By John Wagner
Washington Post Staff Writer
Saturday, October 4, 2008
As part of an ongoing probe of Sen. Ulysses Currie, federal prosecutors are seeking to force the lawyer who gives ethics advice to the Maryland General Assembly to testify before a grand jury, a move that state lawyers have vigorously resisted as a breach of attorney-client privilege.
A subpoena served on William G. Somerville, the legislature's ethics counsel, sought testimony and "any and all" documents related to paid consulting work performed for a grocery chain by Currie, a powerful Prince George's County Democrat.
Somerville's job, which the legislature created as part of a 1999 ethics reform package, requires him to provide private counsel to legislators on potential conflicts of interest arising from their outside business dealings. The position is considered unique among state legislatures.
Currie's work for Shoppers Food and Pharmacy, which was not disclosed in ethics filings, is the focus on an investigation that became public in May when FBI agents raided Currie's home and the company's Lanham headquarters.
In a letter to federal prosecutors, state lawyers representing Somerville wrote in July that he declined to testify because his conversations with Currie, the chairman of the Senate Budget and Taxation Committee, are considered privileged under Maryland law.
That privilege has not been challenged previously in Maryland or federal courts.
"Because any knowledge Mr. Somerville may or may not have about Senator Currie's consulting business could only have been learned from these privileged conversations, Mr. Somerville has no non-privileged testimony to give and respectfully declines to testify," wrote two assistant attorneys general who represent the legislature.
Sen. Brian E. Frosh (D-Montgomery), chairman of the Senate Judicial Proceedings Committee, said requiring Somerville to testify would set a "dangerous" precedent for the legislature.
"People wouldn't seek guidance on ethical issues when they ought to," Frosh said, arguing that Somerville's position is no different from that of any other lawyer. "The right not to incriminate yourself goes out the window if someone can call your lawyer and ask him, 'Hey, what did he tell you?' "
Vickie E. LeDuc, a spokeswoman for the U.S. attorney's office in Baltimore, which is seeking testimony from Somerville, declined to comment, as did a spokeswoman for the Maryland attorney general's office. Currie declined to comment, and Dale Kelberman, a lawyer for Currie, did not return a phone call.
In a written response to a Public Information Act request by The Washington Post, one of the state lawyers suggested that that issue is being litigated "under seal" in U.S. District Court. The lawyer, Dan Friedman, declined to provide copies of any pleadings in the matter, which sources familiar with the issue said remains unresolved.
Kathleen Dachille, an associate professor at the University of Maryland Law School, said she sees no reason why the attorney-client privilege granted by Maryland law should not be recognized in this case.
"I don't see how simply because you are litigating in federal court, the privilege is erased," Dachille said. "The office [of ethics counsel] is meaningless if legislators don't feel free to talk to him."
The only documents Somerville provided in response to the federal subpoena are a letter to another potential Currie employer and several heavily redacted pages from logs Somerville kept about contacts with legislators.
The logs include references to three apparent meetings or other contacts with Currie in the weeks after the federal investigation became public.
Interviews and documents released since then have showed that Currie repeatedly intervened in matters of interest to Shoppers, including contacting state agencies about traffic lights at its stores. Shoppers paid Currie more than $207,000 over five years, according to an FBI affidavit.
A 1999 letter Somerville provided in response to the subpoena sheds no light on Currie's relationship with Shoppers. But it offers a window into the services that Somerville routinely provides to legislators -- and to Currie in particular.
In the letter, Somerville tells the Rockville-based president of Marlo Furniture that he is writing at Currie's request to explain some of the ethical standards that apply to members of Maryland's part-time "citizen legislature" when working in the private sector. At the time, Currie was contemplating employment at the furniture chain.
Somerville wrote that Maryland ethics law "makes significant accommodations to members who must represent their constituents while at the same time earning a living."
"In most instances, the ethics law requires only that the legislator publicly disclose an economic association that may raise the appearance of a conflict of interest," Somerville wrote. "Once the disclosure is made, however, the legislator may participate fully in the legislation," with some exceptions.
Somerville wrote that he saw "no impediment" to Currie working for Marlo. Currie declined to comment this week on whether he was ever employed by Marlo.