144 Fresh Perspectives: NFL Coach Sues League for Discrimination
150 Staff Profile: Colleen Aracri, Esq.
152 Executive Director's message: Reflecting on the MSBA
INSIDE ANNAPOLIS
8 Event Recap: MSBA Day
24 Candidates for Governor Share Their Visions with MSBA
46 The MSBA As Advocate: Association Files Two Amicus Curiae Briefs to Protect Core Tenets of Attorney-Client Relationship
48 Protecting The Profession: Amicus Brief Authors on Why They Became Involved
61 The U Nonimmigrant Visa: Analyzing Eligibility Factors in 2022
ETHICS
145 MSBA Ethics Docket: Accepting Cryptocurrency in Payment of Fees
Stephanie Perry
Judge Michael Mason
Kambon Williams
Jaymi Sterling
Rachel Ullman
Jetta Alberts
73 Morenike Oyenusi 80 Divya Potdar
108 Jamaal Stafford 111 Hughie Hunt
Publication Date: April 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: Victor L. Velazquez
Editor: Anna S. Sholl
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Subscriptions: MSBA members receive THE MARYLAND BAR JOURNAL as $20 of their dues payment goes to publication. Others, $42 per year.
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The Maryland Bar Journal welcomes articles on topics of interest to Maryland attorneys. Proposed articles can be submitted through the MSBA website at msba.org/content-portal
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Editorial Advisory Board
Natasha Nazareth, Esq., Chair
MSBA Officers (2021-2022)
President: M. Natalie McSherry
President Elect: Vacancy
President-Elect: David P. Shapiro
Treasurer: Jason DeLoach
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 (2021-22 BAR YEAR) IN-HOUSE EDITORIAL COMMITTEE
Anna Sholl
Eric Steiner
Julie Hopkins Lynette Kleiza Sarah Sawyer
Reena Shah
Andrea Terry
Tracy Steedman
David Sidhu
Corinne M. Pouliquen
Bill Hall
Andrea Solan
Colleen Aracri
Natasha Nazareth, Chair
Hillary Evans
Richard L. Adams, III Robert D. Anbinder
LEGAL CAPITAL, 4th Edition
Bayless Manning, Late Former Dean, Stanford Law School
James J. Hanks, Jr., Partner, Venable LLP
This renowned book is the classic exposition of the origin, history and practical unworkability of par value, stated capital and other components of legal capital in the critical owners’ equity corner of the balance sheet. Legal Capital is widely credited with pioneering the introduction of the balance sheet and equity solvency tests for distributions to shareholders, as well as other reforms in the Model Business Corporation Act and corporation statutes in more than 30 states. The Fourth Edition adds new historical material, updates the statutes and caselaw on dividends and other distributions in the U.S. and compares the evolution of legal capital in countries around the world.
“Legal Capital turns on a basic tension around the corporate form – how the concept of limited liability can place creditors’ and shareholders’ interests at odds, and how that tension is resolved through statute, case law, and private contracting. It is a must-read for corporate law students, academics, and practitioners, and a must-have for law firm and university libraries.”
–Charles K. Whitehead, Myron C. Taylor Alumni Professor of Business Law, Cornell Law School
To purchase, go to westacademic.com or contact your West Academic Account Manager at inquiries@westacademic.com or call 800-782-1272.
CAREER HIGHLIGHTS
92 Past President: Judge Pamila J. Brown
95 Off the Beaten Path: Wendy Meadows
98 Career Transitions: Shuaa Tajammul
FOR YOUR PRACTICE
13 How to Write an In-House Counsel Cover Letter That Actually Gets Read
17 Artificial Intelligence: A Not-So-Hostile Takeover
56 A Conversation With the Honorable Joseph M. Getty of the Court of Appeals of Maryland
67 The Justice Reinvestment Act, Expungement, and Community Empowerment
75 Court of Appeals Says Both Legal Parents Must Consent to Establish De Facto Parenthood
106 Smartphone Phishing Attacks Escalate, Bedeviling Law Firms
MSBA NEWS
78 Mobile Library Law Center Uses Bar Foundation Funds to Take Lawyers Where They're Needed
83 From Complete Despair to a Great Life in Recovery
85 Access to Justice Commission’s Top Advocacy Priority for 2022: Funding the Access to Counsel in Evictions Law
87 Forging the Blueprint to Realize the Transformative Access to Counsel in Evictions Law
125 Years of Progress
During our 125th year, the MSBA has developed and delivered on a series of new initiatives. Earlier this year, the MSBA launched its first podcast, Insightful Voices. More recently, the MSBA launched the OnAir Legal Lab, a network of podcasts featuring the MSBA’s Insightful Voices podcast as well as a collection of other legal based podcasts from in and around Maryland. This initiative is just one of many new content resources for legal professionals.
We also launched our Spark Series, featuring thought leaders on significant issues. We kicked off the series on January 13, 2022, with a presentation by Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc. (LDF), the nation’s leading civil rights law organization founded more than 80 years ago by future Supreme Court Justice Thurgood Marshall. Ifill, an internationally recognized expert on matters related to each of the themes to be highlighted in the Initiative, spoke about lawyers’ ethical obligation to serve as guardians of justice. We followed up with our next speaker in the Series, Associate Attorney General Vanita Gupta, whose comments were focused on Access to Justice.
We hope you join us for MSBA’s epic return to in-person events!
Additionally, the MSBA announced a new venue for its signature annual event, the MSBA Legal Summit. The 2022 Legal Summit will be held May 31, 2022 through June 3, 2022 at the Roland E. Powell Convention Center in Ocean City, Maryland. Along with thought leadership from high-profile speakers and over 100 substantive law programs, the Legal Summit will serve as the venue for MSBA’s first-ever Gubernatorial Debates. We hope you join us for MSBA’s epic return to in-person events!
In this issue of the Maryland Bar Journal, you’ll find articles on Race and the Law. It’s no secret that prior to 1946, the MSBA was an organization composed solely of white males. In 1946 the MSBA welcomed its first female member, and in 1960, the MSBA welcomed its first African American members. Despite this somewhat flawed history, the MSBA has grown to an organization that represents and fights for everyone in the legal profession.
This advocacy has helped increase the diversity in the profession in
The Gubernatorial Forums follow a series of interviews conducted in December 2021. Highlights from these interviews are featured as part of this issue.
MARYLAND
Maryland; however, there is still so much work to do. For instance, despite incredible strides in representation, male attorneys still outnumber female attorneys by a two to one margin.1 Similarly, the percentage of African American attorneys seems to have plateaued at 5%2. Hispanic attorneys also only represent 5% of the profession, and Asian attorneys represent just 2% of the attorney population.3 Moreover, diverse attorneys struggle to break through the glass ceiling, and leave the profession at higher rates than their white male counterparts.4
The diversity of the profession is an important issue for all attorneys, and our profession must be more reflective of the public we represent. We are all responsible for working to improve diversity in the legal profession, and this can be achieved in a variety of ways. For example, in recent years, the MSBA has evolved its committee selection process to ensure attorneys from across the state can voice their interest in serving. Committee roles are now rotated more frequently to make room for new and diverse voices. In addition, the MSBA has decentralized the selection of committee chairs and members and now utilizes a diverse nominating committee to ensure our diversity goals are met. The MSBA is currently evaluating its board composition and selection process to further enhance diversity, equity, and inclusion at the leadership level.
Your MSBA continues to work for you and the legal profession. We hope you’ve noticed!
M. Natalie McSherry, President
Sherrilyn Ifill on the Role of Attorneys as Guardians of Justice
The MSBA recently launched its 125th Anniversary Thought Leadership Initiative, a one of a kind series of programs and events that aims to inspire members of the legal community to contemplate and discuss the role of the legal profession in furthering the cause of justice, not only in Maryland but also in the United States and throughout the world. The Initiative focuses on four themes: the ethical obligation of lawyers to serve as guardians of justice; the legal profession’s role in leading efforts to ensure access to justice for marginalized communities; the responsibility of the profession for reforming justice to alleviate historic inequities; and its emerging obligation to address challenges and opportunities currently found at the intersection of science, technology, and justice
The MSBA kicked off the Initiative on January 13, 2022, with a Spark Series presentation by Sherrilyn Ifill, President1 and Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc. (LDF), the nation’s leading civil rights law organization founded more than 80 years ago by future Supreme Court Justice Thurgood Marshall. Ifill, an internationally recognized expert on matters related to each of the themes to be highlighted in the Initiative, spoke about lawyers’ ethical obligation to serve as guardians of
SERIES
justice.
Ifill began practicing as a civil rights attorney in New York in 1988 and came to Baltimore in 1993. She taught at the University of Maryland Law School for 20 years and considered it a great privilege to be able to educate future lawyers of Maryland. She insisted on teaching civil procedure in the first year because she wanted to reach first-year students, and inspire in them the kind of enthusiasm she has about being a lawyer.
Ifill is the youngest of 10 children and is the first and only lawyer in her family. It was always understood that “the family business is service” and that she and her siblings would use their skills and education to better the lives of
1 Ifill stepped down from her position March 14, 2022, and now serves as President and Director-Counsel Emeritus of the organization.
their communities and their people. And so Ifill wanted to be a civil rights attorney from the time she was a girl.
To Ifill, civil rights work is about using the words of the Constitution itself and working towards ensuring that they are fully realized and true for all people, even if your rights are not currently in jeopardy, and that's what makes the work so noble. She recounts it as a uniquely
To Ifill, civil rights work is about using the words of the Constitution itself and working towards ensuring that they are fully realized and true for all people, even if your rights are not currently in jeopardy.
hopeful kind of work.
Focusing on the legal profession’s role in civil rights work, Ifill noted the importance of maintaining a high level of respect and playing fairly within the system, to uphold the integrity of the profession. All attorneys share the job of upholding the rule of law, and if it is teetering, it is a weakening of a foundational pillar of a healthy democracy and is a problem for all of us. She emphasized that it is a privilege to be a part of the legal profession and that people look to us for leadership. According to Ifill, members of the legal profession need to confront uncomfortable truths about the past and our own character and stand up for the rule of law.
Ifill said she tries to believe in the civil justice system, but also refuses to undermine her own credibility by pretending that the system actually does work when it doesn't. She noted how prisoners are released from jail for crimes they did not commit so frequently that it is no longer notable, but we should be angry that such miscarriages of justice happen and that Brady violations continue to his day. Ifill said that we talk about upholding the rights of criminal defendants, and yet, until this past administration, it was clear that the route to becoming a federal judge was to be a prosecutor to the extent that criminal defense lawyers had very little chance of being nominated to serve as a federal judge. These are the imbalances that we need to be attentive to as a profession.
The message Ifill wants to impart on attorneys is that we are the guardians of our profession. Lawyers take an oath to demean themselves honorably and it is important that we police the boundaries of our profession, conduct a historical examination of where we have gone wrong, and speak out as a bar about what we think is right and what we think is unacceptable.
MSBA Day Offers Insight into the Legislative Session and MSBA's Advocacy Efforts
The Maryland State Bar Association held its third annual MSBA Day (formerly “Lobby Day” on February 15, 2022. The event provided valuable insight on recent legislation, the MSBA’s legislative priorities, and perspectives from the legislative, judicial, and executive branches.v
MSBA DAY’S SLATE OF distinctive guests invited to speak on matters of importance to Maryland’s legal profession and residents included Governor Larry Hogan, U.S. Senators Ben Cardin, and Chris Van Hollen, U.S. District Court Chief Judge John P. Morrissey, and numerous Maryland Senators and Delegates. The day’s discussions were moderated by Reena Shah, the executive director of the Maryland Access to Justice Commission, and Shaoli Katana, MSBA Legislative and Advocacy Director.
M. Natalie McSherry, President of the MSBA, welcomed participants and reported that MSBA Sections and their chairs, counsel, and legislative liaisons employed measures to integrate member input into the MSBA’s public advocacy efforts like never before. She highlighted the MSBA’s recent public advocacy successes as well, including defeating a proposed tax on legal services and winning COVID-19 vaccine priority for Maryland lawyers. President McSherry challenged MSBA
members to make an even greater commitment to advocacy in the days to come to help ensure the voice of the profession is heard.
Ward Coe, Chair of the Maryland Access to Justice Commission (A2JC), kicked off the day by explaining the Commission’s mission to make the civil justice system fair, equitable, and accessible for all Marylanders. Coe explained that the A2JC is able to pursue its goals because it receives great support, financially and otherwise, from the MSBA. One way the Commission achieves its mission is by supporting legislation that promotes access to justice. He noted that last year’s legislative session was like any other for the Commission. Coe explained that the problems the pandemic exacerbated were monumental, but with the assistance of key leaders from the Senate and the House, they were able to make unprecedented progress, and 19 bills that came from the Attorney General’s COVID-19 Access to Justice Task Force
were enacted into law. One of the bills, HB18, provides that residential tenants have the right to legal representation in eviction proceedings, making Maryland one of the first states in the country to have a statewide Access to Counsel in Evictions program. This year, funding the program is one of the Commission’s top priorities.
Senate President Bill Ferguson explained the Senate’s top priorities during the 2022 Legislative Session. Specifically, continuing to navigate the immediate and long-term impacts of the pandemic. He believes that we are in a place where we can have real conversations about recovery and post-COVID life. He thinks the pandemic affected the lives of young children more than any other facet of the population, and the Senate’s focus in the remainder of the session will be providing them with greater certainty going forward.
After moderating a panel discussion with members of the
about his commitment to safeguarding Maryland's vulnerable populations, including nursing home residents, people with disabilities, victims of lead paint poisoning, low-wage earners, and members of minority groups. His priorities this session, which will be his last, are banning ghost guns, which are unserialized weapons that come in kits and are, therefore, not classified as firearms, but are very easy to put together and turn into deadly weapons. The other measure that he thinks is important aims to increase the filing fee for evictions from $15 to $80, which he believes will disincentivize mass evictions. The additional income will be used to fund the Maryland Legal Services Corporation.
Chief Judge Morrissey then spoke to MSBA Day participants, noting that the pandemic has dominated much of the work of the judiciary over the last two years and
The other measure he thinks is important aims to increase the filing fee from evictions from $15 to $80, which he believes will disincentivize mass evictions. The additional income will be used to fund the Maryland Legal Services Corporation
Senate Judicial Proceedings Committee, on a number of issues, former State Senator Bobby Zirkin talked to Governor Hogan about the significant challenges he faced during his administration and how that impacted his leadership, including a cancer diagnosis, the COVID-19 pandemic, and the worst violence in 47 years in Baltimore City.
One of Governor Hogan’s primary goals in his final year in office is eliminating the tax on retirement income. As the state has a surplus of funds, he believes that we are in a position to do it. Senator Zirkin noted that Governor Hogan has very high approval ratings, which they both attributed to his commitment to bipartisanship.
Following the discussion with Governor Hogan, Attorney General Frosh, who is a member of the MSBA and a commissioner on the A2JC, spoke with President McSherry
recounted efforts to continue proceedings while protecting the health of citizens, attorneys, the judiciary, and court staff.
The House Judiciary Committee Panel wrapped up the day, speaking with Shah and Katana about key initiatives and their goals during the 2022 session.
TECHNICAL KNOWLEDGE,
MEANINGFUL RELATIONSHIPS
Stephanie Perry has concentrated on estate planning and estate and trust administration throughout her 17-year career and is now the Managing Partner of Pasternak & Fidis, P.C.
PERRY RECENTLY SHARED some insight about her career and upcoming projects with the MSBA.
Tell us a little about the biggest project related to your professional career right now.
My most significant “project” on the horizon is preparing for my term as President of the Bar Association of Montgomery County. I am in the process of finalizing my vision and goals for my Presidency and am hopeful that my service will contribute to the overall success of the Bar and leave a lasting impact.
How did you choose your current practice area?
I took an estates and trusts course during my second year of law school, fell in love with the subject matter, and I haven’t looked back since. What I enjoy most about estates and trusts law is that while it requires a high level of technical knowledge, it also gives me the opportunity to establish meaningful and lasting relationships with my clients.
How have you overcome challenges that you faced in your career?
I have always found it helpful when facing challenges to seek the advice and counsel of others who may have experienced similar challenges. There’s nothing new under the sun, so I use the resources around me to help find solutions to challenging situations.
What is the best piece of advice you have received from someone in the legal profession? Your best referral source is a happy client.
at various other MSBA programs, including Asset Protection: Trusts and Marital (Premarital and Postmarital) Agreements (MSBA 2019 Annual Meeting), Premarital Agreements: Drafting and Negotiating from the Estates/ Trusts and Family Law Perspectives (March 23, 2017), Premarital Agreements – Drafting and Negotiating from the Family Law and Estate Planning Perspective (December 2019), and The Importance of Building Flexibility into an Estate Plan (Estate and Trust Law Section Monthly Study Group Meeting April 2021).
How has the MSBA helped you in your legal career?
The MSBA has presented me with opportunities to build my reputation and hone my skills as a lawyer by speaking and writing and given me opportunities to build lasting relationships with other lawyers.
What’s an interesting fact about you that no one would guess?
I played the trumpet for six years in middle school and high school. I picked the trumpet because no other girls picked it.
What’s a cause that you are passionate about?
I’ve served on the Board of the Washington School for Girls (WSG) since 2016. WSG is an all-girls, tuition-free school located in the Anacostia neighborhood of Washington DC. What started as an afterschool program has evolved over the past 25 years into a third-grade through eighth-grade school that is leading efforts to define best practices for educating young women of color and providing quality education and
There’s nothing new under the sun, so I use the resources around me to help find solutions to challenging situations. “
How are you involved with the MSBA?
I have been an MSBA member since I began practicing in Maryland 11 years ago. I am a member of the Estate and Trust Law Section and the Taxation Law Section. I’ve served as a Contributor for the MSBA publication, Using & Drafting Trusts in Estate Planning (2016 and 2019 editions) and as a speaker for the corresponding program in the same years. I’ve also served as a speaker
support to students and their families to prepare them for lifelong success. We celebrate our 25th anniversary this year!
What’s your favorite vacation spot?
Generally, the Caribbean, although any place with warm temperatures and a beach will do.
How to Write an In-House Counsel Cover Letter That Actually Gets Read
I KNOW THAT YOU DON’T want to write a cover letter for an in-house counsel role (or any other position for that matter). At the same time, if you’re reading this article you probably suspect that—if done right—a cover letter can be valuable.
And you would be correct! Keep reading to learn more about the four strategies that will increase the odds of your in-house cover letter not only being ready, but also of you being invited to interview.
In-House Counsel Cover Letters Are Direct
Cover letters aren’t the place for your life story.
Whether it’s a recruiter or a busy general counsel reading your cover letter, they want to know why you want the job.
And they want to know quickly.
You’ve likely got multiple reasons for why you want to work for them, but pick the best one.
How will you know it’s the best one?
Because it’ll be the reason that is most about the employer (as opposed to about yourself).
This will require you to do a little research so you can be as specific as possible.
Whether you search their website, scan their social media accounts, or talk to (former) employees, you want to learn about the organization’s mission, values, workplace culture, work they do and clients they serve.
Based on what you discover, you can then show the employer that you have an informed understanding of why you want to join their organization.
In-House Counsel Cover Letters Should Address Obstacles Head On Your cover letter is the ideal place to address
Whether it’s a recruiter or a busy general counsel reading your cover letter, they want to know why you want the job.
You can leverage that skillset in writing your cover letter to make a compelling case for why you’re the best candidate for the job.
any objections an employer may have to hiring you.
In some cases, I advise lawyers to call out and resolve any potential obstacles in the first sentence of the cover letter.
So think honestly about what the employer might perceive as an obstacle to hiring you.
More often than not, this is something that you’re already somewhat self-conscious about like:
• Lack of in-house experience
• Limited practice area experience
• Geographical location (not local)
• Appearing overqualified or too senior for the position
Rather than shy away from these potential objections, bring them up so you can quickly dispel them. Then the reader will be able to focus instead on the value you’re bringing to the position.
In-House Counsel Cover Letters Need To Highlight Results
Focusing on results is key.
The number one problem I see in cover letters and résumés for in-house positions is the lack of results and achievements.
Every employer is looking for a problem solver.
In-house employers need a problem solver who can hit the ground running on day one. Generally, they don’t have the resources for extensive training.
By providing a specific example of how you’ve provided value in a scenario that’s analogous to what the employer needs, they’ll easily understand how you fit into the role.
In other words, you’ve got to demonstrate that your existing skills and experience are transferable!
You do that by showing a problem you solved, how you did it, and the benefit it provided to your client and/or employer.
In-House Counsel Cover Letters Must Be Concise
While I don’t believe résumés should be limited to one page, I do strongly advise that cover letters be no more than a single page.
Having a shorter cover letter increases the chances that it will actually get read!
Remember, recruiters and general counsel are busy. They’re more likely to at least scan your cover letter if it looks more like a one-minute read than a lengthy treatise.
Your goal is to get the reader primed for and excited to look at your résumé. So think more “movie trailer” and less “Ken Burns documentary.”
And, yes, I’m aware of the urban legend that claims cover letters never get read; and that can certainly happen even when you have a stellar cover letter.
Regardless of whether anyone else reads yours, writing one helps you develop the narrative as to why you’re the best candidate— which gives you a head start on preparing for the interview.
Writing Your Compelling In-House Counsel Cover Letter
At the end of the day, you’re a lawyer who knows how to argue effectively. You can leverage that skillset in writing your cover letter to make a compelling case for why you’re the best candidate for the job.
In doing so, you’ll be highlighting your transferable skills.
If you’re not crystal clear on what your transferable skills are, check out my free transferable skills masterclass, 3 Simple Strategies for Uncovering Any Lawyers Transferable Skills. I walk you through how to analyze a job description, identify your transferable skills, and focus on the results you’ve gotten in your prior roles.
When you combine your upgraded résumé with your customized cover letter, you’ll be fielding interview requests for any in-house position you apply to.
*Reprinted with permission from Annie Little, JD, ICF Certified Career Coach. This article originally appeared on thejdnation.com.
SERENDIPITY,
WORKING FOR THE PUBLIC GOOD, AND HIS BUSY RETIREMENT JUDGE
MICHAEL MASON
Following Judge Michael Mason’s announcement that he would step down as Chair of the Maryland Pattern Jury Instructions–Criminal Committee at the end of 2021, MSBA celebrates his dedication to public service and hopes younger practitioners will be inspired to follow his lead.
The Committee, described as a “who’s who1” of the Maryland bench, drafts “current, clear, and concise” jury instructions for criminal cases. Judge Mason chaired the Committee for eight years and served as a Committee member for nearly 20 years before taking the helm.
While trial court judges have some authority to deviate from the pattern jury instructions, the instructions are typically upheld on appeal, making them a crucial resource for prosecutors, defense attorneys, and judges presiding in criminal cases in Maryland.
The more than 200 instructions, which are regularly updated, outline the essential elements of statutory and common law crimes and defenses in Maryland. They also provide introductory and cautionary guidance for the jury on evidence and witnesses.
In an interview with the MSBA, Judge Mason conveyed that the significance of jury instructions drew his interest as a young lawyer, long before he would join the Committee. When he worked as a prosecutor from 1974 through 1984, he noticed the most fertile grounds for reversals on appeal were often found in the jury instructions. That led him to zero in on their importance early on, he said.
Judge Mason stated he was always driven to serve the public and his community. Even as a young law student, he thought one day he might be interested in becoming a judge. His inspiration grew when he worked as a law student clerk for the late Allegheny County Circuit Court Judge James S. Getty. “He made an enormous impression on me,” Mason said of the widely beloved Judge Getty, who died four years ago at the age of 96. “In the back of my mind, becoming a judge was maybe something I always aspired to do.”
Judge Mason realized his goal in his early forties, though at the time he thought he may be too young for the bench. He dismissed age-related concerns when his friend and colleague—a few years younger than him—indicated he was going for one of three open seats. Judge Mason decided to apply too, but he wasn’t selected by the commission the first time. Shortly after, though, then-Governor William Schaefer appointed Judge Mason to the Circuit Court for Montgomery County. “It was serendipity,” Judge Mason said. He served in that role from 1994 until his retirement in 2018. “You can’t always pick your opportunities in life,” Judge Mason said. “Opportunities present themselves and you have to decide which ones to take.”
You can’t always pick your opportunities in life. Opportunities present themselves and you have to decide which ones to take. “
After graduating from Georgetown University and George Washington University School of Law Judge Mason took his first job in the intake unit of the State’s Attorney’s Office in Montgomery County while he was studying for the bar exam. After he passed the bar, he transitioned into a full-time role as an assistant state’s attorney. He proceeded to work his way up in the prosecutor’s office over the next decade, eventually leading the major offenders’ bureau in his last two years.
Judge Mason stressed the importance of jury instructions, and noted that lawyers and trial judges can generally rest assured the courts will uphold the pattern instructions on appeal as long as the law hasn’t changed. He stated the Committee prides itself on keeping up with changes in statutes or case law that could affect the jury instructions they publish. Over time, the courts have developed a lot of trust in the pattern instructions, Judge Mason said. He can confirm this reliance from the perspective of both jurist and litigant, having never forgotten his two decades as a litigator in the prosecutor’s office and in private practice, before eventually wielding a gavel.
To his wife’s chagrin, Judge Mason reports, he doesn’t plan to slow down. “I’m actually very busy in retirement,” he said. He continues to sit as senior judge in Montgomery and Frederick counties, as needed. He also still handles many private mediations and arbitrations as well.
As for the next generation of the legal profession, Judge Mason encourages MSBA members to step up into leadership and service roles like the Jury Instructions Committee.
Not only do these groups perform crucial work within the justice system, serving on them can also lead to career advancement, even if that’s not the primary goal. Judge Mason noted that former members of the Committee include a handful of now state and federal appellate judges, not to mention a number of fabulous trial judges and practitioners.
“All of them agreed to serve because they recognize the importance of this Committee’s work,” Judge Mason said. “It has been a real joy to chair it.”
ARTIFICIAL INTELLIGENCE: A Not-So-Hostile Takeover
BY CATERINA SORRENTO & CAMILLE PAPPY
WHAT IS ONE PHRASE you would not want your attorney to say in court? Did the phrase “I’m here live, I’m not a cat”1 come to mind? Probably not, but attorney Rod Ponton nevertheless uttered this phrase to Judge Roy Ferguson as he struggled to remove a cat filter from his Zoom screen during a remote hearing held at the beginning of the pandemic.2 Luckily, Judge Ferguson kept his composure and chose not to punish an honest mistake made by a “senior lawyer doing his best in a very difficult time.”3 Most viewers watched the viral “lawyer-cat video” and simply chuckled at Ponton’s misfortune.4 However, lawyers are aware of the underlying warnings from the mistakes of their peers and should use “prospective hindsight” to avoid falling victim to similar fates.5 To lawyers, the comical lawyer-cat video is an allegory of the new risks technology poses to professional ethics. Indeed, a less forgiving judge might have interpreted the same scenario as a violation of professional ethics. The comical lawyer-cat video should lead all lawyers to reflect on their technological proficiencies and shortcomings.
Much of modern legal technology is far more complex than the video communication software attorney Ponton struggled with. In fact, many tasks traditionally “viewed as requiring human intelligence” are now often performed by artificial intelligence (AI) software.6. AI
Many tasks traditionally “viewed as requiring human intelligence” are now often performed by artificial intelligence software.
can perform legal research, data analysis, document drafting, and other functions conventionally executed by lawyers7. Proponents of AI acknowledge its capabilities in simplifying the lawyer’s tasks, such as due diligence.8 Nevertheless, critics are skeptical of a new
1 See Karen Rubin, Of Cats and Competence: Legal Ethics Lessons from the Trenches, Thompson Hine (Feb. 10, 2021) https://www.thelawforlawyerstoday.com/2021/02/of-cats-and-lawyer-tech-competence/.
2 See 394th District Court of Texas – Live Stream, Kitten Zoom Filter Mishap, YouTube (Feb. 9, 2021) https://www.youtube.com/watch?v=KxlPGPupdd8.
3 Jenna Greene, In 2021, We Were All Zoom Cat Lawyer, Reuters (Dec. 20, 2021). https://www.reuters.com/legal/legalindustry/2021-we-were-all-zoom-cat-lawyer-2021-12-20/. (discussing the difficulties attorneys faced due to the COVID-19 pandemic). Judge Ferguson also explained that his judicial obligation to “ensure the dignity and solemnity of the proceedings” helped him maintain composure during this otherwise laughable moment. Id.
4 See Rubin, supra note 1 (noting that, after only one day, 3.7 million people had seen Ponton “as a fluffy white cat, complete with moving kitty lips as he plaintively explain[ed]” the cat filter to the judge). See Laura Müller-Pinzler et al., Keep Your Friends Close… Really? OUPblog (Feb. 26, 2016). https://blog.oup.com/2016/02/vicarious-embarassment-neuroscience-brain-research/ (defining vicarious embarrassment as “an interpersonal and painful emotion experienced on behalf of others’ blunders and pratfalls.”).
5 See Müller-Pinzler et al., supra note 4.
6 See Lauri Donahue, A Primer on Using Artificial Intelligence in the Legal Profession, Harv. J. L. & Tech.: JOLT Dig. (Jan. 3, 2018). https://jolt.law.harvard.edu/digest/a-primer-on-using-artificial-intelligence-in-the-legal-profession.
7 Id.
8 Id.
technology that will effectively redefine the practice of law as we know it, particularly as it relates to ethics.9 But rather than resist the inevitable, lawyers should integrate AI into their practice and develop the requisite knowledge and skills to reap its benefits without jeopardizing their professional responsibilities.
As recognized in the Maryland Rules of Professional Conduct (the “Rules”), attorneys are agents of justice who must practice law competently and diligently and must maintain client confidences.10 Thus, when lawyers use AI without the requisite knowledge and skill to operate it competently and diligently, they essentially gamble with violating the Rules and risk compromising client confidentiality.11 If the current trend continues, AI will become standard practice, and even Luddites will be forced to succumb to technological advancements as a matter of professional responsibility.12 Humor aside, the time has come for all practitioners to reflect on the steady advancement in technology and its effects on the ethical practice of law.13
Rule 19-301.1 imposes an ongoing duty of competence and requires lawyers to “keep abreast of changes in the law and its practice.”14 Accordingly, lawyers who rely on AI should be cognizant of its benefits and limitations alike.15 One AI function that carries minimal risk regarding the duty of competency is automated document review.16 An attorney teaches the application to flag documents containing specified phrases or metadata.17 The process reduces time spent on repetitive tasks without posing a significant threat to legal professionalism, given that attorneys continue to use their practical legal knowledge to input relevant information for the AI software to identify, sustaining a degree of participation in the specific case.18
Conversely, the ethical stakes are higher when the world’s first AI lawyer, ROSS, drafts legal memoranda from start to finish.19 Lawyers who use AI to automate legal research and document drafting should understand the system’s capabilities and algorithms.20 AI research systems yield results by searching collections of legal authority assembled from source materials available in the public domain.21 These databases are manually built to promote efficiency by creating
9 See John Levin, Artificial Intelligence and the Lawyer, 3 Experience 28, 28 (2020).
10 See Md. R. Attorneys, 19-301.1 (West, Westlaw through 2021 Legis. Sess.).
11 See id.
12 See infra notes 14–37 and accompanying text.
13 See id
14 Md. R. Attorneys, 19-301.1 cmt. 6 (West, Westlaw through 2021 Legis. Sess.).
15 See infra notes 16–23 and accompanying text.
manipulated results based on practitioner needs.22 Efficient as it may be, limiting the scope of legal research to a tailored database can be a double-edged sword. The quality of AI-produced research is contingent upon the relevance, applicability, and scope of the legal authority available in manually constructed databases.23 An understanding of this foundational knowledge can help attorneys identify the need for additional research or errors in the system and ensure competency.24 Moreover, AI algorithms analyze repetitive human action and offer results based on the system’s perception of the user’s past needs.25 As such, algorithms can produce results that reflect user bias and poor search strategies.26 As attorneys serve clients with diverse backgrounds, it may be inappropriate to use AI when it could potentially bring bias into an attorney’s legal analysis.27 When an AI program uses data derived from human decisions containing unfair biases, the AI program could produce an outcome reflecting those unfair biases.28 The Department of Justice utilized an AI program meant to assess recidivism.29 However, the tool “overpredicted” the risk that people of color would commit crimes or violate rules after release compared to white people.30 AI algorithm experts suggest lawyers seek an “ethical algorithm design.31” However, an ethical algorithm design, which allows users to form algorithms that avoid integrating unwanted biases, can only combat the biases that users can identify.32 Ultimately, while AI is a valuable tool, attorneys must use it appropriately by maintaining a basic understanding of what occurs in its “black box” to appreciate all potential risks fully.33
However, an ethical algorithm design, which allows users to form algorithms that avoid integrating unwanted biases, can only combat the biases that users can identify.
16 Mary Ann Neary & Sherry Xin Chen, Artificial Intelligence: Legal Research and Law Librarians, 21 AALL Spectrum 16, 16 (2017).
17 Id
18 Id. See also Catherine Nuez, Artificial Intelligence and Legal Ethics: Whether AI Lawyers Can Make Ethical Decisions, 20 Tul. J. Tech. & Intell. Prop. 189, 195 (2017).
