No, the title is not a veiled attempt to publicly-shame Maine’s Governor for his latest act of public ridiculousness… or is it? This is instead a short post discussing conduct that I posit is a lot more common than you might think and that resulted recently in a very low-level of discipline against a Maine attorney.
In the middle of December 2016, a criminal defense lawyer in Maine received an admonition for crossing the line when interviewing an unrepresented witness by providing legal advice in violation of Maine’s version of ABA Model Rule 4.3. Rule 4.3 governs a lawyer’s communications with someone who is not represented by counsel. That is the rule that, among other things, limits a lawyer’s advice to an unrepresented person. Many folks remember the rule as foreclosing any advice but the advice to “get a lawyer,” but the rule actually only prohibits other legal advice if there is a risk that the interests of the unrepresented person are in conflict with those of the lawyer’s client.
In the Maine matter, the defense lawyer communicated with the victim in a domestic violence assault case against his client. The short opinion regarding the admonition stresses that the fact of the communication itself, as well as several of the topics discussed, were perfectly appropriate since the victim was willing to talk with the defense lawyer. Where the Maine lawyer crossed the line was providing his opinion to her about whether “she could avoid testifying by invoking her Fifth Amendment rights against self-incrimination.” Because the victim had interests adverse to his client’s, the Maine attorney could only ethically respond to any questions about Fifth Amendment rights by telling her that she would need to get her own attorney to receive that kind of advice.
Even in less emotionally-charged circumstances than would be expected to be true in a domestic violence matter, navigating an interview of an unrepresented witness and complying with Rule 4.3 can be difficult. Not only do people often want to take advantage of having a lawyer’s ear to seek advice but often those same people have no idea that they are putting a lawyer in a jam by asking. Lawyers, being human beings, can struggle with how to be inoffensive in declining to answer what the witness may view as a simple question rather than an ethical land mine. The situation for the lawyer can be further complicated by having to work through whether or not the client’s interests and the witness’s interests are sufficiently aligned for the lawyer to be able to actually offer advice beyond “get a lawyer.”
For both of those reasons, I suspect that this kind of violation happens at a level of frequency that far exceeds the number of cases where you see discipline meted out. Often, there never comes any reason for anyone to ever complain. Often, anyone who might complain never knows the interaction took place. Sometimes, the person communicating with the lawyer ends up benefiting from getting the free legal advice.
The Maine admonition came about only because the district attorney prosecuting the domestic violence case filed the grievance; the opinion makes clear that the DA had spoken to the victim shortly before the Maine attorney interviewed the victim, the fact that he filed the complaint strongly implies that he likely talked to the victim again after the Maine attorney spoke with her.