Harris v. Baltimore Sun Co.

625 A.2d 941, 330 Md. 595, 22 Media L. Rep. (BNA) 1107, 1993 Md. LEXIS 81

• Court: Court of Appeals of Maryland
• Decided: June 8, 1993
• Docket: 95, September Term, 1992
• Status: Published

Opinions

RODOWSKY, Judge.

Procedurally, this appeal involves a newspaper’s action under the Public Information Act to obtain the records of certain expenses incurred by the Office of the Public Defender (OPD) in defending a highly publicized, capital murder prosecution. Substantively, this appeal involves the scope of counsel’s duty of confidentiality under Rule 1.6 of the Maryland Lawyers’ Rules of Professional Conduct (MR).

OPD is created by Md.Code (1957, 1990 Repl.VoL), Art. 27A. It is “the policy of the State of Maryland to provide for the realization of the constitutional guarantees of counsel in the representation of indigents.” Art. 27A, § 1. Section 4(a) of Art. 27A mandates that “[i]t shall be the primary duty of the Public Defender to provide legal representation for any indigent defendant eligible for services under this article.” In the course of holding that a public defender does not act under color of state law within the meaning of 42 U.S.C. § 1983, the United States Supreme Court has described the relationship between an accused and a public defender.

“From the moment of her appointment, [the public defender] became [the accused’s] lawyer, and [the accused] became [the public defender’s] client. Except for the source of payment, their relationship became identical to that existing between any other lawyer and client. ‘Once a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program.’ ABA Standards for Criminal Justice 4-3.9 (2d ed. 1980).”

Polk County v. Dodson, 454 U.S. 312, 318, 102 S.Ct. 445, 449-50, 70 L.Ed.2d 509, 516 (1981) (footnote omitted).

John Frederick Thanos (Thanos) was charged in Baltimore County with two murders arising out of one criminal episode. The death penalty was sought for each murder. The prosecution was removed to Garrett County where Thanos was represented by three or four public defenders, at least some of whom resided in the Baltimore area. A trial conducted from January 20 to January 31, 1992, resulted in verdicts of guilty but in a mistrial of the sentencing proceedings. New sentencing proceedings were scheduled for June 1, 1992.

Glenn Small (Small), a reporter employed by The Baltimore Sun Company (The Sun), on or about February 25, 1992, requested of the OPD certain information concerning expenses incurred by OPD in its representation of Thanos in Garrett County. The Sun’s request was made pursuant to the Maryland Public Information Act, Md.Code (1984, 1993 Repl.Vol.), §§ 10-611 through 10-628 of the State Government Article (the Act).¹ Specifically, The Sun sought records relating to any overtime wages paid to named OPD attorneys who, as Small had observed, were defense counsel for Thanos; receipts for “motel, meal and travel” for those attorneys; and records of the fees and expenses paid to four expert witnesses, identified by name, whom Small had observed either in attendance, or testifying, at the Thanos trial in Garrett County. OPD denied The Sun’s request in its entirety.

The instant action was commenced in the Circuit Court for Baltimore City by The Sun and Small against Stephen E. Harris, Esq. (Harris), the Public Defender for the State of Maryland. As Public Defender, Harris has general responsibility for the operations of OPD and, as defined in § 10-611(d) of the Act, is the “official custodian” of the records sought in this action. The circuit court, after analyzing in a written opinion many aspects of the problem presented, ordered OPD to produce the requested records. OPD appealed to the Court of Special Appeals. This Court, on its own motion, issued the writ of certiorari prior to consideration of the matter by the Court of Special Appeals.

There is no dispute that the requested records are public records within the Act. § 10-611(f). Under § 10-613(a), “[ejxcept as otherwise provided by law, a custodian shall permit a person ... to inspect any public record at any reasonable time.” OPD, however, justifies its refusal to produce by reference to § 10-615, which in relevant part reads:

“A custodian shall deny inspection of a public record or any part of a public record if:

(1) by law, the public record is privileged or confidential; or

(2) the inspection would be contrary to:

(iii) the rules adopted by the Court of Appeals

OPD submits that its attorneys owe Thanos the same duty to maintain confidentiality of information that all lawyers owe to their clients under MR 1.6. This contention is correct. Indeed, the principle is not disputed by The Sun.

MR 1.6, “Confidentiality of Information,” in relevant part, provides:

“(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

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

(1) to prevent the client from committing a criminal or fraudulent act.. .;

(2) to rectify the consequences of a client’s criminal or fraudulent act...;

(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client...;

(4) to comply with these Rules, a court order or other law.”

