[27] For example, conflict issues may arise in estate planning and administration. A lawyer may be called in to prepare wills for multiple family members, such as husband and wife, and depending on the circumstances, there may be a conflict of interest. In the administration of the estate, the identity of the client may not be clear under the law of a particular jurisdiction. According to one view, the client is the trustee; From another perspective, the client is the estate or trust, including its beneficiaries. In order to comply with the conflict of interest rules, the lawyer should clearly indicate his or her relationship with the parties involved. Conflict of interest rules preserve a lawyer`s loyalty to his or her clients. A conflict of interest can also lead to privacy issues. However, even in cases where there is little or no chance of revealing the client`s trust or secrets, representation may be prohibited due to the existence of a conflict of interest, which, from the client`s point of view, may be considered a concession to the loyalty of his lawyer. [12] Maine has not adopted the categorical prohibition of the ABA Model Rules on an attorney having a sexual relationship with an existing client because such a rule seems unnecessary to address genuine disciplinary issues, and it threatens to turn disciplinary matters into disciplinary matters of conduct that we believe should not be a matter of attorney discipline. However, the absence of an outright prohibition should not be interpreted as an implicit endorsement of such relationships. Lawyers were disciplined under Maine`s former Professional Liability Code for having sex with clients, and they can be sanctioned for similar behavior under those rules. The relationship between the lawyer and the client is a fiduciary relationship, in which the lawyer occupies the highest position of trust.
In some types of representations, such as family or youth matters, the relationship is almost always unequal; Thus, in such circumstances, a sexual relationship between the lawyer and the client may involve an unfair exploitation of the lawyer`s fiduciary role, which violates the lawyer`s fundamental ethical obligation not to use the client`s trust to the detriment of the client. Moreover, such a relationship presents a significant risk that, due to the lawyer`s emotional involvement, the lawyer will not be able to represent the client without prejudice to the exercise of independent professional judgment. In addition, a blurred line between professional and personal relationships can make it difficult to predict the extent to which the client`s trust will be protected by the attorney-client evidentiary privilege, since the client`s trust is only protected by the privilege if it is negotiated as part of the client-lawyer relationship. Before proceeding with representation in these circumstances, the lawyer should determine whether the lawyer`s ability to represent the client is significantly limited by the sexual relationship. The task force concluded that the interpretations of the Maine Bar Rules and the interpretations of the ABA Rules are not far apart. The common concern is the risk of significantly impairing the lawyer`s effectiveness in representing a client given the positions the lawyer represents for another client: at the same time, arguing opposite sides of the same issue before the same judge or jury has the potential to compromise its effectiveness on behalf of both clients. In Maine, however, the main concern seemed to be that treating problematic conflicts as real conflicts would require lawyers to verify not only the identity of clients, but also the substance of the legal arguments advanced on behalf of clients: a significant burden. A related but tacit consequence of the Maine Workplace Ethics Commission`s decision is that problematic conflicts do not need to be escalated or approved by a client. Either they actually affect the effectiveness of the lawyer, in which case the lawyer must resign; or not, in which case the representation will continue. The lawyer decides whether the impairment is real or not, and there is no need to disclose or investigate the mere potential of an adverse impairment.
The revised model rule clarifies that, in some situations, a conflict may not be resolved by the customer. See aba Model Rules of Prof`l Conduct r. 1.7(b). This means that the representation cannot be continued even with the consent of the client. Unlike the previous rule, the revised rule contains a uniform standard for consent and informed consent, which applies to both direct adversity and material conflicts of restriction. This standard is set out in a separate paragraph to reflect both the individual steps required in conflict analysis (first identify potentially inadmissible conflicts and then determine whether presentation is permitted with the client`s consent) and to emphasize that not all conflicts are subject to consent. See id. A lawyer may not represent a client if such representation is significantly and adversely affected by the financial or other personal interests of the lawyer. cf.
for example Restatement (Third) of the Lawyers Act § 125 (2000); In re Perricone, 263 Sun.3d 309, 315 (La. 2018) (exclusion of lawyers for extrajudicial statements and affirmation of their own interests before clients). Although Louisiana per se does not prohibit sexual relations with clients, such relationships can sometimes be a conflict between the lawyer`s personal interest in the relationship and the client`s interests. See ABA Comm. on Ethics and Prof`l Responsibility, Formal Op. 92-364 (1992); see also In re Pardue, 274 Sun.3d 1248 (La. 2019); In re Martin, 252 Sun.3d 867 (La. 2018) (disciplinary counsel who, among other violations of the rules, had a sexual relationship with the client); In re Fuerst, 157 Sun.3d 569, 577 (La. 2014) (disciplinary of counsel who violated Rule 1.7(a)(2) by having sex with a client whose divorce was pending); In re Hammond, 56 Sun.3d 199, 213 (La. 2011) (disciplinary in respect of a lawyer who has repeatedly engaged in sexual misconduct with clients for violating Rule 1.7). The Louisiana Supreme Court sanctioned attorneys when personal relationships affected their ability to exercise independent professional judgment and give open counsel. See, for example, In re Bailey, 115 Sun.3d 458 (La.
2013) (finding an offence for a lawyer who appoints the fiduciary wife of the client`s trustee); In re DeFrancesch, 877 So. 2d 71 (s. 2004) (punishment of the lawyer for inappropriate sexual relations with the client despite the existence of an already existing relationship); In re Schambach, 726 Sun. 2d 892 (La. 1999); In re Ashy, 721 Sun. 2d 859 (La. 1998); In re Ryland, 985 Sun. 2d 71 (La. 2008). Under the previous model rule, consent was to declare that the conflict “would not affect representation.” The problem with this standard is that, in order to establish the existence of a conflict, the lawyer must have already established that the duties or interests of the lawyer are likely to “substantially restrict” representation.