"The admissibility of evidence in a court of law ... is normally determined by reference to relevant constitutional and statutory provisions, applicable court rules and pertinent common-law doctrines. Codes of professional conduct play no part in such decisions ...."
How later courts described this case
- "The admissibility of evidence in a court of law ... is normally determined by reference to relevant constitutional and statutory provisions, applicable court rules and pertinent common-law doctrines. Codes of professional conduct play no part in such decisions ...."
- "The function of the Code of Professional Responsibility is to prescribe the standards of conduct for members of the bar. The provisions of the Code are unrelated to the admission of evidence."
- "The New Hampshire Rules of Professional Conduct are aimed at policing the conduct of attorneys, not at creating substantive rights on behalf of third parties."
Written by the judges who cited it.
The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CRIMINAL ACTION
DOCKET NO: CR-09-9716
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STATE OF MAINE ~._' .... ,
ORDER
v.
KAILE R. WARREN, JR. et al.,
Defendants
Attorney Timothy J. Bryant and Preti, Flaherty, Beliveau & Pachios, LLP
motion to quash two subpoenas issued on February 26,2010.
BACKGROUND
Defendant Kaile R. Warren has been charged with theft by deception,
securities fraud, and selling unregistered securities. Assistant Attorney General
Michael Colleran is leading the State's investigation into Mr. Warren's activities.
On February 26, 2010, attorney Colleran issued subpoenas to Timothy J. Bryant,
Esquire, and Preti, Flaherty, Beliveau & Pachios, LLP (the Firm). Mr. Bryant is a
member of the Firm and had provided legal services to Mr. Warren and his
business entities, KW Enterprises, Inc., and Rent-A-Husband, LLC. On March 12,
2010, Mr. Bryant and the Firm filed this Motion to Quash the subpoenas.
The subpoenas are identical in form and command Mr. Bryant and the
Firm to appear and testify before a grand jury. They also seek the following
records: "[A]ll documents constituting or summarizing communications" with
Mr. Warren during 2007 and 2008; "[A]ll minutes of Board of Directors
meetings" for Mr. Warren's business entities; "[A]ll versions of convertible
1
promissory notes and subscription agreements prepared" for Mr. Warren's
business entities; "[A]ll billing records for services provided" to Mr. Warren's
business entities; and All communications with Mr. Warren "during 2002 or 2005
regarding the form of promissory notes to be issued ... or the form of
subscription agreement related to the notes, including any revisions to the form."
The State did not file a motion in limine under Rule 17(d) before serving the
subpoenas.
Mr. Bryant has already testified before the Grand Jury in this case. In 2009
the State subpoenaed Mr. Bryant to have him testify about his communications
with Mr. Warren regarding:
1. [V]aluation figures contained within convertible promissory
notes allegedl y drafted by you or those working wi th you,
including the source and basis for the figures and any
communications you had with Warren regarding the figures;
and 2. Disclosures in subscription agreements allegedly drafted
by you or those working with you regarding the issuer's
prospect for future losses, including any communications ...
with Warren regarding the disclosures."
Order on Defendant's Motion to Quash, State v. Warren, CR-09-9716 (Me. U.
Crim. Ct., Cum. Cty., Jan. 29, 2010) (Moskowitz, J.). The subpoena also
commanded Mr. Bryant to produce "any and all documents dated after your
attorney-client relationship with \!\Tarren ended that expressly waive or appear to
expressly waive Warren's attorney-client privilege, including any documents
that you or your counsel received in response to your counsel's letter ...." Id.
Mr. 'vVarren filed a motion to quash on the grounds that the subpoena sought
information protected by attorney-client privilege.
A hearing was held on January 28, 2010. After taking evidence and
hearing arguments by counsel, the presiding judge ruled that Mr. Warren had
waived his attorney-client privilege with Mr. Bryant in regard to the sought-after
2
information. This ruling was based on two findings. First, the judge found that
Mr. Warren had already knowingly and expressly disclosed privileged
information about the specific issues identified in the subpoena. While doing so,
Mr. Warren had raised his reliance on Mr. Bryant's counsel as a defense.
