duties. Similar to the Board of Overseers under Maine Bar Rule 1(a), Rule 7(a)(1) charges the Review Board with the responsibility for administering the regulation of guardians ad litem on the Roster pursuant to the Guardian ad Litem Review Board Complaint System. To implement this responsibility, Rule 7(a)(9) anticipates that the Review Board will monitor the efficacy of the Complaint System and propose changes to the Maine Supreme Judicial Court when necessary. Similar to the Grievance Commission under Maine Bar Rule 9, Rule 7(b) provides that the Review Board will sit in panels of three members to perform the assigned duties with respect to complaints involving guardians ad litem.

Rule 7(a)(8) requires the Review Board to maintain current information relating to guardians ad litem on the Roster. Because some of this information will be confidential by statute, it is anticipated that the Review Board will adopt policies limiting public disclosure of certain information.

Rule 7(c) sets forth generally the role of Board Counsel, which is similar to that of Bar Counsel under Maine Bar Rule 2. The functions and powers and duties of Central Intake in Rule 7(d) are similar to those in Maine Bar Rule 3, with the exception that Central Intake may not dismiss complaints against guardians ad litem.

The functions of the Board of Overseers of the Bar, Bar Counsel, and Central Intake that are not transferable to the regulation of guardians ad litem have not been included in Rule 7, including Maine Bar Rule1(f), (h)(4) to (8), (10) to (12), and (14) to (16); Maine Bar Rule 2(e) and (g); and Maine Bar Rule 3(b)(2) and (5) to (7).

Rule 7(a)(2) provides that twelve members of the Review Board shall be appointed, four of whom shall be public members. The Guardians ad Litem Oversight Task Force (?Task Force?) recommended that two Review Board members be members of the public, but the number has been increased to four to ensure a public member is available for each three-person Review Board Panel pursuant to Rule 7(b)(1).

Rule 7(b)(1) gives the Board Clerk the authority to select the Review Board Panels on a rotating basis, and the Chair or Vice Chair of the Review Board appoints each panel chair. This process is different from the selection of members of Grievance Commission panels under Maine Bar Rule 9(a) in which panels are preselected by the Board of Overseers and alternate members are appointed by the Board of Overseers. The process in Rule 7(b)(1) has been chosen because there are fewer Review Board members than Grievance Commission members and no alternates.

Rule 7(b)(1) also provides that each panel shall consist of two members on the Roster and one public member. It states that an effort will be made to include mental health professionals as well as attorneys on each Review Board Panel. The Task Force recommended that each panel have one member with the same professional background as the subject of the complaint. Although it would be impracticable to guarantee that each panel will include a member with the same professional license as the subject of the complaint, an effort will be made to include a mental health professional if the subject of the complaint is an LCSW, LPC, LCPC, LMSW, LMFT, LPaC, psychologist, or psychiatrist. See Rule 2(b)(2)(A)(ii).

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Advisory Note ? September 2016

Rule 7(a)(8) is amended to provide that the Review Board shall maintain the enumerated information for all rostered guardians ad litem and to provide, ?The information submitted pursuant to this rule shall be made available to the public with the exception of information contained in (A) (C) and (F) which shall be confidential.?

RULE 8. Guardian Ad Litem Registration

(a)      Registration Fee. Every guardian ad litem appearing on the Roster shall pay to the Review Board an annual registration fee each fiscal year in which the guardian ad litem appears on the Roster.

(b)      Registration Documents. Commencing July 1st each year, every guardian ad litem is required to complete, certify, and file registration documents, which shall be on forms prescribed by the Review Board, for each year the guardian appears on the Roster. Registration documents and payments received after August 31st will be assessed a late fee that shall not be waived. Registered guardians ad litem shall file with the Review Board a supplemental statement of any change in the information previously submitted within 30 days after the change.

         All persons who initially become subject to this Rule by appointment to the Roster after April 1st shall file the registration documents required by this Rule at the time of appointment, but no annual registration fee shall be payable until the next annual registration collection. Failure to register shall result in the issuance of a notice of administrative suspension pursuant Rule 8(e).

         Unless otherwise exempted, each guardian ad litem appointed to the Roster shall annually file with the Review Board:

(1)    Registration Statement. A registration statement setting forth the information stated in Rule 7(a)(8) and such other information as the Maine Supreme Judicial Court or the Review Board may direct.

(2)    Continuing Professional Education Report. A report of continuing professional education credit pursuant to Rule 10(b).

(c)      Receipt Demonstrating Compliance with Registration Filing. Within 30 days after the receipt of a guardian ad litem?s completed registration documents and payment of all fees, the Review Board shall acknowledge compliance with the annual registration requirements.

(d)      Administrative Suspension.

(1)    An administrative suspension shall not by itself subject a guardian ad litem to discipline. Board Counsel may, however, institute separate proceedings to determine whether discipline is appropriate.

(2)    Failure to File Registration Documents. Unless excused on grounds of financial hardship or for other good cause, a guardian ad litem who fails to submit the required completed registration documents under the provisions of Rule 8(b) or pay the required annual registration fee by August 31st shall be suspended from the Roster, if the Board provides notice of the suspension as required by Rule 8(e). The suspended guardian shall comply with the provisions of Rule 8(h).

(e)      Notice of Administrative Suspension. The Review Board shall serve the suspended guardian ad litem with notice of the administrative suspension. This notice shall not be effective until 30 days after the date on which it is mailed. A guardian ad litem who files the required registration documents and fee with the Review Board before the effective date of the suspension shall be deemed to be in compliance with this Rule and shall not be suspended for failure to comply with the obligations that led to the notice of suspension.

