Volume 4 Issue 1

G enotyping Causing the Fall of DNA Evidence

BY DANIEL P. MOONEY, ESQ. 1

SINCE 1986, defendants have been losing criminal trials on the basis of one piece of evidence: DNA. Referred to by many as the “CSI

than one person’s DNA.

Genotyping Causing the Fall of DNA Evidence

Although seemingly beneficial, glaring errors can arise in the use of this upand-coming technology that can directly impact the outcome of a criminal case. Variability in results, the inaccessibility of the computer codes controlling the programs, and the inherent biases inputted into the source code are just the beginning. Additionally, probabilistic genotyping has no way of differentiating between DNA from an individual who actually touched the surface from which the DNA sample was taken, and DNA that is transferred through “touch-transfer DNA.” What’s the latter concept, you ask? A 1997 scientific finding that proved people leave behind DNA on objects held for periods of time as short as 15 minutes. Even more shocking than that, this same study unveiled that when people come into contact with one another, they risk transferring their DNA and any other DNA they might have on their person to the individual with whom they have contact. In other words, anyone who unknowingly comes into contact with someone who later commits a crime risks having their DNA left behind at the crime scene despite never being there.

Legal Summit

MSBA in the Community: Spark Series

Witness History 17 Event Recap 20 MSBA in the Community: Young Lawyers Charity Event 22 Recent & Upcoming Events

In other words, anyone who unknowingly comes into contact with someone who later commits a crime risks having their DNA left behind at the crime scene despite never being there.

POOR PEOPLE SCIENCE

In other words, anyone who unknowingly comes into contact with someone who later commits a crime risks having their DNA left behind at the crime s despite never being

98 In Memoriam

141 Staff Profile: Jessica Young

HEALTH AND WELLNESS

110 The Art of Breathing

ETHICS

144 Executive Director's message: Delivering on our Mission INSIDE ANNAPOLIS 53 Legislative Outlook Member Spotlights

v. its opinion, accepted Daubert the admissibility in lieu of Maryland’s standard. With the door for challenge the genotyping scientists at

137 MSBA Ethics Docket: Can MarylandLicensed Attorneys Ethically Possess or Consume Cannabis Under Maryland’s Medical Cannabis Statute?

Taren Butcher

Kaitlin D. Corey

Sarah Cline

Meredith Hill

Eric Schloss

Joseph Greenwald & Laake, PA

100 In Memoriam: Judge Joseph Murphy Jr.

In Memoriam: Tom Meachum

103 In Memoriam: Tripp Burgunder 104 In Memoriam: Mike Jacobs 106 Miriam H. Sievers 116 Donald Tobin

This unique nationwide, land courts. Attorney for upon probabilistic 10 years ago Since then, thousands this technology. which this inception, the Court Rochkind

Publication Date: September 2022

Published quarterly by the Maryland State Bar Association, Inc.

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Telephone: (410) 685-7878 (800) 492-1964

Website: www.msba.org

Executive Director: Victor L. Velazquez

Managing Editor: Andrea Solan

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Subscriptions: MSBA members receive THE MARYLAND BAR JOURNAL as $20 of their dues payment goes to publication. Others, $42 per year.

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The Maryland Bar Journal welcomes articles on topics of interest to Maryland attorneys. Proposed articles can be submitted through the MSBA website at msba.org/content-portal

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Editorial Advisory Board

Natasha Nazareth, Esq., Chair

MSBA Officers (2022-2023)

President: David P. Shapiro

President Elect: Jason DeLoach

Secretary: Wm. Carl Isler

Treasurer: Marisa Trasatti

Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Maryland State Bar Association, its officers, Board of Governors, the Editorial Board or staff. Publishing an advertisement does not imply endorsement of any product or service offered.

EDITORIAL ADVISORY BOARD (2022-23 BAR YEAR)

Anna Sholl

Eric Steiner

Julie Hopkins Lynette Kleiza

Sarah Sawyer

Reena Shah

Andrea Terry

Tracy Steedman

David Sidhu

Corinne M. Pouliquen

Bill Hall

Andrea Solan

Colleen Aracri

Natasha Nazareth, Chair

Hillary Evans

Richard L. Adams, III

Robert D. Anbinder

LEGAL CAPITAL, 4th Edition

Bayless Manning, Late Former Dean, Stanford Law School

James J. Hanks, Jr., Partner, Venable LLP

This renowned book is the classic exposition of the origin, history and practical unworkability of par value, stated capital and other components of legal capital in the critical owners’ equity corner of the balance sheet. Legal Capital is widely credited with pioneering the introduction of the balance sheet and equity solvency tests for distributions to shareholders, as well as other reforms in the Model Business Corporation Act and corporation statutes in more than 30 states. The Fourth Edition adds new historical material, updates the statutes and caselaw on dividends and other distributions in the U.S. and compares the evolution of legal capital and capital maintenance in countries around the world.

“ Legal Capital turns on a basic tension around the corporate form – how the concept of limited liability can place creditors’ and shareholders’ interests at odds, and how that tension is resolved through statute, case law, and private contracting. It is a must-read for corporate law students, academics, and practitioners, and a must-have for law firm and university libraries.”

–Charles K. Whitehead, Myron C. Taylor Alumni Professor of Business Law, Cornell Law School

To purchase, go to westacademic.com or contact your West Academic Account Manager at inquiries@westacademic.com or call 800-782-1272.

In The District: Josephine Bahn

124 Past President: John Patrick Kudel

126 What I've Learned: Marc Kivitz

128 Career Transitions: Heather Warnken

130 Off the Beaten Path: Brooke Lierman

Managing the Googling Client

Case Study: How an Energy Company Transformed its Acquisition Experience

Court of Appeals Declines to Sanction Attorney Who Violated Ethics Rule While Relying on Bar Counsel

TO JUSTICE 112 Access to Counsel in Evictions in Maryland

Bridging the Affordability Gap

us your favorite part of the new

Iam proud to step into the role of president of the MSBA - the single association created to serve and open to every Maryland legal professional. The MSBA is not an association only for lawyers in one specific area or who identify as part of one specific group. Rather, our goal is to be a resource for every kind of legal professional, at every stage of their career, and in every part of Maryland.

Our mission calls upon us to promote professionalism, diversity in the legal profession, access to justice, and service to the public. As part of this, we, as an association, need to reflect upon and learn from the past - both our accomplishments and our failings. It may be difficult or even painful at times to discuss our past failings, but the more we become aware of and discuss the failings of our profession, the better we can resolve them together, and the better we can serve our clients and the public.

Connecting the Legal Profession: A New Approach for Engagement

When strategizing about how to best engage with legal professionals, our members have told us that Maryland legal professionals want to engage not just with MSBA leadership (e.g., your elected leaders, Board of Governors, section and committee chairs, etc.), but with one another. And that is what the MSBA is all about. Some people have told us that they want to engage with the MSBA the same way that they always have, at least before COVID: at live in-person events and programs. But an even larger segment of the membership has told us that they want to engage in the MSBA virtually either all the time or some of the time. We believe we can do both, but of course both have upsides and downsides. Technology is making it easier and easier to engage with members in multiple locations in real time, but of course, nothing can replace real, face-to-face engagement. Your leadership is working to strike a balance, so the MSBA can engage with as many legal professionals as possible.

As part of our ongoing effort to diversify and engage, the MSBA is working diligently to expand the touch of the MSBA geographically, but also to expanding our inclusivity and engagement with varried members of our profession. This includes with respect to race, ability and disability, gender identity, sexual orientation, practice area, the type of legal work in which you are engaged, and other characteristics. We understand that being

more inclusive, widely represented, and engaged makes us a better association, and helps us to improve our profession and to achieve our mission.

I feel privileged to be following the tremendous footsteps of Natalie McSherry, the Honorable Mark Scurti before her, the esteemed Dana Williams before him, and numerous other past presidents before them. They have served this association with distinction, with integrity, with civility, and with the shared goals of fostering an association that continually strives to better serve the legal profession, and encourages the engagement of all of our members, whoever and wherever they may be.

My message as we head into this next bar year together is a request that you help us in our efforts to diversify and engage, and a challenge that each of us bring civility into our profession - to be mindful of one another's humanity, even when, especially when, we are on different sides of an argument, different sides of an agreement, different sides of a courtroom, or different ends of a video link. I encourage all of us to stay mindful of civility. It is easy to do and the returns are far-reaching.

David Shapiro, President

Back to the Beach:

MSBA Holds First In-Person Legal Summit Since 2019

EACH YEAR, THE MSBA is proud to host its premier event—the MSBA Legal Summit, where legal professionals from across the state are able to participate in multiple days of learning, networking and thought leadership. This year, for the first time since the beginning of the pandemic, members and legal professionals gathered in person in Ocean City, Maryland for the 2022 MSBA Legal Summit and Annual Meeting, at a new location: the Roland E. Powell Convention Center.

With a new hybrid and paperless format, both in-person and virtual attendees were invited to hear from our nationally recognized keynote speakers Dan Abrams, Brandon Etheridge, and Ari Melber, gain new insight via a Governor Candidates Forum and Thought Leadership Events, and access an expansive series of substantive sessions across multiple practice areas. In addition, attendees had the opportunity to witness the swearing-in of MSBA’s newest President, David Shapiro and three newest Officers; welcome Maryland’s newest judges; and celebrate MSBA’s 125th anniversary.

This year, for the first time since the beginning of the pandemic, members and legal professionals gathered in person in Ocean City, Maryland.

President David Shapiro, MSBA Officers Sworn In

DAVID SHAPIRO WAS SWORN IN on June 3, 2022, at the 2022 business meeting. Shapiro, who serves as a Principal at Paley Rothman, emphasized the MSBA’s role as a premier “resource for every kind of legal professional, at every stage of their career, and in every part of Maryland,” and reaffirmed the MSBA’s mission to “promote professionalism, diversity in the legal profession, access to justice, and service to the public.” Shapiro took time to express his appreciation for outgoing president, Natalie McSherry, and cited her “grace, dedication, and sense of humor” for helping the association thrive throughout the exceptional and uncertain times during the pandemic. Shapiro encouraged members to “be mindful of one another’s humanity” heading into the next bar year and expressed his hope for the MSBA to be “more fully engaged with Maryland legal professionals, both in person [and virtually] where they are.”

Along with the installation of President Shapiro, three new MSBA Officers were inducted on June 3, 2022 during the business meeting that took place at the 2022 MSBA Legal Summit.

Jason DeLoach, Esq. (President-Elect 2022-2023). Mr. DeLoach is Senior Litigation Attorney at Alexander & Cleaver and previously served as Treasurer of the MSBA. In addition to his work as MSBA Treasurer, Mr. DeLoach has served on the MSBA’s executive committee and has served as chair of the Budget & Finance Committee. Outside of the MSBA, Mr. DeLoach has held numerous leadership roles, including Chairman of the Prince George’s Chamber of Commerce (2017-18), and Treasurer of the Maryland Municipal Attorneys Association (2012-Present).

W. Carl Isler, II, Esq. (Secretary) Mr. Isler is an attorney with the Legal Services Corporation Office of Compliance & Enforcement. As an active member in the MSBA, Mr. Isler is a past-chair of the Young Lawyers Section and has been a member of multiple MSBA committees. In addition, he has held several leadership roles within the Maryland Bar Foundation, MSBA’s philanthropic arm. Outside of the MSBA, Mr. Isler been active and held leadership roles in the ABA and the Women’s Law Center of Maryland Marisa Trasatti, Esq. (Treasurer) Ms. Trasatti is an active member of the MSBA and a Partner with Cipriani & Werner PC, where her work encompases on civil litigation and corporate work and she performs work as outside general counsel for local Maryland businesses. Ms. Trasatti has held several leadership roles in the legal profession, including recently serving as President of the Maryland Defense Counsel and as a member of the Judicial Disabilities Commission and she has served as faculty for a number of CLE programs.

Keynote Speakers on News, The Supreme Court, and Social Justice

ARI MELBER

Ari Melber, attorney and anchor of The Beat with Ari Melber on MSNBC, gave a keynote that touched on a number of current issues and events dealing with the rule of law, including the Supreme Court leak, and the impact of politics on the justice system in general. The audience also had the opportunity to hear Melber’s take on a few other current events including the verdict in the Johnny Depp v. Amber Heard court case and the recent investigations into the events that took place on January 6th, 2022 at the U.S. Capitol.

BRANDON ETHERIDGE

In a sit down interview with former President Natalie McSherry, Ravens Senior Vice President and General Counsel Brandon Etheridge discussed social justice, his career path, and the joy of winning. As the Ravens’ General Counsel, Etheridge has been able to take a leadership role working with players to help identify legislation they may be interested in supporting. Etheridge explained that, as an organization, Ravens executives are very intentional about checking themselves at the door and letting efforts for societal change to be player-led. Turning to his own platform, Etheridge sees it as part of his responsibility to also stand up and help people that are struggling, including by advocating for corporations to donate their time, talents, and funds to causes such as civil access to justice.

DAN ABRAMS

Dan Abrams, attorney and journalist, rounded out the slate of keynote speakers, giving his perspective on the importance of considering media coverage and public perception when developing a legal strategy. Noting that clients now expect lawyers to represent them inside and outside the courtroom, Abrams said lawyers should remember that “what happens outside the courtroom and how the public perceives an investigation or litigation can be as or more important than what happens inside the courtroom.” Citing cases like Purdue Pharmaceuticals and Theranos, Abrams suggested that in high-profile cases, attorneys that draft the briefs should recognize that oftentimes, in addition to the court, there is a second audience to pay attention to, the court of public opinion.

President's Reception

FOR THOSE THAT ATTENDED, this year’s President’s Reception was a special opportunity to not only commemorate 125 years but also to celebrate the first time since the beginning of the pandemic that we’ve been able to connect with our members and local leaders around the state in person. The event, which took place on the evening of June 2 in the Roland Powell Convention Center overlooking the waterfront, was a momentous occasion in recognition of the tens of thousands of our members who have built a legacy of service, leadership, and connection.

MBF Fellows Inducted During the 2022 Annual Meeting

New fellows are inducted for demonstrating outstanding dedication and contribution to maintaining the honor and integrity of the legal profession, the improvement and facilitation of the administration of justice, the work of the organized Bar of Maryland and civic leadership.

FOR 125 YEARS, the Maryland State Bar Association has been the home of the legal profession in Maryland and tens of thousands of our members have built a legacy of service, thought leadership, and civic leadership. This year 17 new fellows were inducted into the Maryland Bar Foundation for their work and outstanding dedication to maintaining the honor and integrity of the legal profession including by advancing the MSBA mission and expanding access to justice in local communities. In addition, this year’s Annual Meeting for the Foundation featured a networking reception to celebrate recipients of the 2022 Legal Excellence Awards and Curran Public Service Awards.

Leadership Class

H. Vernon Eney Endowment Fund Award

Presented to an individual who has demonstrated excellence in the law, bar leadership, community leadership, and enormous capacity for work.

MAYDA COLÓN TSAKNIS, ESQ.

Edward F. Shea, Jr. Professionalism Award

Recognizes an MSBA young lawyer who exemplifies professionalism, civility, integrity, compassion, and commitment to public service.

ALBERT GILLIS ALLEN, III, ESQ.

EACH YEAR, 15 FELLOWS are chosen to participate in the Maryland State Bar Association’s Leadership Academy, a program designed to provide the next generation of attorneys in the legal profession with the skills necessary to become leaders within their organizations and firms, the Maryland State Bar Association, and the legal profession. During their term, Fellows spend time attending MSBA events and developing and implementing a public service project, among other things.

Gubernatorial Forum

Legislative Panel

Spark Series: Vanita Gupta On the Legal Profession's Role in Access to Justice

The MSBA recently presented the second program in its 125th Anniversary Thought Leadership Initiative SPARK Series, featuring Vanita Gupta, U.S. Associate Attorney General at the U.S. Department of Justice. Gupta, the third-ranking official in the U.S. Department of Justice who made history as the first Indian American and the first person of color to hold this position, spoke about how attorneys can work to ensure access to justice. MSBA's Thought Leadership Initiative is a one-of-a-kind series of programs and events that aims to inspire members of the legal community to contemplate and discuss the role of the legal profession in furthering the cause of justice, not only in Maryland but also in the United States and throughout the world. The Initiative focuses on four themes: the ethical obligation of lawyers to serve as Guardians of Justice; the legal profession’s role in leading efforts to ensure Access to Justice for marginalized communities; the responsibility of the profession for Reforming Justice to alleviate historic inequities; and its emerging obligation to address challenges and opportunities currently found at the intersection of Science, Technology, and Justice.

Gupta began by noting the incredible responsibility and power that we have as members of the legal profession. She recalled how former Attorney General Robert F. Kennedy implored attorneys to support equal justice under the law by using their knowledge and skills to advance the rights of those who are most vulnerable. She quoted Kennedy, stating, “it is time we use … our precision, our understanding of technicalities, our adversary skills, our negotiating skills, our understanding of procedural maneuvers on behalf of the poor. Only when we have done all these things, when we've created a

SERIES

system of equal justice for all, a system which recognizes, in fact, the dignity of all people, will our profession have lived up to its responsibilities.”

In Gupta’s opinion, Maryland attorneys are living up to those responsibilities. Maryland is only the second state in the country to provide statewide access to counsel in eviction proceedings, demonstrating to the rest of the nation what is possible with commitment and creativity. She said that it took hard work from the Maryland Access to Justice Commission, the MSBA, the Maryland Legal Services Commission, and many others to pass legislation ensuring such access and congratulated all who took part in achieving this goal.

She pointed out that the housing crisis is a long-standing systemic problem. We have never had a national infrastructure or policy for preventing avoidable evictions. Even before the pandemic, over three million people were displaced in a typical year. While the pandemic exacerbated the housing crisis, it also served as a catalyst for reform, in Maryland and throughout the nation. Gupta is hopeful that states and localities across the country will follow Maryland’s lead in securing a right to counsel for tenants. She called on Maryland attorneys to continue to have conversations around access to justice

and examining and reimagining the tools and structures we have to help people in need.

Turning her focus to access to justice issues at the federal level, Gupta highlighted how the DOJ has partnered with and supported state and local efforts, explaining that this work is one of the primary reasons she was prompted to return to the DOJ. Addressing housing in this country is a critical part of the Justice Department's reinvigorated commitment to increasing access to justice for every

Maryland is only the second state in the country to provide statewide access to counsel in eviction proceedings

American and reducing the barriers and entrenched disparities in our civil legal systems. Last spring, the DOJ launched an effort to promote the use of court-based eviction diversion strategies and access to council and eviction proceedings.

In June, Gupta sent a letter to courts around the country urging them to implement eviction diversion strategies and encouraging them to build out more comprehensive programs that might include access to counsel. Many courts took significant action even in places where statewide access to council wasn't within reach, and Gupta is hopeful that more state courts will implement similar programs in the coming months.

Gupta explained that providing legal counsel to tenants can enormously impact the resolution of eviction, which is why Attorney Gener al Garland issued a call to action asking the legal community to volun teer time and legal assistance to confront the ongoing housing and evictions crisis. As a result, law students and lawyers from across the country have stepped up to take on cases. Addressing the housing crisis is just one piece of the DOJ’s efforts. Last fall, Attorney General Merrick Garland announced that the DOJ would reinvigorate its role in leading access to justice policy initiatives across the government through the launch of the Access to Justice Office (ATJ).

ATJ is exploring ways to maximize and increase grant-making programs to focus on and support access to justice work and assessing how to catalyze broad-scale transformation and innovation in our legal systems. It is also partnering with the U.S trustees program to help people in financial distress access the bankruptcy system and obtain needed relief. It is exploring ways to pursue economic justice and combat the criminalization of poverty, building initiatives to support individuals in immigration proceedings, and working on expanding support for public defenders nationwide as well. Finally, regular collaboration with state Access to Justice commissions will be a priority for ATJ.

Gupta explained that access to justice is not simply an initiative or a project at the DOJ; instead, she believes that it is part of the foundation of our country. The ideals that we are still striving to realize, like freedom, equity, and justice for all, and disrupting the devastating connections between race, poverty, and injustice, require a commitment from all of us. Although she is heartened by the energy in the state access to justice systems, thinks we still have a long way to go.

EVERY element of EVERY CAUSE OF ACTION

WEB EXTRA

Attorney General Candidates Discuss Their Plans with MSBA

Prior to the July 22 primaries, the women and men seeking election as Maryland's next Attorney General sat down for nonpartisan interviews with then-MSBA President Natalie McSherry and former State Senator Bobby Zirkin at MSBA headquarters, to discuss their plans for moving the state forward if elected to office. Part of the MSBA’s efforts to educate members and advocate for the profession, these discussions followed interviews with gubernatorial candidates at the end of 2021.

U.S. REPRESENTATIVE ANTHONY BROWN says his childhood inspired him to pursue a life of public service. His father practiced medicine in some of the poorest neighborhoods in the service of others. Brown thought he could make a difference in the lives of people through the law, and as Attorney General, he wants to make an even greater impact on the lives of people in Maryland.

In Congressman Brown’s views, the Attorney General has two clients: the State of Maryland and its citizens. The challenge that sometimes arises is how to serve both effectively. His three main priorities as Attorney General are increasing public safety, worker rights and protections, and enforcing environmental protections. He plans to seek legislation that grants the Attorney General the independent authority to file actions against those in the private sector who violate civil rights, power it does not currently have.

Congressman Brown believes that the Attorney General plays an important role in legislation that is considered or ultimately passed by the General Assembly. He thinks Maryland has made a lot of progress with regard to gun safety, but there is not one piece of legislation that

will make gun use safer. He supports the use of gun courts, and believes it will be a greater deterrent of gun crimes than increased penalties.

Congressman Brown stated that there are over 30 commissions, committees, and task forces that the Attorney General or their designee is either a member or chair of, and many of those commissions involve members of the public and require attorneys with experience and expertise in the specific areas they deal with. One area where the Attorney General can and should have a relationship with the MSBA is in filling the committees and task forces with people from the legal community. If elected, he hopes that the MSBA could offer recommendations regarding how to improve and build on the work that Attorney General Frosh has done as well.

One area where the Attorney General can and should have a relationship with the MSBA is in filling the committees and task forces with people from the legal community. —Rep. Anthony Brown

MICHAEL A. PEROUTKA, an attorney and founder of a self-accredited institute that focuses on constitutional teaching, served on the Anne Arundel County Council from 2014 to 2018 and spent over 20 years working as an attorney in the area of creditors rights.

Peroutka recognized the Attorney General’s unique role as the state’s top legal officer, and discussed a number of areas where his personal views are seemingly at odds with the duties of the office. Asked about his prior comments referring to the education system as “a plank of the Communist Manifesto” and whether he could represent agencies like the Department of Education, Peroutka said he would represent the Department of Education to the best of his abilities but would not hide his personal views about the education system generally.

Peroutka does not recognize the state’s same-sex marriage protections and expressed his opinion about the type of laws that should be defended by the Attorney General. According to Peroutka, there are “two standards to determine whether something is lawful, [first] is whether or not it meets the constitutional limitations of government and [second] is whether it is harmonious with God’s law.”

He takes issue with whether certain agencies had authority to create regulations to protect the public health during the COVID-19 pandemic; in his opinion “lockdowns [and] face mask mandates” were examples of government overreach and were unconstitutional.

Regarding the recent push for a constitutional amendment to protect a woman’s right to choose, Peroutka opined that the state’s abortion laws were a nullity. He went on to state his view that a “child in the womb . . . has not faced a grand jury, has not been indicted by a grand jury, has not had due process, and has not been convicted by a jury of its peers . . . [and] as Attorney General I would not defend that statute.”

JUDGE KATIE O'MALLEY grew up in a family with a long history of working in public service, which inspired her to practice law and be a public service lawyer. She worked in the State’s Attorney’s office for a decade before becoming a district court judge, a position she has held for the past 20 years.

O’Malley sees the focus of the Attorney General as protecting Marylanders, whether it’s through criminal justice, or environmental or consumer protection, serving the interest of the state at every level of government.

If elected, O’Malley would work to attract and retain the best and brightest lawyers, start intern programs in Maryland’s law schools to get students interested in working for the Office of the Attorney General, and make sure that deputies working in the office have diverse experience. She thinks it is beneficial to have both attorneys who have worked in private practice and attorneys who for the government their entire careers working in the Office.

In O’Malley’s career as a trial judge, she has seen the negative impacts a person can face when they come to court without

JAMES SHALLECK describes his passions as public service and prosecution. He says he is running for Attorney General to reduce crime, specifically to reduce the number of violent crimes and repeat offenders in Maryland, which he believes is the most important function of the position.

Shalleck’s background includes working as an Assistant District Attorney and Chief of the Homicide Bureau in the Bronx, prosecuting white collar crimes as an Assistant Attorney General for New York, and working in the Antitrust

There are two standards to determine if something is lawful: "Whether or not it meets the constitutional limitations of government" and "whether it is harmonious with God’s law.” —Michael A. Peroutka

counsel and how greatly the lack of representation disadvantages people when it comes to access to justice. She would strongly advocate for people to have counsel during eviction proceedings and in protective order hearings.

Violent crime is a significant issue in Maryland and Baltimore City specifically, and if elected, O’Malley will collaborate with different stakeholders to fight crime. She would also strive for increased transparency and accountability for law enforcement. She thinks Maryland needs a leader who has built cases with investigators and worked with attorneys to lead the organized crime division. O’Malley says she can do this on day one because of her experience working on such issues as a prosecutor for a decade and then as a trial judge for 20 years.

Division of the U.S. Justice Department. Shalleck says he knows how to prosecute cases, and he wants to use the office to fight street crime, which is what he believes people in Maryland care about most. Reducing crime is his most critical concern. He envisions redefining the role as a statewide prosecutor, noting that the Maryland Constitution provides the Attorney General with criminal prosecution authority. He would offer to intervene when the State’s attorneys lack the means to process cases.

Shalleck advocates for more police funding and protecting the police. He wants to hold judges accountable, as, in his opinion, there is not enough transparency when it comes to the sentences they deliver.

The discussion then turned to environmental concerns, with Shalleck stating that major polluters should go to jail and pay substantial fines. He explained that he would put an assistant Attorney General at different offices around the state on a regular basis so that people in the community could report pollution.

Shalleck would recruit nationwide and promote Maryland as a great place to live to attract the best attorneys to the Attorney General’s office. He believes that public awareness could help efforts to increase the salaries for attorneys working in the Attorney General’s office.

Shalleck is not in favor of the legalization of recreational marijuana use but does not think that people should be heavily penalized for minor infractions. He does not support the government creating safe drug consumption sites in Maryland communities.

Chief Judge BARBERA

RETIREMENT CELEBRA TION

THROUGHOUT HER TENURE, Chief Judge Mary Ellen Barbera worked tirelessly to increase the courts’ efficiency and promote racial justice in the civil and criminal justice system. She also expertly navigated the challenges of the COVID-19 pandemic in Maryland courts before retiring from the bench in September 2021.

The MSBA hosted a dinner gala at the College Park Marriott on May 5, 2022, to celebrate Chief Judge Barbera’s retirement and highlight her many remarkable accomplishments. The MSBA was excited to welcome fully vaccinated members of the legal community back in person after postponing the gala from September 2021 due to COVID concerns. Approximately 700 attorneys and legal professionals from throughout the state attended the event, relishing the opportunity to toast Chief Judge Barbera and connect with judges and colleagues from various practice sectors and jurisdictions.

The event began with an outdoor cocktail hour before the emcee, Timothy F. Maloney, Principal at Joseph Greenwald & Laake, kicked off the evening by noting it was worth the eight-month wait to join together in honor of Chief Judge

Barbera. He reflected on the fact that, in the 246-year history of the Maryland Court of Appeals, the judiciary has weathered wars, insurrection, and a great depression, but when Chief Judge Barbera was sworn in, never did anyone dream that they would face a worldwide pandemic.

Maloney stated, though, “like everything else she has done in her extraordinary career [Chief Judge Barbera] led the judiciary with courage and wisdom and grace, and she brought the ship safely home” and asked everyone to welcome and thank Chief Judge Barbera. He then announced that the University of Maryland and University of Baltimore law schools created and will now support the Judge in Residence, who will be Chief Judge Barbera. Finally, he welcomed Chief Judge Barbera’s successor Chief Judge Matthew J. Fader, and her predecessor, Chief Judge Joseph M. Getty.

M. Natalie McSherry, Principal at Kramon & Graham and MSBA President, welcomed the more than 700 gala attendees and thanked the evening’s sponsors on behalf of the MSBA.

President McSherry stated that the MSBA is a 125-year-old organization, but its mission, advocating for the legal profession, the clients they serve, and the people of Maryland,

is as vital today as it was on the date it was founded. She observed that the legal profession has certainly changed over those 125 years, and perhaps no one exemplifies that change more than the Chief Judge Barbera, who is without question a trailblazer.

Looking back on Chief Judge Barbera’s storied career, President McSherry noted, “there’s one common thread that runs through every position she has held, and that is educator. Chief Judge Barbara began her professional life as a teacher, and throughout her legal career, she taught all of us about equal justice, equal access to justice, advocating for women, minorities, the poor, and children.”

On behalf of the MSBA, President McSherry applauded Chief Judge Barbera for her many years of service as a respected Maryland lawyer, which culminated in her 19-year career as an appellate judge and ultimately as the Chief Judge of the Maryland Court of Appeals, thanked her for her visionary leadership, and honored her for her dedicated and exceptional service to the system of justice in Maryland.

The Honorable Robert M. Bell (Retired), former Chief Judge, Court of Appeals of Maryland, one of the few Marylanders to serve on all four Maryland courts, led a champagne toast to Chief Judge Barbera. Judge Bell recounted how he watched Chief Judge Barbera in many phases of her career, from arguing cases as an advocate to participating in selecting judges' political process and then as a judge.

Judge Bell stated that it was not surprising to him that she was the perfect person to lead the court, noting, “nobody knew that there would be a pandemic, but she was able to navigate that pandemic, and she did it without sacrifice to

that which is so important to a justice system - ensuring equal justice remains for all of us.” Judge Bell concluded that Chief Judge Barbera is the embodiment of a strong woman: empowered, self-aware, and a warrior at heart. He then “passed the mantle” to Chief Judge Barbera, by presenting her with a bobblehead in her likeness.

