January 2001, pg. 40. Board of Overseers of the Bar.

Maine Bar Journal

2001.

January 2001, pg. 40.

Board of Overseers of the Bar

Maine Bar Journal January 2001 Board of Overseers of the Bar Opinions of The Professional Ethics Commission Opinion No. 171

Issued December 24, 1999

FACTS

The Board of Overseers has requested an answer to the following questions:

(1) Under what circumstances may Attorney A consult with Attorney B, who is not a member of his or her own law firm, when the inquiry necessitates a discussion of facts arising from A's representation of Client X, without first obtaining X's consent?

(2) Does Attorney A's consultation with B constitute an attorney/client relationship that would make their discussion confidential and not subject to discovery in any related litigation?

(3) Does it make any difference if Attorney B is Bar Counsel?

OPINION

In answering the Board's questions we will distinguish between consultations that concern primarily the matter about which X sought legal services from A, including related matters, which for convenience will be dubbed consultations for the benefit of the client, and consultations that concern A's obligations under the Maine Bar Rules, which will be dubbed consultations for the benefit of the attorney. We recognize that both consultations could be considered beneficial to both the attorney and the client. A distinction is justified by the different policies that may support allowing consultation without client consent in these different situations. Guided by Maine Bar Rule 3.6(a), it may be argued that the Bar Rules should encourage consultation with other counsel when an attorney's knowledge falls short of addressing the client's problem completely. It may also be argued that the Bar rules should encourage consultation with other counsel about requirements of the Bar Rules in the interest of preventing violations, if possible, and correcting them promptly when they do occur.

We shall assume that the "facts arising from A's representation of client X" are either confidences or secrets as those terms are defined in Maine Bar Rule 3.6(h). Bar Rule 3.6(h) does not inhibit discussion of other facts pertaining to a representation. In this respect, the scope of the Maine Bar Rule on confidentiality is not as broad as its counterpart in the ABA Model Rules. The latter (Model Rule 1.6) applies to all "information relating to representation of a client" but is buffered by a qualification that some disclosures may be impliedly authorized to carry out the representation. We shall also assume that the Board's first question presupposes not just a discussion of confidences and secrets but a disclosure, including identification of client X or the disclosure of facts that would permit identification of client X, at a time when adverse consequences of the disclosure are possible.(Fn1)

In answer to question (1), the Commission concludes that, if consultation is for the benefit of X, the consent of X is not required; provided that, neither B nor any member of B's firm represents a party with an interest adverse to X in the matter on which consultation is to occur or a substantially related matter and one of the following additional conditions is satisfied:

(i) B undertakes an attorneyclient relationship with X, at least for the limited purpose of the consultation;

(ii) If B declines to undertake an attorneyclient relationship with X, the facts to be discussed will not include facts disclosed to A in a privileged communication but may include secrets, as defined in Maine Bar Rule 3.6(h), if B agrees to neither disclose nor use any of the secrets.

If consultation is for the benefit of A, our answer is the same except that the attorneyclient relationship to which the conditions refer is an attorneyclient relationship between B and A, rather than X and the disclosures may extend to communications "relevant to an issue of breach of duty" by the lawyer to the client or vice versa. Our answer to question (2) is that it depends on the circumstances and conduct of the parties, and our answer to question (3) is yes; it does make a difference if B is Bar Counsel.

Although on its face Maine Bar Rule 3.6(h) expresses an unqualified prohibition of any disclosure of a confidence or secret of the client by the lawyer first acquiring knowledge, we conclude that permission to make some disclosures for the benefit of the client, without the client's written consent must be implied from requirements of the representation. This implied authority, which is expressly acknowledged by ABA Model Rule 1.6 and by the draft Restatement 3rd, The Law Governing Lawyers, §113, is manifest in several provisions of the Bar Rules. Bar Rule 3.6(h)(5) defines "confidence" as information protected by the attorneyclient privilege "under applicable law", thus importing Maine Rule of Evidence 502, which in paragraph (a)(5) defines "confidential" communications as communications not intended to be disclosed other than to persons "to whom disclosure is made in furtherance of the rendition of professional legal services to the client...." Paragraph (2) of Maine Bar Rule 3.6(h) enjoins a lawyer to prevent improper...