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MSBA UPDATES
5 President's Message
8 MSBA in the Community
18 Legal Summit 2021
20 RT3: An MSBA Annual Meeting Tradition on Two Wheels
68 Can Employers Force People to Get COVID-19 Vaccines?
25 Small, Local Bar + Big Ideas = Amazing Results
119 The Case for Joining the MSBA Agricultural Law Section
Heidi Brown Member Spotlights
Jessica Markham
Kimberly Wehle
42 Tiffani Collins
46 Fred L. Coover (“Chip”)
50 Charles O. Fisher, Jr. 73 Cleaveland Miller
83 Kimberly Saxon 88 Diane Feuerherd 91 Melanie SantiagoMosier 116 Dana Cooper
Published quarterly by the Maryland State Bar Association, Inc.
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Editorial Advisory Board
Natasha Nazareth, Esq., Chair
MSBA Officers (2020-2021)
President: Hon. Mark F. Scurti
President Elect: M. Natalie McSherry, Esq.
Secretary: Del. Erek Barron
Treasurer: Jason DeLoach, Esq.
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 (2020-21 BAR YEAR)
Anna Sholl
Alexa E. Bertinelli Susan K. Francis Peter A. Heinlein
Reena Shah
Andrea Terry
David Sidhu
Corinne M. Pouliquen
Tracy Steedman
Bill Hall
Andrea Solan
Hon. Nathan Braverman
Natasha Nazareth, Chair
Richard L. Adams, III
Robert D. Anbinder
Hon. Vicki Ballou-Watts
Wolters Kluwer Legal & Regulatory U.S. Proudly Announces the New Second Edition of Maryland Corporation Law
by James J. Hanks, Jr., Partner, Venable LLP
Celebrating 31 years of Publication!
Maryland Corporation Law, including 2019 Supplement, #9780735545595, $796.
Cited by Judges and Lawyers in Maryland and Elsewhere
Maryland Corporation Law is the first fulllength treatise on Maryland corporation law in over 65 years. Since then, there has been a complete recodification of the Maryland corporation statutes, dozens of other statutory amendments, and many important cases decided by Maryland and other courts applying Maryland law. Maryland Corporation Law is the first and only work to survey all of these developments.
Written by one of Maryland’s most respected and experienced corporation lawyers, Maryland Corporation Law is based on the most thorough research ever undertaken for a book on this subject. Every volume of the Maryland Reports and Maryland Appellate Reports — as well as many other sources — was reviewed page by page to discover all cases dealing with Maryland corporation law issues since 1658.
The book contains many easy-to-use forms, including articles of incorporation, bylaws, organizational and other minutes, board and stockholder resolutions, articles of merger, articles of amendment, articles of transfer, and articles of dissolution. All are specific to Maryland. This new Second Edition also includes the author’s analysis of recent statutory and case law developments.
“The leading commentator on Maryland Corporation Law”
Judge Robert W. Sweet
United States District Court for the Southern District of New York
“ Scholarly, authoritative and practical ... the next best thing to a unanimous Court of Appeals decision!”
Max Stul Oppenheimer
Professor of Law, University of Baltimore School of Law
To order call 800-234-1660
ACCESS TO JUSTICE COMMISSION
97 Distinguished Leader: Antonia Fasanelli
99 The Case for a Right to Counsel in Eviction Cases
102 Commissioner Profile: Herb Garten
105 The Maryland Access to Justice Commission Releases Civil Justice for All Story Map
FOR YOUR PRACTICE
31 Increasing Diversity & Inclusion in the Legal Profession
44 “Battered Spouse” Defense Available Without Finding of Repeated Abuse By Perpetrator
70 Employer Mandatory Vaccination Policies in the Time of Covid-19: Practical Considerations for Employers, Particularly Those in Healthcare
75 Help Your Clients Achieve Greater M&A Success, Starting with a Winning Playbook
80 Developing a Positive Remote Culture
86 Construction Lender Has No Duty to Ensure Payment to Subcontractor in Absence of Privity
94 Behind the Scenes of "Operation Steadfast Guardian"
108 Maryland Joins Student-Athlete Compensation Debate with Jordan McNair Safe And Fair Play Act
145 Maryland Judiciary Update
146 The Ethics of Internet Advertising: An Update
151 Ethics Opinion
HEALTH & WELLNESS
112 My Struggles with Addiction and Mental Health and my Road to a Happier Life and Career
Resource & Learning Library for MSBA members
To better serve you and connect you with useful tools, we’ve compiled our professional content, downloads, research, and courses into ONE place !
WHAT’S INCLUDED
• CLE Catalog
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Tools & resources to help equip you for better legal practice and client service
Maryland Bar Foundation Fellow
Behind the Mask
This being my last President’s message for the Maryland Bar Journal, I wanted to reflect on my year behind the mask. To say this was not the year I expected is an understatement. I had been planning my presidency with precision, crafting my themes, shaping the policies I wanted to change and implement, lining up committee appointments and preparing my car for burning gas from the Appalachian mountains of Oakland to the beaches of Worcester County. I had visions of my President’s speech in Ocean City bringing everyone to their feet with thunderous applause as I dazzled them with my oratory skills. Okay, well, maybe not the latter, but I did have a plan, a game book, a guide to get me through the year, only to have it crumble before my eyes. Yes, it was COVID-19. I, like many of us was scared to death of this virus as it began initially infecting people in California and Washington state. It came from so far away, so it couldn’t really reach us in Maryland, let alone the MSBA, right? Well weeks passed and it didn’t go away. It got stronger and infected more people, then the hospitalization numbers began rising followed by the initial deaths of those infected. Fear, anxiety and a feeling of helplessness began to take over.
Wearing masks, which may have seemed unthinkable in the past, became the life preserver and fashion accessory locally. Rubber gloves, Lysol, Purell and Clorox wipes became the new paper weights on our desks. Our laptops with cameras became our lifeline to connect with family and friends over Zoom happy hours and virtual celebrations which eventually parlayed to section and committee meetings and online continuing legal education. The MSBA changed, adapted and
"You rose to these challenges and made our professional community stronger together."
conformed to the “new normal.” Most importantly, we were prepared for this shift. Under the leadership of our Executive Director, Victor Velazquez, we were ready. We made CLE free to all lawyers in Maryland, moved all meetings to virtual and renegotiated contracts with hotels and our office space with the hope and expectation that we would return to a version of some type of normal soon.
These challenges did not hold us back. We saw unprecedented growth in our membership renewals, the largest consumption of on demand CLE in our history, as well as a greater participation of our members in our sections and committees from all across the state. You rose to these challenges and made our professional community stronger together. We lobbied for attorneys working with vulnerable populations and those coming into court to get priority vaccinations – controversial for some, but a lifeline to many others. We initiated a number of new task forces that made substantial recommendations to the Board of Governors for our paralegal professionals, out of state attorneys, and implemented a process to guarantee diversity, equity and inclusion going forward. We succeeded in supporting efforts to buoy funding for civil legal aid in a time of crisis and supported other efforts to advance access to justice in Maryland.
"This has been a year I will never forget, and I thank all of you who have reached out to me and lent a hand, a voice of encouragement and support."
This has been a year I will never forget, and I thank all of you who have reached out to me and lent a hand, a voice of encouragement and support. You, we, are all the MSBA. Looking forward to next bar year, you will be in great hands as my position comes to a close and is turned over to your incoming President, M. Natalie McSherry. She has been a sounding board for me and a voice of reason. I know she will undoubtedly lead us into the next era as we celebrate 125 years of our profession and this great organization. Thank you for allowing me to be your President.
Hon. Mark F. Scurti, President
PRESIDENT'S MESSAGE
Watch President Scurti's recorded video messages at
Social Media News Stories
Connect with MSBA on social media to receive these updates and more. msba.org/linkedin • msba.org/facebook
Many professionals will choose a hybrid approach to work after the pandemic, sometimes working from home, sometimes from the office. But how to decide where to spend each day isn’t always as obvious as it seems.
WHAT MIX OF WFH AND OFFICE TIME IS RIGHT FOR YOU?
This recent podcast discussed claims management and how it has evolved throughout the COVID-19 pandemic with the use of alternative dispute resolution (ADR) and remote workforces. The discussion also delved into what we can expect to see postCOVID-19 regarding the resolution of claims.
PODCAST EXAMINES THE EVOLUTION OF INSURANCE CLAIMS MANAGEMENT DUE TO COVID-19
Maryland State Bar Association – MSBA
Private employers can legally require employees to get Covid-19 vaccinations, but will they? New data show employers are evenly split.
WILL YOUR BOSS REQUIRE YOU TO GET A COVID-19 VACCINE? NEW DATA SHOW EMPLOYERS ARE SPLIT
The Maryland Access to Justice Commission believes in the right to counsel in civil justice cases. Since it is not guaranteed and Congress and the states have not ended the eviction crisis, lack of counsel leads low-income persons to homelessness.
CONGRESS, STATES HAVEN'T ENDED THE EVICTION CRISIS ... BUT THEY COULD
Maryland State Bar Association – MSBA
Maryland State Bar Association – MSBA
Maryland State Bar Association – MSBA
MSBA in the Community
Impacting every sector of the legal profession. Visit msba.org to find upcoming events and section information.
As the 2021 Bar year comes to an end, the MSBA, and its Sections and Committees have been working hard to provide valuable content to its members. Below are some samples of the events that have taken place over the past few months.
MSBA Paralegal Task Force held a virtual coffee chat with MSBA President, Hon. Mark F. Scurti. Over 30 paralegals from across Maryland attended to network, engage, and to show off their mugs (both their coffee mugs and their faces)!
MAR 4
FEB 23
The MSBA Business Law Section held a live webinar on “Ethics Issues for In-House Counsel – Considerations for Negotiation and Drafting.” The webinar featured experienced faculty, I. DeAndrei (“Dee”) Drummond, Esq., General Counsel with MarketSource, Inc. and Andrew Lapayowker, Esq., General Counsel with Rosemore, Inc. as they address ethical issues facing in-house counsel. Interested in this presentation? It’s available to all members On Demand here: msba.org/product/ethics-issues-for-in-house-counsel-od
MAR 23
The MSBA Department of Learning presented “The Secrets of Real Estate Settlement Agreements” providing insight on crafting Settlement Agreements to allow individuals going through divorce to refinance homes. Interested in this presentation? It’s available to all members On Demand here: msba.org/product/the-secrets-of-real-estate-od
The MSBA held its first “Coffee & Conversations with Legislators.” The event featured former Sen. Bobby Zirkin (now on team MSBA) and Senator Will Smith (District 20, Montgomery County), Chair of the Senate Judicial Proceedings Committee, for an update on bills of interest, what’s happening in the legislative session, and how to stay involved and connect with legislators.
MAR 31
The MSBA Young Lawyers Section hosted its Annual Charity Event, virtually. Attendees enjoyed hors d’oeuvres and drinks prepared by Gertrude’s at the Baltimore Museum of Art, a silent auction, “Hits Through the Decades” Music Bingo presented by Charm City Trivia, and a chance to win one of many prizes.
APRIL 23
APRIL 20
The MSBA kicked off the summer long Legal Summit Series with “Artificial Intelligence as Evidence” presented by Hon. Paul W. Grimm, United States District Court, District of Maryland and Professor Maura R. Grossman, J.D., Ph.D., School of Computer Science, University of Waterloo, and Osgoode Hall Law School, Ontario, Canada.
The Legal Summit Series features 20+ unique one-hour substantive sessions throughout the spring & summer (April - September). Registrants for the 2021 Legal Summit & Annual Meeting receive these courses for free! Check out the Legal Summit Series Page for more information on the available courses. MSBA.ORG/SUMMITSERIES
MSBA & A2JC Hold 2nd Annual (and 1st Virtual) Lobby Day
On Tuesday, January 26, 2021, the MSBA and the Maryland Access to Justice Commission (A2JC) hosted the 2nd Annual (and first-ever virtual) Lobby Day. Lobby Day is just one of the many events held by the MSBA each year, and provides members direct access to legislators in Annapolis to advocate on behalf of the legal profession.
The event was opened with welcomes from MSBA President, Hon. Mark F. Scurti, and A2JC Chair, Ward B. Coe, Esq., and was attended (virtually) by over 90 MSBA member participants, and featured interaction with numerous State Senators and Delegates from across Maryland. The virtual program structure allowed members to interact with fellow MSBA members and legislators from all over Maryland from the comfort of their homes or offices.
MSBA Members Advocate for Legislative Priorities
This year’s live virtual programming featured concurrent presentations on MSBA/A2JC Legislative Priorities for 2021 that were moderated by Section leaders and members of the MSBA Committee on Laws (the legislative policy committee of the MSBA). In all, there were a total of nine breakout sessions (in two different time slots) that matched MSBA members with Senators and Delegates to discuss MSBA/A2JC legislative priorities, which included: 1) support for legislation to enhance funding for the Maryland Legal Services Corporation (MLSC); 2) support for legislation to establish a Right to Counsel in Eviction Proceedings; and 3) support for legislation to establish a statutory foundation for the continuation of Executive Orders promulgated at the outset of the pandemic to provide for Remote Notarization and Remote Witnessing of Estate Planning documents.
The MSBA/A2JC Virtual Lobby Day program concluded with closing keynote remarks, featuring Delegate (and MSBA Secretary) Erek Barron; Chief Judge Mary Ellen Barbera; Attorney General Brian Frosh; Meryl Burgin, Exec. VP, General Counsel & Corporate Secretary of CareFirst BlueCross; Senator Will Smith, Chair of the Senate Judicial Proceedings Committee; Sharon Krevor-Weisbaum, Managing Partner, Brown Goldstein & Levy; Delegate Luke Clippinger, Chair of the House Judiciary Committee; and Judge Mark Scurti, MSBA President.
The Maryland State Bar Association congratulates REENA K. SHAH , Executive Director of our partner the Maryland Access to Justice Commission, and all of our members who have been named as one of The Daily Record’s 2021 Top 100 Women:
HON. SHARON V. BURRELL
Circuit Court for Montgomery County
CAMILLE GUEVARA FESCHE, ESQ.
Rifkin Weiner Livingston LLC
HON. ELIZABETH S. MORRIS
Circuit Court for Anne Arundel County
LINDA SORG OSTOVITZ, ESQ.
Offit Kurman
DIVYA POTDAR, ESQ.
Diva Law LLC
REENA K. SHAH, ESQ.
Maryland Access to Justice Commission
INDIRA K. SHARMA, ESQ.
Saul Ewing Arnstein & Lehr LLP
KERRI L. SMITH, ESQ. Silverman Thompson Slutkin & White
JOYCE SMITHEY, ESQ. Smithey Law Group
DONNA HILL STATON, ESQ.
Decision Point Strategy Group, LLC and State & Nolan, LLC, dba Decision Point Law
JAYMI STERLING, ESQ. Office of the State’s Attorney for Anne Arundel County
DONNA E. VAN SCOY, ESQ.
Lerch Early & Brewer, Chartered
We thank these women for their leadership and for the many ways they give back to the profession and the community.
Legislative Wrap-Up: 2021 MSBA and A2JC Priority Bills Passed as Session Concludes
The MSBA actively monitors hundreds of bills each legislative session and advocates on behalf of the profession. The ability to make a difference in Annapolis is just one of the many reasons we need all attorneys to belong to the MSBA to ensure we remain a strong and vibrant association. The Maryland General Assembly adjourned this unique pandemic session on April 12, and MSBA is pleased to see the passage of several of our priority bills.
Right to Counsel in Evictions
Maryland has become the first in the nation to pass a statewide access to counsel bill. The MSBA and the Access to Justice Commission (A2JC) strongly supported HB18 Landlord and Tenant – Residential Tenants – Right to Counsel, which provides tenants with access/right to counsel in eviction proceedings. Much remains to be done, however: a companion bill, HB31 Courts – Surcharges and Payment to Special Funds – Prohibited Lease Provisions, which would have provided a funding source for the Access to Counsel program and an additional funding stream for the Maryland Legal Services Corporation (MSLC), to bridge its funding shortfall, failed to pass this session. A2JC will continue to convene and work with partners to secure funding sources to make the access to counsel meaningful. Hundreds of thousands of Marylanders may face an eviction in Maryland in the coming year, even as $800 million dollars of rental assistance will be pouring into the state from federal relief programs. Low-income tenants and those who are technologically challenged will face the harshest barriers to justice and will need assistance to connect to rental assistance and raise appropriate defenses to ensure they remain housed and have a fair and equitable shot at justice.
Civil Legal Aid Funding
The Maryland legislature also passed HB514/ SB413 Maryland Legal Services Corpora-
tion Funding – Abandoned Property, bills supported strongly by both the MSBA and A2JC. These bills increased allocation to the MLSC—the largest funder of civil legal aid in Maryland—from the Abandoned Property Fund from $2 million to $8 million. MLSC faced up to 70% funding declines during the height of the pandemic because its funding streams are tied to interest rates and filing fees, both of which dramatically decreased as a result of COVID. Funding from the Abandoned Property Fund is the only source
MLSC faced up to 70% funding declines during the height of the pandemic because its funding streams are tied to interest rates and filing fees, both of which dramatically decreased as a result of COVID.
of stable funding for MLSC, and it was important to shore that up. This work came at the heels of A2JC successfully advocating for $11.7 million in one-time emergency funding to MLSC through its work driving the Maryland Attorney General’s COVID-19 Access to Justice Task Force.
Remote Witnessing of Estate Planning Documents
During the summer of 2020, the MSBA
Estates & Trust Law Section developed legislation that would extend the provisions of Governor Larry Hogan’s Executive Order authorizing the practice of remote witnessing of wills, powers of attorney, and advance directives. The legislation, Senate Bill 820/ House Bill 1261 – Wills, Powers of Attorney, and Advance Directives – Electronic Execution, was introduced by Senator Chris West and Delegate Wanika Fisher. As passed, the bill, like the executive order, allows for a
Maryland Attorney General’s COVID-19 Access to Justice Task Force
The Right to Counsel in Evictions and Civil Legal Aid Funding bills flowed from the work of the Maryland Attorney General’s COVID-19 Access to Justice Task Force, which was co-lead by the MSBA-backed Access to Justice Commission. There were almost 60 recommendations to improve the civil justice system in the final Task Force Report, Confronting the COVID-19 Access to Justice Crisis. These recommendations were converted to over 40 bills, and almost 45% of the bills found success during the 2021 legislative session. Please find many of the other legislative successes related to the A2J Task Force at www.marylandattorneygeneral.gov/press/2021/041321.pdf
LEARN MORE ABOUT THE TASK FORCE AT MARYLANDATTORNEYGENERAL.GOV/PAGES/A2JC
will or power of attorney to be electronically executed or remotely witnessed. The bill has a specific carve-out to the remote execution of powers of attorney in real estate transactions, as the parties are not typically known to one another as might be the case in a lawyer-client instance. Additionally, the bill
contains a retroactivity clause declaring that the Act shall be construed to apply to and interpreted to affect any will, power of attorney, or advance directive executed on or after March 10, 2020 (the date of the Governor’s Executive Order).
Financial Protection of Susceptible (Vulnerable) Adults
On the afternoon of the final day, the General Assembly gave final passage to Senate Bill 327 – Civil Actions – Financial Exploitation of Susceptible Adults and Older Adults (Maryland SAFE Act, which, as amended, allows either the Attorney General or the Maryland Securities Commissioner to initiate a private cause of action to confront instances of financial exploitation of a susceptible (vulnerable) adult. In 2019, the MSBA Section Councils of the Estate & Trust Law Section and the Elder Law & Disability Rights Section organized the Vulnerable Adult Financial Exploitation Task Force in order to provide an interdisciplinary approach to tackling the vexing concerns around financial exploitation of vulnerable adults. This legislation also involved input from the MSBA Criminal Law & Practice Section, as well as various external stakeholders to examine potential remedies in the civil arena that would supplement existing criminal penalties. The result of these combined efforts led to the introduction and ultimate passage of SB 327.
Delegate Michael Malone
Photos courtesy of Beverly Funkhouser Photography
Proudly Serving Anne Arundel County
Tell us how your law practice career started and how that intersected with you becoming a lawmaker in the House of Delegates and on the Judiciary Committee.
After finishing law school, I was interested in local politics. So, one day on my way to an afternoon Orioles game, I stopped at the Anne Arundel Board of Elections to review legislative district maps. As I was finishing a clerkship with Judge Marvin Kaminetz, I also needed a job, so I looked across a plaza in front of the Board of Elections and saw a building with law firms. I walked in and cold-called a solo practitioner, Robert Fuoco. Besides needing help with real estate settlements, which I had done in law school, Bob needed help with a Court of Appeals case, so I was hired. While completing my judicial clerkship, I spent weekends drafting an appellate brief, and later worked as Bob’s associate on real estate and family law matters. About fifteen
have impacted judicial reinvestment, police reform, and gun reform
I use legal and mediation skills every day of session to identify possible flaws in pending legislation, attempt to find consensus, and fix problems.
What early influences shaped you?
Like many, my parents had a significant influence on me. My father put himself through college by joining ROTC, living in a cabin without heat at times, and driving coal trucks over sketchy mountain roads in Western Maryland. After college Dad joined the Army, served two tours in Vietnam, and earned the Bronze Star. My Mom, who met my father in college, put herself through college through work study and serving as a dorm Resident Assistant. By example, my parents taught me to work hard and rise above to succeed.
Service for me is not just government and politics. A proud proponent of mediation, I helped establish the Anne Arundel Conflict Resolution Center in 1993, dedicated to the peaceful resolution of community and individual conflict.
years ago, I opened my own practice focusing on mediation and family law.
Active in local politics and civic organizations for over 25 years while raising my family, I have supported local candidates and causes and served on the Republican State Central Committee and the Anne Arundel County Board of Elections. After appointing then Delegate Cathy Vitale to the Circuit Court bench in early 2015, Governor Larry Hogan appointed me as her replacement in the House of Delegates. I serve on the Judiciary Committee, where I am the minority ranking member, hearing issues which
Tell us about your community involvement.
Service for me is not just government and politics. A proud proponent of mediation, I helped establish the Anne Arundel Conflict Resolution Center in 1993, dedicated to the peaceful resolution of community and individual conflict.
I also served on the Anne Arundel County Public Guardianship Review Board, chaired the Anne Arundel Personnel Board, and chaired the Family Law Committee of the Anne Arundel Bar Association.
As a member of the Crofton Kiwanis for over twenty-five years, I have served as an officer and Foundation Vice President. I coached soccer teams for ten seasons, served as President of the Davidsonville Ruritan, where I sometimes played Santa Claus for the kid’s holiday party, and served as President of the West Anne Arundel County Rotary Club and Director of the West Anne Arundel Chamber of Commerce.
As a teacher's son and father of four with my wife, Amy, I have advocated for education as Director for the Anne Arundel County Council of PTAs, as a Delegate to School Board Nominating Conventions, and as Treasurer, President, and Membership Chair for school PTAs.
Scouts, where one learns to serve, guide peers, and foster independence, gave me early leadership experience on my way to the rank of Eagle in 1985. Later I was Cubmaster, then helped my two oldest sons become Eagle Scouts, and recently watched my teenage daughter become a Life Scout and my youngest son a Star Scout in my old troop.
scene,” “a broken winged pterodactyl,” and, by the Supreme Court, “a crazy quilt.” Benisek v. Lamone challenged them as First Amendment violations: depositions of Democratic leaders and analysts reveals that Maryland’s lines, using advanced mapping software, voter-registration data, and voter history, were drawn precisely to protect Democratic incumbents and create another Democratic Congressional district. Approximately 1.5 million voters, a quarter of Maryland’s population, were displaced into another Congressional district. The Federal District Court in Benisek ruled that gerrymandering violates the Constitution, but the Supreme Court reversed, holding that redistricting is a political question left to the states.
I have introduced legislation over the years serving as a State Delegate to combat gerrymandering at state and Congressional levels. Introduced in the 2021 Session, HB 339 requires that state legislative maps be drawn without regard to political affiliation or voting patterns per the District Court Benisek opinion. HB 1260 requires that Congressional districts be drawn according
Redistricting reform is my top priority. Maryland’s eight Congressional districts include some of the most gerrymandered in the country.
What is your top legislative priority in 2021?
Redistricting reform is my top priority. Maryland’s eight Congressional districts include some of the most gerrymandered in the country: they have been called “blood spatter at a crime
to the same standards as state districts: compactly and with regard to natural and community boundaries. Like HB 1260, HB 410 requires that Congressional districts be drawn with the same standards as state districts, but also without regard for voting patterns and political affiliation.
MSBA Advocates for Vaccine Access for Frontline Attorneys
Earlier this year, attorneys from across the State began contacting the MSBA regarding access to the COVID-19 vaccines. In response to the growing requests, the MSBA began an advocacy campaign directly with legislators in Annapolis, the Governor's office, members of the Maryland Department of Health, and the judiciary. In addition, the MSBA launched a grassroots campaign allowing members of the profession to easily add their voices to the cause. As a result of this campaign, MSBA received confirmation from the Governor’s office that attorneys, who may reasonably conclude in good faith that they are on the frontlines of justice, were able to access the vaccine as members of Phase 1C, in accordance with Center for Disease Control recommendations. The results of these efforts were communicated to the membership on March 18, 2021.
Although some attorneys may not have agreed with the position, the MSBA, as the only statewide organization representing the entire profession, is willing to advocate and fight for all attorneys and legal professionals that practice in Maryland.
Latest Update on COVID Vaccine Advocacy Efforts
Within the last hour a senior member of Governor Hogan’s administration responded to our communications. The essential message was as follows: Attorneys need to evaluate and determine whether or not they fit the current guidelines and do so in good faith. We, the MSBA, define this to be the ‘reasonable person may conclude’ concept. This affords an attorney reasonable discretion to conclude whether they should be prioritized and fit within the continuity of government category. We previously defined that category in our letter which can be found here. We believe our contention is reasonable.
Due to the demands on the Executive Branch at the moment, they are unable to respond in writing to our request, but understood that we would communicate the substance of the conversation to our membership.
Per the Governor’s briefing today it is clear the vaccine supply is going to go up significantly very soon which, coupled with this informal guidance from the Governor’s office, should prove helpful.
We know that since issuing our letter detailing our interpretation on all attorneys being eligible, hundreds of attorneys have gotten vaccinated and just in a matter of days. More and more local jurisdictions accept attorneys without issue as they have presented themselves under the continuity of government category, in line with assistant state’s attorneys, public defenders, and members of the judiciary. Many attorneys meet with vulnerable populations, visit clients in detention centers and jails, and now need to attend court hearings, mere feet from their clients, while performing their role as counsel, and thus should be vaccinated.
We have marshaled the legislature, the Governor, and key officials, and much more. Members have sent over 1,800 emails to these leaders in response to our calls to action. We believe the job is done.
As indicated previously, we recognize that not every attorney agrees with our advocacy efforts, but we hope that all attorneys understand that we stand to represent your interests, even if you’re not in agreement with this particular effort.
Thank you for being part of the MSBA. As is becoming clearer given our fight on taxation of legal services last legislative session and now the advocacy around vaccinations, the MSBA is only effective if all attorneys belong and engage.
June 9 - 11, 2021
U.S. Senator for Minnesota & former U.S. Presidential Candidate
Amy Klobuchar
Madeleine Albright
Photo credit: Lauren Bulbin Former United States Secretary of State Tina Tchen
UP TO
LEARNING TRACKS 8 CLE CREDITS
VIRTUA L / ON-DEMAND PROGRAMS
INTERACTIVE CONFERENCE APP
Build your own custom schedule, connect with others and access presentation materials.
THE MSBA LEGAL SUMMIT brings together attorneys from every segment of the legal profession for multiple days of learning and networking. Featuring unique instruction from industry thought leaders and luminaries plus sessions for attorneys in every practice area, this is a can’t-miss event for any legal professional.
This year, we’re excited to hold our first ever 100% Virtual Legal Summit giving attendees the opportunity to attend from anywhere. With the help of our numerous high-profile speakers and presenters, the 2021 Virtual Legal Summit & Annual Meeting will be our biggest to date with over 80+ substantive programs and the ability to earn up to 65 CLE credits!
Plus, we’re unveiling several NEW features! First, this year’s event will feature eight (8) NEW Learning Tracks to help you find programs in your area of practice or interest. Attendees can choose from programs in these tracks and more:
TRACK KEY
Alternative Dispute Resolution
Corporate Law Ethics Practice Updates
Justice
Leadership and Practice Management
Litigation and Trial Skills Technology
Second, this year’s Legal Summit registration includes complimentary access to our Legal Summit Series, which begins in April 2021 and extends through September 2021. The Legal Summit Series will consist of over 20 additional programs, a $580+ value if purchased separately. Please visit the Legal Summit Series page to learn more about the available programs. Remember to check back, as more will be added.
Finally, we have some exciting interactive social and networking sessions, to keep you connected. Join your colleagues for informal networking at lunch on our new virtual platform that mimics in-person conversations or check out our Special Edition Cooking Connections to get a taste of Ocean City, Maryland no matter where you are tuning in from.
We’re excited for you to join us for the 100% virtual 2021 Legal Summit. But we understand that you may be missing in-person events, because we are too! We’re excited to announce that Legal Excellence Week will be in person in November 2021.
MISSING IN-PERSON EVENTS?
Learn more about the programs at our 2021 Legal Summit & Annual Meeting and register today at
MSBA.ORG/LEGALSUMMIT
We are too. Legal Excellence Week will be in person in November 2021.
RT3: An MSBA Annual Meeting Tradition on Two Wheels
For more than 100 years, Maryland attorneys have made “goin’ downy ocean” part of their summer routine. Their attendance at the MSBA’s annual meeting in Ocean City has become a pastime as cherished as a latenight boardwalk stroll to walk off a Thrasher’s Fries or Dumser’s Dairyland overindulgence. Some go a bit further - up to 178 miles in fact - with another tradition nearly 40 years in the making: The Ride To The Tide (or RT3), an annual bicycle trek from downtown Baltimore to Ocean City for the first day of the conference.
SINCE 1994, Baltimore-based Kramon & Graham, P.A. (K&G) has organized the RT3 each year for more than a dozen cyclists. It has evolved into a carefully choreographed event with traditions all its own. It has also become a rite of passage for summer associates, some of whom make the ride while others drive support vehicles to ferry the riders across the Chesapeake Bay Bridge, supplying food and drink at rallying points along the way.
That summer, for reasons that remain unclear, four Maryland lawyers decided to go to the annual meeting by bicycle.
But 1994 only marked the beginning of the RT3 modern era. The ride’s origin story, as handed down through a hazy oral history, can most reliably be traced to 1984, long before carbon-fiber bikes, formulated sports drinks, and the wrist-mounted GPS came to cycling. That summer, for reasons that remain unclear, four Maryland lawyers decided to go to the annual meeting by bicycle. They did so with little planning, no in-ride support, and no cell phones.
J. Thomas Caskey, then at Semmes, is credited with the idea. Tom and Andy Graham had often attended the annual meeting, and Tom suggested cycling there, ignoring the fact that they were runners, not cyclists. They were accompanied by John Hayden III (Whiteford Taylor & Preston), who was a cyclist, and Walter D. (“Bucky”) Murphy, Jr. (Office of Bar Counsel), a rugby player. Their equipment ranged from a 3-speed department store bike (complete with wicker basket) to a high-end 10-speed that John used for his daily commute to work. Tom attached a transistor radio to his handlebars and flew a 6’ foxtail flag to make himself visible. Bucky left his Annapolis home at 3:00 AM with a duffel bag full of books on his back, pedaling up to Baltimore to meet up with the others.
The quartet departed 10 Light Street at 5:30 AM with paper maps and no plan for getting across the bicycle-free Bay Bridge. They eventually convinced a maintenance worker to truck them
across and were dumped at the foot of the bridge. This marked the beginning of the white-knuckle portion of the program, with a narrow shoulder but plenty of speeding 18-wheelers to jostle them along Route 50, all the way to Kent Island.
None of the riders recalls what they did for nutrition during their 13-hour, 131-mile journey. One remembered stopping at a diner in Denton, where four underdressed city lawyers had to explain their appearance to fellow diner, local legend and Court of Appeals Judge Marvin H. Smith.
Few other details survive. Other than traffic, the only dangers they recall were a large dog, honor-bound to chase them from the family farm, and Bucky’s bag of books. He was preparing for rugby season and thought the books would be an effective training tool. Bucky thought differently approximately 30 miles outside of Ocean City. Feeling sorry for him, Andy took the books and rode off with the understanding that one of the others would take them when they caught up. They never caught up. Andy rode solo the rest of the way with books but no map, navigating by the sun.
Fast forward to 1994, when K&G principal Lee Ogburn got a new bike and wanted to use it. After hearing about Andy’s adventure once or twice over the years, Lee suggested a redux, and K&G lawyers Anne Lobelle, Kevin Arthur, Andy and Lee decided to have a go at it. Having learned from the inaugural ride, a K&G employee accompanied them in a vehicle with food and water, and carried the riders across the Bay Bridge.
Andy, who was still not a serious rider, borrowed a bike with clipless pedals that attached his shoes firmly to the bike. Inexperienced and unable to disengage to put down his foot at stops, Andy toppled several times before getting across the bridge. Once on the Shore, he refused to stop at traffic lights or stop signs, opting to take his chances with traffic rather than risk another fall.
At first, RT3 was limited to K&G attorneys, but the roster quickly expanded. Nearly 50 lawyers, judges and friends (view the full list at MSBA.ORG/RT3-RIDER S ) have since ridden some or all of the route, which has changed over the years. It now leapfrogs the treacherous portion of Route 50 after crossing the bridge and is ridden predominantly on scenic backroads. A purist’s option (the “long way”) was added in 1995 when Judge Arthur decided to take the bridge out of play and ride around the Bay through
Havre de Grace and Elkton, meeting up with the main group in Denton. Since 1994, RT3 has taken place in all but two years - 26 rides in all - in conditions that have ranged from a chilly and wet 64° degrees to a hot and humid 98°. Several traditions within this tradition have developed. The stop in Denton has remained a constant. The 19th century Caroline County Courthouse serves as the first stop on the Shore and as a rally point for stragglers. Reminiscent of the early encounter with Judge Smith, riders have on occasion been greeted with granola bars by Judge Karen Murphy Jensen. The courthouse steps were once used by a rider to show off his mounted bunny hops while others debated calling an ambulance for a rider who bonked. It is also Denton where K&G’s John Bourgeois famously announced, “put a fork in me; I’m done,” refusing to remount.
Next up is Federalsburg, a full lunch stop at the Federalsburg Family Restaurant where a group of (mostly) middle-aged attorneys in form-fitting bike wear always draw quizzical glances from the locals. After their next break at an abandoned building in Seaford, DE (known for its ambiance as “the crack house”), the riders cross the Nanticoke River on the 227-year old Woodland Ferry, en route to the 100-year old Bethany United Methodist Church in Lowe’s Crossroads, DE. The riders have on occasion been welcomed by the minister, who encourages them to return on Sunday.
After re-entering Maryland from Fenwick Island, the RT3 ends in a hospitality suite at the Fenwick Inn, before the riders clean up and head down to Fager’s Island for a celebratory dinner. After 7 hours in the saddle everyone eats and drinks guilt-free as the sun sets over Assawoman Bay to a tacky rendition of the William Tell Overture, another local tradition that predates the RT3 by only a few years. A K&G principal hosts a tongue-in-cheek awards ceremony to highlight the “accomplishments” of each rider, and then the younger riders head out for the night. The notso-young riders do not.
The RT3 is judgment-free. There is no shame in riding only part of the way or hitching a ride in one of the support vehicles. On separate occasions cyclists ended their rides in emergency vehicles, one in a medevac helicopter and another in an ambulance. Each was the result of a single rider crash, and both recovered fully. Upon her release from the hospital, the airborne victim continued on to Fager’s Island by car, scratched and bruised but in time for the dinner.
“It has provided wonderful memories and moments to connect with colleagues.”
“The Ride to the Tide is a great tradition,” said K&G managing principal David Shuster, a frequent participant. “It has provided wonderful memories and moments to connect with colleagues.” He noted that while the pandemic has forced the MSBA to hold its 2021 annual meeting virtually, K&G may nonetheless sponsor the ride to commemorate the conference and celebrate one of its own, M. Natalie McSherry, set to become MSBA president. Natalie will be following in the footsteps her great-grandfather, Judge James McSherry, who at a conference in Ocean City in 1897, became the first to hold the post. Another MSBA tradition within a tradition.
NURTURING A GROWING PRACTICE
JESSICA MARKHAM
Markham Law Firm
Photo courtesy of Beverly Funkhouser Photography
Jessica Markham is a Family Law attorney from Montgomery County, Maryland. Recently, Ms. Markham published her first book “Representing Federal Employees and Their Spouses in Divorce: A Practical Guide” published by the ABA. In addition, Ms. Markham will be presenting a webinar on the same topic at the MSBA’s upcoming Legal Summit & Annual Meeting. Learn more about Ms. Markham below.
What does being an attorney mean to you?
Being an attorney means using the law to help improve people’s lives. Using the law and my skills as a problem solver to help clients into the next stage of their lives is one of the most gratifying parts of my job.
What is your fondest memory of your legal career so far?
In 2006, I won the first trial that I handled alone. I had to drive to Prince George’s County Circuit Court to read the written opinion and order. I was so nervous that I made my mom come with me. The opinion was a slam dunk for my client and found dissipation and other issues in her favor. I was so relieved that I sat on the floor and cried.
once in the lifetime experience, I felt that I had to rise to the occasion.
What are your goals that you are hoping to accomplish in the upcoming year?
With the people on my team, I encourage them always to set goals for the year. I also typically set goals for myself every year. For example, one year I wanted to get more comfortable with public speaking, so I taught many CLEs and spoke on panels that year. Last year I wanted to improve the firm technology and infrastructure, which we did successfully. In 2021, I have been really unsure about professional goals now that the book is done. I obviously want to promote the book. I am looking forward to having speaking engagements related to the book, hopefully outside of the immediate metro area. Beyond
Using the law and my skills as a problem solver to help clients into the next stage of their lives is one of the most gratifying parts of my job.
Tell us a little about your biggest project related to your professional career right now. I opened the firm in 2015 and we’ve done two expansions since then, we are now doing a third expansion. We’ve added square footage and staff consistently year by year. But every time we hire more attorneys and staff it still feels like a big deal because it is a big investment of time and energy to bring people onto the team and mentor them and get to know them. We have hired several people in 2020/2021.
You wrote a book recently, tell us a little bit about that project? What motivated you to write?
I was approached by Linda Ravdin, who is a colleague and is on the ABA Publications Development Board, about the concept for the book. The board already had the concept, wanted the book written, and needed an author. She believed in me that I could do it based on my experience. Even though I had never wanted to write a book, it was such a unique opportunity and a
Ms. Markham’s book Representing Federal Employees and Their Spouses in Divorce: A Practical Guide is available now.
that, I am working on personal development goals, including less television at night, working out regularly, and trying to journal and meditate. Meditation is really hard for me.
“
the programs, for more than just half an hour or an hour at a time, in a totally casual atmosphere. Instead of being in suits for an hour in between meetings, we’re usually with our toes in the sand and everyone is more relaxed.
When I started my firm, I jumped out of the airplane and built my parachute on the way down. I want to help other attorneys avoid that if possible.
What are some of the challenges you face in achieving these goals?