(f)      Reappointment Following Administrative Suspension. Any guardian ad litem suspended from the Roster under Rule 8(d)(2) may be reappointed if, within five years of the effective date of the suspension for nonpayment, the guardian ad litem remits to the Review Board a reappointment fee that shall not be waived, submits all required registration documents, and makes payment of all arrears.

         A guardian ad litem who has been administratively suspended must complete the continuing education requirements of Rule 10(a) for each year the guardian has been suspended, but need not complete more than 12 credit hours for that entire period of suspension, provided that at least two (2) credit hours are primarily concerned with ethics and professionalism education. Additionally, a guardian ad litem who has been suspended from the Roster within the previous five (5) years for non-compliance with the continuing professional education requirements of Rule 10(a) shall be assessed an additional reinstatement fee, as may be set by the Review Board.

         Any guardian ad litem who fails to seek reappointment within five years of the effective date of an administrative suspension shall be required to comply with the application procedure in Rule 2(b).

(g)      Reappointment Following a Leave of Absence. Any guardian ad litem on leave of absence from the Roster under Rule 2(b)(6) may be reappointed by the Chief Judge if the guardian ad litem demonstrates, to the satisfaction of the Chief Judge, adherence to the Chief Judge?s terms for the leave of absence. Otherwise, the guardian ad litem seeking reappointment to the Roster shall comply with the application procedure in Rule 2(b). In addition to all other requirements, a guardian ad litem seeking reappointment following a leave of absence shall remit to the Review Board a non-waivable reappointment fee and an arrearage registration payment equal to the total registration fees, not to exceed $500, that the guardian ad litem would have been obligated to pay to the Review Board had the guardian ad litem remained active on the Roster during the period of the leave of absence.

(h)      Required Actions of Guardians ad Litem Who Are Administratively Suspended or on Leave of Absence. A guardian ad litem who has been administratively suspended or who has taken a leave of absence shall comply with the requirements of Rule 9(m).

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Reporter?s Notes

Rule 8 establishes and describes guardian ad litem registration requirements. It is based on and largely consistent with the requirements for lawyer registration with the Board of Overseers with the Bar in Maine Bar Rule 4.

The registration requirements in Maine Bar Rule 4 that are not transferable to guardians ad litem have not been included in Rule 8. These include Maine Bar Rule 4(a), (b)(3) to (4), (c), (e), (f), (l), and (m).

RULE 9. Guardian Ad Litem Review Board Complaint System

(a)      Grounds for Discipline. It shall be misconduct and a ground for discipline for a guardian ad litem to

(1)   Violate or attempt to violate these Rules, chapter 32 of Title 4, Title 18 C, Title 19-A, Title 22, or an appointment order issued pursuant to them; knowingly assist or induce another to do so; or do so through the acts of another;

(2)   Engage in conduct that violates the applicable rules of conduct for guardians ad litem in another jurisdiction;

(3)   Commit any criminal or unlawful act that reflects adversely on the guardian ad litem's honesty, trustworthiness, or fitness as a guardian ad litem;

(4)   Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

(5)   Have allegations of abuse or neglect against him or her substantiated by the Maine Department of Health and Human Services;

(6)   Fail to maintain compliance with the requirements in Rule 2 for placement on the Roster;

(7)   In the performance of guardian ad litem duties, by words or conduct, manifest bias or prejudice based upon race, color, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status;

(8)   Willfully violate an order imposing discipline under these Rules; willfully fail to comply with a subpoena validly issued under these Rules; or knowingly fail to respond to a lawful demand from a disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by applicable rules relating to confidentiality; or

(9)   Fail to comply with the duty to report set forth in Rule 5(i)(4).

(b)      Jurisdiction.

(1)   Guardians ad Litem. Any person on the Roster, or formerly on the Roster with respect to acts committed while on the Roster, is subject to the jurisdiction of the Review Board.

(2)   Powers Not Assumed. This Rule shall not be construed to deny to any court the powers necessary to maintain control over its proceedings.

(c)      Period of Limitations. No disciplinary proceeding may be commenced based on conduct alleged to have occurred more than six years prior to the date a complaint is filed.

(d)      Disciplinary Procedure.

(1)   Complaint in Open or Closed Proceeding. Any party to an open or closed proceeding under Title 18-C, Title 19-A, or Title 22, who wishes to complain to the Review Board of misconduct by or incapacity of a guardian ad litem appointed from the Roster in that proceeding, may submit to Central Intake a written complaint on a form approved by the Review Board. A complainant must inform the Review Board whether the case is pending and whether a complaint has been filed with the judicial officer who is conducting hearings on the case. The Review Board may open a file on a complaint but shall not take any action with respect to, or initiate a review with respect to, a pending case until the court issues a final judgment in that case, the court enters an order allowing the Board to proceed, or the guardian ad litem is removed or discharged.

(2)   Complaint a nonparty. A judicial officer or Board Counsel may submit a complaint to the Review Board regarding guardian ad litem misconduct or incapacity at any time.

(3)   Board Counsel Investigation. Board Counsel shall conduct all investigations, except as otherwise required by these Rules.

         (A)    Board Counsel shall evaluate all relevant information including a courts decision on whether to remove the guardian ad litem, to determine whether the information or complaint concerns a guardian ad litem subject to jurisdiction under these Rules and whether the alleged facts, if true, would constitute misconduct or incapacity. Board Counsel shall dismiss a complaint if jurisdiction does not exist or if the facts would not constitute misconduct or incapacity.

