Newman v. State

16-781(d), in conjunction considered with Rule which lists some that an applicant supply fourteen items must to Bar Counsel, appropriate is an requisite vehicle to ensure that the introspection attention and occur. require- The focus of the been, is on steps ments the conduct and the that have or must be, repetition offending taken avoid a conduct.

Accordingly, agree petitioner: we with the the appropriate sanction is an suspension, right indefinite to apply days. reinstatement after 60 ORDERED;

IT IS SO SHALL PAY ALL RESPONDENT TAXED BY COSTS AS THE COURT, CLERK OF THIS TRANSCRIPTS, INCLUDING ALL COSTS OF PURSU- 16-761, ANT TO MARYLAND RULE FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTOR- NEY GRIEVANCE COMMISSION AGAINST FRANCIS MACDOUGALL.

863A.2d 321 Elsa NEWMAN v. Maryland.

STATE of Term, Sept. No. 2004.

Court of Appeals Maryland.

Dec. 2004. Middletown, (David Jorgensen, Paul V. Barry H. Helfand A. Martella, Rockville; Wein, Greenbelt), brief, Michael A. petitioner. Baltimore, of the Warnken, Lytle, P. brief L. Michael

Byron Assoc., Attorneys’ petitioner, for Defense Maryland Criminal amicus curiae. (J. Curran, Jr., Atty. Joseph Kelley, Asst. Gen.

Edward J. Baltimore, brief), respondent. for Maryland, of Atty. Gen. CATHELL, C.J., WILNER, BELL, Argued before (Retired BATTAGLIA, C. ELDRIDGE HARRELL, John (Retired F. LAWRENCE RODOWSKY Assigned) Specially Assigned), JJ. Specially

BATTAGLIA, Judge. scope of the proper the issue presents

This case a curative instruction and whether attorney-client privilege eliciting testimony prejudice adequately counteracted Miranda rights. Because of a defendant’s the exercise about [here- between Elsa Newman communications find we Stephen Fried- attorney, and her former “Newman”] inafter fall “Friedman”], present case at issue man [hereinafter subject to the and are not attorney-client privilege within by the Court the decision exception, we reverse crime-fraud Court for case to the Circuit and remand the Special Appeals remand, court on we for the trial guidance trial. As a new adequately curative instruction whether the also will address improper by eliciting caused prejudice dispelled the Miranda rights. exercise Newman’s about the Background I.

A. Facts mar- “Slobodow”] Slobodow [hereinafter and Arlen Lars together, sons they had two and thereafter ried deteri- marriage Slobodow In Newman’s and Herbie. custody proceedings began divorce couple and the orated Maryland dur- County, Montgomery Court in the Circuit During represented by Friedman. ing which Newman in the of Newman representation course of Friedman’s friend, Mar- close asked Newman’s Friedman spring in his present “Landry”], to be Landry gery [hereinafter Lan- room.” in the for a “cool head meetings with Newman harming involving plans various discussed and Newman dry in while Friedman’s blaming Slobodow children and Newman’s presence. prepa- in 2001, 31, met with Friedman August Newman

On 4, 2001 before hearing September on custody ration for during her Ryan. point At one Judge James Court Circuit stated, know, I don’t Friedman, “You Newman meeting I I to kill Lars because only need to kill both children. have jail to and gowill Herbie, and then Arlen [Slobodow] can save criminal, I can at and he is a deserves because get what he save Herbie.” least Court Montgomery County Circuit disclosed

Friedman by Newman the statements made Judge Louise Scrivener Judge informed Judge Friday. After Scrivener previous disclosure, Judge Ryan announced Ryan of Friedman’s James custody during the disclosure of Friedman’s substance super- granted 2001. Newman was September on hearing as her counsel appearance and Friedman’s vised visitation postponed merits was The trial on the was stricken. record 28, 2002. January again and then until December 7, 2002, merits, January trial on the Prior to the house a.m., Landry entered Slobodow’s 3:30 approximately carrying pornographic window through an unlocked basement In Slobo- handgun. 9MM and Wesson materials and Smith two and fired bedroom, asleep found him bed she dow’s strug- right leg. once in the Slobodow hitting Slobodow shots mask, Landry fled off her Landry, pulling gled with downstairs, more was attacked once went Slobodow bedroom. Landry’s finger. bit Landry, during the altercation house. Landry left the County Police arrested morning, Montgomery

Later 9, 2002, January the State at her home. On Landry conspiracy charges against Newman Maryland filed to commit assault conspiracy murder and degree commit first following was arrested the degree, and Newman the first assault, burglary, Thereafter, Landry pled guilty to day. endangerment, reckless of a handgun use the commission of a felony, obliterating gun. serial number on a On 17, 2002, fifty years December she was sentenced to imprison- ment, twenty years with all but suspended. History

B. Procedural 4, 2002, April On appeared Newman in the Circuit Court for Montgomery County, Maryland and a plea entered of not guilty. On June the Circuit pretrial Court held a hearing which it considered the oral State’s Motion in compel Limine to testify Friedman to about the matters that Judge he had disclosed to Scrivener. The State called Fried- toman the stand. requested that the court clear the prior courtroom preserve Friedman’s confidentiality of Friedman’s prior to the court’s ruling on its attorney-client status under the privilege. After judge rejected request, that Newman asserted that the attorney-client privilege precluded testimony, Friedman’s for granted which she was a standing objection. At the close of testimony concerning Friedman’s relationship his with New- man and the Judge content his disclosure to Scrivener pursuant to Maryland Rule 1.6 of the Rules of Professional Conduct,1 the court that reasonably ruled Friedman acted in disclosing Ñewman’s statements under 1.6 Rule and that his disclosure attorney-client obviated Newman’s privilege regard- ing the disclosed statements. Maryland

1. provides: Rule of Professional Conduct 1.6 (a) lawyer A relating representation shall not reveal information to consultation, a client unless the client except consents after impliedly carry disclosures that are authorized in order to out the (b). representation, except paragraph and in as stated (b) lawyer may A lawyer reveal such information to the extent the reasonably necessary believes (1) prevent committing the client from a criminal or fraudulent act lawyer likely believes is to result in death or substantial bodily injury harm or in substantial to the financial interests or another;

property of (2) rectify consequences of a client's criminal or fraudulent act lawyer’s in the furtherance of which the services were used. August On the State called Friedman the stand order, at Newman’s trial. court Under Friedman testified as follows: during period

STATE: of time from two to When — seven, took, you aside from the anyone break was there in meeting you else the room with and Ms. Newman? —or I I spared Rogers secretary] FRIEDMAN: think Ms. [his and something probably let her do else. She popped and out, mostly just it but was me and Ms. Newman. stopped being

FRIEDMAN: She had rage, got very quiet, very thoughtful, little, and tilted her head her eyes up, rolled spoke a voice different her normal voice.

STATE: say? What did she said, know,

FRIEDMAN: She “You I don’t have to kill both only children. I to kill need Lars I because can save Herbie, go and then Arlen will jail get what he criminal, deserves because he is a and at I least can save Herbie.” your

STATE: response What when she said this to you? Well,

FRIEDMAN: this going had been day all —actual- ly it going had been on for years. two IWhat said to her is what I say is, would past, her and that “Ms. Newman, talking this is like about a bomb in airport.” consequences you say

“There are things when like that. You cannot case, involve in a you me murder and need to , you just frustrated, convince me that are and angry, and death,” scared to just and Ms. Newman was scared to death trial. before She would so be scared she couldn’t prepare for trial. I think that why me, firing she was she wouldn’t come in to meet with me because she was so going court, horrified of that is Iwhat wanted rational- ize, said, and I “You need to you just convince me that are otherwise, me, I convince or it, you need to say

upset —not Judge Ryan.” going am to tell you told you do think she many how times About STATE: killing Arlen considering [Slobodow]? that she was literally sat in [Landry] Margery and FRIEDMAN: She it, why I that is conspired to do my office and front of me my into office2 coming from Margery had to bar Friedman? happen, Mr. When did STATE: twice. happened It FRIEDMAN: ^{[*] [*] [*]} about that conversation? you tell us And could STATE: my sit in office— Margery and would Elsa FRIEDMAN: I conversations because Margery into the I invit[ed] in the room. a cool head thought I would be what wanted reading a I was happened first time it FRIEDMAN: terribly there, and Elsa was literally sat they report, they do during a time where —and it was distraught because it is almost ex mean District of Columbia —I this is the out somebody if swears of Columbia the District parte —in you, your away kids allegation, they take an abuse to six hearing in three “Well, you can have say, they months.” they agony because Elsa was in terrible