In growing our team, I am very mindful that I will be spending potentially more time with these people than I spend with my family. So I am very protective of our work environment and the dynamic in the office. I am very careful about who we hire. Hiring is difficult, and it is not an exact science, it is an ongoing challenge to hire the right person. I find that we have constantly changing dynamics with respect to how many attorneys to support staff we need — it’s difficult to predict workflow. In talking to other law firm owners and managers, I think these are challenges that we all face, but I’m constantly working to improve our hiring and onboarding process.
You are presenting at the 2021 Legal Summit & Annual Meeting, and have presented for other Bar associations - why do you feel it's important to share your knowledge with other attorneys?
I think it’s important to share different things for different reasons. When I am speaking about my book, it’s because I want to sell copies of my book. When I am speaking about family law and other related topics, it is because I learned so much from senior practitioners and I feel that it’s better for the field that we all know more. When I am speaking about leadership, firm ownership, and management, I do it as a way to pay it forward and support other attorneys. I like to say that when I started my firm, I jumped out of the airplane and built my parachute on the way down. I want to help other attorneys avoid that if possible.
You’re a frequent attendee at the MSBA’s Legal Summit & Annual Meeting, why do you attend? The MSBA conference is a unique opportunity to network with attorneys from all over the state and socialize after
A little more about you...
WHAT’S YOUR FAVORITE HOBBY?
Right now, I’m working out regularly for the first time in my life and I’m really enjoying it.
WHAT DO YOU DO TO UNWIND/ DE-STRESS?
I like to swim in my pool or go to the beach. I hope the cicadas won’t ruin it for me this year, but I think that they might.
WHAT’S AN INTERESTING FACT ABOUT YOU THAT NO ONE WOULD GUESS?
I was a lead singer in three different bands.
WHAT’S A CAUSE OR CHARITY THAT YOU ARE PASSIONATE ABOUT?
I’m on the National Ambassador Council of American Humane which is the nation’s oldest animal welfare charity. They have amazing programs for animals, of course, but also providing service dogs to veterans as well.
Small, Local Bar + Big Ideas = Amazing Results
The Bar Association of Frederick County (“BAFC”) is home to 350 Maryland attorneys, and has a rich history. Notably, it is also the home of the first MSBA President, Judge James McSherry, the MSBA President-Elect, M. Natalie McSherry’s great-grandfather.
Pivoting to Virtual
At the start of the COVID-19 pandemic, the BAFC Executive Committee recognized that transitioning to virtual events, rather than cancelling in-person events, was going to be beneficial for the mental health of its members. The stars seemed to have aligned perfectly to allow this to happen since the April 7th luncheon speaker was scheduled to be MSBA President, Dana Williams. BAFC President, Janice Rockwell reached out to Dana about holding a virtual luncheon meeting and he was not only comfortable with the idea but was able to lend technical support from the MSBA to accomplish this task. This relationship with the MSBA continued monthly throughout 2020 and into 2021 with technical support provided for its monthly meetings and even our virtual holiday party.
Leaders outside of the BAFC Executive Committee also realized the need to change how to hold events during the pandemic. For instance:
• The Young Lawyers Section of BAFC quickly pivoted from serving/cooking for The Frederick Soup Kitchen to providing them with 100 boxed lunches, ensuring community members had meals just as the pandemic was setting in.
• Committee members of the BAFC Mediation Refresher Seminar realized the late April training was still needed and quickly transitioned to using Zoom to provide a four-hour required training to an audience of 100, almost double the audience from a “normal” year.
With the foresight of the Executive Committee, the assistance of the MSBA, and the resilience of its members, the BAFC was able to hold most of its typical annual events without sacrificing the health and safety of its attendees. Below is a sample of the events held throughout the pandemic.
• BAFC’s annual school supply drive still happened, but without a live auction at a local
venue. Instead, it opted for cash donations and also worked with The Religious Coalition to come up with a supply “wish list” that could be purchased at local stores or delivered directly by Amazon. Over 2,100 students received pre-packed backpacks and schools received extra supplies as a result of these efforts.
• BAFC’s YLS-sponsored New Attorney/Law Clerk Happy Hour happened a little later in the year than normal (early November instead of September) and was moved to outside space at a local brewery with boxed sandwiches instead of a buffet.
• BAFC’s annual awards were also handled a little differently. Each award recipient was recognized through a video tribute at a monthly luncheon. The recipients were also surprised
Like many Bars, BAFC prioritized keeping members updated on the most recent orders from the Court of Appeals and court reopenings.
“on air” during the meeting with a plaque and other gifts delivered right to their door as they were watching the meeting!
Informing Members
Like many Bars, BAFC prioritized keeping members updated on the most recent orders from the Court of Appeals and court reopenings. They sent numerous emails with orders as they came out, as
well as reopening procedures from both our Circuit and District courts. In addition, they offered technological help for Zoom conferencing to their members via the District Court and held a Town Hall in June with the Administrative Judges and over 100 attendees.
Helping the Community
As the COVID-19 pandemic lingered, BAFC focused on the community at large.
• From May through December 2020 the BAFC Young Lawyers Section coordinated five collections of artwork and inspirational messages to be sent electronically to five area senior living facilities to bring joy during a time when many could not have visitors. Upwards of 120 pages were sent during separate collections.
• A member of the BAFC Executive Committee wanted to show unity during this difficult time, and her nephew updated the BAFC logo but using all the names of their members. BAFC sold the shirts and distributed the over $1,000 in proceeds to three local food banks.
• In September, about 30 members of the BAFC and their family and friends gathered at First Fruits Farm in Freeland, Maryland. First Fruits Farm provides fresh produce to those experiencing hunger in the MidAtlantic region through channels like local food banks, homeless shelters, and soup kitchens. In a few short hours, the job was done: approximately 250 volunteers harvested 54,000 pounds of potatoes, 2,790 pounds of tomatoes and 3,600 pounds of corn!
• Knowing that solo practitioners and certain areas of law were being impacted harder than others during the pandemic, the BAFC Executive Committee voted to offer up to ten (10) $100 scholarships for any BAFC member interested in attending the MSBA Virtual Legal Excellence Week in November 2020.
A 2020 Send Off...
No year deserved more of a send-off that 2020, and BAFC looked to host a successful virtual holiday party, with some tangible elements. The planned a "Holiday in Vegas" theme since “real” travel wasn’t attainable. Each registered attendee of the “Holiday in Vegas” party received a box with drink ingredients (spirit or spirit free), martini glass, mini shaker, poker chip sugar cookies, a deck of cards, a spool of battery operated twinkle lights, a plush sleep mask and a travel pack of hand sanitizer, bug spray, and stain remover (the last two provided by our sponsor Minnesota Lawyers Mutual, along with a monetary sponsorship that offset the cost of the boxes). Each box was gift wrapped and delivered and opened together on the virtual event. The virtual event started with a mixology lesson from a local "famous" bartender who has served our community for 20 years. It then moved into awards from the BAFC’s Young Lawyers Section which included surprise on-air presentations to the winners, some of whom were at their private
No year deserved more of a send-off that 2020, and BAFC looked to host a successful virtual holiday party, with some tangible elements.
residences in their sweatpants! They also paid a tribute to the late Alex Trebek with a JEOPARDY! challenge among members tailored specifically to BAFC.
BAFC’s holiday event traditionally raised money for Children In Need of Assistance (CINA), and it wanted to continue this tradition in 2020. Historically, funds were raised through tips at the bar and People's Choice votes (with dollars) for karaoke singing amongst local solo practitioners and law firms. In 2020, BAFC turned to gingerbread houses to raise “dough” for CINA. Awards were presented to the gingerbread houses representing the "Best Holiday" theme, "Best Vegas" theme, and a People's Choice winner. House submissions were uploaded to the BAFC website the day before the virtual party and online
voting began. Voting continued during the party as well. Ultimately, the gingerbread house votes and other contributions from BAFC members amounted to the largest donation BAFC has ever given CINA....$6,300. Not too bad for a voluntary small bar of around 350 members and a virtual event of around 50.
The Bar Association of Frederick County’s work during the COVID-19 pandemic is just one example of how Bar associations rose to face the challenge. With foresight from its Executive Committee, key partnerships with MSBA and others, and creative thinking, the BAFC was able to continue to service its members, legal profession, and community.
WEB EXTRA
Farewell to “A Good Man,” Past MSBA and ABA President
J. MICHAEL MCWILLIAMS, (1939-2021)
ON TUESDAY, FEBRUARY 23, 2021, J. Michael McWilliams, a past president of the Maryland State Bar Association and the first Marylander to serve as president of the American Bar Association, passed away from pneumonia. He was 81. McWilliams was born and raised in Annapolis and was the son of Maryland Court of Appeals Judge William J. McWilliams and Helen Disharon McWilliams. His mother died shortly after his birth, and his father remarried Nancy Leighton, who helped raise him. He earned a bachelor's degree from Georgetown University and his law degree from the University of Maryland. He also served as a lieutenant in the US Army.
He is described as a humble, smart, and funny man by a former law partner. His son, J. Michael McWilliams, of Boston, describes him as “an innately selfless person.” As an undergraduate at Georgetown in 1958, McWilliams dove into the churning rapids of the Potomac at Great Falls Park on the Virginia side in an unsuccessful effort to save two undergrads who had been swept into the rapids.
He is described as a humble, smart, and funny man.
He served as assistant attorney general of Maryland before becoming counsel to the Maryland Department of Transportation, where he served for six years. In 1977, he joined the firm of Tydings & Rosenberg as senior partner. His practice focused on national and international complex litigation and transactions. That same year Harry Hughes, McWilliam’s former boss at DOT, tapped McWilliams to help with his successful campaign for Governor of Maryland. After Hughes won, McWilliams led the transition team.
McWilliams then returned to Tydings & Rosenberg, where he remained until 1997 when he established McWilliams Dispute Resolutions Inc. He served as president and CEO of his firm. He also served as president of the College of Commercial Arbitrators and president of the International Academy of Mediators.
He retired from practice in 2017.
Due to the pandemic, a memorial service will be held at a later date.
Survivors include his wife of 50 years, the former Frances Edelen McCabe, two sons, a daughter, seven siblings, and four grandchildren.
The MSBA Remembers Pamela A. Bresnahan
PAMELA A. BRESNAHAN, a Partner at Vorys, Sater, Seymour, and Pease LLP, and head of the Litigation Practice Group in its Washington, D.C. office, passed away on Wednesday, March 31, after a long and hard-fought battle with cancer. She was 66.
Pam, a long-time resident of Annapolis, was born in Washington, D.C., to Harry and Marilyn Bresnahan. She obtained her undergraduate and law degrees from the University of Maryland, graduating with honors.
During her remarkable legal career, which spanned over four decades, Pam was a trusted advisor to many international law firms and was regularly called upon by businesses, law firms, and insurance carriers to handle their most complex and challenging cases. Pam was known as a fierce advocate for her clients, which garnered her a well-deserved reputation as a legal expert, not only locally, but nationally as well.
Pam acquired numerous accolades throughout her career, including being named by the National Law Journal as one of the 100 most influential lawyers in America and one of the 50 most influential women lawyers in America. She was also named to The Best Lawyers in America in four categories: Legal Malpractice; Commercial Litigation; Bet-the-Company Litigation; and Ethics and Professional Responsibility, and was recognized by Washingtonian Magazine and The Washington Post as one of Washington’s best attorneys. She was inducted into the American College of Trial Lawyers as well, where she served on multiple committees.
Pam not only enjoyed numerous professional successes, but also contributed considerably to the legal community. She was part of several professional organizations, including the American Bar Association, where she was the Chair of Rules and Calendar and Chair of the Standing Committee on the Federal Judiciary, as well as a Delegate-at-Large and YLD Delegate, the National Institute of Trial Advocacy, where she was Chair of the Board of Trustees, and the National Judicial College, where she served as a member of the Board of Trustees. She was also a Board Member of the American Bar Endowment.
Pam not only enjoyed numerous professional successes, but also contributed considerably to the legal community.
Pam is survived by her husband, Peter F. Axelrad, a Partner at Council, Baradel, Kosmerl & Nolan, P.A., her close friend and long-time assistant, Teresa Shoemaker, and many cousins and family members.
She is remembered by those who knew her as having a vibrant personality, a strong wit and sense of humor, and a deep dedication to her personal and professional pursuits. People who wish to make a donation in Pam’s memory can do so at the SPCA of Anne Arundel County, or the ABA Fund for Justice and Education.
The Legal Summit Series is a collection of training, designed to maximize your professional knowledge as well as your Legal Summit & Annual Meeting experience. This Series contains 20+ additional programs (a $580+ value if purchased separately this Series) that dovetail with the training & CLE available at this year’s MSBA Legal Summit & Annual Meeting.
Your registration to the 2021 MSBA Legal Summit & Annual Meeting includes COMPLIMENTARY ACCESS to our Legal Summit Series, which begins in April 2021 and extends through September 2021.
PROGRAMS
♦ Artificial Intelligence as Evidence
♦ Create A Winning M&A Playbook
♦ Financial Health & Wellness for Attorneys
♦ Human Rights Litigation; Representing Victim of Torture and Terror Against Foreign Sovereign Actors
♦ Start-Up Solo Practitioner Marketing & Management
♦ Representing Political Protesters under the First Amendment
♦ How to Develop a Private Practice Devoted to Fighting for Civil Justice
♦ Opt Out to Opt In: A Panel Discussion with Lawyer Moms Who Started Their Own Law Firms
♦ Business Valuation for Lawyers
♦ Top 10 Steps to Manage a Company Crisis
♦ The Value in Building a Personal Brand and Why Every Lawyer Needs One In a Post-COVID-19 World
and many more! Check out the Legal Summit Series page for the latest list of programs.
Increasing Diversity & Inclusion in the Legal Profession
BY ERIC S. STEINER
IN 2014, AT THE AGE OF 36, Associate Judge Zuberi Bakari Williams became one of the youngest judges in the history of the state’s judiciary. Born in Washington, D.C., and raised in Maryland, Williams served as assistant attorney general for the District of Columbia, and then as administrative law judge at the Maryland Office of Administrative Hearings.
Shortly after he was appointed to the District Court of Maryland for Montgomery County, Williams, who is African American, remembers going into his office wearing a hoodie and being questioned by court staff about his identity.
Williams, wearing his photo ID lanyard around his neck, recalls being confused at what was happening in that moment. “I wasn’t sure what was happening. It wasn’t until later that I thought about it. I wasn’t
upset or angry with the bailiff; I don’t think he, she, or they meant any harm. But these are the types of microaggressions that serve as reminders that because of who I am, what I look like, some folks think I do not belong in this space. Even if it’s my chambers,” says Williams, a former white collar criminal defense attorney at Venable.
Gregory Wells, a partner at Shadoan, Michael & Wells, LLP, whose career spans over three decades, can relate. Early in his career, Wells says courtroom deputies would ask him if he was “looking for his lawyer.” Wells is also African American.
Though gains have been made over the past decade or so, few people can persuasively argue that the legal profession is adequately diverse and unbiased. Initiatives may have opened the door for minorities, including people of color, women, LGBTQ individuals, and those with
In 2018, just one in five equity partners were women and only 6.6 percent were racial/ethnic minorities.
disabilities,1 but studies show they remain underrepresented at the partner level.
For example, a survey conducted by the National Association for Law Placement, Inc. reported that in 2018 “just one in five equity partners were women (19.6 percent) and only 6.6 percent were racial/ethnic minorities.” The study is consistent with the one conducted by the National Association of Women Lawyers (NAWL), which found that between 2017 and 2019, women remained at about 20 percent of equity partners in law firms.
It is surprising that lack of diversity continues to pervade the legal profession, not just because correcting it is the right thing to do, but also because there is a “statistically significant connection between diversity and financial performance,”2 and clients are asking their law firms to “detail how many diverse lawyers they employ and whether those lawyers are assigned meaningful work.”3
Psychologists have pinpointed one reason for this lack of progress: implicit bias. Changing the status quo in the legal profession will require an understanding of this bias and fostering of inclusive work culture.
The Problem: Implicit Bias
“Implicit bias refers to the brain’s automatic, instant association of stereotypes or attitudes toward particular groups, without our conscious awareness,”4 wrote Judge Mark W. Bennett, former chief judge of the U.S. District Court for the Northern District of Iowa who has trained more than 2,500 state and federal judges on implicit bias across the country. In fact, “Experts believe that the mind’s unconscious is responsible for 80 percent or more of thought processes.”5 It is important to understand that implicit bias is unconscious and, by its definition, affects the decision-making process.
This bias manifests itself in several key scenarios: hiring and retention, quality of assignments, performance evaluations, and opportunities for advancement. In particular, women and men of color, as well as white women, reported that they must go above and beyond to get the same recognition of their nonminority peers. Judge Jill Cummins, who sits on the Montgomery County Circuit Court and serves as co-chair of the Bar Association of Montgomery County, Maryland’s (BAMC) Diversity Committee, says that throughout her legal education, practice experience, and appointment to the bench, she was often told by colleagues that she was provided advancement because she's Black.
While in private practice, Cummins recalls being told, “Wow, you don’t look like you sound,” after meeting in person for the first time with clients she had previously only interacted with over the phone.
In the NAWL study, men of color and women of all races reported that they have been mistaken for administrative staff, court personnel, or janitorial workers. Women of all races reported pressure to behave in feminine ways, while also being provided more administrative tasks than their white male colleagues.
Judge Mark Scurti of the District Court of Maryland for Baltimore City faced a different challenge. Scurti, a gay cisgender male, recalls that when he was serving on the Maryland State Bar Association, its board of governors decided to hold its mid-year excursion in the Dominican Republic. Scurti informed the
1 Williams, J. C., et al., “You Can’t Change What You Can’t See: Interrupting Racial and Gender Bias in the Legal Profession” (Feb. 13, 2019), americanbar.org/products/ecd/ebk/358942050.
2 Hunt, V., et al., “Why Diversity Matters,” McKinsey & Company (Jan. 2015).
3 Randazzo, S., “Law-Firm Clients Demand More Black Attorneys,” Wall Street Journal (Nov. 2020), wsj.com/ articles/law-firm-clients-demand-moreblack-attorneys-11604313000.
4 Bennett, Judge M. W., “Introduction to Implicit (Unconscious) Bias,” 89 The Advocate (Texas) 35, 35 (2019).
5 Nalty, K., “Strategies for Confronting Unconscious Bias,” 45 The Colorado Lawyer at 45 (May 2016).
group that the country criminalizes public displays of homosexuality. Scurti was initially met with pushback from older, white members of the group, so he had to educate the board on the realities that LGBTQ people face. “People are more comfortable talking to someone in their own communities,” Scurti says.
These anecdotal experiences reflect the ongoing implicit bias against minorities. It is highly likely that the offenders did not intend to offend and indeed may have been unaware that their actions and words caused an affront. The legal profession certainly understands the power of words but seems hesitant to fully embrace diversity and inclusion beyond “checking a box.”
The Solution: A Culture of Inclusion
While many law firms embrace diversity in the hiring process, they face challenges retaining diverse attorneys because they have not created inclusive environments.6 To solve this, firms can make small adjustments to their basic business systems
with nonminority attorneys. “The law profession ought to be a diverse profession,” he says.
To interrupt implicit bias, law firm leaders can commit to not only hiring diverse candidates but also to changing their firm cultures to make them more inclusive. These changes require consistent action to ensure that minority attorneys are treated the same as nonminority attorneys in quality of work, performance evaluations, mentorship, and opportunities for advancement.
Wells, a Fellow of the American College of Trial Lawyers, says “talent is talent,” and diversity and inclusion is “the right thing to do.”
Judge Williams believes real progress has been made over the years in increasing diversity in the legal profession, but there is still a long way to go. “I am encouraged by this next generation's energy and ability to put themselves in other people’s shoes. I see good people working hard at firms, government
While many law firms embrace diversity in the hiring process, they face challenges retaining diverse attorneys because they have not created inclusive environments.
to interrupt bias, such as using metrics to spot problems. For example, firms can track performance evaluations to see if nonminority attorneys consistently receive higher ratings or whether the same performance ratings result in different promotion or compensation outcomes for certain groups.7 Additionally, having minority senior attorneys and partners provides a positive example and opens mentorship opportunities for young minority attorneys, while also demonstrating that the firm is inclusive.
Jeff M. Schwaber, managing partner at Stein Sperling Bennett De Jong Driscoll, PC, says his firm has taken steps to foster inclusivity, including participating in the BAMC’s Summer Scholars Pipeline Program and collaborating with a recruitment firm to find more diverse senior-level attorneys. Schwaber says the lack of inclusion is self-perpetuating because many firms remain predominantly white, leaving minority attorneys feeling more isolated. He believes that law firm leaders should first commit to “collective intentionality” to make their firm culture more welcoming and inclusive.
Benjamin Vaughan, a senior partner at Armstrong, Donohue, Ceppos, Vaughan & Rhoades, Chtd. and cochair of the BMAC’s Diversity Committee, says the legal profession “should reflect the community it serves.” His firm also participates in the Summer Scholars Pipeline Program and, according to Vaughan, its hiring and advancement of minority attorneys is on par
agencies, and the judiciary to increase diversity,” says Williams.
“My colleagues have been great about listening to my experiences, asking thoughtful questions, and taking action where appropriate. I have a good relationship with my bailiffs, and they have been really open and responsive,” he continues.
“The reward for doing good work is more work,” Judge Williams says. “So, we have more work to do.”
ERIC S. STEINER is a managing member of Steiner Law Group, LLC and primarily practices in the areas of commercial and consumer bankruptcy and commercial litigation. Reach him at eric@ steinerlawgroup.com.
This article was reprinted with permission of the D.C. Bar and was first published in the March/April 2021 issue of Washington Lawyer magazine, a publication of the D.C. Bar.
6 Cummins, Judge J., “Diversity Is Our Advantage,” Bar Association of Montgomery County, MD, newsletter (Sept. 2020); see also n.1.
7 Center for WorkLife Law, “Bias Interrupters: Interrupting Bias in Performance Evaluations, Tools for Organizations” (2016), biasinterrupters. org/wp-content/uploads/Interrupting-Bias-in-Performance-Evaluations-for-Organizations.pdf.
Kimberly Wehle
PROFESSOR OF LAW, UNIVERSITY OF BALTIMORE SCHOOL OF LAW
STANDING UP FOR DEMOCRACY
Photo courtesy of Beverly Funkhouser Photography
Kimberly Wehle has worn several hats in her career: Law School Professor, News Legal Analyst on television and radio nationally and abroad, Op-Ed Contributor, Published Author, and practicing lawyer. That’s not to mention, being a single mother to four growing girls. But it’s safe to say that Wehle’s passion is the Constitution and bringing an understanding of that document and its meaning to every American.
WEHLE’S CURRENT “DAY JOB ” is as a Professor of Law at the University of Baltimore School of Law, where she specializes in Administrative Law, Civil Procedure, and Federal Courts. Prior to that, the Michigan Law graduate, who also has a BA with honors from Cornell, was an Associate Professor at the University of Oklahoma College of Law and a Visiting Professor at George Washington University Law School. She also maintains a practice at Miller Friel, PLLC, in the District, where she tackles thorny procedural issues in insurance disputes. Wehle began her legal career clerking for a federal judge before moving to the Federal Trade Commission, the U.S. Department of Justice, the office of Independent Counsel Kenneth Starr, and private practice with the Washington boutique tax law firm, Caplin & Drysdale.
Wehle happened on her passion sort of accidentally. A few years ago she read in a newspaper article that the president’s pardon power was absolute. She couldn’t let that one go. As she says, the notion that anything in the Constitution is absolute is not true. There are checks and balances even on the presidential pardon power. She fired off an op-ed that was published in the Baltimore Sun. From there, she began writing more and more and was soon being asked to appear on radio and television as a legal analyst for the likes of media outlets such as CBS News, CNN, MSNBC, PBS, and the BBC. For a time she was a staff legal analyst for CBS News. She also writes pieces for various outlets such as Politico, The Atlantic, and The Bulwark
While Wehle certainly has substantial legal and scholarly chops and has been published in academic journals, her greatest strength may be her ability to distill complicated legal concepts into understandable layperson’s terms. And that has led not only to her media career as an in-demand analyst but also to another side job as an author. Wehle has written two books: What You Need to Know About Voting and Why (2020, Harper Paperbacks) and How to Read the Constitution and Why (2019, Harper Paperbacks). A third book, How to Think Like a Lawyer: A Common Sense Guide to Everyday Dilemmas (Harper Paperbacks), is set to come out this fall.
Wehle’s passion is to educate. She points out that studies show only a third of Americans surveyed can name the three branches of government. A healthy democracy cannot function properly with those numbers. In her first book, How to Read the Constitution and Why, Wehle writes,
The question for generations, therefore, has been whether the framers of the Constitution got it right. In order to begin to answer that question, every generation needs a basic working knowledge of what the Constitution does
(it sets up a structure of government and lists individual rights) and what it doesn’t do (it does not crown a king).
(Harper Paperbacks, 2019)
If people don’t understand their government and how it works, chaos and disorder follow. Wehle’s assertion played out on January 6, 2021, with the violent assault on the Capitol when followers of former President Trump demanded that Congress throw out millions of legally cast votes and declare Trump the winner of the 2020 election. Five people
If people don’t understand their government and how it works, chaos and disorder follow.
died and dozens, including many police officers, were hurt. Wehle says that the members of the mob that stormed the Capitol all believed two things that were not true: First, that the election had been stolen from Trump, and second, that former Vice President Pence and the Congress had the constitutional right and power to change the outcome of the election on January 6. Wehle says that those members of Congress who advocated for the idea of throwing out millions of votes and signed onto the Supreme Court brief arguing for that were essentially advocating for a different form of government. And, Wehle says, that is the debate that we need to have.
But, Wehle maintains, we can’t have that debate if people don’t understand what’s on the table. What we’re talking about is taking away the right to vote for every American. That’s not democracy. Wehle says her passion and obligation is to protect and preserve democracy.
Wehle’s wish is that every American would be educated about their government. That is where her books come in. Her dream is that people will read them and try to develop an understanding of how our democracy functions. She believes with the strength of her convictions that Americans need to get back to discussing our common sense, core values, and what matters to us. She wants everyday people to find the knowledge and strength they have within them.
Wehle believes that at this moment in time, Americans are largely picking one side—they’re either red or blue, and they’re focused on their team. She says that posture puts us in the position of protecting ourselves and our team. We
need to get out of this black or white world because, as Wehle repeatedly states in her work, the Constitution is grey. Imagine, Wehle explains, there’s a big bridge over a rushing river. The police on that bridge are sometimes red police, sometimes blue police. There are constant arguments over which color police get to direct traffic on the bridge. Meanwhile, the bridge, which has stood since the late 1700s, has not been maintained properly, and is at risk of collapse. Eventually, that bridge collapses with everyone, both red and blue, on it.
These days, Wehle says, we get our news from the algorithms attached to our phones and converse with people who share our views. The blues and the reds don’t mix. It’s not like it was 30 years ago when we got our evening news from CBS, NBC, or ABC and we basically shared the same facts.
Wehle has no illusions, but she is optimistic that there is a future for our democracy. First and foremost, Americans must vote. She points to Georgia. How did that state go blue after all of the difficulties faced by people of color throughout Georgia’s history? People voted. Second, everyone needs a basic education about the workings of our institutions of government. And we need to renew conversations about our common sense, values, and humanity.
Wehle remembers her immigrant great grandparents who came to the United States from Ukraine. Her grandmother learned to plow the fields by the time she was 10. Neither of her grandparents finished middle school. But they were tough, hard-working people, and they taught her how to live. They believed in gratitude, joy, and getting up when you’re knocked down. Wehle says democracy is worth getting up for.
DIRECTOR OF LEGAL WRITING AND PROFESSOR, BROOKLYN LAW SCHOOL
ADVOCATE FOR THE INTROVERTED Heidi Brown
PROFESSOR HEIDI BROWN is not a typical law professor. Professor Brown, who is now the Director of Legal Writing and a Professor at Brooklyn Law School, graduated from the University of Virginia Law School and had a successful litigation practice in New York and Washington, D.C. for 14 years before she found teaching. And then she found her voice.
Professor Brown says she has always been introverted. In college and law school she let others do the talking. She articulated her ideas through writing. But she loved the law, and she thrived with research and writing. Speaking in class terrified her, and that anxiety stayed with her well into practice. In law school, Professor Brown feared that she couldn’t cut it. While she could do the written work – and do it well –she wasn’t like many of her classmates who seemed to enjoy speaking in front of others in class and who loved for their voices to be heard.
What saved her in law school was the summer job she landed after her 1L year. It was with a boutique construction law firm. Professor Brown says most of her anxiety and fear disappeared. She got to do what she loved which was research and writing, and talking to the partners about her research results. She didn’t get called on out-of-the-blue by a professor, and she didn’t have to speak in front of her classmates before she was ready. What she got to do was get on with her work, and her work product and work ethic made an impression on the firm.
When she returned to law school as a 2L so did the anxiety. And it rattled her. The advice she received wasn’t all that helpful. She was told to just get out there and overcome her fear. “Just Do It!,” she was told. Or, “Fake It!” None of that worked. Professor Brown remembers that if she had to speak
in front of others or if she was cold called in class her body would react in a negative way. She developed red blotches on her neck and cheeks. And she would instinctively try to make herself as small as possible, crouching in her seat which she later discovered was restricting her breathing and making things worse.
Professor Brown mistakenly came to think there was something wrong with her. While she had been an excellent student as an undergrad, her law school grades were not as impressive. She understood the material and worked hard, but she struggled with any public speaking and the traditional law school interpretation of the Socratic Method. Yet she became a successful litigation attorney despite the challenges she faced during what she describes as “performance oriented events.” Then she became a teacher, and the process of the lightbulb turning on began.
Over that first semester though, she discovered that many of her strongest legal writers and deepest thinkers were those who didn’t speak out in class.
Professor Brown writes of walking into the classroom her first day of teaching armed with “three-ring binders of lecture outlines of large type-face and color coded highlighting.”1 As usual, she was terrified. Over that first semester though, she discovered that many of her strongest legal writers and deepest thinkers were those who didn’t speak out in class. That led to her own awakening and the hours and hours of research into the introverted. Eventually Professor Brown realized that she really was cut out for the law. She and others like her just needed a different type of training.
Professor Brown’s journey of self discovery led to two books and a third on the way designed to help quiet lawyers “discover their true voices.” In The Introverted Lawyer, A Seven Step Journey Toward Authentically Empowered Advocacy (American Bar Association, 2017), Professor Brown examines and explains introversion, shyness, and social anxiety in the legal context. The book offers techniques for quiet lawyers and law students to understand their fears and learn how to amplify their voices authentically. That book was followed by Untangling Fear in Lawyering: A Four Step Journey Toward Powerful Advocacy (American Bar Association, 2019) which continues the discussion and further examines how untangling fear can be an asset. Professor Brown’s next book is due out in 2022 and will again move the narrative forward and look at the physicality of well being. Beyond her popular selfhelp style books, Professor Brown has published four scholarly books and written extensively about legal writing and federal litigation.
Professor Brown is passionate about helping all of her students to succeed, especially those without the natural affinity Brown, Heidi, The Introverted Lawyer, The American Bar Association, 2017, P.XV.
for the Socratic Method. She vulnerably tells her story to all of her classes and wants them to understand it’s ok to be afraid. Professor Brown explains that introverts need time to think, and thinking is essential to being a good lawyer. She often conducts workshops for students – even those not in her class – who might benefit from her counsel. She also makes sure not to stymie the extroverts, saying she would not want to discourage them from talking about the law. But she does encourage self-regulation, making space for quieter voices.
Professor Brown writes:
“The actual work of lawyering is very well-suited to introverts. We enjoy quiet reading, thinking, analyzing, writing, and creatively solving problems. While I strongly believe that law professors can do more to adjust teaching styles to afford naturally quiet students and introverts more time to think before being expected to speak about complex topics, introverts can excel in learning environments in which they can develop their advocacy voice authentically. They shouldn't have to fake extroversion."
Not surprisingly, Professor Brown says the best parts of her job and her professional life are her students. She enjoys keeping in touch with graduates and hearing about their careers after law school. Her favorite conversations are when a student comes to her and says: I don’t know what to do with my law degree. Professor Brown responds: That’s great because you can take time to find what inspires you and what you enjoy. There isn’t one path to success. You don’t have to have perfect grades for a good career.
The Introverted Lawyer: A Seven-Step Journey Toward Authentically Empowered Advocacy
REVIEW BY BARBARA CLARKE
PROFESSOR HEIDI BROWN has really done her homework here. The Brooklyn Law School Professor and Director of the Legal Writing Program has produced a well-researched and thoughtful treatise that will resonate with lawyers, law students, and many others close to the profession.
The book is in two parts. In the first, Brown tells the story of her struggle as first an introverted law student and then an introverted lawyer. Brown loved the law and could do the written work and do it well. But she was terrified when she had to speak in front of her classmates. And that feeling carried through to her years of practice as a litigator. Well-meaning people tried to tell her to just jump right in and forget her fears. That didn’t work. Some questioned why Brown had
characteristics of introversion, shyness, and social anxiety. She concludes that quiet lawyers often have the potential to be great lawyers.
The second part of the book is a guide for quiet lawyers. Brown advocates for putting aside the sort of advice she was given to Just Do It. Her Seven Steps are about listening to one’s body and mind and slowly moving to beat fear and anxiety. Brown says she began researching after having practiced law for more than a decade. Her studies allowed her to conclude that there was nothing wrong with her. She and others like her benefit from ways of learning different from the traditional Socratic Method.
Brown’s research led to a second book: Untangling Fear in Lawyering, A Four Step
Some questioned why Brown had chosen to be a lawyer in the first place. And Brown came to think that there was something wrong with her.
chosen to be a lawyer in the first place. And Brown came to think that there was something wrong with her.
When she went back to law school as a teacher, she discovered that some of her best students were the quiet ones, and she was spurred on to research what she had considered to be her own affliction. Brown lays out much of this research after telling her story. She explains the
Journey Toward Powerful Advocacy (American Bar Association, 2019), and a third set to come out next year. Brown has obviously found her way and her calling to help quiet but highly capable lawyers and law students like her.
GIBBER ON ESTATE ADMINISTRATION
SEVENTH EDITION
The definitive estate administration resource for Maryland attorneys – the first new edition since 2017
Another top title now available in DIGITAL PRINT versions! &
Often referred to as “the bible of estate administration,” Gibber on Estate Administration takes a multidisciplinary approach to pressing topics in this complex practice area. The newly updated version brings practical guidance and clarity to major topics in estate administration, including Maryland’s new elective share law, guardianships, estate tax and distributions, and implications for attorneys practicing in adjacent fields such as real property law, contracts, family law, and more.
A HELPER AT HEART
TIFFANI COLLINS
Collins Legal Group
Tiffany S. Collins is an experienced attorney from Baltimore City, Maryland. Her practice includes personal injury, criminal and business law. In addition to running her own practice, Collins recently launched “Barred & Beautiful”, a lifestyle brand recognizing the impact of women lawyers in Maryland. Read on to learn more about Collins, her practice, and how she is working to recognize female attorneys.
Photo courtesy of Beverly Funkhouser Photography
Tell us a little bit about your law practice.
Collins Legal Group, LLC is a boutique law firm in downtown Baltimore with primary focus on all injury law and secondary practices in Criminal and Business law.
What are some challenges you face as a small firm practitioner?
One of the most common challenges small firm practitioners face is managing volume. To help combat potential bottlenecks we rely on systems for almost everything and cloud based practice management software.
What do you find most rewarding about your current law practice?
I’ve always been a helper at heart. Knowing that every day I wake up and go to work to help people is the most rewarding part of my practice. Whether it is helping them put their lives back together after a tragedy or helping them pursue their dream of entrepreneurship, I take great comfort and pride in knowing the work we do is helping to improve our client’s lives.
What is your fondest memory of your legal career so far?
Every year we open our doors to a handful of high
In addition to your legal practice, you started Barred & Beautiful - can you tell us more about Barred & Beautiful?
Barred & Beautiful is a lifestyle brand that focuses on the achievements and contributions to the law of women lawyers. This is a place where we can celebrate ourselves and each other. If you want to brag on a friend, colleague or even yourself, this is the place to do it. We share kudos weekly and spotlights biweekly.
What prompted you to start Barred & Beautiful?
The goal of Barred & Beautiful is to highlight women lawyers all over the country and celebrate their achievements. For me, it is so important to celebrate and build off of the success of other women.
How can MSBA readers help support the efforts of Barred & Beautiful?
We would love to see more Maryland woman lawyers follow our social media pages, sign up for our newsletter and share their successes. Join our community and help us recognize women lawyers.
I take great comfort and pride in knowing the work we do is helping to improve our client’s lives. “
school students from all over the city who are interested in studying law. They spend between three and eight weeks with us and shadow me and my staff as we zealously advocate for our clients. I am always so honored to have the privilege of exposing these young people to the profession I love so much. I have watched on as many of them have graduated from college and gone on to law school.
What is the one piece of advice you would give someone in law school?
Enjoy the process! I loved law school. It was an amazing experience to learn about the history of our legal system and all the ways it has changed and improved throughout the centuries. It is easy to get caught up in the stress of the work, grades and rankings but it is also important to enjoy the process of learning the law and where you can make a difference in it.
A little more about Collins outside the office...
WHAT DO YOU DO TO UNWIND/ DE-STRESS? Hot power yoga and my Peloton are the best stress relievers ever.
WHAT’S AN INTERESTING FACT ABOUT YOU THAT NO ONE WOULD GUESS?
I am obsessed with volcanoes. The summer before law school I climbed Mt. Vesuvius.
“Battered Spouse” Defense Available Without Finding of Repeated Abuse By Perpetrator
It has been 30 years since the General Assembly enacted Md. Code Ann., Cts. & Jud Proc. § 10-916 (2020) (hereinafter Cts. & Jud. Proc.) recognizing the “Battered Spouse Syndrome” as a defense to homicide and assault in Maryland. Since then, courts have wrestled with the parameters of the defense. In State v. Elzey (No. 3, Sept. Term 2020) (Jan. 29, 2021), the Court of Appeals was asked a new but important question: whether a jury must find that the batterer (the victim in the criminal case) repeatedly abused the defendant (the battered “spouse”) before it can consider abuse of the defendant by others when weighing a battered spouse defense.
TO REACH THIS ISSUE, the Court first had to accept a significant ruling of the Court of Special Appeals in an earlier case—that in appropriate circumstances, evidence of abuse by persons other than the decedent can be relevant and, therefore, admissible when a battered spouse defense is raised. Wallace-Bey v. State, 234 Md. App. 501 (2017). The Court then determined that once admitted, a jury may consider all the evidence of abuse—including the impact of abuse by prior partners—when determining whether the defendant was suffering from the syndrome at the time of the alleged offense.
The facts of the case were essentially uncontroverted. Defendant Latoya Elzey grabbed a knife during an argument with her boyfriend, Migail Hunter. Within minutes, Hunter was dead from a stab wound to the heart. A witness testified that while in another room, she heard Elzey asking Hunter to stop hitting her, Hunter saying, ”go ahead and do it,” and Hunter’s body hitting the floor. Id. at 3. Elzey was charged with first-degree murder and related offenses.
Elzey never denied killing Hunter, but claimed that she did so in self-defense. Her expert, a psychiatrist, testified that Elzey suffered from post-traumatic stress disorder (PTSD) and depression at the time of the killing, both stemming from violence suffered as a child at the hands of her grandmother, and as an adult by several domestic partners, including Hunter.
