## Facts

- Bar Counsel investigated a Maine law firm’s handling of a partner’s misappropriation of client and firm funds and related misconduct.
- The firm’s former general counsel conducted an internal investigation and created memoranda and related documents about the firm’s response.
- After leaving the firm, the former general counsel informed Bar Counsel he had information he believed he might have to disclose, but the firm asserted attorney–client privilege over it.
- Bar Counsel issued a subpoena to the former general counsel seeking the internal investigative memoranda and related materials.
- The firm moved to quash, asserting attorney–client privilege and work-product protection.
- A single justice reviewed the materials in camera, concluded the crime-fraud exception applied, and denied the motion to quash, effectively compelling production.
- The firm sought review by the full court, raising both appellate-jurisdiction and privilege questions.

## Issues

1. Whether an order denying a motion to quash a Bar Counsel subpoena compelling disclosure of allegedly privileged materials is immediately appealable despite the final-judgment rule.
2. Whether the crime-fraud exception was properly applied to pierce the firm’s attorney–client privilege (and related protections) for internal general-counsel communications.

## Decision

- The court exercised appellate jurisdiction under the “death knell” exception because compelled disclosure of privileged communications would irreparably destroy the privilege.
- The court vacated the order denying the motion to quash and remanded for clarification and further findings.
- The court held the existing order did not clearly show application of the correct legal standard or the necessary, communication-specific analysis for the crime-fraud exception.

## Legal Principles

- Orders compelling disclosure of allegedly privileged attorney–client communications may be immediately reviewable when post-disclosure review would be ineffective because the privilege would be lost.
- Attorney–client privilege applies to confidential communications between a law firm and its designated internal/general counsel, including in the context of bar investigations, subject to recognized exceptions.
- The crime-fraud exception applies only when legal services are sought or used in furtherance of ongoing or future crime or fraud, not merely to discuss, investigate, or respond to past wrongdoing.
- To invoke the crime-fraud exception, the proponent must make a prima facie showing of a nexus between the communications and the facilitation or concealment of ongoing or future criminal or fraudulent conduct.
- A finding that communications are “potentially damaging” is insufficient, by itself, to defeat privilege.

## Conclusion

The court permitted immediate appellate review of a subpoena order threatening privileged disclosures, then vacated and remanded because the crime-fraud ruling lacked clear application of the required prima facie and nexus standards to the specific communications sought by Bar Counsel.


In re Motion to Quash Bar Counsel Subpoena, 982 A.2d 330 (Me. 2009)