Guests then heard praise of Chief Judge Barbera from members of the Maryland General Assembly. First, Chairman Will Smith, Senate Judicial Proceedings Committee, reiterated President McSherry’s characterization of Chief Judge Barbera’s legacy as a trailblazer, stating, “while you were working, others were watching, and you inspired all of us to do things that we never thought we could do,” an especially true sentiment when she became the first woman Chief Judge of the Court of Appeals. He thanked Judge Barbera on behalf of the legislature, calling her a “shining example of public service which inspired all of them to do better, not only in their personal careers but also in the law.”

Next, Chairman Luke Clippinger, House Judiciary Committee, thanked Chief Judge Barbera first for offering advice and counsel to the Committee anytime they asked, noting “throughout her career she did her best to ensure the doors of justice were open … to every person in the state and to advance the cause of justice.” He then gave Chief Judge Barbera a Citation on behalf of the House of Delegates in recognition of her retirement.

Lt. Col. Sheldon A. Goldberg, USAF (Retired), Commander for the Department of Maryland and Leader of Youth Leadership Conference of the Military Order of the World Wars,

presented Chief Judge Barbara with a Citation as well, in recognition of her commitment to meeting with high school students twice a year for 12 years, as part of the MOWW Law and Order Youth Leadership Seminar. During these meetings, Chief Judge Barbera “introduced them to the state’s legal system, her court’s history, and the role of the Maryland courts, inculcating in them an appreciation of the law.”

The audience then heard from the Honorable John P. Morrissey, Chief Judge of the District Court of Maryland, who offered his top five reasons why Chief Judge Barbera should be inducted into the (mythological) Judiciary Hall of Fame, including her tireless work to form collaborative relationships with the legislature and executive branch, all for the betterment of the judiciary and the justice system in general, and her embodiment of the mission statement of the judiciary to provide fair, efficient, and effective justice. Judge Morrissey noted that Chief Judge Barbera’s “commitment to access to justice speaks volumes about her legacy to advancing the principles of civil Gideon,” explaining that during her tenure, the judicial help centers expanded exponentially, from one walk-in center in Glen Burnie to walk-in centers spread across the state, as well as a call-in center that served over 140,000 individuals with free legal advice last year alone.

Brian Zavin, Deputy Chief Attorney of the Office of the Public Defender of Maryland, and Carrie Williams, Principal Counsel for Criminal Policy at the Office of the Attorney General of Maryland, engaged in a mock oral argument in tribute to Chief Judge Barbera and her commitment to justice, during which they debated the issue of whether she was a public defender or attorney general at heart.

After a video tribute to Chief Judge Barbera featuring her family and people she worked with throughout her career, her husband, the Honorable Gary E. Bair (Retired), who is currently Of Counsel at Raquin Mercer LLC, offered the final tribute. He stated that everyone who knows Chief Judge Barbera “has witnessed her patience, her kindness, and her courtesy. They know she is sincere, diplomatic, and above all principled… and all of these qualities have made her a fantastic appellate judge, Chief Judge, and leader of the entire Maryland Judiciary.”

Attendees then heard from the night’s honoree, Chief Judge Barbera, who thanked the MSBA, including President McSherry and former President Judge Mark Scurti, Executive Director Victor Velazquez, the gala steering committee led by Judge Shannon Avery, and MSBA staff for the work they did to make the event come to fruition. She recounted her time on the Court of Special Appeals, stating her “colleagues were superb jurists and great colleagues, and every one of them is owed congratulations for the work that they did and do” and congratulated the newest Chief Judge of the Court of Special Appeals E. Greg Wells. Chief Judge Barbera also enjoyed her time on the Court of Appeals and thanked her colleagues for their “wisdom, collaborative attitude, and grace.” She reflected on her career, the benefit of bar associations, and the duties of the judiciary to protect the integrity of the judicial system and ensure equal and equitable justice as well. Guests then enjoyed a dessert hour, where they mingled and had a chance to meet with Chief Judge Barbera.

Young Lawyers Raise $13,000 for Maryland Food Bank

THE YOUNG LAWYERS SECTION held its 31st Annual Charity Event on April 22, 2022, at Gertrude's Chesapeake Kitchen in the Baltimore Museum of Art. The beneficiary of this year’s Charity Event was the Maryland Food Bank, a non-profit organization tirelessly leading the movement to end hunger in Maryland.

This year marked the first time since 2019 that the Charity Event was held in person. The Young Lawyers Section was grateful for the opportunity to reconnect with all of our friends and colleagues for a great cause: helping Maryland Food Bank in its fight against hunger.

Thanks to our wonderful sponsors, donors, attendees, silent auction bidders, and the Young Lawyers Section Activities Committee, the Young Lawyers Section exceeded its fundraising goal and was able to raise over $13,000 for the Maryland Food Bank! This successful Charity Event would not have been possible without the generosity of our supporters.

The Young Lawyers Section exceeded its goal, raising over $13,000 for the Maryland Food Bank!

SPONSORS

HON. PAMILA J. BROWN & HON. MARK F. SCURTI

FRIENDS

SILVER SPONSORS

BRIAN HOCHHEIMER

GOLD SPONSORS

PLATINUM SPONSOR

BRONZE

We brought MSBA’s 125 th anniversary celebration to our members

After two years of connecting virtually, this spring MSBA members had the chance to meet in person to help celebrate the MSBA's 125th Anniversary. The series of 125th Anniversary Connections Events reflect the MSBA’s dedication to its role as the home of Maryland’s legal profession, helping tens of thousands of members engage in thought leadership, build a legacy of service, and foster connections. Open to all legal professionals, the Connections events

offer a great opportunity to meet and mingle with local bar leaders and other members of the profession in your community.

Over 30 legal professionals attended the MSBA’s first 125th Anniversary Connections Event, which took place on March 31st at Magerks restaurant in Harford County, sponsored by the Bar Associations Insurance Agency.

Harford County Bar President, Judge Kerwin Miller Sr., and President-elect Krystle Acevedo Howard welcomed MSBA President M. Natalie McSherry. Harford County Circuit Court Judge Angela Eaves, who was recently appointed to the Court of Appeals, attended the event as well, along with local attorneys, judges, and paralegals. Tom Waxter attended as a representative for the Bar Associations Insurance Trust.

The MSBA held its second 125th Connections Event in David’s Restaurant & Bar at Live! Casino in Anne Arundel County on April 5th. Judge Wayne Brooks and Judge Mark Scurti attended, along with past Anne Arundel County Bar President Brian Marsh and numerous attorneys and legal professionals.

Attorneys from Wicomico County, Worcester County, and Somerset County had the opportunity to mix and mingle at the Connections Event at Brew River in Salisbury on April 11. President McSherry, MSBA Executive Director Victor Velazquez, and nearly 40 others enjoyed the in-person celebration.

Connections Events were also held in Baltimore City and Baltimore, Dorchester, Montgomery, and Howard Counties.

MAKING CONNECTIONS

in counties across the state

A Few COVID Litigation Concerns for Corporate Counsel

BY PAMELA LANGHAM, ESQ.

SINCE THE ONSET OF THE PANDEMIC,

a majority of states have implemented some form of “immunity” or COVID-19 “shield law” against negligence claims related to COVID-19. Maryland has not. Many businesses and healthcare facilities are immune from liability in the states that have adopted shield laws unless a party can prove gross negligence. That being said, even though there is no immunity from civil cases in Maryland from COVID-19 related injuries, a party in Maryland will still need to prove causation in order to prevail, which is no easy task.

A party in Maryland has an uphill battle in proving causation in any COVID-19 civil litigation claim based upon negligence. In workers’ compensation cases, workers may be able to prove under Maryland’s workers’ compensation laws that contracting COVID-19 in the workplace is a compensable injury as an “occupational disease.” Some workers who were required to work on site during the pandemic continuously will have an easier time proving compensability in their workers’ compensation case than others—for example, nurses or store clerks who were exposed to members of the public on a continual basis.

Lex Machina’s February 2022 Law Firms Activity Report,1 traditionally used by corporate counsel to allocate legal resources, assign monitoring of cases, analyze risk, and hire

1 https://lexmachina.com/blog/lex-machina-releases-its-2022-law-firms-activity-report/.

outside counsel, reflects COVID-19's impact on litigation. According to the ABA’s Business Law Section, “several of the most active law firms involved in COVID Cases filed cases under the American Disabilities Act (the “ADA”) or alleged employment claims.”2 This is also reflective of the increased litigation related to “vaccine mandates, disability discrimination, whistleblower retaliation, and lack of protective equipment, among other claims.”3

Corporate counsel should keep apprised of these types of cases and monitor them closely. Below is a summary of recent litigation involving some of the trends in COVID-19 related litigation.

COVID-19 and The Americans with Disabilities Act Is COVID-19 a disability?

Federal courts are struggling with whether a diagnosis of COVID-19 constitutes a disability under the ADA. In December 2021, the Equal Employment Opportunity Commission (EEOC) updated its guidance, clarifying that COVID-19 may qualify as a disability under the American with Disabilities Act (ADA). One of the distinctions between a COVID-19 diagnosis qualifying as a disability is whether the symptoms of COVID-19 are acute as opposed to long-term. The EEOC has determined that COVID-19 can fit the description of a disability if the long-term effects of the virus affect bodily functions and limit major life activities, e.g. ongoing headaches, difficulty remembering, or concentrating that a doctor attributes to COVID-19, an individual receiving supplemental oxygen for breathing dif-

er terminated her employment for her refusal to return to work. The employee’s lawsuit claimed her employer violated the ADA for refusal to grant her a 14-day leave period as an accommodation. The employer filed a motion to dismiss, claiming COVID-19 was not a recognized disability. The court disagreed with the employer and noted the employee had alleged symptoms that substantially limited her ability to breathe, concentrate, and work, all major life activities. The outcome of the court’s ruling is that COVID-19 can be a “disability” under the ADA under certain, qualified circumstances depending on the severity and length of the employee’s symptoms. The EEOC and the courts that have ruled on the subject have all been consistent in reiterating that whether a diagnosis of COVID-19 is a recognized “disability” should be determined on a case-by-case analysis. In cases where the employee suffers mild, acute symptoms that do not limit the employee’s ability to work, the COVID-19 diagnosis will not be a recognized “disability.”

Employers should engage in the same interactive process with their employees to make a determination of whether a reasonable accommodation for COVID-19 illnesses should be granted. And, if so, are they entitled to FMLA leave?

Personal Protective Equipment (or Lack Thereof)

In Schleider v. GVDB Operations LLC6, the Eleventh Circuit considered the scope of legal protections created by the federal Public Readiness and Emergency Preparedness Act (PREP), which a Florida nursing home invoked in challeng-

The EEOC has determined that COVID-19 can fit the description of a disability if the long-term effects of the virus affect bodily functions and limit major life activities

ficulties or shortness of breath, other virus-related effects that last, or are expected to last, for several months, or an individual diagnosed with "long COVID.” The EEOC has provided guidance on whether COVID-19 may qualify as a disability under the ADA.4

Several federal courts have determined that the long-term effects of COVID-19 are a disability.

In Brown v. Roanoke Rehabilitation & Healthcare Center,5 the employee plaintiff contracted COVID-19 and was ordered to isolate for 14 days by her physician, which was consistent with the CDC requirements at the time. The employer ordered her back to work before the end of her 14-day isolation period. Brown refused, and her employ-

ing a federal court's remand of a lawsuit over a resident's COVID-19 death. The PREP Act confers immunity on “covered persons” or entities who use “countermeasures” during the COVID federal emergency. The defendant, a nursing home, asked the court to reverse the district court’s ruling to send the case back to state court in which the plaintiffs claim the defendant failed to take proper protective measures against the spread of COVID-19. The defendant did not provide personal protective equipment (masks, gloves, etc.) (PPE) during the height of the pandemic. The plaintiffs claimed willful misconduct because of the failure of the defendant to provide PPE, which caused the death of their mother. The defendant urged the Eleventh Circuit to adopt a broad interpretation of the PREP

2 Evolving Litigation Trends Revealed by Lex Machina’s 2022 Law Firms Report, ABA (Apr. 8, 2022).

3 Id.

4 https://www.eeoc.gov/newsroom/eeoc-adds-new-section-clarifying-when-covid-19-may-be-disability-updating-technical.

5 Case No.: 3:21-CV-00590 (M.D. Ala. Feb. 22, 2022).

6 Case No. 21-11765 (11th Cir. Apr. 8, 2022).

Act, suggesting Congress intended for the law to preempt state court jurisdiction when an emergency is declared and also requires that a willful misconduct claim in these circumstances must be brought in the U.S. District Court for the District of Columbia. The plaintiffs insisted the PREP Act only covers the use of countermeasures and not the failure to provide countermeasures. The plaintiffs also argued that the PREP Act’s cause of action only applies to injuries caused by the use of countermeasures (personal protective equipment) and not those caused by COVID-19.

The outcome and importance of this case cannot be stressed enough, as it is likely the Eleventh Circuit’s interpretation of the PREP Act in COVID cases will affect similar cases around the country. As of this writing, the Eleventh Circuit’s decision is still pending.

Vaccinations

Vaccination mandates by healthcare facilities and other employers

In Bridges v. Houston Methodist Hospital7, over 100 nurses and healthcare workers filed a lawsuit against the defendant alleging it was unlawful for their employer to require the COVID-19 vaccine. The defendant allowed exemptions based upon medical conditions or religious beliefs. The district court ruled “Texas law only protects employees from being terminated for refusing to commit an illegal act carrying criminal penalties.” The judge noted that requiring a COVID-19 vaccination is not an “illegal act carrying criminal penalties.” Finally, the judge noted that the U.S. EEOC had issued guidance permitting employers to mandate vaccinations in the workplace, subject to valid medical or religious exemptions.

Of course, vaccination requirements imposed by healthcare facilities are nothing new, and exemptions for medical conditions or religious reasons have always been the mainstay. Indeed, this has been the law for a very long time. Constitutional law, the ADA, Title VII of the Civil Rights Act, and similar state laws prohibit workplace discrimination based on disability and religion and require employers to make reasonable accommodations so that all employees have an equal opportunity to perform the essential functions of their jobs.

However, before implementing a COVID-19 vaccination requirement, employers may want to determine whether the vaccination is essential for the health, safety, and welfare of their employees and patients/customers. Most certainly a substantial majority of health care facilities meet this requirement. If a determination is made to require the

7 No. 4:21-cv-01774 (S.D. Tex. June 12, 2021).

8 Case No. 1:21-cv-00672 (D. Md. 23, June 2021).

If a determination is made to require the COVID-19 vaccination, ensure that your new policy provides the appropriate medical, disability and religious exemptions required under the existing law.

COVID-19 vaccination, ensure that your new policy provides the appropriate medical, disability and religious exemptions required under the existing law.

Employer Liability to Third Persons

In Estate of Madden v. Southwest Airlines Co.8, the U.S. District Court for the District of Maryland dismissed a lawsuit filed by a flight attendant who argued she contracted COVID-19 at work and then transmitted COVID-19 to her husband, who died from the virus. She sued the defendant for the wrongful death of her husband. The courts have so far not extended liability to third parties as a result of a COVID-19 related injury. This is a win for employers, but courts have always been hesitant to impose a duty and liability in similar circumstances not involving COVID-19. Employers should remain vigilant and enforce rigorous health and safety protocols to prevent COVID-19 in the workplace to minimize lawsuits filed by people that they do owe a duty—their employees and possibly clients or customers.

The guidance regarding COVID-19 has been evolving and will continue to do so. According to the statistical evidence, COVID-19 litigation will be around for at least the next five years, probably longer. Educating the stakeholders and employees at your organization on the new laws and guidance concerning negligence, the ADA, Workers’ Compensation, FMLA, and Risk Management Assessment involving COVID-19 related litigation and the long term effects on managing these issues should be a topic of discussion with your chief executive officer or corporate board.

THE INTERSECTION OF LAW AND PERSONAL CONNECTION

TAREN BUTCHER

Deputy General Counsel, Aston Carter, Inc.

Taren Butcher has received plenty of good advice over the years, but one tip that continues to instruct her is to stay curious and ask questions. This advice was important when she began her career, and continues to be important seven years into her current role as Deputy General Counsel at Aston Carter, Inc. “I still am constantly asking questions and remaining curious and I’m confident this advice has contributed to my success,” she said. Butcher, who describes her legal career as “challenging, ever-evolving, and fulfilling,” discussed her professional goals and her experiences in the MSBA recently.

Photo courtesy of Christopher Myers Photography

“

Why did you enter the legal profession?

I enjoyed the intellectual challenges with the type of work lawyers were tasked with doing. I gravitated towards civil litigation from the beginning of my legal career and found evidence to be one of my favorite classes in law school. Once I started my legal career, I quickly realized that I enjoyed the intersection between the law and personal connection which drew me to employment law and where I found my true passion in the law.

What are some accomplishments you've achieved during your career?

Leading Women Award from The Daily Record in 2015

Recipient of the Dean’s Citation, University of Baltimore School of Law for outstanding service to the law school community

Service as President of the Black Law Student Association and the Alliance of Black Women Attorneys

clients and help them solve their business challenges. I really enjoy how engagement and collaboration are such a key part of my job. I realized quickly that being in-house fit well with my personality and this company especially given its focus on relationships and character.

Tell us a little bit about your current role.

I’m currently Deputy General Counsel for Aston Carter, a privately-held staffing company with 1,500 internal employees and over 20,000 temporary employees across thousands of clients in the United States. In my role, I use my extensive employment law and complex litigation experience to provide senior executives and business partners with practical legal advice and strategic solutions to enhance the delivery of exemplary services to Aston Carter’s clients. I also work closely with Aston Carter’s HR and compliance partners on a variety of workplace compliance requirements and employment law matters, and provide counsel on ser-

Aston Carter is always striving to stay competitive in the market which means they are constantly evolving in how they deliver services to their clients or our internal business operations which means I need to stay constantly engaged in the business and abreast of the law to provide timely legal advice.

What professional accomplishment are you most proud of?

One of my first major accomplishments as an attorney was when I won my first bench trial in district court representing my pro bono client in a landlord-tenant matter where the court ruled that the landlord unlawfully failed to return her security deposit after her lease ended. I recall spending countless hours preparing for that trial and being so nervous during the proceeding, but it was so thrilling when my client received a positive outcome. In some ways, the reaction of my client and the gratitude she expressed was more fulfilling than the win itself.

What do you enjoy most about your career?

I really enjoy the ability to utilize my legal background to serve as a strategic business advisor to my

vice and vendor agreement negotiations, noncompete compliance, and enterprise risk mitigation.

What does a day at work look like for you?

No day at work is ever the same for me because the needs of the business and the legal issues that come up are always changing. But on a typical day, I may be doing one of the following things: (1) reviewing a service agreement for the business; (2) providing advice to my HR partners on a personnel matter; (3) working with outside counsel on our strategic defense to a pending lawsuit; (4) working with an external client to solution for a business problem impacting our engagement; and (5) working with leadership on delivery of a business objective by providing practical legal advice on the challenges or concerns with execution.

I would also have to say my time on the Young Lawyers Section was memorable because that’s how I met my husband, so I thank the MSBA for introducing me to my lifemate.

What are some of the challenges you face in your current role?

One of the biggest challenges in my current role is the “pace of play.” As a sales organization, Aston Carter is always striving to stay competitive in the market which means they are constantly evolving in how they deliver services to their clients or our internal business operations which means I need to stay constantly engaged in the business and abreast of the law to provide timely legal advice. Related to that challenge is the increase in the use of technology by all businesses in order to create efficiencies and remain competitive which in turn raises new and different legal issues for our business related privacy, data security and several other areas that are becoming areas of legal risk for many businesses as they evolve through technology.

Describe a memorable MSBA event or product that has had an impact on you personally or professionally. I had the pleasure of serving as Co-Chair of the Local and Speciality Bar Committee for 4 years (I think) and found that role so fulfilling. I truly enjoyed the opportunity to collaborate with my various committee members to help plan the Bar President’s conference each year and engage with my colleagues and leaders throughout the state. The organic conversations that happened in the sessions and especially the breakout sessions was always fulfilling. I would also have to say my time on the Young Lawyers Section was memorable because that’s how I met my husband, so I thank the MSBA for introducing me to my lifemate. :)

How do you spend your free time?

I enjoy working out and being active. For several years, I actually played co-ed touch football and loved it! I’ve been a Peloton junky for the last two years and have developed several Peloton workout groups with colleagues and co-workers. I also enjoy spending time with my two daughters, age 1½ and 5, who are a ball of energy and keep me and my husband on our toes constantly! Although, I don’t have as much time for it these days, I love shopping even casually. I have start-

ed to do more online shopping but I prefer the fun of perusing the aisles in a store any day!

What’s an interesting fact about you that no one would guess?

It might be surprising to some but not all that I was a cheerleader and captain of the cheerleading squad in my senior year of college. Another random fact: I’ve never broken a bone.

What causes are you passionate about?

Diversity and inclusion in workplaces and specifically law firms. I spent several years on DRI’s Diversity Committee and helped with planning their annual Diversity for Success Seminar geared towards addressing diversity issues in law firms and the legal profession.

Do you volunteer? If so, where?

I was a board member and Co-Chair of the Governance Committed for Girls on the Run of the Greater Chesapeake for 6 years and just finished my term last year. Last Summer, I joined the board for the Baltimore Washington Medical Center Foundation. I’m also Treasurer/President- Elect of the Association of Corporate Counsel, Baltimore Chapter. Earier in my legal career, I volunteered often with MVLS handling several landlord-tenant matters.

Who is someone you admire, and why?

I admire my mother. She has been one of my biggest supporters through all of my life challenges and accomplishments and always encourages me to be best version of me. Now that I’m a mother, I truly realize all the sacrifices she made for me and our family to ensure stability, security and love constantly filled our home. She has made me a better parent, wife, daughter and friend through her love, advice and nurturing throughout my entire life and I cannot thank her enough.

Name three words that describe you. Congenial, tenacious, optimistic

Billable Hours: Tips to Succeed

BY ALISON C. SCHURICK, ESQ. & JESSICA CORACE, ESQ.

Billable hours are important building blocks in your legal career. Here are a few tips to help you succeed.

Don’t Shave Your Hours

You are working hard – so get the credit you deserve! Don’t shave your hours before submitting them to the billing attorney (even if you don’t want anyone to know that you spent 8 hours researching something, to no avail). If the billing attorneys don’t want to pass all of your time onto the clients, let them make that decision.

Bill As You Go

Don’t try to recreate your time at the end of the day. It’s difficult to remember what you did earlier that day, let alone what you did last week. To accurately capture your entire time, best practice is to bill as you go.

Bill for “Extra-Curricular” Activities (If Allowed)

Ask your firm if there are billing codes for “extra-curricular” activities — e.g., bar association work, marketing, client development, community service, etc. Even if these activities do not go to your actual billable requirement, log them if you can. Doing so will show that you are allocating time for these important activities and spending your time wisely. Non-billable work can be just as valuable as your billable work.

Not Every Day Will Be a “Successful” Billing Day

Understand that not all work is billable and you won’t be able to max out your billables every single day. Set realistic daily, weekly and monthly goals – but don’t get discouraged if you fall behind once or twice!

Know Client Billing Guidelines

Take time to review client billing guidelines, if any, in advance. Yes, this is a non-billable task, but it will save you time having to revise your entries on the back-end or, worse, having your time rejected!

Alison C. Schurick is a member of Baker Donelson’s Government Enforcement and Investigations Practice Group. Jessica Corace is with Franklin & Prokopik, where she concentrates her active litigation practice in the area of liability defense, including construction, commercial transportation, auto, premises liability, and general civil litigation.

Josephine Bahn

ASSOCIATE AT COZEN O’CONNOR

Photos courtesy of Mitro Hood Photography

JOSEPHINE (“JO”) BAHN is an Associate at Cozen O’Connor in D.C., where she practices primarily in the areas of construction and commercial litigation. Bahn was previously a senior attorney in the enforcement section of the Federal Deposit Insurance Corporation (FDIC), where she focused on banking laws and regulations and provided advice to the FDIC chairman on diversity and inclusion concerns. In August 2022, she will begin a one-year term as Chair of the the American Bar Association’s Young Lawyers Division. .

Why did you enter the legal profession?

In 10th grade, I read To Kill A Mockingbird and decided I needed to be just like Atticus Finch. I believed at that age that everyone deserves access to justice, and it’s something I pride myself on believing even more today.

What is the best piece of career advice you have received?

Say yes until you can say no. Early on in my career, I said yes to everything—every article, speaking engagement, leadership opportunity, etc. A mentor of mine told me to keep saying yes because there would come a time when the opportunities would grow from one-off chances to significant roles—and that would be when I could (and should) think more strategically about where I spent my time.

A mentor of mine told me to keep saying yes because there would come a time when the opportunities would grow from one-off chances to significant roles. “

What is your fondest memory of your legal career so far?

Every one of my pro bono cases has ended in a result that has made me feel like the hours I devoted really mattered on the individual level. From increasing parental access to getting access to veteran’s benefits—there hasn’t been a single instance where it wasn’t worth all the time and effort.

How would you describe your career in three words?

Unseen hours matter!

What professional accomplishment are you most proud of?

Being elected to serve as the Chair of the ABA’s Young Lawyers Division was the result of a long road of continually working to make the profession better. I am now set to lead the largest voluntary group of young lawyers in the nation—something this small town Pennsylvania grown girl never considered.

“

...there hasn’t been a single instance where it wasn’t worth all the time and effort.

What is one thing you would change about your current role if you could?

Not specific to my current role at Cozen, construction law generally lacks women and diverse attorneys. I’d change the number of women and diverse lawyers who I have cases with and against.

What are your goals for yourself in this role?

Stay true to why I became a lawyer—work on things big and small to make sure everyone has access to justice and representation. I recently switched practice settings from banking to construction. That was a big challenge and adjustment, but it’s been exciting with every new matter.

What are some of the challenges you face in your current role?

Being it all, all the time. On paper, it looks like I’ve got a great balance—a practice that is filled with a good amount of interesting work, a husband and two kids at home, a thriving bar association, and a nonprofit leadership list, but it’s been challenging to balance all of it and still feel like I’m doing more than tread water. It’s taken a lot of late nights and weekend work, plus a forgiving spouse, to make the outward-facing parts of my life seem perfect.

How has the MSBA helped you in your legal career?

The MSBA has granted me the opportunity to better connect with the Maryland judiciary, grow and hone my skills in litigation through collaborative programming, and strengthen the ties I have with bar leaders from across the state.

How do you spend your free time?

Any time that I’m not working is usually spent with my two children, Ruth (3) and Jack (1). They are the brightest parts of my life.

What causes are you passionate about?

Pro bono. I think it should be required for every lawyer to perform 20 hours of pro bono each year. The access to justice crisis in this country is real, and only through pro bono can it be alleviated.

Do you volunteer? If so, where?

The Junior League of Baltimore and Maryland Legal Aid.

Name three words that describe you. Passionate, nonstop, and candid.

CORPORATE COUNSEL

Cybersecurity and Data Protection

BY PAMELA LANGHAM, ESQ.

EVEN THE BEST SECURITY program will not prevent all cybersecurity incidents. It is generally well known in the corporate and public counsel arena that preparation in advance and an effective preventive program are essential to protect against cyber threats. Legal risk is a crucial consideration because potential plaintiffs may sue using many theories of liability spanning a range of federal and state statutory and common law claims, e.g., breach of contract, negligence, fraud, violation of consumer protection statutes, violation of the Stored Communications Act, breach of fiduciary duty, invasion of privacy, and breach of data protection laws, among others.

The list of items to cover for corporate counsel in this area is continuing to grow. According to the Association of Corporate Counsel’s 2020 annual Chief Legal Officers’ Survey,1 “90% of chief legal officers expect[ed] data privacy issues to accelerate” in the year 2021. They were not mistaken, especially since human error accounts for one of the major causes of a data breach.

The duties for corporate counsel facing growing privacy and cybersecurity to-do lists include privacy policy review for compliance with legal standards, vendor contract review, merger and acquisition transactions, risk transfer (contracts and insurance), incident response plan—implemented and tested, protocols regarding vendor breach, and cybersecurity assessments, among others. Below are a few other matters that corporate counsel may want to consider when executing their role in cybersecurity matters.

Cyber Incident Reporting for Critical Infrastructure Act of 2022

Corporate counsel may want to pay close attention to the Cyber Incident Reporting for Critical Infrastructure Act (CIRCIA), signed by President Biden on March 15, 2022. CIRCIA creates two critical reporting obligations on owners and operators of

1 Available at https://www.acc.com/clo2020.

critical infrastructure: (1) an obligation to report certain cyber incidents to the Cybersecurity and Infrastructure Security Agency (CISA) of the U.S. Department of Homeland Security within 72 hours; and (2) an obligation to report ransomware payments within 24 hours. The new obligations do not take effect until CIS promulgates implementing regulations, but corporate counsel should use this time to educate their executives and board on this new law and obligations. Some of the business entities that are considered "critical infrastructure" under the Act include: commercial facilities, communications, dams, emergency services, energy, financial services, food, and agriculture services, healthcare and public health facilities, information technology, transportation systems, water and wastewater systems, and chemical facilities.

Cybersecurity and Privacy Policies

Your company should already be managing risks by developing and implementing policies and procedures to manage privacy, security, and compliance issues. Compliance with legal standards is an ongoing project because, as demonstrated by CIRCIA, new laws are popping up, and the law is a moving target in this area. Ensure that your role as corporate counsel is clearly defined in your company’s policies and procedures applicable to data protection and in your company’s security compliance plan.

Vendors

The security of your vendors is just as important as the security of your organization. Conduct a thorough vendor contract review to ensure that your vendors are as vigilant as your company in data security. Implementing a system to protect your information when transferred to the vendor is also advisable. One of the most crucial things is to require in a contract that a third party notify you in the event of a breach.

Ensure Your Board Is Well-Informed

The chief information security officer is heavily involved in mitigating cybersecurity risks and can assist in educating your board. Include your chief information security officer in briefs with your board members.

Hire Cyber Counsel to Assist with a Breach Before the Breach Occurs It’s a good idea to hire cyber counsel now. Consider that your employees do not have to act maliciously to commit a data breach. Human error is a major cause of data breaches. If your budget is low, sign a retainer contract so that you are not searching for competent cyber counsel after a breach occurs. Ideally, work with cyber counsel on preventive measures and protocols so that they are at the ready as soon as a breach occurs. Waiting to hire cyber counsel after a breach will put your company behind the curve in correcting the issue and reporting requirements.