Second, Mr. Warren had signed a written waiver authorizing Mr. Bryant
to speak freely with Attorney Colleran "without regard to rules or principles
governing an attorney's obligations to clients and former clients with respect to
confidences and secrets and privileged communications." Id. (internal quotations
omitted). This waiver was intentionally, knowingly, and voluntarily executed,
and by its terms is "general, unconditional and irrevocable." From this evidence,
the presiding judge found that Mr. Warren had "waived his attorney-client
privilege regarding the specific issues delineated in he [sic] State's subpoena ...
[and] waived his attorney-client privilege generally as to communications he had
with Attorney Bryant .... The defendant intentionally and voluntarily waived
his attorney-client privilege, and he cannot revive it."l Id.
The State asserts that this prior order conclusively established that no
attorney-client privilege exists between Mr. Warren and Mr. Bryant or the Firm.
Absent such protection, the State believes it was entitled to subpoena Mr. Bryant
and the Firm without prior court approval. Mr. Bryant and the Firm disagree.
They contend that the privilege has not been clearly and absolutely waived, and
that Maine Rule of Criminal Procedure 17(d) requires the State to obtain court
I When the holder of a privilege intentionally and voluntarily discloses
information protected by the privilege, the reason for the privilege disappears
and it cannot be revived. In re Whiting, 110 ME 232, 234, 85 A. 791, 792 (Me. 1913);
see Field & Murray, Maine Evidence §§ 502.5, 510 (2000 ed.). Similarly, where a
person bases a claim or defense on reliance on the advice of counsel, the person
cannot assert attorney-client privilege to prevent investigation of that advice.
Jensen v. S.D. Wnrren Co., 2009 ME 35, crrcrr 31-34, 968 A.2d 528,536-37; Field &
Murray, Maine Evidence § 510.1 (2000 ed.).
3
approval before subpoenaing Mr. Warren's former attorney.2 They argue that the
information sought by the State could still be protected under the Fourth or Fifth
Amendments of the Constitution, the Rules of Professional Responsibility, or
Maine Rule of Evidence 502.
DISCUSSION
Rule 17(d) requires a party issuing a subpoena that it knows
seeks the production of documentary evidence that may be
protected from disclosure by a privilege, confidentiality
protection or privacy protection under federal law, Maine law
or the Maine Rules of Evidence ... [to] file a motion in limine,
pursuant to Rule 12, prior to serving the subpoena. The motion
shall contain a statement of the basis for seeking production of
the documentary evidence that may be privileged or protected
and shall be accompanied by a copy of the yet unserved
subpoena.
M.R. Crim. P. 17(d).
"The existence of a privilege is a preliminary question for the court." Rich
v. Fuller, 666 A.2d 71, 74 (Me. 1995) (citing M.R. Evid. 104(a)). Whether a privilege
applies to specific disclosures or has been waived is a question of fact to be
determined by the presiding justice. See In re Motioll to Quasll Bar Coullsel
Subpoella, 2009 ME 104, <JI 20, 982 A.2d 330, 338 (reviewing court examines the
trial justice's ruling to ensure that the correct legal test was applied, and that the
evidence supports the determination of a privilege's applicability).
One basis for Mr. Bryant and the Firm's Motion to Quash are Maine's
Rules of Professional Conduct. They contend that Rules 1.6 and 1.9 require them
to maintain former client confidences on penalty of professional discipline, and
this in turn requires any subpoena for potentially protected information to be
vetted under M.R. Crim. P. 17(d). A similar argument was rejected in the prior
2 Mr. Warren has attempted to revoke his written waiver, and currently takes the
position that the attorney-client privilege \vith Mr. Bryant and the Firm is intact.
4
order, and it continues to be without merit. Rule 17(d) does not refer to the Rules
of Professional Conduct by name. The only way the Rules of Professional
Conduct could come within the scope of Rule 17(d) is if they are "Maine law."