Well, in his case was she was convinced person that kids to the gave the testimony scope of his testimo- exceeded Friedman’s 2. We note that involving Landry hearing communications pretrial to include ny at the Rule 1.6. The pursuant to MRPC part of his disclosure were not jury presence proceeding out did not hold trial court attorney- protected if additional determine privilege. client a right, this was them, if she was abusing and sexually give they wouldn’t system, and up monstrous screw hearing. us a said, this, I I cut and as distraught over very is

So she women, is some and this abused represent in this —I women of slack abuse, people I a lot and cut kind of of the worst emotionally very appropriately to be expect I them because there in she sat sit there —and distraught, and she would something, reading report about me, I was front him and shooting about Margie talking to and she was know you an Arlen, I to have and will have framing excuse— it? do it, or how should we know, I do should you if— said, No. Ru- someone, “No. and she we hire Should you try because when [yourself] do it always said thann3 you get caught.” somebody, hire added). again (Footnotes once asserted Newman admission of Fried- privilege precluded attorney-client rejected. testimony, which the court man’s Mercer, the trial, also called Detective the State During the chief, Newman, testify in its case arrested officer who you advise her, rights [Newman] “And what did asked right had “That she responded, Mercer of?” Detective At time silent, attorney. to an which right she had the remain attorney. to consult with an that she would like she advised lobby attorney waiting the station Actually, had an she trial for a mistrial. The objected and moved her.” Newman jury the follow- gave and instead her motion court denied curative instruction: ing Elsa was accom- testimony that Newman

You have heard police at the appeared she by an when panied January 2002. station by you. Ms. to be considered

This is not evidence charges against presumed be innocent hiring pled Ostensibly referring who no contest to to Ruthann Aron 3. Aron, Alvarez, Ruthann kill her husband. See Rafael hit man in 1997 to Killed, Released Two Years to Have Husband Who Tried After Contest, 2B. Oct. No Senate Candidate Pleaded Sun, Balt. her. You have evidence that heard Ms. Newman’s ex- husband, Slobodow, 7, Arlen was shot January on 2002.

Ms. following shooting. Newman’s house was searched the 10, was this January fully She aware of all on 2002. It is presumption consistent with the of anyone innocence that appear under these circumstances would consult an attorney police protect at the station to his or her interests. 6, 2002, August jury

On the found guilty Newman of con- spiracy degree murder, commit attempted first first degree murder, assault first degree, burglary the first degree, handgun and use of a felony. the commission of a trial, Newman filed motion for a new which the court denied. 24, January 2003, On Newman four received concurrent sen- twenty years, tences of one concurrent sentence of fifteen years, upon required years release is super- serve five probation. vised

Newman filed a Notice of Appeal Special to the Court of Appeals. presented eight She issues review in the Court Special including of Appeals the denial of Newman’s motion to disqualify Office, Montgomery County Attorney’s State’s the admission of testimony, Friedman’s denial of New- man’s requested concerning bias, voir dire denial of Newman’s motion for improper testimony mistrial due to concerning her Miranda rights, the admission of character evidence in the chief, case in requested State’s the denial of Newman’s jury instructions, the denial of trial, Newman’s motion for new sufficiency of any the evidence to convict on Newman State, the counts. Newman v. 156 Md.App. 845 A.2d 71, (2003). of Special Appeals,

The Court in a reported opinion, held that Friedman’s was admissible under the crime- fraud exception attorney-client privilege because New- man Id. at evidenced an to commit intent future crimes. Moreover, 845 A.2d at 88. the court determined that based two-year relationship Friedman’s with Newman and his role court, as an officer of the presented the State sufficient expressed that the statements Newman’s evidence establish future acts. Id. intended by prejudice court also concluded that the caused was

improper testimony Detective Mercer Miranda and that Newman’s rights advised her under her at the station was cured. Id. at awaiting case, examining 845 A.2d at 93. After the facts of this prejudice court determined that the caused the reference of Miranda rights did not Newman’s exercise her exceed Id. at 59-60, instruction. 845 A.2d at 94. the curative There- fore, prejudice it held suffered Newman was cured Id. by the trial court’s instruction. 845 A.2d at 94-95. concluded, Special Appeals analyzing The Court after remaining presented, six issues none constituted revers- See judgment ible the of trial court. error affirmed State, Newman v. 20, generally 156 845 Md.App. A.2d 71 (2003). New- granted certiorari, writ petition

We Newman’s for of State, man v. 674, (2004), 381 Md. present- 851 A.2d 593 which following questions: ed the

1. Did trial court in allowing err Newman’s domestic attorney testify relations about attorney- confidential client communications?

2. Did the trial court abuse its in denying discretion New- Motion for upon eliciting testimony man’s Mistrial the State her Miranda about Newman’s of rights? exercise 3. Did the trial court abuse its discretion in allowing the State introduce various forms of inadmissible character evidence? denying

4. Did the trial court err in Newman’s Motion tor Trial? New 5. Did trial in denying court err requested Newman’s concerning potential voir dire bias of of members jury panel?

We hold that the trial court erroneously admitted Fried- testimony concerning man’s communications with Newman subject attorney-client that were privilege. Because we 298 Appeals Special of the Court the decisions

reverse basis for a new trial on the the case and remand Circuit Court other issues alone, not address the we need of that error trial court on for the guidance As appeal. in this raised however, the admission remand, we will address Miranda rights. of her Newman’s exercise about

II. Discussion compel- justification no that there was argues Newman are that she claims statements to disclose ling Friedman She asserts attorney-client privilege. subject relied privilege, client exception crime-fraud in the was never raised Appeals, Special upon the Court reason- only focused on the judge trial court because the trial Rule 1.6. disclosures under prior of Friedman’s ableness Special Appeals’s allowing the Court asserts Newman relationship damage the irreparably would to stand decision attorney and client. between State, in Harrison v. our decision relies on 830, (1975), premise 151-52, for the 345 A.2d 846-47

Md. testimony outside of the initially must hear trial that a court attorney-client privilege attaches whether jury to determine of in camera states that the use She specific communications. in U.S. Supreme Court approved has been proceedings (1989), Zolin, 105 L.Ed.2d 469 v. S.Ct. U.S. or attorney-client privilege application to determine privilege. exception to an adopt interpretation to the urges this Court Newman District of set forth the exception4 of the crime-fraud scope Service, in In re Public Appeals Court Columbia Defender Third of exception, provided in the Restatement as The crime-fraud 4. Governing Lawyers, as: is defined the Law apply to a communication attorney-client privilege does not occurring a client: when accomplished, obtain- (a) purpose, later lawyer for the consults a aiding person third engage fraud or ing in a crime or assistance to so, do or

299 (D.C.2003), only when exception applies that the 831 A.2d 890 client attorney are intended the communications the activities with the criminal or fraudulent directly advance fact that the asserts that the assistance. Newman attorney’s crime is not suffi- potential future communications concern claims that her statements destroy privilege. She cient to manifestations of the mental presence in were Friedman’s custo- struggled during the which she anguish strain and dy dispute with her ex-husband. denying in trial court erred also asserts that the

Newman had the State elicited motion for mistrial after her New Mercer, officer who arrested from Detective Susan of her Mi Newman’s exercise Landry, regarding man and opinion this points to Court’s rights. Newman randa (1998), she State, 314, A.2d 52 which Md. 722 352 Dupree v. has mention that a defendant that the mere interprets mean error. Miranda is reversible rights of his under been advised State, v. 317 Hardaway that in Moreover, contends (1989), this held that 160, Court Md. 562 A.2d jury if it would cause the given in error curative instruction asserts -Miranda silence. She post a defendant’s consider Ohio, Doyle v. 426 U.S. Supreme has held that the Court Gordon, (1976), 2240, and Brecht v. 49 L.Ed.2d 91 96 S.Ct. (1993), 123 L.Ed.2d 353 113 S.Ct. U.S. being is funda after Mirandized use of a defendant’s silence trial court’s also finds fault mentally unfair. Newman jury to draw it failed to advise the curative instruction because to make a statement to failure no inferences Newman’s argues that her protest or her innocence. She police necessarily implies that consult with an election to silent. right she invoked her to remain attorney-client privilege Concerning Newman’s assertion hearing, for an camera request and the denial of her consultation, (b) Regardless purpose at the time of uses of a client's engage or lawyer’s in or assist a crime advice or other services fraud. (2000, (Third) Governing Lawyers, § 82 of the Law Restatement Cum.Supp.). State counters that Newman failed to preserve argument her an in hearing for camera because not request she did one in trial court. argues The State also that Newman’s continu- ing objection inadequate preserve claim her that the examination of scope Friedman exceeded the trial pretrial ruling. Moreover, court’s the State asserts New- man privilege respect waived her to statements made to Landry Friedman was present during when the discussion. argues The State exception the crime-fraud privilege applies to Newman’s communications with Friedman. The State asserts that “sounding Newman used Friedman as a plan board” for her to kill sons her and husband and that she attempted plans. to involve Friedman in her The State claims that to overcome the crime-fraud exception Friedman would prevented have had to have Newman’s perpetration of the crime, which, State, according to the did not happen because place, Slobodow was shot. Because the attack took the State asserts that the communications must be to be in considered furtherance of that crime. if Even the admission of Fried- error, man’s testimony was the State asserts that it was present excluding harmless case because Friedman’s testimony would not jury’s have affected the verdict in the Finally, ease. the State claims that the failure conduct an hearing in camera was not a procedural error trial because the admissibility court determined the Friedman’s hearing presence jury. outside the of the The also argues State the decision grant whether to motion is left to the trial court’s discretion and that Detective Mercer’s statement was an isolated comment. The State also State, distinguishes State, v. Dupree supra, and v. Zemo (1994), Md.App. 646 A.2d 1050 because the trial court in present immediately gave case jury a curative instruc- tion. Application Attorney Privilege

