Advocate December 2020

THE ADVOCATE Newsletter of The Baltimore County Bar Association VOLUME XXX, NO. 4

December 2020

PRESIDENT’S MESSAGE

By Jay D. Miller BCBA- CHANGES UNDERWAY Your BCBA is constantly changing for the better. If you haven’t yet had the opportunity to check out the recent changes to the association website, jump onto BCBA.org. After creating a login from the Members Only tab at the top of the page, click on the “MYBCBA” blue tab. There you can update your profile information and upload a profile photograph for the BCBA Member Directory. You can view upcoming events and find quick links to other useful information on the website. Most exciting, if you are a member of a BCBA committee or board member, you can access the “My eCommunities” portal to view information about your committees, including committee directories. Committees may use the portal to upload files and documents for sharing among committee members, to add events to a calendar and to post announcements and photographs.

These enhancements to the website and new advanced software was made possible with a generous grant from the Baltimore County Bar Foundation.

Recently you should have received by email your BCBA Membership Renewal Notice. You will not receive a membership dues invoice in the mail.

Renewing your BCBA membership is extremely easy—just click the link provided in the Renewal Notice email, update your committee preferences and add-on selections, and pay online. You have the option of paying your invoice in full by credit card and you can download an invoice. If you can’t locate

the Renewal Notice email, you can find the link to renew your membership in your “MYBCBA” page of the website.

In other news, changes to the association bylaws and constitution were voted on and adopted at the October Stated Meeting. See related article in this issue.

As you may know, the Diversity & Inclusion (D&I) Committee was formed as a standing committee.

The overarching goal of the Committee is to encourage and promote diversity and inclusion of minority practitioners in the Baltimore County legal community and beyond. The D&I Mentoring Subcommittee, chaired by attorney Lisa Y. Settles and Judge Dennis Robinson, wasted no time getting started and is in the process of rolling out three substantive initiatives. The Mentoring Subcommittee will focus its efforts on encouraging employers to seek the most qualified and diverse applicant pools. It will do so by soliciting employers to provide job postings with the BCBA, which the Subcommittee will, in turn, disseminate to a network of specialty bar associations. The Mentoring Subcommittee will also

Multi-Specialty HealthCare THE ADVOCATE

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December 2020

PRESIDENT’S MESSAGE solicit specialty bar associations to encourage them all of the privileges of current members; with the minority applicants to apply for judicial clerkships only exceptions being the right to vote and chair on an annual basis. committees. Please spread the word, and by next year By doing so, judges will have access to the most we can look forward to a legal assistant/paralegal qualified and diverse pool of applicants. The committee planning and sponsoring CLEs and other Mentoring Subcommittee will also launch a events.

"Summer Scholars" program, which will aid law Don’t forget about your BCBA Lawyer Referral and firms in identifying and hosting minority law Information Service (LRIS). You can sign up to students as interns during the summer. receive referrals in your areas of practice. Reporting on Last, but not least, the Mentoring Subcommittee will these referrals has been made easier by recent pair young lawyers with more experienced improvements and can be done through your Baltimore County attorneys to facilitate mentoring MyBCBA portal. Many members have utilized LRIS relationships and encourage younger attorneys to and found it to be a great source for business. To engage in the legal community from the outset of borrow from Bob Dylan, ‘the times, they are atheir promising careers.

Stay tuned for more changin’. details.

All the best for a healthy, happy, safe and COVID free, But wait, that’s not all. Your BCBA is now open for masked holiday season. Whatever holidays you may membership to paralegals, law clerks, legal observe, may you find joy and peace, as we assistants, legal secretaries and mediators. In other optimistically look forward to the new year. -Prez words, your support staff can now join and use the Jay D. Miller BCBA for all of its outstanding educational BCBA President, 2020-2021 programs. Their membership in the BCBA allows

MESSAGE FROM THE EXECUTIVE DIRECTOR

By Rachel M. Ruocco

I would like to take this opportunity to thank all of our BCBA members, sponsors and support staff for your patience while we navigate through and master our new member management software, Member Central. After twenty years with our previous system, it was time for a change in order to best serve our members.

Change, however, is often accompanied by challenges. Though they have been few, we have had challenges and anticipate more as we progress so I ask you to please continue to be patient as we work through them.

Simply go to www.bcba.org and click on ‘Member Login’ at the top of the page. Contact me if you have ay trouble creating a new login.

Once you have created your new login, you will be able to take advantage of our new member portal, MyBCBA. On this page, all members will be able to view open invoices, events, announcements, quick links to The Advocate, sponsors, our calendar and more. Most importantly, all members will also see links to e-communities for each committee you are listed as a member. You will be able to view the One of the most exciting improvements is the ability committee list, upload documents and photos and also to email annual dues invoices and for our members to email the members of that committee. I strongly be able to easily pay online in one payment or encourage you tot take advantage of MyBCBA. installments. If you have not received your 2021 As always, your feedback is welcomed! dues invoice via email or US mail, please call me at In the event you have not received the information, 410-337-9103 or email me at rruocco@bcba.org. the 99th Annual Black Tie Banquet is scheduled for If you have not already, you will need to create a new Wednesday, May 19, 2021. More details to follow in username and password for our improved website. late February.

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December 2020

2020-21 Officers President Pres-Elect Secretary Treasurer

Jay D. Miller Stanford G. Gann, Jr. John G. Turnbull III Lisa Y. Settles

Executive Council Sondra M. Douglas Richard Grason VI Robert K. Erdman, Jr. Tyler J. Nowicki Michelle D. Siri Alaina L. Storie Hon. Michael W. Siri, Immediate Past President Nicole E. Rush, Young Lawyers’ Chair

Calendar of Events

Please go to www.bcba.org and click on ‘calendar’ for an up-to-date listing of programs & events and to register for all programs & events.

Inside This Edition

The Advocate

Michael S. Barranco Committee Chair Tracee O. Fruman Committee Vice-Chair

Contributing Writers William Alcarese, Jr. Hon. Kathleen Cox Tracee Fruman Carl Gold Louis N. Hurwitz Hon. Ruth Ann Jakubowski Ceecee Paizs Hon. Leo Ryan Valerie Taylor Hon. Michael Siri Laurie Wasserman Hon. Dorothy Wilson

The Advocate is a monthly publication of the Baltimore County Bar Association informing its members about current events relating to law.

Articles do not necessarily reflect the official position of the BCBA and publication does not constitute an endorsement of views expressed.

The contents of advertisements are the responsibility of the advertisers and are not recommendations or endorsements by The Advocate.

Publication deadline: 10th of the month preceding publication.

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ADR/Family Law Bench/Bar Update Civil Law Update CLE Program Court Notices Courtroom Technology Diversity & Inclusion Law Library Lawyers Assistance Member Ads Implicit Bias Orioles Baseball Professionalism Save the Date Stated Meeting Judge Sandy Williams Writing Opportunities

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E XECUTIVE C OUNCIL V ACANCY DEADLINE for submitting Letter of Interest is January 4, 2021 The Baltimore County Bar Association Nominations Committee is now accepting letters of interest for the Executive Council At-Large vacancy.

A letter of interest should be addressed to the Nominations Committee, c/o Baltimore County Bar Association, 100 County Courts Building, 401 Bosley Avenue, Towson, Maryland 21204. Letters of interest should include a professional resume, a list of bar association activities, committee involvement and leadership positions and any additional information the applicant would like the Nominations Committee to consider. Deadline for submissions is January 4, 2021, 4:30 p.m. Letters can also be submitted via email to rruocco@bcba.org.

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December 2020

COURT NOTICES

DECEMBER DISTRICT COURT SCHEDULE

BCBA FACE MASKS MAKE GREAT STOCKING STUFFERS Still looking for the perfect stocking stuffer or Hanukkah gifts? Purchase BCBA face masks for your family, colleagues and friends! A limited number of masks are still available for purchase by contacting Jacob Bengel at 410-337-9101 or jbengel@bcba.org. $10 each for these high quality, comfortable, adjustable masks made by Route One Apparel in Towson. One size fits all. All proceeds from the sale of the face masks will benefit the BCBA’s 100th Anniversary Celebration being planned by the Historical Committee for 2021.

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December 2020

MESSAGE FROM JUDGE COX I’m happy to confirm that Judge Ruth Jakubowski has been appointed as the new Administrative Judge for the Third Circuit, effective December 18, 2020. Her leadership over the past several years as the Lead Family Judge has been invaluable. She will be a great resource to the Bench and the Bar as the new Administrative Judge.

Judge Colleen Cavanaugh has been appointed as the successor Lead Family Law Judge. She brings a wealth of experience in family law matters to this position and she will also be a great asset. Judges Cahill, Ensor and Bailey will continue in their roles as Lead Judges for the Criminal, Civil and Juvenile Divisions respectively.

I appreciate the support I’ve received from my many bench colleagues and from the Bar over the past twenty-two years. It’s comforting to know I’m leaving matters in good hands.

Thanks to all.