The Rules of Professional Conduct are by their own terms "not designed
to be a basis for civil liability" or "invoked by opposing parties as procedural
weapons." M.R. Prof. Conduct Preamble(20). The Rules of Professional Conduct
are only guides for professional behavior. Id. Consequences for their violation are
personal to the attorney, and have no bearing on questions of evidence or
procedure. See State v. McCarthy, 2003 ME 40, crrcrr 16-17, 819 A.2d 335, 341
(holding that the consequences for a possible violation of a Maine Bar Rule were
personal to the prosecutor and would not result in the suppression of evidence)
(citing People v. Green, 274 N.W.2d 448, 454 (Mich. 1979) ("The admissibility of
evidence in a court of law ... is normally determined by reference to relevant
constitutional and statutory provisions, applicable court rules and pertinent
common-law doctrines. Codes of professional conduct play no part in such
decisions ...."); State v. Morgan, 646 P.2d 1064, 1070 (Kan. 1982) ("The function
of the Code of Professional Responsibility is to prescribe the standards of
conduct for members of the bar. The provisions of the Code are unrelated to the
admission of evidence."); State v. Decker, 641 A.2d 226, 230 (N.H. 1994) ("The
New Hampshire Rules of Professional Conduct are aimed at policing the conduct
of attorneys, not at creating substantive rights on behalf of third parties.")). The
Rules of Professional Conduct are not "Maine law" as the term is used in M.R.
Crim. P. 17(d). Whether Mr. Bryant or the Firm could be sanctioned under them
for complying with the State's requests has no bearing on whether the State was
required to file a motion in limine before serving the subpoenas.
5
Mr. Bryant and the Firm also raise Mr. Warren's Fourth and Fifth
Amendment rights as possible bases for quashing the State's subpoenas. The
privileges granted under the Fourth and Fifth Amendments are personal and
cannot be asserted on another's behalf. Mimi, v. Carter, 525 U.s. 83, 88 (1998)
(fourth amendment); George Campbell Painting Corp. v. Reid, 392 U.s. 286, 288-89
(1968) (fifth amendment). Mr. Warren has not joined the current Motion to
Quash, and Mr. Bryant and the Firm lack standing to assert his constitutional
rights.
They do, however, have standing to raise the final identified basis for the
Motion to Quash. Maine Rule of Evidence 502 protects confidential
communications between an attorney and his or her client. Clients hold the
privilege, but attorneys may assert it on their clients' behalf. M.R. Evid. 502(c). A
client can intentionally and voluntarily waive the privilege by disclosing "any
significant part of the privileged matter." M.R. Evid. 510; Corey v. Norl1lan,
Hanson E:" DeTroy, 1999 ME 196, CJrcrr 19-20, 742 A.2d 933,941. There is no question
that the sort of information sought in the subpoenas is the sort that would come
within Rule 502(b)'s privilege absent waiver or one of the exceptions outlined in
Rule 502(d),
The question before this Court is not whether Mr. Warren waived his
attorney-client privilege. This Court is instead asked to determine whether a
Rule 17(d) evidentiary hearing was required to determine whether the privilege
applied to the subpoenaed information. To answer this question, the Court must
determine whether the issue was resolved by the prior order of January 29, 2010,
The State urges the Court to find that this prior order established the law of the
6
case and precludes any further inquiry into the existence of attorney-client
privilege.
The law of the case doctrine "is an articulation of the wise policy that a
judge should not in the same case overrule or reconsider the decision of another
judge of coordinate jurisdiction.... It relates only to questions of law, and it
operates only in subsequent proceedings in the same case." Blance v. Alley, 404
A.2d 587, 589 (Me. 1979). The State's position has considerable appeal on its
surface. Another judge recently ruled on the same issue of privilege now before
this Court. There, the State had subpoenaed information about attorney-client
communications from Mr. Bryant. Mr. Warren, the client, opposed the subpoena
by asserting attorney-client privilege. After an evidentiary hearing, the presiding
judge used broad language to find that Mr. Warren had waived all privilege in
regard to his communications with Mr. Bryant. A cursory reviewer would be
excused for believing this a "classic occasion" for application of the law of the
case doctrine. Sprague v. Washburn, 447 A.2d 784, 786-87 (Me. 1982).