OPD submits that the information requested by The Sun is “information relating to representation of a client” which defense counsel may not reveal under the proscriptions of MR 1.6(a), and, accordingly, the requested information is a confidential record that OPD must withhold from inspection under § 10-615 of the Act.

The Sun’s response to OPD’s position is twofold. First, The Sun states that the appropriate analysis of a request under the Act is under the law relating to attorney-client privilege, which does not recognize fees paid as privileged communications. The requested information, as non-privileged and even if it is confidential per MR 1.6, must be released because an attorney must disclose non-privileged information upon compulsion of law — in this case, the Act. Second, the information cannot be withheld because, under an exception in MR 1.6(b)(4), disclosure of the information is necessary to comply with “other law,” namely, the Act.

I

The Sun cites two prior, reported instances in which disclosure of amounts paid as attorneys’ fees was sought under a predecessor statute to the Act. In both instances the analysis was limited to the question of attorney-client privilege, but that limitation is not significant here.

In Moberly v. Herboldsheimer, 276 Md. 211, 345 A.2d 855 (1975), a newspaper sought disclosure, inter alia, of the amount paid by a hospital for legal services. The request was directed to the hospital which this Court held to be a municipal agency. The request was predicated on Md.Code (1957, 1975 Repl.Vol.), Art. 76A, a predecessor of the Act, under which the definition of “public records” excepted those records “privileged or confidential by law.” Former Art. 76A, § 1(a). Legal fees paid by the hospital were held disclosable under the statute. This Court adopted the opinion of the trial court which said that “ ‘[t]he communication by the client to the attorney is privileged, not the fee which the lawyer charges the client.’ ” Id. at 226, 345 A.2d at 863. Moberly had no need to discuss the attorney’s broader duty of confidentiality, inasmuch as the request was directed to the client, not to the attorney.

The Attorney General of Maryland later opined consistently with Moberly in applying the 1975 version of the Act to a newspaper’s request, submitted to the Maryland Automobile Insurance Fund (MAIF), for disclosure of the amount of fees paid to insurance defense counsel engaged to represent MAIF or its insureds.² The Attorney General ruled that the fee information requested must be furnished “since the entire subject of fees is outside the ambit of the attorney-client privilege.” 62 Op. Att’y Gen. 579, 586 (1977). Had the person requesting information from MAIF addressed the request to a particular attorney engaged by MAIF to defend an insured, and had the request sought disclosure of the amounts expended in defense of the claim for the insured, a problem more analogous to that now before us would have been presented to the Attorney General.

The Sun also finds support for the proposition that only privilege can prevent disclosure under the Act in In re Criminal Investigation No. 1/242Q, 326 Md. 1, 602 A.2d 1220 (1992). In that case, a grand jury issued a subpoena to an attorney whose client had pleaded guilty to a narcotics charge. The subpoena sought legal fee information relating to that representation and to the representation of another client in a related forfeiture proceeding. Recognizing that the attorney-client privilege generally does not protect fee information, the circuit court nevertheless quashed the subpoena by relying on the attorney’s obligation of confidentiality under MR 1.6. We reversed. The Sun points to a portion of our opinion where we said:

“[T]he rule of confidentiality is broader than the attorney-client privilege. Rule 1.6 applies to confidential communications between a client and an attorney in all situations except where the ‘evidence is sought from the lawyer through compulsion of law.’ In the latter situation, only the attorney-client privilege, not the broader rule of confidentiality, protects against disclosure.”

326 Md. at 5, 602 A.2d at 1222 (quoting Comment to MR 1.6).

The Sun argues that, here, there is “compulsion of law” under § 10-613(a) of the Act, so that the only relevant consideration is privilege. The deficiency in The Sun’s argument arises from § 10-615(1), which limits the “compulsion of law.” Section 10-615(1) requires the custodian to deny inspection of any part of a public record if “by law, the public record is ... confidential.” Unlike the compulsion of a grand jury subpoena, there is no compulsion under the Act if the public record is confidential.

Finally, The Sun argues that the Act “compels the Public Defender to disclose its expenses unless ‘by law, the public record is ... confidential.’ § 10-615(1). Rather than excuse the Public Defender from compliance with the [Act], Rule 1.6(b)(4) requires him to ‘comply’ with other laws.”

Brief of Appellees at 10 (footnote omitted).

