Chris Mincher, Chief Legal Counsel, Office of the Governor
Penny Somer-Greif, Counsel, Lucosky Brookman LLP
President's Message
Legal Excellence Week 7 Celebrating 50 Years of Justice: Office of Public Defender Gala
Upcoming Events
10 Spark Series: Grace Speights
18 MSBA 100% Law Firms
76 Leadership Academy Fellows Use Strategic Partnerships to Teach Youth Conflict Resolution Skills
136 Staff Profile: Bob Bershad
138 Executive Director's message: Continuing the Mission
46 Friend of the Court
58 A Personal Story by a New Federal Attorney
132 Protect Your Contact List from Prying Eyes
134 MSBA Ethics Docket: Joint Representation/Conflict of Interest
70 Breaking into the Law: Stephanie Brophy
72 Past President: Judge Pamela White
74 Career Transitions: Justice Angela Eaves
Miller & Canby
Rosenberg Martin Greenberg LLP
Corinne Pouliquen
Penny Somer-Greif
Sara El-Shall
Robin Hadden
Renée Hutchins
Nicholas Meriwether
Michael Hudak 91 In Memoriam: Byron Warnken 94 In Memoriam: Benjamin Civiletti
125 Paul Mark Sandler 126 Jim Archibald 127 Eleanor T. Chung
Cecelia Chase
The Laws Committee
Publication Date: December 2022
Published quarterly by the Maryland State Bar Association, Inc.
520 W. Fayette St. Baltimore, Maryland 21201
Telephone: (410) 685-7878 (800) 492-1964
Website: www.msba.org
Executive Director: Anna Sholl
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
Advertising: Advertising rates will be furnished upon request. All advertising is subject to approval by the Editorial Advisory Board.
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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
Photography: Profile photographs provided by Travis Marshall Photography
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) IN-HOUSE EDITORIAL COMMITTEE
Travys Harvey
Julie Hopkins
Lynette Kleiza Jessie Laws
Jasmine N. Pope
David Sidhu
Corinne M. Pouliquen
Eric Steiner
Hillary Evans
Anna Sholl
Reena Shah
Andrea Terry
Bill Hall
Andrea Solan
Colleen Aracri
Natasha Nazareth, Chair
Marc Dimenna
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.
PATHWAYS IN THE LAW
100 The Unintentional Creation of a Varied Career
103 Great Expectations: The Changing Role of General Counsel
106 Making a Broad Impact: Chris Mincher
108 In Pursuit of Service: Ernesto Villaseñor, Jr.
110 Lawyer to Legislator: Sara Love
113 Lawyer to Legislator: Anthony G. Brown
of
Do Press Releases for Law Firms Help or Hurt SEO?
Civil Protections for Active Military
Bad News About Lawyers’ Income –and Their Feckless Cybersecurity
Applying to Become a Judge: Tips
If It’s Not Broken, Don’t Fix It!: Supreme Court of Maryland Rapidly Reverses Amended Rule Adopted Only Months Earlier
Maryland Tax Sales: Causes and Potential Remedies
Commissioner Profile: Renée Hutchins
“ 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.
Holiday greetings to all legal professionals in Maryland and beyond. In the spirit of the season, I would like to share some thoughts as we wind up this eventful calendar year, and as we continue to move through a productive Bar year. I'm excited to share with you a few of the opportunities and initiatives you can look forward to as we move further into the colder months.
CONNECTIONS EVENTS
We are excited to continue the MSBA Connections events, where members of your MSBA leadership come to your neck of the woods to say “hi,” share a cup of coffee or a glass of wine, and meet with you in person. These events are among my favorite programs and are all about connecting. There's no preparation required, note taking, or cost to members. Please make a point of joining us and bringing along your colleagues—the more the merrier.
This year you will have even more chances to participate in your Sections, as the MSBA continues to offer more virtual and hybrid events than ever before. Also be on the lookout for small and large hybrid programs and marquee in-person events, like the mid-year Professional Excursion to Puerto Rico in February, and of course, the Legal Summit in Ocean City in June.
MSBA SPARK SERIES
It has been my honor to work closely with Donna Hill Staton and Reena Shah, two remarkable lawyers and leaders, to help curate the MSBA Spark Series, a program that has brought you exceptional thought leaders in the areas of access to justice, guardians of justice, reforming justice, and the intersection of science, technology, and the law. We are planning a series of thought provoking podcasts and an all day, in-person thought leadership program currently scheduled for January 20, 2023.
“MSBA TO THE PUBLIC” CAMPAIGN
Recently you may have seen some familiar faces on billboards in your travels across Maryland by car, Metro bus, and rail—the MSBA has relaunched our initiative to introduce the MSBA to the public and help elevate the image of the legal profession and legal professionals. Initially, the MSBA is celebrating seven such members who have made an impact by leveraging their expertise as legal professionals.
LAWYER LINK
The MSBA recently released the latest version of our Lawyer Link app, which allows MSBA members to connect with the public directly, and to enhance relationships and referral opportunities with your peers based on practice specialty.
MSBA STAFF CHANGE OF PARAMOUNT IMPORTANCE
I am happy to welcome Anna Sholl, who assumed the role of MSBA’s Executive Director on November 1, 2022, upon the departure of Victor Velazquez. I thank Vic for his leadership, guidance, and friendship to the MSBA over the past five years. The MSBA is in a better position today because of Vic's service to the association.
Anna, previously the MSBA’s Chief Operating Officer, has been the managing force behind many of the MSBA's key initiatives over the past four years. She is an eminently capable manager with a demonstrable track record of success. She knows the MSBA inside and out and has earned the trust and confidence of the MSBA Executive Committee, your Board of Governors, and the exceptional staff that she will continue to lead. Please join me and your Board of Governors in welcoming Anna to this new position.
David Shapiro, President
Legal Excellence Week
November 15-18, 2022
MSBA enjoyed welcoming members back in person (and virtually) for this year’s Legal Excellence Week. The November event, held in person at Live! Casino & Hotel in Arundel Mills, combined the MSBA’s Fall Summits and biggest CLE Institutes and Fall Summits into four days of legal education and networking.
On Tuesday, Attorney General Brian Frosh discussed Trends in Real Estate Law: Views from the Office of the Attorney General as part of the Advanced Real Property Institute (ARPI). Also on Tuesday, during Document Drafting & Guardianships for the Elder Law Lawyer, experienced faculty discussed drafting techniques for a variety of legal documents used in representing the elder law client and the basics of guardianship.
Wednesday’s programs included the Family Law University and the Corporate Counsel Institute, and closed with the Young Lawyers Section Summit featuring a fireside chat with the Honorable Angela Eaves and leadership guidance from Aneil Mishra.
The Criminal Law Update, Advanced Estate Planning Institute, and the 3rd Annual Stanton J. Levinson HOA Institute were held on Thursday.
The week wrapped up with the Solo & Small Firm Summit, featuring keynote speaker Lanny Davis, Esq., who served two presidential administrations, explaining how to handle publicity strategically in your cases while maintaining attorney-client privilege in Why Attorneys Need to Learn to Talk to the Media. At Friday’s Ethics, Civility & Professionalism Symposium, Bar Counsel Lydia Lawless and other skilled faculty discussed the impact of implicit bias, how a transactional attorney should answer the question of “who’s my client” in multi-party deals, and new and common challenges faced by estate planning attorneys in their day to day practice.
Friday closed with an entertaining session from Joey Novick, The Improvisational Lawyer, demonstrating how improv skills can help attorneys succeed in trials, mediations, and business transactions.
Celebrating 50 Years of Justice
Office of Public Defender Gala
For 50 years, the Maryland Office of Public Defender (OPD) has been serving Marylanders with a commitment to equality, dignity, and justice for all. MSBA was proud to co-host, with the Association for the Public Defender of Maryland (APDM), an evening of celebration honoring the OPD at Turf Valley Resort in Ellicott City.
Guests celebrated the steadfast loyalty and unwavering commitment of the attorneys and staff of the OPD who advocate for indigent clients, seek justice, protect civil rights, and preserve liberties.
makes Maryland a nationwide leader in public defense.”
Natasha Dartigue, Public Defender of Maryland, said, “Our tenacious litigation protects fundamental rights, exposes corruption and misconduct, and drives significant change in the areas of juvenile justice, police integrity practices and the daily lives of Marylanders whose voices have long gone unheard.” Erica Suter, Professor of the Practice Director at the Innocence Project Clinic, received the 50th Anniversary Warrior for Justice Award.
Distinguished guest and Gala speaker, the Honorable Judge Matthew J. Fader, Chief Justice, Supreme Court of Maryland, shared, “OPD not only protects the rights of their clients, but they also produce great lawyers. I applaud their great work and am sure that the next 50 years will be as inspiring and effective as these past fifty years have been.”
Keynote speaker Congressman Jamie Raskin, Maryland’s 8th Congressional District in the U.S. House of Representatives, said the OPD is “making the rule of law meaningful and strong for all of us. Its teamwork
“It is a privilege to be able to fight the hard fight,” Suter said, noting that “innocence is a team sport.”
“MSBA recognizes the important work of the Office of the Public Defender and its contribution to ensuring the legal system is fair for all,” said David Shapiro, President, Maryland State Bar Association.
“
OPD not only protects the rights of their clients, but they also produce great lawyers. I applaud their great work and am sure that the next fifty years will be as inspiring and effective as these past fifty years have been.
L to R: Dean Roger A. Fairfax, Jr., American University Washington College of Law, Dean Ronald Weich, University of Baltimore School of Law, and Dean Renee Hutchins, University of Maryland Carey School of Law
Baltimore State's Attorney-elect Ivan Bates talks with attendees,
UPCOMING EVENTS
JANUARY 20, 2023
125th Anniversary Thought Leadership Initiative’s Spark Series Capstone Event
JANUARY 24, 2023
MSBA Day in Annapolis
FEBRUARY 19-25, 2023
MSBA Professional Excursion, San Juan Puerto Rico
FEBRUARY 21, 2023
Demystifying Complex Compensation and Equity in Family Law Cases
MARCH 28-30, 2023
20 Hour Divorce Mediation Seminar: Child Custody and Visitation
MAY 11, 2023
Hot Tips in Workers’ Compensation
JUNE 7-9, 2023
Legal Summit & Annual Meeting in Ocean City
Erica Suter
L to R: Natasha Dartigue, MSBA President David Shapiro, Raphael J. Santini, Kerri Smith, and Heather Krick
Spark Series: Grace Speights
Discusses Advocating for Workplace Equality and Attorneys as Guardians
Grace E. Speights, a partner at Morgan Lewis, was the featured guest in the the third program in MSBA’s 125th Anniversary Thought Leadership Initiative SPARK Series, which was held September 14, 2022, at the Center Club in Baltimore and livestreamed to members across the state. 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. Speights focused on the role of attorneys as guardians of justice.
In her practice, Speights handles high-profile and high-stakes workplace matters for employers and is often called upon by clients for crisis management assistance. In addition to helping companies investigate workplace misconduct claims, Speights assists clients in navigating demands to create more diverse and inclusive workplaces, examines allegations of non inclusive or racist workplace environments, and advises on corporate diversity and inclusion initiatives.
Although she represents employers in discrimination cases, Speights is recognized as an advocate for workplace equality and an ally of the MeToo movement. Speights was raised by a single mother who worked in a factory. Childhood visits to her mother’s workplace inspired Speights to want to help workers obtain better lives.
In a discussion with Donna Hill Staton, Speights explained that management-side employment lawyers practice in different ways; there are some whose only concern is mitigating risk and avoiding measures that create risk. Speights does not approach her practice that way but thinks, “you have to have
SERIES
a willingness to take risks and to do the right thing . . . . I’m not teaching my clients how to discriminate against people and treat them awful. I work with my clients to make sure their environment and . . . culture is safe for all employees—inclusive and respectful.” If clients do not want the kind of advice from her, she is not the right attorney for them.
Speights evolved into her current role as an advocate for equity in the workplace. When she began working at Morgan Lewis as a clerk, she was reserved until she learned she could be herself. Her colleagues were not only good attorneys but were also good people, and they were willing to mentor her and show her how to handle difficult situations. They eventually became her sponsors, meaning they put their reputations on the line with clients and with law firm management for her. Speights believes this is the only way that diverse lawyers and women lawyers can be successful in a law firm; if they don't have partners staking their reputations on them, they won’t make it.
As a partner, Speights now has responsibility for the development of other lawyers. When they come on board, she talks to them not only about their career expectations but also about life, what they should do outside of work, and how to conduct themselves in the office. Her firm also conducts upward reviews, meaning associates get to grade partners, a process
Firm leaders have to set the right tone for the firm, and good leaders are empathetic, sympathetic, fair, and transparent. If you start with good leadership, Speights does not believe you would have the unprofessional and unethical conduct lawyers have engaged in recently, like ignoring subpoenas.
Speights touched on the role of lawyers as guardians of justice. Her firm has discussions on the moral and ethical roles of lawyers, which she attributes to great leadership. Firm leaders have to set the right tone for the firm, and good leaders are empathetic, sympathetic, fair, and transparent. If you start with good leadership, Speights does not believe you would have the unprofessional and unethical conduct lawyers have engaged in recently, like ignoring subpoenas.
Speights also addressed issues that might arise in workplaces in the future, including the concern that the diversity, equity, and inclusion projects or initiatives that have been put into place will suffer due to remote work. Additionally, many companies are facing reverse discrimination lawsuits because of their diversity, equity, and inclusion efforts. Employers that allow for remote work also encounter issues keeping track of the number of hours non-exempt employees work, which may leave them vulnerable to wage and hour lawsuits.
Speights had a hand in creating. The reviews assess partners not only on their legal skills but also on whether they build diverse teams or respect their flexible work arrangement and personal time, and directly impact partner compensation.
Investigations comprise a large part of Speights’s practice and in many cases, uncover problematic behavior. She finds that most clients she deals with have made significant changes since the MeToo movement, and she encourages clients to make sure they have appropriate policies and procedures in place for reporting discrimination and harassment. The level of transparency and reporting of discrimination and harassment has increased as well, which encourages more people to come forward. It represents an evolution in terms of how corporations think about these things but also how lawyers approach their representation of clients. Speights views herself as a trusted advisor in that she quickly identifies her client’s problems and offers ways to resolve them. In other words, she helps them reduce risks instead of being afraid of them.
WEB EXTRA
You can view the entire presentation HERE
Steps Legal Employers Can Take to Avoid this Derailment Will Hybrid Work Models Hamper the Diversity Efforts at Legal Organizations?
BY MEREDITH J. KAHAN, ESQ.
AS THE COVID PANDEMIC WANED, Angela was thrilled to learn that her organization was adopting a Hybrid Work Policy. She enjoyed working from home, and the time saved from her hour-long commute provided extra flexibility with her toddler and household demands. Drew, her supervising attorney, was supportive when Angela said she would like to take advantage of the policy. Drew preferred to work in the office every day to get away from the chaos at home. After a few months, although Angela’s productivity had increased, she found she wasn’t being invited to as many client discussions. She had a hard time getting a hold of Drew, even when she was working in the office. Angela found herself wondering whether this role was sustainable long-term.
Over recent months, while COVID numbers slowly declined, discussions around the balance of remote and in-person work peaked, with many organizations rolling out hybrid work models, which typically permit some combination of the two. Yet questions about how many days employees should physically be in the office, how to coordinate employee interactions to maximize value, and how to maintain company culture persist.
Despite all the chatter, one important question remains unanswered: How will a hybrid model specifically impact female and diverse attorneys, groups that have been historically underrepresented in leadership, promotions, and overall presence in the legal industry as a whole?
First, kudos to responsive organizations offering this option to interested employees. However, not every employee wants to take advantage of remote work, and this is where additional complications arise. With some attorneys in the office, employees who choose to work remotely may be disfavored. In other words, because of proximity, habit, and the unconscious preference for the familiar, there may be a bias in favor of those who are working physically in the office every day.
Beyond this baseline complication is the potential that women and diverse attorneys may be negatively impacted. A number of studies show that women gravitate toward remote work for a variety of intuitive reasons—including flexibility to care for children, to assist aging parents, and to handle housework. (See CFW Survey Finds Most Women Prefer Remote Work). Similarly, diverse attorneys may be inclined to work from home as this gives them the chance to avoid microaggressions that can be an exhausting part of daily work life for those who are BIPOC. (See, e.g., Return to Office? Some Women of Color Aren’t Ready, see also Working From Home Is Beneficial to Some Black Women).
Diverse talent is critical to the success of a legal organization. If some of the most valuable talent may be at risk for a stalled career, what steps can a legal employer take to avoid this derailment?
Plan Communications
Encourage supervisors to set up frequent one-onone meetings with those on a hybrid schedule, since there may not be the same opportunity for spontaneous discussions.
Bring the Outside In
Make sure remote workers have an equal chance to contribute during pre-planned meetings by providing a link to video technology for all meetings where those in the office will be face-to-face. Even more importantly, remember to include remote members of the team even during a spontaneous meeting. If there is discussion around a case while in the breakroom grabbing a cup of coffee, teams should learn that the next step should be “let’s take this into my office and call up Angela to get her input.”
Because of proximity, habit, and the unconscious preference for the familiar, there may be a bias in favor of those who are working physically in the office every day.
Share Preferences
When remote work was more universal over the past two years, video technology seemed to dominate. Now that employees are back in the office, take the time to be clear about the best way to communicate. (“If you don’t get me on the office line, I’m probably walking around the office— please text me.”)
Evaluation
When evaluating performance, be objective about contributions (e.g., focus on work product rather than intangibles like “they don’t seem that committed”). This includes both informal feedback as well as formal performance evaluations.
Work Assignments
Before assigning work or doling out other opportunities (new cases, client pitches, etc.), stop and consider who else you might consider approaching (e.g., attorneys in other offices, those you have not worked with yet, those on a remote schedule). Better yet, consider adopting an objective work assignment procedure.
Legal organizations—and particularly law firms—have lagged behind in diversity for many years. They cannot afford to overlook an ancillary effect of any policy. Rather than pull back on flexibility and the hybrid model—they must work smarter at ensuring all employees, especially disparately impacted diverse attorneys, are integrated into the organization and supported to facilitate success.
Meredith J. Kahan,
Esq. is the Chief Legal Talent Officer at Whiteford Taylor & Preston LLP where she oversees the firm’s attorney recruiting, development, and diversity efforts. She has more than 20 years of experience in the legal field and speaks and writes frequently on these and other topics.
Beyond the Bottom Line: Law Firms as B Corps
BY GINNY CASCIO BONIFACINO, ESQ.
WHY DO CLIENTS CHOOSE THEIR ATTORNEY? Is it because they confidently trust the attorney will represent them successfully and competently? Is it because the attorney’s personality or style of representation fit the client’s expectations? Does it matter that the attorney supports the same social causes as the client or shares similar values?
More and more consumers are expressing their views through the companies and brands that they support. If a client spends time researching values of the brand of ice cream they eat or the type of shoes they wear, it is highly likely that they will want to ensure the same alignment with their business lawyer, employment lawyer, estate planner, or any other attorney.
BENEFIT CORPORATION V. CERTIFIED B CORPORATION
These two terms are often referred to as “B Corps” but they do have important differences:
• A benefit corporation is a legal entity structure formed by state statute. Once
a business follows the statutory requirements, it can be a benefit corporation.
• A Certified B CorporationTM has been vetted and certified by B Lab based on the business’s social and environmental impact. Once certified, the business has access to B Lab’s network and can use B Lab’s logo.
• A business can be one or both—it is important to understand this distinction when advising clients.
Over the last decade, there has been a significant movement for businesses to not only drive value for shareholders but also consider environmental, social, and governance concerns. On the legal side, many states and the District of Columbia have enacted legislation allowing for different forms of social enterprise entities, including benefit corporations, public benefit corporations, and low-profit limited liability companies. This article focuses on Maryland’s version— the benefit corporation or benefit limited
1 See B Lab Homepage, https://www.bcorporation.net/en-us (Last visited Aug. 29, 2022).
liability company (LLC)—which will be referred to as a “benefit company.” As a foundational principle, corporations and LLCs are established by state laws and formed by registration with state agencies. Corporations and LLCs provide their owners (shareholders and members respectively) with protection from personal liability. Which type of entity is recommended often depends on the goals and tax concerns of the company.
A benefit company is a for profit company but is formed to both (1) generate profits for its owners and (2) support a greater social or environmental benefit.
According to B Lab, the leading non-profit organization that certifies benefit corporations based on specific criteria, there are currently 5,610 certified companies in 84 countries over 157 industries but only 48 of which are in legal services.1 Is this a missed opportunity for law firms? This article seeks to find out.
HOW TO FORM A BENEFIT COMPANY?
Maryland passed its first benefit company statute in 2010.2 The process for forming a benefit company is straightforward. The company must include language in its Articles electing to be a benefit corporation or benefit LLC and stating that it is formed for a “general public benefit.”
Maryland’s corporate code defines “general public benefit” as a material, positive impact on society and the environment, as measured by a third-party standard, through activities that promote a combination of specific public benefits, [such as]
(1) providing individuals or communities with beneficial products or services;
(2) promoting economic opportunity for individuals or communities beyond the creation of jobs in the normal course of business;
(3) preserving the environment;
(4) improving human health;
(5) promoting the arts, sciences, or advancement of knowledge;
(6) increasing the flow of capital to entities with a public benefit purpose; or
(7) the accomplishment of any other particular benefit for society or the environment.3
CAN A MARYLAND LAW FIRM BECOME A BENEFIT COMPANY?
Yes, a Maryland law firm may be organized as a benefit LLC, but a Maryland law firm cannot be a benefit corporation. Law firms must ensure compliance with (1) state laws, (2) state bar requirements, and (3) ethical rules and guidance.
STATE LAWS AND BAR REQUIREMENTS
Each jurisdiction has its own laws and/or bar requirements that attorneys must review when they are setting up a new law firm. Underlying many of these rules is the requirement that an attorney is always personally liable for their advice and subject
to a malpractice claim. While attorneys usually advise their clients to form a corporation or LLC to provide the owners with personal protection from the company’s liabilities, this avenue is not open to an attorney, unless the state has provided other entity options.
In Maryland, a law firm may elect to be professional services corporation or a limited liability company.4 These corporate forms allow a law firm to obtain limited liability protection from other claims but carves out claims directly against an attorney for alleged malpractice. The Maryland corporate code, however, very clearly states that a law firm may only be a professional services corporation and not any of the other types of corporations permissible under the code, including a benefit corporation.5
On the other hand, Maryland’s Limited Liability Company Act permits a law firm to be a limited liability company, including a benefit limited liability company.6 Maryland law firms wishing to become benefit companies should consider whether the benefit LLC form suits their business needs, and if so, can further make an IRS election to be taxed as a corporation.
ETHICAL RULES AND GUIDANCE
Attorneys are also governed by the ethical rules and guidance in the jurisdictions where they are licensed. These rules must also be reviewed to ensure that a Maryland law firm can elect to be a benefit limited liability company. There is no explicit prohibition under the Maryland Rules of Professional Conduct (MPRC), the American Bar Association Model Rules of Professional Conduct, or related ethics opinions that would prevent a law firm from becoming a benefit company. Nonetheless, a Maryland law firm must keep in mind these Rules as it determines how it will serve a greater public interest, while its attorneys still maintain their ethical duties to their clients.
PRACTICE TIP
Another reason to become a benefit corporation is that it provides directors with some additional insulation from a breach of fiduciary duty claim if the owner’s interests are not always put first when making decisions. Maryland’s corporate code requires that
“A director of a corporation shall act: (1) In good faith; (2) In a manner the director reasonably believes to be in the best interests of the corporation; and (3) With the care that an ordinarily prudent person in a like position would use under similar circumstances.” The benefit corporation statute gives directors flexibility to consider the best interests of broader stakeholders, including the owners, employees, customers, community, environment, and other important factors without being subject to liability. Directors, however, are not required to always consider these interests and will not be liable to these other stakeholders or the public if a decision only benefits the owners.
A benefit company has an ongoing responsibility to measure its progress towards this general public benefit using a third-party standard. The company is required by the statute to publish an annual report on its website and provide the report to its owners of its progress towards fulfilling its public benefit goals. This is often where B Lab is used because its certification process provides an accepted third-party standard that a benefit company may use to measure its goals.
2 See Md. Code Ann., Corps. & Ass’ns § 5-6C-01, et seq. (Benefit Corporations); § 4A-1201, et seq. (Benefit Limited Liability Companies).
3 Id. § 5-6C-01(c) and (d).
4 See id. § 5-101, et seq. (professional services corporation); § 4A-01, et seq. (Limited Liability Companies).
5 Id. at § 5-102.
6 See id. §4-203.1; 4-301. See also id. § 4A- 1202(a).
Attorneys have a duty to put the best interests of their clients first in the representation.7 An attorney’s representation cannot be swayed by other external factors and the profession takes substantial steps through strong conflict of interest and prohibition of fee sharing to ensure that attorneys put their clients first.8
As a business, however, the law firm is free to operate and use its revenue in a way that furthers a greater public benefit.9 Some would say that an attorney’s ethical requirements support becoming a benefit corporation.10 In the Preamble of the MPRC, “an attorney, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”11 The Rules provide some additional interpretation of what entails being “a public citizen” including to seek to improve the law and access to the legal system. These goals focus an attorney on thinking beyond themselves to a greater public good—not unlike what a benefit corporation achieves. Under the current legal and ethical landscape in Maryland, a law firm may elect to be a benefit LLC.
WHAT HAPPENS IF AN LLC IS NOT THE CORRECT FORM FOR A LAW FIRM?
An LLC is not always the appropriate entity form for a business because of such concerns as its long-term goals, investor demographics, or tax concerns. However, if a Maryland law firm does not choose to be an LLC for other reasons, it may still be a Certified B Corporation by B Lab if it satisfies B Lab’s standards.
WHAT’S NEXT?
The number of benefit companies are growing substantially across many different industries as these businesses pivot to focusing on greater social, governance, and environmental concerns in addition to generating profit. Maryland law firms deciding to join this movement will obtain benefits that improve their bottom line and enable them to be good “public citizens.”
7 Md. Att’ys Rules of Prof’l Conduct, 19–305.4 (West, Westlaw through 2021 Legis. Sess.).
8 See id. at 19–301.7 - 19–301.10.
9 See Maryland State Bar Association, Inc. Committee on Ethics, Ethics Docket No. 19-06.
10 Ann Juergens & Diane Galatowitsch, Changing Education and Practice of Law: Fostering Client Altruism and the Common Good in the Practice of Law: Learning from Emerging Movements in Business and Economics, 44 Mitchell Hamline L. Rev. 1, 29 (2018).
11 Md. Att’ys Rules of Prof’l Conduct, 19-300.1. PREAMBLE.
ADDITIONAL RESOURCES
TO FORM A MARYLAND ENTITY: Maryland State Department of Assessment and Taxation:
HTTPS://BUSINESSEXPRESS.MARYLAND. GOV/.
TO KEEP UP-TO-DATE ON NEW SOCIAL ENTERPRISE LEGISLATION IN THE UNITED STATES: Grunin Center for Law and Social Entrepreneurship –NYU School of Law. Social Enterprise Law Tracker:
HTTPS://SOCENTLAWTRACKER.ORG/#/MAP
Ginny Cascio Bonifacino, Esq. is co-founder and partner of Nazareth Bonifacino Law LLC, a boutique business law firm currently pursuing its Certified B Corporation status. Ginny believes honoring values is good business. Through her general counsel and intellectual property practice, Ginny provides clients with integrative advice that limits their risk freeing them up to focus on what makes them happy.
Why become a Benefit Company?
At the root of becoming a benefit company should be a genuine desire to do good and to improve our world. Market differentiation drivers may encourage pursuit of B Corp status.
Making more money
This may seem counterintuitive, but the uniqueness of being a benefit company rather than a regular company or a non-profit corporation is that the company can generate profit and want to generate profit, while working towards a larger public purpose. If the client agrees with the firm’s values, then they are not only more likely to retain the law firm but also may be willing to pay more.12
More credibility in branding
Corporations are sometimes criticized for their “support” of various social causes without showing results or transparency into their actions.13 A benefit company and/or a certified B corporation are required to complete and publish an annual report. This additional level of accountability and transparency provides clients with a level of trust that giving their dollars to this specific business will bring about social or environmental good.
B Lab Logo
Companies that are certified by B Lab and use the Certified B Corporation TM logo as part of their branding cite a boost in marketing and exposure. This branding signals to consumers that this business is a legitimate benefit company striving to create public good.
Attracting and retaining the best talent
Since the COVID-19 pandemic, there has been a surge of employees leaving their jobs—often called the Great Resignation or the Great Reshuffle.14 In order to attract and retain talent, research shows that employees want to feel valued and respected but also have a sense of purpose and community at work.15 By its very nature, a benefit company is focused on a greater public benefit. It provides workers with common values and a purpose that they can work towards. Benefit companies often state that their employees are happier, work harder, and stay longer.16
Better positioning for the future
In the last several years, businesses have had to pivot to stay in business through a pandemic, global supply chain disruptions, substantial inflation, rising gas prices, and a looming recession. According to B Lab, certified B corporations were 64% more likely to stay in business during the 2008 recession than other similarly sized businesses.17 A benefit company is conditioned to regularly call into question its business practices and strive to improve them. This often gives them the skills, insight, and flexibility needed to respond quickly and efficiently in times of trouble.
12 Danielle Braff, Going green: Law firms see business benefits of B Corp Certification, ABA Journal (July 1, 2018) https://www.abajournal.com/ magazine/article/law_firms_b_corp_certification.
13 See V. Kasturi Rangan, Lisa Chase & Sohel Karim, The Truth About CSR (Jan.—Feb. 2015) https://hbr.org/2015/01/the-truth-about-csr (while even companies with good intentions struggle to implement corporate social responsibility).
14 Kim Parker & Juliana Menasce Horowitz, Majority of workers who quit a job in 2021 cite low pay, no opportunities for advancement, feeling disrespected, Pew Research Center (March 9, 2022) https://www.pewresearch.org/fact-tank/2022/03/09/majority-of-workers-who-quit-a-job-in2021-cite-low-pay-no-opportunities-for-advancement-feeling-disrespected/.
15 See Ron Carucci, To Retain Employees, Give Them a Sense of Purpose and Community, Harvard Business Review (Oct. 11, 2021) https://hbr. org/2021/10/to-retain-employees-give-them-a-sense-of-purpose-and-community; Aaron De Smet, Bonnie Dowling, Marino Mugayar-Baldocchi, and Bill Schaninger, ‘Great Attrition’ or ‘Great Attraction’? The choice is yours, McKinsey Quarterly (Sept. 9, 2021) https://www.mckinsey.com/ business-functions/people-and-organizational-performance/our-insights/great-attrition-or-great-attraction-the-choice-is-yours.
16 See Christopher Marquis, How Opportunities for Workers Help B Corps Build Better Businesses, B the Change (Sept. 8, 2020) https:// bthechange.com/how-opportunities-for-workers-help-b-corps-build-better-businesses-34b0f9d9875c#:~:text=The%20empowerment%20 that%20workers%20gain,for%20personal%20and%20community%20health; Behind the B: Reasons Why Employees Appreciate Working at a B Corp, B Lab (Mar. 10, 2022) https://usca.bcorporation.net/zbtcz03z22/bcm-behind-the-b-reasons-why-employees-appreciate-about-workingat-a-b-corp/#:~:text=With%20a%20focus%20on%20positive,more%20inclusive%20and%20resilient%20businesses.
17 Resilience During Challenging Times: The Case for B Corps (Dec. 21, 2020) https://impactgrowthpartners.com/perspectives/2020/12/21/resilience-during-challenging-times-the-case-for-b-corps.
MSBA LAW FIRMS
ONE HUNDRED PERCENT OF THE LAWYERS AT THESE MARYLAND LAW FIRMS AND BRANCH OFFICES RENEWED THEIR MSBA MEMBERSHIPS FOR THE 2022-23 BAR YEAR. The MSBA is grateful for their commitment to MSBA’s leadership in the legal profession, Annapolis advocacy, and increasing access to justice in Maryland and beyond.
Maryland firms or branch offices listed here have at least ten partners and associates (or analogous titles) barred in Maryland, all of whom have renewed their membership for the 2022-23 Bar year. The MSBA membership team is happy to work with law firms in reaching the 100% goal. Please contact membership@msba.org.
PANTONE 7698 C
PANTONE Black C
The Law
Offices of Frank F. Daily, P.A.
