A most timely case of expertise A Baltimore attorney's knowledge of privacy law lands him a role in the debate over Linda Tripp

THE BALTIMORE SUN

Paul Mark Sandler is a wiry man who favors seersucker suits and big bow ties, one of those slight men whose metabolic motor seems ever at a high idle and whose mind, especially when deployed in a courtroom, is like a prehensile appendage, a monkey's tail capable of grasping and holding fast to the heart of the issue at hand.

He is attentive, a little ceremonious, a touch pedantic. He is 53, and still all lit up by contemplation of the law.

Joseph H.H. Kaplan, chief judge of the Baltimore Circuit Court, describes him as one of "maybe two" lawyers who have appeared before him in the past 21 years who quotes classical authors like Shakespeare and Plato, and who makes strategic reference to ineffable principles.

Kaplan had Sandler in his court about 12 years ago in a contempt hearing to determine if Sandler's client, Jeffrey Levitt of the Old Court Savings and Loan scandal, had exceeded his court-imposed limit for personal spending.

"Paul said, 'Judge, the people want you to do justice,' " Kaplan recalls. "I said, 'Mr. Sandler, if I did what the people want me to do, your client would be hanging from the flagpole outside this building.'"

So it doesn't always work; Sandler takes these little jolts better than most attorneys.

"He responds coolly," says fellow lawyer Ron Shapiro. "He is smart enough to know the people who run the courtroom. He takes nothing personally."

Sandler is known widely in Maryland legal and political circles. He has a heavyweight client list. He defended Levitt for fraud, but couldn't keep him out jail. He defended Cal Ripken Jr.'s dad for driving under the influence, and did keep him out of jail. He defends the mayor of Baltimore whenever somebody hales him into court.

Sandler also is famously familiar with the ramifications of the Maryland law that prohibits the willful recording or disclosing of the conversation of another person without that person's knowledge or permission.

That statute was approved in 1977 and was modeled on the surveillance law within the Omnibus Crime Control and Safe Streets Act passed by the U.S. Congress in 1968. The Maryland law, however, more stringently protects citizens' privacy: It makes taping or otherwise recording a conversation illegal unless everyone involved in the conversation has consented.

"One-party consent is permissible in federal law," says Stephen Montanarelli, Maryland's special prosecutor.

Sandler's knowledge of the statute has recently brought him a wider fame. Now that Montanarelli is investigating Linda R. Tripp for possibly breaking this law by clandestinely taping from her Columbia home her confessional chats with Monica Lewinsky, Sandler has been invited onto various Washington-based talk shows to explain what the law is all about.

These can be hostile venues, especially when loaded with people unfriendly to the president. But Sandler, who in addition to litigating for the defense, writing books useful to lawyers and running seminars and workshops on the Socratic method in his spare time (ha!), has proved an effective foil against more politically animated journalists and commentators.

On a recent broadcast of the CNN show "Crossfire," Sandler managed to deflect heavy innuendoes by the conservative columnist Robert Novak to the effect that Montanarelli's investigation of Tripp is politically motivated.

Why? Because it is being carried out by a prosecutor who is a Democrat, in a majority Democratic state, a state with some undeniable political corruption in its history. A state that Novak // felt the need to announce he moved out of some time ago.

Sandler defended Maryland's reputation with only a minimum of hyperbole, made the point that Montanarelli is obliged by the law to investigate, since the Tripp case was handed over to him by Howard County's Republican state's attorney, and told Novak and everybody else who might have been watching the show that Maryland is improved since Novak departed.

The Baltimore lawyer has a low opinion of Washington.

"It is a place that has a habit of chasing its own tail," he says, then refers to the campaign-finance hearings conducted last year by Republican Sen. Fred Thompson.

"It went on for weeks, spent millions of dollars and never resulted in a change in the law."

He has much the same opinion of Kenneth Starr's efforts in the Lewinsky case. He thinks this "tempest in a teapot would have been best left alone."

Paul Mark Sandler is obviously a busy man; his mind has many demands on it. Thus, to reach some level of mental tranquillity, he retires to his Baltimore County farm, rides big horses, jumps high fences and chases little foxes. The need to concentrate on "staying alive" while thus engaged clears the mind, he says.

He has been married to the same woman for 20 years and announces that fact proudly. She is Margaret Batten from Newfoundland. They have two grown sons.

Among Sandler's other diversions is the blues harmonica, which he plays with such skill that he has been known to get his neighbors' dogs to join in.

He is a graduate of Georgetown University Law School who became a professor at the University of Baltimore Law School before he began writing legal texts. But he never set out purposively to become an expert in Maryland's privacy law. That happened kind of accidentally.

His interest grew with the number of incidents involving unauthorized eavesdropping that kept cropping up in the sort of cases he handles: divorce suits, litigations between businessmen, employees against employers, etc.

"In the course of my trial work, I have encountered numerous instances of electronic surveillance," he said. "I was intrigued by it."

He regards the Maryland law as unusual, since only 12 states have such statutes, though every state has a wiretap law of some sort. It is unusual because so few people know about it. Which is one of the reasons the statute has a "willfulness standard" in it. That means that if you don't know it is illegal to secretly tape somebody's conversation, you can't be charged.

"Common sense" demands it, says Sandler.

"Most people who commit acts that are against the law realize they are against the law," he said. "They steal, or murder or defraud. They commit acts that are obviously morally wrong. Recording conversations is not necessarily something someone would consider illegal."

Thus, were it legal to clandestinely tape conversations, people would be rushing into court in droves armed with the "evidence" of their husband's infidelity, their wife's adultery.

No one knows for sure how many prosecutions have been brought under the law. In addition to the special prosecutor and the Maryland attorney general, states attorneys in every one of ,, Maryland's 23 counties and Baltimore City can prosecute under it.

Montanarelli has been Maryland's special prosecutor since 1984; the second since the office came into being in 1977, coincidentally the same year the current wiretap legislation was approved. So far Montanarelli has charged only one person under the statute. That was a Hagerstown police chief who eavesdropped on his detectives' conversations. He was found guilty and resigned from office.

Violation of the Maryland law can bring up to five years in prison and a fine as high as $10,000, or both. It is a felony, and as such it is only this state's most recent expression of its concern for the personal privacy of its citizens.

The first criminalization of eavesdropping was written into state law in 1868. It provided criminal penalties for telegraph employees who divulged the contents of messages. When telephones came into use, the law was expanded to cover the employees of these companies as well. The legislature and Maryland's courts have been tinkering with the issue ever since.

The existence of the willfulness standard within the current law, Sandler says, makes Montanarelli's job more difficult should he decide to seek an indictment of Tripp.

"Linda Tripp could say, 'I didn't know it was illegal,' and Montanarelli would have to prove she did know before she could be convicted," Sandler says. "The statute has two elements: to tape and to disclose. If she found out it was illegal only after she taped the conversation, but then took the tape to Starr, is that reckless disregard?

"Did Lucianne Goldberg [the anti-Clinton New York book agent Tripp was in contact with about the tapes] tell Tripp it was legal to tape? Or the reverse? If she told Tripp to find out if it was or was not legal before she began, and Tripp did not try to find out, could that be construed as reckless disregard?"

Could any grant of immunity given to Tripp by Starr - should he seek to do so for whatever reason - shield her from prosecution under the Maryland law?

"Not in my opinion," Sandler says.

Pub Date: 8/09/98

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