19 See Nuez, supra note 18 at 192–93. However, ROSS’s capabilities are beyond the scope of this paper, but other AI products are beginning to do some of the tasks discussed in this paper.
20 See Neary & Chen, supra note 16, at 18.
21 Id.
22 Id.
23 Id.
24 Id. (noting that many secondary sources are unavailable through AI systems due to licensing restrictions, so associates are encouraged to develop a foundational understanding of legal issues by locating secondary sources in commercial databases before turning to AI research systems).
25 Id. at 19.
26 Id. See also David Lat, The Ethical Implications of Artificial Intelligence, Reuters https://abovethelaw.com/law2020/the-ethical-implications-of-artificial-intelligence/ (last visited Jan. 16, 2022).
27 See Lat, supra note 26.
28 Id.
29 Carrie Johnson, Flaws Plague a Tool Meant to Help Low-Risk Federal Prisoners Win Early Release, NPR (Jan. 29, 2022, 5:00 AM) https://www.npr.org/2022/01/26/1075509175/justice-department-algorithm-first-step-act.
30 Id.
31 Michael Kearns & Aaron Roth, Ethical Algorithm Design Should Guide Technology Regulation, Brookings (Jan. 13, 2020) https://www.brookings.edu/research/ethical-algorithm-design-should-guide-technology-regulation/.
32 Id
33 See Lat, supra note 26.
You stand for your client’s best interests. We stand for yours.
As the business of law has become more virtual, it comes with a significant opportunity for you to see through a different lens. In our 75 years, we’ve seen a lot. And our vision is a stronger you.
LEARNING TRULY NEVER STOPS KAMBON
WILLIAMS
Member - Pessin
Katz Law, P.A.
KAMBON R. WILLIAMS became a lawyer because he wanted to help people and he was fascinated with the power and complexity of the legal system. Now a member at Pessin Katz Law, P.A., Williams still gets excited when he learns a new area of law and how it fits into the larger body of legal knowledge he has accumulated over the years or is challenged by a novel legal issue Maryland’s courts have yet to address. Ultimately, that is the most enjoyable aspect of the legal profession for Williams—the learning never truly stops.
Williams recently offered the MSBA a glimpse into his experience as an attorney and his goals moving forward.
Tell us a little about your biggest passion project related to your professional career right now.
I am serving as Co-Chair on the MSBA Cybersecurity Task Force with a talented group of lawyers to establish the first MSBA section for Cybersecurity Law. The need for the MSBA to provide Maryland lawyers with a resource to address the novel and complex issues presented by the impending flood of cybersecurity breaches that will impact not only their clients, but also their firms, has never been more clear. The Task Force’s goal is to address issues affecting how lawyers safeguard their practices and their client’s confidential information and intellectual property in the event of a cyberattack.
What is the best piece of advice you have received from someone in the legal profession? Learn how to disagree without being disagreeable. The adversary process plays a vital role in how we resolve disputes, but things can quickly get heated during the course of a case. I was advised early on to remember that the opposing lawyer is a person with a family and that the legal community is far smaller than one may think. It is not always easy, but following that advice has proved very useful over time.
Learn how to disagree without being disagreeable. The adversary process plays a vital role in how we resolve disputes, but things can quickly get heated during the course of a case. “
What is your fondest memory of your legal career so far?
My first jury trial as an Assistant District Attorney in Erie County, New York. The case involved the brutal assault of an introspective teenager on a nearby beach. The defendant was the ringleader in the group that committed the assault but there was not much evidence beyond the victim’s identification. The defendant called a cast of characters to establish his alibi, but, one by one, their stories fell apart on cross-examination. Following a brief deliberation, the jury returned a guilty verdict. As I exited the courthouse with the victim, his extended family was on the steps cheering. That moment has stayed with me all these years and reminds me of the real world impact we can have on people’s lives.
“
What is the one piece of advice you would give someone in law school?
Keep an open mind. It is easy to form preconceptions about how much you would enjoy working in a particular practice area or for a particular employer. You do not need to make those decisions while you are in law school. Focus on your coursework and your grades. Make time to hang out with your classmates (as many will become lifelong friends or important contacts in the future).
What do you love about your current role?
My practice focuses on representing both insurers and insureds in first-party coverage disputes and in handling mass tort claims, complex civil rights and constitutional claims, and complex commercial litigation. First-party insurance coverage disputes involve a complex web of tort, contract, and insurance laws and can arise in any industry. It appeals to my inner “nerd.” In order to determine coverage successfully, you need to understand not only the policy and all of the laws concerning its application, but you also often need to understand the business context in which the coverage dispute arose. I am grateful for a practice focus that challenges me in fun new ways.
I am grateful for a practice focus that challenges me in fun new ways.
How are you involved with the MSBA and how has it helped you in your legal career?
I am a MSBA member and Co-Chair on the MSBA Cybersecurity Task Force. I participate in a number of sections and events and the MSBA has been invaluable in giving me opportunities to connect with other lawyers and to learn from their wide range of experience.
What do you do to unwind?
Find the nearest sandy beach available. My family is from Trinidad and Tobago and my wife is from Jamaica. Trips home to enjoy the Caribbean sun and to see family (yes in that order) always do the trick.
Kambon with his wife, Audreen E. Williams, at the YMCA's Turkey Trot
Maryland Automobile Accident Deskbook
Candidates for Governor Share Their Visions with MSBA
The MSBA, as the home of Maryland’s legal profession, works tirelessly to advocate on behalf of the profession. In recent years, we’ve had tremendous success defeating taxation of legal services, ensuring attorneys on the frontlines of justice had access to the COVID-19 vaccine, and much more.
In addition, the MSBA works to bring vital information to the profession through a variety of efforts including coffee chats with legislators, MSBA Day in Annapolis, and more. As a continuation of this effort, the MSBA recently conducted a series of interviews with Maryland’s Gubernatorial candidates the week of December 6, 20211. The MSBA provided a platform for the candidates to share their goals and vision for the State. is apolitical and does not support any particular candidate.
Over the course of the week, former State Senator Bobby Zirkin sat down with Democratic candidates Rushern Baker, Jon Baron, Peter Franchot, Doug Gansler, Ashwani Jain, John King, Wes Moore, and Tom Perez, Republican candidate Kelly Schulz, and Libertarian candidate David Lashar at the Inspace Theatre at Stevenson University’s Greenspring Campus. Candidates Dan Cox and Robin Ficker were invited for interviews but were unable to attend. The interviews were live-streamed and recorded.
MSBA President M. Natalie Mc Sherry noted that “presenting the premier interviews and debates to Maryland lawyers and the public is an opportunity we’re incredibly honored to spearhead as we offer potential candidates a platform to present their plan on moving our state forward in 2022 and beyond.”
These interviews were only the beginning of MSBA’s efforts to ensure the legal profession learns more about the individuals who hope to lead our state and their plans for the future, including interviews with candidates for Maryland Attorney General. And, for the first time, MSBA will host gubernatorial debates, at its Legal Summit in Ocean City this summer.
Rushern Baker
DEMOCRAT
Rushern Baker was inspired to enter politics after one of his high school English teachers enlightened him about social injustice. After earning bachelor’s and law degrees from Howard University, Baker decided to stay in Prince George’s County and was elected to the Maryland House of Delegates in 1994. He served as a delegate for eight years, and then ran a non-profit before being elected the Prince George’s County Executive in 2010, a position he held until his 2018 run for governor. While his first bid was unsuccessful, he decided to run again after the COVID-19 pandemic highlighted disparities in health care and racial injustice that he hoped to address as governor.
Baker spoke extensively about how his administration would tackle criminal justice and public safety issues. He believes in order to reduce crime rates, “you have to do two things at one time: one, you have to deal with the crime, and two, you have to prepare for the future.” He thinks that the governor's office should partner with cities to help achieve crime reduction goals, which may include introducing gun courts or increasing funding for the State Attorney’s office so they can better prosecute crimes. He also thinks that increased police training, better policing, and going through the backlog of outstanding warrants would help increase the impact of prosecution.
Baker also discussed the legalization of recreational marijuana use. Baker supports the initiative and thinks that the General Assembly should move to get the issue on the ballot so that voters have a chance to weigh in. He stressed the importance of assessing the laws and regulations that go along with legalization, to avoid unjustly prosecuting people for activity that is lawful, and ensuring that some of the resources garnered via legalization go to communities that were harmed by the criminalization of marijuana use.
“
Why are you running for governor?
During COVID, I got a chance to just start looking at what was going on not just in Maryland, but what was going on nationally. And I started thinking about Maryland's role in leading, not just the state but leading the nation, on things like disparities in health care and racial injustice. And I thought about the
I started thinking about Maryland's role in leading, not just the state but leading the nation, on things like disparities in health care and racial injustice.
experiences that I learned as a legislator, both in judiciary, and on appropriations, and eight years leading the second largest jurisdiction in the state, with one of the biggest budgets in the state, and I just couldn't sit on the sidelines. I thought the skills and things that I'd learned would help us lead our way out of this crisis and make Maryland not only just better, but also a leader in the nation.
What will a Rushern Baker administration do about criminal justice and, more specifically, about public safety in places like Baltimore City?
You have to do two things at the same time: you have to deal with the crime, you have to prepare for the future. And that is the governor's office coming in as a partner and saying, “Okay, what were the things?”
So in Baltimore, why don't we have a gun court? So if we know guns are in the hands of folks out there, let's see if we can prosecute those things quicker? How do we make sure we use resources to staff up the State's Attorney's Office and help that office so they can prosecute better? How do we create job opportunities for these young folks? How do we make sure kids are going to school and truancy? Health is one of the biggest factors in both our criminal justice system, and our education system, mental behavioral health, for individuals and for families. So it's working together with all of them.
And when people say, Well, how do we know work? Well, the reason we know who work is in Prince George's County, we had 105 going to about 106 homicides, when I took over. By the time we left, we were down to less than 50. And it's because we didn't look at it as a short term strategy.
Why should the members of the bar look to you to be our next Chief Executive Officer of the state of Maryland?
I think this is an important time for the state and the nation. And I think it's not about what you believe in, or what you even say. It's really about what you can get done. I think this is the time when we need experience in the executive office, because we face tough issues, whether it's criminal justice reform, whether it's housing, whether it is health care, all of those things are going to have a great impact on Maryland. And on the nation. We need somebody who actually has done this before. The one thing I'm proudest about is picking a running mate, Nancy Navarro, who's actually governed in the second largest jurisdiction in the state. These aren't positions that we're talking about and wish we could do. We've actually done it. We walked this walk. And I think at this stage in Maryland's crisis, we need someone who can do that. And that's why I'm running for governor and I'd love to have the bar's support and the members’ support.
Jon Baron
DEMOCRAT
Jon Baron is a nonprofit executive, former congressional staffer, and a former federal appointee with experience under both Democratic and Republican administrations. Baron, a lifelong Montgomery County resident, considers himself a government reformer who has “led the charge to increase the effectiveness of government through rigorous evidence about what actually works to improve people's lives.” He says his evidence-based policy approach is what the state needs “to make progress” on issues like stagnant wages, poverty, education, and public safety.
Baron noted his general support for Baltimore City’s focused deterrence strategy, which aims to reduce crime by conveying incentives for avoiding violence and deterrents for engaging in violence. He said that as governor his administration would “help provide the resources to ensure [the strategy’s] success,” in Baltimore City and surrounding areas. Baron also highlighted his support for drug treatment courts as an alternative to incarceration for nonviolent drug offenders and functional family therapy to reduce criminal activity by youths in the community.
Baron wrapped up the conversation by indicating that a more targeted approach to policy is what the state of Maryland needs to “zero in on solutions that are tested and shown [to be] effective” in addressing issues like stagnant wages, poverty, education, and public safety among others. He also noted that without an evidenced-based approach, there runs a risk of funding too many “well-meaning programs . . . that unfortunately don’t deliver” meaningful results for Marylanders.
“
My overall focus is on expanding programs that are promising or proven to work.
Why should Marylanders vote for you for governor? What is it that you would bring to Maryland?
I'm running because I believe Maryland can do so much better in education, wages, and health care. And I'm going to want to get us there because unlike others, I would expand programs and policies that don't just sound like good ideas, but have been tested in the real world, and shown to make a big difference in people's lives. The key theme is this, that if we simply continue on our current path, we're going to be here in another 20 years, and nothing will have changed to make progress, we have to zero in on solutions that are tested and shown to be effective. That's why I'm running for governor. Let's do what works.
What does the Baron administration do on Juvenile Services?
My overall focus is on expanding programs that are promising or proven to work. So in juvenile justice, one approach that has been shown to be very effective is something called Functional Family Therapy. It's for youth who have been arrested or convicted. It pairs them and their families with a therapist who works with them on a time limited basis, to increase family functioning, because a lot of kids come from families where there's intense negativity. And often there's no communication between the parent or caregiver and the child. And it's a completely dysfunctional situation. So the therapist works with the family, including the parents with parent training and the rest and communications techniques. It was shown in an excellent study in Philadelphia, to reduce the rate of subsequent criminal activity by these youth by about 40%. It was a small study. But this is the kind of thing we should expand in Maryland, at least on an initial basis, test it, see if it works here, and then expand it statewide.
Why should the members of the Maryland Bar elect you, Jon Baron, to be our next governor?
All of the candidates you're going to hear from on the Democratic side, we all support similar goals. We all want to improve education. We all want to reduce poverty and improve wages and all the rest. The way that I am different is this: I recognize that to achieve those goals, it is simply not enough to roll out yet another unproven plan or program because however well intentioned, many plans and programs just don't work. If we're really going to make progress on these long standing problems, if we’re really going to move the needle on stagnant wages and the rest, we need to focus like a laser beam on expanding programs that have been tested in the real world and shown to make a big difference in people's lives.
Peter Franchot
DEMOCRAT
Democratic gubernatorial candidate Peter Franchot says his qualifications for the state’s chief executive job rest on the experience he’s garnered during 20 years as a legislator serving on the appropriations committee, followed by 15 years as comptroller. “I don’t need any on-the-job training. I’m ready to rock and roll as the state’s next governor.”
Franchot has lived in Takoma Park for 41 years. He dropped out of college to protest the Vietnam War, not realizing that the loss of his student deferment would lead him directly into military service. After two years in the Army followed by law school, Franchot moved into a career of public service, which he emphasized has always been focused on the budget. “There’s very little the bureaucracy can do to trick me these days.”
Franchot spoke at length about how his fiscal expertise and focus would inform almost every aspect of his administration, from crime to transportation to COVID-19-related economic relief. Noting that he would be tough on both police and civilian misconduct, he emphasized “No public safety, no economy.” Franchot sees himself as “compassionate and empathetic” and is very optimistic about the future of Baltimore and other high-crime areas. He believes that crime will naturally come under control with a more normal economy.
Why should Marylanders vote for Peter Franchot, and what does the Franchot administration look like?
I have fiscal expertise, combined with a love for the state of Maryland. And I'm committed to doubling the gross domestic product of the state of Maryland, in the eight years that I hopefully will serve as governor. And we're going to make Maryland a go-to state. When I say safer, stronger, more prosperous, I mean it, we're going to improve the quality of living in every nook and cranny of the state.
What would your administration do on the issues of public safety, criminal justice, all those kinds of interrelated issues?
My view as governor is look, we obviously have a huge issue with police misconduct. That's been all over the country. I have zero tolerance for police misconduct. But I also say to the police, no public safety, no economy. For a functioning economy, we've got to have safety. Secondly, I say that I have zero tolerance for criminals who harm other people. I mean, that is just we have to punish them. We need to be strong on both the issue of police misconduct, which is obviously something that is front and center for a lot of people in the state of Maryland, but also this basic concern about are there violent people out there that are going to hurt other people. I think the crime in Baltimore City naturally will get under control as we get back to a more normal economy, which is very broken right now. We have about $5 billion in surplus dollars that can be used creatively as far as perhaps dampening down some of the public safety issues in the city of Baltimore. But the long term solution is to change the direction of the city.
Can you give a summation of the Peter Franchot stump speech?
The proof is in the pudding. I've been a good comptroller for 15 years. And recently, we announced a $2.5 billion dollar surplus. We're going to add another $2.5 billion this year we're in and next fiscal year. That's proof positive that I've done my job as a good chief fiscal officer. I will make a great CEO because of that experience and that perspective. All over the state I have people say, we know who you are. We like you. And I say back to them, not only do you know who I am, I know who you are, because I've been all over the state. And I think that's what people want right now. They want an experienced steady hand at the helm, particularly with the economic consequences of COVID and the need for the state to improve its prosperity.
“
When I say safer, stronger, more prosperous, I mean it, we're going to improve the quality of living in every nook and cranny of the state.
If elected governor, Doug Gansler said his priorities would include rebuilding the state’s economy following the COVID-19 pandemic. A longtime Montgomery County resident, Gansler graduated from Chevy Chase Elementary School and attended Yale and the University of Virginia School of Law before returning to the state. His career has included serving as an Assistant U.S. Attorney, State’s Attorney for Montgomery County, and as Maryland’s Attorney General for two
Gansler said his experience as Attorney General, and his prior leadership as a State’s Attorney, makes him uniquely qualified to lead on the topics of criminal justice and crime. Emphasizing that he is “running against the defund the police crowd,” he believes implementing community prosecution, requiring training for police officers, making being a police officer “a respected and respectable position,” and using alternative incarceration avenues like drug court is more productive. He feels strongly about training police officers in culture and diversity. Hiring “the best and brightest” and then paying them well is key, he says. Police officers should also be required
Gansler wants to lead the state and rebuild the economy in the post-COVID word by tapping “into the potential of every Marylander regardless of what they look like, their socioeconomic status and providing access to opportunity for every Marylander.” That is his “overriding concern,” he says. Gansler wrapped up the conversation by noting he is the “only practicing member of the bar running for governor” and the “only person running for governor with democratic values, experience and record of accomplishment that will provide [him] the opportunity on
Who is Doug Gansler, and how is it that you came to be running for governor?
Like all of us during COVID, I was doing a lot of reflection and thinking about what I wanted to do. I was getting an enormous amount of pressure to run for governor. While I love my job, what really motivates me is helping people, and particularly Baltimore City. I’m the only person running who has led during a time of crisis; I was president of the National Association of Attorneys General during the national mortgage foreclosure crisis. My biggest issue when I was attorney general was
While I love my job, what really motivates me is helping people, and particularly Baltimore City.
the environment. We took on big corporate polluters, but we also did positive programming to clean up the Chesapeake Bay. So the environment is obviously going to be a big issue for us and protecting the Chesapeake Bay.
How do we get police officers to want to stay in the profession?
We need to change the conversation and make it a respected and respectable position. Look, should we have police officers shooting people of color for no reason? Absolutely not. Do we need to ferret them out? Yes. Do we need to prosecute them? Yes. But most police officers are there risking their lives. They need to be well trained, they need to have diversity training, and they need to be respected from the governor on down. We need to pay them higher, so we will attract better. It's economics 101, to pay people so you get better people in the profession. And that's one of the things we need to do with the police. But we need to make sure that we don't go overboard on beating up on all the police officers just because there are some that are really not good.
What is your focus on the environment?
We have to have somebody who recognizes the importance of the environment, both from an environmental perspective, and from a climate change perspective. And I think they're inextricably tied, but both important. I want to make Maryland, the environmental center, the California, if you will, in terms of the environment, only on the East Coast. We have the brainpower to do that.
Ashwani Jain
DEMOCRAT
Ashwani Jain is a first-time candidate and Program Director for the National Kidney Foundation in the DC metro area. Jain, who spent time working in the Obama Administration in both the Department of Health and Human Services and the Department of Housing and Urban Development, said he was running for governor as a way to “make [Maryland] politics more inclusive and accessible” to residents across the state. The 32-year-old cancer survivor found during his health battles that many people were making decisions for him as opposed to making them with him. He determined at that point that “if I was blessed enough to get a second chance at life, I was going to try to make it count.”
Jain has shared over 150 detailed policies on his website and he says every one of those were created by residents who will be impacted by the policies. Noting his relative youth--if elected, Jain would be the nation’s youngest governor--Jain said he has “the experience and perspective to really serve Marylanders.” He says his work at the federal level included working on affordable housing issues in the U.S. Department of Housing and Urban Development; serving as outreach director for then-Vice President Biden’s Cancer Moonshot initiative; and managing the political appointee process during the administration.
“
At the end of the day, I'm doing all this because I really think decisions about us should not be made without us.
What are your top priorities in terms of a Jain administration?
One of my signature programs is called the Maryland Now plan, which will eliminate the state income tax for 95% of Marylanders, make Maryland the first state to make public transit free, create the nation's very first guaranteed jobs program, legalize marijuana while expunging records, and then also impose very specific anti corruption measures. And at the end of the day, I'm doing all this because I really think decisions about us should not be made without us.
What would the Jain administration prioritize on the issue of public safety?
I have shared an entire comprehensive criminal justice platform on my website. A lot of it starts with this idea of demanding accountability. It doesn't negate the good work that law enforcement does. But it ensures just like we do in any other field, that if you're not doing your job right, or if you have a job that can lead to the murder of individual residents, and break this idea of community trust, you need to put specific measures in place. And all the things I want to talk about right now, were created by the law enforcement community and by residents alike, who are part of our volunteer operation. So I talk about everything from ending extreme census for children, ending the money bail system, making sure we treat drug and opioid use as a mental health and public health issue, not as a crime. I talk about legalizing marijuana and expunging records, obviously, I talk about preparing those in prison for leave for life outside of prison. I talk about investing in more mental health professionals so we get to the root of some of the causes that allow people to kind of keep going back and forth through the jail system.
What are your plains on immigration?
I helped organize to pass the Maryland Dream Act in 2010, to make sure that at least for children of immigrants, or children of illegal undocumented immigrants, still get access to in state tuition, for example. So access to higher education. Part of my criminal justice platform is to remove the influence of ICE, especially for nonviolent offenders. And instead, have it go through our Maryland agencies instead. But if they're nonviolent offenders, I would not cooperate with ICE. I don't think ICE coming into our communities, even in our prison systems, is really making our communities actually safer. And we're not actually taking care of those residents who could still be active members of our communities.
John King DEMOCRAT
Democratic candidate John King, who served as the U.S. Secretary of Education under President Obama, said his life was shaped by his childhood experiences. His parents, both educators, passed away when King was very young, and he found refuge in school, where he was fortunate to have teachers who gave him second chances. He ultimately chose a career in education. Since the end of the Obama Administration, King has been running an education civil rights organization. He believes children and their education are greatly affected by all of the other systems, and he believes the next leader of Maryland will be someone who can “make government a force for good in people’s lives much the way school was a force for good in [his] life.”
The three core pillars King’s administration would focus on are education, economic development and economic dignity, and the environment. King believes it is important to invest in the children of Maryland, and “fairer” taxation may be required to fund the Blueprint for Education in the future. He opined, “just tax fairness, making sure everybody is paying fairly into the system, will get us a good distance towards the investment we need.”
King emphasizes that he brings two things to the state: “a very clear progressive vision for how we move the state towards greater equity, greater justice, and greater prosperity, and the experience, at the local level, state level, and federal level, of getting big things done in the government.” He noted that some of his running mates have no experience in the government, while he does, and can deliver on his objectives. As such, he hopes people will support him.
What does a John King administration look like?
It's really three core pillars for me. One, of course, is education. It’s hugely important that we have a governor who actually follows through on the [Blueprint for Education]. The second pillar for me is economic development and economic dignity. We have to keep growing the number of good jobs in the state, we have to make sure folks have the skills for open jobs. We also have to attend to economic dignity issues, paid family leave, access to housing that's affordable, investing in public transportation, those kinds of quality of life issues. The third pillar for me is around the environment. Obviously, we have to protect the Chesapeake, and make sure that we're protecting water quality. We also need urgent action on climate.
How do we stem the loss of people willing to enter and remain in the law enforcement profession?
We're seeing something similar in education, we're losing a lot of teachers in this moment. Folks are feeling overwhelmed by the challenges that they're facing in this moment. And then the question is, can we get to a better place? I think a lot of police officers would say that being called to respond to a mental health services crisis isn't their training, that isn't the thing they are best at doing. A Crisis Intervention Team, a trauma team that responds to them, so that the police can be focused on the things they are trained to do, that's part of how we make policing a job where folks feel good about their day to day work and feel equipped to do their jobs.
Why should people be attracted to the John King candidacy?
I bring a very clear progressive vision for how we move the state towards greater equity, greater justice and greater prosperity. I have the experience at the local level, state level, federal level of getting big things done in government. I can deliver on the things that will matter in people's quality of life. Things like paid family leave, universal, affordable quality child care, clean air, clean water, taking action on climate, I can deliver on those things and for that reason, I hope folks will support me.
It’s hugely important that we have a governor who actually follows through on the [Blueprint for Education]. “
David Lashar
LIBERTARIAN
David Lashar, the only third-party candidate running for governor, described himself as a “Reagan Republican” when he was a young voter, but says he began to question his affiliation with the party when the United States invaded Iraq under the Bush administration. He lost faith in Republicans with the rise of Donald Trump and divorced himself from the party. He was working under Governor Hogan at the time, as the Chief of Staff and Chief Operating Officer of the Maryland Department of Health, and chose the Libertarian party because he believes it is the only party dedicated to a principle, which is that they will not use force or aggression to achieve their goals.
Lashar believes that we can reduce violent crime by ending the war on drugs. He thinks that the illicit drug trade is the cause of most violent crime, and the key to reducing high crime rates is to stop criminalizing drug use. He believes that all drugs, including opioids, and alkaloids, should be made legally available in a controlled and safe manner and that providing such access would reduce both crime and overdose rates. He thinks any efforts other than complete legalization are merely political and would have no true impact on crime.
Lashar challenged anyone who is looking for a governor who is both compassionate and responsible, principled and accomplished, to vote for him. He describes himself as the only candidate currently in the running who has both private and public sector achievements and stated he would work with the General Assembly and engage in civil discourse when needed in order to get things done.
Who is David Lashar, and how is it that you came to be running for governor of the great state of Maryland?
I'm an IT executive. I help organizations, commercial organizations, public agencies, figure out how IT can help them do whatever they do better. Then choose that technology, put it in and make use of it. So I work at a high level with organizations to become better by using IT globally. I decided to divorce myself from the Republican Party with the rise of Trump. I was working for Governor Hogan at the time. I chose the Libertarian Party, because it is the one party truly dedicated to a principle. It is famously in some circles, known as the non Aggression Principle. And basically what it says is, I will not use force to get my way. So no bullying, no bossing, no riots, no interactions, we respect each other. And in that spirit, we can debate it out and but we will also hug it out too, and that's the way we in the Libertarian Party try to be.
Where do you stand on the legalization of drugs?
I can give you the vision and the end state. The end state is that we legalize even opioids, heroin, crack, cocaine. They would be legally made available in almost the same way that we now make medical cannabis available. It is not a vision of you go to the Wawa and get your heroin. It is a model like medical cannabis, where you have a distribution model. I want places where people can go to get what their bodies need. They have a moment when they can begin to receive services when appropriate. You can bring in loved ones, an important part of recovery for most addicts. There's always going to be addiction. I think we need to instead of trying to deny human nature and continuous prohibition, we need to accept human nature and figure out the way to bring hope back to the make it possible for a renaissance in Baltimore and make it easier to get people who are addicts the services that they need.
Why should people cross their party lines and go to vote for the Libertarian, David Lashar?
The why is that if you're one of the many people in Maryland, who's looking for both compassionate and responsible, who is looking for principled and accomplished, the only candidate who is bringing public sector achievement and private sector experience and achievement to the role, you only have one choice, and that would be me. I'd like people to know the Libertari-
I'd like people to know the Libertarian party invitation is to follow us and learn a little bit more. “
an party invitation is to follow us and learn a little bit more. I hope you heard thoughtfulness. I hope you felt empathy. I would work with the assembly. I would. I would engage. I would argue civilly. We would disagree civilly, which is needed in order to actually get things done.
Wes Moore Democrat
Wes Moore was born and raised in Maryland and describes himself as a Marylander through and through. His father died from a treatable virus when Moore was young, after the hospital sent the uninsured patient home to rest. This singular incident had a significant impact on his family, leaving his mother a single parent who, despite having a master’s degree, didn’t get a job that provided benefits until Moore was 14. Moore knew from an early age that he wanted to devote his life to public service, and his career has included leading soldiers in combat, owning a small business that helped students make it to college, and running a nonprofit focused on creating economic mobility.
To Moore, focusing on transportation, education, and making the state more competitive for businesses will lead to his intended goals of establishing work, increasing wages, and helping people build generational wealth. He explained that we have a new balance sheet for the state, with $3.7 billion coming into the state in discretionary capital and $1.7 billion for education, which Moore believes can be leveraged into the additional resources needed to fund the Blueprint in the future.
Moore asked Marylanders for his support because the challenges the state is facing, like learning loss, job loss, inequity within pay grades, and wealth “are not new, but are generational challenges.” To address these challenges, “we need a generational change. We need to be able to look at this from a cross-sector.” Moore explained that this is what he has done his entire career and advised he would place his executive experience against anyone else in this race and asked Marylanders for their support as the race continues to push forward.
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And we have to make sure we're focusing on measurements of wealth and economic security for people and giving people the opportunity to pass something off to their children besides debt.
If you become the next Governor of the state of Maryalnd, what are your initiatives? The first year in office is that we are going to build the most remarkable administration that is going to be focused on results. My north star, what we're going to expect for everything, it's really focusing on this idea of creating work, wages and wealth and pathways to all three of those things for Marylanders. We are going to properly implement the Blueprint for Maryland's Future. We're going to accelerate the $15 minimum wage, because right now, we have too many Marylanders who are working, and in some cases, working multiple jobs, and still living below the poverty line. And we have to make sure we're focusing on measurements of wealth and economic security for people and giving people the opportunity to pass something off to their children besides debt.
How do we make progress on juvenile justice, specifically the high recidivism rate? I think the things that we have to do is we have to focus on how our juvenile justice system is actually truly going to focus on this idea of rehabilitation, reentry, and, stopping that cycle that we have, because you're watching how so many of these key early indicators are showing themselves within our juveniles. Maryland also has an incredibly stubborn rate of juveniles that are being tried as adults. I think we need to think about the type of supports that we're trying to introduce into our children and whether they be academic supports, whether they be job training type of supports, whether the other familial supports that we're going to see, because we cannot address the challenge that we're having with our children by simply just thinking that this is going to be a criminal justice solution.
Tell the folks why Wes Moore for Governor in our next election. These challenges that we are seeing and facing (learning loss, industries closing, wealth and wage inequalities), they're not new. These are generational challenges. And I think in this moment, the thing that we continue to hear from people is that in order to address these generational challenges, we need a measure of generational change. We need to be able to look at this from across sectors. And that's what I've done my entire career: build bridges, build bonds, be able to build a big tent, and knowing that we are not going to get addition through division. And so at this moment as we are electing our next chief executive, I know that I would put my executive experience against anybody else inside this race.
Tom Perez
DEMOCRAT
The son of immigrants from the Dominican Republic and the youngest of five, Tom Perez has “always wanted to change the world.” Perez says he has spent his entire career fighting for civil rights and labor rights, prosecuting racial violence, police misconduct, and human trafficking, and ultimately leading the U.S. Department of Justice Civil Rights Division. His experience includes serving as Maryland’s Labor Secretary and U.S. Labor Secretary in the Obama Administration and as the chair of the Democratic National Committee. In running for governor, Perez believes the state’s “best days are ahead of us.”
On the topics of police reform and public safety, Perez said that reestablishing a criminal justice coordinating committee was an important step in addressing crime in Baltimore and elsewhere. He stressed the importance of addressing the root causes of crime and emphasized the need for a functioning community mental health infrastructure, to give law enforcement officers the tools necessary to de-escalate policing incidents.
Calling Maryland’s diversity its greatest strength, Perez vows to build a diverse team with a focus on jobs and justice, and making sure that Maryland realizes its full potential. Perez says the state’s next governor will need to be a multitasker who can handle the multiple crises currently at issue, including public safety and the COVID-19 pandemic; he noted that, while the state is in a moment of crisis, “we’re also in a moment of great opportunity.” If elected Perez would pursue building a clean energy economy and implement the Kirwan Blueprint for Education, which he calls a “remarkable roadmap to make sure that zip code never determines destiny.”
What would your priorities be if elected governor?
Our focus is going to be on jobs and justice, making sure that Maryland realizes its full potential. We’re going to go to school on the lessons of this pandemic, such as the need to make sure everybody has health insurance, such as working with our first responders, and issues of preparedness. We have an incredible opportunity right now, to build a Maryland where we have a clean energy economy, through the infrastructure bill and the dollars that are going to come to Maryland. We need to address climate change, jobs and job creation, public safety, and healthcare
What do we do about public safety, to try to help stem the tide of violence?
Day one, we need to reestablish the criminal justice coordinating committee to address the crime challenges in Baltimore. Next, a disproportionate amount of violent crime is committed by people who are already under supervision. So let’s figure out what is happening in the supervision process that's breaking down. We’ve got to address the problem of ghost guns; we’re going to have to do something on the state level. A big part of what we have to do to address crime is to address the root causes of crime.