Kathleen Gallogly Cox Administrative Judge

OCTOBER STATED MEETING & LAW DAY AWARD PRESENTATIONS

By Tracee O. Fruman

The October Stated Meeting of the Baltimore County Bar Association was held on Thursday, October 15, 2020 in person and via Zoom. The in-person gathering occurred in courtroom #3 and included President Jay Miller, President Elect Stanford Gann, Jr., At-Large Executive Council Member Alaina Storie, 2020 Law Day Chair, Tracee Fruman and Executive Director Rachel Ruocco in addition to the Law Day award recipients and presenters. All other participants joined the meeting via Zoom due to the ongoing COVID-19 pandemic. Following the unanimous approval of the minutes of the June 17, 2020 meeting, Treasurer Lisa Settles gave the Treasurer report and the various committee chairs gave the Standing Committee Reports. Of note, the published Amendments to the Constitution and Bylaws were unanimously approved. These THE ADVOCATE

amendments included the additions of Diversity and Inclusion as a Standing Committee and the addition of Legal Associate Membership.

Once the regular business was concluded, Tracee Fruman introduced Alaina Storie and The Hon. Ruth Jakubowski to present the 2020 Law Day awards.

Although Law Day festivities were held virtually, the Stated Meeting provided an opportunity to present the award recipients with their awards and accolades in person. Ms. Storie presented Mary Roby Sanders with the 2020 Judith P. Ritchie Award and Judge Jakubowski presented the 2020 Law Day Award to The Hon. Kathleen Cox. The BCBA congratulates Ms. Roby and Judge Cox for their unwavering commitment to the BCBA and the legal community.

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December 2020

CIRCUIT COURT RESUMPTION OF PHASE II

By Judge Kathleen G. Cox

In compliance with Chief Judge Barbera’s Sixth Administrative Order Restricting Statewide Judiciary Operations due to the COVID-19 Emergency, Maryland Courts resumed Phase II operations on • November 30, 2020. Jury trials were suspended until February 16, 2021.

During the period from November 30, 2020 through January 15, 2021, the following changes are in effect: General Guidance •

•

•

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The Courthouse remains open, but the Sheriff’s • Office will restrict entry to individuals who must appear as a party, counsel, or witness in a matter on the docket or who have other scheduled business within the Courthouse.

The Clerk’s Office remains open to process domestic violence petitions and emergency evaluations. Other business is processed through appointments scheduled in advance. Many staff are teleworking, so counsel are encouraged to communicate by email through the appropriate department. The email contact groups are posted on the Circuit Court website.

The Assignment Office will pre-assign dockets two weeks in advance. Judges and their staff will convert as much as practical/possible to remote hearing platforms. If a hearing is converted to a remote platform, a Zoom for Government notice will be generated with details on how to participate remotely.

•

Requests to appear remotely, or to postpone due to COVID restrictions are being expedited for consideration.

VOPs set between 12/4/20 and January 15, 2021 will be administratively postponed.

Each Chambers will re-set their VOP hearings. VOPs • may still be re-set in Phase II under the following circumstances: VOPs may be heard of as part of a global plea.

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Criminal collateral other than VOPs (e.g. delayed dispositions, modifications, etc.) will proceed as scheduled. If the assigned judge feels the matter will be protracted or will require a large number of witnesses, the matter will be postponed and reset.

Criminal motions will be administratively postponed and re-set after January 15, 2021, subject to the following exceptions: For specially assigned criminal cases, the assigned judge will determine if the matter can proceed remotely. If not, Chambers will re-set and coordinate the date through Assignment.

If counsel believe a criminal motion can be resolved through a remote hearing, they may notify Assignment and the matter will be set and pre-assigned.

Criminal Matters •

Upon request, Chambers may also re-set a VOP during Phase II for someone currently incarcerated on the VOP.

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Criminal dockets will proceed as scheduled in an effort to resolve cases. No witnesses will be summonsed. If the matter cannot be resolved it will be re-set.

If the sentencing recommendation includes incarceration for a person currently out on bail, the court will liberally consider delayed disposition or reporting; The DOC is not presently transporting inmates to local courts. If a plea is reached on a case with a defendant held in the DOC, counsel should contact Phil Pokorny to move the matter to a plea docket and arrange for a remote hearing.

Postponement requests should be filed in advance, pursuant to the Court’s Postponement Policy, whenever possible to avoid the need for counsel to appear.

Expungement dockets have been vacated, to be re December 2020

CIRCUIT COURT RESUMPTION OF PHASE II

By Judge Kathleen G. Cox

-set in Phase IV.

hearings.

Family Law Matters •

Settlement Court

Trials/hearings set for 1 day or more will be • reviewed by the assigned judge/magistrate to see if the matter can be converted to a remote hearing. If the matter is not appropriate for remote hearing, the assigned judge/magistrate will notify counsel and postpone the matter.

All settlement conferences will be held remotely, at least through January 15, 2021. Family law conferences will be converted to remote hearings with an assigned time on the scheduled date, with a new hearing notice issued through Zoom for Government.

Status hearings set for December have been Child Support administratively postponed, and parties have been • All contempt and establishment dockets have provided the option to set a remote appointment been vacated, to be re-set after we return to Phase with the Self-Help office.

III (establishment cases) and Phase IV (contempt • Other collateral family law matters will remain on cases). the dockets as scheduled. Judges/magistrates will Judge Kathleen Gallogly Cox convert as much as possible to remote hearings.

Administrative Judge Civil Matters •

•

All jury trials have been vacated and will be re-set by the Assignment Office. If the case is specially assigned, Chambers will set a status conference with counsel and clear new dates with the Assignment Office.

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Motions, administrative appeals, district court appeals and other collateral civil matters will remain on the docket as scheduled.

Juvenile Matters •

Delinquency dockets before the magistrates will continue with morning sessions with all matters handled remotely, unless otherwise ordered.

Witnesses will not be summonsed.

If an adjudication is contested, a hearing date will be set on an afternoon docket after January 15, 2021.

Upon request for a respondent who is detained, a contested hearing can be scheduled on an earlier date by the Assignment Office.

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CINA matters will continue under the current protocol, with hearings held remotely unless otherwise ordered.

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Delinquency and CINA matters on the judicial docket will remain as scheduled. The assigned judge will convert appropriate matters to remote

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December 2020

NOVEMBER BENCH/BAR UPDATE

By Carl Gold

The Bench Bar Committee’s penultimate meeting of 2020 was held on November 12, 2020. The Committee mourned the loss of The Honorable Alexandra Williams, devoted wife, mother, lawyer, Judge and friend and mentor to so many. She is irreplaceable and our deepest condolences to her family and loved ones.

Hon. Judge Kathleen Cox presented the Circuit Court Bench report. The Hon. Ruth Jakubowski is ascending to Administrative Judge in December. The Committee thanked Judge Cox for her exemplary and transparent service to the legal community and the citizens of Baltimore County. Judge Cox has been a leader in sharing information with the Bar and helping the legal community to keep its sanity during a global pandemic. Judge Cox said the Court is vigilant in taking all available anti-Covid measures.

If you see something amiss, report it to Judge Cox or to Circuit Court administrator Tim Sheridan. Several jury trials have been held. Jury selection takes place at the Cow Palace on the State Fairgrounds in Timonium with trial the next day. No plea bargaining will take place at the Fairgrounds- ask for a status conference if you want to work something out. The Court is seeking to refit the old 911 center to bring jury selection back to the courthouse in the interest of time and security.

If you have a pending trial and receive an email from the Court asking for a status, please respond. Absent the Bar’s help it is difficult for the Court to manage trials with limited space currently available. With the uptick in Covid cases more teleworking and virtual hearings are likely.

Circuit Court Administrator Tim Sheridan echoed these concerns. If you have suggestions for Covid safety improvements or complaints, let him know.

Julie Ensor, Clerk of the Circuit Court, reiterated her request to contact her staff via email for the fastest response. The list of contact emails is republished in this issue of the Advocate.

Magistrate Wendy Schenker reported that Magistrate THE ADVOCATE

Paliath has added an extra half day to his docket to reduce the backlog of uncontested divorces.

Hon. Dorothy Wilson joyously confirmed that the Towson District Court is open and old Catonsville is closed. She regretted the cancellation of the last Town Hall, advising that Governor Hogan made a last-minute visit to new Catonsville causing a reschedule. She asked that the Bar give special thanks to Maria Fields, District Court Administrative Clerk for her extraordinary efforts in closing one courthouse and reopening another. “It could not have happened without her.” Judge Wilson and her team are working on reducing the backlog in the District Court. For example, in Towson alone, there are fourteen thousand delayed landlord- tenant cases.

New criminal and serious traffic cases are being set in at the end of 2021 to try and reduce the current docket. If you want your matter heard remotely, please be sure to submit Form CCDC110 via MDEC. If both sides agree, even criminal cases will be considered for remote hearings. Judge Wilson cautioned, as did Judge Cox, that all is subject to change as new Covid developments arise.

Maria Fields, District Court Chief Administrator modestly accepted the accolades. She reported that the Bailiffs are doing yeoman’s work screening visitors.

Judge Will Somerville advised that OAH is extremely busy with virtual hearings and that over 100 candidates have applied for the current vacancy on the Court.