A MODERN FIRM WITH A LONG HISTORY
MILLER, MILLER & CANBY
MILLER, MILLER & CANBY HAS DEEP COMMUNITY ROOTS. Founded in 1946, Montgomery County’s oldest law firm began when Lee C. Miller, the third woman admitted to the Montgomery County Bar Association, joined her husband, solo attorney and decorated WWII veteran Jim Miller, Sr., to open Miller & Miller in Rockville. The firm settled into a 19th century Colonial Revival house located just a block away from the county courthouses and government buildings, where the firm remains to this day. The Millers were joined in 1956 by their son Jim Miller, Jr., who was later appointed an associate judge of the U.S. District Court in Baltimore, and in 1961 by William (Bill) M. Canby, the firm’s final namesake and a founder of the Montgomery County Bar Foundation.
Left to right: Robert E. Gough, Michael G. Campbell, Diane E. Feuerherd, Donna E. McBride, Jody S. Kline, Joseph P. Suntum.
The firm’s primary areas of practice developed alongside the evolution and development of Montgomery County, and historically focused on land use and real estate (zoning, eminent domain, ad valorem tax appeals, sale and lease transactions, and financing), business and planning needs (business and tax, as well as trusts, estate planning & administration), and the trial and appellate litigation that flow from these practice areas.
The MSBA recently spoke to Diane E. Feuerherd, Principal Attorney, to learn more about the firm,
whom is expected to immediately dive in, connect with clients and the legal community, and build a practice that is based on relationships, trust and effective and efficient results. Mentorship, commitment to lifelong learning, and contributing to the Bar are essential ingredients for individual and firm growth. The firm’s deep roots are a proud tradition that it continues to carry forward. Many of its attorneys have led local, state, and national organizations, including the MSBA, the Bar Association of Montgomery County, and the Montgomery County Inns of Court.
Miller, Miller & Canby is steered by a shared goal, which is to develop and foster trusted, lasting relationships for generations with their clients, which include families, small businesses, municipalities, and nationwide corporations.
the firm’s founding, future and influence in the community.
How have you expanded the firm and your practice over the past few years?
The firm has expanded its reach to serve clients throughout Maryland and the D.C. Metropolitan area.
The firm’s connection to real estate remains as strong as ever, and the core litigation practice has expanded to include personal injury, disputes involving business matters, eminent domain, and estate litigation, from the inception of a case all the way to the final appeal. Miller, Miller & Canby is steered by a shared goal, which is to develop and foster trusted, lasting relationships for generations with their clients, which include families, small businesses, municipalities, and nationwide corporations.
Who is your target client?
Anyone, or any business, involved in a dispute, or in need of help with any and every issue arising from real property (land use and zoning, development, sale, acquisition and financing), including the creation and management of ownership entities, as well as the succession and estate planning of the owners.
What sets Miller, Miller & Canby apart from other firms?
Size, outlook, and work product. The firm intentionally maintains a moderate number of attorneys, each of
How do your lawyers keep up with emerging and evolving legal issues, and why do you think this is important?
Active Bar involvement and consistent and rigorous CLE are expected of all attorneys. The firm meets regularly to discuss case issues, new developments, and legal rulings, and to share learning experiences and insight from each other’s practice.
In your opinion, what are some of the ways the legal profession changed over the past few years?
The profession, along with most others, has become much more reliant and dependent on technology and specialization of practice areas. The legal profession was a decade or more behind the medical profession in the concentration of specialty areas of practice, but it has fully caught up. Every client wants the “best lawyer” to handle their specific type of case, which is why the firm has maintained its focus on all matters touching real estate and the related businesses and litigation.
In a post-COVID environment, lawyers are expected to maintain a mobile, secure, and technologically savvy practice, with flexibility and creativity to react in real time to challenges as they arise and to changes in legal standards and technology as they occur. Zoom hearings and meetings are now the norm. The legal profession will have to stay on the cusp of technological advances but also be considerate of how those changes are impacting our work and our relationships with clients and
Mentorship, commitment to lifelong learning, and contributing to the Bar are essential ingredients for individual and firm growth.
colleagues. Attorneys have to be more proactive, to reach out to others, to socialize, learn, grow and stay connected. That is why we believe active Bar involvement is so important.
How well have your attorneys adapted to this changing environment?
This firm is adapting, thanks in part to investing time and resources over the past several years towards a wide range of technology, including cloud-based document management systems. This allowed us to transition to remote working and to continue to interact with the courts, administrative agencies, and our clients without interruption. We have been dedicated to introducing evidence presentation software in the courtroom and our written work product, to organize our arguments, present demonstrative and other documents persuasively, and untangle complex issues and cases. These technological developments, the increased efficiency of access to information, and the ability to connect and communicate with clients, are part of our continued professional advancement and learning to which there should be no end.
What does community involvement look like now for the firm and where would you expect it to be in the years ahead?
All of the firm’s attorneys are personally involved in their respective communities through neighborhood organizations, as well as professional business associations in and outside the Bar. As a firm, they also contribute financially to different causes, including an annual full scholarship for a local high school student to attend Montgomery College, a long-time client.
What would be your greatest hope and expectation for the firm and its progress and development over the next four years?
The firm’s goal over the next four years is to build on its strong foundation, grow its relationship with clients and others in the community, and continue to develop the next generation of attorneys, to be not only successful advocates, but also leaders within the Bar and their communities. That growth is how Miller, Miller & Canby became and will remain at the forefront of the legal profession within the County and Maryland.
Photo courtesy of Travis Marshall Photography.
LET'S MAKE A DEAL
BY PHILLIP M. PERRY
Law firms are in the driver’s seat at lease renewal time.
For law firms looking to renew their office leases, the outlook has never been sunnier. A pandemic-induced oversupply of commercial space has landed on the market at the same time professional organizations need less room to get their work done, thanks to the acceleration of hybrid work arrangements.
“This is a difficult time to be an office space landlord in any major central business district,” says Ruth ColpHaber, President and Chief Executive Officer of Wharton Property Advisors, a real estate consultancy in New York City. “There are several reasons. First, the demand has shrunk. Second, any landlord losing a tenant is going to be looking at space that could sit empty for a long time. Third, the landlord successful enough to find a new tenant will need to offer a better rate than the existing one and will also be hit with demands for a lot of construction to fill out the space.”
Colp-Haber, who has helped dozens of law firms find commercial space in her three-decade career, notes that the profession has been reporting only 40% office attendance rates in New York City. That’s actually a bit rosier (from the landlord’s perspective) than the same figure for other professions, thanks to a combination of inertia and conditions unique to the legal profession.
“Many older attorneys are requiring in-office activity,” she says. “Also, much legal work has to be done in-person, including meeting with clients and doing closings.”
It’s not just New York City. Other regions report similar gluts in working space. “The hybrid workspace is the biggest factor affecting the real estate market for law firms today,” says Allison Griffin Bittel, Senior Vice President and Principal in the Atlanta office of Colliers International. “People have figured out how to work from home and be productive. They are even looking at work flexibility and remote options when they consider whether to stay with their current firms or move to other employers.”
STEADY RATES
Ultimately, of course, the travails of landlords benefit tenants, who are in a better negotiating position than ever before. And real estate experts don’t expect the situation to turn around any time soon.
“The market right now for leasing is amazing if you are a tenant,” says Bill Himmelstein, Founder and Chief Executive Officer of Tenant Advisory Group, based out of Chicago. “It will stay that way for the foreseeable future, and I’m talking several years minimum. Today even firms looking for 200,000 square feet are going to have a significant amount of opportunity.”
Does the soft real estate market translate into better rental rates? Yes, although it might not seem so at first glance.
“The average quoted rents, the so-called ‘face rates,’ have actually increased slightly since the start of the
One reason banks ignore concessions is that they are considered one-offs that won’t be repeated come renewal time. Perhaps some willful blindness is a factor as well because lenders are reluctant to repossess properties.
“The last thing banks want to do is become owners of hard assets like real estate,” says Himmelstein. “Suppose they lend out on a valuation of $400 million for a building and the landlord can no longer service the debt. If the bank gets the keys to the property, they might end up selling it for $300 million, taking a 25% write off. Now the new buyer has a basis at $300 million and can charge lower rent and offer better deals.”
pandemic,” says Himmelstein. “Landlords are maintaining higher face rates because that is how their buildings are valued, which is important in the event they want to refinance or sell their property. Potential buyers or lenders look at future cash flows, apply a multiple and end up with the value of an office building.” Not only must face rates remain elevated to support current valuations, but in some cases, rate reductions can result in violations of lending covenants.
In making their valuation calculations, banks ignore the amount of free rent or tenant improvement dollars landlords must give to attract desirable tenants. Those concessions, which are rising to impressive levels in the current soft market, essentially translate into lower rent.
“Very often tenants will get twice as much free rent and maybe 50% to 60% more tenant improvement dollars post-pandemic,” says Himmelstein. “As a result, the net effective rates (those paid after such concessions) are between 20% and 30% lower than before. Securitization requirements such as cash and personal guarantees are also lower.”
Despite the vested interest in high rental rates on the part of financial institutions, Himmelstein feels face rates will start to decline as costly concessions continue to threaten landlord profits and professional firms in all industries seek smaller spaces.
“As we get deeper into this pandemic, we’re going to see more keys getting handed back to the banks who turn around and sell the properties at a much lower valuation,” says Himmelstein. “That’s where rental rates will start to reset. And we will start seeing this soon, I think.”
Before that time arrives, law firms are looking to sublease to monetize their current larger-than-needed offices. “I’ve come up with an innovative sublease structure where I set up my own de facto coworking hubs, leasing sections of such large office spaces to smaller law firms,” says Colp-Haber. “Both sides appreciate the one-year lease terms. The smaller ones don’t have long-term liabilities, and the larger ones can get their space back if they need it.”
BEING PROACTIVE
When the time comes to move to new quarters, high supply and low demand can only translate into a stronger negotiating position for law firms. Real estate experts point to several smart tactics to leverage a tenant’s advantages. The first is to start early.
“If you go to your landlord one month, three months or even six months prior to your lease expiration, you have lost a tremendous amount of leverage,” says Himmelstein. “Your landlord will figure you don’t have enough time to negotiate terms and get new space built out before your current lease expires.”
Delays, while regrettable, are understandable. “Real estate is not top of mind for law firms and often they wait too long to engage in the market,” says Bittel. She cautions that disruptions in the supply chain as well as in permitting and construction can lengthen the time required to get from signing a deal to actually moving in. A year before the end of a current lease is not too early to start the ball rolling.
As for what to do in that year’s time? The overriding concern is to plant the seed with your landlord that the firm might relocate.
“When negotiating a renewal, it’s important to build a sense of competition,” says Himmelstein. “What strikes fear into a landlord is the thought that you might move. Even in good times that is disastrous, but when vacancy rates are high, losing a tenant is even more costly. The best way to negotiate the most aggressive renewal terms is to talk to other landlords and get competing offers.”
Bittel agrees that convincing a landlord of a pending move is essential to success. A real estate adviser can be an invaluable partner, making the right moves when speaking with a law firm’s current and potential landlords. “The first thing is to partner with an occupier expert who understands market trends and who can advise on strategy,” says Bittel. “There are a lot of complexities post-pandemic, and you have to be creative in redesigning your space.”
THINK CONCESSIONS
As mentioned earlier, concessions are a way of life in the current leasing market. Law firms would do well to get a handle on the local market’s current allocations of free rent and build-out expenses. Plus, every lease has some type of escalation clause determining the formula for future operating cost increases. Negotiating favorable terms for billing — things such as electricity — can pay off.
“In the past, I used to always suggest direct operating expense increases,” says ColpHaber. “Today, though, we are faced with the possibility of large increases down the road in the price of oil, building maintenance and labor. Perhaps a fixed annual increase would be better.”
Prospective tenants should also determine the most favorable base year, designated in the lease as the rate floor from which future increases are calculated for property taxes, insurance and operating expenses. “You want to get the highest base rate you can so future increases are not as onerous,” says Colp-Haber.
Finally, the pandemic has brought home the benefits of preparing for disaster. “I always try to insert a clause that if the city goes into lockdown again, the firm will not have to pay for office space during that time,” adds Colp-Haber.
ENSURING A HEALTHY WORKPLACE
Speaking of the pandemic, the onslaught of COVID-19 (and the increased volatility of wildfires if you are out West) has ignited new concerns about air quality. At lease renewal time, law firms may want to assess the quality of their air cleaning systems in their current or prospective office quarters.
“The smart law firms are looking at ventilation systems and requesting upgrades,” says Himmelstein. “Larger firms of, say, at least 100,000 square feet can impact changes throughout their buildings. Smaller ones can take measures within their own
“When negotiating a renewal, it’s important to build a sense of competition,” says Himmelstein.
“What strikes fear into a landlord is the thought that you might move. Even in good times that is disastrous, but when vacancy rates are high, losing a tenant is even more costly. The best way to negotiate the most aggressive renewal terms is to talk to other landlords and get competing offers.”
space. A lot of attorneys are requesting that higher-grade filtration systems be part of a build out. And any new buildings are going to have much better ability to remove unwanted airborne diseases and germs.”
Leases may address the need for quality air and the steps that must be taken to provide and monitor a healthy operating environment. Real estate experts note that the expenses required to bring about a healthy workplace are more often borne by the landlord rather than the tenant.
LEASES FOR LONGER
Many law firms are pursuing shorter lease terms, given the uncertainty in the market. “Pre-pandemic we were commonly seeing 10- or 12-year lease terms for established law firms as they wanted to lay claim to the space they needed,” says Himmelstein. “Terms have come down to around seven or eight years. The decline is attributable to market uncertainty. We’re living in unprecedented times for this generation of managing partners. There is the continuing pandemic, supply chain issues, labor shortages, a war in Ukraine, historic inflation rates and rising interest rates. So law firms are erring on the side of caution by opting for shorter-term leases. No one wants to be trapped in a long-term lease when the next lockdown hits, ending up paying for space they can’t use.”
While there is a compelling case for shorter lease terms, longer contracts can work to the advantage of tenants, given the current soft market. “Established law firms with good handles on their growth trajectory will be better off signing longer-term leases,” says Himmelstein. “They will be able to get greater concessions, more aggressive face rates and better opportunities to reduce occupancy costs. The longer the lease, the better the terms. That’s what landlords want and that's what often works better for tenants as well.”
HOW PREPARED ARE YOU TO LAND THE BEST TERMS AT LEASE RENEWAL TIME? FIND OUT BY TAKING THIS QUIZ. GIVE YOURSELF 10 POINTS FOR EACH “YES” ANSWER. THEN TOTAL YOUR POINTS TO SEE HOW PREPARED YOU ARE.
Have you determined if your firm can reduce its space requirements, given the potential for maintaining or increasing hybrid work arrangements?
Are you starting your office space search at least a year before your current lease expires?
Have you considered securing the services of a real estate expert and done so if deemed desirable?
Are you seeking competing offers from landlords t o help secure a better negotiating position?
Do you know the current square footage “face rates,” and vacancy rates, for commercial space in your locality?
Have you determined the concessions common to your locality, such as months of free rent and build-out expenses?
Do you know the escalation clause terms common to your locality?
Do you know what “base year” will be most favorable to you?
Have you considered a clause that will reduce or eliminat e rent in the case of a regional lockdown?
Have you determined what length of lease will be optimal, given the state of the local market and your law firm’s business posture/
TOTAL SCORE
WHAT’S YOUR SCORE?
OVER 80: You are ready to negotiate a favorable lease. BETWEEN 60 AND 80: Time to fine-tune your position.
BELOW 60: It’s a good idea to retool your plans by instituting ideas from the accompanying story.
AN UNRIVALED ESPRIT DE CORPS
MANY LAW FIRMS ARE DRIVEN BY THE BILLABLE HOUR, and their attorneys’ sole focus is meeting their required hours. Some firms, like Rosenberg Martin Greenberg, LLP (RMG), recognize that, in addition to generating revenue, it is important to give back to the community.
Founded in 1987, RMG has offices in Baltimore, Annapolis, and Howard County. Typically, the clients they serve are local, family-owned businesses that need assistance with commercial real estate and corporate, tax, estate planning, and litigation matters.
Left to right: Steven H. Levin, Jeffrey M. Lichtstein, Caroline L. Hecker, Adam Ruther, Jamar R. Brown. Photo courtesy of Travis Marshall Photography.
In addition to striving to meet their clients’ changing needs, the attorneys at RMG are committed to diversity, equity, and inclusion, in both the firm and in the community. Managing Partner Caroline Hecker, who practices in the real estate group, noted that all of RMG’s lawyers are involved in the community outside of the office, whether they serve on nonprofit boards, volunteer with local charities, or coach Little League teams. In addition, several years ago, the firm endowed a fund through
community in Baltimore that need legal services but lack the resources that other businesses have.
RMG also has a diversity committee, which Brown chairs, that works to ensure that the firm’s commitment to diversity, equity, and inclusion is clear both internally and externally.
Brown joined the firm in 2016. During his interview with RMG, it was clear to him that it was a place where he could practice law at an elite level, but
RMG lawyers and staff support one another for the greater goal of helping clients obtain the best possible results.
the Baltimore Community Foundation to provide grants to local nonprofits focused on education. The firm expects and plans to maintain a strong commitment to Baltimore in the years to come.
RMG recently established the Building Black-Owned Business in Baltimore (BBOBB) program as well. The program aims to address some of the forces that cause economic disparities in Baltimore City’s Black community by providing pro bono legal services to early-stage, local Black-owned businesses. The firm just completed its first year of the program, during which attorneys represented BBOBB clients with strategic business planning, restructuring, long-term tax planning, contract drafting and negotiation, trademark matters, real estate and leasing, and employment matters. RMG reviews the applications and selects five Black-owned businesses for participation in the program based on an internal assessment of each applicant’s responses, legal needs, and RMG’s available suite of services. RMG will be announcing the second cohort of participants shortly.
Partner Jamar Brown referred to the BBOBB program as a bright example of the firm’s commitment to diversity, equity, and inclusion. He explained that RMG developed the program after deciding as a firm that they have an opportunity and an obligation to uplift businesses in their
not at the sacrifice of the efforts he had made to become involved in the community in Baltimore. At that time, he was serving on multiple boards, and he did not want to be at a firm that required him to give all of that up just to meet a billable hours requirement. According to Brown, not only did RMG not have those types of demands, but the firm itself is committed to the community. Brown says he wanted the freedom to be able to fulfill his community obligations, and he has been able to do that at RMG.
In addition to increasing its efforts to support the Baltimore community over the last two years, RMG was fortunate to attract a number of talented lawyers, and they are continuing to grow. Hecker said the real estate practice group added new associates. Hecker expects all of RMG’s practice groups to grow in the years to come, and says the firm looks forward to helping its clients meet the challenges of the future.
Regardless of what the future holds, Hecker believes that in a post-COVID environment, “adaptability and flexibility will be key,” and she thinks that RMG’s “ability to adapt to changing times while meeting the needs of increasingly sophisticated clients” sets it apart from other firms. At the same time, Hecker noted that they don’t take
themselves too seriously. They have a very collegial atmosphere in the office and genuinely enjoy each other’s company.
Steven Levin, a partner in the criminal defense group echoed this sentiment, stating, “[w]e have an esprit de corps that is unrivaled within the Baltimore legal community. In the Army, we used to say, ‘mission first, people always.’ The same is true at RMG.” Levin noted that RMG lawyers and staff support one another for the greater goal of helping clients obtain the best possible results. They also like each other and willingly spend time together outside of the office. This summer, just as in years past, they gathered regularly on the softball field in the Lawyers’ League and, displaying their ability to succeed as a team, made it to the second round of the playoffs.
As for what lies ahead for RMG, as the founders of the firm transition to “senior” status, they are cultivating a talented group of young partners poised to take over the leadership of the firm and transition the firm from the founders’ generation to the next. RMG’s goal is to maintain the firm’s commitment to high-quality client service while retaining its relaxed culture through this transition and continuing to grow its business with sophisticated, interesting clients. Adam Ruther, a partner in the litigation department, aims to be part of RMG’s next generation. He recognized Hecker as a great leader and reported that she makes sure everyone knows they are part of a team working toward the same goal of success for the clients and, therefore, the firm. Someday, Ruther hopes and expects to retire from RMG and see a new group of young lawyers carry it to a third generation.
Now is the time.
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.
Quick, simple, easy. Contact an ABA Regional Representative today; they will walk you through the simple 4-step process and your firm’s plan can be completed in as little as two weeks.
800.826.8901
Built by LAWYERS, Powered by PROS
An Overview of Maryland's New Corporate Diversity Statute
BY PAMELA LANGHAM, ESQ.
IF YOU ARE DOING BUSINESS IN MARYLAND, by now you have likely heard about Maryland House Bill 1210, “Corporate Diversity—Board, Executive Leadership, and Mission.” The bill requires certain business entities to either demonstrate membership of underrepresented communities in its board or executive leadership, or demonstrate support for underrepresented communities in its mission, in order to qualify for a “state benefit” greater than or equal to $1 million. The bill went into effect without the governor's signature on July 1, 2022, and phases in over a two-year period. The outstanding issue is whether this statute and/or its regulation will pass constitutional muster. Time will tell.
What businesses are impacted?
The bill applies to a substantial number of businesses that receive state grants, state tax credits, or state contracts in excess of $1 million a year. The bill is limited to business entities that are incorporated in Maryland or registered to do business in the state; a corporation, foundation, school, hospital or other legal entity for which none of the earnings inure to the benefit of any private shareholder; or individual holding an interest in the entity. The bill applies prospectively from July 1, 2022. The Maryland Department of Assessments and Taxation (MDAT) estimates there are 430,000 entities that submit annual reports in-state.
The bill does not apply to sole proprietorships, limited liability companies owned by a single member, privately held companies if at least 75% of the company’s shareholders are family members, or an entity with an annual operating budget or annual sales of less than $5,000,000 and does not qualify for a state benefit.
One Million Dollar Cap
If your business is an organization that receives state benefits, then the requirements of the bill may apply to you.
Native Hawaiian, Alaska Native, or any combination of one or more of these listed racial or ethnic groups.
Required Reporting for All Businesses
The bill requires the Department of Commerce (DOC) along with the Governor’s Office of Small, Minority, and Women Business Affairs (GOSBA) to develop a state equity report containing diversity data that all businesses are now going to be required to file with the state. Yes, that is correct. Even if your business does not trigger the substantive requirements of the bill, your business will be required to submit data to the state regarding diversity in your organization. The data compiled for the report must include: the membership of underrepresented communities on the businesses board or executive leadership and the support of underrepresented communities in the businesses mission. The DOC and GOSBA were also given the authority in
Even if your business does not trigger the substantive requirements of the bill, your business will be required to submit data to the state regarding diversity in your organization.
The state benefit you receive triggers compliance if the state capital grant totals $1 million or more in a single fiscal year, or you receive a state tax credit totaling $1 million or more in a single fiscal year, or you receive a state contract with a total value of $1 million or more. According to the Maryland Chapter of the NAIOP Commercial Real Estate Development Association, in 2020, 1,940 vendors in the state of Maryland received payments of $1 million or more and more than 12,000 entities received state grants of more than $1 million. It appears that the bill applies to a sizable chunk of entities in Maryland.
Definition of “Underrepresented Communities”
The bill defines “underrepresented communities” as those whose members self-identify as: Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American,
the bill to adopt regulations implementing the bill. Moreover, if your organization triggered the substantive requirements of this bill, you are now required to submit an annual report to MDAT to include diversity data.
DOC Proposed Regulations for Implementation
The Maryland Department of Commerce has published regulations to implement the bill.
Environmental Social Governance (ESG)
If a business is focusing on the governance or social component of ESG, and does business with the state of Maryland, HB 1210 actually aids your organization in that endeavor.
MARKETING TO HER STRENGTHS
CORINNE POULIQUEN
Calderon, Safran & Cole P.C.
CORINNE POULIQUEN RELISHES USING HER SCIENTIFIC SKILLS in her intellectual property practice. She is a registered patent attorney with more than 20 years of corporate and law firm patent prosecution experience in chemical, biotechnology, and mechanical arts.
Pouliquen is past chair of the MSBA Agriculture Law Section. She has worked in-house as IP Counsel for a veterinary pharmaceutical company, and as patent counsel for a biotechnology company. Prior to entering the legal profession, Pouliquen worked in scientific research as a veterinary research assistant and as an analytical chemist. She is Senior Counsel at Calderon, Safran & Cole, P.C., where she provides strategic business and legal advice in connection with the development, management, and protection of intellectual property assets.
Practicing law in a law firm is much more than just doing good work, we need to market our practice as well. “
What motivated you to pursue a career in the law?
As a graduate student, I worked in a university chemistry lab on a wind tunnel used to analyze rare earth isotopes. The university ended up seeking patent protection for the wind tunnel, and I thought “hey, I could do that!” At the time, it seemed more appealing than spending my days in labs without air conditioning wearing fogged-up goggles.
What led you to your current practice area?
I was originally pre-vet and studied chemistry. Patent law seemed to be a good way to use (and not waste) my technical background.
What is your fondest memory or greatest career achievement so far?
I worked on some patent applications related to Dolly the Sheep! At the time, that was big news, because it was the first ever cloned mammal from an adult somatic cell. Since then, I have had the opportunity to work on patenting many breakthrough technologies.
What is the best piece of advice you have received from someone in the legal profession?
To market to my strengths. In other words, if I have a background as a veterinary technician, I can market in the veterinary field. If I own a farm, I can market in the agricultural sector. If I am French, I can market to French companies. Practicing law in a law firm is much more than just doing good work, we need to market our practice as well.
What are your goals for yourself in your current role?
I work with a lot of entrepreneurs, and like to think that I am an entrepreneur as well. So I am always looking for innovative ways to offer my services.
What are some of the challenges you face in your current role?
We faced some challenges with COVID, we lost some clients that had to close their doors. However, we were fortunate, in that other clients saw an increase in business. We had to address these different needs. We also had to figure out how to make working from home work for everyone at the firm. Initially, it was quite the adjustment.
What do you love about your work?
Working with inventors that are passionate about their work. I get the jump on learning about new technologies and innovations.
How has the MSBA helped you in your legal career?
I am a member of the Agriculture Law Section, where I have made a lot of connections in the agriculture environment in Maryland.
What is a cause or charity that you’re passionate about?
I offer pro bono legal services to students at the Dingman Center for Entrepreneurship. I also foster dogs for various rescues, am the former president of Knine Rescue, and the current co-president of the Maryland Horse Council. I also enjoy mentoring young IP attorneys.
Tell us about what we won’t find on your resume. What is your favorite hobby? What do you do to unwind?
I am an animal person! I like to ride, and also show my horses and dogs in various types of competitions. I have an appendix quarter horse that I show in Mountain Trail and obstacle challenges (he won a Green Horse division last year in Mountain Trail), and a thoroughbred that I plan to engage in “show hunter” this year. I also work with my dogs in obedience and agility.
Anything else you want to tell us about you?
I own and operate a 50-acre horse farm in upper Montgomery County. That’s where you’ll find me when I am not working.
FMLA Issues Employers Must Get Right
BY MICHAEL J. VOLPE, ESQ.
FMLA COMPLIANCE ISSUES ARE INCREASINGLY COMMON , and during the pandemic we have seen an increased spotlight on employer leave policies. If your client qualifies as a covered employer, we encourage you to brush up on their FMLA compliance efforts and ensure that they don’t get any of the following questions wrong.
Does an Employer Need to Provide an Employee with Notice of Eligibility Even If They Don’t Mention FMLA When They Advise of the Need for Leave?
Yes. There are no magic words to request FMLA leave. Employers must assess whether an employee is entitled to FMLA leave even if the employee doesn’t cite FMLA in their request for leave. However, the employee must first provide sufficient information to make the employer aware of the need for FMLA leave, such as whether the condition renders the employee unable to perform the essential functions of the job. If you believe you need more information about whether FMLA leave is being sought, ask questions.
Notably, employers are required to provide a total of four notices to employees seeking FMLA leave: (1) a general notice of FMLA rights; (2) an eligibility notice within five days of a leave request; (3) a rights and responsibilities notice along with the eligibility notice; and (4) a designation notice within five business days of receiving enough information to know the leave is for a FMLA-qualifying reason.
Can an Employer Retroactively Designate Leave as FMLA Leave?
It depends. An employer is only permitted to designate leave as FMLA leave retroactively if: (1) the employer and the employee mutually agree to do so; or (2) the employer provides appropriate notice and the employer’s failure to timely designate the leave does not cause harm or injury to the employee.
Can an Employer Only Request Recertification of FMLA Leave Every Six Months?
No. Employers may also request recertification: (1) if the circumstances described in the previous certification have changed significantly; (2) if the employer receives information that casts doubt upon the employee’s provided reason for the absence of continuing validity of the certification; or (3) if the employee requests an extension of FMLA leave. If an employer determines that recertification is necessary, the employer should communicate the need directly to the employee, as opposed to only the employee’s provider, and ask the employee to provide the supporting certification within 15 calendar days.
Can an Employer Count Light-Duty Work as FMLA Leave?
No. No work may be performed during any period of time counted as FMLA leave. If an employee requests to take FMLA leave, light-duty work can be offered in lieu of FMLA leave, but if the employee wants time off, the individual is entitled to take FMLA leave provided they meet the eligibility requirements. This is the case even if an employer is competing against time-sensitive deadlines.
Michael J. Volpe is with Venable LLP, where he co-chairs the Labor and Employment Practice Group.
NO "TYPICAL" DAYS
PENNY SOMER-GREIF
Lucosky Brookman LLP
AS A LAW STUDENT, PENNY SOMERGREIF KNEW THAT SHE WANTED TO WORK IN CORPORATE LAW. chance encounter with a law professor who suggested that she should apply to the Securities and Exchange Commission’s student observer program, she ended up working at the SEC for school credit during her last semester of law school, and for four-and-a-half years immediately after graduation. She has practiced in securities law ever since and considers herself very lucky to have “fallen” into this area of law, as she truly enjoys it.
Somer-Greif, who serves as Chair of the MS BA’s Business Law Section and Vice Chair of the Committee on Securities Law and is a member of the Committee on Corporation Law, joined the firm of Lucosky Brookman LLP, as counsel in July 2022.
Photo courtesy of Travis Marshall.
What professional accomplishment are you most proud of?
Interestingly, it was one not in the securities law realm. In 2004, I was working on a pro bono asylum case for a young man from Cameroon who faced severe danger in his home country as a result of his political activities there, which was why he had fled and requested asylum in the United States. We won the case, and the gentleman was allowed to remain here. I really do enjoy the substantive practice of securities law, but it doesn’t give us opportunities like this—to be able to help someone as an individual to this degree; to literally save someone’s life. To have the opportunity to help someone in this way, that was amazing.
Tell us a little bit about your current role. I am just getting started in my current role. But I was thrown into the fire, so to speak, pretty quickly. By the end of the second week I was assigned to the team on five different deals, generally merger transactions involving the issuance of stock in an SEC-registered transaction. That is pretty much in line with what I do, but I really did have to hit the ground running.
What does a day at work look like for you?
I don’t know if there is ever a “typical” day in this kind of career. At my current firm, we have meetings each morning—all-firm on Mondays, Wednesdays, and Fridays and senior-level attorneys on Tuesdays and Thursdays. The firm is headquartered in New Jersey, and the few of us in the D.C. area work entirely remotely, so the meetings are a good way to connect with the rest of the firm, stay in the loop on what the firm as a whole is working on, stay updated about developing issues, and solicit and provide advice to the other attorneys on particular matters.
After that, my days have been primarily drafting and reviewing transaction documents and preparing registration statements or disclosure for a registration statement. I expect to be getting involved in ongoing Exchange Act filings (annual and quarterly reports, proxy statements, etc.) once things settle down a bit.
Describe a memorable MSBA event that has had an impact on you professionally.
My first MSBA event was the annual legal summit in 2006. It was my first time in Ocean City and gave me quick exposure to other attorneys in Maryland. It also gave me my first opportunity to work with then and current Maryland Securities Commissioner Melanie
My first MSBA event was the annual legal summit in 2006. It was my first time in Ocean City and gave me quick exposure to other attorneys in Maryland. “
Lubin, who I got on with extremely well and has become a cherished professional relationship and friend. I have spoken at a number of MSBA events, including a number of the Advanced Business Law Institute programs put on annually by the Business Law Section. In fact, one of the other Maryland-based attorneys at my new firm had remembered me from a presentation I gave at an MSBA event!
How do you spend your free time?
I like to read, primarily non-fiction books but I will sometimes dabble in historical fiction (the Outlander series is a particular favorite) and science fiction as well. Oh, that, and purchasing more books than I will ever have time to read!
