Unnamed Attorney v. Attorney Grievance Com'n of Maryland

• Citation: 708 A.2d 667,349 Md. 391
• Decision Date: 01 September 1997
• Docket Number: No. 78,78
• Parties: UNNAMED ATTORNEY v. ATTORNEY GRIEVANCE COMMISSION OF MARYLAND. ,
• Court: Maryland Court of Appeals

Page 391

349 Md. 391

708 A.2d 667

UNNAMED ATTORNEY v. ATTORNEY GRIEVANCE COMMISSION OF MARYLAND.

No. 78, Sept. Term, 1997.

Court of Appeals of Maryland.

April 10, 1998.

Reconsideration Denied May 19, 1998.

Benjamin Lipsitz, Baltimore, for petitioner.

Melvin Hirshman, Bar Counsel, (Dolores O. Ridgell, Assistant Bar Counsel, Attorney Grievance Commission of Maryland, on brief) Crownsville, for respondent.

Before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER, and CATHELL, JJ.

CATHELL, Judge.

Unnamed Attorney, appellant, appeals from an order of the Circuit Court for Baltimore County denying his motion to quash a subpoena, which was issued by Bar Counsel on behalf of the Attorney Grievance Commission of Maryland, appellee. The circuit court also ordered production of certain documents relative to appellant's representation of a client. We issued a writ of certiorari prior to briefing and argument in the Court of Special Appeals to address "[whether, the [a]ppellant, a member of the Maryland Bar, can avoid the production of documents pursuant to a subpoena issued by Bar Counsel by asserting a privilege against self-incrimination.]" ¹

I. FACTS

The present case stems from appellant's representation of Ronald Price, a former high school teacher charged with various crimes arising out of his abuse of three students at Northeast High School in Anne Arundel County. Mr. Price was convicted of three counts of unnatural and perverted sexual practices and one count of fourth degree sexual offense on 8 September 1993 and sentenced on 14 October 1993 to imprisonment for twenty-six years on the convictions. The Court of Special Appeals affirmed those convictions in an unreported opinion.

Mr. Price filed a complaint with the Attorney Grievance Commission alleging numerous instances of impropriety by appellant and the law firm in which he was a partner. In relevant part, Mr. Price's complaint charged: "They may well be guilty of criminal negligence due to their avarice, incompetence and conflict of interests." ² Mr. Price's complaint also alleged that he and his wife had signed three contracts with appellant and sought an accounting with respect to money appellant may have received for Mr. Price's benefit from third parties.

On 28 March 1997, the Attorney Grievance Commission of Maryland served a subpoena on appellant's attorney. The subpoena compelled appellant to produce "ALL FILES, FINANCIAL RECORDS, LEDGER CARDS AND BANK STATEMENTS pursuant to [his] representation of Ronald Price, including any contracts with any third parties in connection with [his] representation of Ronald Price. " (Emphasis added.) Appellant moved to quash the subpoena alleging that the documents sought "will deprive him of his right against self-incrimination, in violation of both the Self-Incrimination Clause of the Fifth Amendment to the Constitution of the United States and Article 22 of the Maryland Declaration of Rights." ³ A hearing on appellant's Motion to Quash was held on 14 July 1997. The circuit court denied appellant's motion.

Appellant filed a Notice of Appeal on 12 August 1997. The Attorney Grievance Commission, through Bar Counsel, petitioned this Court for a Writ of Certiorari to address whether appellant could prevent the production of the documents enumerated in the subpoena by asserting his privilege against self-incrimination. We granted a writ of certiorari on 16 October 1997 to address this issue prior to briefing and argument in the Court of Special Appeals.

II. FIFTH AMENDMENT PRIVILEGE AS TO DOCUMENTS

The Fifth Amendment to the United States Constitution states that "[n]o person shall ... be compelled in any criminal case to be a witness against himself." Article 22 of the Maryland Declaration of Rights similarly provides that "no man ought to be compelled to give evidence against himself in a criminal case." ⁴

The Fifth Amendment was held to protect an individual from the compelled production of his or her private documents in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). Boyd involved an in rem action against twenty-nine cases of plate glass alleged by the federal government to have been imported in violation of certain revenue statutes. A judge ordered the partners of the partnership that had imported the glass to produce the relevant invoice. The partners produced the invoice, but claimed the document could not be used against them on the ground that such use would result in a violation of the self-incrimination clause of the Fifth Amendment. The Supreme Court agreed and held the invoice constituted a private paper that the government could not compel the partners to produce.

