Me. R. Prof. Cond. 6.5
Me. R. Prof. Cond. 6.5
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.
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.
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