Beam ex rel. Martha Stewart Living Omnimedia, Inc. v. Stewart
September Term, 2002 (Del. 2004)
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Rule of Law:
The attorney-client privilege does not protect communications made by a client to an attorney for the purpose of committing or furthering a future crime or fraud. To overcome the privilege, the proponent must provide prima facie evidence that the communication has some foundation in fact related to a future wrongful act.
Facts:
- Elsa Newman was engaged in a bitter divorce and custody battle with her ex-husband, Arlen Slobodow, over their two sons.
- Newman and her best friend, Margery Landry, believed Slobodow was sexually abusing the children, but their official complaints were closed as 'unfounded.'
- During meetings with her domestic relations attorney, Steven Friedman, Newman discussed killing one of her children to frame Slobodow and regain custody of the other.
- In Friedman's presence, Newman and Landry also discussed shooting Slobodow, planting child pornography in his house, and whether to hire someone or do it themselves.
- On January 6, 2002, while Newman was in New Jersey, Landry broke into Slobodow's home.
- Landry, wearing a mask, entered Slobodow's bedroom while he was asleep with his son and shot him in the leg.
- A struggle ensued, during which Slobodow unmasked Landry before she fled the scene.
- Police later found a fanny pack in the basement containing ammunition and pornographic materials.
Procedural Posture:
- Elsa Newman was tried before a jury in the Circuit Court for Montgomery County, a state trial court.
- Before trial, Newman filed a motion to exclude the testimony of her former attorney, Steven Friedman, based on attorney-client privilege.
- The trial court denied the motion and ordered Friedman to testify, finding his testimony fell under the crime-fraud exception to the privilege.
- The jury convicted Newman of conspiracy to commit murder, attempted murder, first degree assault, first degree burglary, and use of a handgun.
- Newman was sentenced to a total of twenty years of incarceration.
- Newman, as appellant, filed a timely appeal to the Court of Special Appeals of Maryland, an intermediate appellate court, challenging the trial court's ruling on the attorney-client privilege and other alleged errors.
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Issue:
Does the crime-fraud exception to the attorney-client privilege permit a client's former attorney to testify about confidential communications in which the client discussed plans to commit future crimes, such as murder and planting false evidence?
Opinions:
Majority - Greene, J.
Yes. The crime-fraud exception to the attorney-client privilege permits an attorney to testify about client communications made in furtherance of future criminal acts. The court distinguished between the ethical duty of confidentiality and the narrower evidentiary attorney-client privilege, noting that only the latter applies when testimony is compelled by law. The privilege is not absolute and 'takes flight if the relation is abused.' Citing the standard from Clark v. United States, the court held that the privilege is broken when there is 'prima facie evidence that [the charge of crime or fraud] has some foundation in fact.' In this case, attorney Steven Friedman's testimony about Newman's detailed discussions of murdering her child, killing her ex-husband, and planting false evidence provided the necessary prima facie showing that the communications were in furtherance of future crimes, thereby stripping them of privilege and making them admissible.
Analysis:
This case provides a clear application of the crime-fraud exception in Maryland, affirming that the purpose of the attorney-client privilege is to promote lawful actions, not to shield criminal conspiracies. It sharply distinguishes the evidentiary privilege from the broader ethical rule of confidentiality, clarifying that only the privilege applies when testimony is compelled by a court. The decision reinforces that once a party provides a prima facie showing that legal advice was sought to further a crime, the 'seal of secrecy' is broken, and the attorney can be compelled to testify against the former client about those specific communications.
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