Disclosure of legal fees can be forced, court rules Arundel decision on appeal reversed

March 14, 1992|By Norris P. West | Norris P. West,Staff Writer

ANNAPOLIS -- State narcotics investigators hoping to nail drug dealers for income tax evasion want to get a look at how much their suspects pay their lawyers.

The Maryland Court of Appeals yesterday said that was OK, raising a howl of protest from defense attorneys and smiles from lawmen.

By a 6-1 vote, the state's highest tribunal reversed the decision of an Anne Arundel Circuit Court judge who had quashed a grand jury's subpoena for the financial records of Baltimore attorney William H. Murphy Jr.

The grand jury was probing tax violations by two men -- one of whom had pleaded guilty to a drug charge and another who was undergoing a forfeiture proceeding. Mr. Murphy, a former Circuit Court judge and mayoral candidate who had represented both men, was ordered by the grand jury to turn over records of payments he received from the two.

The grand jury wanted to use the records to help determine how much money the two were spending, which would in turn help them figure out how much unreported income they had gained from drug trafficking.

Judge Bruce C. Williams granted Mr. Murphy's motion to quash the subpoena on the grounds that the subpoena violated the principle of lawyer-client confidentiality.

But the Court of Appeals ruled that Model Rules of Professional Conduct for lawyers, which it adopted in 1987, does not protect attorneys from being forced to disclose legal fees.

Assistant Attorney General Karen J. Kruger, who argued the case for the state, hailed the decision as a victory for her office, which for two years has been waging a "narco-tax" campaign to nail suspected drug dealers for evasion of state income taxes.

Lynn McLain, a law professor at the University of Baltimore, said the ruling was in line with decisions in other jurisdictions and was appropriate. "The disclosure of fees does not destroy the communication between attorneys and clients," Ms. McLain said.

But some defense attorneys say the decision would have a chilling effect on the once-impervious attorney-client privilege. They say the state court was following a pattern set in recent years by federal courts that is eroding that privilege.

"That seems to me to destroy the confidentiality of the client-lawyer relationship," said Gerard T. Martin, a former assistant U.S. attorney who now is a defense attorney at the firm Miles & Stockbridge.

"How is a lawyer going to gain the confidence of a client if the money he's being paid is going to be used by authorities to incriminate the client?"

Mr. Martin said the decision was a reactionary response to the spread of drugs. "We're willing to throw the Constitution out the window and attorney-client relationship out the window to allay our fears," he said.

Joshua R. Treem, another Baltimore defense lawyer, described the decision as the deepest intrusion into the attorney-client privilege by Maryland's court system.

"Clients assume that all their dealings with attorneys are privileged," Mr. Treem said. "Prosecutors will use this language to seek further intrusions into how lawyers conduct their business with clients. That's dangerous."

Fred Howard Silverstein, a Howard County lawyer, agreed. "Once you start to chip away at the attorney-client privilege and make exceptions for legal fees, it opens up the doors to abuses by the state to get all kinds of information," he said.

The opinion, written by Judge Lawrence F. Rodowsky, said the attorney-client privilege is not violated by requiring disclosure of payment of attorney fees and payments.

"Disclosure of the fee should not chill the attorney-client relationship significantly more than the act of requiring payment of the fee," the opinion stated.

It said the privilege between attorneys and clients is not absolute, and "does not restrict disclosure of every aspect of what occurs between the attorney and the client."

A dissenting opinion by Judge Robert M. Bell said payment of fees were a necessary part of the relationship, and that disclosure could prevent some clients from seeking legal advice.

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