However, the existence of a privilege is technically a question of fact, and
the doctrine only applies to questions of law. [d. Furthermore, trial courts have
been cautioned against applying the doctrine to preliminary evidentiary
questions. See Maille v. Brackett, 2000 ME 54, 9I 7, 754 A.2d 337, 339 ("[A]ctual
facts may influence and change the trial justice's determination of the relevance,
probative value or prejudicial effect of the subject evidence.") In any event, the
doctrine is not binding. Sprague, 447 A.2d at 787.
Mr. Bryant and the Firm have the better argument in favoring another
evidentiary hearing. While the prior order speaks in broad language, the
presiding justice was faced with a subpoena requesting information on three
7
well-defined topics. The ruling was also based in part on the fact that Mr. Warren
had specifically waived his privilege by giving testimony on those topics. The
current subpoenas constitute a much broader and open-ended inquiry into
"[a]ny and all documents constituting or summarizing communications ...
during 2007 and 2008 ...."
Given this expanded scope of inquiry and the prior ruling's lack of
binding precedential weight, Mr. Bryant and the Firm correctly argue that the
January 29, 2010 order does not dispose of the current Motion to Quash. That
order should not be read to definitively dispose of Mr. Warren's attorney-client
privilege writ large. It follows that the State had reason to know it sought "the
production of documentary evidence that may be protected from disclosure by a
privilege," and was thus obligated to file a Rule 17(d) motion in limine before
serving the subpoenas.
Under the circumstances, the State knew that the sought-after information
might be protected by attorney-client privilege. It's failure to determine the non
existence of that privilege by filing a motion in limine under M.R. Crim. P. 17(d)
before serving the subpoenas renders those subpoenas deficient.
The entry is:
Timothy J. Bryant and Preti, Flaherty, Beliveau & Pachios, LLP's Motion is
granted and the subpoenas issued on February 26, are quashed without
prejudice.
8
STATE OF MAINE
vs
KAILE R WARREN, JR Docket No CUMCD-CR-2009-09716
16 GIN MILL LANE
WINDHAM ME 04062 DOCKET RECORD
DOB: 07/26/1959
Attorney: DANIEL LILLEY State's Attorney: MICHAEL COLLERAN
DANIEL G LILLEY LAW OFFICE
39 PORTLAND PIER
PO BOX 4803
PORTLAND ME 04112
LIMITED 01/21/2010
Attorney: LEE BALS
MARCUS CLEGG & MISTRETTA PA
ONE CANAL PLAZA SUITE 600
PORTLAND ME 04101-4035
WITHDRAWN 01/15/2010
Filing Document: INDICTMENT Major Case Type: FELONY (CLASS A,B,C)
Filing Date: 12/11/2009
Charge(s)
1 THEFT BY DECEPTION 12/17/2003 PORTLAND
Seq 8431 17-A 354 (1) (B) (1) Class B
2 MAINE REVENUE SECURITIES ACT VIOLATION 12/17/2003 PORTLAND
Seq 3526 32 10604(1) Class C
3 SELL OR OFFER UNREGISTERED SECURITY 12/17/2003 PORTLAND
Seq 761232 10401 Class F
Docket Events:
12/17/2009 FILING DOCUMENT - INDICTMENT FILED ON 12/11/2009
12/17/2009 Charge{s): 1,2,3
HEARING - ARRAIGNMENT SCHEDULED FOR 01/21/2010 @ 8:30 in Room No. 1
12/17/2009 Charge(s): 1,2,3
HEARING - ARRAIGNMENT NOTICE SENT ON 12/17/2009
