Maryland Green Party v. Maryland Board of Elections Brief of Amici Curiae

    In the

COURT OF SPECIAL APPEALS OF MARYLAND

No. 35

September Term, 2006

MARYLAND GREEN PARTY, et al.,

Appellants,

v.

MARYLAND BOARD OF ELECTIONS, et al.,

Appellees.

On Appeal from
the Circuit Court for Anne Arundel County

BRIEF OF AMICI CUMAE

Suzanne Sangree 
Janet Hostetler.
Francis D. Mumaghan, Jr. 
Appellate Advocacy Fellow 
PUBLIC JUSTICE CENTER 
500 E. Lexington Street 
Baltimore, MD 21202 
(410) 625-9409

Counsel for Amici Curiae

Roger Frankel
T. Vann Pearce, Jr. (special
admission pending)
Jeffrey A. Showalter (special 
admission pending) 
ORRICK, HERRINGTON & 
SUTCLIFFE, LLP 
3050 K Street, NW 
Washington, DC 20007 
(202) 339-8500 
Counsel for Amici Curiae

January 26, 2007



TABLE OF CONTENTS

TABLE OF
AUTHORITIES...................................................................................................................lii

SUMMARY OF
ARGUMENT........................................................................................................................ 1

INTERESTS OF AMICI.....................  3

ARGUMENT........................................................................................................................3

I. Discovery using third-party subpoenas is an unprecedented obstruction of
attorneys’ fee collection that will discourage private attorneys from 
enforcing laws as intended............................................................................. 3

A. History has demonstrated the critical role attorneys’ fee shifting 
statutes play in the efficient administration of
justice.................................................................................................. 4

B. Attorneys’ fee awards promote private law enforcement, which in
turn promotes law compliance and expands the protection of the 
laws......................................................................................................7

C. Expansive discovery in determining reasonable attorneys’ fees
threatens to frustrate private enforcement of the laws......................11

D. Discovery beyond contemporaneous time records should generally
be disallowed.....................................................................................13

E. The Board of Elections’ unprecedented request will, if upheld,
harass and discourage these and other plaintiffs from vindicating 
their rights..........................................................................................18

II. The lower court’s order calls for discovery that violates the attorney-client
privilege and the work product doctrine and sets a dangerous precedent that 
may greatly reduce government lawyers’ pro bono contributions............. 21

A. By failing to allow for a privilege review, the lower court order
violates the attorney-client privilege................................................21



B. By failing to conduct an evidentiary hearing on attorney work 
product, the lower court order violates the work product
doctrine............................................................................................. 27

C. If this Court finds that the use of a government computer waives the 
attorney-client privilege or work product doctrine, then pro bono 
contributions of government employees may be at serious
risk.................................................................................................... 29

CONCLUSION...................................................................................................................33

RULE 8-112(c) STATEMENT.......................................................................................... 34

RULE 8-511(b)(4) DISCLOSURE STATEMENT...........................................................34

CERTIFICATE OF SERVICE.......................................................................................... 35

Appendix A—Interests of Amici

Appendix B—Pro Bono Policy of the Maryland Public Defender

ii



TABLE OF AUTHORITIES

Maryland Cases

Baltimore City Police Dep’t v. State, 158 Md. App. 274, 857 A.2d 148
(2004)..................................................................................................................................24

Blair v. State, 130 Md. App. 571, 747 A.2d 702 (2000)................................................... 22

E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 718 A.2d 1129 
(1998)............................................................................................................................ 21,27

Ehrlich v. Grove, No. 24-C-03-006508, slip op. (Md. Jan. 11, 2007).............................. 25

Harrison v. State, 276 Md. 122, 345 A.2d 830 (1975)............................................... 22, 23

Kelch v. Mass Transit Admin., 287 Md. 223, 411 A.2d 449 (1980).................................28

Levitsky v. Prince George’s County, 50 Md. App. 484, 439 A.2d 600 (1982)................ 22

Newman v. State, 384 Md. 285, 863 A.2d 321 (2004)...................................................... 25

Parler & Wobber v. Miles & Stockbridge, 359 Md. 671, 756 A.2d 526 (2000)..............23

Reynolds v. State, 98 Md. App. 348, 633 A.2d 455 (1993).......................................  24, 25

Shenkv. Berger, 86 Md.App. 498, 587 A.2d 551 (1991)................................................. 27

Zachair, Ltd. v. Driggs, 135 Md. App. 403, 762 A.2d 991 (2000)............................. 15, 16

Federal Cases

Alyeska Pipeline Service Co. v. Wilderness Soc’y, 421 U.S. 240 (1970)......................... 5

Buckhannon Bd. & Care Home v. West Virginia Dep’t o f Health & Human Res., 532 U.S. 
598 (2001)..........................................................................................................................11

Hensley v. Eckerhart, 461 U.S. 424 (1983)............................................................7, 11, 12

Hickman v. Taylor, 329 U.S. 495 (1947)...........................................................................27

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968)...................................5, 8

iii



Upjohn Co. v. United States, 449 U.S. 383 (1981)..................................................... 23, 26

Chrapliwy v. Uniroyal, Inc., 670 F.2d 760 (7th Cir. 1982)............................................... 14

In re Grand Jury Proceedings, 33 F.3d 342 (4th Cir. 1994)...................................... 21, 27

In re Thirteen Appeals Arising out o f the San Juan Dupont Plaza Hotel Fire Litig., 56
F.3d 295 (1st Cir. 1995).........................................................................................17, 18, 20

Lobatz v. U.S. West Cellular o f Cal., Inc., 222 F.3d 1142 (9th Cir. 2000)....................... 15

N at’l Ass’n o f Concerned Veterans v. Sec’y  o f Defense, 675 F.2d 1319 (D.C. Cir.
1982).......................................................................................................................16, 17, 19

Blowers v. Lawyers Coop. Publ’g Co., 526 F. Supp. 1324 (W.D.N.Y. 1981)...........14, 15

Coalition to Save our Children v. State Bd. ofEduc. o f the State o f Delaware, 143 F.R.D. 
61 (D.Del. 1992)................................................................................................................. 14

Contract Materials Processing, Inc. v. Kataleuna GmbH Catalysts, 222 F. Supp.2d 733 
(D. Md. 2002)..................................................................................................................... 16

Grumman Corp. v. LTVCorp., 533 F. Supp. 1385 (E.D.N.Y. 1982)............................... 14

Gucci America, Inc. v. Rebecca Gold Enterprises, Inc., 802 F. Supp. 1048 (S.D.N.Y. 
1992)................................................................................................................................... 17

Mitroffv. XOMOX Corp., 631 F. Supp. 25 (S.D. Ohio 1985).......................................... 14

Murray v. Stucky’s, Inc., 153 F.R.D. 151 (N.D. Iowa 1993)............................................ 14

Naismith v. Prof’l Golfers Ass’n, 85 F.R.D. 552 (N.D.Ga. 1979).................................... 15

Ruiz v. Estelle, 553 F. Spp. 567 (S.D. Texas 1982)........................................................... 14

Stastny v. S. Bell Tel. & T Co., 77 F.R.D. 662 (W.D.N.C. 1978)..................................... 15

Statutes and Rules

Civil Rights Act of 1964, 42 U.S.C. § 2000a-3 (2000)...................................................... 5

Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988 (2000).................... 5

IV



Clean Air Act, 42 U.S.C. § 7604(d) (2000) 6

Enforcement Act of May 31, 1870 §§ 2-3, 16 Stat. 140, repealed by Act of February 8, 
1894, 28 Stat. 36.............................................................................................................. 4, 5

Family and Medical Leave Act of 1993, 28 U.S.C. § 2617(a)(3) (2000)........................... 9

Fed. R. Civ. P. 54(d)(2) advisory committee’s note (1993 amend.)................................. 15

Interstate Commerce Act of 1887, § 8, 24 Stat. 379........................................................... 6

Local Rules of the U.S. District Court for the District of Maryland, Appendix B,
(l)(a)&(b) (2004)......................................................................................................... 13, 14

Md. Code Ann., Com. Law § 14-3003 (2006).................................................................... 7

Md. Code Ann., Com. Law II § 13-408(b) (2006)................................................ 7

Md. Code Ann., Com. Law II § 14-304 (2006)..................................................... 7

Md. Code Ann., Com. Law II § 14-407 (2006)...........   7

Md. Code Ann., Cts. & Jud. Proc., § 9-108 (2006).......................................................... 22

Md. Code Ann., Lab. & Empl. § 9-734 (2006)................................................................... 7

Md. Code Ann., Health Occ. § 1-505 (2006)...................................................................... 7

Md. Code Ann., Real Prop. § 8-203(e)(4) (2006)............................................................... 7

Md. Lawyers’ Rule of Professional Conduct 1.6.............................................................. 22

Md. Lawyers’ Rules of Professional Conduct 6.1.......................................................29, 31

Md. Rule 2-402(d)....................................................................................................... 27, 28

Securities Act of 1933, 15 U.S.C. § 77k(e) (2000)............................................................. 6

Securities and Exchange Act of 1934, 15 U.S.C. §§ 78i(e), 78r(a), 78u(h)(8)
(2000).................................................................................................................. .................6

Sherman Antitrust Act, 15 U.S.C. § 1-7.............................................................................6

v



Other Authorities

1-1 Manual for Complex Litigation (Fourth) § 14.22....................................................... 15

ABA Model Rule 6.1, Voluntary Pro Bono Public Service............................................. 31

ABA/BNA Lawyer’s Manual on Professional Conduct, No. 269 (2004)........................ 23

ABA Task Force on the Attorney-Client Privilege, Report o f the American Bar 
Association’s Task Force on the Attorney-Client Privilege, 60 Bus. Law. 1029 (2004- 
2005)...................................................................................................................................22

Armand Derfner, Background and Origin o f the Civil Rights Attorney’s Fee Awards Act 
o f 1976, 37 Urb. Law. 653 (2005).................................................................................9, 10

Fred Zacharias, Rethinking Confidentiality, 1A Iowa L. Rev. 352 (1989)....................... 23

Henry Cohen, Congressional Research Service, Awards o f Attorneys ’ Fees by Federal 
Courts and Federal Agencies (2006)..............................................................................5, 6

H. R. Rep. No. 94-1558 (1976)............................................................................................8

Janet Stidmen Eveleth, “MSBA Joins ABA in Quest to Protect Attorney-Client 
Privilege,” Maryland Bar Bulletin (April 2006)......................................................... 23, 24

John Leubsdorf, Toward a History o f the American Rule on Attorney Fee Recovery, 47 
Law & Contemp. Probs. 9 (1984)....................................................................................6, 7

Kenneth W. Starr, The Shifting Panorama o f Attorneys ’ Fees Awards: The Expansion o f 
Fee Recoveries in Federal Court, 28 S. Tex. L. Rev. 189 (1986-1987)............................ 9

Mary Frances Derfner, One Giant Step: The Civil Rights Attorneys ’ Fees Awards Act o f 
1976, 21 St. Louis U. L.J. 441 (1977-1978)..................................................................9, 10