Jay Miller, Bar President, urged all members to sign up with the Bar’s new webpage. Support staff are now allowed to join the Bar Association in a limited capacity. The Memorial Committee’s annual meeting is Thursday November 19,2020 at 3:30. Please preregister for this meaningful, and now virtual event, as we remember and honor, Hon. Judge Patrick Cavanaugh, Michael F. Connolly, Howard B. Gerber, Robert N. Winkler, Louis Kaplan and Martin Moylan. December 3rd will mark the annual (now remote) Holiday Party sponsored by ASAP. There

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December 2020

NOVEMBER BENCH/BAR UPDATE

NOTICE TO THE BAR; HOLIDAY VISITATION DISPUTES

By Carl Gold

By Judge Ruth Ann Jakubowski

will be a best sweater contest. Sandy Williams would probably have won.

Michelle Greer on behalf of the Diversity and Inclusion Committee (DIC) thanked President Miller for giving the Committee permanent status as a standing committee of the Bar. The DIC is planning a virtual event for February 20121 entitled, “Courageous Conversations and Confronting Bias in a Safe Space.”

State’s Attorney Scott Shellenberger reported that there have been two criminal jury trials and “it worked.”

The Family Law Judges, Judges King, Truffer, Cavanaugh, Bailey, Purpura and Jakubowski will be available to consider holiday visitation disputes from Monday, November 16, 2020 through Friday, December 18, 2020.

Only cases that have an ORDER in place on custody/ visitation are eligible for holiday visitation dispute resolution.

To obtain intervention of the Court, contact Abigail Cohen, Family and Civil Case Manager, by email at abigail.cohen@mdcourts.gov or by calling 410-887-6575.

Wendy Meadows, Family Law liaison, advised there will be a virtual lunch meeting to discuss the impact of Vocational Rehabilitation. Nicole Rush, Young Lawyers chair, said there is a week-long toy drive from December 7-14 – drop a toy off at the Bar Office and/or make a donation. All proceeds go to CASA.

The following should be provided, in writing, to Ms. Cohen:

According to Harry Chase, Baltimore City Liaison and Portrait Committee Chair, the City Bench requests appropriate attire when appearing virtually.

Judge Dugan’s portrait is finished and several others will be soon. Harry will offer the families the chance to see the portraits in the courtroom where they will hang and schedule ceremonies when safe to do so.

4. Name or telephone number of attorney or party on the other side

The next meeting of the Bench Bar is scheduled for Thursday, December 10, 2020.

1. Name of the case 2. Case number 3. What the last order, if any, states with regard to visitation

5. What efforts (stating facts) you have made to reach an agreement with the other side

6. The specifics of what you are requesting as relief 7. The specifics of what the other side has offered, if anything Ms. Cohen will review the file to determine the appropriate handling to include mediation or referral to a Family Law Judge. If mediation is unsuccessful, the case will then be referred to a Family Law Judge for further handling. Once you are assigned a Judge, you may contact the Judge’s chambers on the next business day.

If a case has been filed along with a response but no custody Order is in place, then the parties may contact the Office of Mediation at 410-887-6570 to schedule a mediation session on the issue of holiday access.

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December 2020

RECOGNIZING IMPLICIT BIAS

By Judge Michael W. Siri

The Anne Arundel County Bar Association, in partnership with several local and specialty bar associations through Maryland, including the Baltimore County Bar Association, hosted a webinar on September 24, 2020, entitled Recognizing Implicit Bias in the Court, Workplace, and Beyond. The webinar provided participants with methods to explore and identify their own prejudices in order to reduce implicit or unconscious bias.

participants in the legal system.

The Hon. Beverly Nash (ret.), Administrative Law Judge, and Myriem Seabron moderated the distinguished list of panelists, which included the Hon. Pamila J. Brown, Administrative Judge for the District Court for Howard and Carroll County; Hon. Bernice B. Donald, United States Court of Appeals for the 6th Circuit; Virginia G. Essandoh, Chief Diversity Officer for Ballad Spahr; Professor Sara Implicit bias are the attitudes and stereotypes that Redfield, University of New Hampshire School of affect one’s understanding, actions, and decisions in an Law; and Hon. Alexander Williams (ret.), U.S. unconscious manner. Activated involuntarily and District Court of Maryland. without and person’s intentional control or awareness, Hosted by the Anne Arundel County Bar the panelists discussed how unconscious assumptions Association, the webinar partnered with the following may have serious consequences in the legal field, even local and specialty bar associations: Baltimore in situations where the assumptions are not directly ill- County Bar Association, Howard County Bar intentioned. The panelists suggested individuals may Association, Bar Association of Baltimore City, overcome implicit bias by determining their own blind Prince George’s County Bar Association, Alliance of spots and then working to dismiss stereotypes and Black Women Attorneys, J. Franklin Bourne Bar attitudes that potentially affect one’s interactions. Association, Monumental Bar Association, and the Criminal Justice Section of the American Bar Further, understanding and addressing implicit bias is critical to ensuring access to justice and equity for all

THIRD REVISED COMMUNICATION REGARDING AFFIDAVIT JUDGNEBTS IN THE DISTRICT COURT The District Court is currently in Phase II operations.

As a result, the District Court will not process any Affidavit Judgments that were set or have occurred since November 30, 2020, until such time as the District Court is authorized to expand emergency operations. Any Affidavit Judgment entered on a case with a trial date or affidavit judgment date of November 30, 2020 or after shall be vacated by the court. A motion to vacate judgment filed regarding an Affidavit Judgment entered by the court during this time shall be treated as an emergency matter and heard by the Court in an expedited manner. Courts are offering remote hearings by video or phone. If a party is interested in appearing remotely, they should contact the clerk of the court where the action is pending.

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for affidavit judgment with notice to all parties.

Nothing in this communication limits the ability of any District Court to conduct civil proceedings provided such proceedings are consistent with this communication and the Sixth Administrative Order Restricting Statewide Judiciary Operations Due to the COVID-19 Emergency (the “Operations Order”).

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December 2020

CIVIL LAW UPDATE

By Ceecee Paizs action.

Review of the Amicus Curiarum for August 2020 revealed the following civil cases of interest: THE COURT OF APPEALS: William H. Plank, II, et al. v. James P. Cherneski, et al., Misc. No. 3, September Term 2019, filed July 14, 2020. Opinion by Booth, J. William H. Plank, II ad Sanford R. Fisher (“Minority Members”) were minority members of Trusox, LLC, a Maryland Limited Liability Company (“Trusox”).

They filed direct ad derivative claims against James P. Cherneski, Trusox’s president and CEO (“Cherneski”).

Following a bench trial, the judge entered a judgment in favor of Cherneski on claims of dissolution, receivership and breach of fiduciary duty and in favor of the Minority Members on certain other claims. On the question of breach of fiduciary duty, the trial judge cited Kann v. Kann, 344 MD. 689 (1997) as indicating that Maryland might not recognize an independent cause of action for breach of fiduciary duty. The trial judge determined that Cherneski was the prevailing party on the most significant claims and awarded defendants their attorneys’ fees in their entirety pursuant to the fee-shifting clause of the Operating Agreement.

The Minority Members appealed asserting that the Circuit Court committed errors in resolving the breach of fiduciary duty claim and erred in awarding attorneys’ fees under the Operating Agreement. After hearing oral arguments, the Court of Special Appeals filed a Certification pursuant to Maryland Rule 8-304 requesting the Court of Appeals to answer the question of whether Maryland recognizes a breach of fiduciary duty claim as an independent cause of action. The COA granted the Certification and, pursuant to Maryland Rule 8-302(c) (3), issued a writ of certiorari that included the entire THE ADVOCATE

The Court of Appeals held that managing members of an LLC owe a common law fiduciary duty to the LLC and other members based on the principles of agency. With respect to the certified questions, the Court held that under Kann (Id) and the jurisprudence that followed a breach of fiduciary duty may be actionable as an independent cause of action. To establish a breach of fiduciary duty, a plaintiff must demonstrate: (1) the existence of a fiduciary relationship; (2) breach of the duty owed by the fiduciary to the beneficiary; and (3) harm to the beneficiary. While explaining that the nature of the fiduciary relationship and the possible remedies for a breach should be considered on a case by case basis, the Court clarified that this does not mean that every breach will sound in tort, with an attendant right to a jury trial and monetary damages. The potential breach is dependent upon the type of fiduciary relationship and the remedies provided by law, whether by statute, common law or contract.

The COA held that the Circuit Court did not err in concluding that there had been no breach of fiduciary duty in the case at bar. Finally, the COA affirmed the Circuit Court’s award of attorneys’ fees under the plain language of the Operating Agreement, which provided that a prevailing party in an action brought under the contractual umbrella of the Operating Agreement or between the parties was entitled to an award of attorneys’ fees.

Desiree Berry and State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Co. v. Andrae Queen, and others similarly situated, Misc. No. 10, September Term 2019, Maryland Insurance Administration v. State Farm Mutual Automobile Insurance Co., No. 63, September Term 2019, filed July 27, 2020. Opinion

by Getty, J. The Court of Appeals issued one opinion for both cases because they involved similar underlying facts and identical legal issues. In Misc. No. 10, Andrae Queen brought an action against State Farm based on

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December 2020

CIVIL LAW UPDATE

By Ceecee Paizs

its denial of his claim for rental car expense under his policy’s uninsured motorist coverage. State Farm removed the case to the U.S. District Court for the District of Maryland, which certified a question of law to the Court of Appeals which was accepted.