Do you volunteer?
I work with Catholic Charities’ Immigration arm, staffing their intake center at the Family Justice Center in Rockville. We interview people to assess whether they may qualify for a visa under the Violence Against Women Act or a U visa for victims of certain crimes and make a recommendation to Catholic Charities. If they may qualify, Catholic Charities attempts to find them a pro bono attorney through their network of volunteer attorneys in the area.
The Laws Committee
Leading MSBA's Advocacy Efforts on Behalf of Legal Profession
The Laws Committee is an essential part of the MSBA’s legislative advocacy, spearheading efforts to help shape public policy and laws that impact the legal profession via oral and written testimony during the Maryland General Assembly sessions. Previously, the Laws Committee periodically benefited from input from other MSBA sections. This year, the MSBA increased its advocacy efforts, and the Laws Committee sought input from the MSBA sections throughout the legislative session.
The MSBA Laws Committee Process—Analyzing Bills & Making Recommendations
While membership on the Laws Committee generally involves less than 10 meetings a year, it is nonetheless a significant undertaking, as members must analyze bills and make recommendations in a relatively short time.
Generally, the Laws Committee meets once a week when the General Assembly
is in session. Prior to each meeting, the MSBA reviews recently filed bills to determine which ones the Laws Committee or MSBA section should consider; it then sends reports containing that legislation to the Committee and sections. During each meeting, the Laws Committee reviews its weekly report to determine whether the proposed legislation could impact Maryland’s legal profession. If the Laws Committee finds a bill warrants further consideration, it analyzes whether it should recommend that the MSBA support, support with amendments, oppose, or monitor the bill.
Throughout the process, the Laws Committee is guided by the State Legislative Program, a comprehensive handbook that sets forth the MSBA’s positions on broad legislative issues such as the regulation of the legal profession, the administration of justice, and the independence of the judiciary. The Laws Committee reviews and revises the State Legislative Program annually, to ensure that it continues to
The Laws Committee is guided by the State Legislative Program, a comprehensive handbook that sets forth the MSBA’s positions on broad legislative issues such as the regulation of the legal profession, the administration of justice, and the independence of the judiciary.
The MSBA took action on 26 bills based on the Laws Committee’s recommendations. In sum, the MSBA offered written or oral testimony in support of nine bills, in opposition of seven bills, and in support with amendments of four bills.
uphold the MSBA’s objectives, after which it is approved by the Board of Governors.
During its weekly meetings, the Laws Committee also evaluates which practice areas each bill could impact and seeks input from the corresponding MSBA practice section. Typically, the section will then offer a recommendation to the Laws Committee as to whether the MSBA should monitor, support, oppose, or amend the bill, or provide further information to legislators.
If the Laws Committee agrees with the section’s position, it then offers its analysis and recommendation and that of the impacted section to the MSBA Board of Governors. The Board considers the respective recommendations and votes on whether to adopt them; if the Board adopts the Laws Committee’s recommendation, no section can take an opposing position. If the Laws Committee rejects a section’s recommendation, the section may take independent action if it does not conflict with the MSBA’s position.
In some instances, the Board will notify the impacted section of its position and may seek further involvement from the section, including written or verbal testimony. While the entire process is relatively involved, it must happen very quickly, as there are often mere days between when a bill is introduced and when legislative hearings occur.
2022 MSBA Laws Committee
Took Action on 26 Bills
In the 2022 Legislative session, the MSBA reviewed over 2,000 bills and identified 88 that could impact the legal profession and referred those to the Laws Committee and other sections for review and input. The bills covered a variety of topics that could affect the practice of law, including access to counsel in evictions funding, criminal expungement, judicial transparency (including sentencing guidelines, reporting, and cameras in courtrooms), access to counsel in foreclosure cases, wrongful conviction matters, judicial elections, and juvenile reform.
The Laws Committee ultimately provided recommendations on 58 bills, and the MSBA took action on 26 bills based on the Laws Committee’s recommendations. In sum, the MSBA offered written or oral testimony in support of nine bills, in opposition of seven bills, and in support with amendments of four bills. The MSBA also filed informational letters on six bills, when it found that it could best aid the legislative process by offering information and recommendations on an issue without advocating for a specific position, or where the Laws Committee could not come to a consensus on a position.
Unlike other MSBA Committees, members of the Laws Committee are typically appointed by the MSBA President, with the aim of making sure the committee has a broad base of practice and experience among its members. Typically, the Committee has around 30 members.
Photos courtesy of Travis Marshall Photography.
LAWS COMMITTEE VICE CHAIR (FORMER CO-CHAIR)
Margaret M. “Meg” McKee
Margaret M. “Meg” McKee, of counsel at Pessin Katz Law, P.A., was appointed to the Laws Committee in 2009 by MSBA President Tom Cordero. She became the vice-chair of the Committee in 2016 and later was appointed co-chair. McKee brings insight garnered through her professional experienceo the Committee, along with institutional knowledge, in that she remembers how it voted in past years. She also gets along with the other Committee members, which helps her facilitate amicable discussions as co-chair.
McKee finds it essential to review each piece of legislation that's going to be discussed that night. If a bill involves a proposed amendment to another law or refers to other statutes, they have to read them as well, which is why the workload can be significant. McKee elaborated, “[t]he most important job of the chair is really being prepared to manage the meeting and to get through the agenda as efficiently as possible, and that requires a deep dive into everything [they’re] talking about that night.” She noted it can be challenging for “people who are on the committee to disassociate themselves from the interests of their practice.” While it does not happen often, if a chair feels a member is espousing a position that seems to advocate their practice, they try to open the discussion up more broadly to all viewpoints and not just one that might include some self-interest.
To McKee, “[the Laws Committee’s] mission is to advance the interests of Maryland lawyers in the legislature” through advocacy. She elaborated, “[t]he legislature is making decisions about laws that affect all of our clients, and if we don't have a say in some of that, we're going to be dictated by the legislative branch…we want to have input on what statutes are being passed, which affect the practice of Law and our clients, broadly.”
McKee finds “the collegiality and the ability to forge friendships with people that you generally, otherwise wouldn't come into regular contact with” to be one of the best benefits of being on the committee. It is clear to her that “the members on the committee are amongst the most diligent practitioners she has ever met, and they're very dedicated to the rule of law, to access to justice, and fairness across the practice.”
LAWS COMMITTEE CO-CHAIR
David L. Cahn
David L. Cahn, a partner at Whiteford Taylor Preston LLP, practices in the area of franchise law. Cahn always had an interest in advocacy and went to law school because he wanted to go into politics. Cahn wanted to join the Laws Committee to get more involved with legislative advocacy work. He was appointed to the Committee prior to the 2019 legislative session and became co-chair in 2020.
Cahn noted many Laws Committee members have come up through the specialty sections and have backgrounds in subjects that are helpful to the Committee. The Committee counts judges, prosecutors, and criminal defense attorneys among its members. Cahn offered that “even if most of what we deal with isn't something that you deal with in your day to day practice, you can still play a constructive role” in the Laws Committee.
Cahn stated the Laws Committee operates on a very intensive and condensed schedule. He explained that the Laws Committee makes recommendations to the Board of Governors as to what policy position
the MSBA should take and its charge, in addition to using the members’ points of view, is to know that the State Legislative Program well, so that they can make sure that whatever position they take, at minimum is not contrary to the Program and ideally is in a fully in harmony with it. Cahn believes the varied experience of the Laws Committee members has been invaluable in terms of bringing the State Legislative Program to life, stating, “because of the diversity of voices, various members bring different perspectives, in terms of what they see in their day-to-day practice and how various bills will impact not just the attorneys, but also the people they represent in the justice system.”
To Cahn, the Laws Committee’s goal is to “make sure that the bills that will unfairly inhibit the practice of law, don't proceed” and that the “MSBA’s voice is heard on issues that will significantly impact the public’s ability to access courts and proceed to get justice and vindicate their rights.” His involvement with the Laws Committee has shown him “what broader impact the MSBA can have when dealing with larger issues of concern, to not just lawyers, but the entire state.” Cahn looks forward to welcoming and working with new Committee co-chair Kelly Hughes Iverson, a partner at Goodell DeVries.
LAWS COMMITTEE MEMBER
Judge
Lawrence V. Hill
The Laws Committee is fortunate to count judges, including Lawrence V. Hill, Jr., an Associate Circuit Court Judge for Prince George’s County, among its members. As a Circuit Court Judge, Judge Hill presides over the county’s ReEntry Court, which is a Problem Solving Court that provides services to returning citizens that have been deemed in need of inpatient residential treatment for substance abuse by the Health Department. He was the Juvenile Coordinating Judge for three years as well. There have been occasions where attorneys have told him or shown him pictures of their past juvenile clients' achievements such as college graduation and military promotions. He finds it especially rewarding to see those who came before him with serious violent charges doing well.
Since the pandemic, most of Judge Hill's time has been spent presiding over cases via Zoom. One of the consequences of the pandemic has been that he has only had the opportunity to preside over approximately five jury trials. Pre-pandemic it was not unusual for him to
have five trials in one month. He finds having to conduct hearings via Zoom challenging, as assessing the credibility of witnesses and reviewing evidence on a computer cannot equate to doing so in person. It becomes more problematic because a number of parties, witnesses, and attorneys are not tech-savvy or do not have access to the internet.
Judge Hill joined the MSBA to broaden his legal contacts and resources beyond Prince George’s County. He attended his first MSBA state conference in Ocean City in the early nineties. It was his first opportunity to meet and talk with attorneys and judges outside of court.
He has been a member of the Laws Committee since approximately 1993. He noted that everyone on the Committee brings a unique experience and perspective. His experience includes general practice work in small and solo firms concentrating on criminal, juvenile, and family. As an attorney, he appeared in counties across the state from Western Maryland to the Eastern Shore. As a judge for over ten years, he brings his judicial experience that includes District Court and Circuit Court from one of the larger jurisdictions. In his opinion, “[t]he MSBA is one of the most respected voices that legislators consider during the legislative session in Annapolis.”
LAWS COMMITTEE MEMBER
Irnande Altema
Irnande Altema is the Associate Vice President for Government and Business Affairs of the Maryland Independent College and University Association. Altema attended law school out of state and lacked connections in the Maryland legal community. She knew there was much she did not know and joined the MSBA to help fill in the gaps. Luckily, she struck up a conversation with someone who spoke highly of the Leadership Academy and its social and civil service benefits. She joined the Leadership Academy, which she describes as one of the best decisions she made because she met individuals who served on the Laws Committee and was introduced to a path to become a member.
Altema has been a member of the Laws Committee for three years but has been engaged with the Maryland General Assembly since 2012. She has always been interested in applying her legislative expertise and legal background to the practice and when she learned of the Laws Committee, she was eager to be part of the group. Altema stated, “I wanted to positively impact the legal profession so attorneys could continue to serve Marylanders. Several changes happen on the legislative level that impact attorneys so I wanted to be part of the conversation where MSBA decided to insert its perspective before Delegates and Senators.”
Altema describes her fellow Laws Committee members as inviting diversity of thought. She elaborated, “[t]he group is keenly aware that the demographics and ever-changing needs of the public and they seek to ensure they are striking a balance between the principle of the law and practical application of the rule of law. The group is motivated to supporting ways to increase access to the legal system.”
Altema believes the Legislative Branch is always interested in hearing from stakeholders and the individuals that
would be impacted before passing a law. There is an understanding that attorneys are an extension of their clients, and many times are speaking on their behalf because of the limited access to the Legislature or having their voice heard. In her opinion, “[a]ttorneys are wonderfully skilled at being advocates and thus it is important to redirect those advocacy skills in a space that impacts the practice of law, clients, and future legal matters.”
LAWS COMMITTEE MEMBER
Phillip Robinson
Phillip Robinson is the owner of Consumer Law Center LLC, a consumer litigation firm representing consumers in state and federal courts. Robinson joined the MSBA seeking support for starting and developing his solo practice.
His work takes him to the General Assembly to support the constituencies he serves—mostly vulnerable homeowners who live paycheck to paycheck or are caught up in financial abuse schemes.
Vulnerable Maryland residents do not have the means or time to explain to the members of the General Assembly how debt collectors, financial service companies, and even sometimes the government unfairly, deceptively, and abusively impact their lives. So, when he is able, he tries to help
convey their stories in Annapolis and work within the system to make changes for his client's benefit.
Robinson sought appointment to the Laws Committee years ago so he could share the perspective of an attorney working to help vulnerable residents. On the Laws Committee, he tries to offer this perspective of the proposed legislation and why it should be important to the MSBA to consider taking a position. Robinson advised, “I try to share a voice or perspective for the purpose of helping guide MSBA to be a voice for fair and impartial justice for all and not just those who are more fortunate and privileged. I hope my efforts will allow the art of compromise to find common ground for the benefit of the whole and not just few.”
To Robinson, “[i]t is an honor to listen to each and observe the different dynamics you would never experience in a courtroom. If you went to law school to further a policy career, this would be a good place to lend your talent.”
There are fewer members of the General Assembly that are attorneys each session, and Robinson believes MSBA member attorneys who can understand the impact of a policy decision by the General Assembly are needed more than ever to help the members of the legislature make informed decisions. While there are attorney analysts who work in the Legislature, Robinson thinks they lack practical experience. To that end, he thinks to make sure the system works the way it is supposed to work MSBA attorneys need to support and participate in the policy-making process.
LAWS COMMITTEE MEMBER
Catherine M. Brennan
Catherine M. Brennan is a partner at Hudson Cook, LLP, practicing primarily in the area of consumer financial services. In her practice, Brennan represents fintech companies, banks using fintech services, and investors in the sector, many of which are presenting unique, new models. She applies her knowledge of federal and state regulations to these innovative business models, providing clients with business-critical advice such as accelerating timescale for fintech companies to reach market with their services. She is nationally ranked in the Chambers FinTech USA Guide for Corporate, Securities & Financing, Brennan, and is a member of the American College of Consumer Financial Services Lawyers.
Brennan also has experience working as a lobbyist, in direct financial services, and in compliance, both in public and private capacities. She prides herself on abiding by the motto, “[g]ive clients good customer service, as the only thing we have to sell is our time, and they have to be willing to pay for it for us to make a living.”
She joined the MSBA because she wanted to connect with attorneys throughout the state on issues relevant to Marylanders as well as to connect locally with attorneys who practice in the same area of law as her. When she was a reporter for The Daily Record in the 1990s, she won an MSBA award for an article she wrote and got to attend the annual meeting in Ocean City. She had not been there before, and really appreciated being able to see the beach and the kindness extended by the MSBA staff.
Brennan thinks it is important for lawyers to engage in legislative advocacy efforts because “they are specially trained in how laws are made and can offer that knowledge to others that are advocating for or against specific pieces of legislation.” She joined the Laws Committee in 2022 and found it to be a “hit the ground running” experience, advising future Laws Committee members to be prepared.
Brennan likes to spend her free time walking around Baltimore City with her family and their dogs; her favorite walking spots are Lake Roland, Hampden, and Fells Point. They window shop and people watch for their urban hikes, while their green hikes bring them to one of Baltimore’s more than 40 parks. They usually end up at one of Baltimore’s great restaurants.
Friend of the Court:
MSBA Successfully Persuades Supreme Court of Maryland, Protects Foundation of Attorney-Client Relationship and Interests of Maryland Attorneys
The MSBA remains committed to advocating for the legal profession and the interests of tens of thousands of attorneys in Maryland across a variety of practice areas. The MSBA’s advocacy takes many forms, and includes two recent filings of amicus curiae briefs on matters of importance to the profession. The MSBA filed these briefs to protect the foundation of the attorney-client relationship and to prevent limitations on the practice of law. The Supreme Court of Maryland recently issued a favorable ruling in Nagle & Zaller, P.C. v. Jahmale E. Delegall and favorably cited the MSBA’s amicus brief. The MSBA thanks Jennifer L. Kneeland, Esq. and Marguerite Lee DeVoll, Esq. of Watt, Tieder, Hoffar & Fitzgerald, LLP, who prepared the brief on behalf of the MSBA, Maryland barred attorneys, and the interests of the profession. Both are bankruptcy attorneys with a focus on creditors’ rights and both have been MSBA members for several years.
The U.S. District Court for the District of Maryland certified a question of law to the Supreme Court of Maryland, seeking a determination as to whether or not an attorney practicing law in the State of Maryland was subject to the requirements of the Maryland Consumer Loan Law (MCLL) when the attorney prepares settlement agreements and other instruments that require payment over
time of $25,000 or less, certain types of confessed judgments, or other similar financial instruments delivered to consumers. Among other things, the MCLL requires persons subject to the law to register with the Office of Commissioner of Financial Regulation and obtain a license— actions that the Nagle & Zaller, P.C. law firm did not undertake in the facts, giving rise to the appeal.
Favorably citing the amicus brief that the MSBA filed, the Supreme Court of Maryland reasoned, “As the Maryland State Bar Association points out in its Amicus Curiae brief, under Delegall’s interpretation, every Maryland lawyer who represents a creditor-client that agrees to settle a claim for $25,000 or less through settlement payments made over time, and drafts a settlement agreement that memorializes such terms, would be required to be licensed under the MCLL. Under such an interpretation, where a law firm drafts such a document without a consumer loan license issued by the Commissioner, the consequence would be that the underlying indebtedness would be void and unenforceable. Surely, the General Assembly did not intend for the MCLL to be applied to these types of transactions.”
The Supreme Court of Maryland decision in Delegall is an important decision for attorneys who practice law in the State of Maryland
because it preserves the status quo for those drafting settlement agreements and other instruments that provide for the payment of $25,000 or less over time and clarifies that attorneys do not need to obtain a consumer loan license under the MCLL. The MSBA will continue to advocate on your behalf on issues that have far-reaching implications for the profession.
Amicus Authors on Their Involvement in MSBA and the Process of Drafting the Brief MSBA spoke to Kneeland and DeVoll about their involvement with the MSBA and this brief, its impact on the profession, and why lawyers should engage in these types of advocacy opportunities. Both are admitted to numerous federal courts throughout the nation and have a national bankruptcy and creditors’ rights practice. Kneeland is licensed in Maryland, D.C., and Virginia; DeVoll is licensed in Maryland, Virginia, and Georgia. Kneeland and DeVoll have both been members of the MSBA for several years. Kneeland is a past president of the Maryland Bankruptcy Bar Association and, before serving as president, served on the Board of Directors and as an officer in the organization for over 10 years. She is also an officer of the Northern Virginia Bankruptcy Bar Association and a 20+ year member of the American Bankruptcy Institute. DeVoll previously served as an At-Large Council Member
for MSBA’s Veterans’ Affairs and Military Law Section. She currently serves as the assistant treasurer of the Board of Directors of the Maryland Bankruptcy Bar Association and is a member of the Northern Virginia Bankruptcy Bar Association, the American Bankruptcy Institute, and the International Women’s Insolvency and Restructuring Confederation.
A colleague of Kneeland and DeVoll, Amy Lorenzini (now Circuit Court Judge for St. Mary’s County), referred them to the MSBA as potential counsel.
Describe the process for research and drafting the brief.
We consulted with the MSBA throughout the process to make sure that we were serving Maryland attorneys, (i.e., MSBA members) in the most effective manner. As part of our work and research on the MSBA’s amicus brief we examined the Maryland Rules of Professional Conduct, Maryland Rules, and the Maryland Consumer Loan Laws (MCLL). We thought it was important to explain to the Supreme Court of Maryland that the definition of a “lender” under the MCLL should not be read expansively to include an attorney preparing settlement and other loan documents, as doing so could create potential conflicts of interest and discourage certain types of settlements or consensual resolution of disputes. We also researched the history and legislative intent behind the MCLL and similar statutes in other states to see if there were any other jurisdictions that had similar laws and whether they had been interpreted to apply to attorneys.
What is the purpose of an association like the MSBA filing a brief in an appellate case?
Many times, when people think about a lawsuit, they are focused only on the impact that a decision may have on the two sides in litigation. Sometimes, however, appellate courts are asked to review and consider an aspect of law that has yet to be discussed and addressed by courts. As a result, in these issues of first impression, the appellate court’s ruling not only impacts the rights of the parties immediately before them, but also
Many times, when people think about a lawsuit, they are focused only on the impact that a decision may have on the two sides in litigation. Sometimes, however, appellate courts are asked to review and consider an aspect of law that has yet to be discussed and addressed by courts.
the rights of future potential litigants. When those rights implicate the attorney-client relationship and the practice of law, the MSBA has a vested interest in providing a voice for its attorney-members to the appellate court for consideration.
Why is this issue important for the MSBA? Delegall is of particular importance to the MSBA and its members. The Supreme Court of Maryland was asked to interpret aspects of the MCLL and determine whether an attorney representing a lender client are themselves a “lender” under the MCLL when the attorney and their law firm pursue debt collection on behalf of their clients or draft promissory notes for their clients. If found to be “lenders” under the MCLL simply by virtue of representing their clients, then the attorneys would be subjected to additional regulation, including additional licensing requirements. The issue thus went to the heart of the attorney-client relationship and the ability of an attorney to advise and assist clients without bias.
How does this brief’s argument protect the interests of Maryland legal professionals and their clients?
Subject to the existing professionalism and ethics rules, clients should be able to hire competent legal professionals to assist them in drafting and preparing documents related to settling and resolving claims, regardless of the nature of those claims. The amicus brief that we drafted focused on these practical concerns, and in particular, the impact on smaller claims amounts. Potential clients—
regardless of the size of their claim—should be able to hire and retain counsel to facilitate claims resolution. Lawyers, in turn, should be able to provide that assistance without needing additional licensing requirements or risk voiding the debt being resolved.
In this case, the Supreme Court of Maryland favorably cited the MSBA’s amicus brief. What impact will the court’s decision have on Maryland attorneys?
We think the Court of Appeal’s decision will provide comfort and protection to Maryland attorneys practicing in Maryland in that they can represent their clients (whether creditor or debtor) in small claim resolutions without the need for additional licensing simply because the monetary amount is not large enough. It allows Maryland attorneys to accept cases of all potential recovery sizes and be zealous advocates for their clients without having to worry about whether they themselves may be liable to the opposing party.
What advice would you give to an attorney who is interested in becoming involved in this type of appellate work? Get involved with your local bar and industry associations and be attuned to potential issues that affect their interests. If there is an issue that you connect with, become a thought leader on that issue.
DOING THINGS HER WAY
SARA EL-SHALL
Law Office of Sara El-Shall
MARYLAND BAR FOUNDATION (MBF) FELLOW SARA EL-SHALL HAS BEEN PRACTICING LAW FOR 10 YEARS and runs her own firm, where she focuses on workers’ compensation and personal injury.
El-Shall says she is honored to serve as a new fellow of the MBF. “As lawyers, we have a responsibility to the public to give back,” she says.
“There are plenty of lawyer jokes out there and many people do not seek legal representation unless they are dealing with a problem or obstacle in their lives. Educating local communities and expanding access to justice is essential to improving society.
Fostering relationships early has been very valuable for me in many ways. It has helped me with client referrals, mentorship, growing as an attorney, and forming meaningful relationships and making great friends. “
Why did you enter the legal profession?
I decided to go to law school while interning as a caseworker assistant at a halfway house in Washington, D.C. The halfway house was in the process of shutting down, and the residents were being moved from the smaller, community based facility to a large “warehouse-type” facility, where many would have to travel much further using public transportation to try to find jobs as they transitioned from prison to civilian life. At the same time, the federal sentencing guidelines were revised to correct the sentencing disparities between crack and powder cocaine. Many of the residents were eligible for reduced sentences, but they needed legal counsel to have any hope of receiving a reduced sentence. I felt that lawyers could affect change, and the idea of being able to make concrete changes greatly appealed to me.
What is the best piece of advice you have received from someone in the legal profession?
Learn how to say no. During law school, I was experiencing a particularly difficult family situation while also overextending myself with my academic and professional commitments. Our Dean of Students told me that one of the most important lessons you can learn as an attorney is when to say no.
What is the one piece of advice you would give someone in law school or considering a legal career?
Keep an open mind and don’t limit yourself to a specific vision or career path. I never thought I would end up primarily practicing workers’ compensation law, but I grew to love the nuances in the law and challenge that it provides.
What are some of the challenges and rewards of running your own firm?
Opening my own practice has been a bit of a rollercoaster. I worked as a paralegal and administrative assistant before law school and never thought I would open my own practice because I witnessed the administrative aspects of running a law firm. At the same time, it has been incredibly empowering and exciting to finally be able to do things my way. Although I didn’t have all of the perfect systems (i.e. paralegal manual, automated forms for everything, website, etc.) in place when I first opened my own practice, I’ve realized that nothing is ever going to be perfect and I have to tackle obstacles one step at a time.
How has the MSBA helped you in your legal career?
I think one of its greatest assets is membership diversity. MSBA’s membership is composed of practitioners all over the state, law students to members of the bench, different practice areas and members who bring diverse perspectives from their past experiences to the profession. Fostering relationships early has been very valuable for me in many ways. It has helped me with client referrals, mentorship, growing as an attorney, and forming meaningful relationships and making great friends.
Why should others join the MBF?
To better help their own communities and move our profession forward. I also feel like it is very important to be connected to the community and by providing grants, MBF fosters awareness of many fantastic organizations.
What we can’t find on your resume . . .
I’m a big animal lover. I have a cat named Sphinx and would like to have a dog eventually. I’m always happy to pet sit and sometimes volunteer at BARCS (have to limit that because I’ve been very tempted to take so many animals home).
What’s your favorite hobby?
British premier league soccer is the best. I’m a huge Liverpool FC fan and member of the Baltimore Liverpool Supporters Club.
What’s an interesting fact about you that no one would guess?
Although I was born in Los Angeles, I have an Egyptian birth certificate and recently became a dual citizen.
MSBA: A Five - Year Transformational Journey
“ The future of the MSBA is tied somewhat to the future of the legal profession. MSBA's import is its interconnectedness of lawyers. MSBA is what needs to be there as we lead into the future.”
-Donald Tobin, Former Dean & Professor of Law, University of Maryland Carey School of Law
“Because of Vic's work and leadership, the MSBA is in a position to grow and get better moving forward.”
-Judge Keith Truffer, MSBA Past President
Voluntary Bar Associations Across the Country Have Faced Significant Challenges
The
MSBA
’ s Journey
The MSBA, like all voluntary bars across the country, began facing significant challenges a decade ago. In 2017, with the retirement of long-time Executive Director Paul Carlin, the MSBA hired Victor Velazquez, MBA, CAE, to change the organization’s trajectory. Velazquez “was what the State Bar needed at that time,” said MSBA Past President James Nolan. During his five-year tenure, Velazquez led the MSBA on a transformational journey that placed it on a path to success. Before he departed from MSBA at the end of October, MSBA members, officers, and staff reflected on Velazquez’s impact and legacy.
“Through Vic’s unbending leadership, he successfully redirected the MSBA to be a more relevant organization that is inclusive of attorneys across multiple spectrums of the profession. His leadership has ensured the MSBA is well positioned to deliver more value and service to our members than ever,” said Anna Sholl, who succeeded Velazquez as MSBA’s Executive Director. Indeed, because of Velazquez’s leadership, the MSBA now outperforms most other voluntary state bars. As member Thomas Dolina, Bodie Law, put it, Velazquez “took an organization that probably had the signs of wearing out; he finally got the boat back in the dock.”
Started with 25 Foundational Recommendations Adopted by the Board in May 2017
The foundational recommendations focused on transforming the MSBA in five areas: brand development, technology platforms, the member value proposition, the delivery of learning and services, and staff capabilities. After the Board’s unanimous adoption of those recommendations, the MSBA immediately began implementing changes, including updating the MSBA’s 30-year-old accounting and membership systems, upgrading technology to move the MSBA into the Cloud and allow mobile payments, overhauling the MSBA website, enhancing and increasing publications, and modernizing the methods used to communicate with members and non-member attorneys.
Past President Judge Harry Storm noted that Velazquez “led a dramatic transformation and modernization of the organization, successfully directing it to new heights. He increased the MSBA’s relevance to a broad segment of the legal community.”
On average, voluntary state bars have lost 8% of their membership each year since 2017. The MSBA has outperformed the majority of voluntary state bars in four of the past five years, contracting on average just 3% a year.
Change Is Messy, Change Is Hard, but Change Is NecessaRY
With every change, there are those who long for tradition. It’s human nature. While most members agreed that the MSBA needed to make adjustments to remain relevant to the diverse population that makes up the Maryland legal profession, when it came time to actually implement changes, the MSBA received some pushback.
"Vic came to the MSBA as a change agent, and that’s what he did. He modernized our brand and our business, and he made us think about how to succeed in a changing industry. He ruffled some feathers for sure, but he left us a better place," remembers Michael Baxter, former MSBA President. Jason DeLoach, MSBA’s President-Elect, agreed, saying Velazquez “transformed MSBA in a short time. [He] came under some animosity because change is hard.”
Throughout the journey to move forward, MSBA leaders and staff tried to account for the diverse perspectives of its membership, knowing they would not be able to satisfy everyone, but focusing on what would benefit as many members as possible and entice attorneys who had yet to realize the tremendous benefits that come with joining the MSBA. With each update and effort to increase the value proposition of the MSBA, it became more apparent that it was moving in the right direction. “Vic entered the MSBA, and his level of sophistication is through the roof,” DeLoach recalls. “With the support of the [Board of Governors], we are one of the best voluntary bars in the country.”
Cleaveland Miller, former MSBA President and Chair of the MSBA Investment Committee, noted that there’s been a move away from working in groups, and today it can be harder to retain members unless they see a real value in membership. Miller believes MSBA is successfully answering this sea change in expectations. To that point, since 2017, the MSBA has won national praise fighting for the Maryland legal profession, its membership trends routinely beat its peer group of voluntary state bars nationally, and the association has increased its net promoter score by 26 points.
MSBA ’ s Forward - Thinking Executive Director Prepared the Organization for COVID - 19 Pandemic
One key area of the Foundational Recommendations was the upgrade of MSBA technology. In 2018, the MSBA adopted new accounting systems, membership databases, and other primarily Cloud-based systems. In addition, the MSBA invested in technology and talent focused on delivering video and digital content. These efforts paid off at the outset of the COVID-19 pandemic when, like many businesses, the MSBA staff was forced to go remote. “COVID was such a game-changer for every organization. [The] MSBA team did an extraordinary job. They were able to pivot from being an in-person organization to being online … and they did it seamlessly,” said Board of Governors member Rhian McGrath.
The MSBA’s investment in technology allowed it to continue business as usual during the pandemic, and the MSBA put that investment to work, delivering more digital content than ever before and presenting Legal Excellence Week virtually in 2020 and 2021, MSBA (formerly Lobby) Day virtually in 2021 and 2022, and the Legal Summit and Annual Meeting virtually in 2020 and 2021.
“Because of Vic's vision for the future and not simply because of the pandemic, Vic brought the MSBA into the twenty-first century with technology and social media platforms. Had the MSBA not had Vic prior to the pandemic, then the pandemic would have brought the MSBA to a halt,” noted Steve Rakow, former Board of Governors member.
“Vic brought to our association sort of a visionary focus forward looking, internally and externally, sort of a very deep dive, and guided the association as it went through those steps.”
Judge Pamila Brown, MSBA Past President
Approximately
70,000 HOURS of free MSBA online learning content have been consumed as part of the member-only benefit that the MSBA started during the COVID-19 pandemic.
Membership in the MSBA Delivers More Value Than Ever
In 2021, the MSBA further increased the value of membership by including as part of membership dues digital CLE of 90 minutes or less with membership and one practice section of choice. The results of these efforts speak for themselves. Indeed, in 2015 only 17% of the profession found value in the MSBA. A 2022 survey shows a dramatic increase, with 93% of the profession finding value in the MSBA and its place in the legal profession.
Velazquez Recruited and Led a Strong Team of Attorneys and Other Staff to Carry the MSBA Forward
Another critical component of the Foundational Recommendations was ensuring that the MSBA staff’s strengths aligned with its goals of becoming more technologically centric and increasing quality content. This required the MSBA to add new team members, including nine attorneys, to the existing highly experienced staff. The MSBA now has a team of professionals with the skills and capabilities needed to deliver more valuable legal content to members. The MSBA’s employment decisions over the last five years have not only helped to optimize the products produced for members but have increased satisfaction and productivity among the staff as well, as shown by its recent certification as a Great Place to Work.
