Cabatit-Alegre v. Canders

• Court: Superior Court of Maine
• Decided: March 7, 2013
• Docket: YORcv-11-257
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT YORK,SS. CIVIL ACTION DOCKET NO. CV-11-257 . I JOSEPH N. CABA TIT -ALEGRE, ) l)ON -Yo,<- ,:, ~/1.3 in his capacity as Personal ) I Representative of the Estate of ) Thomas E. Cabatit-Alegre and ) JOSEPH N. CABA TIT -ALEGRE, ) ) Plaintiffs, ) V. ) ORDER ) STEPHEN A. CANDERS, ) and ) MAINE LEGAL ASSOCIATES, P.A. ) ) Defendants. )

I. Background

Plaintiff has brought a suit for negligent misrepresentation and breach of fiduciary

duty against Defendant for his representation of Ms. Julibel Cabatit-Alegre as personal

representative of the estate of Mr. Thomas E. Cabatit. Plaintiff alleges Attorney Canders

owed a duty to the Estate of Thomas Cabatit and to Plaintiff as a beneficiary. Plaintiff

asserts that Defendant breached those duties. Plaintiff is requesting discovery in the form

of documents pertaining to Defendant's representation in the underlying probate

proceeding. Plaintiff has served Defendant with a Notice of Deposition. Defendant has

moved the Court to Quash Plaintiff's Notice of Deposition on the basis of attorney-client

privilege, work product privilege, or other applicable privileges.

II. Discussion

A. Privilege

1 Defendant Moves to Quash Notice of Deposition on the basis of attorney-client

privilege, work product privilege, or other applicable privileges. The parties dispute

whether Defendant's representation of Ms. Cabatit-Alegre extended to the Estate itself or

the beneficiaries of the estate and therefore whether Defendant can claim privilege as a

defense to requests for documents by Plaintiff. Attorney-client privilege may be asserted

by an attorney on behalf of his client. M.R. Evid. 502(c). However, the attorney does not

retain this privilege separate from the client. Id. Attorney-client privilege attaches at the

formation of the attorney-client relationship. The Law Court defined this moment as

arising when

(1) a person seeks advice or assistance from an attorney, (2) the advice or

assistance sought pertains to matters within the attorney's professional

competence, and (3) the attorney expressly or impliedly agrees to give or

actually gives the desired advice or assistance.

Estate of Keatinge v. Biddle, 2002 ME 21, ~14, 789 A.2d 1271.

In the current case, the Engagement and Fee Agreement signed by Defendant and

Ms. Cabatit-Alegre names Ms. Cabatit-Alegre as the client and defines the scope of the

work as the probate of Mr. Thomas Cabatit's estate. The agreement specifies that the

work will be performed for Ms. Cabatit-Alegre and that she will pay an hourly rate.

Defendant was the attorney of Ms. Cabatit-Alegre in her role as personal representative

of the estate of Thomas Cabatit only. Neither the agreement, nor any actions alleged,

suggest Defendant held himself out as attorney for the Estate of Thomas Cabatit or the

beneficiaries thereof. There was no formation of an attorney-client relationship between

2 Defendant and either the estate of Thomas Cabatit or the estate's beneficiaries. Therefore,

the attorney-client privilege of Ms. Cabatit-Alegre remains intact.

B. Motion to Quash

Plaintiff has a right to discovery in the case and ordinarily the right to depose

Defendant under M.R. Civ. P. 30. However it would appear that the deposition would be

focused upon the communications deemed privileged. As discussed above, Defendant is

not required to produce documents or information where Defendant does have reason to

assert privilege .. Defendant's Motion to Quash is granted on the issue of privilege is

granted.

III. Conclusion

Defendant's Motion to Quash Notice of Deposition is granted in part. However, if

the Plaintiff intends to proceed on areas which are not privileged as defined above the

Motion is denied in part.

DATED: John O'Neil, Jr. Justice, Superior Court

3 ATTORNEYS FOR PLAINTIFF: LEEBALS ALLISON MARIE MCLAUGHLIN MARCUS CLEGG & MISTRETTA PA ONE CANAL PLAZA SUITE 600 PORTLAND ME 04101

ATTORNEYS FOR DEFENDANTS: JAMES BOWIE HILLARY BOUCHARD THOMPSON & BOWIE PO BOX4630 PORTLAND ME 04112