In No. 63, Ms. Hoyle submitted a claim for a rental car which she required while her car was being repaired. State Farm paid the rental company 80% of the costs but did not pay Ms. Hoyle the remaining 20% balance. Ms. Hoyle filed a complaint with the Maryland Insurance Administration (the “MIA”).

The MIA determined that State Farm acted without just cause and in an arbitrary and capricious manner when it denied Ms. Hoyle’s claim for rental car expense. The MIA directed State Farm to pay Ms. Hoyle the out of pocket rental expenses.

The Court of Appeals considered whether the Maryland Uninsured Motorist statutory provision of Md. Code Ann., Ins. §19-509(e)(1) and the provisions of Title 17 of the Transportation Article and Title 20 Subtitle 6 of the Insurance Article incorporated therein require an insurer to pay benefits for loss of use of a vehicle damaged by an uninsured driver, regardless of the limitations that may exist in the applicable policy. The Court held that the ordinary and popular meaning of the phrase “damage to property” contained in the Maryland Uninsured Motorist Statute includes loss of use damages such as rental costs. Therefore, an insurer is required to provide uninsured motorist coverage for loss of use damages, such as rental costs, caused by an uninsured driver. In the analysis stated in the opinion, the Court analyzed prior Maryland case law involving damage to personal property that is not completely destroyed and the legislative history and intent behind House Bill 144 of the 2020 Maryland General Assembly Session.

The Department of Social Services (“DSS”) found R.S. to be a child in need of assistance over a period of time. They learned that the biological father, T.S. and his parents lived in Delaware, with his paternity being confirmed through at test. The juvenile court continued the dispositional phase of the proceeding, so that T.S. could demonstrate parental fitness and arranged unsupervised visitation between T.S. and R.S. which included the paternal grandparents. The juvenile court than issued an order under the Interstate Compact on the Placement of Children (“ICPC”). A Delaware social worker conducted a home study for both T.S. and the paternal grandparents, finding placement with T.S. was inappropriate because of his memory loss and the paternal grandparents were a viable placement option. Ultimately the juvenile court awarded custody to the paternal grandparents.

Counsel for R.S. took exceptions which were denied.

The Court of Special Appeals dismissed the appeal as an “impermissible interlocutory appeal”. In January 2019, DSS recommended that the juvenile court terminate the CINA proceedings and award joint legal and physical custody to T.S. and the paternal grandparents, which the juvenile court did. Counsel for R.S. appealed. The Court of Special Appeals vacated the CINA order and custody determination holding that the “plain-meaning” of §5-604 of the Family Law Article determines that the ICPC does not apply to the out-of-state placement of a child with a biological parent. DSS appealed.

The Court of Appeals affirmed the judgment of the Court of Special Appeals and held that the plain language of the ICPC makes it clear that it only applies to placements in foster and pre-adoptive care, neither of which contemplates parental placements.

Darlene Barclay v. Sadie M. Castruccio, No. 30, September Term 2019, filed June 30, 2020. Opinion Review of the Amicus Curiarum for September 2020 by Adkins, J. revealed the following civil cases of interest: This case grew out of the matter of the Estate of Peter THE COURT OF APPEALS: Castruccio, et al. v. Sadie M. Castruccio, discussed in In re: R.S., No. 58, September Term, 2019, Filed the last Civil Law Update. Sadie M. Castruccio (“Sadie”) was required to complete three tasks before August 17, 2020. Opinion by Hotten, J. Peter’s death in order to be the residuary beneficiary THE ADVOCATE

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December 2020

CIVIL LAW UPDATE

By Ceecee Paizs

of her husband’s estate. If she did not, then Darlene Barclay, who had worked for Peter’s real estate business and whom Peter considered like a daughter, would be the residuary beneficiary. Sadie did not fulfill all three terms required and Darlene became the residuary beneficiary of approximately $800,000.

Sadie filed seven lawsuits to overturn the estate plan as well and attempted to bring criminal charges against Darlene. All were lost. In 2017, Darlene filed a complaint alleging intentional interference with an expectancy, malicious use of process and abuse of process against Sadie. Following a hearing, the Circuit Court granted Sadie’s Motion to Dismiss. On appeal, the Court of Special Appeals affirmed the lower court’s dismissal, holding that “the complaint cannot support a claim for interference with expected inheritance, even if we were to recognize one.”

The Court of Appeals granted Darlene’s Petition for Writ of Certiorari for the following questions: (1) Did the Circuit Court err when it ruled that the cause of action for intentional interference with an inheritance is not a cause for action under Maryland law? (2) Did Petitioner adequately plead facts to succeed on a claim of intentional interference with an inheritance? The Court affirmed the Court of Special Appeals ruling.

The Court of Appeals adopted the tort of intentional interference with an inheritance or gift but held that the allegations in Darlene’s complaint were insufficient to survive a motion to dismiss. The Court examined Maryland’s use of tort for wrongful interference with economic expectancy. In addition, the Court looked at North Carolina case law as one of the first states to adopt inheritance interference as a cause of action.

The Court saw no reason to deny liability for inheritance interference while also recognizing liability for other instances of wrongful interference with economic expectancy. The new tort allows litigants to recover from the bad actor instead of the estate, protecting the estate from paying fees for bad actors.

However, the alleged interference must happen prior to the death of the testator and there were no relevant cases predicated strictly on wrongful acts occurring after the relationship had ended. In Darlene’s case the THE ADVOCATE

relationship ended upon Peter’s death and therefore her cause of action lacked an ongoing or prospective relationship, so the Court of Appeals affirmed dismissal of her claim.

COURT OF SPECIAL APPEALS: E.N. v. T.R., No. 1231, September Term, 2019, filed August 25, 2020. Opinion by Beachley, J. E.N. (“Mother”) and D.D. (“Father”) are the biological parents of two minor children. The four lived together until 2009, when Father was incarcerated. Thereafter the children lived with Mother and the maternal grandmother. In late 2013, Father was released from prison and began a relationship with T.R. during which she moved in with Father. The children began visiting almost every weekend and in 2015, Father and T.R. purchased a home together and later that year the children moved in to the home. This arrangement continued until later 2017, when Father was again imprisoned. The children continued to live with T.R. In November 2017, when T.R. and the children were visiting their paternal grandparents, Mother appeared and demanded their return. After police involvement, the children returned to T.R.’s home. Mother neither contacted nor saw the children again until September 2018. In February 2018, T.R. filed a complaint for custody, essentially alleging that she was the children’s “de facto” parent. Mother filed a counter-complaint for sole legal and physical custody. Father filed a document purporting to give T.R. “full custody” of the children. The trial court found that T.R. was the de facto parent of the children even though it expressly found that Mother did not consent to or foster the relationship between the children and T.R. The court granted T.R. physical custody with joint legal custody to T.R. and Mother. Mother filed a timely appeal in which she claims that the Circuit Court erred because both legal parents must consent to and foster a parent-like relationship to create a de facto parent relationship with a third party.

Continued on page 19

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December 2020

A TRIBUTE TO JUDGE SANDY WILLIAMS

By Judge Leo Ryan

On November 9, 2020 the Baltimore County legal community suffered a tremendous loss with the passing of The Honorable Alexandra N. Williams.

Judge Williams was 64.

friend, “Sandy was an honest advocate without malice and gracious in every case.” Sandy intuitively recognized that the law is fundamentally about relationships.

“Sandy,” as she was known to everyone, was born in Colorado Springs, CO, but was quintessentially a Baltimore County girl. After graduating from St. Paul’s School for Girls in Brooklandville, she left Maryland briefly to matriculate at Denison University. She then returned home to attend the University of Baltimore School of Law.

While at the State’s Attorney’s Office, Sandy was the victim of one or two pranks. Perhaps the most infamous of those pranks involved a call from an “FBI investigator” to inquire about the very late return of some VHS rentals. The gag, which played on Sandy’s finely-honed sense of right and wrong, was executed perfectly to the wild amusement of the office. What is most telling about the entire episode is that once she was let in on the joke, Sandy appreciated the humor in it. More importantly, because of her generous and kind nature, she never held a grudge against the perpetrators.

Sandy’s distinguished legal career began in 1979 as a law clerk in the Baltimore County State’s Attorney’s Office. She went on to become an Assistant State’s Attorney in 1981.

A passionate and effective advocate for victims of crime in our County, Sandy rose to become Chief of the District Court division.

State’s Attorney Scott Shellenberger remembers Sandy as a patient and thorough teacher who prepared young Assistants for anything they might encounter in court. He observed, “For Sandy, no matter what her role it was always about decency, kindness, and doing the right thing.”

It was at the State’s Attorney’s Office that Sandy formed her most important relationship. While working there she met and married her beloved Dana.

To know Sandy was to know that she loved Dana deeply. She respected his intellect and trusted his judgment, but above all, she simply adored him.

Their family grew with the addition of their children Sarah and Douglas, and later Douglas’ wife Sandy later became one of two attorneys to head a Bridgette. Of all her accomplishments, and there specialized domestic violence prosecution unit. Her were many, Sandy would tell you the only one that zeal was tempered by a genuine sense of empathy and mattered was her family. the core decency that defined her. She was always Family was at the center of Sandy’s being. There kind to opposing counsel. Judge Sally Chester, a were stories of Sarah’s professional achievements former Public Defender recalled about her dear and photocopied pictures of Douglas taped to her THE ADVOCATE

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December 2020

A TRIBUTE TO JUDGE SANDY WILLIAMS

By Judge Leo Ryan

chambers’ door. She loved to share stories about her talented and accomplished brothers. She remained faithfully present to her dear mother from whom dementia had stolen the past. And always, always there was Dana. He was her sounding board and her partner. If once in your life you are lucky enough to have a love like Sandy and Dana’s, then you’re lucky enough.