A. The of the Client Scope Privilege

The Supreme recognized Court has client privilege as privileges “the oldest com- confidential munications known to common Upjohn the law.” Co. v. States, 383, 389, 682, 677, United 449 101 66 U.S. S.Ct. (1981). 584, L.Ed.2d 591 attorney-client privilege

The dates back in common the law (1558-1603) reign to of I probably originat- the Elizabeth Harrison, compulsion testify. ed in the of witnesses to 276 131, 1776, Md. at 345 A.2d at 836. it Until was not deemed to right a of attorney be the client but rather was that of the as a “point of honor” as an professional element of Id. behavior. year, In that “the House of Lords in the King- Duchess of (20 Howell, 355, (1776)) ston’s Trial Trials State 386 ruled attorney, her whom had exempted secrecy, she required respond to questions about his conversations with earlier, her some three decades though attorney even the had demurred, raising point the of honor.” Id. This development effectively “point ended the use of of the honor.”

During the eighteenth latter half of the century another theory evolved which recognized that the client held a privi- lege prohibited which the of by disclosure client secrets the attorney, rather than simply permitting attorney the keep “the client’s confidences as a professional prerogative.” Id. theory This rose to the forefront as “point the of honor” and soon receded was in throughout use the United States. Id., citing 8 §§ J. 2290-91 (McNaughton Wigmore, Evidence, Rev.1961); (2d ed.1972). C. § 78 McCormack, Evidence, 1862, MacCracken,

In in Fulton v. (1862), 18 Md. 528 this Court stated that is “[n]o rule better established than ‘that communication which a client makes to his legal for adviser purpose the of professional disclosed, advice or aid shall not be unless the consent of protection the client for whose ” rule was established.’ Id. at 542-43. We have stated that privilege an is accommodation of competing public interests of the to promote need candor in communications attorneys between and their clients and general testimoni- al compulsion to divulge relevant pursuit evidence justice. Harrison, truth and See 276 Md. at 345 A.2d at 837. It is so basic relationship of trust between an

302 that, although given express it is not

attorney and client exer- protection, constitutional it is essential defendant’s guarantees of counsel and freedom cise of the constitutional Id. from self-incrimination. “a rule of privilege understood be evidence prevents disclosure of confidential communication obtaining purpose

made a client his E.I. de Forma- du Pont Nemours & Co. v. advice.” See legal Pack, Inc., (1998), 396, 414, citing 1138 351 Md. 718 A.2d Levitsky County, Prince Md.App. George’s v. State, v. (1982). supra, In Harrison adopted

A.2d we attorney-client privilege: Wigmore’s Professor definition (1) (2) [any] sought from a legal kind is Where advice (3) such, in his as the professional legal capacity adviser (4) in confi- relating purpose, communications to made (5) (6) client, at by permanently are his insistence dence the (7) by legal himself or his protected disclosure (8) adviser, except [may] be protection waived. Wigmore 838, 135, 8 quoting 276 Md. at 345 A.2d at John H. (foot ed.1961) 2292, (McNaughton § at 554 rev. on Evidence omitted). in privilege The common law is codified Sec note Article of Proceedings tion 9-108 of the Courts and Judicial Code, states, Maryland may “A not be person which attorney-client privi testify to in violation compelled (1974, lege.” Repl.Vol.), § 2002 9-108 of the Courts Md.Code Proceedings Article. Judicial an attor privilege, although essential effective re Inves In Criminal relationship, is not ney-client absolute. (1992). 1/242Q, 11, 1220, 1,Md. tigation No. 602 A.2d 1225 326 “[o]nly attorney-client those communi We have observed assistance and made with pertaining legal cations confidentiality intention privi are within the ambit of the Nemours, de lege.” E.I. du Pont 416, A.2d at 351 Md. at 718 State, v. Lanasa 602, 109 Md. 71 A. 1058 1138. This Court (1909), observed, privileged, make the communications “[T]o subject- ... and to they professional must relate advice Id. 617, A. at 71 sought.” matter about which the advice

303 State, 252, 255, 242 A.2d Md.App. v. 4 also Morris 1064. See States, 633, 306 F.2d (1968), v. 559, quoting Colton United 561 505, 951, 9 L.Ed.2d 637, 83 S.Ct. cert. denied 371 U.S. (“[T]he (1963) essentially only to the sub privilege extends professional communicated to an stance of matters confidence.”). it privileged, considered

For a communication be E.I. du parties. to third See cannot be intended disclosure Nemours, 1139. have 351 Md. at 718 A.2d at We Pont de however, third or the parties, that disclosure to recognized, communication, does not parties during third presence of Pratt, v. automatically destroy privilege. See State (1979) (holding com A.2d 425-26 Md. for an psychiatrist to a preparation munications made privilege); protected attorney-client insanity defense are (1992) State, 552, 568, 602 683-84 v. 325 Md. A.2d Rubin to communications apply attorney-client privilege (declining attorney’s personal employ where private to a detective communication). motivated the relationship with the detective 1.6 Friedman’s Disclosure Under Rule Attorney-Client Privilege and the attorney-client privilege compelled addresses Whereas during judicial proceedings, client disclosure of client secrets confidentiality 1.6 of Professional Code relates under Rule confidentiality general duty to maintain the attorney’s duty aspects representation. attorney’s of all of a The client’s confidentiality maintain of a client’s communications is to the of Maryland forth in the Rules Professional Conduct set 1.6(a), provides: which Rule [hereinafter “MRPC”] relating representa- information to lawyer A shall not reveal consultation, tion of a client unless the client consents after in except impliedly for disclosures that are authorized order in carry representation, except to out the as stated (b). paragraph 1.6(a). however, subject, significant exceptions: It is to

MRPC (b) lawyer may A such information to the extent the reveal lawyer reasonably necessary: believes 304

(1) a criminal prevent committing to the client or lawyer likely act that is to result in fraudulent believes bodily injury or harm or in substantial death substantial another; property the financial or of interests (2) rectify consequences of a client’s criminal or lawyer’s fraudulent act the furtherance of which the services were used. 1.6(b).

MRPC relationship

There is a subtle between the confiden tiality evidentiary 1.6 and required under Rule rule of the attorney-client privilege. See Parler & Wobber v. Miles & (2000). P.C., 526, Md. Stockbridge, 359 756 A.2d 536 confidentiality given principle of effect both bodies of attorney-client privilege applies judicial law. The and other proceedings attorney may in which an as a be called witness required produce or otherwise evidence adverse to his 1.6, cmt.; Green, David A. Lawyers client. See MRPC as Challenge “TattletalesA to the Broad Application of 1.6, Attorney-Client Privilege Confidentiality and Rule (2004) 617, 20 Information, Ga. St. U.L.Rev. 621-22 [hereinaf “Green”]; Fischel, Lawyers Confidentiality, ter Daniel R. (1998). 1, 1 n. confidentiality 65 U. Chi. L.Rev. 6 The rule of 1.6, however, applies embodied in Rule all other situations 1.6, compulsion cmt.; not do involve the law. MRPC (Pa.Su Wood, 568, see also In re Estate 818 A.2d 573 (2003) 202, 641, per.2003); Bryan, In re 275 Kan. 61 P.3d Rule 1.6 also is not limited to “matters communicated in but all relating confidence the client also to information representation,” whether obtained from the client or through attorney’s independent investigation, 1.6, MRPC cmt., attorney-client privilege only com protects whereas the attorney. munications between the client See Harri son, at (requiring 276 Md. at 345 A.2d attorney-client communication be made the client for the attach); Green, 622; privilege v. supra, County Peters County, Comm’n Wood 205 W.Va. 519 S.E.2d (1999). Therefore, prohibits 1.6 of any Rule the disclosure client, pertaining representation information of a but at a operate not to render information inadmissible does Wobber, 689-90, judicial See Parler & 359 Md. at proceeding. subject to attor- Only 756 A.2d at 536. communications judicial ney-client privilege compul- cannot be disclosed under sion. case, Supreme