Tom Perez for governor, because … I'm running for governor because I want to build America, a Maryland where everyone has access to opportunity, where we have jobs and justice, where ZIP Code never determines destiny. We have so many natural assets here, whether it's our human capital, our healthcare infrastructure, our remarkable Chesapeake Bay, and I want to make sure that we live up to that full potential. I really do think our best days are ahead of us. Take a look at what I've done before, take a look at our vision for what we want to do for Maryland, and take a look at everyone else as well. Because one thing I feel really confident about is when you take a look at what we've done, you'll see that I've always fought for jobs, justice, and opportunity. A Maryland that works for everyone.
When you take a look at what we've done, you'll see that I've always fought for jobs, justice, and opportunity. “
Kelly Schulz
REPUBLICAN
Kelly Schulz has spent the last seven years as part of Governor Hogan’s administration. If elected governor, she plans to stay on the same path, “with some mild differences,” emphasizing a platform of “prosperity with a purpose” that would benefit all Maryland residents.
Schulz spoke of a lengthy journey into public service, which included graduating from Hood College at the age of 36, making her the first in her family to earn a college degree. After working for a defense contractor and volunteering in Republican political campaigns, Schulz was approached to run for an open seat in the House of Delegates in 2010. She won twice, and represented Frederick County until 2014, when she resigned to become Hogan’s Secretary of the Department of Labor, Licensing and Regulation. She has been Maryland Secretary of Commerce since 2018.
Schulz’s priority as governor would be to provide all Marylanders an equal opportunity for prosperity. She said that as Secretary of Commerce, her department worked to remove burdens and barriers so that companies could increase jobs, noting that, sometimes, discussion of business is limited to “talking about the business that is a brick and mortar type of a business as opposed to the people that they’re actually employing.” She said “good business owners, those good stakeholders, that are just trying to be able to make sure we create meaningful jobs and careers for our families, our neighbors, and the communities” are key to her vision of providing “everybody across the state, no matter what zip code you live in … an equal opportunity” for prosperity.
What does the Kelly Schulz administration look like?
A Kelly Schultz administration is all about opportunity. It's all about being able to make sure that those young people like myself, like my kids have the opportunity to move forward and be able to obtain their greatest prosperity. And I call that prosperity with a purpose. It's not about the family that you've been brought up in, it's all about being able to understand what resources and opportunities are available for
It's all about being able to make sure that those young people like myself, like my kids have the opportunity to move forward and be able to obtain their greatest prosperity.
every single person, whether it be a family, a nonprofit organization, a small business, medium business or large business, because there's room for all of us. And we have to be able to make sure that we all work together.
What are the specific things that you're going to do if you become the next governor of the State of Maryland, in terms of economic development or business development or commerce?
One of the biggest issues is to be able to attract new types of businesses here. We have been very successful over the course of the last seven years to be able to attract more businesses. But for those businesses that do not choose Maryland, there are themes as to why they don't choose Maryland, and it's all about the tax system. It's all about the cost of doing business in Maryland. And if we have a big deal that comes to us and we're being graded with multiple states, they're going to choose a state that has lower taxes, income taxes, corporate taxes, retirement and estate taxes. It all comes down to what your level of revenue is, right. So the more you're going to be able to bring businesses into the community to be able to pay into the different types of stack tax structures, the more income tax you're going to have, the more sales tax you're going to have, it is going to be able to come out in the end that if you rid yourself of the estate tax, if you rid yourself or decrease the retirement tax that we have, you're still able to attract more revenue into the state.
Why should people be attracted to a Kelly Schulz campaign for governor of the state of Maryland?
I think it comes down to the basics of people wanting to be able to make sure that there's continued dialogue, debate, and checks and balances to the system that we have right now. I think Marylanders want to be able to make sure that what we're doing when we're policymakers and we're keeping their money, we're spending their tax dollars, it's because we should, not because we can and being able to provide a governor for the next four years. That is in a very similar stature as Governor Hogan is wanting to be able to continue on that path with some mild differences, but being able to continue on that path of opportunity, and that prosperity with a purpose. I think that is where Marylanders want to go.
THE MSBA AS ADVOCATE: Association Files Two Amicus Curiae Briefs to Protect Core Tenets of Attorney-Client Relationship
The MSBA prides itself on being the voice of attorneys across the state, representing lawyers in a broad range of practice areas, experience levels, and demographics. For more than a century, the MSBA has represented the interest of its members in a variety of public platforms. While the MSBA regularly advocates on behalf of Maryland lawyers, it rarely takes positions in active controversies. It did so in 2021, however, by filing amicus curiae briefs in Chavis v. Blibaum Associates, P.A., and Delegall et al. v. Nagle & Zaller, P.C., et al., cases considered by the Court of Appeals of Maryland. The MSBA took this extraordinary action, not to advocate for either side, but to fight to protect core tenets of the attorney-client relationship.
Chavis v. Blibaum Associates, P.A.
The MSBA filed the first amicus curiae brief, in Chavis, on January 8, 2021.1 The facts of Chavis are not in dispute: a law firm representing a commercial landlord filed breach of contract claims against multiple tenants due to their failure to pay rent owed pursuant to residential leases. In each case, the law firm obtained judgments against the tenants, and the court ordered that the landlord could recover post-judgment interest at the “legal rate.” The tenants failed to pay the judgments, and the law firm filed requests for writs of garnishment, seeking a 10% post-judgment rate of interest.
The tenants then filed lawsuits against the law firm, asserting that by employing a 10% interest rate, the firm violated the Maryland Consumer Protection Act (MCPA) and the Maryland Consumer Debt Collection Act (MCDCA). The tenants argued that § 11-107
of Md. Code Ann., Courts & Judicial Proceedings Article, limits the post-judgment rate of interest on judgments arising out of breach of contract actions involving residential lease agreements to 6%. However, the issue of whether § 11-107 allowed for the 6% or 10% interest rate was unsettled at the time the tenants’ lawsuits were filed due to the ambiguous language of the statute. The Maryland Court of Appeals ultimately ruled in favor of the tenants on the issue of the applicable interest rate, finding that the 6% limit applied. The bigger issue that loomed, though, was whether the law firm could be held liable for violations of the MCPA and MCDCA. The MCDCA provides that “[i]n collecting or attempting to collect an alleged debt a collector may not . . . [c]laim, attempt, or threaten to enforce a right with the knowledge that the right does not exist[.]” Md. Code Ann., Commercial Law § 14-202(8). Despite the
ambiguities of § 11-107, the tenants asked the court to sanction the law firm for taking the position that the 10% interest rate was proper under the statute.
In other words, what began as a dispute over the interpretation of statutory provisions morphed into an action that threatened to allow attorneys to be punished for arduously advocating on behalf of their clients. The tenants’ claims were dismissed by two circuit courts, and the circuit court rulings were affirmed by the Court of Special Appeals. The tenants then successfully filed a petition for writ of certiorari to the Court of Appeals, asking the Court to find that the use of wage garnishment to collect excess post-judgment interest and post-judgment filing fees constitutes a violation of the MCDCA. The MSBA filed an amicus brief, asking the Court to affirm the lower court’s contrary rulings. The brief filed by the MSBA stressed that a
“claim, attempt, or threat to enforce a right” is actionable under the MCDCA only if made “with the knowledge that the right does not exist.” Md. Code Ann., Commercial Law § 14-202(8). Further, the brief argued that even assuming that the MCDCA allows a debtor to challenge the amount of interest sought by a creditor—as opposed to that creditor’s right to seek any interest—the law on the proper rate of interest was sufficiently unsettled that a federal court certified the question to the Court of Maryland Appeals in three related cases. If a federal district judge found the law so unclear that it deemed it necessary to certify the question, the law firm clearly could not have been asserting a right that it knew did not exist. In sum, the brief explained that if advocating for a client on an unsettled area of the law could expose an attorney to liability, it would create an unsustainable conflict between an attorney’s professional obligation to advocate zealously on behalf of a client and the fear of potential liability under the MCDCA.
After reviewing the issue on appeal in Chavis, the MSBA felt that it owed a duty to its members and to all attorneys in Maryland to protect them from liability when advising their clients on courses of action they might take. The MSBA was particularly concerned that a reversal could chill the ability of attorneys to advise their clients on areas of the law that were unclear, unsettled, or otherwise not well-defined. It is important to note that the MSBA took no opinion on the merits of the underlying case; rather, the brief was submitted to protect the ability of attorneys to argue on behalf of their clients and to fulfill their professional responsibilities without fearing liability.
Delegall et al. v. Nagle & Zaller, P.C., et al.,
The MSBA filed its second amicus curiae brief, in Delegall et al. v. Nagle & Zaller, P.C., et al., on October 27, 20212. Again, the MSBA felt that it was necessary to take this uncharacteristic step to encourage the Court of Appeals to uphold the principles that are at the core of the attorney-client relationship regardless of the practice area or the party that the attorney represents.
The factual and procedural history of Delegall is extensive and convoluted. At inception, a homeowners’ association retained Nagle
2 The Court heard oral arguments from the
& Zaller to assist in the recovery of condominium assessments that Delegall failed to pay. Nagle & Zaller contacted Delegall and offered a pre-suit settlement which included Delegall’s execution of a promissory note to avoid a lawsuit to recover the unpaid condominium assessments. Delegall executed the note, which included a confessed judgment provision. He defaulted on payment, after which Nagle & Zaller filed a complaint for confession of judgment on behalf of its client, and judgment was thereafter entered.
Contrary to Delegall’s assertions, the MSBA argued that the General Assembly did not enact the MCLL to protect consumers from the type of transactions at issue here—a lawyer drafting a settlement agreement with a payment plan and promissory note provisions.
The MSBA noted that many attorneys will advise a client in connection with the settlement of a case, controversy, or claim at some point during their career. Indeed, Maryland attorneys for both creditors and debtors regularly draft settlement agreements, many
Drafting settlement and compromise papers for a creditor-client could expose the attorney to the risk of liability to the opposing party, the debtor.
Delegall and another party subsequently filed a putative class action lawsuit in the U.S. District Court for the District of Maryland against Nagle & Zaller and other parties, asserting numerous statutory, tort, and breach of contract claims. After multiple amendments, Delegall asserted a claim against Nagle & Zaller for violation of the Maryland Consumer Loan Law (the MCLL). Essentially, Delegall alleges that Nagle & Zaller is a lender under MCLL but failed to acquire a license as required to make loans or advance credit of $25,000. Delegall further asserted that the confessed judgment note was subject to the requirements of the MCLL. The federal court certified the question of whether a law firm is “engaged in the business of making loans” and is considered a “lender” under the MCLL to the Court of Appeals of Maryland.
The MSBA filed an amicus brief, asking the Court to find that law firms who pursue debts on behalf of their clients are not lenders and are not subject to the requirements of the MCLL. In it, the MSBA asserted Delegall's interpretation of the MCLL to apply to lawyers who represent creditors and their law firms was without basis. The MCLL stems from a 1912 Act where the General Assembly sought to protect consumers against usury by requiring licensing of “petty loan brokers,” capping fees, and mandating the disclosure of loan terms to the borrower. See Price v. Murdy, 462 Md. 145, 149 (2018) (answering a certified question on whether the MCLL’s Licensing Provision is a statutory specialty under the Courts & Judicial Proceedings Article).
of which include payment plans in the form of promissory notes to allow the debtor to pay the settlement amount over time. If the Court were to adopt Delegall’s broad interpretation of the MCLL, every Maryland lawyer who structures payment of a resolved claim on behalf of a client would be a “lender” to the opposing party and would carry the obligations that come with the position, which would place Maryland attorneys in an untenable position in which they would owe duties to both their clients and the opposing party. It would significantly limit attorneys in the representation of creditors, as drafting settlement and compromise papers for a creditor-client could expose the attorney to the risk of liability to the opposing party, the debtor.
Further, the brief stated that from a practical standpoint, the implications of being deemed a lender under the MCLL would dissuade lawyers from advising clients to settle a wide variety of contract-based claims that have a value of less than $25,000 and may discourage parties from settling or resolving small claims, resulting in increased caseloads in the courts and higher costs for litigants.
For the aforementioned reasons, the MSBA submitted that the certified question should be answered “no,” and the Court should find that attorneys who negotiate and draft settlement agreements and repayment plans are not “lenders” within the meaning of the MCLL.
Amicus Brief Authors on Why They Became Involved
STEVEN M. KLEPPER
Steven M. Klepper (Kramon & Graham) and J. Bradford McCullough (Lerch, Early & Brewer), co-chairs of the Appellate Practice Committee of the Litigation Section of the MSBA, drafted the brief in Chavis v. Blibaum Associates, P.A.
Klepper’s career in appellate advocacy seems to be the natural conclusion of a lifelong fascination with the law and passion for arguing on behalf of others that began in childhood. He attended Goucher College where he majored in history and theater and then studied law and history at the University of Virginia. He planned to get a Ph.D. in history and go into legal academia focusing on Supreme Court history. His plans changed after he completed his second year of law school and began clerking at Kramon and Graham, P.A., and got the chance to work closely with Kevin Arthur, who is now a judge of the Court
of Special Appeals, and Andy Graham, a leader of the Maryland Bar. It was during this time that Klepper discovered a love for litigating, which differed from the academic arena in that disputes were actually resolved instead of merely debated. Klepper always found his strength when advocating for others, and litigation offered him the chance to make sure his client’s voices were heard. After he passed the bar, he joined Kramon full-time.
Klepper spent the first part of his career working on insurance coverage matters. After he made partner, he began looking at the shape he wanted his career to take and realized he wanted to focus on appeals. Currently, about two-thirds of his practice is dedicated to appellate work. It was not easy to redirect his focus, as at the time Maryland did not have a well-defined appellate bar with clients looking for dedicated appellate counsel.
Photo courtesy of Beverly Funkhouser Photography
Since its inception, Kramon & Graham handled appellate matters, but in 2012 Klepper began working to create an appellate practice for the firm. He noted he could not have developed his appellate practice without the support of his firm and partners who will bring him into their appeals and lend them his wisdom.
At the same time, Klepper began making a concerted effort to help develop the appellate bar in Maryland, which included starting a blog on Maryland appellate matters. He recruited prominent appellate practitioners to contribute to the blog, two of whom went on to become appellate judges. He soon discovered that there were members of the bar that wanted
a fifth of his appellate work consists of drafting amicus curiae briefs. His main goal when drafting such briefs is to add additional perspective to the issues that are already before the court. He has drafted several amicus briefs for the Women's Law Center of Maryland and victims’ rights organizations and is one of the co-founders of the Amicus Committee of the Maryland Criminal Defense Attorneys Association.
In Klepper’s opinion, the MSBA should ordinarily refrain from taking a position in appellate proceedings. He views the Chavis case as an exception to the general rule, however, explaining that in light of the potential implications of the case, it was necessary for the MSBA to take a stand for the
Klepper believes we will all be better off with an appellate bar that better reflects the broader experiences and viewpoints of all members of the profession.
information on Maryland’s appellate courts, especially the Court of Special Appeals. On top of that, he began working with Paul Sandler and Andy Levy as an editor on the treatise, Appellate Practice for the Maryland Lawyer, the sixth edition of which is slated to come out in early 2023.
In the future, Klepper would like to help diversify the appellate community. To that end, he is part of the Appellate Project, which is a national organization that seeks to increase interest among diverse law students in appellate work. He also has been working with the Appellate Practice Committee to form a subcommittee to promote diversity, equity, and inclusion in appellate practice. Klepper believes we will all be better off with an appellate bar that better reflects the broader experiences and viewpoints of all members of the profession.
Klepper finds that appellate work pushes him to continuously improve his writing and allows him to learn about unfamiliar areas of law and work to develop expertise in that area. About
good of the profession. Klepper explained that the goal of the brief was to ensure that the court is aware of the negative implications for the profession if it were to adopt a reading of the MCDA that would chill zealous advocacy. It aimed to protect the right of an attorney to fiercely advocate on behalf of a client without worrying about facing sanctions, which is critical to maintaining a strong attorney-client relationship. He noted that the MSBA includes attorneys that represent both creditors and debtors, and the MSBA’s interests in this matter are in preserving the attorney-client relationship generally, which goes beyond this particular dispute.
J. BRADFORD MCCULLOUGH
Bradford McCullough says that the fundamental aim of the amicus brief he co-authored with Steven M. Klepper in Chavis v. Blibaum Associates was to protect the ability of lawyers to act as advocates for their clients.
The fundamental aim of the brief was to protect the ability of lawyers to act as advocates for their clients.
A reversal on the issue would expose lawyers to liability for taking a legal position that was undecided at the time and would strike at the heart of their obligations to their clients. The brief asked the Court to recognize and protect a lawyer’s duty to advocate zealously for a client, noting that lawyers should not have to weigh the risk of personal liability when determining what legal arguments they can make on behalf of their clients.
McCullough wanted to be an attorney for as long as he can remember. He grew up during the height of the civil rights movement and saw the important role lawyers played in protecting the rule of
Photo courtesy of Beverly Funkhouser Photography
law and upholding people’s rights. He obtained his BA in political science from McDaniel College and his law degree from the University of Baltimore School of Law. After passing the bar, he clerked for Judge Theodore G. Bloom of the Court of Special Appeals. He then moved to private practice, working on civil litigation matters.
to be unpleasant. He witnessed one of his partners live out this directive, noting he was not only an incredibly effective lawyer but was also beloved by his opponents. The second piece of advice, which McCullough believes is crucial, is not to underestimate the value of thorough preparation. He would advise anyone who wants to embark on an appellate
To McCullough, the most challenging aspect of appellate work is attempting to fully absorb the underlying record and procedural history and focus on the salient issues on appeal.
Lerch, Early & Brewer did not have a dedicated appellate practice before McCullough undertook a conscious effort to establish one. In the past 10 years or so, McCullough has focused more on appellate matters, which now comprise about half of his work. To McCullough, the most challenging aspect of appellate work is attempting to fully absorb the underlying record and procedural history and focus on the salient issues on appeal. He enjoys the intellectual challenges appellate work brings, though, and likes analyzing the facts and issues from different angles to come up with persuasive arguments.
McCullough expressed that he was fortunate to have worked alongside great lawyers throughout his career, and to have the opportunity to be part of a team and advocate for clients as part of a collaborative effort. Two particular cases had outcomes that were especially rewarding: obtaining a successful outcome for a family that lost a grandmother and three-year-old child in an automobile collision, and helping a man who was wrongfully incarcerated at the age of 18 obtain a release when he was 60.
Two pieces of advice have guided McCullough through each stage of his career. The first, which came from Judge Bloom, was that you do not have to be cruel or offensive to be an effective litigator, and that it is counterproductive
practice to develop their writing skills as much as possible, whether it be by writing for blogs or legal journals so that they can develop a reputation of being a good and effective legal writer. He also recommended that they look for opportunities to write appellate briefs, which may be pro bono, to get involved with bar associations, and any other organizations that are related to appellate work.
McCullough is committed to advocating for others outside of work as well. He has been involved with Interfaith Works for nearly 30 years, an organization that deals with social justice issues and helps people in need in Montgomery County. As the name suggests, it is a grassroots organization that grew out of an interfaith coalition of congregations throughout the county in support of civil rights. They advocate for people who do not have a voice and offer them numerous services and programs, including shelter, job training, emergency assistance, and clothing programs. Lerch, Early & Brewer has a commitment to the community as well, including membership in various chambers of commerce and bar associations, and many of McCullough’s partners have been board members of Interfaith Works.
McCullough became heavily involved in the MSBA about 15 years ago and has found that it provides great opportunities to meet other members of the profession and work on committees and sections.
JENNIFER LARKIN KNEELAND
Jennifer Larkin Kneeland (Watt, Tieder, Hoffar, & Fitzgerald, LLP) drafted the brief in Delegall et al. v. Nagle & Zaller, P.C., et al. on behalf of the MSBA. Kneeland grew up in the Shenandoah Valley of Virginia and went to the University of Virginia for her undergraduate degree. College was an eye-opening experience for her, as she realized that not everyone had access to the same resources and that a large portion of the population did not understand the structure of government or business operations. This inspired her to contemplate her place in the world and what she could do to help people, which ultimately led to her decision to obtain her law degree from the Villanova University School of Law. She knew she wanted to work in a practice area that was business-focused and obtained an externship with Joseph James Farnan Jr., the Chief Judge of the US District Court for the District of Delaware. She was volunteering in chambers one day when Judge Farnan allowed her to observe arguments in a bankruptcy case. She found bankruptcy to be both exhilarating and a great way to help people, and the orderly nature of bankruptcy cases appealed to her. From there, she blossomed into a career in bankruptcy and creditors’ rights work. Presently, Kneeland is the leader of the creditors’ rights and bankruptcy practice group at Watt Tieder. The group is comprised of women. She intends to continue to support women who want to pursue a career in creditors’ rights law, and give opportunities to people who are interested in practicing in this area. She made the move to Watt Tieder from another firm five years ago, because she wanted to be part of a firm that allowed her to be a leader and develop her own practice group. She was also drawn by the collegiately of the firm and noted that the environment is what she cherishes most about being an attorney there.
Photo courtesy of Beverly Funkhouser Photography
Kneeland finds it rewarding to use her legal skills and knowledge to understand complex transactions or parts of the law that may be foreign to people, like clients and judges, and explain it in a way that they can connect to it. She is very cognizant of a growing lack of respect or understanding of the United States system of laws over the past several years and strives to be a good steward for maintaining that and conveying the integrity of the judiciary, who she deems dedicated public servants.
Kneeland stated that one of the chief arguments she wanted to
to accomplish. She felt that it was important for the Court of Appeals to consider the impact of concluding that law firms that negotiate settlement agreements and draft them for their clients could potentially be lenders under the MCLL.
She thought it was an opportunity to use the practical experience she has gained as an attorney to explain the implications of viewing the law in the way Delegall suggests would have on the practice as a whole. It is the first amicus brief she drafted, and she was honored to do so on behalf of the MSBA.
She felt that it was important for the Court of Appeals to consider the impact of concluding that law firms that negotiate settlement agreements and draft them for their clients could potentially be lenders under the MCLL.
convey in MSBA’s amicus curiae brief is that nearly every lawyer who practices law at some point is going to encounter a settlement, and attorneys that draft agreements that contain promissory notes for the payment of settlement over time could be considered lender under the MCLL, which she does not believe was what statute was intended
When she is not working, Kneeland and her seven-year-old son like to volunteer with the Lucky Dog Animal Rescue, which typically entails picking up a dog who is in boarding or foster care and taking them to an adoption event.
HOSTED BY THE MARYLAND STATE BAR ASSOCIATION
MAY 31 & JUNE 1
MSBA’s Legal Summit
Roland E. Powell Convention Center Ocean City, MD
The MSBA invites guests to attend the Maryland Gubernatorial Forums and hear candidate positions on important issues facing Maryland and our profession.
The forums will take place during the Legal Summit & Annual Meeting with May 31st being a digital only experience
Advocacy is an important element of MSBA’s work. The gubernatorial forums are just one example of the many ways the association remains connected to the community and continually works to raise awareness of issues that affect the legal profession.
Learn more about the candidates at: msba.org/connect-with-the-candidates
A Conversation With the Honorable Joseph M. Getty of the Court of Appeals of Maryland
BY STEVEN M. KLEPPER, ESQ. AND PAUL MARK SANDLER, ESQ.
This article contains excerpts from an recent interview with Chief Judge Joseph M. Getty. Each edition of Appellate Practice for the Maryland Lawyer includes an interview with the Chief Judge of the Court of Appeals of Maryland. The editors—Paul Sandler, Andrew Levy, and Steven Klepper—are preparing the Sixth Edition, planned for early 2023 to coincide with the likely renaming of Maryland’s appellate courts.
Because Chief Judge Getty reached mandatory retirement age before then, we conducted this interview between the Fifth and Sixth Editions. He met with us via video conference in December 2021.
Governor Hogan appointed Chief Judge Getty to the Court on June 27, 2016. Chief Judge Getty was named Chief Judge on September 11, 2021.
Thank you for taking the time to meet with us, Chief Judge Getty. We understand you took an unconventional path to becoming a lawyer and judge. Could you tell us about your career path?
I started my career in the historic preservation field. I worked for the Maryland Historical Trust and the National Trust for Historic Preservation. When I was at the National Trust, my father was diagnosed with Lou Gehrig’s disease. My wife and I decided to move home to help out the family. In moving back to Carroll County, there weren’t a lot of job opportunities in historic preservation. But I had worked closely with the lawyers for the National Trust on issues like historic district zoning and decided to go to law school at age 40.
I had worked closely with the lawyers for the National Trust on issues like historic district zoning and decided to go to law school at age 40.
What did your legal career look like?
While I was in law school, I ran for the House of Delegates in 1994 and was successful. Part of my legal work was legislative in nature, representing the people of Carroll County in the General Assembly.
I was fortunate to have an excellent mentor, Hampstead attorney Elwood “Woody” Swam. I opened my own law office in Hampstead, and Woody served as my mentor in my legal practice. It was a pretty typical “main street” practice. I knew most of my clients from the community.
What were your priorities and challenges when you became Chief Judge?
When I was appointed Chief Judge, one of the first things I wanted to do was to walk through the Administrative Office of the Courts and meet the people who do a lot of the work across the State for the Maryland judiciary. My predecessor, Chief Judge Mary Ellen Barbera, put together an excellent and talented team. We also have a special program team working on guardianships chaired by Judge Karen Murphy Jensen.
Every judge is required to take 12 hours of continuing education each year, and we have an excellent judicial education team that keeps our training up to date. The Administrative Office of the Courts also coordinates an annual judicial conference. The team has done an excellent job looking at judicial trends across the nation to put Maryland’s judiciary in a leadership role. My priority has been to support these programs and help them grow in their mission to support our judges throughout the state.
How has the COVID-19 pandemic affected the Court’s business?
The biggest challenge, obviously, has been the Court’s response to COVID-19. The pandemic began when Chief Judge Barbera was presiding over the Maryland judiciary, and she did an excellent job working with a committee from the circuit courts and the District Court in establishing an effective response. Courts statewide remained available to deal with urgent matters and to provide fundamental services.
When I became Chief Judge, I felt that we needed to have a plan for the post-pandemic Maryland judiciary. I appointed a work group chaired by Court of Special Appeals Chief Judge Matthew Fader to survey the entire Maryland judiciary and to identify things that came out of the pandemic that should be incorporated into long-term practices, specifically the use of technology in certain court proceedings. Chief Judge Fader is submitting a report to the Maryland Judicial Council, and we’ll use that report to incorporate operational improvements that came out of the pandemic into our long-range programs.
What advice would you give to the next Chief Judge?
I’m preparing a punch-list for the next Chief Judge. Foremost, there is a constitutional amendment to change the Court’s name to the Supreme Court of Maryland. There are a number of decisions as to how that transition will work.
My general advice would be to get a good understanding of the staff who work in the courtrooms and clerk’s offices across the state. I
think it’s incumbent on a Chief Judge to be a people-person who works with the staff and has a good understanding, top to bottom, of how the judiciary works.
Is there any question you wished we asked, so we can share something with the readers?
I am often asked what I would like to accomplish as Chief Judge, recognizing I’m a short-termer. Here’s where I view my role:
Maryland is in a state of generational change. I was appointed to a Court where all seven judges had birthdays in the 1950s. We had common life experiences, which helped with collegiality. Yet, we all were approaching the mandatory age of retirement. Since I’ve been on the Court, five of seven judges have retired. We see a similar transition occurring across state government. My priority is to support this generational change in the Maryland courts and courthouses in whatever way possible. I am trying to lay a foundation for a smooth transition to
I am trying to lay a foundation for a smooth transition to the new judges who are representative of this generational change as we build a better judiciary to serve the citizens of Maryland.
the new judges who are representative of this generational change as we build a better judiciary to serve the citizens of Maryland.
Judge Getty stepped down as Chief Judge when he reached mandatory retirement age on April 14, 2022. Governor Hogan swore in the new Chief Judge Matthew J. Fader, on April 15, 2022.
THE IMPORTANCE OF COMMUNITY TRUST
JAYMI STERLING
Assistant State's Attorney, Anne Arundel County
Growing up, Jaymi Sterling noticed the legal profession “lacked representation from the Asian-American community and, likewise, the Asian-American community lacked a connection with the legal community.” As a child of a first generation immigrant from South Korea, she understood the importance for second generation Americans “to be in a position to provide these critical services to those, like [her] mother, who lacked familiarity and access to a network of legal professionals.” She became an attorney, in hopes of achieving that goal.
Photo courtesy of Beverly Funkhouser Photography
AS THE ASSISTANT State’s Attorney for Anne Arundel County, Sterling prosecutes criminal cases throughout the state. Over her 15 years in practice, she has observed that “[f]or the criminal justice system to successfully work, you must have a system free from corruption. From the law enforcement officers, to the prosecutors and the judges, the community must be able to trust all of the men and women in each of these roles.”
Tell us a little about your biggest passion project right now.
For the people of St. Mary’s County, my home county, to have a State’s Attorney’s Office that serves with integrity, fairness, and justice for the entire community without bias or prejudice.
What is the best piece of advice you have received from someone in the legal profession?
I had the honor and privilege of clerking for the Honorable Alexander Williams, Jr., retired Federal District Court Judge for the District of Maryland. Judge Williams impressed upon me the tremendous obligation of a prosecutor. He said: “Don’t ever be afraid to lose a trial. If you do not ever lose a trial, that means you are not doing your job.” He explained that anyone could take the “perfect” case to trial or merely “drop” a more challenging case. Judge Williams advised me to never compromise my ethics and morals and reminded me that the job of a prosecutor is always to seek justice without fear of “losing” a trial.
What is your fondest memory of your legal career so far?
Having my children with me as I was sworn in as the Deputy State’s Attorney for St. Mary’s County and later when I was sworn in as Assistant State’s Attorney for Anne Arundel County. My children were able to see me take an oath to uphold the laws of the Constitution and State, and I hope that it impresses on them the importance of the rule of law and in giving back to your community.
What is the one piece of advice you would give someone in law school?
Find a good mentor and ask to shadow them at work. Ask them to put you in contact with their colleagues who are in other areas of the law and shadow them at work. Those experiences will help you decide what the best fit is for you.
What do you love about your current role?
I enjoy planning a case from start to finish. Litigation, to me, is similar to an athletic competition: the training, preparation, execution of strategic planning, navigating an offense, preparing a defense, and making the appropriate adjustments mid-game.
I relish the opportunity to help people. Most crime victims I come in contact with have no experience with the court
system. I come into their lives because they have experienced awful things. I understand the great responsibility I have in being the person who can help them feel whole again, to gain some peace, and ultimately ensure that they obtain justice.
What are your goals for yourself as a prosecutor?
To help as many people as possible; to supervise and mentor prosecutors at the start of their career and guide them on the path of seeking justice and not just winning; to ensure justice in the community where I live; and to continue identify issues in our criminal laws and work to improve our laws and our citizens’ access to the justice system.
How are you involved with the MSBA?
I am a Maryland Bar Foundation Fellow and a Co-Chair of the Local & Specialty Bar Liaison Committee. I have expanded my professional network and have made some long lasting friendships through MSBA from professionals all over the State.
What’s a cause or charity that you are passionate about?
I find great joy from participating in any athletic competition and appreciate the memories and friendships I have made throughout those opportunities. I love that the Special Olympics mission serves to bring that same joy to Special Olympic athletes. I am proud to have helped raise awareness and funds as the highest individual fundraiser for the St. Mary’s Splash for Special Olympics.
2021 MOCK TRIAL National CHAMPIONS Congratulations!
CONGRATULATIONS TO PARK SCHOOL’S MOCK TRIAL TEAM ON WINNING THE 2021 NATIONAL HIGH SCHOOL MOCK TRIAL CHAMPIONSHIP!
The Park Mock Trial team won its first Maryland State Championship in 2004. In 2011 and 2012, Park captured the State Championship two years in a row, marking the first time in competition history that any team had won back-to-back titles. Park took home the Championship once again in 2017. In 2021, Park became the first school in the competition’s 37-year history to win the Maryland Championship five times, and the first Maryland team to represent the state at the National Championships — competing against a field of 46 state championship teams.
The Park School of Baltimore is an independent, gender-inclusive, non-sectarian, progressive Pre-K through 12 school with the mission of supporting young people in becoming confident questioners and responsible citizens of the world. p arks chool net
Mock Trial competitions provide students with the opportunity to explore the legal process and participate in simulated trials. Students are provided with a case, are assigned roles as attorneys or witnesses, and compete against other students from public, parochial, and independent schools. Excelling in this head-to-head competition requires understanding of the law, court procedures, and the legal system; excellent listening, speaking, reading, and reasoning skills; communication and cooperation; and focused determination.
Pictured: The Park School 2021 Mock Trial Team received a commendation from the State of Maryland following their National Championship.
THE U NONIMMIGRANT VISA
Analyzing Eligibility Factors in 2022
BY COLIN ABBOTT, ESQ.
The analysis is further complicated by the inclusion of the requirement that the victim suffered “substantial” physical or mental abuse because of being a victim of the qualifying crime.
FOR THE PAST 22 YEARS , the U Nonimmigrant Visa has been available to noncitizens who were victims of qualifying crimes1. The intent of the U nonimmigrant status was to both protect victims who had suffered abuse and to strengthen the ability of law enforcement to investigate and prosecute these crimes.2
Today, the U Nonimmigrant Visa remains a viable option to assist noncitizens who can show they meet the eligibility requirements. However, five factors of eligibility should be examined holistically to present a viable application. Although the USCIS Instructions require separation of these factors, the proofs that support qualification of the noncitizen may be interrelated and have complex dependencies.