MR 1.6 does not achieve the result, in relation to the Act, for which The Sun contends. MR 1.6(a) imposes on lawyers a general and very broad obligation of confidentiality by prohibiting disclosure of information “relating to [the] representation.” MR 1.6(b) sets forth four sets of circumstances under which a lawyer "may reveal such information to the extent the lawyer reasonably believes necessary.” The Maryland Model Rules of Professional Conduct “are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies.” Scope Note to Maryland Rules of Professional Conduct, Md.Code (1993 Repl.Vol.), 2 Md.Rules 503. Under the structure of MR 1.6, the lawyer who reveals confidential information, reasonably believing the revelation to be necessary in order to comply with other law, is not in violation of the general prohibition against disclosure and is not subject to professional discipline.

MR 1.6(b), however, is permissive. “Failure to reveal that which may be revealed, as opposed to that which must be revealed, is not a basis for disciplinary action.” Attorney Grievance Comm’n v. Rohrback, 323 Md. 79, 96, 591 A.2d 488, 496 (1991). Thus, MR 1.6(b)(4), contrary to The Sun’s contention, does not require disclosure; rather, it permits departure from the otherwise general prohibition against disclosure when the lawyer reasonably believes disclosure is necessary to comply with other law.

Because MR 1.6(b)(4) imposes no obligation to disclose, it does not furnish any standard for determining when client information is confidential and not to be produced under the Act by an attorney who is the custodian of a requested public record. MR 1.6(a) does furnish a standard, but it is phrased as a prohibition. As a result, the lawyer-custodian of public record-client information can never violate the MR 1.6(a) prohibition against disclosure by refusing to produce requested public record-client information. Phrased another way, the lawyer-custodian of public record-client information can never violate the MR 1.6(a) prohibition against disclosure by refusing to produce requested public records, even if production would not violate MR 1.6(a). Thus, MR 1.6(a), phrased as a prohibition, cannot furnish the standard for applying § 10-615(1), because the former permits denying all requests for production of public record-client information. That construction is contrary to the Act’s policy that “[a]ll persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees.” § 10-612(a).

We construe § 10-615(1), in relation to MR 1.6(a), as imposing an objective, affirmative standard. The lawyer-custodian of public record-client information must disclose requested information unless, by disclosing, the lawyer would violate MR 1.6(a) and thereby be exposed to professional discipline. If the requested public record is “information relating to representation of a client,” which, if disclosed by the attorney, would place the attorney in violation of MR 1.6, the information is confidential under § 10-615(1) and not to be produced under the Act.

II

Under the foregoing holding the issue in this case is whether, if the Public Defender complies with The Sun’s request, would the Public Defender reveal “information relating to representation of a client” in violation of MR 1.6(a). That issue, in turn, requires us to consider the scope of the phrase, “information relating to representation of a client,” as used in the rule. That task is best performed by first comparing MR 1.6 with its predecessor provision. The Maryland Rules of Professional Conduct became effective January 1,1987. 2 Md.Rules 499. In the predecessor Code of Professional Responsibility the lawyer’s duty of confidentiality was addressed in DR 4-101. Md.Code (1986 Repl. Vol.), 2 Md.Rules 460. DR 4-101 in relevant part provided:

“Preservation of Confidences and Secrets of a Client.

(A) ‘Confidence’ refers to information protected by the attorney-client privilege under applicable law, and ‘secret’ refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:

(1) Reveal a confidence or secret of his client.

(2) Use a confidence or secret of his client to the disadvantage of the client.

(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.”

C. Wolfram, Modern Legal Ethics § 6.7.2, at 297 (1986), describes the distinction made in the Code of Professional Responsibility between confidences and secrets, saying:

“The secrets rule of the Code is different from the protection of confidences in at least two important ways. First, its coverage is much broader. The confidence rule simply duplicates the coverage of the attorney-client testimonial privilege with its technical rules of coverage, exceptions, and waiver. The secrets protection, on the other hand, covers a great deal more. Indeed, under a straightforward reading of DR 4-101(A), secrets includes much that is excepted from the definition of confidences by one or the other of the exceptions contained in the rules of the testimonial privilege. Second, secrets have no necessary connection with the privacy of communication concept that underlies the protection of confidences. The definition of secrets stresses two elements, either of which can bring it into operation: a client explicitly requests that the lawyer not reveal the information^] or the nature of the information is such that its revelation is potentially embarrassing or detrimental to the client.”