Mary Frances Derfner and Arthur D. Wolf, Court Awarded Attorneys ’ Fees § 18.06[1] 
(2006)..................................................................................................................................12

Maryland Office of the Attorney General Polices & Procedures § 10.2 Pro Bono 
Representation Program (April 10, 2000)..............................................................29, 30, 31

Note, State Attorney Fee Shifting Statutes: Are We Quietly Repealing the American 
Rule?, A1 Law & Contemp. Probs. 321 (1984)................................................................ 6

vi



Office of the Public Defender, Policy on Pro Bono Representation and Service 31

Robert V. Percival and Geoffrey P. Miller, The Role o f Attorney Fee Shifting in Public 
Interest Litigation, 47 Law & Contemp. Probs. 233 (1984)............................................. 8

S. Rep. No. 94-1011 (1976)..................................................................................... .passim

Thomas D. Rowe, Jr., The Legal Theory o f Attorney Fee Shifting: A Critical Overview, 
1982 DukeL.J. 651.............................................................................................................. 8

United States Postal Service Law Department Policy Statement on Pro Bono 
Services.........................................................................................................................30, 31

Vincent Alexander, The Corporate Attorney Client Privilege: A Study o f the Participants, 
63 St. John’s L. Rev. 191 (1989).......................................................................................23

vii



SUMMARY OF ARGUMENT1

The trial court’s order, if allowed to stand, will set a damaging precedent by 

reducing the effectiveness of private attorneys general statutes and by weakening the 

attorney-client privilege and attorney work product doctrine. The order is contrary to the 

purposes of these bedrock policies and, therefore, should be reversed. In addition, the 

order should be reversed because it will discourage government attorneys from 

performing pro bono work.

Statutes providing for the award of reasonable attorneys’ fees to the prevailing 

party can be traced to the 1860’s and they have become vital to promoting the 

enforcement of our nation’s laws. This is particularly true for “private attorneys general” 

statutes where state and Federal legislatures entrusted the enforcement of our most 

important rights to private citizens. The promise of attorneys’ fees for successful litigants 

counteracts the economic disadvantages most potential litigants face in finding competent 

counsel. To effectuate the legislative policy, a party who has succeeded on the merits 

should be awarded reasonable attorneys’ fees as quickly and painlessly as possible.

To prevent long, debilitating fights over the amount of the fees, when a factual 

dispute concerning the claimed fees has been identified, if discovery is deemed necessary 

to resolve this dispute it should be strictly limited to obtaining an attorney’s 

contemporaneous time records, or if compensation is claimed for time not documented in 

such records, to ascertaining how the attorney reconstructed the time claimed. In

1 Amici adopt the Statement of the Case, the Questions Presented and the Statement of 
Facts from the Green Party’s brief to this Court.

1



addition, under such circumstances, discovery of a fee opponent’s time records can be 

appropriate to counter arguments that the prevailing plaintiffs attorneys spent too much 

time on the case. The only issue in a fee award dispute is what fees are “reasonable” as 

determined by the court, so only such limited information as is needed by the court to 

make that determination is relevant. The case law and commentators, both in Maryland 

and elsewhere, are united in disfavoring discovery beyond these parameters.

The Board of Elections’ discovery requests are unprecedented in two respects. 

First, they seek discovery from a non-party to the action. Second, they seek extremely 

broad “any and all” discovery without first objecting to the requested fees and creating a 

factual dispute. No court has countenanced such broad discovery to determine fees, since 

this information is unnecessary to the simple determination of what is a “reasonable” fee. 

Allowing this discovery would serve only to harass the Green Party, its attorneys, and the 

non-party involved, and to discourage future vindication of rights contrary to the intent of 

Congress.

The order granted below also sets a damaging precedent by giving no protection to 

privileged attorney-client communication or attorney work product. Maryland has long 

recognized the value of these important privileges and developed procedures for the 

nondisclosure of privileged material. The trial court here ignored those procedures, 

giving no opportunity for the attorneys to conduct a privilege review before discovery.

Aside from weakening the force of these privileges generally, this order, if 

allowed to stand, will particularly discourage the practice of legal pro bono work. All 

attorneys are obligated to perform pro bono work. Despite what the Board of Elections

2



argues, government agencies are among the employers that commonly encourage their 

attorney employees to perform pro bono work. Allowing free discovery of their work 

computers and files without protection for privileged material adds risk for all parties 

involved (the employee, the employer, and the pro bono client) and will decrease or even 

stop employers from encouraging pro bono work.

INTERESTS OF AMICI

As more fully described in Appendix A, Amici are nine local and national non­

profit organizations dedicated to protecting civil rights, the environment, consumers, 

tenants, and low and moderate wage workers, especially immigrant workers. In 

addition, Amici include a local Christian bar association and a state-wide employment 

lawyers association. Each of these organizations is concerned that allowing the lower 

court’s order to stand would undermine the viability of our private attorneys general 

system of enforcement of critical public policy. Moreover, they are concerned that 

refusing to reverse the lower court’s discovery order would seriously damage protections 

for client confidentiality and attorney work product privilege, so vital to the integrity of 

the legal profession.

ARGUMENT

I. Expansive discovery using third-party subpoenas is an unprecedented
obstruction of attorneys’ fee collection that will discourage private attorneys 
from enforcing laws as intended.

Fee shifting statutes have long been a favored means of enforcing laws by 

encouraging private enforcement. Because of the prohibitive burden discovery places on 

the party entitled to benefit from the statute, discovery related to the amount of fee

3



awards must either be denied or carefully restricted. Broad discovery risks undermining 

the system of private enforcement envisioned by the legislature. The trial court’s order in 

this case impermissibly allows broad discovery on a non-party to determine the amount 

of attorneys’ fees.

A. History has demonstrated the critical role attorneys’ fee shifting statutes 
play in the efficient administration of justice.

The history and development of fee shifting statutes offers guidance regarding the 

application of the statutes to obtain the intended societal benefit. The historical record 

shows how these statutes successfully encourage private enforcement of laws that benefit 

the public as a whole. Congress and state legislatures have enthusiastically embraced the 

solution of fee shifting, affirming its effectiveness. For the public to reap the benefits of 

greater enforcement, attorneys’ fees must be awarded as lawmakers intended. This 

means plaintiffs and their counsel must be confident in getting the fee awards they 

rightfully earn quickly, without a long, discouraging battle to assess the award.

Since the Nineteenth Century, Congress and state legislatures have used attorneys’ 

fees statutes to enforce laws and protect important rights and liberties. Legislative 

sanction of the award of attorneys’ fees is one of the exceptions to the “American Rule,” 

the general rule in this country that litigants must pay their own attorneys’ fees, win or 

lose. Statutory fee shifting extends back to the Reconstruction Era. Congress enacted the 

Enforcement Act of May 31, 1870 to protect the rights of newly freed slaves to vote, and 

violators were penalized by paying the plaintiff a fine including “such allowance for 

counsel fees as the court should deem just.” §§ 2-3, 16 Stat. 140, repealed by Act of

4



February 8, 1894, 28 Stat. 36. Although this act was repealed when our nation retreated 

from Reconstruction, it foreshadowed the important use of fee shifting under “private 

attorneys general” statutes to enforce civil rights laws.

In 1964, Congress returned to the idea of empowering citizens to protect civil 

rights, both the rights of the individual litigant and of citizens generally, through fee 

shifting for successful plaintiffs. Congress entrusts the protection of virtually all of our 

most important constitutional rights to private litigants. See, e.g., Civil Rights Act of 

1964, 42 U.S.C. § 2000a-3 (2000); Henry Cohen, Congressional Research Service, 

Awards o f Attorneys ’ Fees by Federal Courts and Federal Agencies 63-112 (2006)

(listing all statutes). These attorney fee awards were justified by the theory that plaintiffs 

vindicated the public interest in litigating their claims and thus acted as a “private 

attorney general, vindicating a policy that Congress considered of the highest priority.” 

See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968). These suits are 

private in form only; Congress relies on these suits to ensure broad compliance with the 

laws and ensure that the rights of all Americans are protected. See id.

An example of the high priority Congress placed on private enforcement of civil 

rights is the quick passage of the statute under which the Green Party has earned fees, the 

Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. The Supreme Court 

struck down the practice of judicial awards of attorneys’ fees absent explicit legislative 

authorization in 1975. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 

(1975). This left a wide gap where parties could not be awarded attorneys’ fees after 

winning cases under many important civil rights statutes, such as 42 U.S.C. § 1981, but

5



that gap was closed quickly. See S. Rep. No. 94-1011, at 4 (1976). The first bill to 

overturn Alyeska was introduced less than a month after the decision, and a final version, 

the current 42 U.S.C. § 1988, was passed the next year. Id. at 2.

The first legislative abrogation of the American Rule has been followed by a 

continual expansion of fee shifting statutes. Although fee shifting awards are closely 

associated with the important role they play in promoting civil rights, fee shifting is used 

in a variety of contexts to provide incentive for meritorious lawsuits. The first major 

antitrust legislation, the Sherman Act of 1890, provided for attorneys’ fees awards, as did 

a law regulating railroads. Interstate Commerce Act of 1887, § 8, 24 Stat. 379; Sherman 

Antitrust Act, 15 U.S.C. § 1-7. The landmark securities laws of the 1930s provided for 

fee shifting. Securities Act of 1933, 15 U.S.C. § 77k(e) (2000); Securities and Exchange 

Act of 1934, 15 U.S.C. §§ 78i(e), 78r(a), 78u(h)(8) (2000). Attorneys’ fees were 

authorized for plaintiffs suing under environmental laws. See, e.g., Clean Air Act, 42

U.S.C. § 7604(d) (2000). Today, over 200 federal statutes authorize awards of attorneys’ 

fees, covering a tremendous range of potential parties and activities. See Cohen, CRS, 

Awards o f Attorneys ’ Fees at 63-112 (listing all statutes).

Legislative enactment of attorneys’ fees statutes has not occurred exclusively on 

the federal level; legislatures in all fifty states have passed such statutes. See Note, State 

Attorney Fee Shifting Statutes: Are We Quietly Repealing the American Rule?, 47 Law 

& Contemp. Probs. 321 (1984) (finding nearly 2,000 state attorney fee shifting statutes). 

This practice also dates back to the 1870s at the state level. See John Leubsdorf, Toward 

a History o f the American Rule on Attorney Fee Recovery, 47 Law & Contemp. Probs. 9,

6



25 n.l 14 (1984). Maryland is no exception, having enacted nearly one hundred 

attorneys’ fees statutes in areas ranging from consumer protection, to protection of 

whistleblowers, to soil conservation.

Both state and federal legislatures have had years to evaluate the effectiveness of 

attorneys’ fee awards in various areas of law, and have continuously expanded the 

opportunities for fee recovery. See Hensley v. Eckerkart, 461 U.S. 424, 444 n.3 (1983) 

(Brennan, J., concurring in part and dissenting in part). Legislatures have found that fee 

shifting is a beneficial practice that meets the intended goal of enforcing the large number 

of laws that cannot be effectively enforced through the usual public and private methods. 

