Rule 5.4 Professional Independence of a Lawyer

COMMENT

[1] The provisions of this Rule express traditional limitations on sharing fees. These limitations are to protect the lawyer’s professional independence of judgment. Where someone other than the client pays the lawyer’s fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer’s obligation to the client. As stated in paragraph (c), such arrangements should not interfere with the lawyer’s professional judgment.

[2] This Rule also expresses traditional limitations on permitting a third party to direct or regulate the lawyer’s professional judgment in rendering legal services to another. See also Rule 1.8(f) (lawyer may accept compensation from a third party as long as there is no interference with the lawyer’s independent professional judgment and the client gives informed consent). This Rule is not intended to apply to a lawyer, in the context of a professional disciplinary case, who is directed by the court as a condition of probation, to be supervised and mentored by a member of the Maine Bar.

REPORTER’S NOTES:

Model Rule 5.4 (2002) is substantively in accord with M. Bar R. 3.12, although there are some distinctions.

Model Rule 5.4(a)(2) (2002) contemplates the sale of a deceased lawyer’s practice. The Task Force thought that M. Bar R. 3.12(a)(2) was a more realistic and practical directive for lawyers who are winding up a deceased lawyer’s practice. Thus, the Task Force recommended the adoption of the language of the Maine provision.

Model Rule 5.4(a)(3) (2002) tracks the first clause of M. Bar R. 3.12(a)(3). The Task Force thought that the provision setting forth the fee division rules with respect to non-lawyers found in the second clause of M. Bar R. 3.12(a)(3) offered a useful directive and thus recommended its inclusion.

The Task Force, after discussion, agreed that this Rule was not applicable to a lawyer who is directed by the court to be supervised and mentored by another member of the Maine Bar as a condition of disciplinary probation. In such a case, the supervised lawyer may be subject to the professional judgment of the supervising lawyer.

Because the Task Force thought Model Rule 5.4 (2002) was a clear articulation of the Rule addressing the Professional Independence of a Lawyer, it recommended adoption, subject to the noted modifications.