Comparing DR 4-101(A) with Rule 1.6 of the Model Rules of Professional Conduct, the same author states:

“The 1983 Model Rules are even more expansive than the 1969 Code in the size of the initial zone of confidentiality that they create. The definition in MR 1.6 transcends the Code ... (1) it includes all information regardless of when it was learned by the lawyer; [and] (2) it includes information without regard to whether disclosure would embarrass or work to the detriment of a client____”

Id. at 298.

The breadth of the confidentiality principle under Model Rule 1.6 has evoked concern from the commentators. In 1 G. Hazard, Jr. & W. Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 1.6:201, at 158 (2d ed. 1992) (Lawyering-Two), the authors observe that “read literally and in isolation, the rule is so stringent as to approach the unworkable and the unrealistic.” The same authors, in the earlier edition of the same work, suggested that Model Rule 1.6(a) “must be given a somewhat qualified construction.” G, Hazard, Jr. & W. Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct 96 (1985). They proposed that “disclosures that would be treated as insignificant not only by the present client but also by the public generally should be regarded as permissible, for they do not materially weaken the confidentiality principle.” Id. at 98. The authors proposed that “[i]n functional terms, the line between permissible and impermissible disclosure should probably be drawn at the point of anonymity [of the client].” Id.

In the instant matter it is general public knowledge that Thanos is the client and the lawyers are from OPD. Thus, the proposal to use client anonymity in measuring whether “information relating to representation of a client” has been revealed is of no assistance in the matter at hand.

Wolfram also has considered the problems created by a literal application of Model Rule 1.6 and has presented the following analysis:

"[T]he expectation of confidentiality posited by the rationale of loyalty to client justifies prohibiting a lawyer from revealing information only if it poses a risk of harm to a client’s interests. Yet MR 1.6 of the Model Rules, if read literally, goes much farther and prohibits a lawyer from revealing all client information, the good or neutral along with the potentially harmful. The only imaginable reason for such a universal prohibition is to provide prophylactic protection against lawyer misjudgments about which revelations are potentially harmful to a client’s interests. Yet it is hardly imaginable that MR 1.6 should be read literally to prohibit a lawyer from revealing absolutely any information about a client except in the limited exceptions explicitly provided in the rule. A statement to a lawyer’s spouse that the lawyer must travel to a distant city overnight to argue a case for an identified client fits literally within the MR 1.6 prohibition. But to prohibit innocuous talk about a client would be senseless, would create morbid secretiveness among overscrupulous lawyers, and, by trivializing it, would detract from the soundness of the confidentiality principle. Instead, MR 1.6 should be read to prohibit those needless revelations of client information that incur some risk of harm to the client. Idle gossip, of course, should be prohibited because it incurs the risk of inadvertent disclosure of harmful client information and has no reason for utterance other than titillation or braggadocio.”

Wolfram, supra, at 301.³

Viewing MR 1.6(a) as a prohibition applicable to the profession as a whole, we find Wolfram’s analysis to be sound. There must be the potential for some harm to the client’s interest before an attorney will be considered to have violated the prohibition of MR 1.6(a) and to be subject to discipline, for having revealed “information relating to representation of a client.” Whether there is a risk or potential for harm to the client’s interests turns on the facts and circumstances of the particular case.

Thus, Professors Hazard and Hodes have concluded that “the generalization that a lawyer has an unqualified duty of confidentiality to a client is simply incorrect in most contexts. Indeed, the generalization is essentially accurate only when the representation involves defense of a criminal accused. In most transactional representations, the generalization is seriously misleading.”

Lawyering-Two, supra, § 1.6:201-1, at 158.6.

Here, we deal with a criminal prosecution for capital murder in which, on retrial, a death sentence was imposed for each of the murders charged. Those judgments have been affirmed on direct review by this Court. Thanos v. State, 330 Md. 576, 625 A.2d 947 (1993). Nevertheless, from the standpoint of the type of information requested by The Sun, MR 1.6’s prohibition is not absolute. For example, assume that a privately retained criminal defense attorney asked one of the public defenders who represented Thanos how much had been charged by the expert psychologist who had examined Thanos and testified in Garrett County, because the inquiring attorney contemplated using the same psychologist as a possible defense expert in another case. If the public defender told the inquiring attorney the amount, there would seem to be no violation of MR 1.6 because there would seem to be no potential harm to Thanos’s interests.