01/06/2010 MOTION - MOTION TO QUASH SUBPOENA FILED BY THIRD PRTY ON 12/31/2009
Attorney: LEE BALS
FILED TO QUASH SUBPEONA SERVED ON TIMOTHY J. BRYANT, ESQ
01/06/2010 OTHER FILING - OTHER DOCUMENT FILED ON 01/05/2010
DA: MICHAEL COLLERAN
WITH ATTACHED EXHIBITS
01/06/2010 HEARING - MOTION TO QUASH SUBPOENA SCHEDULED FOR 01/05/2010 @ 3:00 in Room No. 10
Page 1 of 4 Printed on: 04/08/2010
KAILE R WARREN, JR
CUMCD-CR-2009-09716
DOCKET RECORD
NOTICE TO PARTIES/COUNSEL
01/06/2010 HEARING - MOTION TO QUASH SUBPOENA CONTINUED ON 01/05/2010
JEFF MOSKOWITZ, JUDGE
Reporter: TIMOTHY THOMPSON
01/06/2010 HEARING - MOTION TO QUASH SUBPOENA SCHEDULED FOR 01/28/2010 @ 1:00 in Room No. 8
JEFF MOSKOWITZ , JUDGE
NOTICE TO PARTIES/COUNSEL
01/06/2010 HEARING - MOTION TO QUASH SUBPOENA NOTICE SENT ON 01/06/2010
01/06/2010 ORDER - COURT ORDER ENTERED ON 01/05/2010
JEFF MOSKOWITZ, JUDGE
ORAL ORDER ISSUES THAT ANY MEMORANDA OR BRIEF TO BE FILED ON THE MOTION TO QUASH ISSUE
SHALL BE FILED WITH THE COURT BY 1/25/2010
01/15/2010 Charge (s): 1,2,3
MOTION - MOTION FOR WITHDRAWAL OF CNSL FILED BY COUNSEL ON 01/15/2010
01/15/2010 Party (5) : KAILE R WARREN JR
ATTORNEY - RETAINED ENTERED ON 01/15/2010
Attorney: LEE BALS
01/15/2010 Charge (5) : 1,2,3
MOTION - MOTION FOR WITHDRAWAL OF CNSL GRANTED ON 01/15/2010
ROLAND A COLE , JUSTICE
COPY TO PARTIES/COUNSEL
01/15/2010 Party(s): KAILE R WARREN JR
ATTORNEY - WITHDRAWN ORDERED ON 01/15/2010
Attorney: LEE BALS
01/21/2010 BAIL BOND - PR BAIL BOND FILED ON 01/21/2010
Date Bailed: 01/21/2010
988
01/21/2010 BAIL BOND - PR BAIL BOND COND RELEASE ISSUED ON 01/21/2010
PAUL E EGGERT , JUDGE
Date Bailed: 01/21/2010
988
01/22/2010 Party (5) : KAILE R WARREN JR
ATTORNEY - LIMITED ENTERED ON 01/21/2010
Attorney: DANIEL LILLEY
01/22/2010 Charge (5): 1,2,3
HEARING - ARRAIGNMENT HELD ON 01/21/2010
PAUL E EGGERT , JUDGE
Attorney: DANIEL LILLEY
DA: MICHAEL COLLERAN
Defendant Present in Court
DEFENDANT INFORMED OF CHARGES. 21 DAYS TO FILE MOTIONS TAPE 3619
01/22/2010 Charge(s): 1,2,3
PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 01/21/2010
PAUL E EGGERT , JUDGE
01/22/2010 HEARING - DISPOSITIONAL CONFERENCE SCHEDULED FOR 04/14/2010 @ 1:00 in Room No. 7
Page 2 of 4 Printed on: 04/08/2010
KAILE R WARREN, JR
CUMCD-CR-2009-09716
DOCKET RECORD
01/22/2010 Charge(s): 1,2,3
TRIAL - JURY TRIAL SCHEDULED FOR 05/10/2010 @ 8:30 in Room No. 11
NOTICE TO PARTIES/COUNSEL
01/26/2010 OTHER FILING - OTHER DOCUMENT FILED ON 01/25/2010
STATE'S SUPPLEMENTAL RESPONSE IN OPPOSITION TO MOTION TO QUASH SUBPOENA
01/28/2010 HEARING - MOTION TO QUASH SUBPOENA HELD ON 01/28/2010
JEFF MOSKOWITZ, JUDGE
TAPE 3631 INDEX 1446 TO 4502
01/28/2010 MOTION - MOTION TO QUASH SUBPOENA UNDER ADVISEMENT ON 01/28/2010
JEFF MOSKOWITZ, JUDGE
02/01/2010 OTHER FILING - OTHER DOCUMENT FILED ON 01/29/2010
Attorney: DARRICK BANDA
DEF'S MENORANDUM IN SUPPORT OF MOTION TO QUASH SUBPEONA
02/01/2010 MOTION - MOTION TO QUASH SUBPOENA DENIED ON 01/29/2010
JEFF MOSKOWITZ, JUDGE
COPY TO PARTIES/COUNSEL IT IS ORDERED:
THE DEFENDANT'S MOTION TO QUASH SUBPEONA IS DENIED. THE COURT WILL NOT STAY THE
PROCEEDINGS FOR PURPOSES OF APPEAL AS REQUESTED BY THE DEFENDANT.
