Attorney v. Attorney Grievance Commission

CATHELL, Judge. Unnamed Attorney, appellant, appeals from an order of the Circuit Court for Baltimore County denying his motion to quash a subpoena, which was issued by Bar Counsel on behalf of the Attorney Grievance Commission of Maryland, appellee. The. circuit court also ordered production of certain documents relative to appellant’s representation of a client. We issued a writ of certiorari prior to briefing and argument in the Court of Special Appeals to address “[wjhether, the [ajppellant, a member of the Maryland Bar, can avoid the production of documents pursuant to a subpoena issued by Bar Counsel by asserting a privilege against self-incrimination.” 1 I. FACTS The present case stems from appellant’s representation of Ronald Price, a former high school teacher charged with various crimes arising out of his abuse of three students at Northeast High School in Anne Arundel County.

Mr. Price was convicted of three counts of unnatural and perverted ³⁹⁴ sexual practices and one count of fourth degree sexual offense on 8 September 1993 and sentenced on 14 October 1993 to imprisonment for twenty-six years on the convictions. The Court of Special Appeals affirmed those convictions in an unreported opinion. Mr. Price filed a complaint with the Attorney Grievance Commission alleging numerous instances of impropriety by appellant and the law firm in which he was a partner. In relevant part, Mr. Price’s complaint charged: “They may well be guilty of criminal negligence due to their avarice, incompetence and conflict of interests.” 2 Mr. Price’s complaint also alleged that he and his wife had signed three contracts with appellant and sought an accounting with respect to money appellant may have received for Mr. Price’s benefit from third parties.

On 28 March 1997, the Attorney Grievance Commission of Maryland served a subpoena on appellant’s attorney. The subpoena compelled appellant to produce “ALL FILES, FINANCIAL RECORDS, LEDGER CARDS AND BANK STATEMENTS pursuant to [his] representation of Ronald Price, including any contracts with any third parties in connection with [his] representation of Ronald Price.” (Emphasis added.) Appellant moved to quash the subpoena alleging that the documents sought “will deprive him of his right against self-incrimination, in violation of both the Self-Incrimination Clause of the Fifth Amendment to the Constitution of the United States and Article 22 of the Maryland Declaration of Rights.” 3 A hearing on appellant’s Motion to Quash was ³⁹⁵ held on 14 July 1997. The circuit court denied appellant’s motion. Appellant filed a Notice of Appeal on 12 August 1997.

The Attorney Grievance Commission, through Bar Counsel, petitioned this Court for a Writ of Certiorari to address whether appellant could prevent the production of the documents enumerated in the subpoena by asserting his privilege against self-incrimination. We granted a writ of certiorari on 16 October 1997 to address this issue prior to briefing and argument in the Court of Special Appeals.

II

FIFTH AMENDMENT PRIVILEGE AS TO DOCUMENTS The Fifth Amendment to the United States Constitution states that “[n]o person shall ... be compelled in any criminal case to be a witness against himself.” Article 22 of the Maryland Declaration of Rights similarly provides that “no man ought to be compelled to give evidence against himself in a criminal case.” 4 The Fifth Amendment was held to protect an individual from the compelled production of his or her private documents in Boyd v. United States, 116 U.S. 616 , 6 S.Ct. 524 , 29 L.Ed. 746 (1886). Boyd involved an in rem action against twenty-nine cases of plate glass alleged by the federal government to have been imported in violation of certain revenue statutes. A judge ordered the partners of the partnership that had im ³⁹⁶ ported the glass to produce the relevant invoice. The partners produced the invoice, but claimed the document could not be used against them on the ground that such use would result in a violation of the self-incrimination clause of the Fifth Amendment.

The Supreme Court agreed and held the invoice constituted a private paper that the government could not compel the partners to produce. The holding in Boyd , however, has been limited severely by two theories, referred to as the collective entity doctrine and the required records exception, as well as a Supreme Court doctrinal shift in the protection afforded by the Fifth Amendment. We shall examine these three limitations below. A. Collective Entity Doctrine The origins of the collective entity doctrine can be traced to two cases.