1. Qualifying Criminal Activity
The original legislation enacted by Congress in 2000 limited the availability of the U Nonimmigrant Visa to victims of specific or any similar criminal activity.3 This decision to list specific crimes resulted in the requirement of proof showing by the preponderance of the evidence that the noncitizen was a victim of a qualifying criminal activity.4
The requirement that for a criminal act under a federal, state, or local statute to be considered a “qualifying criminal activity” it is required that its elements be like one of the named activities.5 It will be necessary for the practitioner to evaluate the criminal activity within the context of it being a qualifying crime and include a legal argument in the application to demonstrate that the activity
qualifies within the definition of the original law and enabling regulation.6
2. Substantial Physical or Mental Abuse
The analysis is further complicated by the inclusion of the requirement that the victim suffered “substantial” physical or mental abuse because of being a victim of the qualifying crime.7 The substantial abuse threshold thus needs to be incorporated not only within the qualifying crime analysis, but also as a stand-alone element with separate legal analysis using the standard set by U Visa regulations.8
The “proof of substantial harm” element must be clearly presented in the words of the victim and also through medical records and psychological reports. The abuse argument can be strengthened using trauma research especially if the academia examines the victim abuse related specifically to the criminal activity being examined.9
3. Territorial Requirement
There exists a jurisdictional requirement that must be met to qualify for the U Nonimmigrant Status. The qualifying criminal activity must have taken place within the United States, its territories or possessions, or the act must have violated U.S. laws that provide for extraterritorial jurisdiction to prosecute the offense in U.S. federal court.10 This requirement can usually be proven by the police report or a criminal court document.11
The territorial requirement usually becomes an issue requiring specific legal argument when the criminal activity has both domestic and international acts, especially if
1 The U Nonimmigrant Visa was created as a humanitarian immigration benefit with the passage by the U.S. Congress of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act). United States. (2000). Victims of Trafficking and Violence Protection Act of 2000. Washington, D.C.: U.S. G.P.O.
2 For a comprehensive examination of the stakeholder presentations made during the Congressional hearings related to establishment of the U nonimmigrant visa see Katrina Castillo, et al., Legislative History of VAWA (94, 00, 05), T and U-Visas, Battered Spouse Waiver, and VAWA Confidentiality, National Immigrant Women’s Advocacy Project at https://niwaplibrary.wcl.american.edu/wp-content/uploads/2015/VAWA_Leg-History_Final.pdf.
3 See INA § 101(a)(15)(U)(iii), 8 U.S.C. 1101(a)(15)(U)(iii).
4 USCIS Policy Manual provides an analysis of the eligibility requirements to prove qualification for the u nonimmigrant status. See U.S. Citizenship and Immigration Services. USCIS Policy Manual. [Washington, D.C.]: U.S. Citizenship and Immigration Services, Vol.2, Pt.C, Ch.2.
5 See INA § 101(a)(15)(U)(iii), 8 U.S.C. 1101(a)(15)(U)(iii).
6 Practitioners can use analysis like that used in the 2019 DHS guide used to assist law enforcement, prosecutors, judges, and other government agencies in the review of criminal activity to determine if it meets the guidelines for u visa certification. See Department of Homeland Security, U Visa Law Enforcement Resource Guide 7 (2019), available at https://www.uscis.gov/sites/default/files/document/guides/U_Visa_Law_Enforcement_ Resource_Guide.pdf.
7 See INA § 101(a)(15)(U)(i)(I), 8 U.S.C. 1101(a)(15)(U)(i)(I).
8 See 8 C.F.R. § 214.14(b)(1).
9 See Cho, Eunice, Hass, Giselle, and Saucedo, Leticia M., A New Understanding of Substantial Abuse: Evaluating Harm in U Visa Petitions for Immigrant Victims of Workplace Crime (June 12, 2015), Georgetown Immigration Law Journal, Vol. 29, 2015, UC Davis Legal Studies Research Paper No. 439, available at SSRN: https://ssrn.com/abstract=2617686.
10 See 8 C.F.R. § 214.14(b)(4).
11 For a more detailed explanation of the territorial proof requirement see USCIS Form I-918: Instructions for Petition for U Nonimmigrant Status and Supplement A, Petition for Qualifying Family Member of U-1 Recipient (12/02/21) at p. 2, available at Form I-918, Supplement A, Petition for Qualifying Family Member of U-1 Recipient (uscis.gov).
multijurisdictional facts are present or the qualifying crime is based on the attempt, conspiracy, or solicitation to commit any of the named actions.12
4. Victim Helpfulness
The helpfulness of the victim requirement is broken into two separate interrelated elements that must be proven to provide sufficient proof for the applicant to prove qualification for the U Nonimmigrant Status13.
The first element is that the victim has possession of the criminal activity, and the second element is the victim was helpful, is helpful, or is likely to be helpful to law enforcement. Both requirements were placed in the original legislation to ensure victim cooperation throughout the investigation and prosecution of the crimes.14
To ensure that there exists clear proof of victim cooperation and helpfulness to law enforcement, the Form I-918 Supplement B was created and made a mandatory requirement to be included when applying for U Nonimmigration status.15
The signing of the Form I-918 Supplement B is a discretionary power held by the designated agent.16 The inability to obtain a signed Supplement B will result in the denial of the request at the filing stage.17 It is important to remember that it has only a six-month validity for use from the signing date18.
5. Admissibility
Noncitizen admissibility is a requirement like other forms of nonimmigrant status available under U.S. immigration law19. USCIS will assess the petitioner’s admissibility when determining if the noncitizen can be granted the U Nonimmigrant status. Examples of grounds of inadmissibility include illegal entry into the country, criminal and related grounds, and working without authorization20
If a noncitizen has present inadmissibility issues, it may be waived using the I-192 Application for Advance Permission to Enter as a Non-Immigrant21. If needed, the I-192 Application can be filed with the I-918 and if adjudicated favorably will enable the noncitizen to enter the U Visa status without admissibility issues22.
6. Conclusion
To increase one’s chance of success with the nonimmigrant U Visa application, the attorney should analyze each of the five factors in turn and then examine how these interrelate. If one demonstrates that evidence not only fits each of the five elements but also links together across multiple areas, this approach will lead to a stronger legal argument.
To increase one’s chance of success with the nonimmigrant U Visa application, the attorney should analyze each of the five factors in turn and then examine how these interrelate.
The USCIS Policy Alert published June 14, 2021, signaled that the current federal administration holds true to the original intent of the U Nonimmigrant Status.23 This 2021 policy provides interim relief including work authorization and continued presence protecting applicants from deportation. The 2021 policy change helps to ensure that the Nonimmigrant U Visa remains a viable option for clients.
COLIN ABBOTT is an associate attorney with Beach-Oswald Immigration Law & Associates, PC. 888 17th St. NW, Suite 310, Washington DC. For the past 20 plus years, Abbott has lectured and written on immigration law and has assisted clients from throughout the world to secure immigration benefits.
12 For example, a qualifying criminal activity is fraud in foreign labor contracting. This crime usually involves the acts of multiple individuals located outside of the United States. In such a case it is necessary to provide evidence that meets the territorial requirement and or the violation of American law requirement. See U.S. Department of Labor, Wage and Hour Division, U and T Visa Certifications, available at https://www.dol.gov/agencies/whd/immigration/u-t-visa.
13 See 8 C.F.R. § 214.14(b)(2), 8 C.F.R. § 214.14(b)(3).
14 See DHS, U Visa Law Enforcement Resource Guide 7 (2019) at 8–9.
15 See 8 C.F.R. § 214.14(c)(2)(i),
16 See DHS. U Visa Law Enforcement Resource Guide 7 (2019) at 9-10.
17 See DHS. U Visa Law Enforcement Resource Guide 7 (2019) at 2.
18 See 8 C.F.R. § 214.14(c)(2)(i),
19 See INA § 212, 8 U.S.C. 1182.
20 See INA § 101(a)(15)(u).
21 See INA §212(d)(14).
22 See 8 C.F.R. § 214.14(c)(2)(iv),
23 USCIS, Policy Alert, PA-2021-13, available at https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210614-VictimsOfCrimes.pdf.
TRYING TO SAVE THE WORLD RACHEL ULLMAN
The Law Office of Rachel S. Ullman, PC
ULLMAN OPENED her own firm, The Law Office of Rachel S. Ullman, PC, in 2013. She describes her work as “a series of small projects” and says her “goal as a human being is to try and save the world one person at a time.”
When someone asks you what you do, what do you tell them?
I am an immigration attorney. I help immigrants obtain legal status in the United States and eventually become U.S. citizens. I help immigrant children who have left their home and now need permanent status in the United States. I defend immigrants in immigration court.
What are some of the major trends in your primary practice area(s) that might interest legal professionals in other practice areas?
In 2019, the Board of Immigration Appeals determined that state court orders modifying a criminal sentence would not be given effect for immigration purposes unless the modification was due to a procedural or substantive defect. I believe criminal defense attorneys would be very interested to know this. In the past, a procedural/substantive defect was only required (for immigration purposes) when a criminal conviction was vacated. Now, it is the test even when a criminal sentence is only modified.
What goals do you hope to achieve as chair of the Immigration Law Section?
Educational and pro bono opportunities for our members are the council’s top priorities. We have monthly webinars on topics of interest to our members. We have a day of programming for Legal Excellence Week. We have asked to present a two-hour seminar on crimes and immigration at the MSBA Legal Summit. The council is also planning a Spring Conference. We hope to have our website content moved along, and we are revising an immigration guide that we plan to make available to MSBA members
In addition, we plan to fulfill MSBA’s goal of furthering justice in the community by providing pro bono service as well as low bono service through Judicare. We have an April pro bono event planned and we are hoping that the MSBA will grant our request for space at the Legal Summit so that we can have a pro bono immigration clinic.
What value do you see in MSBA membership and your section membership?
The MSBA is a community of attorneys who are helping each other stay current on the law. If you are interested in immigration law, attend our monthly webinars, Legal Excellence Week, our Spring Conference, and our program at the Annual Conference. If you are looking to volunteer, our section invites you to join us in our pro bono and low bono projects. A by-product of all this learning and volunteering is that you will make friends who will be there for you when you need help and will sit with you at lunch or dinner meetings.
What is the best piece of advice you have received from someone in the legal profession?
Keep photos of your family where you can see them.
What is your fondest memory of your legal career so far?
When I showed up at Baltimore Immigration Court for a merits hearing which was conflicting with my daughter’s white coat ceremony three blocks away at the University of Maryland, and the Honorable Lisa Dornell changed her schedule so that I didn’t miss the merits hearing or the ceremony.
What advice would you give someone in law school or considering a legal career?
I have two pieces of advice: First, think about what you want to do after law school and then speak with attorneys who are presently employed in that type of job. Being a lawyer is stressful so the more you can find out before you leap in, the better. Second, if possible, find a life partner who is calm, intelligent, and generous so that when you are called away to take care of a client emergency your personal life does not fall apart.
What do you do to unwind/de-stress?
I play with my grandchildren most nights over Facebook portal. I talk with my husband and children. I ride my stationary bicycle. In my pre-pandemic life, my husband and I would have friends over for dinner.
What’s an interesting fact about you that no one would guess?
I was a high school cheerleader.
Rachel with her two daughters — Sandy and Jessie — her son Bobby and her husband Dan.
The Justice Reinvestment Act, Expungement, and Community Empowerment
BY CHRISTOPHER SWEENEY, ESQ., PHILLIP WESTRY, ESQ., AND JASON WRIGHT
The Justice Reinvestment Act (JRA) was signed into law in 2016, to much fanfare from justice reform advocates with the hopes of reducing the prison population, violent crime, and recidivism. Such large-scale change to the justice system requires monitoring and targeted reforms. The JRA was a major step forward, additional positive changes occurred in subsequent years, and we are hopeful about future improvements that continue to strengthen our justice system and our communities.
THE MARYLAND VOLUNTEER LAWYERS SERVICE (MVLS) celebrated the passage of the JRA because we work with hundreds of clients every year seeking expungement. Additionally, our Workforce Development Project has longstanding partnerships with occupational training programs in Baltimore City. These programs provide job skills training and certification in welding, machine operation, nursing, pharmacy tech, construction, and weatherization. These programs prepare Baltimore residents for in-demand jobs and a brighter future. MVLS offers wrap-around legal assistance to program participants to ensure legal barriers to employment are removed. Many of our workforce development clients receive expungement help.
Before the JRA, our Workforce Development Project connected with many clients who were struggling to find work or housing because of guilty dispositions that were, in some cases, decades old. When these individuals would ask about expunging their old charges, noting that they hadn’t had any run-ins with the law
since, we at MVLS would have the unfortunate task of informing them that despite their demonstrably good behavior, the law stated that the charges would never go away. With the implementation of the JRA, some of these clients found a pathway to expungement that had previously been impossible. Given a 10- or 15-year waiting period with no subsequent convictions, guilty dispositions for certain crimes could now be removed.
One specific client of ours comes to mind when considering the opportunities this legislation has afforded. Randall reached out to us and shared that he had recently pursued work as a security guard, but that his efforts had hit a snag when his would-be employers ran his background check. After finding a few guilty charges from well over 30 years prior, Randall was told that so long as the charges remained, they would not be able to offer him the position, despite how desirable as a candidate he otherwise was. Having worked with Randall on expungement before the implementation of the JRA, he immediately called us to see if anything could be done. After a bit of research into the specifics of his charges, we were overjoyed to inform him that we would be able to get all his charges removed, and file them all simultaneously, as they were all now applicable to do so under the JRA. Randall, along with many others, can now pursue their future knowing that those parts of the past will no longer weigh down their efforts at a better life.
in good standing. A missed payment of fines and fees or simple infraction could lead to their driver's license being suspended. Being able to get to and from a reentry program, access childcare, shop for groceries, go to work, or attend school often requires the use of a car. A positive step towards the goal of JRA was the recent passage of a bill, which removes the possibility of incarceration for driving on a suspended license and presents new opportunities for expungement. For our clients, those suspended licenses were not due to ignoring citations, but being unable to afford the fees to avoid suspension. For those facing financial hardships, driving on a suspended license is often not a matter of disregard for the law, but a choice between risking being pulled over to put food on the table, or skipping a shift and potentially losing their job. Additionally, in our experience, we most often see Black and brown clients facing these difficult decisions. We have seen hundreds of clients where a single suspended license charge was the sole reason other charges were unable to be expunged. This is a major improvement for those clients. Additionally, Marylanders charged with fourth-degree burglary now have the ability to file for expungement of their criminal record. While fourth-degree burglary is a misdemeanor offense, that has long been a hurdle for Marylanders seeking to expunge their criminal records until now. These are wins and that should be celebrated.
The JRA has been a paradigm-shift in how Maryland treats criminal record expungement. In the years since
For those facing financial hardships, driving on a suspended license is often not a matter of disregard for the law, but a choice between risking being pulled over to put food on the table, or skipping a shift and potentially losing their job.
Although the JRA dramatically improved Randall’s life, we have continued to advocate for changes that would improve the lives of clients who fall through the cracks of the JRA. Fortunately, a few recent bills address some of those concerns. We found that many of our clients had issues gaining employment after participating in workforce programs because their driver's license is not
the act’s passage, the legislature has continually expanded expungement access, and advocates have regularly called for even more improvements. This past legislative session, the General Assembly passed automatic expungement, something that advocates have long fought for. Cases where all charges resulted in a nolle prosequi, acquittal, or dismissal will be automatically removed from
a person’s record after October 1, 2021. Though the law as it currently stands helps thousands of Marylanders move forward with their lives by erasing criminal cases, it can be useful to set our sights even higher. Expungement of convictions is one area that could be further improved.
or licensure requirements. In the attempt to create a comprehensive list of “minor” convictions that should be eligible for expungement, many common items were left out. Advocates will be familiar with the much-discussed omission of fourth-degree burglary, despite the inclusion of first-, second-, and third-degree burglary (this was
Expungement is a relatively simplistic legal area that can have an immense effect on a person’s life, possibly being the difference between gaining or losing employment.
The rules for expungement of criminal convictions fall under § 10-110 of the Criminal Procedure Article. This statute contains an enumerated list of specific criminal violations, both misdemeanor and felony, and singles them out as potentially expungeable if the petitioner meets certain requirements. This is essentially a mirror image of the “non-conviction” statute, Criminal Procedure § 10-105, which allows for expungement of cases based on disposition alone, without specifying the type of charge. If we want to re-think the expungement of convictions, we should look to the original § 10-105 for guidance.
The expungement of convictions could be simplified and expanded by changing the statutory model to an “all cases, with exceptions,” much like § 10-105. Though this sounds broad, even radically so, at first, such a model could appease those on both sides of the aisle. Opponents, or at least skeptics, of expungement expansion reasonably point out violent and disturbing offenses that a person should not be able to hide from their record. A statute that allowed for expungement of all misdemeanors, subject to the same or similar prerequisites that exist now, would avoid flirting with the types of cases that typically make people uncomfortable in these conversations. And it’s possible that a statutory scheme allowing the expungement of felonies, with many particularly offensive cases excepted, would be even simpler than what exists now.
The current § 10-110 is beleaguered by an extensive list of very specific crimes, many of them “white collar” or having to do with violations of obscure administrative
corrected in the most recent legislative session). Other incongruities are the inclusion of second-degree malicious burning of property but not misdemeanor malicious destruction of property, or the inclusion of public intoxication but statutory vagueness on allowing expungement of “open container.” Though the discussion on which crimes to exclude would be vibrant, a statute that took an “all of these, except . . .” instead of an “only these” approach would greatly simplify the expungement process and avoid some of the unusual pitfalls of the current model.
The JRA was an act of comprehensive criminal justice reform, expungement being only a piece of the larger picture. For those inside the legal services community, the expansion of expungement has been one of the most impactful legal developments of the last few years, allowing attorneys to assist thousands of clients in clearing their criminal records. As Maryland continues to see the benefit that expungement has for people looking to move forward with their lives, we hope to see continued advocacy on this issue. Expungement is a relatively simplistic legal area that can have an immense effect on a person’s life, possibly being the difference between gaining or losing employment. A clean criminal record can also mean access to housing. Expungement benefits communities by allowing people to move on from their pasts and seek stable lives. Employment and housing means reduced recidivism, stable families, and community empowerment. In this way, not only those receiving expungement benefit—society as a whole benefits from having stable communities and employable citizens.
Workers’ Compensation
• Substantive and procedural aspects of the Workers’ Compensation process, hearings and appeals
• Outstanding faculty, led by Ted Cornblatt, editor of the Workers’ Compensation Manual
• Strategic considerations and the mechanics of workers’ compensation practice from both the claimant and defense perspectives
WORKING TOWARD A SAFER CITY
JETTA ALBERTS
Assistant State's AttorneyBaltimore City
Jetta Alberts decided she wanted to prac tice law when, as a child, she discovered the television show Assistant State’s Attorney in the Narcotic and Firearms Unit at the Baltimore City State’s At torney’s Office, she prosecutes crimes involv ing drug trafficking crimes, especially those involving firearms. “Getting a gun off the street is one step closer to a safer Baltimore. The citizens of Baltimore deserve to feel safe in their communities,” she says.
ALBERTS, WHO HAS been in practice for almost two and a half years, sits on the MSBA’s Board of Governors. She took some time to share what she has learned and what she hopes to accomplish as her career progresses.
What is the best piece of advice you have received from someone in the legal profession?
Stay true to yourself and your morals.
What is your fondest memory of your legal career so far?
So far it’s been participating in the National Public Defender’s Conference in Houston, Texas. It was an honor to be surrounded by intelligent, innovative individuals, committed to providing top-tier representation to indigenous individuals. It was truly amazing.
What are your goals for yourself in your current role?
I would like to continue to grow and gain education as a lawyer, and educate officers that are in direct communication with the public to ensure they are not violating anyone’s constitutional rights granted by our constitution.
What is one thing you would change about your current role if you could? Eliminating mandatory minimums.
What are some of the challenges you face in your current role?
As with any job, the pandemic has created a lot of challenges, in the legal world, the constant delays in trials; a lot of unknowns.
How has the MSBA helped you in your legal career?
The MSBA provides ample on-demand legal courses, webinars, etc. I also use MSBA Connect and find that the individuals that participate on this platform are always providing knowledge and expertise.
Tell us about what we won’t find on your resume … What is your favorite hobby? What do you do to unwind?
Some of my favorite things to do include, traveling; spending time with family, and trying new things. My next adventure is parasailing. I listen to music to unwind. It is pure therapy
How do you give back to your community?
Prior to the pandemic, I participated in a number of volunteer clinics provided by MVLS. I had the opportunity to draft wills, powers of attorney, and health care directives; I have also taken a few clients from the MVLS Pro Bono portal. I take joy in helping individuals plan for their future. I have also joined the Board of Pay It Forward Networking Group, LLC. It’s a nonprofit focused on bringing community resources to those who have limited information as to those resources with a focus on empowerment of women who are passionate about the business/entrepreneur journey.
I would like to continue to grow and gain education as a lawyer, and educate officers that are in direct communication with the public to ensure they are not violating anyone’s constitutional rights. “
COUNTY COUNSEL, CHILDREN'S AUTHOR
MORENIKE OYENUSI
Senior Assistant County Solicitor - Howard
County Office of Law
Morenike Euba Oyenusi “entered the legal profession by reason of default.” She went to university in England “where law is typically an undergraduate degree and people make the decision to study law at an earlier stage than is common in the United States.” She was young for her class and began her law degree at the age of 17. She wanted to study languages, but her parents advised her to consider a profession that would give her a better chance of making a decent living. By a process of elimination, she arrived at the law, and eventually graduated from the University of London, and as Master of Law from Cambridge University, Oyenusi had no doubt that she would enter the legal profession.
Oyenusi now works as the Senior Assistant County Solicitor for the Howard County Office of Law, where she provides advice and counsel to officials in various county departments. She is also a writer and has written two children’s books, “Chasing Butterflies in the Sunlight” and “Isaiah and the Orchestra of Sounds.” The first was published in 2020, and the second will hopefully be published in the spring of this year.
Oyenusi recently shared more about her life and career with the MSBA.
Tell us a little about a passion project related to your professional career right now.
I am passionate about a project that I am currently working on which will help make Ellicott City safer and better protected against flooding. My goal for all my projects is to give the best advice, innovative solutions, and support to my clients to enable them to attain their visions for the County and the community.
What is your fondest memory of your legal career so far?
The years that I spent at the Office of the Attorney General of Maryland, back when Joe Curran was the Attorney General. He was so honorable and made us proud to work at the Office, which he said was the best law firm in Maryland.
What do you love about your current role?
My clients are easy to get along with, they trust the advice that you give, and are committed to public service.
What is one thing you would change about your current role if you could?
Sometimes, I miss some of the major state-wide transactions that I worked on when I was with the Office of the Attorney General, but there isn’t a lot otherwise that I would change.
How are you involved with the MSBA?
I am currently the Real Property Section Council Penultimate Past Chair. I was on the Board of Governors last year, and for several years, I have either co-chaired or been a member of the committee that organizes our section’s annual Advanced Real Property Institute. I have also been on the faculty of speakers at ARPI.
How has the MSBA helped you in your legal career?
The MSBA has offered some great CLE programs which have helped in making me a better lawyer. I also like the camaraderie with members of my section council, the sense of belonging to an association of fine lawyers, all of whom are selfless and dedicated to making the Maryland Bar fantastic.
How do you give back to your community?
I am active as a minister and administrator at my church and as the Board of Trustees Secretary. I have mentored law students and taught new lawyers’ professionalism courses at the Court of Appeals. I have held various roles at my children’s schools: PTA Vice President, class representative, hospitality chair—you name it, I have done it. I have also been a United Way campaign coordinator for Howard County’s annual giving program.
What’s your favorite vacation spot?
I have visited many sublime places: Tunisia, Morocco, Egypt, Rome, Venice, Paris, Edinburgh, Jamaica, Dubai, Santa Fe, and San Francisco, to name a few, but by far my favorite vacation spot must be a place that I consider my home away from home, London. I never get tired of visiting. I am enticed by its quirkiness, charm, familiarity, and history
Court of Appeals Says Both Legal Parents Must Consent to Establish De Facto Parenthood
BY SALLY B. GOLD, ESQ.
IN E. N. V. TR. , Sept Term 2020, filed July 12, 2021, the Court of Appeals has published a well-researched and comprehensive opinion on de facto parents. E.N. (Mom) and D.D. (Dad) had two children. They all lived together as a family until D.D. was incarcerated. After spending approximately four years in prison, D.D. was released and began a relationship with T.R. The children moved in with D.D. and T.R. and lived with them for several years until D.D. was incarcerated again. During the time the children were living with them (over a two-year period), Mom visited once. For a period of time after Dad's second incarceration, the children continued living with T.R. At some point, Mom, unsuccessfully, tried to take them from T.R. She ultimately filed suit. After a five-day trial, the court concluded that T.R. was a de facto parent. The court ordered joint legal custody, with T.R. having tie-breaker authority, and physical custody to T.R. with visitation to Mom. The Court of Special Appeals affirmed the trial court's decision. The Court of Appeals reversed, holding that in the absence of consent by both legal parents to the establishment of a de facto parent, a de facto parent
relationship could not be established. The Court held, "where there are two legal (biological or adoptive) parents, a prospective de facto parent must demonstrate that both legal parents consented to and fostered a parent-like relationship with a child, or that non-consenting legal parent is an unfit parent or exceptional circumstances exist." Slip Op., p.5 (emphasis supplied).
It is hard (simply reading this decision and not reading the transcript), to understand why what appears to be Mom's abandonment/ disinterest over a period of years was not, by the Court of Appeals, seen as implied consent, neglect, and/or abandonment. There is nothing to suggest that Mom didn't know where her children were or that Dad kept her from knowing. She made little effort to see them or to
Although the Court clearly recognized that at the heart of any custody dispute the best interest of the children is paramount, did the trial court get the evidence it really needed to support its decision?
take any legal steps to secure access. There is no reference to her payment of child support. Why aren't these actions or inactions evidence of unfitness or exceptional circumstances? Was this a case where the facts were simply not properly placed before the Court? Why no best interest attorney? Why was a custody evaluation, sought by T.R., denied? Although the Court clearly recognized that at the heart of any custody dispute the best interest of the children is paramount, did the trial court get the evidence it really needed to support its decision? Was this an example of the saying “bad facts make bad law”?
There was a lengthy and well-reasoned dissent, asserting that the majority opinion "is a step backwards along the path to a modern understanding of the best interests of children . . . ." Slip Op., Dissent, P.l. The dissent focused on the rights of children to "maintain relationships with parental type caregivers after those relationships have been formed and fostered for a significant period of time by at least one legal parent.” Id .at 6. The dissent noted that the bond between the third party and the child “is no less real” if fostered by only one of two legal parents. The dissenting opinion, while recognizing the distress of the legal parent who might lose custody to a de facto parent be forced to share custody, places the child's needs over that of the adults', in a way that the majority opinion does not seem to do.
Not two months later, the Court of Special Appeals issued its decision in B.O. v. S.O., No. 1202. September Term 2020. In that case, B.O. (the child’s aunt) and S.O.'s (Mom) sister began caring for the child, K., when he was just a few months old. He had been removed from Mom's custody due to child neglect and domestic violence. B.O. filed a Protective Order against Mom, which she contested; B.O. was granted custody for one year. She retained custody, even after the Order's ex-
piration, for approximately two more years. Mom entered a substance abuse program which, at some point, became residential. While Mom was there, K. did spend some overnights with her. There were a series of protective orders sought by both Mom and Aunt against each other, right up until the merits custody trial. Dad was not a participant in any court proceeding, as he was in prison serving multiple life sentences for murders.
The trial court, after determining that Aunt could not establish that Mom had consented to a parental relationship between Aunt and K., awarded custody to Mom. It did not need to consider the other factors set forth E.N. v. T.R. (that the alleged de facto parent and child lived together in the same household, that the alleged de facto parent assumed the obligations of parenthood, and that the alleged de facto parent and the child had a bonded and parent/child-like relationship). Initially the trial court found, after Aunt's case, that there was implicit consent by Mom because she had never sought to have K. returned to her and, although there was no "explicit" statement, oral or written, there had been a demonstration of consent to the fostering of the relationship between K. and Aunt. At the conclusion of the case, however, the trial court found differently, citing that Mom had contested the original award of custody, she had attempted to have the child returned to her, there were no written or oral statements from Mom demonstrating consent and, in fact, Mom had challenged every effort by Aunt in the current litigation. The court found credible Mom's effort to see K. and regain custody. The court, also, while acknowledging Mom's mental health issues and substance abuse, found either an absence of proof or rehabilitation. The court found no necessity to conduct the best interest analysis because Aunt was not able to prove the threshold issue of a parent's consent to the establishment of the de facto parent relationship.
Several questions arise. If the original caretaking of K. by Aunt was because of Mom's neglect and substance abuse issues, should her failure/refusal to consent at that time be dispositive? A drug addicted neglectful parent is, presumably, someone who is not capable of rational thought or acting in a child's best interest. Is that parent even capable of giving consent? Is their challenge of any efforts by third parties to get the child to a (presumably) safe and loving environment an action in the child's best interest? Does that initial failure of consent dictate forever the determination of de facto parenting? Yet if this Mom's challenge to Aunt's custody and her continued efforts to seek access demonstrate lack of consent, how is it that in E.N. v. T.R., Mom's failure to make any effort to see her children, file suit, or pay support was not seen as implicit consent to the establishment of de facto parenthood for T.R.?
Clearly, these kinds of cases are very fact specific. And, yes, you don't even reach a best interest analysis unless one can establish de facto parenthood. But one does have to worry about the well-being of the children in both of these cases and whether their best interests are being served.
Mobile Library Law Center Uses Bar Foundation Funds to Take Lawyers Where They're Needed
On August 9, 2021, Baltimore County Public Library launched the Mobile Library Law Center with the mission to provide complimentary legal services to underserved communities, thus becoming the first public library system in the country to run such a program.
FOUNDATION FOR BALTIMORE COUNTY Public Library facilitated contributions to this initiative, which is funded entirely by grants from community partners, including the Maryland Bar Foundation. With this project, and in partnership with Maryland Legal Aid, legal services available in our branches through the Lawyers in the Library program are now taken into the community, addressing barriers to access and increasing knowledge of available services that can markedly improve lives. This new vehicle and new service model increases the reach and impact of both the library and our partners, while meeting the library’s strategic goal of improving underserved residents’ access to resources and programming.
The Mobile Library Law Center vehicle is retrofitted to include a private meeting space that includes a small table, chairs and a curtain so that attorneys can speak with clients in relative privacy and comfort. The vehicle includes an accessibility lift directly into the one-on-one service area. Solar panels on the vehicle reduce the vehicle’s carbon footprint.
Currently on the road two days a week for about four hours per day, library staff on board for each visit of the Mobile Library Law Center include a driver from the Adult & Community Engagement department and a librarian from the local branch. Library staff can answer questions about our services, create library cards and provide instruction while attorneys meet with individual clients. Attorneys from Maryland Legal Aid’s Communi-
under the awning allows the library to promote additional services, shows relevant training and informational videos often made with Maryland Legal Aid and allows us to expand instruction.
Foundation for Baltimore County Public Library is so grateful to our community partners for making this program possible!
Library staff can answer questions about our services, create library cards and provide instruction while attorneys meet with individual clients.
ty Lawyering Project, which places highly skilled lawyers directly in under-served neighborhoods, staff the Mobile Library Law Center and provide free, direct service to qualified individuals for civil legal issues, including bankruptcy, child custody and support, debt collection, expungements, foreclosure, government benefits, landlord/tenant, veterans' benefits and wage claims. While the office area is for one-on-one appointments with the attorney, this is still a library vehicle — there are bookshelves with a curated collection of legal books on a variety of subjects from our collection, including divorce, custody and expungement. A copy of the library’s Jobs and Career notebook is available for anyone to use, and includes available jobs and expungement information, as well as copies of the library’s Resume Toolkit. Signage in the vehicle promotes some new library services we offer: Social Worker in the Library, My Librarian (one-on-one) appointments, notary and passport services to name a few.
Outside the vehicle, staff conduct intake and offer research resources and referrals under an awning that can also act as a waiting area. A removable digital monitor
About Foundation for Baltimore County Public Library
Foundation for Baltimore County Public Library was founded in 1998 to support Baltimore County’s commitment to a superior public library system. Foundation for Baltimore County Public Library views reading as a critical and fundamental tool for overall connection to the community, development of curiosity and exploration of the world. The Foundation motivates all customers of Baltimore County Public Library, regardless of age or economic circumstance, to embrace lifelong learning. The Foundation’s support of the library is made possible by contributions by individuals, businesses and other foundations. Baltimore County Public Library plays a vital role in the community with 19 branches, circulation exceeding 10 million items and providing computer access to nearly 1.1 million people. Baltimore County Public Library serves annually 5 million visitors to its branches and 5.5 million visitors to its website. The library continues to be a driving force in providing educational, cultural and enrichment activities to the citizens of Baltimore County.