Conduct Cybersecurity Assessments and Protect Your Client’s Privilege Cyber counsel can also assist in cybersecurity assessments. Obviously, the company’s IT experts are involved in the day-to-day and long-term cyber preventative strategy. However, it is important to ensure that your

2 No. 13 Civ. 7060 (CM) (S.D. N.Y. Jan. 26, 2021).

3 331 F.R.D. 80 (S.D.N.Y. 2019).

4 No. 0:14-MD-02522 (D. Minn. Oct. 23, 2015).

IT department does not hire outside experts or consultants without going through the general counsel’s office. If the IT department hires a consultant, who then provides a written report to IT which identifies major weaknesses in your company’s cybersecurity and privacy firewalls, future plaintiffs and their lawyers may seek production of the report that not only outlines the weaknesses in the system but will highlight the fact that the company was aware of the weaknesses and may not have yet taken the steps to correct the issues. Ensure that your company has a formal protocol in place to ensure that the general counsel’s office is involved in any and all consultations with outside experts regarding your cybersecurity program so that you can take steps to preserve your privileges. There are a few key cases that corporate counsel may want to study regarding sharing information with third parties, including cybersecurity experts, without waiving privileges, including Pearlstein v. Blackberry LTD.2

and Universal Standard Inc. v. Target Corp.3 In re: Target Corp. Customer Data Security Breach Litigation4 specifically discussed preserving privileges in a data breach context after hiring outside experts. Target suspected a security breach, retained outside counsel, and formed a task force at the request of their in-house and outside counsel to educate the lawyers for legal advice and to prepare for litigation. Target successfully demonstrated that the task force was formed not for purposes of remediation of the data breach but to inform Target’s in-house and outside counsel about the breach so that Target’s attorneys could provide the company with legal advice and prepare to defend the company in litigation that was already pending. The takeaway from these cases is clearly to consider using external litigation counsel for data security breach investigations, state in the retainer agreement that legal advice is sought to assist the company’s lawyers in providing legal advice to the company, and assert the privilege.

LEAVE NO STONES UNTURNED

KAITLIN D. COREY

Goodell DeVries

Photos courtesy of Mitro Hood Photography

KAITLIN D. COREY, A PARTNER AT GOODELL DEVRIES, focuses her practice on intellectual property law, litigation, and tax law. Corey also serves as General Counsel for the Annapolis Police Foundation. Somehow she finds time to speak regularly on copyright and trademark law and is an adjunct professor at the University of Baltimore School of Law, where she co-teaches Trademarks and Unfair Competition Law.

When someone asks you what you do, what do you tell them? If I say I am an “IP lawyer,” the response is usually “What?” So I usually say I am a business lawyer who handles a wide range of business issues, including intellectual property matters.

Without disclosing confidential information, can you tell us about the biggest project on your plate right now?

My biggest “project” is finding the right balance between work and home life. As a mom of three kids, it’s an ongoing, never-ending project. I love what I do and it is easy to be consumed by work. Stepping back, taking time to be “off the clock” and enjoying my kids before they are grown up is something I am always working on.

What are some of the major trends in your primary practice area(s) that might interest legal professionals in other practice areas? Intellectual property is an area of practice that is always evolving due to technology changes (the Metaverse for example). Intellectual property and business law are always intertwined, and it is critical that business owners understand the value of their intellectual property and that they protect it.

What do you love about your role with the MSBA?

I just concluded my term as Chair of the Intellectual Property Section of the MSBA.

Trying to create content and hold events during this pandemic has been challenging to say the least. As Chair of the Intellectual Property Section, I had the opportunity to get to know many members simply by planning events and content. I hope the events that we hosted this year (both virtual, and as of late, in person), and content that we provided have brought value to the members of the section.

Take the time to intensely analyze the issue, dig deep, don’t leave any stones unturned and make the most persuasive and educated argument you can. “

My biggest “project” is finding the right balance between work and home life.

What value do you see in MSBA membership and your section membership?

I have found value in both utilizing content available to enhance my knowledge in a particular area of the law as well as attending networking events to meet peers and grow my practice. My section membership has allowed me to meet colleagues who share an interest in IP law. If I have a question about a nuance in this area (and there are plenty of nuances), I have a list of people I can call.

What is the best piece of advice you have received from someone in the legal profession?

It’s better to be over-prepared than under-prepared. Take the time to intensely analyze the issue, dig deep, don’t leave any stones unturned, and make the most persuasive and educated argument you can for your client.

What is your fondest memory of your legal career so far?

One of my best “wins” so far was crafting a unique legal argument in a trademark case (that intersected with FDA regulations) which formed the basis of a summary judgment motion. After providing a copy of the motion to opposing counsel prior to filing, the parties resolved the case.

What is the one piece of advice you would give someone in law school or considering a legal career?

I would suggest that they determine where they want to be in five and 10 years and how law school will help get them there. Law school requires a significant amount of effort, time and money and while a legal career can certainly be rewarding (and also difficult), it’s not a decision that should be made hastily.

What do you do to unwind/de-stress?

I spend time with my husband and kids—occasionally, with a glass of wine in hand. My nine-year-old son loves to go on “dates” with me to get bubble tea which is one of my favorite things to do. I also love photography. It’s a great day when I get the chance to use my DSLR camera.

BRANDON ETHERIDGE

Ravens Senior Vice President and General Counsel Discusses His Role in the Team Offices and the Importance of Working Toward Social Justice

BY SOPHIA COLAS, ESQ.

Photos courtesy of Christopher Myers Photography

WHEN BRANDON ETHERIDGE, AN ONLY CHILD, SCHOLAR, AND ATHLETE, set out on his path into the legal profession, all roads seemed to lead back home to Maryland. Earlier this year, Etheridge completed his sixth season as the Ravens' General Counsel, a role he’s held since 2016. Looking back on his transition into the newly created role, Etheridge recalls that the Ravens had gone quite a bit of time without anyone specifically dedicated to in-house legal issues. “Coming [in] as a 31 year old lawyer, and coming to work for someone like [former Ravens President Dick Cass] was pretty daunting,” Etheridge said. His goal stepping into the role “was to make the Ravens legal department the model legal department in the league, and you don't do that by playing catch up. You do that by saying, ‘hey, where are things going? And let's work to get there.’”

That same foresight and work ethic is likely what led the Baltimore native back to serve as the chief legal officer for his hometown team. Etheridge, who was born in Baltimore and grew up in Prince George’s and Howard County, attended the McDonogh School in Owings Mills, Maryland from fourth to 12th grade. While there, Etheridge began developing his skills as a scholar and athlete, a combination that would not only take him to Yale for undergrad, where he would earn his bachelors degree in political science, but also come to serve as a running theme in his career as a legal professional.

“

We are here, not just to win games, but also to win off the field,” Etheridge emphasized. “That means making life better for Marylanders and particularly Baltimoreans in our community.”

Etheridge credits his decision to attend Yale to his experience at McDonogh. “My dad was 18 [and] on the ground in Vietnam fighting the Vietnam War, [so he] didn't get to go to college [and] my mom went to North Carolina State,” Etheridge explained. “At McDonogh we had a long line of football players, or scholar athletes who also went to Yale. . . so when I had the opportunity to look at colleges and try to find a place where I could play football and also get a great education, it was pretty much a no brainer. I applied early decision and got in.” At Yale, Etheridge took a course on civil rights law and says the experience set him down the path towards becoming a lawyer. From Yale, Etheridge would go on to earn his law degree from Harvard Law School.

“Pretty much as soon as I got to law school, I had the opportunity to go to a talk on entertainment and sports law,” Etheridge said. “At the time, the then general counsel for the Washington Nationals was speaking to the Entertainment Sports Law Society . . . and that was really the first time that I knew that you could be a lawyer in sports.” With this in mind, Etheridge focused, throughout law school, on identifying a law firm with a reputable sports law practice and quickly settled on working for Covington & Burling after graduation. There, Etheridge spent his first few years as an attorney gaining exposure to sports, labor, and employment law. Soon thereafter, he transitioned to the NFL League Office, where he worked as outside counsel to sports teams and gained important exposure to Maryland sports personnel and executives. “I had a case very early on with the Ravens, [that allowed me to build] a great rapport there. Over time, I found myself doing a lot more work for

them outside of just typical collective bargaining agreement negotiation or arbitration.” Two years later, the Ravens named Etheridge General Counsel for the organization.

When asked about the transition from law firm work to inhouse work, Etheridge notes that one of the biggest differences was going from speaking to legal professionals each day to communicating complex legal concepts to business personnel who were oftentimes nonlawyers. “Rather than your client being an in-house lawyer, like at the law firm, your client is a sales executive or someone in finance or an information technology professional or someone in human resources.” Etheridge explained. Now six years into the General Counsel role, Etheridge has helped develop the office into more of a strategic business partner for other units within the organization. As a result, the office is seen as more of a problem-solving resource that helps to strengthen the organization overall. More recently, Etheridge was promoted to Senior Vice President, which he describes as a reflection of the evolving nature of his role as General Counsel. Under Etheridge’s leadership, the role has grown to include a number of other responsibilities including representing the organization's stance on matters of public interest, and serving as the organization’s government affairs representative. When asked about his involvement in the Ravens’ social justice undertakings, Etheridge emphasized the organization’s commitment to serving as leaders in the community and champions for the future of Baltimore and Maryland as a whole. “We are here, not just to win games, but also to win off the field,” Etheridge

emphasized. “That means making life better for Marylanders and particularly Baltimoreans in our community.”

To date, Etheridge has been involved in a number of civil and social justice initiatives affecting Marylanders across the state, including partnering with the Maryland Attorney General’s Office to support opioid awareness initiatives, and more recently on the Attorney General’s COVID-19 Access to Justice Taskforce. “There was no greater problem during the past few years than the COVID pandemic,” Etheridge said, “and so when I was asked to join the Task Force, by AG Frosh, I jumped at the opportunity.” Notably, the COVID-19 Task Force brought together high-level and diverse leaders from across the state to examine the pandemic’s impact on Marylanders and to make recommendations on how to deploy the legal system in response.

On the Task Force, Etheridge leveraged his skills and influence to communicate with other corporate counsel at companies across the state. “When I started this role, the last thing that I thought was that this role would provide me with a platform to engage in really impactful and effective advocacy,” he said. Etheridge noted that “I’m an in-house lawyer for an incredibly well respected and well known organization in the state . . . and over the years when we have put our name behind legislation . . . it's gotten a lot of people's attention [including] a lot of other businesses around here who say, ‘you know, maybe we should step up, and maybe we should support that as well.’”

“ There was no greater problem during the past few years than the COVID pandemic,” Etheridge said, “and so when I was asked to join the Task Force, by AG Frosh, I jumped at the opportunity.”

Q & A

Given the recent expansion of your role as Senior Vice President and General Counsel, what would you say is the most fun part of your role and what is the most challenging part of your role?

Well, you know, we are a football team so for us, everything comes down to ‘are we winning or are we losing’ and everything we do here is to help this team win on and off the field. So, for me the most fun part of this job is coming in on a Monday after a win, the hardest part of this job is coming in on a Monday after a loss and the single hardest day is always when the season ends, whether it's because we didn't make the playoffs or whether it's getting eliminated from the playoffs, that day is always a tough one.

What do you think are some of the benefits for you, as a corporate counsel, of being a member of the MSBA?

There are only three professional sports teams in Maryland, so it's hard for me to find my peers. I think it's been incredibly helpful for me to have that connection with peers here in Maryland that I otherwise would not have. When I was at the law firm there were a lot of people that you could bounce ideas off of, who are in the same boat as you, and who are dealing with the same issues. I think being a member of the MSBA, especially during COVID, when we were all scrambling to try to figure out what the new health directives meant, it was incredibly helpful to be able to rely on my peers within MSBA.

How do you balance the corporate need to not offend the public with your role engaging in impactful advocacy?

My favorite quote from Dick Cass over the years has been that, at the end of the day, we do not want to look back and say that we are on the wrong side of history. We have said that we're leaders in this community, that we are champions for the future of Baltimore, and for the future of Maryland and we have a responsibility to our players and to our staff here to do the right thing. And that’s not to say that it's always easy, but at least in this organization we recognize that 10 years from now or 50 years from now, the organization will be stronger from it.

“

WE ARE CHAMPIONS for the future of Baltimore, and for the future of Maryland and we have A RESPONSIBILITY to our players and to our staff here to DO THE RIGHT THING."

BE A PART OF IT.

Maryland attorneys: Powering

Communities businesses justice

OVER THE LAST 125 YEARS, MSBA has been involved in some of the most notable developments in the legal profession. It’s been home to thousands of lawyers, helped create opportunities for legal professionals, and served the community through partner organizations.

Learn more at MSBA.org/125 learn more at MSBA.org/125

BE

MAKING CONNECTIONS & SHARING KNOWLEDGE SARAH CLINE

Miles & Stockbridge, P.C.

A self-professed “real estate nerd,” Sarah Cline relishes the research and writing in volved in her transactional real estate prac tice. She loves investigating properties and uncovering historical facts about them, and speculates about the interpersonal drama that can be deduced from what is recorded in the public record noting, “land records can be a bit of a soap opera sometimes.”

Cline, who serves as the current Chair of the MSBA Real Property Section and Chair of the Fellows of Maryland Bar Foundation, recently joined Miles & Stockbridge, P.C., as a principal. She was recruited by Stacy Manley, past Chair of the Real Property Section, who she knows well from working with her on the MSBA Real Property Sec tion Council for several years.

Photos Courtesy of Travis Marshall Photography

We recently interviewed Cline to learn about her recent move to Miles & Stockbridge and her career in general. You can read more about her below.

What professional accomplishment are you most

I am proud that I have been able to incorporate teaching into my legal career, because I really enjoy sharing my knowledge with other attorneys and professionals. As an introvert, public speaking has always been a challenge for me, and I certainly never envisioned that I would be speaking at legal conferences on a regular basis. But I find that the process of preparing for a presentation helps me learn and focus my knowledge, expanding my expertise, so I really get a lot out of it. I have had the honor to speak several times at the MSBA’s Real Property Institute, and I hope to continue to

Why did you choose Miles & Stockbridge?

I was excited by the opportunity to work different types of transactions than I had before, and to be involved in larger transactions across the country.

What do you like most about the firm?

I am licensed in MD, DC and VA, and actively practice in all of those jurisdictions. I like that Miles & Stockbridge has a physical presence in each of those jurisdictions, with an office where I can meet with clients if necessary; I also like that they have a robust bench of experienced practitioners in each of those jurisdictions for me to collaborate with

What considerations did you weigh before deciding

Switching firms was not a decision I made lightly; my practice is a huge part of my life and identity, so I wanted to make sure that I was only joining a new firm that was the right fit for me and my practice. Obviously, over the course of my nine years at my prior firm, I had developed close friendships with my colleagues (and as an introvert, the task of making new friends is daunting), but I knew that I would remain close with those friends and colleagues, and have other opportunities to collaborate with them through the Real Property Section and otherwise.

My primary considerations were (1) will this firm allow me to grow as an attorney, and better serve my clients; (2) will I be able to further develop my current expertise; (3) will I be able to develop new skills and expertise; and (4) will I be able to reach a broader network of clients and prospective clients? Obviously, I also had the more personal concerns of “Will my colleagues be nice?” and “Will I be happy?” but

I had the advantage of already knowing many of my new colleagues, and knowing that I would be happy to work with them.

How has the MSBA helped you in your legal career?

The MSBA has helped me meet colleagues all over the state, which has enabled me to provide solid referrals when a client needs a referral to an attorney in an area of law or jurisdiction where I don’t practice. It is also great when I know other attorneys involved in a deal I am working on, whether they represent the other party, or the lender, or the government agency, because there is shared collegiality that makes the practice friendlier.

Describe a memorable MSBA event that has had an impact on you personally or professionally.

I had the honor of graduating from the MSBA Leadership Academy in 2012. Over the course of that fellowship, I learned all about the organizational structure of the MSBA, and how it engages with and serves its members. I learned how to work with other attorneys with different backgrounds, practice areas, and from all over the state. I also met many current and future leaders of the MSBA, and made lasting friendships. I have also volunteered with the Wills for Heroes program, and served as the program’s coordinator for several years; being able to provide on-demand pro bono legal services for first responders and their families was very rewarding, and I am looking forward to being able to volunteer again in the future when those in-person events resume.

PLEADING CAUSES OF ACTION IN MARYLAND

7 TH EDITION

BY PAUL MARK SANDLER, JAMES K. ARCHIBALD, AND ELEANOR T. CHUNG

Pleading Causes of Action in Maryland, Seventh Edition is the starting point for drafting and analyzing virtually all pleadings in Maryland.

Sandler, Archibald, and Chung’s practical organization make this an exceptionally easy-to-use practitioner’s and judge’s tool.

The authors’ analysis and advice help the reader develop an acute awareness of the strengths and weaknesses of a case, making this an invaluable reference manual for all Maryland lawyers. Each chapter provides sample pleadings, as well as authoritative commentary of elements of a claim and issues to consider.

Just one of 130+ print and digital treatises and coursebooks provided by MSBA.

THIS EDITION FEATURES:

• More Than 100 New Cases

• New Causes of Action, including Breach of Fiduciary Duty and Intentional Interference with an Inheritance or Gift

• New Chapters

• Significant updates to forms

• Updates on MDEC Requirements

Advocacy in Annapolis Highlights from the 2022 Legislative Session

MSBA Legislative Wrap-Up 2022

As the state’s leading voice for the legal profession, MSBA engages in public advocacy through a variety of channels at all levels of government, including filing amicus curiae briefs, meeting with executive branch officials, connecting with the Judiciary, testifying before state legislative committees, and drafting legislation. MSBA engages more than 42,000 Maryland attorneys and legal professionals in state legislative advocacy through the integrated efforts of practice-specific sections, the Laws Committee, member-wide action campaigns, and important partners such as the Access to Justice Commission (A2JC), Attorney General, Judiciary, and former Senator Bobby Zirkin (who recently joined MSBA’s advocacy team).

This year, the Maryland General Assembly concluded another stand-out session due to the ongoing COVID-19 pandemic. MSBA advocated in Annapolis on a broad spectrum of issues affecting the legal profession and impacting access to justice for Marylanders. The association reviewed over 2,000 bills and referred relevant bills to the MSBA Laws Committee and specific MSBA sections for discussion and further action on a weekly basis. At the height of session, MSBA referred nearly 950 bills in one week to relevant sections.

A critical success this session included securing over $25 million in additional funds to support access to counsel in evictions. Since the start of the pandemic, MSBA, working with A2JC, has secured over $40 million in civil legal aid funding to support these programs, both through the General Assembly and the Governor’s office. MSBA also provided advice, testimony, and bill language on several issues impacting the profession, ranging from corporation law revisions, criminal justice, immigration, cameras in the courtroom, family law, and estate document execution.

A critical success this session included securing over $25 million in additional funds to support access to counsel in evictions.

No matter your area of expertise, MSBA remains committed to advocate on your behalf on issues that impact your practice.

Practice-Specific Advocacy Efforts and Successes

MSBA also successfully drafted and secured passage of several bills that impact specific practice areas. While MSBA cannot recognize all efforts here, we appreciate and thank the dedicated team of legislative liaisons for each section, as well as the section councils and many individual members who convened frequently, prepared bill language, and provided testimony at a rapid pace to meet the demands of the session.

Animal Law

The section was instrumental in supporting and securing passage of several animal rights initiatives this session, including:

HB 16/SB 44: Provides civil penalties for anyone leaving a dog outside and unattended for substantial periods of time without access to shelter during extreme weather.

HB 52/SB 381: Prohibits sale of parts from several endangered species of wildlife.

Business Law

The section successfully drafted and secured passage of three important bills impacting corporations and businesses around the state:

HB 342/SB 261: Authorizes an LLC to provide for the transfer or assignment of an interest irrespective of membership. Authorizes an LLC member to retain a non-economic interest under certain circumstances.

HB 996/SB 879: Establishes a process for ratification of defective corporate acts, requires specific filing procedures for corporations ratifying a defective corporate act, authorizes a person or entity to file an action contesting ratification, and applies the Act to real estate

Advocacy Is a Year-Round Effort

investment trusts.

HB 999/SB 431: Revises and clarifies laws related to the formation, organization, and operation of corporations.

Estates and Trusts Law

The section developed legislation that allowed for the continuation of remote and electronic notarization of documents in a manner consistent with emergency provisions enacted during the pandemic. These bills significantly modernize the execution methods of estate planning documents in the long term, allowing Maryland attorneys to safely and quickly serve clients.

HB 576/SB 36: Modernizes execution methods for estate planning documents by allowing execution of remote wills without notary, and authorizes a notary for remote estates and trust work under certain conditions.

HB 663/SB 317: Removes the exclusion of wills and trusts from being electronically notarized; correct a conflict in RULONA to remove burdensome identify proofing and credential analysis by notary; permits the use of remote ink notarizations; and authorizes increased fee for notarial acts.

MSBA looks forward to continuing collective advocacy efforts with our members and sections as we prepare for the 2023 session. Advocacy is not simply reserved for a few individual practice areas or highly motivated practitioners, as evidenced by the variety of issues noted above that intersect many areas of the law. No matter your area of expertise, MSBA remains committed to advocate on your behalf on issues that impact your practice. The ability to make a difference in Annapolis and around the state is just one of the many reasons we need all legal professionals to belong to the MSBA, to ensure we remain a strong and vibrant association. Thank you for being a valued member of the association.

Business and Technology Case Management Program: Ready to Serve Maryland's Business Entities

BY PAMELA LANGHAM, ESQ.

Since the 1990s states across the country have increasingly organized specialized “business” courts. Some have unique docket tracks, specialized rules of procedure, separate divisions of court or a separate court at the civil trial level. All business courts are primarily designed to provide efficient and convenient case management and disposition to external (commercial dispute) and internal (shareholder dispute) litigation involving business entities.

THE GENERAL ASSEMBLY of Maryland established the Maryland Business and Technology Task Force to examine whether Maryland should establish a specialized business and technology court within Maryland’s circuit court system in 2001. Rule 16-205 was adopted by the Maryland Court of Appeals to establish a business and technology case management program to enable each circuit court to handle business and technology matters in a coordinated, efficient, and responsive manner and to afford convenient access to lawyers and litigants in business and technology matters upon recommendation of the task force.

The Maryland Business and Technology Case Management Program (BTCMP) is governed by the Committee on Complex Litigation under the Conference of Circuit Judges. The Committee’s charge includes all complex litigation, except asbestos, with the initial focus on business and technology litigation.

The current rule governing the Business and Technology Case Management Program is Rule 16-308. The rule establishes a program track for business and technology cases with its own case management system, a unique procedure, judges who are mostly specially trained in business and technology and ADR proceedings conducted by specially trained mediators. The rules allow a circuit court judge for a particular county to sit as a program judge for another county in a different circuit. The new rule also provides types of cases that are

presumptively included and types of cases that are presumptively excluded.

The business technology program provides certainty and an expedited litigation schedule so that “businesses can make business decisions and not get stuck in the legal system,”

How May a Party Be Assigned to the Business and Technology Case Management Program?

The rule provides that a party may be assigned to the specialized court upon written request or on the court’s own initiation if the “judge determines that the action presents commercial or technological issues of such a complex or novel nature that specialized treatment is likely to improve the administration of justice.” Rule 16-308(c)(1). The rule also sets forth the factors each County Court Administrative Judge may consider in making a determination to assign the case to the program. The critical factor is “whether business or technology issues predominate over other issues presented in the action.” Id. The rule also provides that some types of cases

are presumptively assigned to or excluded from the business technology program. Causes of action that are presumptively assigned to the program include, but are not limited to claims under the Maryland Antitrust Act, the Maryland Securities Act if involving unusual complexity, claims involving the affairs and internal governance of business entities, stockholder derivative actions, stockholder or commercial class actions or cases that involve technical issues of significant complexity. Rule 16308(c)(2). Some claims involving breach of contract, fraud, trade secrets, non-compete agreements, and business torts are presumptively assigned “if they involve unusual complexity.” Id.

Causes of action that are presumptively excluded from the program include, but are not limited to personal injury, wrongful death, medical malpractice, landlord-tenant, professional fee and malpractice disputes, employer-employee disputes, and criminal matters. Rule 16-308(c)(3).

Work Group

A Work Group was organized and is advisory in nature. The Work Group provides input from members of the bench and bar who litigate business and technology cases before the circuit courts. The Work Group is authorized to provide recommendations for both successful practices and problem areas for the Complex Litigation Committee’s consideration. Many attorneys practicing commercial law believe removing complex business and technological cases from the regular docket will allow the

specialized judges in the program to concentrate on the complexities of the issues and allow the other judges to focus their attention on other less complex legal matters. Eric Orlinsky at the firm Saul, Ewing, Arnstein & Lehr, LLP, and one of the founding fathers of the business and technology court in Maryland stated, “research and evidence demonstrates that business cases litigated in a specialized court quickly resolve contributing to the efficiency of the court system.”

Other noted figures that have contributed greatly to the creation and success of the program include James Hanks, Jr., partner at Venable, LLC; Judge Fletcher Hill who has led the charge in Baltimore City; Judge Sean Wallace who is the current chair of the Committee on Complex Litigation; Judge Ronald B. Rubin (Ret.) who has been involved since 2002, first as a practitioner and later as a judge; and Judge Michelle Harner who provided an impetus for the program when she was a professor at the University of Maryland Law School.

Judges and Mediator Certification

The current Business and Technology Judges presiding over cases in the program are published on the BTCMP website. Judge Rubin stated that most judges in the business technology program are proactive and so the cases move sooner rather than later. Judge Rubin noted that one of the advantages of the program is that cases “begin and end with the same judge so the parties have continuity and certainty.” He understands, as well as all judges in the program, that businesses do not want inaction in litigation. The business technology program provides certainty and an expedited litigation schedule

The business and technology court is open for business and ready to serve business entities in the state of Maryland.

so that “businesses can make business decisions and not get stuck in the legal system,” he said.

Mediators assigned to program cases must meet specific qualifications that are set forth in Maryland Rule 17-205(b). By training specialized mediators, proponents of the program believe the court system will reap benefits from a higher rate of settlement of business and technology disputes. Qualified mediators are also published on the BTCMP website.

Written Opinions of the Court

The BTCMP website also publishes opinions from remarkable cases of particular interest to the busi ness and technology community or other business and technological issues. The BTCMP opinion data base may be accessed here. The database provides lawyers and judges with a growing body of case law and is extreme ly beneficial for attorneys practicing within the specialized track. Howev er, the trial court opinions are not considered to be precedent.

The BTCMP wants corporations and businesses to know that the business and technology court is open for business and ready to serve business entities in the state of Maryland. The bench has been working hard in preparation and just concluded a two-day boot camp to educate the presiding judges in the program.

Eric Orlinsky, Saul, Ewing, Arnstein & Lehr, LLP

Judge Ronald B. Rubin

Photos Courtesy of Christopher Myers Photography

Photos Courtesy of Joanna Tillman Photography

MANAGING THE GOOGLING CLIENT

BY ANDREA D. SMITH, ESQ.

Encourage research through the Maryland Courts website. Walk the client through the resources available through the official website for Maryland’s court system

AN ANXIOUS CLIENT may cope by researching the law on the Internet. With empathy and attention, you can help them manage stress and even help their case in ways you might not expect.

Hear your client out. Although it may be information you already know, what your client is googling or seeking more information about may help you to determine how to advise your client, give you further guidance on the facts of the case, and may help you to alleviate some of your client’s anxiety about the case.

Structure your client’s search. If you have a client inclined to do their own research, it may be helpful to suggest topics for their research. This gives you more control over what the client is viewing and allows you to be more prepared to discuss it with him or her.

Encourage research through the Maryland Courts website. Walk the client through the resources available through the official website for Maryland’s court system. Not only does this website provide a plethora of information, this information is accurate, current, and relevant to cases pending in the state of Maryland.

Set up recurring appointments. Set up a recurring time, as your caseload permits, to speak with the client about questions or concerns he or she may have. Carving out time where the client knows he or she can speak with you about concerns may help reduce the client’s need to exercise self-help.

Andrea D. Smith is an Assistant County Attorney with the Baltimore County Office of Law.

CREATING LEGACY, PROTECTING FAMILIES

MEREDITH HILL

The Hill Law Group

WHEN MEREDITH HILL started practicing law she had very little knowledge of estate planning. In 2018, the MSBA hosted an estate planning event for low-income senior citizens in Baltimore, and Hill decided to volunteer as an attorney. The event opened her eyes to the world of estate planning: she was able to see it as much more than simply writing someone’s will; it allows people to plan for both expected and unexpected events, prevent family fighting, and create generational wealth. Hill left her career in criminal law to found The Hill Law Group, a Bethesda firm focused on Estate Planning and Administration.

Photo courtesy of Travis Marshall Photography

People often believe that estate planning is something only for the super-wealthy, but that is a huge misconception.

What challenges did you face during your transition from criminal law to an estate planning practice?

The biggest challenge I faced was learning about estate planning. Fortunately, the MSBA offered many estate planning CLEs both in person and on demand. I was able to learn a great deal by attending these CLEs and networking with fellow estate planning attorneys.

What advice would you offer someone considering making a similar move?

Don’t be afraid to ask questions. Switching to a new area can be scary and overwhelming. So just take it step by step and ask questions along the way.

Tell us a little about your biggest project related to your professional career right now.

My biggest project is educating the community about estate planning. People often believe that estate planning is something only for the super-wealthy, but that is a huge misconception. There is so much more that goes into estate planning than just writing a will for someone. Estate planning is life planning, and can and should be used to create a legacy for your family. As a new mom, it’s important for me to teach other parents, especially new parents, about how to best protect their families and children.

What do you hope to achieve in your career going forward?

I want to grow a team of estate planning attorneys that positively impacts our community. As the first lawyer in my family, I hope to achieve a career that makes my family proud and leaves a legacy. I want to blaze a path for others behind me and be an inspiration to others.

What challenges have you faced in your career and how did you overcome them?

I went to law school in Indiana. Following graduation, I stayed in Indiana for a few years for work. When I made the decision to take the Maryland bar and move back home to Maryland, one of the biggest challenges that I faced was meeting Maryland attorneys. I joined the MSBA and the J. Franklyn Bourne Bar Association; through these associations, I was able to meet fellow Maryland attorneys and become a part of the legal community.

What is the highlight of your legal career so far?

Working on President Obama’s Clemency Initiative. During my time at the Department of Justice, my office was tasked to review the court records of incarcerated non-violent drug offenders and make recommendations to the President on their eligibility for a commutation of their sentence. We worked tirelessly on this initiative and as a result, helped to get the sentence commuted of over 1700 offenders. As a thank you for our hard work, we were invited to the White House and were each personally thanked by President Obama.