The first case, Hale v. Henkel, 201 U.S. 43 , 26 S.Ct. 370 , 50 L.Ed. 652 (1906), held that corporations have no Fifth Amendment privilege. In Hale , a corporation was under investigation. A grand jury summoned an officer of the corporation to produce the corporation’s books and records, which the officer refused to produce, claiming production of the documents would incriminate the corporation. The Court, holding that an officer of a corporation cannot assert a Fifth Amendment privilege for a corporation as to that corporation’s books and records, reasoned: If, whenever an officer or employee of a corporation were summoned before a grand jury as a witness he could refuse to produce the books' and documents of such corporation, upon the ground that they would incriminate the corporation itself, it would result in the failure of a large number of cases where the illegal combination was determinable only upon the examination of such papers.

Conceding that the witness was an officer of the corporation under investigation, and that he was entitled to assert the rights of the corporation with respect to the production of its books and papers, we are of the opinion that there is a clear distinction in this particular between an individual and a corporation, ³⁹⁷ and that the latter has no right to refuse to submit its books and papers for an examination at the suit of the state.... ... While an individual may lawfully refuse to answer incriminating questions unless protected by an immunity statute, it does not follow that a corporation, vested with special privileges and franchises, may refuse to show its hand when charged with an abuse of such privileges. Id. at 74-75 , 26 S.Ct. at 378-79 , 50 L.Ed. at 665-66 . In the second case, Wilson v. United States, 221 U.S. 361 , 31 S.Ct. 538 , 55 L.Ed. 771 (1911), the Supreme Court limited an individual’s ability to assert his Fifth Amendment privilege as to the books and records of a corporation, thus giving birth to what has become known as the collective entity doctrine.

In Wilson, a grand jury issued a subpoena to United Wireless Telegraph Company, compelling it to produce copies of letters and telegrams made by the president of the company, Wilson. The subpoena was served on Wilson, as president of the company, and two other persons. Refusing to produce the records before the grand jury, Wilson asserted that the requested documents would tend to incriminate him and therefore he was not required to produce them. The lower court disagreed, and he was found in contempt.

Citing to Hale , the Court held the custodian of corporate records did not have a Fifth Amendment privilege as to the contents of the records, even though the records tended to incriminate the individual. See also Dreier v. United States, 221 U.S. 394 , 31 S.Ct. 550 , 55 L.Ed. 784 (1911) (holding corporate officer subpoenaed to produce records of a corporation could not assert his Fifth Amendment privilege against self-incrimination with respect to the corporate records). In United States v. White, 322 U.S. 694 , 64 S.Ct. 1248 , 88 L.Ed. 1542 (1944), the Court examined whether an officer of an unincorporated labor union could assert a Fifth Amendment privilege in the contents of the union’s records in his possession. The Court held he could not.

Explaining the rationale behind the collective entity doctrine, the Court stated: ³⁹⁸ The constitutional privilege against self-incrimination is essentially a personal one, applying only to natural individuals ____ Since the privilege against self-incrimination is a purely personal one, it cannot be utilized by or on behalf of any organization, such as a corporation. Moreover, the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity. But individuals, when acting as representatives of a collective group, cannot be said to be exercising their personal rights and duties nor to be entitled to their purely personal privileges. Rather they assume the rights, duties and privileges of the artificial entity or association of which they are agents or officers and they are bound by its obligations.

In their official capacity, therefore, they have no privilege against self-incrimination. And the official records and documents of the organization that are held by them in a representative rather than in a personal capacity cannot be the subject of the personal privilege against self-incrimination, even though production of the papers might tend to incriminate them personally. Such records and papers are not the private records of the individual members or officers of the organization. Id. at 698-99 , 64 S.Ct. at 1251 , 88 L.Ed. at 1545-46 (citations omitted).

In Bellis v. United States, 417 U.S. 85 , 94 S.Ct. 2179 , 40 L.Ed.2d 678 (1974), the Court applied the collective entity doctrine to small partnerships. Beilis, the senior partner of a disbanded three-partner law firm, was served with a subpoena ordering him to produce the partnership records in his possession. The federal district court held an individual’s Fifth Amendment privilege did not extend to a partnership’s financial books and records. The Court of Appeals for the Third Circuit agreed, and the Supreme Court affirmed.