In a similar to the instant Court of case relationship Massachusetts addressed the between disclosure predecessor application under a to Rule 1.6 and of the attor- ney-client privilege in Purcell v. District Attorney District, (1997). 424 Mass. 676 N.E.2d 436 In Suffolk case, Purcell, Jeffrey an attorney employed by client Services, Legal Greater Boston threatened to burn down an apartment building recently where had client been em- ployed. Id. at 437. Purcell determined that he “should advise appropriate might authorities that engage in con- [his client] others,” duct harmful to police. informed the Boston Id. trial, At prosecution the client’s subpoenaed Purcell to testify. Id. at 438. Purcell then filed an action requesting Supreme attorney-client Court determine whether privilege prohibited testifying. his Id. determining 101(C)(3),5

In that a disclosure under DR 4— disciplinary prior adoption 1.6, rule effect of Rule did admissible, not make Purcell’s the court held that to permit such against disclosures to then be used the client at lawyers trial would cause to be “reluctant to come forward if they they know that the information may disclose lead to consequences adverse Moreover, their clients.” Id. at 440. the court noted that the of such use disclosures could chill the client, free discourse lawyer between the and the thereby limiting lawyer’s ability to thwart threats the future. Thus, Id. the court held that to prevent disclosure future harm attorney-client others not sufficient to privilege. overcome Id. at 440-41. 4-101(C)(3) permitted

5. Massachusetts DR disclosure of a client's inten- any Supreme tion to commit crime. The Massachusetts Court deter- mined that the result in that case would have been the same if then- proposed Rule 1.6 were in effect. that such Supreme Court with the Massachusetts agree We privi- attorney-client to obviate the is not sufficient disclosure attor- against the statements as evidence lege and admit the of the chilling effect client, only because of the ney’s not attorney, as advocate obverse, pits it but also because with a client, charged is adviser, when the client against the attorney- destroy the 1.6 disclosure to permit To a Rule crime. essentially attorney to waive empower the privilege and client repugnant is the client’s consent privilege without his client’s pro- attorney-client privilege purpose of to the entire Moreover, it attorney and client. candor between moting legal integrity “maintain the duty our would violate Gansler, 377 Md. v. Comm’n Attorney Grievance profession.” (2003). Therefore, hold that 548, we A.2d 574 835 Maryland 1.6 of the to Rule pursuant disclosure Friedman’s asser- not Newman’s did defeat of Professional Conduct Rules attorney-client privilege. tion Landry Made with

Communications of Friedman in the Presence two made dispute that statements parties do not Landry, about which Friedman presence by Newman attorney- of Newman’s testified, during the existence occurred statements were or that the relationship with Friedman client They also custody dispute. divorce and to Newman’s related in his to act retained Friedman dispute not that Newman do Rather, they diverge attorney on her behalf. capacity as an with Fried Landry’s presence sessions effect of about the Lars, “killing] and Newman discussed during man which she blamed, go to he would and then would be [Slobodow] Arlen pornography] [Slobodow's] ... evidence jail planting [of house.” observed, generally presence

As we have E.I. privilege. See destroy attorney-client third will party Nemours, 416, A.2d at 1139. The Md. at 718 de 351 du Pont however, does not constitute party, of a third presence mere attorney-client Because the privilege per se. waiver of the client, inquiry our essential is held waived privilege

307 “ conference reasonably understood the client ‘whether the par- of third notwithstanding presence to be confidential’ (R.I.1995), Kuzman, 263, A.2d 266-67 660 Rosati v. ties.” Cir.1984) (1st Goldstein, 849 724 F.2d v. quoting Kevlik § 91 at also original). See Evidence, (emphasis McCormack, (2d ed.1972) showing that the that a “mere (explaining 189 suffice, not attorney does from client to communication was must secrecy indicating the intention circumstances but the (E.D.Wash.1975) F.R.D. Rhay, v. appear”); Hearn to com- privilege is limited attorney-client (noting that “[t]he which are attorney and the client munications between the Bulow, confidential”); v. von State expressly intended to be (R.I.1984) (stating that the communication 475 A.2d confidential). to expressly if intended be privileged is of Rhode Island analysis Supreme Court We find the (R.I.1995), Kuzman, persuasive to be in v. 660 A.2d Rosati case, analyzed whether the In that the court point. on this be- parents during communications presence of a defendant’s destroyed any attorney-client son the and their tween reasonably the son Examining Id. at 266. whether privilege. confidential, the court to be understood the communications in a vital role his de- parents “occupied his observed that relationship son’s They facilitated the fense.” Id. at 267. offers of assistance their attorney, accepted with the other through legal behalf, confidants a “tense son’s and acted as his upon those facts to deter- proceeding.” Id. The court relied communica- intended that the unequivocally mine that the son that Id. The fact question tions in remain confidential. in played part no parents defendant’s parties third were the court’s conclusion. clear in at bar indicates Newman’s The record the case presence made in the understanding that communications Landry, as one of Landry remain confidential. of would friends, accompanied Newman oldest and closest Newman’s ... “keep things more attempt in an Friedman’s office focused, relationship ... between Friedman ease” “distraught” Friedman testified Newman Newman. losing custody of her children to their possibility over father. Margery He further testified that he “invited [Lan- dry] into the conversations because want- [with Newman] [he] thought ed what would be a cool [he] head the room.” Later, due to presence the content the conversations his Newman, stated, Landry between Friedman is “[T]hat why Margery Thus, I had to bar from coming my into office.” Landry’s Friedman exerted his control presence through over ability his invite her also exclude her from the meet- ings. acquiescence in suggestion

Newman’s Friedman’s Landry meetings his providing facilitate with her reasonably “cool head” cannot interpreted amounting be as privilege, suggests. waiver her as the State Although Landry office, accompanied Newman to Friedman’s is there nothing in the record to show that suggested Landry Friedman, participate meeting her and Fried man’s opposite indicates that the is true. We have “[o]nly held that client has power to waive the [the] attorney-client Wobber, privilege.” Parler & 359 Md. at 537; Cotter, City 756 A.2d at see Park v. College 309 Md. (1987). 1059, 1067 525 A.2d third party Where the behest, acting attorney’s Landry at the as present did case, party’s the client’s consent to the third pres continued ence does not privilege constitute waiver of the because the client, decision to third party include the was not made attorney. Therefore, but rather reasonably the Newman question confidential, understood the communications in to be subject attorney-client to the privilege, because of Fried Landry’s presence man’s control during meetings. over their Also, Kuzman, Rosati’s parents like Rosati v. supra, Landry as a of support acted source for during which, divorce and custody proceedings according to all par- involved, extremely ties accompanied were contentious. She Newman to court proceedings, directly communicated with direction, Friedman at Newman’s and assisted Newman in pursuing investigations of Newman’s allegations sons’ of sexu- proper Thus, al abuse with the authorities. we can no discern

309 significant distinction between the circumstances of Rosati present Consequently, Landry’s case. find the we presence during meetings Newman’s with Friedman not does destroy attorney-client privilege. Newman’s Exception Application

The Crime-Fraud and Its Special Appeals The Court of found that Friedman’s testimony about the content of his disclosure under MRPC Rule 1.6 was exception admissible under the crime-fraud attorney-client privilege. disagree the We with the court’s application exception. (Third)

The Governing Restatement of the Law Law yers exception defines the crime-fraud as: attorney-client privilege not apply does to a communi- occurring

cation when a client: (a) lawyer consults a purpose, accomplished, later of obtaining engage assistance to in a or fraud or aiding crime so, person a third do or

(b) Regardless of purpose a client’s the time consulta- tion, lawyer’s uses the advice or other engage services or or assist crime fraud. (Third) of Governing

Restatement the Law Lawyers, § 82 (2000, Cum.Supp.). explicitly We have never accepted the existence of exception attorney-client crime-fraud privilege Maryland Nevertheless, under law. agree we Supreme Court’s assessment that it would be an abuse privilege permit attorney-client privilege to “extend to communications ‘made for purpose getting advice for the commission of a fraud’ or a crime.” United States v. Zolin, 554, 563, U.S. 109 S.Ct. 105 L.Ed.2d (1989). Thus, hold we that the exception crime-fraud applies Maryland to exempt communications seeking advice or fraud, aid in furtherance of a crime or protection attorney-client privilege. case,