INSPIRING CHANGE
DIVYA POTDAR
Principal - Diva Law, LLC
Divya Potdar is one of America’s Top Personal Injury Attorneys and one of Maryland’s Top 100 Women for 2021. Potdar has served the legal profession through her work as a Board of Governor member for the Maryland Association for Justice and the American Association for Justice. She has been involved with the MSBA Young Lawyers Section (YLS) since she started practicing in 2012, serving on the Board of Governors, chairing the Diversity Committee and the Health & Wellness Committee, and serving as the Baltimore City representative.
Photo courtesy of Beverly Funkhouser Photography
Potdar immigrated to the United States from India in 2000 and was raised by a single mother who stressed the importance of education and professional degrees while growing up. When Potdar applied for colleges her mother was instrumental in advising the only way for her to live as an independent, financially self-sufficient, and minority woman in America was to become a doctor, lawyer, or engineer. Taking her mother’s advice she entered the Pre-Law/Political Science program at Towson University and then attended law school at the University of Baltimore.
What is the best piece of advice you have received from someone in the legal profession?
After practicing law for approximately six years and trying close to a hundred civil trials, I was encouraged to start my own firm. The person who suggested this noticed I was building a reputation for myself, working long hours, and developing relationships with clients who I was passionate about helping, all qualities of a successful lawyer. Now, four years later I am working longer hours, but also running a growing law firm. I had
them. Being by their side through some of their most challenging times and helping them is very satisfying. Many of my clients come from a lower socio-economic and disenfranchised portion of the population and I couldn’t be happier serving as their voice.
What is one thing you would change about your current role if you could?
Nothing. I am very happy with my work role and work/ life balance. Juggling being a trial lawyer and running a business is a challenge at times, but I wouldn't change it at all.
What are your professional goals this year?
Try some jury trials.
How are you involved with the MSBA?
I have been involved with the MSBA Young Lawyers Section (YLS) since I started practicing in 2012. I chaired the Diversity Committee of the YLS for a few years, was the Baltimore City representative to the YLS for a couple years, and chaired the Health & Wellness Committee of the YLS during COVID. I also served on the Board of
Juggling being a trial lawyer and running a business is a challenge at times, but I wouldn't change it at all. “
mistakenly been called “Diva” (as opposed to Divya) all my life in America. The same person that suggested I start my own firm also advised me to embrace the mistake and make it your brand! The catchy, unique, mistaken name turned into my brand as “Diva Law, LLC.”
What is your fondest memory of your legal career so far?
Almost trying a case with my husband was fun. The case settled after an amusing jury selection process.
What is the one piece of advice you would give someone in law school or considering a legal career?
Practice in an area of law that you enjoy. If you are not passionate about what you do, you can get burned out very fast in the legal field.
What do you love about your work?
I absolutely love helping people. I represent individuals who are harmed and vulnerable. Many of my cases go on for years. It is enjoyable getting to know my clients and their families over the years and building a bond with
Governors for a two-year term. I took a break this year, but plan on coming back to chair a committee next year when my friend Kerri Smith is in charge of the YLS.
How has the MSBA helped you in your legal career?
MSBA has helped me grow my professional network. It has also given me the opportunity to plan and participate in several great educational programs. MSBA has many resources for solo/small firm owners, like health insurance. I have taken full advantage of the health insurance program. I have also developed several lifelong friendships through the YLS.
When did you become a Fellow of the Maryland Bar Foundation?
I became a MBF fellow in 2020, right in the midst of a pandemic.
Why is the work of the Maryland Bar Foundation important to you?
The Maryland Bar Foundation is a phenomenal organization that gives grants to local non-profit organizations
who aid underprivileged communities. These grants help abused children and women, immigrants, the LGBTQ+ population, low-income Marylanders, and several other sectors of our community. The Foundation also works to improve access to justice and facilitate the administration of justice. These are all missions important to me and demonstrated by my volunteer work in local, state, and national bar associations. The Foundation's Fellows are the boots on the ground carrying out the Foundation's missions. The Fellows are attorneys with diverse professional and demographic backgrounds and help expand access to justice in Maryland's local communities. The Fellows maintain the honor and integrity of the legal profession.
What other organizations are you involved in?
I guess I am somewhat of a "bar junkie" or—in MSBA Executive Director Victor Velazquez's words—a "hyper volunteer." I am currently on four bar association councils/boards. I am the Membership Committee Chair for the Bar Association of Baltimore City. I have been involved in the City Bar and Young Lawyers Division since graduating from law school. I am on the Board of Governors of the Maryland Association for Justice , an organization whose goals are to preserve access to the court and promote the advocacy skills of lawyers who represent the injured and vulnerable. Finally, I am on the Board of Governors of the American Association for Justice, as one of the four Governors from the state of Maryland.
What do you do to unwind/de-stress?
Play with my Chocolate Labradoodle Brunello—he gives the best therapy.
The Maryland Bar Foundation Fellows maintain the honor and integrity of the legal profession. “
From Complete Despair to a Great Life in Recovery
BY A RETIRED JUDGE
“
MY JOURNEY TO RECOVERY began on May 6th, 1995, in a hotel room in the Little Havana section of Miami. That was the turning point for me. I had for some years developed a tolerance for alcohol, and although still able to function reasonably well, it was a problem. I had been appointed to the bench at the age of 30. I had established a very successful private practice. Eleven years later I suffered a serious back injury, and after two surgeries I could not function without pain. I was seen at a pain clinic in a Baltimore hospital and given a variety of narcotics including morphine to be able to function. I was evaluated In Texas for the implantation of a morphine pump but decided against that course of action. I took a medical retirement from the bench after 11 years of service. Life was unbearable, and there seemed to be no end to living in chronic pain.
I started to increase my alcohol consumption along with the pain medications. I was admitted to the hospital with acute pancreatitis and was told that I needed to go to an inpatient rehabilitation program. I went to Father Martin’s [Ashley Addiction Center] not so much for myself but to help my marriage. I completed the program and upon returning home managed to go to AA meetings most every day for a couple of months. I was feeling better, and the thought came over me that I could safely drink nonalcoholic beer. I tried that for a couple of weeks and then decided that I could just get two Jack Daniels miniatures and limit myself to that amount each day. It only took a couple of weeks before that plan crumbled, and I was back to a pint a day.
I knew I was in trouble again and, at the urging of my wife and friends in AA, I agreed to go to Suburban Hospital for a refresher course. This time I took my passport, cash, and credit cards just in case. I got to the hospital on a Saturday. The clinical staff was off, so I was welcomed into a room with several men who were there for either crack cocaine addictions or heroin. They asked me what my problem was and I told them I drank too much. Their response was, “so what,” and that I did not need to be in treatment with them. With
that I decided to go to Belize, where I could be left alone to drink as I wished. I left the hospital on Sunday and got a flight to Miami, where I could then make a connection to Belize. The liquor stores were closed, so I took a cab to a nearby hotel and gave a bellman $100 for a fifth of Jack Daniels. Then off to the airport.
I arrived in Miami with the notion that I would see the sights for a week and then take a flight to Belize. So the story is that I left a loving wife and family to live in a foreign country without anyone knowing where I was. I stayed in the hotel room for a week and drank all that I could. It came to the point where I could feel the beginning signs of the pancreatitis developing. I had been around AA long enough to figure out that I had two choices: Drink until I die, or ask God for help. I had never been one to make foxhole prayers. I simply asked God to take away my compulsion to drink. I felt a warm feeling come over me that everything would work out if I just did not drink and went back home and worked the AA program honestly.
I flew back to Maryland and arrived to a wife who did not know what to do with me and certainly did not want me to come into the house. That began what I call the journey back to the big bedroom. It took time. I immediately contacted a friend in AA. I committed to attending two AA meetings a day and one on one counseling with an addiction therapist twice a week. I finally got back to the big bedroom. I had done 180 AA meetings in 90 days. I found a sponsor and started working the steps of AA. The first year I continued to attend two meetings a day and worked part time. The temptation to drink gradually evaporated. I began working the steps and my life continued to improve. I had a third back operation and the pain became manageable. I could live without pain medication and alcohol. I have met some of the most caring people in the world through the fellowship of Alcoholics Anonymous.
I failed to realize at the outset of this journey that you could actually celebrate Christmas, New Year's Eve, St. Patrick’s Day, the Fourth of July, sporting events, etc. without drinking. To my surprise there are a whole host of people that celebrate these events without drinking. I would have sworn that everyone at those functions was drinking. My focus had always been on those people that did drink.
The first year of sobriety took a lot of personal effort and commitment to a new way of life. It was difficult at times, but knowing the only other course for me would be a disaster, I continued forward with the help of my sponsor and network of new friends in AA. All of those friends who started this journey with me have remained sober by staying connected to the fellowship and following the suggestions of their sponsor. As time passed the notion of drinking just went away.
I have in sobriety traveled internationally to Argentina,
Europe, and Asia. AA was available in all of those places. It is an amazing sense of relief to know that you are never
Twenty-six years later I have found an entirely new way of life. The joys of continued sobriety are immense.
alone. Early on I became involved with the Maryland Lawyer Assistance Program program. Richard Vincent was the Director at the time and provided guidance in my first few years. I will be forever indebted to him and all of those who helped me in my road to recovery. My wife has now become a tremendous advocate for the AA program having witnessed firsthand how transformational the journey can be in one's life.
Twenty-six years later I have found an entirely new way of life. The joys of continued sobriety are immense. The kid's spouses have never seen me drink nor the grandchildren. They just know that I choose not to drink. I have experienced the joy of helping others on their own journeys to recovery. I have been able to achieve a sense of inner peace that I never dreamed was possible. Being willing to follow some simple directions was all that was necessary.
MSBA’s Lawyer Assistance Program is requesting anonymous personal stories. The stories shared have saved lives and helped many lawyers decide to seek help. If you have a personal story to share, please reach out to Lisa Caplan at lisa@msba.org
TOP ADVOCACY PRIORITY FOR 2022 :
A2JC Succeeds in Securing $25.8M to Fund the Access to Counsel in Evictions Law
At the start of the 2022 legislative session, the Access to Counsel in Evictions law had $0 funding. By the end of the session, A2JC - with the support of the MSBA and other key justice partners - succeeded in securing $25.8M in funding for the law from both the Governor and through the legislature. Funding the Access to Counsel in Evictions law will increase access to justice for many vulnerable Marylanders who would otherwise need to navigate the civil justice system on their own.
Background: Confronting the Access to Justice Crisis
COVID-19 created a health, economic, and civil justice crisis. Even before the pandemic, only a small percentage of Marylanders (about
CONFRONTING THE COVID-19 ACCESS TO JUSTICE CRISIS
20%) received the help they needed to navigate the civil justice system, resulting in threats to their housing, safety and economic security—not because they did anything wrong, but because they did not have the legal help they needed. The pandemic made more people than ever engage in some aspect of the civil justice system, whether through their unemployment insurance application or appeal or because they fell behind on their rent and faced an eviction proceeding in court. Indeed, the need for civil legal aid skyrocketed in every area in the civil justice system, including housing, consumer debt, public benefits, domestic violence, life and health planning, immigration, and more. Funding for civil legal aid, which is primarily dependent on interest rates and court filings, saw precipitous declines, and needed to be shored up.
To confront the COVID-19 Access to Justice Crisis, the MSBA-backed Access to Justice Commission (A2JC) provided distinctive leadership in uniting the access to justice community to face the unprecedented crisis. We partnered with the Attorney General’s Office to help helm the COVID-19 Access to Justice Task Force, and delivered a final report that had 59 substantive recommendations, 41 of which were transformed into bills during the 2021 legislative session and 19 of which are now law, including an additional $9 million in civil legal aid funding and a statewide access to counsel in evictions law.
The New Access to Counsel in Evictions Law
During the 2021 legislative session, the General Assembly passed HB18, making it one of the first state legislatures in the nation to create a statewide access to counsel in evictions program. At its root, the law acknowledges the detrimental impact of evictions to Marylanders, including how evictions:
• exacerbate the public health crisis posed by COVID-19;
• create significant collateral costs for state and local governments;
• cause trauma and increase instability and insecurity for families, especially children; and
• have a disparate impact on Black and Brown households.
The General Assembly sought to address the deleterious effects of eviction and its many collateral consequences by creating the Access to Counsel in Evictions Program (the Program) and recognized that providing tenants counsel in eviction cases is a “proven means of preventing the disruptive displacement of families and the resulting social, economic, and public health costs of such displacement.”
Funding the Access to Counsel in Evictions Law
The Program, to the detriment of Marylanders, had remained unfunded—until recently. Since the legislature passed HB18 in April 2021, A2JC has spearheaded advocacy in concert with key legislators, the Attorney General, the Access to Counsel in Evictions Task Force, the Maryland Legal Services Corporation, and the civil legal aid community, requesting Governor Hogan to provide $11.8 million in start-up funding to Program from the billions of dollars in federal funding coming into the state through the American Rescue Plan and other
Through a coordinated approach with justice partners and dogged advocacy, A2JC is proud to have succeeded in securing $28.5M to fund the first and second year of the Access to Counsel in Evictions law. A2JC's work over the past few years in educating elected officials about the civil justice crisis through multiple high-level task forces helped create the environment necessary for these important strides in funding counsel to be taken.
Key Points in Support of Access to Counsel
Eviction Is a Legal Process Where Counsel Makes a Difference in Case Outcomes
• Eviction is a legal process that is made more efficient and fair when both parties have the same access to legal counsel: 96% of landlords are represented by an attorney or eviction court agent, while only 1% of tenants are represented.
• There are more than 650,000 Rent Court cases per year.
• Some Rent Court cases can be complex, implicating federal, state, and local laws, contract law, case law and regulations.
The Hogan administration has recently committed to allocating $5.4 million from the Emergency
Rental
Assistance Program to fund the Access to Counsel in Evictions Program.
federal laws. The Commission is proud to report that our advocacy with the Governor was partially successful! The Hogan administration committed at the start of the legislative session to allocating $5.4 million from the Emergency Rental Assistance Program to fund the Access to Counsel in Evictions Program.
While this is good news, a large shortfall remained. Thus, we strongly advocated during the 2022 legislative session for the General Assembly to take action! We urged for the passage of HB724/SB662 or other funding bills for the General Assembly to allocate the remainder of $6.4 million in funding to jump-start the Program in FY2023 and for future years funding to stabilize the Program, so the law can have the intended effect of preventing evictions.
With COVID-19 continuing and with approximately 111,000 Maryland households behind on their rent and facing eviction, we argued that implementing HB18 should be an urgent priority for Maryland legislators. The households under threat are overwhelmingly people of color (80%) and have suffered both job and income loss during the pandemic.
The Access to Counsel in Evictions Task Force, which was mandated by HB18 and led by A2JC Commissioners, studied the funding issue and recommended that the legislature look to all appropriate sources of funding, but particularly emphasized jump-starting the Program through one-time federal funding and then seeking a general allocation in the state budget for the Program.
• Over 60% of tenant-respondents had a defense based on the condition of the unit, but only 8% of those tenants were successful in raising the defense without counsel.
• In New York City, which implemented a right to counsel program in 2013, 86% of represented tenants remained in their homes and eviction filings decreased by 30% just through the provision of counsel.
Federal Government Support for Access to Counsel
• The federal government has made clear that funding to states from federal rescue plans should be used to fund legal representation to prevent evictions. Treasury Secretary Janet Yellen, U.S. Attorney General Merrick Garland, and Secretary of Housing and Urban Development Marcia Fudge echoed this point in a letter to state and local officials across the country, explaining that “tenants are more likely to avoid eviction and remain stably housed when they have access to legal representation. Legal counsel can also aid in the successful completion of [rental assistance] applications.”
Other States' Funding of Access to Counsel
• Numerous states and localities have responded and allocated millions toward counsel in eviction cases including in Tennessee, Wyoming, Virginia, Maine, and Michigan.
FORGING THE BLUEPRINT
TO REALIZE THE TRANSFORMATIVE
VICTORIA SCHULTZ
Associate Dean for Administration, University of Baltimore School of Law
Commissioner, Access to Justice Commission Chair, Access to Counsel in Evictions Task Force
Executive Director, Maryland Legal Aid, effective May 31, 2022
Photos courtesy of Beverly Funkhouser Photography
“
When Victoria “Vicki” Schultz decided to become a lawyer, her decision was motivated by her passion for social justice and her conviction for building a more just and equitable society. Those same tenets continue to ring true today and have done so throughout her career as a legal professional and servant leader.
SCHULTZ GREW UP in Oak Park, Illinois, a small community just outside of Chicago, at a time when the civil rights movement was making headway and federal legislative policy aimed to address issues like voting rights and fair housing. “When Oak Park made the decision to
eventually led her back to her alma mater, where she has served as the University of Baltimore School of Law’s Associate Dean for Administration since 2012. “I came back to Baltimore to work with the next generation of lawyers . . . and I continue to combat injustice where I see it and help others combat injustice,” says Schultz, who is a Commissioner on the Maryland Access to Justice Commission (A2JC), an umbrella organization that brings together civil justice partners across the legal profession to address injustice and break down barriers preventing equal access to the civil justice system.
Schultz recounts how the concept for an A2JC came to fruition in 2008 under then-Chief Judge Robert M. Bell
I think one of the most important skills for lawyers, and for any of us, is the ability to listen, to have empathy, and to bring compassion to the work that we do.
pass a racial diversity policy in 1968, that really fundamentally shaped me,” says Schultz. Notably, Oak Park passed its local fair housing ordinance just months after the assasination of Dr. Martin Luther King, Jr. Interestingly, civil rights, but in advance of the passage of the Fair Housing Act, housing policy, and social justice have become recurring themes in Schultz’s career. After earning a B.S. from Dickinson College in Pennsylvania, Schultz went on to obtain her law degree from the University of Baltimore School of Law.
“I think one of the most important skills for lawyers, and for any of us, is the ability to listen, to have empathy, [and] to bring compassion to the work that [we] do and to seek to understand more about [our] clients or the entities [we] wish to represent,” says Schultz, who began her career as a litigator at Maryland Legal Aid before moving to county, state, and ultimately, the federal government. In Baltimore County, Schultz worked to marshall government resources and funding for civil services and community projects across the state. Later she steered reform efforts to address the foreclosure crisis in Maryland’s Department of Labor Licensing and Regulation (DLLR). She then led fair housing and fair lending policy in the Obama administration, where she served as Deputy Assistant Attorney General in the U.S. Department of Justice Office of Civil Rights.
Schultz’s passion for social justice and civil service
of the Court of Appeals, and how it was later sunset by the Judiciary under the subsequent chief judge. “That moment [when the Commission was sunset from the Judiciary] was a call to action for those of us who felt that in Maryland . . . it was important to have a coalition of people who understand the need for access to justice and what that means for our society. So we felt very strongly that [the Commission] had to continue and that an independent access to justice commission was critical for the state of Maryland.” While Maryland’s A2JC remains an independent entity, today the Commission is a proud partner of the Maryland State Bar Association (MSBA). The partnership is “a natural and logical connection [and] helps focus on broader responsibilities we have as lawyers to do justice,” says Schultz. To date, the Commission, through its leadership on high profile task forces, including the Attorney General’s COVID-19 Access to Justice Task Force and the Access to Counsel in Evictions Task Force, continues to advance significant legislative and policy recommendations aimed at making the civil justice system more accessible to Marylanders across the state.
Schultz served as chair of the legislatively mandated Access to Counsel in Evictions Task Force which was created by the new statewide law that mandates all income-eligible Marylanders facing eviction have access to counsel in court proceedings. Schultz notes that the “pandemic has shown a light on housing insecurity” and the access to
counsel law “really moves the needle towards justice in response to a tremendous imbalance where only 1% of tenants have representation. “The [law] will help reduce evictions and right that imbalance,” she says. Among other things, the Task Force was responsible for studying and recommending best practices for implementation; for potential funding sources; and for assessing the effectiveness of the Program.
In its January 2022 final report, the Task Force made key recommendations to implement the law, including through court rules and statutory changes. With its recommendations, the Task Force aims to “level the playing field and close an access to justice gap” in the civil legal system where landlords almost always have counsel while tenants are left to fend for themselves.
One of the Key Guiding Principles from the Report:
“Keep equity at the forefront of outreach, implementation and evaluation of the Program to address the disproportionate impact that evictions have on people of color, on women specifically, and on households with children.”
Key recommendations from the final report of the legislatively mandated Access to Counsel in Evictions Task Force:
1. Fund the Program through dedicated state funding;
2. Create a coordinated intake system;
3. Develop and implement a broad-reaching outreach strategy;
4. Construct an eviction data hub and a repository for pre-filing notices;
5. Conduct a comprehensive evaluation; and
6. Adopt uniform court rules and procedures for the rent court docket.
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Career Highlights
Past President
Profile of a past MSBA President.
Judge Pamila J. Brown
ADMINISTRATIVE JUDGE, HOWARD COUNTY DISTRICT COURT
Photo courtesy of Beverly Funkhouser Photography
A FOCUS ON DIVERSITY & INCLUSION AND WELLNESS
Judge Pamila J. Brown, Administrative Judge for the Howard County District Court, served as the MSBA President from 2015 to 2016. Heading the MSBA is not an easy task, but Judge Brown rose to the challenge and made it a point to try to attend at least one meeting for every section and committee. She recounts that it was “truly awesome and amazing” beginning in Ocean City seeing the “mosaic of new faces in the room” and overall one of the greatest professional experiences of her life being able to lead the Association and represent all of Maryland’s Lawyers.
JUDGE BROWN RECENTLY answered some questions regarding her time as MSBA President.
Why did you want to be MSBA President?
My answer is simple, and that is I wanted to make a difference and felt my experience, background, and leadership skills would assist me in doing so. I have been fortunate to have been elected by my peers to serve in many previous offices, starting in law school where I was elected as the first woman and the first African American to serve as the President of the Student Bar Association. I have served on countless boards and commissions, and I have used these opportunities to learn and grow and also to create a path forward for others. I was privileged to serve as President of the Bar Association of Baltimore City, and the Howard County Bar Association, and now I am serving on the American Bar Association Board of Governors.
What major issues did you tackle during your Presidential year?
I tackled two major issues during my tenure: Diversity & Inclusion, and Lawyers’ Wellness. Diversity & Inclusion is not new, but sustained and focused attention was needed. We created a diversity committee, conducted programming with national experts, and challenged our sections and committees to do a deep dive with respect to not only diversity but inclusion in programming, membership, etc. We also developed a diversity mission statement for the Association. The second issue was Wellness. The legal profession is truly noble, but it is also very stressful. At our
Diversity & Inclusion is not new, but sustained and focused attention was needed. “
meetings we included fitness and wellness activities including yoga, power walking, and Zumba. We also developed monthly columns, created meeting groups on wellness, and created a website with information on staying healthy.
What are the challenges and highlights you faced in your year as President?
The challenging part of being President was meeting my goal to attend at least one meeting for each committee or section. I achieved about 80% of my goal, but it was grueling being out two to three nights every week. The highlight of the year was being able to bring to fruition my theme of “Do Something For Yourself, the Community and Profession.” Our Wellness Program was a success, we conducted several Civics and Law Academies around the State, and we had a productive and thought-provoking planning conference to assist in guiding the Association in the future.
What are your thoughts on the future of the legal profession?
The future of the profession will be one of growth and change as we adapt to new ways of working and communicating. At the heart of the profession is to be a beacon of justice, and that will never change.
Tell us a little about your biggest passion project related to your professional career right now.
Civic education has been and will always be an area that I am passionate about. It is critical that the young and old alike know what civics is and how it undergirds the foundation of our democracy. I continue to work in civics through multiple organizations and public speaking engagements.
How has being part of the MSBA helped you in your career?
I was already a jurist when I became President, but the opportunity to work with hundreds of Maryland’s lawyers and to meet many stakeholders broadened my knowledge and understanding of our community and the profession.
What advice do you have for other MSBA members who might be interested in leadership positions within the organization?
First, you need to get involved and excel in all you do. In life sometimes someone will tap you on the shoulder and if not, you just have to go for it and demonstrate your talent and commitment.
What’s your favorite hobby? Travel.
What do you do to unwind? Read or go to the gym.
What’s an interesting fact about you that no one would guess?
I always wanted to be a ballerina.
What’s a cause or charity that you are passionate about? The Lupus Foundation
What’s your favorite restaurant?
Grille 620
What’s your favorite vacation spot?
Cape May, New Jersey
A LIFE COACH FOR LAWYERS
Photo courtesy of Beverly Funkhouser Photography
After 17 years as a litigator and family law mediator, Wendy S. Meadows looks to help lawyers show up as their very best selves and her life coaching program aims to provide a space for attorneys to discover how to go about doing just that.
WENDY S. MEADOWS IS THE owner of the Law Office of Wendy S. Meadows in Baltimore County. For nearly 17 years, Meadows has worked as a solo practitioner whose practice areas include litigation and family law mediation. Meadows always knew she wanted to help families and ensure that children had a voice and representation in family law issues, in large part because of her own experience as a child of divorced parents. Despite the unique difficulties associated with family law cases and litigation, Meadows has chosen to focus her work on advocating for children as counsel and emphasizing amicable settlements and resolutions at every turn.
Nowadays, however, Meadows hopes to take her experience and positive mindset and transition away from a traditional legal career to being a full-time life coach to lawyers. Through her “Transformation Program,” Meadows offers life coaching services to help lawyers figure out how to live the life they truly want to live, both in terms of the big picture and on a more granular, day-to-day level. Lawyers that enroll in the Program tackle vision, goals, mindset, time management, self-care, and the big question—Am I where I want to be as a lawyer? Meadows notes that in her view, the world would benefit from lawyers speaking, acting, writing, and lawyering as their very best selves, and her Program aims to provide a space for attorneys to discover how to go about doing just that. “My goal is to empower lawyers so that they walk around pleased and content with the life they are living, they are grateful for going to law school, they are happy in their practice, and as humans, they are the best,” Meadows said.
What is one thing you would change about your current role if you could? What are your goals for yourself in this role?
I would coach full-time. My goals include continuing to build my coaching business, speaking to larger audiences of lawyers, and finishing my book.
What are some of the challenges you face in your current role?
Transitioning away from a traditional legal career takes some time. It is exciting, but admittedly terrifying at times. What keeps me going is my knowledge and peace that while I am a really good lawyer, I am an even better coach. By making this transition, I can better help the legal community from Maryland to all over the world, and have a bigger impact.
What is the best piece of advice you have received from someone in the legal profession?
To trust your gut and guard your integrity. Your integrity is one of your most important assets as a lawyer. Do not let anyone chip away at that.
How are you involved with the MSBA? How has the MSBA helped you in your legal career?
I was more involved when I was a baby lawyer! I held all sorts of positions in the Young Lawyers Section (YLS). I also was part of the Local and Specialty Bar for a long time under Judge Mark F. Scurti’s direction, and I enjoyed bringing all of the bar associations together. The MSBA helped me make connections as a young lawyer that led to some of my best friends today. It also led to many referrals, which allowed me to grow my legal practice, book of business, and credibility as an attorney.
“My goal is to empower lawyers so that they walk around pleased and content with the life they are living, they are grateful for going to law school, they are happy in their practice, and as humans, they are the best.
What’s a cause or charity that you are passionate about?
The One Love Foundation. It’s a national non-profit organization whose goal is to end relationship abuse by empowering young people with the tools and resources they need to see the signs of healthy and unhealthy relationships.
What’s your favorite restaurant?
I love trying out new places with friends although that hasn't been so often in recent years. If I had to choose, I’d say La Food Marketa in the Quarry.
BUILDING A SOLO FIRM BASED ON CONNECTION AND EMPATHY
Shuaa Tajammul went to law school because she enjoys problem solving and helping people. Now the owner of her own family law practice, Tajammul has the opportunity to interact with her clients and make a connection. “My clients find me to be relatable and supportive, and I enjoy working with them to resolve their most personal family law issues."
AFTER WORKING FOR two small firms, Tajammul says building her own practice has given her “a chance to build the practice the way I want. This is important because it allows me to develop my own policies and procedures that take the guesswork out of routine tasks. That way, I can spend more one-on-one time focusing on my clients and handling their cases in the best way possible.”
Tajammul says she loves being in control of the cases she takes and her work schedule. “I can narrow my caseload to focus on more-involved cases when necessary, and expand it when time allows. I also appreciate the flexibility that having my own practice provides in terms of my work schedule so that I can be present for my family.”
What is the best advice you have received from someone in the legal profession?
I cannot control the facts or the people involved in a case. Family law is an emotionally heavy practice and it is important to remember that as counsel, my job is to explore the facts and present my client’s case in the best light possible before a Judge.
What are the fondest memories of your legal career so far?
All of the instances where clients have told me that they felt I was empathetic to their situation and really listened and worked closely with them to resolve their cases efficiently and affordably.
What is one piece of advice you would give someone in law school or considering a legal career?
Pursue internships in a variety of legal practice areas if possible. It will help you focus on what you enjoy most.
What are your goals for yourself in your current role?
When the time is right, I look forward to expanding and hiring staff and associates. I want to focus on growing my high asset divorce and high conflict custody practice.
How are you involved in the MSBA?
I have been involved with the Young Lawyers Section since 2018. In 2020, I served for one year on the Board of Governors. I have put on several programs through the MSBA for younger attorneys, and have also attended many programs presented by others.
How has the MSBA helped you in your legal career?
The MSBA has allowed me to expand my network and make meaningful connections with others in enjoyable settings, such as the Legal Summit in Ocean City. During the pandemic, I found that the MSBA went above and beyond to continue to facilitate connections via Zoom events.
What do you do to unwind/destress?
I enjoy hiking with friends and family. Practicing law can be very stressful and cause us to forget ourselves at times. Hiking allows me to get some fresh air and take a break from sitting in front of my desk all day! I also love to travel and learn about new cultures and places.
How do you give back to your community?
Legal representation can be cost prohibitive for many people, but that doesn’t mean that they shouldn’t get the help they need to navigate the legal system. I regularly take pro bono and low bono cases from the Pro Bono Program through the Bar Association of Montgomery County.
I also support the arts. The performing arts allow people to escape the stress of the pandemic, one performance at a time. I am on the Board of the Theatre Consortium of Silver Spring, and also enjoy attending performances at the Kennedy Center and Olney Theatre Center.
Favorite restaurant
La Ferme in Chevy Chase, MD.
Favorite vacation spot
I often enjoy the beach, but I think I generally prefer the hustle and bustle of a city. It is always fun to explore a new city and people-watch and attend shows and events.
Favorite hobby
Binge-watching my favorite shows…don’t judge me!
What’s an interesting fact about you that no one would guess? I love crafting!
Favorite hobby
Binge-watching my favorite shows…don’t judge me!
What’s an interesting fact about you that no one would guess? I love crafting!
“
The MSBA has allowed me to expand my network and make meaningful connections with others in enjoyable settings, such as the Legal Summit in Ocean City.
THE DAY AN ATTORNEY MET AN ORIOLE
BY MIKE COMEAU
MANY ORIOLES FANS fondly remember John Miller, the former Orioles (1983–1996) and ESPN (1990–2010) play-by-play broadcaster who received the Ford C. Frick Broadcasters Award from the National Baseball Hall of Fame in 2010. You must be an Orioles fan of a certain age to recall the original John Miller, however.
The John Miller who pitched for the Orioles from 1962 to 1967 is not in Cooperstown or even the Orioles Hall of Fame at Camden Yards. But he was a member of the Orioles first World Championship team that swept the Los Angeles Dodgers in 1966, and it was my pleasure to encounter him one morning in Towson before the Maryland Workers’ Compensation Commission on July 9, 1997.
It was with mixed emotions that I met up with former pitcher and then-firefighter John Miller all those years ago. Miller was seeking workers’ compensation benefits, and it was my job to defend against his claim on behalf of Baltimore County. Of course, I was duty-bound to represent my client and the taxpayers, and I was as competitive as Miller had been on the mound at Memorial Stadium, but it is no exaggeration that I was excited to meet a childhood hero (as were all the players from that first Orioles team that won it all when I was 10 years old).
As I informed Commissioner Richard Teitel that morning after presenting as exhibits all four Topps baseball cards from my personal collection of Miller (1963, 1965, 1966 and 1967): “I really feel like I have a conflict of interest in this case—I’ve had those cards since I was nine years old.” The Commissioner said, “You’re not going to ask for his autograph, are you?” Miller’s counsel, Leslie A. Pladna, Esq., responded, “He already did that, your honor.” For the record, I also possess John Miller’s autographed Orioles jersey.
Now there was an actual legal reason why I submitted copies of my decades-old John Miller baseball cards. He was claiming an accidental injury to his right upper extremity and neck arising out of his employment as a firefighter, and our defense was that his right upper extremity complaints were actually the result of his professional baseball
The Commissioner said, “You’re not going to ask for his autograph, are you?” Miller’s counsel responded, “He already did that, your honor.”
career pitching with the same arm. The baseball cards documented his 12-14 win-loss record with the Orioles and an overall professional pitching line of 215 games played, 1028 innings pitched with 908 strikeouts. His major league ERA was a very good 3.89.
Medical records were submitted showing right arm pain since his baseball pitching days, and Miller admitted that a bum right shoulder led to his retirement after going to Spring Training with the Kansas City Royals in 1969.
