Harmon Law Offices, P.C. v. Attorney General
991 N.E.2d 1098
Mass. App. Ct.2013Background
- Massachusetts AG issued two Civil Investigative Demands to Harmon Law Offices seeking information on Fremont-originated foreclosures and related eviction notices.
- Harmon challenged the CIDs; Superior Court denied relief, dismissing Harmon’s complaint for lack of good cause to set aside the demands.
- Harmon argued the demands intrude on attorney-client relationships and are protected by litigation privilege, and argued Harmon’s conduct did not fall within c. 93A liability.
- Fremont Order required notice to the AG and cooperation in restructuring or foreclosing on Fremont-originated loans; Fremont Order later applied to foreclosures.
- Two CIDs: Fremont CID (documents on Fremont-originated loans) and eviction CID (notices to quit and related docs post-August 7, 2010).
- Court analyzed whether the AG’s broad investigatory powers under c. 93A permit production of documents from Harmon and whether litigation privilege or attorney-client considerations shield production.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CID production violates attorney-client relationship protections | Harmon: demands impair attorney-client relationships and threaten confidentiality. | Commonwealth: demands civil, not criminal; no insurmountable injury; no basis to claim privilege. | No abuse; production required; not shielded by privilege. |
| Whether Harmon is subject to liability under c. 93A and relevance of liability to CID validity | Harmon argues not a trade or commerce entity; thus not subject to c. 93A. | Liability status irrelevant to CID relevance; documents may reveal 93A violations. | Documents relevant to possible 93A violations; liability status not prerequisite. |
| Whether the litigation privilege shields Harmon from CID compliance | Documents are communications before or in contemplation of proceedings and thus privileged. | Privilege does not apply as documents do not relate to contemplated or ongoing judicial proceedings. | Litigation privilege does not shield production. |
Key Cases Cited
- CUNA Mut. Ins. Soc. v. Attorney Gen., 380 Mass. 539 (1980) (interlocutory vs final orders; broad governmental investigatory power)
- Yankee Milk, Inc. v. Attorney General, 372 Mass. 353 (1977) (broad access for effective investigation; relevance test)
- Bodimetric Profiles, 404 Mass. 152 (1989) (heavy burden on recipient to show good cause to resist CID)
- Bob Brest Buick, Inc. v. Civil Investigator, 5 Mass. App. Ct. 717 (1977) (distinguishes final vs interlocutory CID orders and appellate posture)
- Visnick v. Caulfield, 73 Mass. App. Ct. 809 (2009) (litigation privilege analysis in context of contemplated proceedings)
- Kurker v. Hill, 44 Mass. App. Ct. 184 (1998) (privilege does not cover attorney conduct in general business matters)
- Fisher v. Lint, 69 Mass. App. Ct. 360 (2007) (privilege scope in pre-proceedings communications)
- McCarthy v. Civil Serv. Commn., 32 Mass. App. Ct. 166 (1992) (analogy of CID relief to protective orders under Rule 26(c))