Sandy’s love was not just reserved for her family.

From her adventures on the ski slopes of Colorado and in the quiet wooden beauty of Maine, to small dinner parties and a famous if not infamous tradition of Halloween parties, Sandy had a way of knitting different groups of people together. Law clerks and appellate judges, high powered lawyers and high school friends were all drawn equally into Sandy’s orbit. If love is infectious, Sandy was a super spreader.

In her chambers, Sandy had a collection of gavels she had accumulated over the years, many of them gifts from her mother. When she retired from the bench in 2016, she gave each of her colleagues one of those gavels and a handwritten, personal note tied to it with pastel ribbon, the perfect touch of a St. Paul’s girl.

Her retirement gift to the judges for whom she had done so much was a tangible reminder that justice must always be tethered to relationships.

This sentiment, along with her family, “both God given and chosen,” will be her legacy. Justice will be well served if we all endeavor to honor it.

Sandy was appointed to the District Court bench in 1994 by Governor William Donald Schaefer. In 2002 she became the first female Administrative Judge in the Baltimore County District Court and served in that capacity until her retirement in 2016.

These appointments meant of course that Sandy’s family just got bigger.

Outside her chambers in Towson on any given day there might be a line of people waiting to talk to her.

Sandy’s great gift as an administrator was that she sought and valued everyone’s opinion, creating an atmosphere of collegiality and collaboration.

Conversations were of course about the work of the court, but Sandy rarely let anyone leave her chambers without asking what book they were reading, or how their children were, or looking at pictures from their latest trip. Even in retirement, during her own fight, she graciously reached out to buoy the spirits of colleagues who were battling illness. Judge Barbara Jung, who worked with her longer than anyone, put it best when she recalled Sandy as “…a devoted friend, colleague and Judge.

Her family, both God given and chosen, were her passion.”

THE ADVOCATE

CIVIL LAW UPDATE

By Ceecee Paicz

The Court of Special appeals affirmed the lower court’s ruling, stating that while not specifically dealing with the issue of one parent’s consent, the Court has implicitly held that one parent may consent to the creation of a de facto parent relationship, as was stated in Judge Watts’ concurrence in Conover v.

Conover, 450 Md. 51 (2016). Further, the Court held that recognition of T.R.’s de facto parenthood will not infringe on Mother’s fundamental rights as T.R. had co-equal fundamental rights with Mother. Finally, the Court held that the trial court did not err in awarding T.R. primary physical custody based on various factors to include the fact that the children felt that Mother abandoned them and viewed T.R. as their “real” mother.

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December 2020

COURTROOM TECHNOLOGY AND PRESERVING THE COURT RECORD IN THE AGE OF COVID-19

By Valerie Taylor

For the past nine months, we have all felt the effects of COVID-19 in our lives in one way or another, and the courts and judicial system certainly are no different. All the sudden change in our lives has many of us asking, “Is this going to last forever?”

While the need for social distancing and wearing masks might not last forever, there is one thing that is permanent: the court record. The court record is very important to potential further proceedings, including appeals, and therefore taking measures to optimize the recording of the record is now more important than ever.

As remote proceedings continue and in-person court proceedings are being reinstituted in the Baltimore County Circuit Court, the procedures by which this is occurring took much creativity and innovation from that Court’s Judges, Court personnel, and even many lawyers. As I’m sure many of you have seen by this point, a number of the courtrooms in the Baltimore County Circuit Court have been outfitted with Plexiglas barriers, distanced seating, and lots of sanitizing solutions to ensure a safe and sanitary environment. So, with the addition of these necessary items and measures in the courtrooms, how can we maintain a sense of normalcy while also properly preserving the court record?

regarding the quality of the recording and official record may arise as a result of wearing masks and speaking over physical barriers installed in the courtroom. Ms. Ayd relayed information about how this is working, some of the new protocols, and what is being done to overcome the many challenges.

It is obvious that wearing masks generally makes it more difficult to hear and understand people when they are speaking, even from a relatively close proximity. In order to limit this effect on the recordation of court proceedings, Ms. Ayd told me that the volume has been adjusted on the courtroom speakers and microphones to help ensure that the proceedings are properly collected and that the record is clear. However, Ms. Ayd advised that it is very important to speak slowly, clearly, and loudly to combat any muffling that may result from wearing a mask. Further, it is a good practice for attorneys and litigants to clearly spell their first and last names at the outset of the proceeding so there is no confusion later based on the recording.

In addition to the use of masks, the Plexiglass barriers installed in the courtrooms may also present a challenge from a digital recording perspective. As previously stated, the microphones in the courtrooms have been turned up, to increase the likelihood of capturing sound. However, Ms. Ayd advised that for optimal results, attorneys and litigants who are speaking should stand behind and near the microphone and not roam around the courtroom, as some may feel inclined to do. Due to the barriers, some of the microphones and sound receptors that were previously picking up sound are now blocked so the movement may decrease the ability to pick up all sound clearly.

The two most important things attorneys and litigants can do is (1) to be conscious that changes in the courtroom may affect the recordation of the proceeding and (2) treat a remote hearing the same way as if it were occurring in the courtroom. I spoke to The Honorable Judith C. Ensor, Associate Judge of the Baltimore County Circuit Court, and Ms. Mary Ayd, Digital Recording Supervisor at the Baltimore County Circuit Court, both of whom shared helpful information, insight, and advice for those who find The Baltimore County Circuit Court has also themselves back in the courtroom or participating in addressed the need for socially-distanced bench remote proceedings. conferences with the use of technology. The Court is Digital Recording and the Use of Technology in now utilizing the Americans with Disabilities Act (“ADA”) hearing impaired equipment and has the Courtroom for Hearings and Trials repurposed it to accomplish socially-distanced bench It is not surprising that digital recording concerns THE ADVOCATE

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December 2020

COURTROOM TECHNOLOGY AND PRESERVING THE COURT RECORD IN THE AGE OF COVID-19

By Valerie Taylor

conferences during a trial or hearing.

courtroom, so that there is more space to distance during the proceeding. The jury assembly room has been outfitted with Plexiglass barriers, as well as the digital recording devices to put the proceedings on the record. There is a smaller room that has been curtained off and supplied with the necessary equipment to accommodate the private conversations that occur while picking a jury. The white noise machine is also utilized to prevent the larger congregation of potential jurors from overhearing the private conversations. Due to the masks, physical barriers and white noise, it is important for all parties to speak into the microphones to have the record be as clear as possible.

Essentially, each attorney, his or her client, and the Judge will have a head set. When the Judge switches the record to “sidebar,” which usually occurs when the bench conferences are taking place and essential personnel approach the bench, everyone with the equipment will be able to communicate in confidence through the headphones and trial table microphones.

Additionally, the white noise feature in the courtroom may be turned on over the jury box to avoid jurors from overhearing any of the communications.

Although disposable ear buds are available from the Court, Ms. Ayd stated that it may be preferable for attorneys and litigants to supply their own earphones so they are more sanitary and comfortable.

Judge Ensor had recently conducted jury selection for In the Baltimore County Circuit Court, the Digital two civil trials in the jury assembly room. Judge Ensor relayed that it took approximately an hour-andRecording department listens to and monitors the recordings as they are occurring in each courtroom a-half to choose each of the two juries, which does and hearing room. However, if a problem is occurring not reflect a substantial increase in the time it takes to and the sound is not being transmitted fully from the choose a jury. Additionally, she noted that there were courtroom, it might not be noticed immediately since not any substantial hiccups or complications in the many proceedings are being monitored process. Rather, she was glad, but not surprised, to simultaneously. It is the responsibility of the attorneys see that the potential jurors showed up ready, willing, and litigants to address this issue, to the extent they and able to possibly serve on a jury. Judge Ensor also added that cooperation and preparation of counsel are able, as it is occurring. greatly helped the process of jury selection, as well as Digital Recording and the Use of Technology the actual trial, run as smoothly as possible.

During Jury Selection In addition to larger meeting spaces within the Protocols for jury selection in the age of COVID-19 courthouse, jury selection will also be taking place at are continually evolving on a week-to-week basis. the Maryland Fairgrounds in Timonium, where However, it is important to note that this is another approximately 200 potential jurors can be essential court proceeding that must be on the record. accommodated with social distancing. This will take Members of the Baltimore County Circuit Court place in the “Cow Palace,” as well as the Exhibition assignment office, jury office, Court administrators Hall and the 4H Hall. Baltimore County has hired a and Judges have been engaging in multiple meetings vendor to provide the audio and visual technology each week throughout the pandemic to discuss the (i.e. microphones, recording devices, television necessary protections and procedures that must be put screens, etc.) for the selection process. As explained in place to allow for the resumption of jury selection by Ms. Ayd, this setup will look substantially similar and jury trials. to the setup of the jury assembly room, but on a larger One notable change is that jury selection is being held scale. After a jury is selected at this location, the in the jury assembly room in the Baltimore County jurors will report to the courthouse the following day.