What is the one piece of advice you would give someone in law school?

Get involved in a legal clinic and/or get a legal internship. Try out different areas of the law so you know which area works for you. You decided to go to law school on purpose, so choose how you want to practice the law on purpose.

How has the MSBA helped you in your legal career?

I have been a member of MSBA since 2013. The MSBA has been instrumental in building my network and increasing my legal knowledge. I have met and connected with fellow attorneys throughout the state who I would have never been able to meet. I have gained a wealth of knowledge from my fellow attorneys and from CLE offerings. The MSBA has made me a better attorney all around.

How do you give back to your community?

I give back through my church, Kingdom Fellowship A.M.E., which has been instrumental in giving back to the Montgomery and Prince George’s County communities. The church provided free groceries to families in need every weekend throughout the pandemic and opened up church doors to offer the COVID vaccine. I am proud to be able to give back to the community through them.

Sponsored Content

In 1742, an English court first suggested that directors should not be liable for good-faith decisions made on behalf of a company, even if those decisions produce undesirable outcomes (Charitable Corp. v. Sutton, 2 Atk. 400, 406, 26 Eng. Rep. 642, 645 {Ch. 1742}). This principle, which became known as the business-judgment rule or defense, migrated naturally first into American common law and then into many states’ corporate-law statutes (Randy J. Holland, Delaware Directors’ Fiduciary Duties: The Focus on Loyalty, 11 U. Penn. J. Bus. L. 675, 679 {2009}).

The first time the phrase “business judgment” made its way into an employment-discrimination case in Maryland was when a court simply stated that an employer who selects the most-qualified candidate is not engaging in “discrimination, but rather of sound business judgment” (Wright v. National Archives & Records Service, 1977 U.S. Dist. LEXIS 17399 *9 {D. Md. Feb. 11, 1977}). However, defense lawyers succeeded in twisting the business-judgment rule into something that it never should been – a barrier for employees to prove employment discrimination. This is evident in the business-judgement rule jury instruction proffered by employers, often accepted by the courts and accepted in the Maryland Practice Jury Instructions, cv 22:8. A mutant of this instruction is the defense mantra in summary-judgment briefing that a court should not sit as a super-personnel department in second guessing an employer’s business decision.

When there is no direct evidence of discrimination (the proverbial rare “smoking-gun case”), an employee is left to prove his or her case through indirect or circumstantial evidence of discrimination. Adopting the business-judgment rule lessens the value of proof of an employer’s inconsistent or changing reasons for an adverse employment action, or incredulity of an employer’s stated reason for termination.

The business-judgment rule in summary judgment proceedings operates to deny employees the benefit of all favorable inferences from indirect or circumstantial evidence. (See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 {1986}; {“In deciding a motion for summary judgment, the court must view the factual evidence in the light most favorable to the non-moving party.”}). At trial, directing that the fact-finder not to question a business’s “judgment” shows a distrust for the jury’s common sense and its ability to consider and parse through evidence.

Further, with now-ample evidence of systemic implicit bias, the belief that the business-judgment rule is needed to reign-in uncontrollable juries is misguided. In fact, the opposite may be true: A jury now may more likely favor the so-called judgment of the employer over the testimony of an employee in a protected class.

A few courts have cautioned against blind adherence to the business-judgment rule in employment cases. (See Mann v. XPO Logistics Freight, Inc., 2020 U.S. App. LEXIS 19234 at 41 {10th Cir. June 19, 2020} {“claimed business judgment is sufficiently questionable for a jury to reasonably find it pretext for discrimination”}; United States EEOC v. Consol. Energy, Inc., 860 F.3d 131, 148 {4th Cir. 2017} {no reversible error by trial court in not instructing jury to second-guess the business judgment of the employer}). This is a step in the right direction. However, what the law and justice require is that the employer and the employee are on a level playing field, where both have to play by the same rules. Deference need not be given to an employer’s business judgment. Based on the law, the employee should just have to prove that, more likely than not, an employer discriminated again him or her.

OUTWORKING HIS OPPONENTS

ERIC N. SCHLOSS

Saltzberg & Schloss

An accomplished litigator and author, Schloss has litigated auto negligence cases in every courthouse in Maryland except in Kent County.

Photo courtesy of Mitro Hood Photography

Eric N. Schloss has spent nearly three decades helping victims of negligence get compensated for their injuries. An accomplished litigator and author, Schloss has litigated auto negligence cases in every courthouse in Maryland except in Kent County and has jury trial experience in Maryland, the District of Columbia, and Virginia. Schloss joined the MSBA shortly after being admitted to the Maryland Bar in 1994 and has contributed often as a presenter and author, most recently updating Chapter 6, Crossing the Center Line and Passing, in the Maryland Automobile Accident Deskbook, Third Edition.

How would you describe your career in three words? High volume practice.

What professional accomplishment are you most proud of?

The honor and privilege of being President of the Maryland Association for Justice (2021–2022). With 1,200 members, the MAJ is the largest Specialty Bar Association in Maryland.

Tell us a little bit about your current role.

I handle all of the District Court and Circuit Court litigation at my office, Saltzberg & Schloss, in Towson.

What does a day at work look like for you?

I absolutely love being a Trial Lawyer. When my alarm clock goes off Monday through Friday, I immediately look forward to whatever trial, hearing, or deposition awaits me that day. Even when I know the entire workday will be spent in the office, I look forward to getting to work as I never know what a typical day as a Trial Lawyer will bring.

What are some of the challenges you face in your current role?

The backlog of trial dates since the start of COVID.

How has the MSBA helped you in your legal career?

I have attended a number of MSBA Negligence, Insurance & Workers’ Compensation Section CLEs where I have found the speakers/topics to be helpful in my Personal Injury Practice.

What’s an interesting fact about you that no one would guess?

When I was 16 years old, I spent the summer working at the meat packing plant owned by my father and his two brothers in Virginia. My summer was spent working on the slaughter floor—also known as the kill floor. It was as you can imagine a dirty, smelly, and unsightly job. When I have a tough day as a trial lawyer, I think back to my summer working on that slaughter floor. That memory reminds me of how lucky I am to be a personal injury attorney.

Name three words that describe you. Outwork my Opponents.

Case Study: How an Energy Company Transformed its Acquisition Experience

BY FRED L. HENCKE

IN THE HIGHLY REGULATED ENERGY INDUSTRY, law firms play a key role in mergers and acquisitions because there are so many boxes to check for the Federal Energy Regulatory Commission — from evaluating environmental issues to ensuring compliance with regulations is up to date and considering any past transfer of control issues. Despite legal counsel’s diligence, some transactions fall short of expectations for other reasons, most notably, focusing on people, culture and leadership aspects too late in the M&A lifecycle.

That was an energy company’s unfortunate experience with several acquisitions. Learning from those disappointments, the company transformed its acquisition experience by creating a comprehensive M&A playbook.

This case study shows how the company made its next acquisition a success. Your M&A clients may benefit from following this strategy.

Setting the Stage: The Company and Lessons Learned from Previous Acquisitions

The company in this case study, provides power for the grid to a large portion of the U.S. It’s a strategic buyer focused on increasing market share by expanding into new regions.

Over a two-year period, the company made four acquisitions. The first three did not go smoothly because there were numerous people-related issues. In fact, the post-acquisition surveys the company conducted to evaluate the success of each deal revealed that out of 17 functional areas, HR received the lowest possible scores. The first three acquisitions were conducted in a very compressed period, with little time to adjust their approach. The time gap between the third and fourth

acquisitions provided an opportunity.

Among the lessons learned for the HR function, improving project management, change management, communications, data conversion and manager training were the top priorities. Many of the internal HR workstream leads lacked project management experience. Change management had been treated as a “training-only” exercise. Communications did not fully explain what was expected or what to expect. Poor quality data led to issues with workflows. Managers had been left on their own to figure out the organization, including its policies, procedures, systems and reports. The long-term success of the next acquisition depended on both applying these lessons learned and getting much better at addressing the related issues.

Leadership/Governance

Products/Services

Customers Organization

Source: Segal and Chief Executive joint CEO Surveys, 2020 and 2021

High HR Expectations Set for the Next Acquisition

The company’s leadership recognized that the success of future acquisitions would depend on addressing broader HR issues. Consequently, they set the following wide-ranging goals for the HR aspects of its next purchase:

• Engage and retain employees.

• Minimize disruption to plant operations.

• Maximize synergies and manage risk.

• Accelerate post-close “time to productivity.”

The company’s leadership also acknowledged the importance of defining HR success metrics up front and then monitoring and measuring progress.

A New Approach

The company’s leaders realized that meeting those goals required a fresh approach to the HR aspects of an acquisition. They decided to add several people, culture and leadership related activities to their M&A playbook prior to the fourth acquisition.

In general, a comprehensive M&A playbook provides a roadmap for a successful integration, starting from before a potential buyer or seller decides whether to move forward with a deal, continuing through multiple phases and ending with optimizing the deal by fully achieving the desired Target Operating Models (TOMs). The playbook outlines the sequencing of phases, activities and steps and includes frameworks and techniques based on best practices. It’s also dynamic to allow for adjustments. (I discussed these and other aspects of a winning M&A playbook in my previous article for the Maryland Bar Journal, “Help Your Clients Achieve Greater M&A Success, Starting with a Winning Playbook.”)

Following its revised M&A playbook, the company developed or contracted for the following:

• Governance structure and discipline

The company created a project management office charged with establishing the HR integration governance processes and structures and developing the HR TOM, among other tasks. The company also set up an integration management office to oversee integration planning and execution across all 17 functional areas (e.g., facilities, administration, HR, IT and operations). (For more details about project management office and integration management office responsibilities, see the sidebars.) For changes made to the deal timeline or any functional area project plan, the integration management office was responsible for facilitating impact analysis.

• Project management and integration skills

Since the HR Workstream Leaders had limited M&A and project management experience, a partner was needed to assist them. The partner helped with the development and management of project plans, risk analysis and management, creating relevant due diligence questions, developing integration strategies, designing employee experiences and identification of additional synergy opportunities.

• Processes and templates for “repeatability" Knowing they were going to do more acquisitions in the future, the company’s leaders saw the value of creating reusable due diligence, integration, Day-1 and training templates, as well as change-management, communication frameworks and content.

The M&A playbook also helped the company determine what was needed to achieve its HR goals. The following chart summarizes some of the key strategies and tactics they decided to use.

Project Management Office

▶ Established HR integration governance processes and structure

▶ Facilitated HR discover sessions

▶ Facilitated HR "expidited close" impact analysis

▶ Assessed impact of different commercial arrangement structures

▶ Developed TOMs for all HR workstreams (Day-1, 30, 90+)

▶ Provide HR intergration synergy estimates

▶ Provided HR integration inputs to master training schedule

▶ Developed T-30/T+30 cutover plans for all HR workstreams

▶ Managed detailed project plans and risks across all HR workstreams

▶ Facilitated cross-functional, intergrated change management and communications strategy and tactical plan

HR GOAL STRATEGY/TACTICS

Engage employees

Scheduling Day-1 ceremonies and activities at each of new locations, including raising the flag, providing hard hats, coffee mugs and other “swag” with the company logo, handing out onboarding packages and explaining the purpose of the acquisition and what needs to happen for it to be successful.

Developing targeted communications across multiple channels, including town hall meetings, video conferences, emails, posters and one-on-one conversations with members of a “SWAT” team comprising subject matter experts from operations, HR and IT (available to provide immediate support 12 hours each workday for the first four weeks).

Retain employees

Minimize disruption to plant operations

Conducting stay interviews with every acquired employee, providing clarity on their role in the new organization and what to expect moving forward, including the company’s mission, vision and values, leadership styles, available benefits, compensation, pay practices, policies and an introduction to their new manager.

Creating a prioritized and normalized plan for all necessary training for days 1–30, 31–60, 61–90 and beyond.

Manage change effectively

Improve HR’s business impact

Accelerate postclose “time to productivity”

Conducting a comprehensive analysis of the changes impacting all employees and creating role-specific job aids to help each employer understand what they should stop doing, start doing and continue doing.

Developing a failure risk-analysis model to anticipate what could potentially fail (e.g., payroll, workforce scheduling system, ordering supplies, etc.) and what steps would be taken in these situations to remediate the risk.

Equipping, enabling and empowering the HR business partners to develop strategic relationship with the business leaders and add more value (e.g., through trend and issue spotting, predictive analytics relative to the workforce, increasing productivity, retaining employees and attracting top talent).

Improving the HR shared services function by equipping the “AskHR” customer service to address all employee inquiries related to HR and benefits, and centralizing all administration and transactions related to pre-payroll processing, post-payroll reconciliation, employee data and records management, support for annual performance management process, support for workforce planning and annual benefits enrollment.

Identifying what needed to happen within the first 30 days to minimize business disruption and get integrated operations running smoothly. This included establishing email addresses, enabling single sign-on, communicating organizational changes, new work practices and policies, rationalizing workforce and time off schedules and ensuring new employees understood where to go for answers to their questions.

The following is a brief timeline view of the critical activities performed, the key (reusable) templates and deliverables created and the outcomes produced.

First Six Weeks

• Project plans for all nine HR workstreams

• HR project management office established, including protocols, reporting requirements, weekly meeting schedule and integration with the integration management office

First Six Months

• Discovery sessions completed (detailed in the sidebar)

• Data and information requests submitted and tracked

• Due diligence completed

• Integration plan developed

• Change management and communication strategies developed

• Risk identified with mitigation strategies for each

Excellent Outcomes

HR, Operations and IT all played pivotal roles. By collaborating closely, the three functional areas ensured that the goals for the acquisition were achieved:

ENGAGE EMPLOYEES.

The ceremonies held in all locations on the day of the acquisition and the clear messages conveyed from the outset on the rationale for the deal and next steps all contributed to this goal’s success. The team received positive feedback on the roadshows. Several new employees who had been part of prior acquisitions said that this was the smoothest acquisition they ever experienced.

RETAIN EMPLOYEES.

The company rolled out the red carpet to retain key employees and the effort paid off. They exceeded their goal of retaining more than 90 percent of the designated employees.

MINIMIZE BUSINESS DISRUPTION.

Despite some challenges with conversion codes (e.g., floating holiday allocations converted to overtime), personnel changes and initial payroll were both executed without major problems.

MAXIMIZE SYNERGIES AND MANAGE RISK.

Each functional area was asked to add more synergies to the deal beyond what was originally estimated. They focused on finding additional value by leveraging the combined organization’s larger scale to renegotiate and consolidate service provider and technology vendor contracts, share best practices, reduce compliance risks and financial penalties and automate highly manual work activities.

ACCELERATE POST-CLOSE “TIME TO PRODUCTIVITY.”

Providing timely information to employees and training new managers on policy and procedures helped everyone get up to speed quickly. Observations, focus groups and employee surveys were used to measure productivity during and after all integration stages.

First 12 Months

• Successful integration

• Good Day-1 experience for all acquired employees

• TOM projects either completed or well underway

• Original synergies achieved and additional value identified

Discovery Sessions

▶ Current workflows, volumes exceptions, and challenges

▶ Roles and responsibilities

▶ Improvement ideas

▶ Potential change impacts

▶ Effective Communication approaches

▶ Total rewards strategies

▶ Talent strategies

▶ Recognition and rewards strategies

▶ Technology, tools, and data inventory and ratings

Typical Time Frames for the Three Phases of Integration After a Merger or Acquisition

2. Productivity

Fewer distractions (e.g., paced training. Clear access to info and rapid response, etc.)

1. Basics Start, stop, continue (e.g., stop filling out forms, start using self service, continue focus on safety)

3. Accountability & Engagement

Extra effort (e.g., TOMs, collaboration, continuous improvement, innovation, etc.)

Responding rapidly to emerging issues is essential to enable change and support employee productivity and engagement.

Your Clients Can Benefit from Following an Effective M&A Playbook

It’s important to keep in mind that problems will arise with technology, operational workflows, methods and organization structures, potentially prompting the development of short-term solutions. Responding rapidly to emerging issues is essential to enable change and support employee productivity and engagement. The expected outcomes of the deal are very dependent on how people contribute and their sense of belonging and purpose, the evolution of team-based and overall corporate cultures and belief in leadership.

As their legal counsel, your clients depend on you and your partners for guidance on how best to ensure the success of their merger or acquisition. An effective M&A playbook will be highly sensitive to industry variations and tailored to the size and complexity of deal.

FRED L. HENCKE is a Senior Vice President and M&A Solution Leader for Segal, a North American management and HR consulting firm. You can reach him at fhencke@segalco.com.

Maryland attorneys: Powering

OVER THE LAST 125 YEARS, MSBA has been involved in some of the most notable developments in the legal profession. It’s been home to thousands of lawyers, helped create opportunities for legal professionals, and served the community through partner organizations.

Learn more at MSBA.org/125 learn more at MSBA.org/125 BE A PART OF IT. RENEW TODAY AT MSBA.ORG/RENEW

GROWING IN THE RIGHT DIRECTION A

LAW FIRM WITH A PEOPLE-DRIVEN CULTURE

JOSEPH GREENWALD & LAAKE, PA

MANY MARYLAND ATTORNEYS have to choose between working at a small firm with limited practice areas or a large firm with an impersonal feel. Joseph, Greenwald & Laake, PA (JGL) is unique among firms in Maryland in that it specializes in a broad spectrum of practice areas but is not overwhelmingly large. This allows JGL to be nimble while still having the same level of resources and expertise as much larger firms. JGL also takes measures to foster an inclusive and diverse environment while providing its attorneys with the keys they need to thrive. As JGL looks toward the future, it aims to uphold its commitment to justice, advocacy, and collegiality.

Matthew Bryant, Partner

Drew LaFramboise, Senior Counsel

Photo courtesy of Mitro Hood Photography

Veronica Nannis, Partner

Fred Joseph, Andrew Greenwald, and Walter Laake founded JGL over 50 years ago. Paul Riekhof, a principal in JGL’s Estates and Trusts Group, is the firm's managing director. Initially, JGL handled criminal defense, civil rights, medical malpractice, and personal injury cases. It quickly expanded to include family law and general civil litigation practices. JGL has grown exponentially over the years to become the largest firm in Prince George’s

Veronica Nannis joined the firm as a law clerk and now is a partner and the Chair of the Civil Litigation Department. Nannis represents whistleblowers in False Claim Act cases nationwide. She predominantly focuses on healthcare cases, but JGL handles all manner of fraud cases in this area, and this practice continues to develop and grow steadily. Nannis also proudly serves as the Chair of the Board of Directors of Ayuda, a non-profit organization that provides legal, social, and language access services to low-income immigrants.

JGL attorneys testify in Annapolis on bills that would increase access to justice and protect plaintiffs. They are also frequently asked to comment on prospective legislation that could affect plaintiffs.

County. Currently, it boasts over 15 areas of practice, including labor and employment, trusts and estates, family law, and whistleblower law. While the firm has grown over time, it has done so strategically and intentionally to meet its clients' needs and best support its practices. For example, over 10 years ago, it expanded to add a second office in Rockville, just a few blocks from the Circuit Court for Montgomery County. JGL opened its Rockville office to serve its Montgomery County clients, particularly in family law and trusts and estates. That move increased the demand for JGL’s services and led them to merge with smaller family law firms. They continue to intentionally expand so that their practice areas complement each other and are natural sources of internal referrals.

In terms of the work environment, JGL puts people first. The firm is continuously seeking ways to achieve the right balance between high productivity and excellence and making sure the firm is an enjoyable, welcoming, and inclusive workplace where employees find great value in the work they do. JGL prides itself on having a culture that is driven by and revolves around its people and places a premium on being a place where its employees can learn and develop. To that end, the office is an “open door,” collaborative environment. JGL also promotes mentorship but, at the same time, empowers attorneys and staff to chart their own path and have autonomy over their work.

The MSBA recently spoke with three JGL attorneys about what drew them to the firm and what they anticipate for JGL in the future.

In the future, Nannis thinks JGL will continue to grow in a thoughtful way, be flexible so that it is open to new practice areas, new hires, and new ideas, and continue to advocate for its clients.

According to Nannis, JGL will also continue to encourage its junior attorneys to grow and develop their own practices. Moreover, the firm is adapting to new circumstances, and it is becoming more sensitive to a changing workforce and culture. Nannis noted that JGL has shone a light on employee wellness through a new committee chaired by partner Lindsay Parvis and has dedicated itself to continuing diversity and inclusion evaluation and training.

Nannis stated that the firm hopes to continue its legal advocacy not only in court but also in the legislature. JGL attorneys testify in Annapolis on bills that would increase access to justice and protect plaintiffs. They are also frequently asked to comment on prospective legislation that could affect plaintiffs. Fred Joseph, Andrew Greenwald, and Walter Laake all believed in this dual approach to advocacy, inside and outside the courtroom. The firm continues that legacy today with Tim Maloney, Jay Holland, and Erika Jacobsen White, among many others, regularly advocating for balanced laws to protect plaintiffs’ rights and access to justice in general.

Matthew Bryant joined the firm as an associate in September 2010 and was promoted to partner in February 2022. His practice focuses on civil trial work and appellate litigation. He also handles civil rights cases, which usually focus on excessive force cases or lawsuits against school systems arising from injuries to children. Bryant chose JGL for three reasons. First, he was impressed by the group of attorneys that interviewed

him. They struck him as smart, down-toearth people who were deeply motivated by obtaining justice for their clients. Second, he was aware of the firm’s recent success in a high-profile civil rights case. Third, he saw the firm as a place where he could gain incredible experience while working with some of the best attorneys in Maryland. To Bryant, his colleagues are the best part of JGL, and he considers himself lucky to be a partner at the firm.

Drew LaFramboise joined JGL in November 2021. His role as Senior Counsel in the Civil Litigation Department allows him to take the lead in high-profile, complex civil cases, principally in D.C. and Maryland state and federal courts. His practice is wide-ranging: he currently handles personal injury, products liability, civil rights, consumer protection, class action, sexual assault and abuse, and fraud/qui tam cases.

LaFramboise chose JGL because of its well-earned reputation for excellence in the

greater D.C. area. Beyond the high quality of the firm’s work, upon meeting many of JGL’s senior attorneys, it became clear to LaFramboise that the firm was dedicated to some key tenets that he values and thinks are critical to success: inclusivity, diversity, and investment in professional development. In addition, he was impressed that JGL attorneys work across a wide range of practice areas while still maintaining an intimate and collaborative work environment.

LaFramboise describes the firm's future as bright and notes that JGL will make every effort to continue to grow in the right direction. That means pursuing cases and providing legal services that positively impact the community, having a client-centric approach, putting the clients' needs first, and hiring attorneys and legal professionals dedicated to the firm, its work, and its clients. It also means providing services to our community beyond just legal work, such as charity and community service.

Now is the time.

It became clear to LaFramboise that the firm was dedicated to some key tenets that he values and thinks are critical to success: inclusivity, diversity, and investment in professional development.

The ABA Retirement Program has made it easy for your firm to sponsor an employee 401(k) plan.

The ABA Retirement Funds Program (“Program”) is an employer-sponsored 401(k) plan designed specifically to address the retirement needs of the legal community. The Program is structured to provide affordable pricing whether you are a sole practitioner or a large corporate firm.

We have leveraged our size to bring together some of the most respected financial services providers in the retirement industry. Through the unique culture created between the ABA Retirement Funds Program and our Program partners we aspire to help every law firm, lawyer, and legal professional secure their financial future.

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SCIENCE MEDICINE IN THE LAW

SCIENCE MEDICINE & LAW

The Rise of Probabilistic G enotyping Causing the Fall of DNA Evidence

BY DANIEL P. MOONEY, ESQ. 1

SINCE 1986, defendants have been losing criminal trials on the basis of one piece of evidence: DNA. Referred to by many as the “CSI Effect,” DNA has long been the gold standard as it pertains to evidence admitted in criminal courtrooms. What has flown under the radar, however, is the rising popularity of probabilistic genotyping—a method of analyzing DNA mixtures containing miniscule fractions of more than one person’s DNA.

Although seemingly beneficial, glaring errors can arise in the use of this upand-coming technology that can directly impact the outcome of a criminal case. Variability in results, the inaccessibility of the computer codes controlling the programs, and the inherent biases inputted into the source code are just the beginning. Additionally, probabilistic genotyping has no way of differentiating between DNA from an individual who actually touched the surface from which the DNA sample was taken, and DNA that is transferred through “touch-transfer DNA.” What’s the latter concept, you ask? A 1997 scientific finding that proved people leave behind DNA on objects held for periods of time as short as 15 minutes. Even more shocking than that, this same study unveiled that when people come into contact with one another, they risk transferring their DNA and any other DNA they might have on their person to the individual with whom they have contact. In other words, anyone who unknowingly comes into contact with someone who later commits a crime risks having their DNA left behind at the crime scene despite never being there.

In other words, anyone who unknowingly comes into contact with someone who later commits a crime risks having their DNA left behind at the crime scene despite never being there.

In other words, anyone who unknowingly comes into contact with someone who later commits a crime risks having their DNA left behind at the crime s despite never being

This unique evidentiary issue has arisen nationwide, and it’s no stranger to Maryland courts. In fact, the Office of the State’s Attorney for Baltimore City started relying upon probabilistic genotyping approximately 10 years ago in its criminal prosecutions. Since then, they have secured hundreds if not thousands of convictions through reliance on this technology. The legal landscape under which this evidence was admitted since its inception, however, changed drastically when the Court of Appeals of Maryland decided Rochkind v. Stevenson, 471 Md. 1 (2020). In its opinion, the Court adopted the broadly accepted Daubert standard for determining the admissibility of expert testimony at trial in lieu of Maryland’s long-standing Frye-Reed standard. With this change, the Court opened the door for criminal defense attorneys to challenge the admissibility of probabilistic genotyping through the testimony of forensic scientists at trial.

Because of the significant upheaval of Maryland’s legal landscape in light of the Rochkind decision, now is the time for criminal defense attorneys to stop accepting the broad admission of probabilistic genotyping evidence against their clients.

Law

Stated simply, criminal defendants are being subject to the use of evidence that isn’t objectively reliable, unbiased, readily available for review, or entirely accurate.

Because of the significant upheaval of Maryland’s legal landscape in light of the Rochkind decision, now is the time for criminal defense attorneys to stop accepting the broad admission of probabilistic genotyping evidence against their clients. TrueAllele, one of the primary technology providers in the probabilistic genotyping space, as well as the provider relied upon by the Office of the State’s Attorney for Baltimore City, should not be blindly trusted to produce accurate results. The company has failed to address the concerns raised by the President’s Counsel of Advisors on Science and Technology (PCAST), an objective committee created by the Obama Administration to look

A white paper, available here , includes an all-inclusive discussion of probabilistic genotyping as it applies in the criminal defense space. The author takes you through an overview of DNA and how forensic DNA analysis works, explains the forensic community’s transition away from traditional DNA testing and towards probabilistic genotyping, discusses the significant issues that can arise with the new technology, and provides a complete overview of Maryland law surrounding probabilistic genotyping evidence both pre- and post- Frye-Reed.

into the status of forensic sciences in the United States. Specifically, TrueAllele has failed to run the validation studies recommended by PCAST and has instead claimed it can accurately read DNA samples containing up to 10 contributors. Stated simply, criminal defendants are being subject to the use of evidence that isn’t objectively reliable, unbiased, readily available for review, or entirely accurate. As has become clear since the beginning of the courts’ reliance on forensic science, not every method can be trusted in an arena where the stakes are as high as one losing their freedom.

The Rise of Probabilistic Genotyping Causing the Fall of DNA Evidence Science & Medicine

PRACTICE INSIGHTS

By Daniel Mooney, Esq. Associate, The Cole Law Firm LLC

POOR PEOPLE SCIENCE

Junk Science and the American Criminal Justice System

BY M. CHRIS FABRICANT, ESQ.

THAT THERE ARE TWO SYSTEMS OF JUSTICE IN AMERICA, one for the wealthy, one for the poor, is hardly a novel observation. But that there are two types of science, one for the rich and one for poor people, is less commonly understood. “Poor people science,” a theme I explore throughout Junk Science and the American Criminal Justice System, is the difference between the scientific evidence used in civil litigation, where money is at stake, and the “scientific” evidence used in the American criminal justice system, where life and liberty are at stake. The difference speaks to our values as a society.

I am not a scientist. I’m a lawyer, a second-generation public defender. My parents met when my mother, an artist, was indicted for trafficking hashish, and my father represented her. A straight line can be drawn from that 1969 drug bust to my life in criminal justice reform work and my book, Junk Science.

Unlike most law students, I always knew why I was in law school. I wanted to be a public defender. It was the only aspect of the law that truly interested me, and I knew it would feed a lifelong passion for justice—or, perhaps more accurately, a rage at sys-

introduced at my clients’ trials, but were neither challenged by their defense attorneys nor at issue on appeal. All my clients appeared to me to be factually guilty, and, like most of my colleagues, I was not skeptical of the “science” used to secure their convictions.

In 2005, I left appellate practice and went to the South Bronx to work as a trial attorney with The Bronx Defenders. Suddenly, the justice system exploded into full bloom around me. I ran into clients on 161st Street going back and forth to court

I began to book up and was astonished to learn that so much of the “science” used against my clients had been totally made up, invented by “cops in lab coats”

tematic injustice. The first client I represented as an appellate defender—my first job after law school— had broken into a neighbor’s house and stolen a VCR. “Mr. Johnson” had a long history of drug offenses and petty property crimes, and his case was the type I imagined would comprise the majority of my work: he was factually guilty, no forensic sciences were involved, he had a terrible trial attorney, and he had been quickly convicted.

Mr. Johnson also represented the people I anticipated I would be working for: an indigent person of color, victimized by the Drug War and systemic racism, and thrown away by our justice system. His sentence for theft of a VCR? Twenty-five years to life.

There was nothing I could do for him on appeal, not even a sentence reduction. He remains in prison to this day.

The view I had of the justice system as an appellate attorney was relatively narrow. I handled only about a dozen cases a year, and I lost virtually every one. Forensic sciences were often

every day. I was in their homes, their hospital rooms, funeral parlors. At any given time, I was representing at least 100 clients, most of whom were charged with serious felonies, virtually all of whom were Black and brown people—dozens of whom were innocent.