The holding in Boyd, however, has been limited severely by two theories, referred to as the collective entity doctrine and the required records exception, as well as a Supreme Court doctrinal shift in the protection afforded by the Fifth Amendment. We shall examine these three limitations below.

A. Collective Entity Doctrine

The origins of the collective entity doctrine can be traced to two cases. The first case, Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906), held that corporations have no Fifth Amendment privilege. In Hale, a corporation was under investigation. A grand jury summoned an officer of the corporation to produce the corporation's books and records, which the officer refused to produce, claiming production of the documents would incriminate the corporation. The Court, holding that an officer of a corporation cannot assert a Fifth Amendment privilege for a corporation as to that corporation's books and records, reasoned:

If, whenever an officer or employee of a corporation were summoned before a grand jury as a witness he could refuse to produce the books and documents of such corporation, upon the ground that they would incriminate the corporation itself, it would result in the failure of a large number of cases where the illegal combination was determinable only upon the examination of such papers. Conceding that the witness was an officer of the corporation under investigation, and that he was entitled to assert the rights of the corporation with respect to the production of its books and papers, we are of the opinion that there is a clear distinction in this particular between an individual and a corporation and that the latter has no right to refuse to submit its books and papers for an examination at the suit of the state....

... While an individual may lawfully refuse to answer incriminating questions unless protected by an immunity statute, it does not follow that a corporation, vested with special privileges and franchises, may refuse to show its hand when charged with an abuse of such privileges.

Id. at 74-75, 26 S.Ct. at 378-79, 50 L.Ed. at 665-66.

In the second case, Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911), the Supreme Court limited an individual's ability to assert his Fifth Amendment privilege as to the books and records of a corporation, thus giving birth to what has become known as the collective entity doctrine. In Wilson, a grand jury issued a subpoena to United Wireless Telegraph Company, compelling it to produce copies of letters and telegrams made by the president of the company, Wilson. The subpoena was served on Wilson, as president of the company, and two other persons. Refusing to produce the records before the grand jury, Wilson asserted that the requested documents would tend to incriminate him and therefore he was not required to produce them. The lower court disagreed, and he was found in contempt. Citing to Hale, the Court held the custodian of corporate records did not have a Fifth Amendment privilege as to the contents of the records, even though the records tended to incriminate the individual. See also Dreier v. United States, 221 U.S. 394, 31 S.Ct. 550, 55 L.Ed. 784 (1911) (holding corporate officer subpoenaed to produce records of a corporation could not assert his Fifth Amendment privilege against self-incrimination with respect to the corporate records).

In United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944), the Court examined whether an officer of an unincorporated labor union could assert a Fifth Amendment privilege in the contents of the union's records in his possession. The Court held he could not. Explaining the rationale behind the collective entity doctrine, the Court stated:

The constitutional privilege against self-incrimination is essentially a personal one, applying only to natural individuals....

Since the privilege against self-incrimination is a purely personal one, it cannot be utilized by or on behalf of any organization, such as a corporation. Moreover, the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity. But individuals, when acting as representatives of a collective group, cannot be said to be exercising their personal rights and duties nor to be entitled to their purely personal privileges. Rather they assume the rights, duties and privileges of the artificial entity or association of which they are agents or officers and they are bound by its obligations. In their official capacity, therefore, they have no privilege against self-incrimination. And the official records and documents of the organization that are held by them in a representative rather than in a personal capacity cannot be the subject of the personal privilege against self-incrimination, even though production of the papers might tend to incriminate them personally. Such records and papers are not the private records of the individual members or officers of the organization.

Id. at 698-99, 64 S.Ct. at 1251, 88 L.Ed. at 1545-46 (citations omitted).

In Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974), the Court applied the...