# Porterfield v. Mascari II, Inc. > Court of Appeals of Maryland · May 8, 2003 · 374 Md. 402 URL: https://www.frixlaw.com/law-library/cases/9764872 ## Case - **Full name:** Deborah PORTERFIELD v. MASCARI II, INC. - **Court:** Court of Appeals of Maryland - **Decided:** May 8, 2003 - **Citations:** 374 Md. 402; 823 A.2d 590; 19 I.E.R. Cas. (BNA) 1697; 2003 Md. LEXIS 245 - **Precedential status:** Published - **Opinion:** Dissent by Eldridge - **Judges:** Eldridge, Harrell - **Cited by:** 43 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9764872 ## How later opinions describe it (automated extraction) - holding it is not “a violation of public policy sufficient to support a wrongful discharge action in Maryland when an employer fires an at-will employee for stating her intent to seek advice from legal counsel before responding to an adverse employment evaluation” because such… - characterizing the plaintiffs claim as conflating “any public policy generally favoring access to counsel with a policy that is violated by the mere suggestion by an employee that he or she may want to seek advice of counsel” - noting that “a public policy mandate providing a basis for a wrongful discharge claim ordinarily should be derived from constitutional or statutory expressions of public policy” - noting "[b]oth Wholey and Molesworth involved situations where the public policy was enunciated clearly in the relevant statutes, and applied narrowly to sets of circumstances beyond the express scope of the statutes" ## Opinion text ELDRIDGE, J. dissenting. The majority holds that “there is no sufficiently clear mandate of public policy that has been violated” when an employer fires an at-will employee for stating her intent to seek advice from legal counsel regarding her rights and obligations before signing a document concerning an unfavorable work evalúa *435 tion. The majority asserts that the “[petitioner has failed to point to any clear public policy that was violated by her termination.” As I stated in my dissent in Wholey v. Sears, Roebuck & Co., 370 Md. 38, 76 , 803 A.2d 482, 504 (2002), “I continue to disagree with the extremely narrow scope which the majorities of this Court have repeatedly accorded the tort of abusive discharge.” As a consequence of this narrow construction, “numerous discharges from employment, which are abusive and clearly contrary to public policy as a matter of common sense, are held to be beyond the scope of the tort.” 370 Md. at 77 , 803 A.2d at 504 . Because I disagree with the majority’s insistence in according an extremely narrow scope to this tort, I respectfully dissent. Furthermore, I am astounded by the position of a majority of the members of this Court — all of whom are lawyers — that a person’s right to consult with his or her own lawyer is not a clear mandate of Maryland public policy. It is important to recognize that Deborah Porterfield was not fired because her employer believed that she performed poorly or simply because her employer did not like her. An employer ordinarily is entitled to fire an at-will employee on such grounds. Instead, Porterfield was fired because she wanted to consult with counsel before signing a document which her employer wanted her to sign. In holding that this is a valid public policy basis for firing an at-will employee, the majority states “that Maryland law does not recognize with sufficient particularity the general right characterized by Petitioner in her amended complaint, namely, ‘freely to consult with an attorney of [one’s] choice concerning matters related to [one’s] employment,’ as a clear mandate of public policy sufficient to underlie a wrongful discharge action.” Later, the majority seems to hold that the Maryland Declaration of Rights does not guarantee a right to counsel in civil matters, that “a right to counsel in civil matters [is] not ... mentioned in Article 21” and would not “be of the same importance as the right in criminal matters.” The majority *436 goes on to hold that Article 24 of the Declaration of Rights does “not guarantee counsel under the circumstances” where one can be coerced into signing a document without legal advice. Presumably, under the majority’s holding, it would not violate public policy for an employer to, by threat of termination, coerce an employee to sign, without legal advice, an incomprehensible contract, or an unfavorable contract, or a government form, or a document containing false admissions, or a deed, or a document disposing of the employee’s personal property, or a document waiving rights, etc. The notion that a Marylander, under Articles 19, 24 and 45 of the Declaration of Rights, has no right to the advice of counsel before signing such documents, is incomprehensible to me. 1 This Court has, of course, held that the constitutional right to counsel is broader than the right to counsel under the Sixth Amendment and Article 21 of the Declaration of Rights and extends to civil matters. See, e.g., Zetty v. Piatt, 365 Md. 141, 155-159 , 776 A.2d 631, 639-643 (2001); Sites v. State, 300 Md. 702, 716-718 , 481 A.2d 192, 199-200 (1984); Rutherford v. Rutherford, 296 Md. 347, 358-363 , 464 A.2d 228, 234-237 (1983) and cases there cited. See also Goldberg v. Kelly, 397 U.S. 254, 270-271 , 90 S.Ct. 1011, 1022 , 25 L.Ed.2d 287, 300 (1970). *437 There may be no case in this Court dealing with one’s right to retain his or her own counsel and obtain the advice of that counsel before signing an important document. The reason for this absence is probably because, until the case at bar, everyone assumed that such a right clearly existed. The position of the majority seems to reflect the attitude prevalent in some places, during the early history of this country, when there was substantial opposition to lawyers and where, in many places, practicing law for a fee was illegal. See, 1 Anton-Hermann Chroust, The Rise of the Legal Profession in America, pp. 27-29, 71-76, 117, 196, 211-213, 268-269 (1965). In Maryland, however, “in sharp contrast to the other colonies, there seems to have been little or no aversion to the lawyer in the beginning. As a matter of fact, it became a common practice in early Maryland, observed by parties to litigation, to appoint attorneys to attend court for them.” Anton-Hermann Chroust, supra, at 242. From the time of John Lewger and Margaret Brent, Luther Martin and Francis Scott Key, and more recently lawyers such as Thurgood Marshall and Simon Sobeloff, the strong public policy of Maryland has clearly recognized the right to and importance of the assistance of counsel. In my view, under Maryland public policy and the Maryland Declaration of Rights, one has a right to seek advice of his or her attorney before being forced to sign an important document. I dissent from the majority’s contrary view. Chief Judge BELL and Judge RAKER join this dissenting opinion. . Articles 19, 24 and 45 of the Maryland Declaration of Rights provide as follows: "Article 19. Remedy for injury to person or property. "That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the land. “Article 24. Due Process. "That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by .the Law of the land. "Article 45. Reservation of rights of people. "This enumeration of Rights shall not be construed to impair or deny others retained by the People.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9764872. Public record. Not legal advice.