Indeed, Congress has specifically recognized fee shifting to be a “traditionally effective 

remedy” promoting law enforcement. S. Rep. No. 94-1011, at 6 (1976).

B. Attorneys’ fee awards promote private law enforcement, which in turn 
promotes law compliance and expands the protection of the laws.

To adequately enforce a host of laws that benefit the public as a whole solely 

through public enforcement, the size of government would have to be dramatically 

expanded. See S. Rep. No. 94-1011, at 4. In addition to the unwieldiness of purely 

public enforcement, private parties frequently are in a better position to know of and 2

2See, e.g., Md. Code Ann., Com. Law § 14-3003 (2006) (attorney’s fees to enforce 
protections against false or misleading e-mails); Md. Health Care Worker Whistleblower 
Protection Act, Md. Code Ann., Health Occ. § 1-505 (2006) (fee awards for successful 
plaintiffs); Md. Code Ann., Lab. & Empl. § 9-734 (2006) (attorney’s fees in worker’s 
compensation cases); Md. Consumer Protection Act, Md. Code, Com. Law II § 13-408(b) 
(2006); Md. Code, Com. Law II, § 14-304 (2006) (attorney’s fees for actions to enforce 
protections against door-to-door sales); Md. Service Contracts and Consumer Products 
Guaranty Act, Md. Code, Com. Law II, § 14-407(c)(2)(ii) (2006); Md. Code, Real Prop.
§ 8-203(e)(4) (2006) (attorney’s fees for collecting security deposit wrongfully withheld).

7



pursue violations of many laws through civil litigation. For instance, a person denied 

employment because of racial discrimination, or an employee at a company violating 

environmental laws may already know the facts without need for a government 

investigation. As a result, state and federal legislatures have determined that civil suits 

by private parties are the most efficient way to enforce many laws primarily benefiting 

the public interest.

Private enforcement of public interest laws under the normal American Rule, 

however, is hampered by economic disincentives. See Robert V. Percival and Geoffrey 

P. Miller, The Role o f Attorney Fee Shifting in Public Interest Litigation, 47 Law & 

Contemp. Probs. 233, 237-238 (1984). Private enforcement produces predominantly 

external benefits because it benefits large segments of the public, but the comparative 

benefit to the individual is often small. See id. Successful plaintiffs in many cases only 

obtain injunctive relief and not damages. See Newman, 390 U.S. at 401-02. Many 

potential litigants are unable to afford counsel, compounding the problem of 

enforcement. See H. R. Rep. No. 94-1558, at 1 (1976). The total gain to society may 

greatly exceed the cost to one beneficiary, but it rarely can be economically justified for 

any one person to pursue such litigation. See Thomas D. Rowe, Jr., The Legal Theory o f 

Attorney Fee Shifting: A Critical Overview, 1982 Duke L.J. 651, 662. Without fee 

shifting provisions the important legislative policies are frustrated, and the legislature 

does nothing more than create toothless rights impeded by economic barriers to 

enforcement.

8



The overall goal of statutes that award attorneys’ fees is to increase the incentive 

to enforce the law, particularly the laws affecting the public interest. Kenneth W. Starr, 

The Shifting Panorama o f Attorneys ’ Fees Awards: The Expansion o f Fee Recoveries in 

Federal Court, 28 S. Tex. L. Rev. 189, 195 (1986-1987). Under most of these statutes, 

the plaintiff is entitled to fees as a matter of right. See, e.g., S. Rep. No. 94-1011, at 4 

(successful party seeking to enforce rights should ordinarily recover attorneys’ fees); 

Family and Medical Leave Act of 1993, 28 U.S.C. § 2617(a)(3) (2000) (example of a 

mandatory fee award). Thus, shifting the attorneys’ fees to the prevailing plaintiff helps 

remove the economic disincentive to private litigation.

There are a number of reasons why attorneys’ fee statutes succeed in encouraging 

enforcement of the law and vindicating the public interest. The prospect of an attorneys’ 

fee award increases the supply of both qualified litigants and competent counsel. 

Obviously, more potential plaintiffs with valid claims will litigate if they are not 

burdened with paying for representation. Attorneys’ fees help fund organizations 

dedicated to litigating public interest law claims, supplementing their resources and 

allowing them to take on more cases. See Armand Derfner, Background and Origin o f 

the Civil Rights Attorney’s Fee Awards Act o f1976, 37 Urb. Law. 653, 656 (2005). The 

assurance of a reasonable fee if successful also attracts other lawyers who would not 

otherwise take on poor clients or unpopular causes. See id.

The inclusion of the private bar leads to a “decentralization” of public interest law. 

See Mary Frances Derfner, One Giant Step: The Civil Rights Attorneys ’ Fees Awards Act 

o f 1976, 21 St. Louis U. L.J. 441, 445 (1977-1978). Attorneys outside of the major

9



metropolitan areas, where most public interest law organizations are located, are now 

willing to sue on behalf of local clients with a public interest claim. See id. Plaintiffs 

outside of urban areas have more options for counsel, and so are more likely to use the 

laws to protect their rights. See id. Genuine protection of rights under the law is thus 

expanded nationally.

Fee shifting provisions also deter those who might break the laws by increasing 

the cost of transgressing. See Armand Derfner, Background and Origin o f the Civil 

Rights Attorney’s Fee Awards Act o f 1976, 37 Urb. Law. 653, 656 (2005). First, violators 

are more likely to be brought to court. Potential violators know that the apparatus for 

finding and punishing them is drastically expanded—every citizen is a potential law 

enforcer. In addition, the penalty is greater since the loser will pay both sides’ attorneys’ 

fees. See Mary Frances Derfner, One Giant Step: The Civil Rights Attorneys ’ Fees 

Awards Act o f1976, 21 St. Louis U. L.J. 441, 445 n.29 (1977-1978).

Private supplementation of government enforcement, triggered by the promise of 

attorneys’ fees for the winning plaintiff, creates the most good for society at the least 

cost. As the legislative history to the Civil Rights Attorneys’ Fees Awards Act of 1976 

attests, Congress found it “essential” to award attorneys’ fees as an “integral part of the 

remedies necessary to obtain ... compliance” with federal civil rights laws. S. Rep. No. 

94-1011, at 5. Without fee awards, citizens do not have a “meaningful opportunity” to 

protect their rights. Id. at 2.

10



C. Expansive discovery in determining reasonable attorneys’ fees threatens to 
frustrate private enforcement of the laws.

Valuation of a reasonable fee was never meant to spawn a “second major 

litigation.” Hensley, 461 U.S. at 437. Besides needlessly wasting judicial resources on a 

collateral issue, extended litigation over the fee amount contravenes the intent of these 

statutes. The Supreme Court cautions lower courts to “avoid[] an interpretation of the fee 

shifting statutes that would . . . spawn[] a second litigation of significant dimension.” 

Buckhannon Bd. & Care Home v. West Virginia Dep’t o f Health & Human Res., 532 U.S. 

598, 609 (2001). Just as rights without remedies are not really rights, remedies without 

prompt satisfaction are not really remedies. Providing the opportunity for attorneys’ fee 

awards is only the first step; quickly and adequately compensating successful litigants is 

a necessary second step. Unfortunately, the determination of the fee award can become a 

lingering morass if not tightly controlled.

In managing attorneys’ fee award disputes, courts should always keep in mind the 

principles of encouraging enforcement and promoting the public good that underlie all 

fee shifting statutes. The goal of fee shifting is to remove the economic disincentives to 

bring claims under laws benefiting larger societal interests. Legislatures intended that 

plaintiffs who prevail on the merits should receive reasonable fees as a matter of course. 

Logically it follows that proceedings to assess the fee should be as simple as possible. As 

Justice Brennan warned, “The more obstacles that are placed in the path of parties who 

have won significant relief and then seek reasonable attorneys’ fees, the less likely 

lawyers will be to undertake the risk” of representing future public interest plaintiffs.

11



Hensley, 461 U.S. at 456 (Brennan, J., concurring in part and dissenting in part).

Requiring counsel to undergo a costly second litigation concerning their fees, especially a 

second litigation which threatens to destroy their work product privilege and attorney 

client confidentiality, see infra Point II, creates a huge disincentive to providing 

representation on such claims. Accordingly, secondary litigation regarding fees greatly 

undermines the positive cycle of benefits to society provided by fee shifting statutes.

“If the cost of private enforcement actions becomes too great, there will be no 

private enforcement.” S. Rep. No. 94-1011, at 7. Plaintiffs in public interest litigation 

usually begin with the disadvantage that they lack the resources of the defendant. Then, 

along with their attorney, they must survive the ordeal of the many stages of civil 

litigation with no assurance of eventual compensation. To subject them to “a second 

major litigation” over fees after they win their case increases the cost in time and money 

of private enforcement actions, injecting more uncertainty and risk into the calculus of 

would-be plaintiffs and counsel when deciding whether to sue. While surely it is 

important for plaintiffs to only collect reasonable fees and to avoid “windfalls” for 

plaintiffs’ counsel, overburdened fee proceedings place too much strain on plaintiffs and 

thereby destroy the underlying incentive that the legislature created.

Protracted discovery on attorneys’ fees threatens to increase the costs of private 

enforcement actions to a discouraging level. See Mary Frances Derfner and Arthur D. 

Wolf, Court Awarded Attorneys’ Fees § 18.06[1] (2006) (“. . . litigation over fee amounts 

[can] easily dwarf the case on the merits if discovery were allowed and extensive 

evidentiary hearings granted.”). It is hardly surprising then that neither the Federal Rules

12



of Civil Procedure, the Maryland Rules of Civil Procedure, nor any Federal or Maryland 

fee shifting statute expressly gives an opponent to an attorneys’ fee award discovery as of 

right.

D. Discovery beyond contemporaneous time records should generally be 
disallowed.

The court’s only task in attorneys’ fee litigation is simple and discrete: determine 

a “reasonable” fee, and award it. If this determination was treated like litigation on the 

merits, the definition of “reasonable” could be argued endlessly. But attorneys’ fee 

proceedings are not like proceedings on the merits, because as explained above that 

would be antithetical to their purpose. Fee award proceedings are limited to determining 

a reasonable fee, and that is all.

In the fee petition, the attorneys for the prevailing party submit an accounting of 

the hours they worked on different aspects of the case. Ordinarily, such an accounting is 

accompanied by contemporaneous time records documenting the attorneys’ time. See 

e.g., Local Rules of the U.S. District Court for the District of Maryland, Appendix B, 

(l)(a)&(b) (2004) (specifying time records format). Opposing counsel has the 

opportunity to submit objections to the fee request, and must identify genuine factual 

disputes (for example, challenging that too much time was spent on a particular task). 

The judge then decides whether the whole or some part of those hours was reasonably 

expended and what hourly rate would be reasonable.

This determination should require no discovery except in two limited 

circumstances. First, when the party seeking fees does not provide contemporaneous

13



attorney time records, those records can, in the court’s discretion, be discoverable. 