The psychiatrist was of the opinion that Elzey’s PTSD and depression were consistent with Battered Spouse Syndrome, itself a form of PTSD in which an individual who has experienced repeated abuse by an intimate partner becomes depressed and develops “learned helplessness,” or a feeling that they are unable to change their situation. Id. at 6, It is also common for such victims to develop, in the words of the Court, the ability to “sense the escalation in the frequency and intensity of the violence,” enabling them to become “expert at recognizing the warning signs
of an impending disaster from [their] partner—signs frequently imperceptible to outsiders.” Id. at 19 (citations omitted).
The State did not dispute the historical facts underlying the expert’s opinion, but disagreed with Elzey on the application of the law to these facts. This disagreement played out in the parties’ requests for jury instructions. The State requested the following instruction:
You have . . . heard expert testimony that the Defendant exhibits the characteristics consistent with battered spouse syndrome. You must determine, based upon a consideration of all the evidence, whether the Defendant was a victim of repeated physical and psychological abuse by the victim, and if so[,] whether she suffered from battered spouse syndrome.
Id. at 12 (emphasis added).
Elzey’s attorney objected, and asked the trial court to insert the words “and others” after “the victim”, to require that the jury find Elzey to have been a victim of repeated abuse “by the victim and others” before considering whether she suffered from Battered Spouse Syndrome. Id. at 13. The trial judge sided with the State, expressing the belief that under Maryland law, “she is not allowed to murder her current boyfriend because four boyfriends ago beat her up.” Id. at 11. The judge gave the instruction requested by the State. Elzey was found guilty of voluntary manslaughter and was sentenced to 10 years imprisonment.
Both appellate courts took issue with the instruction and what it required of the jury, ultimately concluding:
[W]here there is evidence that the defendant was abused by one or more third parties before the decedent allegedly abused her, and an expert opines that all of the defendant’s abusive relationships contributed to her development of Bat-
tered Spouse Syndrome, a trial court may not instruct the jury to make a predicate finding that the decedent repeatedly abused the defendant, before the jury may consider all the evidence that goes to whether the defendant was suffering from the Syndrome at the time of the alleged offense. Id. at 32.
The Court began its analysis by explaining the limited purpose of Cts. & Jud. Proc. § 10-916, a statute enacted simply to allow a trial court to admit evidence, including expert testimony, pertinent to Battered Spouse Syndrome and the defendant’s state of mind at the time of the offense in connection with a claim of self-defense. Id. at 18. The statute did not create a new defense to murder. “Rather, evidence of the Battered Spouse Syndrome is offered in support of the state of mind element of perfect or imperfect self-defense, i.e., it is offered to prove the honesty and reasonableness of the defendant’s belief that he or she was in imminent danger at the time of the offense.” Id. (citation omitted). The statute makes no mention of abuse by anyone other than the defendant’s victim.
at 27–8 (citations omitted). The expert testimony and evidence of prior abuse, however, was properly admitted, and “the trial court erred by creating an obstacle to the jury’s use of that evidence. . . .” Id. at 29.
The source of confusion was Cts. & Jud. Proc. § 10-916 itself, which provides that when a defendant “raises the issue that the defendant was . . . suffering from the Battered Spouse Syndrome as a result of the past course of conduct of the individual who is the victim of the crime for which the defendant has been charged, the court may admit . . . [e]vidence of repeated physical and psychological abuse of the defendant perpetrated by an individual who is the victim of a crime for which the defendant has been charged,” as well as “[e]xpert testimony on the Battered Spouse Syndrome.” Cts. & Jud. Proc. § 10-916(b)(1) and (2).
The statute, the Court concluded, merely provides a threshold standard for admissibility of evidence of abuse, “a question of law that is solely for the trial court to decide.” Id. at 26. “Indeed, it does not address the role of the trier of fact in any respect,” and certainly does not require the jury to make any predicate
The Court recognized that when compared to more traditional notions of self-defense, analysis of the Battered Spouse Syndrome “requires a more careful and sophisticated look at the notion of imminent threat and what constitutes ‘aggression.’"
The Court recognized that when compared to more traditional notions of self-defense, analysis of the Battered Spouse Syndrome “requires a more careful and sophisticated look at the notion of imminent threat and what constitutes ‘aggression,’ of understanding that certain conduct that might not be regarded as imminently dangerous by the public at large can cause someone who has been repeatedly subjected to and hurt by that conduct before to honestly, even if unreasonably, regard it as imminently threatening.” Id. at 20 (citation omitted). The Court noted that the defining features of the syndrome—learned helplessness and heightened sensitivity to signs of escalation— can make information about prior abuse by others central to evaluating the defendant’s state of mind when responding to specific stimuli. Id. at 23. “[E]vidence of prior abuse,” therefore, “can be relevant to the determination whether a defendant suffered from Battered Spouse Syndrome at the time of the alleged offense.” Id. at 27.
The problem with the jury instruction, the Court found, was that it required the jury first to find that Hunter repeatedly abused Elzey, and only then (“if so”) could it go on to determine whether Elzey suffered from Battered Spouse Syndrome. “[R] equiring the jury to find that Hunter repeatedly abused Elzey physically and psychologically before the jury could consider whether Elzey suffered from Battered Spouse Syndrome . . . left open the possibility that the jury would never consider [the expert’s] opinion that Elzey suffered from the Syndrome.” Id
findings before it can consider evidence that has been properly admitted. Id. Elzey raised the issue of abuse by Hunter so the expert testimony offered by Elzey and, under Wallace-Bey, evidence of abuse by others, was properly admitted. Once admitted, the jury can consider it, and the trial court erred in suggesting otherwise.
Two judges concurred, satisfied with the Court’s interpretation and application of Cts. & Jud. Proc. § 10-916 on these facts. They wondered aloud what might happen when faced with a situation in which a defendant who does not claim to have been abused by her victim seeks to introduce evidence of abuse by others in support of a battered partner self-defense claim. Id. (McDonald, J. concurring) at 2. The concurring opinion suggested that such evidence may be “more pertinent to a plea of ‘not criminally responsible’ than to a claim of self-defense.” Id. at 4. It is unclear whether they were suggesting a shift from a self-defense paradigm to lack of criminal capacity for all battered spouse claims, but by raising the question they expose the rather narrow doctrinal line between the two defenses. The majority expressly reserved on this question. Id. at 30, n. 13.
RETOOLING THE RESOLUTION OF FEE DISPUTES COMMITTEE
FRED L. COOVER
Coover Law Firm, LLC
Photo courtesy of Beverly Funkhouser Photography
Fred “Chip” Coover is a solo practitioner in Howard County, Maryland. For the past 25 years, Coover has served the legal profession through his work on the MSBA’s Resolution of Fee Disputes Committee, and now serves as the Chair of the committee. Learn more about Coover’s practice and the Resolution of Fee Disputes Committee below.
Why did you enter the legal profession?
I can’t “do math”; my college debate class professor suggested I would “be a good lawyer”; I thought she was a bit crazy and yet here I am.
Honestly though, I entered the legal profession to help others as an advocate and to make a difference.
What is the best piece of advice you have received from someone in the legal profession?
Don’t allow your client’s problems to become your own.
What is your fondest memory of your legal career so far?
I have had so many, it is very hard for me to choose. We all have “war stories.”
Overall, just meeting and working with new people; getting to know them and maybe helping along the way.
What advice would you give someone in law school or considering a legal career?
Who you truly are is not what you do for a living.
The practice of law is ONE “means to an end” - a way to make a living.
It is not [or should not be] the only means or option or “the” end.
You are entitled to a life outside the law. It will make you a better lawyer.
The law can provide a rewarding career financially and emotionally but start early to find a niche that fits your personality and needs and allows you to be truly happy.
Being a lawyer is not for everyone - it requires hard work, long hours and sacrifice.
Tell us a little bit about your current role:
I've been a sole practitioner since 2012. It gives me the ability to personally interact with all of my clients; to see and hear them and get a sense or “feel” for who they are and how I can best address their needs.
What would you change about your current role if you could?
Work fewer hours.
As a senior lawyer, I value quality of life over most other things now, including income.
I am “hands on,” personally involved in everything. A litigation practice involves many competing deadlines; it can be stressful and requires long hours.
I am often the first car in the parking garage in the morning and last to drive out in the evening. It is not unusual for me to work 60+ hours per week and to start at 5 am and work to 7 or 8 in the evening.
How are you involved with the MSBA?
I have served on the Executive Council of the MSBA Fee Dispute Committee for over 25 years and currently serve as Chair.
I previously served on the MSBA Ethics Committee.
Can you tell us a little more about the Fee Disputes Committee?
The MSBA “Committee for the Resolution of Fee Disputes” or Fee Dispute Committee has for many years served its member attorneys and the general public by providing no-cost alternative dispute resolution for legal fee disputes.
The Committee’s purpose, function, rules and procedures are guided by the MSBA Regulations adopted many years ago. The Committee is organized into an Executive Council comprised of the Chair; seven Vice-Chairs; the immediate past Chair serving in an
“Ex Officio” capacity and approximately 200 attorney members who volunteer their time to resolve fee disputes through negotiation and arbitration as required. Each Vice Chair oversees the administration of fee disputes involving attorneys in their jurisdiction and the Executive Council meets periodically to consider current disputes.
You are entitled to a life outside the law. It will make you a better lawyer. “
What are your current goals for the committee?
As Chair, I was tasked by Past President, Dana Williams and current President, the Hon. Mark Scurti with focusing on diversity and inclusiveness within the Committee and Executive Council.
We have imposed term limitations and staggered terms for the Executive Council in order to encourage opportunities for fresh perspective and cultural, ethnic, gender and racial inclusiveness. Many of the existing VC’s will “term out” in the near future and we will be seeking new VCs to join the Executive Council. I encourage anyone with interest to contact me.
The Executive Council has for many years felt strongly that the MSBA Regulations governing its function and procedures have become outdated.
In late 2019, the Executive Council commenced a year-long initiative to develop amendments to the By-Laws modernizing and streamlining the function of the Committee.
A little more about Chip Coover:
WHAT’S YOUR FAVORITE HOBBY?
Auto mechanics.
I tinker in the shop on antique vehicles. I like to “make old things better - bring them back to life and keep them nice.
I have a growing list of projects I will never complete and that’s just fine.
WHAT’S AN INTERESTING FACT ABOUT YOU THAT NO ONE WOULD GUESS?
PUBLISH YOUR WORK WITH MSBA’S MEMBER Thought Leader Program
Each member of the Executive Council has been actively involved but the initiative was guided substantially by the advocacy, insight and perseverance of Vice Chair Eric Lipsetts.
In early 2021, the Executive Council completed proposed Regulation amendments and as Committee Chair, I will be excited to present the amendments to the MSBA Board of Governors for consideration in the spring of 2021.
Why is the work of this committee important to you and the legal profession?
Providing an efficient, fair and equitable process for attorneys and clients to resolve fee disputes privately and confidentiality serves all interests. As in all other areas, litigation of fee disputes should be avoided.
I am a “tool guy” and I am teaching myself to weld.
WHAT ARE SOME WAYS YOU GIVE BACK TO THE COMMUNITY?
Private practice provides me flexibility and autonomy; allowing me to serve on boards and committees in a voluntary capacity and further my goal to “give back” and make a difference.
In addition to being current Chair of the MSBA Fee Dispute Committee; I serve as Chair of the Howard County Property Review Board and The Trustees of Union Chapel Inc.; positions I have held for well over 20 years. I also serve as the Attorney Member of the Howard County Adult Public Guardianship Review Board.
A LEGACY OF SERVICE CHARLES O. FISHER, JR.
Walsh & Fisher, P.A.
Photo courtesy of Beverly Funkhouser Photography
Charles O. Fisher, Jr. has a long history of service to the profession, his community, and to the MSBA’s Committee on the Resolution of Fee Disputes. We spoke with Fisher to learn more about him and his work on the committee.
Why did you enter the legal profession?
My father was an attorney. [He was President of the MSBA.] Despite pursuing other ideas, I discovered during my education that the legal profession suited my abilities, my interests and my experience.
Charles O. Fisher, Sr. was President of the MSBA from 1980 to 1981. He was the first Solo & Small Firm Practitioner to hold that honor.
Read about Charles O. Fisher, Sr. at MSBA.ORG/FISHER
What is the best piece of advice you have received from someone in the legal profession?
When I was a law clerk in a large Baltimore firm, Norman Ramsey, a brilliant lawyer, who later became a federal judge, told me that when immersed in a difficult legal problem, often the best approach is to relax and let your mind play through various scenarios. He called it “looking out the window time.”
What is the one piece of advice you would give someone in law school or considering a legal career?
Do not enter the profession for money. If you do not respect and enjoy the practice of law, its commitments will overwhelm you.
Tell us a little bit about your current role.
I am currently the manager and owner of a small practice which was founded in 1896 and has operated continuously in the same location for 125 years.
What do you love about your current role?
I am pleased to be a part of the community in which I was raised, and to have opportunities to participate in its life and its institutions and to provide legal assistance to its members.
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I am pleased to be a part of the community in which I was raised, and to have opportunities to participate in its life and its institutions and to provide legal assistance to its members.
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I’m currently working on adjusting to technological and economic changes in my business so that I can continue to practice law in my community.
What’s your biggest focus right now?
[I’m currently working on] adjusting to technological and economic changes in my business so that I can continue to practice law in my community.
You’ve been involved in the MSBA for some time, what has been your primary involvement?
At this time I am a member of the Executive Committee on the Resolution of Fee Disputes and its immediate past Chair. I have been a member of the committee for over 20 years. In addition, in the past I have served two terms on the Board of Governors and chaired the Budget and Finance Committee for several years.
Can you tell us a little bit about the Committee on the Resolution of Fee Disputes and its work?
The Committee on the Resolution of Fee Disputes provides the Bar and Clients with an alternative method of resolving disputes about the amount of a fee that has been charged or paid for legal services. Other lawyers who are not involved in the dispute volunteer their time to assist in a compromise of the matter or arrange its arbitration. The service has been in existence for at least 40 years. It is managed by an Executive Committee comprised of a Chair and eight Vice Chairs representing different regions of the State. The Executive Committee assigns and supervises volunteer attorneys, monitors pending cases and keeps records of their disposition. The Executive Committee has recently reviewed the MSBA Regulations relating to this service and is making recommendations to the Board of Governors to update those Regulations.
A little more about Charles Fisher Jr.
WHAT DO YOU DO TO UNWIND/ DESTRESS?
I have been a runner for more than 40 years. I also play golf and ride a bicycle. I like to play catch with a baseball. And I enjoy cooking, playing piano and assembling art jigsaw puzzles.
WHAT’S A CAUSE OR CHARITY THAT YOU ARE PASSIONATE ABOUT?
I have been involved in the governance of Carroll Hospital in Westminster for more than 30 years. I served 14 years on its Board of Directors and was Board Chair for four years. I am currently a Director of LifeBridge Health, a system that includes three major hospitals and many related institutions and businesses. I am also a Director of Northwest Hospital, an affiliate of LifeBridge. I am also a Trustee of the Historical Society of Carroll County and a Director of ARC Carroll County.
WHAT’S YOUR FAVORITE VACATION SPOT?
Paris. But I have not been there in many years. Most frequently my wife and I tent camp and bicycle on Cape Cod and explore Canada.
Inclinations In-house
An International Company WITH MARYLAND ROOTS
Merkle, a dentsu company, is a shining success story with a humble history right here in Maryland. From its modest beginnings, Merkle has become one of the nation’s leading customer experience management (CXM) companies and is now a top name in technology-enabled data transformation and digital transformation. For those not familiar with CXM, it is the use of data, technology, and analytics to help brands make their customers’ experiences more personal, make their advertising more addressable, and manage their consumer relationships over time.
Merkle, a dentsu company, is a shining success story with a humble history right here in Maryland. From its modest beginnings, Merkle has become one of the nation’s leading customer experience management (CXM) companies and is now a top name in technology-enabled data transfor mation and digital transformation. For those not familiar with CXM, it is the use of data, technology, and analytics to help brands make their customers’ experiences more personal, make their advertising more addressable, and manage their consumer relationships over time.
Merkle became part of dentsu, one of the world’s largest advertising companies, in 2016. The move further expanded the company’s reach into the global market. In 2020, dentsu attained full ownership of Merkle, a move described as a positive step in Merkle’s full integration solidifying the future of the team as central to dentsu’s strategic ambitions. It provides materially more flexibility for Merkle to deliver integrated solutions for clients, working alongside colleagues across dentsu's Media and Creative offerings.
The company’s commanding worldwide presence is a far cry from those humble beginnings when a small data processing company was purchased by a young visionary with big dreams of building a world class service organization. In 1988, Merkle was acquired by David Williams. At the age of 25, David already had a visionary style. Under David’s leadership the company experienced exponential growth over three decades. Merkle/CXM is now led by Global CEO Craig Dempster, who previously served as president of Merkle’s Americas region and who was a mentee of David’s for over a decade
A CULTURE THAT CREATES A COMPETITIVE ADVANTAGE
Behind the tremendous success of the company is its vibrant culture. Merkle points to its people as the foundation of its success. The people do not just reflect the brand, the people are the brand. The company recruits actively with its values in mind. Those values include passion and enthusiasm, teamwork and collaboration, innovation and creativity, curiosity and learning, as well as a sense of humor. Merkle prides itself on its culture and hails culture as the ultimate competitive advantage. Merkle’s culture aligns with dentsu’s “8 ways to the never before,” which inspires all members of the dentsu community to dream loud; to inspire change; to team without limits; to all lead; to make it real; to climb high; to choose excitement; and to be a force for good. Through the 8 ways, dentsu achieves the “never before” for its clients, itself, and society.
Photo courtesy of Beverly Funkhouser Photography
INTRODUCING THE MARYLAND BASED LEGAL TEAM
Here in Maryland, dentsu's legal team boasts a significant presence. The team supporting all aspects of dentsu’s CXM service line including Maryland-based Merkle (www.merkleinc. com), which is the largest and best known brand in CXM, is an integral part of the larger global dentsu Legal and Compliance Team (L&C) which supports dentsu’s other service lines and provides leadership and support. CXM Legal prides itself on being a trusted advisor, risk mitigator, and business partner in all matters involving CXM and dentsu-wide clients, vendors, employees and partners. In this role, the team provides guidance and advice on, among other things, compliance, privacy, asset protection, risk assessment, investigations, contract administration, strategic planning, and informed decision making.
The members of L&C who are based in Maryland are an experienced group of attorneys and other legal professionals. This group is comprised of attorneys Susan Zoch, Saul Ehrenpreis, Brian Thompson, and Amanda Knab, and legal professionals Charlotte (Char) Meyers (Contracts Manager), Katie McClung, and Bridgette Nickoles (both Commercial Solutions Managers). The team members all say their tight knit group fits neatly
into the larger company culture, and they value the team and their roles in it above all. The team has the dual role of stewards and active practitioners of the dentsu culture. In its first role, the team assists decision-making by helping to frame options in the context of the company's culture. In its second role, the team lives the company's culture in all aspects of its service to Merkle and the other brands that it supports.
L&C is a cohesive community of professionals with a single collective goal: to provide outstanding legal services to clients. The team makes sure to share knowledge freely with each other, and supports each other during professional and personal challenges — if one team member asks for help, help is readily offered. The team celebrates accomplishments and milestones and most importantly, tackles challenges and obstacles as a team. Members say enthusiastic collaboration is a central part of who they are and one of the ways they achieve an environment where great talents want to work and grow their legal careers.
We learned a little more about the members that make up the Maryland based legal team.
Leading the team is SUSAN ZOCH . Zoch is dentsu’s Global General Counsel CXM, having served as Merkle’s General Counsel before Merkle was acquired by dentsu. Zoch’s practice covers a broad spectrum of disciplines including strategic planning, commercial transactions, privacy and data protection, technology, litigation, compliance, human resources, and legal team management. Before going in-house, Zoch enjoyed a sophisticated transactional practice at Baker Botts. Zoch clerked in the U.S. District Court, Northern District of Texas. She earned her JD at the University of Texas School of Law and her BA at Rice University.
“ZOCH MADE THE SWITCH TO IN-HOUSE FROM PRIVATE PRACTICE AND HAS NEVER LOOKED BACK. SHE EXPLAINS:
While I was in private practice in DC, I heard about an in-house opportunity at a company headquartered in Baltimore. The legal department there was small enough to allow me to have a hand in everything, and that breadth of experience appealed to me. I was also impressed with the general counsel, who ended up being a good mentor to me, and with the other team members, who have remained trusted colleagues during my career. So I took the position, and have remained in-house ever since. I moved to Merkle more than eight years ago.
“ZOCH EXPLAINS HOW SOME OF THE WAYS IN-HOUSE PRACTICE CAN DIFFER FROM FIRM PRACTICE:
Working in-house can afford the opportunity to understand the business needs and risk tolerance in more depth than might sometimes be possible in firm practice. In-house practice also may tend to be less specialized than in firm practice, often requiring quick attention to a wide range of issues rather than more in-depth analysis of a particular subject matter. While an in-house lawyer may work just as many hours as one in firm practice, an in-house lawyer may be more likely to hear apologies from clients who are calling at odd hours, or expressions of gratitude for the lawyer’s late nights.
“FOR YOUNG LAWYERS WISHING TO MAKE THE MOVE TO IN-HOUSE, ZOCH HAS SOME SUGGESTIONS:
First, build your legal skills and experience. Working in a law firm is a terrific way to do this, but not the only way. Do good work, and build a reputation for excellence and integrity. Second, build relationships, especially within the legal community. Participation in bar activities and serving in pro bono opportunities are some great ways to do this. Third, get to know the businesses in your geographical area or industry of interest. Pay attention to what companies are growing, restructuring, opening new offices, and hiring, and also follow any changes in the general counsel or other legal staffing for those businesses. You will then be able to see an opportunity when it arises, and be poised to seize it.
SAUL EHRENPREIS is Associate General Counsel at dentsu. Previously, Ehrenpreis was VP, Associate General Counsel at Merkle. He has been with the company for seven years. Prior to joining Merkle, Ehrenpreis was a bankruptcy and litigation associate at Cole Schotz in Baltimore. Ehrenpreis clerked for the Honorable Stuart R. Berger on both the Circuit Court of Baltimore City and the Court of Special Appeals of Maryland. He received a BSBA from the University of Florida, his MBA from Florida Atlantic University, and his JD from the University of Maryland School of Law.
“EHRENPREIS SAYS IT IS GREAT BEING PART OF THIS TEAM:
While each of us has our role, no one is too big for a job, task, or to take time to listen and help another member in need. We may not be in the office now but each and every one of us still has an “open door” policy whereby we are always free to help the others. The team is also a lot of fun to be with and around. We are always laughing with (and at) each other including some random light-hearted pranking that is appreciated (and sometimes needed) by all.
Ehrenpreis enjoys the work and loves being able to use his legal and business backgrounds in his practice. He says having his MBA means that he approaches everything as a businessperson, while also thinking like a lawyer. These dual backgrounds help him to get the best results for the team.
“HE DESCRIBES HIS WORK AS “A LITTLE BIT OF THIS, AND A LITTLE BIT OF THAT.”
One of the things that I have loved about being at Merkle/dentsu is that I have been able to be a true “General Counsel” to the team. While a large portion of my work is commercial contracting (which can be expected for an attorney at a service provider), I am constantly involved in pretty much any type of legal work or question that you can think of. On a weekly basis, in addition to commercial contracting matters, I work on (1) corporate; (2) HR; (3) equity; (4) bankruptcy; and (5) litigation matters. I also am involved in the product life cycle and coaching and training Merkle/dentsu’s business personnel and leadership on all matters from actual situations and emergencies to hypothetical situations planning and preparing for the future.
BRIAN THOMPSON is Senior Legal Counsel and Lead Government Contracts Counsel at dentsu. Previously, Thompson was Associate General Counsel at Merkle and Assistant General Counsel and Assistant Dean of the Graduate School at UMBC. Thompson has a BA from UMBC, an MBA from the University of Maryland, a JD from the University of Baltimore School of Law, and a Masters Certificate in Government Contracting from George Washington University. Thompson says he brings a set of professional experiences that differ from other members of the team having spent most of his career in the public sector.
HE HIGHLIGHTS A FEW WAYS THAT HIS ATYPICAL BACKGROUND SERVES HIM WELL:
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Having been an attorney in the public sector provides both an alternative point-ofview when approaching opportunities and an appreciation for the issues relevant to governmental entities in negotiations (for example, sovereign immunity). In addition, having taught courses including business ethics at the undergraduate level improved my skills in conveying information to people with different backgrounds (for example, legal principles to non-attorneys).
THOMPSON EXPLAINS THE FOCUS OF HIS WORK:
I support the CXM service line for its clients in the Insurance & Wealth Management and Travel, Media, & Entertainment Sectors. This support can take the form of complex contract negotiations, or advising on compliance, disputes, or related issues. Second, I support all of dentsu’s brands as U.S. government contractors, which allows me to contribute on a wide range of areas including compliance and negotiation of agreements such as subcontracts. Outside of my day-to-day work, I’ve had (and continue to have) the opportunity to engage on matters related to litigation, human resources, investigations, and disputes. I’ve also been empowered (and continue to be) to conceive and implement processes and controls, including an efficient and effective system for instigating and managing litigation holds.
AMANDA (MANDY) KNAB is Legal Counsel at dentsu. She has been with Merkle/ dentsu for almost two years, previously serving as Commercial Counsel. Prior to joining Merkle, Knab was a corporate associate at Venable in Baltimore and Nemphos Braue, a boutique corporate law firm. While obtaining her law degree from the University of Maryland School of Law, Knab also worked full time as a paralegal for a solo litigator, and as a part time research assistant at the University of Maryland Center for Health and Homeland Security. She obtained her BA in Government and Politics and Certificate in Women’s Studies from the University of Maryland, College Park.
KNAB SAYS, “THIS TEAM GIVES MEANING TO THE SAYING ‘TEAMWORK MAKES THE DREAM WORK.’” THE TEAM OPERATES LIKE A SMALL FAMILY. KNAB SAYS TEAM MEMBERS ARE ALWAYS AVAILABLE TO EACH OTHER AND ALWAYS WILLING TO STEP IN TO HELP EACH OTHER.
Equally important – this team is fun! Whether it’s birthday celebrations, costume contests, talent shows, or good-natured pranks, we maintain a balance of professionalism and joviality which is what makes us work so well together.
The majority of Knab’s work focuses on commercial contracting, integrating Merkle/ dentsu’s acquired companies (both in the U.S. and globally) into the organization, and assisting with the development and implementation of process enhancements. She says, not only does this mix of work keep things interesting, it also gives her the opportunity to work with people from all levels of the organization, remain well informed of the company’s service offerings, and help deliver world class services to clients.
KNAB SAYS HER PREVIOUS EXPERIENCE HELPS HER IN HER CURRENT ROLE: Prior to joining Merkle/dentsu, I was used to working closely with clients on a variety of corporate matters, like governance, M&A, joint ventures, financing, and day-to-day operations. I had many clients when I worked at a firm, and now I get to focus that experience on serving one client.
DID YOU KNOW?
Community service is very important to L&C. For the past few years, the Maryland-based portion of the team has adopted families for the holidays through the House of Ruth Maryland. They also support their own personal causes. Knab’s passion is helping Baltimore City public school students. She serves as the president of the board of directors of Friends of Great Kids Farm, a charity that helps Baltimore City public school students experience farming and the outdoors. Thompson serves as a member of the board of the Women’s Law Center of Maryland. Ehrenpreis and McClung are self-identified animal lovers: McClung supports the Anne Arundel County SPCA, and Ehrenpreis supports the National Disaster Search Dog Foundation. Zoch supports the Grassroots Crisis Intervention Center which serves those in need in many capacities. Meyers supports All About the Kids Foundation, and Nickoles contributes to Helping Up Mission.
As Contracts Manager, CHAR MEYERS manages the contract process for CXM and is the gatekeeper for the team. Before joining Merkle/dentsu, she was a tax analyst with Constellation, an Exelon Company, preparing state and local tax returns. Prior to that, she was a legal secretary supporting various attorneys/ partners through the years.
KATIE MCCLUNG and BRIDGETTE NICKOLES are both Commercial Solutions Managers, applying best practices to develop and review contracts for various types of service engagements and collaborating with the business units in structuring contractual documents. McClung brought nine years of
contracting administration experience to dentsu from Orbis Technologies, where she assisted government and commercial clients with software and technical services. She also supported client engagements from beginning stages of teaming agreements through contract administration and close outs. Prior to joining dentsu, Nickoles worked as a manager of contracts supporting both vendor acquisition and sales for mobile media advertising, energy management, SaaS, and medical diagnostic equipment companies. Before shifting her focus to contract negotiation and management, she worked as a paralegal for 15 years primarily focused on contracts and litigation.
THE CHANGING ROLE OF General Counsel
It goes without saying that companies expect general counsel and chief legal officers to provide legal advice. Over time, though, change has come to many in-house legal departments, and now, in addition to providing legal expertise, general counsel are expected to take other matters into consideration when assessing whether they are providing a valued service to their companies.
One of the main influences on the role of general counsel is the economy. Legal departments are cost centers, not sources of revenue, and it is critical for them to maintain their value. The focus on the productivity of legal departments has, not surprisingly, increased recently due to economic downturns. This has caused concern among general counsel about the impact of financial pressures on their departments and potential consequences, like layoffs and reduced budgets. In response, some general counsel have redefined their legal departments and regard them more like businesses, which has led to a focus on how to make them more efficient and obtain a greater return on investment.
Many general counsel have been able to reduce overall costs by hiring non-attorneys for certain roles. Some have also reduced the use of outside
law firms and reevaluated whether the outside firms they hire provide valuable services or if more cost-effective options are available. In addition to maximizing the efficiency of outside law firms, general counsel can employ other resources, like e-discovery and pre-litigation services, to reduce costs. For example, e-discovery can be outsourced, and companies can maximize the benefits of using e-discovery by tracking key performance indicators. Legal departments can also save money by developing blueprints indicating how certain types of cases should be handled, which includes employing strategic case assessments to evaluate the merits and weaknesses of a claim, the risks and benefits of proceeding, and the allocation of resources.
Changes to privacy laws over the past several years have altered the role of general counsel as well. Recently, there has been an increase in legislation
Legal departments are cost centers, not sources of revenue, and it is critical for them to maintain their value.
that aims to protect data privacy rights, but many legal departments struggle to keep up with the changing laws and their ramifications and find it difficult to determine whether they need to modify internal privacy policies. Companies that lack comprehensive privacy policies are more likely to suffer from data breaches, which is why general counsel should facilitate communication between the legal team and other departments on cybersecurity issues. Privacy was a concern prior to the pandemic, but as many companies moved to remote work, the need to develop thorough privacy policies and cybersecurity measures was pushed to the forefront.
Kimberly Neal, general counsel for The Children’s Guild Alliance, a non-profit organization based in Baltimore, echoes the sentiment that COVID-19 caused an urgent need to address privacy issues and cybersecurity risks. When the pandemic began, her organization had to institute a remote work privacy policy. This
Neal regularly steps outside of her role as general counsel and engages in non-legal activities at The Children’s Guild Alliance as well. For example, while it is not an official facet of her position, she helps plan community outreach events and volunteers with her company’s girls group home. She does this not out of a sense of obligation, but to benefit both the organization and the children they serve.
Not all legal departments have experienced notable changes because of recent events, however. Andrew Lapayowker, general counsel of Rosemore, Inc., a privately-held investment management firm based in Baltimore, explained that while the resources available to him have greatly improved over the years, better enabling him to handle legal matters, his role has largely remained the same. Lapayowker has been general counsel for Rosemore, Inc. for 10 years and was general counsel for one of its subsidiaries, Crown Central LLC, for over a decade before he moved to Rosemore.
Companies that lack comprehensive privacy policies are more likely to suffer from data breaches, which is why general counsel should facilitate communication between the legal team and other departments on cybersecurity issues.
required Neal to collaborate with the IT department and to ensure that any policies developed complied with applicable laws. Neal handles many different types of legal matters in her role, including employment issues, litigation, and compliance. Like many general counsel, she faced a difficult financial year due to the economic situation caused by the pandemic and had to collaborate with the CFO and other leaders in her organization to minimize furloughs and develop a plan to bring employees back as soon as possible. She has also been able to reduce legal costs by negotiating competitive rates with outside law firms and frequently saves funds that would normally be expended on legal fees by drafting pleadings herself.
Both companies have small legal departments; Crown Central had four attorneys at its peak, while Rosemore has only ever had one attorney. Lapayowker explained that while his role as general counsel differed at each company, mostly due to the nature of their business operations, his focus in both roles was primarily the same; striving to provide quality legal services while keeping costs low. He affirmed, though, that management techniques and attention to legal costs have become more focused recently. Additionally, he noted a recent increase in concern over privacy issues and ensuring compliance with emerging privacy laws.
DOWN with the Billable Hour
BY RACHEL BARNETT, CHIEF LEGAL OFFICER AT IEX, AND FORMER GENERAL COUNSEL AND SECRETARY OF BROOKS BROTHERS
Let’s face it, the billable hour is archaic. It creates the wrong incentives, drives inefficiencies, and no one likes it, no one. The lawyers who keep track of their time, often to the minute, and the General Counsels who purchase that time are unhappy with this system. The simple fact of the matter is that measuring value based on the number of hours spent is flawed as time does not necessarily reflect quality, execution or results. It is not about how long the attorney took, but rather, what the attorney accomplished.
With the COVID-19 pandemic causing in-house counsel to rethink legal services, it seems ripe to ask the question: Why does the legal industry continue to rely on an outdated method of time as a measurement of work? The billable hour is unpredictable and does not measure performance. Just because an attorney spends a large amount of time on a matter does not necessarily mean that it was time well spent. Attorneys can find themselves running on a treadmill to bill more and more hours (and now remotely at home with virtually no workplace boundaries), only later to justify the billed hours.
Lengthy billing statements are themselves a waste of time for both the attorneys who have to document their every minute and in-house counsel who have to review those same time sheets. Anyone who has had the pleasure of reading through reams of legal bills can relate to this. We all may think billing statements provide transparency, but pages of paper denoting full or fractional hours spent on a matter (.3 hours or the extended 10.5 hours) do not represent accomplishment, efficiency, or successful outcomes— and clearly not budgeting skills.
The real measurement of a good lawyer has nothing to do with the amount of time spent. Rather, success rests on the work product produced, the results achieved, the exposure limited and the potential costs avoided. These are the factors that are important to clients who are accountable to a business that seeks positive outcomes and cares about the input, not the amount of hours billed. Time spent tells you nothing about whether an attorney communicates effectively, is responsive, and achieves the agreed upon goals. Time spent is also not correlated to an attorney’s creative approach to problem solving.
Actually, the opposite occurs in practice. In reality, the billable hour results in a perverse incentive: penalizing attorneys whose creative approach led to quicker results and rewarding those who dwindled on a matter longer than needed.
In this article, we deconstruct the billable hour structure and explain why it should no longer be the method for charging services in the legal industry. In-house legal departments are transforming as companies embrace cost-saving measures to ensure long term survival during the COVID-19 pandemic. New generations of talent are bringing with them very different demands and legal technology is advancing. Additionally, law firms must modernize and cannot afford to turn a blind eye to the changing demands of their clients and associates. Law firms also cannot lose sight of the strides others are making in legal tech. With the power of data storage and artificial intelligence, tools are being developed to streamline legal process and create efficiencies. All of this makes the billable hour outdated and less attractive to business clients.
WE ARE READY TO MOVE BEYOND TRADITIONAL HOURLY BILLING
It is time to debunk the commonly held misconception that the legal field cannot transition away from hourly billing. Put aside the tired statement that “it is impossible to value legal services in alternative ways given the unpredictability of the legal matter.” Let’s explore why that is a knee jerk reaction to disrupting market norms and is not true in most cases. Rather, the legal industry must open itself to alternative billing
mechanisms that better fit the legal community and the clients that they serve.
Let’s also address the other myth that law firms will be less profitable under a different billing system. Not so. Just as the investment banking industry figured out that project-based fees result in better economics for both the service provider and their clients, so too can legal services adopt similar revenue models. If we focus on rewarding high-quality, efficient results instead of time spent, then all would benefit. Ultimately, the stakeholders of the legal community, whether that be clients or law firm attorneys, would fare better with offering alternatives to the hourly billing model and, in most circumstances, doing away with the billable hour altogether. In the current environment where companies seek to eliminate unnecessary spend, whether we like it or not, the hourly billing model is being disrupted and those service providers who can deliver high-quality work product faster and efficiently will rise to the top.
THE BILLABLE HOUR DOES NOT ALIGN WITH CLIENT OBJECTIVES
Billing clients for every minute of work creates a misalignment of interests between the client and the outside counsel. There is a tension between a client rarely wanting legal issues to be drawn out with the billable hour that motivates attorneys to elongate matters to charge more. In most cases, clients want a legal issue resolved efficiently and are not interested in dragging out a matter. Whether outside counsel is tasked with resolving a problem or papering a deal, less delay and more efficiency in obtaining results is almost always the client’s desired preference.
Given this, why aren’t lawyers incentivized to provide higher-quality work, develop faster resolutions and bill clients based on performance outcomes? If the answer is “because the billable hour is how we have always paid lawyers,” then we need to re-evaluate. Perhaps the billable hour has endured for such a long time due to the law firm structure and the “Big Law” model. But even that does not make much sense. Lawyers who bill the most time are not necessarily considered more valuable than those that can attract and please clients and secure business diversity. Celebrating an attorney who bills 300 plus hours a month should no longer be the norm. And, quite frankly, if we don’t bother to ask the question of what those three hundred hours achieved, we are fooling ourselves.
Reviewing lengthy billing statements demonstrates the inefficiencies that often arise in the provision of legal services. It sheds light to the practical realities of what clients are being billed for and can feel unfair to those reviewing tedious bills. Descriptions such as “reviewed and responded to emails,” ($495) and “teleconferences with X associates, Y partner and Z client” ($1100), are commonplace.
But they do not necessarily translate to wins or positive outcomes. Such billable descriptions do not reflect results achieved or alignment with client objectives. It therefore begs the question: What are we really paying for?
The new norm should be based on the parties agreeing on obtaining key performance results and clients paying a flat fee to accomplish that deliverable. To further align interests and reward wins, clients can attach a success bonus if such result was accomplished earlier than expected or achieved cost savings that are measurable. This is no different than other service providers, such as investment bankers or other financial service providers, who bill based on performance and mutually desired outcomes. Under such circumstances, attorneys will not have to waste time recording their every minute. There would be no bills to track time spent and no one creating or reviewing them. If attorneys could figure out a resolution early, the client would be happy and would pay for actual results, not hours. If that result ended in a successful outcome, attorneys could be rewarded additionally. To the extent an attorney tried hard and did not reach the desired result, the attorney would be paid for the work produced (not the time spent), but there would be no added performance fee.
When such alternative fee structures are implemented, the attorney-client relationship is collaborative, the business obtains more certainty over legal spend and can apply focus where it should be – on rewarding efficiencies and results. Motivating attorneys in such a way will undoubtedly lead to out-of-the-box thinking and efficient decision making to find a resolution quickly. Once the billable hour is pushed aside, every conference call and every email are no longer looked upon as another detail to add to the runaway costs, but rather as a productive means to achieve an outcome. That is when there is true alignment between the attorney and the client it serves.