         (B)    If a complaint is dismissed, Board Counsel shall notify the complainant and the respondent in writing that the complaint was dismissed and the reason for the dismissal. This written notification shall inform the complainant of his or her right to seek review of the dismissal by a public member of the Review Board by submitting a written request for review within 21 days after the date of the dismissal notice. Upon receipt of a request for review, a public member shall be assigned by the Board Clerk to review the complaint and Board Counsels investigation materials, and the assigned public member shall either

                  (i)    Approve the dismissal by Board Counsel, and direct the Board Clerk to notify the complainant and the respondent that the matter shall remain closed; or

                  (ii)    Disapprove the dismissal by Board Counsel, and direct that the matter be investigated further and/or that formal charges be filed. The Board Clerk shall notify the complainant and the respondent of the public members action in writing.

         (C)    If the matter is not dismissed, Board Counsel shall serve the respondent in writing with notice of the substance of the matter and afford him or her the opportunity to respond. Board counsel shall provide the complainant a copy of any written communication from the respondent relating to the matter, except that information that is subject to the privilege held by a person other than the complainant shall be redacted. Board Counsel shall refer the matter to the Board Clerk for a hearing before a Review Board Panel.

(4)   Pre-Hearing Procedures. If Board Counsel refers a matter to the Review Board Panel, Board Counsel shall prepare formal charges in writing that give fair and adequate notice of the nature of the alleged misconduct.

         (A)    Board Counsel shall file the formal charges with the Board Clerk. Board Counsel shall serve a copy of the formal charges on the respondent and shall mail a copy of the formal charges to the complainant.

         (B)    The Board Clerk shall assign the complaint to a three-member Review Board Panel for hearing.

         (C)    The respondent shall file a written answer with the Board Clerk and serve a copy on Board Counsel within 21 days after service of the formal charges, unless the Chair of the Review Board Panel to which the matter is assigned for review extends the time for good cause shown. If the respondent fails to answer within the prescribed time, the factual allegations and the alleged misconduct shall be deemed admitted. Board Counsel shall provide a copy of respondents answer to the complainant, or if necessary to protect a person other than the complainant or respondent, Board Counsel shall provide a redacted version of the answer to the complainant.

         (D)    No later than 21 days in advance of the hearing, the Board Clerk shall serve a notice of hearing on Board Counsel and the respondent, stating the date and place of hearing. The Board Clerk shall mail a copy of the notice of hearing to the complainant. The notice of hearing shall advise the respondent of the right to be represented by a lawyer, to cross-examine witnesses, and to present evidence, and shall advise the complainant, if any, of the complainants right to make a statement to the Review Board Panel concerning the respondents alleged misconduct and the effect of the alleged misconduct on the complainant.

         (E)    At least 14 days before the hearing, the Board Clerk shall prepare and deliver to Board Counsel a statement as to the existence or absence of any disciplinary sanction record, reinstatement to the Roster, or surrender of Roster membership involving the respondent. Board Counsel shall then mail the statement to the respondent. The statement and any reply from the respondent shall be provided to the panel only in accordance with Rule 9(d)(4)(J).

         (F)    Discovery. Within 21 days after the respondents answer to the formal charges is filed, Board Counsel and the respondent shall

                  (i)    Exchange the names and addresses of all persons having knowledge of relevant facts;

                  (ii)    Identify which persons are reasonably anticipated to be called as witnesses; and

                  (iii)    Exchange all documents Board Counsel or the respondent reasonably anticipate will be introduced at the hearing.

Upon good cause shown, the Chair of the Review Board Panel may order additional discovery. The Chair of the Review Board Panel shall resolve by order all disputes concerning discovery. All discovery orders are interlocutory and may not be appealed prior to issuance of the Review Board Panel decision.

(5)   Hearing.

         (A)    Nature of the Proceeding. The Chair of the Review Board Panel shall decide pre-hearing motions, shall preside at the hearing, and shall have the power to control the course of proceedings and regulate the conduct of those individuals appearing as counsel, parties, or witnesses. Disciplinary hearings before the Review Board Panel are neither civil nor criminal in nature, and neither the Rules of Civil Procedure nor the Rules of Evidence apply. Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The Chair of the Review Board Panel may exclude irrelevant or unduly repetitious evidence.

         (B)    Proceedings Public. The hearing shall be open to the public, except that to protect the interests of a complainant, witness, child, third party, or the respondent, the Chair of the Review Board Panel may, upon motion filed with the Board Clerk and for good cause shown, issue a protective order prohibiting the disclosure of privileged or confidential information and direct that the proceedings be conducted so as to implement that order.

         (C)    Burden and Standard of Proof. At the hearing, Board Counsel and the respondent shall have the right to present evidence and cross-examine witnesses. The testimony of witnesses shall be by oath or affirmation administered by the Panel Chair. Board Counsel shall have the burden of establishing the basis for discipline by a preponderance of the evidence. A certified copy of a criminal conviction constitutes conclusive evidence that the respondent has committed the underlying crime.

         (D)    Hearings Recorded. The Board Clerk shall cause all proceedings before the panel to be recorded in a form that will permit transcription. A hearing transcript or partial transcript may be ordered at any time by the Review Board Panel, the respondent, or Board Counsel. When ordering a transcript, the respondent or Board Counsel must provide a copy of the requested transcript to the opposing party.

         (E)    Related Pending Proceedings. Upon a showing of good cause, the Review Board Panel may stay a disciplinary matter because of substantial similarity to the material allegations of pending criminal or civil litigation or professional disciplinary action.

         (F)    Cameras and Audio Recordings. Any person or organization requesting permission to record or photograph disciplinary hearings shall file a notice with the Board Clerk in advance of the hearing. Use of cameras and audio recording or electronic devices at disciplinary hearings is governed by the Administrative Order issued by the Supreme Judicial Court governing the use of cameras and audio recording devices in the courts.

