Newman v. State

Court of Appeals of Maryland · 2004 · Evidence

384 Md. 285 (2004)

Updated August 22, 2026

EvidenceAttorney-client privilegeCrime-fraud exceptionMirandaMRPC 1.6confidentialitythird-party presencewaiver

Facts

During contentious divorce and custody proceedings, Newman was represented by attorney Stephen Friedman, who sometimes included Newman's close friend Margery Landry in meetings because he wanted a "cool head in the room." Newman made statements to Friedman, including that she did not have to kill both children and only needed to kill Lars so that Slobodow would go to jail, and Friedman disclosed that statement to a judge under MRPC 1.6. At trial, over privilege objections, Friedman testified both about that disclosure and about conversations between Newman and Landry in his office concerning harming the children or Slobodow and framing Slobodow. The State also elicited testimony from the arresting detective that after receiving Miranda warnings Newman said she wanted to consult an attorney and had one waiting at the station.

Issue

Whether communications between Newman and her former attorney were protected by the attorney-client privilege despite Friedman's prior Rule 1.6 disclosure and despite Landry's presence, and whether the crime-fraud exception made those communications admissible. The court also addressed, for guidance on remand, whether a curative instruction adequately cured prejudice from testimony about Newman's post-Miranda invocation of counsel.

Rule

The attorney-client privilege protects confidential communications made by a client to an attorney for the purpose of obtaining legal advice. An attorney's discretionary disclosure of client information under MRPC 1.6 does not defeat the client's later assertion of the attorney-client privilege. Maryland recognizes a crime-fraud exception only when the communication seeks the attorney's advice or aid in furtherance of an ongoing or future crime or fraud; a mere statement of intent to commit a crime is not enough. The presence of a third party does not destroy the privilege when the client reasonably understood the communication to remain confidential. Testimony about a defendant's post-Miranda exercise of the right to counsel or silence is improper, and a curative instruction given over the defendant's objection does not cure that prejudice.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Baltimore, Dana Mercer told her family-law attorney during a private meeting, "I keep thinking about burning down my former partner's workshop." Fearing imminent harm, the attorney notified a judge under a professional-conduct rule permitting disclosure to prevent death or serious bodily harm, and prosecutors later subpoenaed the attorney at Dana's criminal trial.

Is the attorney's testimony about Dana's statement admissible solely because the attorney previously disclosed it under the professional-conduct rule?

Explanation. The majority drew a sharp distinction between Rule 1.6-style confidentiality exceptions and the evidentiary attorney-client privilege. A lawyer's discretionary disclosure to prevent harm may be ethically permitted, but it does not authorize the lawyer to waive the client's privilege or make the communication automatically admissible at trial.