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to a lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive the funds is disputed by the client; in that event the disputed portion shall not be withdrawn until the dispute is finally resolved.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