Special Investigation No. 231, In re, 91

• Court: Court of Appeals of Maryland
• Writing for the Court: Argued before MURPHY; SMITH
• Citation: 295 Md. 366,455 A.2d 442
• Parties: In re SPECIAL INVESTIGATION NO. 231.
• Docket Number: No. 91,91
• Decision Date: 08 February 1983

Page 366

295 Md. 366 455 A.2d 442 In re SPECIAL INVESTIGATION NO. 231. No. 91. Court of Appeals of Maryland. Feb. 8, 1983.

Page 367

Stefan D. Cassella, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellant.

Alan J. Goldstein, Greenbelt (Horowitz, Oneglia, Goldstein, Foran & Parker, P.A., Greenbelt, and Joshua R. Treem and Schulman & Treem, Baltimore, on the brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

SMITH, Judge.

We shall here turn back an attempt by the Attorney General of Maryland to use the Code of Professional Responsibility to prevent individuals from being represented by counsel of their choice. Hence, we shall affirm the order of Judge Milton B. Allen in the Criminal Court of Baltimore, now the Circuit Court for Baltimore City.

I

Pursuant to a directive from the Governor of Maryland issued under Maryland Constitution Art. V, § 3(a)(2), the Attorney General for some extended period of time has been engaged in investigations pertaining to certain health care providers. He has set up what is known as the Medicaid Fraud Control Unit in his office. His investigation has reached to sister entities in one of the counties of Maryland. In connection with that investigation the Attorney General filed a motion in the Criminal Court of Baltimore, in connection with subpoenas issued by the Grand Jury of Baltimore City, seeking to prevent joint representation of four individuals by the attorney who has [455 A.2d 443] heretofore represented them. Subpoenas previously issued to them had already been quashed by action of the Criminal Court of Baltimore. Since that action was on appeal, the granting of

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the State's motion would have affected representation of those four individuals in the appellate process. We emphasize that no criminal proceeding was pending before the court. This motion stood by itself as a separate action.

The State alleges that were the attorney to represent all four of the individuals in question he would be representing conflicting interests. The State contends that there are two actual conflicts; (1) that where an attorney represents both target and non-target defendants in the same grand jury investigation there is a direct conflict, and (2) there is an inherent conflict, when one of the four individuals has been offered immunity. The offer of immunity was not made under any Maryland statute providing for immunity but under the Attorney General's theory of contractual immunity.

There was an evidentiary hearing in this case in which the State was afforded a full opportunity to develop a factual basis for its contentions. Unfortunately for it, however, objections were sustained on two grounds to virtually every question asked of the only witness it called to the stand. The objections were based upon the ground that the State cannot compel an individual to testify against himself and on the ground that the questions themselves violated the attorney-client privilege. Although the State excepted to the court's rulings it has raised no issue relative to those rulings on appeal. Such facts as were before the court were gleaned from affidavits submitted by the Attorney General.

The trial judge said in pertinent part:

"During argument in chambers the State reiterated its position as set forth in its affidavit that there exists an actual conflict of interest. The respondent countered that his clients to date have not accepted the State's offer of immunity and therefore no conflict at all existed among his clients. Both parties relied upon Professor Peter W. Tague's article 'Multiple Representation Targets and Witnesses During a Grand Jury Investigation', 17 American Criminal Law Review 301 (1980), to

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support their case. After a thorough study of this article and the other cases cited by counsel, I will DENY the State's Motion to Disqualify [the] Attorney ... for the following reasons:

"There are two major weaknesses in the State's argument which greatly disturbs the court. First and foremost, the types of immunities offered to the respondents in this case simply do not exist in Maryland. Use immunity and derivative use immunity were created in the federal system and have no application to this particular case. At best, the State may offer a witness immunity from prosecution for specific offenses which are enumerated in the Annotated Code of Maryland. However, the State has not indicated that their offer of immunity falls within the ambit of the Maryland statutes. Thus, the State is basically offering the respondents an illusory promise not to prosecute them in return for their testimony.

"Secondly, and just as disturbing is Professor Tague's comments that courts have rarely granted these motions except in certain special sets of circumstances. They are: (1) where the counsel is involved in egregious conduct, (2) where the counsel was the target of the investigation and his clients were possible witnesses against him and (3) where a state rule which barred disclosure of a witness' testimony would have created tension for counsel who was obliged to inform Client B of the testimony of Client A. The case here does not remotely resemble, in the widest of imaginations, the situations cited above. Here, the attorney is not involved in any egregious conduct nor...