Moreover, upon a showing that an attorney seeks compensation for time that is not 

reflected in contemporaneous time records, then limited discovery can be permitted to 

determine how the attorney recreated the time records entered, if the court believes it will 

be necessary and helpful in resolving the specific factual disputes raised by opposing 

counsel. Second, when the party opposing fees argues that the prevailing plaintiffs 

attorneys spent too much time on an aspect of the case, discovery of the opponent’s 

attorney time records can be allowed in order to gamer evidence to counter that 

argument. Certainly, if the defendant’s attorneys spent as much or more time on that 

aspect of the case, the argument that plaintiffs attorneys spent too much time would be 

effectively undercut. Discovery of opposing counsel’s time records in a fee dispute is 

specifically contemplated under the local federal mles. Id. at (l)(e), and it is the most 

common discovery allowed in fee disputes in federal courts nationwide.3

3 See, e.g., Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 768 & n. 18 (7th Cir. 1982) (“The 
rates charged by defendant’s attorneys provide a useful guide to rates customarily 
charged in this type of case); Mitroff v. XOMOX Corp., 631 F. Supp. 25, 28 (S.D. Ohio 
1985) (“Pertinent to any consideration of a reasonable amount of time expended in the 
prosecution of a law suit is the amount of time expended by the defendant in defending 
that lawsuit”); Ruiz v. Estelle, 553 F. Spp. 567, 589 (S.D. Texas 1982) (“In an action for 
which no adequate parallel can be found, the best example of a fee paid for similar work 
is that paid by opposing counsel in the same action”) Murray v. Stucky’s, Inc., 153 F.R.D. 
151, 152-3 (N.D. Iowa 1993) (where defendants challenged reasonableness of hours and 
rates claimed by plaintiffs in their fee petition, defendants ordered to disclose time 
expended by their counsel in defending the case); Coalition to Save our Children v. State 
Bd. ofEduc. o f the State o f Delaware, 143 F.R.D. 61, 64-66 (D.Del. 1992) (same); 
Grumman Corp. v. LTV Corp., 533 F. Supp. 1385, 1391 (E.D.N.Y. 1982) (granting 
plaintiff “leave to take comparative discovery from LTV’s counsel. . .  as bearing of the 
issue of reasonableness of rates and time charged in prosecuting LTV’s opposition to 
Grumman’s preliminary injunction application”); Blowers v. Lawyers Coop. Publ’g Co.,

14



In most cases, however, discovery is wholly unnecessary: “On rare occasion, the 

court may determine that discovery . . . would be useful.” Fed. R. Civ. P. 54(d)(2) 

advisory committee’s note (1993 amend.) (emphasis added) (discussing the general Rule 

governing attorneys’ fees claims). Well-known commentators also support this common 

sense position. See, e.g., 1-1 Manual for Complex Litigation (Fourth) § 14.22 

(“Discovery in connection with fee motions should rarely be permitted . . . .”). 

Recognizing the danger of unnecessary discovery, many courts have refused to allow 

discovery on attorneys’ fees motions at all, even as to contemporaneous time records if 

the court does not need them to calculate a reasonable fee. See Lobatz v. U.S. West 

Cellular o f Cal., Inc., 222 F.3d 1142, 1148 (9th Cir. 2000) (“We decline to adopt a rule 

that a district court must grant a request for discovery of contemporaneous time records 

in every case in which attorneys’ fees are sought.”). In any event, the type of full-blown 

discovery allowed in deciding issues on the merits, should never be allowed for fee 

petitions.

The Board of Elections’ claimed right to third party discovery is not the 

established law in Maryland. See also Zachair, Ltd. v. Driggs, 135 Md. App. 403, 434, 

762 A.2d 991, 1008-1009 (Md. Ct. Spec. App. 2000), cert, denied, 768 A.2d 54 (Md.

526 F. Supp. 1324, 1327 (W.D.N.Y. 1981) (allowing discovery by plaintiff regarding 
amount of time spent by defendant’s attorneys in the case and the amount of costs and 
disbursements incurred by them, finding such information “may have significant bearing” 
on the reasonableness of plaintiffs’ expenditures); Naismith v. Prof’l Golfers Ass ’n, 85 
F.R.D. 552, 562-63 (N.D.Ga. 1979) (same); Stastny v. S. Bell Tel. & T Co., 77 F.R.D.
662, 663-64 (W.D.N.C. 1978) (“In a contest over what time was reasonably and 
necessarily spent in the preparation of a case, it is obvious that the time that the 
opposition found necessary to prepare its case would be probative.”)

15



2001) (attorneys’ oral testimony concerning work performed was sufficient evidence for 

fee award in the absence of contemporaneous time records). Courts applying Maryland 

law have embraced the idea that voluminous discovery is not necessary to determine a 

reasonable fee even when the prevailing attorneys’ time records are imperfect. See 

Contract Materials Processing, Inc. v. Kataleuna GmbH Catalysts, 222 F. Supp. 2d 733, 

749-750 (D. Md. 2002) (discussing award of attorneys’ fees under Maryland Uniform 

Trade Secrets Act). In Kataleuna, summaries of billing records were adequate for the 

court to determine a reasonable fee, so the court denied the defendants’ request for 

discovery regarding fees. Id. at 744. In Kataleuna, as here, the opposing party could 

point to “no authority for such an all-encompassing right to discovery.” Id. Similarly, in 

Zachair, the Court of Special Appeals deemed the evidence sufficient to support a fee 

award despite a lack of documentary evidence as to hours worked or precisely what was 

done or charged during those hours. 135 Md. App. at 434, 762 A.2d at 1008-1009.

Even the cases cited in the Board of Elections’ briefing below from other 

jurisdictions as persuasive authority in support of their request, hold that when discovery 

is allowed it must be strictly limited in scope and duration. “[I]t is not expected that fee 

contests should be resolved only after the type of searching discovery that is typical 

where issues on the merits are presented.” Nat’l Ass’n. o f Concerned Veterans v. Sec’y o f 

Defense, 675 F.2d 1319, 1329 (D.C. Cir. 1982). The court in Concerned Veterans 

allowed discovery on fees, but only where the evidence submitted in support of the fee 

award was inadequate and left a genuine dispute of fact as to the hours claimed or the 

proper rate. See id. at 1332. The court permitted only discovery requests to the party’s

16



attorneys that were “precisely framed” and useful for determining either the proper 

billing rate or the nature and extent of the work done. See id. at 1329, 1334, 1337. Once 

a party succeeded on the merits, the scope of legitimate challenges to a fee award for that 

party was limited. Id. at 1338 (Tamm, J., concurring).

In Concerned Veterans, the D.C. Circuit added its voice to the chorus urging 

restraint in attorneys’ fee discovery. “[Attorneys must not be deterred from engaging in 

this type of work by the prospect of protracted litigation over reasonable demands for 

compensation.” Id. at 1329. Thus, the trial court’s discretion should be guided by this 

principle: “the interests of justice will be served by awarding the prevailing party his fees 

as promptly as possible.” Id. at 1330.

Similarly, the court in Gucci America, Inc. v. Rebecca Gold Enterprises, Inc., 802 

F. Supp. 1048 (S.D.N.Y. 1992), also cited by the Board of Elections, allowed “limited 

discovery, narrowly focused to those issues relating to the reasonableness of the proposed 

fee award.” 1053. The fee opponents’ bid to “engage in unrestrained discovery 

activities” was denied. Id. at 1052. Instead, the focus and methods of discovery were 

narrowed “to avoid unproductive discovery and waste of time.” Id.

The rare fee award opponent who demands invasive, irrelevant discovery, like the 

Board of Elections here, finds such requests quickly denied. For example, the First 

Circuit affirmed the denial of a request for the employment and tax records of law firm 

employees, agreeing with the trial court that it was “a discovery scheme of needless and 

unreasonable proportions.” In re Thirteen Appeals Arising out o f the San Juan Dupont 

Plaza Hotel Fire Litig., 56 F.3d 295, 303 (1st Cir. 1995) (fee opponent sought production

17



of tax returns for firm employees and details about vacations, maternity leaves, and the 

provision of training programs). Such “freewheeling adversarial discovery” would not 

lead to reasonably necessary information. Id.

E. The Board of Elections’ unprecedented request will, if upheld, harass and 
discourage these and other plaintiffs from vindicating their rights.

The Board of Elections cites no case where similar discovery requests were 

permitted, because it cannot: they are truly unprecedented in the history of fee award 

litigation. The requests are unprecedented not only in seeking discovery from a non- 

party, but also in their scope. If allowed to stand as precedent, this discovery could 

seriously damage the future conduct of a broad spectrum of socially beneficial litigation.

There is no need in this or any other case to draw a third party into protracted 

attorneys’ fee award litigation. Non-parties are unlikely to possess relevant information 

on the reasonableness of fees that the lawyers who litigated the case cannot provide.

Even if a third party could have some information that is arguably tangentially relevant, 

all authorities have recognized fee awards litigation is not properly resolved by such 

searching discovery. To allow broad discovery on third parties is to shift fee award 

litigation into the realm of a full-blown adversarial proceeding on the merits, with the 

accompanying months or years of discovery, extensive motion practice, and interlocutory 

appeals. As described previously, this is directly contrary to the intent of fee award 

statutes.

Non-party discovery is especially likely to harass both the non-party and the 

attorney seeking fees. First, these requests will place a time and expense burden on the

18



non-party that could be quite significant. The record in this case, for example, shows that 

it will cost Montgomery College $33,000 to comply with the Board of Elections’ 

requests. It also harasses the attorney seeking fees if the non-party has any leverage over 

the attorney. The non-party has every incentive to avoid this burdensome discovery 

request, so the non-party will be motivated to pressure the attorney to drop the fee award 

claim or come to an unfair agreement. This will be especially dangerous in situations 

such as the case here when the non-party is the attorney’s employer. The attorney may 

be faced with a Hobson’s choice of foregoing the fee award he has earned or facing 

retribution at his jobsite. The discovery request to the non-party is thus being used 

improperly as indirect leverage on the attorney seeking fees.

Drawing a third party into the dispute in an attempt to pressure a prevailing civil 

rights plaintiff turns the inquiry regarding a reasonable fee award into a “purely 

vindictive contest.” Concerned Veterans, 675 F.2d at 1330. Having lost their day in 

court on the merits, and lost again in seeking to prevent any attorneys’ fee award, the 

Board of Elections continues to fight tooth and nail to avoid any significant fee liability. 

These requests are a roundabout way of trying to win financially even when they have 

lost legally. It also serves as a warning to future plaintiffs: expect a scorched earth war if 

you challenge the State Board of Elections’ future violations of the law.

