In Re Motion To Quash Bar Counsel Subpoena

982 A.2d 330 (2009)

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Nature of the Case

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Facts

John Duncan, was a former partner in Dana. Duncan's misconduct got him disbarred for life. Duncan's former secretary reported to at least two attorneys at Dana that Duncan had stolen a significant amount of client funds. She left Dana and retained counsel to represent her in a potential claim against the firm, and filed a grievance complaint against Duncan and several other Dana attorneys with the Board of Overseers of the Bar (Board). Dana engaged Attorney Gene Libby, a former Dana partner and its general counsel since 1996, to represent it in the matter. Libby undertook an investigation. Libby resigned from Dana on November 26, 2007. Two days later, Libby wrote to Bar Counsel, reporting that 'during the course of my investigation, I acquired what I believe is unprivileged knowledge of violations of the Maine Bar Rules that require reporting.' Dana claimed that the knowledge Libby referred to was privileged so Libby did not disclose any specifics. Eventually, Libby agreed not to disclose any information conveyed to him as general counsel unless required to do so by court order. On September 8, 2008, Bar Counsel issued a subpoena to Libby, compelling both his testimony and the production of any documents supporting his report made ten months earlier. Dana filed a motion to quash claiming the information was protected by the attorney-client privilege and the work product doctrine. The Board asserted the crime-fraud exception. Dana filed a motion to quash claiming the information was protected by the attorney-client privilege and the work product doctrine. Bar Counsel's response to the motion asserted that the crime-fraud exception applied and acted to remove any privilege. The parties agreed to submit the dispute to a single justice of the Court. The single justice held there was criminal conduct and there was no privilege. The justice ordered all of the documents produced and this appeal followed.