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IN THE COURT OF APPEALS OF MARYLAND

No. 31

September Term 2004

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ELSA NEWMAN V. STATE OF MARYLAND __________________________________

Bell, C.J. Wilner Cathell Harrell Battaglia Eldridg e, John C., (Retired Specially Assigned) Rodowsky, Lawrence F. (Retired Specially Assigned) JJ.

Opinion by Battaglia, J. Harrell, J. Con curs in P art A an d Resu lt, and Dissents from Part B; Wilne r, Cathe ll, and R odow sky, JJ., Dissent

Filed: December 13, 2004

This case prese nts the issue o f the prope r scope of the attorney-client privilege and whether a curative instruction adequately counteracted the prejudice of eliciting testimony about the exercise of a defendant's Miranda rights. Because we find that the

communications between Elsa Newman [hereinafter "Newman"] and her for mer attor ney, Stephen Friedman [hereinafter "Friedman"], at issue in the present case fall within the attorney-client privilege and are not subject to the crime-fraud exception, we reverse the decision by the Court of Special Appeals and remand the case to the Circuit Court for a new trial. As guidance for the trial court on remand, we also will address whether the curative instruction adequately dispelled the prejudice caused by eliciting improper testimony about the exercise of Newman's Miranda rights. I. Background A. Facts Newman and Arlen Slobodow [hereinafter "Slobodow"] married in 1990, and thereafter they had two sons toge ther, Lars and Herb ie. In 1999, Newman's marriage to Slobodow deteriorated and the co uple began div orce and c ustody proce edings in the Circuit Court for Montgomery County, Maryland during which Newman was represented by Friedman. During the course of Friedman's representation of Newman in the spring of 2001, Friedman asked Newman's close friend, Margery Landry [hereinafter "Landry"], to be present in his meetings with Newman for a "cool head in the room." Landry and Newman discussed various plans involving harming Newman's children an d blaming Slobodo w while in Fried man's presen ce.

On August 31, 2001, N ewman met with F riedman in preparation for a custody hearing on September 4, 2001 before Circuit Court Judge James Ryan. At one point during her meeting with Fried man, Ne wman stated, "Yo u know , I don't have to kill both children . I only need to kill Lars because I can save Herbie, and then Arlen [Slobodow] will go to jail and get what he deserves because he is a criminal, and I can at least save Herbie." Friedman disclosed to Montg omery Cou nty Circuit Court Judge Louise Scrivener the statements made by Newman the previous Friday. After Judge Scrivener informed Judge James Ryan of Friedman 's disclosure, Judge Ryan an nounced the sub stance of Friedma n's disclosure during the custody hearing on September 4, 2001. Newman was granted

supervised visitation and Friedman's appearance as her counsel of record was stricken. The trial on the merits was postponed until December 7, 2001, and then again to January 28, 2002. Prior to the trial on the merits, on January 7, 2002, at ap proximate ly 3:30 a.m., Landry entered Slobodow's house through an unlocked basement window carrying porno graphic materials and a Sm ith and W esson 9M M han dgun. In S lobodow 's bedroom , she foun d him asleep in bed and fired two s hots hitting Slobodow once in the right leg. Slobodow struggled with Landry, pulling off her mask, and Landry fled the bedroom. Slobodow went dow nstairs, was attacked once more by Landry, and during the altercation bit Landry's finger. Landry left the h ouse. Later that morning, Montgomery County Police arrested Landry at her home. On

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January 9, 2002, the State of Maryland filed cha rges agains t Newm an for con spiracy to commit first degree murder and conspiracy to commit assault in the first degree, and Newman was arrested the following day. Thereaf ter, Lan dry pled guilty to assa ult, b urglary, reckless endangerment, use of a handgun in the commission of a felony, and obliterating the serial number on a gun. On Decembe r 17, 2002, she wa s sentenced to fifty years

impriso nmen t, with all but twe nty years sus pende d. B. Procedural History On April 4 , 2002, Newman ap pear ed in the C ircuit Co urt for M ontg ome ry County, Maryland and entere d a plea of not guilty. On Ju ne 28, 200 2, the Circu it Court held a pretrial hearing in which it considered the State's oral Motion in L imine to compel F riedman to testify about the matters that he had disclosed to Judge Scrivener. The State called Friedman to the stand. Newman requested that the court clear the courtroom prior to Friedman's

testimony to preserve the confid entiality of Friedman's testimony prior to the court's ruling on its status under the attorney-client privilege. After the ju dge rejected that request, Newman asserted that the attorney-client privilege precluded Friedman's testimony, for which she was g ranted a stan ding obje ction. At the close of Friedman's testimony

concerning his relationsh ip with N ewman and the co ntent of his d isclosure to Judge Scrivener pursuant to Rule 1.6 of the M aryland Rule s of Profe ssional Co nduct, 1 the court

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Maryland Rule of Professional Conduct 1.6 provides: (a) A lawyer shall not reveal informatio n relating to representation of a client unless the client consents after 3

ruled that Friedman acted reasonably in disclosing Newman's statements under Rule 1.6 and that his disclosure obviated Newman's attorney-client privilege regarding the disclosed stateme nts. On August 2, 2002, the State called Friedman to the stand at Newman's trial. Under court order, Friedman testified as follows: STATE: When

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