A number of interesting privilege issues arose in connection with a Maryland lawyer’s appeal of her conviction on attempted murder charges. This Privilege Point sets the facts and the issues – next week’s Privilege Point will describe the Maryland Court of Appeals’ ruling. Newman v. State, 863 A.2d 321 (Md. 2004).
Maryland lawyer Elsa Newman married Arlen Slobodow in 1990. They had two sons with intriguing names: “Lars” and “Herbie.” The marriage deteriorated, and Newman hired a divorce lawyer to represent her in a bitter divorce and custody battle. Apparently frustrated with the legal process, Newman told her lawyer’s secretary that she had “plans to murder her husband.” Id. at 341-42. Newman must have been keeping her options open, because she later told her lawyer’s associate that “she would kill herself and the kids.” Id. at 342. A few months after that, Newman (accompanied by her friend Margery Landry) visited her lawyer’s office. During this meeting, Newman told her lawyer “[y]ou know, I don’t have to kill both children. I only need to kill Lars.” Id. Her plan was to frame Slobodow for Lars’ death, and “I can at least save Herbie.” Id. Newman’s lawyer relied upon the Maryland ethics rules to advise the court of Newman’s murderous intent, which the judge disclosed in open court during a custody hearing.
Newman apparently returned to her original plan. About 6 months later Newman’s friend Landry broke into Slobodow’s home and – as the opinion explains – “shot at [the sleeping Slobodow] twice, wounding him once in the leg,” and then “beat him over the head with a telephone.” Id. at 341 (emphases added). Slobodow survived. Landry pleaded guilty to attempted murder and was sentenced to 50 years in prison. The jury convicted Newman after hearing her lawyer testify what Newman had spoken about at their meeting.
Newman appealed her conviction, arguing that her lawyer should not have been allowed to testify. Newman argued: (1) that the crime-fraud exception did not strip her statement of its privilege protection; (2) that her friend Landry’s presence in her meeting with her lawyer did not destroy the privilege; and (3) that she could assert the privilege despite her lawyer’s justifiable disclosure of her intent, and the judge’s statement about it in open court. Next week’s Privilege Point will explain the Maryland Court of Appeals’ ruling.