Seeking to control and perhaps curtail current and future investigations of his administration, Baltimore Mayor Brandon Scott has declared war on the Office of Inspector General (OIG) and on Inspector General Isabel Mercedes Cumming.

The war is being fought on several fronts. I am going to focus only on the battle over the attempt by the administration to deny the OIG access to records and information subject to the attorney-client privilege.

That battle got off to a bad start for the city.

A press release issued on Saturday, January 24, by the mayor attempting to justify the abrupt action taken to cut off OIG access to city records began with a blatant misstatement of the law, referring to “a violation” of the “Law Department’s attorney-client privilege.”

• Baltimore IG Cumming says the Scott administration is blocking her investigations (1/27/26)

The attorney-client privilege does not belong to the law department or to any individual city official or employee.

It belongs to the city as a corporate entity for the reasons described by the Maryland Attorney General in 82 Op Atty Gen 15 (1997). The Baltimore City Charter does not allow either the attorney-client or the attorney work product privilege to be used to deny the OIG access to information.

The City is the Client

For all relevant purposes, including the right to assert the attorney-client and attorney work product privileges, the client of the law department, headed by the City Solicitor, is the “Mayor and City Council of Baltimore,” which is established as a corporate entity by Article I, Section 1 of the city charter.

When appropriate, individual city officials, including the mayor and solicitor, may assert the attorney-client privilege on behalf of the city, but they have no right to assert it on behalf of themselves, because the privilege belongs to the city, not to them.

And because the privilege belongs to the city, city law governs when and under what circumstances the privilege may be asserted by city officials.

Settled Law

In Caffrey v. Montgomery County (2002), the Maryland Supreme Court applied a provision of the Montgomery County charter that allowed public inspection of “any document” in the custody of a county agency other than one “obtained or prepared in anticipation of litigation or for use in legal proceedings to which the County is a party.”

A local government’s charter controls the extent to which attorney-client privilege can be invoked to bar access to information.

The court held that the right of the county to assert either the attorney-client or work product privilege to prevent inspection of documents in the custody of its lawyers was governed by the charter, and that the charter provision constituted a waiver of those privileges other than for documents that fell within the enumerated exceptions.

The decision meant that the public had the right to inspect legal opinions and other documents generated in the ordinary course of advising Montgomery County officials on various decisions and actions, notwithstanding the fact that inspection could have been denied under the Maryland Public Information Act (MPIA).

It is noteworthy that the waiver of the privileges in the Montgomery County charter was not explicit. It was necessarily implied by the unconditional grant of access to information otherwise protected by the privileges, in the same manner that Article X, Section 4(d) of Baltimore’s charter unconditionally grants the OIG access to all city records.

It also is important to keep in mind that Baltimore’s charter, unlike the Montgomery County charter, does not exempt from the waiver documents “obtained or prepared in anticipation of litigation or for use in legal proceedings.”

Also, the waiver of the privileges in the city charter applies only to access by the OIG, not the public as in the case of the provision of the Montgomery County charter at issue in Caffrey.

No Exclusions in Charter

Article X, Section 4(d) of the city charter confers on the OIG the power to issue subpoenas “to require the production of any information, document, report, record, account, or other material” and to enforce those subpoenas in court.

Any means any. If the drafters of the charter provision wanted to exclude records and information subject to the attorney-client or work product privilege from the scope of the OIG’s access, they would have said so.

On what conceivable basis would the city argue to a court that the court should read into Section 4(d) exceptions to the OIG’s access to information that the drafters could have, but did not, include in Section 4(d)?

Reading exceptions into a law is always a slippery slope, and reading into Article X, Section 4(d) of the city charter the right to deny the OIG access to information that state law permits a custodian of records to keep confidential, but does not require the custodian to do so, is inconsistent with settled law.

Another Erroneous Claim

The mayor’s press release also claimed that cutting off access to law department records by the OIG was necessary to protect city lawyers from violating the Maryland Rules of Professional Conduct for lawyers.

The administrative subpoena power conferred on the OIG to gain access to any city records confirms the OIG’s right of access to those records and gives the OIG the legal means to enforce it.

It does not mean that the OIG’s right of access doesn’t exist unless a subpoena is issued; the power to issue a subpoena effectuates the right of access, it doesn’t create it.

City lawyers don’t violate their professional responsibilities by voluntarily sharing information with the OIG that the OIG has the right to see.

What’s Being Hidden?

The attempt to prevent the OIG from gaining access to law department records is a dead giveaway that there is something in those records that is extremely damaging. All types of proposed policies, decisions, contracts and other actions pass through the law department.

Local government lawyers have an ethical duty to bring legal problems with any of those actions to the attention of the appropriate city or county officials.

Typically, even if such advice is not given in writing to an official, it is memorialized in a file for the protection of the lawyer as well as the client, i.e., the city or county on whose behalf the official is supposedly acting.

In the case of a violation of the law by a city official, the last thing that official wants the OIG to get a hold of is a writing by a city lawyer documenting that the city official was advised of the illegality.

That’s evidence of intentional wrongdoing and can be the official’s ticket to a visit from the state prosecutor.

Parallels to Baltimore County

The situation bears a striking resemblance to what occurred in Baltimore County.

There the county’s former IG, Kelly Madigan, released reports critical of William “Chris” McCollum, a high-ranking official and fundraiser for former Councilwoman Cathy Bevins and former County Executive Johnny Olszewski Jr.

Olszewski, Bevins and then-County Council President Julian E. Jones Jr. launched a concerted effort to neuter Madigan’s office, which failed only because of the extraordinary public backlash.

The same kind of pushback is needed from Baltimore City residents and elected figures.

Without it, the effectiveness IG Cumming to investigate complaints – and to root out waste and fraud by government officials and contractors – will be a thing of the past.

• David A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. He can be reached at dplymyer@comcast.net and Twitter @dplymyer.