         (G)    Failure to Appear. If the respondent fails to appear at the hearing without good cause, he or she shall be deemed to have admitted the factual allegations of misconduct that were to be the subject of the hearing and/or to have waived objection to any motion or recommendations scheduled to be addressed at the hearing. The Review Board Panel may not, absent good cause, continue or delay proceedings due to the respondents failure to appear.

         (H)    Inability to Properly Defend. If during a disciplinary proceeding the respondent claims to be incapacitated and that the incapacity makes it impossible to present an adequate defense, Board Counsel may recommend that the Chief Judge immediately suspend the guardian ad litem from the Roster pending a determination of the incapacity. The disciplinary proceeding shall be stayed under this subsection only if the Chief Judge determines that the guardian is unable to present an adequate defense due to incapacity. The incapacitated respondent shall remain on interim suspension until the Chief Judge determines that capacity has been restored and orders that the disciplinary proceedings be resumed.

         (I)    Waiver. Subject to approval by the Panel Chair, the requirements governing the hearing process as established in these Rules may be waived by a stipulated agreement of the parties.

         (J)    Disciplinary History. Board Counsel shall not divulge the statement as to the existence or absence of any sanction record to the Review Board Panel until after the Panel has made a finding of misconduct, unless the statement is admissible as probative evidence on issues pending in the matter before the Panel.

(6)   Review Board Panel Decision. The deliberations of the Review Board Panel following the hearing shall not be open to the public or the parties. The Review Board Panel shall issue a written decision containing its findings of fact, conclusions of law, and decision on dismissal or sanction to the Board Clerk within 30 days after the hearing, unless the time for decision is otherwise extended by the Chair of the Review Board. If a sanction is imposed, the decision must state the basis for imposing the sanction. The Board Clerk shall serve the decision on respondent and Board Counsel, who shall mail a copy to the complainant. The Review Board Panel may render one of the following:

         (A)    Dismissal. If the Review Board Panel finds that Board Counsel has not proven misconduct subject to sanction under these Rules, it shall dismiss the matter;

         (B)    Reprimand. If the Review Board Panel finds that misconduct subject to sanction under these Rules has occurred, it may issue a reprimand if the misconduct is minor; there was no injury to a child, the public, or the court; the respondent did not act intentionally; and there is not a likelihood of recurrence; or

         (C)    Removal. If the Review Board Panel finds that misconduct subject to sanction under these Rules has occurred but does not find that reprimand is appropriate, the Panel shall order the removal of the respondent from the Roster.

(7)   Appeal of Review Board Panel Decision. A decision of the Review Board Panel shall constitute final agency action and is reviewable as provided in Maine Rule of Civil Procedure 80C and the Maine Administrative Procedure Act, 5 M.R.S. § 11001 et seq., except that the requirement of service set out in 5 M.R.S. § 11003(1)(C) shall not apply.

(e)      Complaints Against the Review Board and Board of Overseers Members. If a complaint is filed against a guardian ad litem who is a member of the Review Board or Board of Overseers, the matter shall proceed in accordance with these Rules, except that the Chief Justice of the Maine Supreme Judicial Court shall appoint Special Counsel who shall exercise independent authority to investigate the complaint and, if the Chief Justice deems it necessary, assign an ad hoc Review Board Panel to the case. Special Counsel shall not receive compensation for his or her services but may seek reimbursement from the Review Board for the payment of reasonable expenses and for investigative, administrative, and legal support.

(f)      Service and Notice. Service of formal charges or of any other papers or notices required by these Rules shall be sufficient if made by first class mail addressed to the guardian ad litems office and/or residence address as provided by the guardian ad litem in the registration materials required by Rule 8(b). Service is complete upon mailing. The Board Clerk or Board Counsel may, at their discretion, use additional methods of service and notice (e.g., e-mail or telephone communication) if previous attempts at providing service or notice in the manner required by this Rule have failed.

(g)      Subpoena Power.

(1)   Investigatory Subpoenas. Before formal charges have been filed, Board Counsel may compel by subpoena the attendance of witnesses or the respondent and the production of pertinent books, papers, and documents in accordance with Rule 45 of the Maine Rules of Civil Procedure.

(2)   Subpoenas For Hearing. After formal charges are filed, Board Counsel or the respondent may compel by subpoena the attendance of witnesses, including the respondent, and the production of pertinent books, papers, and documents at a hearing under these Rules in accordance with Rule 45 of the Maine Rules of Civil Procedure.

(3)   Enforcement of Subpoenas. The Chief Judge may, upon proper application, enforce the attendance and testimony of any witnesses or the respondent and the production of any documents subpoenaed under these Rules.

(4)   Quashing Subpoena. Any person to whom a subpoena has been issued under this Rule may object to the subpoena, may move to quash or modify the subpoena as set forth in Rule 45 of the Maine Rules of Civil Procedure, and may appear through legal counsel for that purpose. Any objection to a subpoena so issued, or any motion to quash or modify such a subpoena, shall be heard and determined by the chair of the Review Board Panel before which the matter is pending or by the Chief Judge when enforcement of the subpoena is being sought.

(5)   Witnesses And Fees. Subpoena and witness fees and mileage shall be as provided for proceedings in the Maine District Court.

(6)   Subpoena Pursuant to Law of Another Jurisdiction. Whenever a subpoena is sought in Maine pursuant to the law of another jurisdiction for use in guardian ad litem discipline proceedings, and where the issuance of the subpoena has been duly approved under the law of the other jurisdiction, the Chair of the Review Board, upon good cause shown, may issue a subpoena in accordance with Rule 45 of the Maine Rules of Civil Procedure.