“We have never had a better team, and I'm really proud of the work that we’ve done and the growth that we've achieved,” says Andrea Terry, MSBA Director of Learning. “I would love to see us continue on the track of expanding our appeal to all lawyers in Maryland, members and nonmembers, and continuing to help position the lawyers in Maryland so that they are prepared for the future. In fact, that's our job as a professional association, and I just hope to keep getting better at it.”
Velazquez Leaves a Legacy of Transformational Change that Positions the MSBA for the Future
“The MSBA has been completely transformed within the past five years in terms of communication to our members, service to our members, and programming for our members,” says MSBA Past President, Judge Keith Truffer. The MSBA evolved from an organization that was behind the times to one that is technologically savvy, increased the availability of the MSBA's resources and products, and enabled greater communication between the MSBA and its members. MSBA has prioritized creating quality content and digital offerings and focused on enhancing the benefits and products we provide for our members, and brought new players on board to help us achieve the goals set out in the Foundational Recommendations.
Judge Pamila Brown, an MSBA Past President, believes the MSBA “is poised for a great future. I think we have made ourselves very relevant to our members, that we continue to provide products and programs that will guide them in their practice. We continue to provide meetings and opportunities for gathering that could assist in both mentorship of others and just the collegiality that really over the last couple years were lacking.”
All of the changes implemented over the last five years have led to the MSBA becoming a leading voluntary state Bar in terms of membership growth performance year over year. As MSBA continues to move forward, it will continue to strive to be the home for all of Maryland’s attorneys, no matter their practice area, tenure, or demographics. “Vic is leaving the MSBA very well positioned to be the leading legal organization in Maryland for the years to come,” said Streett Baldwin, Director, Ellin & Tucker.
Theresa Michael, Executive Assistant and Governance Administrator, has been with MSBA for more than 30 years. In looking forward, she notes that the MSBA staff has worked great together over the past five years. “This strong team works hard. I have faith that they will continue to push out information that will keep members engaged and hungry for more.”
In words reminiscent of Velazquez’s own speaking style, MSBA Past President Judge Mark Scurti said, “To put a bow on it, he has taught us new language, new approaches, he's personable, friendly, smart, dynamic, and has an unending sense of humor. Despite leaving, I know that he will always be a friend of the MSBA, and I hope to maintain his friendship going forward."
A Cross-Section of the Legal Profession Developed MSBA ’ s Strategic Priorities & Objectives to further MSBA ’ s Progress
In 2018, the MSBA garnered a committee of 20 attorneys from across the legal profession to develop a strategic plan. The committee focused on two broad topics: defining the MSBA’s role in the profession and ensuring the MSBA was a healthy business. The MSBA Board of Governors (the “Board” or “Board of Governors”) adopted the committee’s recommendations in May 2018 and, since then, has been focused on achieving six core priorities and objectives:
• Serving as the voice of the legal profession in Maryland,
• Serving as the home of all legal professionals in Maryland,
• Advancing access to justice,
• Focusing on innovation,
• Ensuring MSBA services and opportunities are accessible to all members, and
• Providing significant value in return for membership.
“We are
on an extremely positive trajectory to become financially sound and to restore the organization to make it strong, vibrant, and relevant. Revamped, revitalized, reimagined."
-Judge Mark Scurti, MSBA Past President
farewell to victor velazquez
featuring Michael Teitelbaum
HTTPS://YOUTU.BE/DOZ4GJRKYRE
Michael Hudak
HTTPS://YOUTU.BE/UWJ-BYFCH54
Bud Tayman
HTTPS://YOUTU.BE/GXYHJLP_2HI
Streett Baldwin
HTTPS://YOUTU.BE/Q9YJI827-0K
Dean Ron Weich, UB Law
HTTPS://YOUTU.BE/FBYBW6TVELA
Donald Tobin
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THE MSBA’S FOCUS ON ITS STRATEGIC PLAN HAS DRIVEN ITS SUCCESS
Since adopting the strategic plan, the MSBA leadership and staff have implemented changes and new programs designed to achieve the priorities and objectives. Below are just a few examples of our work to date:
Amplifying the profession ’ s voice in Annapolis at critical times
Securing millions of dollars in aid for legal services organizations post-COVID
“Member value was not at the forefront of the MSBA’s minds, both in our volunteer leadership and staff, the way it is now. That is a result of Vic’s future-focused and data-driven strategies and long-term vision.”
-Andrea Terry, MSBA Director of Learning
Including Unlimited Free Digital CLE to standard membership
WEB EXTRAS
Hosting hundreds of programs each year, from one - hour digital webinars to LEgal excellence week to Legal Summit
Helping MSBA members stay informed on the latest trends in the profession
Creating, curating, and circulating relevant content for your practice
“Vic led a dramatic transformation and modernization of the organization, successfully directing it to new heights.”
-Judge Harry Storm, MSBA Past President
Implementing a new committee selection process to improve diversity and encourage more members to get involved
Working to Advance and Protect the Interests of the Legal Profession
The MSBA earned certification by Great Place to WorkⓇ for 2022. MSBA President David Shapiro said "We hope that by showing the success of MSBA's workplace initiatives and the impact it has made in the lives of the MSBA staff that we can continue to enrich and influence the culture in the legal profession in Maryland to encourage our members to create environments that are inviting, inclusive and reflective of purpose and values in their own places of work."
I first noticed my mental health issues at a young age. As a child, I would frequently have trouble falling asleep due to racing thoughts consisting of worst case scenarios and fake conversations that were unlikely ever to arise. When I entered my teenage years, other thoughts began to materialize. These thoughts were much darker and would predominantly form in the winter months when sunlight was scarce. It was in high school when the rare suicidal thought began to arise. Although they were fleeting, their intensity in the moment should have forced me to seek help. However, as a male and a teenager, the stigma of mental health issues and the stigma of seeking help deterred me. At that time, I believed that the fleeting depression did not warrant therapy or medication. However, if I knew what I would feel just a few years later, I would have made every effort to receive the help I needed.
I graduated high school with the promise of freedom and independence that would come with college. Loneliness was rare when constantly surrounded by people in the dorms and the classroom. Although the occasional passing thought would cross my mind, it was quickly suppressed by the excitement of friends and parties. The experience of college was a natural repellent for the symptoms that would lead to my depression. Near the end of my college and without knowing exactly the path I wished to take, I decided to move home and take the LSAT, thinking that the life of a lawyer may be my right path. I believed the mental health issues were far in the past and looked forward to what lay ahead.
The summer following my college graduation, I moved back into my parent’s house and began studying for the LSAT. Studying gave me a sole focus and a forward-looking goal. The LSAT came and I performed well enough for admission into decent law schools with employment statistics that promised a better life. However, law school was not to begin until the following August. It was during this period in which I experienced the worst of my mental health. I picked up a temporary
A Personal Story by a New Federal Attorney
job in retail to earn enough money to provide some financial stability as I moved. The job was part-time and not particularly challenging. Without the challenges that enthralled me, I slowly fell into an unwell mental state. Looking back, I realize it didn’t come upon me at once. It was slower and subtler. If I had sought help in my teenage years, I may have noticed the signs of my disintegrating mental health. Maybe I would have noticed the racing thoughts and the fabricated internal conversations. Without the tools that could have protected me from myself, my thoughts continued to worsen. The anxiety compressed itself and doubled over into depression. Now, the depression was not fleeting but constant and crushing. Days would pass in which it was nearly impossible to leave my bed. My friends seemed distant and my life pointless. I was incapable of seeing my ability or the promising life ahead of me even with law school acceptance letters being delivered into my parents’ mailbox with scholarships included. The entire idea of law school seemed distant. A plan made by a different man whose shell I was still wearing.
It was during this time when my suicidal thoughts grew more frequent and more intense. At the bottom of this pit, I somehow found the strength to admit to my mother I needed help. Not knowing where to turn, she made me an appointment with a Primary Care Physician. After describing my symptoms, the doctor put me on an antidepressant. I was hoping this would provide the relief I desperately needed. My mother also scheduled an appointment with a therapist. It was only by reaching my darkest moment was I ready to admit my need for therapy. Although I only met with this therapist a handful of times, it opened the option of therapy in my mind. In these limited sessions, the therapist introduced me to a form of meditation known as mindfulness to train my mind and guide me to remain in the moment. As spring turned to summer and I prepared to move
to Baltimore for the start of law school, I determined the few months of depression were just a blip in my life and was excited to leave it behind once again.
The beginning of law school brought with it a new set of challenges to overcome. The challenges of making friends, adapting to a new city, and handling the demanding course load of a first-year law student. At first, these challenges distracted my mind and forced me to focus on the moment effectively suppressing any negative thought. However, as my second semester started, my depression sprung up out of the abyss and mentally and emotionally entrapped me. For weeks, I tried to ignore it thinking it would pass. I was in disbelief that I could feel depression again while accomplishing so much. Finally, I acknowledged I needed help. At first, I began talking to a therapist and seeing a psychiatrist provided by the university. They helped me once again control my thoughts. I continued regularly seeing this therapist until the summer before my third year of law school. Understanding I would continue to need help after I graduated, he recommended transferring my care to Lisa Caplan at the Maryland Bar Association’s Lawyers’ Assistance Program.
I was still in a dark place when I first visited Lisa, encumbered with depression and anxiety. With Lisa’s assistance, I was able to gain better control of my thoughts and mind. The Maryland Lawyer Assistance Program is an invaluable program provided to law students and attorneys in need of help. I would recommend anybody in the Maryland legal community that needs help to reach out to this Program for assistance.
LEADING A MORE MODERN BAR ASSOCIATION
ROBIN HADDEN
Executive Director, Prince George’s County Bar Association
THE MSBA COLLABORATES WITH LOCAL BAR ASSOCIATIONS THROUGHOUT THE STATE on programs and events to further the interests of Maryland attorneys. Bar associations in Baltimore City and the 23 counties in Maryland represent the interests of attorneys that live and work within their jurisdiction. Robin Hadden, the Executive Director of the Prince George’s County Bar Association (PGCBA), recently discussed her work and how the MSBA has helped her enhance the services the PGCBA offers members.
The MSBA’s Conference for Bar Presidents helped me bridge the gap between management and law. “
Why did you start working at the bar association?
A friend thought that I would be a good fit for the position. As a former Foreign Service Officer with the federal government, I designed programs to help communities in less developed countries. I saw the PGCBA as an opportunity to continue my passion by helping the residents of the County gain better access to justice through the programs offered by the Bar Association.
What are some accomplishments you’ve achieved at the PGCBA?
Upgrading the Bar Association with digital and physical modifications, revamping the PGCBA NewsJournal, and creating a more positive and pleasant environment. Working with an enthusiastic Modernization Committee led by members Debbie Potter and Chris Dunn, along with Bar President, Judge Erik Nyce, we are functioning and working in a much more modern atmosphere. These upgrades have enhanced productivity and efficiency, as well as morale.
What professional accomplishment are you most proud of?
Not being an attorney, I am very proud of what I have learned about the legal system and having access to subject matter experts in the justice system in the State and County. Also, I am so very proud of our members and how they have embraced me in leading the Association.
What are the best skills you bring to your career?
The interpersonal, leadership, and managerial skills I gleaned from my time in the Foreign Service have been essential in serving as Executive Director. I apply these skills to every aspect of the job—be it brainstorming with Committee members on seminar topics, consoling a member in need, collaborating with other associations, mentoring an employee, connecting with a potential business partner, organizing an event, designing a program, or having a conversation with a caller looking for direction.
What do you enjoy most about your career?
The feel-good aspect of the job. Attorneys in Prince George’s County are very passionate about giving back. Whether it is offering pro bono services to the public
or offering expert advice to their colleagues they do not waver from sharing, and I love facilitating programs to make it happen. It is rewarding to see the excitement on the faces of students in the Law Links and Mock Trial programs when they work with expert attorneys and judges, and to receive a call from a person unable to pay for legal services saying “thank you for informing me of an expungement fair” that helped them clear their criminal record.
What are some of the challenges you face in your current role?
I find it challenging to find ways to increase our membership. I really would like for every attorney working in Prince George’s County to be a member of my Bar Association, but I cannot seem to figure out how to do that in a sustainable way!
How has the MSBA helped you in your career?
The MSBA’s Conference for Bar Presidents helped me bridge the gap between management and law. The Conference is instrumental in exposing me to the latest legislative policies, different programs, and technologies that specifically apply to Maryland. It brings the legal family together with the goal of improving the profession. Information sharing is a vital part in how I develop my skills as an Executive Director of the Bar Association. I love that the MSBA recognizes legal professionals in the State through various vehicles of their Association.
How do you spend your free time?
Outside of spending time with my family, my “me time” consists of being outside as much as possible.
What’s an interesting fact about you that no one would guess?
I have traveled to 36 countries and to 41 of the 50 states so far.
Maryland Tax Sales: CAUSES AND POTENTIAL REMEDIES
THE REPERCUSSIONS OF THE COVID-19 PANDEMIC reach far beyond the public health arena. Among other things, the pandemic exacted a significant toll on the global economy, causing an economic downturn the likes of which have not been seen since the Great Depression. This decline, in turn, has decreased access to justice for many people in Maryland and across the country. While systemic barriers made it difficult for low-income individuals and people of color to access the courts and obtain legal assistance well before anyone heard of COVID-19, the pandemic had a devastating impact on the rights of these communities.
The Access to Justice Commission wanted to look closely at how the recent economic decline impacted Maryland’s most vulnerable citizens, so we spoke with Maryland Legal Aid attorneys Donna Bernstein and Louise Carwell to learn more about problems consumers are currently facing. Much of the focus of recent access to justice discussions has been on eviction and foreclosure, but Bernstein and Carwell indicated that many Maryland homeowners also struggle to pay their property taxes and must grapple with the possibility
of losing their homes through tax sales. Although the Maryland Homeowner Assistance Fund (HAF) should offer relief to people at risk of losing their homes in tax sales, HAF is complicated; it can be onerous for people to access funds, and legal aid programs are overwhelmed with the administrative burdens associated with helping people complete applications. Similarly, while people can apply for tax credits, obtaining them can be challenging. Additionally, neither HAF nor tax credits address the issues that ultimately lead to tax sales, namely, property assessments.
Many people take for granted that local governments assess properties in an unbiased manner, but studies indicate the opposite is true.
In Reassessing the Property Tax, Christopher Berry, professor at the Harris School of Public Policy and The College at The University of Chicago, explained how tax burdens disproportionately impact the lowest-income homeowners. He notes that property tax is the greatest source of revenue for local governments in the United States. It should be based on the actual value of the property in question, but the accuracy and fairness of property taxes depend on the assessments conducted by local assessors.
The average homeowner lacks the ability to understand the complexities of the tax sale procedure and does not fully comprehend their rights to redeem their property. Even if they could navigate the byzantine process, it may be difficult for them to garner the funds to meet the costs associated with redemption.
Using data from millions of residential real estate transactions, Berry showed that assessments are generally regressive, with low-priced homes being assessed at a higher value relative to their actual sale price than high-priced properties. Within cities, homes in the bottom 10% of sale price face an assessment level, as a proportion of price, that is twice as high as that faced by homes in the top 10%, on average. As a result, the property tax disproportionately burdens owners of less valuable homes. This regressivity is pervasive throughout the United States, and Berry stated that it is not the result of measurement errors in sale prices or explicit policy choices, like assessment limits. Instead, regressivity appears to be caused by limitations in the data and assessment methods. This problem disproportionately affects people of color, as they tend to own lower-valued homes.1
Regressive assessments increase the tax burden on people who already struggle financially, and many people living on a financial knife edge were pushed over the precipice by the pandemic and found themselves unable to pay their tax bills. In Maryland, about a year and a half passes from the time a tax bill becomes delinquent until the homeowner loses the right to redeem their property. The average homeowner lacks the ability to understand the complexities of the tax sale procedure, though, and does not fully comprehend their rights to redeem their property. Even if they could navigate the byzantine process, it may be difficult for them to garner the funds to meet the costs associated with redemption. If the debt isn’t paid and the court issues a judgment, the certificate holder can evict the previous owner, charge them rent to live in the home they previously owned, or sell the property to another party. The net outcome is that millions of dollars in home equity are lost each year by Maryland’s most vulnerable populations, sometimes due to tax debts that only amount to a few hundred dollars.
Fortunately, Maryland Volunteer Lawyer Service (MVLS) and Maryland Legal Aid (MLA) offer services to people contending with unpaid tax debts, and their recent successes highlight the impact attorneys can have on the outcome of tax sale cases. MVLS recently helped a homeowner obtain tax credits, which ultimately reduced her tax bill, helping her keep her home,2 while MLA obtained a ruling that trial courts have the discretion to deny or limit attorneys’ fees in tax sale cases in a matter in which the tax sale purchase engaged in unfair tactics to delay redemption, thereby increasing homeowner protections against unscrupulous practices.3
The federal government attempted to help homeowners struggling to pay their taxes during the pandemic by enacting the American Rescue Plan (ARP) Act in March 2021. Among other things, the ARP Act established and provided funding for the HAF. Through HAF, the federal government provided grants to states to prevent displacements of homeowners experiencing financial hardship after January 21, 2020.
Over the next three years, the Maryland Department of Housing and Community Development will receive $248 million through the Maryland HAF to assist homeowners struggling with housing costs because of the pandemic. Although most of Maryland’s HAF funds are allocated to provide loans to mortgage holders, approximately $34 million will provide grants to assist with property tax and other delinquencies.
The HAF fund, in theory, provides critical relief for people at risk of losing their homes due to pandemic-related financial issues, but the funds are difficult to access. Bernstein and Carwell noted that because HAF is a new program, there is not a lot of information available about the application process. There are housing counselors that can help applicants, but the counselors cannot access much of the information needed to complete the application, and many lack the training required to fully assist applicants, which causes delays and confusion. Ultimately, many applications get bounced back to attorneys who end up completing much of the paperwork needed to obtain HAF funds. Bernstein and Carwell believe that there should be a better way to implement the program, such as using paralegals or other paraprofessionals who can bridge the gap between housing counselors and lawyers and help people complete applications efficiently and effectively, so that vulnerable Marylanders can access the aid to preserve their homes
In addition to applying for HAF grants, there are other measures homeowners can employ to reduce their tax debts, but they, too, are often unknown to most people. Maryland’s Homeowners Property Tax Credit program allows credits against the homeowner’s property tax bill if the property taxes exceed a fixed percentage of their gross income. In other words, it limits the property taxes homeowners must pay based on their income. Maryland’s Property Tax Homestead Credit can provide relief as well, as it limits the increase in taxable assessments each year to 10% or less each year. People can apply for credits under either program, but many lack the resources to complete applications. Additionally, it seems counterintuitive to assess a high property tax only to have
Maryland Volunteer Lawyer Service (MVLS) and Maryland Legal Aid (MLA) offer services to people contending with unpaid tax debts, and their recent successes highlight the impact attorneys can have on the outcome of tax sale cases.
people go through the process of applying for tax credits to reduce the amount.
In 2022, 4,500 owner-occupied homes in Maryland are at risk of tax sale. While steps have been taken to help prevent people of color and low-income property owners from losing their houses, it is clear that much more work is needed. Bernstein and Carwell and other attorneys who work in other civil legal aid organizations like the MVLS and the Pro Bono Resource Center of Maryland have insight into the needs of low-income people and the policy reforms that need to take place to increase access to justice. They have been part of reform efforts4 to make the tax sale process more fair towards low-income Marylanders. A legislative change that was recently pushed to help Marylanders passed during the 2022 Maryland Legislative Session and went into effect in June; it authorizes an application for the property tax relief program for renters within three years after the calendar year for which property tax relief is sought under certain circumstances, and applies retroactively to affect all taxable years beginning after June 30, 2019.
For more information and resources on tax sales, go to: https://www.peoples-law.org/keeping-your-house-out-tax-sale.
The "Best Deanship in the Country"
Renée
Hutchins Takes the Helm at UMD Carey School of Law
BY COLLEEN ARACRI, ESQ.
RENÉE MCDONALD HUTCHINS, JD, RECENTLY ASSUMED THE ROLE of Dean of the University of Maryland Francis King Carey School of Law. While this position is new to Hutchins, the law school is familiar. She spent 14 years on the law school faculty, during which she founded the Appellate and Post-Conviction Advocacy Clinic, and served as the Jacob A. France Professor of Public Interest Law and co-director of the Clinical Law Program. She returns after a three-year stint as the Dean of the University of the District of Columbia David A. Clarke School of Law.
Hutchins shared that she did not always plan to work in academia nor to go into administration after becoming an academic. But, her suitability for both is evident, as Hutchins joyfully describes her current job as the “best deanship in the country.” After obtaining her law degree from Yale Law School in 1993, Hutchins clerked for the Honorable Nathaniel R. Jones of the U.S. Court of Appeals for the Sixth Circuit and then practiced for about a decade, focusing on criminal appellate work and criminal tax prosecution and defense. She was working as a senior associate at a law firm in Newark, New Jersey, when the managing partner told her the firm wanted to make her a partner. Partnership is the golden ring for most people, and though she enjoyed the work and her colleagues, the offer made Hutchins realize that ultimately, the private practice path was not for her. She left the firm and began teaching in the NYU
The sense of community is the essence of Maryland Carey Law, and the people that make up that community are what makes the law school so special to her.
School of Law’s Lawyering Program. There, she fell in love with teaching, and so began her academic career.
Hutchins noted that she has the profound luxury of coming in as the new dean of an institution that is already thriving. This allows her to work as a champion and advocate for the law school instead of focusing on problems that need to be remedied. In addition to highlighting what the law school does well, Hutchins’ other focus as dean will be on reinvigorating a sense of community that was challenged during COVID. The sense of community is the essence of Maryland Carey Law, and the people that make up that community are what makes the law school so special to her.
While the future of legal education and the practice of law will undoubtedly include remote events and proceedings, Hutchins warned that we should not rush to move to fully remote environments. There is an element to lawyering that is necessarily interpersonal and human. Hutchins notes that if we are fully remote, we risk losing the human element of what it means to be a lawyer. Lawyers meet people at a time when they are confronted with problems that they cannot manage themselves, and that requires more than an engagement with a screen.
Part of the challenge of legal education in the future is going to be identifying where that line is for students so that they are nimble enough to move back and forth between the real world and the virtual world and can use the virtual world in ways that enhance their practice and not simply for convenience. Hutchins also pointed out that there are embedded inequities in programs that are all remote all the time that we ignore at our peril. Not every student has access to Wi-Fi or private rooms where they can engage in professional interactions quietly. In light of these realities, legal educators need to be careful that the remote space is not exacerbating existing disparities. Finally, for people who have traditionally been excluded from the legal profession, the absence of personal engagement may make it that much easier to
ignore their existence. As such, we must be careful that the virtual space is not papering over disadvantages that need to be addressed.
As the dean of the law school, Hutchins automatically has a permanent seat on the Access to Justice Commission, but increasing access to justice was a focal point of her career long before she obtained her seat. To Hutchins, access to justice means more than just access to lawyers. It also means access to a system that is not only substantively fair but also has a perception of fairness. She shared a story about her great-grandfather that encapsulates what access to justice means to her. Her great-grandfather lived in Clarendon County, South Carolina, and was heavily involved in organizing the families who became parties to Briggs v. Elliott, a companion case to Brown v. Board of Education—the Supreme Court case that struck down legal segregation in America’s public schools. His involvement in the case made his family the target of Klan violence in the rural South in the late 1940s, but he proceeded regardless.
Growing up, Hutchins often wondered what would make a regular man with limited means believe that, despite the threats to his life, challenging the system was a risk worth taking. She ultimately realized her great-grandfather had a profound belief that he had access to justice and that the courts were available to him in the same way that they were available to everyone else. She came to understand that he held the firm and unwavering hope that his children and grandchildren would reap the benefits of his continued engagement with a system that had not yet produced a fairer America for him . . . but would for future generations. In other words, he believed profoundly in the power of the courts to do the right thing. Ultimately, she thinks that's what access to justice is; not only factual access to the courts but also a deep and abiding belief that the courts are actually going to serve you. Not necessarily an understanding that they will rule in your favor, but that the process itself will be fair and that the results of that process will be transparent and understandable.
There are so many different things you can do within the profession, and if you can find the one that makes you happiest there is no better profession in the world.
Most of our court system is regular people going into court and trying to represent themselves and trying to navigate the system on their own, but there is not a public perception of fairness in either the civil or criminal court systems. Hutchins thinks that if you asked the average person if rich people receive better outcomes in court than poor people, they would not hesitate to answer, “of course.” Similarly, if you asked if people of color have the same outcomes as white people in the criminal justice system, the answer would be “of course not.”
Hutchins believes that as long as we have responses like that, the public perception of fairness in the courts is miles away from where it should be and that it is incumbent upon legal institutions to work to improve that perception.
Part of improving and enhancing the public perception of the legitimacy of the courts is about making what the courts do more transparent. Therefore, every time the Court of Special Appeals of Maryland holds oral arguments at the University of Maryland Francis King Carey School of Law, Hutchins intends to open proceedings to the entire community, so that citizens can get a better understanding of the legal process and how the courts work.
Another factor constraining access to justice is the Rules of Professional Responsibility and its provisions regarding the unauthorized practice of law. Hutchins agrees that the legal profession needs to figure out ways to unbundle services so that some legal assistance can be provided by non-lawyers. She cautioned that we need to be very careful though to ensure that whenever services are unbundled, people with fewer resources have the same access to qualified and experienced help as people with resources. Doing this, Hutchins notes, means that if we stratify the legal profession we have to put appropriate protections in place so that vulnerable populations are still getting the help they need to address their legal problems and not assistance that would put them in a worse situation than if they saw a lawyer initially.
To Hutchins, the MSBA’s partnership with the Access to Justice Commision and its efforts to increase access to justice are completely consistent with the Supreme Court’s holding in Strickland v. Washington, 466 U.S. 668 (1984). As Hutchins explains, in Strickland, the Court situated responsibility for improvement of the profession with the bar and not the
courts. Thus, if you take the lesson of Strickland seriously, the responsibility for improving the delivery of legal services to poor people and to the disenfranchised sits with the Bar. Put more directly, “of course, it's appropriate for the MSBA to be heavily involved in the work of the commission.”
Hutchins hopes the law school can help advance access to justice not only by exposing law students to the areas of need in the legal system but also by increasing their awareness of the ways to attack the access to justice issue outside of providing direct legal services. She thinks that if we had justice-minded people across the profession, we would have less of an access to justice problem. It is the job of legal educators to help students understand that a decision not to embark on a career in public service does not exempt lawyers from the professional obligation of elevating the human condition.
Hutchins also advises law students that if their first job out of law school does not make their heart sing, they should not leave the profession. There are so many different things you can do within the profession, and if you can find the one that makes you happiest there is no better profession in the world. Hutchins tells students to “find their happy whenever they can within the law.” When she is not doing a job she loves, Dean Hutchins finds her own happy spending time with her children. They are 18 and 20 and she describes them as kind and remarkable human beings, who are exactly what she would hope for them to be. She practices yoga as well, using it as an opportunity to pause and focus on personal wellness and reflect on the professional opportunities before her.
Career Highlights
Breaking into the Law
Stories from lawyers who entered the legal field after other promising careers.
Career Transitions
Attorneys sharing their experience of moving between legal sectors or advancing into leadership positions.
Past President
Profile of a past MSBA President.
Stephanie Brophy
AGRICULTURE SECTION CHAIR
There is a benefit in numbers because more brains in the room (or the Zoom) help everyone learn the right questions to ask, even if the answer is that you need to consult with a practitioner more experienced in another area of law or refer the case out.
Photo courtesy of Kelly Heck Photography.
AGRICULTURAL LAWYER FIELDS WIDE RANGE OF CASES
A LIFELONG HORSEWOMAN would naturally be drawn to Agricultural Law and its focus on farm land and feed crops, one would think. But that wasn’t true of Stephanie Brophy—the lifelong horsewoman in question—who spent her youth on a horse farm. Nor is it true that Agricultural Law is concerned only with farm land and feed crops.
Brophy’s entree into an Agricultural Law practice was a traditional and decidedly non-ranch related recommendation from a judge—the Honorable Lynne A. Battaglia, for whom Brophy interned. Judge Battaglia connected Brophy with Dulany Leahy Curtis & Brophy LLP of rural Carroll County. It was a good match, and Brophy has since made partner. And while Agricultural Law is indeed focused on rural land and feed crops, it also covers the kinds of law familiar to suburban and urban lawyers—Intellectual Property Law (breeding program patent), Construction Law (building a breeding facility), Energy Law (solar farm lease), Business Law (microbrewery LLC formation), Land Use (agricultural preservation easement sale), Environmental Law (defending “downstream” lawsuit), Administrative Law (wrangling with the government over residential non-compliance complaints), Criminal Law (cattle rustlers), Consumer Bankruptcy (filing for an agricultural hobbyist), Immigration Law (securing an H2B visa for a master agricultural landscape artist), and Real Property and Taxation Law (sale of agricultural real estate, which is subject to a unique tax assessment regime)—to name a few.
Handling a wide range of matters was not the predictable career evolution for Brophy, who spent a decade managing an A-Circuit Hunter Jumper stable and training horses before attending the University of Maryland School of Law. But management lessons she learned on the Circuit have cropped up in her law firm life, where she shares in the firm’s management. Both situations have seen her in the dual role of a manager and a handler of work at the heart of the enterprise.
Similarly, in both situations Brophy benefitted from mentors. She apprenticed under the Hunter Jumper stable owners. They taught her how to train horses that would be ridden in competition with their owners. It was that continued mentorship dynamic that Brophy was seeking after her judicial internship. And that’s what she found when she joined her firm. She credits her mentoring colleagues, including Willam B. Dulany, J. Brooks Leahy, and Amber Dalhgreen Curtis, with helping her become the lawyer she is today. Were it not for Leahy’s initial and ongoing guidance and mentorship, Brophy says she is unsure whether she would have continued in the practice of law or found the joy in it that she does.
Early in her mentorship she received autonomy to battle against a taxing authority in a transfer tax enforcement matter. She believed her clients were unambiguously in the right. She ultimately prevailed, and the taxing authority agreed that no transfer tax was owed under the applicable statute. Her mentors did not give her that autonomy too quickly, Brophy said, but they didn’t deny it to her for too long. “Striking that happy medium, combined with demanding legal excellence, makes for an excellent mentorship.”
Brophy is the 2022–23 MSBA Agriculture Law Section Chair. She hopes to draw a wider cross section of practitioners to the group. She believes there is a benefit in numbers because more brains in the room (or the Zoom) help everyone learn the right questions to ask, even if the answer is that you need to consult with a practitioner more experienced in another area of law or refer the case out. Call it crowdsourcing legal knowledge. The varied and wide range of topics in the Agriculture Law Section makes it an ideal venue for that to happen.
If you are interested in connecting with the Agriculture Law Section or attending a Section event please contact sections@msba.org.
Judge Pamela White
MSBA PRESIDENT 2001-2002
Photo courtesy of Travis Marshall Photography.
SPENDING HER RETIREMENT ON THE ROAD
JUDGE PAMELA J. WHITE MAY HAVE OFFICIALLY RETIRED
from the active bench in Baltimore City after 15 years, but she continues to contribute to the legal system. Designated as a “Senior Judge,” she serves on judiciary committees focused on improving court access, takes mediation assignments in the Appellate Court of Maryland and the Baltimore City Circuit Court, and may try complex civil cases upon assignment. She also serves as faculty in the Judicial College and chairs the Accessibility and Accommodation Subcommittee (for the Judiciary’s Court Access Committee) to inform and remind judges about ADA accessibility and accommodation obligations in all court proceedings.
Earlier in her career, Judge White spent more than a decade on the Select Committee on Gender Equality in the Legal System. She was prompted to become MSBA President because of concerns for professionalism in law practice and equal access to justice, and spent much of her term focusing on countering gender bias.
These days, when Judge White is not working, she’s apt to be found on the road. Since retiring, she has been traveling around the United States and Canada in an RV, accompanied by her wife, Susan, and her dog, Sophie, a 90-pound long coat German Shepherd (seen in photo, above). Judge White recently looked back on her term as MSBA President.
What major issue did you tackle during your presidential year?
The prospect of mandatory pro bono services by Maryland lawyers was a major issue and subject of extended debate in 2001–02 among local and state bar associations. The 1987 seminal ‘Cardin Report’ of the Maryland Legal Services Corporation had identified significant unmet need for civil legal services to Maryland’s poor. Its many recommendations included mandatory pro bono services by Maryland lawyers.
I visited bar groups throughout the state, essentially to urge that pro bono legal services ought not be mandatory; instead, broadly defined, voluntary pro bono activities could be reportable to the Supreme Court of Maryland. Although pro bono legal services by the private bar is a critical element in meeting legal service needs, the burden of any pro bono work on practicing lawyers must be measured and reasonable.