Circuit Courthouse, as opposed to each individual Off-site jury selection is still a relatively new idea, THE ADVOCATE

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December 2020

COURTROOM TECHNOLOGY AND PRESERVING THE COURT RECORD IN THE AGE OF COVID-19

By Valerie Taylor

but will provide a very efficient solution for selection hearings. It is your responsibility, as the attorney, to of juries that require a higher number of strikes and ensure that they are just as prepared as you are. the participation of more people.

Third, find a quiet place from which you can Remote Hearings and Proceedings participate in the hearing. While some background Courts are holding remote hearings, when noise may be unavoidable, try to limit the foreseeable appropriate, and extending this courtesy in order to distractions from children, pets, and noise that may limit the number of people in the building as well as result from multitasking. Ms. Ayd stated that using to accommodate those who do not feel comfortable headphones and/or microphones during the remote coming to Court in-person. The remote hearings in proceeding helps to limit any distracting background Baltimore County Circuit Court are trending towards noise. Additionally, closing extra unnecessary using Zoom for government as its platform, but browsers/windows on your computer also helps to currently are utilizing both Zoom and Skype. limit sound interruptions.

Currently, hearing notices are being issued to parties Finally, remember that remote hearings are still court with the remote hearing information, such as the proceedings in front of a Judge, so dress necessary ID and password. appropriately, be prepared, and give it your undivided In order for these proceedings to feel as “normal” and attention just as you would if you were appearing engaging as possible, it is imperative that attorneys physically in the courtroom. and litigants treat it the same way as if they were appearing in the courtroom and are as prepared as possible. Both Judge Ensor and Ms. Ayd stressed to me that preparation in advance of remote hearings, specifically regarding any technology that is to be used, ensures that the hearing will run as smoothly as possible and that unnecessary delays will be avoided.

Below are some tips to consider prior to engaging in a remote proceeding.

Each courtroom is outfitted with a laptop for the Judge to utilize for remote hearings. Additionally, there are speakers attached to the laptop so that those appearing remotely can be heard throughout the courtroom and also can be properly recorded via the digital recording system. Ms. Ayd noted that in a hearing where some parties are appearing remotely and others are appearing in person, it may be prudent for those appearing in person to bring their own First, make sure you are familiar and comfortable laptop in order to see the other parties attending the with the technology and/or platforms you will be hearing. This is a tip to help these proceedings run using. If you have never used Zoom or Skype before, more smoothly and efficiently. run a practice session to ensure that your video and At this point, because the technology has been part of microphones are working properly and that there will our lives for many months, the Judges expect that not be any interruptions in your connection. There those appearing for a remote hearing are going to be are many online resources, such as videos on fairly well versed on the use of these platforms and YouTube, which provide tutorials and helpful videos will seek to limit unnecessary delays and regarding use of these platforms. postponements. Additionally, the Maryland Judiciary Second, if other people (clients, witnesses, etc.) will website (mdcourts.gov) has a page entitled “Remote be attending the remote hearing with you, make sure Hearings and Proceedings,” where many useful they also are familiar with use of the technology instructions, guidelines, and helpful resources related prior to the hearing. Preparation of clients and/or to appearing for and engaging in remote court witnesses is imperative to the success of remote proceedings may be found. Finally, if you are unsure or need clarity relating to your participation in a THE ADVOCATE

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December 2020

PROFESSIONALISM— DOES A LAWYER’S PERSONAL RELATIONSHIP WITH OPPOSING COUNSEL NEED TO BE DISCLOSED TO THE CLIENT?

By William F. Alcarese, Jr.

In summary, intimate relationships with opposing counsel involve cohabiting, engagement to or an exclusive intimate relationship. These relationships must be disclosed to clients, and the lawyers ordinarily may not represent opposing clients in the matter, unless each client gives informed consent in ABA Model Rule 1.7(a)(2) prohibits lawyers from writing. representing a client, without informed consent, if there is a significant risk that the lawyer’s The categories of a friendship vary. There may be a representation of the client will be materially limited close, personal friendship, or it may be solely a by a personal interest of the lawyer. Maryland, professional friendship. Close, personal friendships which has adopted the ABA Model Rules of with opposing counsel should be disclosed to clients Professional Conduct, has a similar rule at Md. Rule and may require the client’s informed consent.

Alternatively, friendships and relationships that fall 19-301.7(a)(2). into the category of acquaintances do not need to be A personal interest may arise from the lawyer’s disclosed and the client does not need to give his or relationship with opposing counsel. The relationship her informed consent.

Acquaintances are between counsel may affect the lawyer’s duties owed relationships that do not have the same familiarity, to the client. Accordingly, the Opinion identified affinity or attachment of friendships. and explained three categories of relationships that may affect a lawyer’s representation of a client: (i) If any situation is borderline, the prudent course of an intimate relationship; (ii) friendships; and (iii) action would be to disclose and explain the relationship to the client and obtain the client’s acquaintances. informed consent.

This past summer, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued an opinion regarding conflicts arising out of a lawyer’s personal relationship with opposing counsel (“Opinion”).

COURTROOM TECHNOLOGY

The full Formal Opinion (No. 494) which provides a more thorough analysis of each of the relationships and guidelines is available at:

By Valerie Taylor

remote hearing, please ask in advance!

The Baltimore County Circuit Court employees are doing everything possible to accommodate attorneys and litigants during this time and to provide a safe environment while also moving forward with the inner workings of the Court. They have constantly been adapting, innovating, and utilizing technology resources, and will continue to do so as things change. They ask that we do our part as well, which of course also includes limiting exposure if you, your client, or witnesses feel sick or have potentially been exposed to COVID-19. If this is the case, please consider inquiring about alternative options, such as engaging remotely, so that we can all be as healthy and careful as possible.

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https://www.americanbar.org/content/dam/aba/ administrative/professional_responsibility/aba-formalopinion-494.pdf Alternatively, please feel free to send an e-mail to the author to request a copy of the Opinion.

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December 2020

MARYLAND RULE 1-341—CLE COMMITTEE PROGRAM

By Laurie M. Wasserman

Maryland Rule 1-341, the Rule that permits sanctions for bad faith or unjustified proceedings, is the Judiciary’s “guided missile.” It is an extreme remedy, which has serious connotations. While many lawyers want to seek Rule 1-341 sanctions, they are granted very sparingly by the courts. On November 10, 2020, the CLE Committee presented a tutorial on Rule 1-341 sanctions so that when the right circumstances are presented, lawyers can get this relief for their clients.

Ralph Sapia, CLE Committee Vice-Chair/Program Chair, began by reading the Rule to attendees. He noted that it is remarkable how many lawyers file for these sanctions, yet forget to read the Rule to determine what needs to go into the filing. Then, the Honorable Judith Ensor, Judge in Charge of the Civil Division, addressed what she called an “extraordinary remedy” from the Bench’s perspective.

Judge Ensor reviews Rule 1-341 motions frequently. She explained that Rule 1-341 sanctions should not be ordered by the court sua sponte (as the Rule requires that a motion be made) and that, even if the Court finds bad faith or no substantial justification, there is no requirement that fees actually be granted.

Judge Ensor suggests that, when filing a Rule 1-341 Motion, lawyers provide very detailed records of fees and costs (as required by the Rule) and consider making the request a separate pleading, as opposed to an “add on” relief. She often sees many lawyers adding in a request for Rule 1-341 fees at the end of a motion; in this form, the request is unlikely to satisfy the specific requirements of the Rule.

Attorney Martha White, who has successfully obtained Rule 1-341 sanctions (which were upheld on appeal) took attendees through the case law. The seminal case is Inlet Associates v. Harrison Inn Inlet, Inc., 324 Md. 254 (1991). Inlet defined “lack of substantial justification” as whether one had a “reasonable basis for believing that the claims would generate an issue of fact for the fact finder.” 324 Md. 254, 268 (1991). Additionally, “‘[i]n bad faith’” THE ADVOCATE

means “vexatiously, for the purpose of harassment or unreasonable delay, or for other improper reasons.”

Id. Other guidance for whether an action would qualify as frivolous is contained in Rule 3.1 of the Maryland Lawyer’s Rules of Professional Conduct.

Ms. White also discussed other important cases interpreting Rule 1-341, including Needle v. White, 81 Md. App. 463 (1990) and Bahena v. Foster, 164 Md. App 275 (2005). Bahena was a contempt case in which the trial court granted sanctions under Rule 1341. The sanctions were overturned on appeal, as there was no statutory provision or Rule authorizing the recovery of attorney's fees in contempt proceedings. The Court wrote, “The bad faith for which Maryland Rule 1-341 permits the recovery of attorney's fees and costs is in ‘maintaining or defending any proceeding,’ not in violating a court order, though the latter may be evidence of the former.” 164 Md. App 275, 292 (2005).

After hearing about the case law, attendees wondered if there was any way to ever get Rule 1-341 sanctions.