(h)      Immediate Interim Suspension from the Roster. Board Counsel shall file a petition with the Chief Judge upon receipt of evidence, either from the guardian through report pursuant to Rule 5(i)(4) or from another reliable source, suggesting the existence of a ground for immediately suspending a guardian ad litem from the Roster.

(1)   Petition. A petition for immediate interim suspension shall include the following:

         (A)    The information demonstrating a ground for the immediate suspension of a guardian from the Roster;

         (B)    Except in cases of alleged incapacity, a certification that Board Counsel has filed formal charges against the guardian ad litem in accordance with Rule 9(d)(3); and

         (C)    A certification that Board Counsel has served or made a reasonable attempt to serve the guardian ad litem or the guardian ad litems personal representative, if any, with notice of the information filed with the Chief Judge.

(2)   Mandatory Grounds for Immediate Interim Suspension. The Chief Judge shall immediately suspend a guardian ad litem from the Roster if:

         (A)    The Chief Judge finds probable cause to believe that the guardian ad litem has violated these Rules and that the violation threatens immediate and irreparable injury to a child, the public, or the court;

         (B)    The guardian ad litem is incapacitated, and the incapacity threatens immediate and irreparable injury to a child, the public, or the court. For the purposes of this Rule, evidence that the guardian ad litem is "incapacitated" includes evidence that the guardian ad litem: (i) has been judicially declared incompetent; (ii) has been acquitted of a crime by reason of mental illness; (iii) has been committed to a mental health hospital after a judicial hearing; (iv) has been voluntarily admitted to a mental health hospital for acute care; (v) has been voluntarily admitted to a substance abuse facility for extended treatment; or (vi) has been placed by a court under guardianship or conservatorship or the equivalent in another jurisdiction; or

         (C)    The guardian ad litem has been formally charged with a serious crime as defined in Rule 1(c)(19).

(3)   Discretionary Grounds for Immediate Interim Suspension. The Chief Judge may immediately suspend a guardian ad litem from the Roster if the Chief Judge concludes that the immediate suspension of the guardian ad litem is necessary to protect a child, the public, or the court.

(4)   Immediate Interim Suspension Order. Upon examination of the evidence transmitted and of any rebuttal evidence that the guardian ad litem has submitted, the Chief Judge may order the immediate suspension of the guardian ad litem from the Roster, pending final disposition of a Review Board Panel hearing predicated on the same grounds. Alternatively, the Chief Judge may order such other action as the Chief Judge deems appropriate. A copy of the Chief Judges order shall be served on Board Counsel and the guardian ad litem.

(5)   Notice of Suspension. A guardian ad litem subject to an interim suspension shall comply with the requirements of Rule 9(m).

(6)   Rescission of Interim Suspension. The Chief Judge may, in his or her discretion, vacate the interim suspension if the guardian ad litem shows by clear and convincing evidence that the grounds for the interim suspension no longer exist. The Chief Judges decision to vacate the interim suspension shall not automatically terminate any formal disciplinary proceeding pending against the guardian ad litem, the disposition of which shall be determined by the Review Board.

(7)   No appeal. Neither party shall have the right to appeal the decision of the Chief Judge on immediate interim suspension or rescission of interim suspension.

(8)   Further Proceedings When Guardian ad Litem is Alleged to be Incapacitated. If a guardian ad litem is subject to an interim suspension based on alleged incapacity, Board Counsel shall notify the Board Clerk, who shall assign the matter to a Review Board Panel. If Board Counsel proves the respondents incapacity by a preponderance of the evidence at a hearing before the Review Board Panel, the Panel shall issue a decision removing the respondent from the Roster for incapacity.

(i)      Discipline by Consent and Surrender of Appointment on Roster.

(1)   Discipline by Consent. A guardian ad litem against whom a complaint or formal charges have been filed may tender to Board Counsel a conditional admission in exchange for a stated form of discipline. The Review Board Panel may approve or reject the tendered conditional admission and discipline order. There is no right to appeal from an order of discipline by consent.

(2)   Surrender of Appointment. A guardian ad litem who is the subject of an investigation under these Rules may submit to the Board Clerk a signed, notarized letter of surrender of appointment to the Roster and shall send a copy of the letter to Board Counsel. Upon receipt of such surrender, the Board Clerk shall file it with the Chief Judge. The Chief Judge may accept the surrender or may enter such order that the Chief Judge deems appropriate. Any order accepting a surrender of appointment shall be a matter of public record unless otherwise ordered in whole or in part by the Chief Judge for good cause shown.

(j)      Reciprocal Discipline.

(1)   Notification. Within 30 days after being disciplined or the equivalent in another jurisdiction, a guardian ad litem on the Roster shall promptly inform Board Counsel.

(2)   After receiving notification from any source that a guardian ad litem on the Roster has been disciplined or was the subject of administrative action in another jurisdiction, Board Counsel shall

         (A)    Obtain a certified copy of the disciplinary order or equivalent; and

         (B)    File formal charges against the guardian ad litem with the Board Clerk and serve the respondent with notice of those charges.

(3)   Discipline To Be Imposed. The Review Board Panel shall conduct a hearing on the formal charges pursuant to Rule 9(d)(4) and impose an appropriate sanction authorized by Rule 9(d)(5), unless the respondent demonstrates by clear and convincing evidence that reciprocal discipline should not be imposed.

(k)      Access to Disciplinary Information.

(1)   Confidentiality. Prior to service of Board Counsels formal charges, the proceeding is confidential, except that the pendency, subject matter, and status of an investigation by Board Counsel may be disclosed by Board Counsel if there is a need to notify another person or entity in order to protect a child, the public, or the court.

