Attorney-Client Privilege in Maine
During the recent travails of President Trump and Michael Cohen, his longtime personal attorney, the mainstream news media provided their readers, viewers, and listeners who lack law degrees with a primer on attorney-client privilege and how it might be lost for some of their communications. In the president’s case, the commentariat speculated that the privilege might be lost for some communications under the crime-fraud exception. This exception, when it applies, destroys the attorney-client privilege in instances where the attorney’s services are used in furtherance of a crime or civil fraud. In Maine, that provision is codified in the Maine Rules of Evidence, Rule 502(d)(1), and I (fortunately) have never been in a situation where this rule applied.
Now to back up a bit: attorney-client or lawyer-client privilege is a kind of blockade against the compelled disclosure of the contents of communications between a lawyer and a client. I think of it as a way to enforce people’s constitutional rights against self-incrimination and to the representation by legal counsel because it would inhibit one’s ability to work with a lawyer on any legal matter — criminal, civil, administrative, legislative, or transactional — if the communications could be subject to public disclosure. The infringement on one’s right to counsel would be especially egregious if a person’s incriminating statements made in confidence to a lawyer could be used in a criminal proceeding against that person, effectively making the person testify against himself or herself. Other mechanisms, like the work-product rule or doctrine, attorney-client confidentiality, the Miranda rule, the Hubbell doctrine, and the Fourth Amendment exclusionary rule, also provide valuable protections that are either similar to or related to attorney-client privilege.
The crime-fraud exception is not what I want to address here, though — rather, I want to touch on waiver of the privilege by voluntary disclosure. In Maine, evidence rule 510(a) holds that someone waives attorney-client privilege if he or she “voluntarily discloses or consents to the disclosure of any significant part of the privileged matter.” It can be waived, for example, when someone talks to cellmates about a pending case, writes about legal matters on social media, or shares an email from legal counsel with family members. These scenarios also may generate incriminating evidence that may be used under exceptions to the hearsay rule.
In my professional experience I have encountered many criminal defendants who have arguably waived this valuable privilege because they cannot keep their mouths shut. Of course, I have not proceeded to inform prosecutors about what I’ve heard, but some clients of mine and other defendants that I encounter have a frustrating habit of rehashing their conversations with their attorneys to family and friends. Worse, some jail inmates who are in pretrial detention cannot resist the urge to discuss their cases with each other — the attorney-client privilege doesn’t even apply when that happens, and fellow inmates sometimes become witnesses at trial.
Mum’s the word, as they say, and if you’re not sure what information is safe to share ask your lawyer.