Ultimately, the Maryland Attorneys’ Rules of Professional Conduct were amended to make pro bono service aspirational and allow attorneys to discharge pro bono service by contributing financial support to legal services organizations. As MSBA President,
I had urged that encouraging and reporting lawyers’ pro bono hours and other financial contributions is consistent with attorney responsibility for improving access to justice and respect for the rule of law.
Please describe some challenges and highlights from your year as President. I had scheduled my first Board of Governors meeting to take place at Camden Yards, followed by watching the O’s play the Blue Jays. Also in June, Cal Ripken announced that it was to be his last season. Now, my Board would also get to see him play after our meeting—on September 11, 2001 . . . . Amidst all of the tragic circumstances of 9/11, and the MSBA’s crisis response to address the legal needs of Pentagon survivors, it was a footnote that Major League Baseball was suspended for a week. The game not played on September 11 was rescheduled for October 1. That’s when my postponed Board of Governors meeting also would proceed back at the Camden Club in the warehouse.
Late that afternoon, as we got down to business, we were distracted by looking out at the field. A solitary figure was at home plate: Cal Ripken was taking swing after swing at balls
he set on a tee, scattering balls all over the field. Less than a week remained in the last season of his career, but his job was not over. There could be no quitting, no slacking off, no excuses, even then.
Sometimes in the face of adversity, it seems that all we can do, all we must do, is our jobs. Especially as lawyers and judges, with each echo of 9/11 and each instance of senseless or profane violence in our streets, we must make sure that we don’t slack off or fail to do our jobs in any respect. As lawyers and judges, we must exemplify respect for the rule of law in all that we do.
Tell us about some takeaways that you have from your experience as an MSBA President.
In addition to the points made in response to other questions, I believe that bar service is a critical means to advance equal access to justice.
What’s your favorite hobby?
My wife and I are intent on visiting a broad selection of U.S and Canadian National Parks.
What’s an interesting fact about you that no one would guess?
I am fascinated by old trucks and vintage cars.
Justice Angela Eaves
SUPREME COURT OF MARYLAND
PROBLEM SOLVING FROM THE BENCH
THE HONORABLE ANGELA M. EAVES of the Supreme Court of Maryland began her legal career as a prosecutor. She realized early on, though, that her main interest was in the law’s impact on people’s daily lives and understanding the policies that shape the law. Justice Eaves did not plan to be a judge, but has found that her inclination toward problem solving has made it a natural fit. Prior to her appointment to Maryland’s highest court in April 2022, Justice Eaves served as County Administrative Judge in the Circuit Court for Harford County. Justice Eaves recently discussed some of her professional and personal experiences with the MSBA.
I understand you were born in the Canal Zone, in Panama. Could you tell us about that?
My mother was from Panama and my father, who was from North Carolina, was stationed with the U.S. Army at Ft. Gulick. I’m the second of four children and have dual citizenship in both countries. And as a child from a military family, I have strong roots in both countries.
What did your legal career look like? Why did you want to become a prosecutor, and was serving as a prosecutor fulfilling?
My legal career developed as the result of my joint degrees in law (University of Texas School of Law) and public administration (Lyndon B. Johnson School of Public Affairs) because I was interested in the intersection of law and public policy. Although my career began as a prosecutor when I worked first for the Dallas City Attorney’s Office prosecuting violations of zoning ordinances and criminal misdemeanors, eventually I joined the office’s division that provided legal advice and counsel to the Planning and Zoning Department and Historic Preservation Commission. After moving to Maryland, I worked for the Legal Aid Bureau (Harford County office) and then the Office of the Maryland Attorney General (Child Support Administration and Correctional Litigation Division). Although my short career as a prosecutor was interesting, my main interest has really been about the law’s impact on people’s daily lives and understanding the
policies that shape the law. Legal Aid and the AG’s office really influenced my career in that way.
Why did you want to become a judge? What are your priorities and challenges as a justice?
Becoming a judge was not planned, but after co-workers and friends encouraged me to apply, first to the District Court in 2000, I learned that my inclination toward problem solving was a natural fit. My main, albeit general, priority has been to approach judging as problem solving with a full understanding of the issues and being fair to the parties and lawyers while attempting to reach a resolution. The challenges are myriad, but to name a few: too many cases, delays caused by gamesmanship or by systemic issues, and the legally correct outcome doesn’t always satisfy anyone.
What advice would you give to any lawyer that wants to be a judge?
Be prepared for a lot of hard work and remember that people rely on you to try to get the best result possible for their lives.
My main, albeit general, priority has been to approach judging as problem solving with a full understanding of the issues and being fair to the parties and lawyers while attempting to reach a resolution.
How has the COVID-19 pandemic affected the Court’s business permanently?
Many people looked to the courts to solve problems exacerbated by the pandemic, particularly in child custody, child welfare and adult guardianship, domestic violence, medical malpractice, and criminal cases. To the extent that the Court has been permanently affected, the court system did not close, but pivoted to remote hearings in many types of cases and also employed alternative dispute resolution both in and outside of courts to resolve cases. The backlog is significant, but patience goes a long way.
How do you serve your community?
Although I’m not able to volunteer for organizations to the extent that I did in the past, I still mentor young lawyers and other young people in different community organizations.
Any suggestions for lawyers practicing in front of you?
Be prepared and be honest with your clients and with the court. Practicing law is a privilege to help people, not a game measured by wins and losses.
Is there any question you wished I asked, so I can share something with the readers about your professional or personal life that you would like to share?
Both in my professional and personal life, I try to be kind because as the writer and activist Maya Angelou said, “I’ve learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.”
Photo courtesy of Travis Marshall Photography.
Leadership Academy Fellows Use Strategic Partnerships to Teach Youth Conflict Resolution Skills
BY JAMIE L. ALVARADO-TAYLOR, ESQ. AND HEATHER KRICK, ESQ.
The MSBA’s Leadership Academy Fellows, Class of 2021–2022, consisted of 14 attorneys from around the state of Maryland who came together to develop and implement a public service project as part of the program’s 12-month curriculum. This year’s Fellows were: Jamie Alvarado-Taylor, Randi Ames, Ernie Dominguez, Samantha Dos Santos, Kertisha Dixon, Joseph Fah, Alexander Geraldo, Heather Krick, Maso Hamilton, Kendrick McLeod, Romana Muzzammel, Jessica Ornsby, Tyra Robinson, and Annamaria Santini.
The 2021–2022 class created a “Youth Conflict Resolution Workshop” to teach conflict resolution skills to underserved, transitional youth (ages 13–24). The overarching goal of the workshop was to create an engaging environment
where attendees could begin initial development of positive conflict resolution skills, which they would then be able to implement immediately into their personal and professional lives to cultivate community, and avoid violence, the criminal justice system, or civil litigation.
The Fellows partnered with law students and staff at the University of Maryland Francis King Carey School of Law’s Mediation Theory and Practice Clinic to develop a traumainformed curriculum that instructs participants on defining different types of conflict, the various sources of conflict, and how conflict can be resolved through healthy communication techniques. The Fellows then worked with organizations around the state who serve at-risk youth, including Hearts and Homes for Youth, and Centers for Urban Families, to
Attendees could begin initial development of positive conflict resolution skills, which they would then be able to implement immediately into their personal and professional lives to cultivate community, and avoid violence, the criminal justice system, or civil litigation.
customize the workshop based on the needs of the participants. The project was awarded grants from the Maryland Bar Foundation, The Baltimore Bar Foundation, Inc. The Law Office of Raphael Santini, and the Prince George’s County Bar Association.
On Saturday, May 14, 2022, Under Armour’s Living Classrooms in Baltimore hosted the Fellows’ Youth Conflict Resolution Workshop. The program had close to 50 participants registered for the one-day program and was recorded by a professional videographer so that it could later be disseminated among additional organizations and participants. Judge Myshala Middleton, Associate Judge of the Baltimore City Circuit Court and co-chair of the Leadership Academy, delivered the workshop’s opening remarks and welcomed the participants. Judge Lisa Hall-Johnson, District Administrative Judge of the Prince George’s County District Court gave
inspiring closing remarks. During the program’s lunch and breaks, the participants had the opportunity to speak one-on-one with the judges, as well as with the Fellows facilitating the program. The participants then received customized Certificates of Completion, and gift bags donated by various community organizations including the Baltimore City State’s Attorney’s Office, Washington Gas, MHC Healthcare, and Stein Sperling. Attendees shared they found the program engaging and they learned new approaches to resolving conflicts they were experiencing
GENERALLY SPEAKING, BACKLINKS
from press releases have no search engine optimization (SEO) value and do not help law firms. However, if there is actual newsworthy content in the press release which generates real media coverage, press releases are effective for both reputation building and SEO.
When Press Releases are Not a Linkbuilding Strategy
Some SEO agencies issue press releases as a way to obtain backlinks. This was actually a “trick” which did indeed work well. Back in like, 2006.
How it worked
• Someone would type up a press release.
• The press release contained a link to your website.
• The press release was issued.
• The press release ended up on sites all over the web.
• Tada! You have a whole bunch of links.
Of course, Google put an end to this long, long ago. In 2012, Google’s Matt Cutts stated “I wouldn’t expect links from press release websites to benefit your rankings”. In July 2013, Google updated their “Link Schemes” page to address press release spam specifically. Websites that employed press release tactics were penalized (Google would later move towards “ignoring” these links).
In 2018, Google’s John Mueller stated: "We try to ignore links from things like press releases, because we know, in general, companies put the press releases out themselves. So any links in there are essentially placed by themselves . . . I just wouldn’t rely on any [kind] of press releases as a strategy for building up links for a website because like I said we do ignore most of those.”
Real Press Releases Are Good for SEO
When a law firm (or any other company) has real news, issuing a press release is a great idea.
It is important to get content onto your site in advance of issuing the press release. That’s because journalists want to write about real news.
One law firm that we work with is frequently in the news thanks to their antitrust, class action and other high profile cases.
They get information posted about the news onto their website, then issue the press release, then answer questions from the media or journalists find what they need right on the law firm’s site and they can easily link to it.
In addition to the links, this helps them build their reputation. If you google their law firm’s name, you’ll see their site followed by articles about them from Bloomberg Law, Law360, Yahoo, New York Times, CNN and others in the search results.
Issuing Your Press Releases
There are several good companies you can utilize to issue press releases. We use Cision.
In general, a press release should be around 500 words or so and quickly get to the point of what you’re announcing.
The announcement should be “newsworthy” (a large class action, a big settlement, etc).
Smaller firms can benefit from Press Releases, too, however, if they do not have big news, they’ll need a great story. Additional legwork may be involved to target the right journalists. Even in these cases, journalists may not choose to cover your story if they feel it is too self promotional (they have seen law firms issue PRs thousands of times now).
Recap
If your SEO agency is issuing press releases over Internet awards or as an SEO linkbuilding strategy, they’re living in the dinosaur ages of the Internet and I’d strongly advise against doing business with them and their ineffective strategies.
HELPING TO NAVIGATE THIS NEW DIGITAL WORLD
NICHOLAS MERIWETHER
Cohen|Harris, LLC
“
If you’re lost in the desert and you’re thirsty, your only option is to keep walking until you find water. It’s always okay to change directions. The only wrong choice is to stand still.
Nicholas Meriwether entered the legal profession because he wanted the freedom and tools to make an impact in his community and have a voice in issues he heard in the news. Meriwether, who has been in practice for four years, practices primarily in criminal law (post-conviction), data privacy, cybersecurity, civil rights, and employment law.
Why did you enter the legal profession?
I was told that a law degree would open doors that I didn’t know were there. My mother is a career public defender and I grew up watching the impact she had in the Baltimore community. She inspired me to do the same.
What is the best piece of advice you have received from someone in the legal profession?
When I was unsure about which path to take in my legal career, one of my mentors told me, “If you’re lost in the desert and you’re thirsty, your only option is to keep walking until you find water. It’s always okay to change directions. The only wrong choice is to stand still.”
What are some accomplishments you’ve achieved during your career?
As a young public defender in Baltimore’s Western District, I had the privilege of representing many indigent people at an extremely turbulent and chaotic time in our city, just after the Freddie Gray protests and during early days of the federal consent decree and related Baltimore Police indictments. Later, as an associate at a federal employment firm in New York, I helped litigate several high-profile whistleblower and civil rights cases involving the Federal Bureau of Investigation, the Department of the Navy, the Department of Veterans Affairs, and other federal agencies. Recently, I launched a data privacy and cybersecurity practice and also represent clients in wrongful conviction and related post-conviction matters.
What professional accomplishment are you most proud of?
There have been many highlights, but as a Rule-19 student attorney with the UB Innocence Project Clinic, I worked heavily on a case that led to the exoneration of a client after serving over 16 years for a crime he did not commit.
What makes you unique in your profession?
I have always tried to have a wide and versatile skill set, including a background and proficiency in criminal law, civil rights, technology, and data science. Having a niche, such as a proficiency or passion for cyber issues, has made me a much more effective litigator and allowed me to handle interesting cases. Likewise, I learned patience, interpersonal skills, and most importantly a sense of humor as a public defender, which served me well in private practice.
Tell us a little about your biggest project or passion project related to your professional career right now. My goal is to build a successful practice in the emerging field of data privacy and cybersecurity law. Specifically,
I want to advise businesses on cyber risks and regulatory compliance issues related to data privacy, both before and after a data breach incident. I developed a passion for data privacy in law school and in my early career in criminal defense, as I saw the growth and value of personal data and its implications on individual rights and freedoms. With the rise of Big Data, cybercrime, bulk collection of data by companies and governments, and a rapidly evolving regulatory landscape, I believe this industry is one of the most important new sectors of the law. My dream is to have a practice which plays a major role in shaping the cyber policy landscape and helps organizations and individuals navigate this new digital world.
Having a niche, such as a proficiency or passion for cyber issues, has made me a much more effective litigator and allowed me to handle interesting cases.
What MSBA product has had an impact on you personally or professionally?
The MSBA was active in supporting the mental health and wellness of practicing attorneys, particularly the Office of the Public Defender. I was extremely impressed with a presentation given by the MSBA to my class of public defenders about mindfulness, stress reduction methods, and the resources offered by the MSBA’s Lawyer Assistance Program. These skills and resources served me well during a stressful period of his early career.
What’s an interesting fact about you that no one would guess?
I am an avid fiction and nonfiction writer and won the University of Maryland Literary Prize for Fiction in 2012. I also spent a year as a volunteer English teacher on a remote Pacific atoll in the Republic of the Marshall Islands.
What causes are you passionate about?
I am passionate about issues surrounding digital privacy and mass electronic surveillance, police reform, drug policy reform, police reform, and environmental action to address global climate change.
Civil Protections for Active Military: The Servicemembers
BY CHELSEA ORTEGA, ESQ.
Civil Relief Act
If your client is or will be an active servicemember, then your client enjoys significant civil protections that are unavailable to civilians. Here is an overview of key protections.
Code Reference: The protections are codified in The Servicemembers Civil Relief Act 50 U.S.C. § 3901, et. seq.
Who Is Protected Landlord/Tenant
• Active-duty members of the Army, Marine Corps, Navy, Air Force, and Coast Guard;
• Members of the Reserve component when serving on active duty;
• Members of the National Guard component mobilized under federal orders for more than 30 consecutive days; or
• Active-duty commissioned officers of the Public Health Service or the National Oceanic and Atmospheric Administration.
• The servicemember is entitled to end the lease with no penalties if the servicemember enters into service, receives change of station or deployment orders, or if a stop movement order is issued.
• The servicemember must provide a written notice with a copy of the orders.
• The landlord must return prepaid rent.
• The landlord cannot enforce lease provisions that violate SCRA. See Md. Code Ann., Real Prop. § 8-208).
• Any mileage requirement between the leased property and the new military station is unenforceable.
Foreclosure
• The Act’s protections apply to mortgages obtained before service and for which servicemember is still obligated.
• The servicemember may be entitled to a stay of the foreclosure if certain criteria are met.
• The bank cannot enter the home, change locks, or shut off utilities. Riley v. Wells Fargo Bank, N.A., No. 16-CV-157-JMH, 2017 WL 2240570, at *3 (E.D. Ky. May 22, 2017).
Repossession
• The creditor must have a court order to repossess — self-help is unavailable.
• The protections apply only to contracts entered into before military service.
• The court can order repayment, stay the proceedings, or “may make other disposition as is equitable to preserve the interests of all parties.”
Consumer Protections/ Financing
• The servicemenber must send the creditor a written notice and copy of military orders.
• The creditor must cap interest at 6% on certain financial obligations incurred prior to service: auto loans, credit cards, federally guaranteed student loans issued after 2008, debt incurred by a servicemember individually or jointly with a spouse.
• The cap applies during active service.
• For mortgages, the cap applies during active service plus one year after.
• The lender must forgive the amount of interest above 6%.
• The servicemember can ask for the adjustment up to 180 days after separation.
Auto Lease Cancellation
• The servicemembers can obtain an auto lease cancellation where:
• Vehicle intended to be used by servicemember or dependent for personal or business transportation
• Duration of service is not less than 180 days
• Servicemenber receives orders for a change of permanent station:
• From a location in the continental U.S. to outside continental U.S., or
• From a location in a state outside the continental U.S. to any location outside that state
• Deploys as a unit not less than 180 days
• Stop movement order prevents servicemember or dependents from using the vehicle
Cause of Action & Damages Default Judgment
• In order to proceed against the servicemember, the opposing party must file a military affidavit proving the servicemember is not in active service. Note: As of this writing, there is a proposed change to Md. R. Civ. P. Dist. Ct. 3-113 concerning stale military affidavits.
• The servicemember is entitled to a stay of proceedings and representation if certain criteria are met.
• The statute of limitations is tolled during active service.
Chelsea Ortega is with Santoni, Vocci & Ortega, LLC in Lutherville-Timonium, Md., where she regularly defends consumers and brings affirmative claims for violations of Maryland’s consumer protection statutes and the Fair Debt Collection Practices Act in debt collection cases, including landlord/tenant cases, automobile deficiencies, and predatory loans.
• A violation of the Act gives the servicemember a private right of action against the violator.
• Damages include attorney’s fees, declaratory and injunctive relief. Punitive damages at this point are a question mark.
• References: Hurley v. Deutsche Bank Trust Co. Americas, No. 08-cv-361, 2009 WL 701006, at *9 (W.D. Mich. Mar. 13, 2009); Brewster v. Sun Trust Mortgage, LLC, 742 F.3d 876, 878 n.4 (9th Cir. 2014).
Sponsored Content
Musings from the perspective of a claimant’s disability law firm:
THE GOOD
Social Security & Veteran Disability Benefits.
The Biden Administration has increased the amount of monthly wages a person can earn during a trial work period (“TWP”) from $940 (in 2021) to $970 (in 2022) for at least nine months and still receive full disability benefits. The nine months do not have to be consecutive, and can occur at anytime in a five-year period. For 36 months after a successful TWP, if individuals are still disabled, they will be eligible to receive monthly disability benefits without a new application for any month earnings drop below $1,350, an amount known as Substantial Gainful Activity.
Beginning in November 2022, the maximum amount an attorney may recover for successfully representing a claimant in the SSA administrative process is now $7,200, the first increase since 2009.
The recently enacted Promise to Address Comprehensive Toxics Act permits tens of thousands of more veterans to be eligible for benefits from both the Social Security Administration and Veterans Administration provided that the disability is service-connected due to toxic burn pits and inhalation of fumes in Iraq and Afghanistan.
In the coming months, Social Security may release a “policy interpretation ruling” as the CDC learns more about postCOVID syndrome, but it’s unlikely to create a listing for the condition, that automatically make the syndrome a disabling impairment.
Joseph v. Kijakazi, 2022 U.S. Dist. LEXIS 102339 ; 2022 WL 2069283 (D. Md. June 8, 2022), shows that the federal district court in Maryland is rigorously adhering to The Fourth Circuit’s ruling in Arakas v. Commissioner, Social Security, 983 F. 3rd 83 (4th Cir. 2020), which held that subjective complaints of fatigue and pain must be considered before an SSDI claim may be denied. This is an important ruling which helps to ensure that claimants with conditions that are not readily measurable by diagnostic testing receive a fair review of their claims. An experienced attorney is still an invaluable tool for Social Security Disability claimants to help them navigate the long application process and properly develop their record, in the event they do go to a hearing.
THE BAD (MOSTLY) ERISA disability benefit litigation.
Claimants continue to face an uphill battle in federal court litigation when challenging an ERISA plan’s denial or cut-
off in disability benefits. A Lexis search for the period January 1, 2020 to August 22, 2022 did not yield a single case from the federal Maryland district court where a claimant obtained a Court’s reversal or remand of a plan’s decision on the merits.
Additionally, in Hurley v. Harford Life & Accident Ins. Co., 2022 U.S. Dist. LEXIS 1030; 2022 WL 36444 (D. Md. Jan. 4, 2022), the Court ruled that an ERISA plan can establish its own contractual limitations period for a claimant to file suit and where that limitations is not tolled during the required internal plan administrative process.
In Schkloven v. Hartford Life & Accident Ins. Co., 2022 U.S. Dist. LEXIS 130436, 2022 WL 2869266 (D. Md. July 21, 2022), the Court’s decision highlighted how difficult it is for a claimant to win on the abuse of discretion standard, when the plan administrator retains “discretionary authority”. In such a case, the application standard limits the evidence a court may consider in reviewing the plan administrator’s decision, and evidence outside of the administrative record is generally inappropriate. The Court found that there was no abuse of discretion, even when there was no “independent medical exam” conducted by the plan. Fortunately for the claimant, the Court also ruled that ERISA did not authorize the plan to recoup overpayments made to him during the period when he was disabled.
The Fourth Circuit, however, held that the abuse of discretion standard is not insurmountable, at least when a plan administrator’s denial is based on its failure to provide its reviewing doctor all relevant materials (in this case, a crucial MRI) or when a reviewing doctor makes a material misrepresentation. See Garner v. Central States and Southwest Areas Health and Welfare Fund Active Plan, 31 F.4th 854 (4th Cir. April 20, 2022).
THE UGLY Third-party administrators.
More and more self-insured employer-sponsored disability plans are using thirdparty administrators (TPAs) to manage the internal claims and appeal process. The TPAs are not a claimant’s friend. They do not provide any continuity of service, make unreasonable requests of claimants, and bother treaters so much that treaters become reluctant to assist their patients in providing helpful information. They take advantage of unknowing and naïve claimants by recording conversations and then taking communications out of context for their own benefit.
Lebau & Neuworth is a law firm devoted exclusively to representing individuals in employment, employee benefit, and disability benefit matters. See www.joblaws.net.
Even though TPAs are serving the interests of the employer plan sponsor that, by itself, does not create a conflict of interest that requires a more rigorous review than the abuse of discretion standard, unless the TPA also funds the plan.
Due to TPA conduct and the challenges claimants face in pursuing a claim for disability benefits, experienced counsel can help to even the playing field. Claimants need to be educated on their rights and treating health care providers made at ease to assist their patients in the claims process. n
CHANGING COURSE, TEACHING THE NEXT GENERATION
MICHAEL HUDAK Counsel, Zampogna P.C. Adjunct Professor, Georgetown University
Photo courtesy of Travis Marshall Photography.
AS A FORMER PROSECUTOR in Baltimore, Michael Hudak brought hundreds and hundreds of district court cases to trial and almost 100 jury trials to verdict, rising up the ranks to the Major Investigations Unit. Whether it was targeting violent crime or fighting corruption, he was proud of “fighting for justice everyday on behalf of the citizens of Baltimore City and the State of Maryland.” After 15 years, Hudak has changed gears. He is currently Of Counsel to the boutique firm Zampogna P.C., which focuses on white-collar criminal defense, international law, complex civil litigation, and elder law. He also teaches Corporate and Business Law at Georgetown University law at Georgetown University.
Why did you enter the legal profession?
I have always had an interest in government and politics and the process by which individual human beings engage their government. That journey led me to studying philosophy, politics, and law. The idea of the “rule of law” and what it means throughout the world and particularly this country has always held a special place in my heart.
As a trial attorney, you are the person who enters the courtroom and puts forward your legal argument against another opposing attorney. You have to utilize your knowledge of the law and its procedures in front of a judge and jury and do so in an environment that at times you cannot control. Your job is to convince 12 random people that your argument is the correct one. The interplay of the facts of a case, the law being questioned or considered, the procedural rules that must be followed, really do show the “rule of law” operating at its finest moments within our government.
What are some of the challenges you face in your current role? What are your goals for yourself in this role? I worked for the same employer for 15 years. During that journey, I made sure not to get too much tunnel vision as best as I could. That said, the toughest thing to do is always change up what is comfortable . . . everyday brings another level of excitement and I couldn’t love it more. I would like to give back what I have learned to the next generation and to grow continually as a professional.
The interplay of the facts of a case, the law being questioned or considered, the procedural rules that must be followed, really do show the “rule of law” operating at its finest moments within our government. “
What is the best piece of advice you have received from someone in the legal profession?
Don’t be a jerk and be willing to keep an open mind. Don’t undervalue your experience and abilities.
What are some accomplishments you've achieved during your career?
My most proud accomplishment I have achieved is mentoring attorneys. Providing emotional and professional support to someone, especially when things get tough, is paramount. Watching a younger attorney climb one step over another, overcome obstacles, and continuously achieve goals is priceless to me. Receiving the calls thanking you for support and assistance is great. However, being supportive and offering advice to someone who is really struggling and then watching them take off is “next level.”
What do you enjoy most about your career?
Being a trial lawyer. In law school you learn a ton of legal theory but when you start your legal career you start to see theory hitting reality and the two at times do not move together harmoniously.
Describe a memorable MSBA event or product that has had an impact on you personally or professionally. Graduating from the MSBA Leadership Academy and working with our talented group to create a public service project that promoted and benefited the environment, children in schools, and our profession had a profound impact on me personally and professionally. Our group raised $17,000 and created an exhibit at the Maryland Science Center. Chairing the MSBA Young Lawyers section and serving on the executive committee of the Board of Governors also had an impact on my professional career. At the time I served in these roles at the MSBA, the MSBA was in the middle of a large transition. Experiencing that journey added to my leadership and networking skills professionally, and my confidence personally.
How do you spend your free time?
Playing with my seven year old daughter, attending concerts and sporting events (Go Ravens! Orioles! and Terps!), playing guitar, traveling and experiencing new cultures, food, and music.
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For every attorney or judge handling criminal matters, with or without a jury, Maryland Criminal Pattern Jury Instructions provides instructions for virtually every statutory and common law crime, as well as instructions explaining defenses, evidence, parties, and witnesses. Logically arranged and indexed, each instruction is accompanied by updated commentary, notes on usage, and citations to relevant authority. Appendix includes updated Model Jury Selection Questions . This is one of 130+ print and digital treatises and coursebooks provided by MSBA.
Supreme Court of Maryland Says “Thin Blue Line” Facemasks Violate Right to a Fair Trial
BY JOHN MACLEAN, ESQ.
The
court stated that
the face masks were very evocative in the immediate aftermath of the protests and counter-protests that occurred in 2020 and that the 2020 climate couldn't be ignored when considering whether there was inherent prejudice.
IN A CASE OF FIRST IMPRESSION (Smith v. State, 2022 WL 3699202), the Supreme Court of Maryland held that court officials wearing the "thin blue line" on their facemasks violated the defendant's Sixth Amendment right to a fair trial. By so ruling, the court established a two-part test for determining if behavior by court officials was inherently prejudicial.
In Smith, the state charged the defendant with numerous offenses, including first degree assault, following an alleged altercation with his 14-year-old daughter. At trial, pursuant to an order issued by the Supreme Court of Maryland, the judge required everyone in the courtroom to wear facemasks as a COVID safety precaution. The bailiffs, sheriff deputies, were required by the sheriff to wear facemasks with a "thin blue line" version of the American flag, a black and white copy of an American flag with one of the bars blue instead of black. Defendant's attorney objected to the facemasks, arguing they indicated a bias for the state or for the police. The judge overruled the objection, and the defendant was convicted of second degree assault and seconddegree child abuse.
The defendant appealed to the Appellate Court of Maryland, which affirmed the convictions. The defendant filed a petition for writ of certiorari to the Supreme Court of Maryland, arguing that the bailiff's face masks were inherently prejudicial. The court granted the petition.
In an opinion written by Judge Jonathan Biran, the Supreme Court stated that the right to a fair trial was guaranteed by the Sixth Amendment of the U.S. Constitution, incorporated against the
states by the Fourteenth Amendment, citing Duncan v. Louisiana, 91 U.S. 145, 148–149 (1968), Estelle v. Williams, 425 U.S. 501, 503 (1976), and Hunt v. State, 345 Md. 122, 146 (Md. 1997). That right includes the right to a trial before unbiased jurors. The court stated that outside influences in the courtroom can violate a defendant's right to a fair trial.
To show prejudice, the court determined that the defendant must demonstrate an actual prejudicial effect on the jurors and what transpired in the courtroom, citing Irvin v. Dowd, 366 U.S. 717, 727–728 (1961). The moving party can establish such an effect by illustrating how the challenged behavior presented an unacceptable risk of permissible factors coming into play, citing Holbrook v. Flynn, 475 U.S. 560, 570 (1986), Williams, supra, and Hill v. Ozmint., 339 F.3d 187, 199 (4th Cir. 2003).
According to Williams and Holbrook, inherently prejudicial acts include forcing the defendant to wear prison clothing, while non-prejudicial behavior includes four uniformed officers sitting behind six defendants and shackling defendants when justified by an essential state interest. Williams, at 509–511; Holbrook, at 562.
The court noted that a spectator’s behavior could also be prejudicial, citing Carey v. Misladin, 549 U.S. 70, 76–77 (2006), and State v. Franklin, 327 S.E.2d 449 (W. Va. 1985). Uniformed officers were allowed to be spectators in the gallery, citing People v. Ramirez, 479 P.3d 797, 821 (Cal. 2021), and Billings v. Polk, 441 F.3d 238, 246–47 (4th Cir. 2006).
The trial judge is responsible for ensuring that the courtroom is a venue where juries render decisions only on the evidence. State v. Jaime, 233 P.3d 554, 559 (Wash. 2020), Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997), and Holbrook, supra, at 571–572.
The court ultimately held that the test to apply to the facts of Smith was whether the defendant demonstrated on the record that the challenged practice was observable by the jury, and that the challenged practice created an unacceptable risk that impermissible factors would come into play in the jury's determination of the case.
The court stated that the face masks were very evocative in the immediate aftermath of the protests and counter-protests that occurred in 2020 and that the 2020 climate couldn't be ignored when considering whether there was inherent prejudice, citing Wiggins v. State, 315 Md. 232 (Md. 1989).
Furthermore, the bailiff, who wore the facemask, was an agent of the court, and any political message conveyed by him gave the impression the court approved of the meaning, citing Parker v. Gladden, 385 U.S. 363, 365 (1966), Turpin v. Todd, 519 S.E.2d 678, 682 (Ga. 1999), and Lewis v. Pearson, 556 S.W.2d 661, 664 (Ark. 1977).
The court held that the facemask was seen by the jurors because the jurors were instructed to follow the bailiff many times, and the facemask was made so people would notice it, citing Wiggins
Accordingly, the Supreme Court of Maryland reversed the lower court convictions based upon finding unfair prejudice, remanding the case to the circuit court.
The ruling can be applied to any overt behavior or any clothing of court agents beyond mere uniforms that causes unfair prejudice and in a climate that is still politically volatile, should be considered for future cases.
John Maclean is an assistant public defender practicing in Frederick County. The views in the article do not reflect the views of the Maryland Office of the Public Defender.
Byron Warnken
“Byron Warnken was the rock upon which the modern University of Baltimore School of Law was built. He embodied the spirit of this law school and was, indeed, ‘Mr. UB.’”
RENOWNED CRIMINAL LAW
EXPERT, appellate attorney, media presence, and beloved professor Byron L. Warnken died September 5, 2022, after a long illness. He was 76.
Warnken rose from humble beginnings, becoming the first male in his family to earn a high school diploma, from the McDonogh School, which he attended on a scholarship. He graduated from Johns Hopkins University in 1968, and then served four years in the U.S. Army. After his military service, Warnken attended night classes at the University of Baltimore School of Law while working full-time as a law clerk, first with a law firm and then with the late Honorable Basil A. Thomas on the Circuit Court for Baltimore City.