(2)   Release of Confidential Information To Authorized Entities. In order to protect a child, the public, or the court, Board Counsel may provide access to relevant to authorized entities including courts in Title 18-C, Title 19-A, and Title 22 proceedings; members of the Review Board; the Chief Judge; jurisdictions investigating qualifications for appointment of guardians ad litem or considering reciprocal disciplinary action; relevant professional licensing agencies; and law enforcement agencies.

(3)   Public Information. All filings with the Board Clerk or the Office of the Chief Judge related to proceedings under this Rule shall be available to the public after the filing and service of formal charges, unless the complainant, the respondent, or Board Counsel obtains a protective order for specific testimony, documents, or records.

(4)   Public Proceedings. Upon service of formal charges upon the respondent, all proceedings shall be public except for the deliberations of both the Review Board Panel and the Single Jurist and except for information with respect to which the Review Board Panel, Single Jurist, or Chief Judge has issued a protective order.

(5)   File Retention and Copying. The Review Board shall retain all files. Files may be retained in a digital format. Copying and attestation fees shall be the same as those for proceedings in the Maine Supreme Judicial Court.

(l)      Dissemination of Disciplinary Information.

(1)   Public Notice.

         (A)    The Board Clerk shall issue, electronically or otherwise, a news release to general media outlets throughout Maine regarding the suspension, surrender, or removal of a guardian ad litem from the Roster.

         (B)    The Board Clerk shall publish on the Review Boards website public hearing decisions issued by Review Board Panels and decisions from appeals pursuant to Rule 9(d)(6).

(2)   Additional Notice. The Board Clerk shall transmit, electronically or otherwise, notice of all public disciplinary sanctions, surrenders, suspensions, and reappointments of Roster membership to members of the Review Board and to the following:

         (A)    The Chief Judge;

         (B)    The Director of the Court Appointed Special Advocates Program;

         (C)    The guardian ad litem disciplinary authority in any other jurisdiction known to the Review Board in which the guardian ad litem has been appointed;

         (D)    All State, Federal, and Tribal Courts in Maine;

         (E)    The regulatory body for the guardian ad litems underlying profession; and

         (F)    Any other such organization as determined by the Review Board.

(m)      Guardian ad Litem Duties Following Discipline.

(1)   Recipients of Notice; Contents. Unless otherwise ordered, within 30 days after a surrender or the date of a decision or order imposing suspension or removal from the Roster, respondent shall notify the following in writing of the nature of the discipline, and of the respondents disqualification to act as guardian after the effective date of the order:

         (A)    The courts in all Title 18-C, Title 19-A, and Title 22 proceedings in which the guardian ad litem is currently appointed;

         (B)    Any parents in all Title 18-C, Title 19-A, and Title 22 proceedings in which the guardian ad litem is currently appointed; and

         (C)    Any counsel in all Title 18-C, Title 19-A, and Title 22 proceedings in which the guardian ad litem is currently appointed.

(2)   Duty to Maintain Records. The guardian ad litem shall keep and maintain records of the steps taken to accomplish the requirements of this subsection and shall make those records available to Board Counsel on request.

(3)   Refund of Fees. Within 10 days after entry of the order imposing suspension or removal, the guardian ad litem shall refund any unearned portion of fees paid in advance.

(4)   New Appointments Prohibited. Upon the effective date of an order suspending or removing guardian ad litem from the Roster, the affected individual shall not accept any new appointments as a guardian ad litem under Title 18-C, Title 19-A, or Title 22. The affected individual shall not advertise that he or she is a guardian ad litem and shall discontinue any advertisements indicating that he or she is a guardian ad litem.

(5)   Affidavit Filed. Within 10 days after the effective date of the suspension or removal, the guardian ad litem shall file with Board Counsel an affidavit

         (A)    Showing compliance with the provisions of the decision or order and with this Rule;

         (B)    Identifying all other jurisdictions in which the guardian ad litem is currently qualified to act as a guardian ad litem; and

         (C)    Identifying the residence or other addresses where communications may thereafter be directed.

(n)      Application for Return to Roster. A guardian ad litem who has been removed from the Roster or who has surrendered his or her appointment from the Roster may be reappointed to the Roster only by order of the Chief Judge after submitting an application pursuant to Rule 2 of these Rules.

(1)   A guardian ad litem who has been removed from or who has surrendered from the Roster for incapacity may apply one year after the removal or surrender and, if the application is denied, may reapply no more than once a year thereafter.

(2)   A guardian ad litem who has been removed from the Roster for misconduct or who has surrendered from the Roster after a complaint is filed may apply five years after the removal or surrender and, if the application is denied, may reapply after the time specified by the Chief Judge in the decision denying the application.

(o)      Immunity. Members of the Review Board, Board Counsel, Special Counsel, ad hoc Review Board Panel members appointed by the Chief Justice of the Maine Supreme Judicial Court, and the Board of Overseers and its staff or any person acting on their behalf, shall be immune from suit to the extent permitted by statute and other provisions of law.

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Reporters Notes

Rule 9 establishes the Guardian ad Litem Review Board Complaint System, as contemplated by 4 M.R.S. § 1557(1). It is loosely based on the disciplinarily rules for attorneys established by Maine Bar Rules 10 to 31.

Rule 9(a) is based on Maine Bar Rule 21, but additional grounds for discipline are included. Rules 9(a)(3) and (4) are substantively equivalent to Maine Rules of Professional Conduct 8.4(b) and (c). Rules 9(a)(6), (7), and (8) are new. Rule 9(a)(7) is based on and substantively equivalent to Maine Code of Judicial Conduct Canon 2.3(B).