THE BILLABLE HOUR IS A ROADBLOCK TO EMBRACING TECHNOLOGY AND THE LAW
The legal industry is far behind many other industries in adopting technological changes to modernize services. Technology today allows for large quantities of data to be stored, analyzed and understood through predictive learning and artificial intelligence. Attorneys can stop wasting hours on menial tasks and repeatable legal work should they choose to adopt new technologies. But they are choosing not to. Legal efficiencies equate to less hours to charge and thus lower compensation under the current hourly billing system. Technological efficiencies reduce billable hours and thus become disadvantageous to attorneys. The truth of the matter is that the roadblock to adopting technologies for legal efficiencies is attributable to the billable hour.
With machine learning, attorneys can reduce time to paper legal work, reduce human error and automate a substantial portion of their work processes. Moreover, given that large quantities of legal work are available in the public domain, benchmarking is also possible to enhance legal services. For example, eventually machine learning will scrape the entire Securities and Exchange Commission filing system for commercial agreements and streamline contract negotiations. Parties will have easy access to precedent, clarity on the choices of language to include in corporate documents, and protect against human error. Negotiations will be more efficient and legal time spent drafting will accordingly be reduced. Contract negotiations will then become more standardized with technology. Also, the same can be said about the preparation of legal documents in litigation. Nearly all litigation documents are publicly available on dockets, motions can be templated, and brief writing can be curated with the assistance of machine learning.
The sooner the legal industry embraces the benefits of technology, the possibilities for great efficiencies will become real. Then the billable hour will collapse. At that inflection point, when we work with and not against the power of machine learning, the legal industry will change to design thinking and payments on deliverables similar to business services. An attorney will develop a strategy at the outset, a budget, craft deliverables, execute on them through proprietary machine learning tech tools, and deploy best-in-class legal services to clients. A win-win for all as attorneys spend less time completing repetitive billable hour tasks and clients have the clarity and the results-oriented alignment they desperately crave.
THE BILLABLE HOUR IS INCOMPATIBLE WITH WORK-LIFE BALANCE
On top of the billable hour causing perverse incentives to completing work efficiently and blocking technological advancements, it also makes attorney life miserable. Legal professionals are forced to keep track of every minute of their working day. Time not spent billing now leads to time spent billing later as law firms routinely set monthly billing expectations for their attorneys. Attorneys that bill by the hour are playing a zero-sum game on a daily basis as there is a finite number of hours in a day that can be spent working. This leads to unfortunate circumstance whereby attorneys are constantly monitoring billable time spent rather than everything else, such as family and hobbies.
Moreover, law firms evaluate their attorneys and set compensation based largely on the number of hours
billed. The formula that attorneys are paid more if they bill more hours is simplistic, but flawed. Ranking attorneys based on the hours listed in their billing time sheets does not reflect core legal skills. Accordingly, key capabilities such as brief writing, negotiation, trying a case, creative problem solving, executing a favorable settlement and the many other qualitative factors that are true measures of talent and are also the very traits that clients prioritize – are not measured nor typically rewarded.
Furthermore, if attorneys are spending too much time with their eyes glued to a computer screen to maximize billable hours each day, they are missing out on forming relationships with current clients and building connections with potential future clients. It is not uncommon to hear that law firm attorneys who bill 300 plus hours a month fail to take the time to connect with others outside the law firm (such as for coffee or lunch) and then find themselves questioning why they have no book of business. If attorneys are encouraged to spend a few hours each week to cultivate relationships,
If attorneys are spending too much time with their eyes glued to a computer screen to maximize billable hours each day, they are missing out on forming relationships with current clients and building connections with potential future clients.
the long-term value of business generation to the firm would far outweigh the additional hours spent billing in the office. Law firms simply need to improve their evaluative skills and motivate attorneys to align with their clients both to encourage relationship building and to reward what matters, i.e., working smartly and effectively, collaborating with clients, and obtaining successful outcomes.
The need to redefine legal services has become even more pressing given the global COVID-19 pandemic where associates want a reduced billable hour target in light of pay cuts. This is compounded with increased stress on attorneys and isolated remote working conditions. Law firm complacency is being challenged as company clients, battling their own budgets, are feeling the pressures of demonstrating value received for legal spend. Looking toward the future, in order to weather the storm, firms are left with little choice but to reconsider their models, listen to their associates, adopt alternative fee arrangements, and, for once, demonstrate flexibility in these times of uncertainty.
THE FUTURE OF LEGAL SERVICES
The typical pushback to changing the hourly billing model is that legal work is not easily measurable outside of keeping track of time. You may have heard a partner at a law firm remark, “it is impossible for us to know what to charge as legal matters can be unpredictable and unexpected issues can arise in a matter.” But that seems to be more of an excuse to maintain the status quo and is easily challengeable.
With law firms tracking each client by each matter, surely, they could analyze and predict what a new matter would cost. The reality is that law firms do have this information, but there have been limited efforts to share this data with clients. Law firms choose not to utilize this asymmetry of information on behalf of their clients and prefer instead to resist changing an archaic billing system. It is not rocket science to evaluate the last 50 merger deals or the prior litigations arising from an area of law (whether securities, employment, intellectual property, etc.) and create a sound estimate of the average costs of such matter to determine what to charge a client. There are also billing technologies today that are doing just that for clients.
Outside lawyers work in silos, are focused on maintaining an expertise in a particular legal area and have the playbook that works for them. That playbook can be pitched as a business model with particular prices. Law firm attorneys know within a reasonable range what legal services cost, understand the drivers of costs to perform their specialized work, and could adopt results-based pricing to achieve efficiencies.
For all the reasons addressed above, we must consider a new construct in which legal services are evaluated based on awarding effective problem solving, cost saving solutions and overall outcomes – not time spent. Corporate America has no problem identifying repetitive services, establishing deliverables, measuring quality, driving efficiencies, and charging work based on clear and consistent pricing. We must reward those that have shown an intelligent use of resources.
If you are reading this and still thinking, “but what if a case drags out, or what if I lose money because it takes more time than expected,” then you are missing the point. What’s important is to fundamentally change the way that legal services are pitched and fulfilled and to bridge the disconnect between what client’s desire and outside attorneys serve. Let’s create a dynamic where the motivation lies with achieving deliverables and fostering a positive attorney-client collaborative experience. Recognize the parties are building a stronger relationship that will benefit everyone in the long run. There may be circumstances where the objectives take longer than expected to achieve, but please take a step back and ask – “together, how can we accomplish the desired result efficiently?”
Reprinted with permission of the author.
ABOUT THE AUTHOR
RACHEL BARNETT isChief Legal Officer at IEX where she oversees all legal and compliance matters for IEX Group, the Investors Exchange that is building a market that works for everyone. Before joining IEX, Barnett was the General Counsel and Secretary of Brooks Brothers. There, she ran the legal department and was responsible for Brooks Brothers' domestic and international legal affairs. Prior to joining Brooks Brothers, Barnett was a member of the Board of Directors and General Counsel of Travelzoo (NASDAQ: TZOO), a global Internet media company and trusted publisher of travel, entertainment and local deals. Before going in-house, Ms. Barnett was an attorney at Skadden, Arps, Slate, Meagher and Flom, LLP, where she specialized in representing corporations and their officers and directors in a variety of complex corporate and commercial litigation matters, including merger and acquisition litigation, shareholder derivative lawsuits and securities fraud class actions at both the trial court and appellate levels.
Barnett co-teaches a course at Columbia Law School along with the General Counsel of LVMH Moët Hennessy Louis Vuitton Inc. The course is entitled “Exploring the Role of the General Counsel” and teaches students how to combine practical business sense with legal knowledge to achieve commercial objectives. Barnett wrote the book, “A Short & Happy Guide to Business Contracts,” which contains a simple roadmap on how practitioners negotiate terms and avoid common pitfalls in everyday business contracts. She earned her juris doctor degree from Columbia Law School and a Bachelor of Science degree from Cornell University.
Can Employers Force People to Get COVID-19 Vaccines?
Many businesses suffered substantial losses of revenue due to COVID-19. As such, when news broke in late 2020 that several COVID-19 vaccines were in the final stages of development and would soon be distributed to those that wished to receive them, many business owners began to hope that operations could soon return to normal.
NOT EVERYONE HAS an interest in receiving a COVID-19 vaccination, though, and for a variety of reasons, people are electing not to receive the vaccine. While people have the right to make personal decisions about their health, many employers want to make employee vaccinations mandatory. Consequently, the issue of whether an employer can force an employee to get a COVID-19 vaccine has been a recent topic of debate.
While stopping short of answering the question directly, the Equal Employment Opportunity Commission (EEOC) recently implied that vaccine mandates are permissible, with a few key exceptions.
For example, some employees may be unable to receive vaccines due to a disability. The EEOC explained that employers may set qualification standards for employees, including requirements that a person refrains from engaging in behavior that poses a “direct threat” to the safety or health of other people in the workplace. Under the American with Disabilities Act (ADA), therefore, an employer that adopts a vaccine requirement or other qualification standard that screens out people with disabilities must show that is necessary because an unvaccinated employee would pose a substantial risk of harm to the safety or health of others that cannot be reduced by a reasonable accommodation.
Employers must consider four factors to assess whether a direct threat exists: how long the risk will last; the immediacy of the danger; the severity and nature of the possible harm, and the likelihood that an injury will occur. In other
an employer that concludes that a direct threat exists must find that an unvaccinated employee will expose other workers to COVID-19 at work.
words, an employer that concludes that a direct threat exists must find that an unvaccinated employee will expose other workers to COVID-19 at work.
Employees may also be unwilling to receive vaccines due to religious beliefs. Notably, the definition of religion is broad and protects a wide variety of beliefs, practices, and observances. Pursuant to Title VII of the Civil Rights Act of 1964, employers may be required to provide reasonable accommodations to parties who cannot be vaccinated due
to religious beliefs. The Maryland Fair Employment Practices Act (FEPA), which is the state law analog of Title VII and is interpreted by federal cases interpreting Title VII, offers Maryland employees protection against religious discrimination as well. See Schmidt v. Town of Cheverly, 212 F. Supp. 3d 573 (D. Md. 2016). Generally, employers should assume that an employee’s request for religious accommodation is based on a sincerely held belief. An employer may justifiably request additional supporting information, though, if there is an objective basis for questioning whether the belief is sincere or is religious in nature.
Employers who encounter employees who elect not to receive the COVID-19 vaccine due to disabilities or religious beliefs should work with employees who request reasonable accommodations to determine whether there are options that would enable the employees to continue to work that would not create an undue hardship for the employer. Generally, an accommodation will be considered an undue hardship if it is costly or difficult for the employer. Factors such as the number of employees vaccinated other than those requesting an accommodation and the amount of contact that unvaccinated
If an employee declines to obtain a COVID-19 vaccination due to a disability or religious belief, and the employer is unable to offer a reasonable accommodation, the employer can prohibit the employee from entering the workplace.
employee has with other people will bear on the undue hardship analysis. If an employee declines to obtain a COVID-19 vaccination due to a disability or religious belief, and the employer is unable to offer a reasonable accommodation, the employer can prohibit the employee from entering the workplace. Employers may be barred from terminating employees based on rights provided by EEO, state, or federal laws, depending on the individual circumstances. In other words, an employee may be entitled to telework or may be able to take leave under the Family and Medical Leave Act, the Families First Coronavirus Response Act, or the employer’s policies.
Employers who have adopted a vaccine mandate can require an employee to show proof of vaccination. Subsequent questions, such as why a person did not receive a vaccination could elicit information about a disability and would be subject to the relevant ADA requirement that such a question is job-related and consistent with business necessity.
While vaccine mandates are arguably lawful, employers should consider the potential adverse consequences of imposing vaccination requirements. For example, they may risk alienating employees who question the vaccine’s safety or efficacy or losing valuable workers who do not want to be vaccinated but do not fall under the protection of the disability or religious belief exceptions.
EMPLOYER MANDATORY VACCINATION
POLICIES IN THE TIME OF COVID-19: Practical Considerations for Employers, Particularly Those in Healthcare
BY PARKER THOENI, ESQ., LINDSEY A. WHITE, ESQ., CHAD HORTON, ESQ., AND AMELIA GREEN, J.D.
Three COVID-19 vaccines have currently received Emergency Use Authorization1 (EUA) from the Food and Drug Administration (FDA). The vaccines for COVID-19 are expected to continue to be an important step in controlling the pandemic, and many employers—particularly those in healthcare—are likely to consider whether they should implement a mandatory vaccine requirement for employees. Weighing heavily in that decision will be the fact that the vaccines have only EUA rather than full FDA approval. In addition, employers must consider the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act when implementing any mandatory vaccination requirement. Both laws require covered employers to provide reasonable accommodations to employees absent undue hardship on the employer.
GUIDANCE OFFERED BY government agencies such as the Equal Employment Opportunity Commission (EEOC), an individualized assessment of the workplace, and the impact of EUA should be considered in determining whether employers should require a COVID-19 vaccine.2 State and local governments have long held the authority to implement mandatory vaccination requirements.3 Private employers, healthcare institutions in particular, have historically implemented mandatory vaccination requirements for employees with direct patient contact, to prevent the spread of infectious disease, including the flu.4
This article will discuss the legal considerations for employers implementing a mandatory COVID-19 vaccination program in the health care setting, including the ADA, Title VII, OSHA’s General Duty clause, Maryland state law, and special considerations for unionized employers.
Both laws require covered employers to provide reasonable accommodations to employees absent undue hardship on the employer.
Impact of Emergency Use Authorization on Mandatory Vaccination Programs
Employers should be aware of potential exposure derived from the EUA statute. The statute providing for EUA contains a provision that states that the FDA must inform individuals receiving the vaccine “of the option to accept or refuse administration of the product.”5 Accordingly, the fact sheets for each of the authorized vaccines require the person administering the vaccine to advise the recipient of the right to accept or refuse the vaccine.6 This has triggered at least one lawsuit in which an employee has argued that the employer should
1 As described by the FDA, Emergency Use Authorization is a mechanism to facilitate the availability of medical countermeasures during a public health emergency, including the use of unapproved medical products when certain statutory criteria have been met. Emergency Use Authorization for Vaccines Explained, FDA (current as of Nov. 20, 2020), https://www.fda.gov/vaccines-blood-biologics/ vaccines/emergency-use-authorization-vaccines-explained
2 Employer incentives are beyond the scope of this article, but employers will generally be permitted to offer incentives of limited value that do not have the effect of discriminating against employees based on disability or religion.
3 Jacobson v. Massachusetts, 197 U.S. 11 (1905).
4 CDC Office for State, Tribal, Local and Territorial Support, Menu of State Hospital Influenza Vaccination Laws, at 1 (last visited Sept. 4, 2020), available at https://www.cdc.gov/phlp/docs/menu-shfluvacclaws.pdf
5 21 U.S.C. § 360bbb-3.
6 See, e.g., https://www.fda.gov/media/144414/download.
be enjoined from terminating the employee’s employment for refusing to become vaccinated.7 It is unclear how this lawsuit will proceed, but employers should be mindful of the impact of tortious wrongful discharge law in Maryland, a court-developed doctrine that prohibits terminations that violate clear manifestations of public policy.
Unlike the ADA and Title VII analysis below, which applies only to employees in certain protected classes, potential exposure for wrongful discharge extends to any employee preferring not to become vaccinated. Employees can bring four types of wrongful discharge claims in Maryland: (1) termination for exercising a legal duty, (2) termination for refusal to engage in criminal conduct, (3) termination for exercising a legal right, and (4) termination for reporting an employer’s failure to perform a specific duty.8 Employees may argue that refusing the vaccine would be the exercise of a legal right embodied in the EUA law. Whether such a termination would violate a clear mandate of public policy and be found unlawful by a court is an open question. Of course, the FDA is evaluating the vaccines for full approval. Assuming the vaccines obtain full approval, such an argument would no longer be viable because there would be an absence of statutory language upon which to base the public policy argument. In the meantime, employers considering implementing mandatory vaccination programs should consult with counsel about whether their unique needs are sufficiently compelling to override the risk that a court could find a clear mandate of public policy within the EUA statute.
OSHA General Duty Clause and Safety Concerns
Another consideration for employers when evaluating mandatory vaccination policies is OSHA’s General Duty clause. The General Duty clause requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”9 This requirement applies to preventing occupational exposure to COVID-19; therefore, each employer should be cognizant of its relative risk level for the spread of COVID-19 when deciding whether to implement a mandatory vaccination requirement.
In the case of COVID-19 vaccines, some have taken issue with the timeline of their development, given that they have been the fastest-developed vaccines in history.
During the COVID-19 pandemic, many employees have raised concerns about the safety of their workplaces. Employees who raise such concerns, when reasonable, are protected from retaliation. Employees who raise generalized concerns about the safety of vaccines, without identifying specifics, will likely not meet this threshold. Employers should consider concerns from employees that identify particular evidence to suggest that a mandatory vaccination policy is unsafe. On the other hand, although the authors do not believe the General Duty clause requires employers to implement mandatory vaccination policies,
employers should consider the likelihood that their workplaces will be safer with such policies in effect.
As to the efficacy of a vaccine, employers should continue to follow guidance from the CDC and state/local officials regarding masking and social distancing rather than assuming that a mandatory vaccination policy relieves them of other obligations regarding workplace safety. The CDC currently states that vaccinated individuals should adhere to workplace rules, and should continue to socially distance and wear masks around unvaccinated individuals from multiple households.10
Conclusion
Mandatory COVID-19 vaccination programs are permissible, but employers must remain cognizant of their legal obligations when employees refuse to become vaccinated, considering each objection individually to determine its merit and whether any accommodation must be made. Employers must also be aware that employees may make additional objections due to the fact that the vaccines were authorized pursuant to the FDA’s EUA
Employers must remain cognizant of their legal obligations when employees refuse to become vaccinated, considering each objection individually to determine its merit and whether any accommodation must be made.
process—although this concern should resolve itself when the vaccines receive full FDA approval. Additionally, unionized employers must consider bargaining obligations as they relate to mandatory vaccination programs.
MR. THOENI and MS. WHITE are partners at Shawe Rosenthal, LLP, a labor and employment boutique firm based in Baltimore, Maryland. Mr. Horton is a senior associate at Shawe Rosenthal. Ms. Green is a law student at the University of Maryland School of Law and a law clerk for Shawe Rosenthal.
the full article on the MSBA blog at
7 Legaretta v. Macias, 2:21-cv-00179 (D.N.M. Feb. 28, 2021).
8 Parks v. Alpharma, Inc., 421 Md. 59, 75-78 (2010).
9 29 U.S.C. 654 § 5(a).
10 Centers for Disease Control, Interim Public Health Recommendations for Fully Vaccinated People (Mar. 8, 2021), available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html.
LEGAL EXCELLENCE OVER NEARLY SIX DECADES
Photo courtesy of Beverly Funkhouser Photography
CLEAVELAND MILLER
Semmes Bowen & Semmes
Cleaveland Miller was MSBA President from 1987 to 1988. He proudly boasts that he has a very simple resume having spent his entire legal career since graduating from Harvard Law School in 1963 with the law firm of Semmes Bowen & Semmes (“Semmes”). During his time at the firm, he progressed from associate to Partner to Managing Partner, and now serves as Counsel. He attributes his success and 57+ year tenure to the people that he works with, noting that it’s a very congenial place to work.
WHEN MILLER FIRST started out, he practiced a little bit of everything. He recalled that “one day, I would try a case, the next day, I would write a will, and the next day I’d form a corporation.” However, as Semmes grew, the attorneys were able to concentrate their practices more, and he began to focus his time on business. Today, he focuses his time primarily on transactional work.
Despite an initial slow down at the height of the COVID-19 pandemic, Miller’s practice is doing well. Currently, he has a couple of pending transactions on his plate, where his clients are selling their businesses to third parties. Even after 50+ years of practice, he explains his work remains very interesting because every deal is different; it involves different industries, different terms, and different people and personalities. Moreover, he explained that the pandemic complicates some aspects of his work and generally takes a little longer to complete. For
His work remains very interesting because every deal is different; it involves different industries, different terms, and different people and personalities.
instance, setting up site visits or meetings becomes more complicated when accounting for social distancing and other factors. Finally, he notes that business transactions have evolved over time. Specifically, there is increased focus and interest in the human aspect of the transactions. Buyers want to know more about the personnel and culture of the acquired company to determine fit and transition planning.
In addition to his transactional work, the COVID-19 pandemic has impacted how Miller and his colleagues practice. At the time of this interview, the firm was operating at about 70-75% remote. Miller jokes that he is “kind of old fashioned” and prefers paper over computers, and was making his way to the office about two to three times a week, of course with proper safety precautions in place. Like many firms, Semmes is evaluating remote work, including its impact on other key decisions (like office space) and whether it will become a permanent part of their law firm culture.
Beyond the recent changes to the profession resulting from the pandemic, Miller shared his observations of how the legal profession has undergone significant change during his career. On a positive note, he explained that the young attorneys are emerging from law school highly
trained, sophisticated, and hard working. An important fact given that the practice of law has become more complicated and compartmentalized over time. Specifically, Miller pointed to the increase in the number of laws and regulations that are on the books, and which require more in-depth knowledge and understanding in a particular practice area.
He believes that it is important for lawyers to serve their communities, and they are particularly well equipped to serve on nonprofit boards, as they can help strategize and solve problems.
Throughout his successful legal career, Miller has also been active in his community. Serving on a number of Boards, including The Lyric Foundation, Baltimore Polytechnic Institute Foundation, and others. He believes that it is important for lawyers to serve their communities, and they are particularly well equipped to serve on nonprofit boards, as they can help strategize and solve problems.
Outside of the office, Miller is quite the bridge player. Prior to the pandemic, he played twice a week. He also enjoys classical music, and is an avid reader and history buff. Miller also plays golf once or twice a week with his wife, when the weather is good. He jokes, however, that his golf game doesn’t look like anything you would see on TV on the weekend, as he took the sport up later in life.
He also fondly remembers his time as MSBA President. One of his goals during his presidency was to extend the presence of the MSBA in areas outside of the Baltimore Metro. Thus he traveled extensively during his year to meet with members. Miller also introduced the first ever MSBA Professional Excursion, where he and a number of members visited Puerto Rico for a unique learning and networking experience.
The MSBA hopes to continue the vision set by Miller in 1987, by continuing to ensure the MSBA is truly a state-wide organization.
Learn more about the 2022 Professional Excursion to Puerto Rico at MSBA.ORG/PROFESSIONAL-EXCURSION
WEB EXTRA
Cleaveland Miller shares why the practice of law is still interesting after 50 plus years of practice. Watch the interview at MSBA.ORG /CMILLER
Help Your Clients Achieve Greater M&A Success, Starting with a Winning Playbook
BY FRED HENCKE
A football team that comes to a game without a playbook or with one that is built on last season’s game is not likely to win. The same is true for companies contemplating a merger or acquisition: without an up-to-date, comprehensive playbook that reflects the realities and challenges found in today’s post-2020 business environment, the chance for a deal that meets all goals and produces sustainable value is greatly diminished.
AS AN ATTORNEY representing a client embarking on an M&A deal, you concentrate on looking out for the best interests of your client. Traditionally, that means making sure the contracts offer the best terms possible, all major risks are identified, and determining what must go really well for the deal to be successful. Doing these things well establishes trust and forges a stronger relationship with that client – if everything goes according to plan and if you are consulted early enough in the process.
What if you were to offer a set of best practices that start well before the contract – in fact, well before a potential buyer or seller is ready to move forward with a potential deal – and extends well after the deal closes to provide a roadmap for a successful integration? In our experience, you will have just exponentially increased your value to the client.
The Advantages for a Law Firm
Many aspects of a winning M&A playbook generally fall outside the scope of legal counsel. So what is the upside of introducing the idea of considering your client’s M&A playbook and perhaps an appropriate partner to a client to fill the gaps?
In some instances, legal issues arise during the post-deal integration phase. Understanding aspects of the integration helps you to identify where legal counsel may be needed. Then, your firm is in a stronger position to assist as well as extend your role.
You can also reduce two risks to your firm by having a hand in improving the outcome of the deal: the risk of losing the client if the deal does not meet expectations, and the risk of sharing some of the blame, even if only in your client’s mind.
The frameworks and techniques that follow can augment the value of an acquisition in progress, improve readiness for future acquisitions, and help you and your client critically evaluate the effectiveness of the current M&A playbook.
A Dynamic Process Rather than a Static Model What defines a winning M&A playbook? “Winning” in this context means that the acquired company is a good fit in terms of your client’s motivations, culture, and expected outcomes, and that the synergy targets are achievable and are sustainable. The primary attribute that enables this to happen is that the playbook is full lifecycle, starting with business strategy and ending with optimization. The secondary attribute is that it is dynamic: it includes a set of parameters that allow for a certain amount of adaptation and contingencies as the company moves through the process and learns more about the intended suitor or target.
Aligning business strategies with M&A motivations is an important activity. Many acquisitions fall short of expectations because leaders incorrectly look for candidate companies
Understanding aspects of the integration helps you to identify where legal counsel may be needed.
without fully considering the strategic purpose of the deal or by losing focus once the deal process begins. There are seven common motivations for an M&A deal:
1. Increase market share
2. Gain access to new regions
3. Gain access to new capabilities, talent, and/or capital
4. Acquire the ability to offer whole product solutions
5. Lower operating costs through economies of scale and consolidation
6. Eliminate a competitor
7. Improve customer service/quality
THE STEPS IN A FULL LIFECYCLE PLAYBOOK
A comprehensive, full lifecycle M&A playbook includes:
• An objective, pre-deal self-assessment focusing on motivations for the deal and readiness to address aspects of the current state
• Identification and vetting of potential targets
• Due diligence regarding objective assessments of the potential fit between the two organizations in terms of financials (including customers and supply chain) as well as people, culture and leadership
• Post-deal integration planning, including detailed timelines of short-term (first 90 days) and longer-term implementation
• Execution of integration plans after deal close
• Optimization planning for the first one to two years
These motivations lead to deals loosely grouped in two strategic categories: those that might improve current operations and those that could dramatically transform the company’s growth prospects. Without drilling down to understand the true motivation behind the desire for the deal before selecting an acquisition candidate or suitor, companies too often pay the wrong price (or receive a lower valuation) and integrate the acquisition in suboptimal ways, negatively impacting long-term sustainable value.
Additional attributes of a winning M&A playbook include:
• Balancing “Deal Making” with “Creating Something” – which helps avoid getting caught up in the financials and losing sight of what your client wanted to accomplish
• Translating M&A motivations into focused buy or sell search profiles – which help clarify the go/no-go decision process
• Fostering sound decision making – based on easy-to-identify answers to key questions
• Focusing on more than the financials – so that people, culture and leadership issues are not lost in the process
• Recognizing synergies that can be more than additive – to find veins of value below the surface
• Enabling due diligence to be both efficient and effective – with focused templates and best practices powered by technology to maximize the time and energy invested and provide a path for developing the integration strategies
• Starting integration planning early with ongoing adjustments – with a focus on what really must go well in the deal to produce value
• Elevating the importance of the day-one employee experience and the first 90 days post close – because it becomes exponentially harder to fix the longer employees feel in limbo
• Accounting for all blocking and tackling needed during the first 90 days –
People, culture and leadership challenges underlie most of the internal factors limiting success.
involving all aspects of how the organization operates by providing roadmaps developed for each functional area to achieve basic integration initially but also to plan for the desired future state
• Personalizing change management and communications using stop, start, and continue – so that employees know and understand their places and roles in the new combined entity
A winning M&A playbook outlines the sequencing of phases, activities, and steps, along with a set of standards and templates applied to facilitate the selection and integrations associated with any acquisition or merger. This includes six primary phases:
While having a comprehensive winning M&A playbook cannot prevent external factors from impacting the success of the deal, it can help minimize the effect of negative internal factors such as:
• Not achieving expected revenue or cost synergies
• Losing customers and critical employees
• Gaps in execution and integration plans
• Talent issues at the target company
• Not achieving cultural alignment
• Slowing down innovation and product/services development
People, culture and leadership challenges underlie most of the internal factors limiting success. Challenges in these three areas too often are overlooked or downplayed in many M&A deals. The target operating model should include the business operational components, but it should also include putting people in the right roles, which is critical to retaining talent, productivity, enabling the most appropriate cultural integration strategy, and aligning leadership responsibilities to inform and streamline decision making and course corrections, especially during the critical months following deal closure.
As the employees acclimate to the changes, their needs should be considered. The first 30 or so days often requires very specific instructions on what employees need to stop doing, start doing and continue doing within their specific roles. Then, during the next 60 days, focus should be on increasing productivity through well-paced training and development, highly focused communications, increasing access to information, and providing rapid response from support organizations within the company such as HR and IT. Rapid response is especially important given the number of people now working remotely or partially remote.
The target operating model also provides clarity around accountabilities needed to enable the desired end state, and it establishes a common vision and strategic plan. In doing so, it identifies and prioritizes core strategic areas of focus, which reduces operational risk, while balancing cost, quality, scalability, processing (cycle) times, and employee experience.
It’s Not Over When the Ink is Dry
If the target operating model is the goal, the integration plan and its execution form the detailed roadmap that gets your client to that goal. For most organizations, much of the heavy lifting begins once the contract is signed. However, at that point, it is too late to begin figuring out how to integrate the two organizations.
Before the pens come out, we recommend that each of the following steps are planned, documented and ready to execute:
• Develop a timeline – including organization of an integration team
• Define priorities and synergy targets – including identifying top criteria needed for value and measuring the best factors of each organization
• Build a budget –including the complete costs for implementing the deal and a list of financial obligations and filings required
• Outline the foundation for integration – including integration leaders within the organization as well as what are the success factors (key performance indicators or KPIs)
• Devise a communication plan to keep all parties including stakeholders informed – and be ready to announce a clear motivation and strategy for the deal and to provide frequent updates
• Establish a day-one plan – which can be the most impactful day. This should include announcements that answer questions about the revised organizational structure and roles, policy and practice changes as well as where to go for additional information and support.
Your clients depend on you and your firm to steer them away from trouble.
Information about customer and supplier interactions and changes should also be conveyed Your clients depend on you and your firm to steer them away from trouble. The distance between a good and a bad M&A deal can be a very wide ocean with many waves that can dilute potential, disrupt goals, diminish value, and dull the enthusiasm for the deal. Without a full lifecycle winning playbook to guide them, your clients may not have the time or the opportunity to course correct a deal in progress or they may start a journey that will not get them where they want to go.
FRED L. HENCKE is a Senior Vice President and M&A Solution Leader for Segal, a North American management and HR consulting firm. He can be emailed at fhencke@segalco.com.
Developing a Positive Remote Culture
“Remote Culture” is something that very few firms or businesses thought about prior to March, 2020 when the pandemic sent everyone home from the office for a while. Now as firms slowly return, many lawyers continue to work remotely at least part time. Working from home is here to stay for the time being. Many firms are thinking long term about remote and hybrid offices. The question arises: how do firms maintain their distinct cultures when their offices are not full and many lawyers and support staff are still having to communicate and connect digitally?
FIRM CULTURE ISN’T BUILT OVERNIGHT. It’s developed over time and is at the heart of an organization. Culture is a combination of a firm’s goals, values, and mission. Maintaining culture is a collective and ongoing process involving all stakeholders. Pre-pandemic that
would involve efforts at team building, social activities and educational experiences. The pandemic has made those things more challenging in many respects but not impossible.
Reevaluate Firm Culture
The events of the past year have inspired many to look at their lives and reexamine what is important to them. Firms might do the same. Defining the organization's culture and core beliefs is the first step in promulgating that culture in an environment where in person contact is not predominant. Beliefs about how an organization operates are revealed through its practices.1 The disruption of the pandemic affords a good chance to examine how things are done. Some practices from the pandemic may add to a firm’s culture and efficiency post Covid. Jamal Stafford with The Law Firm of JW Stafford didn’t see the pandemic coming. But he was ready for it. Stafford’s firm, founded in 2015, already used Zoom and other tools like Microsoft Teams to meet virtually with clients across the state and communicate in-house. Those tools came in handy and allowed the firm to immediately move to remote work.
When firms without that infrastructure and practice had to suddenly pivot to remote work many things changed. Over time, remote work became the new normal. Firms and lawyers had to make it work, and they did. Taren Butcher, Assistant General Counsel, Allegis Group, looks forward to seeing people face to face again. But she thinks WFH will be an option in some situations going forward. Now that firms have made this new normal work, they can take advantage of the experience going forward.
Natasha Nazareth, Of Counsel with McMillan Metro, P.C., finds there are real advantages to some pandemic era practices that may be incorporated post pandemic. Zoom is an effective tool in her practice. Nazareth says you can talk to more clients more often. She also finds that she is more productive at home than in the office because there are fewer interruptions.
Communication
Firms need to maintain a sense of community. Water cooler breaks and popping into a colleague’s office obviously stopped when the pandemic arrived. Zoom can replace an office meeting, and it can facilitate collaboration.2 Smaller groups of colleagues often maintain their own chat groups to collaborate or just stay in touch. Butcher says her team has talked often despite being remote during the pandemic. There are team meetings every week where they do get to see each other. The team also maintains a text group for legal questions.
Nazareth agrees, noting she doesn’t feel isolated at home and observes that she doesn’t communicate any more or any less at home than when she’s in the office.
Gus Bauman, Of Counsel at Beveridge & Diamond, says his firm has done a great job of communicating and keeping everyone connected. Early on the firm formed a task force to make sure of that. Colleagues who regularly met in person continued meeting by using Zoom. The firm also regularly sends out surveys to get input on the way forward.
The slow transition back – with some lawyers and staff at home and others in the office – also demands a thoughtful approach to bringing people together. Larger, multistate firms with several offic-
The slow transition back – with some lawyers and staff at home and others in the office – also demands a thoughtful approach to bringing people together.
es may have it easier than smaller firms with one office.3 But firms do need to make an effort to keep
1 Jennifer Howard-Grenville, How to Sustain Your Organization's Culture When Everyone is Remote, MIT Sloan Management Review, June 24, 2020.
2 Brenda Sapino-Jeffreys, When the Pandemic Ends Will Law Firms Still have a Culture to Return To?, The American Lawyer, November 29, 2020.
3 Ibid.
everyone connected. Some broad suggestions include: regular calls via Zoom or another platform that would include both those in the office and those offsite. Firms that don’t already have one could develop a newsletter to keep everyone up to date on news and changes. Another useful tool is a feedback form that gives lawyers and support staff the opportunity to voice their concerns and opinions about the way forward and other issues. Finally, it’s important to connect people to the right technology so that they can stay connected.4
Maintaining the Culture
Bauman, who’s been in practice since the 80s, says 21st century technology makes remote legal practice possible. This could not have been done 20 or maybe even 10 years ago. Bauman credits Beveridge & Diamond, a firm with 145 lawyers nationwide, with doing a good job of maintaining its culture thanks to its communications infrastructure and the firm’s strong identity.
Other firms might learn from some of the big consulting firms like McKinsey. The firm is known for its strong corporate culture. For years it has maintained that culture in a remote environment. With employees scattered around the globe and not often all in the office, the firm has kept its employees connected and engaged. In an article
With employees scattered around the globe and not often all in the office, the firm has kept its employees connected and engaged.
published in The Harvard Business Review, author Nicholas Lovegrove outlined three tenets of how his former employer, McKinsey, maintains its largely remote culture.
These are things McKinsey had been doing pre-pandemic as technology made remote/hybrid work possible.
REMOTE EVENTS
First, McKinsey strives to build strong learning and social environments around the little time that employees do spend in the office. People don’t see their firm colleagues all that often, but when they do, it’s designed to count. The firm arranges global conferences, training sessions at memorable places like Cambridge University, as well as monthly sessions in the office which include lunches, town halls, and happy hours.5 These types of events are more difficult in the remote environment from which most firms are now emerging. But the emphasis on building relationships through limited in-person activities in the office would be most useful in a hybrid remote environment.
TEAM BUILDING
Second, McKinsey focuses on team building. The firm has thousands of teams deployed worldwide. Team members are not usually in the same physical location, so remote team building was a function of the organization pre-pandemic. Remote activities center around building team culture and relationships within the team.6
EVOLVE THE CULTURE
And finally, Lovegrove says McKinsey and other big firms maintain their success by constantly evolving their culture with the times. Lovegrove quotes MIT professor Edgar Shein, “Culture is dynamic, in that it can evolve with new experiences. This change can happen in two ways: as the result of a clear and present crisis… or through a managed evolution under a skilled and sophisticated manager."7
4 Jennifer Jackson, How HR Can Help Maintain Company Culture with Remote Workers, Lucidchart.
5 Nicholas C. Lovegrove, 3 Tenets of a Strong Remote Culture, Harvard Business Review, December 22, 2020.
6 Lovegrove.
7 Lovegrove.
Photo courtesy of Beverly Funkhouser Photography
KIMBERLY SAXON IS NOT your typical attorney. During her childhood, Saxon’s family struggled to make ends meet. Neither of her parents had graduated from college. Saxon recalls that her mother, who passed away in 2016, stressed two things to her and her siblings when they were growing up. The first was the importance of obtaining an education. The second was that with an education they could be anything that they wanted to be. Saxon followed that advice and became the first person in her family to graduate from college. Her family joked when she continued on to law school that she “was just showing off.” Jokes aside, she’s overcome some substantial obstacles to get to where she is.
This past September—in the middle of the pandemic—Saxon took the leap she had dreamed of making and started her own firm, Saxon Legal, L.L.C. And that is typical of the woman that she is.
“
Saxon says she always believed in helping people and in doing the right thing. This fueled her lifelong ambition to become a lawyer. Saxon’s practice centers around corporate transactions including business formation, real estate purchase and sale, and commercial leasing and lending matters; her practice also includes general contract matters. She represents commercial lenders and borrowers, landlords, and commercial tenants. Many of her clients are involved in high-stakes transactions. It is very apparent that Saxon loves what she does. She hopes to make her practice a unique and collaborative environment for everyone involved. Saxon’s road to law school was far from clear-cut or easy. Saxon recalls that her junior and senior years of high school were very difficult for her family. She did not have the opportunity to take the SAT and instead opted to start her studies at Anne Arundel Community College, where she was inducted into Phi Theta Kappa, a national honor society for two-year colleges, prior to transferring to the University of Maryland, Baltimore County (UMBC). While at UMBC, Saxon says that her professors provided her with everything that she
She recognized that there were new opportunities and ways of doing business that simply did not exist before the pandemic and decided that it was the right time for her to start her own firm.
Saxon grew up in Anne Arundel County and says that she knew she wanted to be a lawyer from the time she was five years old and found herself arguing over property rights with another little girl in her neighborhood. Saxon is the oldest of three and describes her younger self as “a typical Type A first child who loved to argue.” She worked hard in school and strove to exemplify that hard work is a must in order to achieve your goals.
needed to be successful in law school and gave her the confidence she needed to apply. Saxon graduated Phi Beta Kappa from UMBC in 2000. Before graduating, Saxon was inducted into the Golden Key National Honor Society and received an Outstanding Scholar Award for an independent study project during her senior year. During her undergraduate years, Saxon worked for Citizens National Bank and Bank of America, and it was
through her employment with those banks that she was able to receive tuition reimbursement and pay her way through school. It was also there that she realized her love of finance and banking law. After college, Saxon attended the University of Maryland Carey School of Law, graduating in 2003. From there she worked for Weinstock Friedman & Friedman, P.A., n/k/a Friedman, Framme & Thrush, P.A., where she practiced general law and civil litigation before joining their transactional team where she represented a large national bank. She then moved to Bowie & Jensen, LLC, where she expanded her practice to include not only lending matters but commercial leasing, real estate, and corporate practice matters.
