A. Ethics Rules
The ethical conduct of lawyers is governed by the ethics rules of the jurisdictions in which they practice law. In Maine, those ethics rules are contained in the Code of Professional Responsibility adopted by the Maine Supreme Judicial Court. The Code covers such matters as:
- Dishonesty, fraud and misrepresentation.
- Lawyer’s fees.
- Conflicts of interest.
- Limited representation agreements.
- Withdrawal from representation.
- Employing reasonable care and skill.
- Preserving client property.
- Publicity, advertising and solicitation.
- Professional independence of the lawyer.
- Lawyers’ responsibility for compliance with the Code by other lawyers and staff in the law firm.
Many of the ethics rules contained in the Code are subject to interpretation, and it is often difficult to apply those rules to certain fact situations. To assist lawyers, the courts and third persons in understanding the rules, the Maine Professional Ethics Commission renders advisory opinions on the meaning of the rules and their application. Sometimes opinions from the ethics committees of other states or the American Bar Association are helpful to understanding and applying Maine’s ethics rules.
B. Multijurisdictional Practice
Things get complicated when a lawyer practices out of state. For example, a lawyer licensed only in Maine cannot practice law in New Hampshire. That does not mean, however, that the lawyer cannot take on a case in New Hampshire or that he or she cannot handle a matter that relates to New Hampshire law or is subject to New Hampshire regulation. The law of multijurisdictional practice is complex, and the Maine lawyer must make sure that he or she does not violate a court’s rules or engage in the unauthorized practice of law when helping an out-of-state client or handling a legal matter outside of Maine, whether for a Maine client or an out-of-state client.
To make matters more complicated, when a Maine lawyer handles a matter out-of-state, the question arises as to which state’s ethics rules apply, i.e., those of Maine, the other state, or both. The answer to the question can be difficult and the analysis complex, particularly where the ethics rules of the two states conflict.
C. Lawyer Discipline
Lawyer discipline in Maine is governed by Maine Bar Rules 7.1, 7.2 and 7.3. The discipline process is as follows:
1. A formal written complaint alleging ethical misconduct is filed by a client or third party with the Board of Overseers of the Bar.
2. Bar counsel reviews the complaint and may dismiss, if Bar counsel concludes, either with or without investigation, that the matter does not constitute ethical misconduct subject to sanction under the disciplinary rules. If Bar counsel determines that some investigation is necessary in order to reach a conclusion on whether to dismiss the complaint, Bar counsel will typically ask for a response to the complaint from the subject attorney.
3. Any complaint that is not dismissed by Bar counsel is submitted by Bar counsel to a screening panel of the Grievance Commission with a recommended disposition. Prior to submission and prior to making a recommendation, Bar counsel will typically investigate the matter, which will include asking for a response to the complaint from the subject attorney.
4. Upon review, the screening panel of the Grievance Commission may: (1) dismiss the complaint if it does not believe there is probable cause to believe that misconduct occurred; (2) dismiss the complaint with a warning if it finds probable cause that misconduct has occurred, but that the misconduct was minor, that there was little or no injury to the client or the public, and that there is little likelihood of repetition by the attorney; or (3) direct Bar counsel to file a formal petition for an evidentiary hearing if it believes there is probable cause that misconduct occurred that is subject to a public reprimand, suspension or disbarment.
5. Any complaint not dismissed according to the above process will then, upon the filing of a formal petition by Bar counsel, be set up for an evidentiary hearing before a hearing panel of the Grievance Commission. After hearing, the hearing panel may: (1) dismiss the petition; (2) dismiss the petition with a warning: (3) issue a public reprimand; or (4) if the misconduct is serious enough to warrant suspension or disbarment, direct Bar counsel to file an action with the Maine Supreme Judicial Court.
6. An action filed with the Maine Supreme Judicial Court will be heard by a single justice who may, after a de novo evidentiary hearing, dismiss the action, issue a public reprimand, suspend the attorney for a definite period of time, or disbar the attorney.