Rule 9(c) establishes a limitations period for filing complaints of six years after the act complained of occurred. The Guardian ad Litem Oversight Task Force (Task Force) reached a consensus that there be no limitations period for filing complaints. Members noted, however, that older complaints would be difficult to investigate. An additional concern of delaying filing and investigation of complaints was that a problematic guardian might continue poor practice over a lengthy period of time. There was also a concern that records would be unavailable in light of the operation of applicable record-retention schedules. See, e.g., M.R. Prof. Conduct 1.15(b)(2)(iii) (requiring records be kept for eight years after the termination of representation); 13 C.M.R. 10-144-112-7 § 3.5.5 (2009) (requiring hospitals to preserve medical records on paper or by other electronic/optical means for a period of seven years or, if the patient is a minor, for at least six years past the age of majority). Notwithstanding the Task Force recommendation, these considerations weigh in favor of having a limitations period.

Rule 9(d)(1) defines the persons who have standing to file a complaint and the persons subject to a complaint. Only judges, parties to open or closed proceeding under Title 18-A, Title 19-A, or Title 22, and Board Counsel may file a complaint. Only guardians ad litem appointed from the Roster in the proceeding involving the complaining party may be the subject of a complaint.

Rule 9(l)(2) is modeled after Maine Bar Rule 19(b). The entities to whom the Board Clerk shall transmit notice of public disciplinary sanctions or reappointment are those relevant to guardians ad litem listed on the Roster. By notifying the Chief Judge of disciplinary sanctions, it is anticipated that the Chief Judge will share this information with the judicial officers in proceedings in which the guardians ad litem subject to discipline have been appointed. Those judicial officers would then consider the information in deciding under Rule 6 whether a guardian should be removed from a particular case.

Rule 9(m) is based on Maine Bar Rule 31. Among other requirements, a guardian ad litem who is suspended or removed from the Roster must notify the courts, parents, and counsel in proceedings in which he or she is currently appointed, as provided in Rule 9(m)(1); and the guardian ad litem may not accept new appointments, as provided in Rule 9(m)(4).

Maine Bar Rule 32, addressing appointment of counsel to protect clients interests when an attorney is suspended, disbarred, disappears, or dies, is not transferable to guardians ad litem and has not been included in Rule 9.

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Advisory Note - September 2016

Rule 9(d)(1) is amended to provide for the filing of a complaint in open or closed proceedings. The following language is added: A complainant must inform the Review Board whether the case is pending and whether a complaint has been filed with the judicial officer who is conducting hearings on the case. The Review Board may open a file on a complaint but shall not take any action with respect to, or initiate a review with respect to, a pending case until the court issues a final judgment in that case, the court enters an order allowing the Board to proceed, or the guardian ad litem is removed or discharged. The provision that a complaint may also be submitted by a judicial officer or Board Counsel is moved to new Rule 9(d)(2).

Rule 9(d)(2) is added to apply to complaints by nonparties. It provides, A judicial officer or Board Counsel may submit a complaint to the Review Board regarding guardian ad litem misconduct or incapacity at any time. All subsequent paragraphs are renumbered. Additionally, Rule 9(d)(3)(A), as renumbered, is amended to require that Board Counsel evaluate all relevant information, including a courts decision on whether to remove the guardian ad litem, when determining whether the information or complaint concerns a guardian ad litem subject to jurisdiction under the Rules and whether the alleged facts, if true, would constitute misconduct or incapacity.

Rule 9(d)(5)(E), as renumbered, deletes the authorization for the Review Board Panel to stay a disciplinary matter because of a substantial similarity to a pending motion under Rule 6 to remove the respondent from a Title 18-A, Title 19-A, or Title 22 proceeding.

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Advisory Note - September 2019

Rule 9 has been amended so that any reference to the Probate Code reflects the Legislature's enactment of a new Code, effective September 1, 2019. See P.L. 2019, ch. 417 § B-14; P.L. 2017, ch. 402 §§ A-1, A-2, F-1.

RULE 11. Effective Date

These Rules shall be effective September 1, 2015, and shall govern all proceedings subject to these Rules that are commenced on or after that date. These Rules shall also govern all proceedings pending as of September 1, 2015, that have not yet resulted in a written decision pursuant to former Rule II(4)(B) of the Maine Rules for Guardians ad Litem that are superseded by these Rules.

RULE 10. Guardian Ad Litem Continuing Legal Education

(a)      Continuing Professional Education Credit.

(1)   Unless these requirements are waived by the Chief Judge, a guardian ad litem shall attend and complete any continuing professional education events or seminars designated as mandatory by the Chief Judge. In addition, in each calendar year, a guardian ad litem must participate in a total of at least 6 credit hours of approved continuing professional education programs applicable to one or more of the issues identified as core training issues in Rule 2(b)(2)(B). At least one credit hour shall be primarily concerned with ethics and professionalism education. Qualifying professionalism education topics include professional responsibility as a guardian ad litem; legal ethics related to guardian ad litem work; conflicts of interest; diversity awareness in the legal profession; confidentiality of guardian ad litem records in Title 18-C, Title 19-A, and/or Title 22 cases; communication with parents involved in Title 18-C, Title 19-A, and/or Title 22 cases and their children; and complaint avoidance topics such as file management and billing practices. If a guardian ad litem is subject to this rule for more than 3 months of a calendar year but for less than the entire year, the number of credits required for that year shall be prorated according to the number of full months of the year in which the guardian ad litem is subject to this rule.

(2)   A guardian ad litem who completes more than 6 credit hours in a calendar year may carry forward up to 5 credit hours to satisfy the requirement of the following year, provided that the professional responsibility requirement is satisfied for each calendar year.