In present suggests the State opine we should that a statement of intention to commit a criminal or fraudu- equivalent lent act is to seeking or aid in advice furtherance of 310 attorney, brings that utterance

committing that crime an exception attorney-client privi- the to the within crime-fraud both opine join colleagues to so our lege. We decline than a required levels who have more federal and state to the intent commit a or fraud mere statement of crime privi- exception attorney-client trigger crime-fraud (1999) Roe, Richard e.g., See In re 69, 168 F.3d 71-72 lege. attorney’s that of an must be in (stating the use services apply); or exception of a crime fraud for the furtherance Cir.1996) Chen, (9th 1495, States v. 99 United F.3d 1503 Inc., (3d Liggett v. (same); 81, Group Haines 975 F.2d 90 White, Cir.1992) 267, States v. (same); 271 United 887 F.2d (“It (D.C.Cir.1989) not does suffice communications attorney-client may subject to a crime. To be related disclosure, they actually must have been communications In re act.”); with an intent to further an unlawful made (8th Cir.1977) In re Grand 326, (same); Murphy, 560 338 F.2d Cir.1987) 1223, (11th 1226 Jury Investigation, 842 F.2d re Corporation In International & Controls (same); Systems Cir.1982) (5th 1235, 693 1242 Litigation, Securities F.2d Madden, 25, (same); 705, 37 State v. 601 215 W.Va. S.E.2d (2004) (“The when exception play crime-fraud comes into an in order seeks the assistance of prospective client perpetrate a fraud on or party to commit crime or a third Service, court.”); 890, re Public In 831 A.2d 901 Defender (D.C.2003) (reasoning exception a crime-fraud create merely evidencing includes statements made an past fraud, to commit a crime or would intent undermine Purcell, actions); 676 attorney’s ability discourage such (“[The if the exception applies only N.E.2d at 441 crime-fraud] or in fur- prospective or client seeks advice assistance client Packaging Lane v. Sharp conduct.”); therance criminal (2002) Inc., Systems, 640 806 251 Wis.2d N.W.2d (“The invoking whether exception test for the crime-fraud is “ attorney’s cause there ‘reasonable to believe that ongoing were utilized unlawful services furtherance (Tex. State, v. ”), Henderson scheme.’ S.W.2d (“[W]e Crim.App.1997) cannot conclude that crime-fraud ongoing of by pendency the mere exception can be satisfied activity. The of future activity criminal or the mere threat to further the sought or used attorney’s services must be State, 937, 568 939- in v. So.2d activity question.”); Kleinfeld, Florida’s crime-fraud (stating that (Fla.Dist.Ct.App.1990) 40 attorney’s assistance exception required the client to seek the Nackson, fraud); or In the Matter furthering in the crime of (1989) 527, 1101, (observing that 114 555 A.2d 1105 N.J. consulted only applied where the client exception crime-fraud crime, to in of a attorney with the to obtain aid the commission or to avoid prosecution, the client to avoid criminal enable Paasche, Mich.App. v. 207 process); People lawful service of (1994) 698, 914, (stating 525 917-18 that establish N.W.2d that the communi exception crime-fraud it must be shown in of a criminal or fraudulent enter cation was furtherance Decker, 153 Ill.2d 180 Ill.Dec. prise), Marriage In re of (1992) (defining N.E.2d 1101 the crime-fraud 606 in with exception only applying as to communications fraud). permit state furtherance of a crime or To the mere attorney-client would privilege ment of intent to defeat exception swallowing privilege. in result application Special Appeals only The Court of addressed the communications disclosed exception the crime-fraud State, 1.6. Newman v. by Friedman under MRPC Rule 48-49, nothing A.2d at 88. in the Md.App. There indicating sought that or assistance record advice kill furtherance of a crime when she stated her intention to husband and that he dis her children.6 Friedman testified attempt closed with Newman in an to thwart communications plans. Moreover, her Friedman stated Newman’s threats typical hotly custody proceedings. were contested The State upon danger becoming relies Friedman’s fear that he was in “accessory an fact of if didn’t do [he] before the murder something” to show that Newman consulted Friedman indicating 6. Because we find no in the Newman's evidence record fraud, communications were made in furtherance of a future crime or proof required we need not address the burden of establish communication was furtherance of a future crime or fraud. Although or it “in furtherance” of a future crime fraud. shows serious, that Friedman viewed Newman’s threats as the testi- more, mony does little and does not upon relied the State pur- establish that Newman consulted with Friedman for the obtaining in furtherance of a future crime or pose assistance Therefore, fraud. the communication disclosed Friedman subject 1.6 is not pursuant to MRPC Rule the crime-fraud exception privileged. and is Appeals did not address

Although Special the Court application exception of the crime-fraud to the communications Landry’s presence, upon we will so do. The State relies testimony being that “sucked Friedman’s he felt he was plan” by Landry, they into Newman and and that “were their bringing relationship.” into this Those statements do [him] any not assistance in furtherance of a evidence intent seek crime, only but rather show that Friedman was uncomfortable position of communications. The the content the State’s alleged to assist Newman solicited Friedman her her it, scheme, requested accomplish supported or advice to is not in the Both the communication disclosed Friedman record. pursuant to Rule 1.6 and the conversations held in MRPC presence Landry privileged. of are

Harmless Error must then consider whether the committed We error beyond trial court was doubt. harmless reasonable 332-33, 61; Dorsey 352 Md. at 722 A.2d at v. Dupree, See (1976). State, Md. 350 A.2d 665 276 Newman’s unless, “upon independent convictions cannot stand own [our] record, conclude, beyond of is able to [this Court] review the doubt, way reasonable the error no influenced the 333, 61; 352 Md. at 722 A.2d at 276 Dupree, Dorsey, verdict.” 659, Md. at 350 A.2d at 678. cannot so We conclude. Although the State’s other evidence established a close Landry, only relationship between Newman Friedman’s testimony Landry’s connected Newman attack on Slobodow conspiracy. light In cir- possible established the case, cumstantial nature the State’s we cannot conclude that testimony was harm- the erroneous admission Friedman’s Therefore, doubt. hold that beyond less a reasonable we testimony in violation of admission of Friedman’s Newman’s error and attorney-client privilege reversible we reverse Special Appeals of the Court of with instructions decision Montgomery to remand the case to the Circuit Court County for a trial.7 new appropriate procedure altorney-client to determine whether the

7. exceptions applies respect privilege or one of its was not followed with admissibility testimony Newman’s communi- of Friedman's about Landry's presence. cations in “party seeking protection privilege First we note that the of ihe establishing bears the burden of its existence.” E.I. du Pont de Nem ours, 415, 1138; Investigation 351 Md. at 718 A.2d at In re Criminal 1/242Q, 11, invoked, privilege 326 Md. at 602 A.2d at 1225. Once the is preliminary inquiry the trial court should "make a and hear jury, looking presence of the relative thereto out at surround Harrison, ing facts and circumstances.” 276 Md. at 345 A.2d at 838; 5-104(c) (providing hearing preliminary see Md. Rule that a presence jury). preliminary matters be heard outside the of ihe In this inquiry, the trial court will decide as a matter of law whether the so, present privilege of the are if whether elements tion, the communica Nemours, exception, privileged. absent an E.I. du Pont de question Md. at 718 A.2d at 1138. This threshold must be requiring determined without the disclosure of the communication at Harrison, 838; 5-104(a) issue. 276 Md. at A.2d Md. Rule (requiring application governing privi strict of evidence rules lege). 104(a), interpreting upon Mary- In Federal Rule of Evidence which based, 5-104(a) Supreme land Rule is the United States Court stated attorney-client that an in review Zolin camera to determine whether the privilege exception applied permissible the crime-fraud was and/or 104(a). under Federal Rule of Evidence 2624, 491 U.S. at 109 S.Ct. at however, explained, 105 L.Ed.2d at 482. It that to be entitled review, party opposing privilege “present an in camera the the must support evidence sufficient to a reasonable belief that review [such] may yield exceptions applicability.” evidence that establishes the Id. at 574-75, party opposing 109 S.Ct. at 105 L.Ed.2d at 492. The the evidence, application privilege may any independent of the use the of privileged prima present content of the communication to its case facie exception applied. point preliminary that the crime-fraud At this in the inquiry, party opposing privilege required the proffer would be demonstrating evidence that the communication at issue was made object seeking directly ongoing furthering with the of assistance in an Purcell, 440; or future crime or fraud. See 676 N.E.2d at In re Decker, 1101; Paasche, Marriage 180 Ill.Dec. 606 N.E.2d at 917-18; Haines, 90; Jury Investiga- N.W.2d at 975 F.2d at In re Grand Testimony Mercer’s of Detective