The scope of these discovery requests also seriously overreaches what prior courts 

have allowed. The issues relevant to awarding attorneys’ fees are how much the lawyer 

worked and what that time is worth. The requests here go far beyond what is reasonably 

needed to make a determination on those issues. Time sheets and leave requests outside

19



of the case at bar are sought, ostensibly to prove Mr. Miller could not have worked as 

much as he did on the case. This is analogous to seeking an attorney’s time records from 

other cases. In fact, this request goes even further because the time records sought are 

actually outside the scope of his work as an attorney. Under this theory, a fee opponent 

could subpoena an attorney’s gym membership records, or records of attendance at 

religious ceremonies, to account for his or her activities every hour of the day. This 

information is well beyond what prior court decisions have found to be reasonably 

necessary. Likewise, records of Mr. Miller’s employment application and wages at his 

other job are similar to the “freewheeling adversarial discovery” rejected in other fee 

disputes. Cf. In re Thirteen Appeals, 56 F.3d at 303.

If allowed to stand, the order granting this discovery will broadly impede the 

enforcement of hundreds of laws that benefit society. Section A of this Argument 

detailed the hundreds of federal and thousands of state laws that rely on fee shifting 

statutes for private enforcement in a wide variety of substantive areas. If this decision is 

affirmed, the risk of pursuing a fee shifting case will increase, making potential plaintiffs 

and attorneys less likely to pursue this socially beneficial litigation. If fewer attorneys 

and plaintiffs are willing to pursue these cases, private enforcement through fee shifting 

will decline. The legislatures of all fifty states and the federal government have decided 

that the current system of private enforcement through fee shifting statutes, where 

prevailing parties entitled to fees are granted those fees quickly and without unnecessary 

legal wrangling, is sound public policy. This public policy will be undermined if this 

order is upheld.

20



II. The lower court’s order calls for discovery that violates the attorney-client
privilege and the work product doctrine and sets a dangerous precedent that 
may greatly reduce government lawyers’ pro bono contributions.

The court order compelling discovery fatally ignores the attorney-client privilege

and the work product doctrine by requiring the production of all documents without

allowing for any privilege review. The work product doctrine is historically a privilege

that can be asserted by either the attorney or the client; while the attorney-client privilege

is held by the client. In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994).

Both seek to protect confidential information to promote zealous advocacy and frank

communication to attorneys. EJ. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351

Md. 396, 407, 718 A.2d 1129, 1134 (1998). By failing to provide an opportunity to

review the documents for privileged information and for attorney work product, the lower

court’s order exceeds the acceptable scope of discovery. Additionally, the lower court’s

order sets a precedent that endangers attorneys’ pro bono service, perhaps especially pro

bono service by attorneys employed by government entities.

A. By failing to allow for a privilege review, the lower court order violates the 
attorney-client privilege.

Despite the Board of Elections’ decision to forego some of its discovery requests, 

the lower court granted an order that allowed all of the Board’s discovery requests. This 

broad order violates the attorney-client privilege because it fails to provide any 

protection, by way of a privilege review, to the attorney-client privileged materials that 

are sure to be found on the Green Party attorney’s computer at Montgomery College.

21



In Maryland, the attorney-client privilege is codified at Md. Code Ann., Cts. &

Jud. Proc., § 9-108 (2006). In Harrison v. State, the Court of Appeals essentially adopted 

Professor Wigmore’s definition of the attorney-client privilege: “‘(l)Where legal advice 

of [any] kind is sought (2) from a professional legal adviser in his capacity as such, (3) 

the communications relating to that purpose, (4) made in confidence (5) by the client, (6) 

are at his insistence permanently protected (7) from disclosure by himself or by the legal 

advisor, (8) except the protection [may] be waived.’” 276 Md. 122, 133-34, 345 A.2d 

830, 837 (1975) (quoting 8 John H. Wigmore, Wigmore on Evidence § 2292, at 554 

(McNaughton rev. ed. 1961) (footnote omitted)). The attorney-client privilege works as a 

rule of evidence prohibiting disclosure of a communication made in confidence by a 

client to an attorney to obtain legal advice. See Blair v. State, 130 Md. App. 571, 605, 

747 A.2d 702, 720 (2000); Levitsky v. Prince George’s County, 50 Md. App. 484, 491, 

439 A.2d 600, 604 (1982). Moreover, an attorney’s duty to preserve client confidences 

extends far beyond the court room, to protect all client communications for all time. Md. 

Lawyers’ Rule of Professional Conduct 1.6. Commentators consistently have 

acknowledged that confidentiality is the bedrock of the attorney-client relationship. See, 

e.g., ABA/BNA Lawyer’s Manual on Professional Conduct, No. 269 at 55:302 (2004) 

(“[Confidentiality facilitates the fact-finding process that is critical to representation and 

also has the effect of encouraging early legal consultation.”) (citing Model Rule of Prof 1 

Conduct R. 1.6 cmt.).

Protecting the attorney-client privilege is important due to its rich public policy 

benefits. The public policy behind the privilege is to encourage the free flow of

22



information between clients and their attorneys, enabling attorneys to more effectively 

represent their clients. Parler & Wobber v. Miles & Stockbridge, 359 Md. 671, 691, 756 

A.2d 526, 537 (2000); see generally Vincent Alexander, The Corporate Attorney Client 

Privilege: A Study o f the Participants, 63 St. John’s L. Rev. 191 (1989); Fred Zacharias, 

Rethinking Confidentiality, 74 Iowa L. Rev. 352 (1989). This free flow of information 

“thereby promote[s] broader public interests in the observance of law and administration 

of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The American Bar 

Association’s Task Force on the Attorney-Client Privilege recently declared that the 

privilege serves multiple purposes including: (i) fostering the attorney-client relationship, 

(ii) encouraging client candor, (iii) enhancing voluntary legal compliance, (iv) promoting 

the efficient administration of justice, and (v) enhancing the constitutional right to 

effective assistance of counsel. ABA Task Force on the Attorney-Client Privilege, 

Report o f the American Bar Association’s Task Force on the Attorney-Client Privilege,

60 Bus. Law. 1029, 1037-1040 (2004-2005).

Although the attorney-client privilege does not have an explicit constitutional 

underpinning, the privilege is nevertheless closely tied to the state and federal 

constitutional guarantees of effective assistance of counsel and could, if limited too 

severely, make these basic guarantees virtually meaningless. Harrison, 276 Md. at 135, 

345 A.2d at 838. In fact, the Maryland State Bar Association recently joined the ABA’s 

“quest to protect the fundamental rights of lawyers and clients” in an effort “[t]o preserve 

the attorney client privilege....” Janet Stidmen Eveleth, “MSBA Joins ABA in Quest to 

Protect Attorney-Client Privilege,” Maryland Bar Bulletin (April 2006)

23



http://www.msba.org/departments/commpubl/publications/bar_bult/2006/apr/privilege.ht 

m (last accessed on December 16, 2006).

Because privileges are important, the Court of Appeals of Maryland outlined a 

procedure for determining the discoverability of privileged material in Reynolds v. State, 

98 Md. App. 348, 367, 633 A.2d 455, 464 (1993) (Murphy, J.); see also Baltimore City 

Police Dep’t v. State, 158 Md. App. 274, 857 A.2d 148 (2004) (using the Reynolds 

procedure for determining the discoverability of privilege material). At issue in Reynolds 

was whether the defendant in a criminal case was entitled to pre-trial inspection of the 

mental health records of his daughter, the alleged victim of his sexual and physical abuse. 

The defendant wished to ascertain whether those records contained any material useful 

for cross-examination of the victim. Recognizing that such records are statutorily 

privileged, Md. Code Ann., Cts. & Jud. Proc. § 9-109 (1973, 2002 Repl. Vol.), Reynolds 

argued that he was entitled to expanded in camera review of the records under the 

authority of Pennsylvania v. Ritchie, 480 U.S. 39 (1987), and Zaal v. State, 326 Md. 54, 

602 A.2d 1247(1992).

Weighing Reynolds’s argument, the court looked to the test developed in 

Hamilton v. Verdow, 287 Md. 544, 566-67, 414 A.2d 914, 926-27 (1980) to determine 

disclosure of materials that are subject to a claim of executive privilege, and concluded 

that the same approach should be used when statutorily privileged material is sought for 

discovery. Reynolds, 98 Md. App. at 365-66, 633 A.2d 462-63. Accordingly, the court 

held, documents claimed to be privileged remain “presumptively privileged even from in 

camera inspection.” Id. at 365, 463. The burden is on the party seeking production to

24

http://www.msba.org/departments/commpubl/publications/bar_bult/2006/apr/privilege.ht


make a preliminary showing that the communications or documents might not be 

privileged or that there is some necessity for production. Id. If the requesting party has 

failed either to establish that the documents claimed to be privileged are in fact not 

privileged or to show a need for documents that are privileged, the court directs that there 

be no disclosure. Id. If that initial burden has been met by the requesting party, then the 

court should order an in camera inspection. Id. at 365-66, 463.

Depending upon the issues and circumstances, the in camera inspection may be 

utilized to determine whether the material is privileged. Id. This procedure should 

separate information protected by the statute codifying the privilege into three categories: 

(1) information that is not reviewed by the trial judge because there has been no 

preliminary showing of necessity for a review; (2) information that is reviewed by the 

trial judge alone, but not thereafter revealed to counsel because it is not even arguably 

relevant and usable; and (3) information that is reviewed by the trial judge and thereafter 

revealed to counsel in their roles as officers of the court. Id. at 367, 464; see also Ehrlich 

v. Grove, No. 24-C-03-006508, slip op. (Md. Jan. 11, 2007) (determining that a party 

should not have access to the other party’s documents if a privilege is claimed and a 

proper in camera review has not been conducted); Newman v. State, 384 Md. 285, 863 

A.2d 621 (2004) (finding in camera hearing is appropriate mechanism for determining 

admissibility of allegedly attorney-client privileged evidence).

Here, the court order did not allow for an appropriate review of the documents at 

issue. Many documents responsive to the request of “all documents relating to this 

lawsuit” and “all computer files, e-mails, electronic correspondence or other documents

25



relating to this lawsuit” are likely to be protected by the attorney-client privilege. The 

court order, however, did not provide Green Party attorneys the opportunity to review for 

privilege, and since the discovery is sought from a third party, the court’s order does not 

allow the Green Party the right to review any material before it is produced. Since the 

court order did not allow for a privilege review, the order was overly broad and directly 

infringed upon the attorney-client privilege.

The order strips the client, the owner of the privilege, of protection for its 

confidential communications. This is directly contrary to Maryland and Supreme Court 

precedent. If there is a dispute as to whether some or all documents are privileged, the 

proper procedure is to withhold privileged documents, have the client’s attorney create a 

privilege log of those documents, and let the trial court resolve any questions of privilege 

using the test stated above. Such a labor-intensive process is unnecessary in this case 

because further discovery concerning fees should not be allowed. However, in the event 

that this court allows such discovery to proceed, it should not allow it to do so in a 

manner that erodes the attorney-client privilege and puts the privilege itself in doubt; 

instead this Court should remand the order and direct that the Green Party attorneys 

review material for privilege before any documents are produced. This is necessary 

because, as the United States Supreme Court declared in the Upjohn case, “An uncertain 

privilege ... is little better than no privilege at all.” 449 U.S. at 393.

26



B. By failing to conduct an evidentiary hearing on attorney work product, the 
lower court order violated the work product doctrine.