Judge Ensor explained that even though the burden of this rule is very high, sanctions are still possible under the right set of facts and circumstances. But she cautions lawyers not to “cry wolf” and request Rule 1341 sanctions in every filing. Rather, use the request for Rule 1-341 sanctions very sparingly if you want to be taken seriously. Ms. White noted that before filing, it is important to consider the economics. Since the Rule requires a motion, a detailed statement of fees, and potentially a hearing, a client could end up spending as much—if not more—just to recoup the original fees. The Rule does not permit an award fees for time spent on the Rule 1-341 motion or hearing.

If you do decide file a separate motion for Rule 1-341 sanctions in a family law case, the motion goes to Magistrate McBee or Magistrate Schenker for review and recommendation, before going to a Family Law Judge for ruling. If you file in a civil case, the motion goes in a queue and is either reviewed by Judge Fader or Magistrate Paliath. If the motion requires a hearing, then Judge Ensor will assign it to a civil

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December 2020

UPDATE ON THE BCBA DIVERSITY & INCLUSION COMMITTEE

By Tracee O. Fruman

Baltimore County Bar Association’s Diversity and Inclusion (D&I) Committee is continuing its efforts to emphasize and highlight diversity and inclusion in our community. The D&I Committee has three subcommittees, each with its own initiatives. First, the mentoring subcommittee, which is led by the Honorable Dennis Robinson and Lisa Settles, is working to (1) create a job posting network for legal positions through the BCBA; (2) create a summer internship program to match diverse law students with Baltimore County law firms/organizations and specialty bar associations; (3) and facilitate mentoring relationships between young lawyers and their more experienced counterparts in Baltimore County.

Rafael Santini, the liaison to the specialty bar associations, is seeking representatives from specialty bar associations to collaborate with the D&I Committee. Thus far, the Alliance of Black Woman Attorneys and the Monumental Bar Association have expressed interest in a joint event in 2021.

The long range planning subcommittee, led by Michelle Greer and Snehal Massey, is interested in circulating educational materials, including posting on the BCBA website, on identifying and fighting systemic racism. This will be modeled after the Montgomery County Bar Associations 20 Weeks in 2020 Challenge, a challenge to its members to The events subcommittee, led by Sandy Steeves, is commit to 20 weeks of learning about racism. This tentatively planning an event for February 2021 in committee is hoping to develop its own similar conjunction with the BCBA’s Professionalism challenge for BCBA members.

Committee. This event, currently titled Courageous Sondra Douglas and Eric Steiner, who lead the Conversations: Confronting Bias in a Safe Space,” and marketing subcommittee, would like to create a will feature Russell McClain, Dean of Diversity and separate page on the BCBA’s website dedicated to Inclusion at the University of Maryland Carey School the D&I Committee, to feature relevant content and of Law. The D&I Committee will share more educational information. The D&I Committee looks information about this event as the plans come forward to a productive 2021. together.

MARYLAND RULE 1-341—CLE COMMITTEE PROGRAM

By Laurie M. Wasserman

judge. She suggests including the name of the Judge who heard the original proceeding in the motion.

This was a very informative presentation, and everyone was appreciative of the speakers. Adding to the fun was the door prizes awarded by Ralph Sapia. The winner of one gift card went to the attendee who was a member of the BCBA the longest (Neal Serotte—1992) and the attendee who joined the BCBA most recently (Todd deStwolinski—2018).

The CLE Committee will be presenting a program this spring on Attorney Grievance Claims. Look for information on that program in the next few months.

4844-4698-3890, v. 1

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December 2020

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December 2020

BALTIMORE COUNTY LAW LIBRARY NEWS

By Stephanie Levasseur

Using the Restrictions

Law

Library

During

COVID

Call ahead to verify that the Law Library is open for visitation: 410-887-3086.

Bring your cell phone.

Be prepared for screening at the courthouse entrance.

Call the Library when outside the Library’s locked door to gain entry.

COVID Restrictions The number of patrons in the Law Library will be limited.

Time in the Library is limited to 1 hour per day.

MASKS MUST BE WORN AT ALL TIMES!

MASKS MUST COVER THE MOUTH AND NOSE AT ALL TIMES! Patrons not adhering to these court ordered and approved restrictions will be asked to leave immediately.

New Titles The following books were added to the law library collection: Administrative Law of Health Care in a Nutshell by Eleanor Kinney.

West Academic Publishing, 2017. KF 3821 .K566 Advanced Torts in a Nutshell by Peter Kutner.

West Academic Publishing, 2020. KF 1250 .Z9 .T67 Agricultural Law in a Nutshell by Roger McEowen.

West Academic Publishing, 2017. KF 1682 .M35 Authenticating and Admitting Evidence: Start to Finish by Debra Cruz and Rodney Gaston.

National Business Institute, 2019. KFM 1740 .C78

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December 2020

MVLS EXPANDS HUMAN TRAFFICKING PREVENTION PROJECT

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December 2020

The Baltimore County Lawyer Referral & Information Service is fully operational. Please direct the public to call 410-337-9100 Monday—Friday from 9:00 a.m.—3:00 p.m. to be referred to a lawyer.

Interested in more clients? The 2020-2021 Lawyer Referral & Information Service Panel Application is available now so please renew. If you are considering joining Lawyer Referral for the first time and have any questions, contact LRIS Coordinator, Jacob Bengel at jbengel@bcba.org. All current panel members should have received the new application via email. Remember...You can join or renew at any time!

BALTIMORE COUNTY BAR ASSOCIATION HISTORICAL COMMITTEE Do you have old photos of past Baltimore County Bar Association events and programs? We would love to have them! Please email Rachel Ruocco at rruocco@bcba.org to coordinate.

Do you have a favorite memory of the Baltimore County Bar Association you would like to share? Or maybe a funny story? Email those too.

The BCBA Historical Committee is hard at work on a yearbook to commemorate the 100th Anniversary of the Baltimore County Bar Association and your photos and stories will make great additions.

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December 2020

GETTING BACK TO (ALMOST) NORMAL/SEEING ORIOLES BASEBALL AGAIN IN-PERSON IN 2021

By Louis N. Hurwitz

Two of my wife’s dreams came true during the pandemic. She got to witness the cleanup of my home office (not a small accomplishment) and the complete absence of baseball (and other major league sports) for over four months. Thankfully, the office cleanup has lasted longer than the temporary absence of baseball and most regular summer and fall activities. But before I address the subject of how great it will be to return to Oriole Park at Camden Yards (OPACY) to see live baseball, while enjoying the humidity of a glorious Baltimore summer, I must acknowledge the more important physical and financial suffering that many have experienced during the pandemic. The pain of the illness and loss of loved ones and the financial struggles related to the spread of COVID-19 have been exacerbated by the social isolation many have experienced. The absence of familiar and often comforting routines and practices has affected many in a profound way. It is great that technology offers many of us the option to work, worship, and socialize from home, but for most of us there is nothing like inperson social interaction.

Baseball fans have many reasons why they love the game. My introduction to baseball was through my maternal grandfather. I never attended a baseball game with my grandfather, but it is he to whom I attribute my love of the game. At the age of nine, I was mesmerized by the vivid descriptions of baseball playby-play as they floated over the airwaves and out of the small transistor radio my grandfather held close to his ear. As I began to understand the game, watching baseball on a black-and-white television was a treat.

Back then (before cable and sports networks), only about one-third of Orioles’ games were televised and, with my father and grandfather working long hours, THE ADVOCATE

the idea of seeing a game in person almost never came up. The first game I remember attending was during elementary school. The main memory I have of that game was my first view of the field as we ascended to the upper deck of Memorial Stadium by way of a long, winding concrete ramp. I will never forget how green the field was and how the other colors seemed to jump out at me as I took my first inperson look inside a major league baseball ballpark. I was hooked, not only on baseball and the Baltimore Orioles, but I became fascinated by the ballparks where baseball is played. That fascination led to what has become my decades-long quest to see a game in every current major league ballpark. To date, I have attended games in twenty-four of the thirty current baseball parks. I have also seen games in fourteen ballparks that are no longer in use.

I have been able to achieve many baseball thrills through my thirty-five-year association with the Baltimore Orioles Designated Hitters’ (DH) organization. The group, created by former Orioles’ owner, famed attorney Edward Bennett Williams, is made up of a wide variety of people from many walks of life that share a passion for Orioles’ baseball. The mission of the DH organization, a volunteer sales force founded in 1979, was and still remains, to increase the season ticket base and generate sales revenue, therefore keeping the team in Baltimore as a viable franchise. The DH organization’s members serve as liaisons to the community, providing personalized customer service while assisting the ball club with ticket sales and related projects. In return, we have the chance to have access to some baseball experiences of a lifetime.

Some of the personal thrills I have experienced as a DH include hitting against Brady Anderson at Memorial Stadium the day after the final Orioles’ game there, taking batting practice at OPACY, seeing a few innings from the press box (the best view of all) and the grounds crew area behind the right field fence (very claustrophobic), meeting many Orioles heroes from various eras, the honor of being the last person

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GETTING BACK TO (ALMOST) NORMAL/SEEING ORIOLES BASEBALL AGAIN IN-PERSON IN 2021

By Louis N. Hurwitz

to be recognized by the late Edward Bennett Williams for sales contributions to the organization, and throwing out the first pitch at a game. More significant, however, are the baseball memories created with loved ones.