02/03/2010 Charge(s}: 1,2,3
MOTION - OTHER MOTION FILED BY DEFENDANT ON 02/03/2010
MOTION TO RECORD GRAND JURY PROCEEDING
02/03/2010 Charge(s): 1,2,3
MOTION - OTHER MOTION GRANTED ON 02/03/2010
ROLAND A COLE , JUSTICE
MOTION TO RECORD GRAND JURY PROCEEDING TAPE IN SAFE
02/25/2010 Charge (s): 1,2,3
MOTION - OTHER MOTION FILED BY DEFENDANT ON 02/24/2010
DEFENDANTS MOTION TO CLARIFY COURTS RULING REGARDING DEFENDANTS MOTION TO RECORD AND
PRESERVE GRAND JURY TESTIMONY
03/01/2010 Charge(s}: 1,2,3
MOTION - OTHER MOTION GRANTED ON 02/25/2010
ROLAND A COLE I JUSTICE
DEFENDANTS MOTION TO CLARIFY COURTS RULING REGARDING DEFENDANTS MOTION TO RECORD AND
PRESERVE GRAND JURY TESTIMONY
ALL FUTURE GRAND JURY PROCEEDINGS ARE TO
BE RECORDED.
03/01/2010 Charge(s): 1,2,3
MOTION - MOTION TO QUASH SUBPOENA FILED BY THIRD PRTY ON 03/01/2010
03/01/2010 Charge(s): 1,2,3
MOTION - MOTION TO QUASH SUBPOENA GRANTED ON 03/01/2010
ROLAND A COLE , JUSTICE
COpy TO PARTIES/COUNSEL
03/12/2010 MOTION - MOTION TO QUASH SUBPOENA FILED BY THIRD PRTY ON 03/12/2010
JH
03/16/2010 Charge (s): 1,2,3
Page 3 of 4 printed on: 04/08/2010
KAILE R WARREN, JR
CUMCD-CR-2009-09716
DOCKET RECORD
HEARING - MOTION TO QUASH SUBPOENA SCHEDULED FOR 03/17/2010 @ 11:00 in Room No. 11
ROLAND A COLE , JUSTICE
NOTICE TO PARTIES/COUNSEL
03/16/2010 Charge(s): 1,2,3
HEARING - MOTION TO QUASH SUBPOENA NOTICE SENT ON 03/15/2010
03/18/2010 HEARING - DISPOSITIONAL CONFERENCE NOTICE SENT ON 03/18/2010
04/08/2010 Charge (s): 1,2,3
HEARING - MOTION TO QUASH SUBPOENA HELD ON 03/17/2010
ROLAND A COLE , JUSTICE
Attorney: DANIEL LILLEY
DA: MICHAEL COLLERAN
ATTY. PETRECELLI
04/08/2010 MOTION - MOTION TO QUASH SUBPOENA UNDER ADVISEMENT ON 03/17/2010
04/08/2010 MOTION - MOTION TO QUASH SUBPOENA GRANTED ON 04/07/2010
COPY TO PARTIES/COUNSEL
04/08/2010 ORDER - COURT ORDER ENTERED ON 04/07/2010
ROLAND A COLE , JUSTICE
TIMOTHY J BRYANT AND PRETI, FLAHERTY, BELIVEAU & PACHIOS, LLP'S MOTION IS GRANTED AND THE
SUBPOENAS ISSUED ON FRBRUARY 26, 2010 ARE QUASHED WITHOUT PREJUDICE
A TRUE COPY
ATTEST:
Clerk
Page 4 of 4 Printed on: 04/08/2010