And in September, she finally achieved her lifelong goal. In the middle of a global pandemic and economic downturn, she recognized that there were new opportunities and ways of doing business that simply did not exist before the pandemic and decided that it was the right time for her to start her own firm. And, so far, the decision has proved to be a good one. Business is booming. In addition to her own clients, Saxon is of counsel with GPS Law Group, where she assists with lender representation and commercial real estate transactions.
Saxon sees this strange time as an opportunity to use her skills and years of practice to help people navigate the financial repercussions of the pandemic that have affected so many this past year. Countless individuals and business owners alike are simply hanging on, hoping to see the end of the pandemic and get a chance to resume life and business as it once was. She says it’s going to be a long road back, and for many, it will mean re-assessing their plans and goals and restructuring. She is optimistic that lenders will be open to working collaboratively with these businesses on the restructuring of some of their commercial loans.
Saxon’s home office buzzes with activity. Her husband, Jonathan, a financial planner, is working remotely from one room of the house, and their
two children, Mia, 13, and Madison, 11, are learning remotely from another. The entire family has continued to quarantine as the household includes Saxon’s elderly mother-in-law, who retired from Baltimore County Public Schools when Saxon was
“
If you don’t try, all you have is regret.
pregnant with her first daughter to take on the job of daycare provider. Saxon cooks, cleans, and helps out with homework in addition to single-handedly leading her firm into a bright future. Perhaps it’s not the office of her own that she imagined, and she admits being at home is hard, but Saxon doesn’t seem to mind. As she says, “If you don’t try, all you have is regret.” With two daughters of her own now, Saxon hopes to lead by example and continue to pass down her late mother’s advice that with an education you can be anything that you want to be.
Construction Lender Has No Duty to Ensure Payment to Subcontractor in Absence of Privity
IN A CASE OF FIRST IMPRESSION in Maryland, the Court of Special Appeals addressed the question “whether a lender owes a duty to ensure that a subcontractor receives payment from its disbursements to the general contractor absent any contractual obligation to do so.” Bel Air Carpet, Inc v. Korey Homes Building Group, LLC, No.1006, Sept. Term 2019 (Jan. 28, 2021), at 26. With an analysis that harkens back to a first-year torts class, the Court of Special Appeals concluded that without privity or some other intimate nexus between a bank and a subcontractor, the bank is not liable for disbursing funds to the general contractor without first ensuring that the subs had been paid. To hold otherwise, the Court found, would make the lender “an insurer of the subcontractors’ interest,” which this panel was not prepared to do. Id at 32–33 (citation omitted).
Appellant Bel Air Carpet provided labor and material for the installation of flooring in custom houses built by Korey Homes, a general contractor. Korey Homes had agreed to pay Bel Air Carpet from draws issued by its homebuyers' lenders, which included Hamilton Bank. It did not pay as agreed, and Korey Homes fell $300,000 into arrears. Bel Air Carpet threatened to file mechanic’s liens, but was convinced not to by Korey Homes’ promise of payment. A few days after that promise was made, Korey Homes shut its doors without paying Bel Air Carpet.
Bel Air Carpet later sued Hamilton Bank for negligence, alleging that the bank owed it a duty to ensure that funds it paid to the general contractor were, in fact, paid to the subcontractors, and that the bank breached its duty by failing to follow “standard industry practice” and obtain mechanic’s lien releases to verify payment. Id. at 6. The bank moved to dismiss the complaint, citing the “economic loss rule,” which provides: “[W]here the failure to exercise due care creates a risk of economic loss only, courts have generally required an intimate nexus between the par-
ties as a condition to the imposition of tort liability.” Id., quoting Jacques v. First National Bank of Maryland, 307 Md. 527, 534 (1986). As the only risk to Bel Air Carpet was economic and it had no relationship whatsoever with the bank, the latter argued that the complaint failed to state a claim for negligence. Both the circuit court and the Court of Special Appeals agreed.
The appellate court’s discussion began with the foundational rubric for negligence, requiring that a plaintiff allege and ultimately prove: (1) the defendant owed it a duty to protect it from harm; (2) the defendant breached that duty; (3) there was a causal relationship between the breach and the harm; and (4) the plaintiff suffered damage as a result. Id. at 16. The subcontractor stumbled right out of the gate, unable to establish that the bank owed it a duty to protect against the general contractor’s failure to make payment from loan proceeds.
The Court first observed that “duty” is “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” W. Page Keeton, et al., PROSSER AND KEETON ON THE LAW OF TORTS § 53 (5th ed. 1984). The Court continued:
To determine whether a duty exists in a particular context, we examine:
(1) ‘the nature of the harm likely to result from a failure to exercise due care,’ and (2) ‘the relationship that exists between the parties.’” Id. (citations omitted). Further, “an inverse correlation exists between the nature of the risk on one hand, and the relationship of the parties on the other. As the magnitude of the risk increases, the requirement of privity is relaxed—thus justifying the imposition of a duty in favor of a large class of persons where the risk is of death or personal injury. Conversely, as the
magnitude of the risk decreases, a closer relationship between the parties must be shown to support a tort duty.
Id., quoting Jacques, 307 Md. at 537.
When the risk of loss is purely economic and, therefore, at the low end of the risk continuum, the economic loss doctrine precludes liability for negligence in the absence of an intimate nexus between the parties, i.e., contractual privity, “or its equivalent.” Id. The underlying reason for this requirement, as taught to every first-year law student, is “[t]o limit the defendant’s risk exposure to an actually foreseeable event, thus permitting a defendant to control the risk to which the defendant is exposed.” Id., quoting Walpert, Smulian & Blumenthal, P.A. v. Katz, 361 Md. 645, 671, 762 A.2d 582 (2000). This concept, of course, was most famously explored by Justice Benjamin Cardozo in several traditional casebook staples, including Glanzer v. Shepard, 135 N.E. 275 (N.Y. 1922) (where a bean weigher was found to have owed a duty to a limited class of bean buyers) and Ultramares Corp. v. Touche & Co., 174 N.E. 441 (N.Y. 1931) (where an accountant was found not to owe a duty to an unlimited class of third-parties who might rely on a balance sheet prepared for a client). These cases directly informed the Court of Appeals when it adopted the economic loss doctrine in Jacques (although it passed on the opportunity to address the middle case of Cardozo’s foreseeability trilogy, Palsgraf v. Long Island Railroad Co.,162 N.E. 99 (N.Y. 1928)).
In the absence of privity, Bel Air Carpet sought to establish its equivalence by alleging that the bank knew or should have known that it was likely to take action based on the bank’s actions. Id. at 8. After reviewing five Maryland cases that addressed this concept in other contexts, the Court agreed that the key to the plaintiff’s success is the defendant’s knowledge of the third party's reliance
on its actions. Id. at 20–26. “[O]ur privity-equivalent analysis in economic loss cases looks for linking conduct—enough to show the defendant knew or should have known of the plaintiff’s reliance. This means, of course, that context is critical.” Id. at 26, quoting Balfour Beatty Infrastructure, Inc. v. Rummel Klepper & Kahl, LLP, 451 Md. 600, 620–21, 155 A.3d 4454 (2017).
Turning to the specific allegations under review, the Court noted that there were no Maryland cases that applied the “privity equivalent” test in the construction lender/
Bank for its benefit. Although it may be foreseeable that Hamilton Bank’s failure to request mechanic’s lien releases or inspect the properties could harm Bel Air Carpet, unless Hamilton Bank owes Bel Air Carpet a duty, Hamilton Bank cannot be liable to Bel Air Carpet in negligence.
Id. at 33 (citations omitted).
Moreover, “the determination of whether an actionable duty exists represents a policy question of whether the specific plaintiff is entitled to protection from the acts of the defendant.” Id. at 17, quoting Blondell v. Lit-
Courts in several other jurisdictions had, and they “have broadly determined that a lender providing a construction loan owes no duty to an unpaid subcontractor absent the lender’s express promise or assurance of payment.”
subcontractor context. Courts in several other jurisdictions had, and they “have broadly determined that a lender providing a construction loan owes no duty to an unpaid subcontractor absent the lender’s express promise or assurance of payment.” Id. at 28. So, too, had the authors of several articles found in scholarly publications. Id. at 29. The Maryland Court, therefore, concluded:
If we were to adopt Bel Air Carpet’s theory, we would alter the delicate contractual balance in the construction industry and the privity requirement of the economic loss doctrine. We would render Hamilton Bank the ‘insurer of the subcontractors’ interest’.... Even assuming that there is a standard in the industry that a bank require mechanic’s lien releases, Bel Air Carpet has not alleged how or why a duty of care should be imposed upon Hamilton
tlepage, 413 Md. 96, 120, 991 A.2d 80 (2010). The Court was not prepared to impose such a duty. It did, however, suggest that the General Assembly might want to take up the issue as a question of policy. Id. at 32. In the meantime, “[w]hether a legal duty exists between parties is a question of law to be decided by the court.” Id. (citation omitted). While concluding that the bank’s motion to dismiss with prejudice was properly granted, the Court expressly held open “the possibility that a contractor, subcontractor, supplier, or similar entity could allege a specific factual scenario that would demonstrate an intimate nexus with a lender.” Id. at 32, n. 9. The appellant here failed to do so.
FINDING A PROFESSIONAL
DIANE FEUERHERD
Miller, Miller & Canby
Photo courtesy of Beverly Funkhouser
Photography
Maryland Bar Foundation Fellow
DIANE FEUERHERD, a Principal at Miller, Miller & Canby, is an appellate and trial attorney, focusing on business and real estate litigation. Her clients range from families and small businesses, to schools, local governments and large corporations. Learn more about Feuerherd, her work and her recent elevation to principal below:
You were recently elevated to Principal at your firm Miller, Miller & Canby, please tell us a little about this transition? What are some challenges that you have faced in taking on this new role?
Becoming a Principal had been my goal since I joined the firm right after my clerkship. With the amount of time, energy and commitment put into building this “professional home,” I could not help but want a greater voice and lasting impact in the firm. The challenges in taking this new role, however, are not new – I’m constantly learning about the practice of law as a business and searching to find a balance of work between family – but in the past year that we’ve had, these challenges have grown.
What are your professional goals over the next year to 18 months?
My professional goals for the next year and a half are to continue to expand my appellate and trial practice. I really miss being in the courtroom.
You are currently a co-chair of the MSBA’s Judicial Appointments Committee, why is this committee important to you and as well as the legal profession as a whole?
The Judicial Appointments Committee is a very active part of the MSBA. We review the applications for each judicial vacancy in the State, interview the candidates and then make a recommendation to the Governor and the Judicial Nominating Commissions. Our committee is the voice of the bar in the judicial nominating process and we take that responsibility very seriously.
The value shared among our committee members is the importance of seeing appointed to the bench qualified individuals who exemplify the best of both the bar and the community in which they serve. I’m very proud to be a part of this important process, and have enjoyed working with other attorneys from across the state and beyond my practice areas.
In addition to your work with the MSBA, you also serve as a Board member of the Maryland Bar Foundation, please tell us about the work of the Maryland Bar Foundation and why it is important to you.
The Bar Foundation is known as “the philanthropic arm of the MSBA.” It funds and awards grants to nonprofits, from all over the State, that are serving our communities and enhancing access to justice. The challenges of the past year have underscored the present need to fundraise for, support and promote the pro bono legal service providers. If you can, donate!
I could not help but want a greater voice and lasting impact in the firm. “
DID YOU KNOW?
Diane E. Feuerherd is also the manager of the MSBA Litigation Section’s Appellate Blog. It covers notable arguments and opinions, practice tips, commentary on implications of specific rulings or trends, and interviews with appellate judges, all to help build a sense of community among Maryland appellate practitioners. Read the blog at MDAPPBLOG.COM
A little more about Ms. Feuerherd….
WHAT’S YOUR FAVORITE HOBBY?
With two small kids at home (10 months old and 2 years old), my favorite hobby at the moment may be sleep!
WHAT DO YOU DO TO UNWIND/DE-STRESS? Running.
WHAT’S OUR FAVORITE RESTAURANT?
Anything local in Rockville! Current go to is Bob’s Shanghai 66 (try the soup dumplings!).
Grant from Maryland Bar Foundation Allows Organization to Provide Free Wills to Seniors
ALLEGANY LAW FOUNDATION, INC. in Cumberland, Maryland recently received a grant from the Maryland Bar Foundation to provide basic wills for Allegany County residents aged 60 and over. The will, along with the advance directive and power of attorney, are the three legal documents commonly recommended by attorneys for seniors interested in estate planning. Allegany Law Foundation had, for some time, assisted seniors with advance directives and powers of attorney, free of charge, as part of their Senior Legal Services Program; and has a Free Wills for Veterans program. The funding provided by the Maryland Bar Foundation allowed the organization to launch a program to offer basic wills to seniors, as well.
“The response was overwhelming,” said Executive Director Lori Lewis. "The press release came out on Saturday, and on Monday, we had 50 messages from seniors who wanted to participate.”
The Free Wills for Seniors Program was publicized to the community through a press release in the Cumberland Times News last February. “The response was overwhelming,” said Executive Director, Lori Lewis. “The press release came out on Saturday, and on Monday, we had 50 messages from seniors who wanted to participate.”
T.J. Holderby, one of Allegany Law’s participating attorneys who has volunteered to provide free wills for veterans for the last several years, agreed to complete the wills for seniors at a very reduced fee. The grant received by the Maryland Bar Foundation was able to fund 16 wills within the first few weeks, but in mid-March, in the interest of the health and safety of the attorney and senior clients, the program was halted due to COVID-19 concerns. Given the community response and need, Allegany Law is committed to continuing the program once the COVID-19 transmission risk has subsided, using funds from a IIIB grant and donations to cover costs.
Allegany Law is excited to be able to provide this new service to seniors, and is grateful to the Maryland Bar Foundation for the initial funding to launch this program.
ABOUT ALLEGANY LAW FOUNDATION:
Allegany Law Foundation, Inc. was established by the Allegany County Bar Association in 1997 to provide legal services for civil cases to seniors and low-income individuals in Allegany County, Maryland. Since then, the non-profit organization has assisted thousands of county residents with custody and visitation, divorce, foreclosure, bankruptcy, consumer and landlord-tenant issues, estate planning, and expungement. Each week, Allegany Law sponsors a free Family Law Clinic, providing an attorney to answer family law questions, advise, and assist in the completion of pro se documents. Allegany Law participates in a number of workshops for senior and low-income residents each year on topics such as foreclosure, estate planning, consumer protection, buying a home, and expungement. All services are free of charge to qualifying individuals. For more information, contact Allegany Law by calling 301-722-3390 or by emailing info@alleganylaw.com
INSPIRING CHANGE IN THE PROFESSION
MELANIE SANTIAGO-MOSIER
Vote Solar
Melanie Santiago-Mosier serves as the Managing Director, Access & Equity for Vote Solar, where her work centers on implementing the organization’s vision for diversity, equity, inclusion, and justice. In her role, Santiago-Mosier manages Vote Solar’s work to build partner ships with historically marginalized communities, and to work with them to design and advocate for programs that spread solar’s op portunities and benefits equitably.
Photo courtesy of Beverly Funkhouser
Photography
Maryland Bar Foundation Fellow
RECENTLY, SHE SERVED as Chair of the Environmental & Energy Law Section and was inducted as a Fellow of the Maryland Bar Foundation. We caught up with Santiago-Mosier to learn more about her and her work.
Tell us a little about your biggest passion project right now.
Right now, my biggest passion is to be a mentor, sponsor, and champion for young women. Throughout my career, I have been the grateful recipient of mentorships and sponsorships, and I believe it is my duty to carry forward the time and energy that others invested in me.
For example, over the past six years I have enjoyed participating in the University of Maryland Francis King Carey School of Law alumni-student mentoring program. In that time, I have enjoyed meeting with my mentees regularly to discuss their goals, offer advice, and connect to other professionals.
Additionally, I have endeavored to give my mentees a sense of clean energy advocacy by sharing my experiences, and providing opportunities to observe legislative proceedings and participate in advocacy opportunities. I am proud to have been a part of the professional development of several young women. Finally, I have come to understand the value of being a sponsor for young women. I find myself not just mentoring, but serving as a champion for young women I encounter in my professional life, making sure I am promoting them to their superiors whenever possible. The research is clear that mentoring can have a positive impact on women’s ability to advance in their careers. However, research also indicates that, despite a large percentage of women reporting
Why did you enter the legal profession?
During my senior year of college, I interned in a small lobbying firm and was immediately drawn to the work. After graduation, I was hired to join the firm full-time and tried to learn everything I could about Maryland law, policymaking, and advocacy. During that time, my path became clear: I was able to observe the work of different advocates, elected and appointed officials, and others in the policymaking sphere, but the professionals I found myself admiring the most were lawyers. I admired the way they analyzed and advocated for policy, and I wanted to do it the way they did. So that’s how I came to the decision to go to law school.
What is your fondest memory of your legal career so far?
In 2016, I organized a lobby day in Annapolis for the employees of the solar development company I worked for at the time, SunEdison. We were in support of legislation to increase Maryland’s Renewable Portfolio Standard, which mandates that a certain amount of electricity sold in the state be derived from renewable sources. The lobby day was a success: my colleagues were trained to talk about the bill and its benefits, and to find their representatives to say hello and encourage support. We made quite a splash in the bill hearing that day, visually showing members how many employees had come from just one company to support the bill. The
“I find myself not just mentoring, but serving as a champion for young women I encounter in my professional life, making sure I am promoting them to their superiors whenever possible.”
that they have mentors, they are not reaching the upper levels of leadership in their organizations. I think those of us who are able should go further than mentoring, and take on the role of “sponsors.” Sponsors don’t just offer advice and support, they go further and advocate actively for the advancement of women in their organizations. This reflects a recognition that equity and justice means addressing the ways in the playing field isn’t level; and to level that playing field, sponsorship should be an addition to mentoring.
effort, combined with other work in support of the bill, was a success: the legislation passed! I love the memory of that day, a fun opportunity to bring my colleagues into the process so that they could have a real impact.
What do you love about your work?
Inspiring change has been the hallmark of my career. Whether it's fighting for a clean energy-driven future or inspiring women to change the way they see themselves in the workplace, I am driven to using my voice to make the world a better place. In the
I have come to understand the power of telling my personal story to inspire critical changes in the energy industry.
past few years, I have come to understand the power of telling my personal story to inspire critical changes in the energy industry. As with many other industries, and in particular various sectors of the energy industry, solar companies have a lot of work to do. Women and African Americans are both underrepresented in the solar workforce. There is a wide gender gap in pay, advancement, and job satisfaction. Much more can be done to change the hiring and recruitment process and foster a more inclusive workplace culture. In my role at Vote Solar, I am uniquely positioned to advocate for greater inclusion not just in the industry, but also for policies and programs that will ensure the clean energy future benefits everyone, regardless of race, gender, class, or socioeconomic status. Telling my personal story is helping me be an effective advocate.
What is one thing you would change about your current role if you could?
The role of Equity Officer comes with a real risk of burnout, which I recently found out the hard way. The role can include a high degree of emotional weight, and depending on the organization, it can be challenging for any number of other reasons. I am trying to incorporate more self-care into my daily routine, but I find myself diving into the work with a high level of passion and commitment. Balancing my own needs with the equity-related needs of my colleagues, our partners, and the energy system is difficult, and I would love to have a guidebook on how to find that balance.
How has the MSBA helped you in your legal career? MSBA provides excellent opportunities to build my network and to build my leadership skills.
You were invited to become a Fellow last fall, why did you decide to accept?
Nonprofit organizations are doing critical work to ensure vulnerable communities have access to justice. I was drawn to the Bar Foundation’s work to support these organizations, and excited about the opportunity to help.
Why is the work of the Maryland Bar Foundation important to you?
My own work centers on empowering vulnerable communities, so the work of the Maryland Bar Foundation resonates strongly with me. The work of some of the Foundation’s grantees is critical for supporting under-resourced communities.
WEB EXTRA
Speaking at the Solar Power International conference in 2019.
Leading an energy justice workshop with NAACP in Michigan in 2019.
On vacation to Athens, Greece over the winter holiday in 2019.
Behind the Scenes of "Operation Steadfast Guardian"
LAST MARCH, GOVERNOR Larry Hogan activated the Maryland National Guard (MDNG) in response to the COVID-19 pandemic, commencing “Operation Steadfast Guardian.”1 Since then, more than 2,000 Guardsmen have been activated to provide critical manpower and resources to the State of Maryland and the U.S. Government in support of multiple historic operations. In one year, the MDNG conducted over 1300 humanitarian missions,2 including medical support missions in response to the COVID-19 pandemic, responding to the attack on the U.S. Capitol (Operation Capitol Response), standing guard during the Presidential Inauguration, helping establish mobile vaccination teams and mass vaccination sites (Operation New Hope), and ensuring the equitable delivery of COVID-19 vaccinations within Maryland (Vaccine Equity Task Force). Behind The Adjutant General (TAG), his staff, and each of his commanders was a judge advocate (JA)—a military lawyer providing principled counsel to ensure that the life-saving decisions being made complied with law and policy.
The MDNG’s Office of the Staff Judge Advocate (OSJA) plays an essential role during Guard operations. Like every other state and U.S. territory, the OSJA is composed of a team of JAs and paralegals from the Army and Air Force. Some are full-time members of the MDNG, and some are traditional (part-time) members with civilian careers. OSJA’s mission is to provide principled counsel to the MDNG’s leadership in maintaining good order and discipline, fiscal responsibility, regulatory compliance, and military justice. These historic times have required all members of the OSJA share the load of full-time operations.
The MDNG’s primary role during emergencies is to support and assist civilian government agencies in their emergency response. Each new mission brought about novel legal issues that the OSJA analyzed to support the decision-making processes. JAs are trained to advise commanders in a wide array of legal subjects. However, the historic operations of the last year pushed the normal bounds of the Guard’s support into new areas, which involved addressing new legal issues.
One of the very first questions during Operation Steadfast Guardian was whether the MDNG’s medical personnel and equipment can be used to treat civilians. The need to conduct COVID-19 testing and treatment were paramount to Maryland’s emergency response. The OSJA analyzed state and federal laws and regulations and consulted with other states’ OSJAs to determine the legalities of providing direct medical support to civilians. A resulting legal opinion determined that Guardsmen on Title 32 orders, a type of federal status,3 in combination with the Stafford Act,4 authorized the MDNG to act as health care providers to Maryland residents. Based on this legal opinion, the MDNG could plan and coordinate with the Maryland Department of Health (MDH) to establish testing sites and mobile vaccination teams and assist in creating mass vaccination sites.
Mitigating the spread of COVID-19 was, and still is, a public
3 These orders were pursuant to 32 U.S.C. § 502(f)(2), referred to as “T32 status.”
health priority. Another novel issue that arose was whether the Governor’s executive orders amounted to “martial law.” They did not. The Maryland Public Safety Article,5 the source of Maryland’s militia law, does not permit the MDNG to take over the functions of government. However, it was determined that the Governor could utilize the MDNG to enforce quarantine orders issued by MDH during an emergency. Ultimately, no quarantine orders were issued.
Enforcing Maryland law is nothing new for the MDNG. Guardsmen are trained and equipped to assist law enforcement agencies (LEA) in times of civil unrest. Before starting any mission to assist LEAs, JAs train all Guardsmen on the Rules for the Use of Force (RUF). JAs review the applicable laws, give guidance on how to react to certain situations, and conduct scenario-based training. Certain situations call for Guardsmen to be armed, creating the possibility of the use of deadly force. JAs ensure each Guardsmen is issued a RUF card summarizing the training so that Guardsmen can constantly reference and internalize the RUF. Guardsmen are instructed to carry a RUF card at all times.
Guardsmen are trained and equipped to assist law enforcement agencies (LEA) in times of civil unrest.
The RUF training proved to be invaluable this past year. On January 6, 2021, rioters attacked the U.S. Capitol building and overwhelmed the U.S. Capitol Police. The National Guard was called, and within 24 hours, the MDNG arrived. Maryland JAs were on site with their commanders and worked with other JAs from the D.C. National Guard (DCNG) and the National Guard Bureau. Addressing the RUF was critically important. Typically, each state formulates its own RUF according to its
4 The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121, et seq.
5 Md. Code Ann., Pub. Safety Title 13.
laws and trains to its RUF. However, Operation Capitol Response required all Guardsmen to follow the DCNG’s RUF. Maryland JAs quickly analyzed and gained a full understanding of DCNG’s RUF to properly train Guardsmen from Maryland and other states. This training ensured that all Guardsmen knew the DCNG’s RUF and would respond consistently in a hostile situation.
While the mission at the Capitol was ongoing, MDNG JAs continued to provide legal guidance to the TAG in support of Maryland’s vaccination effort. The groundbreaking partnership between the MDH and MDNG required JAs to draft a memorandum of understanding to define the roles and responsibilities of the agencies at mass vaccination sites to ensure COVID-19 vaccines are available to all Marylanders. In furtherance of the vaccination effort, the Governor appointed MDNG Brigadier General Janeen L. Birckhead to lead the newly created Vaccine Equity Task Force.6 This task force is the first of its kind in the nation, and its mission is to ensure vulnerable and underserved communities have equal access to the vaccine. JAs supporting General Birckhead encountered novel legal issues surrounding the appropriate role of the MDNG as the task force engaged diverse community agencies and private partners.
In the busiest and most significant year in MDNG history, the OSJA and its JAs played a critical role in combating the COVID-19 pandemic and protecting the U.S. Capitol. The legal advice given provided the TAG with a framework in which to conduct Operation Steadfast Guardian. The OSJA’s role facilitated the MDNG’s transport of 795 hospital beds, 351 ventilators, and 558 pallets of PPE; delivery of approximately 1.1 million meals; and the protection of our democracy at the U.S. Capitol building.
6 Pamela Wood and Hallie Miller, Maryland Gov. Hogan announces COVID vaccine equity plan that seeks community partners, Baltimore Sun, Mar. 4, 2021, available at: https://www.baltimoresun.com/ coronavirus/bs-md-hogan-equity-plan-20210304-jnows3fs4ndoxa6cosao56rmpy-story.html
About the Authors:
COLONEL ROSE FORREST is the Staff Judge Advocate for the Maryland National Guard. She is the first woman to hold the position as senior legal advisor in the state. Previous assignments include the Deputy SJA, Chief of Administrative Law, and Law of Land Warfare Officer. COL Forrest first enlisted in the Pennsylvania Guard as a legal clerk and later commissioned as a Quartermaster officer. She commanded HHC 1297th CSSB. COL Forrest is a 2006 graduate of the University of Baltimore School of Law and is the reigning Ms. Veteran America 1RU.
LIEUTENANT COLONEL MARCI SAM is the Military Judge for the Maryland National Guard. She is the first Military Judge in the state. She is qualified to convene courts-martial, and convenes National Guard administrative separation boards. During Operation Capitol Response LTC Sam served as the legal advisor to Task Force Capital Grounds. She also serves as the legal advisor for the Vaccine Equity Task Force and Joint Forces Director for Operation Steadfast Guardian. She obtained her J.D. from The Catholic University of America in 1998, and joined the Army JAG Corps in 1999.
MAJOR ANDREW HAN is a Judge Advocate assigned as the legal advisor to the joint staff. Prior to joining the Judge Advocate General Corps., MAJ Han was a military intelligence officer and held positions within the general staff and command. He has been with the Maryland National Guard for 14 years. MAJ Han graduated from the Catholic University of America in 2011, and began his career as an assistant state's attorney for Montgomery County. He currently works for the Legal Aid of West Virginia in Wheeling, WV.
FIRST LIEUTENANT ROCCO DICICCO is a Judge Advocate Officer in the Maryland Army National Guard. He serves as the Legal Advisor to the MDARNG Army Operations Center. Prior to his assignment in the MDARNG, 1LT DiCicco served in the California Army National Guard as a Petroleum Supply Specialist and later a Judge Advocate Officer. In his civilian capacity, 1LT DiCicco works as an Attorney-Advisor at the United States Department of the Interior. He is a 2016 graduate of American University School of Law.
A CHAMPION FOR THE HOMELESS IN MARYLAND AND BEYOND
ANTONIA FASANELLI
Executive Director of the National Homelessness Law Center (NHLC)
FEW ATTORNEYS ARE as singularly focused as Antonia Fasanelli, and perhaps even fewer have been able to change other people’s lives through their perseverance and dedication. Fasanelli has been working to end homelessness her entire adult life, which led to her recent appointment as the Executive Director of the National Homelessness Law Center (NHLC), a position that she will assume in April after serving as the Executive Director of the Homeless Persons Representation Project (HPRP) for more than a decade.
Fasanelli became aware of homelessness at a young age. She grew up in Washington, D.C., in the 1980s, when it was impossible to walk around the city without noticing people living on the street. Early on, Fasanelli saw homelessness not just as a moral injustice but also as a legal injustice and human rights violation.
After college, Fasanelli went to law school with the intent of working to stop homelessness. She chose the American University Washington College of Law so that she could learn from Susan Bennett, a professor who had been on the board of NHLC. Fasanelli’s career aspirations were solidified in her first few weeks of law school when she received a key piece of advice from then-Professor Jamie Raskin, addressing students interested in social justice: pick a focus for your work and become an expert in it because lawyers who just want to make the world a better place are a dime a dozen, but lawyers who are experts in a particular area of social justice are few and far between.
Photos courtesy of Beverly Funkhouser Photography
After law school, Fasanelli clerked for Judge Harold Barefoot Sanders, Jr., of the U.S. District Court for the Northern District of Texas before becoming an Equal Justice Works Fellow, sponsored by Crowell & Moring at the Washington Legal Clinic for the Homeless (WLCH). She launched the Affordable Housing Initiative at WLCH and worked there for five years before beginning her role as the Executive Director of HPRP in 2007.
At that time, HPRP was a Baltimore City-based agency with five staff members and 20 volunteer attorneys; it is now a statewide organization with 18 staff members and over 450 volunteer attorneys. Within two months of joining HPRP, Fasanelli began strategic efforts to increase the program. She started by going into the community and asking people experiencing homelessness what they wanted from their lawyers. She used their answers to develop a plan to grow HPRP and determine the direction it would take. While HPRP later adopted a formal strategic planning process, those initial conversations were the foundation for the changes to come. This commitment to a community-based focus has been present since HPRP was founded in the late 1980s, because, as Fasanelli explains, “HPRP belongs to the people.”
Perhaps most importantly, HPRP provides community-based legal representation, handling more than 1,000 cases every year. In part, HPRP works to remove barriers to employment and housing by seeking to have the criminal records of homeless people expunged. HPRP was instrumental in establishing the Docket for Homeless Persons in the District
“ The voices of persons who have and are experiencing homelessness are the most important voices in the movement to end it.
Court for Baltimore City to resolve misdemeanor charges and warrants for things that plague people experiencing homelessness, like trespass and public urination, and supported the creation of the Baltimore City Veterans Treatment Court.
When she takes the reins at NHLC in April, Fasanelli will focus on housing policy advocacy at the federal level, as she believes the legislature and the powers of the government are the most effective tools in solving the homelessness crisis.
President Joe Biden has discussed the concept of a right to housing, but it will take some time to achieve that goal, as over the last 30 years, there has been a major withdrawal of funding for affordable housing from the federal government.
Fasanelli will also be working on locating HPRP-like programs around the country and establishing a network between those organizations that can inform policy change at the federal level. HPRP was created in the late 1980s as part of an ABA
effort to open civil legal aid organizations around the country in response to mass homelessness; unlike HPRP, some of those programs have since closed. One of Fasanelli’s undertakings, then, as Executive Director of the NHLC, will be conducting an assessment of what exists and what is needed.
At the NHLC, Fasanelli’s focus on fighting the homelessness crisis will once again be guided by the people she aims to assist. She believes that the voices of persons who have and are experiencing homelessness are the most important voices in the movement to end it. They are the people who are living and breathing this crisis, and it is by supporting their power that we will truly see change.
Read the full interview at MSBA.ORG/AFASANELLI
WEB EXTRA
The Case for a Right to Counsel in Eviction Cases
BY REENA SHAH, ESQ. AND CATHERINE OLIVER, ESQ.
In passing HB18 – a bill forged from one of the 59 recommendations of the Maryland Attorney General’s COVID-19 Access to Justice Task Force, which was co-lead by the MSBA-supported Maryland Access to Justice Commission, the Maryland General Assembly became the first in the nation to pass a bill providing statewide access (not right) to counsel in eviction cases, without a funding source. While Maryland made historic strides to achieve access to counsel in eviction cases - a move that could still make a meaningful difference in the lives of Marylanders facing an eviction if a funding source can be secured - it fell short of providing a right. Here’s why that matters.
IN 1963, THE SUPREME COURT declared in Gideon v. Wainwright that “without [counsel], though he be not guilty, [a layperson] faces the danger of conviction because he does not know how to establish his innocence.” Similarly, few who find themselves facing eviction understand what defenses apply to their case or how to raise a defense effectively - unless and until they are engaged with civil legal services. How bad is the situation? Prior to the pandemic, an estimated 80% of Baltimore City eviction cases had defenses - but only 8% of the tenants knew how to articulate them. Many evictions, thus, may be a result of lack of access to counsel, than wrongdoing.
The basic human need for safe shelter has never been more critical; the role of legal representation to keep Marylanders in their homes has never been more vital.
The COVID-19 pandemic has exacerbated the situation. As courts begin processing more eviction actions, an estimated 300,000 Maryland households - possibly up to one million individuals - will face eviction actions and risk homelessness in the midst of a pandemic. The basic human need for safe shelter has never been more critical; the role of legal representation to keep Marylanders in their homes has never been more vital.
Can the presence of a lawyer really make such a difference? “We’ve known for many years of studies [finding] that providing tenants with representation has a dramatic impact on case outcomes,” says John
Pollock, Coordinator for the National Coalition for a Civil Right to Counsel. “And now, the cities that have enacted a right to counsel have provided additional evidence, with [New York City] represented tenants remaining in their homes 86% of the time, 66% of represented San Francisco tenants remaining in their homes, and 93% of Cleveland represented tenants avoiding eviction or an involuntary move.” As New York City’s Right to Counsel (RTC) program “phased in” over five years, advocates noted that evictions declined more than five times faster in ZIP codes where the RTC law is currently in effect than in similar ZIP codes where it is not.
Criminal defense attorneys know their presence doesn’t guarantee
prevent evictions from being formally entered such that tenants have a greater chance of securing future housing.”
The Right of “Right”: Why Simply Increasing Funding Doesn’t Solve the Problem
Is it really necessary to establish a right? Couldn’t we simply increase funding for this program without solemnizing the issue in the impenetrable aura of right? According to John Pollock, “a right to counsel is a lot more than just increased funding for tenant representation. It’s a guarantee that tenants can rely on.” While “a budget allocation can just disappear during an annual appropriations process,” explains Pollock, “a statute or ordinance has to be repealed, which is a far more
Jurisdictions with a Right to Counsel Across the Country
STATES
California
Connecticut
Massachusetts
Minnesota
New Jersey Ohio
Washington
MAJOR CITIES AND LOCALITIES
San Francisco, CA
Los Angeles, CA
Santa Monica, CA
Boulder, CO
Washington, DC
Kansas City, MO
Detroit, MI
Newark, NJ
Jersey City, NJ
New York City, NY Cleveland, OH Toledo, OH
Oklahoma City, OK Philadelphia, PA San Antonio, TX
a wave of acquittals in the courtroom, but that doesn’t mean there isn’t plenty of advocacy they can offer their client in negotiation, mitigation, and more. Similarly, the presence of an attorney in a landlord-tenant dispute does not preclude an eviction. However, even if a tenant must vacate, says Pollock, “data has repeatedly shown that attorneys help obtain extra time for tenants to move in order to avoid homelessness, reduce rent arrears that severely damage credit, and
public process.” Moreover, the existence of the right serves to increase fairness throughout the landlord-tenant relationship, says Pollock, as “it puts landlords on notice that all tenants, and not just an increased handful, will have legal help to contest frivolous eviction filings or enforce their housing rights.”
But isn’t the creation of a new state-funded legal service expensive? Yes, admit advocates like Pollock. However, a recent study focused on
Baltimore City evictions found that for every dollar spent on providing renters with counsel, the City would save $6 in expenditures for services related to homelessness. When a household is forced to
With the home becoming such a central place for safety during the pandemic, a right to counsel is more than about attorneys.
leave their home, the burden passes to services such as shelters, food pantries, and other community resources as families are often forced to divide among emergency housing options. Work, education, and health services may also be interrupted.
The threat of a “looming eviction crisis” has been a common headline throughout the pandemic. However, the problems with Maryland’s
eviction process - and the persistent lack of access to meaningful representation in civil legal justice as a whole - have been pervasive for years. For more than a decade, Maryland Access to Justice Commission has called for a right to counsel in civil legal cases implicating basic human needs, including eviction proceedings. After declaring the right to counsel a priority issue, the Commission launched an extensive study of how the right might be implemented - including a fiscal narrative explaining costs and savings. The Commission published the results of that 2010 study in Implementing A Civil Right To Counsel in Maryland, available online at mdcourts.gov. Current cost-benefit studies employed by the Commission indicate that the systems needed to implement a right to counsel would cost $28.5M. However, the program is projected to save the state $90.5M by reducing the incidence of and costs related to homelessness.
With the home becoming such a central place for safety during the pandemic, a right to counsel is more than about attorneys. As Pollock says, the right to counsel is “a way of recognizing that housing itself should be seen as a human right.”
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HATS OFF TO MARYLAND'S "FATHER OF PRO BONO"
HERB GARTEN
Senior Partner, Fedder and Garten, P.A.
Possessing 70 years of legal experience, Herb Garten is recognized in Maryland and throughout the United States for his professionalism and commitment to increasing access to the civil justice system. A former president of the Maryland State Bar Association, he has also been a leader of the pro bono movement at state and national levels. In 2003, Garten was nominated to the Board of the federal Legal Services Corporation (LSC) and subsequently confirmed by the U.S. Senate. He continues to serve LSC as a member of the Institutional Advancement Committee.
Tell us about your journey to becoming a partner in your law firm, and what it’s like working with so many family members in the same office.
I began practicing law in 1951 with my father-in-law, Morris Fedder. On his death in 1963, I became the senior partner with the office, and over time, my brother-in-law, Joel D. Fedder, and I changed the name of the firm to Fedder and Garten Professional Association. I have also had the opportunity to work with three sons and my grandson in the firm, along with many non-family members who have contributed greatly to the office. I have been fortunate to work with so many talented lawyers.
What does Access to Justice mean to you?
I have dedicated the last 50 years of my life to giving everyone the benefit of equal justice under the law. A healthy democracy demands that everyone be represented and have every opportunity to have a lawyer be available to them. Regardless of the type of legal matter, we must strive so that the Court system provides access to attorneys for equal representation under the law.
Why was it important for you to make sure the Access to Justice Commission continued to exist?
Earlier in my career, I partnered with my friend, James D. Nolan, to represent a homeowner who was taken advantage of by Baltimore’s “Tin Men.” Through years of advocacy, we were able to prevent a foreclosure of her home based upon a state statute intended to protect the rights of homeowners. After representing this client, I realized the importance of everyone having a right to counsel.
What do you feel is a common myth about pro bono service, and how would you dispel it?
I think many lawyers do not realize how much they can become better lawyers through providing pro bono service. As I mentioned earlier, learning about a homeowner potentially losing her home and preventing foreclosure gave me a better background for helping others with similar needs.
What do you consider your greatest accomplishment?
Having practiced law for 70 years, I cannot think of one greatest accomplishment. I am proud of the people who have worked with me over the years who have afforded me the honor of being the “father of pro-bono in Maryland.”