In at least two respects, John Miller came along too soon.
First, when he signed with our hometown Orioles in September 1960 after starring at Edmondson High, there were only 16 major league teams with pitching staffs of nine or 10, meaning there were only possibly 160 roster spots available for pitchers in the big leagues. In 2021, many of the 30 teams carried pitching staffs of 13 or 14. That translates to roughly 425 major league pitchers. The Orioles used a remarkable 42 different pitchers in 2021. In that 1966 championship season, the Orioles used 12 pitchers for most of the year.
John Miller had a good 1965 season with an outstanding record at Indianapolis and then a winning record after being recalled in June to the Orioles as they fell short fighting for the American League pennant. In the Spring of 1966, the final spot in the Orioles four man starting rotation was his to lose and that is exactly what happened as a 20-year-old fireballing Jim Palmer was selected despite being wild. As they say, the rest is history.
John Means has a 20-24 record with an ERA of 3.82, comparable to John Miller’s lifetime stats. If John Miller had been a rookie 60 years later in 2022, he most likely would be the number one starter on a big league team with a long career, but instead he served as a Baltimore County firefighter for almost 30 years. By all accounts, he had no regrets. John Miller passed away at age 79 in June 2020.
Second, when his claim for workers’ compensation benefits was denied. The matter later settled while pending on appeal in the Circuit Court for Baltimore County. Miller was compelled to bring his claim as an accidental injury rather than as a repetitive trauma occupational disease arising from the numerous repetitive traumas of driving a ladder truck for three decades. The case recognizing repetitive trauma occupational diseases for firefighters (specifically Baltimore County firefighters), Baltimore County
The claim would have been much easier to win today than in 1997.
v. Quinlan, 215 A.3d 282 (Md. 2019), was decided 22 years after his claim was filed. The claim would have been much easier to win today than in 1997.
As I write this, I am within weeks of my 40th anniversary of becoming a member of the Maryland Bar. I have defended numerous compensation claims, some very tragic and high profile, and as the son of a man who died in a terrible accident working for Bethlehem Steel, I often experienced a sense of guilt as I represented my clients as a defense counsel. But I did my job, although I must confess that I sometimes did not throw every pitch in my repertoire if I believed the claim had merit.
John Miller signed his baseball cards for me that day almost 25 years ago and truthfully answered all my questions as the professional he was with good humor. It was my honor and pleasure to meet Number 17 of the 1966 World Champion Baltimore Orioles, and as a former Orioles usher during my three years at UB Law and lifetime fan, I miss him. May he rest in peace. I am glad we were able to settle his claim.
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MY MOM, THE LAWYER: Michelle Browning Coughlin on MothersEsquire and Gender Equity in the Legal Profession
MICHELLE BROWNING COUGHLIN currently works as General Counsel and Vice President of Legal Affairs for a digital marketing company in Louisville, Kentucky. When she is not busy practicing law and managing in-house legal issues, she serves as President of MothersEsquire, Inc., a national nonprofit organization whose mission is to achieve gender equity in the legal profession. The idea for MothersEsquire grew out of Couglin’sown experience; she notes that she started the small private facebook group (which has since grown to over 7,000 members nationwide), in hopes of creating a supportive community for women navigating law firm life and motherhood. Since its inception in 2013, MothersEsquire has strived to forge connections and encourage conversation around the challenges mothers face as women with children in the legal field.
“The reason why MothersEsquire exists is because I felt that it was not the same path for me as it was for others, I didn’t see a lot of other moms who were associates and trying to manage law firm life and . . .[I decided] we shouldn’t all sit in our separate offices struggling with some of the same challenges and not
around being a mother and a legal professional and . . . finding that oftentimes those roles came into conflict with one another,” she says. With MothersEquire she’s found a way to marry those roles and shed light on what she generally calls the “motherhood penalty” that so many moms face as members of the legal community. In addition to blatant sexism, Coughlin highlights the tacit messaging mothers encounter everyday that create real barriers. “Women are just supposed to be these ethereal, loving providers to children, but because that’s what you’re supposed to be, it doesn’t leave room for being anything else,” she says.
A large part of the MothersEsquire mission is to elevate and amplify the voices of moms in the legal profession and the barriers they face everyday. The organization creates space for mom lawyers to share their stories. More recently, the organization has partnered with Above the Law to publish articles detailing some of the unique challenges mom lawyers face, including in the new remote work environment. Coughlin points out that while “the ability to work remotely is so much more inclusive and creates different ways for people to come to work. . . [it] also enforces
"I didn’t see a lot of other moms who were associates and trying to manage law firm life and . . .[I decided] we shouldn’t all sit in our separate offices struggling with some of the same challenges and not create a community where we can help and support each other.”
create a community where we can help and support each other,” Coughlin explains. Now the organization includes a wide network of women across the country, and works to advocate for women lawyers on issues like ensuring all courthouses provide a space for breastfeeding mothers and eliminating rules that unfairly burden women bar examinees that mevnstruate and breastfeed
Coughlin recounts starting law school with a 10-month-old newborn, conceiving a second child during law school, and going on to work at a large law firm when she had two toddlers. At the time, “I had really been struggling with my own expectations
and creates more barriers between women and the people who might provide them work. For example, if women are the ones taking advantage of more remote opportunities they are going to, by circumstance, get left out of prime work opportunities more often.” Men are more likely to return to the office as soon as the opportunity arises and “[w]hen projects come up [managers] will turn and look down the hall to the guy sitting two doors down the hall, so while I do think [remote work] should be used more often, I also think that it has the potential to further push women out from gaining access to career expanding projects and opportunities.”
Smartphone Phishing Attacks Escalate, Bedeviling Law Firms
Just When You Thought You Had Perfected Your Cybersecurity Training for Law Firm Employees... Time to think again. It’s no secret that cybercriminals have increased all kinds of phishing activity since the pandemic. More people utilizing consumer grade equipment in a less secure workat-home environment creates a fertile ground for phishing attack victims.
network access. Attacking a smartphone means a greater success rate for getting that access.
So Why Are Phishing Attacks on Smartphones so Successful?
Spotting a phishing attack on a smartphone is much harder than on a computer. Think about it. When you get an email on a com-
The goal of the attackers is to obtain usernames and passwords that could be used for accessing cloud services or other sections of the enterprise network.
According to a ZDNet report, phishing attacks are shifting to mobile devices. That’s not surprising since mobile devices are the primary computing technology for more than 50% of users. The goal of the attackers is to obtain usernames and passwords that could be used for accessing cloud services or other sections of the enterprise network. The goal of the cybercriminal is to gain
puter, determining the originating email address is pretty easy even if the display name is familiar. On a smartphone, typically you just see the display name and not the actual email address. It takes a lot more work and jumping through hoops to expose the actual originating email address.
As ZDNet states, “Tailoring phishing emails towards mobile devices can make them more difficult to spot because the smaller screen provides fewer opportunities to double check that links in messages are legitimate, while smartphones and tablets might not be secured as comprehensively as laptops and desktop PCs, providing attackers with a useful means of attempting to compromise networks.”
Multiple Attack Vectors Multiply the Problem
Multiple attack vectors make mobile devices particularly vulnerable to phishing attacks. There are a lot of vectors for cybercriminals to exploit on a smartphone. Some of the attack channels include the various social media platforms, messaging apps and plain old SMS text messages. In fact, according to a report from security provider Proofpoint, SMS text phishing (also called smishing) increased by almost 700% in the first half of 2021 as compared to the last six months of 2020.
Some of the more recent smishing campaigns revolve around impersonating delivery companies. This is particularly effective this time of year as we are all anxious about our holiday deliveries in light of the global supply chain issue. Imagine a text message impersonating UPS advising that there is a change in a scheduled delivery with a link prompting for your confirmation of some personal information. The webform that you are sent to is controlled by the cybercriminal and looks exactly like one you are familiar with. Mimicking PayPal and Amazon login pages are perennial favorite gambits.
Besides impersonating delivery services, expect to see smishing campaigns thanking you for a recent payment to your AT&T or Verizon account or something similar. The messages contain a link for you to “redeem” your special thank you gift by just completing a form. Again, the webform is identical to one you are used to seeing, but it is hosted on a malicious website. Sorry, but no thanks.
We would also suggest avoiding shortened URLs and QR codes. You really don’t have any idea where they are going to send you unless you do a little bit of advanced research and investigation. Employees cheerfully simply click away.
Defending Those Vulnerable Smartphones
Cybercriminals will continue to target mobile devices as firms continue to embrace a work-from-home environment. To make
matters worse, the security of mobile devices is typically left in the hands of the remote user and not the enterprise. That’s another reason to seriously reconsider a BYOD (Bring Your Own Device) strategy and instead issue firm smartphones to end-users.
Just like computers, make sure that your smartphone is up to date and fully patched with the latest software versions.
Train your employees to be particularly vigilant, especially if they use a mobile device to access corporate resources. Don’t reply to suspicious text messages and by no means click on any of the links.
Proofpoint operates the 7726 text message system on behalf of the mobile carriers. To report a suspicious or fraudulent text message, forward it to the short code 7726 (SPAM) so that it can be investigated by your cellular carrier. Just like computers, make sure that your smartphone is up to date and fully patched with the latest software versions. Security firm Lookout reported that “56% of Android users were exposed to nearly three hundred exploitable vulnerabilities by running out-of-date versions of Android OS.” Yikes.
In addition, you should be running some sort of security software on your smartphone (including iPhones) just like you do on your computer. After all, smartphones are really nothing more than small, hand-held computers that happen to be able to make phone calls.
SHARON D. NELSON, ESQ. 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
WEARING ALL THE HATS
JAMAAL STAFFORD
Managing Attorney, Law Firm of J.W. Stafford, LLC
Jamaal Stafford is the Managing Attorney of his own practice, Law Firm of J.W. Stafford, LLC, in Baltimore City. Stafford, who says he entered the legal profession to help people facing challenging circumstances, practices primarily in employment law and professional license defense. During his 14 years of practice, Stafford says that his fondest memory of his legal career so far has been opening his own law firm.
Photo courtesy of Beverly Funkhouser Photography
“THE BIGGEST PROJECT related to my professional career has been starting my own law firm. In starting the firm, I began to really appreciate the business side of practicing law. I have always wanted to be a business owner, so opening my own firm made sense. Owning the firm is incredibly important to me, as it gives me the opportunity to help our clients, our employees and the community. My goal is to continue growing the number of attorneys and staff at the firm and delivering high-quality representation.”
What is the one piece of advice you would give someone in law school or considering a legal career?
Think hard about the practice area you enjoy and the type of environment you want to work in. Those should guide your decision making as it relates to your career.
Tell us a little bit about your current role. I do it all: sales, legal work, human resources. I love everything about my current role.
What is one thing you would change about your current role if you could?
I would take more time off. Wearing multiple hats and finding time to relax can be challenging.
How are you involved with the MSBA?
I’m on the MSBA Judicial Appointments Committee and am a Fellow with the Maryland Bar Foundation.
How has the MSBA helped you in your legal career?
The MSBA has connected me with great people and opportunities, especially through its Leadership Academy.
What is your favorite hobby?
I love to travel, especially in the Caribbean. My favorite vacation spot is Aruba.
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
NEVER A DULL MOMENT HUGHIE HUNT
HUGHIE DUVALL HUNT, II, is a founding partner of Kemet Hunt Law Group, a practice with offices in Prince George’s County and D.C. Hunt recalls wanting to be a lawyer as early as adolescence. “I read To Kill a Mockingbird in 7th or 8th grade and I think that planted the seed for me.” Although he started college thinking he would pursue a political or professional sports career, he started to focus on being a lawyer during his junior year. “It was the best decision I had ever made. I graduated [college] and got accepted into George Washington University Law School and never looked back.”
Hunt also recalls the moment he realized that he wanted to be in the “business of helping people.” It was nearly 18 years ago during his first jury trial. After spending “hours and hours of
Hunt also recalls the moment he realized that he wanted to be in the “business of helping people.”
preparation, the energy and angst of waiting for the verdict and then obtaining a not guilty verdict made me proud.” To this day, the jury trial remains a point of passion for Hunt. “I believe in the jury system, [even] though I don't always agree with the verdicts. . . I believe the jury system is the great equalizer in society. . . [and] we have to be willing to invest the time and effort into protecting and preserving the trial by jury in the judicial system.”
Nowadays, Hunt spends his time at work managing the day-to-day operations of the office while also continuing to practice law. Reflecting on how the practice of law has evolved during the COVID-19 pandemic, Hunt notes that it “has changed mightily post-COVID” as law offices, courts and other legal entities turn to virtual operations and conferences. Despite operational advances in the practice of law, Hunt notes that he continues to innovate and find ways to manage the demands of legal work. One of his ideas involves creating a totally cloud-based law firm that does not rely on a physical office to operate and is not limited by location.
Below are a few more Q&As from Hughie Duvall Hunt, II.
Tell us a little bit about your current role. I am the Senior Partner of Kemet Hunt Law Group and head of the civil side of the practice. I manage, along with my law partner, the everyday operations of the firm. It's a whole smorgasboard of responsibilities, from marketing, payroll, case management, insurance, just the whole gamut or running an enterprise. In my role there is never a dull moment. There is a constant need to improve. It involves many more business decisions than legal decisions. The challenge of earning a living motivates me and gives me great satisfaction.
What is the best piece of advice you have received from someone in the legal profession? The best piece of advice I have received from someone in the legal profession is: if you don't ask for it, you can’t get it. Sounds simple, but I probably use this advice everyday. I always say let the judge or jury tell you no. Never, ever, tell yourself no.
How are you involved with the MSBA? How has the MSBA helped you in your legal career? I am a member of the Fee Dispute Committee, helping to resolve fee disputes between MSBA members and their former clients. The MSBA has been essential. Other than law school, I met my best friends through the MSBA. The relationships I have developed over the years are priceless and have led to many professional opportunities.
What’s an interesting fact about you that no one would guess? I have reached the level of first degree Black Belt in Taekwondo. I trained for years to get to that point, three days a week, fighting in tournaments, teaching, and developing my skills.
What’s a cause or charity that you are passionate about?
I am passionate about improving Baltimore City. In May of 2021, I was selected to participate in Transportation 101, a five-week class designed to develop leaders who are poised to enhance communities and people’s lives by cultivating a healthy, resilient, and more sustainable lifestyle by supporting transit, active transportation and increased access. We delved into the history of the roads and transit in Baltimore City and looked at the current state of affairs with regard to public transportation. I am committed to making Baltimore bicycle and pedestrian friendly. Baltimore is a beautiful city and it has tremendous potential.
I always say let the judge or jury tell you no. Never, ever, tell yourself no. “
JUSTICE Causing or Exacerbating Racial Inequities SYSTEM: THE CIVIL
BY THE MARYLAND ACCESS TO JUSTICE COMMISSION
Dire terms, all perfectly appropriate, have frequently filled discussions of the COVID-19 pandemic and its enduring impact. As the Access to Justice Commission analyzed these pressing social concerns—through the Attorney General’s COVID-19 Access to Justice Task Force and the Access to Counsel in Evictions Task Force, several things became abundantly clear. Eviction tsunami. Skyrocketing unemployment. Food insecurity. Economic collapse. “ “ “ “
First, that Marylanders of color were experiencing the worst effects from the pandemic at a disproportionately high rate. Second, that most of these experiences were not newly spawned by COVID-19; they were rather longstanding and systemic troubles merely exacerbated by the pandemic. And finally, that all of these “life issues” were tied to the civil justice system.
What the pandemic laid bare for everyone to see is that race inequities pervade our health, economic and criminal justice systems. What is less well known, but equally plain, is that the civil justice system both causes new and exacerbates existing racial inequities that affect every aspect of a person’s, including housing, health, hunger, personal safety and economic security.
In most instances, even though the right to counsel movement in civil legal cases is catching steam, an individual facing a case in the civil justice system does not have a right to an attorney if they cannot afford one. Yet, research continues to demonstrate how individuals who cannot afford a lawyer in civil legal cases face worse outcomes in not only their cases, but in their lives, the effects of which also spill over to community health and well-being. As the pandemic persists, more and more Americans from low-income communities, and particularly communities of color, have found themselves entwined in a civil justice system, with many facing homelessness, joblessness, and civil legal cases that involve basic human needs. Unfortunately, even before the COVID-19 pandemic, nearly 80% of the civil legal needs of low-income individuals went unmet, even though “justice for all” is a core American value. And people of color make up nearly 74% of the individual clients of Maryland Legal Services Corporation (MLSC) grantees.
This article explores the disproportionate harms to communities of color in the most voluminous types of civil justice cases.
1 Homeownership, Evictions, and Housing Insecurity
Homeownership. Homeownership has long been viewed as the single most important means for building wealth for low-income families in the United States. Unfortunately a number of contributing factors add to the growing homeownership gap between low-income households, particularly households of color, and white households. Notably, systemic barriers like the racial wealth divide not only affect the ability to purchase homes outright, they also affect their ability to hold onto their homes once purchased.
One specific barrier that continues to disadvantage low-income and minority homeowners has to do with inequity in the property value assessment system. These inequities often lead to unfair tax burdens and give rise to tax liens and foreclosure sales. Research shows that property tax burdens disproportionately impact low-income residents, especially those of color. For example, in Baltimore County, 89% of the lowest value homes are overassessed in comparison to just 37% of the highest value homes according to a nationwide analysis conducted by researchers at the University of Chicago. What this means is that low-value properties, which tend to be owned by Black and brown low-income residents, face higher tax burdens than the owners of high-value properties.
How that plays into the civil justice system is when a homeowner falls behind or is unable to pay their property tax (in many cases due to unforeseeable illness or joblessness), tax-lien and foreclosure investors bid on and purchase foreclosed properties in tax foreclosure auctions for a fraction of the cost. The process not only robs homeowners of their best chance to build wealth for their families, it often leaves entire families homeless and without a place to live as new investors are empowered with the right to evict. In these instances having legal assistance can mean the difference between saving a family’s home and losing it to foreclosure. Unfortunately, for too many families already struggling to make ends meet, finding the financial resources to afford a lawyer is not an option, and help through legal services is limited, yet the consequences are generational.
Evictions and Housing Insecurity. To date, national studies show that Black and Latinx renters in general, and women in particular, are disproportionately evicted
from their homes. More recently, research from Maryland demonstrated similar disparities for minorities with one study reporting that between January 2018 and June 2019, the number of Black female-headed households evicted in Baltimore City was 296% more than evictions of households headed by white men and 2.3 times higher for Black male-headed households. African Americans and Latinos have also been disproportionately impacted by the housing and economic crises brought on by the COVID-19 pandemic—that have increased the specter of evictions for those communities.
For these families, and other low income households, a myriad of systemic barriers make fighting harmful eviction
“
For these families, and other low income households, a myriad of systemic barriers make fighting harmful eviction in rent court increasingly difficult.
in rent court increasingly difficult. Complicated court proceedings and confusing court noticies combined with work and child care constraints, make it hard for some tenants to even attend court proceedings. Meanwhile, tenants that make it to court often end up fending for themselves, as only 1% of tenants have some type of representation, compared to 96% of landlords. As a result, many families suffer displacement and eviction that can have long term consequences on the family. This is why the Commission pushed for an Access to Counsel in Evictions law and is now pushing for funding of this law, as well as an eviction database that would allow for equity assessment in eviction cases.
2 Consumer Debt and Debt Collection
Consumer Debt. Individuals and families with debts that end up in collections are oftentimes portrayed as having made poor personal financial choices, but what the pandemic has shown us is that consumer debt (e.g., credit card debt, medical debt, and student loan debt) can become difficult to manage for any household, especially when experiencing emergencies, surprise expenditures, or reductions in income. Unfortunately however, families in low-income communities, particularly individuals and households in communities of color, face a number of financially devastating obstacles including mounting high interest debt, consumer debt collection lawsuits, repossession and garnishment.
According to a study by the Maryland Consumer Rights Coalition, for example, the existing racial wealth gap contributes to non-white borrowers having more consumer debts in collection and higher debt loads. This is, in large part, due to lending practices that target consumers of color with high-interest debt products, such as auto-title loans and payday loans.
Debt Collection. The racial wealth divide is not only a result of limited access to financial resources, it is also a result of a number of systemic disparities that arise in the civil debt col-
position, as garnishment can allow plaintiffs to seize up to a quarter of a worker’s pay that is deposited in a consumer’s bank account. Between garnishment and repossession consumers are often left without essential income, cars, and household assets to get by.
3 Public Benefits: Unemployment
Unemployment. During the COVID-19 pandemic, unemployment benefits became a lifeline for many Marylanders—a lifeline that allowed individuals to keep their families fed and housed.
Employment statistics show COVID-19’s impact on Black communities. In the first quarter of 2020, Black unemployment in Maryland was 6.1%, nearly twice the rate of whites. With historic levels of unemployment in the second quarter of 2020, the unemployment rate for Black people increased to 13% and remained about twice that of whites. Hence, the long delays in processing unemployment insurance (UI) applications disproportionately impacted Black families just as the global pandemic was causing disproportionately negative health outcomes in the same communities.
The result is cyclical in that consumers, already facing financial instability, are left in an even worse financial position, as garnishment can allow plaintiffs to seize up to a quarter of a worker’s pay that is deposited in a consumer’s bank account.
lection process. For example, more debt collection lawsuits are filed in counties that have large communities of color. These are families that traditionally have less financial resources to weather financial crises and that are less likely to be able to afford an attorney when hit with a debt collection lawsuit. A study by Pew Charitable Trusts estimates that fewer than 10% of defendants in debt collection lawsuits have legal representation, in comparison to nearly all plaintiff-debt collectors, and 90% of debt collections cases end in a default judgment against the defendant. The result is cyclical in that consumers, already facing financial instability, are left in an even worse financial
Another group that was similarly challenged and whose applications were delayed were those communities of color facing language access barriers to the civil justice system. Title VI of the Civil Rights Act of 1964 prohibits any recipient of federal funds to discriminate on the basis of national origin. Yet, the Maryland Department of Labor, Licensing and Regulation did not provide non-English web-based or telephone access for any language other than Spanish. And even in Spanish, access is very limited because UI documents are not available in translated formats, multi-lingual staffing is sparse, and UI appeals are not translated into Spanish.
These barriers intersected with other challenges faced by low-income populations, like technology barriers. Low-income individuals often lack sufficient access to, and familiarity with, electronic means for claims submission. For those who do have access, language barriers force some to rely on others to navigate and submit electronic applications on their behalf, which often led to the non-English speaking applicant to not be able to access the UI portal that contained all their application information and updates. Civil legal aid organizations were critical partners in helping many black and brown Marylanders struggling to apply for or appeal wrongfully denied unemployment benefits.
This article will discuss how imposter syndrome and generational trauma affects Black associates at law firms, and how partners and other non-Black attorneys can create a work environment that is psychologically safe for Black associates.
Psychological safety (coined by Harvard Business School professor Amy Edmondson) in the workplace allows employees to speak up candidly with ideas, ask questions, and even make mistakes without fear of reprisal or adverse repercussions.1 This concept has become even more important during recent stressful times, such as the COVID-19 pandemic, the January 6th insurrection, and incidents of police violence.
The majority of law firms are predominantly white institutions, and Black lawyers are underrepresented. Speaking more broadly, as of 2021, only 4.7% of lawyers in the United States are Black, while 13.4% of the United States population is Black.2 As discussed in greater detail below, it is an incredibly unique experience being a Black associate at a law firm. However, the common strategies firms use for developing associates can be tailored to meet the needs of Black associates. Practical tips are offered below. While this article focuses on the unique needs of Black associates, the insights can be helpful for all associates.
1 Tanya Bovée and Michael Thomas, Psychological Safety in the Workplace, Jackson Lewis (Nov. 2020), https://www.jacksonlewis.com/podcast/psychological-safety-workplace
2 American Bar Association, Demographics: Growth of the Legal Profession (last visited Feb. 7, 2022), available at https://www.abalegalprofile.com/ demographics/
A disturbing experience that results in fear, helplessness, dissociation, confusion or other disruptive feelings intense enough to have a long-lasting negative effect on a person’s attitudes, behavior and other aspects of functioning.
Intergenerational Trauma and Psychological Safety
The needs and experiences of Black attorneys are unique. The history of Black people in America, and the Black diaspora globally, contribute to intergenerational trauma that many Black associates likely experience.
Trauma is defined as a “disturbing experience that results in fear, helplessness, dissociation, confusion or other disruptive feelings intense enough to have a long-lasting negative effect on a person’s attitudes, behavior and other aspects of functioning.”3 Intergenerational trauma is defined as “a phenomenon in which the descendants of a person who has experienced a terrifying event show adverse emotional and behavioral reactions to the event that are similar to those of the person himself or herself. These reactions vary by generation but often include shame, increased anxiety and guilt, a heightened sense of vulnerability and helplessness, low self-esteem, depression, suicidality, substance abuse, dissociation, hypervigilance, intrusive thoughts, difficulty with relationships and attachment to others, difficulty in regulating aggression, and extreme reactivity to stress. The exact mechanisms of the phenomenon remain unknown but are believed to involve effects on relationship skills, personal behavior, and attitudes and beliefs that affect subsequent generations. The role of parental communication about the event and the nature of family functioning appear to be particularly important in trauma transmission. […]”4
Although not all Black attorneys have similar experiences, it is likely that Black associates, because they are the only Black associate in their office or practice group, or are one of a few, have encountered a person, experience, or behavior that causes the perception that they do not belong and triggers a feeling of intergenerational trauma.
3 American Psychology Association, APA Dictionary of Psychology: Trauma (last visited Feb. 7, 2022), available at https://dictionary. apa.org/trauma
4 American Psychology Association, APA Dictionary of Psychology: Intergenerational Trauma (last visited Feb. 7, 2022), available at https://dictionary.apa.org/intergenerational-trauma.
Psychological safety in the workplace allows employees to speak up candidly with ideas, questions, and concerns, and even make mistakes without fear of reprisal or adverse repercussions, which contributes to inclusivity and can improve performance.5 Psychological safety is important for all employees to feel included at work and is especially important for employees who have been historically underrepresented in a particular field or workplace.6 People must feel psychologically safe to have authentic, emotional conversations that are necessary to strengthen relationships among colleagues.
Prioritizing psychological safety in the workplace can help usher a shift from unconscious bias to conscious inclusion.7 Unconscious bias, also known as implicit bias, refers to “attitudes and stereotypes that influence judgment, decision-making, and behavior in ways that are outside of conscious awareness or control.”8 Whereas conscious inclusion means “strategically execute[ing] a practical approach to driving the thoughts, beliefs, and behaviors that allow us to value and leverage differences to achieve superior results.”9
Trauma is not only a cognitive experience, trauma resets the body to interpret the world as a dangerous place—this reset occurs in your brain and nervous system.10 When you experience trauma at work, your brain goes into fight, flight, or freeze mode, and you start releasing stress hormones, like cortisol.11 Your cognitive functioning in the prefrontal cortex slows, and you may experience shortness of breath.12 When your traumatic experience is triggered, you might relive and replay the traumatic experience from the past because your body remembers your trauma.
Black attorneys may have trauma associated with feeling safe and a sense of belonging in predominantly white spaces. Further, trauma can teach someone that being seen as Black can cause harm to them.
Black attorneys who have experienced trauma must develop a way to cope with that experience. Often the way to cope with race-based trauma as a Black attorney is to try not to be seen as being Black. Black attorneys may have trauma associated with feeling safe and a sense of belonging in predominantly white spaces. Further, trauma can teach someone that being seen as Black can cause harm to them.
Put simply, the value of psychological safety at work is trust. Psychological safety at work can improve retention, collaboration, and employee wellbeing, while creating a high-performing culture and higher levels of engagement and innovation.13 Without psychological safety, employees are more likely to be less engaged, less likely to share ideas, and greater challenges with employee learning.14 Creating psychological safety is difficult and takes a commitment from all of us. Partners at law firms should foster psychological safety by encouraging curiosity, leading with courage and vulnerability, in addition to providing training, conducting a climate study to monitor and assess the inclusiveness of the work culture, run a diversity and inclusion diagnostic to identify areas of improvement, and review internal processes for mentoring.15
5 Michael Thomas, Inclusivity and High Performance Begins with Psychological Safety, National Law Review (Oct. 14, 2020), https://www.natlawreview.com/ article/inclusivity-and-high-performance-begins-psychological-safety
6 Id.
7 Supra n.1.
8 Harvard T.H. Chan School of Public Health, Office of Diversity and Inclusion, Community Guide for Addressing Bias: Academic Years 2021-2022 (last visited Feb. 7, 2022), available at https://cdn1.sph.harvard.edu/wp-content/uploads/sites/2597/2021/11/HSPH_Guide_for_AddressingBias_Accessible_FINALv1-1.pdf
9 Kristina Gattozzi, What is Conscious Inclusion?, Conscious Inclusion (June 12, 2020), available at https://www.conscious-inclusion.com/2020/06/12/ what-is-conscious-inclusion/
10 Melinda Briana Epler, Leading With Empathy & Allyship: 8: Understanding Intergenerational Trauma with Michael Thomas (2020), https://podcasts.apple. com/us/podcast/8-understanding-intergenerational-trauma-michael-thomas/id1509326364?i=1000478110123 (last visited Feb. 7, 2022).
11 Bessel van der Kolk, The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma (18th ed. 2014).
12 Id.
13 Supra, n.1.
14 Id
15 Id.
Tips for Supporting the Development of Black Associates
TIP #1: BE SELF-AWARE.
Be self-aware in your mentoring relationship with associates, especially with Black associates. Bear in mind that everyone has a different leadership style and communication style. Rather than communicating in a way that motivates you or has worked for you with other mentees in the past, ask your Black associate mentee how they prefer to be mentored. Ask the Black associate what motivates them and what you can do to make them feel empowered at work.
TIP #2: HOLD ALL ASSOCIATES TO THE SAME EXPECTATIONS AND INVEST IN EVERY ASSOCIATE.
Be cognizant of the expectations that you set for Black associates at your firm and apply those uniformly. The sinkor-swim approach common in big law can result in a dichotomy by which Black associates may be either held to a higher standard of exceptionalism or permitted to fail. Black associates should be able to make the same mistakes that other associates make. Black associates should not have to be exceptional in order to survive. Often, high-performing Black associates viewed as exceptional are tasked with many high-profile cases and numerous leadership roles, which can lead to burnout. On the other hand, sometimes Black associates are underestimated when they fail to meet the mark of exceptionalism and are deterred from practicing in big law.
TIP #3: ALLYSHIP IS A VERB, AND IT REQUIRES STUDY AND SELF-REFLECTION.
Often, in law firms, we put so much emphasis on changing systems to create an inclusive workplace, such as hiring a DEI officer or changing recruiting and hiring practices, that we often neglect the need for individual transformation. After all, systems and structures don’t make decisions, the individuals that are part of those systems or structures do. And we know this to be true, personal transformation is the very foundation for systems to change. Another way of putting it is if we want a more inclusive workplace, we can’t just expect the workplace to change because we added a DEI officer; we have to understand our own biases, prejudices, and limiting beliefs and be the change we want to see in the world.
Learn about the racial history of America. Read about whiteness and white fragility. The only way to actively dismantle white supremacy is for each of us to learn our own roles in the matrix of domination. As attorneys, all of us have to interrogate our relationship with justice.
COURTNEY A. WOODS is an associate at Jackson Lewis, P.C., and is admitted to practice in the state of Maryland and the U.S. District Court of Maryland. Woods earned her J.D. from Howard University School of Law in 2020 and M.Ed. in Education Policy and Management at Harvard University in 2017.
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THE SURPRISING HISTORY OF RACE EQUALITY IN AMERICAN CONSTITUTIONAL LAW1
2
1
BY MARK A. GRABER 2
The law of race equality has evolved in the United States in ways that provide greater context for contemporary claims that Supreme Court justices are responsible for implementing a “color-blind” Constitution with an equal protection clause that requires strict scrutiny for all racial classifications. That the equal protection clause provides the textual hook for evaluating the constitutionality of race conscious measures, the Supreme Court of the United States is the institution primarily responsible for implementing the equal protection clause, and strict scrutiny is the test or standard the Supreme Court uses to determine whether race conscious measures pass constitutional muster are staples of contemporary constitutional law.
These practices date from the Supreme Court’s decision in Korematsu v. United States. 3 The law of racial equality before Korematsu was structured by different textual hooks, alternative conceptions of institutional authority and other tests or standards for evaluating race conscious measures. The Republicans who framed the post-Civil War Amendments initially regarded the Thirteenth Amendment as the foundation for the constitutional law of racial equality. Constitutional authorities for most of the late nineteenth century thought Congress was responsible for determining how to implement the constitutional obligation to end the slave system and make persons of color full citizens. The constitutional law of the early twentieth century distinguished between race discriminations, which were per se unconstitutional, and race distinctions, which were constitutional when reasonable.
These practices belie Whiggish histories that regard the contemporary constitutional law as an unequivocal improvement on past practice, even as many believe greater improvements are still necessary. A constitutional law of racial equality rooted in the Thirteenth Amendment is more open to race conscious measures designed to benefit persons of color and has no state action limit on federal laws that mandate racial equality. Making Congress the first mover is more conducive to racial equality whenever the national legislature is more supportive of racial equality than the national judiciary. Justices in the early twentieth century, at least according to their announced principles, would have declared unconstitutional the military order sustained in Korematsu because they were committed to prohibiting all race discriminations.