Like the communications protected by the attorney-client privilege that are likely 

to be found on attorney Miller’s computer and in his documents related to the case, his 

computer and documents will also likely contain attorney work product that is privileged 

and protected from discovery under Maryland Rule 2-402(d). This rule essentially 

codifies the Supreme Court’s holding in Hickman v. Taylor, 329 U.S. 495 (1947). E.I. du 

Pont de Nemours & Co., 351 Md. at 408, 718 A.2d at 1135.

When confronted with claims of work product privilege, courts must balance the 

need for efficient litigation through liberal disclosure against the attorney’s responsibility 

to be a zealous and protective advocate for his or her client. E.I. du Pont de Nemours & 

Co., 351 Md. at 407; accord Hickman, 329 U.S. at 506-07. In doing so, Maryland courts 

often look for guidance to the interpretation of the near identical Federal Rule of Civil 

Procedure 26(b)(3). Shenk v. Berger, 86 Md.App. 498, 502, 587 A.2d 551, 553 (1991). 

Courts have analyzed the work product privilege in two contexts: fact work product and 

opinion work product. Hickman, at 507. Both are generally protected and can be 

discovered only in limited circumstances. See In re Grand Jury Proceedings, 33 F.3d at 

348. Fact work product can be discovered upon a showing of both a substantial need and 

an inability to secure the substantial equivalent of the materials by alternate means 

without undue hardship. Id.; Md. Rule 2-402(d). Opinion work product is even more 

scrupulously protected as it represents the actual thoughts and impressions of the 

attorney. Id. Indeed, Maryland Rule 2-402(d) directs: “[T]he court shall protect against

27



disclosure of the mental impressions, conclusions, opinions, or legal theories of an 

attorney or other representative of a party concerning the litigation.” (emphasis added).

Determining whether a document is prepared “in anticipation of litigation” and 

thus encompassed by the privilege, is essentially a question of fact typically determined 

by the trial judge following an evidentiary hearing. Kelch v. Mass Transit Admin., 287 

Md. 223, 228, 411 A.2d 449, 453 (1980). The party claiming the privilege bears the 

burden to substantiate its non-discovery assertion by a preponderance of the evidence. 

Kelch, 287 Md. at 229, 411 A.2d at 453. If the moving party is successful with its claim, 

then the party seeking discovery of fact work product can gain access to the 

communications by demonstrating “substantial need” and “undue hardship.” See Md. 

Rule 2-402(d). Opinion work product generally cannot be obtained. In re Grand Jury 

Proceedings, 33 F.3d at 348; Md. Rule 2-402(d).

Here, the court order does not allow for an evidentiary hearing on the attorney 

work product that is likely to be found on the Green Party attorney’s computer or in his 

documents relating to the case. Like attorney-client privilege, work product stands for 

nothing unless it is protected by the courts. It is remarkable that the lower court’s order 

failed to mention attorney work product at all. While Amici believe further discovery on 

this fee petition would be inappropriate, at a minimum, this Court should allow the Green 

Party attorneys to review the material on Mr. Miller’s computer at Montgomery College 

for attorney work product and then, if necessary, allow an evidentiary hearing on the 

issue.

28



C. If this Court finds that the use of a government computer waived the 
attorney-client privilege or work product doctrine, then the pro bono 
contributions of government employees may be at serious risk.

The Board of Elections has attempted to find fault with Mr. Miller’s use of a 

government computer; however, his use of a government computer is not as unusual as 

the Board would have this Court believe. Mr. Miller’s use of his employer’s computer 

did not, in itself, waive the attorney-client privilege or work product doctrine, and such a 

finding would discourage future government attorney pro bono contributions and perhaps 

will discourage pro bono contributions of all employed attorneys.4

As officers of the court, and as a condition of being licensed to practice law in 

Maryland, all attorneys bear the responsibility to provide pro bono legal services. Md. 

Lawyers’ Rule of Professional Conduct 6.1. Accordingly, government attorneys, like 

those in nonprofits and private practice, consistently perform pro bono work in addition 

to their normal job tasks. The lower court’s order runs the risk of chilling this beneficial 

trend.

Pro bono work does not occur in a vacuum. Rather, in compliance with their 

employers’ policies, attorneys often use their employers’ computers, printers, and other 

resources. While permitting use of office resources, many employers’ pro bono policies, 

especially those in the non-profit and government sectors, make clear that the individual 

attorney is providing the representation and not the employer. E.g., Maryland Office of 

the Attorney General Polices & Procedures § 10.2 Pro Bono Representation Program

4 The risk of expensive and unprivileged discovery would likely discourage employers of 
attorneys in both the private and public sectors from allowing or encouraging pro bono 
service.

29



(April 10, 2000),

http://www.abanet.org/govpub.MD%20AG%20Pro%20bono%20policy.pdf (last 

accessed on December 8, 2006). In any event, the same standards of professional 

conduct apply without regard to whether the client pays for the attorney’s services, and 

the same privilege protections for confidential communications and work product also 

apply. Thus, the fact that Appellants did not pay for representation and that their 

attorneys had agreed to work pro bono if they did not obtain a fee award does not 

diminish the privilege protections that apply in this case.

The Board of Elections contends that Appellants’ attorney improperly used a 

Maryland government computer, a public resource, while working on this case; however, 

Montgomery College permitted attorney Miller to use its resources for pro bono work, 

and had policies in place to protect the confidentiality of documents and communications 

on its computers. This arrangement is not unique to Montgomery College. Indeed, it is 

common for government agencies to encourage attorneys they employ to fulfill their pro 

bono obligations.

Many government agencies and bar associations, including the Maryland State Bar 

Association, encourage pro bono work by government employees that are attorneys. For 

example, the United States Postal Service encourages pro bono work by its employees. 

See United States Postal Service Law Department Policy Statement on Pro Bono 

Services,

http://www.abanet.org/govpub/US%20Postal%Service%20pro%bono%20policy.pdf (last 

accessed on December 8, 2006). Specifically, the United States Postal Service

30

http://www.abanet.org/govpub.MD%20AG%20Pro%20bono%20policy.pdf
http://www.abanet.org/govpub/US%20Postal%25Service%20pro%25bono%20policy.pdf


encourages pro bono work representing “individuals, groups or organizations seeking to 

secure or protect civil rights....” Id. The American Bar Association also supports 

government lawyers serving their communities through pro bono and public service. At 

the 2006 Annual Meeting, the ABA House of Delegates adopted Resolution 121A which, 

in part, urges government attorneys to serve their communities through pro bono and 

public service activities consistent with applicable rules of professional conduct. See also 

ABA Model Rule 6.1, Voluntary Pro Bono Public Service.

The Maryland State Bar Association and Maryland government agencies are no 

different in their support of pro bono service by their attorneys. For example, the 

Maryland Office of the Attorney General specifically allows for pro bono service. See 

Maryland Office of the Attorney General Polices & Procedures § 10.2 Pro Bono 

Representation Program. So long as the employee still performs his or her regular 

employment duties, the Attorney General’s Office encourages its attorneys to provide pro 

bono service, and will provide for limited secretarial support and use of office supplies. 

Id. The Maryland Office of the Public Defender has a similar policy. See Office of the 

Public Defender, Policy on Pro Bono Representation and Services (attached in Appendix 

B); see also Md. Lawyers’ Rules of Professional Conduct 6.1, Comment 5 (encouraging 

government lawyers to engage in pro bono service).

Requiring a government agency to produce the documents or computer files of an 

employee who has provided pro bono legal services will chill both the agency’s 

willingness to allow employees to participate in pro bono legal work and the employee’s 

willingness to perform pro bono legal work. For government agencies, and indeed for all

31



employers of attorneys, the exposure due to costly third party discovery requests likely 

will cause agencies to limit their employees’ pro bono participation. Agencies might also 

reduce or eliminate the use of their assets such as computers in support of employees’ pro 

bono projects for fear of having that asset or computer confiscated. Employees may also 

be reluctant to engage in pro bono work for fear of an overly broad court order 

endangering or complicating their remunerated work life. Lastly, clients would be 

reluctant to accept pro bono representation by government employees for fear that they 

would be disadvantaged in litigation and that their intimate secrets would be discoverable 

upon request. For these reasons, this Court should consider the negative implications that 

the lower court’s order will have on pro bono work.

32



CONCLUSION

Accordingly, and for the reasons set forth herein, this Court should reverse the 

Order of the Circuit Court for Anne Arundel County.

Respectfully Submitted,

RogefTrankel
T. Vann Pearce, Jr .(Special admission pending) 
Jeffrey A. Showalter (special admission pending) 
ORRICK, HERRINGTON & SUTCLIFFE LLP 
3050 K Street, NW 
Washington, DC 20007 
(202)339-8400

Suzanne Sangree
Janet Hostetler
PUBLIC JUSTICE CENTER
500 East Lexington Street
Baltimore, Maryland 21202
(410) 625-9409
Counsel for Amici Curiae

33



RULE 8-112(c) STATEMENT

This Brief was prepared using 13 point Times New Roman for text and 13 point 

Times New Roman for footnotes with double spacing in the text and one line spacing in 

footnotes. Md. Rules 8-112(c) and 8-504(a)(8).

RULE 8-511 DISCLOSURE STATEMENT 

Counsel for Amici have consulted with Green Party counsel in order to minimize 

duplication of argument. Otherwise, apart from Amici and their counsel, no other 

individual or entity has made a monetary or other contribution to the preparation or 

submission of this amicus brief.

34



CERTIFICATE OF SERVICE

I hereby certify that on this 26th day of January, 2007,1 mailed first class, postage 

prepaid, a copy of the foregoing brief to the following:

Michael D. Berman Frank Dunbaugh
Deputy Chief of Civil Litigation 744 Holly Drive North
Mark Davis Assistant Attorney General 
200 St. Paul Place, 20th Floor

Annapolis, MD 21401

Baltimore, MD 21202 Edward Wisneski 
Patton Boggs LLP

Tim Dietz 2550 M Street, NW
Assisstant General Counsel 
Montgomery College

Washington, DC 20037

900 Hungerford Drive, Room 355 C.Christopher Brown
Rockville, MD 20850 Joseph Espo

Brown, Goldstein & Levy, LLP
Deborah A. Jeon 120 E. Baltimore Street, Suite 1700
David Rocah
ACLU Foundation of Maryland

Baltimore, MD 21202

3600 Clipper Mill Road, Suite 350 Mark Miller
Baltimore, MD 21211 10-N Plateau Place 

Greenbelt, MD 20770

Roger Frankel 
ORRICK, HE INGTON & SUTCLIFFE LLP

35



APPENDIX A -  INTERESTS OF AMICI

1



Interests of Amici

CASA of Maryland, Inc. (CASA) is a non-profit organization that educates, 

organizes and provides health, employment, legal and other services to the Latino 

immigrant and refugee communities in Maryland. CASA attorneys provide legal advice 

and representation to low-wage workers living primarily in Baltimore City, Montgomery 

County and Prince George’s County. In 2006 alone, CASA recovered $200,000 in 

unpaid wages, opened legal cases for 250 individuals, and provided legal information to 

approximately 2,750 workers. CASA utilizes a range of tools including negotiation, 

organizing, litigation, and workers’ rights education, reaching thousands of primarily 

Spanish speaking individuals. CASA routinely litigates under the Maryland Wage 

Payment and Collection Law, seeking attorneys’ fees which allow CASA to take cases 

for which the organization otherwise would lack adequate funding.

