attorney-client privilege in Maine

2020Ctr., 41 S.W.3d at 800-03 (analogizing the physician-patient privilege to the attorney-client privilege and observing that in the attorney-client context a trial court may not redact information covered by the privilege while permitting disclosure of the rest of the document once it has been established that the document contains a confidential communication because the privilege extends to the entire document, and therefore “redaction of any or all privileged portions of the nonparty medical records does not defeat the privilege”); Field & Murray, Maine Evidence § 503.2 at 226. 22 [¶31] One o

2020Ctr., 41 S.W.3d at 800-03 (analogizing the physician-patient privilege to the attorney-client privilege and observing that in the attorney-client context a trial court may not redact information covered by the privilege while permitting disclosure of the rest of the document once it has been established that the document contains a confidential communication because the privilege extends to the entire document, and therefore “redaction of any or all privileged portions of the nonparty medical records does not defeat the privilege”); Field & Murray, Maine Evidence § 503.2 at 226. 22 [¶31] One o

2015DISCUSSION A. Attorney-Client Privilege "The purpose of the attorney-client privilege is to encourage clients to make full disclosme to their attorneys and to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice." Corey v. Norman, Hanson & DeTroy, 1999 ME 196 , ~ 18, 742 A.2d 933 (quotation marks and internal citations omitted).

2015DISCUSSION A. Attorney-Client Privilege "The purpose of the attorney-client privilege is to encourage clients to make full disclosme to their attorneys and to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice." Corey v. Norman, Hanson & DeTroy, 1999 ME 196 , ~ 18, 742 A.2d 933 (quotation marks and internal citations omitted).

1999An appeal of that ruling is now before us. [¶ 17] “A party aggrieved by a discovery order ‘must show both that the *941 trial judge committed error in the discovery ruling despite the considerable discretion vested in the judge ... and that the discovery order affected the outcome of the action to his prejudice.’ ” Jacques v. Pioneer Plastics, Inc., 676 A.2d 504, 509 (Me.1996) (quoting 1 Field, McKusick & Wroth, Maine Civil Practice § 26.18b at 212 (2d ed. Supp.1981)). [¶ 18] The purpose of the attorney-client privilege “is to encourage clients to make full disclosure to their attorneys,” see

1999An appeal of that ruling is now before us. [¶ 17] “A party aggrieved by a discovery order ‘must show both that the *941 trial judge committed error in the discovery ruling despite the considerable discretion vested in the judge ... and that the discovery order affected the outcome of the action to his prejudice.’ ” Jacques v. Pioneer Plastics, Inc., 676 A.2d 504, 509 (Me.1996) (quoting 1 Field, McKusick & Wroth, Maine Civil Practice § 26.18b at 212 (2d ed. Supp.1981)). [¶ 18] The purpose of the attorney-client privilege “is to encourage clients to make full disclosure to their attorneys,” see

2016An opposing party seeking to show that the crime-fraud exception to the attorney-client privilege applies then has the burden to prove, by a preponderance of the evidence, that (1) “the client was engaged in (or was planning) criminal or fraudulent activity when the attorney-client communications took place” and (2) “the communications were intended by the client to facilitate or conceal the criminal or fraudulent activity.” In re Motion to Quash Bar Counsel Subpoena, 2009 ME 104, ¶¶ 18, 19 , 982 A.2d 330 (quotation marks omitted).

2016An opposing party seeking to show that the crime-fraud exception to the attorney-client privilege applies then has the burden to prove, by a preponderance of the evidence, that (1) “the client was engaged in (or was planning) criminal or fraudulent activity when the attorney-client communications took place” and (2) “the communications were intended by the client to facilitate or conceal the criminal or fraudulent activity.” In re Motion to Quash Bar Counsel Subpoena, 2009 ME 104, ¶¶ 18, 19 , 982 A.2d 330 (quotation marks omitted).

2024See Foster v. Oral Surgery Assocs., P.A., 2008 ME 21, ¶ 22 , 940 A.2d 1102 ; Mehlhorn v. Derby, 2006 ME 110, ¶ 11 , 905 A.2d 290 .

2024See Foster v. Oral Surgery Assocs., P.A., 2008 ME 21, ¶ 22 , 940 A.2d 1102 ; Mehlhorn v. Derby, 2006 ME 110, ¶ 11 , 905 A.2d 290 .

2023The parties do not cite Maine law specifically on point, but in Symmons v. O’Keefe, the Massachusetts Supreme Judicial Court held 5 that where a trustee engages a lawyer to provide opinions about the trustee’s role, the trustee can invoke the attorney-client privilege against the trust beneficiaries to protect those opinions, despite the fact they concern the trust. 419 Mass. 288, 301 (1995).

2023See United States v. Jicarilla Apache Nation, 564 U.S. 162 , 171 n.3 (2011) (quoting A. Newman, G.

2016Co. v. Paxson, 847 S.W.2d 343, 347 (Tex. App. 1993) (quotation marks omitted). 10 “From early on in speaking of the *18 crime/fraud exception, courts did not and still do not limit the exception to prosecutable crimes or to criminal and civil frauds,” I Edna Selan Epstein, Attorney-Client Privilege and the Work-Product Doctrine § 1.V.B.13 (5th ed. 2012), and “there has been a gradual, but steady expansion of the scope of the exception,” Edward J.