What’s a key piece of advice you have kept close throughout your career?
For me, I have always said I love being a lawyer because I have been able to help many people. I believe that helping others has been a key reason for many of my achievements as a lawyer, and I hope that many other lawyers continue to embrace pro bono well into the future.
“I think many lawyers do not realize how much they can become better lawyers through providing pro bono service.”
The Maryland Access to Justice Commission Releases Civil Justice for All Story Map
A First-of-Its-Kind Data & Story Tool to Understand Civil Justice System in Maryland
THE LACK OF CIVIL JUSTICE DATA is a barrier to civil justice for all. As it stands now, data related to the civil justice system is hard to come by and not publicly available. This prevents data-informed policy-making, which is especially dangerous when so many Marylanders have been forced into the civil justice system due to COVID-19. To begin to solve this problem, the MSBA-backed Maryland Access to Justice Commission has created this first-of-its-
kind "Civil Justice for All Story Map." The Story Map is a multimedia, interactive data and story tool that explains the civil justice system, those most entangled in it and the barriers they face. The tool combines stories and statistics and features interactive maps that allow you to search for and compare county-specific civil justice and demographic data on the most prevalent types of civil justice issues, including unemployment, eviction and more. The tool also includes pre and post COVID-19 data and trends.
The civil justice system deals with the legal aspects of many life-altering issues, like housing, child custody or abuse. Vulnerable Marylanders, particularly those with low incomes and those in communities of color, are disproportionately involved with the civil justice system, often without legal representation. The COVID-19 pandemic has magnified these Marylanders’ vulnerabilities, as well as their involvement with the civil justice system.
The civil justice system includes federal and state court and administrative actions, so the Civil Justice for All Story Map shows state-wide data for many types of civil justice related indicators and the interactive map allows you to search and compare county-specific data, specific to different civil justice indicators as well. You can select the statistics you want to see data on the map by choosing different data options on the left.
County-specific data can be seen when you hover over a county. This picture shows that Somerset County has the largest number of individuals per 100,000 who would qualify for free civil legal services.
8 Key Takeaways from the Civil Justice for All Story Map
1. High numbers of civil court filings afflict both urban and rural jurisdictions.
• Baltimore County, Baltimore City, and Prince George’s Counties had the highest number of civil court filings per 100,000 residents during Maryland’s fiscal year 2019 (ranging from 27,022.8 to 33,554.9), but Somerset, Wicomico, and Dorchester Counties had civil court filing rates not too far behind (ranging from 21,034.2 to 23,875.3).
2. Over 70% of low-income Marylanders faced at least one civil llegal problem, even before the pandemic. That number has increased since the pandemic.
3. Legal representation is the key factor to a successful outcome in a civil legal matter, but 80% of Marylanders do not get the help they need.
4. Over 40% of Marylanders cannot afford basic necessities, let alone a lawyer. People vulnerable to civil justice problems and unable to afford legal representation live in many different Counties in Maryland.
• Allegany and Somerset Counties had large percentages of asset-limited, incomeconstrained, employed (ALICE) persons (36.8% and 37.3%, respectively), as well as Baltimore City and Prince George’s Counties (36.4% and 35.3%, respectively).
• Somerset County had a large percentage of people living below the federal poverty line (21.7%), larger than Baltimore City (21.2%).
5. COVID-19 is a health, economic and civil justice crisis. COVID-19 affected both urban and rural areas of the state, and therefore, both areas will contend with civil justice consequences of the pandemic.
• Allegany and Somerset Counties had the highest rates of COVID cases per 100,000 residents through 12/31/2020 (7732.0 and 6992.9, respectively), followed by Prince George's and Baltimore Counties (6004.3 and 6613.3, respectively).
• Worcester and Baltimore City had the highest rates of unemployment insurance claims per 100,000 people in the labor force from 3/1/2020 to 12/12/2020 (60,870.4 and 62,025.8, respectively).
6. Spikes in administrative law issues are apparent over the course of 2020, compared to 2019, but the deluge of court-specific issues is yet to come, showing the impact of policy interventions.
7. The Digital Divide is a barrier to civil justice for all in Maryland.
8. Many gaps exist in civil justice data, including probate, expungement and IEPs.
The Civil Justice for All Story Map was created by the Maryland Access to Justice Commission (A2JC), in conjunction with the Maryland Attorney General's COVID-19 Access to Justice Task Force and with support from the Abell Foundation, the Annie E. Casey Foundation and the Maryland State Bar Association (MSBA). We encourage broad use of the tool, with appropriate attribution to A2JC.
Maryland Joins Student-Athlete Compensation Debate with Jordan McNair Safe and Fair Play Act
BY BERNARD G. DENNIS, III AND GREGG E. CLIFTON
THIS JANUARY, JUST days after the National Collegiate Athletic Association (NCAA) indefinitely postponed a vote on implementing internal rules changes, legislators re-introduced a revised version of the Jordan McNair Safe and Fair Play Act (“the Act”)1—a bipartisan bill that would make Maryland the seventh state to pass legislation permitting college athletes to profit off of their name, image, and likeness (“NIL”). Several NCAA rules generally prohibit athletes from being compensated for anything more than their cost of attendance at an institution, including prohibiting compensation for endorsements or retaining an agent to market their reputation.2 Seeking to address student-athlete safety and well-being in the wake of the tragic death of Jordan McNair,3 the Act’s sponsors sought broad protections for student-athlete physical, mental, and financial health and well-being. This article reviews the statutes passed by other states and the Maryland legislation from introduction through enactment during the 2021 legislative session.
I. Recent State Laws Permitting Student-Athlete Name, Image, and Likeness Compensation
A. California acts first In September 2019, California amended its Student Athlete Bill of Rights,4 to permit student-athletes to market their NIL rights and obtain representation regarding their athletics participation.5 6 California became the first state to challenge the NCAA bylaws. The California law requires that agents be licensed by the state and comply with the federal Sports Agent Responsibility and Trust Act (SPARTA), 15 U.S.C. § 7801, et seq. 7 No organization may prohibit participation due to NIL compensation.8 Schools cannot revoke a scholarship because of NIL compensation or representation.9 Organizations are prohibited from penalizing schools due to student-athlete NIL compensation.10
However, California does not permit boundless compensation. Schools are prohibited from compensating student-athletes and prospective student-athletes for their NIL.11 Additionally, the student-athlete cannot enter into a contract that conflicts with a school’s
contract and must disclose any NIL contract.12 After January 1, 2020, schools cannot contract or modify existing contracts which prohibit a student-athlete’s NIL compensation outside official team activities.13 Aware of the potential disruption to college athletics, California delayed the law’s effectiveness until 2023.14
B. Florida and Colorado follow in early 2020
In March 2020, Florida enacted its own statute.15 Florida student-athletes may receive fair market value for their NIL from “a third party unaffiliated with the” school and permits agents solely to market NIL rights.16 Similar to California, agents and attorneys must be licensed by the state.17 Schools cannot unduly restrict compensation and cannot alter scholarships or eligibility due to compensation.18
Like California, a student-athlete must disclose any contract and cannot conflict with a school’s contract.19 As new provision, NIL contracts cannot be longer than the student-athlete’s collegiate participation.20 Also new, schools must provide financial and
1 A prior version of the Act died in committee during the 2020 legislative session. See S. SB518, 2020 Leg., 441st Sess., First Reading 9-11 (Jan. 30, 2020), https://mgaleg.maryland. gov/2020RS/bills/sb/sb0518f.pdf.
2 See 2020-21 NCAA Division I Manual, Bylaws 12.1.2(g) (losing amateur status for agent contract); 12.1.2.1.6 (prohibiting reputation benefits); 12.3.1 (prohibiting agent contract to market reputation); 12.4.1.1 (prohibiting athletic reputation compensation); 12.4.4 (prohibiting using NIL to promote a student-athlete’s own business); 12.5.2.1-2 (prohibiting student-athletes from promoting commercial products); 15.2.7 (assessing employment because of athletic reputation against scholarship limits).
3 In 2018, as a member of the University of Maryland football team, McNair collapsed after an offseason workout and died soon after. McNair’s death led to investigations into the institution. See Report to the University System of Maryland of an Independent Investigation of the University of Maryland Football Program (Oct. 23, 2018), https://htv-prod-media. s3.amazonaws.com/files/report-to-usm-independent-investigation-umd-footbal-10-23-2018-1540848730.pdf.
4 Cal. Ed. Code §§ 67450, et seq.
5 See Cal. Ed. Code § 67456.
6 Gregg E. Clifton, The California Legislature Has Spoken-Will Governor Newsom Make Senate Bill 206 Law? Collegiate & Professional Sports Law Blog (Sept. 12, 2019), https://www. collegeandprosportslaw.com/amateur-sports/the-californialegislation-has-spoken-will-governor-newsom-make-senatebill-206-law/.
7 § 67456(c).
8 § 67456(a).
9 § 67456(d).
10 § 67456(a)(3).
11 § 67456(b).
12 § 67456(e).
13 § 67456(f).
14 § 67456(h).
15 Fla. Stat. § 1006.74.
16 § 1006.74(2)(a), (d).
17 § 1006.74(d).
18 § 1006.74(2)(b).
19 § 1006.74(h)-(i).
20 § 1006.74(j).
life skills workshops.21 Florida put significant pressure on the NCAA to act by implementing its law July 1, 2021.22
Also in March, Colorado approved NIL compensation and agents for NIL rights.23 Neither schools nor athletic conferences can prohibit compensation or prevent participation due to compensation.24 Agents representing student-athletes must be licensed attorneys.25
As in California and Florida, student-athletes must disclose any contract and cannot conflict with their school.26 Disclosures must be made the earlier of 72 hours after entering into the contract or before the next event.27 Colorado’s statute is not effective until 2023.28
C. Nebraska, New Jersey, and Michigan add new wrinkles to NIL statutes
In July 2020, Nebraska passed the Nebraska Fair Pay to Play Act.29 Nebraska permits student-athletes to obtain representation and NIL compensation without penalty.30 Contracts cannot conflict with team contracts, and teams cannot prohibit compensation outside official team activities.31 Nebraska
compensation laws.43 Like other states, Michigan permits NIL compensation and representation without penalty.44 Agents must be Michigan licensed.45
Michigan prohibits conflicting apparel contracts.46 Michigan also requires disclosure of agreements prior to finalizing to allow the school to review, and the student-athlete to renegotiate, any conflicts.47 Michigan also clarifies that student-athletes are not authorized to use the intellectual property of Michigan schools, conferences, and other organizations.48
Michigan also recognized federal and NCAA efforts to enact country-wide standards.49 Michigan requires reporting about NCAA and federal progress.50 Michigan delays its statute’s effective date to December 21, 2022 and requires each institution to report on its preparedness to implement the law sixmonths before.51
II. Maryland’s Approach
A. The introduced bill
As initially introduced, the Act ambitiously addressed not only NIL rights but further
Student-athletes must disclose contracts in writing but can keep them confidential.
also prohibits endorsements during official team activities.32 Student-athletes must disclose contracts in writing but can keep them confidential.33
Nebraska also establishes a civil cause of action for actual damages and attorneys’ fees against non-compliant schools.34 Nebraska’s statute is effective July 1, 2023 or sooner if a school chooses.35 Once in effect, no new contract provision can conflict with the statute.36
In September 2020, New Jersey enacted the New Jersey Fair Play Act.37 Similar to other states, New Jersey permits NIL compensation and representation.38 However, New Jersey prohibits student-athletes from endorsing specific industries and products.39 Attorneys must be New Jersey licensed, and agents must comply with SPARTA.40
New Jersey requires school contracts to compensate student-athletes if their NIL is used for marketing.41 New Jersey has the furthest future applicable date—2026.42
In January, Michigan enacted its own NIL
student-athlete protections including scholarships, transferring, misconduct protections, and healthcare.52 Cross-filed in the house and senate, Delegate Brooke E. Lierman (Baltimore City) and Senators Justin Ready (Carroll County) and Chris West (Baltimore County) introduced the Act.
Regarding NIL rights, the Act permits student-athletes to receive NIL compensation and engage an agent or attorney without limitation to eligibility or scholarships.53 Any representative must either be a licensed Maryland attorney or an agent under the Maryland Uniform Athlete Agents Act.54 Agents must also comply with SPARTA.55 NIL contracts must be disclosed and cannot conflict with a school, provided a school’s contract does not restrict NIL compensation outside official team activities.56 Like Florida, the Act’s sponsors proposed implementing these provisions by July 1, 2021.57
Beyond NIL compensation, the Act requires Maryland schools to issue athletic or
21 § 1006.74(k)
22 See § 1006.74
23 C.R.S. 23-16-301.
24 23-16301(2).
25 23-16301(4).
26 23-16301(3).
27 Id.
28 C.R.S. 23-16-301.
29 R.R.S. Neb. §§ 48-3601, et seq
30 § 48-3603; §48-3606.
31 § 48-3605.
32 §48-3605(1)(a).
33 § 48-3604.
34 § 48-3608.
35 § 48-3609.
36 § 48-3607.
37 Gregg E. Clifton and Nicholas A. Plinio, New Jersey Grants Name, Image, Likeness Rights to Collegiate Student-Athletes, Collegiate & Professional Sports Blog (Sept. 15, 2020) https:// www.collegeandprosportslaw.com/uncategorized/new-jersey-grants-name-image-likeness-rights-to-collegiate-studentathletes/.
38 N.J. Stat. § 18A:3B-87(a).
39 § 18A:3b-87(b).
40 § 18A:3B-87(a)(3).
41 § 18A:3B-89(d).
42 2020 N.J. ALS 83 § 5 (“This act shall take effect immediately and shall first be applicable in the fifth academic year following the date of enactment.”) (enacted Sept. 14, 2020).
43 Gregg E. Clifton, UPDATE: Michigan Joins Growing Number of States Granting Name, Image, Likeness Rights to Collegiate Student-Athletes, Collegiate and Professional Sports Blog (Jan. 1, 2021) https://www.collegeandprosportslaw.com/ collegiate-sports/update-michigan-joins-growing-number-ofstates-granting-name-image-likeness-rights-to-collegiate-student-athletes/.
44 M.C.L.S. §§ 390.1731-1732; 390.1334-35.
45 § 390.1735(3).
46 § 390.1736.
47 § 390.1737.
48 § 390.1740(2).
49 For a broader discussion of the several federal proposals introduced in the U.S. Senate, see Nicholas A. Plinio and Gregg E. Clifton, Student-Athlete Name, Image, and Likeness Rights: What to Expect in 2021 and Beyond, New Jersey Lawyer 14-18 (No. 328 Feb. 2021).
50 § 390.1739(1)(a)-(b).
51 § 390.1741; § 390.1739(1)(c).
52 See Caroline L. Boice, Public Institutions of Higher Education – Student Athletes (Jordan McNair Safe and Fair Play Act, HB125 Fiscal and Policy Note, Dep’t. of Legislative Servs. (Jan. 25, 2021) https://mgaleg.maryland.gov/2021RS/fnotes/ bil_0005/hb0125.pdf.
53 H.D. HB125, 2021 Leg., 442nd Sess. First Reading 9-10 (Jan. 13, 2021) https://mgaleg.maryland.gov/2021RS/bills/hb/ hb0125f.pdf; S. SB439, 2021 Leg., 442nd Sess., First Reading 9-10 (Jan. 10, 2021) https://mgaleg.maryland.gov/2021RS/bills/ sb/sb0439f.pdf.
54 Id. at 10.
55 Id
56 Id. at 10-11.
57 Id. at 11.
academic scholarships to all student athletes no shorter than five years or until achieving an undergraduate degree, unless revoked for cause.58 The scholarship protections extend to incapacitating injuries related to competition or even exhaustion of eligibility.59 Additionally, schools must provide treatment or insurance for two-years to injured student-athletes.60 Schools are also prohibited from impeding a student-athlete’s desire to transfer.61
Like Florida, the Act requires schools to provide financial and life skills workshops.62 Further, schools must implement guidelines regarding serious sports-related conditions; exercise and supervision guidelines for student-athletes with potentially life-threatening health conditions; return-to-play protocols for injured student-athletes; and guidelines to prevent sexual misconduct against student-athletes.63 Also, athletic directors may be suspended for three years if they fail to bring and keep their institutions in compliance with Title IX of the Federal Education Amendments of 1972.64 Schools must provide student-athletes notice of their rights Title IX rights and post notices in the athletic department.65
B. Committee debate and objections
During committee hearings, the Act received support from local, state, and national organizations including the Prince George’s County Executive,66 the Jordan McNair Foundation Inc.,67 the American Federation of State, County and Municipal Employees Union,68 and the National College Players Association—an organization that co-sponsored California’s law.69
The University System of Maryland Board of Regents (USM) opposed the proposed legislation.70 Specifically regarding the NIL provisions, USM raised concerns about Maryland potentially conflicting with NCAA rule changes and federal legislation.71 USM expressed worries that NIL compensation would pit institutions in competition with student-athletes for sponsorships.72 USM also worried about the financial burden the scholarship and healthcare guarantees would place on individual institutions.73
Representatives from two Maryland schools also noted their objections. Brian Barrio, Director of Athletics, Physical Education,
and Recreation at the University of Maryland, Baltimore County, expressed concern about Maryland engaging in the “patchwork” approach of single-state legislation to address a national problem and the potential harm to UMBC student-athlete eligibility.74 Tuajuanda C. Jordan, President of St. Mary’s College of Maryland, noted concerns about the costs and burdens of scholarship requirements on NCAA Division III institutions prohibited from providing athletic scholarships.75
C. Enactment
After debate, both chambers passed revised bills.76 As revised, the Act still requires institutions to implement student-athlete safety protocols and report any health and safety changes to the General Assembly.77 The revisions struck the provisions ensuring scholarships and healthcare.78
The revised bill also changed the NIL compensation provisions. The revisions permit student-athletes to advertise during team activities if pre-approved.79 Although a student-athlete remains prohibited from entering into a conflicting NIL contract, the institution is no longer required to disclose the relevant conflicting contract provisions.80 This change is a departure from other NIL statutes.
Like Michigan, other revisions make clear that NIL compensation is not authorization for use of an institution’s intellectual property.81 The revisions delay the effective date of the NIL provisions until July 2023.82
On May 18, Governor Larry Hogan signed the Act into law, adding Maryland to those states officially pressuring the NCAA for change.83 The NCAA has not reset its vote on proposed NIL rule changes. On March 31, the United States Supreme Court heard oral arguments on challenges to the NCAA’s compensation restrictions.84, 85 An opinion is expected in June. Given the current landscape, it is almost certain that student-athletes will soon be able to market their NIL rights. How soon and the details remain unclear. The Jordan McNair Safe and Fair Play Act ensures change for Maryland student-athletes will be sooner rather than later.
58 Id. at 3-4.
59 Id
60 Id. at 5.
61 Id
62 Id. at 4-5.
63 Id. at 6.
64 Id. at 7.
65 Id. at 7-8
66 Public Institutions of Higher Education – Student Athletes (Jordan McNair Safe and Fair Play Act): Hearing on HB125 Before H.D. Appropriations Comm., 442nd Sess. (Jan. 27, 2021) (statement of Ron Young, Prince George’s Cnty. Intergovernmental Affairs Office), https://mgaleg.maryland.gov/ cmte_testimony/2021/app/1h5IB4XShnur9_e4lOjktkDFKZ18ZMC8v.pdf.
67 Id. (statement of Martin McNair, Founder The Jordan McNair Foundation), https://mgaleg.maryland.gov/cmte_testimony/2021/app/1OQXNtvRQyhpxnWpKRSRsMEQFp62fwmJl.pdf.
68 Id. (statement of Ramogi Huma, NCPA Executive Director), https://mgaleg.maryland.gov/cmte_testimony/2021/app/1ddSRhGc05LYX7OBkrOMfT3K8CVk8vXdQ.pdf; Public Institutions of Higher Education – Student Athletes (Jordan McNair Safe and Fair Play Act): Hearing on SB439 Before S. Educ., Health, & Envtl. Affairs Comm., 442nd Sess. (Feb. 25, 2021) (statement of Lance Kilpatrick, Political and Legislative Dir., AFSCME Md. Council 3), https://mgaleg.maryland.gov/cmte_ testimony/2021/ehe/1v0yZbuyqhxiZfXPAMTGTNJr_cq2kguzF. pdf.
69 Hearing on HB125, (statement of Ramogi Huma, NCPA Executive Director), https://mgaleg.maryland.gov/cmte_testimony/2021/app/1ddSRhGc05LYX7OBkrOMfT3K8CVk8vXdQ. pdf.
70 Id. (statement of Robert Page, USM Assoc. Vice Chancellor for Fin. Affairs), https://mgaleg.maryland.gov/cmte_testimony/2021/app/1KWMSFzT6O0gISKDI4RqedjZ4AqrSblxq.pdf; Hearing on SB439 (statement of Robert Page, USM Assoc. Vice Chancellor for Fin. Affairs), https://mgaleg.maryland. gov/cmte_testimony/2021/ehe/1u5sY2Co5SeAEChhvjHhpRUdw-N2lwNnB.pdf.
71 Id. at 1-2.
72 Id. at 3.
73 Id. at 2-3.
74 Hearing on HB125 (statement of Brian Barrio, UMBC Director of Athletics), https://mgaleg.maryland.gov/cmte_testimony/2021/app/658_01272021_12311-537.pdf.
75 Hearing on SB439 (statement of Tuajuanda C. Jordan, PhD, President St. Mary’s College of Maryland), https://mgaleg. maryland.gov/cmte_testimony/2021/app/1ng3a56GRjcwj5BNEa4mlZ1ddOMBLmbDL.pdf.
76 See H.D. HB125, 2021 Leg., 442nd Sess. Third Reading (Feb. 26, 2021), https://mgaleg.maryland.gov/2021RS/bills/hb/ hb0125t.pdf; S. SB439, 2021 Leg., 442nd Sess., Third Reading (Mar. 12, 2021) https://mgaleg.maryland.gov/2021RS/bills/sb/ sb0439t.pdf.
77 Id. at 9-10.
78 Id
79 Id. at 12.
80 Id. at 12-13.
81 Id. at 13.
82 Id
83 State legislators in Alabama, Arizona, Arkansas, Georgia, Louisiana, Mississippi, Missouri, Montana, New Mexico, South Carolina, Tennessee, and Texas also passed NIL bills during their respective 2021 legislative sessions. See Braly Keller, NIL Incoming: Comparing State Laws and Proposed Legislation (Apr. 21, 2021), https://opendorse.com/blog/comparing-state-nil-laws-proposed-legislation/.
84 See Nat’l Collegiate Athletic Assoc. v. Alston, No. 20-512, Docket, https://www.supremecourt.gov/docket/docketfiles/ html/public/20-512.html.
85 For further discussion of the Alston case, see Gregg E. Clifton and John G. Long, Supreme Court Grants Certiori to Consider NCAA’s Request to Review Ninth Circuit Anti-Trust Ruling Collegiate and Professional Sports Blog (Dec. 17, 2020), https://www.collegeandprosportslaw.com/uncategorized/ supreme-court-grants-certiorari-to-consider-ncaas-request-toreview-ninth-circuit-anti-trust-ruling/.
My Struggles with Addiction and Mental Health and my Road to a Happier Life and Career
A personal story by a Maryland Lawyer
“
IT WAS ABOUT 14 YEARS AGO that I had a court appearance that I was extremely anxious about. I remember getting myself together in my tiny apartment after an all-night bender. The only thing that would calm me down before court was another drink. One drink turned into about two or three more, and then I was back to my usual state of numbness at 8:00 am, which of course meant much less anxiety and fear about court. Somehow, I managed to get myself to the courthouse where I stood in the assigned courtroom, about 30 minutes late, among 50 other lawyers with cases waiting to be called. I ran into another lawyer with whom I had some cases against in the past. We knew each other enough that we made small talk in the packed courtroom waiting for our cases to be called. I remember her horror once I began talking and she got a whiff of my breath. In fact, she raised her voice and exclaimed, “Oh my, someone in here smells so strongly of alcohol. Do you smell that?” I was amazed at my ability to respond so quickly with such a good lie, telling her it had to be the acetone nail polish remover I had used right before leaving that morning for the courthouse. She bought my lie, or at least pretended to. I had once again gotten myself out of yet another potentially “career-affecting” situation that day. I have no memory of how that court appearance went, but I can assume it went like the rest of them during those days, just getting by with minimal effort believing that I had everyone around me fooled. The most important part for me (and it was only about me) was that I was able to significantly mask any emotion – the fear, anxiety, insecurity – any sort of uncomfortable feeling that became associated with this highly demanding career I had found myself in. This behavior continued for another few years, despite the several job losses, financial ruin, and damaged personal and professional relationships that followed.
I don’t recall receiving any notices from the State Bar suggesting that I seek help. I was never aware that confidential support programs for alcoholics, addicts, or individuals with mental health issues existed. I
wish I had known. I was a rock-bottom alcoholic that allowed the disease to take basically everything from me – except for the alcohol. That was one thing I protected with all of my being, because without that, I was terrified of life.
things I am not. I am content in not knowing everything there is to know and have learned ways to handle situations that make me anxious or fearful. I ride out being uncomfortable, because it’s temporary and a part of life. I have suffered loss
“ I was a rock-bottom alcoholic that allowed the disease to take basically everything from me –except for the alcohol.
I entered alcohol treatment in 2011 at the demand of my parents. I had nothing left other than a job that paid significantly less than my first job out of law school that I had lost about 18 months before. I was about to lose this job anyway. I was 30, living with my parents after losing my apartment. I had no money, few friends, and the trust of no one. The choice was made simple for me: go to rehab for 30 days or get kicked out of my parents’ home. I begrudgingly chose the former, convincing myself that alcohol would be there for me once the 30 days were over, and that I would just hide it better afterwards. My life changed in that rehab. Since the staff determined that I was not fit to “live life on life’s terms” after the 30 days, they recommended I stay a few more months and then transition to a sober living community after that. Because I had learned in those 30 days that I was too sick mentally to make choices for myself and I had “dried out” to the extent that I was no longer physically withdrawing from alcohol, I gave into their suggestions and stayed. At that point, rehab became a much-needed break from the “real world,” an opportunity to learn things about myself I did not know, and a place where I was surrounded by other alcoholics with similar personal and professional histories. While it took months for me to accept that I had a disease that made my life completely unmanageable, one that meant I had a physical allergy to alcohol with no cure but absolute abstinence, I finally understood that all I had to do was make a daily decision not to drink. It was a program centered on managing the condition of alcoholism “one day at a time.” That was something I could do. I learned about my triggers, my defects of character and how to look at my behavior and make needed changes in myself and the ways I approached situations. Over the course of many months, I began to see myself becoming a better person, a capable person, possibly the person I was in the years before I began drinking alcoholically. And I liked that person.
I have been sober – one day at a time – for 10 years now. I live a life today filled with hope, confidence, and serenity. In sobriety, I have learned to [mostly] love my career as an attorney, to accept that while I may not be good at everything, I am great at certain aspects of the job, and push myself to be better at the
and sadness in sobriety, and I have learned how to handle those things sober. I have celebrated career accomplishments and the most incredible personal joys without taking a drink. I urge anyone who can relate to any aspect of my story to consider asking for help. The Lawyer Assistance program is a resource available, specifically for attorneys struggling with mental health, addiction, and other personal problems. It is free and confidentially. All that is required is a little bit of willingness to start. The payoff is more than you could ever have dreamed.
The Maryland Lawyer Assistance Program has Assisted Thousands of Maryland Lawyers
FOR TOLL-FREE CONFIDENTIAL HELP, CALL 1-888-388-5459
The Lawyer Assistance Program is available to all lawyers in Maryland and is committed to providing free, confidential assistance to lawyers, judges, and law school students by offering virtual or in-person assessment, referral, short-term counseling, and continued support to ensure long term success. We offer a network of counselors that can assist you no matter what state you are living in. Everyone experiences personal problems, and early intervention is the key to resolving these concerns. If you are concerned about another lawyer you can make an anonymous referral to the Lawyer Assistance Program. The Lawyer Assistance Program offers financial assistance for Mental Health and Substance Abuse treatment.
Environmental & Energy Law
A GENERAL COUNSEL FOR THE ENVIRONMENT
DANA COOPER
GreenVest, LLC
Dana Cooper is General Counsel for GreenVest, LLC, an environmental development and consulting firm. Currently, Cooper serves as the Chair of the Environmental & Energy Law Section. We caught up with Cooper to learn more about her work, and the Section.
Photo courtesy of Beverly Funkhouser Photography
Tell us a little bit about your current role. I’m the general counsel for an environmental services small business. GreenVest specializes in fixed price, full delivery mitigation and ecosystem restoration. Our signature projects are stream and wetland restoration and enhancement, but we do all types of nature-based solutions for mitigation and regulatory compliance. As general counsel I am involved in most parts of the business: land acquisition, contracting and subcontracting, corporate governance, environmental permitting, and even business development.
Tell us a little about your biggest project on your plate right now.
GreenVest, is pursuing two grants to fund aquatic habitat creation and resiliency projects along the shoreline of the Middle Branch River in Baltimore. We’re working with the South Baltimore Gateway Partnership, Baltimore City government agencies, and a phenomenal team of Baltimore-based partners to try to make these projects happen. This work is important to me because I lived in Baltimore for 11 years and worked for Baltimore City government for more than six of those years and
“ I learn things from my colleagues every day and I love working with them to get the science and operational aspects of the business to meet up with the legal needs.
What do you love about your current role?
A lot! I work with an incredible team of scientists, planners, business specialists, and other lawyers. I learn things from my colleagues every day and I love working with them to get the science and operational aspects of the business to meet up with the legal needs. I also love that no day is exactly like another and no project is exactly like another. While I can usually use lessons learned (and documents generated!) from one project to the next, there are always nuances to take into account to keep me on my toes.
What is one of the challenges you have faced as a result of COVID-19?
I started this job two days before the office shut down due to COVID-19. A few of us have been back in the office a bit during the year, but I have a number of colleagues who I’ve never met in person. I’m really looking forward to when we can get together for more social and team building activities.
I am a passionate booster of the City. The projects GreenVest is proposing will be good for the environment, good for resilience (i.e. less flooding in a vulnerable part of South Baltimore), and would provide an aesthetic natural amenity in communities that face serious environmental justice issues. Ideally we will be starting design and permitting on one of these projects in the second half of 2021, and the other in 2022. My goal is to have the legal mechanisms in place to make that happen if and when we receive the grants.
Why did you enter the legal profession?
I worked for environmental non-profits when I was in college and I was always intrigued by the complicated laws and regulations that impacted the work. Knowing that I didn’t quite understand all of the context that was important to the issues I cared about drove me to law school.
The MSBA Environmental & Energy Law Section brings together legal professionals from every side of environmental and energy issues in Maryland. Attorneys that represent non-profit and environmental advocacy groups, government agencies, and business and industry all come together at Section Events.
We asked Cooper to elaborate on the Section's ability to connect attorneys and highlight some of their recent events. She explains
“[the Section’s] ability to build collegial relationships with people who are often on the other side of the table leads, in my experience, to better outcomes for our clients and stakeholders. One of the (many) things we missed out on in 2020 and continuing into 2021 was the connection created by literally breaking bread together and sharing a drink. I am looking forward to getting back to that with the Section, hopefully sooner rather than later.
I’ll also say that if you’re reading this and think environmental or energy issues are interesting, come check out one of our events, either online or in person. There is a lot more room in the environmental bar, and we would love to welcome you. If you have questions about the section or a general interest in environmental or energy law and don’t know where else to start, please reach out to me.”
What is the best piece of advice you have received from someone in the legal profession?
I started my career in Baltimore City government, and early on my first supervisor told me that there was as much responsibility lying around City government as I was willing to pick up. I ended up taking on a number of roles that weren’t exactly contemplated when my position was created. I don’t think it’s an exaggeration to say that my subsequent jobs and all of my clients in my private practice can be traced back to connections I made and things I learned through those additional responsibilities.
What is your fondest memory of your legal career so far?
Before I joined my current company I had a solo practice. I had left my very stable job in Baltimore City government to start my own business and it was incredibly terrifying. While I have a number of fond memories from my career, the one I would pick was when I landed my first client as a solo practitioner and along with my signed engagement letter they sent me a thick packet of fairly technical documents to review to get up to speed on their matter. When I opened that packet and realized that I knew exactly what to do, it really felt like going out on my own was the right choice.
What is the one piece of advice you would give someone in law school or considering a legal career?
Specifically for students interested in environmental law, my best advice is to spend some time working in government early in your career. When it comes to environmental issues, government attorneys often find themselves hearing from both environmental advocates and industry and needing to find the right path between both of those interests. I think that that perspective is very valuable in any practice of environmental law.
Read the full interview on MSBA's blog.
Did you miss "Key Considerations when Practicing at the Intersection of Bankruptcy and Environmental Law?" No worries! You can still watch a recorded version of the webinar at MSBA.ORG/ENVIRO-EVENTS
2020-21 Section Events
• Our first program this “bar year” was our annual meeting where the new Section Council was elected. We also had Delegate Brooke Lierman from the Maryland General Assembly give us a wrap up of environmental bills from the 2020 legislative session. With last year’s session ending early, many of our members found it helpful to get an overview of which bills ended up passing, which didn’t, and which - in Del. Lierman’s opinion - had a good shot in the next session.
• We held a “Coffee Talk” over the summer where a few members got together to introduce themselves and discuss how things were going in the pandemic.
• Our other event this year was a webinar jointly put on with the Maryland Bankruptcy Bar Association about the intersection between environmental law and bankruptcy law. More on that below.
• Our final program of the year will likely be our next annual meeting in May 2021 when we will elect our new Section Council and officers. At the moment it looks like this event will be virtual again.
Highlighting the Intersection between Environmental Law & Bankruptcy Law
Our Section Chair-Elect, Lindsey Selba of Beveridge & Diamond, envisioned and organized a webinar on the intersection of environmental law and bankruptcy law, which we co-sponsored with the Maryland Bankruptcy Bar Association. The program “Key Considerations when Practicing at the Intersection of Bankruptcy and Environmental Law” was presented virtually on February 2, 2021.
Dennis Shaffer, Partner at Whiteford, Taylor & Preston, presented first on an introduction to bankruptcy including the differences between voluntary and involuntary bankruptcy and Chapter 7 v. Chapter 11. Mr. Shaffer then talked about what constitutes a claim in bankruptcy.
Pamela Marks, Principal at Beveridge & Diamond, gave an overview of different types of environmental issues, as well as how environmental issues may impact a bankruptcy filing.
Both speakers discussed examples of when environmental issues have come into play in a bankruptcy and how the differing goals of environmental law and bankruptcy law need to be balanced to resolve these situations.
It’s not uncommon for environmental issues to arise in a bankruptcy and this session provided both environmental practitioners and bankruptcy practitioners with useful tools to begin to understand an area of law outside their expertise.
The Case for Joining the MSBA Agricultural Law Section
BY STEPHANIE R. BROPHY, ESQ.
Members of the Agricultural Law Section of the Maryland State Bar Association engage in the practice of law taking into consideration the great umbrella of agriculture, agribusiness, and aquaculture that covers the state of Maryland and thereby permeates almost every other practice area of law. Members include private practitioners and in-house counsel in almost every area of civil practice, including land use and zoning, conservation, civil litigation, environmental, estate planning, trusts, intellectual property, corporate and business, labor, bankruptcy, and immigration, just to name a few. Members also include attorneys who work for the Maryland Department of Agriculture and the University of Maryland (including the Department of Agricultural and Resource Economics as well as the Francis King Carey School of Law).
THIS SECTION PROVIDES its members and the broader legal community information and timely updates on applicable legislation, proposed legislation, legislation that did not pass, regulations, case law, and other educational materials pertaining to agriculture, agribusiness, and aquaculture in the State of Maryland and the implications across different practice areas. This includes applicable federal law and regulations.
This Section serves as a knowledge reservoir made up of its individual members, thereby creating a pool from which each member can draw from expanding his or her resource base resulting in more effective and thoughtful counsel to clients. This Section also acts as a networking base amongst attorneys in a variety of practice areas in all different contexts (private, government, non-profit, etc.) creating a statewide spider web of connections, some of which would never otherwise be made and all of which elevate each individual member’s ability to better serve the legal and agricultural communities. This is a unique section with surprisingly broad applicability across a wide span of practice areas.
Why you should join the MSBA Agricultural Law Section You should join this Section because being a member elevates your practice of law by educating you on subject matter that you may otherwise have not considered relevant to your practice areas or by increasing your knowledge base even if you already consider agriculture, agribusiness, and aquaculture relevant to your practice areas. Ask yourself, how much do you know about Maryland’s Right-to-Farm law, the 2018 Farm Bill, environmental compliance, intellectual property considerations, precision agriculture, tax considerations, mineral leasing, state and federal labor law, negligence and liability issues, agricultural leases, agricultural preservation easements, conservation as an estate planning tool, succession planning, and so on? What about the Clean Water Act, the Clean Air Act, the National Environmental Policy Act, the Federal Insecticide, Fungicide, and Rodenticide Act, the Resource Conservation and Recovery Act, the Wetlands Reserve Program, or the Farmable Wetlands Program? Not to mention local applicable law and considerations you need to consider when advising clients. A good example of current controversy in Maryland relates to nutrient management.
The more well-versed you are on the subject matter and applicable law that affects, or potentially affects, your Maryland clients (be they private or public), the better practitioner you will be. The better practitioner you are, the more confidence you will have as an attorney, all resulting in more legal business
if you so desire, but more importantly resulting in better advice to clients. If you are a seasoned practitioner and well-versed on the subject matter and able to stay current on the applicable laws and regulations on your own and how the changing laws and regulations might impact other practice areas that at first glance might not seem relevant, teaching others will only strengthen your own skills in this area and you will make connections that will benefit you in other areas and lead to referrals.
Recent events and initiatives and more reasons why you should join this Section
Last year this Section published its updated 2020-2021 Legal Services Directory that is distributed to the public, government agencies, private businesses, and other practitioners. No other Section of the MSBA has a Directory and in the first year of publication, this Section received the MSBA President’s Award.
The Directory contains the contact information for all of the Members of the Agricultural Law Section and is a valuable resource for identifying attorneys who are members of the Agricultural Law Section who may be the appropriate fit for a particular case. For example, if a potential client or another attorney is trying to identify an attorney to handle a case involving a new innovation in the agricultural field, such as technology in animal breeding and the question of whether that technology could be patented, by looking in the Directory they could find attorneys who practice intellectual property law who are also familiar with agriculture. Another example is when a farming organization is seeking general counsel for business or non-profit matters, it might prefer to pick an attorney who is a member of this Section because of the association with agriculture. The Directory is a resource where important connections can be made. It is available both in print and online.
Last year this Section also held a 2020 legislative update webinar that examined agricultural-related bills introduced during the prior legislative session, including bills that became law, bills that were vetoed, and noteworthy bills that did not pass. The webinar also examined regulations that the Maryland Department of Agriculture recently adopted in response to legislation passed in 2019.
In the fall of 2020, this Section held a joint CLE program with the Intellectual Property Section about protecting hemp-related intellectual property.
Members of this Section have also recently been asked to participate in COVID-19 webinars for private organizations outside of
the MSBA. This Section provided speakers who addressed potential liability issues in connection with the COVID-19 pandemic and the availability of relief funding for equine and other agricultural businesses. Members of this Section have also been asked to speak on liability issues in general in connection with equine businesses for various outside organizations.
