Attorney-Client Privilege -


I. State the general circumstances under which the jurisdiction will treat a communication as attorney-client privileged, including identification of all required elements/circumstances.

Pursuant to M.R. Evid. 502(b), “A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of any confidential information:

(1) Between the client or client’s representative and the client’s lawyer or lawyer’s representative;

(2) Between the lawyer and the lawyer’s representative;

(3) By the client, the client’s representative, the client’s lawyer, or the lawyer’s representative to a lawyer representing another party in that pending action concerning a matter of common interest in a pending action;

(4) Between the client’s representatives, or between the client and his or her representative; or

(5) Among the lawyers and those lawyers’ representatives.

II. Does the jurisdiction recognize/preserve the attorney-privilege for communications among co-defendants in joint-defense or common-interest situations? If so, what are the requirements for establishing two or more co-defendants’ communications qualify?

Yes, typically a letter of agreement between the parties will do.



III. Identify key pitfalls/situations likely to result in the loss of the ability to claim the protections of the privilege – e.g., failure to assert, waiver, crime-fraud exception, assertion of advice of counsel, transmittal to additional non-qualifying recipients, etc.

Pursuant to M.R. Evid. 502(d), the attorney-client privilege is subject to the following exceptions:

(1) Furtherance of Crime or Fraud;

(2) Claimants Through Same Deceased Client;

(3) Breach of Duty by Lawyer or Client;

(4) Document Attested by Lawyer

(5) Joint Clients

(6) Public Officer or Agency

IV. Identify any recent trends or limitations imposed by the jurisdiction on the scope of the attorney-client privilege.