Civil Justice, Inc. (CJ) is a non-profit, public interest legal association founded in 

1998 for the purpose of increasing the delivery of legal services to clients of low and 

moderate income means. Through its concentrated work CJ has represented hundreds 

individually and thousands of Maryland consumers in class action cases who been 

victimized by predatory real estate matters involving fee shifting, consumer protection 

statutes. See, e.g., Greer v. Crown Title Corp, Cir. Ct. Balt. City, Case No. 24-C- 

02001227; Naughten v. Millennium Escrow & Title, Civil Action No. 02-cv-2078 

(U.S.Dist.Ct.Md.); Gray v. Fountainhead Title, Civil Action No. 03-cv-01675 

(U.S.Dist.Ct.Md.); Keneipp v. Fountainhead Title Group Corp., Civil Action No. 03-cv-

2



02813 (U.S.Dist.Ct.Md.); Johnson v. Fountainhead Title Group Corp., Civil Action No. 

03-cv-03106 (U.S.Dist.Ct.Md.); Robinson v. Fountainhead Title Group Corp., 447 

F.Supp.2d 478 (D.Md. 2006); Benway v. Resource Real Estate Services, Civil 

Action No. 05-CV-3250 (U.S.Dist.Ct.Md.); Wells Fargo v. Neal, and Capitol Mortg. 

Bankers, Inc. v. Cuomo, 222 F.3d 151 (C.A.4 2000) (on behalf of the 

Amici Curiae). In addition CJ co-counsels with a network of solo- and small firm 

attorneys on various consumer protection statutes as a means to help demonstrate to 

members of the private bar that they can earn a reasonable award under a fee shifting 

statute while working in the public’s interest to protect the rights of consumers, 

homeowners, or tenants who have been wrongfully damaged. CJ has an interest in this 

case solely because hundreds and perhaps thousands of Maryland consumers annually, 

need the private bar to represent their interests when the protections and rights afforded 

them are denied. Without a reasonable fee shifting award mechanism low and moderate 

income borrowers will find it even more difficult to get access to justice and the 

protections intended by the legislature.

The Greater Baltimore Christian Legal Society (GBCLS) is a local attorney 

chapter of the national Christian Legal Society. The motto of the Christian Legal Society 

is “Doing justice with the love o f God, ” and GBCLS encourages its attorneys to furnish 

legal services to the poor and needy. GBCLS recognizes the inherent dignity of all 

human life, and believes it is especially important to advocate for those who, because of 

their circumstances, are vulnerable and without an effective voice or means to assert or

3



vindicate their lawful rights. In this regard, GBCLS believes it is especially important to 

protect and promote the rule of law, such that no person is above the law, and all persons 

have access to the legal system to vindicate their rights under the law. GBCLS believes 

that allowing legal fees to the successful plaintiff in civil rights actions is a critical 

element of the upholding of the mle of law, and that the trial court’s decision in 

Maryland Green Party vs. Maryland Board o f Elections undermines that element. If 

upheld, the trial court’s ruling would set a negative precedent for the future enforcement 

of “private attorneys general” statutes, as it could discourage private attorneys from 

taking on meritorious cases against an aggressive defendant with substantial litigation 

resources. Accordingly, the GBCLS is interested in the resolution of this important case.

The Labor Council for Latin American Advancement (LCLAA) is a non-profit 

organization representing the needs and interests of 1.5 million Latino/a trade unionist 

members of AFL-CIO and Change to Win affiliate international unions. LCLAA has 

seventy-four chapters in twenty-four states including Puerto Rico. Because Latino/a 

Americans and Latino/a immigrants are at great risk of questionable marketplace 

transactions, LCLAA supports laws and public policies to protect their interests. LCLAA 

is greatly concerned that permitting wide-ranging discovery on fee petitions, without 

privilege protections, will greatly diminish the availability of attorneys willing to 

represent low-wage workers to vindicate their employment rights.

Maryland Disability Law Center (MDLC) is the federally mandated protection 

and advocacy system for Maryland, established to advance and protect the rights of

4



people with disabilities. MDLC joins people with disabilities in expanding opportunities 

to participate fully in all aspects of community life, championing their rights to equality 

and to be free from abuse, neglect and discrimination. MDLC is a non-profit public 

interest law firm that relies on a variety of sources of funding to sustain its practice. 

MDLC represents persons who generally live at poverty level and who can not pay for 

legal services. The ability to generate attorneys’ fees in a fair and efficient manner is 

critical to MDLC’s ability to provide services to low income persons and to enforce their 

rights under various civil rights laws.

The Maryland Employment Lawyers Association (MELA) is the Maryland 

affiliate of a 3,000 member organization called the National Employment Lawyers 

Association (NELA), the only professional membership organization in the country 

comprised of lawyers who represent employees in labor, employment, and civil rights 

disputes. Committed to working on behalf of those who have been illegally treated in the 

workplace, MELA strives to protect the rights of its members’ clients, and regularly 

supports precedent-setting litigation affecting the rights of individuals in the workplace. 

MELA advocates for employee rights and workplace fairness while promoting the 

highest standards of professionalism, ethics, and judicial integrity. Many MELA 

members represent low-wage and other employees who cannot afford to pay for counsel 

in fee-shifting civil rights and wage payment cases. MELA members must submit fee 

petitions when successful in these cases. MELA therefore has an interest in ensuring that 

Maryland courts do not permit fee petition requests to turn into adversarial second

5



litigations, which would inhibit their ability to perform work on behalf of lower wage 

workers.

The National Council of La Raza (“NCLR”) is a leading national Hispanic civil 

rights and advocacy organization established in 1968 to reduce poverty and 

discrimination, and improve life opportunities for Hispanic Americans. NCLR has 

chosen to work toward this goal through two primary, complementary approaches: 

capacity-building assistance to support and strengthen Hispanic community-based 

organizations, and applied research, policy analysis, and advocacy on issues such as 

education, immigration, housing, health, employment and training, and civil rights 

enforcement affecting the Hispanic community. NCLR’s Office of Research, Advocacy, 

and Legislation is the preeminent Hispanic “think tank” serving as a voice for Hispanic 

Americans in Washington, D.C. NCLR has consistently advocated for the rights of 

immigrant workers and has appeared as amicus curiae in numerous cases, including 

Hoffman Plastics Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), and Campbell v. 

Bolourian, No. 869, Md. Court of Special Appeals (September Term, 2005).

The NAACP Legal Defense and Educational Fund, Inc. ("LDF") is a non­

profit corporation established under the laws of the State of New York formed to redress 

injustice caused by racial discrimination and to assist African Americans in securing their 

constitutional and statutory rights. For over six decades, LDF attorneys have represented 

parties in litigation before the Supreme Court, federal and state courts on matters of race 

discrimination and similar questions. LDF has litigated important cases involving fee-

6



shifting statutes such as Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968); 

Northcross v. Bd. ofEduc. o f Memphis, 412 U.S. 427 (1973,)/ Bradley v. Sch. Bd. of 

Richmond, 416 U.S. 696 (1974); Hutto v. Finney, 437 U.S. 678 (1978); and Missouri v. 

Jenkins, 491 U.S. 274 (1989), and has applied for and received fee awards in many cases 

that it has successfully brought. LDF accordingly has a strong interest in maintaining 

appropriate standards governing the determination of "reasonable attorneys’ fees" under 

such statutes.

The Natural Resources Defense Council, Inc. (NRDC) is a not-for-profit 

environmental membership organization founded in 1970. NRDC’s purposes include 

protection of human health and the environment. NRDC’s staff of lawyers, scientists, 

and other environmental professionals work to protect the planet’s wildlife and wild 

places and to ensure safe and healthy communities for NRDC’s more than one-half 

million members and their families.

NRDC’s efforts to protect human health and the environment routinely involve 

litigation against government agencies and corporations brought under federal statutes 

with fee-shifting provisions, including the Clean Air Act, the Clean Water Act, the 

Endangered Species Act, and the Resource Conservation and Recovery Act. Other 

NRDC cases provide for fee recovery under the Equal Access to Justice Act. NRDC is 

concerned that if the lower court’s order is not reversed, the efficacy of fee-shifting 

statutes, so critical to our work, will be dramatically undermined.

7



Public Citizen is a non-profit, consumer advocacy organization with 

approximately 100,000 members nationwide. Since 1971, Public Citizen has been active 

in the courts, in Congress, and before regulatory agencies seeking to promote the 

enforcement of health and safety, environmental, and consumer legislation. Through its 

Litigation Group, Public Citizen has represented plaintiffs in litigation regarding the 

meaning of fee-shifting statutes in a wide range of cases. See, e.g., Scarborough v. 

Principi, 541 U.S. 401 (2004); Melkonyan v. Sullivan, 501 U.S. 89 (1991); Jones v. 

Brown, 41 F.3d 634 (Fed. Cir. 1994); National Ass ’n o f Concerned Veterans v. Secretary 

o f Defense, 675 F.2d 1319 (D.C. Cir. 1982). In all of these cases, Public Citizen has 

sought to further the policies behind fee-shifting legislation: providing a means for 

ordinary citizens, who otherwise could not afford counsel, to enforce laws meant to 

advance civil rights, environmental and consumer protection, and other important social 

goals. Public Citizen appears as amicus in this case because the lower court’s discovery 

order, unless reversed, threatens to undermine the efficacy of fee-shifting legislation.

The Public Justice Center (PJC) is a Maryland non-profit civil rights and anti­

poverty legal services organization dedicated to protecting the rights of the 

underrepresented. Established in 1985, the PJC has used impact litigation, public 

education, and legislative advocacy to accomplish law reform for its clients in the areas 

of civil rights, disability rights, housing, employment, health care, and children’s rights. 

The PJC has established an appellate advocacy project to expand and improve the 

representation of indigent and disadvantaged persons and civil rights issues before the

8



Maryland state and federal appellate courts. The PJC is concerned that allowing the 

subpoena to be enforced in this case will set a dangerous precedent undermining the 

viability of the private attorneys general system of enforcement of a host of important 

public policies from civil rights to consumer and environmental protection. Such a 

precedent would also threaten the integrity of the legal profession by discouraging pro 

bono work and undermining protections for client confidences and attorney work 

product.