The same information, however, disclosed by the Public Defender to a newspaper may or may not result in a different answer, depending upon all of the circumstances. In the instant case neither the parties nor the circuit court analyzed the issue in quite the same way as we have analyzed it here. There has been no finding by the circuit court whether disclosure of the client information requested by The Sun potentially would harm Thanos’s interests. The circuit court did analyze whether disclosure of the information would violate Thanos’s sixth amendment right to counsel, and the court concluded that it would not, but that is not the confidentiality analysis required under § 10-615 of the Act.

Accordingly, we shall remand this matter to the Circuit Court for Baltimore City, without affirmance or reversal, for further proceedings consistent with this opinion. For the guidance of the parties and circuit court on remand, two observations seem appropriate.

The first involves cases concerned with the disclosure of amounts paid to counsel and experts under the Criminal Justice Act, 18 U.S.C. § 3006A (the CJA), as illustrated by United States v. Suarez, 880 F.2d 626 (2d Cir.1989), a decision repeatedly cited in the circuit court’s opinion in the case at hand. Under the CJA, defense counsel petition a United States District Court for approval of attorney’s fees and expenses, including the fees and expenses of expert witnesses. Such an application was made in Suarez, a prosecution for the armed robbery of $7.6 million from a Wells Fargo depot in West Hartford, Connecticut in September 1983. A newspaper sought the names of payees, the amounts paid, and a very general description of the work done, i.e., “for legal services.” The district court granted the newspaper’s request, but the order was stayed pending appeal. The Second Circuit affirmed.

The type of case illustrated by Suarez does not involve a disclosure requested on the authority of a public information statute, much less a statute which expressly excludes confidential records-. The request in the Suarez type of case asserts a first amendment right to access to court papers, and the courts in those cases take a balancing approach between the asserted first amendment right of the requesting person and the accused’s right to a fair trial and to the assistance of counsel. It is in the latter context that the Suarez court said: “We do not believe that disclosure of the amounts paid to attorneys and experts on appellants’ behalf, or the identity of those who received them, impinges on appellants’ rights.” 880 F.2d at 631.

Second, the fact that the trial of Thanos in Garrett County has now concluded with verdicts of guilty and the imposition of death penalties that have been affirmed does not preclude, as a matter of law, potential harm to Thanos’s interests by a disclosure of the requested information to a newspaper. In the direct and collateral reviews of death penalties by state and federal courts, the setting aside of judgments is not unknown.

Ill

The Sun has cross-appealed from the circuit court’s denial of The Sun’s request for the award to it of counsel fees in the circuit court proceedings. The request was based on § 10-623(f) of the Act, which reads:

“If the court determines that the complainant has substantially prevailed, the court may assess against a defendant governmental unit reasonable counsel fees and other litigation costs that the complainant reasonably incurred.”

Because we vacate the judgment of the Circuit Court for Baltimore City, consideration of the cross-appeal is premature.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY VACATED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO ABIDE THE RESULT.

1 . Unless otherwise indicated all statutory references are to Md.Code (1984, 1993 Repl.Vol.), State Government Article.

2 . MAIF "is authorized and shall sell, issue, and deliver, upon payment of the premium set by [MAIF], a policy of automobile liability insurance to any Maryland resident" who meets certain qualifications. Md.Code (1957, 1991 Repl.VoI., 1992 Cum.Supp.), Art. 48A, § 243B(a)(l).

3 . The American Law Institute’s ongoing project, the Restatement of the Law Governing Lawyers (Tent.Draft No. 3, 1990), of which Professor Wolfram is chief reporter, provides for the lawyers’ duty of confidentiality in its § 111. That section reads in relevant part:

"The lawyer shall not use or disclose confidential client information ... if there is a reasonable likelihood that doing so will adversely affect a material interest of the client or if the client has directed that the lawyer not use or disclose it____”

Id. at 4. Comment d to § 111, in part, gives the following explanation:

"[Section] 111 prohibits a lawyer from using or disclosing confidential client information if doing so is reasonably likely to adversely affect a material interest of the client or if the affected client directs the lawyer not to use or to disclose such information. Adverse effects include all consequences that a lawyer of ordinary prudence would recognize as creating some risk of material misfortune, disadvantage, or other prejudice to a client, either during the course of the present representation or in the future. It includes consequences such as financial or physical harm, personal embarrassment, and similar prejudice that would be caused to a person of normal susceptibility and a normal interest in privacy. In case of reasonable doubt, the lawyer should not use or disclose confidential client information, unless the client consents____”

Id. at 8.