At that time, to me, science and scientific knowledge seemed far away—even irrelevant—from the triage work I was doing in the Bronx. It was all I could do to juggle the near-constant crises my clients faced, inside and outside of court. But then, in 2009, the National Academy of Sciences, this country’s most prestigious scientific organization, sent a thunder bolt through the criminal justice system: a Congressional-funded report on the state of forensic sciences, entitled Strengthening Forensic Sciences in the United States: A Path Forward. After a century of near-unanimous acceptance in criminal trials, the first rigorous examination of forensics by mainstream scientists destroyed the myth of infallibility that I and the lawyers around me had left unexamined and unchallenged—and that popular crime shows like

Unlike most law students, I always knew why I was in law school. I wanted to be a public defender. It was the only aspect of the law that truly interested me, and I knew it would feed a lifelong passion for justice—or, perhaps more accurately, a rage at systematic injustice

CSI still propagate today. The report found that, apart from DNA evidence, no forensic technique currently accepted in criminal courts had been scientifically validated.

My clients were being convicted on junk science every day.

Indeed, we now know that half of all wrongful convictions are attributable to the use of invalid forensics. And this had always been true. There were scientists and attorneys at the Innocence Project, a non-profit organization dedicated to freeing the wrongfully convicted, who had known this for at least a decade. I, however, had no idea. I began to book up and was astonished to learn that so much of the “science” used against my clients had been totally made up, invented by “cops in lab coats” to “solve” some particular crime and then introduced at trial without even basic scientific study. Only DNA evidence had emerged from a scientific laboratory and, as such, had been subject to the basic tenets of the scientific method. I left the Bronx Defenders and joined the Innocence Project, where I began the research into forensics that formed the foundation of Junk Science. Today, all of the people I represent have been convicted through the use of junk science, poor people science.

As a turn of phrase, “junk science” was popularized by a book called Galileo’s Revenge, an influential polemic on the evils of “jackpot” personal injury litigation from the perspective of corporate America, which, by the 1990s, had had enough poor people science. It had cost corporate America a lot of money. Shortly after the book’s

publication, the Supreme Court radically changed the way courts had to police the introduction of “scientific” evidence. For the first time, judges were required to evaluate and exclude unreliable expert witness testimony from trials. It worked. Courts began precluding the use of junk science— in civil litigation. Nothing changed in our nation’s criminal courts, where the vast majority of those prosecuted using junk science are not monied corporate defendants, but poor people of color

Junk Science and the American Criminal Justice System tells the story of junk—or poor people’s— science through the lens of three of my Innocence Project clients, all convicted of capital murder through the use subjective speculation masquerading as scientific evidence. The book chronicles the fight to overturn their convictions and end the use of the forensic techniques that destroyed their lives. But Junk Science is also about the thousands of other clients I have represented over the last twenty years as a public defender in the South Bronx, an appellate defender, and a clinical law professor. The stories told here are deeply personal, but, taken together, shine an important light on the fundamentally broken, racist and classist American system of “justice.”

M. Chris Fabricant is the Joseph Flom Special Counsel and Director of Strategic Ligation at The Innocence Project. He leads The Innocence Project's Strategic Litigation Department, whose attorneys develop and execute national litigation and public policy strategies to address the leading causes of wrongful conviction. Fabricant has served as a clinical law professor, trial attorney, and appellate counsel. His writing, scholarship and frequent public speaking focuses on the intersection of science, law reform, and social justice.

Real World Evidence: Challenges and Opportunities

Exploring how FDA is now integrating “Real World Evidence” into regulatory decision making

BY JOSH VAN DE RIET, J.D., RAC-DEVICES 1 AND J. ANDREW HARRISON, J.D., M.S. REGULATORY SCIENCE 2

INpart due to improving computer technologies and the use of mobile phones and other biometric devices, Real World Evidence (“RWE”),3 or “data regarding the usage, or the potential benefits or risks, of a drug derived from sources other than traditional clinical trials,”4 is playing an increasingly significant role in how health care decisions are being made.5 In enacting the 21st Century Cures Act6 (“Cures Act”), Congress provided much needed foundation as to how the U.S. Food and Drug Administration (“FDA”) can and should integrate RWE into regulatory decision making. Among other things, the Cures Act added Section 30227 to the federal Food, Drug, and Cosmetic Act (“FDCA”). This provision requires that the Secretary of Health and Human Services (“HHS”) establish a program to “evaluate the potential use of real-world evidence…to help support the approval of a new indication for a drug approved under [the Act],” and to support post-approval study requirements.8

However, a number of issues linger as industry and FDA explore ways to utilize RWE in regulatory decision-making. For instance, the very “reality” of RWE has been criticized as certain data generally associated with RWE has proven to be unreliable for statistical purposes.9 Additionally, not all diseases that might benefit from RWE produce the kind of “big-data”10 that would generate sufficient evidence for product approvals, including, for instance, diseases having a relatively low prevalence in a given population. On top of these concerns, data privacy issues have become an additional stumbling block on the path to utilizing RWE for new product approvals, as the Health Insurance Portability and Accountability Act’s (“HIPAA”) Privacy Rule may require the prior authorization of thousands of research participants whose data

is being utilized, in order for a Sponsor to make claims about safety and efficacy.

Despite these important considerations, the future of RWE appears bright, and it brings with it the potential to revolutionize the way drugs are approved. Jonathan Jastrow, the chair of the medical policy council at FDA’s Center for Drug Evaluation and Research (“CDER”), described utilizing RWE to “take an existing database, punch a button, and compare one drug to another therapy or device … show evidence of efficacy and get labeling of a marketable product in the US” as the “Holy Grail.”11

In this article, we explore the challenges and opportunities presented by RWE as industry and FDA evaluate and react to the ever-developing panacea of big-data solutions to regulatory constraints. We begin our anal-

1 Joshua Ari Van De Riet, JD, RAC-Devices, is an Associate Attorney with Benjamin L. England and Associates, a boutique firm specializing in FDA and Customs/Import related matters located in Glen Burnie, Maryland.

2 Andrew Harrison, J.D., M.S. Regulatory Science, is a Senior Attorney, FDA & Life Sciences, with Benjamin L. England and Associates.

3 RWE should be distinguished from Rea World Data which is defined as “[d]ata relating to patient health status and/or the delivery of health care routinely collected from electronic health records (EHRs), claims, registries, PROs and devices, etc.” See, Real-world evidence. U.S. Food and Drug Administration. Retrieved March 22, 2022, from https://www.fda.gov/science-research/science-and-research-special-topics/real-world-evidence.

4 21 U.S. Code §355g(b).

5 See, Footnote 2.

6 Public Law 114-255.

7 Codified at 21 U.S. Code §355g

8 21 U.S. Code §355g(a)(1).

9 44 Am. J. L. and Med. 161.

10 “Big Data” is defined as “an accumulation of data that is too large and complex for processing by traditional database management tools.” See, Merriam-Webster. Big Data Definition & meaning. Merriam-Webster. Retrieved April 24, 2022, from https://www.merriam-webster.com/dictionary/big%20data.

11 Real World Evidence: Can it support new indications, label expansions? Regulatory Affairs Professionals Society (RAPS). (n.d.). Retrieved April 25, 2022, from https:// www.raps.org/regulatory-focus%E2%84%A2/news-articles/2016/3/real-world-evidence-can-it-support-new-indications,-label-expansions.

ysis by exploring the general regulatory paradigm that determines how drugs are currently approved for use in the United States. Our discussion will then turn to RWE itself, along with a description of FDA’s framework.

Statutory and Regulatory Background

The FDA is responsible for “protecting the public health by ensuring the safety, efficacy, and security of [medical products, such as pharmaceuticals].” Consequently, the FDA regulates all aspects of drug manufacturing and distribution.

A drug is defined by the FDCA as an article “intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease” and “articles (other than food) intended to affect the structure or any function of the body of man or other animals.”12 In order to market a drug in the United States, manufacturers must provide FDA with “substantial evidence of effectiveness,” which is defined as:

[E]vidence consisting of adequate and well-controlled investigations, including clinical investigations, by experts qualified by scientific training and experience to evaluate the effectiveness of the drug involved, on the basis of which it could fairly and responsibly be concluded by such experts that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the labeling or proposed labeling thereof.13

The current regulations governing adequate and well-controlled investigations state that the “purpose of conducting clinical investigations of a drug is to distinguish the effect of a drug from other influences, such as spontaneous change in the course of the disease, placebo effect, or biased observation.”14 Reports of such adequate and well-controlled investigations “provide the primary basis for determining whether there is ‘substantial evidence’ to support the claims of effectiveness for new drugs.”15

12 21 U.S. Code §201(a), et seq.

13 21 U.S. Code §355(d).

14 21 C.F.R. §314.126(a).

15 Id.

The High Cost of Product Development and the 21st Century Cures Act

However, the costs associated with conducting clinical trials have grown to be prohibitively large. According to one study published in the Journal of the American Medical Association, “the estimated median capitalized research and development cost per [drug] product was $985 million, counting expenditures on failed trials.”16 Thus, drug development costs, in conjunction “with the development of sophisticated, new analytical capabilities,”17 caused both industry and FDA to seek new ways to satisfy FDA’s evidentiary requirements. In response, Congress’ role in framing out the Cures Act significantly changed the outlook for RWE, which had been relegated to FDA’s Sentinel Initiative. The Sentinel System is a database containing information on over 100 million individuals in a network of 18 collaborating institutions, which FDA extensively utilized for post-market surveillance of approved drugs prior to 2016. FDA’s Center for Drug Evaluation and Research and the Center for Biologics Evaluation and Research frequently perform safety monitoring studies by utilizing information contained in the Sentinel System. In the event that a particular safety concern is identified, FDA has also used the Sentinel System to plan studies before a drug is approved. Historically, utilizing RWE derived from the Sentinel system “to support effectiveness determinations [was] much more limited.”18 However, with the passage of the Cures Act, the use of RWE expanded beyond the Sentinel System.

The Cures Act contains two major requirements, namely: (1) that FDA establish a regulatory program framework and (2) that FDA issue a guidance document that describes the circumstances under which sponsors of drugs may rely on RWE in order to support the approval of a new indication for an already approved drug or to support post-approval requirements. Pursuant to these requirements, in December of 2018, FDA issued the “Framework for FDA’s Real-World Evidence Program” (“Framework”).19

16 Wouters OJ, McKee M, Luyten J. Estimated Research and Development Investment Needed to Bring a New Medicine to Market, 2009-2018. JAMA. 2020;323(9):844–853. doi:10.1001/jama.2020.1166.

17 See, Footnote 2.

18 Framework for FDA’s Real-World Evidence Program (2018). US Food and Drug Administration. Retrieved from https://www.fda.gov/media/120060/download.

19 The Framework did not apply to medical devices. FDA issued a separate guidance document titled Use of Real-World Evidence to Support Regulatory Deci-

The current regulations governing adequate and well-controlled investigations state that the “purpose of conducting clinical investigations of a drug is to distinguish the effect of a drug from other influences . . .

Some have even argued that the term “realworld evidence” like “reality television” presents a skewed interpretation as to how “real” the evidence relied upon actually is.

In substance, the Framework contains three discrete sections that describe (1) the Current Use of Real-World Data (“RWD”) for Evidence Generation, (2) the Framework for Evaluating RWD/RWE for Use in Regulatory Decision-making, and (3) Stakeholder Engagement.20 With respect to the first section, Current Uses of RWE for Evidence Generation, the Framework describes the history of RWE, relevant databases routinely utilized by FDA and also describes trial designs using RWD to generate evidence. The Framework also describes the way in which FDA has historically used RWE to support product approvals in certain, albeit rare, instances, such as when it would not be ethical or feasible to use a parallel assignment control arm.21 Finally, FDA describes two trial designs that utilize RWD to generate evidence, namely: (1) randomized controlled trials integrated into health care systems and (2) observational studies using RWD to generate RWE.22 Notably, FDA committed itself to evaluating the role that observational studies may play in providing evidence of a drug’s effectiveness. Subsequently, FDA has published seven additional guidance documents23 related to RWE, which explore the following topics: (1) assessing electronic health records and

medical claims data, (2) assessing registries to support regulatory decision making, (3) considerations for the use of RWD and RWE to support regulatory decision making, (4) data standards for submissions containing RWE, (5) submitting documents utilizing RWE, (6) using EHR in clinical investigations, and (7) using RWE to support regulatory decision making.24 Commentators have noted a number of themes that characterize FDA’s draft guidance documents, namely, that (1) data should be fit for a specific purpose and be accurate, complete, and traceable, (2) sponsors should be transparent, and studies should be reproduceable, and (3) sponsors should actively engage with FDA prior to conducting a study utilizing RWE.25

Challenges Posed by the Use of RWE in Drug Development

Although FDA has responded to its statutory mandate to generate a framework for RWE, issuing a myriad of guidance documents to assist industry, a variety of problems remain unresolved in utilizing RWE in regulatory decision making. Some have even argued that the term “real-world evidence” like “reality television” presents

sion-Making for Medical Devices on August 31, 2017, to assist manufacturers of medical devices in understanding how to use RWE.

20 See, Footnote 17.

21 Id.

22 Id.

a skewed interpretation as to how “real” the evidence relied upon actually is.26 For instance, data relating to billing records are “known to be woefully inaccurate when it comes to shedding light on the actual clinical care are provided.”27 Data collection issues have also been identified. For example, commentators have noted that data drawn from clinical treatment is not “initially collected with a view to generating secondary evidence for later retrospective or observational analysis.”28 In keeping with the example, when providers collect medical billing information, they do not do so with an eye towards that information later being used to support a marketing application for a pharmaceutical product. In addition, as alluded to earlier, less common diseases that do not produce large amounts of data may not provide sufficient data to assist in real-world evidence regulatory decisions. For example, “slow-severity diseases (e.g., arthritis) and low-prevalence diseases not treated in specialty centers may routinely generate less data, while the data actually collected is likely to be less comprehensive.”29 Commentators also see data collection issues as a potential cause for concern due to bias. “Selection bias”

23 Guidance documents non-binding and represent FDA’s current thinking on a given topic. Guidance documents do not “create or confer” any rights. Industry is free to utilize alternative approaches not referenced in a guidance document as long as the approach “satisfies the requirements of the applicable statutes and regulations.” See, Guidances. Office of Regulatory Affairs. U.S. Food and Drug Administration. Retrieved April 27, 2022, from https://www.fda.gov/industry/fda-basics-industry/guidances#:~:text=Guidance%20documents%20represent%20FDA's%20current,the%20applicable%20statutes%20and%20regulations.

24 To access FDA’s complete list of guidance documents related to RWE, see Footnote 2.

25 Making Sense of FDAs 2021 Real-World Evidence Guidance (On-Demand Webcast). Regulatory Affairs Professionals Society. Retrieved April 25, 2022, from https://learningportal.raps.org/contentdetails?id=DE1A9AB0D1AB4032854E238159B1286B.

26 See, Footnote 8.

27 Id. at 164.

28 Id. at 165.

29 Id.

the current regulatory regime for protecting patient data, HIPAA, requires that sponsors of clinical studies acquire authorization prior to using their personally identifiable health information.

makes it particularly difficult for sponsors to “know whether effectiveness outcomes resulted from differences in the types of intervention or differences in the patients chosen,”30 and a connected issue exists with encroachment of “performance bias,” which, especially in the case of observational studies, causes patients in distinct groupings to “adhere to treatment plans differently, including varying degrees of success in taking medications at the right time and the right dosage.”31 Additionally, the current regulatory regime for protecting patient data, HIPAA, requires that sponsors of clinical studies acquire authorization prior to using their personally identifiable health information.

The recent growth in the usage of RWE in marketing authorizations applications has been tremendous. According to one independent study, “78% of FDA’s decisions in 2020 included [an RWE] study to support safety and/or effectiveness—up from 53% in 2019.”32 However, before RWE can be the “Holy Grail” capable of delivering all of its promises in a drug development project, the aforementioned issues must be solved. FDA must, for instance, provide industry with additional and more specific guidance as to data standards and data analysis expectations.

Opportunities with RWE and its Future

Despite the issues elaborated upon above, the future of RWE is bright. Among the most notable benefits of utilizing RWE to approve new indications for drugs that already have marketing authorization approvals is that this information can potentially enable more products to be covered by government reimbursement programs like Medicare. This is the case because, unless there has been a national or local “coverage decision” made by CMS, generally, drugs are not reimbursed for off-label33 promotions. Moreover, doctors routinely prescribe off-label drugs. In some cases, off-label prescriptions are the standard of care and result in as much as 93.5% of prescriptions for certain pediatric conditions.34 Under the current regime, if a beneficiary wants to be reimbursed for an off-label indication, they must engage in a burdensome and serpentine approval process with CMS. CMS will then only approve coverage for the drug if the evidence submitted by a beneficiary shows that the drug’s “use is medically accepted, taking into consideration the major drug compendia, authoritative medical literatures, and/or accepted standards of medical practice.”

35If, on the other hand, FDA’s RWE program helps manufacturers to significantly reduce the cost of premarket submissions, then many of those most in need will have coverage for much needed pharmaceutical interventions.

Conclusion

However intangible the concept may be to those unaware of this significant regulatory development, RWE exists at the intersection of rapidly improving information technology capabilities and the sometimes sclerotic regulatory landscape. Nonetheless, FDA has enthusiastically responded to its Congressional mandate to create a framework for implementing RWE in regulatory decision making. As with any new and promising regulatory paradigm, RWE faces challenges known and as yet unknown in the coming years, but the promise of its potential to expand the portfolio of drug products or their indications for use warrants that industry accept and overcome them in partnership with FDA.

30 Id. at 167.

31 Id.

32 See, Footnote 24.

33 Off-label use is defined as “use for a non-FDA approved indication, that is, one that is not listed on the drug's official label/prescribing information.” See, Off-label use is defined as “use for a non-FDA approved indication, that is, one that is not listed on the drug's official label/prescribing information.”

34 Andrade SRA, Santos PANM, Andrade PHS, da Silva WB. Unlicensed and off-label prescription of drugs to children in primary health care: A systematic review. J Evid Based Med. 2020 Nov;13(4):292-300. doi: 10.1111/jebm.12402. Epub 2020 Oct 13. PMID: 33047516.

35 Id.

NFTs and Intellectual Property:

What You Need to Know

BY JULIE A. HOPKINS, ESQ., FOUNDER, HOPKINS IP

JORDAN KUCHTA, JD, UNIVERSITY OF MARYLAND CAREY SCHOOL OF LAW 2022

BETWEEN THE ANNOUNCEMENT OF A FUTURISTIC METAVERSE, the proliferation of cryptocurrencies, and non-fungible tokens (“NFTs”), people are increasingly captivated with online-related goods and services. NFTs in particular are in the spotlight now. Celebrities flaunt their status by purchasing million-dollar NFTs to use as their Twitter profile picture and collectors display their NFTs in online art galleries. Companies are considering minting NFTs to promote and sell their products. Despite reports that the NFT market bubble will face a sharp decline in 2022, signs of investment and activity remain strong. Approximately 250,000 people a month use OpenSea, the largest NFT marketplace ,while companies such as Coinbase and Robinhood are joining the game.1 Further, in 2021, NFT sales surpassed $17 billion; up from $82.5 million in 2020.2 As with most emerging fields, the law has not yet caught up. As a result, there are many uncertainties about how NFTs should be treated with regard to intellectual property ownership and enforcement.

What is an NFT?

Maryland’s lawmakers introduced bills that would establish and fund a statewide Access to Counsel in Immigration Proceedings Program.

NFTs are unique for two reasons. First, they serve as an authentication tool of the particular asset the NFT represents, which allows anyone to confirm the ownership of a particular NFT.3 Second, ownership of an NFT increases social currency and status. NFTs are extremely popular for the authentication value they provide to buyers and sellers. NFTs exist on a specific type of blockchain depending either on how it was purchased or by preference of the seller or owner. Due to the decentralized nature of blockchain technology, it is immune to volatility. 4 NFTs can represent anything from unique digital artwork, to a poem, or even a video of LeBron James dunking a basketball. Each NFT has unique metadata that ensures it can never be duplicated and the token generally provides a failsafe authentication standard. 5 NFTs are non-fungible, meaning unlike a $20 bill which represents the same nominal amount and can be reused and exchanged like any other $20 bill, no two NFTs are the same. 6

The first known documented case of an NFT being created, or “minted,” was in 2014.7 Kevin McCoy minted his NFT “Quantum” which is “a pixelated image of an octagon filled with denoting circles, arcs or other shapes which share the same center, with larger shapes surrounding smaller ones and hypnotically pulsing in fluorescent hues.”8 The NFT “Quantum” is now on sale for $7 million. Most NFTs exist on the Ethereum blockchain; a form of cryptocurrency. However, other blockchains are beginning to utilize NFT technology, which may create competition for the dominant Ethereum platform and cryptocurrency. 9 Due to the generally large file sizes of NFTs, once the NFT is minted, usually only the file to access the NFT is stored on the blockchain, and the actual NFT is stored “off-chain,” meaning it is on another website or platform that can handle larger file sizes. 10 Thus, when you create or purchase an NFT, you are really creating or buying a link to the NFT and not the underlying digital asset. 11

1 Daniel Van Boom, NFTs Explained: Why People Spend Millions of Dollars on JPEGs, cnet (Jan. 13, 2022), https://www.cnet.com/culture/nfts-explained-why-people-spend-millions-of-dollars-on-jpegs/.

2 Peter Allen Clark, Report: NFT Sales Exceeded $17B in 2021, Axios (Mar. 10, 2022), https://www.axios.com/nft-sales-17b-2021-report-de0c573c-7165-4a03-9266-dc441e34d28b.html.

3 Paul Bain et al., What You Need To Know: Intellectual Property and Non-Fungible Tokens, JDSUPRA (May 10, 2021), https://www.jdsupra.com/legalnews/what-you-need-to-know-intellectual-2201399/ [hereinafter What You Need To Know].

4 Id.

5 See Mitchell Clark, How To Create An NFT—And Why You May Not Want To, The Verge (Dec. 8, 2021), https://www.theverge.com/22809090/nft-create-opensea-rarible-cryptocurrency-ethereum-collectibles-how-to [hereinafter How to Create An NFT].

6 See Mitchell Clark, NFTs, Explained, The Verge (Aug. 18, 2021), https://www.theverge.com/22310188/nft-explainer-what-is-blockchain-crypto-art-faq [hereinafter NFTs, Explained].

7 The History of NFTs & How They Got Started, Portions: Perspectives https://blog.portion.io/the-history-of-nfts-how-they-got-started/ (last visited Apr. 3, 2022).

8 Id.

9 See Carly Chatfield, Move Over Ethereum: 5 Blockchains That Support NFTs, MUO (Dec. 23, 2021), https://www.makeuseof.com/ethereum-alternative-blockchains-that-support-nfts/ for an explanation of new platforms breaking into the NFT market.

10 How To Create An NFT.

11 See Anil Dash, NFTs Weren’t Supposed to End Like This, The Atlantic (Apr. 2, 2021), https://www.theatlantic.com/ideas/archive/2021/04/nfts-werent-supposed-end-like/618488/ (“When someone buys an NFT, they’re not buying the actual digital artwork; they’re buying a link to it.”).

While the main value of NFTs is derived from its authentication qualities, many are now purchasing NFTs because of the status and social benefits. Thus, NFTs not only serve as an authentication tool that indicates NFT ownership, but they also represent the underlying asset. For example, the Nyan Cat NFT represents the underlying work: the Nyan Cat. The NFT’s code also demonstrates the ownership authentication of the Nyan Cat, which gives stability and confidence in the NFT market. 12 However, the NFT only authenticates the owner of the NFT, it does not authenticate that the underlying asset is legitimate. 13

One of the most well-known NFT groups is the Bored Ape Yacht Club (“BAYC”), which includes celebrity owners such as Jimmy Fallon, Stephen Curry, Eminem, Post Malone, and Steve Aoki.14 Many celebrities display their NFTs as social media profile pictures, while music producer Timbaland, plans to use the Ape NFTs in a virtual music group project, expanding the ways NFTs may be used in the future.15 More than 10,000 Bored Ape NFTs have been minted, with some being sold anywhere between $1.5 million and $3.4 million, demonstrating the wealth required to purchase such an NFT, as well as the exclusivity that comes with the purchase.16 There is a misconception that simply screen shotting someone’s NFT—such as a Bored Ape—would confer all of the IP rights to that individual. This is incorrect because the individual who took the screen shot would unlikely be able to sell the NFT for any real monetary value. Buyers would realize the seller is not legitimate by searching the blockchain ledger which keeps track

12 See NFTs, Explained.

13 See What You Need To Know.

of NFT ownership. Searching the ledger shows that Yuga Labs, the creators of BAYC, is the original seller. If the first known seller is another individual, it is likely illegitimate. While nothing prevents individuals from taking screenshots of NFTs, the overall status and worth of the NFT comes with owning the original. There are also incentives for owning an original NFT. For example, Yuga Labs has unique perks for being a legitimate member. These include becoming a member of the Bored Ape Kennel Club, obtaining a mutant serum to create a Mutant Abe NFT, and special access to parties across the world in New York, California, Hong Kong, and the United Kingdom.17 As a result, ownership of certain NFTs, such as ones in the BAYC collection, denotes a level of wealth and status, which cannot be obtained by a few taps on an iPhone. Further, as the number of apes available decreases, the prices will likely continue to rise, creating more demand in the NFT market.

Copyright Implications

The explosion of the NFT market has created copyright ownership and enforceability concerns. Three primary copyright issues arise with regard to NFTs: (1) whether NFTs are protected by copyright; (2) whether creating an NFT of an already copyrighted work owned by someone else constitutes copyright infringement; and (3) whether an individual or company hosting an NFT platform is liable when displaying a counterfeit NFT.18 Federal copyright protection extends to “original works of authorship fixed in a tangible medium of expression” and includes things such as literary works, pictures, and sound recordings.19 A work is fixed in a tangible medium of expression when it exists for more than a transitory duration and thus sufficiently stable.20 A work may be considered fixed whether it is in a form that may be perceived directly or in one that requires a machine or device. For example, a book may be fixed in a printed paper format or fixed in a digital e-book file, viewable only with an e-book reader or computer. While copyright attaches the moment that the work is created and

14 Andrew Hayward, The Biggest Celebrity NFT Owners in the Bored Ape Yacht Club, Decrypt (Mar. 27, 2022), https://decrypt.co/86135/biggest-celebrity-nft-owners-bored-ape-yacht-club

15 Id.

16 Renuka Tahelyani, Top 11 Most Expensive Bored Ape Yacht Club NFTs, The Crypto Times (Apr. 4, 2022), https://www.cryptotimes.io/most-expensive-bored-apeyacht-club-nfts/. Prices can change daily, but the average price as of April 2022 hovers around $700,000.

17 David Van Boom, Bored Ape Yacht Club NFTs: Everything You Need to Know, cnet (Feb. 8, 2022), https://www.cnet.com/culture/internet/bored-ape-yacht-clubnfts-everything-you-need-to-know/.

18 See Mark Conrad, Non-Fungible Tokens, Sports, and Intellectual Property Law Issues: A Case Study Applying Copyright, Trademark, and Right of Publicity Law to a Non-Traditional Ownership Vehicle, 32 J. of Legal Aspects of Sports 132, 137–43 (2022) (discussing copyright related issues regarding NFTs).

19 17 U.S.C. § 102(a).

20 17 U.S.C. § 106.

fixed in a tangible medium of expression but is not enforceable until the work is registered with the U.S. Copyright Office.

As is the case in non-NFT related copyright cases, if an individual wants to copyright an NFT they minted, that individual likely needs to own the underlying copyright in the work. For example, if Sally creates her own unique digital painting of a chair with a mutant cat on it, copyright ownership attaches at the moment the painting is in a fixed medium, such as in a digital file. If Sally wants to mint her painting

the work incorrectly, that could be a violation of the moral rights of the author.23 If Sally became inspired by a Google image search of a mutant cat on a chair and then created her own work, and then minted it into an NFT, she could face copyright implications. Sally would likely need to prove that her use was transformative, meaning did her work “add[] something new, with a further purpose or different character, altering the first with new expression, meaning or message.”24

Obtaining a copyright license to use another

As is the case in non-NFT related copyright cases, if an individual wants to copyright an NFT they minted, that individual likely needs to own the underlying copyright in the work.

into an NFT and copyright it, she would likely be able to because she owns the underlying copyright in the painting. It is important to note, however, that no court has declared whether an NFT is actually copyrightable,21 although it is likely that an NFT would constitute either a copy or a derivative work and thus would be copyrightable. A derivative work is a work based on or derived from one or more already existing works. However, there are differing views on the copyrightability of NFTs. One argument is that NFTs simply represent code, and are therefore, not copyrightable. Nonetheless, there is a strong argument that the display and registration of the NFT on an NFT platform necessarily requires the replication of the digital asset, which could implicate copyright infringement if the individual does not own the underlying copyright.22 Additionally, if the NFT metadata describes the author or

artist’s work is a practice that will continue to be important in the NFT space. Most NFT sales do not include a transfer of rights to the purchaser, meaning the original author will retain its rights.25 Two recent lawsuits regarding the Caked Ape project—a spinoff of the BAYC— highlight the need for explicit contracts because the rights were not defined before the NFT creation and sales occurred.26 Using the Sally example above, a wholly different issue would arise if Sally found the image on Google and decided she wanted to mint it and create an NFT for herself. In that instance, she does not own the underlying copyright in the work, and she has not created her own transformative work; rather, the artist who created that piece has ownership, and thus controls who can make copies or derivative works of the piece. Sally could be liable for copyright infringement if she used the Google image and minted it into an NFT, potentially

21 Conrad, supra note 18, at 137–38; see also Andreas Guadamuz, Non-Fungible Tokens (NFTs) and Copyright, WIPO Magazine (Dec. 2021), https://www.wipo.int/wipo_magazine/en/2021/04/article_0007.html [hereinafter NFTs and Copyright].

22 Ghyo-Sun Park et al., NFTs and Their Copyright Implications, Lexology (Mar. 28, 2022), https://www.lexology.com/library/detail.aspx?g=58989db4-8e71-43db-97c4-d45b095ddf3d.

23 Annick Mottrt et al., What Are the Copyright and Trademark Implications of NFTs?, Lexology (Mar. 7, 2022), https://www.lexology.com/ library/detail.aspx?g=f4d3980f-d63c-464f-b1b7-e21f184e4584; see also 17 U.S.C. § 106A(a) (granting rights of attribution and integrity to certain authors which allows an author to prevent others from using his or her name to depict visual art which they did not create).

24 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). Courts have differed in their application of what constitutes a transformative use, which would result in no legal liability, and it is usually an extremely fact specific inquiry.