3 323 U.S. 314 (1944).
The following is excerpted from Mark A. Graber, “Korematsu’s Ancestors,” 74 Arkansas Law Review 425 (2021).
Regents Professor, University of Maryland Carey School of Law.
This essay explores the constitutional law of explicit race conscious measures, a myopia that exaggerates the egalitarian commitments of the practice before Korematsu. Racial hierarchies in the United States in the past and at present are as often structured by the refusal to acknowledge race as by what Americans do when they explicitly acknowledge race. Americans have often shamefully justified their willingness to use race conscious measures that discriminate against persons of color. Americans have even more shamefully refused to see race discrimination when government employs ostensibly neutral measures in ways that oppress, often by intention, Black Americans and other persons of color.
Five cases or sets of cases capture the law of explicit race classifications at different times in American history. Judge William Cranch’s opinion in Costin v. Corporation of Washington (1821)4 articulated the principles that structured the status of citizens of color under antebellum constitutional law. Chief Justice Salmon Chase’s brief opinion on circuit in In re Turner5 captured the constitutional law of race equality during Reconstruction. The Strauder v. West Virginia/6 Ex parte Virginia/7 Commonwealth of Virginia v. Rives8 trilogy provided the framework for thinking about race equality in the late nineteenth century. Plessy v. Ferguson9 inaugurated early twentieth century practice. Korematsu was the first step in contemporary practice. Each regime had a distinctive understanding of the textual hook for the law of race equality, the institution responsible for securing race equality, and the standard for judging whether race discriminations passed constitutional scrutiny.
COSTIN.
Costin v. Corporation of Washington (1821) sustained the onerous restrictions that the corporation governing Washington D.C. placed on persons of color. Persons of color were required to register, provide bonds for good behavior, and obtain certificates from three white persons vouching for their character and employment. In sharp contrast to Dred Scott v. Sandford, 10 Costin assumed that persons of color were citizens of the United States entitled to the rights of citizens of the United States.11 Governing officials could nevertheless make legal distinctions among citizens. Race was one important basis for legal distinctions. Judge Cranch stated, “if there be a class of people more likely than others to disturb the public peace, or corrupt the public morals, and if that class can be clearly designated, [society] has a right to impose upon that class, such reasonable terms and conditions of residence, as will guard the state from the evils which it has reason to apprehend.”12
Costin emphasized arbitrary laws rather than suspect classifications.13 No legal distinction was inherently more suspect than another or required legislators to meet a higher standard of proof either as the end to be achieved or the relation-
4 6 F. Cas. 612 (C.C.D.C. 1821).
5 1 Abb. U.S. 84 (C.C.D. Mary., 1867).
6 100 U.S.303 (1879).
7 100 U.S. 339 (1879).
8 100 U.S. 313 (1879).
9 163 U.S. 537 (1896).
10 60 U.S. 393 (1856).
11 Costin at 613. Compare Dred Scott, at 403–27 (1856).
12 Costin at 613
Americans have even more shamefully refused to see race discrimination when government employs ostensibly neutral measures in ways that oppress, often by intention, Black Americans and other persons of color.
ship between the discrimination and that end. The constitutionality of legal distinctions and discriminations depended on whether they were based on real differences between the regulated and unregulated classes and whether the distinction or discrimination served the public interest. Judges enforced the constitutional law of equality. By the Civil War, a well-developed state jurisprudence existed establishing the basic parameters of constitutional equality. An examination of race cases only would barely detect this commitment to judicial power. Courts sustained almost all race conscious measures that were adjudicated before the Civil War.
No consensus developed in the antebellum United States on the best textual hook to hang constitutional commitments to equality. Judge Cranch did not point to any provision in any constitution when claiming, “the constitution gives equal rights to all the citizens of the United States.”14 State courts were promiscuous when providing the constitutional underpinnings for equal rights. State decisions were rooted in general equality provisions, in “due process” or “law of the land” provisions, on constitutional provisions prohibiting exclusively privileges or special laws, on separation of powers grounds or on general constitutional principles.
13 See Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Duke University Press: Durham, NC, 1993), pp. 19–55
14 Costin at 613. Compare Dred Scott, at 403–27 (1856).
TURNER.
In re Turner held that the Maryland indenture law requiring employers to educate only white apprentices violated the Civil Rights Act of 1866, which was a constitutional exercise of congressional power under Section Two of the Thirteenth Amendment.15 The Thirteenth Amendment supplied the textual hook for this decision. Congress was the institution primarily responsible for implementing the constitutional ban on slavery. Congress was empowered under the Thirteenth Amendment to take pass any legislation that helped transform former slaves into full citizens.
The logic of Thirteenth Amendment foundations for the constitutional law of racial equality supported race conscious programs that benefitted persons of color as well as anti-discrimination measures.16 The fundamental question in the Turner regime was whether the law undermined slavery, the slave power or the slave system. Laws that prevented discrimination against persons of color and laws that provided specific benefits to persons of color were both constitutional means for undermining the slave system and making former slaves full citizens of the United States.
The Thirteenth Amendment law of racial equality did not have a state action limitation. Chase in Turner declared the indenture unconstitutional, not the state law mandating different treatment for white apprentices and apprentices of color. “The alleged apprenticeship in the present case is involuntary servitude,” he maintained, “within the meaning of the words in the amendment.”17 Chase then observed “the indenture” violated the Civil Rights Act because that private bargain “did not contain important provisions for the security and benefit of the white apprentices, which are required by the laws of Maryland in indentures of white apprentices.”18
STRAUDER/VIRGINIA/RIVES.
The Supreme Court in Strauder officially made the Fourteenth Amendment the constitutional foundation for the law of racial equality when striking down a West Virginia law that banned persons of color from sitting on juries. Justice William Strong’s majority opinion, after quoting the text of Section One, declared, “What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons?”19 Strauder broke from the Turner regime by adopting what later became known as a “banned categories” approach20 rather than a ban on discrimination against persons of color. Congress, when implementing the
15 Turner at 339.
Thirteenth Amendment’s mandate for racial equality, had passed race conscious measures that favored former slaves, while insisting that persons of color enjoy the civil rights of white persons.21 Strauder and subsequent cases ruled out legislation making African Americans the “special favorites of the law.”22 A constitutional law of racial equality rooted in the equal protection clause of the Fourteenth Amendment was designed to secure a “perfect equality of civil rights” rather than provide former slaves and persons of color with the rights and resources necessary to become full American citizens.
The late Strauder regime introduced the state action doctrine to American law.
The Fourteenth Amendment that provided the foundation for the Strauder regime declared, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The majority opinion in The Civil Rights Cases emphasized the insertion of “No State” in Section One. Justice Joseph Bradley insisted, “It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment.”23
Ex parte Virginia, decided on the same day as Strauder, introduced legislative primacy to the constitution law of the United States when declaring, “It is not said the judicial power of the general government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed. . . . It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation.”24 The constitutional law of race
A
constitutional law of racial equality rooted in the equal protection clause of the Fourteenth Amendment was designed to secure a “perfect equality of civil rights” rather than provide former slaves and persons of color with the rights and resources necessary to become full American citizens.
16 This paragraph relies heavily on Eric Schnapper, “Affirmative Action and the Legislative History of the Fourteenth Amendment,” 71 Virginia Law Review 753 (1985).
17 Turner at 339.
18 Turner at 339.
19 Strauder v. West Virginia, 100 U.S. 303, 307–08 (1879).
20 See Ronald Dworkin, Law’s Empire (Harvard University Press: Cambridge, MA 1986), pp. 383–84.
21 See notes ___, above, and the relevant text.
22 Civil Rights Cases, 109 U.S. 3, 25 (1883).
23 Civil Rights Cases, at 11.
24 Ex parte Virginia, at 345–46.
equality under legislative primacy requires that Congress be the first mover. Litigants may assert rights under the equal protection clause only after Congress passes a statute implementing the equal protection clause.
PLESSY.
Plessy further entrenched the Fourteenth Amendment as the textual hook for the constitutional law of racial equality. Justice Henry Billings Brown’s majority opinion cast aside arguments that race discrimination was an aspect of slavery or a slave system. “Slavery,” he said when rejected a Thirteenth Amendment attack on a Louisiana law mandating race segregation in street cars, “implies involuntary servitude,—a state of bondage, the ownership of mankind as a chattel, or, at least, the control of the labor and services of one man for be benefit of another, and the absence of a legal right to the disposal of his own person, property, and services.”25 The Fourteenth Amendment was Brown’s source for the constitutional commitment to “the absolute equality of the two races before the law.”26
The Plessy regime divided the law of racial equality into the law of race discriminations and race distinctions. Race discriminations were per se unconstitutional. Such a law, the influential Race Distinctions in American Law declared, “necessarily implies partiality and favoritism.”27 Race distinctions were constitutional if they were based on real differences between the races and promoted the good of both races. Race Distinctions explained, “There is no discrimination so long as there is equality of opportunity, and this equality may often be attained only by a difference in methods.28 Brown’s opinion in Plessy anticipated this distinction between race discriminations and race distinctions. He declared, “The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.”29
The Plessy regime abandoned the Strauder regime’s eroding institutional commitment to legislative primacy in race cases. Plessy v. Ferguson was the first case discussing the constitutional law of racial equality in which the justices discussed only the meaning of Section One of the Fourteenth Amendment. Justice John Marshall Harlan’s dissent in Plessy assumed that federal courts had independent authority to implement Section One of the Fourteenth Amendment.30
25 Plessy at 542.
26 Plessy at 543.
Justice Henry Billings Brown’s majority opinion assumed, with Harlan, that the sole issue in Plessy was whether segregation was consistent with the post-Civil War Constitution and not whether the judiciary rather than Congress was empowered to make that determination.31
KOREMATSU.
Korematsu introduced the strict scrutiny test to American constitutional law. The first substantive paragraph of Justice Hugo Black’s majority opinion declared: It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. . . . Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.32
This strict scrutiny test, as applied in Korematsu, was arguably less protective of Japanese Americans than the standards laid down during the Strauder and Plessy regimes. The Japanese exclusion order was a race discrimination rather than a race distinction. The Korematsu regime was the first
Korematsu improved upon standards the Plessy regime employed when considering race classifications, but that improvement was limited and may have been more theoretical than real.
to interpret the post-Civil War Constitution as permitting constitutional authorities to engage in race discrimination when that race discrimination served a public interest, albeit a very pressing public interest.
Korematsu improved upon standards the Plessy regime employed when considering race classifications, but that improvement was limited and may have been more theoretical
27 Gilbert Thomas Stephenson, Race Distinctions in American Law (D. Appleton and Company: New York, 1910), p. 4.
28 Stephenson, Race Distinctions, p. 3.
29 Plessy at 544.
30 Plessy at 553 (Harlan, J., dissenting).
31 Plessy at 542.
32 Korematsu at 216. See Hirabayshi at 111 (Murphy, J., concurring) (“Except
than real. Black’s opinion suggests that only race discriminations that advance vital social purposes pass constitutional muster. Preventing racial mixing on street cars might not meet that standard. Still, Korematsu did not overrule Plessy. A racist southern constitutional decision maker during the first half of the twentieth century would have little difficulty finding that preventing racial amalgamation or fights between the races was a “pressing public necessity.”
The resulting Fourteenth Amendment law of racial equality was not as friendly to affirmative action programs as Thirteenth Amendment law had been during Reconstruction. In sharp contrast to the Turner regime, which maintained race conscious programs were a legitimate means for implemented the Thirteenth Amendment’s commitment to ending both slavery and the slave system, the Korematsu regime insisted on a race neutral interpretation of the race neutral phrase “equal protection.” Justice Lewis Powell’s crucial opinion in Regents of University of California v. Bakke stated, “[t]he guarantees of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.”33
All the judges on the Korematsu court took for granted that federal courts were responsible for determining the constitutional law of racial equality. The majority opinions and dissents quarreled over whether justices should defer to the military judgment that excluding Japanese from the West Coast was necessary to prevent a possible Japanese invasion. None suggested that implementing the constitutional law of racial equality was primarily a legislative task. Ironically, the Plessy regime’s abandonment of legislative primacy made possible the Supreme Court’s decision in Brown v. Board of Education. 34 Under the Turner and Strauder regimes, Congress had to be the first mover when the constitutional law of racial equality was established. No congressional legislation was on the books when Brown was decided. Justice Robert Jackson’s comment in oral argument, “I suppose that realistically the reason this case is here was that action couldn’t be obtained from Congress,”35 reflected the Plessy and Korematsu regimes’s commitment to permitting federal courts to be the first mover in determining the constitutional law of racial equality.
COMPARED TO WHAT
Whether Korematsu or the Korematsu regime should be celebrated depends on what the Korematsu regime is being compared to. Korematsu fares well when compared to the Costin regime, which permitted states to make race discriminations
Whether Korematsu or the Korematsu regime should be celebrated depends on what the Korematsu regime is being compared to.
on the grounds that persons of color were racially inferior to white people. The comparison between the Korematsu regime and the Turner, Strauder, and Plessy regimes is more complicated. Each of the latter three regimes has at least one element that arguably better promotes racial equality than the Korematsu regime. The Plessy and Strauder regimes treat race as a banned category. The Strauder and Turner regimes require Congress to be the first mover in implementing the post-Civil War Amendments. The Turner regime treats the Thirteenth Amendment as the textual hook for the constitutional law of racial equality. These differences make a difference, particularly with respect to the law of affirmative action and the state action doctrine. Whether the Korematsu regime improved upon these past regimes depends on whether one thinks affirmative action promotes racial equality, whether some version of the state action doctrine is an appropriate limit on the constitutional commitment to race equality, and what institution in general at present is most likely to best implement the constitutional commitment to race equality.
33 438 U.S. 265, 289–90 (1978).
34 347 U.S. 483 (1954).
35 Schmidt, “Section 5’s Forgotten Years,” p. 65 (quoting Robert Jackson). Jackson repeated this claim in his unpublished draft concurrence in Brown. He declared, “We are urged . . . to supply means to supervise transition of the country from segregated to nonsegregated schools upon the basis that Congress may or probably will refuse to act. That assumes nothing less than that we must act because our representative system has failed.” Schmidt, “Section 5’s Forgotten Years,” p. 65.
BY GARY C. NORMAN, ESQ.
As I have often emphasized as Chair at the Maryland Commission on Civil Rights (Commission), this is a great republic that has given me many opportunities as a lawyer but as a blind person. Yet, I can only imagine what the ravishes of the past or systemic bias may feel like for our African American brothers and sisters—even those who are fellow lawyers. I have known significant bias, discrimination, and stigma as a lawyer with a disability curtailing my career opportunities. Therefore, I am proud to play my own role, even if small, in ensuring that our great and historic charter of the U.S. Constitution actualizes as more than just words on a page for all of us.
As the insurrection of 2021 should remind lawyer public servants, history—its successes and its failures—looms never so far in the distance.1 Certainly, this proved true for the lawyer aristocrats of Rome and its Senate, who looked to their heroes—even ones from hundreds of years ago—for guidance on current affairs. As lawyers, we must grapple with our hearts and our commitment in redressing the race-based crimes of the past. Such that, in the words of President Biden, we will be “the country that we should be and can be.” Otherwise, our republic stands doomed to repeat January 6, 2021, making all of us less free.
I could not “see” the portrayals of insurgents carrying Confederate flags within the U.S. Capitol.2 One opinion author described the insurrection as “. . .bright reds of the Confederate and Nazi flags and matching MAGA hats simmered against a sea of Trump flags now sold on street corner popup shops that outnumbered American flags, a noose, a raised wooden cross reminiscent of Klan lynching, and a [horrible] sweater. . . .”3 The sound clips I heard that day and beyond broke my heart as a patriotic American who has been involved with some form of community service since I was a grammar school boy. The rioters showed a proportion of our society, who are not only left behind by a more diverse and technical American story, but who cope with this change by reveling in the mythology of the Lost Cause grounded in the inferiority of the other.4 In December 2020, the final surviving widow of a Confederate soldier died.5 Therefore, vestiges of racism and race-based crimes still demand our attention in this great, but imperfect, republic, requiring the continued commitment of lawyers and the rule of law to ensure equality and equilibrium.
As President Biden stated, racial equity must be “the business of the whole of government.”6 A future hearing of the Commission, in 2022, will explore
1 Rahe Lynn Barnes & Keri Leigh Merritt, Opinion: A Confederate Flag at the Capital Summons America’s Demons, CNN, Jan. 7, 2021, 6:58 P.M., https://www.cnn.com/2021/01/07/opinions/capitol-riot-confederacy-reconstruction-birth-of-a-nation-merritt-barnes/index.html
2 Id 3 Id
4 Compare id., with Meilan Solly, The Last Surviving Widow of a Civil War Veteran Dies at 101, Smithsonian Mag. (Jan. 7, 2021), https://www.smithsonianmag.com/smart-news/last-surviving-widow-civil-war-veteran-dies-101-180976702/.
5 Solly id.. (According to the article, the last surviving widow reasonably comprised a feminist for her time; keeping her own last mname. She wed the veteran when she was seventeen years old. More interesting than this, the article indicates that, from 2008 to 2017, there may have been many surviving Civil War widows.).
6 White House, Remarks of President Biden at Signing of an Executive Order on Racial Equity (Jan. 26, 2021), https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/01/26/remarks-by-presi-
Vestiges of racism and race-based crimes still demand our attention in this great, but imperfect, republic, requiring the continued commitment of lawyers and the rule of law to ensure equality and equilibrium.
The reparationsrelated legislative measures could broker much needed dialogue among us as the leaders of society.
the role of law, government, and indeed lawyers, in race-based crime. It is particularly disturbing that lawyers may have actively supported the January 6, 2021 riots. For example, a lawyer from Georgia, William Calhoon, reveled in the rioters “stopping the steal.” U.S. senators, including Senator Ted Cruz, supported the mythology of former President Trump and his “private army” as to the “stolen election.”7 While the Senator acts questionably, he possesses impressive legal credentials. When even U.S. senators, who are lawyers, foment arguably at best perspectives at worst outright falsehoods that resulted in an insurrection on a seat of government, it quite clearly implicates a need for soul searching and affirmative measures by our profession.
In September 2020, the Maryland Lynching Truth and Reconciliation Commission submitted its Interim Report to the Maryland General Assembly and to the Maryland Governor.8 The Commission must provide recommendations as part of its final report, including recommendations “rooted in the spirit of restorative justice.”9 Because of the threats posed by the COVID-19 pandemic, the Commission met monthly through online meeting platforms. As Chair of the Commission, I have the honor of witnessing the dedication and passions the Board members bring to our historic work. Moreover, the Commission has received grant funding from the U.S. Department of Justice. Public service can reinforce the best of the cardinal virtues in all of us: fortitude, temperance, justice, and prudence. The Commission anticipates holding its “hearings” in 2022 across the state, providing a good, facilitated forum and history capture about lynching. Generally, a thought pattern exists among several members that, despite its strictures as a short-term public body, the Commission must really bring healing and storytelling to these past crimes, empowering communities. In the interim, the Maryland General Assembly considered various proposed bills during the 2021 regular session that touch upon race-based equity concerns.
Maryland lawmakers repealed the state song, Maryland, My Maryland, and Governor Hogan approved.10 For those who do not understand that history proves not so far distant, this bill may arguably seem as sound and fury signifying nothing. The lyrics quite arguably show defiance against the federal government. The song arguably derogates what pro-American supporters of our government considered a war-time measure: quelling the insurgents. Of interest, House Bill 1021, the Harriet Tubman Community Investment Act, proposes empaneling a reparations task force.11 Concurrently, a bill has been introduced in Congress also to empanel a federal-level Commission on reparations.12 The title of the bill, as with all titles for Congressional bills, reflects a specific purpose, or even literalism in some instances.
The reparations-related legislative measures could broker much needed dialogue among us as the leaders of society. Considering that Democrats do not have a cloture-proof majority in the current U.S. Senate, the Congressional proposal will not likely gain traction in the 117th session. Even bills that have limited opposition require protracted time in our antiquated short session dent-biden-at-signing-of-an-executive-order-on-racial-equity/
7 Bryan Mena, “Democrats File Ethics Complaint Against Ted Cruz After Capital Riot,” The Tex. Tribune, Jan. 22, 2021, 12 P.M., https://www.texastribune.org/2021/01/22/ted-cruz-democrats-capitol-riot/
8 See generally, The Resources contained at the home site for the Maryland Lynching Truth and Reconciliation Commission, https://msa.maryland.gov/lynching-truth-reconciliation/
9 Id
10 Scott Neuman, “Maryland Repeals State Song That Called Lincoln A 'Tyrant,'” Maryland Matters, May 20, 2021, https://www.npr.org/2021/05/20/983057655/maryland-repeals-state-song-that-called-lincoln-a-tyrant.
11 State Government—Maryland Reparations Commission, Harriet Tubman Community Investment Act, H. 1021, Reg. Sess. (2021).
12 Commission to Study and Develop Reparations Proposals for African Americans Act, H.R. 40, 117th Cong. (2021), https://www.congress.gov/bill/117th-congress/house-bill/40?s=1&r=6.
here in Maryland. As legal professionals, we are supposed to value the past—in other words, precedent. As such, one must logically draw a line to the important restorative efforts we undertook as a republic to recompense for our crimes against our own Japanese citizens during World War II.13 To provide the reasoned analysis every lawyer should engage in, “. . . attaining reparations to African-Americans is not an impossible dream.”14 However, “. . .it is, and will continue to be, much harder than it was for Japanese-Americans.”15 The proposed cost of a pure reparations measure is one countervailing consideration.16 For all of these considerations, I look forward to the work of these proposed Commissions. In conclusion, let us have “malice towards none,” while never yielding—like President Lincoln—in our efforts to honor the profession and to serve the Union at all costs. In his famous words, “. . . let us strive on to finish the work we are in. . . .”17
13 See e.g., Rhoda E. Howard-Hassman, Why Japanese-Americans Received Reparations and African-Americans are still Waiting, the Conversation, Jul. 17, 2019, 7:04 P.M., https://theconversation.com/ why-japanese-americans-received-reparations-and-african-americans-are-still-waiting-119580.
14 Id 15 Id
16 Id
17 Transcript of President Abraham Lincoln’s Second Inaugural Address (1865), https://www.ourdocuments. gov/doc.php?flash=false&doc=38&page=transcript
Let us have
“malice towards none.”
INTERSECTIONALITY: Clashing Point of Race and Gender
BY NATASHA M. DARTIGUE, ESQ.
"HUMAN CRISIS DOES NOT CREATE A RECOGNITION OF OUR COMMON HUMANITY."
It is through this lens that the term “intersectionality” came to bear 30 years ago. Transformative thinker, legal scholar, author, researcher, and UCLA and Columbia law professor Kimberlé Crenshaw coined the phrase in 1989. In its original form, Professor Crenshaw defined intersectionality as the place where race, gender, and class traverse or overlap in the lives of an individual. It is a legal concept that describes how social structures make certain identities the consequences or vehicles of vulnerability. To best understand where and how people exist today among the COVID-19 realities, we must understand basic terms that define what impedes equal opportunity and equal protection under the law.
Professor Crenshaw publicly explained her theory of intersectionality in the paper titled "Demarginalizing the Intersection of Race and Sex." The 30-page writing, appearing in the University of Chicago Legal Forum publication, analyzed the legal issues presented in DeGraffenreid v. General Motors Assembly Div., Etc., 413 F. Supp. 142 (E.D. Mo. 1976). The issue before the court was “whether the ‘last hired-first fired’ lay off policies of the General Motors Corporation discriminate against the plaintiffs identified as black women, and are therefore a perpetuation of past discriminatory practices.” DeGraffenreid, 413 F. Supp. 142 (E.D. Mo. 1976). Plaintiffs were former employees who made employment discrimination claims at their respective industrial plants. In the workplace, Black jobs were available to Black men, and female jobs were available to white women. However, Black women were not employed in a similar manner.
Although the court agreed that relief should be granted where discrimination was shown, as proscribed in the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq. and the Civil War Civil Rights Acts, 42 U.S.C. § 1981, it would not allow the stacking or combining of statutory remedies. Specifically, the court indicated that plaintiffs should not be allowed to combine statutory remedies to create a new "super-remedy." Id. The court opined that their cause of action gave the plaintiffs, who were Black women, relief greater than was originally intended under the statutes. Consequently, the court examined the cause of action under the separate lens of race discrimination and alternatively under the separate lens of sex discrimination. It outright refused inspection under both theories. The evidence presented through affidavits and company policies was evaluated. After an analysis of the General Motors practices, the court found that not all Blacks and alternatively not all women were excluded from employment, and disallowed the claim asserting discrimination.
The court erroneously disregarded the basic truth that Black women have distinct experiences as women which differ from white women and simultaneously have distinct experiences as Blacks that differ from those of Black men.
However the question remained. Where do employees who are Black women find relief? The court erroneously disregarded the basic truth that Black women have distinct experiences as women which differ from white women and simultaneously have distinct experiences as Blacks that differ from those of Black men. Black women exist in a space where the realities of race and gender overlap. Within the American social structure, it is at times a toxic place where racism and sexism thrive. Professor Crenshaw named the place "intersectionality." Doing so she brought into the legal forefront, squarely and with particularity, the discussion of material differences in the conditions of people's lives, particularly black women. With an insight into the origin of the term "intersectionality," clarity is gleaned that Professor Crenshaw's definition is not about multiple identities.
As legal professionals, we must not fail to recognize that preexisting social differences among people have created distinct and devastating outcomes. To garner greater understanding and continue the work of identifying and dismantling discriminatory structures, I challenge you to expand your knowledge. Professor Crenshaw continues her research and scholarly work as the Co-Founder and Director of the African American Policy Forum (AAPF). The AAPF is a think tank focused on the elimination of structural inequality and provides a plethora of resources. Understanding the term intersectionality, its meaning and origin is only the beginning of the necessary work to ensure equal opportunity and equal protection under the law. We must continue to challenge existing societal frameworks of race and gender which cannot and must not be neatly compartmentalized.
Please answer my call HELLO? … HELLO?
BY TRISH WEAVER, ESQ.
For those that read the heading and began to tune out, we need you. Please, read on.
For those that fashion yourselves to be fairly open-minded and opposed to “racism,” please read on. I fall in that latter group; but, in the past two years, I have learned that I really only saw and understood the tip of the iceberg. I took to learning more about racism embedded into our systems – both by accident and by purpose, and I now have a much wider and deeper understanding than ever before. And, the biggest thing I learned is that I have so much more to learn and understand. But, like most things that make a difference, the first step is getting started. With that in mind, I propose a blueprint. I want to share with you the recent activities of the Montgomery County Racial Justice Council in the hopes that they resonate with you and prompt you to take similar action in your own bar association or other community groups.
The Racial Justice Council (RJC) was formed in the aftermath of the murder of George Floyd and was born of the soul-crushing experience of watching one black life after another taken with no change. Recognizing that this and other issues of racial injustice persist, the RJC issued a challenge to members of the Montgomery County Bar Association to educate themselves about systemic racism. In August of 2020, we launched the “20 Weeks for 2020 Pledge” and had over 360 pledge takers, which included lawyers, judges, and legal staff members.
The RJC’s Community Outreach Sub-Committee, which I co-chaired with Judge Jill Cummins, selected a different topic each month, circulated one email each week identifying articles and/or videos on that month’s topic, and then had a facilitated discussion on the topic at the end of the month. The monthly topics were:
• August – White Privilege
• September – Voter Suppression
• October – Black Rage/Black Trauma
• November – Mass Incarceration
• December – Allyship
We received positive feedback from the “pledgers” who found the experience to both deepen and broaden our awareness of systemic racism. Given the pandemic, we used Zoom for the monthly discussions and partnered with the Association of Black Psychologists, which provided facilitators to lead smaller group discussions in Zoom breakout rooms. We talked openly, extended grace to one another, and created a space to begin having some of the difficult conversations on these issues.
We talked about how folks think about racism. Some thought about an individual’s use of racial slurs or the overt mistreatment of a person based on race. Some thought that being “color blind” was the correct approach – where race is not recognized. Others thought about systemic racism – discrimination that is baked into the fabric of our institutions and the policies that govern them.
Make no mistake about it, systemic racism has long been with us in this country – and remains alive and well. It has many faces and manifests as disparities in education, housing, employment, healthcare, and so many others. As Stokely Carmichael wrote in 1967, institutional/systemic racism is harder to see because of its "less overt, far more subtle" nature, as it "originates in the operation of established and respected forces in the society, and thus receives far less public condemnation than [individual racism].”1 Being “color blind” may be well intended, but it largely ignores these systemic aspects of racism.
As lawyers, we are keepers of our judicial system. We are to strive for justice and root out injustice – both in and out of the courthouse. Yet, our house – the judicial system – continues to breed its share of racial inequity. It is incumbent on all of us to first increase our awareness and understanding of the inequities – and then to take action to do something about it.
Here, the words of Benjamin Franklin are apt: “Justice will not be served until those who are unaffected are as outraged as those who are.”
So, I must ask, are you outraged that:
• More of Maryland’s prison population is Black than in any other state in the nation? According to the November 2019 report issued by the Justice Policy Institute, Mississippi is second to Maryland in the country for the incarceration of young Black men.2
• Black students are suspended at a rate that is 5 ½ times, and Latino students at a rate that is nearly 3 times, the rate of suspension of white students?3
• In Maryland, black youth are more than six times as likely to be detained or committed in juvenile facilities as their white peers? According to data collected in October 2019 and recently released, Black children are 18 times more likely to be sentenced as adults than white kids.4
• Fifty-eight percent (58%) of women attorneys of color surveyed
1 Stokely Carmichael and Charles V. Hamilton, Black Power: The Politics of Liberation (1992 ed.).
2 Justice Policy Institute, “Rethinking Approaches to Over Incarceration of Black Young Adults in Maryland,” November 6, 2019 (https://justicepolicy.org/wp-content/uploads/justicepolicy/documents/Rethinking_Approaches_to_Over_Incarceration_MD.pdf).
3 2019-7, Racial Equity Profile, Mont. Co., JUPITER INDEPENDENT RESEARCH GROUP – OFFICE OF LEGISLATIVE OVERSIGHT, July 15, 2019.
4 The Sentencing Project, “Black Disparities in Youth Incarceration,” July 15, 2021.
This article is a call to action. A call to greater awareness. A call to justice. Specifically, a call to racial justice.
by the American Bar Association say they have been mistaken for administrative staff – while only 7% of white male lawyers report a similar occurrence.
• Nationally, only 5% of lawyers are black, and only 5% of lawyers are Latino – while they are 14% and 18% of the full population, respectively.
The numbers are sobering and can no longer be ignored. These sta tistics show the reality that Black and brown people in our state are at a significant disadvantage, continually swimming against the tide.
So, are you outraged?
So, now let me ask:
Do you remain silent or take action?
The answer lies in the words of two great leaders:
• Martin Luther King, Jr. lamented: “In the end, we will remember not the words of our enemies, but the silence of our friends.”
• Similarly, Desmond Tutu said: “If you are neutral in situations of injustice, you have chosen the side of the oppressor.”
Inaction and apathy – or assuming that someone else is doing it –are the “silence” and “neutrality” that allow our systems to remain unchecked and to continue to perpetuate inequity. Please take action – starting today.
Please tune in to the continuing monthly programs by our Racial Justice Council on the many faces of systemic racism. We have had excellent programs regarding, for example, Critical Race Theory (dispelling all the misunderstandings as to what it is and is not) and How to Talk to Your Kids about Race. We will have future programs about Health Care and Race and the Environment and Race, among others. You can get on the email roster by signing up at montcle@barmont org and ask to be added to the RJC program email list. Also, please consider starting a Racial Justice Council in your own county bar
5 American Bar Association and Minority Corporate Counsel Association, “You Can’t Change What You Can’t See: Interrupting Racial & Gender Bias in the Legal Profession,” 2018 (https:// www.americanbar.org/content/dam/aba/administrative/women/youcantchangewhatyoucantsee-online-06292018.pdf)
6 American Bar Association, “ABA National Lawyer Population Survey,” 2021 (https://www. americanbar.org/content/dam/aba/administrative/market_research/2021-national-lawyer-population-survey.pdf).
their membership to continue these conversations and the growth of this amazing community within our legal community.”
The RJC’s goal is that the Challenge will be replicated in many different communities. Please feel free to reach out to me if you would like a hand in getting started.
These initiatives also meld with the MSBA’s Spark Series, which launches “critical conversations for the legal profession” around lawyers’ role in society. In the first program of the Spark Series, Sherrilyn Ifill, formerly the president and director-counsel of NAACP Legal Defense and Educational Fund, Inc., engaged in a dynamic discussion with Donna Hill Staton and encouraged lawyers to speak up in the face of inequity and abuses of the rule of law. If you missed that program. You can watch the recording called MSBA 125th Thought Leadership Spark Series featuring Sherrilyn Ifill, on YouTube.7
Collectively, all of these voices are calling us to action. Please, take the call.
7 https://youtu.be/XFGrrAAlAN0
Ethics & Risk Management Maryland Lawyer FOR THE
Insight into the ethical obligations affecting clients and the integrity of the legal profession.
