Susan A. Faunce, trial lawyer and partner at Berman & Simmons

Recent Adoption of the Maine Rules of Professional Conduct

The Maine Task Force on Ethics, created by the Maine Supreme Judicial Court, has for the past four years been assessing the possibility of adopting the Maine’s version of the ABA Model Rules of Professional Conduct. Maine was among the few states that did not base its Code of Professional Responsibility upon the ABA Model Rules.

The Maine Supreme Judicial Court has adopted Maine’s version of the Model Rules as the Maine Rules of Professional Conduct which are in effect as of August 1, 2009. Maine Bar Rule 2-A (Aspirational Goals for Lawyer Professionalism), Maine Bar Rule 3 (Code of Professional Responsibility), Maine Bar Rule 8 (Contingent Fees) have been abrogated and are replaced with the Maine Rules of Professional Conduct.

Rule 1.5 Contingent Fees
Rule 1.5 is consistent with Maine Bar Rule 8, requiring the fee agreement to be in writing, provided to the client, and prohibiting contingent fees in matters involving criminal proceedings and domestic relations.

In terms of fee sharing between lawyers of different firms, 1.5(e) requires full disclosure to the client. The client must consent to both the employment of the other lawyer and to the terms of the fee division. The disclosure must be confirmed in writing. The total fee of the lawyers employed must be reasonable. Comment [7]* adds that pursuant to Rule 1.1, a lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is competent to handle the matter.

Rule 1.8 Conflict of Interest Current Clients
Rule 1.8(g) specifically addresses settlements and prohibits a lawyer who represents two or more clients from participating in an aggregate settlement of the claims, and in criminal cases aggregate plea agreements, unless the each client gives informed consent in writing signed by the client. A lawyer must disclose the nature of all the claims or pleas involved and the participation of each person in the settlement.

Comment [13] emphasizes that under Rule 1.7, the risk of representing multiple clients must first be discussed with the client prior to representation and each affected client must provide informed consent confirmed in writing. Additionally, under Rule 1.2(a) the client ultimately determines whether or not to settle a case. Rule 1.8(g) further requires the attorney to inform each client about the material terms of settlement including what other clients will receive if the settlement is accepted.

Rule 1.15(f) Termination and Safekeeping of Client Property
1.15(f) requires a lawyer to either return to the client or retain and safeguard information and data to which the client is entitled upon termination of representation. For information that has intrinsic value in the particular version, such as an original signed document, a lawyer must retain and safeguard until such time as they are out of date or no longer of consequence. For all other information, a lawyer must either return the information to the client or safeguard the information for eight years. A lawyer can enter into a voluntary written agreement with the client for different time period.

Comment [7] explains that an eight year timeframe was selected because it is two years beyond the general six year statute of limitations for professional negligence. In a case in which the statute of limitations for beginning a professional negligence action is longer than six years, it is recommended that the lawyer retain client information until 2 years following the expiration of the statute. Client confidentiality must be maintained in retaining or disposing of client files.

Rule 4.4(b) Inadvertent Disclosure
Essentially, the new rule codifies the Law Court’s holding in Corey v. Norman, Hanson & Detroy, 742 A.2d 933 (Me. 1999). The rule requires the attorney who received the inadvertent disclosure to immediately stop reading the information as soon as the lawyer has reason to believe the materials were inadvertently disclosed and contain confidential information. The lawyer must also notify the sender of the documents in writing and shall promptly return, destroy, or sequester the confidential information. A lawyer is not permitted to use or disclose the information until the claim has been fully resolved. Rule 4.4(b) applies to e-mail and other electronic modes of transmission.

Comment [4] explains that if the metadata in word processing documents contain confidential information that is inadvertently disclosed, the metadata is also subject to the rule.

*The comments are available for review, but have not been adopted by the Maine Supreme Judicial Court.

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Berman & Simmons is the leading personal injury and medical malpractice law firm in Maine. For more than 100 years, our trial attorneys have represented those who have been injured or harmed by the actions of others. These personal injury cases range from car and truck accidents to the most complex litigation involving defective products and malpractice by healthcare providers. We are known as the firm that will stand up and fight for injured Mainers in disputes against big corporations and powerful interests.