Some of the indelible family memories I cherish as a fan are joining my sons, father, uncle, father-in-law, and friends at numerous Opening Days and the 1993 All-Star game, and taking my six-year-old and six-month-old sons, the latter in his baby carrier, to see his first game, the last game at Memorial Stadium. I also hold dear the recollection of enjoying Cal Ripken’s 2001 farewell game with my dad and sons, that game also being my father’s last game before his passing the next year.

Memories of watching baseball as an adult with my dad are filled with quality time enjoying the game and talking about many things big and small.

For me, following baseball initially was something to do during a boring summer, but when your first full season following the game coincides with the Orioles’ amazing first championship year, how can you not be smitten forever? I never lose sight of the fact that there are many more important things in life than baseball, but I have always found the game to be a relaxing diversion when my life has been the most hectic. What some say is a slow game is one of the things I like about it so much.

Among the intermittent action, there is time to socialize and decompress. Unlike most other sports, the fact that there is no game clock is one of the many metaphors that baseball takes from life. You don’t know how long the game (and life) will last, just enjoy it as long as you can.

Baseball is an experience that is as much about celebrating the warm weather, socializing, and enjoying the aromas and tastes of ballpark food as it is about watching majestic home runs, great defensive plays, and exciting come from behind victories (all by the Orioles, of course). The modern Baltimore baseball experience also includes activities for children, including an expanded play area, and appearances by the Oriole Bird.

Administration approval for distribution and administration on a widespread basis. At this writing, the Orioles are planning for a number of possible contingencies for the start of the 2021 season. The possibilities include limitations on the number of fans in attendance, socially distanced seating in the main seating bowl (with fans sitting in groups of four to six), mask wearing, and other measures as determined by Major League Baseball and State and local authorities. Plans are being developed to sanitize private suites (which are equipped with a bathroom) and party suites after each game. Individual and party suites, the latter of which are designed for groups of at least fifty, will not be accessible by customers without tickets to those areas, therefore creating a self-contained bubble environment for those guests. As more and more progress is made against the COVID-19 virus, I am hopeful that we will be returning to the ballpark in droves.

For those who followed the Orioles’ truncated 2020 sixty-game season, it is apparent that there are reasons for optimism for greater success on the field. The painful rebuilding process is at a point where it is easier to look ahead and anticipate a competitive Orioles’ team on the horizon. Starting pitching in 2021 has solid potential with likely starters John Means, an All-Star in 2019, veteran Alex Cobb, and young phenoms Dean Kremer and Keegan Akin. The Orioles recently resigned the very capable shortstop and offensive threat, Jose Iglesias, to complement infielders Hanser Alberto, Renato Nunez, and newcomer Yolmer Sanchez.

The 2021 outfield looks like it will be well-stocked in 2021, with Orioles’ 2020 MVP Anthony Santander along with Cedric Mullins, Austin Hays, DJ Stewart, and highly-touted rookie Ryan Mountcastle.

So when will baseball return as we knew it? We have As we long for a return to the “normal” life we been told that the development of effective vaccines is once enjoyed, the BCBA is planning to roll out nearing the final stages leading up to Food and Drug plans to return to OPACY for its annual gathering at an Orioles’ game during the 2021 season. A THE ADVOCATE

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GETTING BACK TO (ALMOST) NORMAL/SEEING ORIOLES BASEBALL AGAIN IN-PERSON IN 2021

By Louis N. Hurwitz

BCBA game date near mid-season will hopefully be announced sometime in January, once we have more information about what safety precautions will be required. One thing is clear at this time. The Orioles will take appropriate measures to protect the safety of fans attending games at OPACY. The ball club is also offering what it calls “O’surance,” a fan assurance benefit that guarantees the customer’s investment in Orioles’ baseball.

For those of you who are also looking forward to attending games this coming season with family, friends, clients, your civic or religious organization, and/or business associates, you may obtain more information on private suites (skyboxes), party suites, Birdland memberships (season tickets), group outings, or gift certificates by emailing me at baltobirdsdh@verizon.net or calling me at 410-4467850. Be safe and stay well.

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MEMBER NEWS WELCOME NEW MEMBERS! Law Students Ryan K. Maher

WOMEN'S LAW CENTER of Maryland, Inc.

1st Year

Job Opening

Beutrice H. Walker 6-plus years

Job Description: Collateral Legal Assistance for Survivors Project (CLAS) - Staff Attorney, primarily in the Baltimore Metro Area

Emily Shank

Status: Full Time Professional, grant funded

Meredith Storn

Salary: $57,000-$60,000 dependent on experience level, with excellent benefits.

Government/Non-Profit Clara H. Salzberg

Office climate: Flexible, committed to excellence.

James Michael McGuinn

Position Title: Director of Legal Services Employment Status: Full Time (40 hours per week) HopeWorks of Howard County is seeking a Director of Legal Services with a Juris Doctorate from an ABA accredited law school and who has been admitted to practice in the State of Maryland. Candidates must have at least two years of supervisory or program management experience as well as at least two years of experience involving protective order and peace order law, intimate partner violence, sexual assault law (civil & criminal), and family law experience.

The successful candidate will have a commitment to social justice. Compensation is $65,000.

Founded in 1978, HopeWorks of Howard County is a private nonprofit agency. Services include shelter, counseling, advocacy, legal resources, prevention education, wellness programs and volunteer opportunities.

To apply: Applicants must submit a resume and letter of interest. Email your resume and letter of interest to vleatherwood@wearehopeworks.org or send by mail to: Vanita Leatherwood, Executive Director, HopeWorks of Howard County, 9770 Patuxent Woods Drive, Suite 300, Columbia, MD. No phone calls will be accepted.

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The Women’s Law Center of Maryland, Inc. (WLC) is a feminist, non-profit membership organization committed to ensuring equal rights for women.

Through our Protective Order Advocacy and Representation (POARP) Projects we represent victims of intimate partner violence in proceedings to obtain Protective Orders, as well as other protective order proceedings as they arise, in the courts in Baltimore City, Baltimore County and Carroll County. Complementing POARP, our CLAS Project, represents survivors in other legal issues arising from the domestic violence, usually custody, divorce and/or other family law issues, as well as in protective orders.

Representation in other counties as able. This is a full time litigation position. We are seeking a strong, experienced attorney dedicated to assisting survivors in their journey to independence and strength, who is capable of working independently and with a team. Benefits include but are not limited to Simple IRA match, health insurance coverage for employees, EAP services, and unlimited personal/vacation leave.

See www.wlcmd.org for complete job description including requirements.

Resume and Cover letter to be sent to Laure Ruth, Legal Director, at lruth@wlcmd.org

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YOUR AD COULD BE HERE! Contact Rachel Ruocco at rruocco@bcba.org or 410-337-9103 for advertising rates THE ADVOCATE

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Baltimore County Bar Association

Presort Standard U.S. Postage PAID Permit No. 1262 Baltimore, MD

100 County Courts Building 401 Bosley Avenue Towson, MD 21204-4491 410-337-9103-Telephone 410-823-3418-Facsimile www.bcba.org

Member Advertisements TOWSON. Towson-first floor office space and parking available a block from circuit court. 402 West Pennsylvania Ave. Contact Carl Gold cgold@carlgoldlaw.com or 410-337-5545.

TOWSON. Set of Maryland Reporter, Volumes 1-875 (2005) available for free. Call Neil at (443) 632-9060.

CATONSVILLE. Office space available; 1007 Frederick Road; one to four rooms. Prime location along Frederick Road with signage. Call 410-744-3256 TOWSON. 2536.

Nicely furnished office space with parking, half block from circuit court. Pete McDowell 410-960-

TOWSON. Furnished office available in beautifully appointed suite in the heart of Towson. Use of conference room and other amenities. Contact Susan at 410-583-7007.

TOWSON. Small firm in Towson looking for an experienced part-time legal assistant/secretary two to three days a week. Any experienced candidates should contact Robert Jacobson at 410-583-8883.

TOWSON. 303 W. Pennsylvania Avenue, Towson across Bosley Avenue from the Circuit Court Building, three offices with bathroom on the second floor, 3rd floor four offices available, conference room, bathroom and kitchen on first floor, free parking space available, rent negotiable $50 to $100 less than comparable spaces. $400-$500 per office, great satellite office with possibility of overflow work. Contact Joe Glass at 410-823-4214 or 410-790-1980.

CATONSVILLE. Office Space for Rent. Catonsville, 1002 Frederick Road, 2nd floor office. Private entrance, semi private restroom, use of conference room and kitchen on first floor. Free parking. Would be a great satellite office.

Please contact Lou Weinkam, Jr. at 410-744-3256 ext. 103.

TOWSON. 309 Allegheny Avenue. 2nd floor offices with private restroom, 3 regular offices, partially furnished, 1 executive office (can be made into five offices) fully furnished. Private restroom. Tenant will have available to them a conference room, print/scan/fax center and kitchenette on 1st floor. Additionally, 2nd floor has 2 private entrances, 5 free parking spaces, and approximately 800 sq. ft. of combined dry/secure storage on 3rd floor and basement.

TOWSON. Sublease available one block from courthouse. Space in excellent condition. Spacious conference rooms, 34 offices, reception area, copy/supply room, and kitchen. Sublease until August, then take on new lease. Rent negotiable. Contact towsonfirm@gmail.com to schedule a tour or get more information.

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