(3)   The requirement of Rule 10(a)(1) may be met only by teaching (as provided in Rule 10(a)(5)), attending courses, or completing any continuing professional education activity entitled to credit as provided in Rules 10(c) and 10(d).

(4)   Except as provided in Rule 10(a)(5), credit is earned for the time of actual participation in an approved course or activity.

(5)   A guardian ad litem subject to this Rule who makes a presentation in an approved course or activity not offered for academic credit by the sponsoring institution will earn two hours of continuing professional education credit for every 30 minutes of actual presentation at the approved course or activity if the guardian ad litem has prepared substantial written materials as defined by the Review Board to accompany the presentation. If substantial written materials have not been prepared, the guardian ad litem will earn one hour of continuing professional education credit for every 30 minutes of actual presentation. A guardian ad litem who teaches a regularly scheduled guardian-ad-litem-related course offered for academic credit at an accredited post secondary educational institution will earn six hours of continuing professional education credit under this Rule for every hour of academic credit awarded by the institution for the course. A guardian ad litem who assists or participates in such a regularly scheduled course will earn one hour of continuing professional education credit for every hour of actual participation, up to a maximum of six hours.

(b)      Reporting Continuing Professional Education Credit.

(1)   Included with the registration documents required by Rule 8, a guardian ad litem subject to this Rule shall annually submit a report to the Review Board providing the course title, date, location, sponsor, and number of credit hours of all courses or other activities taken for credit pursuant to Rule 10(a) during the preceding calendar year, or carried over from a prior year. If a reported course or other activity has not previously been approved in accordance with Rule 10(c), the guardian ad litem shall also submit the information required by Rule 10(d) to support a request for such approval.

(2)   At any time, the Review Board may require a guardian ad litem to provide documentation supporting any information reported in accordance with Rule 10(b)(1).

(c)      Courses and Other Activities Entitled to Credit.

(1)   The Review Board shall maintain a list of approved sponsors of professional education programs.

(2)   Upon payment of the requisite fees in accordance with Rule 10(d), all courses or other continuing professional education activities entitled to credit for purposes of Rule 10(a) must be reviewed and approved by the Review Board in accordance with Rule 10(d).

(3)   The Review Board's determination shall be final.

(d)      Approval Procedure.

(1)    Sponsor Approval. A sponsor may be approved by the Review Board upon payment of the requisite fees and submission of evidence establishing to the satisfaction of the Review Board

         (A)    That the sponsor has been approved or accredited by a guardian ad litem continuing professional education accrediting authority established by court rule or statute in another state; or

         (B)    That, during the immediately preceding three years, the sponsor has sponsored at least six separate courses that comply with the requirements for individual course approval under Rule 10(d)(2).

         The Review Board may at any time review the status of a sponsor or specific courses offered by a sponsor and may revoke approval if the status has changed or the courses offered by the sponsor do not comply with the requirements of Rule 10(c) and 10(d). Requests for approval shall be submitted on a form prescribed by the Review Board, supplemented by such supporting documentation as would assist the Review Board in determining whether the sponsor meets the requirements of this Rule.

(2)   Individual Course Approval. The Review Board may approve individual courses for credit under this rule upon written application from a non-approved sponsor or the submission of supporting documentation from an approved sponsor, together with the requisite fee.

         An attendee may file such a request together with the requisite fee at any time up to and including the filing of the annual report under Rule 10(b) for the year for which credit is sought for the course. The Review Board shall grant the request if the Review Board is satisfied that the course meets the following criteria:

         (A)    The course or activity must contribute directly to the professional competence or skills of guardians ad litem, or to their education with respect to their professional or ethical obligations and, where possible, should include a professionalism education component.

         (B)    Course leaders or lecturers and the authors of written materials must be persons sufficiently competent to accomplish the educational goals of the course.

         The Review Board may, prior to granting approval, request any approved sponsor, non-approved sponsor, or attendee to submit further information concerning a course, including the brochure describing the course, a description of the method or manner of presentation of course materials, a statement as to the actual date and place of presentation and the number of persons in attendance, and a copy of the course materials.

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Reporters Notes

Rule 10 establishes and describes guardian ad litem continuing professional education requirements. It is based on and largely consistent with procedural requirements in Maine Bar Rule 5.

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Advisory Notes - September 2016

Rule 10(a)(3) is amended to eliminate the provision that no more than one half of the credit hours required in any reporting period may be earned through in-house courses, self-study, or a combination thereof.

Rule 10(c)(1) is amended to eliminate the following language: "All publicly available courses or other publicly available continuing professional education activities offered by approved sponsors are deemed automatically approved and entitled to credit upon payment of the requisite fees in accordance with Rule 10(d)."

Rule 10(c)(2) is amended to provide that, upon payment of the requisite fees in accordance with Rule 10(d), all publicly available courses or other continuing professional education activities are entitled to credit, without regard to whether they were sponsored or presented by any other individual or organization, and to require that the activity be reviewed and approved by the Review Board.

Rule 10(c)(3) is amended to eliminate the following language: The Review Board shall delegate all approval and other functions under this Rule to a designated staff person of the Board of Overseers of the Bar. Upon request, the Review Board shall review any decisions denying approval of any sponsor, individual course, or other continuing professional education activity. Rule 10(c)(3) is further amended to eliminate reference to any such issue and simply provide that the Review Boards determination shall be final.

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Advisory Note - September 2019

Rule 10 has been amended so that any reference to the Probate Code reflects the Legislature's enactment of a new Code, effective September 1, 2019. See P.L. 2019, ch. 417 § B-14; P.L. 2017, ch. 402 §§ A-1, A-2, F-1.