“Mr. UB”
During a celebration of Warnken’s life on September 17, 2022, Ronald Weich, dean of the University of Baltimore School of Law, spoke to the impact Professor Warnken had on the law school. “He dove headfirst into his classes, school activities and the careers of his former students. He was at every moot court competition, every BLSA banquet, every Honor Society Induction. . . . In fact, he created many of the occasions at which he became a constant physical presence.”
In Weich’s opinion, “Byron Warnken was the rock upon which the modern University of Baltimore School of Law was built. He embodied the spirit of this law school and was, indeed, ‘Mr. UB.’”
Warnken joined the faculty of University of Baltimore School of Law (known by students
and alumni as “UBLaw” or “UB”) as an adjunct professor in 1977 and became a full-time faculty member in 1978. He taught primarily criminal law and constitutional criminal procedure. For 33 years, he served as Director of the Judicial Internship Program and the Judicial Experience in Legal Organizations “EXPLOR” Program, placing more than 3,000 law students with judges. He also established the school’s moot court teams. After 45 years, he retired from teaching in 2018.
A Legacy of “Warnkenites”
Professor Warnken’s reach extended beyond the classroom and into the legal profession itself, cementing his legacy for years to come. “In my role as dean, I have met countless University of Baltimore alumni who credit Byron with launching their successful careers. He inspired them to do well and to help the next generation of UB graduates succeed in the law,” Weich said.
He felt the law and teaching the law were his calling, and he made you feel like they could be your calling too. It was from this devotion that he was able to draw the power to affect so many budding lawyers’ careers.
Attorney and UBLaw alum Adam Ruther, a partner at Rosenberg Martin Greenberg LLC in Baltimore, considers himself one of many “Warnkenites” carrying on the lessons learned in Warnken’s classroom. “It would be difficult to overstate Professor Warnken’s impact on the legal profession in Maryland,” Ruther said during a recent interview. “He did so much more than just teach the law; he taught and inspired something much deeper—a passion for justice. He didn’t just tell you what the law was; he showed you why it mattered and why it was a noble thing to which you should devote your career and your heart. He felt the law and teaching the law were his calling, and he made you feel like they could be your calling too. It was from this devotion that he was able to draw the power to affect so many budding lawyers’ careers.”
Beyond Teaching
In addition to cultivating the talent of generations of attorneys, Warnken used his own legal talents to represent clients and educate the public on legal matters. He founded Warnken, LLC, a firm that concentrates on appellate litigation and practices in several areas, including sophisticated criminal litigation, law enforcement, personal injury, and workers’ compensation. He testified before Congress and served as an expert in legislative and judicial arenas. He was a familiar face even to non-lawyers; as a legal correspondent for four Baltimore television stations, he was on camera for more than 1,500 media appearances and interviews.
Maryland Criminal Procedure: Continuing to Educate Maryland’s Lawyers
In 2013, Warnken published the first edition of his treatise on Maryland Criminal Procedure. To carry on Warnken’s legacy with the release of the second edition this fall, titled Warnken’s Maryland Criminal Procedure, the Maryland State Bar Association was honored to work with Ruther and a team of renowned criminal law attorneys, some of whom are former students of Professor Warnken. In his preface to the book, Ruther noted that “not all of the people who became part of this team studied under Professor Warnken. But I knew that wasn’t important. All that Byron
Warnken would have cared about was that they loved the law and devoted themselves to it as he did.”
Byron B. Warnken, Professor Warnken’s son who graduated from UB Law in 2004, helped make the first edition of Maryland Criminal Procedure a reality. Byron B. explained that, as a teacher, his father had developed his own materials and “always had it in his mind that it would become a book, but he was more interested in teaching his students . . . than the prestige that comes with writing a book.” Warnken’s family pushed him to draft his treatise, though, reminding him that he already had written the book in many ways. With Byron B.’s assistance and gentle pressure, Warnken published the first edition.
Byron B. said that the book is the embodiment of his father’s life’s work, but ultimately, it was always secondary to his students. The fact that Warnken’s legacy is living on in the second edition of his treatise, with former Warnken students among its contributors, means a great deal to his family. To Byron B., Warnken’s Maryland Criminal Procedure represents what Warnken gave to his students, and to have a tangible thing that embodies his father’s spirit is incredible.
Perhaps what sums up the spirit of Warnken most of all is a love for the law. Ruther said, “If you showed that you loved the law as he did, there was nothing he would not do to help you succeed. It’s true that he opened doors of opportunity for so many of us through internships, clerkships, publications, moot court, and first jobs. But what most of us as his students didn’t realize until much later was that he had given us the tools we needed to walk through those doors and make a difference in the world.”
Warnken is survived by his wife, Bonnie, his children Byron and Heather, his sister Renee, and four grandchildren. He will be remembered fondly by the MSBA and the legions of “Warnkenites” who carry on the lessons learned in the classroom of Mr. UB.
Warnken’s MARYLAND CRIMINAL PROCEDURE 2nd Edition, Vols. I & II
Over 1,000 pages of up-to-date Maryland criminal law content.
This updated version covers new case law from the last 7 years.
Now Available!
The two-volume treatise contains more than 10,000 cases, rules and statutes, yet easily breaks down specific topic areas. It’s the must-have, comprehensive treatise on criminal practice and procedure and the elements of every crime and relevant case law and statute.
professor Byron L. Warnken
The original Maryland Criminal Procedure was the culmination of more than four decades of teaching, writing, and practicing by pre-eminent criminal law expert and University of Baltimore School of Law Professor Byron L. Warnken. Get your copy today at
Just one of 130+ print and digital treatises and coursebooks provided by MSBA.
Warnken’s Maryland Criminal Procedure, 2nd Edition was written by a team of some of Maryland’s most well-known criminal law attorneys and experts.
Remembering Former U.S. Attorney General Benjamin Civiletti
“Civiletti’s impact through the scholarship to enable publicinterest minded students to enter the legal profession without law school debt has allowed me and other recipients to commit themselves to public interest law and in turn, continue to spread his legacy of service,
THE MARYLAND STATE BAR ASSOCIATION joins the legal community in mourning the loss of iconic former U.S. attorney general and public servant Benjamin R. Civiletti on October 16, 2022. He was 87.
Civiletti graduated from Johns Hopkins University in 1957, and then earned a law degree from the University of Maryland School of Law in 1961. In 1962, he became an assistant U.S. attorney in Baltimore. In 1964, he joined the Baltimore law firm of Venable, Baetjer & Howard as a litigator and eventually became a partner. Civiletti joined the U.S. Department of Justice in 1977 as an assistant attorney general. In 1978, he was named deputy attorney general. President Jimmy Carter selected him to serve as attorney general in July 1979.
Civiletti was the first attorney general to appoint a special prosecutor under the 1978 Ethics in Government Act by investigating White House aides Hamilton Jordan and Tim Kraft. He served as Attorney General during the Iran hostage crisis and assisted President Carter in his efforts to release the American hostages. Civiletti appeared before the International Court of Justice at the Hague representing the United States’ efforts to gain their freedom. He also argued many important cases
“Civiletti was not only a great lawyer in private practice and public service, but also a modest down to earth human being. His contributions to the profession and to the public are immeasurable.
on behalf of our government before the U.S. Supreme Court. Civiletti's long-lasting contribution to the Justice Department was establishing and compiling written legal policies and procedures for government investigations that the department customarily used in practice, but not formalized.
Civiletti’s legal career spanned more than 45 years. He returned to Baltimore to practice law after leaving the Justice Department, specializing in commercial litigation, banking, white-collar crime, government regulation and corporate governance. At the time of his death, Civiletti was Chairman Emeritus and Retired Partner at Venable LLP.
Civiletti’s contributions to the profession not only include his work as attorney general, but also his commitment to serving students and legal education. The Benjamin R. Civiletti Scholarship Fund was established in 2003 at the University of Maryland School of Law to honor Civiletti and is given to “an outstanding student with academic promise, demonstrated leadership, and commitment to public service.” Reena Shah, Executive Director of the MSBA-support Maryland Access to Justice Commission, was the inaugural recipient of the Civiletti Scholarship in 2003. “Civiletti’s
impact through the scholarship to enable publicinterest minded students to enter the legal profession without law school debt has allowed me and other recipients to commit themselves to public interest law and in turn, continue to spread his legacy of service,” said Shah.
MSBA bestowed honorary membership on Civiletti in 2012, in recognition of his outstanding and continuing service to the association and to the legal profession. A member of the Maryland Bar Foundation, Civiletti received the H. Vernon Eney Endowment Fund Award in 1995. Pleading Causes of Action, a comprehensive treatise now in its 7th edition, is dedicated to Civiletti. Co-author and attorney Paul Mark Sandler remembers Civiletti as "not only a great lawyer in private practice and public service, but also a modest down to earth human being. His contributions to the legal profession and to the public are immeasurable. He will be missed, but his memory will live on."
Civiletti famously quipped, “as a lawyer, I always said I couldn’t afford myself,” when asked about billing clients at a rate of $1,000 per hour and one of the nation's most expensive private attorneys.
Civiletti is survived by his wife Gaile, and their three children Benjamin, Andrew, and Lynne.
Bad News About Lawyers’ Income –and Their Feckless Cybersecurity
Most of our IT, cybersecurity and forensics clients are law firms, so we were struck by new data we received that will likely interest (and depress) all lawyers.
As Reuters reported, it turns out that lawyers make less money today than they did in 2001 when inflation is accounted for.
So . . . the median annual income of U.S. lawyers dropped almost 2% from $129,389 in 2001 to $126,930 in 2020. That data comes from a paper which will be published in an upcoming edition of The Journal of Economics and Finance.
The rest of U.S. workers, again accounting for inflation, increased their purchasing power by almost 4% during the same time period.
The study relies on national lawyer earnings data from the U.S. Bureau of Labor Statistics. No surprise here, but solo practitioners and those lawyers in government and non-profit settings make significantly less than lawyers at large firms.
Across all sectors, the data indicates that lawyers' median real income peaked at $134,005
in 2010 and has gradually declined since then.
More Gloom in Your Future?
For many lawyers and law firms, the probable answer is yes.
The study concluded that there are too many lawyers – and they are facing a declining demand for legal services.
The data shows that legal services made up 0.58% of U.S. gross domestic product in 2001 and reduced to 0.28% in 2019. Sadly for lawyers, Americans are spending proportionally less on legal services now than they were two decades ago.
Why? There are many reasons. Many legal tasks are automated, you can buy inexpensive forms online, there are more paralegals and fewer lawsuits in some areas—litigation is expensive, as we all know. The number of lawsuits filed in federal courts has declined on both per capita and per lawyer bases since 2001.
And yet, lawyer ranks keep growing. The number of lawyers per every 1,000 workers in the U.S. went from 4.15 in 2001 to 4.4 in 2019.
Which means more lawyers are fighting for a slice of an increasingly smaller pie.
At the top of the heap, the AmLaw 100 are doing just fine, reaping ever-growing profits from the cream of the corporate crop. In other words, the gap between the “top dogs” and everyone else is widening.
And to Cheer You Up (Not), Here’s How Lawyers are Paying for Their Shoddy Security
Just when we thought ransomware might settle down a bit, we continue to see successful ransomware attacks in all sectors. Let us try to lend a helping hand. Microsoft has released its second edition of Cyber Signals, highlighting security trends and insights gathered from Microsoft’s 43 trillion security signals and 8,500 security experts.
Microsoft analyzed anonymized data of real threat activity - it found that over 80% of ransomware attacks can be traced to common configuration errors in software and devices.
Microsoft analyzed anonymized data of real threat activity—it found that over 80% of ransomware attacks can be traced to common configuration errors in software and devices.
What are law firms (and everyone else) doing wrong?
They leave applications in their default state, allowing user-wide access across the network They use security tools which are untested or misconfigured. They have cloud applications set up in a way that permits attackers to gain access to their networks. Also, they do not apply Microsoft’s attack surface reduction rules, which allows attackers to run malicious code using macros and scripts.
The misconfigurations cited above are precisely what ransomware attackers are looking for. Do not leave those doors open, especially now that ransomware attacks frequently involve double extortion – seeking monies for a decryption key as well as stealing data which they threaten to release unless a second ransom is paid. And even if you pay, the data may still be released. Happens all the time. What’s your recourse then? You have none.
The Rise and Wrath of RaaS
Microsoft warns of the growth of the ransomware-as-a-service (RaaS) ecosystem, which permits attackers who do not have a lot of expertise to create and develop their own ransomware to conduct ransomware attacks.
RaaS kits are child’s play to find on underground forums and they now include customer support, providing criminals with all the assistance they need to get started. Some of these ransomware kits are sold via a subscription model, while others are affiliate models, where the sellers get a piece of the action from each ransom payment.
As Microsoft accurately notes, “ransomware is an avoidable disaster. Reliance on security weaknesses by attackers means that investments in cyber hygiene go a long way.”
Recommendations from Microsoft You Should Heed So, what should you be doing? Microsoft recommends closing security blind spots by ensuring that cybersecurity tools and
procedures are configured correctly in a way that protects your systems. You must also disable macros and other scripts that cyber criminals often exploit to execute malicious code.
In an attempt to protect users from themselves, Microsoft now blocks macros in Office apps by default.
Of course, everyone should be using multi-factor authentication (MFA), everywhere it is available. We are regularly astonished by the pushback of lawyers who simply don’t want to be troubled by having a second factor. Trust us, it becomes second nature to you to use MFA and some methods of using multi-factor authentication are quite simple. Just remember how darn effective it is at preventing mischief in your network! Your cyber insurance carrier may even require MFA, again trying to protect you from yourself.
Think about how easy it is for cybercriminals to use stolen IDs and passwords to move around the network in their nefarious schemes, particularly ransomware attacks. The use of MFA stops nearly all of those attacks.
And let us not forget what makes us tear our hair out, finding law firms that are not applying security patches and updates quickly upon their release. It is only hours (or minutes) after a vulnerability becomes public that the cybercriminals seek to exploit it. Do not aid and abet them by dragging your feet when it comes to patches and updates! That way lies disaster.
Sharon D. Nelson is a practicing attorney and the president of Sensei Enterprises, Inc. She is a past president of the Virginia State Bar, the Fairfax Bar Association and the Fairfax Law Foundation. She is a co-author of 18 books published by the ABA. snelson@senseient.com
John W. Simek is vice president of Sensei Enterprises, Inc. He is a Certified Information Systems Security Professional (CISSP), Certified Ethical Hacker (CEH) and a nationally known expert in the area of digital forensics. He and Sharon provide legal technology, cybersecurity and digital forensics services from their Fairfax, Virginia firm. jsimek@senseient.com.
Michael C. Maschke is the CEO/Director of Cybersecurity and Digital Forensics of Sensei Enterprises, Inc. He is an EnCase Certified Examiner, a Certified Computer Examiner (CCE #744) a Certified Ethical Hacker and an AccessData Certified Examiner. He is also a Certified Information Systems Security Professional. mmaschke@senseient.com.
PATHWAYS IN THE LAW
The Unintentional Creation of a Varied Career
BY KIMBERLY REED, ESQ. REED INTERNATIONAL LAW & CONSULTING, LLC
As a first-generation college student at Duke University, coming from a tiny town in the western Virginia mountains, I wanted to see the world, and law school was a means for me to do that. My plan was to go to law school, work for a big international firm, move abroad and get work experience, and become politically connected so I could earn an appointment to the State Department. All went according to plan, until, at the appointment stage, I ironically lost out by supporting the winning candidate. While it took many years to get over that disappointment, I have managed to create an international career on my own terms, representing clients in over 70 countries and traveling to six continents, while being a very present mom to my kids. With six years in academia, six Presidential campaigns, and numerous nonprofit boards, I have had an unusual career.
A Start with BigLaw
After a fun and challenging three years at UVA Law, I took a five-month around-the-world trip alone, mostly in Eastern Europe, the Soviet Union, and its central Asian republics. I was hooked on traveling abroad and learning about different cultures, and I joined the huge multinational law firm in Los Angeles at which I had clerked for two summers. I unwisely chose the litigation department because I’d been good at moot court and enjoyed trial advocacy. However, I learned in that firm and especially at another large firm in DC that I hated the hostile attitude that often accompanied big-time litigation. But being in DC allowed me to dive deeply into politics, working in a low-level position at the White House for a year and learning how party politics worked.
Working in Academia
Weary of constant conflict, I thought of giving up law altogether, but my volunteer position as Chair of the Career Development Committee at the Bar Association of DC led to my first academic position, Assistant Dean of Career Development at the University of North Carolina School of Law, where I eventually taught classes in nonprofit law and nonprofit management. For the first time, I loved what I was doing—teaching and counseling students on their unique career paths, guiding them to avoid my mistake of choosing a specialty totally unsuited to my personality. The schmoozing with law firms, bar associations, and judges fit my outgoing personality well. But after six years, the urge to get back on the path to foreign relations was too strong to resist, and when I got engaged
to my college sweetheart after many years apart, I moved to Warsaw, Poland, where he was heading the Eastern European operations of a Fortune 50 company. I saw this as the start to my international career.
Creating Capitalist Systems Abroad
Because my Polish language skills were not sufficiently fluent to get a teaching position, I fell back on law, taking a position with the Warsaw office of a DC-based AmLaw 100 firm, which took me on with the caveat that I would essentially be starting over as a corporate associate but they would promote me to partner faster if my progress warranted it. I figured (a) I could learn the transactional work that dominates international practice, (b) if a firm had a Warsaw office, they probably had several other international offices where I could potentially work, and (c) I could eventually transfer back to the United States, preferably to DC.
Business was booming in the Eastern European countries seeking EU membership. It was a steep learning curve, being thrown into huge project finance and corporate deals while learning “on the fly” and struggling with a new language. But it was fascinating to basically invent the law as new situations arose that were not addressed by the old Soviet-era legal system. Statutes and regulations simply did not exist in many areas, so lawyers were making it up, looking to U.S., U.K., and German law for guidance. I worked until the morning that I gave birth in early 2002 and was back seven weeks later with a very colicky baby and so little sleep that I sometimes walked straight into walls or dozed off while standing at my secretary’s desk. A second colicky baby quickly followed in 2003. I was exhausted all the time but afraid to be seen as working any less than my male peers, all of whom had wives staying home with their children or working only part-time.
Facing Corruption in Russia In 2004, the opportunity arose to transfer to the Moscow, Russia office. We packed up and moved to a suburb of Moscow that, unbeknownst to us, was an oligarch neighborhood. My job grew to a new level of intensity: routine 16-hour days, with frequent over-nighters in the office; intermittent travel, especially to Helsinki, London, Cyprus, and Germany; and
working mostly for a notoriously difficult senior partner, one of the top three money makers in the firm, whose behavior was, in retrospect, abusive and sometimes cruel. While billing the required number of hours, I also did about 300 hours of pro bono work a year, and the firm promoted me early.
Living and working in Moscow was exciting, fascinating, grueling, and very difficult. Rampant corruption rendered the Foreign Corrupt Practices Act incomprehensible to a Russian— how could you possibly get a deal done without giving bribes?! I had children aged one and two years old but was expected to work seven days a week. Thanks to our live-in nanny and housekeeper, my young children were learning Polish, Russian, and Ukrainian, but I rarely saw them. Adding another twist, my regular firm work involved the very largest Russian companies and their various oligarch owners (with their ties to Putin), but the pro bono cases I chose (and to the firm’s credit, they let me take) were largely for democratization NGOs that were targeted by the Russian government. This resulted in frequent issues with
our fourth year there and it became important for us to raise our children in a more diverse place, we decided it was time to move again. We considered Hong Kong and the United Kingdom, but when the right opportunity came from my political activity, we moved back to the United States, settling in the DC area.
I was president of Democrats Abroad in Russia, the U.S. Democratic Party’s arm for American expats. Through friends in the early Obama ’08 campaign, I was hired in a senior position, based in the campaign’s DC and Chicago offices, to organize the millions of Americans who vote from abroad and to represent the candidate in foreign countries. Although the firm granted me a leave of absence, I saw this as my opportunity to parlay my campaign work into the long-awaited State Department
Living and working in Moscow was exciting, fascinating, grueling, and very difficult.
Rampant corruption rendered the Foreign Corrupt Practices Act incomprehensible to a Russian.
the FSB (formerly the KGB), including having my house and cars bugged, being followed by FSB agents, and several of my clients having to leave the country after serious threats on their lives (or in some cases, their children’s lives).
A few of my NGO clients have been arrested or assassinated since then, and several of my firm colleagues have left Russia altogether.
Life in Moscow was a mixture of the familiar, such going to the office, being stuck in traffic, eating at my desk, and the surreal, such as my baby daughter never sleeping in her own room because it faced the home of the Russian Minister of Defense, whose bodyguards got drunk every night and shot Kalashnikovs into the air toward our house. As we neared
appointment, so I decided to take my chances.
The Highs and Lows of Politics
The 2008 Obama campaign was lightning in a bottle—every day was exciting. I represented then-Senator Obama at events and with foreign leaders in Hong Kong, India, the United Kingdom, France, Germany, Hungary, Poland, Italy, Belgium, Canada, Mexico, and other countries, and was in charge of grassroots organizing to register American expats to vote and motivate them to register others. On election night, I was on top of the world, thinking that not only had the U.S. elected a superlative candidate, but I was also close to my career goal.
However, my perfectly-followed plan went off the rails in an unexpected way. President Obama gave complete control of State Department hiring to new Secretary of State Hillary Clinton, whose presidential campaign had offered me a position that I had turned down to work on the Obama campaign. Despite all of my efforts to call in favors and make the right connections, I was shut out by the Clinton folks at State, USAID, and the NSC. I knew that this was how politics was played, and many of my campaign friends also didn’t get positions they had worked for, but it was completely devastating nonetheless.
Changing Course: Solo Practice with an International Focus I had followed a plan for my entire professional life, and when I could literally see the prize, it was snatched away. Bereft and lost, I went back to the firm briefly, but was told in no uncertain terms that I could not stay in the DC office (I was welcome to move back to Moscow, of course). Feeling like I had no oxygen to breathe, no life plan, and no identity remaining, I left the firm and decided to take six months to re-acquaint myself with my kids (then four and six years old) and figure out my life. It was the lowest point I have ever experienced, and I am still not completely recovered from it 15 years later. But during that time off, a few people approached me to do legal work for them—they could suddenly afford me at my non-big firm rates—and a few former firm clients brought me smaller transactions that were not cost effective to give to a large firm. Before I knew it, I unintentionally had a small solo practice.
Then the calls started coming from foreign presidential campaigns wanting advice on organizing diaspora campaigns. I consulted with candidates from DRC, Cote d’Ivoire, Zambia, and Senegal, traveling widely through Africa for the first time and also advising countries on, among other things, strengthening their ability to draw multinational businesses. Because this wasn’t within the purview of my law practice, I started a small consulting company with an old Obama campaign friend in 2010 (he is now a candidate for President of Senegal). Eventually I cut back on this work as my children became teenagers and needed more of my time, but it was a very interesting side note to my law practice.
In the decade-plus since then, apart from a brief stint as a partner at a mid-sized regional firm just before COVID, I have maintained a solo practice focusing on international business law. I have had transactions in over 70 countries for both U.S. and foreign clients, and I have a long list of local counsel around the world. Dealing with time zones can be trying, but working with different cultures and legal systems is interesting and constantly changing due to political and governmental shifts around the world. Best of all, having my own practice allowed me to be a present mother to my kids, who are now at Duke and Tufts Universities.
I don’t know what is next for me in this homestretch of my career. It has been true for me personally that I couldn’t have everything all at once, but I have done some of what I’ve wanted to do by not being afraid to jump out of a bad or unfavorable situation into the unknown. The biggest lesson I have learned is that as long as you have a base level of intelligence, a great deal of success is based on luck—working for the right partner, being present at the right meeting, not being dragged unintentionally into other people’s issues or blamed for something you did not do, and having mentors willing and able to push you forward to the right audience. Some of this is controllable, but much of it is not.
I’m often asked if I think my career would have been different if I were a man, and the answer is undoubtedly yes. I doubt that a man has ever been told by a senior partner that there was doubt about him being both a good law partner and a good parent, nor would a state court judge ever ask a man to “please wear that red dress again on Monday, I liked that red dress.” I was recently berated on a conference call with a Saudi businessman to “be quiet like a woman so the men can handle the deal properly.” (At least my client promptly terminated discussions with that company.)
It has been true for me personally that I couldn’t have everything all at once, but I have done some of what I’ve wanted to do by not being afraid to jump out of a bad or unfavorable situation into the unknown.
There are still far too many highly capable women who leave law practice to be present for their families and then never are given a chance to get back “on track” in their careers because “it’s been too long since they practiced,” as if their intelligence and experiences have somehow eroded during their motherhoods. While I never left law practice, I definitely feel the loss of reputation that comes from no longer being at a large, well-known firm, as if that somehow reflected on my ability as a lawyer. But I, like all other professional women, have to keep going to try to make it easier for our daughters and nieces and younger female friends, especially those in minority groups, to move forward.
Great Expectations: The Changing Role of General Counsel
BY PAMELA LANGHAM, ESQ.
Instead of being shut out of the business decisions, the business decision makers are including in-house counsel in all of the corporation’s operations. This has created substantially more work for in-house counsel, but it is in the best interests of the corporation— the client!
The ever increasing demands on in-house counsel have grown exponentially. Those who must monitor and manage the legal environment in their organization know, firsthand, the increasing pressures and expectations of their boards and executive officers. In-house counsel should embrace this growing trend as an evolutionary process that will morph your position into a true chief of legal advice, counsel, and office. As corporations expect more of their in-house counsel, in-house counsel can influence and drive the corporation’s business into a bigger, better, and more legally compliant organization in all the organization’s dealings.
For so long, in-house counsel was consulted to provide a legal opinion, leaving the business decision makers to have the final say in business transactions. That model—some argue “tunnel vision”—has historically and repeatedly subjected the organization to legal risk. Not all risk is bad; however, instead of being shut out of the business decisions, the business decision makers are including in-house counsel in all of the corporation’s operations. This has created substantially more work for in-house counsel, but it is in the best interests of the corporation —the client!
Attorneys went to law school to serve clients diligently and zealously in all matters. After all, Rule 2.1 of the ABA Model Rules of Professional Responsibility contemplates a lawyer’s role as counselor:
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.
See also Rule 19-302.1, “Advisor”, of the Maryland Attorney’s Rules of Professional Conduct and the Comments thereto, which mirrors the language of Rule 2.1 of the ABA Model Rules, but has specific comments for guidance.
Serving in an expanding role is easier said than done. Many issues at the forefront of corporate counsel are complex, multidimensional issues that are perplexing and difficult to navigate. As in-house counsel navigates solutions to many of these legal and operational issues, remember the law is your friend and is flexible in its purpose. Be a leader, be flexible and guide your corporation in these new areas.
Below are a few issues that in-house counsel will need to address, if not already, or now, then in the near future.
In the digital context, non-fungible tokens (NFTs), payment tokenization, and the metaverse are examples that companies will be forced to deal with. There is little insight into the legal challenges that companies may face as they negotiate a path in this changing environment.
With Russia and China disturbing the world order, legal counsel need to be on alert for the effects on the legal environment.
The corporate environment is not immune to the potential for theft and appropriation that has made the news primarily in the academic world, but every organization that has a research and development department or produces or uses technology (all of us) is vulnerable to corporate espionage and cybersecurity attacks. There will be an increased need for corporate counsel to be prepared to deal with employee appropriation, interaction with police (Do you know your local sheriff?) and federal regulators regarding the theft of intellectual property, trade secrets, and process innovations.
Challenges with product demand in an uncertain market, along with corporate cost-cutting that we see in the news everyday is alive and well. The
implications on contract renegotiation and realignment are apparent and the corporate legal department is not immune to cost-cutting efforts.
Drafting exemplary contracts in an environment of increasingly necessary speed and agility has always been a difficult task for in-house counsel. Now many of those contracts will need to be re-negotiated to include points of concerns (ESG, virtual work, DE&I requirements for subcontractors, supply chain, etc.) Collaboration and delegation of re-negotiation of these contracts is critical for in-house counsel. Equally essential is automation of contract legal templates and delegating work across the organization for this major task. The growing challenges from Environmental, Social and Governance (ESG) remains and is growing. While diversity, equity and inclusion (DE&I) are a constant
issue for corporate counsel, there is little discussion of the evolving threats from both the focus upon implementing these goals and the concurrent and countervailing risks. Without focus on DE&I there are risks of lawsuits, the threat of social activism against image or income and to the corporate image. There are multiple Supreme Court decisions in the current term that may materially alter the use of affirmative action, and the shifting environment may require corporate counsel adjustment of policy and practice.
Last, let’s not forget about COVID-19. I saved COVID-19 for last because I feel like we are in the “hangover” phase of the pandemic. The lost revenue and productivity of businesses as a result of COVID is now being felt throughout the economy while the employment issues and all that entails surrounding remote work remain.
Herb Frerichs
GENERAL COUNSEL FOR PERDUE FARMS INC.
THROUGHOUT HIS 21 YEARS AS General Counsel for Perdue Farms, Inc., Herb Frerichs has seen his role changed many times. “In the early days it was pretty much some corporate law, contract review and litigation management. Today, there are so many different areas, laws and avenues of exposure and liability—you need to be the expert advisor in so many areas.” Frerichs recites the list of areas he must now understand and advise on: “Privacy, employment, environmental, international, governance, antitrust. Just new in recent years—trade tariffs, cyber, Ukraine and COVID. And the list keeps growing.” As a result of this evolution, Frerichs says he takes a prominent and proactive role in business decisions. He recently considered advice to fellow GC colleagues and those considering transitioning into the role.
What skill set is crucial for GCs to have these days?
Listener, peacekeeper, moderator, problem solver, influencer. Be thoughtful. Be accurate.
How do you successfully balance business v. legal risk?
Most critical and important part of job. Look at each matter separately. How bad is bad? What are the chances of said exposure and max amount of exposure—and what are the benefits to business of taking the risk and/ or opportunity costs to business of not taking the risk.
How can lawyers prepare themselves to transition to a GC role?
Know everything there is to know about the business and the industry in which it operates. Get good at time management, prioritizing and delegating.
Any advice for those who would like to move from a GC role to other practice settings?
You are well prepared with GC background— if there is something that interests you—eyes wide open and go for it. My next job will not involve law.
Anything else you want to add?
It has been an honor and a pleasure representing the Perdue family and Perdue companies for these 20 years.
Serving in an expanding role is easier said than done. Many issues at the forefront of corporate counsel are complex, multi-dimensional issues that are perplexing and difficult to navigate.
Juan Arreaza
ASSOCIATE GENERAL COUNSEL FOR OSHKOSH DEFENSE, LLC
IN THE SEVEN YEARS THAT he’s been Associate General Counsel for Oshkosh Defense, LLC, Juan Arreaza has seen his role transition from “more tactical matters to support the needs of the business” to becoming “more involved in strategic matters and assessing the business deal/impact.” Arreaza emphasizes that GCs must master active listening, and have the ability to forge genuine relationships with business leads, and create a welcoming environment that can get the most out of the teams you lead and support.” This is more complex in a remote/hybrid environment, he acknowledges.
How do you successfully balance business v. legal risk?
I learn as much as I can about the opportunity and the desire to pursue it, and then attempt to determine the risk tolerance for that particular opportunity. All of that information helps me devise a plan with workable options for the business.
How can lawyers prepare themselves to transition to an in-house role?
Stay up to date on news (not just legal updates) that affect the industry, understand the company’s market profile and future plans, and determine how the legal department is seen by stakeholders.
Anything else you want to add?
Stay engaged and carve out time for pro bono work. Attorneys are agents of change, so we have an incredible opportunity to impact our country in a positive way.
MAKING A BROAD IMPACT
CHRIS MINCHER Chief Legal Counsel, Office of the Governor
Whether you have been in the counsel office for six months or eight years, all of us in the Governor’s office only have a limited time to make a difference, and there are long odds we will ever have this chance again.
Photo courtesy of Travis Marshall Photography.
CHRIS MINCHER, WHO WAS APPOINTED BY GOVERNOR LARRY HOGAN in July 2022 to serve as Chief Legal Counsel, is “humbled to be entrusted with such an important role.” When Mincher joined the Office of Legal Counsel in December 2016 he had no political connections but believed that Hogan’s approach aligned with how he wanted to practice law.
After federal and state clerkships followed by private practice, Mincher had learned quickly that the court environment was the opposite of law school and everything he did had very real consequences, sometimes vastly so. Mincher likes to be involved in things that have a broad impact. He feels a lot of responsibility knowing that the result of what he is doing can affect so many people and makes an effort not to lose sight of the big picture.
