Greenberg v. State

³⁹⁹ BATTAGLIA, J. Appellant, Roger Mandel Greenberg, seeks reversal of his convictions in the Circuit Court for Montgomery County, arguing that the trial judge erred in permitting Greenberg’s former lawyer, Mark Hessel, to testify as a part of the State’s case-in-chief without conducting a preliminary inquiry regarding the “surrounding facts and circumstances” of Mr. Hessel’s representation of Greenberg, the “complete circumstances related to [Greenberg’s] possible waiver of privilege,” and “the scope of the prosecution’s proposed use of the evidence at trial.” Greenberg raised the following issue in his brief in the Court of Special Appeals: Did the Circuit Court commit prejudicial error in admitting the testimony of appellant’s former civil attorney in violation of the attorney-client privilege when it erroneously held that appellant categorically waived attorney-client privilege at trial by testifying in an earlier annulment proceeding about communications with his attorney and by failing to object to the attorney’s testimony at the same proceeding? While the appeal was pending, we granted certiorari, Greenberg v. State, 418 Md. 397 , 15 A.3d 298 (2011), on our own initiative. Before us, the State responds, asserting the following question as relevant: To the extent preserved, should this Court affirm Green-berg’s convictions either because the crime-fraud exception to the attorney-client privilege made the challenged testimony admissible or because any error in the trial court’s waiver rulings was harmless beyond a reasonable doubt? Greenberg was indicted and tried before a jury in Montgomery County on five counts 1 related to the care of Evelyn ⁴⁰⁰ Zucker, to whom Greenberg had been married.

After the marriage, on November 26, 2008, but prior to Greenberg’s indictment, in July of 2009, Robert M. McCarthy was appointed as guardian for Ms. Zucker. Thereafter, Mr. McCarthy initiated proceedings seeking to annul Greenberg’s marriage to Ms. Zucker, void a deed prepared by Mr. Hessel that conveyed a tenancy by the entireties interest in Ms. Zucker’s home to Greenberg, invalidate a will (prepared for Ms. Zucker ⁴⁰¹ and drafted by Mr. Hessel), which would benefit Greenberg, and to remove Greenberg as Ms. Zucker’s healthcare agent. During the annulment hearing, Mr. McCarthy called Green-berg and Mr. Hessel as witnesses. During the subsequent criminal proceeding against Greenberg, the State sought to call Mr. Hessel as a witness in its case-in-chief.

Greenberg’s attorney moved to exclude Mr. Hessel’s testimony on the basis of attorney-client privilege, asserting that Mr. Hessel “was at one point in 2008 representing both ... Ms. Zucker and Mr. Greenberg” and that there was “certainly the issue of attorney-client privilege.” Whether this invocation was sufficient to trigger the need for the Circuit Court to conduct an exploration is the first impediment raised by the State, 2 based upon our comment in footnote seven of Newman v. State, 384 Md. 285 , 863 A.2d 321 (2004) that, “the party seeking the protection of the [attorney-client] privilege bears the burden of establishing its existence,” and that, “[o]nce the privilege is invoked, the trial court should ‘make a preliminary inquiry and hear testimony relative thereto out of the presence of the jury, looking at the surrounding facts and circumstances.’ ” Id. at 313 n. 7, 863 A.2d at 337 n. 7 (citations omitted). The embodiment of the common law attorney-client privilege is contained in Section 9-108 of the Courts and Judicial Proceedings Article, Maryland Code (1974, 2006 Repl. ⁴⁰² Vol.), which succinctly provides that “[a] person may not be compelled to testify in violation of the attorney-client privilege.” The privilege operates as a “rule of evidence [to] preven[t] the disclosure of a confidential communication made by a client to his attorney for the purpose of obtaining legal advice.” Newman, 384 Md. at 302 , 863 A.2d at 330 (citations omitted). In Newman , we explored the deep historical roots of the attorney-client privilege: The Supreme Court has recognized the attorney-client privilege as “the oldest of the privileges for confidential communications known to the common law.” The attorney-client privilege dates back in the common law to the reign of Elizabeth I (1558-1603) and probably originated in the compulsion of witnesses to testify.

Id. at 300-301 , 863 A.2d at 330 , quoting Upjohn Co. v. United States, 449 U.S. 383, 389 , 101 S.Ct. 677, 682 , 66 L.Ed.2d 584, 591 (1981). Even before Elizabeth I’s reign, the “notion that the loyalty owed by the lawyer to his client” operated to disable the lawyer as “a witness in his client’s case [was] deep-rooted in Roman law,” a notion which may have greatly influenced English common law. Kenneth S. Broun, McCormick on Evidence § 87, at 386-87 (6th ed.2006). In Newman , we also pointed out that, initially, the attorney-client privilege was a right held solely by the attorney, not the client, as a “point of honor.” 384 Md. at 301 , 863 A.2d at 330 (“Until 1776, it was not deemed to be a right of the client but rather was that of the attorney as a point of honor as an element of professional behavior.”).