The Court noted a partnership, like a corporation, had an existence of its own apart from its members. It also recognized “that the privilege against compulsory self-incrimination should be ‘lim ³⁹⁹ ited to its historic function of protecting only the natural individual from compulsory incrimination through his own testimony or personal records.’ ” Id. at 89-90 , 94 S.Ct. at 2184 , 40 L.Ed.2d at 684 (quoting White, 322 U.S. at 701 , 64 S.Ct. at 1252 , 88 L.Ed. at 1547 (1944)). The Court concluded: “We think it is similarly clear that partnerships may and frequently do represent organized institutional activity so as to preclude any claim of Fifth Amendment privilege with respect to the partnership’s financial records.” Id. at 93, 94 S.Ct. at 2186 , 40 L.Ed.2d at 687 . This Court applied the collective entity doctrine to a professional association in In re Special Investigation No. 281, 299 Md. 181 , 473 A.2d 1 (1984).

In that case, a dentist formed a professional association in 1981. Prior to that time, the dentist operated as a sole practitioner. Pursuant to an investigation of alleged medicaid fraud, a grand jury served a subpoena duces tecum on the dentist as the custodian of records of the professional association. The subpoena required production of the medical records of specific patients for the years 1979 to 1982 and daily journal sheets from 1 July 1979 to 30 April 1983.

Relying on the Fifth Amendment privilege against self-incrimination, the dentist moved to quash the subpoena. The trial court denied the dentist’s motion. On appeal to this Court, we addressed “whether the dentist’s preincorporation patient records may be produced without violating his Fifth Amendment privilege against self-incrimination.” Id. at 194 , 473 A.2d at 7 (footnote omitted). The dentist conceded that he had no Fifth Amendment privilege as to the records of the professional association.

Holding the dentist did not have a Fifth Amendment privilege as to the patient records created while he was a sole practitioner and relying, in substantial part, on the Supreme Court’s discussion of the collective entity doctrine in Beilis, supra, we stated: The patient records here at issue were a part of the warp and woof of the professional association. We believe the trial judge was correct in his conclusion that title to those patient records passed to the professional association once the records were turned over to it. These are no longer the ⁴⁰⁰ records of the individual dentist. Hence, he has no Fifth Amendment right or privilege in those records.

Id. at 198, 473 A.2d at 10 . B. Required Records Exception Also limiting Boyd and explained in Wilson is the required records exception. The Wilson Court noted that the custodian of public records could not assert a Fifth Amendment privilege in those records even if the records would incriminate the public official. Although the Court did not utilize the required records exception to reach its holding, it went on to expand the doctrine to cover not only public officials and public records, but in some instances an individual’s business records.

The Court explained: The principle [of the required records exception] applies not . only to public documents in public offices, but also to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation, and the enforcement of restrictions validly established. There the privilege which exists as to private papers cannot be maintained. Wilson, 221 U.S. at 380 , 31 S.Ct. at 544 , 55 L.Ed. at 779 . The required records exception was applied to an individual’s business records in Shapiro v. United States, 335 U.S. 1 , 68 S.Ct. 1375 , 92 L.Ed. 1787 (1948).

William Shapiro, a wholesaler of fruit and produce, was served with a subpoena requiring him to appear before attorneys of the Office of Price Administration and produce the books, records, contracts, and other records of sales he had made for a certain month. Shapiro appeared before the attorneys and turned over the records. He ultimately was convicted of violating the Emergency Price Control Act. Shapiro asserted his conviction was in violation of the Fifth Amendment privilege against self-incrimination.

The Supreme Court, citing Wilson, noted the public documents exception to the Fifth Amendment applied not only to public documents, but also to private records required to be kept by law regarding transactions that are the ⁴⁰¹ subject of governmental regulation. The Emergency Price Control Act required Shapiro to maintain various records regarding the transactions of his business, so the required records exception applied and prevented Shapiro from claiming a Fifth Amendment privilege in the records. The Supreme Court described the appositeness of the required records doctrine in three cases decided on the same day: Marchetti v. United States, 390 U.S. 39 , 88 S.Ct. 697 , 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62 , 88 S.Ct. 709 , 19 L.Ed.2d 906 (1968); Haynes v. United States, 390 U.S. 85 , 88 S.Ct. 722 , 19 L.Ed.2d 923 (1968). In these cases, the Court established a three-part test to determine the applicability of the required records doctrine.