B. Admission issues analyze the shall, guidance, trial court’s for the We Mi- testimony about Newman’s Mercer’s by Detective raised randa warnings. that Mercer testimony by Detective asserts

Newman her attorney waiting was was Mirandized and that her she post- an comment her station is indirect police at the of her commenting presence on the Miranda silence because fact that Newman re- necessarily implicates such, trial court’s argues As mained silent. Motion for inadequate and her instruction was curative improperly denied. Mistrial testimony is as Mercer’s part of Detective pertinent follows: rights? you advise her of her Did

STATE: Yes, MERCER: sir. DETECTIVE of? you did advise her rights And what STATE: right That she had the to remain MERCER: DETECTIVE she attorney. an At which time silent, right had she attorney. an to consult with that she would like advised lobby attorney waiting in the station had an Actually, she for her. Maryland and the Declara- Constitution

The United States guilty alike guarantee the innocent Rights tion of Const, (providing to remain silent. See U.S. amend. V right any criminal case compelled ... shall be person that “[n]o himself’); Declaration against Md. Const. to be a witness 1226; tion, Systems Corpora- & Controls F.2d at In re International 1242; Murphy, 560 F.2d at Litigation, 693 F.2d at In re Securities tion 338. hearing an Supreme that an in camera agree Court We admissibility allegedly determining appropriate mechanism for Although pretrial during the trial court held privileged trial. evidence concerning testimony the communications hearing Friedman's about 1.6, any proceeding hold outside MRPC Rule it failed to disclosed under admissibility Friedman’s presence jury determine the Landry's presence, which made in about the communications at trial. were first revealed

315 (“That ought compelled give 22 no man to be to Rights, art. case”).8 in a criminal An inherent against himself evidence that who invokes the guarantee of this one component shall remain free privilege against self-incrimination right. surrounding of such the exercise presumptions adverse (1973, § 9-107 Repl.Vol.), 2002 of the Courts See Md.Code of a (providing that failure Proceedings “[t]he Article Judicial proceeding in criminal on this basis does testify to defendant State, him”); Crosby see v. any presumption against not create State, 1102, (2001); 518, 528, A.2d 1107 Younie v. 366 Md. 784 (1974) 211, 233, 244, (stating 217 that no 272 322 A.2d Md. penalty right shall flow from the exercise one’s remain silent). importance privilege fundamental

Cognizant pillar of our adver- against self—incrimination—an essential adopted procedural certain system-the Supreme sarial Court right in safeguards protection of this the context ensure the Arizona, v. interrogation. of a Pursuant to custodial Miranda 436, 1602, (1966), 694 an individu- 384 86 S.Ct. 16 L.Ed.2d U.S. warned, prior any interroga- police custody al in must be silent, tion, anything he right that he has the to remain law, him in has says against can be used a court of he 479, attorney. Id. at 86 right presence of an S.Ct. 1630, viability 16 L.Ed.2d at 726. The of Miranda was States, 428, v. 120 reenforced Dickerson United 530 U.S. (2000). 2326, L.Ed.2d 405 S.Ct. 147 prosecution’s post- It is well use of established Miranda silence to obtain a conviction is a violation of the guarantee process. Fourteenth Amendment’s due Wain 284, 292, 634, 639, v. 106 88 wright Greenfield, U.S. S.Ct. 623, 630-31.(1986); Doyle, L.Ed.2d 426 U.S. at 96 S.Ct. at right 49 L.Ed.2d at 98. A defendant’s exercise of his remain silent includes his desire to remain silent until counsel is, course, applicable Maryland via the 8. The Fifth Amendment Malloy Hogan, Fourteenth Amendment of the U.S. Constitution. See v. 1489, 1492, (1964). 378 U.S. 84 S.Ct. L.Ed.2d 316 13,

has 474 at 295 n. 106 Wainwright, been consulted. U.S. 13, at 640 n. 88 L.Ed.2d at 632 n. 13. S.Ct. right

This has maintained that the to remain Court silent always liberally give “has been construed in order to fullest 8, immunity.” Crosby, to this 366 Md. at 527 n. 784 effect 8, State, 603, 607, quoting A.2d at 1107 n. Allen v. 183 Md. 39 (1944). 820, Notably, previously interpreted A.2d 821 we have Maryland’s in privilege against self-incrimination contained 22 Maryland Rights Article Declaration of to be more comprehensive than that Bill contained the federal Judge writing Rights. Eldridge, Hardaway for this Court State, (1989), 160, 161, v. 317 Md. 562 A.2d 1234 held that circumstances, jury, special instructing absent over the objection, defendant’s that the defendant has the constitutional right testify not to and that no adverse inference should be silent, drawn from his election to remain violated state com- holding, mon law and was In reversible error. so this Court departed Supreme jurisprudence provides Court which giving cautionary that the of a instruction over a defendant’s objection not his privilege against does violate self-incrimina- 333, 340-41, Oregon, tion. Lakeside v. 435 98 See U.S. S.Ct. (1978). 319, predicate 55 L.Ed.2d 326 this deviation, effectively which extends defendant’s constitution- protections, approach al was our State’s common law and “the generally this to respect taken Court defendants’ rights Hardaway, and entitlements criminal 317 cases.” 168, Md. at 562 A.2d at 1238. find that We our conclusion Hardaway dispositive is of the issue at bar. case,

In present objected to the admission of Detective Mercer’s about Newman’s exercise her counsel, right by implication, Fifth Amendment right against exercise of her Fifth Amendment self-incrimina- proffer tion. a legitimate The State also failed reason for Moreover, eliciting prejudicial testimony. Newman ob- jected the use of a curative instruction to counteract prejudice had As in Hardaway, she suffered. we stated “ right ‘It is unrealistic to assume that instructions on the ” always benign Hardaway, silence have a effect.’ 317 Md. at 3, at 1236-37 n. Lakeside v. quoting Oregon, 166 n. 562 A.2d (Stevens, at at 435 U.S. at S.Ct. 55 L.Ed.2d J., cases, bar, dissenting). In such one at where as the testimony regarding right a defendant’s exercise of the post-Miranda inadvertently at remain silent elicited best worst, intentionally the curative instruction is not Therefore, prejudicial sufficient to overcome the inferences. instruction, given objection we find that a curative over the defendant, fails to prejudice by testimony cure the caused post-Miranda right against about the exercise of the self- incrimination under the Fifth Amendment.9

III. Conclusion attorney’s discretionary hold that an We disclosure client communications under MRPC 1.6 does not obviate the client’s ability successfully attorney-client to later assert privilege. adopt exception require We also the crime-fraud and that the communications be made to an seeking his assistance or ongoing aid furtherance of an or future or fraud. crime Because neither disclosure under MRPC 1.6 or the crime- exception destroys privilege fraud present Newman’s case, testimony Friedman’s about his communications with Therefore, Newman was inadmissible. we reverse the deci- by Special Appeals sion the Court of and remand the case to the Circuit for Montgomery County Court for a new trial. THE

JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED THAT TO COURT WITH DIRECTIONS TO VACATE THE JUDGMENT OF THE COURT CIRCUIT FOR MONTGOMERY COUNTY AND REMAND THE CASE TO THE CIRCUIT COURT FOR A TRIAL. NEW COSTS IN THIS COURT AND IN THE COURT OF SPECIAL BE APPEALS TO PAID BY MONTGOMERY COUNTY. event, any again

9. In the curative instruction issue should not arise improper because the and should not be elicited in subse- quent proceedings. Result, and Dissents HARRELL, in Part A and J. Concurs RODOWSKY, JJ., CATHELL, B; WILNER, and from Part Dissent. HARRELL, by Dissenting Opinion J.