In 1776, however, the ideology underlying the privilege underwent a dramatic shift when the House of Lords compelled an attorney to testify in the Duchess of Kingston’s trial, despite the fact that the attorney raised the point of honor, effectively ending it: In that year, “the House of Lords in the Duchess of Kingston’s Trial (20 Howell, State Trials 355, 386 (1776)) ruled that her attorney, whom she had exempted from secrecy, was required to respond to questions about his ⁴⁰³ conversations with her some three decades earlier, even though the attorney had demurred, raising the point of honor.” This development ended the use of the “point of honor.” Id. at 301 , 863 A.2d at 330 (citations omitted). Thereafter, the attorney-client privilege was conceived as one held by the client: During the latter half of the eighteenth century another theory evolved which recognized that the client held a privilege which prohibited the disclosure of client secrets by the attorney, rather than simply permitting the attorney to keep “the client’s confidences as a professional prerogative.” This theory rose to the forefront as the “point of honor” receded and soon was in use throughout the United States. Id. (citations omitted).

Indeed, at least as far back as 1862, we have characterized the attorney-client privilege as one protecting confidential communications between a client and his or her lawyer that “shall not be disclosed, unless by the consent of the client for whose protection the rule was established.” Fulton v. Maccracken, 18 Md. 528, 543 (1862). We have also explained that, though not given “express constitutional protection,” the attorney-client privilege is “essential” to the “exercise of constitutional guarantees”: The attorney-client privilege is basic to a relation of trust and confidence that, though not given express constitutional security, is nonetheless essentially interrelated with the specific constitutional guarantees of the individual’s right to counsel and immunity from self-incrimination....The essential policy of the privilege is grounded in the subjective consideration of the client’s freedom from apprehension in consulting his legal advisor, assured by removing the risk of disclosure by the attorney even at the hands of the law.... [T]he freedom of confidential communication between lawyer and client is [pjerhaps as valuable as the privilege against self-incrimination. Harrison v. State, 276 Md. 122, 133-34 , 345 A.2d 830, 837 (1975) (citations omitted) (internal quotations omitted). The ⁴⁰⁴ privilege, however, is not impregnable and must be strictly-construed to protect “only those attorney-client communications pertaining to legal assistance and made with the intention of confidentiality.” Newman, 384 Md. at 302 , 863 A.2d at 331 , quoting E.I. du Pont de Nemours v. Forma-Pack, 351 Md. 396, 415-16 , 718 A.2d 1129, 1138 (1998).

A client may waive the privilege, whether intentionally or unintentionally, if the client’s “conduct touches a certain point of disclosure” when “fairness requires” the privilege to cease. Parler & Wobber v. Miles & Stockbridge, 359 Md. 671, 692 , 756 A.2d 526, 537 (2000); 6 McLain, Maryland Evidence State and Federal § 503:15, at 63 (West Group, Second ed. 2001) (“Waiver may be effected by the client’s testifying to a significant part of the privileged confidential information.”). The proposition, stated plainly, is that “what a client chooses to tell the world, he cannot later prevent his attorney from telling the court.” Agnew v. State, 51 Md.App. 614, 651 , 446 A.2d 425, 445 (1982). In the case before us, at the outset of trial, 3 out of the presence of the jury, Greenberg’s lawyer made a motion in limine to exclude the testimony of Mr. Hessel, proffering that Mr. Hessel had represented both Greenberg and Ms. Zucker in a legal capacity when the events underlying the instant case took place: [GREENBERG’S COUNSEL]: [0]n the State’s Attorney’s witness list is a gentleman whose name is Mark Hessel.

Mark Hessel is a lawyer in Montgomery County. [COURT]: I know that. [GREENBERG’S COUNSEL]: He was at one point in 2008 representing both, I think both Ms. Zucker and Mr. ⁴⁰⁵ Greenberg. And I think the State is intending to call [Mr. Hessel] as a witness in their case. He’s on their witness list. And inasmuch as he was Mr. Greenberg’s lawyer, there’s certainly the issue of attorney-client privilege, which only Mr. Greenberg could waive, and he is not choosing to waive that privilege.

And so therefore, I’m not certain that the State can in fact call Mr. Hessel as a witness or what they believe he is going to testify to that would be admissible evidence if there’s evidence outside of the privilege that they’re trying to admit.... I’d like to hear what the State thinks is admissible. Later during trial, when the State called Mr. Hessel to the witness stand, Greenberg objected, claiming that there had been an attorney-client relationship between Mr. Hessel and Greenberg, and that the “things that they discussed” or “talked about” with each other were privileged. Since our brief reference to invocation of the attorney-client privilege in Newman , we have not had occasion to discuss its quantum nor quality.

