Greenberg v. State
26 A.3d 955
Md.2011Background
- Greenberg was charged in Montgomery County with five counts involving financial exploitation and abuse of a vulnerable adult, Evelyn Zucker, whom he had married.
- Prior to indictment, Zucker’s guardian petitioned to annul the marriage, invalidate deeds and wills drafted by Hessel, and remove Greenberg as Zucker’s healthcare agent.
- During the annulment hearing, Zucker and Greenberg testified with Hessel present; the proceedings raised attorney-client privilege issues.
- In the criminal case, the State sought to call Hessel as a witness; Greenberg’s counsel moved to exclude him on privilege grounds, arguing Hessel had represented both Zucker and Greenberg.
- The circuit court ruled that Greenberg waived the privilege by testifying at the annulment hearing and allowed Hessel to testify; the ruling was made without a detailed factual waiver inquiry.
- On appeal, Greenberg argued the waiver inquiry was insufficient and that the trial court failed to determine whether any exception to the privilege (e.g., crime-fraud) applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the waiver of attorney-client privilege was properly determined | Greenberg | State | Waiver was not properly determined; insufficient factual inquiry. |
| Whether the trial court should have conducted a fuller preliminary inquiry into the privilege | Greenberg | State | Yes; Court erred by not adequately exploring surrounding facts and waiver scope. |
| Whether the evidence should be excluded or the error deemed harmless | Greenberg | State | Not harmless; reversal warranted for new trial. |
| Whether the crime-fraud exception or other defeat of privilege could justify admission | Greenberg | State | Court did not determine applicability of crime-fraud; remand for new trial. |
| Whether Maryland Rule 5-104 governs the waiver inquiry and proper procedure | Greenberg | State | Rule 5-104 requires a threshold determination; record insufficient to meet it. |
Key Cases Cited
- Newman v. State, 384 Md. 285, 863 A.2d 321 (2004) (sets forth burden and need for preliminary inquiry after privilege invocation)
- Harrison v. State, 276 Md. 122, 345 A.2d 830 (1975) (articulates Wigmore-based elements of privilege)
- E.I. du Pont de Nemours v. Forma-Pack, 351 Md. 396, 718 A.2d 1129 (1998) (confidential communications scope and purpose of privilege)
- In re Criminal Investigation 1/242Q, 326 Md. 1, 602 A.2d 1220 (1992) ( burdens and scope of privilege in investigations)
- In re Grand Jury Subpoena: Under Seal, 415 F.3d 333 (4th Cir. 2005) (privilege invoked; need for factual inquiry and threshold findings)
- United States v. Schwimmer, 924 F.2d 443 (2d Cir. 1991) (requires detailed findings on privilege after invocation)
- In re Sealed Case, 737 F.2d 94 (D.C. Cir. 1984) (demonstrates need for findings on privilege elements)