Ethics & Risk Management for the Maryland Lawyer is the latest digital publication offered by the Maryland State Bar Association Committee on Ethics to help attorneys advocate on behalf of clients and maintain professionalism while practicing law.
Includes bonus material on maintaining professionalism in a virtual world!
This is one of 130+ print and digital treatises and coursebooks provided by MSBA. Free to members!
Containing vital articles and opinions published from 2019 to 2021, organized by topic:
Maintaining Client Confidentiality
Fees for Services
Avoiding Conflicts of Interest
Preventing the Unauthorized Practice of Law
Articles on Ethics
Gain clarity and get answers to your everyday ethical questions.
The Summer Scholars Pipeline Program
BY KIMBERLY ULAN, ESQ.
THE HISTORY OF THE PROGRAM
Sometime around 2008, J. Franklyn Bourne Bar Association members were discussing how the legal community in Mont gomery County could increase diversity in the law firms. Then President of J. Franklyn Bourne, Derron Parks, had an idea for firms to participate in an internship program for diverse hires. The Honorable Charles Day took this idea back to the Mont-
participation of the specialty bars and the law firms. The law firms had to agree to participate in the interview process, and the specialty bars had to agree to handle the application process.
After two years of planning, the Program began with sec-
The goal was to ensure that the legal community reflected the diverse community in the area.
gomery County Bar Foundation and collaborated with other members, including the Honorable John Debelius, to create the Program we know today. Recent members, such as the Honorable Jill Cummins, who is a Co-Chair of the Diversity Committee, continue to ensure the success of the Program.
In 2010, the Bar Foundation Committee announced the Summer Scholars Pipeline Program (Program). The Program was set to begin in the Summer of 2011. The Foundation committed itself to working with the specialty bars to encourage and foster a diverse legal field in Montgomery County, Maryland.
The specialty bars that agreed to participate are the Asian Pacific American Bar Association, J. Franklyn Bourne Bar Association, and the Maryland Hispanic Bar Association. In 2019, the LGBTQ Bar Association joined the Program.
The goal was to ensure that the legal community reflected the diverse community in the area. The Program was created to help firms find diverse attorneys from the area and keep them
ond-year law students sending applications to their respective specialty bar association in the Fall. The specialty bars review the applications and identify students who are top 25% of their class, or who are in the top 50% and demonstrate excellence and/or exceptional perseverance in some aspect of their lives.
The selected students then participate in interviews with the law firms. Upon interviewing, the firms send offers to students and then they are matched.
In the Summer of 2011, the Program’s first Summer Scholars began their internships. They were referred to as the “Super Six.” The Program began in the Fall of 2011 with an annual kickoff event, featuring speed interviews with 10 law firms. Since then numerous students have participated in the program and started their professional careers. The Program’s mission to diversify the legal community continues to be successful and evolve with the support of the law firms and the Montgomery County Bar Foundation.
SUCCESS STORIES
The Summer Scholars Pipeline Program has had a meaningful impact on the lives of many young attorneys who chose to stay in the county as a result of the program. We would like to spotlight just a few of those attorneys here.
“Without the program, obtaining an internship with a local law firm would have been difficult.”
EDUARDO GARCIA was drawn to the Summer Scholars Pipeline Program because he was interested in “being part of a community that affirmatively sought diversity and understood its value.” After a successful summer at Stein Sperling Bennett De Jong Driscoll PC, he was offered full time employment. Though not originally from Montgomery County, Garcia states that he knew this was the place where he wanted to start his career when he saw the type of work being done in this area and the collegiality of the members of the Bar Association of Montgomery County.
Garcia was the first Summer Scholars candidate ever chosen for a summer at Stein Sperling, and today he is a Partner with the firm. Since Garcia’s summer, Stein Sperling has selected eight more candidates from the Summer Scholars Program to work for their firm during their respective summers, and three of those candidates received permanent positions. Garcia states that given his immense sense of gratitude for the program, he has subsequently sought every opportunity to help the program grow. He has become a member of the Montgomery County Bar Association’s Executive Diversity Committee, which runs the Pipeline program on behalf of the Bar Foundation. He also is a mentor and direct participant in the selection process on behalf of Stein Sperling. Garcia’s rise from Pipeline candidate to Partner is a true testament to the pathways the program can open for students.
JOSE ESPEJO was raised in Rockville. He went through the Montgomery County Public School system and attended undergrad and law school in the area. He learned about the Montgomery County Summer Scholars Pipeline Program because his then-girlfriend (now wife) was actually a Summer Scholar the year prior to his application. He was matched with McMillan Metro in Rockville and ultimately received a full-time job there. Espejo writes, “Without the program, obtaining an internship with a local law firm would have been difficult. The program also provides an early look at what the Montgomery County Bar Association offers and the importance of being involved.”
NAILA HERRERA, a Montgomery County native, had already worked at a Rockville law firm prior to attending law school, so when she heard about the Pipeline Program, she said it was a “no-brainer” to apply. While she did not receive a permanent position with the firm she was matched with for the summer, she did end up at another firm that participates in the program and credits the program with making connections that helped her subsequently gain her current position.
ANDRES MERAZ grew up in California, but his family relocated to Montgomery County in 2015. In the program, he was paired with Armstrong, Donohue, Ceppos, Vaughan & Rhoades, in Rockville. He said that the experience gave him valuable insight on what it meant to work at a law firm. While he did not ultimately receive an offer of employment there, he is now an attorney with HIAS, an organization in Silver Spring that provides legal services to asylum seekers and refugees. His work has taken him to the U.S.-Mexico border during the family separation crisis. He takes great pride in the work that he is doing, and values the Pipeline program for the early opportunities he had to work with senior partners at his summer firm.
While in law school, NIDHI PATEL came across the Summer Scholars Pipeline Program. She applied through the Asian Pacific American Bar Association and was matched with a firm for the summer of 2016. Even though she hailed from Florida, she ultimately stayed here after receiving a job offer from her firm, Stein Sperling. Patel writes that she “would not have had this connection otherwise. I truly believe this program promotes diversity and inclusivity in a way that resonates with all the members of the community.”
LOOKING TO THE FUTURE AND GROWTH
The Summer Scholars Pipeline Program represents just one of the ongoing and multifaceted efforts by the Montgomery County Bar Foundation and the Montgomery County Bar Association to diversify the legal community of Mont-
intensive series of interactive training and personal coaching sessions over the course of six months. In its debut year, November 2021 through April 2022, more than 15 Montgomery County firms and over 30 people are participating in
The Summer Scholars Pipeline Program
represents just one of the ongoing and multifaceted efforts to diversify the legal community of Montgomery County.
gomery County, to address racial injustice, and to ensure that the legal profession in this county reflects the greater community in all of its racial complexity and its multiple colors and ethnic backgrounds and gender preferences and gender identities. The Bar Foundation has established the Racial Justice Counsel which, in turn, has sponsored such programs as the 20-Weeks-In-2020 Challenge. The many participants in this program signed a pledge to address racial bias and injustice, subtle and overt, within their firms and the broader legal community through a series of lectures, discussions, and educational activities.
In 2021, the Diversity Committee of the Montgomery County Bar Foundation developed, sponsored and launched a Diversity, Equity & Inclusion program—a DEI Bootcamp— which utilizes a well-respected DEI firm to provide an
Do you think your law firm is too small to sponsor a retirement plan? Think again.
the bootcamp. The training is specifically designed to assist Montgomery County firms in attracting employees of all races, genders, and backgrounds, and in creating a culture within their offices in which diversity may truly flourish. The program is the perfect complement to the Pipeline Summer Scholars Program in the continuing efforts of the legal community of Montgomery County to achieve and sustain true diversity.
Kimberly Ulan is an associate at McGann Hughes in Rockville and practices family law.
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Fresh Faces Young Lawyers Section
Developing the Leaders of Tomorrow
Emily R. Greene
Associate Attorney, Kramon & Graham, P.A.
How are you involved with the MSBA?
I am a member of the Young Lawyers Section Council, serving as a co-chair of the Activities Committee. I have served in this role since 2019.
What project are you currently working on for the MSBA?
I am currently assisting the Activities Committee in planning the 31st Annual MSBA Young Lawyers Section Charity Event. The Activities Committee is hopeful that this will be the first in-person Annual Charity Event since 2019. This year's Annual Charity Event will be held on Friday, April 22, 2022 and is benefitting the Maryland Food Bank.
Since a very young age, I aspired to be a lawyer because it was the perfect intersection of my skills and passions. “
Why did you become an attorney?
My parents say that from the moment I could first speak, I could effectively argue. Also, coming from a family of public servants, I have always been passionate about working toward justice and helping others. Since a very young age, I aspired to be a lawyer because it was the perfect intersection of my skills and passions. I am grateful to work at a firm where I can pursue my passions of practicing law and serving others through pro bono work and community service.
Fondest memory of career to date: Because I truly love being a lawyer, it is difficult to pick just one memory, however, my proudest moment was being sworn in as a lawyer. As the first lawyer and holder of a professional degree in my family, this accomplishment felt like a great way to honor my family.
Maryland attorneys: Powering
Communities businesses justice
NFL Coach Sues League for Discrimination A Law Student's Perspective
BY JOHN KEBLISH 1
ON FEBRUARY 1 —the first day of Black History month— the National Football League was hit with bombshell lawsuit pertaining to discriminatory hiring practices. Former head coach of the Miami Dolphins, Brian Flores, filed the complaint against the NFL and all its member teams claiming they systematically discriminate against Black coaches during the interview process. In a text conversation with longstanding NFL coach Bill Belichick, Flores discovered that the New York Giants had already decided on their next head coach prior to
Too often, well-intentioned corporate guidelines, Board of Directors initiatives, and hiring practices use quotas to effect surface level change. However, these don’t create a culture that champions diversity, equity, and inclusion.
their scheduled interview with Flores. While the selection of a white head coach is not inherently discriminatory, the NFL has an interviewing policy that requires teams to interview diverse candidates for coaching vacancies. More specifically, every team is required to interview “at least two external minority candidates for open head coach positions.” The Rooney Rule, NFL Football Operations (Feb. 4, 2022) https://operations.nfl. com/inside-football-ops/diversity-inclusion/the-rooney-rule/
The Rooney Rule was created in 2003 following the firing of two Black coaches. Dan Rooney, the rule’s namesake, was the former chairman of the NFL’s Diversity Committee and the former owner of the Pittsburgh Steelers, which ironically, is currently the only team to have a Black head coach.
This case, regardless of outcome, epitomizes how businesses miss the boat on workforce diversity. Too often, well-intentioned corporate guidelines, Board of Directors initiatives, and hiring practices use quotas to effect surface level change. However, these don’t create a culture that champions diversity, equity, and inclusion. The Rooney Rule, for example, is an interview requirement that exposes hiring committees to more diverse candidates, but it has not resulted in a more robust or diverse workforce: the NFL has only one Black head coach and just two other minority coaches. Rather than establish quotas to create an artificially diverse workforce, consider the following for your practice or organization:
1. Do our policies demand equality of opportunity or incentivize inclusivity?
2. How would a more diverse and robust workforce unlock untapped capabilities?
3. Is our practice or business reflective of our mission?
Diversity, Equity, and Inclusion are not one-size-fits-all topics. They are critical focus areas that will require continual investment as your organization evolves.
1 John Keblish is a First Year Evening Student at the University of Maryland Francis King Carey Law School. MSBA welcomes contributions from law students.
Maryland State Bar Association, Inc.
Committee on Ethics
MSBA ETHICS DOCKET NO. 2022-01
Accepting Cryptocurrency in Payment of Fees
In your letter of October 15, 2021, you requested an opinion concerning the ethical propriety of an attorney accepting cryptocurrency as a retainer and, if allowed, how you must handle that retainer. The Committee on Ethics of the Maryland State Bar Association considered and approved the following as our written opinion on this matter.
Question Presented
May an attorney accept a cryptocurrency retainer in advanced payment of fees, and what are the ethical considerations raised by doing so?
Brief Conclusion
An attorney may accept cryptocurrency in payment of fees, provided that the fee is reasonable and the fee arrangement— pursuant to which such fees are paid— otherwise complies with the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”). See Md. R. Att'y Rule 19-300.1, et seq. (hereinafter “Rule”). However, given the nature of cryptocurrency and its attendant inability to be deposited into an Attorney Trust Account, we caution that alternative fee arrangements involving the receipt of fees paid in cryptocurrency raise a host of potential ethical considerations, and any attorney considering such an arrangement should be careful to ensure that such arrangements are in full compliance with the MARPC.
Statement Of Facts
As a hypothetical, you have asked us to assume that an attorney is engaged in the representation of clients operating within the cryptocurrency industry and wishes to accept payment of fees in the form of cryptocurrency, rather than in traditional fiat currency (e.g., USD). The attorney’s clients typically hold assets in the form of cryptocurrency and prefer to transact business via the direct transfer of cryptocurrency, rather than having to first convert assets to fiat currency. You’ve further asked us to assume that these clients “are generally unwilling to deposit funds directly into a traditional bank account, including an attorney trust account.”
The hypothetical attorney proposes fee agreements where after obtaining informed consent, confirmed in writing, the attorney would establish a “digital wallet” under the attorney’s exclusive control for each client. These wallets would have the express and sole purpose of holding a “retainer fee” paid in cryptocurrency assets. Upon establishing
the wallet and providing the client with the wallet address, the client would pay the retainer by directly transferring cryptocurrency assets to the newly established wallet. Upon completion of the transfer, the assets would be under the exclusive control of the attorney. Following receipt of the cryptocurrency retainer, the attorney would thereafter debit funds to the attorney’s own account as fees are earned, much in the same way that earned fees are debited from retainer funds held in Attorney Trust Accounts.
For the reasons set forth below, we believe your proposal is permissible pursuant to an alternative fee agreement(s) as described in Rule 19-301.15(c).
Analysis/Discussion
We are not the first State Bar Association’s Ethics Committee to consider the ethical implications of attorneys receiving payment in cryptocurrency.1 Ethics Committees in other jurisdictions have taken varied approaches. In general, we agree with the conclusion(s) reached by many committees that accepting payment of fees in the form of cryptocurrency comports with professional ethical obligations, provided that such fees are reasonable and that they otherwise comply with the MARPC. However, due to cryptocurrency’s decentralized digital-only nature, we caution that cryptocurrency presents unique challenges to ensuring ethical compliance.
Cryptocurrency’s
Nature –Funds or Property?
Whether cryptocurrency2 should be treated as “funds” (i.e., traditional fiat currency) or alternatively as “property” (i.e., a non-currency-commodity) is at the core of many of our concerns. Unlike traditional physical commodities (e.g., gold or silver) and unlike traditional fiat currency (e.g., the U.S. Dollar), Cryptocurrency’s digital-only algorithmic existence is “stored” in digital “wallets” maintained by online platforms (i.e., “hot wallets”) or offline on a computer’s hard drive, a USB [drive], or even paper (“cold wallets”). Assuming you have the wallet internet address, the contents of the wallet—and transactions
1 See Nebraska Bar Ethics Opinion 17-0, D.C. Bar Ethics Opinion 378, New York City Bar Formal Opinion 2019-5; see also ‘Is It Ethical for Lawyers to Accept Bitcoins and Other Cryptocurrencies?’ McCauley, Nelson, Simek, Virginia State Bar Journal - June 2018, pp. 24-25, contd. on p. 30 (republished North Carolina State Bar Journal – September 2018, pp. 36-37).
2 Digital assets colloquially referred to as “cryptocurrency” are virtual assets (e.g., digital money) that exist only in electronic form. Transactions involving the transfer of digital assets are maintained in a virtual transaction ledger called a “blockchain,” which is distributed and accessible to every computer, mobile device, or web application on that cryptocurrency’s network. The blockchain is a continuously growing chronological record of transactions. It is comprised of “blocks” of information that include the source of a digital asset, its destination, its interaction with any contracts on the blockchain, and an immutable date/time stamp. Of the thousands of cryptocurrencies, the most well-known are Bitcoin and Ethereum. See D.C. Bar Ethics Opinion 378.
of interactions with the wallet—are fully transparent and viewable to the public on the blockchain.3
Rule 19-404 typically governs the receipt of “funds” by an attorney and requires the deposit of such funds into an Attorney Trust Account4:
Except as otherwise permitted by rule or other law, all funds, including cash, received and accepted by an attorney or law firm in this State from a client or third person to be delivered in whole or in part to a client or third person, unless received as payment of fees owed the attorney by the client or in reimbursement for expenses properly advanced on behalf of the client, shall be deposited in an attorney trust account in an approved financial institution. This Rule does not
that property assets, unlike “funds,” by nature are incapable of deposit into client trust accounts and specifies how to ethically safekeep such property:
Other property shall be identified specifically as such and appropriately safeguarded, and records of its receipt and distribution shall be created and maintained. Complete records of the account funds and of other property shall be kept by the attorney and shall be preserved for a period of at least five years after the date the record was created.
Id
The U.S. Internal Revenue Service (“IRS”) describes “virtual currency,” i.e., cryptocurrency, as “a digital representation of value that functions as a medium of exchange, a unit of account, and/or a store of value,”5 and
Rule 19-301.15 the attorney must identify the cryptocurrency specifically as trust property and maintain the required records.
Alternative Fee Arrangements & Accepting Advanced Payment of Fees
Legal fees are typically paid in funds (i.e., fiat currency), rather than in property. As a result, an advanced payment received by an attorney must generally be deposited into a client trust account under Maryland Rule 19-301.15(c) and may only be withdrawn as fees are earned or expenses incurred. However, 19-301.15(c) also allows attorneys and clients to agree to alternative fee arrangements, provided that clients give informed consent, confirmed in writing:
(c) Unless the client gives informed consent, confirmed in writing, to a different arrangement, an attorney shall
Despite having no physical existence and theoretically being “spendable” like fiat currency, cryptocurrency is more similar to a commodity, such as gold, in that its exchange value is tied directly to market demand.
apply to an instrument received by an attorney or law firm that is made payable solely to a client or third person and is transmitted directly to the client or third person.
Id
Similarly, Rule 19-301.15(a) typically requires that “funds” be kept in an Attorney Trust Account:
(a) An attorney shall hold property of clients or third persons that is in an attorney’s possession in connection with a representation separate from the attorney’s own property. Funds shall be kept in a separate account maintained pursuant to Title 19, Chapter 400 of the Maryland Rules, and records shall be created and maintained in accordance with the Rules in that Chapter . . . .
Id
However, 19-301.15(a) goes on to recognize
treats cryptocurrency as property, rather than currency, for federal tax purposes. Despite having no physical existence and theoretically being “spendable” like fiat currency, cryptocurrency is more similar to a commodity, such as gold, in that its exchange value is tied directly to market demand.6
For these reasons, we believe that cryptocurrency should be treated as “property” rather than “funds,” for the purposes of ethical analysis. Thus, neither the provisions of Title 19, Chapter 400, nor the provisions of Rule 19-301.15 require that cryptocurrency assets be deposited into trust accounts, but rather permit attorneys to “appropriately safeguard” such property, (i.e., with the care required of a professional fiduciary). See Rule 19-301.15 at cmt. [1]. In accordance with Rule 19-301.15(a), an attorney’s fiduciary obligation to take necessary steps to appropriately safeguard cryptocurrency, as digital property, should be carefully considered and as required by
deposit legal fees and expenses that have been paid in advance into a client trust account and may withdraw those funds for the attorney’s own benefit only as fees are earned or expenses incurred.
Id
Similarly, Comment 4 to Rule 19-301.5 speaks directly to the ability of an attorney to ethically agree to an alternative fee arrangement, whereunder the attorney will receive a property asset—in this case cryptocurrency-- in the advanced payment of fees:
An attorney may require advance payment of a fee, but is obliged to return any unearned portion. An attorney may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 19-
3 Due to the open nature of blockchain ledgers, attorneys should consider discussing how the use of cryptocurrency may impact confidentiality.
4 As discussed, the committee believes cryptocurrency is a form of property and not “funds” as contemplated by Rule 19-404. Thus, Rule 19-404 does not apply to cryptocurrency transactions.
6 In the event that the IRS or other Federal agency modifies the manner in which cryptocurrencies are characterized and handled, our opinion may change regarding the propriety of accepting cryptocurrency in the manner described in this opinion.
301.8(i). However, a fee paid in property instead of money may be subject to the requirements of Rule 19-301.8(a) because such fees often have the essential qualities of a business transaction with the client.7
Id
Thus, accepting advanced payment of fees in cryptocurrency may be ethical, provided that any unearned portion of the advanced payment is returned at the conclusion of representation, and assuming that the attorney complies with 19-301.15(c) and 19-301.8(a)8 prior to accepting the advanced retainer.9 Any fee arrangement, regardless of whether it is paid in property or in funds, must be reasonable pursuant to Rule 19-301.5.
Informed Consent
Compliance with Rule 19-301.15(c) and 19-301.8(a), as discussed in the preceding section, is dependent upon obtaining informed consent, confirmed in writing. Although “Informed Consent” is defined by 19-301.0(f)10, we believe Comment 6 to Rule 19-301.0 provides the best guidance as to what actions an attorney must take in order to obtain informed consent:
Many of the Maryland Attorneys' Rules of Professional Conduct require the attorney to obtain the informed consent of a client or other person (e.g., a former client or, under certain circumstances, a prospective client) before accepting or continuing representation or pursuing a course of conduct. The communication necessary to obtain such consent will vary according to the Rule involved and the circumstances giving rise to the need to obtain informed consent. The attorney must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision.
7 See Rule 19-301.5 at cmt. [4] (internal citations omitted).
Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client's or other person's options and alternatives. In some circumstances it may be appropriate for an attorney to advise a client or other person of facts or implications already known to the client or other person to seek the advice of another attorney. An attorney need not inform a client or other person of
consent. Normally, such persons need less information and explanation than others, and generally a client or other person who is independently represented by another attorney in giving the consent should be assumed to have given informed consent.
Id. (internal citations omitted).
At its core, ethically accepting cryptocurrency (as an advanced retainer, pursuant to an alternative fee agreement, with informed consent confirmed in writing) turns first on the question of whether the consent obtained is truly informed. Attorneys considering such arrangements must ensure that they take ap-
At its core, ethically accepting cryptocurrency (as an advanced retainer, pursuant to an alternative fee agreement, with informed consent confirmed in writing) turns first on the question of whether the consent obtained is truly informed.
facts or implications already known to the client or other person; nevertheless, an attorney who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid. In determining whether the information and explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in legal matters generally and in making decisions of the type involved, and whether the client or other person is independently represented by another attorney in giving the
8 Rule 19-301.8(a) An attorney shall not enter into a business transaction with a client unless:
propriate steps to ascertain and confirm that their clients have the information necessary to make an informed decision, including the material risks and benefits and potential alternatives. Obtaining such informed consent in the context of fees paid in cryptocurrency may require substantially more effort on the part of attorneys, as clients will need to first understand the nature of cryptocurrency.11 Secondary to obtaining informed consent, all efforts should be made to exhaustively address contingencies or issues that may arise due to the nature of the property asset, particularly because cryptocurrencies and other digital assets may give rise to novel is-
(1) the transaction and terms on which the attorney acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek independent legal advice on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the attorney’s role in the transaction, including whether the attorney is representing the client in the transaction.”
9 The analysis and considerations set forth in this opinion are potentially applicable to most non-fiat property assets.
10 “‘Informed consent’ denotes the agreement by a person to a proposed course of conduct after the attorney has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Rule 19-301.0(f).
11 It should be noted that clients requesting to issue payment in cryptocurrency form will often be sophisticated individuals or entities and understand the nuances of the respective digital assets they wish to utilize and the mechanisms by which those assets can be transferred. However, care must be taken to ensure those clients fully understand an attorney’s ethical obligations in the context of a fee arrangement.
sues that may not be initially contemplated.12 Accepting fees paid in cryptocurrency will ultimately require substantially more effort on the part of attorneys, as clients will need to understand the attorney’s obligations as they relate to acceptance of non-fiat retainers and the parameters of the agreement should be exhaustively documented.
Conclusion
Under the MARPC, you may accept advanced retainer fees in the form of cryptocurrency in lieu of fiat currency. Before accepting any such alternate payment arrangement, you must ensure the fee is reasonable and that the client provides informed written consent and understands the nature of blockchain transactions. Attorneys who accept retainers in cryptocurrencies should be competent in utilizing the technology and able to protect the client’s assets (e.g., safekeep the client’s property as required by Rule 19-301.15). In this case, competence requires that attorneys understand and safeguard against the many ways cryptocurrency can be stolen or lost. In the same way an attorney might be disciplined for depositing a client retainer paid in fiat currency into their personal account or the firm’s operating account, an attorney accepting a cryptocurrency retainer could be disciplined for falling prey to a phishing attack, for losing access to the wallet containing the funds, or for simply sending funds to be disbursed back to the client to the wrong address. Because the cryptocurrency industry is unregulated, uninsured, anonymous, and irreversible, it is particularly important for you to appropriately safeguard the cryptocurrency retainer against theft, loss or mishandling, or other similar risks. We hope this response is helpful. Thank you for contacting the Committee on Ethics.
Very truly yours,
MSBA COMMITTEE ON ETHICS
12 Such novel issues include, but are not limited to: the increase or decrease in value of the asset, when the risk of gain or loss of value accrues, to whose benefit the gain or loss of value accrues, the ‘gas’ costs to transfer assets to/from the wallet and who will bear the burden of such costs, how many transfers may occur, security precautions taken by the attorney to safeguard the digital assets while in the attorney’s possession, the potential tax consequences of any transactions, and if/when adding additional funds to the retainer may be necessary under an “evergreen retainer agreement.”
Libby, a Cavalier King Charles spaniel, loves to travel with her best human buddy, Pat. Inspiring and informative, in this book Pat helps Libby tell the story of Libby’s Great Adventures as they visit national monuments in Washington, DC; historic towns in Maryland and national parks. Libby presents her point of view and shares historical facts about each place. There are photos of Libby as she visits each site.
xoxo,
Pat Harvey & Libby
THE PERFECT BOOK TO ENJOY WITH YOUR FAMILY!
AVAILABLE AT AMAZON, BARNES & NOBLE AND OTHER BOOK
RETAILERS
References
Rules cited
• MARPC Rule 19-301.0
• MARPC Rule 19-301.5
• MARPC Rule 19-301.8
• MARPC Rule 19-301.15
Ethics Docket Nos. cited
• Nebraska Ethics Advisory Opinion for Lawyers No. 17-03
• D.C. Bar Ethics Opinion 378
• New York City Bar Association Formal Opinion 2019-05
Other authority cited
‘Is It Ethical for Lawyers to Accept Bitcoins and Other Cryptocurrencies?’
Virginia State Bar Journal - June 2018, pp. 24-25, contd. on p. 30 (republished by North Carolina State Bar Journal –September 2018, pp. 36-37).
Date approved by committee: February 16, 2022
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.
Colleen Aracri, Esq.
LEGAL CONTENT EDITOR
Tell us a little about yourself.
I grew up in Roebling, New Jersey, a small town that is responsible for producing the steel used to build the Golden Gate and Brooklyn bridges, and many other bridges throughout the country. I obtained my bachelor’s degree in English from Villanova University and lived in Philadelphia for five years before moving to another steel town, Pittsburgh, Pennsylvania, where I attended the Duquesne University School of Law.
Tell us a little about your career as a lawyer. Any highlights?
I defended business and individuals in civil claims and handled insurance coverage disputes. My favorite part of being a practicing attorney was writing dispositive motions that resulted in the dismissal of claims or cases against my clients.
What did you do before you joined the MSBA?
I worked as an editor for the National Board of Medical Examiners for five years and at a continuing medical education company for one year before going to law school. After I got my law degree, I practiced for 11 years.
Tell us about your role at the MSBA. What's your favorite part of that role?
I am a legal content editor, which means that I produce content for the MSBA website, Bar Journal, and Resource and Learning Library. There are a lot of parts of my job that I love—a few that come to mind are learning about areas of the law I may not have been exposed to in a traditional career, getting to hear the notable speakers featured by the MSBA, and hearing the remarkable stories of people I interview for articles.
What is an interesting fact about you we wouldn’t find on your resume?
I was in the band in college. I got to travel to Montreal, New Orleans, San Diego and Los Angeles and sit courtside at the Big East Basketball tournament all four years as part of the band. So technically, I can say I played at Madison Square Garden!
What do you do to de-stress or unwind?
I am lucky enough to live in a neighborhood where I can walk to pretty much anything, so I often take walks to local businesses to clear my head. A 15-minute walk can make a world of difference! I also love to read and bake.
Success does not look the same for everyone, and you have your entire career to achieve your version of success.
What advice would you give to others considering pursuing law as a career or to young lawyers?
Don’t be discouraged if your first firm is not what you expected or you end up not liking your chosen practice area—you are not bound to stick with your first choice and it can take a while to find a good fit. Also, as hard as it may be, try not to compare yourself to other attorneys. Success does not look the same for everyone, and you have your entire career to achieve your version of success.
Advertising index
ABA Retirement Funds
PAGE 141
Ellin & Tucker
PAGE 19
Group Matrix
PAGE 5
Hite Digital
PAGE 54
LawPay
COVER 2
Minnesota Lawyers Mutual
PAGE 84
MONE$Q, a Division of AppClose, Inc
PAGE 133
NetDocuments
PAGE 104
Offit Kurman
PAGE 119
Patricia Harvey
PAGE 149
Smith & Downey, P.A.
PAGE 5
The McCammon Group
PAGE 154
The Park School of Baltimore
PAGE 60
Venable LLP
PAGE 3
Reflecting on the MSBA
Honoring the past, evolving for the future
IOur MSBA is a 125-year-old institution whose mission is as vital today as it was on the date of its founding. In short, we are the voice and zealous advocates for a storied and noble profession encompassing every segment of practice in Maryland, the District of Columbia, and wherever else Maryland licensed attorneys deliver for their clients and constituents. At this point, we represent the interests of 40,000 as we also serve the public interest.
Whether securing tens of millions of dollars for at-risk populations to ensure that they can pay for representation, via our Maryland Access to Justice Commission; pushing back on proposed legislation that can adversely affect practitioners and firms; or delivering content, resources, and practice tools during a pandemic, with over 50,000 hours consumed virtually these past two years, our focus remains squarely on you. Ensuring you succeed regardless of the path you’ve taken as part of a truly noble calling.
During our 125th anniversary we have shared stories of the many faces of the profession, as we routinely do in our various publications and on social media. You will have seen many images of President Natalie McSherry, whose great grandfather was the founding president of the MSBA. The association has changed dramatically since its inception and continues to evolve, as it must, to remain relevant to the changing interests of those we serve.
Our efforts are increasingly focused on delivering virtually, but I recently enjoyed taking part in the Leaders in Law awards event we put on with The Daily Record. Showcasing the exceptional members of this profession is what we’ve done year after year, decade after decade. While we have numerous opportunities to celebrate at our MSBA, we also understand our core mission requires us to inform, educate, connect, elevate, enable, influence, and empower.
The MSBA produces more than 200 live and virtual/on-demand events a year for members, including technical content on just about every practice area and segment of the law, and holds many in-person and virtual educational and networking opportunities. These are just a few of the many things we do that directly benefit members.
We also focus on the indirect benefits associated with advancing the
profession’s interests, and the interests of our members, via the advocacy we undertake at the federal level, as well as the state level, including with our Governor, with regulators, the judiciary, and members of the Maryland legislature. We’re a non-partisan organization focused on results for our members. By leveraging our influence on behalf of the profession we are driving results that tangibly and definitively benefit the profession.
The MSBA is also an effective way of giving back to a profession—to be part of and to contribute on behalf of something larger than ourselves. For example, we have witnessed life-changing results achieved by our Lawyer Assistance Program. These services have helped hundreds of attorneys—confidentially—in crisis due to substance abuse or mental health issues. Choosing to belong to the MSBA most certainly delivers direct benefits, but it also enables us, frankly, to save lives. We are a profession taking care of its own as part of our fundamental purpose.
We think it’s important to achieve a sense of common purpose and identity amongst members who perform a broad spectrum of work and fill a variety of roles. While our diverse members may have chosen different career paths, they have entered into and belong to a united profession.
This June we will be holding our Legal Summit and Annual meeting in Ocean City. We are returning to the newly renovated Roland E. Powell Convention Center, which was the site of countless annual meetings for the MSBA dating back to the 1970s. Change continues and yet it honors the past. That’s consistent with what we attempt to do.
Although we are returning to in-person and expect over 1,000 participants to create a dynamic environment, we are also providing a virtual attendance option. A first for us. After 125 years, we still have many more firsts up our sleeves.
Victor L. Velazquez, Executive Director
520 West Fayette Street
Hon.
(Ret.)
Hon. Sally D. Adkins (Ret.) Retired Judge, Court of Appeals of Maryland
Hon. Daniel M. Long (Ret.) Retired Judge, Somerset County Circuit Court
Hon.
(Ret.)
Hon. Thomas G. Ross (Ret.) Retired Judge, Queen Anne’s County Circuit Court Kenneth
Hon Thomas G Ross (Ret )
Hon. Nelson W. Rupp, Jr. (Ret.) Retired Judge, Montgomery County Circuit Court
Hon. John H. Tisdale (Ret.) Retired Judge, Frederick County Circuit Court
