Argued: June 12, 2018
Christopher K. MacLean, Esq. (orally), and Laura P. Shaw,
Esq., Camden Law LLP, Camden, for appellant Sharon Carrillo
T. Mills, Attorney General and Leanne Robbin, Asst. Atty.
Gen. (orally), Office of the Attorney General, Augusta, for
appellee State of Maine
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
Sharon Carrillo appeals from an order entered by the trial
court (Waldo County, R. Murray, J.) denying her
motion to disqualify the State's attorneys from further
participation in her prosecution for murder, 17-A M.R.S.
§ 201(1) (B) (2017). Carrillo contends that the two
Assistant Attorneys General representing the State should
have been disqualified based on their access to privileged or
confidential information obtained by the State's
violation of the subpoena process. We dismiss the appeal as
On March 15, 2018, Carrillo was indicted for depraved
indifference murder, 17-A M.R.S. § 201(1)(B), in
connection with the death of her ten-year-old daughter. Soon
after, the State subpoenaed records relating to Carrillo from
Carrillo's former school and former employer in New York.
After concluding that the State had obtained the records
through a violation of the subpoena process set out in M.R.U.
Crim. P. 17A, the court granted Carrillo's request for a
protective order and required that all documents produced in
response to the subpoenas be surrendered to the court to be
placed under seal.
Carrillo also moved to disqualify the State's attorneys
from participating further in her prosecution on the ground
that the prosecutors committed "serious and ethical
violations" in obtaining the subpoenaed information.
After a hearing, by order dated April 12, 2018, the court
denied the motion to disqualify, stating that
"disqualification ... is reserved for situations of
prior representation, conflicts of interest, prosecutorial
misconduct, and other unethical attorney behavior," and
that it was not persuaded that the prosecutors' error
rose "to that level of behavior which would warrant the
rather extraordinary remedy of disqualification."
(Quotation marks omitted.) Carrillo instituted this appeal to
challenge the court's denial of her motion to disqualify.
We first consider the State's motion to dismiss the
appeal as interlocutory. "It is well settled that
appeals, in order to be cognizable, must be from a final
judgment." State v. Lemay, 611 A.2d 67, 68 (Me.
1992). There is no dispute that Carrillo's case is far
from a final judgment. See Bond v. Bond, 2011 ME
105, ¶ 5, 30 A.3d 816 ("A judgment is final only if
it disposes of all the pending claims in the action, leaving
no questions for the future consideration of the court."
(quotation marks omitted)). Carrillo contends, however, that
the matter qualifies for immediate review pursuant to the
death knell exception to the final judgment rule, which
applies "when substantial rights of a party will be
irreparably lost if review is delayed until final
judgment." Estate of Markheim v. Markheim, 2008
ME 138, ¶ 13, 957A.2d 56 (quotation marks omitted). It
is Carrillo's burden, as the appellant seeking immediate
review, to demonstrate that the exception to the final
judgment rule applies. See Sanborn v. Sanborn, 2005
ME 95, ¶ 6, 877 A.2d 1075.
We have categorically held that the grant of a
motion to disqualify is immediately appealable because
"[t]he disqualification of an attorney will involve a
disadvantage and expense that cannot be remedied after the
conclusion of the case." Tungate v. Maclean-Stevens
Studios, Inc., 1997 ME 113, ¶ 5, 695 A.2d 564.
"[T]he question of whether a party is entitled to be
represented by counsel of the party's choosing must be
determined early in the case, or that right is lost."
Irving Oil Ltd. v. ACE IN A Ins., 2014 ME 62, ¶
14, 91 A.3d 594.
The denial of a motion to disqualify implicates no
such concerns, however, Tungate, 1997 ME 113,
¶¶ 4-5, 695 A.2d 564, because "if we determine
on review following the entry of a final judgment that
disqualification is required, then that action can occur
prior to a new trial, and both parties would be put in the
same position that they would have been in if
disqualification occurred following an interlocutory
appeal," Fiber Materials, Inc. v. Subilia, 2009
ME 71, ¶ 21, 974 A.2d 918. We have also warned that
"a blanket exception to the final judgment rule allowing
the denial of a motion to disqualify to be immediately
appealed would allow any appellant to force us to prematurely
review issues that would otherwise have to wait for the
complete record that accompanies a final judgment."
Id. ¶ 22. Such a practice would at once
"eviscerate" the final judgment rule, id.
¶ 23, and allow motions for disqualification to be
"abused for tactical purposes," Morin v. Me.
Educ. Ass'n, 2010 ME 36, ¶ 8, 993 A.2d 1097.
In Markheim, an isolated case involving a civil
claim, we considered the merits of a denial of a motion to
disqualify in an interlocutory appeal after determining that
the death knell exception to the final judgment rule applied.
2008 ME 138, ¶¶ 1, 13, 20-22, 957 A.2d 56. In that
case, the trial court denied a motion to disqualify the
attorney for the opposing party in which the moving parties
argued that the attorney was "privy to confidential
information" when he previously represented them in a
"substantially similar" prior litigation.
Id. ¶¶ 1, 4, 10, 21. We agreed to review
the appeal on the merits because the moving parties had
identified "specific examples" of the confidential
information the attorney had from his prior representation
that could harm them in the pending matter. Id.
¶¶ 20-21. Otherwise, we held, "the confidences
and privileged information revealed in the course of the
proceedings would become part of the record."
Id. ¶ 20; see Butler v. Romanova, 2008
ME 99, ¶¶ ...