Board of Overseers of the Bar v. Warren
2011 ME 124
| Me. | 2011Background
- Duncan, a Verrill Dana partner, was found writing checks from client accounts to himself totaling $77,500 over three years.
- Warren, Kilbreth, Altholz, Googins, Clement, and Browne, the firm’s executive committee, learned of Duncan’s misconduct in mid-2007 and delayed broader action.
- Klebe’s later investigation uncovered additional misappropriations from other client accounts.
- Libby, the firm’s in-house counsel, conducted an internal investigation starting after a preservation letter in October 2007.
- The Board of Overseers subpoenaed Libby’s materials; Verrill Dana sought to quash claiming lawyer-client privilege and work product; the single justice initially denied the motion, then the matter was remanded and later granted to quash.
- Bar Counsel charged Warren and the executive committee with violating Maine Bar Rules 3.2(e)(1) and 3.13(a); a single justice found no violation under those rules, and Bar Counsel appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the crime-fraud exception pierces the lawyer-client privilege | Bar Counsel | Verrill Dana | Crime-fraud exception does not apply to destroy privilege on remand; privilege affirmed. |
| Whether the six attorneys violated Rule 3.2(e)(1) by delaying reporting | Bar Counsel | Verrill Dana | No violation; subjective belief did not show a substantial question of honesty/trustworthiness. |
| Whether the six attorneys violated Rule 3.13(a)(1) by lacking reasonable measures to ensure compliance | Bar Counsel | Verrill Dana | Violation found; firm failed to implement measures to ensure conformity with the Code. |
| Whether Rule 3.13(a)(3)(ii) duty to prevent/mitigate harm was satisfied | Bar Counsel | Verrill Dana | No reversible error; subsequent actions could not have mitigated consequences given the timing. |
Key Cases Cited
- In re Motion to Quash Bar Counsel Subpoena, 982 A.2d 330 (Me. 2009) (test for crime-fraud exception; privilege analysis)
- Bean v. Cummings, 939 A.2d 676 (Me. 2008) (mandate scope cannot be enlarged after appeal)
- Bd. of Overseers of the Bar v. Brown, 623 A.2d 1268 (Me. 1993) (standard for reviewing factual findings and compliance with ethics rules)