Described by Governor Hogan as “an exceptionally committed public servant,” Mincher has found his career in public service to be as gratifying as he hoped.
Priorities and Challenges as Chief Legal Officer
With the Hogan administration winding down, Mincher believes his time in the Governor’s Office of Legal Counsel has been successful and doesn’t see a need to change things so close to the finish line. A priority for him now is getting the Maryland State Archives an extensive and comprehensive collection from the Governor’s tenure, so that the Governor’s strong legacy will be preserved.
Mincher faces the challenge of employee turnover, which is typical this close to the end of a term. This opens up short-term, valuable opportunities for less experienced staff; Mincher’s role includes training these new employees on ethics and other legal obligations. “The Office of Legal Counsel is not immune to employee turnover at this time,” said Mincher. He has assembled a new legal team in the past few months.
Mincher occasionally is asked why he is still working in the Office of Legal Counsel after all these years. Mincher stated he is still working in the Office of the Legal Counsel because former Chief Legal Counsel “Bob Scholz always told me whether you have been in the counsel office for six months or eight years, all of us in the Governor’s office only have a limited time to make a difference, and there are long odds we will ever have this chance again.”
Mincher added, “attorneys who are the happiest in their jobs are those who like their clients, and as to the Governor and the staff, that is certainly true for him.”
Crisis Lawyering During COVID-19
The Office of the Legal Counsel drafted the Governor’s order during the pandemmic, which usually required immediacy even when staff had limited experience with the subject matter. Mincher stated, “the playbook on how to practice law wasn’t of much use, because very little of what was happening was contemplated in the law.” In the future, Mincher believes that there will be treatises and lectures and classes taught on this period of crisis lawyering. For him, it all just boiled down to, “think creatively about what the law allows within its text and in light of its purpose, respect fundamental rights and liberties that must be maintained even in times of catastrophe, exercise emergency powers narrowly and temporarily, make changes the public can ascertain, understand, and comply with because people are scared and confused.”
Mincher was reassured knowing those up the ladder were closely consulting with experts, using every resource at their disposal, and making well-considered decisions. Mincher added, “then-Chief Legal Counsel Mike Pedone tempered the chaos with calm and a clear head, and other key players kept his office functioning at a high level throughout.”
Public Servant, Attorney . . . Music Reviewer?
Mincher, a self-described obsessive consumer of music of all kinds and genres, was a music reviewer for more than 10 years. Those who have worked with him can know the odd assortment of musical sounds emanating from his office while he is working; and, guests in his home can lament about being subjected to an eclectic playlist of obscure selections. Mincher accepts that people would rather listen to things they recognize, but a small part of his brain clings to the idea that people would actually really enjoy this stuff if they would just give it half a chance.
IN PURSUIT OF SERVICE
ERNESTO VILLASEÑOR, JR.
3L at UBLaw
SOME LAW SCHOOL STUDENTS have no set plans for what they want to do after graduation and no preconceived notion of the path their career might take. Others, like Ernesto Villaseñor, Jr., a 3L student at the University of Baltimore School of Law, have a clear vision of what they wish to accomplish in their legal careers and use their time in law school to work towards their goals.
Photo courtesy of Travis Marshall Photography.
I’ve used my acquired privileges over the years to continue to address the unmet needs of the communities I call home, and I aim to become a public interest attorney to continue to serve my community.
Villaseñor is focused on helping communities in need access legal services and intends to embark on a career in public interest law. He recognizes the importance of safeguarding the rights of people who lack the resources to protect themselves and has engaged in advocacy efforts within his Congressional District in Baltimore and his hometown of Compton, California.
Why do you want to become an attorney?
As a first-generation law student, I understand the impact and importance of addressing unmet needs in the inner city. I was raised to serve my community and those in need. I work in public interest and have worked in civil advocacy and addressing the unmet needs of people experiencing homelessness as a case manager. I’ve used my acquired privileges over the years to continue to address the unmet needs of the communities I call home, and I aim to become a public interest attorney to continue to serve my community.
I am passionate about access to justice for underserved communities! Whether it’s helping a family after a disaster that caused them to lose their home, like a wildfire, helping tenants have a habitable dwelling impacted by extreme heat and climate change, interpreting monolingual Spanish speakers in immigration, or even filing pro se actions—any way I can directly address the gaps in access to justice, that is what drives me!
How are you involved with the MSBA?
My involvement with the MSBA began with the Young Lawyers section. I signed up when I entered law school and am now working to create a bridge between the Young Lawyers section and UBLaw as the Student Bar Association Bar Director. I am also trying to develop ways to get campus groups to connect with and partner with MSBA.
Fondest memory of law school:
The first week of “in-person” classes after spending my entire 1L year on Zoom! It was a day of safely pulling our masks down to identify and meet the people I bonded with during my first year of law school in-person for the first time!
What is the best advice you have received from someone in the legal profession?
Don’t be afraid to ask questions, regardless of how “knowledgeable” you may be about a particular issue or topic or how well you may have briefed a case. Also, don’t remain quiet or wait until the last minute to ask for help; it never helps to try to figure things out on your own, especially when you’re reaching a deadline.
LAWYER TO LEGISLATOR HOUSE DELEGATE SARA LOVE
BY SOPHIA COLAS, ESQ.
SARA LOVE WAS FIRST ELECTED to the Maryland House of Delegates as one of three members representing District 16 in Montgomery County in 2018. Notably, she grasped victory by just 12 votes. “I am here to tell you that every single vote matters,” said Love. Before she was a legislator, Love spent her early career as a lawyer working on federal and state reproductive rights and civil rights.
Throughout her path from lawyer to legislator, Love has stayed true to her roots as a feminist, activist, and public servant. “I come from a long line of feminists and activists,” said Love. “My mom was very involved in the reproductive rights movement, including starting a nonpartisan political action committee in Illinois to elect pro-choice candidates. It is now one of the strongest PACs in Illinois. My dad was an environmentalist even before environmentalist was a household word. Growing up we always had the ‘topic of the day’ that we discussed at dinner. So at a very young age, at home, I was a part of discussions about everything from politics to world affairs, the environment, and all sorts of things.”
Today, Love serves on the House Environment & Transportation Committee, the Motor Vehicle & Transportation Subcommittee, and the Land Use & Ethics Subcommittee. She also serves as Chair of the Land Use, Transportation, & Public Safety Committee for the Montgomery County House Delegation. Outside of the legislature, she serves on the Chesapeake Bay Commission, a tri-state legislative body whose mission is to protect the Bay; the Metropolitan Washington Air Quality Committee; and the Maryland State Advisory Committee to the U. S. Commission on Civil Rights. She also serves as the Maryland State Lead for the National Caucus of Environmental Legislators.
The Journey from Lawyer to Legislator
“I'm told that at about seven years old, I came downstairs one day and I told my mom that when I grew up, I wanted to help people. I said that I was going to become a lawyer and I was going to run for office one day, and that’s what I did,” said Love. True to her word, Love graduated from Princeton and then went to Northwestern University School of Law—although she was temporarily sidetracked. “I knew I wanted to go to Northwestern Law School, because at the time, Illinois was home for me. But I didn’t get into Northwestern right away. So, I spent a year as a paralegal in Manhattan before I reapplied and got in and I loved it.”
After law school, Love clerked for Judge Timothy Lewis on the Third Circuit Court of Appeals and then joined Robinson, Curley and Clayton, a majority-women owned firm in Chicago. “Most of the firm’s work was commercial litigation, plus they did some civil rights work, but I was fortunate enough that most of my work at the firm had more to do with civil rights,” Love said. “For example, I worked on a national case against anti-choice extremists who were using threats and force to close women’s health care clinics. Working on that case had a lot to do with how I came to Maryland. The two plaintiffs happened to be the National Women’s Health Organization and the National Organization for Women (NOW). At the end of the trial, the two presidents of those organizations, Susan Hill, and Eleanor Smeal, invited me to work for them in the DC area and that’s what brought me to Maryland.”
Before running for office, Love served as the general counsel for NARAL Pro-Choice America and as the public policy director for the American Civil Liberties Union of Maryland, where her work focused on reproductive rights and civil liberties issues. When asked about the recent U.S. Supreme Court decision in Dobbs v. Jackson Women's Health Organization, where the court
"Growing up we always had the ‘topic of the day’ that we discussed at dinner. So at a very young age, at home, I was a part of discussions about everything from politics to worldvaffairs, the environment, and all sorts of things.
held that the Constitution of the United States does not provide a right to abortion, Love emphasized the important steps Maryland lawmakers have taken to protect the reproductive rights of women.
“We are incredibly lucky in Maryland because we are a pro choice state,” said Love. In 1992 Maryland codified Roe v. Wade. More recently, Delegate Ariana Kelly was the lead sponsor of the Abortion Care Access Act. “She understood what was really needed to ensure access. For example, we needed to make sure that people who need to access abortion care through Medicaid funding don't have to jump through hoops that people who use private insurance [don’t], we wanted to make sure that other trained and qualified health care providers who already provide very similar services can legally provide surgical abortions, [and] that we have funding dedicated for training,” Love explained. “Looking ahead, we know that more women will come to Maryland for care, so we had to ensure access for the people of Maryland, as well as those who would be coming to Maryland to access abortion care services.”
Despite these protections, Love notes that several of the State’s pro-choice legislators are in tight races.
“Things can change very, very quickly,” said Love who noted that Governor Hogan vetoed the Abortion Care Access bill. “We had a supermajority so we were able to override the veto, but in the Senate it passed by just one vote.”
In response, Love established StandUp MD, a pro-choice mobilization fellowship program for student leaders. Fellows in the program learn campaign skills they can put to use to help elect pro-choice candidates across Maryland during the 2022 primary and general election.
What can you tell us about the importance of engaging with young Marylanders and the importance of mobilizing young Marylanders to engage in public service and reproductive justice?
“I think that engaging with young Marylanders and young people in general is vitally important. Young people are the ones that are giving me hope right
Photo courtesy of Travis Marshall Photography.
“It’s important to find what your passion is because it’s really hard work and you can get through it so much better if you believe in it.
now because when the Dobbs opinion was leaked I was crushed. Reproductive rights is an area I have worked in for 40 years. It’s also an area my mother has worked in for 60 years, so she was also crushed. Engaging with young people is critically important because it’s their world, and when I look at my kids I ask myself, what has my generation, and the generation before me, done, and what are we leaving [behind].” Love recently established a mobilization program that directly engages with the next generation of impassioned student leaders and familiarizes them with legislative processes and campaign skills. The program invites passionate student leaders to learn about civil and reproductive rights and teaches them core campaign skills like phone banking and canvassing. The Program’s first cohort started in June 2022 and Love admits that one of her favorite aspects of the Program is also learning from young student leaders as well. “They have such great enthusiasm and insights,” said Love.
When asked what piece of advice she would share with students hoping to walk the same lawyer-legislator path that she has, Love noted how important it is to believe in what you do. “It’s important to find what your passion is because it’s really hard work and you can get through it so much better if you believe in it,” Love said. “I love what I do . . . I believe in what I do, [and] I work with really good people and to me that makes all the difference in the world.”
LAWYER TO LEGISLATOR
U.S. CONGRESSMAN & INCOMING MARYLAND
ATTORNEY GENERAL
ANTHONY G. BROWN
BY SOPHIA COLAS, ESQ.
FOR U.S. CONGRESSMAN ANTHONY BROWN, law school was a goal from the very start. The son of immigrants, with roots from both Jamaica and Switzerland, Brown credits one of his teachers from sixth grade, Mrs. Gallow, for foreshadowing his career as a legal professional.
“[Mrs. Gallow] said ‘Anthony Brown, I think you could be anything that you want to be when you grow up and I think you are going to be an attorney’ . . . [at the time] I did not know what an attorney was so I went home and looked in the World Book Encyclopedia which had an entry for attorney general,” Brown said. “I remember the description being about a legal officer who pursues justice on behalf of the United States, and that really planted a seed in my mind. I remember saying to myself, ‘I’m going to be an attorney that fights for justice for people.’”
Fighting for justice would become something of a mantra for Brown, who went on to graduate from Huntington High School in Long Island before obtaining his undergraduate degree from Harvard College. Brown’s passion for justice and service led him to join the armed services.
His distinguished military career includes time spent as a Judge Advocate General's Corps officer in the U.S. Army Reserve, where he would serve for more than 25 years and achieve the rank of Colonel. Also, during that time, Brown attended Harvard Law School.
Brown recounts how his time in the military played a role in how he approached his time at Harvard Law School. “Law school for me was, in part, a job, I had just spent five years in the army so I wasn’t coming right out of college . . . and at the time I wanted to be a prosecutor,” he recalled. For Brown, this meant taking upper level criminal law classes, including classes taught by Professor Charles Ogletree, a renowned public defender and a tenured professor at Harvard at the time. “I also interned in the prison legal assistance program which represented inmates in the Massachusetts correctional system, I took a trial advocacy workshop, and I worked at a local state prosecutor’s office. I was also on the mock trial team which won its first competition that year. So, [you could say] I was laser focused on developing the skills and getting as much experience as I could to be a successful prosecutor,” Brown said. After law school, Brown served as a clerk for Chief Judge Eugene Sullivan of the U.S. Court of Appeals for the Armed Forces before joining the D.C. offices of an international law firm.
Focus on the people, institutions, or issues you are going to serve because as a young attorney working in a law firm or any other organization you will take on cases and matters that may not necessarily be what motivates and drives you.
As fate would have it, Brown’s ascension from lawyer to legislator began with his election, in 1998, to the Maryland House of Delegates, where he represented Prince George’s County. During his time in the state legislature, Brown made his mark by championing reforms to expand protections for victims of domestic violence, abused and neglected children, and veterans whose mental and behavioral health needs were not being met. Brown would serve two terms, as a Delegate during which he rose to Vice Chair of the House Judiciary Committee and Majority Whip. In 2006, Brown was elected to the Office of Lieutenant Governor, where he served for eight years leading some of the O’Malley Administration’s key policy initiatives, including among other things, increasing employment and health services to veterans and working to expand health coverage for Marylanders.
In 2016, Brown was elected to the U.S. House of Representatives in Maryland’s 4th Congressional District and went on to serve three terms. In October 2021, Brown announced that he would not run for an additional term and instead announced that he would run for Attorney General of Maryland. On November 8, 2022, Brown won the election. When his term begins in January, he will make history as Maryland’s first Black Attorney General. Brown recently discussed his career as a lawyer and legislator with the MSBA.
What would you say is one of your proudest memories of your career as a legal professional and public servant so far?
One of the proudest memories that comes
to mind is a case that I took on a pro bono basis. It was in DC Superior Court, and at the time I was an associate at Wilmer Cutler Pickering. The firm had a reputation for and really encouraged pro bono work among its lawyers. I accepted a request by the court to represent a child in need of assistance and when I went to the judge's chambers to accept the case file, I took the file and as I looked into it, I said ‘we've got some serious issues here.’ We ended up going way beyond what the court had expected. I got the sense that the court expected that this was going to be a case that was wrapped up in a day, and we ended up bringing in experts and having a full blown trial in DC Superior Court.
What we found was that this child was truly at risk of abuse by her father. And so what would have otherwise resulted in the father having unsupervised visitation with his three-year-old daughter ended up being supervised visitation that was very limited, and very restricted. And it was truly a rewarding experience . . . [because we were] accepting the case but not accepting the preconceived outcome of the case. I'm thankful to the firm for allowing us to devote the firm’s resources and allowing us to put in the hours that we did. For me, it was one of the most rewarding representations that I ever had.
What advice would you give law students entering the legal profession?
I would say focus on the people, institutions, or issues you are going to serve because as a young attorney working in a law firm or any other organization you will take on cases and matters that may not necessarily be what motivates and drives you. Always keep
in mind and stay focused on the things that really motivate and inspire you as a lawyer and continue perfecting your knowledge and understanding and continue building your skills in a way that allows you to be an effective advocate, representative or counselor for the individuals or institutions or issues you are most passionate about. That’s what I think will propel you forward [and allow you] to wake up every morning feeling good about being a member of [this] profession.
What are your thoughts on the importance of access to justice for vulnerable communities, including indigent clients and children who wouldn't otherwise be able to afford a lawyer, and the role legislators and lawyers have to play in the fight for access to justice?
We tend to think about access to justice and the compelling need for people to have representation in the criminal context but we've got to think beyond [that]. For example, when you're thinking about eviction proceedings in landlord tenant cases, an attorney can make all the difference in protecting the rights, the interest and sometimes the privileges that we as citizens or residents, enjoy. So, I certainly encourage attorneys to find ways to represent those in need of representation. And whether it's through direct representation of a vulnerable person, or indirectly in supporting the kind of causes and nonprofit organizations that support vulnerable populations, I think as attorneys, we have an obligation to find ways to represent those in need.
Applying to Become a Judge: Tips
Applying to become a Maryland state court judge isn’t easy. Here are tips distilled from people who’ve been through the process.
(favorite that page!)
Assess Yourself as a Potential Judge.
You may have the qualifications and experience to become a judge. Or you may need to work to reach that point.
Complete the Personal Data Questionnaire.
Applicants must fill out the district/ circuit or appellate questionnaire on the how to apply page on the Maryland Judiciary’s website. The questionnaire is a deep dive into your history.
• Visit the qualifications page on the Maryland Judiciary’s website for the minimum legal qualifications, e.g., residency, age, bar membership, etc.
• Review the Personal Data Questionnaires at the how to apply page for the kinds of experience expected of a judicial applicant. Note: There are two questionnaires—one for district and circuit courts, and one for appellate courts.
• Ask others what they think are your strengths and weaknesses.
PRO TIP: Listening humbly to feedback may help you identify weaknesses and, remember, digesting different viewpoints is part of being a judge.
• Save time by repurposing data you gathered for earlier applications, e.g., applications to Law School, the Bar, government positions, etc.
• Keep a running curriculum vitae of every lecture you give, and every course, conference, and lecture you attend with date and subject matter. Recording your history as you go is more efficient and accurate than reconstructing it post hoc.
• You will be asked to authorize the transmittal of your completed questionnaire to a list of organizations for review.
PRO TIP: Although you can exclude any organization from the list, it’s probably a mistake to do so.
Shore Up Your Experience Gaps.
When you review the questionnaire, you may find that you lack certain experience. There are ways you can shore up those gaps.
• Train for and try pro bono cases in the area in which you lack experience. Try them in different counties to learn how different county courts operate.
• Observe judges handling the kinds of cases in which you lack experience, and discuss their rulings with them afterward if you can.
PRO TIP: Shoring up experience gaps can show interviewers your commitment to becoming a judge, and make you an even better lawyer.
Get Involved.
The questionnaire on the how to apply page on the Maryland Judiciary’s website covers your business and civic involvement. Consider getting involved in your community if you aren’t already.
Line Up Professional References.
You will need to submit at least three professional references with your completed questionnaire.
• Being actively involved in bar associations not only increases your access to knowledge and current practices, it expands your network of potential references.
• Being actively involved in your community is not only a good in itself, it also demonstrates your commitment to the community and rounds out your understanding of how it works.
PRO TIP: Community involvement broadens your experience beyond the legal profession, which increases your community connection and can help you be a better lawyer.
• Your references should address their letters to the Governor.
• Fewer stronger references are better than several weaker references.
• A strong reference list contains a diverse cross-section of legislators, lawyers, judges, community leaders, religious leaders, etc.
PRO TIP: Before asking someone for a reference, find out if they are supporting another applicant for the vacancy you’re seeking.
Prepare for the Interview.
You will be interviewed as part of the process. There are actions you can take beforehand to help prepare.
• Join bar judicial selection committees to see who gets appointed, who did well in interviews, how they responded to questions, and learn the kinds of experiences committees are seeking.
• Set up mock interviews as if you’re being interviewed by the organizations listed on the questionnaire. Anticipate their possible questions by researching their websites and discussing them with people who know their interests.
PRO TIP: Enlisting a courtroom lawyer would be invaluable for the mock interview.
Stay Positive.
Don’t give up. If not chosen, apply again.
• Ignore rumors and speculation about what the Governor or the Nominating Commission is seeking. The Governor will appoint the best person for the position.
• It’s not only prosecutors who make it to the bench. People from diverse practice areas and backgrounds get there.
PRO TIP: The process of applying to become a judge has little downside. It will improve your lawyering, and your connections to the community you serve.
SURVIVAL TIPS for New Lawyers
BY REBA LETSA, ESQ., JONATHAN T. HUDDLESTON, ESQ., VICTORIA THORNTON, ESQ., AND JOSHUA KAHN, ESQ.
What do you wish you knew when you first started?
EMBRACE THE FACT THAT YOU DON’T KNOW EVERYTHING.
That’s probably a new experience for a high achiever like you. You knew a lot in school, but school probably didn’t teach you working-world skills, like meeting etiquette. Don’t let the brand new learning curve discourage you.
DON’T REINVENT THE WHEEL.
The pleading or instrument you need to draft has been drafted successfully many times before. Find one that suits your needs in your firm’s document management system or a bar association’s document library, and use it as a template. Doing that will show you what a successful draft looks like and save you time.
ASK FOR HELP.
Yes, lawyers are supposed to be autonomous and independent professionals, but you’re also human. Ask for help if you’re stuck—it gives you knowledge, it assures your employer that you’re on the right track, and it obviously benefits your client.
How do you organize your work?
These tips apply to litigators, but basic organization applies to any kind of matter.
LOOK AT THE SCHEDULING ORDER IMMEDIATELY.
The scheduling order will let you know how much time, if any (!), you have before the next deadline. In school, missing a deadline might hurt your GPA; in law practice, missing a deadline might hurt your client.
GRAPH OUT BASIC CASE INFORMATION.
Make a one-stop shop for all nuts-and-bolts information on the case so you can get that information quickly on demand. The kind of information to include would be the identity of experts, their deposition dates, same for other witnesses, the location and identity of the judge, opposing counsel’s contact information, etc.—all the basic information. It will save you time later hunting down these small but crucial details.
DEVELOP AN EFFICIENT FILE NAMING CONVENTION, AND STICK TO IT.
For paper or digital files, an efficient naming convention enables you to track and retrieve files quickly. It will save you time as you progress through the case.
Reflect on what you like to do in your free time, and with intention make time for it during your free time schedule. Nobody else will.
What’s important to ask when you’re assigned a matter?
ASK FOR THE DEADLINE AND HOW TO PRIORITIZE THE MATTER.
Asking the assigning lawyer for this information will help ensure they receive your workproduct when they need it, and protects you from missing a deadline or prioritizing the wrong matter in your queue.
ASK WHAT KIND OF WORK PRODUCT YOU SHOULD PRODUCE.
Assigning lawyers want different types of workproduct depending on their preferences, the type of case, etc.
Asking the assigning lawyer what kind of workproduct they want (e.g., memorandum, brief, synopsis, etc.) resolves any ambiguity and ensures you’re providing exactly what they expect.
How do you maintain work/life balance as a young associate?
LET COLLEAGUES KNOW WHEN YOU’RE TAKING TIME OFF.
Communicating with your colleagues regarding time off gives them fair warning in case they expected you to be available during your time away. Let them know as far in advance as you can, and remind them as your time off gets closer. If there is an organization-wide calendar that logs off-time, make sure yours appears there.
PRO TIP: Even though your supervising attorney should know when you’re off, remind them anyway.
ASK COLLEAGUES IF THEY NEED ANYTHING BEFORE YOU GO.
When you let them know you’ll be out, ask them if they need anything beforehand. Doing that helps them get what they need from you and protects you from unreasonable, last minute requests (though it’s not a guarantee).
TURN OFF THE PHONE WHEN YOU’RE AWAY.
Record a vmail that says when you’ll be back and who to contact if the caller can’t wait. If colleagues persist in calling you, then that’s some evidence that they don’t respect your boundaries. You might consider looking elsewhere for employment.
PRO TIP: Remember to let your substitute contact know that they are your substitute contact.
PRIORITIZE WHAT YOU ENJOY DURING YOUR FREE TIME.
Reflect on what you like to do in your free time, and with intention make time for it during your free time schedule. Nobody else will.
How do you avoid hitting the wall?
Everyone’s wall is different. You’ll know when you’ve hit yours. A classic scenario is it’s 1 a.m. and you’re beginning a brief due that’s at 10 a.m. In this scenario, you’re harming yourself and very possibly your client.
PRACTICE SCHEDULE AWARENESS.
Deadlines that are simultaneous or close in time can generate angst if they surprise you. Staying aware of your schedule, and allocating sufficient time for your matters, helps prevent that from happening.
TIME YOURSELF ON TASKS.
Once you know how long it takes you to complete a routine task (e.g., drafting an instrument or researching new legislation), you’ll get more realistic about how long it takes to complete a task. Time-tracking apps help.
PRO TIP: “I love tracking my time,” said no one ever. But it’s part of the profession you have chosen.
BUILD A WORK SCHEDULE.
Use what you know about how long it takes you to complete tasks to build a work schedule, based on time-tracked tasks. If you work without tracking the reality of how long it takes to complete tasks, you increase the chance of hitting the wall.
How do you find a mentor?
ASK AROUND.
There are different kinds of mentoring programs—firm diversity mentoring programs, bar association Section mentoring programs, etc. Ask people within your workplace or bar association.
RECOGNIZE AN ORGANIC MENTOR.
Sometimes the best mentors are those who emerge organically, borne of camaraderie within your office or volunteering with someone at a bar association practice group, etc.
CONSIDER AN INTERNAL AND EXTERNAL MENTOR .
A mentor within your place of work can help you navigate your workplace’s best practices and politics; a mentor outside your place of work can help you navigate career development questions, which sometimes may not involve your current employer.
PURSUE SOMEONE YOU WANT TO EMULATE.
Identify someone you want to emulate and ask them for an informational meeting. It may develop into a mentoring relationship; if they don’t respond then try again. Don’t be discouraged—they may be busy (if so, that’s a sign that they’re a good choice for emulation).
PRO TIP: If you’re cold calling a possible mentor, make their gatekeeper your ally. Turn on the charm and respect, and they may help you get that meeting. (You should try to be charming and respectful anyway.)
Sometimes the best mentors are those who emerge organically, borne of camaraderie within your office or volunteering with someone at a bar association practice group, etc.
How do you build a good reputation?
DON’T BE A [INSERT YOUR FAVORITE PEJORATIVE].
Be nice to people no matter who they are. People talk.
KEEP A POSITIVE ATTITUDE.
Colleagues, and especially supervisors, appreciate a can-do/ will-do attitude. It relieves them of the burden of wondering if they can rely on you.
DO CONSISTENTLY GOOD WORK.
Look at each task like it’s a brick in structure, and the structure you’re building is your professional reputation.
BE THESE ADJECTIVES:
Reliable, reasonable, collaborative, and cooperative. You can probably think of more.
GIVE BACK IF YOU CAN.
Time is short when you’re starting out. If you have time, do pro bono work or other volunteer work to benefit a community in need.
How do you handle an antagonist?
You might get your very own antagonist — someone who for whatever reason wants to impede your success.
DON’T ALLOW THEM TO ALTER YOUR BEHAVIOR.
Doing that gives them power over you, which is manifestly a bad thing.
AVOID THEM IF POSSIBLE.
Antagonistic people self-sabotage and make people not want to be with them. You won’t be alone in avoiding them.
WAIT THEM OUT IF POSSIBLE.
Sometimes antagonists move onto another workplace. If they don’t, or gain a degree of organizational power over you, then you may consider working elsewhere.
How do you manage remote work?
PROFESSIONALIZE YOUR HOME OFFICE. Make it feel as professional as you can.
LIMIT DISTRACTIONS, INCLUDING HOME TASKS.
Doing laundry is necessary, but not for work. It amounts to a distraction and multiple small tasks can consume a significant part of your day.
CAUTION #1:
Working from home may cause you to miss out on the informal mentoring that happens at the workplace, which happens when people chat about their cases or share war stories. You can pick up a lot of good information listening to others.
CAUTION #2:
It’s good for your more senior colleagues to see you in person. It helps establish a personal rapport that is far more difficult to establish via video. Video tends to formalize communications and diminish opportunities for people to become acquainted personally.
Colleagues,
and especially supervisors, appreciate a
can-do/will-do attitude. It relieves them of the burden of wondering if they can rely on you.
What is the best legal advice you ever received?
START
BUSINESS DEVELOPMENT EARLY.
Today’s acquaintances may be tomorrow’s clients. Everyone you meet is part of your network. Let your network know what you’re doing from time to time — LinkedIn is a great platform for doing that.
ENJOY WHAT YOU DO OR JUMP SHIP.
If you don’t enjoy what you do, you may be in a practice that doesn’t suit you, or in a work environment that’s unhealthy for you. There’s no need to lock yourself into a bad situation if there are other opportunities.
KEEP YOUR EYE ON THE FOREST.
And don’t get lost in the details of the trees. As an associate it’s your job to focus on details, but practice zooming out from the details and being cognizant of the big picture.
Letsa is with Baker Donelson in Baltimore and Washington, D.C., where she maintains a broad litigation practice with a focus on labor and employment and business litigation matters.
Kahn is with Schochor & Staton, P.A. in Baltimore and Washington, D.C., where he specializes in tort law with an emphasis on cases involving catastrophic personal injuries.
Huddleston is with Schochor & Staton, P.A. in Baltimore and Washington, D.C., where he focuses on all aspects of medical malpractice litigation in his role as a litigator.
Thornton is with Goodell, DeVries, Leech & Dann, LLP in Baltimore, where she handles a wide range of intellectual property law and litigation matters, as well as general business matters.
REBA LETSA
JONATHAN T. HUDDLESTON
JOSHUA F. KAHN
VICTORIA THORNTON
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
Criminal
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
Maintaining an Essential Attorney Resource with an Eye to the Future
Paul Sandler, Jim Archibald, and Eleanor Chung
Update Pleading Causes of Action in Maryland
Jim Archibald, Of Counsel at Wright, Constable & Skeen
Paul Mark Sandler, Of Counsel at Shapiro Sher Guinot & Sandler, P.A.
Eleanor T. Chung, Associate, Epstein Becker & Green, P.C
Photos courtesy of Travis Marshall Photography.
Paul Sandler was inspired to write Pleading Causes of Action when, as a young associate in the 1980s, he received a call asking about a pleading in a lawsuit. He realized there were no books to look to on causes of action, which prompted him to begin writing the book. A year later, he was still working and writing the book, but felt like he was not getting anywhere. As luck would have it, he was sitting on a bench at an American Bar Association meeting in Colorado when Maryland attorney Benjamin Civiletti approached him. They began talking about the book, and Sandler expressed that he felt overwhelmed. Civiletti suggested that Sandler needed a co-author. He told Sandler to answer his phone at 9:00 a.m. the following Monday and that the person on the other line would be his new co-author. As promised, at 9:00 a.m.
Monday morning, James “Jim” Archibald called Sandler, and they have been working together on Pleading Causes of Action ever since. Pleading Causes of Action in Maryland stands as the essential guide for Maryland litigators, providing not only concise individual treatment of causes of actions and sample pleadings but also discussions on recent developments in the law.
The MSBA recently published the Seventh Edition of Pleading Causes of Action in Maryland With an eye toward the future, Sandler and Archibald brought in a younger attorney for the Seventh Edition. When they set out to find their
new co-author, they were looking for someone with talent, ability, and interest. A colleague referred them to Eleanor T. Chung, who previously clerked for Judge Andrea Leahy of the Appellate Court of Maryland.
The authors spoke with MSBA about the process of updating the book and adding a new author. One of the notable updates in the Seventh Edition is that the names in the model complaints were updated to reflect the great diversity of the Maryland Bar, per Chung’s suggestion. Archibald explained that their eyes were not open to the fact that the names they previously used did not represent all members of the Bar. He thinks the update is a great improvement and that they can continue to make changes along those lines going forward. He also hopes to improve the process for the next edition by keeping up with opinions as they are handed down.
The chapters in the Seventh Edition include sample pleadings followed by authoritative commentary on the elements of the claim and the issues to be considered, as well as an analysis of the strengths and weaknesses of a case, making this a comprehensive and easy-touse reference manual. The book also provides more comprehensive information than prior editions, including an analysis of the nearly 200 pertinent court decisions issued since the Sixth Edition by the Maryland Appellate Courts and the U.S. District Court for the District of Maryland, as well as discussions from prior editions. In total, it cites over 2,600 cases, 380 sections of the Maryland Code Annotated, and 200 provisions of the Maryland Rules.
