Reed Smith LLP lawyers who initially represented former Baltimore State’s Attorney Marilyn Mosby on perjury and loan fraud charges won’t have to testify on behalf of the government.

Judge Lydia Kay Griggsby granted their motion to quash the government’s subpoena, saying she was generally uncomfortable with calling lawyers to testify, particularly lawyers who represented the defendant in the same case.

Prosecutors wanted to call the lawyers to testify about their notes from interviews of Marilyn’s ex-husband, Nick Mosby, in order to impeach his testimony.

But the risk of prejudice to the defendant under the circumstances is too great, Griggsby said, ruling from the bench on Tuesday.

The government said it needed to draw out a handful of critical inconsistent statements they claim Nick Mosby made while testifying on his wife’s behalf. The government crossed him using the notes, but he denied their accuracy and any recollection of making the allegedly inconsistent prior statements.

The Reed Smith lawyers argued that the notes were covered by the work product doctrine and that any questions about their accuracy would intrude on the protection that doctrine affords.

Although their notes were produced to the government by Mosby’s federal public defenders, counsel for the Reed Smith team—Stuart Alan Cherry of Rifkin Weiner Livingston LLC—said they hadn’t waived their right to claim opinion work product.

Even with the disclosure of the notes through her successor counsel, Reed Smith said it has its own opinion work product rights in the notes. And even if one considers that right waived by Mosby’s disclsoure, Reed Smith said its testimony would “gravely implicate additional opinion work product.”

Prosecutors argued that the notes were just a transcript not protected by the work product doctrine, but the interview memorandum explicitly stated that the notes weren’t “a verbatim transcript,” Cherry noted.

Cherry also argued that requiring the lawyers to testify on behalf of the government against their former client would violate Maryland rules of professional conduct. Griggsby said she wasn’t entirely convinced on that point.

The case is United States v. Mosby, D. Md., No. 1:22-cr-00007, 1/30/24.