In 2019, members of this Section provided at least two separate presentations at the 2019 40th Anniversary AALA1 Educational Symposium. One of the members of this Section is even on the AALA board. This Section also provides speakers for periodic topical webinars of interest to the Maryland agricultural community.
To join, simply log-in to your MSBA account, click on the Members link at the top, then click on Member Sections, then click on Agricultural Law, and then click Join this Section. You are four clicks away from joining an exciting group of people who would love to get to know you and work with you.
As a partner at Dulany Leahy Curtis & Brophy LLP, BROPHY’S general statewide practice includes land use and zoning, civil litigation, corporate, business, and real estate. Ms. Brophy is admitted to practice in Maryland and Colorado with her main office in Westminster, Maryland. She is a Member-at-Large on the Council of the Agricultural Law Section of the MSBA. Brophy can be reached at brophy@dulany.com.
In 2019, members of this Section provided at least two separate presentations at the 2019 40 th Anniversary AALA Educational Symposium. One of the members of this Section is even on the AALA board.
Upcoming events and opportunities
Another CLE joint program with another section of the MSBA for the spring-summer of 2021 is the next project. In addition, topics have been submitted for presentation at the MSBA annual meeting, as well as for the AALA’s 2021 Annual Educational Symposium.
This Section encourages participation, suggestions, topic proposals, and any other ideas that will further educate our members so that we can provide the most informed counsel to the people and organizations we serve. It is not too late to join and get involved for 2021 events and initiatives. You might be the one with a new great idea that the Section will work to bring to fruition. All you have to do is join and start getting connected with us.
A Challenge...
I challenge you to join this Section for one year and participate as a member and then at the end of that year you can determine for yourself whether your practice or your knowledge base has benefited from being a member the Agricultural Law Section. I have been a member of this Section since its inception and each year (and the more I participate) the greater the benefits I receive and the more I have to offer back to the legal and agricultural communities I serve.
1 AALA stands for American Agricultural Law Association.
Read the full article on MSBA's blog. MSBA.ORG/AG-ARTICLE
Access a digital version of the Agriculture Law Section 2020-2021 Legal Services Directory at MSBA.ORG/AG-DIRECTORY
WEB EXTRAS
Improving Representation in Environmental Law and the Charge for Environmental Justice
BY TAYLOR LILLEY, ESQ. AND BRITTANY WRIGHT, ESQ.
Environmental attorneys, whether in private practice, government agencies, or non-governmental organizations, are at the intersection of two related movements: the push to diversify the legal field and the call to engage in efforts to secure environmental justice. Both movements aim to increase representation and meaningfully include all voices in the decision-making processes surrounding clean water and air, access to nature, and the development of environmental policies. The first step to succeeding in these efforts is continuing to diversify the environmental law bar and the environmental movement as a whole.
Lack of Representation in the Environmental Law Field
The environmental field at large is an “overwhelmingly white ‘Green Insider’s Club,’” per the Green 2.0 report “The State of Diversity in Environmental Organizations: Mainstream NGOs, Foundations & Government Agencies.”
Started in 2014, Green 2.0 surveys environmental non-profits, foundations, and agencies on gender and racial diversity composition. The first report published in 2014 found that despite people of color representing 36% of the U.S. population, the diversity composition in environmental organizations has does not exceed 16% across the organizations studied.2 The report highlighted specific barriers to hiring people of color, including recruitment practices that introduce unconscious bias, utilizing word-of-mouth and informal networks to advertise jobs, and ineffective use of the internship pipeline. also dispelled the myth that communities of color do not care about environ mental issue and therefore do not apply for jobs with environmental organi
1 Green 2.0, The Challenge, https://diversegreen.org/research/the-challenge/ (last accessed Feb. 26, 2020).
2 Dorchete E. Taylor, Ph.D., The State of Diversity in Environmental Organizations: Mainstream NGOs, Foundations, & Government Agencies 4 (2014), https://diversegreen.org/wp-content/uploads/2021/01/Full Report_Green2.0_FINAL.pdf [hereinafter “Diversity in Environmental Organizations”].
3 Id. at 5.
The environmental field at large is an “overwhelmingly white ‘Green Insider’s Club’”
2020 RACE AND ETHNICITY
zations, as people of color “support environmental protection at a higher rate than whites.”4 In 2020, Green 2.0 released its fourth annual Transparency Report Card presenting the diversity data from the 40 largest NGOs and 40 largest foundations. The 2020 Report found positive trends in increasing diversity at non-profit organizations, noting that there are “more people of color among full time employees, senior staff, and board members in 2020 than in 2017.”5
The legal profession similarly struggles with diverse representation. Per the 2020 American Bar Association “Profile of the Legal Profession,” 86% of lawyers are White and non-Hispanic although they only make up 60% of the United States population.6 As illustrated in figure 1 below, only 5% of lawyers are African American, despite being 13.4% of the population, and only 5% percent of lawyers are Hispanic, despite being 18.5% of the general population. Asian lawyers make up 2% of the bar, while 5.9% of the population identifies as Asian. Native American lawyers are 0.4% percent of the bar, while the U.S. population is 1.3% Native American. One positive trend is the increase in diversity among law students. As of 2019, 31% of students in law school identified as non-White compared to 25% in 2011.7
80% White 5%
African American 2%
Multiracial 0.4% Native American 2% Asian 5% Hispanic
Within the environmental law bar, improving diversity remains a struggle, though efforts are being made through programs at prominent law schools, bar associations, and environmental non-profits. Many of these programs, like the Environmental Justice Clerkship with the Environmental Law Institute and Howard University School of Law, are directed at training, mentoring, and retaining “more law students of color in the field of environmental law while advancing meaningful environmental justice efforts.”8 Another program working to improve diversity in the pipeline of candidates entering the environmental and energy law sectors is the Environment, Energy, and Natural Resources Law Fellows Mentorship Program. Created by a group of volunteer attorneys practicing environmental law in the Washington, D.C. region, the program seeks to increase access to the environmental law field by providing students from all backgrounds professional mentorship opportunities and exposure to career opportunities in the environmental field. When asked about the need to create such a program, the Fellows Program Director Jennifer Li noted:
4 Id. at 146, 161; Green 2.0, The Green Ceiling, https://diversegreen.org/research/the-challenge/ (last accessed Feb. 26, 2021).
5 Green 2.0, 2020 NGO & Foundation Transparency Report Card (2020), https://diversegreen.org/transparency-cards/2020-ngo-foundation-report/
6 American Bar Association, ABA Profile of the Legal Profession 2020, 33 (2020), https://www.americanbar.org/content/dam/aba/administrative/news/2020/07/ potlp2020.pdf
7 Id. at 58.
8 Howard University School of Law, Howard University School of Law and Environmental Law Institute Establish New Environmental Justice Clerkship, (Nov. 17, 2020) http://law.howard.edu/content/howard-university-school-law-and-environmental-law-institute-establish-new-environmental.
Figure 1: 2020 Race and Ethnicity Data, ABA Profile of the Legal Profession 2020, at 33.
It's not a secret that the legal profession in general suffers from a representation problem. This is unacceptable in any field, but the imbalance can feel particularly acute in EENR practice, where the attorneys who help shape environmental laws and policies frequently do not have the same lived experience as the individuals who are most impacted by them. The EENR Law Fellows Mentorship Program is designed to help students from all backgrounds – including those who are frequently the only BIPOC [Black, Indigenous, and People of Color] or first-generation students in their classrooms – to feel like they belong and that this is a field where they can thrive and play an important role. Attorney mentors who can relate to that experience are critical for students and recent graduates who are trying to find an entry point and need help navigating various career paths. Besides having a model for success and knowing what that could look like, the importance of just having someone who has confidence in you and cheers you on can never be overstated.
As more diverse students enter the legal profession, the sector of environmental law is at a crossroads. Many of the organizations and agencies that environmental attorneys go on to work for struggle with the same diversity numbers as the legal field as a whole. And the next generation of lawyers are watching. Commitments to Diversity, Equity, and Inclusion are factoring in heavy in the job searching of Millennials and Generation Z.9 Environmental attorneys, both in the public and private sector, are posed to play an important role in improving diversity in the environmental field. The importance of increasing diversity in the environmental law field is underscored by the renewed focus of environmental justice and the intersection of social justice, public health, and the environment.
The Intersection of Environmental Justice and Environmental Law
The racial justice protests that followed the death of George Floyd were perhaps one of the most significant events of 2020, outside of the COVID-19 Pandemic. The protests sparked conversations around the nation and triggered a wave of renewed dedication to combatting systemic racism in all of its forms. The pandemic itself only added to this conversation by exposing the startling health disparities in low-income communities and communities of color. These communities are much more likely to live in close proximity to facilities
that emit harmful air pollutants, increasing rates of respiratory illness and by extension the likelihood of contracting COVID-19. These developments left many across the nation wondering what role they had to play in addressing societal inequities. For the environmental community, and others, that means turning again to the charge of achieving environmental justice.
Environmental justice can be defined as “the fair and meaningful treatment of all people regardless of race, color, national origin or income with respect to the development, implementation and enforcement of environmental laws and policies.”10 The Environment Justice Movement is largely credited as beginning in Warren County, North Carolina in 1982, when the county’s predominantly African-American residents laid in the path of dump trucks carrying PCB- laden soil.11 Warren County was selected by the federal government to house 6,000 truckloads of the soil in a newly constructed hazardous waste landfill. While the people of Warren County were ultimately unsuccessful in their attempts, their bravery and their cause ignited a national conversation around environmental justice and the relationship between race and exposure to environmental hazards.
The current environmental justice landscape is the product of the work of researchers, activists, politicians, and communi-
9 Jennifer Miller, For younger job seekers, diversity and inclusion on the workplace aren’t a preference. They’re a requirement. Wash. Post, Feb. 18, 2021, https://www.washingtonpost. com/business/2021/02/18/millennial-genz-workplace-diversity-equity-inclusion/
10 Learn About Environmental Justice, Environmental Protection Agency, https://www.epa.gov/environmentaljustice/learn-about-environmental-justice
11 The Environmental Justice Movement, Natural Resources Defense Council (Mar. 17, 2016) https://www.nrdc.org/stories/environmental-justice-movement
ties themselves. In 1987, the United Church of Christ Commission for Racial Justice released a report entitled “Toxic Waste and Race in the United States: A National Report on the Racial and Socio-economic Characteristics of Communities with Hazardous Waste Sites.”12 The report found that race was “the most significant among variables tested in association with the location of commercial hazardous waste facilities” representing a “consistent national pattern.” This report was followed by the publication of Dumping in Dixie by Dr. Robert Bullard, a novel that told the stories of five communities fighting for environmental justice and explored the intersection of race, class and environmental quality.
The contributions of researchers and advocates, followed by EO12898, and buoyed by dedicated community activism, set in motion decades of discourse on environmental justice.
Confronted with mounting evidence of environmental racism and injustice, President Bill Clinton signed Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, into law on February 11, 1994. Executive Order 12898 directed each federal agency to make “achieving environmental justice part of its mission by identifying and addressing… disproportionately high and adverse human health or environmental effects of its programs, policies and activities minority populations and low-income populations.13” The contributions of researchers and advocates, followed by EO12898, and buoyed by dedicated community activism, set in motion decades of discourse on environmental justice.
Though federal environmental justice initiatives have largely been lacking since the introduction of EO12898, recent years have seen a revived push for reforms aimed at addressing existing injustices and dismantling systemic racism in the environmental sector. In 2018, Representatives Raul Grijalva and Donald McEachin began an inclusive, community-led process to draft and develop the Environmental Justice for All Act (H.R. 5986). The process culminated in the convening of hundreds of environmental justice leaders and activists ta the U.S. Capitol in 2020. President Biden has also expressed his administration's intent to make meaningful strides toward the goal of environmental justice with the signing of the Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, and the Executive Order on Tackling the Climate Crisis at Home and Abroad. In commenting on these new Executive Orders, Dr. Robert Bullard, a renowned environmental justice advocate and scholar said “[w]hen you have the most powerful legal
12 Toxic Wastes and Race in the United States: A National Report on the Racial and Socio-Economic Characteristics of Communities with Hazardous Waste Sites, United Church of Christ Commission on Racial Justice (1987) https://www.nrc.gov/docs/ML1310/ ML13109A339.pdf
13 Exec. Order No. 12898, 59 Fed. Reg. 7629 (1994).
department in the country saying that environmental justice is a basic right, I think that is a signal being sent across the country that this is real at the highest level.”14
In Maryland, the State’s Environmental Justice Commission has come under fire for its failure to make any significant strides in the nearly two decades since its creation. The Commission met for the first time in 8 months after advocates across the state drafted a letter to Governor Hogan outlining the body’s failures, citing a lack of community representation as the cause. In a similar vein, Brandywine residents and Patuxent Riverkeeper filed a Title VI complaint in 2016, after the PSC issued a Certificate for Public Convenience and Necessity to the 859-megawatt Mattawoman Energy plant in the predominantly African-American Community. As a result, in 2020 the PSC promulgated updated regulations for applications concerning the construction or modification generating stations and overhead transmissions line. The updated regulations included provisions to increase community engagement during the application process and require applicants to evaluate the characteristics of potentially impacted communities in the surrounding area.15 While these issues were resolved,
tal enforcement, it is imperative that they receive the support necessary to cement meaningful change. Unfortunately, these advocates, who should have found a natural partner in environmental lawyers, often find themselves unable to secure the support of the legal community until the late stages of the permitting processes, if they are able to secure support at all. Environmental lawyers, like other subject matter experts are trusted for their technocratic perspective. In failing adequately address environmental justice and support communities, environmental lawyers risk marshalling a partial justice.
Efforts to improve the diversity of the bar will only strengthen our collective practice and advocacy, especially as environmental attorneys are increasingly called on to engage in environmental justice work. Within our organizations, firms, and agencies, environmental attorneys can and should evaluate current hiring efforts and whether any unconscious practices are in place that limit lawyers of color from being hired and succeeding in their roles. Attorneys can also work to develop relationships with local law schools by partnering with environmental clinics, mentoring students, or speaking with affinity groups about career options in the environmental field. Communi-
Communities who are threatened with harmful environmental pollution should not be forced to be their own salvation.
in a sense, the resolutions were brought about by vocal criticism and action from advocates. Communities who are threatened with harmful environmental pollution should not be forced to be their own salvation. This pattern evidences the need for more robust and inclusive conversations about environmental justice in the State of Maryland. Environmental attorneys, given their expertise and presence in various aspects of the State’s operation, have an important role to play in ensuring that those conversations occur.
To this day, the fight for environmental justice is largely comprised of communities, advocates and grassroots activists. While they have gone a long way in driving conversations about equity in environmen-
ties of color care deeply about the environment, and often turn to attorneys when their communities are repeatedly carrying the burden of pollution. By diversifying our legal community and thereby developing deeper relationships with communities experiencing environmental injustice, environmental attorneys will better reflect the communities we serve, and be better advocates for it.
14 Juliet Eilprin et al., Biden to place environmental justice at center of sweeping climate plan, Wash. Post,
Maryland Community Solar Projects, Impediments to Growth
BY STEPHEN E. LUTTRELL, COUNSEL, WHITEFORD, TAYLOR & PRESTON, LLP
When it comes to solar energy development, Maryland ranks 17th nationally for total installed solar capacity with 1,294 megawatts (“MW”) and 14th nationally in the share of solar jobs with 178 solar companies operating in the State.1 Yet over the next five years, solar capacity growth in Maryland is expected to fall to 24th nationally.2 This drop in growth comes amid renewed federal support for solar energy development through the federal investment tax credit (“ITC”) and other supportive renewable energy policies. In Maryland, the capacity restrictions on certain classes of solar projects create project financing challenges through higher capital costs. While anecdotally, solar developers say that the state-wide impact of local planning restrictions makes it difficult to establish a reliable pipeline of ground mounted solar projects.
Solar Energy Industries Association, State Solar Spotlight, available at: https://www.seia.org/state-solar-policy/maryland-solar, last visited February 22, 2021. 2 Id.
Regionally, much of the growth in solar capacity is happening through rooftop, carport, and smaller ground-mounted projects. These projects are sometimes referred to as “Community Solar” as opposed to larger “Utility Scale” projects or individual residential solar installations. Community Solar projects, particularly ground mounted projects, must pass through state and local regulatory hurdles before starting construction – to say nothing of the financing structures enabled through the ITC and other tax incentives and solar renewable energy credits (“SRECs”).3 At the State level, solar projects may require approval by the Public Service Commission (“PSC”) before proceeding, depending on the size of the project and subscriber (end user) base. At the local level, local planning bodies are authorized to adopt ordinances addressing solar energy projects without a statewide framework. As a result, embarking on a new solar project in Maryland may require navigating a complex web of state and local requirements.
As an energy generation facility, Community Solar projects are regulated under the Public Utilities Article of the Maryland Code. The code permits qualifying “eligible
ing and expensive process. As a general rule, PSC approval is not required for solar projects unless the generating capacity exceeds 2MW. See Md. Code Ann. Pub. Util. Cos. § 7-207.2(a). However, Community Solar project developers who intend to sell the power to retail customers must obtain a Maryland electricity suppliers’ license. See Md. Code Ann. Pub. Util. Cos. § 7-507(a). This requirement does not apply to net-metering or virtual net-metering arrangements where a solar developer sells all of the power generated from its facility to a single customer. An example of these single-subscriber projects would be a rooftop solar project that sells all of the produced power to the building owner at a reduced rate via a “Power Purchase Agreement,” as is common with retail and warehouse-based projects.
At the local level, treatment of ground-mounted Community Solar projects varies significantly by county. Let’s take two counties as examples to compare. In Howard County, solar facilities are a conditional use permitted only in certain rural districts with minimum lot sizes (10 acres), setback requirements (50 feet), landscaping buffers, and a visual impact analysis demonstrating the solar project will not “harm” the scenic characteristics of a public park, designated federal,
Embarking on a new solar project in Maryland may require navigating a complex web of state and local requirements.
customer-generators” to own and operate solar Community Solar projects up to 2MW in capacity. Md. Code Ann. Pub. Util. Cos. § 7-306(g)(1). These projects are tied into the local utility network, referred to as the “interconnection,” with the electricity produced by the project flowing out to the utility grid. The local utility company is required to install a “net-meter” capable of measuring the outflow of electricity to the grid, allowing the outflow to be deducted from the customer’s bill to show the “net” energy usage. See Md. Code Ann. Pub. Util. Cos. § 7-306(c), (f)(1)-(7). Net metering can be done with systems that are co-located with the eligible customer-generator or located elsewhere on the same local utility network. See Md. Code Ann. Pub. Util. Cos. § 7-306(a) (4).
The 2MW cap on Community Solar projects imposes an economic constraint that limits a solar developer’s ability to take advantage of economies of scale. (Community Solar projects rely on tax incentives to attract investors meaning that smaller projects increase transaction costs and limit growth.) On the other hand, Community Solar projects are exempt from the requirement to obtain a Certificate of Public Convenience and Necessity (“CPCN”) from the Public Service Commission (“PSC”), which can be a time consum-
state, or local scenic byway, or a historic structure. Howard County, Md., Ord. Zoning Sec. 131.0(52)(a)-(n). If the solar project is proposed for land in the Agricultural Land Preservation Program, a separate review by the Agricultural Land Preservation Board is required. Id. With roughly 21 percent of land in the county subject to preservation easements, finding suitable land for solar projects can be a challenging task.4 Across the Chesapeake Bay in Worcester County, Community Solar projects are subject to the County’s Alternative Energy Facility planning ordinance. Worcester County, Md., Ord. Zoning Sec. 1-344, et seq. Worcester County permits solar facilities in any zoning district, provided the project can meet certain conditions and limitations that vary by system size and zoning district. For instance, the required minimum lot size varies from 20 acres to 30 acres and set back requirements may vary from 50 feet to 100 feet. Id. In addition to these requirements, Community Solar projects must go through the major site planning review process. Id
These differences and variations propagate across Maryland’s counties. The limitations on Community Solar project size, coupled with a varied, often restrictive, approach to local planning, impede expansion of the State’s Community Solar resources. It is difficult for solar project developers to invest
3 The Maryland Renewable Portfolio Standard fosters a market for SRECs and other renewable energy credits. See Md. Code. Ann. Pub. Util. Cos. § 7-701, et seq
4 Howard County Department of Planning and Zoning, Research Division, Howard County Land Use – September 30, 2019, available at https://www.howardcountymd.gov/Departments/Planning-and-Zoning/Statistics-and-Reports
in new projects when revenue is capped at 2MW and the availability of project sites is significantly restrained, or burdensome to navigate at a statewide level. There are initiatives to improve the outlook for Maryland Community Solar projects. For instance, a bill currently under consideration could expand the statewide cap on Community Solar projects to 5MW. If successful, this and other measures may help boost Maryland’s outlook for solar capacity growth.
STEPHEN E. LUTTRELL represents clients in legal matters related to the environment, land use, and solar and renewable energy. He counsels estate investors and developers regarding environmental due diligence, site investigation and remediation, brownfield and voluntary cleanup programs, and compliance with federal, state, and local regulations, as well as matters related to land use approvals, environmental permitting, and green building standards. He represents solar and renewable energy companies in matters related to site acquisition, power purchase agreements, equipment procurement, service agreements, and engineering, procurement, and construction contracts.
This article originally appeared in the Environmental & Energy Law Section Newsletter, and is reprinted with permission of the Section.
Membership with MSBA is now more valuable than ever.
HERE’S WHY:
AT THE GOVERNMENT LEVEL:
• We fought against taxation on legal services. And won.
• We fought for funding for MLSC. And won.
• We fought for front line attorneys to receive access to vaccinations to continue to serve their clients and the public. We succeed when all attorneys in the state are with us.
AT THE MEMBER BENEFITS LEVEL:
• Complimentary Section membership for all members.
• Unlimited access to virtual CLE (live or On Demand) that’s 90 mins or less.*
• New mini-publications like MSBA Case Notes & Remote Pocket Guide
• New CLE publications and CLE programs, with robust online offerings.
• Access to MSBA’s growing Resource & Learning Library, providing practical tools, samples, and more.
* Some exclusions apply
AT THE COMMUNITY LEVEL:
• Our membership is growing. We are stronger than ever.
• This year, we’ll celebrate the 125th anniversary of the MSBA.
• Our Lawyers Assistance Program continues to help with addiction, stress, work-life balance, health and wellness, and more.
Visit msba.org/renew to continue to enjoy these benefits!
COVID-19 in Buildings is all about VENTILATION
BY STUART KAPLOW, ESQ.
This article is about what we know today about how to occupy commercial and public buildings, from offices to schools, in order to prevent the spread of the SARS-Cov-2 (the current designation for what had been the novel coronavirus 2019).
If in 1992, “it’s the economy, stupid” was the phrase coined as the message of the day, today as we face another surge in SARS-Cov-2 cases, it should be “it’s the ventilation, stupid.”
This is an update to my (admittedly very widely read) blog post on April 29, COVID-19 and the Risk from Recirculated Air in Buildings, but I must acknowledge, while this may refresh your recollection, there is little if any new guidance. And you might ask, ‘why advice from an attorney?’ to which I say, as an environmental attorney who reviews a lot of standards and codes, including about indoor air quality, I offer a perspective where others have not, including that my now much quoted April 29 blog post that was among the earliest writings on the topic.
In addition to more widely recognized transmission via direct contact with respiratory droplets generated by infected people or from contaminated surfaces, inhaling fine droplets and particles (often described as aerosols) being smaller than 10 microns is a principle pathway for infection of SARS-Cov-2. While uncertainties exist with respect to transmission pathways, it is beyond dispute that we cannot wait for 100% scientific certainty and owners of commercial buildings must now target airborne transmission within those buildings as part of any larger strategy.
Much of this can be easily implemented without much first dollar cost.
First and foremost, open the windows! If the building has operable windows, by all means provide ventilation by introducing outdoor air through those openings in the wall.
Increasing numbers of experts who study indoor air quality suggest the Centers for Disease Control and Pre-
Much of this can be easily implemented without much first dollar cost.
vention has placed insufficient emphasis on protection from small, virus laden, airborne droplets within the built environment. While others that deal specifically with buildings, like REHVA (the Federation of European Heating, Ventilation and Air Conditioning Associations) and ASHRAE (previously, the American Society of Heating, Refrigerating, and Air-Conditioning Engineers), have acknowledged the indoors airborne hazard and in response described ventilation control measures.
Of course, the measures described here must be implemented by building owners in combination with increased disinfection of high-touch surfaces, closing
water fountains, and encouraging occupant behaviors like use of face masks and hand washing.
Reasonable, but not certain inferences, including REHVA guidance, tell us:
Ventilation is key to reducing airborne transmission of SARS-Cov-2. Ventilation is the process of providing outdoor air to a space or building by natural or mechanical means to maintain the quality of indoor air. Appropriate building engineering controls are necessary and proper including avoiding air recirculation, enhanced by particle filtration and air disinfection, and avoiding overcrowding.
The most significant REHVA recommendation is “no use of recirculation” in any building with a mechanical ventilation system. However, the recirculation of indoor air is actually required by law, in most places including throughout Maryland, through application of standards incorporated into building codes, to save energy in the operation of buildings. But recirculated air can transport airborne contaminants including SARS-Cov-2 from one indoor place within a building to other areas in the building.
Particulate filters (MERV 13 filters and above) and disinfection equipment in recirculated air streams (such as ultraviolet germicidal irradiation and germicidal ultraviolet) can significantly reduce this risk, where feasible, but they need to be professionally installed and then regularly serviced.
Additionally, portable air cleaning machines may be beneficial in modest sized spaces.
Significantly, in a mechanically ventilated building, ventilation rates should be increased by HVAC system modifications. Increased air supply can be accomplished by extending operating times to start ventilation at least 2 hours before building usage, if not 24/7. Multiple matters need to be considered in addition to only the ventilation rate, including temperature control, relative humidity, air flow distribution and direction. Again, if ventilation is provided by opening windows, by all means, open them. Theoretically at least, natural ventilation could introduce pollutants from the outside air.
Lest it be lost on anyone, ventilation plays a critical role in removing exhaled virus laden air, thus lowering the overall concentration and therefore any subsequent dose inhaled by the occupants.
Concomitantly, and while it might seem obvious, minimizing the number of people within an indoor space
(from classrooms to restaurants and supermarkets) accomplishes the same in limiting the spread of SARSCov-2.
Of import the science does not support plexiglass room dividers (becoming common in courtrooms and restaurants) for reducing risk of airborne transmission. Maybe they do NOTHING, but anecdotal evidence articulated by environmental engineers suggests that they change the airflow patterns in the room and can cause pooling of air and hotspots, dangerously reducing ventilation effectiveness. Plexiglass barriers are only effective in preventing spray-borne drops from hitting you in the face if you are very close to a person (e.g., a sneeze guard for a cashier in a supermarket). It is like a shield to protect you from someone who is trying to spray you with a water gun.
World Health Organization curated studies describe that humidification and air-conditioning have no practical effect as coronaviruses are quite resistant to environmental changes and are susceptible only to a very high relative humidity above 80% and a temperature above 30˚C.
Note, duct cleaning has no practical effect and changing of outdoor air filters is not efficacious.
Arguably retro commissioning or otherwise tuning up HVAC systems could be advantageous or not.
But this is not what is being done in the U.S. today. In fact, many local codes make increased ventilation illegal. ASHRAE 62.1, the standard specifying ventilation rates “to provide indoor air quality that is acceptable to human occupants and that minimizes adverse health effects” is widely suggested to not be enough in a SARS-Cov-2 period building, despite being mandated by many jurisdictions that have adopted the ICC codes that incorporate the standard by reference. And the use of no recirculated air, at all, is considered extreme by some, but likely necessary for a period of time (i.e., maybe until the population has been vaccinated?) in order to prevent the spread of coronavirus. ASHRAE’s leadership issued two statements last Spring in response to SARS-Cov-2, including, “changes to building operations, including the operation of heating, ventilating, and air-conditioning systems, can reduce airborne exposures.” But many building owners believe the ASHRAE epidemic task force, heavily weighted with academics, has been too slow to do anything (the European based REHVA acted months ago) and should do more, promptly providing direction on suspension of use of its standards, in particular those related to recirculated air and/ or provide greater guidance on filtering viruses.
State and local codes officials including throughout
Maryland have, almost without exception failed, despite their more than 2,100 new SARS-Cov-2 related statutes, regulations and executive orders, to suspend code (BOCA, IECC, IgCC, etc.) requirements mandating use of recirculated air and the like. Code requirements for demand controlled ventilation should also be disabled during this pandemic.
Moreover, executive orders that close a restaurant or bar or other business after the building has been retrofitted
Code requirements for demand controlled ventilation should also be disabled during this pandemic.
to exchange indoor air 20 times per hour, avoid air recirculation, enhanced by particle filtration with MERVE 13 filters and air disinfection with UV-C technology, and additionally avoids overcrowding; are, after the space has been made as safe to occupy a is possible, at best the wrong headed decisions of lazy policy making public officials and at worst unconstitutional takings without rational basis.
Make no mistake, “it’s the ventilation, stupid.”
Until effective vaccines exist and are in wide-spread use, enhanced ventilation in buildings will be key, and even more significant than the important social distancing including community masking, and hand washing, in limiting the spread of SARS-CoV-2.
STUART KAPLOW is an environmental attorney based in Maryland with focused experience in sustainability including green building. A version of this article was previously published in Stuart’s www.greenbuildinglawupdate.com blog.
This newsletter invites opposing views on the environmental topics of the day. The views expressed in this article are those of the author and do not necessarily represent those of the Maryland State Bar Association.
This article originally appeared in the Environmental & Energy Law Section Newsletter, and is reprinted with permission of the Section.
AGRICULTURAL CONSERVATION PROGRAMS:
Building Blocks for a Cleaner Bay and Carbon Banking
The Biden Administration is exploring various options to mitigate climate change and the most promising approach may be to incentivize farmers to implement practices that sequester carbon in the ground. U.S. Department of Agriculture (USDA) Secretary Tom Vilsack made overtures supporting this approach and is working in earnest to create the first-ever carbon bank of this sort. Secretary Vilsack asserted that USDA has the legal authority to enact a carbon bank, and the agricultural industry is coalescing behind policy principles that generally support a voluntary and incentive-based approach. Policy alignment of the government and industry could be enough to breathe life into it.
While a government bank designed to pay farmers for carbon storage is a novel and exciting prospect, the blueprint of implementing such a program is already on file at the USDA. Agricultural conservation programs being carried out by USDA’s Natural Resources Conservation Service (NRCS) help farmers pay for the cost of implementing practices that promote productive lands and healthy ecosystems. Although carbon banking is a relatively new concept, the on-farm practices that farmers will need to have in place to participate in the banking program are nothing new for farmers. This is especially true for Maryland farmers who have comparatively high rates of conservation practice implementation and are well aware of how these practices improve water quality and factor into the ongoing Chesapeake Bay clean-up process.
Now is an opportune time to bone up on agricultural conservation programs so you can advise your clients on what opportunities may come. Understanding how these programs function and being able to advise on any pitfalls therein is a must for a legal practitioner representing farmers.
OVERVIEW OF FEDERAL PROGRAMS
Federal conservation programs have been around since 1935 when the Soil Conservation Service, now known as NRCS, was created as part of the New Deal, shortly after the Dust Bowl shut down farming in the Southern Plains. In the 85 years since, conservation programs have greatly expanded and are now administered by two agencies within the USDA - the NRCS and the Farm Service Agency (FSA). The NRCS uses science-based technology to provide conservation planning and assistance to farmers/farm landowners to benefit the soil, water, air, plants, and animals for productive lands and healthy ecosystems. The FSA is involved in conservation through the administration of the Conservation Reserve Program (CRP) and the Conservation Reserve Enhancement Program (CREP). NRCS administers over 20 programs and subprograms that are directly or indirectly available to financially and technically assist farmers and landowners who wish to practice conservation on agricultural land.
Conservation programs fall into various categories depending upon the intended use of requested funds. For example, CRP and CREP, offer yearly rental payments to participants for temporarily (a period of 10-15 years) removing environmentally sensitive land from agricultural production and planting the area with native plant species that will improve environmental quality. Environmental improvement programs, like the Environmental Quality Incentives Program (EQIP), provide farmers/landowners with technical and financial assistance for the planning, installation and implementation of structural, vegetative and management conservation practices on agricultural land and forest land. Easement programs, such as the NRCS Agricultural Conservation Easement Program (ACEP), focus on preventing conversion of productive working lands to non-agricultural uses by helping landowners, land trusts, and other entities protect and restore working farms and ranches through conservation easements. Other program fo-
1
cus areas include emergency assistance after natural disasters, compliance assistance, and those specifically for wetlands and grazing/rangelands.
To apply for conservation programs, individual farmers/landowners must meet the eligibility criteria, including requirements for active farm engagement, adjusted gross income limits, and conservation planning.
Some agricultural conservation programs require program participants, either individuals or legal entities, to provide significant contributions to the farming operation and be "actively engaged in farming." Contributions can consist of capital, land, or equipment, as well as active personal labor or active
Normally, the creation and compliance with the Conservation Plan is a voluntary act, however, participation in a federal conservation program requires mandatory compliance.
personal management. The management contribution must be critical to the profitability of the farming operation and the participation must involve some risk. All participants in programs subject to the “actively engaged in farming” requirements must complete a CCC-902 Farm Operating Plan, either for an individual or legal entity. (Some programs like CRP do not require the actively engaged determination.)
In order to receive federal cost-share payments, the program participant cannot have an adjusted gross income (AGI) of more than $900,000 (averaged over the last three years). As part of the application process, applicants will be required to complete an Average Adjusted Gross Income Certification Form CCC-941 - and consent to Disclosure of Tax Information. If an applicant exceeds the AGI limit, he/she can still participate in a program but will not be eligible for federal payments. Each member of an entity or beneficiaries of trusts will have
to complete an AGI form and meet the AGI limitation. If an owner exceeds the limit, the entity can still qualify and that member’s share will be reduced.
Participants in agricultural conservation programs are required to have a farm number - a unique identifier used by the USDA that runs with the land, not the farmer. The local FSA office can check if the land already has a farm number. If not, the office can issue one with proof of identity and control of the land (i.e. deed or lease). Participants are also typically required to have and comply with, a Soil Conservation and Water Quality Plan (Conservation Plan). Conservation Plans are tools designed to help farmers better manage a farm’s natural resources. Staff at local Soil Conservation District (SCD) offices create Conser-
vation Plans by assessing the farm and creating a custom plan for how best to manage the farm’s natural resources. Normally, the creation and compliance with the Conservation Plan is a voluntary act, however, participation in a federal conservation program requires mandatory compliance.
Legal practitioners should be aware that the structure of an agricultural lease can impact eligibility for conservation program participation. For instance, a landowner who cash leases1 land is considered a landlord under the payment limitation rules and may not be considered “actively engaged in farming.” In a cash lease situation, typically only the tenant is considered eligible. Landowners may become eligible for program payments if the landowner is taking on some of the risk associated with the farming and lease payments are based on a share of crop production, proceeds, or gross revenue. Lawyers who draft agricultural leases will want to ask clients about participation in
conservation programs and include lease terms that align with program participation requirements2
If funded, program participants are required to sign a contract and agree to implement the planned conservation practices to NRCS standards and within a defined time frame. Participants must typically commence a practice, in the first 12 months of the contract and complete all practices according to the schedule included in their contract. Also, participants cannot start any financially assisted practices that are included in their application prior to obligation of their contract. Practices started before contract obligation will be considered ineligible for payment. Participants must also agree, by certifying on USDA Form AD-1026, that they will not: (1) produce an agricultural commodity on highly erodible land without a conservation system; (2) plant an agricultural commodity on a converted wetland; or, (3) convert a wetland to farmland. These restrictions, known as the Sodbuster and Swampbuster provisions, are meant to remove incentives to farm on converted highly erodible land and/or converted wetlands and a violation of the provisions can result in ineligibility for numerous USDA farm program benefits. Although SCD and NRCS staff explain the cost-share contracts to applicants, ultimately it is up to the farmer/ landowner to read the terms and comply with the contract provisions. One of the first things to realize about conservation program contracts is that the details are all in the Appendices, separate from the page where the client signs their name. Reminding your client to read the fine print before signing can help avoid noncompliance issues or contract termination.
Contract violations (aka noncompliance) occur when a program participant fails to adhere to the terms and conditions of the contract. Noncompliance can occur when the participant fails to complete conservation practices as scheduled in the contract, the participant loses control of land under contract (e.g. lease termination or land transfer), a conservation practice or activity fails within its lifespan and prior to contract expiration, or the participant fails to meet other contract provisions outlined in the contract appendix. For example, if a farmer is enrolled in CRP to install and maintain a grass buffer, the farmer has an obligation to use approved measures to prevent other types of vegetation from growing in the buffer area and failure to maintain the conservation practice as outlined in the contract may be considered noncompliance. NRCS may provide a reasonable time not to exceed 12 months (as determined by the NRCS State Conservationist) for the participant to correct the violation or face
contract termination. If the nature of the violation does not allow for a reasonable time to regain compliance, NRCS may immediately terminate the contract. Participants should work with their local NRCS office to modify their contract (when applicable) before a violation occurs.
It is the applicant’s responsibility to compare and contrast the available options and choose the conservation program support that will be the best fit.
Early termination of a program contract typically triggers breach, which means the original participant will forfeit all rights to any future payments; be required to refund all or part of the payments made with respect to such contract plus interest thereon; and pay liquidated damages (25% rental payment/acre x total number of acres involved in the breach).
A participant who is considering selling a farm should be careful to inform potential buyers of all program contracts. Conservation program contracts are personal to the applicants, are not recorded or referenced in the land records, and do not run with the land. At the time of land transfer, program participants will need to either terminate the contract or get the purchaser to agree to assume the contract. If the new owner or operator does not become a successor to an existing conservation contract within 60 days, the contract will be considered terminated with respect to the affected portion of the land and the original participant will be responsible for refunding payments and liquidated damages to the federal government.
Although federal conservation programs are broad in scope, farmers/landowners have many options for conservation-related technical and financial support, including environmental non-profits, environmental engineering companies and the State. It is the applicant’s responsibility to compare and contrast the available options and choose the conservation program support that will be the best fit.
2 For more information about how to incorporate conservation practices into lease terms, see Sarah Everhart, Agricultural Conservation Leasing Guide, UME EB-434, University of Maryland (Sept. 2018); see also, Conservation Leasing, Harry R. Hughes Center for Agro-Ecology, https://agnr.umd.edu/research/research-and-education-centers-locations/harry-r-hughes-center-agro-ecology/agricultural
MARYLAND AGRICULTURAL COST-SHARE PROGRAM
Since the early 1980’s the State of Maryland has administered its own cost-share program for agricultural best management practices, the Maryland Agricultural Cost Share (MACS) Program. The General Assembly created the MACS Program to reduce the impacts of non-point source pollution from farmers on water quality. The MACS program is currently managed by the Maryland Department of Agriculture (MDA) and administered by local SCDs.
Through the MACS Program, Maryland farmers are able to receive financial reimbursement for on-farm conservation practices which prevent soil erosion, manage nutrients and safeguard water quality in streams, rivers, and the Chesapeake Bay. Common examples of the more than 30 practices funded through the MACS program include grassed waterways planted to prevent erosion, streamside buffers of grasses or trees planted to filter sediment and farm runoff, and animal manure management systems.