The Court stated that in order for the doctrine to apply, the purpose of the inquiry had to be regulatory, the information had to be obtained through records that the party asserting the privilege regularly maintained, and the documents had to have a public aspect. See Grosso, 390 U.S. at 65-66 , 88 S.Ct. at 712 , 19 L.Ed.2d at 910-11 . The Court held in each of the three cases that the elements were not met, primarily because the area of inquiry was not regulatory, but instead directed at inherently suspect activities. See also Curran v. Price, 334 Md. 149, 175 , 638 A.2d 93, 106 (1994) (holding that the required records doctrine was not applicable to Maryland’s “Son of Sam” statute because the statute was not regulatory but concerned an inherently criminal area).

We applied the required records exception in Andresen v. Bar Association, 269 Md. 313 , 305 A.2d 845 (1973). In Andresen , the Bar Association of Montgomery County sought an audit of an attorney’s accounts relating to funds received in connection with a real estate closing. A Maryland statute authorized any duly organized bar association to petition the court to order an audit of accounts relating to real estate transactions. 5 Andresen asserted his Fifth Amendment privi ⁴⁰² lege against self-incrimination would be violated if he were compelled to submit his accounts to the audit. The lower court ordered the audit and we affirmed.

In our opinion, we noted that there were three elements to the required records exception to the Fifth Amendment privilege against self-incrimination: (1) the records required to be kept are of the same kind customarily kept by a person engaged in such activity; (2) the records have “public aspects” beyond the mere fact that the Government desires the information and has formalized its demand by statute, rule, or regulation; (3) the records relate to an essentially non-criminal and regulatory area of inquiry. Id. at 324 , 305 A.2d at 852 . In addition to the Maryland statute giving bar associations authority to conduct an audit of real estate settlement records, Maryland Rule DR 9-102(B)(3) 6 required attorneys to maintain records of all funds and other property of a client over which a lawyer had possession. We acknowledged that unlike the “classic prototype of the required records doctrine,” id. at 327 , 305 A.2d at 853 , no pervasive regulatory scheme then existed regarding the reporting or inspection of client records and attorney accounts.

Nevertheless, we stated that the facts were “close enough in principle to warrant application of the doctrine.” 7 Id. at 327 , 305 A.2d at 853 . Applying the three elements of the required records exception, we stated: ⁴⁰³ First, the records required are, obviously, records customarily kept by lawyers, necessary to a proper accounting of monies held for others. Secondly, the records have “public aspects” making them at least analogous to public records. They detail the use of monies which the lawyer holds for others in an area properly regulated by the State---Thirdly, the records are not required of an “inherently suspect class” in an area permeated with criminal violations ....

Id. at 328-29 , 305 A.2d at 853 . Therefore, the required records exception prevented Andresen from asserting protection by the Fifth Amendment. C. The Supreme Court’s Doctrinal Shift A further shift in Supreme Court philosophy regarding the relationship between the Fifth Amendment privilege against self-incrimination and documents and records emerged in Fisher v. United States, 425 U.S. 391 , 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976). In that case, a taxpayer obtained from his accountant certain documents, which were then given to his attorney, who was assisting the taxpayer with an investigation being conducted by the Internal Revenue Service.

The Internal Revenue Service issued a subpoena demanding that the attorney produce the work papers, tax returns, and correspondence between the taxpayer and his accountant. The taxpayer claimed the accountant’s papers relating to the taxpayer were protected by the Fifth Amendment. The Supreme Court first addressed whether the client had a Fifth Amendment privilege in the various documents sought by the Internal Revenue Service. Holding the taxpayer had no such privilege, the Court stated: It is also clear that the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating.... ⁴⁰⁴ A subpoena served on a taxpayer requiring him to produce an accountant’s work papers in his possession without doubt involves substantial compulsion.

But it does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought. Therefore, the Fifth Amendment would not be violated by the fact alone that the papers on their face might incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial communications. The accountant’s work papers are not the taxpayer’s. They were not prepared by the taxpayer, and they contain no testimonial declarations by him.

Furthermore, as far as this record demonstrates, the preparation of all of the papers sought in these cases was wholly voluntary, and they cannot be said to contain compelled testimonial evidence, either of the taxpayers or of anyone else. The taxpayer cannot avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing, whether his own or that of someone else. The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or' control by the taxpayer.