25 NFTs and Copyright.

26 See Complaint, Nygard v. Whitley, No. 8:22-cv-00425 BL, (filed in C.D. Cal. Mar. 20, 2022); Complaint, Whitley v. Maguire, No. 2:22-cv01837 BL, (filed in C.D. Cal. Mar. 18, 2022).

resulting in statutory damages if the original artist registered their painting with the U.S. Copyright Office.27 As a result, it is increasingly important for individuals who want to mint their own NFTs to either own the underlying copyright in the work, or, if they want to use someone else’s work, to obtain a license to avoid potential infringement claims.

Lastly, there are important considerations regarding the growing counterfeit NFT market if an individual operates an NFT platform or if an individual’s work is wrongly promoted on an NFT platform.28 Individuals are pretending to be other artists and are minting the original artist’s work and attempting to sell it on NFT platforms. For example, someone pretended to be Derek Laufman, a well-known professional illustrator, and published his works as NFTs on Rarible, an NFT platform. After Laufman found out, Rarible took down the fake profile. However, under the Digital Millennium Copyright Act (“DMCA”), the host platform may still be liable to the original author if the appropriate “notice-and-takedown” procedures are followed.29 These cases are highly fact specific, but NFT platforms will continue to face fraudsters seeking to cash in on counterfeit NFTs. The responsibility will fall on the original authors to police their work and file a notice-and-takedown which could implicate liability for NFT platforms moving forward under the DMCA framework.

Trademark Implications

While copyright concerns dominate the NFT space, trademarks must also be considered. Trademarks protect brands which can include “any word, name, symbol, or device, or any combination thereof” used in commerce to identify the source of a good or service.30 Trademarks prevent consumer confusion by appropriately identifying and distinguishing

one’s goods from goods of another source or origin. When an NFT is minted, it may contain a trademark owned by another without their consent. Inclusion of another’s trademark could cause confusion as to the whether the NFT originated from the trademark owner, whether there is an affiliation with the trademark owner, or whether the trademark owner sponsored or approved of the production of the NFT. As with copyright cases, obtaining a trademark license is the safest way to provide protection from future liability. Using another’s trademark without their permission has the potential to confuse consumers into establishing a connection between the NFT and the source of the trademark.

Minting and selling NFTs could potentially infringe on another’s trademark rights and in the case of famous marks, cause dilution. Although a court has not yet issued an opinion on how these principles would be applied to NFTs, it could be coming soon. In February 2022, Nike sued StockX, an online reseller, alleging, among several things, that StockX was committing trademark infringement by selling NFTs that contained images of Nike sneakers without its permission.31 Nike specifically alleged that because the company recently acquired RTFKT, which is a “digital art and collectible creative studio,” the company is moving into the NFT space, and thus, StockX’s unauthorized use of its trademark will lead consumers to be confused and “create a false association between the parties.”32 Nike also claimed that StockX’s unauthorized use of its trademark has diluted, and will continue to dilute, its mark.33 In its reply, StockX claims that its Vault NFT “are absolutely not ‘virtual products’ or digital sneakers,” and instead the Vault NFT gives an individual two choices: (1) it allows the individual to “retain digital possession of the Vault NFT and leave

27 Statutory damages can range anywhere from $750–$30,000 per infringement, and can reach up to $150,000 for willful infringement; thus, copyright infringement can have a major impact for individuals financially. 17 U.S.C. § 504(c).

28 ee Bijan Stephen, NFT Mania Is Here, and so Are the Scammers, The Verge (Mar. 20, 2021), https://www.theverge. com/2021/3/20/22334527/nft-scams-artists-opensea-rarible-marble-cards-fraud-art.

29 See 17 U.S.C. § 512.

30 See 15 U.S.C. § 1127.

31 Blake Brittain, StockX Strikes Back at Nike in NFT Lawsuit, Reuters (Mar. 31, 2022), https://www.reuters.com/legal/litigation/stockxstrikes-back-nike-nft-lawsuit-2022-03-31/; see also Complaint, Nike v. Stockx, No. 22-cv-983, 2022 WL 340664 (filed in S.D.N.Y. Feb. 3, 2022).

32 Complaint, supra note 30, at 4.

33 Id. at 44–45.

the authenticated physical good in StockX’s climate-controlled, high security vault”; or (2) it allows the individual to “take possession of the physical good from the vault at any time in which case the Vault NFT is removed from the customer’s digital portfolio and permanently removed from circulation.” 34

StockX emphasized in its answer to Nike’s complaint that one of the core benefits of possessing a Vault NFT is the easy transferability it gives consumers if they want to make future trades without “incurring transaction costs, delay, or risk of damage or loss associated with shipping physical sneakers to StockX and then to the ultimate recipients.”35 StockX also noted that it has a disclaimer of any association or affiliation with the product brands it lists on its website, and that its use is a nominal fair use, which is no different “than other major e-commerce retailers and marketplaces who use images and descriptions of products to sell physical sneakers and other goods, which consumers see (and are not confused by) every single day.”36 As a result, StockX argues that Nike’s lawsuit threatens the innovation of using NFT technology and denies any wrongdoing. Should the case reach judgement, and an appeal ensue, a judge’s opinion could give insight into how these cases may be argued and litigated in the future. This case could have major implications for other online platforms that act as intermediaries between a producer and consumers and offer goods that necessarily need to include the name of companies.

Conclusion

The rapid rise and progression in the popularity NFTs coupled with law’s failure to keep pace will inevitably lead to intellectual property disputes. At this early stage, it is uncertain how courts will apply trademark and copyright law to this new technology. Before entering the NFT space, it is important to understand the technology and the potential intellectual property implications of minting, purchasing, and displaying NFTs.

34 Answer to Complaint at 3, Nike v. StockX, No. 22-CV-983-VEC (filed in S.D.N.Y. Mar. 31, 2022) (emphasis omitted).

35 Id.

36 Id. at 6–8.

How Have Maryland Courts Been Applying Rule 5-702 After Adopting Daubert Standard?

BY DEREK STIKELEATHER, ESQ.

Maryland will soon pass the second anniversary of the Court of Appeals’ landmark Rochkind v. Stevenson opinion. The 2020 decision formally adopted the Daubert standard for admitting expert testimony under Rule 5-702 and retired the Frye-Reed standard. Yet, many judges and practitioners are still trying to discern how much Rochkind has changed everyday trial practice in Maryland. The question eludes simple answers.

So far, it appears that Rochkind has sensitized trial judges to their non-delegable gatekeeping duties to test the reliability of every expert opinion that comes before the court. Although these duties have existed since Rule 5-702 was enacted in 1994—and been re-affirmed through decades of “jurisprudential drift” towards a Daubert standard—the starkness of formally retiring the Frye-Reed standard and adopting Daubert has sent judges a clear message that they must directly engage with and

Because judges are not scientists, they cannot reasonably be expected to analyze novel, scientific opinions for analytical gaps, methodological errors, or undue speculation.

test the expert opinions that come before their court and not simply defer to well-credentialed experts with relevant subject-matter expertise. For judges that have historically skimmed past Rule 5-702 inquiries and passed most questions to jurors as going merely to the “weight of the evidence,” more is now expected.

The Supreme Court’s landmark 1993 Daubert decision triggered a small panic in the federal judiciary because it held that, for almost two decades after Federal Rule of Evidence 702’s enactment in 1975, most federal courts had erred by continuing to apply Frye’s general-acceptance test. Frye had applied to only a subset of expert opinions, those that were both “novel” and “scientific,” and limited the court’s inquiry to whether the opinion or method was “generally accepted” in the relevant scientific community. Generally accepted opinions were admissible, opinions not generally accepted were inadmissible.

Frye’s binary approach reflected the prevailing twentieth-century view that, because judges are not scientists, they cannot reasonably be expected to analyze novel, scientific opinions for analytical gaps, methodological errors, or undue speculation. Instead, judges could fairly be asked only to corroborate an opinion or methodology’s general acceptance in the relevant scientific community.

(Of course, such reasoning never explains how lay jurors, who are virtually never scientists in the same relevant field, could reliably identify analytical gaps, methodological errors, or undue speculation, if judges presumably could not do so.)

Once general acceptance was established, the Frye inquiry was ended.

Although the indirect general-acceptance test had the immediate virtue of simplicity—until complex fights erupted over whether an opinion was truly novel or truly scientific—it was a crude, imprecise tool. By analogy, imagine a law firm or government agency that decides that it lacks the expertise to discern which law school graduates will flourish there as professional attorneys, so it screens and hires only applicants with the highest grades from the most prestigious law schools. This indirect approach to finding the “best” attorney candidates is not entirely irrational. Some might even argue that it aptly describes traditional hiring practices. But few would argue that it is a better approach to hiring than meaningful direct inquiries into each candidate’s skills and potential as a practicing attorney (personal interviews, writing samples, experience, references of former co-workers and professors, plus grades and credentials).

Daubert and Rochkind stand for the same principle: direct inquiry into the reliability of an expert opinion is superior to an indirect inquiry into its mere general acceptance. But a better way is not always an easier or faster way. Just as hiring lawyers exclusively by their credentials is faster and easier than a plenary review of a candidate’s qualities, experience, and potential, the flexible Daubert-Rochkind inquiry often requires that the judge dig deeper into a challenged opinion to understand how it is constructed both methodologically and factually. With Frye-Reed’s retirement, expert opinions are no longer treated as beyond a legally trained judge’s ability to comprehend.

For Maryland trial judges and practitioners, Rochkind has triggered a less intense reaction than

DAUBERT INTRODUCED A FIVE-PART TEST for weighing the admissibility of scientific expert testimony, but subsequent opinions clarified that Daubert applied to all expert testimony under FRE 702. Federal courts have added additional factors, to be used depending on the type of expert testimony proffered. The Rochkind opinion reflects this expansive Daubert test and states ten factors for trial courts to consider when applying Rule 5-702. First, courts must consider the five original Daubert factors:

3

4 the existence and maintenance of standards and controls 1 whether a theory or technique can be (and has been) tested

whether a particular scientific technique has a known or potential rate of error

5 whether a theory or technique is generally accepted

6

8

10

whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying

whether the expert is being as careful as he [or she] would be in his [or her] regular professional work outside his [or her] paid litigation consulting

whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give

Daubert had for federal judges in 1993, but the reaction has a familiar echo. Rochkind’s final step was not much of a leap for trial judges who had kept pace with two decades of evolving Maryland Frye-Reed and Rule 5-702 case law, which had penultimately settled upon a shared “analytical gap” test. But the adoption of Daubert sounded an alarm for those who had been approaching Rule 5-702 as merely ensuing the challenged witness’s relevant qualifications. Parties should no longer bank on withstanding an expert challenge by submitting a stack of purportedly supportive texts, studies, or papers and suggesting that the issue is too fact-intensive for the court to decide pre-trial and should be left for the jury to decide. Going forward, Maryland courts are likely to look for some limiting principle to prevent every one-week trial

2 whether a theory or technique has been subjected to peer review and publication

Because “courts have developed additional factors for determining whether expert testimony is sufficiently reliable,” Maryland courts should also consider:

7

9

whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion

whether the expert is being as careful as he [or she] would be in his [or her] regular professional work outside his [or her] paid litigation consulting

from being preceded by two weeks of Rochkind hearings. For guidance, courts should look to federal case law and procedure, which has managed for almost thirty years of Daubert to avoid having expert challenges overwhelm trials. Rochkind seems likely to demand more from courts and practitioners, but its direct focus on what really matters in an expert opinion—its reliability—should benefit everyone seeking justice in civil and criminal trials

Derek Stikeleather is a partner with Goodell DeVries and Chair of the firm's Appellate Practice Group. He practices primarily in appellate advocacy and complex litigation, often in commercial disputes or defending product liability, medical malpractice, and class action claims.

Remembering Those Who Have Passed

George A. Aitken

Marvin H. Anderson

David Applestein

Catrina Celestine Aquilino

Erick A. Baxter

Paul Bloomberg

Harry C. Blumenthal

Thomas J. Bollinger Sr

Carlos Acardo Braxton

Richard Roland Brockmeyer

David Alexander Brokaw

C. Christopher Brown

Herbert "Tripp" Burgunder III

Thomas Robert Burns

Thomas Callahan

Winifred Elaine Cannon

Susan Carletta

David A. Carney

Catherine E. Carrol-Fisher

John D. Corse Jr

Thomas A. Couglin

Robert S. Crum

Patrick Giles Cullen

Richard Olaf Cunningham

Sheldon G. Dagurt

Theodore C. Denick

Jose Diaz-Marrero

Felipe Santo Domingo

Robert E. Donadio Sr

Frank Montgomery Dunbaugh III

Philip Edward Epstein

Jennifer Fisher

Pamela Borland Forbes

Richard R. Goldberg

Patricia Janet Hackett

Robert R. Harding

Stephen Edgar Harris

William Bruce Haydon

Harold Hersch

Michael Hethmon

Dennis John Hoover

Kathryn Kelley Hoskins

Mary Nicholas Humphries

Scott Alan Hunger

John William Jansak

Milton Kaplan

Hon. Joseph Henry Herbst Kaplan

Joseph Kijewski

John King

Robert W. King

Howard Klein

James Marshall Kramon

Karen Kruger

Jeffrey Scott Larson

Norman W. Lauenstein

Robert H. Levan

Stephen Richard Leventhal

Willie Alton Lewis

Richard Thomas Linnemann

Clarence D. Long III

Harold Gregory Martin

Patrick Henry McCormally

Hon. Paul A. McGuckian

Graydon McKee III

John James McKenna Jr

Thomas M. Meachum

Douglas Conrad Meister

Jacqueline Mellott Melonas

Jacob Yosef Miliman

Richard Stanley Miller

Steven Thurman Mitchell

Hon. Richard Motsay Sr

Brian P. Murphy

Barry Nace

Hon. Jonathan Newell

John F.X. O'Brien

Jennifer Twumasi Opuku-Asare

Allen Buford Painter

Norman Polovy

Alethea Denise Pounds

Nina Santucci Pozgar

Robert Harold Ratcliffe

Michael Kraus Ratzenberger

Brian Reimer

Joseph Vincent Rohr Jr

Arthur S. Rozes

David Rudow

Stephen O. Russell

Virginia Skidmore Rutledge

Stephen H. Sachs

Darren Wentworth Sanborn

Hon. John William Sause Jr

Richard T. Seymour

Robert Lodge Simmons

Michael L. Spekter

Carol P Tello

Robert S. Thomas II

Arcangelo M. Tuminelli

James Basham Vietti

Jeffrey Weber

Susan Weinstein

John Clarence Wetzel

James B. Wieland

David Huntington Williams

Sabrina Willis

Gregory Sean Winton

Clifford Lawrence Wiser

John Joseph Woloszyn

David Craig Wright

Remembering Judge Joseph F. Murphy, Jr.

BY MSBA STAFF

“

With all of his accomplishments he shined with humility."

-Paul M. Sandler

THE MARYLAND STATE BAR ASSOCIATION joins the legal community in mourning the loss of a tireless advocate, respected jurist, and educator, with the passing of Judge Joseph F. Murphy, Jr. on Wednesday, July 27th. He was 78.

Judge Murphy was the former Chief Judge of the Maryland Court of Special Appeals, retiring from the bench in 2011, to return to private practice with his daughter Erin Murphy at the law firm of Silverman, Thompson, Slutkin & White.

His career spanned more than 50 years, and included service at Maryland Legal Aid and the Baltimore City State’s Attorney’s Office. After spending time in the public sector, Judge Murphy started his own firm, White & Murphy, and gained prominence as a criminal defense attorney. In 1984, he was appointed by Governor Harry Hughes to the bench in the Circuit Court for Baltimore City. From there, Judge Murphy would go on to serve in the highest

levels of Maryland’s judiciary, including the Court of Special Appeals, where he was appointed chief judge from 1996 to 2007, and Maryland’s highest court, the Maryland Court of Appeals from 2007 to 2011.

Judge Murphy’s contributions to the profession not only include his work as an attorney and jurist, but also his commitment to serving students and lawyers as an educator. “Joe Murphy

was a lawyer’s lawyer, and a judge’s judge,” said Judge Paul Grimm, of the U.S. District Court for the District of Maryland. “In his heart and soul he harbored a burning desire to work with others in the legal profession, and in the Judiciary to achieve Justice,” attorney Paul M. Sandler noted.

Judge Grimm described Murphy as “a gifted teacher who generously shared his encyclopedic knowledge of law with law students, lawyers and fellow judges.” Judge Murphy taught evidence at the University of Baltimore Law School for 47 years, and taught trial practice at the University of Maryland Francis King Carey School Law for 40 years.

Through his teaching and mentorship, Judge Murphy helped shape generations of law students, lawyers, and judges. Having authored five editions of the Maryland Evidence Handbook, Judge Murphy’s published work has served Maryland’s attorneys for over 30 years, making him one of Maryland’s foremost experts in evidence, trial practice, and appellate advocacy. Judge Grimm reflected on the impact of Judge Murphy’s career: “He was a role model for thousands of us, and even though he seemed to know everybody, he always made you feel like he was happy to know you as well. He leaves behind him a void that will not soon be filled.” Sandler agreed that Murphy “was a role model for striving for and achieving excellence in all that he did, including Criminal Defense, Trial Judge, Appellate Judge, Arbitrator/ Mediator, and Scholar as evidenced by his writing and teaching.”

MSBA President David Shapiro said “Chief Judge Murphy was an icon of

the legal profession and a respected and celebrated member of the MSBA, generously sharing his vast knowledge of the law as a mentor, author, and teacher to law students, lawyers, and judges alike. His service to our members and the legal community was a gift that will have an impact for years to come.”

He was the recipient of the MSBA’s 1990 Robert C. Heeney Memorial Award, the Maryland Bar Foundation 1994 Award for Excellence in the Advancement of Professional Competence, the Maryland Access to Justice Commission’s 2012 Judge of the Year Award, and the Maryland Bar Foundation’s 2012 H. Vernon Eney Award. “With all of his accomplishments he shined with humility. To say that he will be missed is an understatement,” said Sandler.

Judge Murphy was born in Fitchburg, Massachusetts, on January 9, 1944. He met and fell in love with JoAnn Cechin in high school, and the two married in 1966 after he received his undergraduate degree from Boston College in 1965. Judge Murphy went on to earn his law degree from University of Maryland School of Law in 1969. He is survived by his daughter, who is chief counsel for the Baltimore City State’s Attorney’s Office; a grandson, Finley Ehman, a sophomore at St. Paul’s School for Boys; and a granddaughter, Ellery Ehman, a freshman at the University of South Carolina.

In honor of his dedication to the profession, education, and justice, a group of his close friends have established an endowed scholarship in Judge Murphy’s name at the Carey School of Law.

Chief Judge Murphy was an icon of the legal profession and a respected and celebrated member of the MSBA, generously sharing his vast knowledge of the law..."

-MSBA President David Shapiro “

CarneyKelehan Partner Tom Meachum

THOMAS M. MEACHUM, managing partner of the Westminster office of Carney, Kelehan, Bresler, Bennett & Scherr, died March 12, 2022, at his home in Westminster. His real estate and business law practice with CarneyKelehan spanned 26 years.

“Over the years, Tom provided balance and a measured, compassionate and highly intellectual approach to our firm. He applied those same skills to serve his clients and our community. Using his unique behind-thescenes approach, Tom’s primary goal was always to achieve problem resolution and never for personal recognition,” said Kevin Kelehan, a partner with CarneyKelehan.

Meachum began his career in the Maryland attorney general’s office, then the How -

ard County Office of Law. He held other positions in private practice before joining Reese and Carney in 1996, where he practiced for the remainder of his legal career. He specialized in zoning and development law, general real estate, business law, employment law, estate administration and litigation and alcohol beverage licensing.

“Perhaps his greatest gift was his unique ability to connect with every client, no matter what their situation,” Kelehan said.

“In an era of in-and-out convenience for almost everything, Tom believed in establishing and maintaining long-term client relationships. Tom genuinely cared about each client, and the standard of excellence he set for client service is one our firm is proud to uphold.”

Meachum served on the Maryland State Bar Association’s board of governors, led

Perhaps his greatest gift was his unique ability to connect with every client, no matter what their situation"

-Kevin Kelehan “

the association’s Special Committee on Assignments, and served on many other committees. He was a career-long member and past president of the Howard County Bar Association. He was a board member of the Pro Bono Resource Center, Maryland Volunteer Lawyer Service and the Frederick County Legal Aid Bureau, which provide legal assistance to those in need. He was a member of the Carroll and Frederick County bar associations

“We will miss Tom’s energy, selflessness and dedication to the legal profession and to our firm. But perhaps even more, we will miss the loyalty and commitment we all observed and admired in his unwavering love and support for his family, friends and community,” Kelehan said.

Rimon Law Partner

Tripp Burgunder

-Marty Schreiber “

Tripp counted many of his friends as clients and many of his clients as friends"

HERBERT “TRIPP” BURGUNDER III, passed away at home on April 19, 2022. He was 53.

Burgunder was a partner at Rimon Law in Baltimore. He received his undergraduate degree from Cornell University and his law degree from the University of Baltimore School of Law. His primary areas of practice were real estate, land use and zoning, business law, contracts, and landlord/tenant issues. His hallmarks were simple documents and straightforward language.

In addition to practicing law, Burgunder was an adjunct faculty member at the University of Maryland Francis King Carey Law School as an adjunct faculty member in the Legal Analysis, Writing, and Research program.

Burgunder was a member of the MSBA’s Real Estate and Business Law sections. He was a contributing

author to the MSBA’s legal treatises Residential Real Property and Practice Manual for the Maryland Attorney. Rimon Law noted on its website that “Tripp counted many of his friends as clients and many of his clients as friends, a testament to his exceptional qualities as both a skilled lawyer and a caring human being. His colleague Marty Schreiber remembers him as “a great friend and colleague to many of us in the real estate bar. He died way too young.”

Burgunder is survived by his wife, Tamara; children, Ben, Sam, and Maisie; siblings, Rachel Burgunder (Daniel) Hoch, Brad (Lisa) Burgunder, and his inlaws, Barbara and Ron Lipman. He was predeceased by his parents, Herbert Burgunder Jr., and Sydnee Burgunder. Services were held April 21 at Baltimore Hebrew Congregation.

Mike Jacobs Law Office of Jacobs & Barney

“

To be a good lawyer is a great thing. To be a good person is exceptional. Mike was both."

-Council

member Bob Frank

MICHAEL (“MIKE”) J. JACOBS, the co-founder and long-time member of the MSBA Solo & Small Firm Practice Section, passed away on July 17, 2022. He was 81.

Jacobs began his legal career in the Coast Guard and later moved to Easton, Maryland, where he joined Miles & Stockbridge P.C. He founded his own firm in 1994 and was joined by his daughter, Melanie, in 1996 to form Jacobs & Barney LLC.

Jacobs was known by his colleagues for his leadership, kindness, and dedication to enhancing the role of small and solo practitioners in the legal profession.

Colleague Andrew Hartman, past chair of the Solo & Small Firm Practice Section Council, said it was an honor and privilege to know Jacobs, calling him the “Cal Ripken of our council” due to his long-term commitment.

Council member Bob Frank recalled that Jacobs’ “passion for the law was noteworthy,” and he was “always trying to do right for his clients.” Frank said Jacobs “felt that by making the Bar stronger, he improved the law for everyone and always was advocating for each of us as practitioners.” Beyond that, Frank said, Jacobs was “just a nice guy” who was truly interested in his fellow section members and their families. “To be a good lawyer is a

great thing. To be a good person is exceptional. Mike was both. I feel lucky to have known Mike. He made me a better lawyer and person.”

Jacobs was recognized for his work on behalf of solo practitioners in 1994 when the Conference of State Bar General Practice Sections named him Bar Leader of the Year, honoring his achievements in helping to establish the MSBA’s General Practice Section (which later became the Solo and Small Firm Section) and for his work on behalf of solo practitioners.

The MSBA’s Solo and Small Firm Practice Section awarded him the David Hjortsberg Award, which commends solo and small practitioners who raise the bar of professionalism, civility, intelligence, respect, and community commitment for all, in 2003.

Jacobs is survived by his wife of 56 years, Maureen A. Jacobs, his daughter, Melanie Barney, and her husband Bruce Barney, his son, Jason Jacobs, and his four grandchildren. A mass and celebration of Mike’s life was held on July 22, 2022.

INSPIRING CHANGE IN THE PROFESSION

MIRIAM H. SIEVERS

FAMILY LAW ATTORNEY

MIRIAM H. SIEVERS is driven to increase access to collaborative law.

“As the past President of the Maryland Academy of Collaborative Professionals (MACP—which houses the Collaborative Project of Maryland), I am passionate about increasing access to Collaborative practice—both for families and professionals. MACP is a wonderful resource for professionals across the state, and CPM continues to provide excellent pro bono representation to lower-income families in Maryland who qualify.” Sievers was inducted as a Fellow of the Maryland Bar Foundation in 2020 and practices family law in Howard County.

You should always treat counsel, opposing parties, court staff, witnesses, etc., with dignity and respect. The need to be courteous in this profession, especially across the aisle, cannot be overstated. "

Why did you enter the legal profession?

To provide family advocacy for LGBTQ families. When I started law school, marriage equality only existed in a handful of states, and Maryland was not one of them. While in law school, Maryland passed marriage equality, and a few years after I was sworn in, Obergefell was decided. LGBTQ families face unique legal issues. It is a privilege to assist clients in securing full and transportable rights to their children, and help equitable resolutions of their dissolutions.

What is the best piece of advice you have received from someone in the legal profession?

If you aren’t nervous walking into court, you should probably retire. That, and that you should always treat counsel, opposing parties, court staff, witnesses, etc., with dignity and respect. The need to be courteous in this profession, especially across the aisle, cannot be overstated.

What is your fondest memory of your legal career so far?

My first oral argument before the Court of Special Appeals ultimately set precedent in Maryland (Sherman v. Rouse—holding that the doctrine of comity applies to Vermont Civil Unions for purposes of divorce in Maryland). Showing up to argue that morning, I had my soon-to-be husband by my side, my fabulous and incredibly supportive boss and mentor, Karen D. Amos, Esq. there allowing me to argue what I had briefed, and a host of colleagues and friends there to observe the argument. I have never been so nervous, or felt so under-prepared, despite the many hours I put into preparing, but being able to present my client’s case and plea for equal treatment in his divorce action meant rising to the occasion. I will never forget how it felt to settle into that argument and begin engaging with the panel of judges I was appearing before that day.

What do you love about your work?

I especially love when I am able to help create legal protections for families such as confirmatory adoptions. I also love helping and educating clients who are dealing with some of the most challenging circumstances in their lives due to their divorce or custody disputes.

What is one thing you would change about your current role if you could?

Sometimes cases have to be tried because one party is just unreasonable. It is frustrating to represent the reasonable party and see resources squandered and families harmed by the stubbornness of the other side.

What are your professional goals this year?

I hope to continue to be a resource to other practitioners about LGBTQ family law matters while evolving my own practice in this area and learning from those mentors and advocates who came before me and built this area of law when nothing existed.

Why is the work of the Maryland Bar Foundation important to you?

I believe that the legal system should be meaningfully accessible, and the Foundation’s ability to drive change and access to justice at a local level by providing grants to organizations in Maryland helps to make this access possible across our state.

Why should others join the MBF?

Being nominated by other Fellows is an incredible honor, and an opportunity to support the MSBA’s charitable work.

What we can’t find on your resume…

I grew up as a Third Culture Kid and lived overseas for much of my childhood. Those experiences indelibly shaped my relationship to people and places, and have continued to fuel my wanderlust.

What’s an interesting fact about you that no one would guess?

I love driving U-HAUL trucks, utility vans, small shuttle buses, etc., and have frequently considered obtaining a commercial license just because.

MBF SUPPORTS

Maryland Crime Victims Resource Center

The Maryland Bar Foundation proudly supported Maryland Crime Victims’ Resource Center, Inc. (MCVRC) in their inaugural Make a Difference for Victims’ Rights 5k Walk and Resource Fair on April 16, 2022. This event was held to honor, remember, and pay respects to survivors and victims of all crimes. Taking place just prior to National Crime Victims’ Rights Week, the event was held at Watkins Regional Park in Upper Marlboro.

The event was held free of charge for all registrants, and MCVRC invited advocacy organizations to come and showcase the resources they offer the community for free as well. MCVRC hoped the event would positively impact

residents from the central part of Maryland, which has some of the highest crime rates in the state. By bringing together resources and pushing attendance by partnering with other non-profits and organizations, the event not only attracted more guests in a short time frame, but also created connections among resources for future partnerships.

With COVID restrictions just lifting and an event taking place outside, Maryland Bar Foundation representatives Alice Chong and Charles Isler were eager to accept an invitation from MCVRC to host one of the water stations. As you can imagine, there were various, complex feelings in the air, but the overall feeling was one of community and making a difference.

MCVRC's First Annual 5k

Mile 1 was dedicated to victims’ rights facts

Mile 2 remembered lost lives

Mile 3 honored heroes

The event began with attendees visiting different resource tables and taking pictures at the Memory Garden Wall. A short ceremony offered a moment of silence for lives lost to violence and honored several citizens who received the Oliver Smith Jr. Award for heroic actions in aiding crime victims. Once the ribbon was cut, attendees started their 5k journey and along the way were able to read signs that were focused on specific areas. Mile 1 was dedicated to victims’ rights facts, Mile 2 remembered lost lives, and Mile 3 honored heroes. You could see attendees thoughtfully reading each sign and learning. By hosting this event, MCVRC drew over 300 registered attendees, and Chong and Isler were able to interact with the community and see how the grant money was put to use. These attendees left with greater awareness of victims’ rights, and all individuals involved left with a greater awareness of available services. The attendees of this event left with a sense of community, eagerly awaiting, and anticipating the 2nd annual 5k and resource fair next year!

Because of the efforts of MCVRC, attendees of this event could help countless others by sharing what they learned and, in that regard, ensure that the funding provided by the Maryland Bar Foundation reaches even further.

After the murder of their daughter, Stephanie, Vince and Roberta Roper dedicated their lives to ensuring victims of crime receive justice and are treated with dignity and compassion through comprehensive victims’ rights and services.

MCVRC is a statewide non-profit organization dedicated to serving the interests of crime victims in Maryland, while maintaining a nationwide reputation for dedicated advocacy and services. As an organization, MCVRC is committed to assisting victims of crime in navigating the complicated terrain of the criminal justice system. The organization has been providing advocacy, legal representation, and support services to victims of crime for 40 years. MCVRC focuses on the delivery of victims’ services and the enforcement of victims’ rights for all victims throughout Maryland.