Few of our sister states also have directly considered the issue of what threshold showing is necessary, although the Supreme Court of Illinois has opined that the privilege is properly invoked, presumptively, if the proponent shows that “there [was] an attorney-client relationship in which an attorney and client have communicated in a professional capacity.” In re Marriage of Decker, 153 Ill.2d 298 , 180 Ill.Dec. 17 , 606 N.E.2d 1094, 1109 (1992). In In re Marriage of Decker, an appeal arising from a child custody and visitation dispute, a mother filed a motion to compel the father’s attorney to “disclose information concerning [the father’s] whereabouts,” and certain other details. Id. at 1097. The father’s attorney asserted the attorney-client privilege, explaining that, as the father’s attorney, the mother’s motion was “very broad in its scope” so as to necessitate a violation of the attorney-client privilege.

Id. at 1098. The trial judge determined that the attorney-client privilege was not invoked with sufficient specificity, but the appellate court reversed, concluding that “when there is an attorney-client relationship in which an attorney and client have communicated in a ⁴⁰⁶ professional capacity,” then “there is a rebuttable presumption that their communication is privileged.” Id. at 1108-1109. Various of the federal courts also have considered the attorney-client privilege presumptively invoked upon a showing that an attorney and a client communicated in a professional capacity. In Steiner v. United States, 134 F.2d 931 (5th Cir.1943), for example, the Court of Appeals for the Fifth Circuit determined that the attorney-client privilege was invoked upon a proffer that a witnesses’s testimony was “based on [a] statement] made to [the proponent] by [his former lawyer] at a time when the relationship of attorney and client existed” and that the statement was “privileged and inadmissible.” Id. at 934 .

In In re Grand Jury Subpoena: Under Seal, 415 F.3d 333 (4th Cir.2005), the Court of Appeals for the Fourth Circuit similarly determined the attorney-client privilege was invoked once the proponent showed “that he is a client or that he affirmatively sought to become a client.” Id. at 339 . In In re Grand Jury Subpoena, America Online’s legal team interviewed several of America Online’s employees as a part of an ongoing internal investigation. Shortly thereafter, a grand jury issued a subpoena demanding any “written memoranda and other written records reflecting interviews conducted” by the investigating attorneys. Id. at 337 .

Several of America Online’s employees asserted that information obtained from the interviews were protected by the attorney-client privilege, a claim the district court rejected. The Fourth Circuit agreed, opining that privilege may be invoked only where a “finding that the [proponent’s] subjective belief’ an attorney-client relationship existed would be “minimally reasonable.” Id. at 339 . The employees unsuccessfully invoked the privilege, the court reasoned, because there was no reasonable indicia that they had “ever sought personal legal advice” from the investigating attorneys, that the investigating attorneys ever “rendered personal legal advice” to the employees, that the investigating attorneys ever “told the [employees] that they represented them,” or “that the [employees] asked the [investigating attorneys] to represent them.” Id. ⁴⁰⁷ In the case before us, Greenberg’s proffer of the privilege was more than mere speculation that Greenberg was a client of Mr. Hessel. Greenberg’s counsel advised the court that Mr. Hessel was “at one point in 2008 representing” Ms. Zueker and Mr. Greenberg, and that “inasmuch as [Mr. Hessel] was Mr. Greenberg’s lawyer, there’s certainly the issue of attorney-client privilege.” Later in the trial, Green-berg’s counsel again informed the court that Greenberg had been involved in an attorney-client relationship with Mr. Hessel, and that the “things that they discussed” or “talked about” with each other were privileged.

As a result, the attorney-client privilege was sufficiently invoked to trigger further proceedings. Whether what was done to explore the nature and extent of the privilege and any commensurate waiver is the next question. Our opinion in Newman , again in footnote seven, explored what type of inquiry is appropriate: Once the privilege is invoked, the trial court should “make a preliminary inquiry and hear testimony relative thereto out of the presence of the jury, looking at the surrounding facts and circumstances.” In this preliminary inquiry, the trial court will decide as a matter of law whether the elements of the privilege are present and if so, whether the communication, absent an exception, is privileged. This threshold question must be determined without requiring the disclosure of the communication at issue.

Id. at 313 n. 7, 863 A.2d at 337 n. 7 (citations omitted). Greenberg has asserted that, once he invoked the privilege, the judge should have inquired, through an evidentiary hearing or through proffers, into the “surrounding facts and circumstances” of Mr. Hessel’s representation of Greenberg, the “complete circumstances related to [Greenberg’s] possible waiver of privilege,” and “the scope of the prosecution’s proposed use of the evidence at trial.” The State has responded that, because the parties’ privilege arguments were made in “broad strokes,” “trial tactics,” and not trial error, were to blame for the lack of a more detailed preliminary inquiry. ⁴⁰⁸ When the attorney-client privilege was invoked, the judge heard a proffer from the State that “[Greenberg] already testified in a hearing for the annulment procedure annulling the marriage between [Ms. Zucker] and [Greenberg] about the relationship that he had with [Mr. Hessel].” The judge then heard legal argument on waiver and reviewed a transcript of Greenberg’s testimony at the annulment hearing before ruling that Greenberg “waived the privilege when he testified at a judicial hearing regarding the very matters that he now seeks to stand behind the attorney-client privilege.” The process by which