Concurring and there, join Judge Battaglia’s I reasons stated For the 11(A) through including part its opinion for the Court and, thus-, judgment; privilege) (addressing attorney-client (effectiveness of curative instruc- however, B join part I also silence) of pre-Miranda testimonial allusion regarding tion Judge dissent. Wilner’s WILNER, J., which CATHELL

Dissenting Opinion RODOWSKY, JJ., join Newman, lawyer, had been Elsa December

Since husband, action with her divorce involved in a contentious financial issues and custo- Slobodow, that included both Arlen custody children, Lars and Herbie. dy of their two battle, courts of both the District Columbia fought party claims County, embodied each Montgomery sexually the children. On physically had or abused the other occasions, claims in the District Newman filed at least two abusing children. One such sexually accusing Slobodow as police and resolved investigated by the D.C. complaint other, por- of child involving allegations “Unfounded.” FBI; it too was closed investigated by the nography, was finding 2001, following apparent an early In without action. court that Newman had abused or by District of Columbia children, custody of the given was neglected the Slobodow That visits. supervised was limited to children and Newman for Mont- by the Circuit Court arrangement was confirmed respect Trial with County September, in 2001. gomery in January custody was scheduled “permanent” County. Montgomery wait, luck or to trust her decided not apparently

Newman long- Instead, arranged for her process. she judicial into Margery Landry, to break Slobodow’s girlfriend, time him, kill and leave behind during night, home the dead that he had been material as evidence packets pornographic were The fact that the children sexually abusing his two sons. not or killed as well did might in and be hurt also the home indeed, carry out that attempted to Landry, to matter. seem in doing point in At some nearly and succeeded so. plan was January while Newman early morning hours of in black and conveniently Jersey, Landry, in dressed New into gloves, and broke Slobodow’s wearing a ski mask latex bed, twice, home, in at him lay as he shot assaulted Slobodow with a leg, him him over the head wounding once beat attempted telephone, attempted and to flee. When Slobodow him a telephone help, to call for she assaulted to reach another window, a escaping through and second time succeeded number, handgun with an serial leaving behind a obliterated fanny pack clip spent casings, two a empty an and shell ammunition, containing pornograph- a box of a nine millimeter Landry books. tape, pornographic magazines ic video arrested, assault, pled guilty burgla- with and charged ry, endangerment, handgun of a in the commis- reckless use obliterating number on a felony, sion of a the serial years, for 53 with all but 20 handgun, prison and sentenced to years suspended. conspiracy Landry’s part

In conduct was of a the belief case, custody pending the State affect outcome degree first charged conspiracy, attempted Newman with murder, assault, burglary, handgun. and unlawful use of a On evidence, on all counts and ample more than she was convicted prison, years suspended. all but 20 sentenced to life with those convictions and award proposes The Court reverse (1) it certain Newman a new trial because concludes threatening by presence admissions made (2) inadmissible, and her domestic relations were relatively by a that was imme- innocuous statement detective diately fully adequate curative instruction was dealt declaring prejudicial beyond remedy so as to other than be conclusions, view, my wrong, of in are mistrial. Both those I respectfully and therefore dissent.

A. Attorney’s Testimony The against presented categories The several of evidence State January 7 at Slobo- Newman. One concerned the events home; relationship dow’s a second dealt with the close be- at Landry. category and issue here tween Newman by people to various dur- involved statements made Newman custody litigation, of which were ing the divorce and some lawyer, Stephen at trial Newman’s divorce recounted examining In the issues raised Newman re- Friedman. greater appears than in garding testimony, that some context opinion necessary. the Court’s December, 1999, employed first in Friedman case, noted, which, in represent her her divorce as came neglect charges Maryland in both include collateral abuse August, In about three and the District Columbia. custody aspect trial in weeks before scheduled case, January, In she divorce Newman fired Friedman. lawyer replace him and fired the she had retained re- During employed period represen- Mr. Friedman. the first tation, friendly secretary, with Newman became Friedman’s December, Ashley. In had 2000—after she fired Sandra called Ms. Friedman and before she rehired him—Newman arranged During dinner with Ashley and have her. dinner, Ashley plans Ms. that she “had she informed said that her friend Specifically, murder her husband.” she Chicago,” Landry “had connections with the mob that was Landry trying gun Chicago to obtain untraceable, planned and that she to dress all black. She time that she intended to catch her husband on the said with him Washington when the children were not street serious, Ashley quite kill him. said that Newman seemed consequences, Ashley when warned about the even seriously. consulting attorney, an took the threat After however, Ashley report Ms. not to the matter to the decided authorities, but, February, had after Newman rehired Friedman, in an advised Friedman of the conversation e- she mail. February regarding in received another e-mail

Friedman associate, threat, this from Beth Mnd of one his the same Newman to an FBI Rogers. Rogers accompanied Ms. had test, presumably complaint in with her polygraph connection pornography. was involved child When that Slobodow test, Rogers said reported “failed” the she Newman that “she would kill herself and the kids.” several times Landry and point, possibly April, At some Newman Landry brought Newman often to were Friedman’s office. upset meetings with Friedman. Newman because recently given custody court had of the District of Columbia busy reading As children to Slobodow. Friedman was kind, Landry conversing and report of some Newman were Friedman, They talking were not to and he one another. part talking was not of the conversation. Newman was shooting framing They about Lars and Landry Slobodow. personally to do and not to hire spoke about the need the deed someone, alibi, plant pornographic to have an and to evidence so would said Slobodow’s house he be blamed. Friedman trying not to and that he was listen the conversation asked said that did stop. them to He he not take the conversation seriously point. at that That kind of conversation later oc- occasion, on Lan- whereupon curred another Friedman barred in his dry participating meetings with Newman. August Friedman met with Newman for sever-

On hearing Ryan for a on prepare Judge al hours to set before hearing 4. was to September be some the financial him, aspects Although, according of the divorce. Newman rage” during early part meeting, was “in a at some know, point got quiet thoughtful, she and and announced “You only I to kill both I to kill don’t have children. need Lars Herbie, jail I can and and go because save then Arlen will criminal, I get what he deserves because he is a can at said that least save Herbie.” Friedman comments such as before, that had been made he cautioned her she had an him in a murder and that he not involve could that.” court when she stuff like obligation “[said] to tell the it repeat any that he was not allowed responded if sue him he did so. and she would that Newman or said that he was now concerned

Friedman Slobodow, that, kill Lars or after Landry would either concluded consulting psychologist, an adviser and he ethics accessory fact to murder. Not an before the might that he be instead, Ryan, Judge contact the authorities or he desiring to hearing, early to court morning of the came on the Weinstein, judge, county the administrative Judge consulted Scrivener, judge who headed Judge him to the who referred Invoking Maryland Rule of Professional Family Division. her, includ- 1.6, recounted his concerns to Friedman Conduct kill Lars and blame He ing threat to Slobodow. Newman’s Rogers. had received from Ms. to her the e-mail he read matter, that would deal with the Judge said she Scrivener Judge Ryan’s court- following reported which Friedman to discussing room, hearing. After prepared participate to colleagues, Judge of her Scrivener matter with several hearing, of and informed Judge Ryan, called the middle Ryan to Judge him what had disclosed. returned of Friedman record, and, Judge what had court on the recounted Scrivener him, Mr. namely, that “Ms. Newman has told Friedman told custody of the children that if she does not obtain and others to the expose kill the children rather than them that she would hitman ... and that had hired a torture of Mr. Slobodow she is, Ryan him, Judge kill Mr. to kill to Slobodow.” obliged was to make that disclo- concluded that Mr. Friedman appearance. him to withdraw his permitted sure and Judge Rupp, prior to the preliminary proceeding In a before trial, objected to of her criminal commencement to him testifying, claiming that her disclosures Friedman’s that, although privileged. prosecutor responded The were court, spoken he had not with Friedman was then statements, the State prosecutors regarding Newman’s witness, him as a and that it desired calling had no intention of proceeding only put transcript into evidence the Nonetheless, public record. Ryan, which was Judge before proceeding testify preliminary at the was called Friedman his disclosure circumstances behind respect those could rule on whether Scrivener, the court Judge so proceeding transcript of the disclosures, in the as revealed After privilege. Judge Ryan, protected were before above, Judge Rupp, testimony, as recounted listening to that Scrivener, Ryan and rulings Judges consistently with the reasonably and that “he acted had concluded Friedman 1.6.” to do under [R]ule did what he needed proceedings before transcript part relevant The as a placed into evidence was Judge Ryan September concerned, Exhibit, by prosecutor stipulation. Joint revealed, substance, only what however, transcript that the had told him about Judge Judge Ryan said that Scrivener made regarding told her statements what Friedman had hearsay. She Newman, effectively quadruple-level which was directly to speak desire changed her view and indicated her him as a witness. Friedman and to call with Friedman testify or to unless speak prosecutor with the declined Judge Rupp, following his to do so. specifically ordered Judge Scrivener was ruling that the disclosure earlier (1) that an to the effect Friedman appropriate, entered order disclosing prosecutor to what he precluded was not from (2) Scrivener, Friedman, having Judge had disclosed to In accor- testify, required to to do so. subpoenaed been order, testified at trial and disclosed dance with that Friedman Judge told jury essentially previously to what he had Scrivener. legal precepts two that recognizes