THERE ARE OVER 70,000 criminal cases filed in Maryland each year. Crime victims never expect to be victimized. There is a large gap between the number of victims of crime in Maryland and the number of those victims who receive assistance navigating the criminal justice process. MCVRC is actively working with the criminal justice system to ensure that all victim rights are being enforced in this difficult time and our clients are aware of case changes. Its purpose is to continue to provide legal representation and support to crime victims in Maryland, conduct community outreach, and establish additional partnerships.

The Art of Breathing

How It Can Help Beat Stress & Boost Your Mind

BY LUCY GORNALL

YOU PROBABLY DON’T give a second thought to your breathing. It's something we all do, day in day out. When we breathe in, or inhale, our lungs take in oxygen, which is then delivered to our organs and tissues. When we exhale, carbon dioxide—a waste product—is released from the body.

Unfortunately, high stress and high pressure environments can often lead to short, sharp breaths, the opposite style of breathing that is most desirable for our body. When we’re stressed, the stress hormone cortisol is released, making us breathe faster so that more oxygen can be delivered to the body, at a quicker rate. In the end, our body remains in this high state of stress, with more and more cortisol being pumped out and our breath rate staying on “high alert.”

However, slowing our breathing down, and therefore our heart rate, can help to lower stress levels and induce a state of calm. Studies* have also found how breathing correctly can be a great mood booster. You don’t need to devote a lot of time to breath work. To start, it might take some getting used to, however, incorporating some simple breathing practices into your day, for a maximum of five minutes, can really help to recharge the mind and release tension in the body.

*https://www.frontiersin.org/articles/10.3389/fpsyg.2017.00874/full.

NOSTRIL BREATHING

This style of breathing is supposedly best done on an empty stomach, so give this a go upon waking, or sometime before breakfast.

Sit upright on a seat. Place your right thumb over your right nostril and inhale through your left nostril. Hold, then exhale through the left nostril. Once you have fully exhaled, release your right thumb and then cover your left nostril with your ring finger. Inhale in through your right nostril and exhale, before going back to the start and repeating the whole exercise. Aim to start with 60 seconds and work up to doing this breath work for three minutes.

BOX BREATHING

This is great for on-the-go or when you’re sitting at your desk and in need of a quick relaxation technique.

Start by sitting comfortably and exhale deeply, to empty the lungs. Then, inhale for a count of four through the nose, hold the breath for another four, then exhale again through the mouth for a count of four. Try to do this continually for at least 60 seconds, then in time, work your way up to three minutes.

4-7-8 BREATHING

Try this in a seated position or even lying down on the sofa in the evening.

Take your left hand and place it on your stomach and take your right hand and place it on your chest. Close your eyes as you inhale for a count of four, feeling your stomach expand as you do so. Hold this breath for seven seconds.

Then, exhale out for a count of eight. Try and do this 10 to 15 times and you should notice your breathing rate start to slow down.

Access to Counsel in Evictions in Maryland A MONUMENTAL ACHIEVEMENT FOR ACCESS TO JUSTICE

THE AMERICAN JUSTICE SYSTEM is built on the notion that courts can fairly adjudicate and resolve legal issues so long as each party, either personally or with the help of a legal representative, is afforded the opportunity to plead their case or assert their rights. Unfortunately, in a civil justice system where individuals that cannot afford a lawyer are left to represent themselves, the system not only produces inequitable and disparate outcomes, it also fails to fulfill a core American promise—justice for all.

Many would agree that there are laws on the books that do a great deal to protect the rights of the vulnerable, but it is also worth noting that those same laws are seldom used by the people they are meant to protect, unless an attorney is involved. In fact, most Americans experiencing civil legal issues (e.g., issues related to rental housing, public benefits, and consumer debt) receive little to no legal assistance. A recently released Justice Gap Report from the Legal Services Corporation (LSC) notes that for 93% of the civil legal problems reported, low-income Americans received inadequate or no legal help. That being said, it’s clear to see that the existing framework gives rise to a justice gap that exacerbates the plight of low-income families.

Another facet of the civil justice system is the civil legal aid community which plays an enormous role in providing assistance to individuals and families with civil legal issues. Everyday, civil legal aid providers, and the legal professionals they staff, help vulnerable individuals and families in a number of ways, including for example, by providing counsel in eviction cases to help families avoid homelessness, or assisting individuals to apply for vital food and/or unemployment benefits or helping

For 93% of the civil legal problems reported, lowincome Americans received inadequate or no legal help.

individuals appeal wrongful denials of public benefits. Unfortunately however, these organizations face budget challenges that affect everything from recruitment and retention to availability of resources. The consequence has been that while millions of low-income American families are eligible to receive legal assistance, budget constraints have made it so that many who are eligible for and need civil legal help are unable to obtain it. Moreover, LSC, which currently serves as the nation’s single largest funder of civil legal aid for low-income individuals, has reported “that LSC-funded organizations are unable to provide any or enough legal help for 71% of the civil legal problems brought to them; this translates to an estimated 1.4 million problems over the course of a year.” All this

means that oftentimes vulnerable individuals and families that come into contact with the civil justice system emerge worse off due to lack of legal representation or assistance. Consider some of the facts that have been reported, for example: 95% of debt cases are resolved in favor of collectors, and where collectors unscrupulously seek to garnish the wages of individuals who also serve as the financial head of their household, the effect is often that the family is unable to make rent at the end of the month and is vulnerable to eviction, food insecurity, or worse.

Only 37% of all immigrants and 14% of detained immigrants go to court with lawyers at their side.

Only 37% of all immigrants and 14% of detained immigrants go to court with lawyers at their side. This means that most individuals must learn complex immigration rules and assert their legal rights for themselves, oftentimes with language as a barrier and under constant fear of being detained or deported or leaving family behind with no financial support.

On average only 3% of tenants are represented in eviction proceedings as compared to 81% of landlords. The result is a court system that puts ordinary people, and particularly those unable to afford a lawyer, at risk of homelessness and poverty. Moreover, the effects of displacement are disproportionately felt by female Black and Latino renters.

RIGHT/ACCESS TO COUNSEL GAINS MOMENTUM ACROSS THE COUNTRY

These fact patterns are only part of the picture. It has become increasingly clear that access to legal assistance leads to more equitable outcomes for assistance to individuals and families facing hardship and poverty.

The Access to Counsel Movement

Civil justice proponents have long argued that individuals ought to have access to legal representation where basic necessities are at stake in a court case (e.g., housing, public benefits, or healthcare). This is because for many, civil proceedings can be precipitous events that lead to housing insecurity, food insecurity, and financial insecurity. Recognizing these impacts, some state and local governments were early to implement programs aimed at ensuring legal representation for low-income individuals. In Maryland, the result has been a series of locality specific access to counsel laws and programs. For example:

In December 2016, Prince George’s County Council passed a resolution, establishing a legal representation program for

The city of Baltimore made history by becoming the seventh jurisdiction in the nation to provide a right to counsel for tenants in eviction cases.

detained county residents facing deportation and sought to improve language access for government services. The county selected two local civil legal aid providers, the Capital Area Immigrants’ Rights (CAIR) Coalition and CASA de Maryland, to implement the program. In June 2020, funding from the Immigrant Justice Corps (IJC), along with additional County funding helped to ensure the program could provide representation for every detained and unrepresented person in Prince George’s County.

In December 2020, in response to the growing eviction crisis brought about by the pandemic, the city of Baltimore made

Statewide right/access to counsel.

on right/ access to counsel, but with restrictions.

GEORGIA

history by becoming the seventh jurisdiction in the nation to provide a right to counsel for tenants in eviction cases after reports found that nearly 96% of landlords had legal representation in eviction-related court matters, while just 1% of tenants did.

The COVID-19 Pandemic and Expansion of Access to Counsel Programming in Maryland

The debate around how to go about addressing the inherent issues in the civil justice system is not a new one, but perhaps no other event put the systemic inequities of the system on display as the COVID-19 pandemic. Moreover, out of the many responses and recommendations to address civil legal issues exacerbated by the pandemic, access to counsel programs have emerged as a winning strategy for ensuring and advancing justice for the nation’s most vulnerable communities.

For example, in response to the pandemic the Maryland Attorney General’s Office together with the Maryland Access to Justice Commission convened a COVID-19 Task Force of high-level and diverse leaders from across the state to examine the pandemic’s impact on Marylanders and to make recommendations on how to deploy the legal system in response. Many of those recommendations were taken up by the legislature and transformed into law. One such recommendation was the creation of the statewide access to counsel in evictions program.

In addition to securing funding and data collection resources for the program, the 2021 Legislative Session saw a number of advancements in the access to counsel space as bills in the areas of immigration, and foreclosure were introduced by lawmakers and strongly supported by advocates in the civil legal aid community.

IMMIGRATION. Notably, not only is the immigration court system overrun with a backlog of nearly 1.6 million cases, but most individuals navigate the system alone and without a lawyer. In light of the apparent

issues, Maryland’s lawmakers introduced bills that would establish and fund a statewide Access to Counsel in Immigration Proceedings Program. The program, which was strongly supported by the civil legal aid community, would have ensured legal representation for residents of Maryland subject to removal from the United States.

FORECLOSURES. As pandemic protections have ended, foreclosures across the country have steadily begun to rise with reports listing Maryland as one of the top 10 states with the highest rates of foreclosure in 2021. In response, state lawmakers introduced legislation that sought to establish and fund the Access to Counsel in Foreclosure Proceedings Program which would have ensured that low-income individuals had access to legal representation in certain foreclosure proceedings.

Access to Counsel Movement on the Horizon

Though neither bill passed, both bills worked to drive the discussion around expanding access to counsel programming to ensure equity and justice for Marylanders across the state. Nationwide, the access to counsel movement has seen the biggest expansion in the eviction and housing space. To date, city governments in New York, Newark, and Cleveland have all established laws that ensure legal representation for low-income residents, with other jurisdictions providing legal representation to renters facing eviction without income-eligibility requirements (e.g., San Francisco, California; Boulder, Colorado; and Kansas City, Missouri). Moreover, cities that passed access to counsel legislation have reported seeing a consistent drop in evictions. These outcomes that not only demonstrates the benefits that ensuring access to counsel can have for individuals, families and communities as a whole, but also makes the case that access to counsel programs are an effective tool in the fight for a more just and equitable civil justice in America.

Maryland’s lawmakers introduced bills that would establish and fund a statewide

Access to Counsel in Immigration Proceedings Program.

Donald Tobin

Reflects on His Time as Law School Dean and His Perspective on A2J

DONALD B. TOBIN SERVED AS DEAN of the University of Maryland

Francis King Carey School of Law from 2014 until August 2022, an accomplishment he describes as one of the greatest honors of his life. Notably, Tobin joined the law school as Dean just months before the Baltimore community was embroiled in the controversy surrounding the death of Freddie Gray and, coincidently, Tobin stepped down as Dean after having lead the law school through the earliest stages of the COVID-19 Pandemic—two very different, but equally transformative, time periods.

Before taking interest in a career in the legal profession, a younger Tobin had political aspirations. Those aspirations lead him to a job on Capitol Hill working for Paul Sarbanes, who was a U.S. Senator for Maryland at the time. Tobin recalls how working on the Hill allowed him to see firsthand how laws had the power to impact and change people’s lives. “At one point in my career, we succeeded in establishing new extended unemployment benefits during the Bush administration,” Tobin said, “and afterwards we saw the stories of the millions of people who benefited and the real need for those changes given the existing recession at the time.”

Photo courtesy of Travis Marshall Photography

“ I loved the vision of a school that wanted to train the next generation of great lawyers to help lift people up.

Tobin believes his time on the Hill and his experience witnessing how law could transform the lives of millions was a key factor in his decision to attend law school. Later, Tobin would earn his JD from Georgetown Law Center, before going on to clerk for Judge Francis D. Murnaghan, Jr., on the Fourth Circuit Court of Appeals. Thereafter, he would go to work for the U.S. Justice Department as a tax litigator. “People often ask me, why tax? But on the Hill, when I worked on the Budget Committee, I did macro tax issues and I saw the way in which tax policy was being used or could be used to help people. At the time we had worked on the expansion of the Low Income Tax Credit, which is now one of the most important economic assistance tools for low income families.”

Tobin’s next transition found him moving from the Justice Department to an associate dean position at The Ohio State’s Moritz College of Law. It would be over a decade before he’d go on to join UMD’s Carey School of Law as Dean in 2014. “[When] the deanship at Maryland came open I [saw it as] an opportunity for me to return to my roots and . . . more importantly, I just loved the vision of the law school. I loved the vision of a school that wanted to train the next generation of great lawyers to help lift people up. As an example, Tobin pointed to the school’s regaled Cardin Requirement, which came to fruition after then-Congressman Ben Cardin advocated for all the law schools to take part in access to justice solutions across the state. As a result, UMD adopted the requirement which says that every full time law student should engage in an activity, usually a clinic, that promotes access to justice. “It's a core part of who we are at the school, which means students gain experience in helping others as part of their law school experience. The reason why I think [the Cardin Requirement] is so transformative

is because . . . it provides a level of empathy but also a level of understanding that really can make you passionate about making helping others a component of your responsibility as a lawyer,” Tobin said.

When asked how the different roles throughout his career have helped lead and guide him through his time as Dean, Tobin explained that “there are very few things that could prepare you for this job,” and described the legal profession as “a transformational process, not just because law is constantly changing, but because you're constantly changing and gaining skills that force you to think about the places that you want to make an impact in the world.”

For Tobin, the transformational process will continue as he looks to make a lasting impact in the law school arena once more, this time as a member of the law school’s faculty next fall.

MSBA Executive Director Victor Velazquez said that "Dean Tobin personally welcomed me when I arrived on the scene five years ago. He’s been masterful at connecting the dots within the legal community in Maryland and beyond. His contributions will leave a lasting legacy, and the MSBA is both thankful for all he's done, and thankful that we will continue to work with him in the future.”

Bridging the Affordability Gap1

BY HON. NEIL M. GORSUCH

At some point just about every American will interact with our civil justice system. Whether it happens because of an eviction, a custody battle, a tort suit, or a contract claim, one thing is clear: Legal disputes are just as much a part of life as death and taxes. Yet today, legal services are increasingly difficult to obtain.

A 2017 study found that low-income Americans fail to obtain adequate professional assistance with their legal problems 86% of the time.2 The vast majority don’t even try to obtain professional help3, and those who do are often turned away.4 According to another study, at least one party lacks legal representation in nearly 80% of civil cases in this country.5 The root cause for this state of affairs is not hard to discern: Legal services are expensive. Lawyers charge hundreds of dollars per hour for even the simplest of legal services.6 Even a single legal bill can prove financially devastating to many Americans. Doubtless, a variety

of factors contribute to the high cost of legal services today—but let me focus on one. It’s one I have written and talked about for some years and in greater depth elsewhere.7 We lawyers enjoy a rare privilege. We are largely left to regulate our own market. But self-regulation carries with it the risk of self-protection. Charles Dickens once famously lodged this very complaint against English lawyers, claiming: “The one great principle of the English law is, to make business for itself.”8 And it’s hard not to ask whether certain of our self-imposed professional rules may not always do as much to serve our clients as ourselves. Consider

1 This article was originally published in the April 2022 Wyoming Lawyer and is reprinted here with permission from the Wyoming State Bar and Justice Gorsuch.

2 See Legal Services Corporation, The Justice Gap, at 6 (2017).

3 See id., at 7 (noting 80% of low-income Americans fail to secure legal help when they seek it)

4 See id., at 6 (citing struggles by legal aid organizations to offer support for those seeking it).

5 See Jason Solomon, Deborah Rhode, & Annie Wanless, How Reforming Rule 5.4 Will Benefit Lawyers, Promote Innovation, and Increase Access to Justice, Stanford Center on the Legal Profession, at 1 (2020).

6 See ibid.

7 See, e.g., Neil M. Gorsuch, A Republic If You Can Keep It (2019).

8 2 Charles Dickens, Bleak House 118 (1853).

three examples. First, under current rules an aspiring lawyer generally must spend seven years in higher education: four expensive years in college and three even pricier years in law school. College costs have been skyrocketing for decades, rising 169% between 1980 and 2019.9 Law students have it even worse, with costs having tripled between 1985 and 2019.10 Today, it seems that the average student walks out of law school burdened with over $145,000 in student loans.11 Is it any wonder that members of the bar now sometimes hesitate to serve low-income clients and often charge high prices that many Americans can’t afford? It’s unclear, too, whether this expensive, one-size-fits-all approach to legal training best serves our clients’ needs. Once law students graduate, they take very different paths. And a lawyer helping clients navigate family or small-claims court may have different educational needs than a future intellectual property litigator. Yet our professional rules today force students to train “in areas in which [they] will never see a single client.”12 It may not be a “bad thing for every law school graduate to be equally prepared to represent a criminal on death row, draft a will or negotiate a public offering of securities.”13 But is it sensible? Our friends in the United Kingdom don’t think so. There, students may study law as undergraduates and receive a basic law degree in just three years, with optional graduate programs focusing on specialty areas.14 The nub is that it is substantially less expensive to become a lawyer in England than in the United States15. By making legal education more diverse and affordable, we might enable lawyers to serve more diverse clients more affordably. Second, our

Law

students have it even worse, with COSTS having TRIPLED between 1985 and 2019.

professional rules permit only fully accredited lawyers to engage in “the practice of law."16 At some level, this rule makes sense. A client facing a complex trial in state or federal court probably should retain a qualified trial lawyer. But is that rule necessary when it comes to simpler tasks? The case of LegalZoom is instructive. The company sells standard legal forms at cheap prices many people find attractive.17 Yet protectionist efforts have been made in several states to prohibit LegalZoom from offering services.18 Contrast this with how other professions operate. We do not require surgeons or those with medical degrees to answer patients’ most basic health questions; just consider the vital role that nurse practitioners and physician assistants play. Some states are beginning to reconsider our profession’s strict rules requiring a lawyer for every legal task. Starting in 2021, Arizona began licensing a new category

9 See Abigail Hess, College Costs Have Increased By 169% Since 1980—But Pay For Young Workers Is Up By Just 19%: Georgetown Report, CNBC (2021).

10 See Andrea Fuller, Josh Mitchell & Sara Randazzo, Law School Loses Luster as Debts Mount and Salaries Stagnate, The Wall Street Journal (2021).

11 See Anna Helhoski & Ryan Lane, Student Loan Debt Statistics, NerdWallet (2022).

12 See Jennifer S. Bard & Larry Cunningham, The Legal Profession is Failing Low-Income and Middle-Class People. Let’s Fix That, Washington Post (2017).

13 Ibid.

14 See generally Gorsuch, supra, at 265–266; The Lawyer Portal, Difference Between Solicitor and Barrister (last visited Feb. 15, 2022).

15 See Gorsuch, supra, at 265–267.

16 See Model Rule of Professional Conduct 5.5.

17 See Comment, Caroline Shipman, Unauthorized Practice of Law Claims Against LegalZoom— Who Do These Lawsuits Protect, and Is the Rule Outdated?, 32 Geo. J. of Legal Ethics 939, 942, 955 (2019).

18 See id., at 940–941.

Affordability Gap by the Numbers 86% of the time low-income Americans fail to obtain adequate professional assistance with their legal problems

169% increase in the cost of college between 1980 and 2018

NEARLY 80% of civil cases have at least one party with out legal representation

Innovation is essential if our profession is to make the benefits of the rule of law real in the lives of the American people we are privileged to serve.

of non-lawyer legal professionals who must meet certain educational and training standards short of bar membership.19 These individuals may assist with relatively straightforward legal matters like “finalizing an uncontested divorce, obtaining a temporary restraining order, drafting a will, contesting traffic tickets, handling landlord-tenant disputes, and other similar legal tasks.”20 Utah is experimenting with a similar program with licensed paralegal practitioners.21 Early reports suggest that these professionals are able to provide legal services at a fraction of the cost of a lawyer.22 Third, we generally prohibit non-lawyers from financing legal services or partnering with lawyers. Without question, this

restriction is well-intentioned—designed to ensure lawyers are not influenced by the demands of investors when representing their clients.23 But there is little question that the rule also “contributes to the low innovation and high cost of services that characterize the U.S. legal market today.”24 Other industries—medical, financial advising, and tax preparation—lower consumer costs by accepting outside investors. They do so while managing the risk of undue investor influence through regulations short of a total ban on outside investors. It is not altogether clear why we could not do the same. Our profession already guards against other kinds of potential conflicts without insisting on total bans. For example, third parties are allowed to pay for a client’s legal representation subject to certain rules.25 Once more, too, the United Kingdom may supply an example. Since 2007, it has permitted non-lawyers to invest in law firms—called Alternative Business Structures (ABSs)—subject to carefully drawn rules.26 In this country, Arizona has likewise experimented with ABSs.27 Although these models are relatively new, early evidence seems to suggest that ABSs can offer legal services at substantially lower prices than traditional law firms.28 Justice Brandeis observed that it “is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory” for “novel social and economic experiments.” 29 I congratulate states like Wyoming, Arizona,

19 See Kyra Haas, New Legal Profession Starting in Arizona, Associated Press (2021).

20 See Maya Steinitz & Victoria Sahani, New Arizona Law Practice Rules May Jump-Start National Reform, Law 360 (2021).

21 See Licensed Paralegal Practitioner, Utah Courts (last visited Feb. 12, 2022).

22 See Annie Knox, How a New Program Connects Utahns to Lower-cost Legal Advice, Deseret News (Feb. 17, 2020).

and Utah, and innovators like Justice Lynne Boomgaarden, for taking up that challenge and exploring new avenues to enhance access to justice. Self-regulation comes with special responsibilities. One of them must be an openness to experiment with new ways to better serve our clients and communities. Innovation is essential if our profession is to make the benefits of the rule of law real in the lives of the American people we are privileged to serve.

Neil M. Gorsuch, Associate Justice, was born in Denver, Colorado, August 29, 1967. He and his wife Louise have two daughters. He received a B.A. from Columbia University, a J.D. from Harvard Law School, and a D.Phil. from Oxford University. He served as a law clerk to Judge David B. Sentelle of the United States Court of Appeals for the District of Columbia Circuit, and as a law clerk to Justice Byron White and Justice Anthony M. Kennedy of the Supreme Court of the United States. From 1995–2005, he was in private practice, and from 2005–2006 he was Principal Deputy Associate Attorney General at the U.S. Department of Justice. He was appointed to the United States Court of Appeals for the Tenth Circuit in 2006. He served on the Standing Committee on Rules for Practice and Procedure of the U.S. Judicial Conference, and as chairman of the Advisory Committee on Rules of Appellate Procedure. He taught at the University of Colorado Law School. President Donald J. Trump nominated him as an Associate Justice of the Supreme Court, and he took his seat on April 10, 2017.

23 See ABA, Model Rule of Professional Conduct 5.4 cmt 1 (“These limitations are to protect the lawyer’s professional independence of judgment.”).

24 See Solomon, Rhode, & Wanless, supra, at 2.

25 See, e.g., American Bar Association, Best Practices for Third-Party Litigation Funding, at 10–18 (2020).

26 See, e.g., James Peters, Pandora’s Box or Panacea? Lessons from the U.K.’s Liberalization of Law-Firm Ownership, Forbes (2014).

27 See In re: Arizona Code of Judicial Administration 7-209: Alternative Business Structures, Admin. Order No. 2020–173 (Az. 2020).

28 See, e.g., Peters, supra.

29 New State Ice Co. v. Liebmann, 285 U.S. 262, 386–387 (1932) (Brandeis, J., dissenting).

CALL FOR CONTENT!

SHARE YOUR EXPERTISE. ELEVATE YOUR PROFESSIONAL PROFILE.

THE

MARYLAND

STATE BAR ASSOCIATION ANNOUNCES ITS 2022 CALL FOR CONTENT!

As Maryland’s top content provider for legal professionals, we want to make your content available to our members — and spotlight your professional expertise.

We invite you to submit proposals for substantive law articles, white papers, blog posts, checklists, practice tips, books, contributions to existing books, and webinars. We want to hear your ideas!

We welcome a wide variety of contributors and topics. Our sta can produce your written, audio or video content on multiple MSBA delivery platforms.

Your proposal related to one or more of the following topics will be given increased consideration:

Alternative Dispute Resolution/Mediation

Corporate/Transactional Law

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Cybersecurity/Technology

Energy/Environmental

Ethics

Government

Healthcare

Leadership & Practice

Real Property

Management

There is no submission deadline. Feel free to submit more than one proposal using our online content idea portal to

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Career Highlights

Career Transitions

What I’ve Learned

Leaders in the profession sharing their successes and advice with the next generation of attorneys.

Attorneys sharing their experience of moving between legal sectors or advancing into

Off the Beaten Path Professionals finding non-traditional ways to put their

John Patrick Kudel

PAST PRESIDENT, MSBA

“

I asked my dad what the 'lawyer' did, and replied, 'he helps people.' From that point on, I wanted to be a lawyer."

Photo courtesy of Mitro Hood Photography

UNDERSTANDING THE HUMAN CONDITION

JOHN PATRICK KUDEL WAS PRESIDENT OF THE MSBA from 2012 to 2013. He credits the MSBA with opportunities to network throughout the State, which enabled him to form relationships that are essential to his practice. “If I had not participated in the MSBA to the extent that I did, I would have missed out on many memorable experiences and many cherished relationships.”

Why did you enter the legal profession? At age 11, I went with my parents to an appointment with our local lawyer in smalltown Pennsylvania. My recollection is that it had something to do with a deed. I was brought into the library and offered a soda. I was in awe of the many law books and heavy dark furniture. When we left, I asked my dad what the “lawyer” did, and replied, “he helps people.” From that point on, I wanted to be a lawyer.

What is the best piece of advice you have received from someone in the legal profession?

In my second year of practice, an experienced lawyer who was supervising me suggested I should read a document once, then a second time, and maybe even a third time. I should then put it aside and come back to it later. He assured me that when I returned to the document, I would see something that I hadn’t seen before. It works every time.

What makes you unique in your profession?

I have a good understanding of the human condition. Over my 42-year career, I have given thousands of criminal clients an opportunity, through advice, counseling, and advocacy, to make amends to society and their communities and to have a “fresh start.” Many who find themselves on the wrong side of the law are law-abiding citizens who end up there due to unforeseen circumstances,

sometimes beyond their control. They are not necessarily bad people; they simply do bad acts. A person who does this work must have an abundance of empathy and patience.

What do you enjoy most about your career?

When a client comes to see me, it is usually their darkest hour. They fear punishment and are uncertain of what comes next. Usually, they feel much better after our initial contact, during which I read their charges, obtain as much information about them as I can, and suggest a plan. Throughout representation, I get to know them better and slowly begin to establish a level of trust. In the end, if the person is successful, the appreciation I receive from them is what I enjoy most about my career.

How has the MSBA helped you in your legal career?

The keys to success in the practice of law, especially the practice of criminal law, are the relationships that one makes in the legal community. This includes relationships with other lawyers, judges, and the many people that make up the Criminal Justice system, including court clerks, bailiffs, probation officers, sheriffs, police officers, corrections officials, and support staff. My MSBA membership allowed me to be introduced to lawyers and judges whom I would have never met. Many contacts turned into friendships that exist today.

What is an interesting fact about you that no one would guess?

For the first 67 years of my life, I believed my ancestors were German and Austrian on my father’s side and Spanish and Filipino on my mother’s side. My parents met and married in the Philippines before World War II. My father was captured by the Japanese and held in a POW camp for nearly four years. He was liberated in 1945 and reunited with my mother. They returned to the U.S. in 1945. I was born in 1952 and grew up as an only child.

In 2019, I submitted a DNA swab to Ancestry.com and learned that my ancestors were from Italy and Mexico! In the following days, I was contacted by a woman from El Paso, Texas, my birthplace, informing me that she was my sister and that I had four other sisters. Apparently, it was not uncommon during that time for babies to be switched at birth or kidnapped. My mother kept the secret that I was adopted for almost 50 years, until her death in 2001, and my biological mother was told that I did not survive childbirth. She passed away in 2014.

Name three words that describe you. Hard-working, compassionate, and kind.

Photo courtesy of Mitro Hood Photography

HEALTH CHALLENGES HAVEN'T STOPPED HIM

WHEN MARC R. KIVITZ isn’t helping clients solve their bankruptcy issues, he is busy finding ways to give back to the legal profession. One of his recent contributions comes in the form of a book published by the MSBA entitled “Judgment Avoidance—Exemption and Lien Stripping: What Every Maryland Attorney Should Know.”

Kivitz is a sole practitioner whose bankruptcy practice has helped Marylanders tackle bankruptcy and reorganization issues for over 40 years and a founding member of the MSBA Consumer Bankruptcy Section. In addition to representing clients, Kivitz writes materials and presents seminars on topics like bankruptcy, exemptions and asset protection, lien stripping and modifications, and judicial and statutory liens both outside and inside the U.S. Bankruptcy Court system.

“I wake up each day and try to help someone through the continued practice of law,” Kivitz says, and “I enjoy teaching and research and sharing with others what I have learned.”

Why did you enter the legal profession?

To help others. I am named after my late mother’s father, Morris Cowell, who passed away before I was born. Growing up in New Jersey, my grandma Lily, my late mother’s mother, called me “her Philadelphia lawyer”—not knowing that I would years later live in Baltimore.

How did you choose your current practice area?

I graduated Magna Cum Laude from the University of Maryland, College Park, in August 1976 with a B.A. in Economics. After that, I headed off to the University of Maryland School of Law. There, bankruptcy law melded together well with my undergraduate degree, and my interest in bankruptcy law grew out of my having had the privilege of serving as

the first Law Clerk to the late Honorable Harvey M. Lebowitz, who presided over the U.S. Bankruptcy Court for the District of Maryland from September 1979 to October 1980.

Tell us a little bit about your current role. I am a proud grandpa to two grandsons, Graysyn (22 months) and Ayden (1 month), a husband to my wife Mindy, a dad to Samantha, Jared, and Ryan, and a father-in-law to Miranda. In addition, I have been a sole practitioner of bankruptcy law for the past 43 years.

What is your fondest memory of your legal career?

One of my fondest memories to date is having had the honor of receiving the Judge Paul Mannes Award from the Bankruptcy Bar Association, Inc., for contributions to the betterment of bankruptcy practice.

What is the best piece of advice you have received from someone in the legal profession?