Additionally, the Seventh Edition includes two new chapters: Complaints to Enforce Arbitration and Interpleader and two new causes of action: breach of fiduciary duty and intentional interference with an inheritance or gift.
You can purchase the Seventh Edition of Pleading Causes of Action in Maryland at msba.org. It is also available as part of the Litigators Library Bundle, which includes Maryland Discovery Problems and Solutions, Maryland Civil Pattern Jury Instructions, and the Maryland Rules of Evidence Pocket Guide.
“ I grew up in the MSBA. It is from the MSBA that I developed my love of professionalism and an appreciation of ethical guidelines and the role that lawyers serve amongst themselves, in Court, and in the community.
Paul Mark Sandler
Of
Counsel
Shapiro Sher Guinot & Sandler, P.A.
What made you decide to become a lawyer?
When I was in high school, I read Stephen Vincent Benét’s The Devil and Daniel Webster, which inspired me to become a trial lawyer. As I matured, my reasons for wanting to be a lawyer changed as well: I wanted to help people, in court, as a trial and appellate lawyer. I also felt that it was important as a lawyer to become involved in community activities.
What community activities are you involved in?
I have made it a policy over the years to try to help different entities by serving on their boards. For example, I am currently on the board of Stevenson University, and in the past, I have served on boards for St. Joseph Medical Center, Legal Aid Bureau, and Maryland Public Television. I have always enjoyed community service and feel it is important to give back.
What is the best piece of advice you received from someone in the legal profession?
When I had my first position as an associate, I was told: Welcome to the legal profession, with an emphasis on profession; if you want to make tons of money, go across the street and work in real estate. It is important that attorneys keep in mind the law is still a profession and act professionally.
What professional accomplishment would you say you are most proud of?
Generally speaking, the greatest reward I received as a trial lawyer was when a verdict or judgment was rendered in my client’s favor, and I personally and professionally believed in the correctness of the side I was representing. That’s particularly true in criminal cases. I was always delighted to prevail when I personally believed my client was not guilty. Similarly, in civil cases, when the verdict was favorable, and I believed my client was right.
Some of these cases are intense and lifealtering to the clients, and if I believed a client was innocent or correct, obtaining a favorable outcome was really gratifying.
What do you enjoy most about your practice?
Being in Court was the most rewarding experience I have had as a lawyer. Now in my senior years I enjoy teaching trial and appellate practice in programs I develop, writing books and articles for young lawyers, hoping to inspire them to embrace a career as a trial or appellate lawyer, and continuing to communicate with them during their careers. I also enjoy working with the lawyers and staff in Shapiro Sher Guinot & Sandler, who support my teaching and writing endeavors.
What two words would you use to describe your career?
Amazing and gratifying. It is amazing and gratifying because of the people I’ve met, the professional and personal relationships I’ve established, the ability to be in trial or in an appellate argument, and the help I have given to the development of the rule of law. I hope that I have, at least in some small way, contributed to improving the professional life of lawyers and the judiciary.
What does a typical day at work look like for you?
These days I spend at least 60% of my time teaching in person or virtually bootcamp trial and appellate training programs that I develop. I continue to write and update books I’ve authored and co-authored, e.g., Pleading Causes of Action, Appellate Practice for the Maryland Lawyer, Pattern Examination of Witnesses, published by the MSBA. I am also involved in consulting on cases in the firm and interacting with the lawyers in the office, including the young lawyers. I still work about 10 hours a day, including weekends, and am enjoying it. I was always told that if you love what you do, you’ll never work a day in your life, and that’s how I feel about my legal work.
What do you like to do when you are not working?
I have many interests and hobbies. I love reading, am an
amateur astronomer, and play the blues harmonica. I also enjoy riding my horse on my farm and cross-country skiing in the winter.
What are some of the challenges you face in your current role?
We are always challenged when as lawyers, we feel that a client has been prejudiced and there’s a need to correct the wrong, and often others don’t see it your way. I feel that’s always a challenge. I also think it’s important to appreciate that while law practice today is a business, it is also a profession.
Can you think of a way the MSBA has helped you in your career?
I grew up in the MSBA. I met colleagues and learned to work with them, socialized, served on the Board of Governors, created the Litigation Section, and served as its first chair. I feel that the leaders of the MSBA are very admirable because of the work they do to improve the legal system and establish a good rapport with the judiciary. It is from the MSBA that I developed my love of professionalism and an appreciation of ethical guidelines and the role that lawyers serve amongst themselves, in Court, and in the community.
Jim Archibald
Of Counsel
Wright, Constable & Skeen
What is your fondest memory of your legal career so far?
The “thank you” notes and letters I’ve received from various clients over the years. They have meant a great deal to me.
What are some accomplishments you’ve achieved during your career?
I’ve been very fortunate to have had a career in civil trial work that enabled me successfully to handle (for the most part) the defense of quite a few large, complex, high-stakes trials and cases around the country for many years. The challenges were substantial and the issues were very interesting. Working with, and getting to know, many fascinating folks in connection with those trials was not an accomplishment – rather, it was a reward.
What professional accomplishment are you most proud of?
Being invited to be a Fellow in the American College of Trial Lawyers and to be a Member of the American Law Institute.
If it’s worth doing, it’s worth doing well. “
Tell us a little bit about your current role.
I have two current roles. One is as Of Counsel at the Wright, Constable & Skeen firm. The other is as Chief Litigation Counsel and Vice President of Administration & Regulatory Affairs at a privately held Baltimore-based diversified manufacturing company (Wm. T. Burnett & Co.) with plants in Maryland, North Carolina and Arizona, and its sporting goods equipment subsidiary, STX. Both roles are great fun and I’m very fortunate to be able to do both. The folks at Wright, Constable & Skeen are wonderful to work with. My role there enables me to keep a foot in the private practice world handling business and intellectual property litigation. The Burnett/STX role enables me to participate at a high level in the management of a significant business enterprise and to handle the varied litigation and business disputes that arise in the operation of any substantial business.
What do you enjoy most about your career?
Being a trial lawyer. We don’t “have” to do this. We “get” to do it.
Tell us a little about your biggest project or passion project related to your professional career right now. Working with Paul Mark Sandler and, for the new Seventh Edition, with Eleanor Chung as well, on Pleading Causes of Action in Maryland. Paul (who conceived the notion for the book back in the late 1980s) and I sometimes laugh that if we had known then what we know now we never would have undertaken such a substantial project. Corny as it may sound, being able to give back to our profession through the vehicle of the book is what makes it important to me—both now and for the more than 30 years we have worked on it. The goal, then and now, has been to create a resource that might be helpful to all Maryland practitioners and judges.
Describe a memorable MSBA event or product that has had an impact on you personally or professionally.
Participating for many years in the “Are You Smarter Than A Law Clerk” educational programs at the MSBA Annual Meeting. The interactions with the other panelists and the audiences in those programs, created and moderated by Judge Lynne Bataglia, have been great fun and very meaningful both personally and professionally.
How do you spend your free time?
Reading non-fiction, serving on various boards, running and outrigger canoe paddling, maintaining property on a couple of remote islands.
What’s an interesting fact about you that no one would guess?
I kept a large flock of chickens for many years.
What are you passionate about? Almost everything to which I devote significant time. As the saying goes: “If it’s worth doing, it’s worth doing well.”
Eleanor T. Chung
Associate
Epstein Becker & Green, P.C
Eleanor Chung is an Associate Attorney at Epstein Becker & Green, P.C. Ms. Chung’s primary focus areas are litigation, appellate law, and health care and life sciences law. Ms. Chung mainly practices in Washington, D.C., and Baltimore, Maryland. She has been a licensed attorney for five years and has been a member of the MSBA since she was a law student.
What is the best advice you have received from someone in the legal profession?
Example is stronger than advice, and there are so many whom I admire in the Maryland bar for their excellent character and admirable careers. Jim and Paul, my coauthors of Pleading Causes of Action in Maryland, never stop learning and following their curiosity. Paul observes the night sky from a university-grade telescope in his yard, and Jim is learning Hawaiian outrigger canoeing. They teach me that there is room in the busy life of an attorney for learning for pleasure.
The Hon. Andrea Leahy, for whom I clerked, folds her clerks and interns into the legalcommunity and always has time for advice. Her generosity teaches me to lift others up however I can. In fact, here is a tangible piece of advice she gave me, which has served me well: when you are starting out, and it’s a bit hard to get oral arguments, ask to argue the rebuttal.
Tell us a little about your biggest project or passion project related to your professional career right now. My biggest passion project is the Seventh Edition of Pleading Causes of Action in Maryland. In addition to adding the last four years’ worth of case law affecting pleadings, Paul Sandler, Jim Archibald, and I updated the book to reflect the
I admire many lawyers in the Maryland Bar for their excellent character and admirable careers. “
modern Maryland bar; the attorneys in the example pleadings are diverse: women, and people from different national, ethnic, and religious backgrounds. I hope that readers see themselves in the attorneys in the sample pleadings. Longtime readers may rest assured that important attributes of the sample pleadings have not changed. The “main characters,” plaintiff John Smith and defendant George Harris, remain, allowing readers to quickly eyeball a model complaint and distinguish the parties.
I feel a bit in awe, and am greatly honored, to have contributed to a book that is so useful. There really is nothing like it. No other treatise offers such up-to-date case law, with accurate explanation as to how the law got to be the way it is.
How do you spend your free time?
I spend my time exploring our great state, “America in miniature.” This weekend, we visited historic Fort Frederick—built during the time when Maryland was the frontier. We are very lucky to live here, where there is so much variety outdoors, and so much of historical interest.
Describe a memorable MSBA product that impacted you personally or professionally. Forgive me, but there are a couple of ABA titles mixed in here. The books are too good not to mention.
When I was a law clerk, to prepare for the practice of law, I attended Neil Dilloff’s Civil Pre-Trial Practice CLE. It’s What to Expect When You’re Expecting for lawyers. My first couple of years of practice—and even now—there are moments of “well, what happens now?” That CLE, and the book by the same name, has the answers.
I also can’t praise enough Paul Sandler’s new book, The Fine Art of Trial Advocacy: A Young Lawyer’s Resource for Success.
A very inspiring section discusses some of the giants on whose shoulders we’re standing, from early Roman attorneys, to 19th century Maryland attorneys, to modern attorneys. The book also has a very amusing “bloopers” section, where Paul talks about some of the gaffs he’s made, and how he corrected them. I love a good war story, but learning how a respected attorney corrected course is priceless.
I often turn to Discovery Problems and Their Solutions, by Hon. Paul W. Grimm, Charles S. Fax, and Paul Sandler, and Finality of Judgments and Other Appellate
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
A TEAM PLAYER
CECELIA CHASE
Law Clerk for Hon. Shannon E. Avery
CECELIA (CECE) CHASE grew up admiring her grandfather, an attorney, and his dedication and commitment to his law practice. She was inspired to become a lawyer herself, so that she, too, could have a meaningful impact on people’s lives. Chase graduated from UBLaw in 2022 and is working as a law clerk for the Honorable Shannon E. Avery in the Circuit Court for Baltimore City. During her third year of law school, Chase worked as a research assistant for the MSBA, helping to update the Seventh Edition of Pleading Causes of Action in Maryland. She recently passed the 2022 Uniform Bar Examination.
What is your fondest memory of your (new) legal career so far? Obtaining my law degree and having the bar exam past me!
What professional accomplishment are you most proud of?
In law school, I am most proud of being selected as a Staff Editor on Law Forum and securing a clerkship in the fall of my 3L year.
What makes you unique in your profession?
I am someone who can get along and work with all different kinds of personality types and I am a team player.
What is one thing you would change about your current role if you could?
The compensation! But I know clerking isn’t about the money and more about the experience and all that I can learn. I couldn’t be more grateful for the opportunity that I have been given.
How do you spend your free time?
I spend my free time working out, cooking, and relaxing with my fiancee and our English Bulldog, Buster.
How do you give back to the community?
I am a volunteer for the Homeless Persons Representation Project and provide assistance during expungement clinics.
“We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law.”
EDWARD R. MURROW
BY PAMELA LANGHAM, ESQ.
The court discussed the inequity of Bar Counsel having full use of civil discovery tools and the respondent attorney not having access to discovery.
After full discussion, the Supreme Court of Maryland unanimously voted to refer Rule 19-726 to the Rules Committee to propose revisions.
A RECENT DISCOVERY dispute in an ethics hearing prompted a rule change to Maryland Attorneys’ Rules of Professional Conduct (MPRC) Rule 19-726, governing discovery in attorney grievance proceedings. The dispute arose after Bar Counsel took the position that the Rule did not require Bar Counsel to respond to written discovery propounded by the responding attorney.
Prior to October 1, 2021, the Rule simply provided that discovery in attorney grievance proceedings was “governed by the Rules in Title 2, Chapter 400 (i.e., the Rules applicable to general civil proceedings], subject to any scheduling order entered pursuant to Rule 19722 [Order Designating Judge and Clerk].” Rule 19-726 (2016).
In June 2021, Bar Counsel proposed revisions to Rule 19-726, and the Standing Committee on Rules of Practice and Procedure (Rules Committee) recommended the Supreme Court of Maryland adopt the changes, which included: (1) deleting the simple and straightforward language in the preamble that discovery in attorney grievance proceedings are “governed by Title 2, Chapter 400”; (2) adding language requiring Bar Counsel to provide the responding attorney with all material, information, and statements accumulated during the investigation—essentially the complete
record of Bar Counsel; and, disclose all evidence Bar Counsel is aware that could negate any allegation in the petition or mitigate any sanction (exculpatory information); (3) requiring Bar Counsel to disclose the names and addresses of all persons Bar Counsel intends to call at the hearing and requiring the responding attorney to do the same with certain time limitations; and (4) specifically allowing Bar Counsel to use all the traditional discovery tools in Title 2, Chapter 400 in new Section (d). However, the proposed new Rule was silent on whether an
attorney was allowed the full panoply of traditional discovery tools, i.e. interrogatories, depositions, and other discovery techniques.
Section (e) was added specifically providing that “The Attorney Grievance Commission may not be subject to an organizational designee deposition” in an attorney disciplinary matter (no corporate representative depositions of the Commission).
The elimination of the simple language of “Title 2, Chapter 400 governing all discovery in attorney grievance proceedings” and all the above new proposed additions to Rule 19-726 were adopted by the Supreme Court of Maryland upon recommendation of the Rules Committee on July 8, 2021, effective October 1, 2021.
Attorney Grievance Comm’n v. Pierre
After the new Rule was adopted, in Attorney Grievance Comm’n v. , Case No. COA-AG-0042-2021, Bar Counsel took the position that the revised rule, “does not permit respondent attorneys to propound written discovery.”
Bar Counsel successfully persuaded the hearing judge to excuse Bar Counsel from answering discovery requests from the respondent attorney and convincing the court that the Commission’s exemption from depositions shielded her as well.
Attorney Irwin Kramer, counsel for Pierre, petitioned the Supreme Court of Marylands for a stay in the attorney grievance proceeding until he could get his client’s rights to discovery reinstated.
Supreme
Court of Maryland
The Supreme Court of Maryland stayed the circuit court proceedings and held an expedited meeting on March 30, 2022 to discuss Rule 19-726, only six months after the amended rule went into effect. The Supreme Court discussed the fact that as a result of the recent amendments to Rule 19-726, respondents in disciplinary proceedings no longer have access to the use of civil discovery provisions under at least one interpretation of the revisions to Rule 19-726. The court discussed the inequity of Bar Counsel having full use of civil discovery tools and the respondent attorney not having access to discovery.
After full discussion, the Supreme Court unanimously voted to refer Rule 19-726 to the Rules Committee to propose revisions to clarify that:
respondents in disciplinary proceedings are allowed to use civil discovery provisions under Title 2, Chapter 400; and the current section of the Rule prohibiting the deposition of the corporate designee of the Attorney Grievance Commission should make it clear that Bar Counsel, members of Bar Counsel’s office, and members of the Attorney Grievance Commission may be deposed as fact witnesses in disciplinary proceedings in accordance with the Rules that govern depositions.
Normally, when amendments to a Rule are proposed by the Rules Committee, there is a 30-day comment period before the Supreme Court of Maryland considers the amendments for adoption. Anticipating proposed changes by the Rules Committee consonant with the court’s referral, the Court unanimously voted to shorten the comment period to seven days once they receive the Rules Committee’s notice of a proposed Rule change. The Supreme Court's justification for the shortened comment period was the broad use of Rule 19-726 in
disciplinary proceedings and the expediency of matters that are pending before the Attorney Grievance Commission.
Rules Committee
The Rules Committee submitted its 210th Report to the Supreme Court on April 28, 2022, recommending amendments on an expedited basis to the then current Rule 19-726 and 2-412.
The Rules Committee recommended the 2021 changes to the Rule “in place of the full panoply of interrogatories, depositions, and other discovery techniques, to require Bar Counsel” to produce their complete record along with any exculpatory information.
The Rules Committee proposed changes to the Rule, in accordance with the Supreme Court’s wishes, and reverted back to the pre-2021 Rule language providing that discovery in attorney grievance proceedings are governed by the relevant Rules in Title 2, Chapter 400 with exceptions pertaining to the Judicial Disabilities Commission. The language expressly requiring Bar Counsel to disclose their complete file along with exculpatory information remained. Section (f) of the Rule prohibiting the corporate representative deposition of the Attorney Grievance Commission remained in the final proposal. However, the Rules Committee proposed a note regarding section (f) as follows: Section (f) of this Rule does not preclude the deposition of other person including individual members of the Commission or of the Office of Counsel, in accordance with the Rules in Title 2, Chapter 400, subject to the substantive law applicable to taking a deposition of the person.
The note was added to clarify that depositions of individuals in the Office of Bar Counsel, individual members of the Attorney Grievance Commission, and other persons may be taken in accordance with the Rules in Title 2, Chapter 400, subject to the substantive law applicable to taking a deposition of the person.
The Supreme Court met on May 11, 2022 and adopted all of the Rules Committee’s proposals in its Two Hundred and Tenth Report, effective May 11, 2022.
Summary
The Supreme Court of Maryland “may have set a state speed record for reversing a provision that it enacted only seven months before,” according to Kramer. Bar Counsel’s position in Pierre that “effective October 1, 2021, Maryland Rule 19-726 was revised” so that “Respondent attorneys are no longer permitted to propound interrogatories and requests for production on the Commission,” quickly manifested the due process deficiencies of the new Rule. The Supreme Court quickly recognized the issue and took immediate action to correct it: not only through a stay of the proceedings in Pierre, but expeditiously scheduling a meeting to discuss recommendations for the Rules Committee to consider proposed Rule changes to remedy the concern. The final Rule still prohibits the corporate representative deposition of the Attorney Grievance Commission, but re-incorporated respondent attorney’s rights to all the other traditional discovery tools. The wheels of justice are turning, in record time in this case. This series of events gives new meaning to the old adage, “if it’s not broken, don’t fix it!!
Attorney Irwin Kramer Photo courtesy of Travis Marshall Photography.
ETHICS: Protect Your Contact List from Prying Eyes
Introduction to an Ethical Problem Most Attorneys Don’t Know About
In April of 2022, a headline caught our attention. It referenced a new legal ethics opinion issued by the New York State Bar Association’s Committee on Professional Ethics. Opinion 1240 has this digest statement: “If ‘contacts’ on a lawyer’s smartphone include any client whose identity or other information is confidential under Rule 1.6, then the lawyer may not consent to share contacts with a smartphone app unless the lawyer concludes that no human being will view that confidential information, and that the information will not be sold or transferred to additional third parties, without the client’s consent.”
So . . . what client information do you have in your Contacts – and how many apps have you granted the power to access your Contacts? If you are clueless about whether you have granted this access to various apps, you are part of a very large club.
What Do You Actually Store in Your Contacts?
All lawyers likely have the client’s name, office and cell number, email and physical address and job title. But many keep other information in the Notes field of Outlook, including such things as nicknames, anniversaries, birthdays, spouse’s name, names of children, pet names. etc. If you click on “Details” in the ribbon, you have a specific form for entering certain details, but most lawyers, in our experience, simply dump the information into the Notes field when they create a new contact.
Because we do digital forensics, we can tell you that there is often a lot of information in the Notes field, including passwords, social security numbers, building access codes and a lot of other private information which the attorney wants readily at hand.
Many lawyers have no clue that apps can potentially see all that information if you grant them access. A quick search on Google shows that Venmo, Facebook, Zoom, Snap, Slack, Tinder, Signal, Pinterest, Telegram, Chase Bank, Wayfair and even Samsung’s smart washer will ask you for access to your Contacts. The list of apps seeking access to your Contacts is undoubtedly huge.
Sometimes, apps will restrict access. In iOS, third-party apps with permission can access any contact field, except for the Notes section, which requires additional approval from Apple. The company added that restriction in 2019, but it declines to say how many or which apps are cleared to access Notes.
Some will access just the basics – name, phone numbers and email address. Others will take anything they can get. Disabling the app’s privileges doesn’t necessarily result in the app deleting information it already has. An app may – or may notgive you instructions on how to delete previously obtained information.
Apps Have a History of Misconduct
It has often been said that data is “black gold.” So, if companies can get your data, they will. They will use it to advertise themselves, to sell their products, and for countless other purposes. They can also sell your data to others.
Several companies over the years have settled with the FTC over how they collected or used data without user consent.
All the way back in 2013, documents provided by Edward Snowden proved that the National Security Agency was collecting millions of contact lists, often from email and instant messaging accounts, to find hidden connections and relationships between targets.
Perhaps more significantly to lawyers, contacts have been leaked in data breaches. Once those Contacts are out there, there is no way to call them back. They almost certainly will be misused. Wire fraud and business email compromises are frequently the objectives.
Back to Ethics . .
.
Like New York, most states have a rule that similar to this one: Rule 1.6(c) of the New York Rules of Professional Conduct (the “Rules”) requires a lawyer to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure or use of, or unauthorized access to” the confidential information of current, former and prospective clients. Rule 1.6(a), in turn, provides that confidential information “consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential.”
The opinion points out that the client is more likely to find that disclosure of the fact of a current or prior representation by a lawyer is embarrassing or detrimental where the representation involves or involved criminal law, bankruptcy, debt collection or family law. It strikes us that many high level executives, politicians, celebrities, etc. would consider their contact information highly confidential and would not be happy to have it (however inadvertently) disclosed by their lawyers.
Final Words
As we previously noted, our digital forensics work has exposed us to many contact lists of clients, including those of attorneys. Contacts are frequently used, especially in the Notes section, to record in brief very sensitive personal data that attorneys want to be able to reference quickly. But besides being alluring to advertisers and the like, such information, in the hands of cybercriminals, can be used to compromise clients in a host of ways. We applaud the New York opinion which shines a bright light on the sensitivity of Contact data and the duty of lawyers to protect all data which may be confidential.
Our advice? Whenever an app wants you to consent to sharing Contact data, JUST SAY NO!
Sharon D. Nelson is a practicing attorney and the president of Sensei Enterprises, Inc. She is a past president of the Virginia State Bar, the Fairfax Bar Association, and the Fairfax Law Foundation. She is a co-author of 18 books published by the ABA. snelson@senseient.com
John W. Simek is vice president of Sensei Enterprises, Inc. He is a Certified Information Systems Security Professional, Certified Ethical Hacker, and a nationally known expert in the area of digital forensics. He and Sharon provide legal technology, cybersecurity, and digital forensics services from their Fairfax, Virginia firm. jsimek@senseient.com.
Michael C. Maschke is the CEO/Director of Cybersecurity of Sensei Enterprises, Inc. He is an EnCase Certified Examiner, a Certified Computer Examiner (CCE #744), a Certified Ethical Hacker, and an AccessData Certified Examiner. He is also a Certified Information Systems Security Professional. mmaschke@senseient.com
Michael Shaw Baltimore, MD
Greg Hall Annapolis, MD
Kelly Moore Hampstead, MD
Nancy Derth Easton, MD
ETHICS DOCKET NO. 2021-05
JOINT REPRESENTATION/ CONFLICT OF INTEREST
YOU REQUESTED A FORMAL OPINION from the Maryland State Bar Association Committee on Ethics concerning whether a Maryland licensed attorney associated with your law firm may jointly represent the law firm, an employee of the law firm, and a client of the law firm as co-defendants in a lawsuit. You asked that we accept as true the following factual assumptions: Your Maryland firm is engaged in regular practice of the law in the areas of mortgage banking industry, including administration and enforcement of secured real estate transactions for mortgage lenders, banks, mortgage servicers, and financial institutions. The practice includes foreclosure of deeds of trust securing the financial institution and litigation related thereto. Moreover, employees of your firm act as trustee on deeds of trust for mortgage lender clients of your firm. As a result, circumstances may arise in which a borrower institutes a legal action concerning the secured loan or property and names your firm, or a member of your firm, as a co-defendant along with your firm’s mortgage finance client.
One may discern the answer to your inquiry from the text of the Maryland Attorneys’ Rules of Professional Conduct Rule 19-301.7. Generally, when a conflict of interest situation exists a lawyer may not represent the client. Md. Rule 19-301.7. A conflict of interest exists if:
1. the representation of one client will be directly adverse to another client; or
2. there is a significant risk that the representation of one or more clients will be materially limited by the attorney’s responsibilities to another client, a former client or a third person or by a personal interest of the attorney. Md. Rule 19-301.7(a).
Accordingly, joint representation is allowed if undertaking the representation of one client will not be directly adverse to another client and no significant risk exists that the attorney’s representation will be materially limited by his or her responsibilities to another client, former client or third person, or the lawyer’s own personal interests.
From the facts you provided, a likely unity of interest exists between your firm, its employees, and the firm’s mortgage finance
clients, thus permitting a joint representation. Nevertheless, one can foresee the possibility that such unity could be undermined, for example, by a simple allegation that your firm provided negligent legal advice upon which a trustee (or member of your firm) acted to the detriment of the client or borrower. The significance of such a risk, and other potential conflicts of interest, is a matter this Committee cannot assess for you.
The attorney contemplating the joint representation must perform an evaluation of all the facts and circumstances to determine whether the criteria of sections (1) and (2) are met. If so, and provided the clients are not asserting claims against one another in the same litigation or proceeding, then joint representation is permitted if each client gives a written informed consent to the joint representation. We observe, though, that in preparing the
Joint representation is allowed if undertaking the representation of one client will not be directly adverse to another client and no significant risk exists that the attorney’s representation will be materially limited by his or her responsibilities to another client, former client or third person, or the lawyer’s own personal interests.
Even if disallowed under section (a) of Rule 19-301.7, joint representation may occur under section (b), which reads:
Notwithstanding the existence of a conflict of interest under section (a) of this Rule, an attorney may represent a client if:
1. the attorney reasonably believes that the attorney will be able to provide competent and diligent representation to each affected client;
2. the representation is not prohibited by law;
3. the representation does not involve the assertion of a claim by one client against another client represented by the attorney in the same litigation or other proceeding before a tribunal; and
4. each affected client gives informed consent, confirmed in writing. Md. Rule 19-301.7(b).
written informed consent consideration be given to alerting the clients to the possibility that circumstances may arise in the future that would require the firm and its lawyer to withdraw from the representation due to a conflict of interest despite their willingness to consent to the joint representation.
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.
Bob Bershad SENIOR SECTIONS MANAGER—CONTENT & PROGRAMMING
Tell us a little about yourself.
I’m excited to work at the Maryland State Bar Association. It’s on a great trajectory to answer an ever expanding range of member expectations. As a creative person wrapped inside a Juris Doctor degree, I find it a professionally rewarding experience.
Tell us a little about your career as a lawyer. Any highlights? I worked in criminal and civil litigation. Highlights usually involved the drama of the courtroom.
What did you do before you joined the MSBA?
I have worked in a variety of communications and marketing roles since leaving legal practice. While everything I’ve accomplished so far informs my current role, the most relevant position I held was Communications Director for Pennsylvania’s trial lawyer association.
Tell us about your role at the MSBA. What's your favorite part of that role?
Developing practical, relevant, and timely legal content in multiple formats for distribution on MSBA’s many channels is work I enjoy. It calls on me to be a writer, ghostwriter, copyeditor, or producer as I elevate the expertise of individual MSBA members, all for the benefit of other and prospective members.
As a creative person wrapped inside a Juris Doctor degree, I find my role at MSBA a professionally rewarding experience.
What is an interesting fact about you we wouldn’t find on your resume?
I’m difficult to beat at Backgammon and Pool.
What do you do to de-stress or unwind?
Boot camp classes, swimming, weight lifting, and hiking are some of the activities that help me de-stress or unwind.
What advice would you give to others considering pursuing law as a career or to young lawyers?
Find a mentor if you can. A great way to find a mentor is through a Bar Association.
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Lawy rs, Maryland, 2014-2022
Chair, Montgom ry
County Criminal Law
S ction
Succ ssfully handl d 50+ jury trials
Annually conducts mock cross- xamination for polic acad my
Washingtonian B st
Lawy rs, 2015-2022
Harvard Law School
Has l ctur d around th country on asylum law to immigration lawy rs
Washingtonian B st
Lawy rs, 2017-2022
Maryland F d ral
Public D f nd r's oncall xp rt consultant
S v ral pr c d nts tting Fourth Circuit d cisions
Barr d in VA, DC, & MD
S v ral pr c d nt-
s tting BIA and Fourth Circuit
d cisions
Form r Chair, MSBA's Immigration Law
S ction
Continuing the Mission
Looking forward to reaching and serving all of Maryland's legal professionals
As you have no doubt heard, Victor Velazquez has departed the MSBA for a leadership position with UNFI, the largest publicly traded wholesale distributor of health and specialty food in the United States and Canada. It was my pleasure to work with Vic over the past four plus years. Vic was the right leader at the right time with the MSBA, and without his vision and leadership, the MSBA would not have been prepared for the COVID-19 pandemic. Although his time with the MSBA was short, he made a lasting impact on the MSBA, and through his leadership the MSBA is now a more modern and capable association.
It is also my pleasure to share that I accepted President David Shapiro’s offer to serve as the next Executive Director of the MSBA. My goal is to ensure that the MSBA continues on its positive trajectory to serve you, the MSBA member, and to continue to be the home of the legal profession. Below are just a few things that we are working on here at the MSBA:
VIRTUAL-FIRST Thank you to members who have embraced the virtual-first mindset for meetings, which is fast-becoming the norm for associations everywhere. By conducting virtual-only or hybrid MSBA meetings, you are giving members at the other end of the compass a chance to participate like never before. Our hope is that virtual-first will expand inclusion, increase the sharing of knowledge, and grow your referral networks.
MSBA CONNECTIONS EVENTS Although the MSBA embraces the virtual-first meeting mindset, we are continuing key in-person events throughout the year, including MSBA Connections events across the state.
We look forward to traveling to all points of the Maryland compass to enjoy mingling and networking with you and your colleagues. We kicked off the Bar year with Connections events in Allegany County and St. Mary’s County. In 2023 we will welcome members in Anne Arundel (Jan. ‘23), Frederick (March ‘23), Washington (April ‘23), Montgomery (May ‘23), and Prince George’s (May ‘23). Details for each event will be available on MSBA’s website, weekly e-newsletter, and social media. Bring a friend!
IN-PERSON EVENTS Please be assured that we are continuing in-person programming, including the Professional Excursion to Puerto Rico (Feb.’23) and the Legal Summit in Ocean City (June ‘23). In addition, many of our Sections and Committees are holding both in-person and virtual events to bring the profession together.
MSBA CONTINUING LEGAL EDUCATION Annually, the MSBA now delivers 80+ live programs (digital or in-person) and 130+ new on-demand programs. Remember, all 90-minute on-demand CLEs are included as part of your membership. We add 100+ of these CLEs to the Events & Products Catalog every year. Visit msba.org/events-and-products-catalog.
We are immensely grateful to the members who generously give their valuable time and share their expertise to make the CLE programming possible. We extend the very same thanks to members who are responsible for the fantastic teaching and learning opportunities afforded by MSBA Section Programming.
MSBA SECTION PROGRAMMING. Under the leadership of hardworking Section councils, talented Section members give their valuable time and share their expertise at Section lunch-andlearns, study groups, discussion groups, and mentorship meetings. They are also sharing their knowledge through the MSBA Blog and on all MSBA content channels, including social media, the MSBA Resource & Learning Library, the MSBA Weekly, and the Maryland Bar Journal. The latest and best information on every conceivable legal topic is available to you in the 25 MSBA Sections. Remember, one Section membership is included as part of your MSBA membership. If you haven’t selected a Section yet, please email membership@msba.org.
Anna Sholl, Executive Director
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520 West Fayette Street Baltimore, Maryland 21201
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