A farmer leasing farmland may initiate a MACS Program application, however, the farm owner(s) must also sign the application prior to submission. The MACS Program applications are reviewed by SCDs and judged on whether there is a high potential on the farm for the movement of nutrients, sediment, animal wastes, or agricultural chemicals impacting the waters of the State. The farmer and the SCD staff work together to choose the appropriate best management practices to address farm management goals and water quality problems. At the time of application, a MACS Program applicant will also be asked to enter into a MACS Agreement (a copy of which is available on the MDA website) in which the farmer will agree to comply with all nutrient management laws and to construct and maintain the practice for the life of the practice, in other words, the period of time in which the MDA has decided the practice will effectively serve its purpose. An applicant also agrees to allow the SCD staff to, upon reasonable notice, inspect the practice to ensure it is being maintained and utilized properly. Applicants also agree to inform the MDA of any change of possession or ownership of the farm where the project is located.
Once the project has been completed, a farmer submits a claim for payment. To be eligible for payment, the SCD certifies that the project meets all applicable standards and specifications. The MDA distributes cost-sharing funds only after it has received this confirmation from the SCD. If a MACS Program participant fails to adhere to the terms of the MACS Agreement, the applicant is required to pay back the MDA the full amount of all reimbursed cost-share funds. Unlike federal cost-share payments, the MACS
Program payments and the terms of the Agreement are secured, (all program payments in excess of $5,000) by a lien that runs with the land on which the practice is installed.
The total amount of cost-share funding available from the MACS Program has been, for many years, at the same level of 87.5 % of the cost to install the conservation practice, however, this legislative session, a Bill was passed (SB0344) and is currently awaiting the Governor’s signature which will increase the amount of available MACS reimbursement to 100% of the costs of installation of practices that, in the discretion of MDA, will help Maryland meet Chesapeake Bay clean-up goals. The total amount of cost-sharing a farmer can receive is limited to (1) $50,000 per project and $150,000 per farm, for projects other than animal waste treatment and containment projects and (2) $200,000 per project and $300,000 per farm for animal waste treatment and containment projects.
HOW CONSERVATION PROGRAMS FACTOR INTO THE CHESAPEAKE BAY CLEAN-UP
The MACS Program is credited as one of the reasons Maryland, at the 2017 Chesapeake Bay clean-up mid-point assessment, had met its reduction goals for both phosphorus and sediment. Between fiscal years 2009 and 2017, the MACS Program provided $54.6 million in grant funding toward the installation of 4,435 conservation practices on Maryland farms. Maryland, along with the five other Bay states and the District of Columbia have committed to achieve their Chesapeake Bay water quality clean-up goals by 2025 and the continued implementation of agricultural conservation practices are a critical component of the agriculture sector reaching those goals. Between now and 2025, Maryland plans to reduce nitrogen from agriculture by almost 5 million pounds, and according to the Phase III Watershed Implementation Plan, the nitrogen reduction in the agricultural sector will be achieved, in large part, through high rates of best management practice implementation.
CONCLUSION
Understanding agricultural conservation programs will enable attorneys to provide insightful counsel to their farmer/landowner clients. The practices promoted through state, federal and private programs create tangible environmental benefits at a critical time in the Chesapeake Bay clean-up process. A solid grasp of the programmatic intricacies of conservation practices will also better equip attorneys to assist clients with participating in carbon banking.
The Intersection of Bankruptcy Law and Environmental Law: The clash between financial survival
and environmental regulation
BY BUD STEPHEN TAYMAN
Bankruptcy is often an individual or business debtor’s last resort to maintain financial survival through protection from creditors. A cornerstone policy of bankruptcy is the orderly and equal distribution of value to allowed claims of creditors within classes. Environmental regulation is a government’s endeavor, if not obligation, to protect the land, air, and waterways of the country and to protect and promote the public health and welfare of its citizens. What happens when these three competing interests meet? Is it possible for these three ideals to co-exist? The answer is yes. However, not necessarily to everyone’s satisfaction.
The United States Bankruptcy Code, title 11, United States Code (the “Code”) is an extensive statutory scheme intended to balance the competing interests of debtors and creditors. This is clearly reflected in the mission statement of the United States Bankruptcy Court for the District of Maryland, which states that it is “[p]romoting social and economic order by reconciling the opportunity of debtors to a fresh start with the right of creditors to be paid.”
This balancing is also reflected in the relationship of bankruptcy and environmental law. This article offers a brief, non-exhaustive review of this relationship through three distinct but potentially intertwined aspects of a bankruptcy case, to wit: (1) the automatic stay, (2) dischargeability of debt, and (3) abandonment of assets.
I. THE AUTOMATIC STAY IN BANKRUPTCY — 11
U.S.C. § 362(A)
The imposition of the automatic stay is one of the cornerstone policies of the Code. Virtually all creditor and collection action against a debtor immediately stops upon the filing of the bankruptcy case. The policy behind the automatic stay is to impose complete, but temporary, relief to the debtor from creditors and to prevent dissipation of the debtor’s assets before orderly distribution of the assets may be accomplished through the Code.1
The automatic stay is found at Code, § 362(a) and provides as follows:
(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title ... operates as a stay, applicable to all entities of -
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
(2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;
(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;
(4) any act to create, perfect, or enforce any lien against property of the estate;
(5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title;
(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title;
(7) the setoff of any debt owing to the debtor that arose before the commencement of the case under this title against any claim against the debtor; and
(8) the commencement or continuation of a proceeding before the United States Tax Court concerning a tax liability of a debtor that is a corporation for a taxable period the bankruptcy court may determine or concerning the tax liability of a debtor who is an individual for a taxable period ending before the date of the order for relief under this title.
There are 27 exceptions to the automatic stay found at subsection 362(b).2 Only one - the police and regulatory power exception - is relevant for this article.
A. THE POLICE AND REGULATORY POWER EXCEPTION TO THE AUTOMATIC STAY - 11 U.S.C. § 362(b) (4)
The police and regulatory power exception is found at Code § 362(b)(4) and provides as follows:
(b) The filing of a petition under section 301, 302, or 303 of this title ... does not operate as a stay -
* * *
(4) under paragraph (1), (2), (3), or (6) of subsection (a) of this section, of the commencement or continuation of an action or proceeding by a governmental unit or any organization exercising authority under the [Chemical Weapons Convention3], to enforce such governmental unit’s or organization’s police and regulatory power, including the enforcement of a judgment other than a money judgment, obtained in an action or proceeding by the governmental
1 Penn Terra, Ltd. v. Dept. of Environmental Resources, Commonwealth of Pennsylvania, et al.,
2 The Code list 28 exceptions. However exception No. 5 has been repealed, but its number remains included in the Code text.
3 The use of the term, “Chemical Weapons Convention”, means the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature on January 13, 1993. See, Code §362(b)(4).
unit to enforce such governmental unit’s or organization’s police or regulatory power; (emphasis added).4
i. SELECTED ASPECTS OF THE OPERATION OF THE POLICE AND REGULATORY POWER EXCEPTION TO THE AUTOMATIC STAY
As stated, the exercise of police and regulatory power is not subject to the automatic stay for any of the actions contained at Code § 362(a)(1), (2), (3), and (6), but is subject to any of the actions contained at Code § 362(a)(4), (5), (7), and (8).
For purposes of the enforcement of environmental regulations, the police and regulatory power exception enables the governmental unit or organization to obtain injunctions and judgments against a debtor to enforce compliance with applicable laws, as well as to obtain judgment to include money judgments.
“police and regulatory power.” The difficulty in applying this exception comes in distinguishing between situations in which the state acts pursuant to its “police and regulatory power” and situations in which the state acts merely to protect its status as a creditor. To make this distinction, we look to the purpose of the law that the state is attempting to enforce. If the purpose of the law is to promote “public safety and welfare, [internal citation omitted], or to effectuate public policy [internal citation and quotation marks omitted], then the exception applies. On the other hand, if the purpose of the law relates to the protection of the government’s pecuniary interest in the debtor’s property [internal citation and quotation marks omitted], or to adjudicate private rights [internal citation and quotation marks omitted], then the exception is inapplicable. The inquiry is objective: we examine the purpose of the law that the state seeks to enforce rather than the intent
For purposes of the enforcement of environmental regulations, the police and regulatory power exception enables the governmental unit or organization to obtain injunctions and judgments against a debtor to enforce compliance with applicable law.
However, the collection of a money judgment, if not subsumed into and forming an integral aspect of the public interest and welfare purpose of the enforcement action, is stayed by the automatic stay and must be collected inside of the bankruptcy proceeding.5 The police and regulatory power exception to the automatic stay is a Congressional abrogation of the impact on state law by the Supremacy Clause of the U.S. Constitution which otherwise would render conflicting state law subject to bankruptcy law.6
The operation and purpose of the police and regulatory power exception to the automatic stay has been described by the 4th Circuit, as follows:
[T]he automatic stay does not apply to any state action “to enforce [a] governmental unit’s or organization’s police and regulatory power, including the enforcement of a judgment other than a money judgment” [internal citation omitted].
The question is whether the financial assurance requirements here are part of South Carolina’s
in enforcing the law in a particular case [internal citation omitted]. Of course, many laws have a dual purpose of promoting the public welfare as well as protecting the state’s pecuniary interest. The fact that one purpose of the law is to protect the state’s pecuniary interest does not necessarily mean that the exception is inapplicable. Rather, we must determine the primary purpose of the law that the state is attempting to enforce [internal citations omitted]. Only if the action is pursued solely to advance a pecuniary interest of the governmental unit will the automatic stay bar it. [However], the fact that the state action requires the debtor to make an expenditure does not necessarily mean that the regulatory exception is inapplicable. See, e.g. Commonwealth Oil Refining Co. v. EPA (In re Commonwealth Oil Refining Co.), 805 F.2d 1175, 1186 (5th Cir. 1986)(holding that the EPA could force debtor to comply with environmental regulations even though compliance would cause debtor to spend money)7
4 The term “governmental unit” means United States, state, commonwealth, district, territory, municipality, foreign state, department, agency, or instrumentality of the United States (but not a United States trustee while serving as a trustee in a case under [title 11]), a state, a commonwealth, a district, a territory, a municipality, or a foreign state; or other foreign or domestic government. See, Code §101(27).
5 See, Penn Terra, supra at 274-79.
6 Id. at 271-74.
7 See, Safety-Kleen, Incorporated (Pinewood) v. Wyche, 274 F.3d 846, 864-65 (4th Cir. 2001). For examples of police and regulatory power exception in non environmental cases, see, E.E.O.C. v. McLean Trucking Co., 834 F. 2d 398, 402 (4th. Cir. 1987) (action to recover back wages for victims of unlawful discrimination exempt from automatic stay until entry of money judgment); see also, U.S. E.E.O.C. v. CTI Global Solutions, Inc., 422 B.R. 49, 52-53 (D. Md.
II. DISCHARGEABILITY OF DEBT
Claims which arise prior to the date of the filing of the bankruptcy case are covered by the bankruptcy case and are included in the bankruptcy discharge, unless specifically excluded from discharge. A business entity does not receive a discharge in a Chapter 7 bankruptcy case, but does receive a discharge in many circumstances in Chapter 11 or Chapter 12 bankruptcy cases.8
Claim is intentionally broadly defined at Code § 101(5) as follows:
(5) The term “claim” means -
(A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or
(B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured.
Notably, under the broad definition of “Claim”, a prepetition environmental clean up order may constitute a claim under the Code and the financial liability thereunder is subject to the bankruptcy discharge, as long as the action is an attempt to collect cleanup costs as a debt, and not as a fine, penalty, or forfeiture.9
As may be seen, whether the claim arises prepetition or postpetition is crucial to the determination of whether and to what extent it is covered by the bankruptcy proceeding. This will be an issue to be determined by the facts of the specific case. In the 4th Circuit, for a tort or breach of warranty, the generally accepted test to determine when a claim arises is
the “conduct test,” which looks to the time the acts constituting the tort or breach of warranty occurred, regardless of whether a right to payment existed under state law at that time.10 This may not be absolute, however, and will constitute an issue ripe for litigation.11
III. ABANDONMENT OF ASSETS
Code § 554(a) allows a bankruptcy trustee to abandon any property of the bankruptcy estate that is burdensome and of inconsequential value to the bankruptcy estate. Aban-
Ordinarily, abandonment is within the sound discretion of the trustee, subject to bankruptcy court approval. However, that is not always the case when it comes to assets involving environmental issues.
donment occurs for many reasons including protection of the estate from tax or other liabilities including liability for environmental contamination or other damage. Ordinarily, abandonment is within the sound discretion of the trustee, subject to bankruptcy court approval.
However, that is not always the case when it comes to assets involving environmental issues. In 1986, the Supreme Court imposed restrictions on the trustee’s unfettered right to abandon assets which were environmentally compromised and held that “a trustee may not abandon assets in contravention of a state statute or regulation that is reasonably designed to protect the public health or safety from identified hazards”.12
Of considerable significance to the precedential value of the Midlantic Bank decision is a footnote which states,
2010) (same); and In re Cloverleaf Enterprises, Inc., 2009 WL 2922953 (Bkrtcy. D. Md. 2009) (action based on collection of amounts due on debt not covered by police and regulatory power exception), judg’t adhered to by In re Cloverleaf Enterprises, Inc., 2009 WL 3066643 (Bkrtcy. D. Md. 2009).
8 See, Code §§ 1141(d)(1)(A) and 1228(a) and (b).
9 Ohio v. Kovacs, 469 U.S. 274 (1985). Notably, a fine, penalty, or forfeiture owed to or for the benefit of a governmental unit is nondischargeable pursuant to Code § 523(a)(7). Id. at 274.
10 Grady v. A.H. Robbins Co., Inc., 839 F. 2d 198, 203 (4th Cir. 1988), distinguishing Matter of M. Frenville Co., Inc, 744 F. 2d 332 (3rd. Cir. 1984) (holding that a right of payment must first exist under state law before claim arises in bankruptcy case).
11 In re Brand, 578 B.R. 729, 732-34 (D. Md. 2017) (distinguishing Grady and holding that a default on a postpetition credit extension was not a prepetition claim even when based on the prepetition execution of a guaranty).
12 Midlantic Nat’l Bank v. New Jersey Dept. of Environmental Protection, 474 U.S. 494, 507 (1986).
This exception to the abandonment power ... is a narrow one... and does not encompass a speculative or indeterminate future violation of such laws that may stem from abandonment. The abandonment power is not to be fettered by laws or regulations not reasonably calculated to protect the public health or safety from imminent and identifiable harm. (emphasis added).13
As a result, the majority view is that abandonment should be prohibited only in situations in which an imminent and serious threat exists as opposed to a remote and speculative threat which might occur as a result of the abandonment.14 The minority view would not allow abandonment in violation of state environmental laws even if no imminent and identifiable harm to public health and safety exists.15
13 Id. at 507 n.9.
IV. CONCLUSION
The foregoing presents a brief overview of some of the major issues which will be encountered in a bankruptcy case involving environmental issues and represents a starting point for further research depending on the facts of the case.
BUD STEPHEN TAYMAN focuses his practice on all aspects of bankruptcy representation in bankruptcy cases filed under chapters 7, 11, 12, and 13. Tayman is board-certified in both consumer and business bankruptcy law by the American Board of Certification, and is a sustaining member of the American Bankruptcy Institute, a charter member of the Bankruptcy Bar Association for the District of Maryland, and a member of the Councils of both the Consumer Bankruptcy Section and the Agriculture Law Section of the MSBA. Tayman maintains offices in Germantown, Maryland and may be reached at btayman@ taymanlaw.com.
14 See, In re Howard, 533 B.R. 532, 544-49 (Bkrtcy. S.D. Miss. 2015) and the cases cited therein, appealed on other grounds, Howard v. Fina Oil and Chemical Co., et al., 2015 WL 7302751 (S.D. Miss. 2015) and In re Venoco, LLC, 572 B.R. 105, 114-16 (Bkrtcy. D. De. 2017) and the cases cited therein.
15 Howard, supra at 547.
SAPPERSTEIN & ASSOCIATES, LLC, has worked on behalf of an impressive mix of clients for 40 years. We provide a wide range of real estate appraisals, consulting services, and valuation services. We possess the integrity and knowledge required to provide an excellent product for our clients. We have worked hard to earn our excellent reputation throughout Maryland, Virginia, and Washington, DC. When it comes to meeting deadlines, we have a proven track record of reducing our clients’ time, costs, and frustration.
GORDON ON MARYLAND FORECLOSURES
5 th Edition
All new edition of this venerable resource on Maryland foreclosures, last published in 2004
Highlights changes in the statutes, rules, and regulations since 2008 mortgage crisis
INCLUDES:
• Mediation requirements and alternatives to foreclosure
• Best practices for ensuring clear title
• Instructions for giving notice to everyone who might have interest in a property
• Practical advice for representing bidders and junior lien holders in someone else’s foreclosure
• Guide to appeals and post-judgment issues
• Practice tips and forms for representing clients in all aspects of the foreclosure process
Maryland Judiciary Update
• January 11, 2021 - Gov. Larry Hogan appointed to Hon. Laura S. Ripken to the Maryland Court of Special Appeals. Judge Ripken previously served as the Circuit Administrative Judge for the 5th Judicial Circuit and County Administrative Judge for Anne Arundel County Circuit Court.
• April 26, 2021 marked the beginning of Phase V of the Maryland Judiciary’s five-phased progressive resumption of operations plan. Under Phase V the courts resume full operation, including jury trials.
In a message issued on Friday, April 23, 2021, Hon. Mary Ellen Barbera, Chief Judge, Maryland Court of Appeals, thanked the public, judiciary staff, judges and justice partners for their patience and perseverance during the COVID-19 emergency, and reassured everyone about the judiciary’s readiness to handle the return to full operations. Specifically, Judge Barbera stated:
As we resume Phase V emergency operations, which includes jury trials, the courts are again prepared to move forward. All of the circuit courts have the benefit of the successful implementation
of jury trials with COVID-19 health and safety protocols last fall. Eighty-eight jury trials were conducted without a single incident of COVID-19 transmission, prior to any COVID-19 vaccination having been approved. This could only be achieved through intensive planning and preparation and careful implementation by each of the circuit courts in Maryland. The same health protocols will remain in place for anyone who enters a courthouse or Judiciary facility, consistent with CDC guidelines, including wearing masks, social distancing, plexiglass barriers, hand sanitizer, and cleaning protocols to limit the risk of COVID-19 transmission. Marylanders can fulfill their civic duty to serve on a jury with the assurance that their health and safety are being safe-guarded.
• May 7, 2021 - Bar exam results for February test takers were released. According to the National Conference of Bar Examiners website, Maryland saw a 43% overall pass rate for the February exam.1 The Bar Admission ceremony for February test-takers will occur virtually on Tuesday, June 15, 2021.
The Ethics of Internet Advertising: An Update
BY LYDIA E. LAWLESS, BAR COUNSEL Maryland Bar Foundation Fellow
According to a recent ABA Legal Technology Survey, 87% of the attorneys surveyed reported that their law firm maintained a firm website.1 A website is certainly a useful tool for communicating information about a firm’s services to prospective clients. Caution should be exercised, however, to ensure that the firm does not violate the Rules of Professional Conduct in its marketing efforts.
ONCE A FIRM’S WEBSITE is up and running, the firm has an interest in generating internet traffic. One method of generating traffic is through the purchase of keywords. In short, when a consumer uses a search engine to search certain words or phrases that an advertiser purchased, the advertiser’s website will appear in the search results as a “paid” or “sponsored” ad. A number of jurisdictions have evaluated whether an attorney violates the Rules of Professional Conduct by purchasing a keyword that is a competitor’s name.
In 2012, the North Carolina State Bar issued 2010 Formal Ethics Opinion 14.2 The Bar concluded that an attorney’s selection of a competitor’s name as a keyword for use in a search engine company’s search-based advertising program violated Rule 8.4(c) of the North Carolina Rules of Professional Conduct prohibiting dishonest conduct, including conduct which shows a lack of fairness or straightforwardness. The opinion reasoned that “[t]he intentional purchase of the recognition associated with one lawyer’s name to direct consumers to a competing lawyer’s website is neither fair nor straightforward.”3
Since 2012, however, jurisdictions have consistently determined that the practice does not violate the Rules of Professional Conduct. In 2019, the Advisory Committee on Professional Ethics of the Supreme Court of New Jersey issued Opinion 735.4The
A number of jurisdictions have evaluated whether an attorney violates the Rules of Professional Conduct by purchasing a keyword that is a competitor’s name.
Committee reasoned that the purchase of a competitor’s name does not violate Rule 8.4(c) or (d) of the New Jersey Rules of Professional Conduct which prohibit attorneys from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation” and “conduct prejudicial to the administration of justice.…”5 The Committee cited with approv-
2 Available here: https://www.ncbar.gov/for-lawyers/ethics/adopted-opinions/2010-formal-ethics-opinion-14 (last visited March 20, 2021).
3 Id 4 Available here: https://www.njcourts.gov/notices/2019/n190806c.pdf (last visited March 20, 2021).
5 Id
6 State Bar of Texas Professional Ethics Committee Opinion No. 661 (July 2016).
al to a Texas State Bar Professional Ethics Committee Opinion which held that, “given the general use by all sorts of businesses of names of competing businesses as keywords in search-engine advertising, such use . . . is neither dishonest nor fraudulent nor deceitful and does not involve misrepresentation.”6
The New Jersey Committee noted that “the
website of the keyword purchaser’s law firm and the competitor’s law firm will, presumably, both appear in the resulting search” with the keyword purchaser’s website designated as a paid or sponsored website, and that “[t]he user can choose which website to select.”7 The Committee determined that the purchase of a competitor’s name was not prejudicial to the administration of justice in violation of the Rules of Professional Conduct where such conduct “is not egregious or flagrant.”8
While keyword searches may be condoned in certain jurisdictions, attorneys should be aware that other means of generating internet traffic to your website may run afoul of the Rules of Professional Conduct. The New Jersey Committee, in its 2019 opinion, considered the question of whether an attorney may insert, or pay the internet search engine company to insert, a hyperlink on the name of a competitor attorney that will divert the user from the searched-for website to the attorney’s own law firm website. The Committee determined that “surreptitiously redirecting a user from the competitor’s website to the lawyer’s own website is purposeful conduct intended to deceive the searcher for the other lawyer’s website” and that such conduct was deceitful in violation of Rule 8.4(c) of the Rules of Professional Conduct.9
Of course, all advertising material must comply with the Rules of Professional Conduct. Rule 7.1 prohibits an attorney from making any “false or misleading communication about the attorney or the attorney’s services.”10 Online content is false or misleading if it contains a material misrepresentation of fact or law, omits a fact necessary to make the statement considered as a whole not materially misleading, is likely to create an unjustified expectation about results the attorney can achieve, states or implies that the attorney can achieve results by illegal or unethical means, or compares the attorney’s services with other attorneys’ services.11
The comments to Rule 7.1 provide that ordinarily advertisements may not include information about results obtained, such as the amount of a damage award or the attorney’s record in obtaining favorable verdicts unless it also expressly and conspicuously states that each case is different and that the past record is no assurance that the attorney will be successful in reaching a favorable result in any future case. A similar caveat applies to client endorsements or testimonials, which, of course, can only be provided by a bona fide pre-existing client of the attorney. Furthermore, because it is almost impossible for an attorney to factually substantiate that she is “the best” the “most aggressive” the “most successful” or the “most” anything, she would be wise to avoid such terminology. Rule 7.2 outlines the technical requirements for all advertising material, including website and social media content. The Rule requires, among other things, that an attorney maintain a copy of each advertisement for three years, that each advertisement include the name of at least one attorney responsible for its content, and that, if the attorney advertises that no fee will be charged absent a recovery, the advertisement “must disclose whether the client will be liable for any expenses.”12
Some online content created by attorneys provides substantive information including legal information and general or generic legal advice. An attorney must be cautious of unanticipated reliance on such information or advice by members of the public. If a website offers general legal information or advice, a blog, FAQ (frequently asked questions) or question and answer section, a disclaimer should alert members of the public that the information on the website is not a substitute for legal advice and should not be relied upon.
Special attention should also be paid to whether the website or social media may
7 Advisory Committee on Professional Ethics of the Supreme Court of New Jersey, Opinion 735 (June 2019).
8 Id.
9 Id.
10 Md. Rule 19-307.1.
11 Id.
12 Md. Rule 19-307.2.
13 Md. Rule 19-301.18.
14 Md. Rule 19-301.6
15 Md. Rules 19-301.7, 19-301.8 and 19-301.9.
inadvertently establish a reasonable expectation in the mind of a prospective client that online communications establish an attorney-client relationship. If an attorney solicits specific information related to the potential client’s legal question or encourages the flow of information which may reasonably include confidential information, the individual may be considered a prospective client under Rule 1.1813 which carries with it confidentiality obligations14 and may implicate the conflicts of interest rules.15
An attorney should also use care in responding to online criticism. Earlier this year, the ABA issued Formal Opinion 496 to address an attorney’s obligation when he or she is the target of a negative review.16 Opinion 496 reinforced that an attorney may not disclose any confidential information in response to an online review – even if it is intended to correct misrepresentations or misstatement. The Opinion provides guidelines for best practices, advising that the attorney may request the host of the website or search engine remove the post, and, in the event the attorney is compelled to respond to the review, the response should not disclose confidential information nor convey information that would reasonably lead to the discovery of confidential information.17 An attorney may respond to a post, for example from a former dissatisfied client, requesting to discuss the matter offline or in a more private online setting. Finally, an attorney may also cite to the Rules noting that the professional obligations of a lawyer do not permit her to respond in the manner in she would like.18
All online content associated with an attorney’s law practice, including all social media (Facebook, LinkedIn, avvo.com, Martindale-Hubbell), should be regularly reviewed to ensure compliance with the Maryland Attorneys’ Rules of Professional Conduct.
16 ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 496 (January 2021), available here: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-496.pdf (last visited March 20, 2021)
17 Id
18 Id.
Fresh Faces
Meet MSBA's 2021 Student Ambassadors
Each year, the MSBA recruits Student Ambassadors from area law schools. The goal of the Student Ambassadors program is to identify ways the MSBA can be helpful to the next generation of attorneys in Maryland. Student Ambassadors also act as liaisons between MSBA Sections and the law students, by encouraging law students to attend and engage with Section programs. We are excited to introduce the 2021 Student Ambassadors: Temidayo Joseph and Camila Thorpe.
Temidayo Joseph
Howard University School of Law
Why did you choose law school?
I had some legal and legislative internships during undergrad that allowed me to appreciate the power lawyers present as change makers and advocates. I wanted the opportunity to gain a skill set and knowledge that would serve me in various industries and initiatives.
It is my hope to open the door for Black lawyers to follow after me in every legal space I occupy.
What are your goals as MSBA Student Ambassador?
My main goal is to facilitate information and opportunities to students who come from various economic, financial and cultural backgrounds. It is my hope to open the door for Black lawyers to follow after me in every legal space I occupy.
What are your career aspirations?
Initially, I would like to join a firm and clerk for a DC federal court judge. Later in my career, I would like to work at an organization doing work in either ethical international trade, mining, food and drug law, or sustainable fashion. I would also like to return to Howard as a professor and help mold the next generation of HUSL attorneys. What area(s) of law are you interested in?
I’m interested in a variety of areas of the law. Right now, my main interests are food and drug, fashion, international trade and federal tax.
Camila Thorpe
University of Maryland Francis King Carey School of Law
Why did you choose law school?
I have always been passionate about the law, and working as a paralegal for many years confirmed that I wanted to be a lawyer. Because Latina attorneys comprise such a small percentage of all American lawyers, I also wanted to promote and support diversity within the legal community.
What are your goals as MSBA Student Ambassador?
First, I want to expand my network and introduce my fellow classmates to the MSBA while we’re still in law school to further our academic and career goals. Second, I want to represent traditionally underrepresented communities in the legal profession through my participation in this program.
What area(s) of law are you interested in?
Post-graduation I would like to work in intellectual property, particularly as a trademark lawyer.
I want to represent traditionally underrepresented communities in the legal profession through my participation in this program.
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IN 2014, MARYLAND BECAME one of a growing number of states to legalize the use and possession of cannabis for medical purposes. See Md. Code Ann., Health-Gen. § 13-3301 to 13-3311 (hereinafter “Maryland Medical Cannabis Statute”). However, the use and possession of cannabis remains illegal under federal law. Federal law continues to treat cannabis as a “Schedule I” narcotic, having no medical use or benefit. 21 USC § 812(b); United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 491 (2001) (finding no medical necessity exception under federal prohibition of cannabis). As such, Maryland residents using or possessing cannabis for medical purposes in compliance with Maryland’s Medical Cannabis Statute are nonetheless violating federal law.
Maryland State Bar Association, Inc. Committee on Ethics
MSBA ETHICS DOCKET NO. 2021-04
Can Maryland-licensed Attorneys Ethically Possess or Consume Cannabis Under Maryland’s Medical Cannabis Statute?
QUESTION PRESENTED: Does a Maryland-licensed attorney violate the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) when using or possessing cannabis for medical purposes in compliance with the Maryland Medical Cannabis Statute given that such conduct may violate federal law?
CONCLUSION: For the reasons set forth below, we believe that the mere use or possession of medical cannabis by a Maryland-licensed attorney in compliance with the Maryland Medical Cannabis Statute does not violate the MARPC.1 We caution, however, that attorneys may be subject to discipline if using or consuming cannabis interferes with their ability to competently and diligently practice law, even if
1 We offer no opinion on how federal courts or other states where Maryland attorneys practice may view this issue.
such use or possession is for valid medical purposes in compliance with Maryland’s medical cannabis statutory scheme.
FACTS PRESENTED FOR CONSIDERATION: The General Assembly of the Maryland Legislature has authorized the establishment and implementation of a medical cannabis program, to be regulated by the Maryland Medical Cannabis Commission. In enacting this legislation, the
Maryland Medical Cannabis Statute, we consider whether such participation would constitute a violation of MARPC 19-308.4.
A lawyer violates MARPC 19-308.4(b) by committing “a criminal act that reflects adversely on the attorney’s honesty, trustworthiness or fitness as an attorney in other respects.” Comment 2 to Rule 19-308.4 clarifies that not all criminal offenses constitute a violation of the rules. Rather,
The General Assembly has specifically considered and approved the participation of Maryland-licensed professionals as “qualifying patients” under the Maryland Medical Cannabis Statute, and in doing so, has provided protections for participating professionals’ licensure.
Legislature broadly stated:
The General Assembly intends that the programs implemented in accordance with this subtitle yield a successful but consumer-friendly medical cannabis industry in the State to provide patients affordable and adequate access to medical cannabis.
Md. Code Ann., Health-Gen. § 13-3301.1.
The General Assembly has specifically considered and approved the participation of Maryland-licensed professionals as “qualifying patients” under the Maryland Medical Cannabis Statute, and in doing so, has provided protections for participating professionals’ licensure:
§ 13-3313. Persons acting in accordance with subtitle not subject to arrest, prosecution, or civil or administrative penalties
(a) Any of the following persons acting in accordance with the provisions of this subtitle may not be subject to arrest, prosecution, revocation of mandatory supervision, parole, or probation, or any civil or administrative penalty, including a civil penalty or disciplinary action by a professional licensing board, or be denied any right or privilege, for the medical use of or possession of medical cannabis;
(1) A qualifying patient …
See Md. Code Ann., Health-Gen. § 13-3313(a)(1).
ANALYSIS/DISCUSSION: In analyzing whether an attorney may participate as a “Qualified Patient” under the
“an attorney should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice” like “[o]ffenses involving violence, dishonesty, or breach of trust, or serious interference with the administration of justice.” Id. Comment 2 further explains that an attorney is subject to professional discipline for “[a] pattern of repeated offenses, even ones of minor significance when considered separately” if the pattern demonstrates indifference to legal obligations. Id
We do not believe that the use or possession of medical cannabis in compliance with the Maryland Medical Cannabis Statute reflects on an attorney’s honesty, trustworthiness, or fitness as an attorney, and thus, cannot itself constitute a violation of MARPC 19-308.4(b). Moreover, in light of the conflict between the Maryland Medical Cannabis Statute and federal law designating cannabis as having “no medical use,” we do not believe that a pattern of compliant medical use by a Maryland-licensed attorney demonstrates an indifference to legal obligations sufficient to constitute an ethical violation of the MARPC.
This conclusion is confirmed by the express language of Maryland’s Medical Cannabis Statute, which specifically includes language that allows for the participation of Maryland-licensed professionals as qualifying patients, without subjecting their licensure to risk of discipline. Indeed, Maryland’s Medical Cannabis Statute expressly prohibits “disciplinary action by a professional licensing board, or [denial of] any right or privilege, for the medical use of or possession of medical cannabis.” Md. Code Ann., HealthGen. § 13-3313. We believe that the class of professions pro-
tected by this language includes Maryland attorneys. In light of the Maryland Legislature’s expressed intent to allow professionals, including attorneys, to participate in Maryland’s medical cannabis program, we do not believe that the MARPC would subject Maryland-licensed attorneys to discipline for such participation, in the absence of some additional fact(s) that adversely impacted the attorney’s competency.
In addition, this Committee opined in 2016-10 that Maryland law and the MARPC, when read together, allow a Maryland lawyer to advise clients on compliance with Maryland’s marijuana laws and also allow lawyer’s to engage in businesses authorized under Maryland law including cannabis businesses. While the conflict between federal and state law creates difficult ambiguities, this Committee, as it was in 2016-10, is charged with interpreting the Maryland Rules and where, as here, the legislature has clearly identified the public policy of this State, this Committee must recognize and adhere to that policy.
We believe that the private statutorily compliant consumption of medical cannabis should not subject attorneys to professional discipline. We believe, however, that any attorney consuming medical cannabis in compliance with Maryland law, but who allows their use to adversely affect their practice of law, remains subject to discipline. See MARPC 19-301.1 (“An attorney shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.); MARPC 19-301.16 (requiring attorney to decline representation or withdraw “if the attorney’s physical or mental condition materially impairs the attorney’s ability to represent the client”); see also Attorney Grievance Comm'n of Maryland v. Finlayson, 293 Md. 156, 159–61, 442 A.2d 565, 567–68 (1982) (suspending attorney for misconduct arising because of alcoholism with right to reapply upon fulfillment of rehabilitation conditions).
References
Rules cited 19-301.1; 19-301.16; 19-308.4
Ethics Docket Nos. cited 2016-10
Other authority cited
• United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483 (2001)
• Attorney Grievance Comm'n of Maryland v. Finlayson, 293 Md. 156, 442 A.2d 565 (1982)
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.
Autumn Smith
MEMBER SERVICE SPECIALIST
Member Service Specialist, Autumn Smith, has been with the MSBA for over two years, and fields questions and comments from members and the public with a positive attitude and a wealth of knowledge about the whole organization. Her position with the MSBA began as a temporary support assistant right after she completed her undergraduate education, but her skillful handling of data systems as well as customer inquiries led her to become a full-time team member, which is a win-win for MSBA members!
Tell us a little about yourself. What did you do before you joined the MSBA?
I'm originally from Howard County and I graduated from University of Maryland, Baltimore County with a degree in Financial Economics just before starting with MSBA.
I really enjoy having one-on-one interactions with members and being able to help them get the most out of their membership.
Tell us about your role at the MSBA. What's your favorite part of that role?
My role as a Member Service Specialist includes working with members directly to answer inquiries about their membership and MSBA services, and assist them with purchasing publications and/or registering for programs. In addition, I maintain our membership records, provide content updates for the Lawyers' Manual, process membership renewals, and look for ways to improve the member experience across the board. I really enjoy having one-on-one interactions with members and being able to help them get the most out of their membership.
What is a cause you're passionate about outside of work?
During my time at MSBA I've been more inspired to get involved in causes that matter to me on a personal level. As a dog lover, I get a lot of fulfillment from supporting rescue causes for pitbulls and other bully breeds.
What do you do to de-stress or unwind?
I really enjoy meditation and yoga as a way to stay grounded. The current situation can make unwinding difficult but I find that mindfulness and listening to music are key to reducing stress for me, as is expressing creativity through painting and needleworking.
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Continuing the Journey
Reaching over 104% of what we projected for this year in membership is a tremendous endorsement from the attorneys and firms we strive to fight for. Since May of 2017 we have been transforming who we are and what our value proposition is in order to meet the needs of our members today and tomorrow. Thousands of attorneys are engaging in our MSBA in new ways. On demand. Virtually. We are there when our members need resources and wherever they want to consume them.
I’m excited by the enhancements that will commence in the 2nd half of this calendar year and in the efforts of a variety of Committees and Task Forces that will be making their recommendations to our Board soon.
In May, we will host our incoming Board members and say goodbye to some talented attorneys who have volunteered their time serving in our Board of Governors. They will all spend hours discussing where we’ve been this past year and where we’re headed. Staff, leaders, volunteers...all focused on how we empower and support you.
"Since May of 2017 we have been transforming who we are and what our value proposition is in order to meet the needs of our members today and tomorrow."
As we enter our 125th year in a few months, the MSBA is poised to build on its position as the voluntary state Bar with the most benefits and services of any voluntary Bar in the country while costing less than 49 other Bars. And we’re not done yet in this role as the preeminent Bar.
Best wishes on a healthy and prosperous next few months. There’s even more to come on this continuing journey of being the home of the entire Maryland legal profession.
Thank you for making this your….MSBA.
Victor L. Velazquez, Executive Director
Since 1992 Minnesota Lawyers Mutual Insurance has dedicated itself to insuring, educating and advancing the interests of Maryland lawyers so that their practices are protected. Over the years, we’ve emerged as a leading provider of professional liability insurance to benefit lawyers, the legal profession, and the community.
We’ve worked hard to foster loyalty between MLM and the Maryland lawyers, and policyholders have benefited greatly from the stability and consistency which this loyalty brings.
Kiernan Waters, Esq., Regional Sales Director
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We are proud of our financial stability, achieved and fostered largely due to the loyalty of our insureds over the years. By investing assets prudently and conservatively, we have garnered financial strength which allows us to declare dividends consistently. Our rate-making system, coupled with the careful practice of law among insureds, has allowed us to establish substantial reserves for the payment of claims, and a stable surplus for the long-term protection of insureds. Our primary goal has always been to protect our policyholders.
We invite you to get a quote and to compare MLM’s program to others.
For questions and personal guidance contact Kiernan Waters, MLM’s malpractice insurance advisor for Maryland. 443-293-6038 kwaters@mlmins.com www.mlmins.com
Maryland State Bar Association, Inc.
520 West Fayette Street
Baltimore, Maryland 21201 Electronic Service Requested
Hon. Eric M. Johnson (Ret.)
Judge,
(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. Ann N. Sundt (Ret.) Retired Judge, Montgomery County Circuit Court
Hon. A. Michael Chapdelaine (Ret.) Retired Judge, Prince George’s County Circuit Court
Hon. Thomas G. Ross (Ret.) Retired Judge, Queen Anne’s County Circuit Court
Kenneth L. Thompson, Esq. Fellow, American College of Trial Lawyers
Hon. Toni E. Clarke (Ret.) Retired Judge, Prince George’s County Circuit Court
Hon. Nelson W. Rupp, Jr. (Ret.) Retired Judge, Montgomery County Circuit Court
Hon. John H. Tisdale (Ret.) Retired Judge, Frederick County Circuit Court
Morton A. Faller, Esq. Past President, Bankruptcy Bar Assoc. for the Dist. of Maryland
Hon. J. Frederick Sharer (Ret.) Retired Judge, Court of Special Appeals of Maryland Hon. Martin P. Welch (Ret.)