One of the best pieces of advice I’ve received comes from the late Honorable Harvey M. Lebowitz: “There is no substitute for reading everything.”

What challenges have you faced and how did you overcome them?

I have low vision; I was born with congenital cataracts and had eye surgeries in 1962,

1965, 1975, and 1996. I got my driver’s license in 1996 just prior to turning 43 but did not renew it after 2015 when my vision changed again. I’ve also been challenged with three different cancers (in 1975, 2016, and 2018). However, I am not a complainer by nature, and the wisdom of my late parents is always to do the best that I can do irrespective of how it might compare to others, and that’s what I have done.

What’s your favorite hobby?

One of my favorite hobbies is singing (tenor, baritone, and bass) with several choirs. For the Baltimore City Bar Association Senior Legal Services fundraisers over the past several years, I have sung Billy Joel’s “And So It Goes,” Roy Orbison’s “Cryin’,” and Bobby Hatfield of The Righteous Brothers’ “Unchained Melody.”

What’s an interesting fact about you that no one would guess?

I wrote my General Honors Thesis on "Black Holes: End-Product of Massive Stellar Evolution.”

What’s your favorite vacation spot?

My favorite vacation spot was Ocean City, Maryland. Now, my favorite vacation spot is Millville, Delaware, at our new beach house we built last June near Bethany Beach.

Heather Warnken

CENTER FOR CRIMINAL JUSTICE REFORM, UNIVERSITY OF BALTIMORE SCHOOL OF LAW

A NONTRADITIONAL PATH, A DREAM REALIZED

BY COLLEEN ARACRI, ESQ.

IN THE MARYLAND LEGAL COMMUNITY, the Warnken name is synonymous with expertise in criminal law. Known as “Mr. UB,” Byron Warnken, who passed away September 5, 2022, taught at the University of Baltimore Law for 45 years before retiring in 2018. Professor Warnken’s treatise, Maryland Criminal Procedure, is widely regarded as the go-to resource for Maryland criminal attorneys; the MSBA is honored to be publishing the second edition of the treatise later this year.

While many attorneys cite Professor Warnken as a source of influence and inspiration, the knowledge he imparted to his daughter, Heather Warnken, is immeasurable. One of the greatest lessons he taught her is what a superpower it is to care deeply about something in a culture of apathy. Warnken, a Maryland attorney, took her father’s directive to heart and has made a career out of addressing the harm caused by the inequities of our country’s criminal legal system. She recently joined the Center for Criminal Justice Reform at the University of Baltimore Law School (the Center) as its Executive Director; since she stepped into her new role, she feels her father’s presence and the impact of his legacy daily.

A graduate of the University of California, Berkeley School of Law, Warnken has spent her career focused on breaking down the dichotomy between how society views crime victims and people who have touched the criminal and juvenile legal system. Her experience includes clerking for the Hon. Joseph F. Murphy on the Court of Appeals of Maryland and working on criminal justice reform issues at the Warren Institute on Law and Social Policy, a research center at University of California, Berkeley School of Law. She subsequently served as a visiting fellow at the U.S. Department of Justice, working under three presidential administrations. She was in the first position dedicated to bridging the gap between research, policy, and practice, to improve the response to crime victimization and communities impacted by violence.

Warnken says obtaining the position of Executive Director

for the Center is a dream realized. She is passionate about her new role, not only because it allows her to continue to work on criminal justice reform that can have a meaningful positive impact on people's lives in real-time, but also because it gives her the chance to cultivate meaningful chances for law students to have a hands-on, real-world impact.

Like many others, Warnken did not want to litigate but was looking for multidisciplinary ways to use her law degree. She believes the more you empower students to take nontraditional paths, the better. The Center creates opportunities for students to get involved in multidisciplinary problem-solving work, which Warnken hopes will impart a responsibility to use their law degrees for change and to confront injustice. She anticipates that the Center will add to the University of Baltimore Law School’s nationally renowned reputation for its student clinics by creating opportunities for policy reform work.

The Center aspires to lift the voices of those directly impacted by criminal justice issues and aims to heal the harm and inequity created by the criminal legal system in this country. It also seeks solutions that promote public safety. Warnken brought two grant-funded projects with her to the Center that focus on addressing and reducing violence, specifically gun violence, in ways that shrink the footprint of the criminal legal system rather than contribute to mass incarceration.

While the Center engages in efforts to address issues relating to the intersection of crime and trauma nationally, its work is community-driven, and its obligation is first and foremost to

The Center aspires to lift the voices of those directly impacted by criminal justice issues and aims to heal the harm and inequity created by the criminal legal system in this country.

be of service to communities in Baltimore and Maryland. One challenge the Center faces is how to proactively build an agenda of work around specific issues in ways that will make the most impact while also being reactive to the requests of the communities that are already deeply engaged in leading that work.

Although rewarding, Warnken says her work has challenges. The biggest professional obstacle she currently faces is how to bring a consistent practice of ongoing learning and humility and an anti-racist lens to her work as a white woman in a leadership position. She strives to be in an ongoing mode of listening to and learning from those directly impacted by the work she does and to deepen the tools she has to bring an anti-racist lens.

In addition to her father, Warnken counts Nancy Lemon, one of her professors at the Law School at UC Berkeley, as a mentor. Lemon had a lasting impact on Warnken because she encouraged her students to be human and created a space for them to do so when the prevailing view was that attorneys should not bring their personal experiences to their legal practice. Warnken wants to carry on Professor Lemon’s message and convey to students that caring does not make them any less capable of rigorous law and policy analysis and advocacy; if anything, it makes them much more well-positioned to work as attorneys for the long haul.

Photo Courtesy Of Travis Marshall Photography

Brooke Lierman

MARYLAND STATE DELEGATE & CANDIDATE FOR MARYLAND COMPTROLLER

Lierman believes lawyers are uniquely situated as legislators in that they observe the law in action and can see whether laws have their intended effect.

Photo courtesy of Christopher Myers Photography

USING HER LEGAL BACKGROUND TO LEGISLATE & LEAD

BY COLLEEN ARACRI, ESQ.

ATTORNEYS POSSESS a greater knowledge of the implications of laws and regulations than the average person. Still, few Maryland attorneys run for the General Assembly and other elected positions that impact how the government operates. In the 2022 elections, only one attorney, Brooke Lierman, is running for the Office of Comptroller. Lierman, who has served as a Delegate in the Maryland General Assembly for the past seven years, has dedicated her career to being an effective and persistent advocate, both on behalf of her clients and the people of Maryland.

Lierman’s interest in the law began when she was in high school, but she credits two experiences that occurred when she was a student at Dartmouth College for showing her the importance of advocacy: she helped start a mentoring program for children who lived in a nearby public housing development, and she was raped and brought charges against her assailant within the confines of the college legal system.

Lierman did not go straight to law school after college, but a desire to work with and advocate for people kept calling her. She eventually decided that she wanted to advocate for people full-time, and obtained her law degree from the University of Texas School of Law.

After graduating from law school, Lierman clerked for the Chief Judge of the District Court of Maryland and then joined Brown, Goldstein & Levy after connecting with Chris Brown at an event called Justice for Breakfast. Lierman was the first lawyer in her family, and she didn't know any lawyers in Baltimore outside of her colleagues. She attended an MSBA convention early on in her career and found it to be a refreshingly eye-opening experience that exposed her to many other lawyers engaged in efforts to make the profession better. She thinks the MSBA is a vital force for good in the state and our communities.

To Lierman, her job as an attorney is to provide the legal tools to ensure that the people who wronged her clients are held accountable. Her clients have included workers in wage disputes, deaf college students whose rights are being denied by universities, and blind individuals who have not been granted their rights under the Americans with Disabilities Act, among others.

Lierman says that her pro bono work for the Homeless Persons’ Representation Project and the Community Law Center opened her eyes to a lot of inequities and challeng-

es in Baltimore that, in her view, were often caused by state law or a failure of state programs. She spoke with her colleagues and friends in different community groups and ultimately decided that she wanted to represent the people of Baltimore, to try to right some of the wrongs at a state level. She announced her candidacy for Delegate in July 2013; she won her election and was sworn in in January 2015.

Lierman has found being an attorney to be a real asset to her work as a legislator. She knows how to read the Maryland Code and review regulations and has the professional

As a Delegate, Lierman served on the Appropriations Committee and is House Chair of The Joint Committee on Pensions. She decided to run for Comptroller—the elected chief accountant for Maryland—because she saw it as an opportunity to play an essential role in ensuring Maryland is supporting financially stable workers and families, growing businesses, and creating thriving communities.

Lierman says the Comptroller's office is uniquely situated in that it tackles the economic challenges and income-based issues that Marylanders face and can positive-

Lierman advised any working lawyers considering running for office to figure out not only how they will balance their practice and the 90 days the General Assembly is in session but also how they will handle their responsibilities as a Delegate for the rest of the year.

experience to understand the implications of pending legislation. She believes lawyers are uniquely situated in that they observe the law in action and can see whether laws have their intended effect. She thinks it is important for lawyers to be engaged in the advocacy process to help make sure that the injustices that legislators are trying to correct are being addressed with minimal unintended consequences. There are few attorneys in elected roles in Maryland, however. Lierman attributes this to the fact that “it is incredibly challenging to be a zealous advocate for your client while juggling the demands of being a [legislator].” She advised any working lawyers considering running for office to figure out not only how they will balance their practice and the 90 days the General Assembly is in session but also how they will handle their responsibilities as a Delegate for the rest of the year.

Being in the General Assembly has been one of the honors of Lierman’s lifetime, and she believes she has been uniquely effective in part because her background in litigation has helped her understand some of the challenges Marylanders face. She is proud of her work on the ground in Baltimore, which has helped build schools and rec centers. Her work with World Central Kitchen during the pandemic helped to feed people and support small restaurants so that they could stay in business. She is also proud that she is the person her constituents turn to when they need something because they know she will show up for the community and be effective.

ly impact the lives of nearly every Marylander and support an inclusive business climate. The only attorney running for Comptroller, Lierman believes her legal background helps her understand the breadth of the Comptroller’s legal and fiduciary responsibilities.

If elected, Lierman plans to “bring a bold new vision to the office and work for and with all of Maryland.” She believes the office needs to be present and proactive and work with Marylanders on an individual and a business level. She would work on ensuring that the Comptroller has a taxpayer advocate office and that small businesses get the support that they need. She would go out into the community and work with Marylanders to provide access to financial literacy work, tax preparation services, and small business services, and make sure the resources of the Comptroller are available to the people of Maryland.

Noting the massive infusion of money from the federal government Maryland will receive under the Infrastructure Act, Lierman emphasized there is one opportunity to make sure the money is spent in the next four years in a manner that improves Maryland for the next 40 years. The Comptroller needs to ensure Marylanders are getting the best value for every dollar spent. That means, in part, upholding minority business enterprise requirements, supporting Maryland-based businesses, keeping money local, thinking through the challenge of climate change, and building things that will be sustainable over the long term.

ETHICS, CIVILITY & PROFESSIONALISM SYMPOSIUM

Foundational Principles for the Profession's Future

Join experienced faculty, including Bar Counsel Lydia Lawless, who will discuss the impact of implicit bias and more, to a transactional attorney answering the question “who’s my client” in multi-party deals, to common (and new) challenges faced by estate planning attorneys in their day to day practice. Explore these important topics and how to optimize the experience of practicing law. The day will close with Joey Novick “The Improvisational Lawyer” and stand up comedian. Earn 5 hours of ethics credits.

November 18, 2022 8:30am - 4:00pm In Person • Hybrid • Virtual

Legal Excellence Week combines our biggest CLE Institutes and Fall Summits into 4 days of learning and connecting. Choose to attend in-person at Maryland Live! Casino or virtually, or with the weekly pass you can do both!

Purchase your Weekly Pass today at MSBA.ORG/LEW2022 or scan here November 15-18, 2022 | In-person, Hybrid, & Virtual

Court of Appeals Declines to Sanction Attorney Who Violated Ethics Rule While Relying on Bar Counsel

Court Also Instructs Rules Committee to Address

Issue of Prohibition on Out-of-State Attorneys

Maryland’s high court ruled that Jackson technically violated Rule 5.5, but that she had reasonably relied upon former Bar Counsel’s recommendations for maintaining an office in Maryland.

THE MARYLAND COURT OF APPEALS ruled that even though a lawyer violated Rule 5.5 of the Maryland Code of Professional Conduct prohibiting the unlicensed practice of law, no sanctions would be imposed. Attorney Grievance Commission of Maryland v. Dawn R. Jackson, Misc. AG No. 9-2020 (Md. Jan. 31, 2022). The case involved a lawyer, Dawn Jackson, who has never been licensed to practice law in the state of Maryland, but is licensed in the District of Columbia and New Jersey.

Jackson’s firm, formerly known as Baylor & Jackson, included another partner (Baylor) who was licensed in D.C. and Maryland, as well as two associates licensed in Maryland. After the U.S. Securities and Exchange Commission (SEC) began an investigation into Baylor’s practices, Jackson formed Jackson & Associates Law Firm, PLLC, which she operated inside the boundaries of D.C. from 2011 until sometime in 2014. In 2014, Jackson & Associates moved its physical location from D.C. to Maryland. Throughout that period and at both office locations, Jackson focused on cases arising in D.C., performed administrative responsibilities for the firm and other miscellaneous matters. The Maryland lawyers employed by the firm focused on Maryland cases.

As part of its investigation into Baylor, the Maryland Office of Bar Counsel met with Jackson and Jackson’s counsel at her firm on two separate occasions. During one of those meetings, in June 2015, Bar Counsel and Jackson discussed the fact that Jackson was operating

her law practice from an office located in Maryland even though she was not licensed in Maryland. Bar Counsel made several specific suggestions to Jackson for maintaining an office in Maryland. By way of example, Bar Counsel recommended Jackson always have a Maryland attorney on staff, and ensure that her business cards and letterhead clearly stated she was not licensed in Maryland, but rather D.C. Subsequently, Jackson followed Bar Counsel’s advice and placed a disclaimer on her firm’s letterhead, website profile, email signature, and business card. More than three years after Bar Counsel’s visit to Jackson's Maryland law office, Bar Counsel opened an investigation into Jackson's law practice in response to an anonymous complaint. Bar Counsel eventually accused Jackson of violating ethics rules by maintaining a Maryland office without being licensed in Maryland. Bar Counsel focused on the fact that even though Jackson didn’t handle any Maryland

cases, she signed two documents seeking re-issuance of summonses in a divorce case filed in Maryland handled by lawyers working at her firm and licensed in Maryland. Jackson signed the documents during a tumultuous period in which her partner, Baylor, was under investigation by the SEC. The judge presiding over the ethics hearing determined Respondent admitted to the authenticity of her signature on the summonses and found as a matter of law that Jackson “did to the lowest degree engage in the unauthorized practice of law by signing a [l]ine,” which constitutes a violation of Rule 5.5(a).

Rule 5.5 — The Unauthorized Practice of Law

The critical issue in this attorney grievance case involves Rule 5.5 of the Maryland Attorneys’ Rules of Professional Conduct, which states that an attorney who is not licensed in Maryland cannot “establish an office or other systematic and continuous presence” in Maryland for the practice of law, with some exceptions. The rule generally bars outof-state attorneys from establishing “an office or other systematic and continuous presence” in Maryland “for the practice of law.”

Court of Appeals

Maryland’s high court ruled that Jackson technically violated Rule 5.5, but that she had reasonably relied upon former Bar Counsel’s recommendations for maintaining an office in Maryland. The Court aptly stated: We cannot ignore the fact that any violation . . . arising from Ms. Jackson’s continuous and systematic presence in the state since 2015 was undertaken with knowledge by the Office of Bar Counsel, and its express recommendations concerning how to maintain her office in a manner that purported to comply with the professional rules.”

Id. at 37–38.

The Court also deemed Jackson’s actions were reasonable under the circumstances, adding:

Additionally, by visiting with Ms. Jackson at her office, suggesting safeguards to comply with the professional rules, and then failing to follow up with Ms. Jackson in any manner for three and one-half years, a reasonable person in Ms. Jackson’s position would have taken those suggestions as either explicit or tacit approval that her conduct in maintaining an office in Maryland complied with the professional rules.”

Id. at 38

Finally, the court ruled that factoring in all of these circumstances and “other considerable mitigating factors,” no sanctions are warranted.

The Future of Rule 5.5

In its ruling, the Court questioned the outdated prohibition on out-ofstate attorneys operating law offices in Maryland. The Court directed the judiciary’s Standing Committee on Rules of Practice and Procedure to examine whether the prohibition on out-of state attorneys practicing in Maryland should be modified in order to conform to the new virtual professional portability highlighted by the COVID-19 pandemic. Judge Booth added, “[o]ur current Rule 5.5 does not reflect the reality of a modern, portable profession.”

quality of life for Marylanders of all ages with disabilities.

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Maryland State Bar Association, Inc. Committee on Ethics

MSBA ETHICS OPINION 2021-04 CAN MARYLAND-LICENSED ATTORNEYS ETHICALLY POSSESS OR CONSUME CANNABIS UNDER MARYLAND’S MEDICAL CANNABIS STATUTE?

IN 2014, MARYLAND BECAME ONE of a growing number of states to legalize the use and possession of cannabis for medical purposes. See Md. Code Ann., Health-Gen. § 13-3301 to 13-3311 (hereinafter “Maryland Medical Cannabis Statute”). However, the use and possession of cannabis remains illegal under federal law. Federal law continues to treat cannabis as a “Schedule I” narcotic, having no medical use or benefit. 21 USC § 812(b); United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 491 (2001) (finding no medical necessity exception under federal prohibition of cannabis). As such, Maryland residents using or possessing cannabis for medical purposes in compliance with Maryland’s Medical Cannabis Statute are nonetheless violating federal law.

Question Presented

Does a Maryland-licensed attorney violate the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) when using or possessing cannabis for medical purposes in compliance with the Maryland Medical Cannabis Statute given that such conduct may violate federal law?

Conclusion

For the reasons set forth below, we believe that the mere use or possession of medical cannabis by a Maryland-licensed attorney in compliance with the Maryland Medical Cannabis Statute does not violate the MARPC (1). We caution, however, that attorneys may be subject to discipline if using or consuming cannabis interferes with their ability to competently and diligently practice law, even if such use or possession is for valid medical purposes in compliance with Maryland’s medical cannabis statutory scheme.

Facts Presented for Consideration

The General Assembly of the Maryland Legislature has authorized the establishment and implementation of a medical cannabis program, to be regulated by the Maryland Medical Cannabis Commission. In enacting this legislation, the Legislature broadly stated: The General Assembly intends that the programs implemented in accordance with this subtitle yield a successful but consumer-friendly medical cannabis industry in the State to provide patients affordable and adequate access to medical cannabis.

Md. Code Ann., Health-Gen. § 13-3301.1.

The General Assembly has specifically considered and approved the participation of Maryland-licensed professionals as “qualifying patients” under the Maryland

Medical Cannabis Statute, and in doing so, has provided protections for participating professionals’ licensure:

§13-3313. Persons acting in accordance with subtitle not subject to arrest, prosecution, or civil or administrative penalties

(a) Any of the following persons acting in accordance with the provisions of this subtitle may not be subject to arrest, prosecution, revocation of mandatory supervision, parole, or probation, or any civil or administrative penalty, including a civil penalty or disciplinary action by a professional licensing board, or be denied any right or privilege, for the medical use of or possession of medical cannabis;

(1) A qualifying patient …

See Md. Code Ann., Health-Gen. § 13-3313(a)(1).

a violation of the rules. Rather, “an attorney should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice” like “[o] ffenses involving violence, dishonesty, or breach of trust, or serious interference with the administration of justice.” Id. Comment 2 further explains that an attorney is subject to professional discipline for “[a] pattern of repeated offenses, even ones of minor significance when considered separately” if the pattern demonstrates indifference to legal obligations.

Id.

We caution, however, that attorneys may be subject to discipline if using or consuming cannabis interferes with their ability to competently and diligently practice law

Analysis/Discussion

In analyzing whether an attorney may participate as a “Qualified Patient” under the Maryland Medical Cannabis Statute, we consider whether such participation would constitute a violation of MARPC 19-308.4.

A lawyer violates MARPC 19-308.4(b) by committing “a criminal act that reflects adversely on the attorney’s honesty, trustworthiness or fitness as an attorney in other respects.” Comment 2 to Rule 19-308.4 clarifies that not all criminal offenses constitute

We do not believe that the use or possession of medical cannabis in compliance with the Maryland Medical Cannabis Statute reflects on an attorney’s honesty, trustworthiness, or fitness as an attorney, and thus, cannot itself constitute a violation of MARPC 19308.4(b). Moreover, in light of the conflict between the Maryland Medical Cannabis Statute and federal law designating cannabis as having “no medical use,” we do not believe that a pattern of compliant medical use by a Maryland-licensed attorney demonstrates an indifference to legal obligations sufficient to constitute an ethical violation of the MARPC. This conclusion is confirmed by the express language of Maryland’s Medical Cannabis Statute, which specifically includes language that allows for the participation of Mary-

land-licensed professionals as qualifying patients, without subjecting their licensure to risk of discipline. Indeed, Maryland’s Medical Cannabis Statute expressly prohibits “disciplinary action by a professional licensing board, or [denial of] any right or privilege, for the medical use of or possession of medical cannabis.” Md. Code Ann., Health-Gen. § 13-3313. We believe that the class of professions protected by this language includes Maryland attorneys. In light of the Maryland Legislature’s expressed intent to allow professionals, including attorneys, to participate in Maryland’s medical cannabis program, we do not believe that the MARPC would subject Maryland-licensed attorneys to discipline for such participation, in the absence of some additional fact(s) that adversely impacted the attorney’s competency.

In addition, this Committee opined in 201610 that Maryland law and the MARPC, when read together, allow a Maryland lawyer to advise clients on compliance with Maryland’s marijuana laws and also allow lawyer’s to engage in businesses authorized under Maryland law including cannabis businesses. While the conflict between federal and state law creates difficult ambiguities, this Committee, as it was in 2016-10, is charged with interpreting the Maryland Rules and where, as here, the legislature has clearly identified the public policy of this State, this Committee must recognize and adhere to that policy. We believe that the private statutorily compliant consumption of medical cannabis should not subject attorneys to professional discipline. We believe, however, that any

attorney consuming medical cannabis in compliance with Maryland law, but who allows their use to adversely affect their practice of law, remains subject to discipline. See MARPC 19-301.1 (“An attorney shall provide competent representation to a client. Competent representation requires the legal

We believe that the private statutorily compliant consumption of medical cannabis should not subject attorneys to professional discipline.

knowledge, skill, thoroughness and preparation reasonably necessary for the representation.); MARPC 19-301.16 (requiring attorney to decline representation or withdraw “if the attorney’s physical or mental condition materially impairs the attorney’s ability to represent the client”); see also Attorney Grievance Comm’n of Maryland v. Finlayson, 293 Md. 156, 159–61, 442 A.2d 565, 567–68 (1982) (suspending attorney for misconduct arising because of alcoholism with right to reapply upon fulfillment of rehabilitation conditions).

Very truly yours,

MSBA COMMITTEE ON ETHICS

REFERENCES

Rules cited: 19-301.1; 19-301.16; 19-308.4

Ethics Docket Nos. cited: 2016-10

Other authority cited: United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483 (2001); Attorney Grievance Comm’n of Maryland v. Finlayson, 293 Md. 156, 442 A.2d 565 (1982); 21 USC § 812(b); Md. Code Ann., Health-Gen. § 13-3301 to 13-3311

DATE APPROVED BY COMMITTEE: March 19, 2021

DISCLAIMER: Opinions of the Maryland State Bar Association (MSBA) Ethics Committee are an uncompensated service of the MSBA. This Committee’s opinions are not binding on the Maryland Court of Appeals, Maryland Attorney Grievance Commission, MSBA or this Committee. The reader is advised that subsequent judicial opinions, revisions to the rules of professional conduct, and future opinions of this Committee may render the Opinions stated herein outdated. As such, the Committee’s opinions are advisory only and neither the Committee nor the MSBA assumes any liability whatsoever with respect thereto. Accordingly, reliance upon the opinions of this Committee is solely at the risk of the user.

THE

Ethics & Risk Management Maryland Lawyer FOR

Insight into the ethical obligations affecting clients and the integrity of the legal profession.

Ethics & Risk Management for the Maryland Lawyer is the latest digital publication offered by the Maryland State Bar Association Committee on Ethics to help attorneys advocate on behalf of clients and maintain professionalism while practicing law.

Includes bonus material on maintaining professionalism in a virtual world!

This is one of 130+ print and digital treatises and coursebooks provided by MSBA. Free to members!

Containing vital articles and opinions published from 2019 to 2021, organized by topic:

Maintaining Client Confidentiality

Fees for Services

Avoiding Conflicts of Interest

Preventing the Unauthorized Practice of Law

Articles on Ethics

Gain clarity and get answers to your everyday ethical questions.

Jessica Young STREAMING COORDINATOR

JESSICA YOUNG began working with the MSBA in January 2021, as the Video Streaming Coordinator. She creates live streams of MSBA events for digital consumption and helps produce video-related content for social media and various projects throughout the MSBA. If you have viewed a CLE presentation or attended a virtual event in the last year and a half, you have most likely benefited from Jessica’s ample knowledge and skills!

Tell us a little about yourself. My name is Jessica and I have been with the MSBA since 2021. I am the Streaming Coordinator, I assist with virtual programs as well as some social content.

What did you do before you joined the MSBA?

I was teaching online classes as well as freelancing in photography and videography.

Tell us about your role at the MSBA. What's your favorite part of that role? As mentioned above, I am the Video Streaming Coordinator. I think my favorite aspect of what I do is making speakers comfortable, making sure that they feel calm and confident prior to presenting their valuable information.

Are you active in your community?

I try to be. I currently volunteer with a nonprofit in Florida, Resplendency, and assist with their media.

If you have

viewed a CLE presentation or attended a

virtual event in the last year and a half, you have most likely benefited from Jessica’s ample knowledge and skills!

What do you like to do outside of work?

I truly do love what I do, so I find myself doing photography for fun as well as visiting local attractions such as historical sites, museums, art exhibitions, and local restaurants.

What is an interesting fact about you that we would not find on your resume?

I am currently learning French and hope to be able to carry on a conversation in French by the end of the year.

Flipboard is a convenient news tool that collects articles from various internet sources and offers them in Magazines. The MSBA magazine offers readers a convenient way to read

Delivering on our Mission

An appreciation of the many people I've met and worked with along the way

When I first joined the MSBA in 2017, being welcomed by then President Harry Storm, the then 120-year old organization had a prestigious legacy but much work was needed to strategically reposition it for success . . . for the present and beyond.

Having just served as COO of the 110K+ attorney DC Bar and having previously spent a decade leading significant efforts on behalf of a 400K+ member CPA/CGMA profession during a period of major organizational transformation which sought to address disruptive market shifts, I recognized the challenges and opportunities that required a response back in 2017.

As an early step in plotting that response, I visited firms of all sizes covering every market segment, practice area and specialty. I met with hundreds of attorneys, judges, legal professionals and stakeholders that collectively make up the entire profession and ecosystem we represent.

Fast forward to today . . . our response, our strategic roadmap, has led us to becoming an objectively superior organization delivering on mission like never before. Powered by the work of our talented associates, Boards, volunteer leaders,

and partners, we are a modernized and impactful player within a competitive and fast moving landscape.

As I met with many insightful and exceptional individuals to inform the development of that roadmap, one encounter in particular stands out. Arriving to attend an event in yet another city, I walked past a local hot dog shop. The owner popped out to question the strangers in suits passing by.

Upon learning who I was, he regaled us all with ‘back in the day’ stories of his brother, an attorney, and invited us in for a taste of his finest creations. The moment we first met is captured in this picture.

Why am I sharing this?

In spite of the significant structural challenges that existed in 2017 . . . and a pesky two-year pandemic . . . we’ve managed to transform the value of our brand, the market relevance of our offerings, and our performance overall. We’ve won national awards for advocacy efforts. Our entities have raised tens of millions of dollars for those who can’t afford representation . . . examples that barely scratch the surface of a transformation achieved.

Yet . . . in reflecting on the journey thus far, I think most about . . . people. The individuals I’ve worked with and encountered as we have been busy delivering progress. LinkedIn has allowed me to share a few of those moments. Pictures next to U.S. Senators, Governors, and countless prominent members of the legal and business community. Brief moments along the way with rock stars who’ve chosen a noble profession to devote their talents to.

So why this particular picture? Simply put, the smile and energy captured in this unscripted moment best encapsulates the experience of a journey that began in 2017.

Most importantly . . . if you’re ever in Cumberland, Maryland, USA, check out Curtis’ Famous Weiners. You won’t be disappointed with the experience. Five years and counting . . . I've yet to be disappointed.

Victor L. Velazquez, Executive Director

Advertising index

ABA Retirement Funds PAGE 75

Clio PAGE 48

First Maryland Disability Trust PAGE 135

Jezic & Moyse PAGE 122

LawPay COVER 2

Lebau & Neuworth, LLC PAGE 63

M&T Bank NOTA PAGE 57

Smokeball PAGE 5

The McCammon Group PAGE 146

Venable LLP PAGE 3

The McCammon Group is

Hon. Jeri K. Somers (Ret.)

Retired Chief Judge, United States Civilian Board of Contract Appeals

The Honorable Jeri K. Somers has joined The McCammon Group after 18 years of dedicated service as a Judge of the United States Civilian Board of Contract Appeals (CBCA) where she most recently held the position of Chief Judge. Before the creation of the CBCA, Judge Somers served as an administrative judge on the Department of Transportation Board of Contract Appeals. A retired Lieutenant Colonel in the United States Air Force (USAF), Judge Somers served as the Staff Judge Advocate for the DC Air National Guard and as a military lawyer both on active duty and in the reserves in the USAF. She has extensive litigation experience outside of the military, having served as an attorney in the US Department of Justice Civil Division and as an Assistant US Attorney in the Eastern District of VA, Alexandria Division. Judge Somers is an experienced mediator and arbitrator with more than 100 cases to her credit, primarily in the government contracts and employment arenas. A dedicated educator, she is a Professorial Lecturer in Law at the George Washington University School of Law and an adjunct professor at the American University Washington College of Law. Judge Somers now brings this exemplary record of commitment and leadership to The McCammon Group to serve the lawyers and litigants throughout Maryland, D.C., and Virginia.

For a complete list of our services and Neutrals throughout MD, DC, and VA, call (888) 343-0922 or visit www.McCammonGroup.com