9



APPENDIX B -  PRO BONO POLICY OF THE MARYLAND PUBLIC
DEFENDER

10



Office of the Public Defender

Policy on Pro Bono Representation and Services

I. Introduction

One of the many challenges facing our legal system today is meeting the legal 
needs of citizens unable to pay for civil legal assistance. The magnitude of these needs 
has increased in recent years with the growing complexity of our legal process. Given 
the significant unmet need for civil legal services by disadvantaged citizens of our State, 
the Office of the Public Defender encourages and seeks to facilitate efforts by attorneys 
employed by the Office to provide pro bono publico legal service within their 
communities. While it is true that the dedicated attorneys of the Office of the Public 
Defender answer the highest of all callings within the legal profession by fulfilling the 
constitutional promise of the right to counsel, public defenders are not exempt from the 
ethical obligation of all lawyers under the Maryland Rules of Professional Conduct to 
render pro bono publico legal service.

II. Rule 6.1 o f the Maryland Rules o f Professional Conduct

Rule 6.1 of the Maryland Rules of Professional Conduct sets forth three ways in 
which licensed attorneys are encouraged to render pro bono publico legal service. 
Essentially, the Rule encourages attorneys to: (1) provide free legal representation to 
persons or organizations of limited means; (2) engage in activities that strive to improve 
the law, the legal profession, or the legal system; or (3) contribute financial support to 
organizations that provide legal representation to persons of limited means.

The Rule states as follows:

Rule 6.1 Pro Bono Publico Legal Service

(a) Professional Responsibility. A lawyer has a professional responsibility 
to render pro bono publico legal service.

(b) Discharge of Professional Responsibility. A lawyer in the full-time 
practice of law should aspire to render at least 50 hours per year of pro 
bono publico legal service, and a lawyer in part-time practice should aspire 
to render at least a pro rata number of hours.

(1) Unless a lawyer is prohibited by law from rendering the legal 
services described below, a substantial portion of the applicable

11



hours should be devoted to rendering legal service, without fee or 
expectation of fee, or at a substantially reduced fee, to:

(A) people of limited means;

(B) charitable, religious, civic, community, governmental, or 
educational organizations in matters designed primarily to 
address the needs of people of limited means;

(C) individuals, groups, or organizations seeking to secure or 
protect civil rights, civil liberties, or public rights; or

(D) charitable, religious, civic, community, governmental, or 
educational organizations in matters in furtherance of their 
organizational purposes when the payment of the standard 
legal fees would significantly deplete the organization’s 
economic resources or would otherwise be inappropriate.

(2) The remainder of the applicable hours may be devoted to 
activities for improving the law, the legal system, or the legal 
profession.

(3) A lawyer also may discharge the professional responsibility set 
forth in this Rule by contributing financial support to organizations 
that provide legal services to persons of limited means.

(c) Effect of Noncompliance. This Rule is aspirational, not mandatory. 
Noncompliance with this Rule shall not be grounds for disciplinary action 
or other sanctions.

III. Rule 6.1 and the Office Policy o f Rendering Pro Bono Publico Legal Service

In the past, the Office of the Public Defender encouraged its attorneys to render 
pro bono publico legal service by either engaging in activities that strive to improve the 
law, the legal profession, or the legal system; or by contributing financial support to 
organizations that provide legal representation to persons of limited means. The Office 
continues to encourage its attorneys to render pro bono publico legal service in this 
manner. Examples of such activities include:

teaching legal education courses
public speaking on legal issues
volunteering as a mediator or settlement facilitator

12



serving as a faculty member for the MSBA Professionalism Course
serving on court created committees
serving on a board of a legal services organization or other law related entity

Additionally, the Office now encourages its attorneys to provide free legal 
representation to persons or organizations of limited means in a manner consistent with 
the guidelines set forth in this policy.5 Providing pro bono legal representation to persons 
or organizations of limited means does not conflict with section 3 of Article 27A which 
prohibits the Public Defender, Deputy Public Defender, District Public Defenders, and 
Assistant Public Defenders from engaging in the private practice of law.

TV. The Office o f the Public Defender Pro Bono Coordinator & The Maryland Volunteer 
Lawyers Service (MVLS).

The Office of the Public Defender has selected the Maryland Volunteer Lawyers 
Service (MVLS) as the Office’s primary pro bono referral source. The Office of the 
Public Defender Pro Bono Coordinator will serve as the liaison between the attorneys of 
the Office seeking to provide pro bono legal services and the MVLS. The MVLS will 
provide professional liability insurance to Office attorneys seeking to provide pro bono 
legal services in cases referred to the Office by MVLS.

There are several ways in which an Office attorney may retain a pro bono client. 
First, an Office attorney seeking to provide pro bono legal services may contact the 
Office Pro Bono Coordinator and ask to be assigned a case from the MVLS. The Office 
Pro Bono Coordinator will discuss the type of case the Office attorney is willing handle. 
The Office Pro Bono Coordinator will then select a case from the MVLS to assign to the 
Office attorney.

5It is important to note that pro bono representation encompasses two components: 
(1) legal representation without a fee, and (2) legal representation to persons or 
organizations of limited means. An attorney is not providing pro bono representation by 
simply waiving the legal fees associated with the representation. The representation must 
be provided to persons or organizations of limited means as defined in Rule 6.1 of the 
Maryland Rules of Professional Conduct.

13



A second way for an attorney to retain a pro bono client is for the attorney to 
contact the Office Pro Bono Coordinator and ask to retain a specific client on a specific 
matter. The Office Pro Bono Coordinator will then screen the prospective client. If the 
Office Pro Bono Coordinator approves the client, then the Office Pro Bono Coordinator 
will request that MVLS provide professional liability insurance to the attorney. If MVLS 
declines to provide professional liability insurance, the attorney may not retain the client 
unless the attorney is able to obtain professional liability insurance coverage from another 
referral source.

The Office Pro Bono Coordinator will screen all prospective clients and cases for 
conflicts of interest with existing Office of the Public Defender cases. Ultimately, 
however, it is the responsibility of the Office attorney to ensure that his/her pro bono 
legal services do not create a conflict of interest.

No Office attorney may render pro bono legal representation without the prior 
approval of the Office Pro Bono Coordinator.

V. Time and Approval o f Supervising Attorney

An Office attorney may not engage in any pro bono representation without first 
obtaining approval from his or her supervisor.

Office attorneys shall carry out their pro bono responsibilities on their own time. 
This does not mean that the Office attorneys may not perform pro bono activities during 
normal working hours. Rather, Office attorneys must continue to account for at least 40 
hours of professional services each week on behalf of the Office of the Public Defender 
and our clients. Pro bono representation is to be undertaken in addition to, not in lieu of, 
each Office attorney’s core responsibilities to the Office of the Public Defender and our 
clients.

An Office attorney must continue to work the required 40 hours per week devoted 
to the Office of the Public Defender and our clients. If the Office attorney worked less 
than 40 hours in a week for the Office of the Public Defender as a result of pro bono 
representation, the Office attorney is required to take leave to account for any shortfall in 
the 40-hour minimum work week. Although an Office attorney need not take leave for 
small amounts of pro bono time during the work day, significant blocks of time, i.e. in 
excess of one hour spent exclusively on a pro bono matter, should be recorded as leave. 
The Office attorney shall keep track of and record the amount of the Office attorney’s 
time spent on pro bono activity. The Office attorney must report this time to his or her 
supervisor.

14



Office attorneys must keep their supervisors informed whenever pro bono 
representation will occur during regular working hours. While supervisors are 
encouraged to provide reasonable accommodations to Office attorneys desiring to 
perform pro bono legal services, supervisors may limit these activities and the Office 
attorney must refrain from performing them when the supervisor determines that such 
services will conflict with the Office attorney’s obligations to the Office of the Public 
Defender and our clients.

VI. Clerical Support

Pro bono legal work is not an official duty and may not be required of support 
staff. Support staff may, however, assist Office attorneys in pro bono representation 
within carefully observed limits. Office of the Public Defender work for our clients will 
always take priority without exception, but limited typing of short letters or pleadings 
may be done. More extensive typing that poses the risk of material interference with 
Office of the Public Defender activities should be done only with the express approval of 
the Office Pro Bono Coordinator. Each support staff employee shall keep track of and 
record the amount of his or her time (by date and number of hours) spent on each pro 
bono matter or case. If an Office attorney requires the assistance of additional support, 
he or she should contact the Office’s Pro Bono Coordinator to discuss and attempt to 
facilitate the assistance needed.

VII. Identification o f Attorney’s Capacity and Use o f letterhead

Office attorneys participating in pro bono representation should make clear to 
third parties that they are participating in pro bono representation and not acting in an 
official capacity as an attorney within the Office of the Public Defender. The attorney 
should in no way give the impression that the Office of the Public Defender is providing 
the representation.

Office attorneys should write all correspondence on the official pro bono 
letterhead which will be provided by the Office Pro Bono Coordinator.

VIII. Use o f State Equipment, Supplies, and Office Space

As a general rule, Office attorneys may use State property only for official Office 
of the Public Defender representation. This policy, however, authorizes the following 
limited use of State equipment, supplies, and office space in connection with pro bono 
legal services:

use that involves only negligible expense (such as electricity, ink, small amounts
of paper and ordinary wear and tear);

15



limited local telephone/fax calls made in connection with the pro bono legal 
services;
use of office computers, printers and copiers where there is only negligible
additional expense to the State for electricity, ink, wear and tear or small amounts
of paper so long as such use does not interfere with official business;
limited use of conference rooms as long as such use does not interfere with official
business.

Office attorneys should consult with their supervisors if there is any question 
whether an intended use involves negligible expense. This policy does not authorize the 
use of commercial electronic databases where there is additional cost to the State, nor 
does this policy override any law or regulation governing the use of State property.

Email correspondence from the Office attorney’s Office of the Public Defender 
email account (@opd.state.md.us) is prohibited. Office attorneys providing pro bono 
representation must use a personal email account.

IX. Examples o f Permissible Legal Representation Services

Office attorneys skilled in one or more of the following areas are encouraged to 
provide pro bono legal representation:

Expungement of criminal records 
Child support matters
Estate planning and advice, such as preparation of wills, advance directives, 
powers of attorney, name change, trusts, private guardianships of adults, and other 
estate planning documents
Preparation of leases, deeds or other real property instruments 
Personal bankruptcy cases 
Tax advisory, planning, and preparation services 
Veterans’ benefits appeals
Organization and incorporation of businesses, drafting corporate and partnership
documents
Divorces
Social Security cases

This is not an exclusive list and Office attorneys are encouraged to discuss areas of 
legal competence with the Office Pro Bono Coordinator. Training opportunities, 
reference materials, and other resources are available through the Office Pro Bono 
Coordinator, MVLS, and the Pro Bono Resource Center of Maryland.

X  Disclaimer

16



This policy statement encourages pro bono legal services by Office attorneys but 
does not create any right or benefit, substantive or procedural, enforceable at law by any 
party against the Office of the Public Defender or any of its employees. Nor is the Office 
of the Public Defender responsible in any manner for the tortious acts or omissions of any 
Office attorney engaged in the delivery of pro bono legal services. Although the Office 
of the Public Defender encourages pro bono legal services by Office attorneys, the Office 
of the Public Defender has no control over the nature or circumstances of services 
provided on a pro bono basis. Each Office attorney is acting outside the scope of his or 
her employment whenever the Office attorney engages in the delivery of pro bono legal 
services.

17