It also would indicate the taxpayer’s belief that the papers are those described in the subpoena. The elements of compulsion are clearly present, but the more difficult issues are whether the tacit averments of the taxpayer are both “testimonial” and “incriminating” for purposes of applying the Fifth Amendment. These questions perhaps do not lend themselves to categorical answers; their resolution may instead depend on the facts and circumstances of particular cases or classes thereof. Id. at 408-10 , 96 S.Ct. at 1579-81 , 48 L.Ed.2d at 54-56 (citations omitted) (footnote omitted). ⁴⁰⁵ The Court then examined whether the act of producing the records and documents would constitute testimonial self-incrimination.

It noted that in order for the compelled production to constitute self-incrimination, the act of producing the papers prepared by an accountant and in the taxpayer’s possession had to be both testimonial and incriminating. The Court, holding that production of the documents was not testimonial, reasoned: The papers belong to the accountant, were prepared by him, and are the kind usually prepared by an accountant working on the tax returns of his client. Surely the Government is in no way relying on the “truth-telling” of the taxpayer to prove the existence of or his access to the documents. The existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the papers.

Id. at 411 , 96 S.Ct. at 1581 , 48 L.Ed.2d at 56 (citation omitted). The Court also noted that the existence of the documents sought were no more at issue than in the cases discussing the collective entity doctrine. With respect to whether the production of the documents themselves was incriminating, the Court noted that obtaining assistance from an accountant was not illegal. Likewise, possession of such documents was not incriminating.

The impact of Fisher is significant with respect to an individual’s Fifth Amendment privilege as to records and documents. After Fisher , the focus of the Fifth Amendment privilege with respect to records and documents became not the actual documents, but instead the act of producing the documents. 8 This shift in focus is exemplified by United States v. Doe, 465 U.S. 605 , 104 S.Ct. 1237 , 79 L.Ed.2d 552 (1984) (Doe I) and Doe v. United States, 487 U.S. 201 , 108 ⁴⁰⁶ S.Ct. 2341, 101 L.Ed.2d 184 (1988) CDoe II). See also Curran, 334 Md. at 175 , 638 A.2d at 106 (“[A] person may not claim the privilege based on Incrimination that may result from the contents or nature of the thing demanded.’ ”). In Doe I, a grand jury issued several subpoenas demanding the production of telephone records, bank records, and business records of numerous sole proprietorships owned by Doe.

The Court framed the issue as “whether, and to what extent, the Fifth Amendment privilege against compelled self-incrimination applies to the business records of a sole proprietorship.” Id. at 606, 104 S.Ct. at 1239 , 79 L.Ed.2d at 556 . After discussing Fisher extensively, the Court stated that Doe was not compelled to prepare the documents nor would he be forced to “restate, repeat, or affirm the truth of their contents.” Id. at 612, 104 S.Ct. at 1242 , 79 L.Ed.2d at 560 . The Court noted, however, that the subpoenas could compel Doe, the holder of the documents, to perform an act that could have testimonial aspects. Deferring to both lower courts’ factual findings that the act of producing the documents would involve testimonial seh-incrimination, the Court held Doe’s Fifth Amendment privilege against self-incrimination had been violated.

In Doe II, Doe was ordered by a federal district court to execute a number of consent forms that would have given the government access to foreign bank records. Doe refused and was found in contempt. The Fifth Circuit Court of Appeals affirmed without an opinion. See In re Doe, 812 F.2d 1404 (5th Cir.1987).

On appeal to the Supreme Court, that Court examined “whether the compelled execution of a consent form directing the disclosure of foreign bank records is inconsistent with the Fifth Amendment.” Doe II, 487 U.S. at 206 , 108 S.Ct. at 2345 , 101 L.Ed.2d at 194 (footnote omitted). Noting that the act of "executing the forms would violate the self-incrimination privilege if execution were both testimonial and incriminating, the Court held “neither the form, nor its execution, communicates any factual assertions, implicit or explicit, or conveys any information to the Government” and therefore ⁴⁰⁷ it was not compelled testimony. Id. at 215 , 108 S.Ct. at 2350 , 101 L.Ed.2d at 200 . Although the Supreme Court’s focus has shifted from the contents of the records themselves to the act of production, the Court has not limited either the required records exception or the collective entity doctrine.

They continue to retain their vitality even with respect to the act of production. In Braswell v.