2016Co. v. Paxson, 847 S.W.2d 343, 347 (Tex. App. 1993) ("[A]lthough the 'fraud' referred to in the exception certainly includes common law fraud and criminal fraud, it is much broader than that.” (footnote omitted)). 10 .Some courts have applied a stricter interpretation of the crime-fraud exception in patent infringement cases, reasoning that each of the elements, “must be established by at least primafacie evidence,” Union Carbide Corp. v. Dow Chem.

2016Circuit has held that a prima facie showing of misconduct—not full proof of a realized crime or fraud—is contemplated for overcoming the privilege: “Communications otherwise protected by the attorney-client privilege are not protected if the communications are made in furtherance of a crime, fraud, or other misconduct." In re Sealed Case, 754 F.2d 395, 399 (D.C.

2016Id. [¶27] The Supreme Court of Alaska similarly “decline[d] to accept [the] argument that ‘crime or fraud’ should be narrowly defined, and h[e]ld that services sought by a client from an attorney in aid of any crime or a bad faith breach of a duty are not protected by the attorney-client privilege.” Cent.

2016See Pierce, 576 A.2d at 199 .

2016Vt. 1995) (“Precedent and authority also recognize that not just technical crimes or frauds are excluded from the attorney-client privilege. ■... [Cjommuni-cations in furtherance of some sufficiently malignant purpose will not be protected.”); Fellerman v. Bradley, 99 N.J. 493 , 493 A.2d 1239, 1245 (1985) (giving the term "fraud” an “expansive reading”); Volcanic Gardens Mgmt.

2016Vt. 1995) (“Precedent and authority also recognize that not just technical crimes or frauds are excluded from the attorney-client privilege. ■... [Cjommuni-cations in furtherance of some sufficiently malignant purpose will not be protected.”); Fellerman v. Bradley, 99 N.J. 493 , 493 A.2d 1239, 1245 (1985) (giving the term "fraud” an “expansive reading”); Volcanic Gardens Mgmt.

2015The United States District Court for the District of Maine held in Ergo Licensing, LLC v. Carefusion 303, Inc., that communications made to facilitate the provision of legal services between a client and the client's former lawyer, who represented the client in the same matter at an earlier time, were protected by the attorney-client privilege. 263 F.R.D. 40, 44 (D.

2012In re Grand Jury Subpoena, 274 F.3d 563, 572-73 (1st Cir. 2001); see also RESTATEMENT (THIRD)OFTHELAWGOVERNINGLAWYERS § 76 cmt. g ("In the absence of an agreement to the contrary, any member [of a common interest arrangement] may waive the privilege with respect to that person's own communications." (emphasis added)).

2012See Harriman v. Maddocks, 518 A.2d 1027, 1034 (Me. 1985) (deciding that an insurance adjuster's case file and investigation is conducted in preparation of litigation, but is subject to discovery based on a Rule 26(b)(3) substantial need showing).

2012Conduct 1.6(b)(5); Conkling v. Turner, 883 F.2d 431, 434 (5th Cir.1989) (stating that the privilege is waived when a party "placets] information protected by it in issue through some affirmative act for his own benefit”) (quotation marks omitted); see also Field & Murray, Maine Evidence § 502.5 at 220 (6th ed.2007) (“Once [the attorney-client privilege] is waived, it cannot be later revived.”).

2012Citing Morin v. Maine Education Association, 2010 ME 36 , 993 A.2d 1097 , Bennett asserted that Liberty must suffer “actual prejudice” as a result of Gaythwaite’s continued representation of Bennett, which he had failed to show. [¶ 12] The court granted Bennett’s motion for reconsideration, and denied Liberty’s motion to disqualify Gaythwaite.

2012Citing Morin v. Maine Education Association, 2010 ME 36 , 993 A.2d 1097 , Bennett asserted that Liberty must suffer “actual prejudice” as a result of Gaythwaite’s continued representation of Bennett, which he had failed to show. [¶ 12] The court granted Bennett’s motion for reconsideration, and denied Liberty’s motion to disqualify Gaythwaite.

2011The purpose of Rule 502(d)(6) is clearly to limit protection under the traditional attorney-client privilege in the agency context: "[C]onfidential communications between a public agency and its lawyer are the exception rather than the rule." Superintendent ofIns. v. Attorney Gen., 558 A.2d 1197, 1203 (Me. 1989). 5 Instead of deliberating over whether the documents in question fit the narrow privilege envisioned under Rule 502( d)(6), it is enough to say that even the general attorney-client privilege cannot apply here due to the roles of the parties involved.

2000Id. at 627.

1999An appeal of that ruling is now before us. [¶ 17] “A party aggrieved by a discovery order ‘must show both that the *941 trial judge committed error in the discovery ruling despite the considerable discretion vested in the judge ... and that the discovery order affected the outcome of the action to his prejudice.’ ” Jacques v. Pioneer Plastics, Inc., 676 A.2d 504, 509 (Me.1996) (quoting 1 Field, McKusick & Wroth, Maine Civil Practice § 26.18b at 212 (2d ed. Supp.1981)). [¶ 18] The purpose of the attorney-client privilege “is to encourage clients to make full disclosure to their attorneys,” see