The Court that there are actually by invoked Friedman need to be considered. The one (a) of 1.6. Section Maryland is Rule of Professional Conduct revealing infor- lawyer from effectively precludes that Rule of a client unless authorized relating representation mation to (b) part, In of the Rule. relevant by the client or section (b) information to the extent lawyer § to reveal authorizes “(1) necessary prevent lawyer reasonably believes act that committing a criminal or fraudulent the client from lawyer likely is in believes result death or substantial bodily harm.” precept The other is the ancient common law attorney-client privilege that has been codified reference in Code, (“A Maryland § 9-108 the Cts. & Jud. Proc. Article person may compelled testify not be in violation of the attorney-client privilege”). recognizes relationship

The Court there is “a subtle confidentiality required between the under Rule 1.6 and the evidentiary attorney-client privilege” rule of that “[t]he principle confidentiality given effect both bodies of law.” not validity The Court does seem to take issue with the of Friedman’s to Judge disclosures Scrivener under Rule 1.6 thus, assume, Scrivener’s, I accepts Judge Judge Ryan’s, Judge Rupp’s determinations that prop- Friedman acted erly making Judge under the Rule the disclosure to Scriv- thereby presumably ener. The Court accepts that Friedman reasonably necessary pre- believed the disclosure was Newman, Landry committing vent or from a criminal act likely to result in or bodily death substantial harm to another. Indeed, events remarkably showed rather the reasonableness of that belief. evidentiary privilege

The Court then detaches the from the and, relying principally Rule Attorney Purcell v. District District, (1997), 424 Mass. 676 N.E.2d 436 Suffolk that, concludes even if is appropriate disclosure under the Rule, attorney may prevented making be the same Although recognize disclosure court. I that the Rule and (see evidentiary privilege scope are not identical in Parler 671, 688-93, & v. Stockbridge, Wobber Miles & 359 Md. (2000)), but, A.2d 535-38 with all respect due Supreme Massachusetts, Judicial I Court can no discern justification holding whatever for a that an may, 1.6, properly communications, under Rule disclose client clear- ly confidential, judicial intended be to law or enforcement certainly authorities that almost in will result a criminal investigation may of the client and in well result criminal charges being client, that, against charges filed but if such brought, attorney may precluded making are be disclosures in court. self-same case,

Borrowing part in from the Massachusetts the Court (1) lawyers offers reasons for such a distinction: three will be to “if they reluctant make disclosures know that the informa- they may consequences tion disclose to lead adverse to their (2) clients,” permitting such disclosures court “could chill client, lawyer thereby the free discourse between the and the future,” limiting lawyer’s ability to thwart threats (3) attorney would, effect, in court testify allow the permit privilege belongs to waive the any can analysis; client. None those reasons survive critical indeed, really first two least the make little sense. conceive,

I cannot no explanation, the Court offers awhy lawyer who believes that a disclosure is necessary prevent bodily or death serious harm to another will feel free 1.6, that, knowing result, to make disclosure under Rule as a certainly his client will almost target be the of a criminal investigation, but will nonetheless be reluctant to make the may disclosure testify because be called to If court. he/she any empirical lawyers there is evidence that have withheld permitted disclosures that are and otherwise would be made under Rule 1.6 of a may because fear that their client be if they ultimately testify, harmed are called the Court has not expect cited it. I the Court has not cited such evidence it Similarly, because does not exist. the Court has evidence, cited no I expect exist, because it not does that “free lawyer discourse between the and the client” will somehow be lawyer, chilled if the who may properly “spill the beans” to law Rule, enforcement authorities testify under the is also free to in court. equally

The third reason offered is baseless. The evidentia- ry privilege always client, remains with the but privilege is not regarded absolute and has never been as absolute. There it, exceptions are exceptions apply, when those privilege client’s or either lost diminished.

326 regard is whether the only issue this

The “crime/fraud” well recognized be as in Rule 1.6 should exception embodied- why it I can no reason evidentiary privilege, and see under relating exception for disclosures not be. The should superven- bodily injury is based on or serious threats of death Bar by the American determination ing public policy—the 1.6, and approved and Rule Association, initially drafted which Court, Courts, including that have this Supreme by the State Rule that actually promulgated the and approved also in that circum- confidentiality to bend needs general rule of respect to the equal has force public policy That stance. Yes, terribly disadvantageous it can be privilege. testimonial court, or before lawyer disclose to have to a client his/her to kill or tribunal, threatened the client some other was and that the threat particular victim seriously injure permitting than credible, disadvantageous no more but that is information to law enforcement to disclose lawyer pursuing commencing toward with a view authorities distinc- Drawing client. investigation against the criminal law, muddles the simply to draw proposes that the Court tion lawyers in a most difficult area guidance gives no clear counterbalancing no consistency, and achieves out for cries objective. useful consid- that, give appropriate fails to the Court

Apart Ashley’s Ms. presented jury. just what was eration by any attorney-client clearly protected not testimony was conversation testimony regarding the Friedman’s privilege. Landry April, that occurred in Newman between view, by privi- also, protected not the testimonial my was contrary is and, indeed, conclusion to the the Court’s lege, privilege. Friedman with its own definition inconsistent to communications made testifying not as Landry him, Newman and as to a conversation between but defines the testimonial simply overheard. Court that he disclosure of a confiden- “prevents a rule that privilege as to his made a client tial communication added). The (Emphasis advice.” obtaining legal purpose communica- fact that the ignores or overlooks Court either kind. meeting not of that were April, at that tions made both sorry say, is flawed I am opinion, The Court’s makes little a view that factually espouses legally and sense.

B. Post-Miranda Silence trial, day fourth the State August On testify. Mercer Mercer to Detective called Detective Susan report of a following home responded to the Slobodow investigator in the case. She shooting and was the lead Landry and the various about the arrest testified first Landry’s finger. hand and She then injuries noted on Newman, upon her arrest about her first contact asked colloquy: This was the relevant January on 10. with Ms. Newman?

Q you any And did have conversation A Yes.

Q Okay. you rights? Did advise her of her Yes,A sir. of?

Q rights you And what did advise her silent, right had the right A That she had the to remain she would attorney. to an At which time she advised she an attorney. Actually, with an she had like consult lobby for attorney waiting in the station her. for a mistrial based on the immediately

Newman moved deci- regarding volunteered statement Newman’s Detective’s attorney. recognized an The court the error sion to consult necessary but that a mistrial was not and instead concluded gave following curative instruction: accom-

“You heard that Elsa Newman was have attorney appeared police at panied by an when she January 2002. station by you. Ms. Newman

This is not evidence be considered You presumed charges against is innocent of the her. be x-husband, Arlen heard evidence that Ms. Newman’s have January 2002. Slobodow was shot on Ms. following Newman’s house was searched shooting. January 10, She was aware of this on It fully 2002. presumption consistent with anyone innocence that under appear these circumstances would and consult with police an station to protect his or her interests.” always have trial judges

We accorded wide discretion in ruling on They motions for mistrial. position are the best error, especially error, determine whether an an evidentiary dramatically is so prejudicial require as to a mistrial —to be beyond remedy by a Only curative instruction. in the rarest second-guessed instances have we a trial judge’s determina- regard. tion in that Citing wholly cases that are inapposite, holds, law, brief, the Court as a matter of that the unsolicited me, remark is of that Detective Mercer character. To Yes, is utter nonsense. it was error. That point. is not the rather, point, brief, is that this unsolicited remark was immediately corrected a clear and responsive curative instruction, trial, that it day occurred on the fourth and that the overall against evidence than was more abun- dant, not, fact, if overwhelming. simply There is no ration- al basis for concluding that Detective Mercer’s remark so thoroughly uncorrectably tainted the trial that a mistrial was required as a matter of law. We have allowed far more grievous errors to be corrected curative instructions. But Judge for part dissent, Harrell’s concurrence this of the which deprives the Court’s opinion any prece- this issue of value, purported ruling dential its nothing would sow but confusion; it could not just be cabined to remarks about post- Miranda Every that creeps silence. error into a trial would subject mistrial, become the of a motion and trial judges acting they would if peril grant be their did not the motion. reasons, For these I judgment would affirm Circuit Court.

Judge CATHELL and Judge RODOWSKY authorize me to they join state that in this dissent.

Case Details

Case Name: Newman v. State

Court Name: Court of Appeals of Maryland

Date Published: Dec 13, 2004

Citation: 863 A.2d 321

Docket Number: 31, September Term, 2004

Court Abbreviation: Md.