Rule 502. Lawyer-Client Privilege

(a) Definitions. As used in this rule:

(1) A "client" is:

(A) A person;

(B) A public officer;

(C) A corporation;

(D) An association; or

(E) Any other organization or entity, public or private; To whom a lawyer renders professional legal services, or who consults with a lawyer with a view toward obtaining professional legal services from the lawyer.

(2) A "representative of the client" is a person who has authority on behalf of the client to:

(A) Obtain professional legal services; or

(B) Act on advice rendered as part of professional legal services.

(3) A "lawyer" is:

(A) A person authorized to practice law in any state or nation; or

(B) A person whom the client reasonably believes to be authorized to practice law in any state or nation.

(4) A "representative of the lawyer" is a person who is employed by the lawyer to assist the lawyer in the rendition of professional legal services.

(5) A communication is "confidential" if it is made to facilitate the provision of legal services to the client and is not intended to be disclosed to any third party other than those to whom the client revealed the information in the process of obtaining professional legal services.

(b) General rule. A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of any confidential communication:

(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 client's lawyers and those lawyers' representatives.

(c) Who may claim the privilege.

(1) The privilege may be claimed by:

(A) The client;

(B) The client's guardian or conservator;

(C) The client's personal representative, if the client is deceased; or

(D) An officer, manager, trustee, or other agent authorized to act on behalf of a legal entity—such as a corporation, limited liability company, partnership, or trust—in legal matters or in obtaining the services of, or communicating with, an attorney for the entity, whether or not the entity still exists.

(2) There is a presumption that the person who was the lawyer or lawyer's representative at the time of the communication in question has authority to claim the privilege on the client's behalf.

(d) Exceptions. The lawyer-client privilege is subject to the following exceptions:

(1) Furtherance of Crime or Fraud. The lawyer-client privilege does not apply if the client sought or obtained the lawyer's services to help a person plan or commit what the client knew or reasonably should have known was a crime or fraud.

(2) Claimants Through Same Deceased Client. The lawyer-client privilege does not apply to any communication relevant to an issue between parties who claim through the same deceased client.

(3) Breach of Duty by Lawyer or Client. The lawyer-client privilege does not cover any communication relevant to an issue of the lawyer's breach of a duty to the client, or of the client's breach of a duty to the lawyer.

(4) Document Attested by Lawyer. The lawyer-client privilege does not apply to a communication relevant to an issue about a document to which the lawyer is an attesting witness.

(5) Joint Clients. When a communication is offered in an action between clients who were represented jointly by the lawyer, the lawyer-client privilege does not protect that communication if it is relevant to a matter of common interest between clients, and if the communication was made by any one of the clients to the lawyer retained or consulted as part of a joint representation.

(6) Public Officer or Agency. The lawyer-client privilege does not apply to communications between a public officer or agency and its lawyers. However, if the court determines that disclosure will seriously impair the public officer's or agency's ability to process a claim or carry out a pending investigation, litigation, or proceeding in the public interest, the lawyer-client privilege will apply to communications concerning the pending investigation, claim, or action.

Committee Notes

Maine Restyling Note [November 2014] Maine Rule 502 has been restyled in accordance with the federal restyling conventions, and, as part of this process, the Committee has proposed some minor, nonsubstantive changes to clarify the Rule.

Advisers' Note to former M.R. Evid. 502 (February 2, 1976) There is nothing in this rule that is believed to be contrary to any Maine decision, but there are several matters on which Maine case law is silent. Subsection (a)(2) defines "representative of the client" as one having authority to obtain legal services and to act on advice rendered pursuant thereto on behalf of the client. This is an adoption of the so-called "control group" test. It narrows the privilege, confining it to communications by persons of sufficient authority to make decisions for the client. It would not protect communications from lower-level employees to lawyers to enable them to advise a decision-making superior. To illustrate by an example, if a bank teller seeks advice from the bank's attorney whether to accept as sufficient a particular endorsement, the communication would presumably be privileged because the teller would have authority to act on the advice. If, however, he gave the attorney a statement about a customer slipping on a foreign object as he was presenting a check to be cashed, there would be no privilege. This would be true even though his decision-making superiors directed him to make the statement. The distinction between a privilege and the work product rule embodied in M.R.C.P. 26(b)(3) should be emphasized. If there is a privilege, disclosure cannot be required either in discovery proceedings or at trial. The work product rule gives a qualified protection to unprivileged information prepared in anticipation of trial, which can be overcome by a showing of substantial need. It has nothing to do with admissibility at trial. Subsection (d)(6) denies a privilege between public officers or agencies and their lawyers unless the communication concerns a pending matter and the court determines that disclosure would seriously impair the conduct of the proceeding in the public interest. No Maine law on the subject has been found.

Advisory Committee Note (February 1, 1983) In Upjohn v. U.S., 449 U.S. 383, 101 S.Ct. 677 (1981), the United States Supreme Court disapproved of the "control group test" in federal court. The Court declined to attempt to delineate any substitute. Although the control group test is law in a minority of jurisdictions, it appears that there is no consensus in the other jurisdictions as to the best rule to govern the scope of the attorney/client privilege as applied to corporate clients. After carefully reconsidering the matter in 1982, the Advisory Committee has recommended retention of the control group test without change. It should be reemphasized that the privilege conferred by Rule 502 is independent of the "work product" doctrine which gives discovery protection to certain kinds of material developed by or under the supervision of an attorney in preparation for litigation. In many cases informational communications from employees outside the control group can be protected from civil discovery by the work product doctrine.